93066 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

DEPARTMENT OF THE INTERIOR final rule consists of editorial revisions 4. Section 773.17: What conditions must and organizational changes intended to the regulatory authority place on each Office of Surface Mining Reclamation improve consistency, clarity, accuracy, permit issued? and Enforcement and ease of use. 5. Section 773.20: What actions must the regulatory authority take when a permit DATES: This rule is effective January 19, is issued on the basis of inaccurate 30 CFR Parts 700, 701, 773, 774, 777, 2017. information? 779, 780, 783, 784, 785, 800, 816, 817, FOR FURTHER INFORMATION CONTACT: For E. Part 774: Revision; Renewal; Transfer, 824, and 827 the final rule: Dennis G. Rice, Office of Assignment, or Sale of Permit Rights; Post-Permit Issuance Requirements [Docket ID: OSM–2010–0018; S1D1S Surface Mining Reclamation and Enforcement, U.S. Department of the 1. Section 774.10: When must the SS08011000 SX064A000 178S180110; regulatory authority review a permit? S2D2S SS08011000 SX064A000 17X501520] Interior, 1951 Constitution Avenue NW., 2. Section 774.15: How may I renew a Washington, DC 20240. Telephone: RIN 1029–AC63 permit? 202–208–2829. Kathleen G. Sheehan, F. Part 777: General Content Requirements Stream Protection Rule Esq., Office of Surface Mining for Permit Applications Reclamation and Enforcement, U.S. 1. Section 777.11: What are the format and AGENCY: Office of Surface Mining Department of the Interior, 3 Parkway content requirements for permit Reclamation and Enforcement, Interior. Center, 2nd Floor, Pittsburgh, applications? Pennsylvania 15220. Telephone: 412– 2. Section 777.13: What requirements ACTION: Final rule. apply to the collection, analysis, and 937–2829. reporting of technical data and to the use SUMMARY: We, the Office of Surface For the final environmental impact of models? Mining Reclamation and Enforcement statement: Robin T. Ferguson, Office of 3. Section 777.14: What general (OSMRE or OSM), are revising our Surface Mining Reclamation and requirements apply to maps and plans? regulations, based on, among other Enforcement, U.S. Department of the 4. Section 777.15: What information must things, advances in science, to improve Interior, 1951 Constitution Avenue NW., my application include to be the balance between environmental Washington, DC 20240. Telephone: administratively complete? protection and the Nation’s need for 202–208–2802. G. Part 779: Surface Mining Permit coal as a source of energy. This final For the final regulatory impact Applications—Minimum Requirements analysis: Mark Gehlhar, Office of for Information on Environmental rule will better protect water supplies, Resources and Conditions surface water and groundwater quality, Surface Mining Reclamation and 1. Section 779.1: What does this part do? streams, fish, wildlife, and related Enforcement, U.S. Department of the 2. Section 779.2: What is the objective of environmental values from the adverse Interior, 1951 Constitution Avenue NW., this part? impacts of surface coal mining Washington, DC 20240. Telephone: 3. Why are we removing 30 CFR 779.11 operations and provide mine operators 202–208–2716. and 779.12? with a regulatory framework to avoid For information collection matters: 4. Section 779.19: What information on water pollution and the long-term costs John A. Trelease, Office of Surface vegetation must I include in my permit associated with water treatment. We Mining Reclamation and Enforcement, application? 5. Section 779.20: What information on have revised our regulations to define U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, fish and wildlife resources must I ‘‘material damage to the hydrologic include in my permit application? balance outside the permit area’’ and DC 20240. Telephone: 202–208–2716. 6. Section 779.21: What information on require that each permit specify the SUPPLEMENTARY INFORMATION: soils must I include in my permit point at which adverse mining-related Table of Contents application? impacts on groundwater and surface 7. Section 779.22: What information on water would reach that level of damage; I. Executive Summary land use and productivity must I include collect adequate premining data about II. Why are we revising our regulations? in my permit application? the site of the proposed mining III. What opportunity did we provide for 8. Section 779.24: What maps, plans, and public comment on the proposed rule cross-sections must I submit with my operation and adjacent areas to establish and supporting documents? permit application? an adequate baseline for evaluation of IV. What general comments did we receive H. Part 780: Surface Mining Permit the impacts of mining and the on the proposed rule? Applications—Minimum Requirements effectiveness of reclamation; adjust V. Tabular Summaries of Revisions and for Reclamation and Operation Plans monitoring requirements to enable Organizational Changes 1. Section 780.1: What does this part do? timely detection and correction of any VI. How do our final regulations differ from 2. Section 780.2: What is the objective of adverse trends in the quality or quantity our proposed regulations? this part? of surface water and groundwater or the A. Section 700.11(d): Termination and 3. Section 780.12: What information must biological condition of streams; ensure Reassertion of Jurisdiction the reclamation plan include? B. Section 701.5: Definitions 4. Section 780.13: What additional maps protection or restoration of perennial C. Section 701.16: How will the stream and plans must I include in the and intermittent streams and related protection rule apply to existing and reclamation plan? resources; ensure that permittees and future permits and permit applications? 5. Why are we removing the provisions for regulatory authorities make use of D. Part 773: Requirements for Permits and air pollution control plans in previous 30 advances in science and technology; Permit Processing CFR 780.15? ensure that land disturbed by mining 1. Section 773.5: How must the regulatory 6. Section 780.16: What must I include in operations is restored to a condition authority coordinate the permitting the fish and wildlife protection and capable of supporting the uses that it process with requirements under other enhancement plan? was capable of supporting before laws? 7. Section 780.19: What baseline 2. Section 773.7: How and when will the information on hydrology, geology, and mining; and update and codify the regulatory authority review and make a aquatic biology must I provide? requirements and procedures for decision on a permit application? 8. Section 780.20: How must I prepare the protection of threatened or endangered 3. Section 773.15: What findings must the determination of the probable hydrologic species and designated critical habitat. regulatory authority make before consequences of my proposed operation Approximately thirty percent of the approving a permit application? (PHC determination)?

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93067

9. Section 780.21: What requirements 8. Section 784.24: What requirements 14. Section 800.40: How do I apply for apply to preparation and review of the apply to the postmining land use? release of all or part of a performance cumulative hydrologic impact 9. Why are we removing the provisions for bond? assessment (CHIA)? air pollution plans in previous 30 CFR 15. Section 800.41: How will the regulatory 10. Section 780.22: What information must 784.26? authority process my application for I include in the hydrologic reclamation 10. Section 784.26: What information must bond release? plan and what information must I I provide if I plan to return coal 16. Section 800.42: What are the criteria for provide on alternative water resources? processing waste to abandoned bond release? 11. Section 780.23: What information must underground workings? 17. Section 800.43: When and how must I include in plans for the monitoring of 11. Section 780.27: What additional the regulatory authority provide groundwater, surface water, and the permitting requirements apply to notification of its decision on a bond biological condition of streams during activities in or through an ephemeral release application? and after mining? stream? 18. Section 800.44: Who may file an objection to a bond release application 12. Section 780.24: What requirements 12. Section 784.28: What additional and how must the regulatory authority apply to the postmining land use? permitting requirements apply to 13. Section 780.25: What information must respond to an objection? activities in, through, or adjacent to a I provide for siltation structures, 19. Section 800.50: When and how will a perennial or intermittent stream? impoundments, and refuse piles? performance bond be forfeited? 14. Section 780.26: What special 13. Section 784.30: When must I prepare a 20. Section 800.60: What liability requirements apply to surface mining subsidence control plan and what insurance must I carry? near underground mining? information must that plan include? 21. Section 800.70: What special bonding 15. Section 780.27: What additional 14. Section 784.35: What information must provisions apply to anthracite operations permitting requirements apply to I provide concerning the minimization in Pennsylvania? activities in or through an ephemeral and disposal of excess spoil? M. Part 816: Permanent Program stream? 15. Section 784.40: May I submit permit Performance Standards—Surface Mining 16. Section 780.28: What additional application information in increments as Activities permitting requirements apply to mining progresses? 1. Section 816.1: What does this part do? activities in, through, or adjacent to a 16. Why are we removing 30 CFR 784.200? 2. Section 816.2: What is the objective of perennial or intermittent stream? K. Part 785: Requirements for Permits for this part? 17. Section 780.29: What information must Special Categories of Mining 3. Section 816.11: What signs and markers I include in the surface-water runoff 1. Section 785.14: What special provisions must I post? control plan? apply to proposed mountaintop removal 4. Section 816.22: How must I handle 18. Section 780.35: What information must mining operations? topsoil, subsoil, and other plant growth I provide concerning the minimization 2. Section 785.16: What special media? and disposal of excess spoil? requirements apply to proposed 5. Section 816.34: How must I protect the 19. Section 780.37: What information must variances from approximate original hydrologic balance? I provide concerning access and haul contour restoration requirements for 6. Section 816.35: How must I monitor roads? steep-slope mining? groundwater? I. Part 783: Underground Mining Permit 3. Section 785.25: What special provisions 7. Section 816.36: How must I monitor Applications—Minimum Requirements apply to proposed operations on lands surface water? for Information on Environmental eligible for remining? 8. Section 816.37: How must I monitor the Resources and Conditions L. Part 800: Bond, Financial Assurance, biological condition of streams? 1. Section 783.24: What maps, plans, and and Liability Insurance Requirements for 9. Section 816.38: How must I handle acid- cross-sections must I submit with my Surface Coal Mining and Reclamation forming and toxic-forming materials? permit application? Operations 10. Section 816.40: What responsibility do 2. Section 783.26: May I submit permit 1. How have we revised the definitions in I have to replace water supplies? application information in increments as 30 CFR 800.5? 11. Section 816.41: Under what conditions mining progresses? 2. Section 800.9: What requirements apply may I discharge to an underground mine? J. Part 784: Underground Mining Permit to alternative bonding systems? 12. Section 816.42: What Clean Water Act Applications—Minimum Requirements 3. Section 800.11: When and how must I requirements apply to discharges from for Reclamation and Operation Plans file a performance bond? 1. Section 784.11: What must I include in my operation? 4. Section 800.12: What types of the general description of my proposed 13. Section 816.43: How must I construct performance bond are acceptable? operation? and maintain diversions and other 5. Section 800.13: What is the liability 2. Section 784.13: What additional maps channels to convey water? period for a performance bond? and plans must I include in the 14. Section 816.45: What sediment control reclamation plan? 6. Section 800.14: How will the regulatory measures must I use? 3. Section 784.19: What baseline authority determine the amount of 15. Section 816.46: What requirements information on hydrology, geology, and performance bond required? apply to siltation structures? aquatic biology must I provide? 7. Section 800.15: When must the 16. Section 816.47: What requirements 4. Section 784.20: How must I prepare the regulatory authority adjust the bond apply to discharge structures for determination of the probable hydrologic amount and when may I request impoundments? consequences of my proposed operation adjustment of the bond amount? 17. Section 816.49: What requirements (PHC determination)? 8. Section 800.16: What are the general apply to impoundments? 5. Section 784.21: What requirements terms and conditions of the performance 18. Section 816.55: What must I do with apply to preparation and review of the bond? sedimentation ponds, diversions, cumulative hydrologic impact 9. Why are we removing 30 CFR 800.17? impoundments, and treatment facilities assessment (CHIA)? 10. Section 800.18: What special after I no longer need them? 6. Section 784.22: What information must provisions apply to financial guarantees 19. Section 816.56: What additional I include in the hydrologic reclamation for treatment of long-term discharges? performance standards apply to activities plan and what information must I 11. Section 800.21: What additional in or through an ephemeral stream? provide on alternative water resources? requirements apply to collateral bonds? 20. Section 816.57: What additional 7. Section 784.23: What information must 12. Section 800.23: What additional performance standards apply to activities I include in my plans for the monitoring requirements apply to self-bonds? in, through, or adjacent to a perennial or of groundwater, surface water, and the 13. Section 800.30: When may I replace a intermittent stream? biological condition of streams during performance bond or financial assurance 21. Section 816.59: How must I maximize and after mining? instrument and when must I do so? coal recovery?

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93068 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

22. Section 816.61: Use of Explosives: 50. Section 816.115: How long am I H. Executive Order 13175—Consultation General Requirements responsible for revegetation after and Coordination With Indian Tribal 23. Section 816.62: Use of Explosives: planting? Governments Preblasting Survey 51. Section 816.116: What are the I. Executive Order 13211—Actions 24. Section 816.64: Use of Explosives: standards for determining the success of Concerning Regulations That Blasting Schedule revegetation? Significantly Affect Energy Supply, 25. Section 816.66: Use of Explosives: 52. Section 816.131: What actions must I Distribution, or Use Blasting Signs, Warnings, and Access take when I temporarily cease mining J. Paperwork Reduction Act Control operations? K. National Environmental Policy Act 26. Section 816.67: Use of Explosives: 53. Section 816.132: What actions must I L. Data Quality Act Control of Adverse Effects take when I permanently cease mining 27. Section 816.68: Use of Explosives: operations? I. Executive Summary Records of Blasting Operations 54. Section 816.133: What provisions Significant advances in scientific 28. Section 816.71: How must I dispose of concerning the postmining land use knowledge and in mining and excess spoil? apply to my operation? reclamation techniques have occurred 29. Why are we removing the provisions 55. Section 816.150: What are the general in the more than 30 years that have for rock-core chimney drains in 30 CFR requirements for haul and access roads? 816.72? 56. Section 816.151: What additional elapsed since the enactment of the 30. Why are we removing the provisions requirements apply to primary roads? Surface Mining Control and for durable rock fills in 30 CFR 816.73? 57. Section 816.180: To what extent must Reclamation Act of 1977 (SMCRA or the 31. Section 816.74: What special I protect utility installations? Act) 1 and the adoption of federal requirements apply to the disposal of 58. Section 816.181: What requirements regulations implementing that law. This excess spoil on a preexisting bench? apply to support facilities? rule acknowledges the advancements in 32. Section 816.79: What measures must I 59. Why are we removing interpretive rule science, technology, policy, and the law take to protect underground mines in the in 30 CFR 816.200? that impact coal communities and vicinity of my surface mine? N. Part 817: Permanent Program natural resources, based on our 33. Section 816.81: How must I dispose of Performance Standards—Underground experience and engagement with state coal mine waste? Mining Activities regulatory authorities, industry, non- 34. Section 816.83: What special 1. Section 817.11: What signs and markers requirements apply to coal mine waste must I post? governmental organizations, academia, refuse piles? 2. Section 817.34: How must I protect the citizens, and other stakeholders. 35. Section 816.84: What special hydrologic balance? The rule has the following seven requirements apply to coal mine waste 3. Section 817.40: What responsibility do major elements: impounding structures? I have to replace water supplies? • First, the rule defines the term 36. Section 816.87: What special 4. Section 817.44: What restrictions apply ‘‘material damage to the hydrologic requirements apply to burning and to gravity discharges from underground balance outside the permit area’’ and burned coal mine waste? mines? requires that each permit establish the 5. Section 817.57: What additional 37. Section 816.89: How must I dispose of point at which adverse mining-related noncoal mine wastes? performance standards apply to activities 38. Section 816.95: How must I protect conducted in, through, or adjacent to a impacts on groundwater and surface surface areas from wind and water perennial or intermittent stream? water reach an unacceptable level; i.e., erosion? 6. Section 817.71: How must I dispose of the point at which adverse impacts from 39. Section 816.97: How must I protect and excess spoil? mining would cause material damage to enhance fish, wildlife, and related 7. Section 817.102: How must I backfill the hydrologic balance outside the environmental values? surface excavations and grade and permit area. 40. Section 816.99: What measures must I configure the land surface? • Second, the rule sets forth how to take to prevent and remediate 8. Section 817.121: What measures must I collect adequate premining data about landslides? take to prevent, control, or correct the site of the proposed mining 41. Section 816.100: What are the damage resulting from subsidence? standards for keeping reclamation 9. Why are we removing the interpretive operation and adjacent areas to establish contemporaneous with mining? rules in 30 CFR 817.200? a comprehensive baseline that will 42. Why are we removing 30 CFR 816.101? O. Part 824: Special Permanent Program facilitate evaluation of the effects of 43. Section 816.102: How must I backfill Performance Standards—Mountaintop mining operations. the mined area and configure the land Removal Mining Operations • Third, the rule outlines how to surface? P. Part 827: Special Permanent Program conduct effective, comprehensive 44. Section 816.104: What special Performance Standards—Coal monitoring of groundwater and surface provisions for backfilling, grading, and Preparation Plants Not Located Within water during and after both mining and surface configuration apply to sites with the Permit Area of a Mine reclamation and during the revegetation thin overburden? XVII. What effect will this rule have in responsibility period to provide timely 45. Section 816.105: What special federal program states and on Indian provisions for backfilling, grading, and lands? information documenting mining- surface configuration apply to sites with XVIII. How will this rule affect state related changes in water quality and thick overburden? regulatory programs? quantity. Similarly, the rule addresses 46. Section 816.106: What special IX. Procedural Matters and Required the need to require monitoring of the provisions for backfilling, grading, and Determinations biological condition of perennial and surface configuration apply to previously A. Regulatory Planning and Review certain intermittent streams during and mined areas with a preexisting highwall? (Executive Orders 12866 and 13563) after mining and reclamation to evaluate 47. Section 816.107: What special B. Regulatory Flexibility Act changes in aquatic life. Proper provisions for backfilling, grading, and C. Small Business Regulatory Enforcement monitoring will enable timely detection surface configuration apply to steep Fairness Act of any adverse trends and allow timely slopes? D. Unfunded Mandates 48. Section 816.111: How must I revegetate E. Executive Order 12630—Takings implementation of any necessary areas disturbed by mining activities? F. Executive Order 13132—Federalism corrective measures. 49. Why are we removing 30 CFR 816.113 G. Executive Order 12988—Civil Justice and 816.114? Reform 1 30 U.S.C. 1201 et seq.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93069

• Fourth, the rule promotes the coal as an essential source of energy, absorb $10 million. In the aggregate, protection or restoration of perennial while providing greater regulatory state regulatory authorities will incur and intermittent streams and related certainty to the mining industry. estimated additional costs of $0.5 resources, especially the headwater million per year between 2020 and Summary of Benefits and Costs streams that are critical to maintaining 2040. the ecological health and productivity of The final regulatory impact analysis Implementation of this rule will result downstream waters. (RIA) for this rule contains a detailed in reductions in greenhouse gas • Fifth, the rule ensures that discussion of the rule’s benefits and emissions from coal production. permittees and regulatory authorities costs. We estimate that, among other Expressed in terms of carbon dioxide make use of advances in information, things, the rule’s benefits to streams and equivalents, we project that those technology, science, and methodologies forests between 2020 and 2040 will reductions will total 2.6 million short related to surface and groundwater include— • tons in 2020. ‘‘Carbon dioxide hydrology, surface-runoff management, Restoration of 22 miles of equivalent’’ is a unit used to describe stream restoration, soils, and intermittent and perennial streams per the impact of different greenhouse gases revegetation, all of which relate directly year. on a comparative basis by expressing • Improved water quality in 263 or indirectly to protection of water the impact in terms of the amount of miles of intermittent and perennial resources. carbon dioxide that would have the • Sixth, the rule ensures that land streams per year downstream of same global warming impact as the type disturbed by surface coal mining minesites. and amount of greenhouse gases at operations is restored to a condition • Four miles of intermittent and issue. We also project that capable of supporting the uses that it perennial streams per year not being implementation of the final rule will was capable of supporting before mining covered by excess spoil fills or coal result in the annualized benefit of $57 or to higher or better uses of which there mine waste facilities. million due to the reduced carbon is reasonable likelihood. Soil • Improved reforestation of 2,486 dioxide emissions from fossil fuel characteristics and the degree and type acres of mined land per year. consumption across the timeframe of of revegetation have a significant impact • Avoidance by mining operations of the analysis (2020—2040). on surface-water runoff quantity and eight acres of forest per year. quality as well as on aquatic life and the In terms of economic impacts, we II. Why are we revising our terrestrial ecosystems dependent upon estimate that the rule will result in an regulations? perennial and intermittent streams. The average annual employment gain of 156 rule also requires use of native species fulltime equivalents between 2020 and Our primary purpose in adopting this to revegetate reclaimed mine sites 2040. This estimate includes an average rule is to strike a better balance between unless and until a conflicting annual reduction of 124 fulltime ‘‘protection of the environment and postmining land use, such as intensive equivalents in employment related to agricultural productivity and the agriculture, is implemented. coal production and an average annual Nation’s needs for coal as an essential • Seventh, the rule updates measures gain of 280 fulltime equivalents in source of energy.’’ 4 Specifically, the to protect threatened and endangered industry employment related to rule is designed to minimize the adverse species and designated critical habitat implementation of the rule. impacts of surface coal mining under the Endangered Species Act of We estimate that the rule will result operations on surface water, 1973.2 It also better explains how the in an average annual 0.08% reduction in groundwater, and site productivity, with fish and wildlife protection and coal production between 2020 and 2040, particular emphasis on protecting or enhancement provisions of SMCRA which equates to 0.7 million tons of restoring streams, aquatic ecosystems, should be implemented. coal. That amount includes 0.2 million riparian habitats and corridors, native This rule more completely tons produced by surface mining vegetation, and the ability of mined land implements SMCRA’s permitting methods (0.04% of the total amount to support the uses that it was capable requirements and performance produced by surface mining methods) of supporting before mining. The final standards and provides regulatory and 0.5 million tons produced by rule reflects our experience during the clarity to operators and stakeholders underground mining methods (0.14% of more than three decades since adoption while better achieving the purposes of the total amount produced by of the existing regulations, as well as SMCRA as set forth in section 102 of the underground mining methods). The advances in scientific knowledge and Act.3 In particular, the rule more final RIA projects that this reduction in mining and reclamation techniques completely realizes the purposes in production will be accompanied by an during that time and consideration of paragraphs (a), (c), (d), and (f) of that increase in average annual coal prices the comments that we received on the section, which include establishing a ranging from 0.2% in the Powder River proposed rule. The final rule more nationwide program to protect society Basin to 1.3% in Central Appalachia completely implements sections and the environment from the adverse and the Illinois Basin. 515(b)(24) and 516(b)(11) of SMCRA, effects of surface coal mining operations We estimate that total industry which provide that, to the extent and assuring that surface coal mining compliance costs per year during 2020– possible using the best technology operations are conducted in an 2040 would average $81 million, which currently available, surface coal mining environmentally protective manner and is 0.1% or less of aggregate annual and reclamation operations must be are not conducted where reclamation is industry revenues, ranging from an conducted to minimize disturbances not feasible. Furthermore, the rule additional one cent per ton of longwall- and adverse impacts on fish, wildlife, addresses court decisions and strikes mined coal on the Colorado Plateau to and related environmental values and to the appropriate balance between an additional $1.40 per ton for surface- achieve enhancement of those resources environmental protection, agricultural mined coal in the Illinois Basin. Of the where practicable.5 It also updates our productivity and the Nation’s need for $81 million in increased annual costs to regulations concerning compliance with industry, surface mining operations will 2 16 U.S.C. 1531 et seq. bear an estimated $71 million, while 4 30 U.S.C. 1202(f). 3 30 U.S.C. 1202. underground mining operations will 5 See 30 U.S.C. 1265(b)(24) and 1266(b)(11).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93070 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

the Endangered Species Act of 1973.6 In comments on all three documents, we comments, including input from state addition, as proposed, we have revised extended the comment period for the regulatory authorities. and reorganized our regulations for proposed rule, DEIS, and DRIA through On July 16, 2015, we announced that clarity, to make them more user- October 26, 2015. See 80 FR 54590– the proposed rule, DEIS, and DRIA were friendly, to remove obsolete and 54591 (Sept. 10, 2015). available for review at redundant provisions, and to implement During the public comment period, www.regulations.gov, on our Web site plain language principles. we held six public hearings on the (www.osmre.gov), and at selected The preamble to the proposed rule proposed rule in Golden, Colorado OSMRE offices. On July 17, 2015, we sets forth the detailed rationale for (September 1, 2015); Lexington, published a notice in the Federal adoption of this rule and the history of Kentucky (September 3, 2015); St. Register announcing the availability of prior rulemaking and litigation Charles, Missouri (September 10, 2015); the DEIS for the proposed rule. See 80 concerning stream buffer zones and Pittsburgh, Pennsylvania (September 10, FR 42535–42536. The notice reiterated stream protection. See 80 FR 44436– 2015); Big Stone Gap, Virginia that the DEIS was available for review 44585 (Jul. 27, 2015). (September 15, 2015); and Charleston, at www.regulations.gov, www.osmre.gov, and the OSMRE offices listed in the Final Environmental Impact Statement West Virginia (September 17, 2015). In notice. The comment period for the (EIS) addition to the testimony offered at the hearings and meetings, we received DEIS was originally scheduled to close The final EIS for this rule contains an approximately 94,000 written or on September 15, 2015. On July 27, expanded discussion of the impacts of electronic comments on the proposed 2015, we also published the proposed mining on the environment. Almost all rule. In developing the final rule, we stream protection rule in the Federal the literature surveys and studies considered all comments that were Register. See 80 FR 44436–44698. That reviewed for this rulemaking process germane to the proposed rule. In the document reiterated that the proposed have been published since the adoption remainder of this preamble, we rule, DEIS, and DRIA were available for in 1983 of our principal regulations summarize the comments received and review at www.regulations.gov, concerning protection of the hydrologic discuss our disposition of those www.osmre.gov, and the OSMRE offices balance 7 and protection of fish, comments and how and why the final listed in the notice. The comment wildlife, and related environmental rule differs from the proposed rule. period for the proposed rule and DRIA values,8 which underscores the need to was originally scheduled to close on update our regulations to reflect new IV. What general comments did we September 25, 2015. In response to scientific understanding of impacts receive on the proposed rule? requests for additional time to review associated with coal mining. A. We Should Reopen the Comment and prepare comments on all three documents, we extended the comment III. What opportunity did we provide Period To Allow Adequate Time for period for the proposed rule, DEIS, and for public comment on the proposed Public Review and Comment DRIA through October 26, 2015. See 80 rule and supporting documents? Many commenters contended that we FR 54590–54591 (Sept. 10, 2015). On July 16, 2015, we announced that should have extended the time for Interested parties, therefore, received the proposed rule, draft environmental public review and comment on the a total of 102 days to review the impact statement (DEIS), and draft proposed rule and supporting proposed rule and supporting regulatory impact analysis (DRIA) were documents. These commenters documents. During that time, we also available for review at generally raised objections about the held six public hearings in Colorado, www.regulations.gov, on our Web site amount of material, primarily the Kentucky, Missouri, Pennsylvania, (www.osmre.gov), and at selected proposed rule and its preamble, the Virginia, and West Virginia. We OSMRE offices. On July 17, 2015, we DEIS, and the DRIA, all of which were received approximately 95,000 published a notice in the Federal lengthy. The commenters noted that we comments from all sources on the Register announcing the availability of cited many studies, reports and proposed rule, DEIS, and DRIA. the DEIS for the proposed rule. See 80 supporting documents, which would The proposed rule, DEIS, and DRIA FR 42535–42536. The notice reiterated take time to locate and review. Some included citations to references that we that the DEIS was available for review commenters claimed that they lacked relied upon in developing the at www.regulations.gov, www.osmre.gov, staff to review the material and provide documents. These reference citations and the OSMRE offices listed in the meaningful comments within the time were available from the time of notice. The comment period for the provided. These commenters stated that publication of the proposed rule, DEIS, DEIS was originally scheduled to close the 102 days we provided for review and the DRIA in the Federal Register. on September 15, 2015. On July 27, was too short, particularly in contrast to We used these references in discussing 2015, we published the proposed stream the time it took us to prepare and both specific components of the rule protection rule in the Federal Register. propose a rule. and our analysis, as well as for support See 80 FR 44436–44698. That document As described in Part III of this of our discussion on more general reiterated that the proposed rule, DEIS, preamble, the stream protection rule has concepts. We did not receive any and DRIA were available for review at been the subject of robust public requests for copies of these references www.regulations.gov, www.osmre.gov, involvement, starting in 2009. During during the comment period. However, and the OSMRE offices listed in the that year, we published an advance in response to language that Congress notice. The comment period for the notice of proposed rulemaking,9 included in a report accompanying the proposed rule and DRIA was originally conducted 15 stakeholder outreach Consolidated Appropriations Act of scheduled to close on September 25, meetings, held nine public scoping 2016, Public Law 114–113, we placed 2015. In response to requests for meetings, and provided two public all publicly-available references on additional time to review and prepare comment periods totaling 76 days on www.regulations.gov. Copyright- scoping for the DEIS. The scoping protected materials are easily obtainable 6 16 U.S.C. 1531 et seq. process generated over 20,500 through state or university libraries or 7 48 FR 43956 (Sept. 26, 1983). the publisher. We were not able to 8 48 FR 30312 (Jun. 30, 1983). 9 74 FR 62664–64668 (Nov. 30, 2009). provide copyright-protected items to

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93071

requesters directly because doing so Environmental Policy Act of 1969 comments from state SMCRA regulatory might violate copyright laws. We also (NEPA) process with the opportunity for authorities, on the DEIS, DRIA, and the scheduled meetings between us and meaningful engagement. The proposed stream protection rule. We state technical personnel to discuss the commenters expressed their belief that considered these comments in scientific studies and other reference we had not acted in accordance with the developing this final rule, the final EIS, documents on two dates (April 14 and terms of the memoranda of and the final RIA. 21, 2016). The meetings were held understanding describing the roles and The Department’s Assistant Secretary simultaneously in Denver, Colorado; responsibilities for the effort. The Alton, Illinois; and Pittsburgh, commenters noted that, as a for Land and Minerals Management, the Pennsylvania. Staff from six state consequence, all but one of those Director of OSMRE, and other OSMRE regulatory authorities participated in the regulatory authorities had terminated officials continued to meet with meeting on April 14, 2016, and staff their cooperating agency status. representatives of states after the close from five state regulatory authorities We have substantially engaged with of the comment period, consistent with participated in the meeting on April 21, stakeholders, including the regulatory congressional direction in a report 2016. authorities. The rulemaking process accompanying the Consolidated The comment period we provided began with an advance notice of Appropriations Act of 2016, Public Law fully complies with the Administrative proposed rulemaking, 15 stakeholder 114–113. In addition to meetings with Procedure Act, 5 U.S.C. 553, which does outreach meetings, nine public scoping state SMCRA regulatory authorities in not set a minimum public comment meetings, and two public comment conjunction with Interstate Mining period for a proposed rule. We also periods on the scoping for the DEIS. The Compact Commission meetings, exceeded the 60-day minimum scoping process generated over 20,500 Department of the Interior and OSMRE comment period recommended by comments, including input from the representatives have either met with or Section 6(a)(1) of Executive Order 12866 states. A number of state agencies, held telephone or video conferences for meaningful public participation. including state SMCRA regulatory with 14 different state regulatory This time is comparable to the comment authorities, participated as cooperating authorities since the proposed rule was periods for similar regulations that we agencies in the early development of the published. We also scheduled meetings have issued in the past. For example, DEIS for the stream protection rule. As of OSMRE and state technical personnel the now-vacated 2008 stream buffer of November, 2010, we had sent to discuss the scientific studies and zone rule was subject to a 90-day Chapters 1, 2, 3 and 4 of the DEIS to all other reference documents on two dates 10 cooperating agencies. Chapters 1–4 are comment period, while the comment (April 14 and 21, 2016). The meetings the heart of an EIS. Those chapters period for the 1978 proposed rule were held simultaneously in Denver, containing most of the original include the statement of purpose and need, a description of the alternatives Colorado; Alton, Illinois; and permanent regulatory program Pittsburgh, Pennsylvania. Staff from six 11 considered, a description of the affected regulations was 71 days. state regulatory authorities participated It is also noteworthy that many environment, and an analysis of the in the meeting on April 14, 2016, and commenters, primarily environmental environmental consequences of the staff from five state regulatory groups, opposed our 30-day extension of alternatives. The cooperating agencies authorities participated in the meeting the comment period. They maintained provided meaningful input and that 60 days was sufficient to review the comments. We used this information to on April 21, 2016. Notice of the Final materials and provide meaningful prepare the DEIS. In response to this Environmental Impact Statement was comment. These and other commenters, and other feedback, we revised the DEIS published in the Federal Register on including state regulatory authorities, over the next several years. Shortly November 16, 2016 (81 FR 80592 and 81 were able to provide extensive, detailed, before we announced the availability of FR 80664), by OSMRE and the U.S. meaningful comments on the proposed the DEIS for public comment, all but Environmental Protection Agency, rule in the comment period provided. one of the state regulatory authorities respectively. voluntarily terminated their role as We understand the state regulatory B. We Should Further Engage the State cooperating agencies. authorities wanted more input, not only Regulatory Authorities Before Finalizing We made the DEIS available on July the Rule in the EIS, but also in the rule and the 16, 2015, to all cooperating agencies and RIA. However, through this extensive the public to review and provide input Most state and industry commenters outreach we have met our obligations as on during the public comment period. urged us to refrain from finalizing the set forth in the Administrative We subsequently extended the public proposed rule at this time. Instead, these Procedure Act, NEPA, and the pertinent commenters requested that we engage in comment period to provide interested parties, including the states, more time executive orders and have sought the additional meaningful collaboration input from state regulatory authorities at with the state regulatory authorities. to review and comment on the DEIS. We conducted six public hearings in crucial junctures in the development of Many of these commenters stated that the rule—early in the rulemaking we could benefit further from the Colorado, Kentucky, Missouri, Pennsylvania, Virginia and West process and after publication of the insight, experience, and practices of the proposed rule. These are the points state regulatory authorities when Virginia during the public comment where their insights could best shape developing the regulatory text, final EIS, period. Although not required to do so, the proposal and refine the final rule and final RIA. According to the in a letter dated October 7, 2015, prior without impinging on our deliberative commenters, we did not provide the to the close of the public comment process and our ability to craft a rule to regulatory authorities and other state period on October 26, 2015, we invited meet our purpose and need. The final agencies that had agreed to be the former cooperating state agencies to regulations that we are publishing today cooperating agencies in the National re-engage as cooperating agencies under NEPA. None accepted this invitation. have been shaped by this direct input as 10 72 FR 48890 (Aug. 24, 2007); 72 FR 57504 (Oct. Ultimately, OSMRE received well as by the information we have 10, 2007). approximately 95,000 comments, gleaned through our oversight of the 11 44 FR 14902, 14908 (Mar. 13, 1979). including hundreds of pages of state programs.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93072 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

C. We Have Not Accorded Sufficient such rules and regulations as may be to determine the baseline groundwater Deference to Principles of Cooperative necessary to carry out the purposes of quality and quantity sampling protocol Federalism and the Primacy of States the Act.’’ 17 Our strong federal role, and subsequent analyses of these data. With Approved Regulatory Programs which includes updating the federal • Final § 780.19(c)(5): Precipitation According to numerous commenters, minimum standards, ensures that Measurements. The regulatory authority the proposed rule impinges on the regulation of surface coal mining and has the flexibility to determine whether concepts of cooperative federalism and reclamation operations remains the permit applicant must prepare a state primacy in SMCRA. Because of environmentally protective and is not hydrologic model of the proposed mine plagued by many of the problems that site. this alleged impingement on states’ • rights under SMCRA, many of these led to the enactment of SMCRA in the Final § 780.19(c)(6)(vii): Assessing commenters asserted that the proposed first place. See, e.g., H.R. Rep. No. 95– the biological condition of intermittent rule exceeds our statutory authority and 218, at 90 (‘‘For a number of predictable and perennial streams. The regulatory contravenes the Tenth Amendment to reasons—including insufficient funding authority has the flexibility to choose the U.S. Constitution. They also charged and the tendency for State agencies to from available scientifically defensible that it ‘‘flips the central SMCRA be protective of local industry—State protocols, including indices of mandate of state primacy on its heads.’’ enforcement has in the past [i.e., prior biological integrity, to determine the to the passage of SMCRA in 1977] often biological condition of streams. We disagree with these commenters. • While it is true that primacy states play fallen short of the vigor necessary to Final § 780.21(b)(7): Evaluation a key role in enforcing SMCRA, it is also assure adequate protection of the Thresholds. The regulatory authority true that we maintain a role in the environment.’’). This rule, therefore, is a has the flexibility to determine the implementation and oversight of valid exercise of our authority to update parameters it will use as evaluation the federal minimum standards to thresholds. SMCRA. See, e.g., Hodel v. Virginia • Surface Mining and Reclamation Ass’n reflect 30 years of scientific Final § 780.27(b)(2): What Inc., 452 U.S. 264, 289 (1981) (‘‘The development and 30 years of experience Permitting Requirements Apply to most that can be said is that the Surface in implementing SMCRA. Proposed Activities in or Through Mining Act establishes a program of Contrary to the contention of some Ephemeral Streams? The regulatory cooperative federalism that allows the commenters, we are not abrogating authority has the flexibility to approve States, within limits established by primacy. Nor are we creating a rigid a drainage pattern that differs from the federal minimum standards, to enact one-size-fits-all rule. Primacy states can premining pattern based upon a variety and should tailor their state laws and of site specific conditions. and administer their own regulatory • programs, structured to meet their own regulations implementing this rule to Final § 780.28(c)(2): Proposed particular needs.’’ (Emphasis added.) local conditions as long as they meet Activities In, Through, or Adjacent to These federal standards ‘‘provide [a] minimum federal standards and are no Perennial and Intermittent Streams. The blueprint against which to evaluate [a] less effective than the federal rules in regulatory authority has the flexibility to state’s program.’’ 12 The U.S. Supreme meeting the requirements of SMCRA. In approve a drainage pattern or stream- Court has held this statutory scheme to addition, the final rule provides channel configuration that differs from be a proper exercise of Congressional discretion to the regulatory authority in the premining pattern based upon a power under the U.S. Constitution. certain areas, including, but not limited variety of site-specific conditions. to, the following examples: • Final § 780.28(e)(2): Conversion of Hodel, 452 U.S. at 290–291. • We have clear authority to issue Final § 773.15(j): Compliance with Streams. The regulatory authority has regulations such as this rule to establish the Endangered Species Act. Provides the flexibility to approve limited stream federal minimum standards. Section 102 the permit applicant and the regulatory flow regime conversions on a case-by- of SMCRA sets forth thirteen purposes authority with several options for case basis as long as certain criteria are of the Act.13 The first of these purposes demonstrating compliance with the satisfied. Endangered Species Act of 1973. • Final § 780.28(g)(1): Standards for is to ‘‘establish a nationwide program to • protect society and the environment Final § 780.16(d): Potential the Restoration of Ecological Function from the adverse effects of surface coal Enhancement Measures. The regulatory to Perennial or Intermittent Streams. mining operations.’’ 14 Several other authority has the discretion to The regulatory authority has discretion purposes are related to assuring that determine the type, scope, and location to establish objective criteria for surface coal mining operations are of fish and wildlife enhancement determining the standards for restoring conducted in a manner that protects the measures. the ecological function of a • Final § 780.19(a): Information on environment.15 This authority also reconstructed perennial or intermittent Hydrology, Geology, and Aquatic contains a purpose unique to SMCRA: stream. Biology, Baseline Information. The The underground mining counterparts ‘‘whenever necessary, exercise the full regulatory authority has the discretion to these surface mining provisions offer reach of Federal constitutional powers to determine what constitutes the same flexibilities to the regulatory to ensure the protection of the public ‘‘sufficient detail’’ with respect to the authority. interest through effective control of information required in this section, surface coal mining operations.’’ 16 D. We Did Not Adequately Demonstrate including the location and number of SMCRA then vests the authority to carry a Need for This Rulemaking monitoring locations. out these purposes with us; specifically, • Final § 780.19(b)(6)(ii): Many commenters stated that we have under section 201(c)(2), we have clear Groundwater Information. The neither provided sufficient rationale for authority to ‘‘publish and promulgate regulatory authority has the discretion the development of this rule nor any evidence to support what many 12 Bragg v. W. Va. Coal Ass’n, 248 F.3d 275, 289 17 30 U.S.C. 1211(c)(2); See also, id at 1251(b) (4th Cir. 2001). commenters consider a complete rewrite (‘‘[T]he Secretary shall promulgate and publish . . . 13 of the federal regulations implementing 30 U.S.C. 1202. regulations covering a permanent regulatory 14 SMCRA. A number of commenters also 30 U.S.C. 1202(a) procedure for surface coal mining and reclamation 15 See, e.g., 30 U.S.C. 1202(d) and (f). operations performance standards based on and raised concerns about whether the 16 30 U.S.C. 1202(m). conforming to the provisions of Title V . . . .’’). proposed rule articulated a legally

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93073

adequate justification for a nationwide Nation’s need for coal as an essential the Appalachian Basin, but also in the rulemaking on issues related to stream source of energy,’’ which section 102(f) Illinois Basin. In addition, this rule will protection. In particular, some of SMCRA 20 lists as one of the purposes provide moderate benefits to water commenters noted that the June 11, of SMCRA. Specifically, this final rule resources in three other regions—the 2009, Memorandum of Understanding will better protect the water resources Colorado Plateau, the Gulf Coast, and (MOU) among the U.S. Department of needed by current and future the Northern Rocky Mountains and the Army, the U.S. Department of the generations for drinking, recreation, and Great Plains.26 Even if these were the Interior, and EPA implementing the wildlife from the adverse effects of coal only benefits of the rule, and they are interagency action plan on Appalachian mining, while balancing protection of not, the benefits to water resources surface coal mining was limited to six those resources with the Nation’s energy alone are sufficient to support and states in Appalachia and primarily needs. justify a nationwide rulemaking. focused on issues related to steep-slope The final rule published today reflects As we set forth in the proposed rule mining. The commenters questioned our advances in science and technology, and in documents in support of the decision to propose a nationwide rule in updates 30-year-old regulations, and proposed rule, SMCRA provides us with response to the MOU, which, by its own addresses important stream protection the authority to protect the hydrologic terms, was designed to significantly and related issues in a manner balance from coal mining operations reduce the harmful environmental consistent with SMCRA, while nationwide. Despite that fact and the consequences of surface coal mining providing regulatory certainty to benefits that could be realized operations in Kentucky, Ohio, operators. State and industry practices nationwide, some commenters cite data Pennsylvania, Tennessee, Virginia, and helped shape this rule. Many contained in our annual evaluation West Virginia and ensure that future commenters supported the proposed reports of state regulatory programs in mining is conducted consistent with rule and encouraged us to proceed with an attempt to show that there is no federal law. The 2009 MOU provided a final rule. nationwide problem. According to these impetus and support for this SMCRA recognizes the importance of commenters, our annual evaluation rulemaking, but it is not the sole reason nationwide minimum standards for the reports ‘‘show that 90 percent of for the rulemaking. After extensive hydrologic balance by not limiting the operations were free of any offsite outreach, we determined that provisions related to the hydrologic impacts’’ and ‘‘routinely include highly development of a comprehensive, balance to any particular types of positive narrative reviews of each state’s nationally applicable, stream protection mining or areas of the country as it did SMCRA program.’’ rule would be the most appropriate and with other provisions. Compare, e.g., While it is true that our annual effective method of achieving the Section 510(b)(3) 21 (no permit may be evaluation reports routinely do not purposes and requirements of SMCRA, issued unless the operation has been indicate problems with the states’ as well as meeting the goals set forth in ‘‘designed to prevent material damage to implementation of their programs, we the MOU. Streams are important the hydrologic balance outside the disagree with the conclusion the components of the hydrologic regime permit area’’) with Section 510(b)(5) 22 commenters attempt to draw from this everywhere that streams are found, so (alluvial valley floor protections apply information, i.e., that our experience there is no scientific reason to limit only west of the one hundredth does not show that there is a problem stream protection efforts to one region of meridian west longitude). We have that this rule is designed to address. the country or to steep-slope mining. In never issued regulations that expressly OSMRE inspections and other oversight addition, it is not clear that we have apply only to a portion of the country activities in primacy states, including authority under SMCRA to conduct without specific statutory language the annual evaluation reports, focus on rulemaking on a regional basis. Section authorizing or mandating adoption of 18 the success of state regulatory 101(g) of SMCRA provides that regulations with a geographically- authorities in achieving compliance ‘‘surface coal mining and reclamation restricted scope. SMCRA provisions with the approved regulatory program standards are essential in order to insure with a geographically-restricted scope for the state. Directive REG–8,27 which that competition in interstate commerce include sections 510(b)(5) (alluvial establishes policy and procedures for among sellers of coal produced in valley floors west of the one hundredth the evaluation of state regulatory different States will not be used to 23 meridian west longitude), 527 (special programs, specifies that the offsite undermine the ability of the several bituminous coal mines west of the one impacts identified in annual evaluation States to improve and maintain hundredth meridian west longitude), reports do not include impacts from adequate standards on coal mining 529 24 (anthracite coal mines regulated mining and reclamation that are not operations within their borders.’’ The by a state), and 708 25 (coal mines in regulated or controlled by the state implication is that the surface coal Alaska, for a limited time only). program. In other words, the annual mining and reclamation standards to As stated in our analysis in the final evaluation reports generally do not which it refers must be national in EIS, the need for this final rule is to identify or discuss situations in which scope. In addition, section 102(a) of improve implementation of SMCRA, SMCRA 19 provides that one of the the existing regulations provide ensure protection of the hydrologic inadequate protection. While Directive purposes of SMCRA is to ‘‘establish a balance, and reduce impacts of surface nationwide program to protect society REG–8 provides discretionary authority coal mining operations on streams, fish, for evaluations of impacts that are not and the environment from the adverse wildlife, and related environmental effects of surface coal mining prohibited by the regulatory program, values. The final rule will provide major that authority may be exercised only if operations.’’ (Emphasis added.) benefits to water resources, not just in Our primary purpose in adopting this both OSMRE and the state agree to do so, and if they are not characterized as final rule is to strike a better balance 20 30 U.S.C. 1202(f). between ‘‘protection of the environment 21 30 U.S.C. 1260(b)(3). 26 FEIS at Chapter 1—Sections 1.1 and 1.2, Table and agricultural productivity and the 22 30 U.S.C. 1265(b)(5). 4.2–15. 23 30 U.S.C. 1277. 27 Directive REG–8. ‘‘Oversight of State and Tribal 18 30 U.S.C. 1201(g). 24 30 U.S.C. 1279. Regulatory Programs,’’ Transmittal No. 967, January 19 30 U.S.C. 1202(a). 25 30 U.S.C. 1298. 31, 2011.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93074 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

offsite impacts. Historically, that removes any of the ambiguity that may to the underground mining industry. discretionary authority has not been have resulted in this comment. In The final rule clarifies that the rule does exercised. Thus, annual reports are of addition, to address concerns that not prohibit temporary impacts to little assistance in assessing how the requiring underground operations to streams and other water resources as a existing minimum federal standards that prevent material damage to the result of longwall mining as long as are incorporated into the approved state hydrologic balance outside the permit those impacts do not rise to the level of programs could be improved to better area would effectively preclude any material damage to the hydrologic implement SMCRA. Part II of the underground mining likely to result is balance outside the permit area. The preamble summarizes the water quality subsidence, we have clarified that final RIA continues to reflect the fact and land reclamation problems that temporary impacts resulting from that the final rule will not prohibit developed under the previous rules. In subsidence are allowed provided they longwall mining. addition, speakers at the public hearings do not rise to the level of material • Incorporated economic impact of described their experiences with damage to the hydrologic balance bonding requirements: The DRIA did dewatering of streams as a result of outside the permit area. This issue is not include costs associated with subsidence from underground mining discussed in more detail in Part IV, bonding requirements for restoration of operations. section K of this preamble. the ecological function of perennial and intermittent streams that are mined E. We Should Limit the Final Rule to the F. We Underestimated the Costs and through. While the bonding Effects of Surface Mining Operations Regulatory Burden of the Proposed Rule requirements for stream restoration have and Not Underground Mining to State Regulatory Authorities and been revised, the final rule is Operations Industry nonetheless anticipated to result in Several commenters requested that we Numerous commenters expressed some additional costs to operators limit the rule to the effects of surface concern that the proposed rule would associated with this requirement that mining operations and not the effects of impose significant additional costs on were not captured in the DRIA. These underground operations. These the industry and state regulatory additional costs are reflected in the final commenters often questioned the authorities. Many of these commenters RIA. adequacy of our support for extending alleged that the costs of the proposed • Revised administrative costs: A stream protections to the areas overlying rule were grossly understated in the number of commenters remarked that underground mine workings. According DRIA. Appendix I of the final RIA the administrative costs of the proposed to the commenters, the rule would make provides responses to all specific rule to industry and state regulatory some methods of underground mining comments on the DRIA. authorities appeared to be operations impractical and would In response to comments received on underestimated in the DRIA. Upon effectively prohibit underground mining the DRIA, as well as in response to further review, we determined that the using longwall technology. recent changes in the coal market, we industry and state regulatory authority Part IV.K. of this preamble revised the DRIA to ensure that the final administrative costs estimated in the summarizes the principal provisions of RIA better reflects current DRIA were not consistent with this rule that directly impact circumstances. These changes include: OSMRE’s Paperwork Reduction Act underground mining. The final rule • Updated coal market baseline: analysis. As a result of updating the RIA does not preclude any specific method Since the DRIA was developed to be consistent with the Paperwork of underground mining either directly conditions in the coal market have Reduction Act calculations, (e.g., a prohibition of underground changed considerably. As a result, we administrative costs for industry and the mining) or indirectly (e.g., make updated the baseline coal production state regulatory authorities have underground mining uneconomical or forecast for the final RIA, which increased in the final RIA. As discussed impossible). Our primary focus in the resulted in an almost 20 percent below, we also made some changes to proposed rule was to clarify our decrease in the level of coal demand the final rule that reduced position that the obligation to prevent and production forecasted under the administrative costs to the state material damage to the hydrologic baseline. regulatory authorities as well as to balance outside the permit area applied • Updated regulatory baselines. Since industry. to areas overlying the underground the DRIA was developed, changes to the • Corrected width of streamside workings of an underground mine, regulatory environment have occurred, vegetative corridor: Some commenters which is part of the adjacent area as that including but not limited to the questioned whether the engineering term is defined in § 701.5 of our finalization of the Clean Power Plan and analysis had correctly interpreted the regulations. As explained in more detail ratification of the Paris Agreement made width of the riparian corridor, known as in the portion of this preamble that at the 21st Conference of the Parties of the streamside vegetative corridor in the discusses the definition of ‘‘material the United Nations Framework final rule, which is required to be damage to the hydrologic balance Convention on Climate Change. established adjacent to perennial, outside the permit area’’ in § 701.5 of Additional climate policy proposals intermittent, and ephemeral streams our regulations, we have always have been advanced that are anticipated that are mined through under certain considered the area overlying the to have an effect on coal production circumstances. Upon further review, we underground workings of an nationwide. As a result, we updated the determined that the engineering underground mine to be part of the final RIA. analysis incorrectly assumed that a 100- evaluation for prevention of material • Clarified potential impacts of the foot riparian corridor was interpreted as damage to the hydrologic balance rule on longwall mining: A number of being 50 feet on either side of a restored outside the permit area. Although this commenters misinterpreted the stream rather than 100 feet on each side. has been our longstanding position and proposed rule’s impacts on longwall Correction of this incorrect assumption is clearly mandated by SMCRA, the mining. The commenters thought resulted in a modest increase in model definition of material damage to the longwall mining would be impossible mine costs. hydrologic balance outside the permit under the proposed rule, which would • Revised impacts to small businesses area that we are finalizing today result in devastating economic impacts analysis: The Regulatory Flexibility Act

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93075

analysis has been revised in the final surface water if adverse weather stream and reestablishment of RIA to reflect the recent changes to the conditions make travel to the sampling streamside vegetation as a surrogate for small business size thresholds identified location hazardous or if the water at that the biological condition of the stream. by the Small Business Administration location is completely frozen. Third, in Finally, the excess spoil fill for coal mining companies. 30 CFR 780.19, we deleted six baseline construction requirements in final 30 • Incorporated the social cost of data parameters (ammonia, arsenic, CFR 816.71(k) require only one certified carbon: In response to comments, the cadmium, copper, nitrogen, and zinc) report per calendar quarter and to final RIA includes an estimate of the upon which coal mining typically has provide an alternative to daily benefits related to the social costs of little impact. Fourth, we added 30 CFR examinations by an engineer or other carbon of the final rule. 783.26 and 784.40, which provide that specialist. In summary, compared with the the regulatory authority may allow • Soils and Revegetation: First, the DRIA, the final RIA forecasts lower permittees to submit baseline data and final rule does not include a provision baseline coal production and increased development of water monitoring plans in proposed 30 CFR 779.19(a) that industry compliance costs. Lower for areas overlying proposed would have required descriptions of baseline coal production means that the underground mine workings in vegetative communities in the adjacent final rule will have fewer adverse increments. This will ensure more up- area. In addition, the final rule does not impacts to production-related to-date information and avoid include the requirement in proposed 30 employment and fewer benefits to unnecessarily high data collection and CFR 816.116(b) that revegetation streams and forests. analysis costs at the time of the initial success standards demonstrate The final rule also differs from the permit application. It also will reduce restoration of the capability of the land proposed rule in several ways that monitoring costs. to support all uses that it was capable should reduce costs and the regulatory • of supporting before mining. burden on state regulatory authorities Mining in or near Streams and and on the industry. The following list Excess Spoil: First, we revised the G. Whether We Should We Revise the provides examples of cost-saving or definitions of ephemeral, intermittent, Rule To Provide for Direct Enforcement potentially cost-saving provisions: and perennial streams in 30 CFR 701.5 of Water Quality Standards • Applicability to existing operations: to clarify that only conveyances with Section 816.42 in our previous We added a new section, 30 CFR 701.16, channels that have both a bed-and-bank regulations required that discharges of specifying when the stream protection configuration and an ordinary high water from areas disturbed by surface rule would take effect and to which water mark will be classified as streams. mining activities be made in compliance operations and permit applications it Second, final 30 CFR 780.19(c)(3) and with all applicable state and federal would apply. Existing permits will not 780.20(a)(5)(iv) do not include the water quality laws and regulations and be subject to the rule unless they either proposed requirements for baseline data with the effluent limitations for coal add acreage or revise the permit to add and analysis of peak flow magnitude mining operations set forth in 40 CFR a new excess spoil fill, coal mine waste and frequency, actual and anticipated part 434. Proposed § 816.42 contained refuse pile, or coal mine waste slurry usage, and seasonal flow variations for five paragraphs. Proposed paragraph (a) impoundment or move or expand the ephemeral streams. Third, final 30 CFR incorporated previous § 816.42 and location of an approved excess spoil fill 780.19(c)(6) does not include the clarified that permittees must comply or coal mine waste facility. proposed requirement to assess the with all water quality laws, including • Permit application format: We biological condition of ephemeral effluent limitations in the applicable deleted the proposed requirement in 30 streams within the proposed permit and NPDES permit. Proposed paragraph (b) CFR 777.11 that permit applicants adjacent areas. It also modifies the explicitly incorporated the longstanding submit their applications in electronic proposed requirement to assess the requirement for permittees to comply form. Regulatory authorities and mining biological condition of intermittent with section 404 of the Clean Water companies expressed concern about the streams within the proposed permit and Act 28 if they sought to discharge expense. Furthermore, we cannot adjacent areas. In the final rule, overburden (including excess spoil), guarantee the availability of grant funds assessment of the biological condition of coal mine waste, and other materials to cover installation of electronic intermittent streams within the into waters of the United States. permitting systems by states. However, proposed area and the adjacent area is Proposed paragraphs (c) through (e) transition to electronic permitting required if a scientifically defensible established enforceable performance systems ultimately will result in cost protocol has been established for standards requiring proper operation savings and greater efficiencies. assessment of intermittent streams in and maintenance of water treatment • Baseline data and monitoring: First, the state or region in which the stream facilities and environmentally we are not adopting the proposed is located. But, if a scientifically appropriate disposition of precipitates requirement in 30 CFR 780.19(b) and (c) defensible bioassessment protocol has from those facilities. that the regulatory authority extend the not been developed in the relevant state In the preamble to the proposed rule, baseline data collection period if the or region, a description of the biology of we requested comment on whether Palmer Drought Severity Index for that each intermittent stream would be proposed § 816.42(b) should be period exceeded certain values. The required to determine the biological informational or directly enforceable regulatory authority has the discretion condition of the intermittent stream. under SMCRA.29 As mentioned, this to determine whether and how long to Fourth, final 30 CFR 780.28(g) specifies paragraph required that discharges of extend the baseline data collection the best technology currently available overburden (including excess spoil), period under conditions of extreme for assessment of the restoration of the coal mine waste, and other materials drought or abnormally high ecological function of intermittent into waters of the United States be made precipitation. Second, under 30 CFR streams for which no scientifically in compliance with section 404 of the 780.19(b) and (c), the regulatory defensible protocol exists consists of the Clean Water Act and its implementing authority may modify the interval or the establishment of standards that rely 12-consecutive-month sampling upon restoration of the form, hydrologic 28 33 U.S.C. 1344. requirement for groundwater and function, and water quality of the 29 80 FR 44549 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93076 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

regulations. Commenters were divided considered the applicable requirements Since our final rulemaking in 1982 was on the merits of this issue. Several of SMCRA in light of an overarching promulgated to be consistent with environmental groups and citizens purpose of SMCRA: To protect society effluent limits established by the U.S. asked us to make standards under both and the environment from the adverse Environmental Protection Agency, our sections 402 and 404 of the Clean Water effects of coal mining operations.31 regulations have required that Act directly enforceable under SMCRA. Section 510(b)(3) of SMCRA specifically discharges from coal mining operations These commenters typically suggested provides that coal mining operations be in accordance with a valid NDPES changes to proposed § 816.42 to clarify must be designed to prevent material permit and that this is a performance that water quality standards established damage to the hydrologic balance standard directly enforceable under under the Clean Water Act are directly outside the permit area.32 Likewise, SMCRA.36 This approach has been enforceable under SMCRA. According section 508(a)(9) of SMCRA provides upheld by the Interior Board of Land to these commenters, section 702(a) of that a permit application must include Appeals and has been expressly SMCRA 30 and prior preamble ‘‘the steps to be taken to comply with incorporated by several regulatory statements concerning § 816.42 provide applicable air and water quality laws authorities.37 Direct enforcement of the authority for direct enforcement of and regulations[,]’’ 33 and section 702(a) NPDES effluent limitations typically water quality standards under SMCRA. of SMCRA provides that nothing in begins with an inspector for the SMCRA Similarly, these commenters asked us to SMCRA ‘‘shall be construed as regulatory authority conducting a clarify whether proposed § 816.71(a)(7) superseding, amending, modifying, or routine inspection.38 During these (excess spoil) and 816.57(b) (mining in, repealing’’ the Clean Water Act or any inspections, water samples are taken through, or adjacent to perennial and rule or regulation promulgated under from sediment pond discharges to verify intermittent streams) require operators the Clean Water Act.34 Thus, while we compliance with the SMCRA permits, to comply with water quality standards cannot supersede the Clean Water Act, which incorporates the NDPES effluent and, if so, whether the SMCRA under SMCRA, regulatory authorities do limitations by reference. When regulatory authorities will directly have a duty to ensure that surface coal violations of those standards are found, enforce these water quality standards. mining operations are permitted, a SMCRA notice of violation is issued Some commenters asked us to provide operated, maintained, and reclaimed in requiring the violation to be corrected. for direct enforcement of Clean Water a manner that complies with the Clean With the final rule, we are changing Act water quality standards through Water Act, which includes, but is not this process slightly. In response to citizen suits under section 520 of limited to, compliance with NPDES Federal agency comments, we have SMCRA. permits and water quality standards. revised final § 816.42(b)(1) to require the In contrast, other commenters Section 816.42 of the final rule is the SMCRA regulatory authority to add an considered § 816.42 to be unnecessary primary regulation that sets forth the additional step to the end of the process: and duplicative of the Clean Water Act. duty under SMCRA for coal mining Notification of the appropriate Clean Some commenters detailed the Clean operations to comply with the Clean Water Act authority of any notice of Water Act’s own ‘‘robust, but carefully Water Act. This regulation is tailored to violation issued under SMCRA for a tailored, enforcement scheme[,]’’ which accomplish this objective while violation of an effluent limit. We also includes both direct enforcement by the avoiding conflicts between SMCRA added a provision requiring the SMCRA state Clean Water Act authority of any regulatory authorities and Clean Water regulatory authority to coordinate with aspect of the Clean Water Act that it has Act authorities about what constitutes a the Clean Water Act authority whenever been delegated, enforcement by the U.S. Clean Water Act violation. In particular, necessary to determine if a violation Environmental Protection Agency, final § 816.42(a) clarifies that neither exists. This provision is intended to enforcement by the U.S. Army Corps of this section of the final rule, nor any address those situations where there Engineers, and enforcement by citizen action taken pursuant to it, supersedes may be some uncertainty as to whether suits under the Clean Water Act. These or modifies the authority or jurisdiction in fact a violation exists. In addition to commenters noted that the Clean Water of federal, state, or tribal agencies ensuring that there is no ambiguity Act does not confer authority on other responsible for administration, about the requirement for a permittee to agencies, such as us or state SMCRA implementation, and enforcement of the comply with NPDES effluent limits regulatory authorities, to enforce the Clean Water Act including decisions under SMCRA, we have added Clean Water Act, and the SMCRA that those agencies make pursuant to the paragraph (i) to final rule § 773.17, regulatory authorities are not equipped authority of the Clean Water Act. This which requires the regulatory authority to do so. Moreover, some commenters includes decisions on whether a to condition every permit on claimed that making the provisions of particular set of facts constitutes a compliance with all effluent limitations the Clean Water Act directly enforceable violation of the Clean Water Act. and conditions in any NDPES permit under SMCRA would directly conflict With regard to enforcement under issued by the Clean Water Act authority. with the Clean Water Act because it SMCRA, final rule § 816.42(b)(1) retains With regard to enforcement of water would give a state with SMCRA primacy our longstanding regulatory requirement quality standards, § 816.42(b)(2) was the direct authority to enforce violations that coal mining operations must also added to make it clear that coal of the Clean Water Act—even where comply with all applicable water quality mining operations cannot cause or that state does not have full delegation laws and regulations, including the contribute to a violation of any to administer Clean Water Act effluent limitations set by Clean Water applicable water quality standards. In programs. These commenters generally Act authorities in NPDES permits under addition, in response to comments, we urged us to consider this paragraph as section 402 of the Clean Water Act.35 informational or to remove it altogether. 36 47 FR 47220 (Oct. 22, 1982). In developing the approach we 37 West Virginia Highlands Conservancy et al.,152 31 adopted in the final rule about the direct See, e.g., 30 U.S.C. 1201(d); 1201(j), 1202(a), IBLA 196 (2000); see also, Ohio Division of 1202(c), 1202(d), 1202(f), and 1202(m). Reclamation Policy/Procedure Directive 95–2; June enforcement of Clean Water Act 32 30 U.S.C. 1260(b)(3). 1, 1995. provisions under SMCRA, we 33 30 U.S.C. 1258(a)(9). 38 Active mining operations require complete 34 30 U.S.C. 1292(a)(3). inspections quarterly and partial inspections 30 30 U.S.C. 1292(a). 35 33 U.S.C. 1342. monthly.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93077

have added language similar to that water resources’’ 40 it may be necessary commenter found our de facto contained in § 816.42(b)(2) to final for the SMCRA regulatory authority to definition (‘‘those uses in existence at § 816.57(a)(2) to clarify that activities in, act, at least initially, independently of the time of the preparation of the permit near, or through streams may not cause the Clean Water Act authority. In such application’’) to be potentially less or contribute to a violation of applicable a situation, after coordination with the protective than, and therefore water quality standards. Similarly, in Clean Water Act authority additional inconsistent with, the Clean Water Act response to comments, we adopted a enforcement action may be necessary by definition of ‘‘existing uses’’ at 40 CFR provision in final § 816.71(a)(7) which the SMCRA regulatory authority, the 131.3(e). The commenter asserted that, provides that the permittee or operator Clean Water Act authority, or both. This in the context of a permit application must place excess spoil in a manner that process of coordination more fully prepared in 2016 for a watershed that will ensure that the fill will not cause satisfies the mandates of section 702(a) had no mining activity before November or contribute to a violation of applicable of SMCRA.41 28, 1975, the existing uses in 2016 likely water quality standards adopted under Some commenters also requested that would be more impaired than the the authority of section 303(c) of the we explicitly allow citizens to enforce existing uses before November 28, 1975. Clean Water Act, 33 U.S.C. 1313(c), for water quality standards through citizen Preserving the ‘‘existing uses’’ at the surface water downstream of the toe of suits. In our proposed rule, we did not time of the new 2016 mining the fill. propose any changes or ask for comment application might simply perpetuate the In addition § 816.42(c) of the final on the enforcement of water quality existing level of impairment caused by rule mirrors proposed paragraph (b) and standards through SMCRA citizen suits. prior mining in the same watershed. provides that discharges of overburden, Nothing in the proposed or final rule The commenter argued that our rules coal mine waste, and other materials was intended to alter or inhibit the must provide at least the same level of into waters subject to the jurisdiction of ability to initiate citizen suits under protection as the Clean Water Act the Clean Water Act, must be made in SMCRA,42 the Clean Water Act,43 or the definition. The commenter compliance with section 404 of the Endangered Species Act.44 Moreover, recommended that our rules use the Clean Water Act.39 we consider any questions about the term ‘‘premining uses’’ and that we In order to better ensure compliance extent of enforcement under the citizen interpret that term as meaning all uses with sections 508(a)(9), 510(b)(3), and suit provision of SMCRA to be beyond in existence at the time of the enactment 702(a)(3) of SMCRA and address the scope of this rule. of SMCRA. According to the commenter, the statutory mandate to concerns about the role of the regulatory H. We Should Define ‘‘Existing Uses’’ To authority in assessing violations related prevent material damage to the Be Consistent With Clean Water Act hydrologic balance outside the permit to water quality standards and section of Terminology the Clean Water Act, we added final area means that the rule must extend rule § 816.42(d). This provision requires The proposed rule contained protection to all water sources impaired that the regulatory authority investigate numerous regulations that refer to by mining since SMCRA was enacted in any situation in which it has ‘‘existing uses’’ in the context of uses of 1977. Our rule implements SMCRA, not the information indicating that mining groundwater and surface water. With Clean Water Act, so we are under no activities may be causing or contributing respect to surface water, the regulations obligation to adopt the same definition to a violation of the water quality at 40 CFR 131.3(e) implementing the of ‘‘existing uses’’ that has been adopted standards to which paragraph (b)(2) of Clean Water Act defines ‘‘existing uses’’ as ‘‘those uses actually attained in a under the Clean Water Act, especially this section refers, or to a violation of when our definition pertains to a term section 404 of the Clean Water Act to waterbody on or after November 28, 1975, whether or not they are included (material damage to the hydrologic which paragraph (c) refers. When balance outside the permit area) that conducting an investigation the SMCRA in the water quality standards.’’ We did not propose to define ‘‘existing uses’’ in does not appear in the Clean Water Act. regulatory authority will coordinate We also have not discovered any with the appropriate Clean Water Act the proposed rule, but we stated in the preamble that we interpret the term support for the commenter’s assertion authority. The purpose of the that Congress intended that we look coordination is to ensure that both ‘‘existing uses’’ as meaning those uses in existence at the time of preparation of back to the baseline conditions on the agencies assess the most appropriate date of enactment of SMCRA (August 3, course of corrective action to remedy the permit application, regardless of whether those uses are designated uses 1977) to determine whether an any confirmed violation. However, operation is preventing material damage nothing in this section precludes the under section 303(c) of the Clean Water Act.45 See 80 FR 44475 (Jul. 27, 2015). to the hydrologic balance outside the SMCRA regulatory authority from permit area. In addition to the practical initiating enforcement action We also stated in the preamble that, alternatively, we might replace the term difficulty of determining the baseline independently of the Clean Water Act condition of water bodies on a date authority. In fact, because the SMCRA ‘‘existing uses’’ with ‘‘premining uses’’ for purposes of clarity. Id. We invited almost four decades ago, there is no regulatory authority is statutorily statutory support for viewing the date obligated to take immediate comment on which course of action we should take. that SMCRA was enacted as the baseline enforcement action when any for determining whether an operation ‘‘permittee is in violation of any One commenter stated that the term ‘‘existing uses’’ is acceptable as long as will prevent material damage to the requirement of this Act, which hydrologic balance outside the permit condition, practice, or violation also we distinguish between existing uses and designated uses. Another area. To the contrary, SMCRA indicates creates an imminent danger to the that such a finding should be made at health or safety of the public, or is 40 30 U.S.C. 1271(a)(2). the time of permit application. For causing, or can reasonably be expected 46 41 30 U.S.C. 1292(a). instance, section 510(b)(3) of SMCRA to cause significant, imminent 42 30 U.S.C. 1271. provides that the regulatory authority environmental harm to land, air or 43 33 U.S.C.1365. may not approve any application for a 44 16 U.S.C.1531. 39 33 U.S.C. 1344. 45 33 U.S.C. 1313(c). 46 30 U.S.C. 1260(b)(3).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93078 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

permit or permit revision unless the under the Clean Water Act. Id. at 1366– water and hydrologic balance,48 regulatory authority finds that the 1367. Congress clearly indicated that it proposed operation has been designed These commenters typically failed to intended to go beyond the protections it to prevent material damage to the appreciate the significance of the court’s had afforded in the Clean Water Act. In hydrologic balance outside the permit further holding in that case: ‘‘where the SMCRA, Congress required the area. Thus, this section implies that the [Clean Water Act] and its underlying development of focused design finding on material damage to the requirements and performance regulatory scheme are silent so as to hydrologic balance outside the permit standards for surface coal mining constitute an ‘absence of regulation’ or area should be based upon the operations, including numerous a ‘regulatory gap’, the Secretary may assessment of the cumulative hydrologic standards related to water and the impact of all anticipated mining in the issue effluent regulations without regard hydrologic balance. Thus, as long as watershed. That assessment looks to EPA practice so long as he is these SMCRA standards do not conflict forward to future impacts, not backward authorized to do so under the Surface with the Clean Water Act, regulation to impacts that have occurred since Mining Act.’’ Id. at 1367 (emphasis under SMCRA will complement the 1977. added). Thus, the court expressly held Clean Water Act standards and To avoid confusion with the term that we, under the authority of SMCRA, requirements, which means that the ‘‘existing uses’’ as employed under the could issue regulations to address the final rule legitimately fits within the Clean Water Act, however, we have hydrologic impacts of coal mining confines of what Congress intended. decided to replace the term ‘‘existing operations that are not adequately Although nothing in the proposed uses’’ with ‘‘premining uses.’’ We addressed under the Clean Water Act. In rule conflicts with the Clean Water Act, intend no change in practical effect by this final rule, consistent with this because of commenters’ concerns and to this change in terminology because ruling, we are using our SMCRA better effectuate our intent to improve ‘‘premining uses’’ are the uses in authority to fill many of the very coordination with Clean Water Act existence at the time of preparation of regulatory gaps that the Court authorities, we modified the proposed the permit application or, in other mentioned in In re Surface Mining rule in several key respects. We discuss words, the conditions in existence Regulation Litigation. See, e.g., id. (gaps these changes in more detail in the before the proposed or current in the Clean Water Act include, but are section-by-section analysis of the final operation. There are some places in the not limited to, ‘‘discharges from rule.49 regulations, primarily related to abandoned and underground mines or Some commenters alleged that our approximate original contour, where we from nonpoint sources’’ and the ability proposed rule would conflict with the address conditions in existence before ‘‘to establish standards ‘‘requiring Clean Water Act because it does not any mining activities. In those comprehensive preplanning and afford the same degree of flexibility that instances, we do not use the term designing for appropriate mine the statute does. However, our rule does premining. Instead, we refer to operating and reclamation procedures not reduce the flexibilities afforded to conditions ‘‘prior to any mining’’ or ‘to ensure protection of public health operators under the Clean Water Act. ‘‘before any mining’’. For consistency in and safety and to prevent the variety of Under our final rule, mining operations terminology, we are making these other damages to the land, the soil, the may not preclude attainment of any changes with respect to both designated uses under the Clean Water groundwater and surface water. wildlife, and the aesthetic and recreational values that can result from Act, if such uses have been established. I. We Should Remove Provisions That coal mining.’ ’’). Precluding such designated uses would constitute material damage to the Are Duplicative of or Inconsistent With Several commenters argued that this the Clean Water Act hydrologic balance outside the permit rule was not, in fact, filling regulatory area under SMCRA. However, if no Several commenters asserted that the gaps, but instead was creating a regime designated use exists, the standard proposed rule was inconsistent with that would be inconsistent with the becomes whether the operation is SMCRA and would conflict with or Clean Water Act and associated water precluding any premining use of surface duplicate the requirements of other quality laws and would improperly water outside the permit area. federal laws—primarily the Clean Water require SMCRA regulatory authorities to One commenter asserted that Act. As support, many of these set water quality standards and enforce designated uses under the Clean Water commenters cited Section 702 of the Clean Water Act. We disagree. The Act are ‘‘aspirational and cannot be met SMCRA, which provides that ‘‘[n]othing Clean Water Act is designed to cover due to ambient values or nonpoint in this Act shall be construed as many industries and activities. SMCRA, sources’’ and requested that we better superseding, amending, modifying, or by contrast, is designed to regulate the explain what should occur in such repealing . . . any of the following Acts environmental impacts of one specific situations. Another commenter raised or with any rule or regulation industry. This distinction is significant similar concerns about how this promulgated thereunder, including, but because the later-enacted statute, proposed rule would account for the not limited to . . . [t]he Federal Water SMCRA, unlike the Clean Water Act, ‘‘flexible and adaptive implementation’’ Pollution Control Act, as amended, the provides for the regulation of the of Clean Water Act standards. This State laws enacted pursuant thereto, or commenter cited use attainability other Federal laws relating to the environmental impacts, including the analysis, variances, and compliance preservation of water quality.’’ 47 They hydrologic impacts, of all phases of also cited In re Surface Mining mining operations—design, operation, 48 See, e.g., 30 U.S.C. 1201(c), 1260(b)(3), Regulation Litigation, 627 F.2d 1346 and reclamation. Absent SMCRA, coal mining operations that impact waters 1265(b)(2), 1265(b)(10), 1265(b)(24), 1266(b)(4), (D.C. Cir. 1980) where the court held 1266(b)(9), 1266(b)(11), 1266(b)(12), 1266(c). that we exceeded our authority by outside the permit area would be subject 49 See, e.g., § 780.21(b)(6)(i) (removing the issuing effluent limitations more only to the limited regulation requirement that parameters of concern used to stringent than those issued by EPA authorized by the Clean Water Act. By assess the potential for material damage to the including requirements in SMCRA to hydrologic balance be expressed in numerical terms in the CHIA); 773.15(e)(3); and § 701.5 (definition 47 30 U.S.C. 1292(a)(3). regulate the effects of coal mining on of parameters of concern).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93079

schedules and deadlines as examples of regulations. Sections 7(a)(1), (2) and (4) demonstrate compliance. An applicant the flexible implementation inherent in of the Endangered Species Act of 1973 may demonstrate that the proposed Clean Water Act implementation. To the provide authority for adoption of the actions would have no effect on listed extent that the Clean Water Act provides regulations referenced above, which are species. If the proposed action may flexibility, this final rule does not intended to ensure that surface coal affect a listed species or destroy or cause supersede, amend, modify, repeal, or mining and reclamation operations adverse modifications to designated otherwise conflict with the Clean Water conducted under approved state and critical habitat, the applicant must Act. In addition, contrary to comments federal SMCRA regulatory programs consult with the FWS under section 7 61 made by other commenters, SMCRA avoid violations of the Endangered of the Endangered Species Act for allows for some environmental impacts Species Act. Section 7(a)(1) of the federal permits or for mining plan caused by mining; however, these are Endangered Species Act 53 directs approvals involving leased federal coal. not without limitation. For example, federal agencies to use their authorities Alternatively, the applicant may utilize section 515(b)(10) of SMCRA 50 requires to further the purposes of the the procedures of section 10 62 of the that surface coal mining and Endangered Species Act. Section 7(a)(2) Endangered Species Act for state reclamation operations minimize of the Endangered Species Act 54 permits on non-federal lands. Some disturbances to the prevailing requires all federal agencies, in applicants have obtained incidental take hydrologic balance at the mine site and consultation with FWS or the National coverage by complying with the terms of in associated offsite areas and to the Marine and Fisheries Service,55 to a biological opinion that establishes a quality and quantity of water in surface ensure that their actions are not likely process for obtaining incidental take and groundwater systems, which means to jeopardize the continued existence of coverage that is significantly less time- that some damage is permissible. listed species or destroy or adversely consuming and less resource-intensive However, section 510(b)(3) of SMCRA 51 modify designated critical habitat. than the individual section 7 or section effectively prohibits approval of a Section 7(a)(4) of the Endangered 10 processes. An applicant seeking to permit application unless the proposed Species Act 56 requires federal agencies obtain incidental take coverage under a operation has been designed to prevent to confer with the FWS on any agency biological opinion, must comply with material damage to the hydrologic action that is likely to jeopardize the all the procedures, terms, and balance outside the permit area. continued existence of any species conditions of the biological opinion. We do not, however, require an applicant to J. We Should Remove the Provisions proposed to be listed. Other sources of use a biological opinion to obtain That Grant ‘‘Veto Power’’ Over SMCRA authority for this rule are sections coverage. A biological opinion merely Permits to the U.S. Fish and Wildlife 515(b)(24), 515(b)(10), 515(b)(17), and 57 provides one avenue by which an Service 201(c)(2) of SMCRA. Section 4 of the Endangered Species applicant may obtain the coverage it Multiple commenters alleged that the Act directs the Secretary of the Interior, needs against civil or criminal proposed rule gave the U.S. Fish and through the FWS, to list threatened or liability 63 for unauthorized take of Wildlife Service (FWS) ‘‘veto power’’ endangered species of fish and wildlife threatened or endangered species in over issuance of SMCRA permits. or plants and to designate critical violation of the Endangered Species Act. Specifically, the commenters expressed habitat for those species.58 The Paragraphs (j)(1) through (4) of final concern that proposed Endangered Species Act prohibits the § 773.15 list four pathways by which the §§ 779.20(d)(2)(iv) and 780.16(e)(2)(iv), unauthorized ‘‘take’’ of listed species,59 applicant and the regulatory authority would subordinate state permitting a prohibition that applies to all persons may document compliance with the authority to the FWS because those and entities, including coal mine Endangered Species Act for surface coal provisions specified that the regulatory permittees and state regulatory mining and reclamation operations authority may not approve a permit authorities.60 conducted under a SMCRA regulatory application until all issues related to the The Endangered Species Act provides program. Paragraph (j)(1) applies when Endangered Species Act of 1973 52 are several routes by which applicants may the applicant can document that the resolved and the regulatory authority proposed surface coal mining and has received written documentation 53 16 U.S.C. 1536(a)(1). reclamation operations would have no from the FWS that all such issues have 54 16 U.S.C. 1536(a)(2). effect on species listed or proposed for been resolved. 55 The Secretaries of the Department of the listing as threatened or endangered or In the final rule, we replaced Interior and Commerce (Secretaries) have the responsibility for administering the Endangered on designated or proposed critical proposed §§ 779.20(d)(2)(iv) and Species Act, and have delegated this responsibility habitat. The joint U.S. Fish and Wildlife 780.16(e)(2)(iv) with a single to the FWS and National Marine Fisheries Service Service and National Marine Fisheries consolidated provision in § 780.16(b)(2). (NMFS), respectively. 16 U.S.C. 1533. The FWS Service ‘‘Final Endangered Species Act That provision specifies that the manages and administers most ESA-listed species except marine species, including some marine Section 7 Consultation Handbook’’ regulatory authority may not approve a mammals, and anadromous fish, which are the (March 1998) states that the term permit application before it finds that responsibility of NMFS. Id. We determined that this ‘‘effect’’ means any impact, regardless of there is a demonstration of compliance rulemaking will not impact any of the species under the severity or whether the impact is with the Endangered Species Act the jurisdiction of the NMFS. However, we 64 included the NMFS in all sections of our rule positive or negative. Further, the through one of the mechanisms listed in relating to the Endangered Species Act to insure implementing Endangered Species Act § 773.15(j) of the final rule. that, in the unlikely circumstance that a coal regulations found at 50 CFR 402.02, Nothing in SMCRA supersedes the mining operation may impact an ESA-listed species define ‘‘effects of the action’’ in relevant Endangered Species Act or exempts or its habitat under the jurisdiction of NMFS, the part as ‘‘the direct and indirect effects surface coal mining operations from applicant and regulatory authority coordinate with the appropriate NMFS office. of an action on the species or critical compliance with applicable provisions 56 16 U.S.C. 1536(a)(4). of that law and the implementing 57 30 U.S.C. 1265(b)(24), 1265(b)(10), 1265(b)(17), 61 16 U.S.C. 1536. and 1211, respectively. 62 16 U.S.C. 1539. 50 30 U.S.C. 1265(b)(10). 58 16 U.S.C. 1533. 63 16 U.S.C. 1540. 51 30 U.S.C. 1260(b)(3). 59 16 U.S.C. 1538(a). 64 Final ESA Section 7 Consultation Handbook, 52 16 U.S.C. 1531 et seq. 60 16 U.S.C. 1532(13). March 1998 (pg. xii–xiii).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93080 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

habitat, together with the effects of other permit issued pursuant to section 10 of a drop in the groundwater table below activities that are interrelated or the Endangered Species Act of 1973. the stream bed elevation, loss of water interdependent with that action.’’ supply sources like springs and seeps, K. We Should Better Explain How the and increased pollutant loadings; e.g., Paragraphs (j)(2) through (4) apply Definitions of ‘‘Material Damage’’ and iron, aluminum, and sulfate, caused by when the proposed surface coal mining ‘‘Material Damage to the Hydrologic fracturing of the overburden. They and reclamation operations may have an Balance Outside the Permit Area’’ noted that these types of hydrologic effect on species listed or proposed for Apply to Underground Mining impacts are often temporary. According listing as threatened or endangered or Operations on designated or proposed critical to the commenters, if the rule habitat for those species. Paragraph (j)(2) Section 701.5 contains definitions of categorically required the prevention of allows an applicant to obtain protection both ‘‘material damage’’ and ‘‘material temporary and permanent hydrologic against liability for incidental take of a damage to the hydrologic balance impacts, some types of underground threatened or endangered species by outside the permit area.’’ Many mining, such as longwall mining or documenting compliance with a valid commenters asked that we make other methods using planned biological opinion that covers issuance revisions to better distinguish between subsidence, could not occur because of permits for surface coal mining the definitions and clarify how they those hydrologic impacts cannot be operations and the conduct of those apply to underground mining completely prevented. operations under the applicable operations. These commenters correctly We find that many of the concerns note that section 510(b)(3) of SMCRA regulatory program. Through the raised in the comments are overstated. requires mine operators to prevent process of completing a section 7 As noted previously, section 510(b)(3) ‘‘material damage to the hydrologic 66 consultation on the continuation of of SMCRA requires mine operators to balance outside the permit area’’ but existing permits and the approval and prevent ‘‘material damage to the section 516(b)(1) of SMCRA requires hydrologic balance outside the permit conduct of future surface coal mining prevention of ‘‘material damage’’ caused area’’ but section 516(b)(1) of SMCRA 67 and reclamation operations under both by subsidence from underground requires prevention of ‘‘material state and federal regulatory programs operations to the extent technologically damage’’ caused by subsidence from adopted pursuant to SMCRA, as and economically feasible.65 As underground operations to the extent modified by this rule, OSMRE and the specified in its definition, the term technologically and economically U.S. Fish and Wildlife Service entered ‘‘material damage’’ applies only to our feasible. In keeping with these different into a Memorandum of Understanding subsidence control provisions at and distinct provisions of SMCRA we to improve interagency coordination §§ 784.30 and 817.121, which are clarified that not all of the impacts that and cooperation to ensure that applicable to underground mining the commenters described would proposed, threatened, and endangered operations. necessarily rise to the level of material species and proposed and designated As finalized, the definition of the term damage to the hydrologic balance critical habitat are adequately protected ‘‘material damage to the hydrologic outside the permit area. The regulatory for all surface coal mining and balance outside the permit area’’ applies authority is required to make a reclamation permitting actions, generally to ‘‘an adverse impact . . . determination whether a permittee’s including exploration operations, initial resulting from surface coal mining and proposed operation is designed to permit issuance, renewals, and reclamation operations, underground prevent material damage to the significant revisions. The MOU mining activities, or subsidence hydrologic balance outside the permit complements the U.S. Fish and Wildlife associated with underground mining area. If the regulatory authority Service’s 2016 programmatic Biological activities.’’ These two definitions are determines that it does cause material Opinion. Thus, compliance with the intended to ensure that all provisions of damage to the hydrologic balance terms of that biological opinion and the SMCRA are given effect—material outside the permit area, a permit will MOU would satisfy final paragraph damage to the hydrologic balance not be issued. Such a situation would (j)(2). outside the permit area is prevented occur whenever an adverse impact from Final paragraph (j)(3) applies where while material damage caused by subsidence permanently diminishes we are the regulatory authority or where subsidence is minimized to the extent flow (i.e., dewaters) of an intermittent or a mining plan is required under part 746 technologically and economically perennial stream to the extent that of our regulations to mine leased federal feasible. applicable water quality standards coal. This provision specifies that the Numerous commenters expressed would not be met, or if no water quality applicant may provide documentation concern about the potential implications standard has been established, the that interagency consultation under of applying the term ‘‘material damage premining use would not be attained. section 7 of the Endangered Species Act to the hydrologic balance outside the However, a regulatory authority may has been completed for the proposed permit area’’ to underground mining determine that proposed subsidence- operation. The provision may also apply activities and subsidence. These related material damage to surface water in the case where other federal permits commenters objected to application of or groundwater can and will be repaired are required for the proposed operation, the definition of ‘‘material damage to so that it still meets applicable water depending upon the scope of the formal the hydrologic balance outside the quality standards, or, if no water quality consultation. Paragraph (j)(4) provides permit area’’ to areas overlying the standard exists or is applicable, it still an alternative that applies where a state underground workings, which are part attains its premining use. Diminished regulatory authority is responsible for of the ‘‘adjacent area’’ as defined in flow within a short section of a stream permitting actions and the proposed § 701.5. They indicated that subsidence segment over a longwall panel that operation does not involve leased can cause a range of different impacts recovers within a brief period of time or federal coal, and the operator does not on water quantity and quality, including is repairable may have no discernible utilize paragraph (j)(2) or (j)(3), where loss of flow through surface fracturing of impact on attainment of water quality applicable. It specifies that the applicant the stream bed, loss of recharge due to may provide documentation that the 66 30 U.S.C. 1260(b)(3). proposed operation is covered under a 65 30 U.S.C. 1266(b)(1). 67 30 U.S.C. 1266(b)(1).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93081

standards or premining uses and damage that can be repaired or recover a condition capable of maintaining the therefore may not constitute material naturally may be allowed under value and reasonably foreseeable uses damage to the hydrologic balance § 817.121(c). As noted previously, that the land was capable of supporting outside the permit area. The regulatory however, given the different before subsidence damage occurred authority will make a determination on requirements of section 510(b)(3) and unless the regulatory authority whether subsidence damage to section 516(b)(1) of SMCRA,69 the determines that restoration is not wetlands, streams, or other water bodies obligation to prevent material damage to technologically or economically that can be corrected, or that will the hydrologic balance outside the feasible. If those repairs will not be recover naturally, constitutes material permit area, as required at section implemented within 90 days, the damage to the hydrologic balance 510(b)(3) of SMCRA is not subject to the permittee must bond the area as outside the permit area; if it does not provision at section 516(b)(1) of SMCRA discussed in the preamble to final rise to the level of material damage to which requires prevention of material § 817.121(g)(3)(i). the hydrologic balance outside the damage from subsidence to the extent These revisions are consistent with permit area, it may be allowed. technologically and economically our longstanding position about We have clarified and revised feasible. An operator will not be granted subsidence-related material damage. For language in the final rule to ensure that an exemption from complying with instance, in our final rule addressing the longwall mining and other underground material damage to the hydrologic subsidence provisions of the Energy mining methods that use planned balance outside the permit area based Policy Act of 1992,71 we stated: subsidence would not be prohibited, upon technological and economic The term material damage, in the context and that temporary impacts are allowed feasibility where subsidence damage of §§ 784.20 and 817.121 of this chapter, so long as they do not rise to the level will result in material damage to the means any functional impairment of surface of material damage to the hydrologic hydrologic balance outside the permit. lands, features, structures or facilities. The impacts outside of the permit area. We have also addressed comments material damage threshold includes any SMCRA is clear that the regulatory about the effects of subsidence on land physical change that has a significant adverse authority may not approve any permit and waters overlying underground mine impact on the affected land’s capability to support any current or reasonably foreseeable application for a surface coal mining workings by revising our proposed uses, or that causes significant loss in operation, including one that involves definition of ‘‘material damage’’ and our production or income, or any significant underground mining activities, unless subsidence control provisions at change in the condition, appearance or utility the application affirmatively § 784.30 (previously located at § 784.20), of any structure or facility from its pre- demonstrates, consistent with final rule and § 817.121. In addition to addressing subsidence condition. It would also include § 773.15, and the regulatory authority concerns raised by commenters about any situation in which an imminent danger finds, in writing, that the proposed the magnitude and longevity of to a person would be created.72 operation has been designed to prevent subsidence-related impacts to streams, Nothing in this final rule alters the material damage to the hydrologic these changes will help reduce the meaning of the term ‘‘functional balance outside the permit area.68 Any confusion identified by one commenter impairment’’ in the context of material damage to the hydrologic regarding the application of material subsidence-related material damage. In balance outside the permit area is damage to certain features in the addition, the preamble to the 1995 rules unacceptable, including damage from subsidence context. states that ‘‘[t]he definition of ‘material subsidence, even if it is temporary. As The definition of ‘‘material damage’’ damage’ covers damage to the surface mentioned above, such a situation could in § 701.5 of the final rule applies only and to surface features, such as occur, for example, when subsidence in the context of the subsidence control wetlands, streams, and bodies of water, causes a stream to dewater to the point provisions of §§ 784.30 and 817.121. and to structures or facilities.’’ 73 that the stream can no longer support its Among other things, the definition as Consistent with that preamble water quality standard, or if no water adopted in this final rule specifies that description, the addition of the phrase quality standard exists, its premining material damage includes ‘‘[a]ny ‘‘wetlands, streams, and water bodies’’ use. If it is determined that a proposed functional impairment of surface lands, to our material damage definition operation would have this result, the features (including wetlands, streams, should help clarify the applicability of operational plan would need to be and bodies of water), structures, or the definition to hydrologic features in modified to prevent subsidence of the facilities.’’ Under § 784.30(c), mining the subsidence context and ensure those stream. That modification could include may still occur when those features damages are corrected in accordance the use of underground mining exist or may be materially damaged, with § 817.121. technology that prevents subsidence, provided that the applicant submits a The final rule includes language that such as room-and-pillar mining, for that subsidence control plan and the requires the regulatory authority, when portion of the operation. In order to regulatory authority approves that plan. reviewing the determination of the clarify the obligation of the permittee to Among other requirements, the probable hydrologic consequences of prevent material damage to the subsidence control plan must describe the operation in accordance with hydrologic balance outside the permit the anticipated effects of planned § 784.20 and the hydrologic reclamation area, while recognizing that temporary subsidence on wetlands, streams, and plan in accordance with § 784.22, to (i) subsidence-related material damage is water bodies and the measures to be make a reasonable effort to assess the almost certain to occur at planned taken to mitigate or remedy any potential effects of subsidence from the subsidence operations, we have added subsidence-related material damage to proposed underground mining activities new language to § 817.34(a)(2). This those features.70 In addition, pursuant to on streams and (ii) include remedial new language makes it clear that while § 817.121(c) and (g), the underground measures for any predicted diminution underground operations must prevent mine operator must repair damage to of streamflow as a result of subsidence. material damage to the hydrologic surface land and waters, including In summary, the final rule allows balance outside the permit area, wetlands, streams, and water bodies, to temporary subsidence related material 71 Public Law 102–486 (Oct. 24, 1992). 69 30 U.S.C. 1260(b)(3) and 1266(b)(1). 72 60 FR 16722 (Mar. 31, 1995). 68 30 U.S.C. 1260(b)(3). 70 784.30(c)(2)(vi) and (c)(2)(viii). 73 Id.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93082 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

material damage to wetlands, streams, coal processing waste, underground M. What is the relationship among and water bodies to occur so long as the development waste, or noncoal waste is material damage thresholds, evaluation permittee follows the subsidence placed by surface coal mining thresholds, and water monitoring control provisions in §§ 784.30 operations.’’ 76 When the definition of requirements? (subsidence control plan), 817.40 (water ‘‘material damage to the hydrologic Material Damage Thresholds supply replacement), and 817.121 balance outside the permit area’’ that we (subsidence prevention and control and are finalizing today is read in Section 510(b)(3) of SMCRA 77 correction of damage resulting from conjunction with the existing provides that the regulatory authority subsidence). Following these definitions of ‘‘permit area’’ and may not approve a permit application regulations means that water supplies ‘‘disturbed area,’’ it is clear that the unless the application affirmatively will be replaced and that, to the extent point of compliance for preventing demonstrates and the regulatory technologically and economically material damage to the hydrologic authority finds in writing that the feasible, wetlands, streams, and water balance outside the permit area is any proposed operation has been designed bodies will be restored. In addition, we point outside those areas of the permit to prevent material damage to the added § 817.121(c)(2), which requires boundary as indicated on the approved hydrologic balance outside the permit that the permittee implement fish and permit application map. The area inside area. The regulatory authority must base wildlife enhancement measures, as the permit boundary where overburden this finding on an ‘‘assessment of the approved by the regulatory authority in is removed or where other mining probable cumulative impact of all a permit revision, to offset subsidence- activities occur that are required to be anticipated mining in the area on the related material damage to wetlands or bonded for reclamation comprise the hydrologic balance.’’ Our rules refer to a perennial or intermittent stream when limits of the disturbed area. Any that assessment as the cumulative correction of that damage is discharge, including those inside the hydrologic impact assessment (CHIA). technologically and economically permit area, must be in compliance with See, e.g., 30 CFR 780.21. Our rules also infeasible. As long as these regulations applicable Clean Water Act provisions designate the area for which the CHIA are followed, subsidence damage from as provided in § 816.42 of our final is prepared as the ‘‘cumulative impact an underground mining operation that regulations; in addition, such discharges area,’’ which section 701.5 of this final does not rise to the level of material must not be comprised of toxic mine rule defines generally as any area within damage to the hydrologic balance drainage and cannot result in material which impacts resulting from a surface outside the permit area is allowed. damage to the hydrologic balance or underground coal mining operation outside the permit area. may interact with the impacts of all L. We Should Specify the Location The areas outside the permit area that existing and anticipated surface and Where an Operation Must Prevent may be impacted by mining activities underground coal mining on surface- Material Damage to the Hydrologic are within the ‘‘adjacent area’’ as that water and groundwater systems, Balance Outside the Permit Area term is defined in § 701.5. Generally, including the impacts that existing and A commenter suggested that we paragraph (1) of the definition of anticipated mining will have during provide guidance on the location of the ‘‘adjacent area’’ includes the area mining and reclamation until final bond point of compliance for determining outside the proposed or actual permit release. material damage to the hydrologic area within which there is a reasonable The regulatory authority prepares the balance. Section 510(b)(3) of SMCRA 74 probability of adverse impacts from CHIA after technical review of the prohibits the approval of a permit surface coal mining operations or permit application is complete, using application unless the application underground mining activities. both the information in the application demonstrates and the regulatory Moreover, the area comprised within and other available data about the authority finds in writing that the this term will vary with the context in cumulative impact area. The application proposed operation has been designed which a regulation uses this term. For components most critical to preparation to prevent material damage to example, the nature of the resource or of the CHIA are the baseline data on hydrologic balance outside the permit resources addressed by a regulation in surface water and groundwater; the area. Our existing definition of ‘‘permit which the term ‘‘adjacent area’’ appears ‘‘determination of the probable area’’ in § 701.5 of our regulations will determine the size and other hydrologic consequences of the mining provides that the permit area means dimensions of the adjacent area for and reclamation operations, both on and ‘‘the area of land, indicated on the purposes of that regulation. off the mine site,’’ required by section approved map submitted by the For underground mines, paragraph (2) 507(b)(11) of SMCRA; 78 which we operator with his or her application, of the definition specifies that the generally refer to as the PHC required to be covered by the operator’s adjacent area includes, ‘‘at a minimum, determination, and the hydrologic performance bond under subchapter J of the area overlying the underground reclamation plan required by section this chapter and which shall include the workings plus the area within a 508(a)(13) of SMCRA.79 Section 780.20 area of land upon which the operator reasonable angle of dewatering from the of this final rule includes requirements proposes to conduct surface coal mining perimeter of the underground for the PHC determination, while and reclamation operations under the workings.’’ Thus, surface water and § 780.22 contains requirements for the permit, including all disturbed areas; groundwater outside the permit area, hydrologic reclamation plan. provided that areas adequately bonded but within the adjacent area, must be Section 780.21(b)(6) of this final rule under another valid permit may be protected from material damage to the provides that the regulatory authority excluded from the permit area.’’ 75 Our hydrologic balance outside the permit must identify site-specific numeric or existing regulations in § 701.5 define area. We discuss other issues pertaining narrative material damage thresholds for ‘‘disturbed area’’ to mean ‘‘an area to the term ‘‘material damage to the each permit as part of the CHIA and where vegetation, topsoil, or overburden hydrologic balance outside the permit include those thresholds as a condition is removed or upon which topsoil, spoil, area’’ in the preamble to the definition of that term. 77 30 U.S.C. 1260(b)(3). 74 30 U.S.C. 1260(b)(3). 78 30 U.S.C. 1257(b)(11). 75 30 CFR 701.5. 76 Id. 79 30 U.S.C. 1258(a)(13).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93083

of the permit. These material damage watershed within the cumulative impact authority issue a permit revision order thresholds will become the basis for the area to another, taking into under § 774.10. That order must require regulatory authority to objectively consideration differences in watershed that the permittee reassess the adequacy determine if a mining operation has characteristics. Similarly, material of the PHC determination prepared prevented material damage to the damage thresholds for groundwater may under § 780.20 and the hydrologic hydrologic balance outside the permit vary from one part of the cumulative reclamation plan approved under area. impact area to another to reflect § 780.20 and develop appropriate In developing thresholds to define variations in the geology or subsurface measures to minimize the possibility when material damage to the hydrologic hydrology of the cumulative impact that the operation could cause material balance outside the permit area would area. Regulatory authorities should damage to the hydrologic balance occur in connection with a particular closely coordinate with the relevant outside the permit area in the future. permit, final § 780.21(b)(6)(i) specifies state agencies in identifying appropriate The purpose of setting evaluation that the regulatory authority will, in material damage thresholds for thresholds and establishing monitoring consultation with the Clean Water Act groundwater. points is to detect impacts and provide authority, as appropriate, undertake a Material damage thresholds apply at an early warning system to alert both comprehensive evaluation that all points outside the permit area. Final the permittee and the regulatory considers the baseline data collected § 780.21(b)(6)(iv), therefore, provides authority of adverse trends that, left under § 780.19 of the final rule, the that in the CHIA, the regulatory uncorrected, would result in material probable hydrologic consequences authority, must identify the points damage to the hydrologic balance determination prepared under § 780.20 within the cumulative impact area at outside the permit area if the trajectory of the final rule, applicable water which the permittee will monitor the of the trend remains unaltered. Early quality standards adopted under the impacts of the operation on surface detection of adverse trends and timely authority of section 303(c) of the Clean water and groundwater outside the implementation of corrective measures Water Act,80 applicable state or tribal permit area and explain how those benefits both the environment and the standards for surface water or locations will facilitate timely detection permittee by preventing the groundwater, ambient water quality of the impacts of the operation on development of water quality or criteria developed under section 304(a) surface water and groundwater outside quantity problems that may be difficult, of the Clean Water Act,81 the biological the permit area. expensive, or impossible to correct. Use requirements of any species listed as Evaluation Thresholds of evaluation thresholds also may assist threatened or endangered under the in avoiding SMCRA permit violations. Endangered Species Act of 1973,82 and In the preamble to the proposed Section 780.21(b)(7) of the final rule other pertinent information and rule,84 we invited comment on whether requires that the regulatory authority considerations to identify the the final rule should require that the identify evaluation thresholds for parameters for which thresholds are regulatory authority establish corrective critical water quality and quantity necessary and what numeric or action thresholds. We explained that parameters. These critical parameters narrative thresholds to use. Final corrective action thresholds would are characterized as those that could rise § 780.21(b)(6)(ii) specifies that the consist of values for water quality or to the level of material damage. We regulatory authority must, after quantity that, while not constituting expect that the regulatory authority will consulting with the Clean Water Act material damage to the hydrologic use best professional judgment in authority, use numeric material damage balance outside the permit area, provide determining which parameters are thresholds when possible for reason for concern that such damage critical. The final rule does not dictate contaminants that have water quality may occur in the future if no corrective how the regulatory authority must criteria set by the Clean Water Act.83 For action is taken. We received comments identify appropriate evaluation contaminants, that do not have water both supporting and opposing the thresholds for critical parameters, which quality criteria set, the material damage development of corrective action means that the regulatory authority has thresholds can be either numeric or thresholds. After considering the considerable flexibility. For example, narrative. comments received, we decided to the regulatory authority may decide to Final § 780.21(b)(6)(iii) requires that include a requirement in this final rule apply an across-the-board percentage the regulatory authority identify the for thresholds of this nature, for the reduction from the corresponding portion of the cumulative impact area to reasons discussed in the preamble to material damage thresholds or it may which each material damage threshold § 780.21(b)(7). decide to determine evaluation applies. This provision recognizes that However, the final rule uses the term thresholds on a case-by-case basis. the parameters selected and material ‘‘evaluation thresholds’’ rather than An exceedance of an evaluation damage threshold levels may vary ‘‘corrective action thresholds’’ because threshold is not itself a violation under within the cumulative impact area when exceedance of this type of threshold SMCRA or the SMCRA permit because appropriate, based upon differences in does not necessarily require initiation of evaluation thresholds are not watershed characteristics and variations corrective action. Instead, an evaluation incorporated as a condition of the in the geology, hydrology, and biology threshold identifies the point at which permit and do not constitute enforceable of the cumulative impact area. For the regulatory authority must investigate standards. Moreover, exceedances of instance, if the operation would create the cause of an adverse trend in water evaluation thresholds may not point-source or nonpoint-source quality or quantity outside the permit necessarily be the result of the mining discharges to more than one receiving area. If the investigation finds that the operation. For that reason, an stream, material damage thresholds for mining operation is responsible for the exceedance of an evaluation threshold surface water may vary from one adverse trend and that the adverse trend only triggers a requirement under final is likely to continue in the absence of § 780.21(b)(7) that the regulatory 80 33 U.S.C. 1313(c). corrective action, § 780.21(b)(7)(ii) of the authority determine the cause of the 81 33 U.S.C. 1314(a). final rule requires that the regulatory exceedance in consultation with the 82 16 U.S.C. 1531 et seq. Clean Water Act authority, as 83 33 U.S.C. 1251 et seq. 84 80 FR 44436, 44502 (Jul. 27, 2015). appropriate. If the mining operation is

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93084 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

responsible for the exceedance and if to divert the flow from those workings groundwater monitoring plans must the adverse trend is likely to continue to a pond for treatment. However, the provide for the monitoring of those in the absence of corrective action, final diversion was not fully successful, and parameters for which evaluation § 780.21(b)(7) provides that the some of the water entered the receiving thresholds exist under § 780.21(b)(7). In regulatory authority must issue a permit stream without treatment. KFO required addition, paragraphs (a)(2)(ii) and revision order under § 774.10. The order the permittee to construct a three-cell (b)(2)(ii) of final § 780.23 require must require that the permittee reassess wetland treatment system and divert all analysis of each sample for the baseline the adequacy of the PHC determination water from the underground workings to parameters listed in § 780.19(a)(2) and prepared under § 780.20 and the that system, which is successfully for all parameters for which evaluation hydrologic reclamation plan approved treating the water. This corrective action thresholds exist under § 780.21(b)(7). under § 780.22 and develop measures to prevented material damage to the Final § 816.35(a)(2) requires that the prevent material damage to the hydrologic balance from occurring. KFO permittee conduct groundwater hydrologic balance outside the permit conducted the investigation jointly with monitoring through mining, area. Section 780.21(c)(1) of the final the Tennessee Clean Water Act reclamation, and the applicable rule provides that, upon receipt of an permitting authority. revegetation responsibility period under application for a significant permit Monitoring § 816.115 of the final rule for the revision, the regulatory authority must monitored area. The permittee must determine whether there is a need for a Final rule § 780.23(a) and (b) require continue to monitor groundwater new or updated CHIA. that each permit application include beyond that date for any additional time We encourage the permittee to plans to monitor both surface water and needed for monitoring results to identify any exceedance of an groundwater. Those paragraphs also demonstrate that the criteria of evaluation threshold as part of its provide that the plans must be adequate § 816.35(d)(1) and (2) have been met, as review of water monitoring records and to evaluate the impacts of the mining determined by the regulatory authority. notify the regulatory authority, which operation on surface water and Paragraphs (d)(1) and (2) of § 816.35 will then determine how to proceed groundwater in the proposed permit and establish the conditions under which adjacent areas and to determine in a with determining the cause of the the regulatory authority may approve timely manner whether corrective exceedance. Additionally, the SMCRA modification of the groundwater action is needed to prevent the inspector will, as part of each complete monitoring requirements, including the operation from causing material damage inspection conducted on a quarterly parameters monitored and the sampling to the hydrologic balance outside the basis, review water monitoring records frequency. For example, the regulatory permit area. Among other things, the to determine if an evaluation threshold authority may reduce the frequency of final rule requires that the plans include has been exceeded. If the inspector groundwater monitoring from quarterly monitoring points at the locations identifies an exceedance, the regulatory to annual if it determines that the specified in the CHIA prepared by the authority, in consultation with the reduced frequency will be adequate to regulatory authority under Clean Water Act authority, as detect adverse trends in a timely appropriate, will then determine the § 780.21(b)(6)(iv) of the final rule. manner, based on the rate of cause of the exceedance and, if Paragraphs (a)(1)(iii) and (b)(1)(iv) of groundwater movement. necessary, issue an order requiring that final § 780.23 require that the permittee Specifically, paragraphs (d)(1) and (2) the permittee submit a permit revision establish a sufficient number of of final § 816.35 provide that the application, as discussed above. In appropriate monitoring locations to permittee may request, and the addition, § 780.21(c)(2) of the final rule evaluate the accuracy of the findings in provides that the regulatory authority the PHC determination, to identify regulatory authority may approve, must reevaluate the CHIA at intervals adverse trends, and to determine, in a modification of the groundwater not to exceed three years to determine timely fashion, whether corrective monitoring plan based on a whether the CHIA remains accurate and action is needed to prevent material demonstration that, with respect to the whether the material damage and damage to the hydrologic balance parameter or parameters affected by the evaluation thresholds in the CHIA and outside the permit area. Under final proposed modification, future adverse the permit are adequate to ensure that § 780.23(b)(1)(iv)(B), the surface water changes in groundwater quantity or material damage to the hydrologic monitoring plan must include quality are unlikely to occur and the upgradient and downgradient operation has— balance outside the permit area will not • occur. This review must consider all monitoring locations in each perennial Minimized disturbance to the biological and water monitoring data and intermittent stream within the hydrologic balance in the permit and from all surface coal mining and proposed permit and adjacent areas, adjacent areas; • reclamation operations within the with the exception that no upgradient Prevented material damage to the cumulative impact area. monitoring location is needed for a hydrologic balance outside the permit We are the regulatory authority in stream when the operation will mine area; Tennessee. We have used evaluation through the headwaters of that stream. • Preserved or restored the biological thresholds successfully in our Knoxville Similarly, under final condition of perennial and intermittent Field Office (KFO) for many years, § 780.23(a)(1)(iii)(A), the groundwater streams within the permit and adjacent resulting in cost-effective and practical monitoring plan must include areas for which baseline biological improvements to water quality. For monitoring wells or equivalent condition data was collected under example, KFO routinely uses an monitoring points located upgradient § 780.19(c)(6)(vi) when groundwater evaluation threshold of 1.0 mg/l for iron and downgradient of the proposed from the permit area provides all or part in a receiving stream. Water monitoring operation. That requirement applies to of the base flow of those streams; data for a site subsequently documented each aquifer above or immediately • Maintained or restored the an exceedance of that threshold after the below the lowest coal seam to be mined. availability and quality of groundwater surface mining operation disturbed Paragraphs (a)(2)(i) and (b)(2)(i) of to the extent necessary to support the flooded abandoned underground mine final § 780.23 specify that, at a approved postmining land uses within workings. The permittee had attempted minimum, the surface water and the permit area; and

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93085

• Protected or replaced the water damage to the hydrologic balance assumed flow rate. This concentration rights of other users. outside the permit area. limit is expressed in concentration units Nothing in § 816.35(d)(1) and (2) N. What effect will the final rule have applicable to each specific parameter authorize complete discontinuance of on proposed operations in impaired and is normally given as a mass/volume monitoring at any monitoring location watersheds? (e.g., mg/L). Waste load allocations are (except as approved under § 784.40 for often implemented in NPDES permits as certain underground mines) or Each Clean Water Act authority is mass-based limits and expressed as required to conduct an assessment of discontinuance of monitoring of all pounds per day. parameters for the entire operation each stream within state borders to Both the applicant and the regulatory before expiration of the applicable determine if the water is meeting all authority need to carefully consider the revegetation responsibility period under state and federal water quality criteria. impact of a proposed operation on the § 816.115 for the monitored area. Given If a stream is not meeting all state and impaired hydrologic conditions in a the typically slow rate of groundwater federal water quality criteria, it is movement and the length of time considered to be impaired. Under watershed with a 303(d)-listed water. needed to reestablish the water table in section 303(d) of the Clean Water Act, Under section 510(b)(3) of SMCRA and the backfilled area, discontinuance of each state is required to submit a list of § 773.15(e) of this final rule, the SMCRA monitoring before expiration of the these impaired waters to the regulatory authority may not approve a applicable revegetation responsibility Environmental Protection Agency ‘‘from permit application unless the applicant period under § 816.115 likely would time to time’’ (but at least every three demonstrates, and the regulatory result in discontinuance of groundwater years). Section 303(d) of the Clean authority finds, that the proposed monitoring before groundwater within Water Act also requires each state to operation has been designed to prevent prioritize the waters on the impaired the reclaimed permit area has reached material damage to the hydrologic waters list and develop a plan to equilibrium with groundwater in the balance outside the permit area. Before rehabilitate the stream so that it is able adjacent area. That result would negate making this finding, the SMCRA to meet all state and federal water the purposes of the monitoring program, regulatory authority must prepare a quality criteria. This plan involves one of which is to evaluate whether the cumulative hydrologic impact analysis estimating the total maximum daily load operation has caused material damage to (CHIA) that identifies and analyzes the (TMDL) of various water quality the hydrologic balance outside the cumulative impacts of all anticipated parameters from all known and permit area. mining, including the proposed reasonably foreseeable sources (point operation, on the hydrologic balance in Final § 816.36 contains identical and non-point sources) that an impaired the cumulative impact area, including requirements for surface water stream is expected to contain while impacts on the water quality and monitoring, with the exception that moving along its flow path. The plan’s biology of the receiving stream. See final paragraph (a)(2) requires that surface objective is to decrease the pollutant water monitoring continue through load and enable the stream to meet all paragraphs (a) and (b) of § 780.21. Both mining and during reclamation until the state and federal water quality the definition of ‘‘material damage to regulatory authority releases the entire standards. These TMDLs serve as a the hydrologic balance outside the bond amount for the monitored area blueprint to ensure that an impaired permit area’’ in § 701.5 of this final rule under §§ 800.40 through 800.43. This stream meets all state and federal water and the CHIA regulations that we are difference reflects the fact that surface quality criteria and achieves its highest adopting in § 780.21(b)(6) of this final water monitoring, unlike groundwater designated use. rule provide that the regulatory monitoring, does not involve wells that TMDLs can be calculated to authority must consult with the Clean the permittee must seal or transfer implement a narrative stream condition Water Act authority, as appropriate, in under § 816.13 of the final rule before or to focus on a specific parameter.85 determining whether the proposed applying for final bond release. In Once the TMDL is calculated, each new operation would cause material damage addition, final § 816.36(d)(2) contains individual point-source discharge is to the hydrologic balance outside the one additional requirement for assigned a waste load allocation based permit area. modification of the surface water on its estimated discharge flow rate and O. Should ephemeral streams receive monitoring plan for a permit: The parameter concentration. The Clean the same protections as intermittent and permittee must demonstrate that the Water Act authority may adjust effluent perennial streams? operation has not precluded attainment limitations in existing NPDES permits to of any designated use of surface water reflect the waste load allocation for each Scientific studies completed since the under section 303(c) of the Clean Water parameter under consideration in the enactment of SMCRA and the adoption Act, 33 U.S.C. 1313(c). TMDL. When the waste load allocations of our existing rules have documented Paragraph (c) of final section 780.23 are implemented as concentration-based the importance of headwater streams in further requires that the permit limits in NPDES permits, the limits are maintaining the ecological health and application include a plan for derived from the calculated waste load function of streams down gradient of monitoring the biological condition of allocation for the outfall and an each perennial and intermittent stream headwater streams. Headwater streams include all first-order and second-order within the proposed permit and 85 For example, if the Clean Water Act authority adjacent areas for which baseline determined that a stream was impaired because of streams without regard to whether those biological condition data was collected excess sediment, it would calculate the sediment streams are perennial, intermittent, or under § 780.19(c)(6)(vi). The plan must load the stream could assimilate from all point and ephemeral. In 2015, U.S. Environmental non-point sources while maintaining its designated Protection Agency published a report be adequate to evaluate the impacts of use. That TMDL for sediment would be expressed the mining operation on the biological numerically (e.g., 1000 pounds of suspended summarizing the findings of peer- condition of those streams and to sediment per day). The Clean Water Act authority reviewed studies of headwater streams determine in a timely manner whether would then allocate a portion of that TMDL amount and wetlands and the impact they have among all known and reasonably foreseeable on the physical, chemical, and corrective action is needed to prevent NPDES permits and non-point sources that do not the operation from causing material have an NPDES permit. biological integrity of downstream

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93086 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

waters.86 The studies and the report woody debris.90 These materials help provides the opportunity to reshape the generally do not differentiate among structure stream and river channels by landscape to reduce erosion. perennial, intermittent, and ephemeral slowing the flow of water through • Ephemeral streams have minimal if streams, but the report emphasizes that channels and providing substrate and any biological components. ephemeral streams are an important habitat for aquatic organisms.91 • In Wyoming’s Powder River Basin, component of headwater streams and Our previous rules included no extending protection to ephemeral that they have an effect on the form and protections for ephemeral streams. streams could result in 2,800 tons of function of downstream channels and Consistent with the findings of the U.S. coal per foot of channel being left aquatic life. The report states that the Environmental Protection Agency report unmined. This equates to 15 million evidence unequivocally demonstrates and other studies, our proposed rule tons of coal sterilized for every mile of that the stream channels, riparian included some protections for channel that could not be mined. wetlands, floodplain wetlands, and ephemeral streams, tailored to their Surface coal mines in Wyoming can open waters that together form river hydrologic and ecological functions. We have upwards of 100 miles of ephemeral networks are clearly connected to also invited comment on whether we channels within the permit boundary. If downstream waters in ways that should extend equal protection to all all of the channels were to become profoundly influence downstream water streams, without regard to whether the unmineable, approximately 1.5 billion integrity.87 According to the report, the stream is perennial, intermittent, or tons of coal for each mine would be body of literature documenting sterilized. ephemeral. See 80 FR 44451 (Jul. 27, • connectivity and downstream effects is 2015). Typical mining techniques in the Powder River Basin utilize draglines most abundant for perennial and We received numerous comments and truck shovels. Efficient dragline intermittent streams and for riparian from environmental groups advocating 88 operations require long linear pits. If and floodplain wetlands. The report that ephemeral streams be protected in ephemeral streams become unmineable, further states that, although less the same manner as perennial and these types of operations will no longer abundant, the evidence for connectivity intermittent streams. One commenter be economic or efficient because of the and downstream effects of ephemeral stated: ‘‘OSMRE’s analysis should start number of ephemeral channels that streams is strong and compelling, from a presumptive rule of equal particularly in context with the large bisect these pits. protection for all streams, and any • The Bureau of Land Management body of evidence supporting the assertion of countervailing business physical connectivity and cumulative requires that a bonus bid be paid at the impacts should be considered only if it time a federal coal lease is awarded. To effects of channelized flows that form is backed by evidence included in the 89 date, coal underlying ephemeral stream and maintain stream networks. administrative record.’’ Many The report identifies five principal channels has been considered environmental commenters asserted that recoverable, which means that contributions of ephemeral streams: (1) a strong stream protection rule must Providing streamflow to larger streams; companies have paid bonus bids include protection of ephemeral streams (2) conveying water into local storage ranging from $0.85 to $1.35 per ton for because they are an essential element of compartments such as ponds, shallow coal underlying ephemeral streams in the hydrologic balance. aquifers, or streambanks that are leases awarded during the past 5 years. In contrast, industry commenters important sources of water for If ephemeral channels are considered opposed affording ephemeral streams maintenance of the baseflow in larger unmineable, this will create a the same protections as intermittent and streams; (3) transporting sediment, significant economic hardship for the woody debris, and nutrients; (4) perennial streams. This paragraph mining companies. Federal and state summarizes some of those arguments: governments also will experience a loss providing the biological connectivity • that is necessary either to support the The U.S. Army Corps of Engineers, of revenue. life cycle of some invertebrates or to an agency with considerable expertise Many commenters thought that the facilitate the transport of terrestrial on the subject of streams, rarely requires term ‘‘ephemeral stream’’ included all invertebrates that serve as food returning all ephemeral features to the conveyances that were not either postmining landscape. perennial or intermittent streams. resources in downstream communities; • and (5) influencing fundamental Some ephemeral streams are the However, the definition of ‘‘ephemeral biogeochemical processes such as the result of anthropogenic activities and stream’’ that we are adopting in § 701.5 assimilation and transformation of may be undesirable. as part of this final rule addresses this • nitrogen that may otherwise have Many ephemeral streams will find issue by providing that ephemeral detrimental impacts on downstream their own way back onto the landscape, streams include only those conveyances communities. In addition, headwater depending on many factors including with channels that display both a bed- streams, including ephemeral and the final configuration of the and-bank configuration and an ordinary intermittent streams, shape downstream reclamation. Restoring these lesser high water mark. channels by accumulating and gradually drainages is a waste of effort when After evaluating the comments, or episodically releasing stored nature will do it better. reviewing the scientific literature, and materials such as sediment and large • Disallowing the placement of weighing potential costs and benefits, sediment ponds in ephemeral drainages we decided not to extend the same 86 U.S. Environmental Protection Agency. would result in logistically difficult or protections to ephemeral streams that Connectivity of Streams and Wetlands to impossible situations or at least a greatly we do to intermittent and perennial Downstream Waters: A Review and Synthesis of the increased disturbance from additional Scientific Evidence (Final Report). U.S. streams. Environmental Protection Agency, Washington, DC. ditching and a larger number of ponds. However, as part of this final rule, we EPA/600/R–14/47F, 2015. Available at https:// • It makes no sense and is adopted most of the added protections cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid= counterproductive to reconstruct for ephemeral streams that we included 296414&CFID=62302143&CFTOKEN=44785139 (last accessed October 26, 2016). erosional features when reclamation in our proposed rule. The final rule will 87 Id. at ES–7. protect the important role that 88 Id. 90 Id. at ES–8. ephemeral streams perform within 89 Id. 91 Id. watersheds including providing

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93087

protection and maintenance of use in ephemeral streams for that finds that a different pattern or downstream uses, ecological services, purpose. configuration is necessary or and the hydrologic balance of larger Proposed §§ 780.20, 780.21, 784.20, appropriate to ensure stability; prevent streams because of the impact and 784.21 required that the or minimize downcutting or widening ephemeral streams have on the form and determination of the probable of reconstructed stream channels and function of downstream channels and hydrologic consequences of mining control meander migration; promote aquatic life. Adopting these protections (PHC determination) and the cumulative enhancement of fish and wildlife should ensure that ephemeral streams hydrologic impact assessment (CHIA) habitat; accommodate any anticipated on reclaimed mine sites continue to include consideration of impacts on the temporary or permanent increase in provide the ecological services biological condition of ephemeral surface runoff as a result of mining and identified in the U.S. Environmental streams. Those sections of the final rule reclamation; accommodate the Protection Agency report while not do not include this proposed construction of excess spoil fills, coal unduly restricting mining through those requirement because established and mine waste refuse piles, or coal mine streams. This approach is consistent scientifically defensible protocols do waste impounding structures; replace a with the purposes of SMCRA, as not currently exist for use in stream that was channelized or enumerated in section 102 of the Act.92 determining the biological condition of otherwise severely altered prior to In particular, it will protect society and ephemeral streams. submittal of the permit application with the environment from the adverse Proposed §§ 780.19(c)(3), a more natural, relatively stable, and effects of surface coal mining 780.20(a)(5)(iv), 784.19(c)(3), and ecologically sound drainage pattern or operations, as provided in paragraph (a); 784.20(a)(5)(iv) included peak flow stream-channel configuration; or assure that surface coal mining baseline data collection and analysis reclaim a previously mined area. operations are conducted so as to requirements for ephemeral streams Proposed §§ 780.28(b)(3) and protect the environment, as provided in within the proposed permit and 784.28(b)(3) provided that, after mining paragraph (d); and strike a balance adjacent areas. The final rule does not through an ephemeral stream, the between environmental protection and include these requirements because this permittee must plant native species the Nation’s energy needs, as provided information is unnecessary for the within a 100-foot corridor on both sides in paragraph (f). Although only certain analysis of the proposed operation’s of the reconstructed stream. Sections requirements apply to ephemeral impacts on flooding that the PHC 780.27(c), 784.27(c), 816.57(d), and streams, as discussed in final rule determination must contain. The 817.57(d) of the final rule adopt this § 780.27, these requirements minimize baseline precipitation data required by requirement with some revisions. The impacts to ephemeral streams. final §§ 780.19(c)(5) and 784.19(c)(5) in streamside vegetative corridor must be combination with the description of the consistent with natural vegetation Proposed §§ 780.19(c)(6) and general stream-channel configuration of patterns. The streamside vegetative 784.19(c)(6) required that the permit ephemeral streams within the proposed corridor requirement would not apply to applicant identify and map all permit area required by final prime farmland or when establishment ephemeral streams within the proposed §§ 780.19(c)(6) and 784.19(c)(6) will of a corridor comprised of native species permit and adjacent areas. Those provide all necessary information would be incompatible with an proposed rules also required that the needed for that analysis, given that approved postmining land use that is applicant describe the physical and ephemeral streams flow only in direct implemented before final bond release. hydrologic characteristics of those response to precipitation events. Establishment of a streamside vegetative streams in detail, as well as any Proposed §§ 780.12(d)(1) and corridor is critical to ensuring associated vegetation in the riparian 784.12(d)(1) required that the backfilling restoration of the nutrient and organic zone if one exists. In addition, they and grading plan in the reclamation matter transport functions of ephemeral required that the applicant assess the plan include contour maps, cross- streams. biological condition of a representative sections, or models that show in detail sample of those ephemeral streams. The the anticipated final surface P. The Rule Should Not Require the Use final rule applies these proposed configuration, including drainage of Multimetric Bioassessment Protocols requirements only to ephemeral streams patterns, of the proposed permit area. To Establish Baseline Ecological Stream within the proposed permit area The final rule adopts those provisions as Function and Stream Restoration because those are the only ephemeral proposed. Final §§ 780.12(b)(3) and Criteria streams that the proposed operation 784.12(b)(3) also provide that the Proposed §§ 780.19(e)(2) and would disturb and for which the reclamation timetable must include 784.19(e)(2) would have required the operation would incur reclamation establishment of the surface drainage use of multimetric bioassessment requirements. Requiring this pattern and stream-channel protocols to assess the baseline information for ephemeral streams configuration approved in the permit, ecological function of perennial, within the adjacent area would be costly including construction of appropriately- intermittent, and ephemeral streams and and time-consuming and would not designed perennial, intermittent, and to establish stream restoration criteria assist the regulatory authority in ephemeral stream channels to replace (i.e., the point at which ecological reviewing the permit application those removed by mining. Proposed function will be considered restored) for because no performance standards §§ 780.28(c)(1) and 784.28(c)(1) required perennial and intermittent streams. apply to ephemeral streams in the that the postmining drainage pattern, Proposed §§ 780.23(c) and 784.23(c) also adjacent area. In addition, the final rule including ephemeral streams, be similar would have required use of these does not include the proposed to the premining drainage pattern, with protocols to monitor the biological requirement for baseline information on limited exceptions. Sections 780.27(b) condition of intermittent and perennial the biological condition of ephemeral and 784.27(b) of the final rule adopt streams during mining and reclamation. streams because no scientifically these provisions in revised form for We received comments both in defensible protocol currently exists for ephemeral streams. They allow support of and in opposition to the use variances from the premining drainage of macroinvertebrate sampling and 92 30 U.S.C.1202. pattern when the regulatory authority associated indexes for those purposes.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93088 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Some comments were general, while In light of the comments received, we protocols. On the positive side, BACI others singled out the use of an index identified and analyzed other options analysis would be specific to each of biological integrity (IBI) for baseline that commenters suggested for assessing permit area or even each particular stream assessment and monitoring the baseline condition of and stream and would allow the regulatory during mining and reclamation when monitoring streams: The Rapid authority to tailor monitoring and discussing support or opposition to this Bioassessment Protocol III (RBPIII), baseline assessment to each permit. This requirement. The proposed rule which is set out in the 1989 EPA could allow for variances from the kind required IBIs to include Publication, ‘‘Rapid Bioassessment of state or regional standard that an IBI macroinvertebrate sampling. The IBIs Protocols for Use in Streams and or other larger-scale protocols might would be used to develop a value that Rivers;’’ the Before-After-Control-Impact impose. BACI analysis could be less would provide an objective measure to design (BACI); and hydrogeomorphic costly than some other approaches describe various ecological sampling protocols. We also considered because the regulatory authority can characteristics found during the field using IBIs that were designed for perform one analysis that evaluates surveys. This value would then be perennial streams to assess the baseline multiple streams, including every compared to an index that is established condition of and monitor intermittent stream in the permit area. Under this for designated uses under the Clean and ephemeral streams (as is kind of analysis one premining Water Act to assess the quality of the occasionally done by Clean Water Act sampling event and additional stream before, during, and after mining. authorities). postmining samplings would result in a This IBI system is a well-tested and Our analysis identified some positive statistically valid analysis. On the robust tool to identify impacts on the attributes of the RBPIII protocol. It negative side, the BACI analysis health of perennial streams. IBIs and would provide a more thorough baseline requires use of control sites. This could other scientifically defensible protocols assessment of the ecological function create a number of problems in the are becoming more widely established and biological condition of the context of SMCRA permits. First, if the for intermittent streams, but are not yet premining site than some other control site is not selected correctly, it widely used across the nation. IBIs and methods. It would demonstrate with could result in a skewed analysis or a other scientifically defensible protocols greater certainty whether or not the situation in which an analysis may not for assessing ephemeral streams have permittee had minimized the adverse be possible after mining is complete. not been widely used to date, and when effects of coal mining on upstream and Second, under this kind of analysis, the they have been, they have been most downstream waters. It is based on sound control sites must remain in their often used to characterize biological scientific principles (quantitative or original condition for the duration of the differences among ephemeral, semi-quantitative designs that can be mining operation. This may not be intermittent, and perennial streams or analyzed statistically). Finally the practicable because those sites might be biological changes with varying RBPIII is relatively easy to use and can beyond the permittee’s control. They hydrological conditions. The proposed be rapidly deployed. However, the also could be affected by activities other rule would have required the RBPIII also has significant drawbacks. It than mining, such as industrialization, establishment of separate IBI protocols would require the regulatory authority logging, or urbanization within the for all three types of streams: Perennial, or the permittee to establish, assess, and watershed. Third, while the BACI intermittent, and ephemeral. monitor a set of reference streams on a protocol may be cheaper than some As discussed in Part IV, section O of permit-by-permit basis. This in turn alternatives, permittees still would this preamble, several commenters would pose an issue of statistical incur additional costs for sampling not criticized our proposal to treat validity: The variability between the only baseline and impacted streams but ephemeral streams in the same manner relatively small number of reference the control streams. Fourth, additional as intermittent and perennial streams. streams and the streams potentially control streams might have to be These commenters strongly encouraged affected by the permitted operation incorporated into the permit area if us to remove requirements to assess the could be great enough to mask enough suitable control streams are not baseline condition of ephemeral streams significant impacts that mining might present in the initially designed permit using bioassessment protocols that have on the affected streams. area. This could lead to additional costs sample macroinvertebrate populations Differences in methodology (e.g., sample and permitting delays. Fifth, control within ephemeral streams. They collection protocols, data analysis, etc.) sites would have to be identified and claimed it would yield no valid data for mean that the RPBIII may not be monitored for each individual permit. assessing the baseline condition of comparable with the scientifically This would increase costs and might SMCRA-related activities and would be defensible protocols such as the IBI that lead to permitting delays. Finally, one of unduly costly. We agree. The final rule we proposed to evaluate perennial the greatest drawbacks of the BACI does not include assessment of streams. Using two different protocols, analysis is that, although it can assess biological condition requirements moreover, would significantly increase large changes to biological condition related to ephemeral streams. time and costs associated with assessing and ecological function, it may miss In addition, commenters suggested the baseline condition of and smaller changes. Indeed, this kind of that there are other scientifically valid monitoring the effects of mining on analysis might not be any more protocols that should be included as streams. Finally, the RBPIII protocol is protective than the previous regulations. options for baseline stream assessment over 20 years old. This in and of itself We found no benefit to using and monitoring. According to these is not a reason to eliminate this hydrogeomorphic protocols. Although commenters, these other protocols are protocol; however, since its first they are easy to implement, they do not also robust, scientifically defensible publication, it has been updated twice require macroinvertebrate sampling. In methods developed and applied by to reflect a focus on national general, they provide no greater benefit states, territories, and tribes. They standardization, not to small-scale than the types of analysis that have been include predictive and discriminant projects as originally designed and its used in connection with our previous modeling approaches. We agree and suggested use by the commenters. regulations. have added these as acceptable methods Our analysis also showed positive and Finally we determined that it is not in the final rule. negative aspects to using the BACI currently appropriate to use protocols

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93089

developed for perennial streams to discussions of §§ 780.19, 780.27, 780.28, regulate activities within streams and assess the baseline condition of and to 816.56, and 816.57 in this preamble. reclamation projects across the United monitor intermittent streams. As States. When consistent with SMCRA, Q. Restoration of the Ecological commenters pointed out, some Clean we incorporated those standards into Function of Perennial and Intermittent Water Act authorities, in the exercise of the final rule. In addition, we analyzed Streams Is Not Possible or Feasible their professional judgment, have the shortcomings of past efforts to occasionally done this. We have Many commenters argued that there is restore streams to determine how this concluded, however, that this approach no scientific support, in the form of rule could improve the results. Recent has not been used enough to justify published peer-reviewed studies, for the literature advocates a watershed requiring it in our rule. proposition that reconstructed streams approach to determining the restoration In sum, after consideration of these can effectively replace streams that capacity of degraded, or potentially other methods, as provided in final existed before mining, especially in degraded, streams.95 This includes §§ 780.19(c)(6)(vii) and 784.19(c)(6)(vii), regard to ecological function and assessing the various resources that we determined that the best technology premining biology. In a similar vein, have been identified as determining currently available for baseline some commenters urged us to prohibit success or failure of previous restoration assessment and monitoring purposes for mining activities within areas in which projects. These include the condition of perennial streams is the use of IBIs or streams occur because stream upstream habitats and water resources, other equally scientifically defensible restoration is unattainable. For example, the potential change in the quality and stream assessment protocols developed one commenter stated: ‘‘[T]he unproven quantity of water present in the stream and applied by states, territories, and ability to fully restore the functions and or the watershed, the amount and type tribes. These other scientifically uses of streams damaged by subsidence of vegetation along the banks and buffer defensible stream assessment protocols necessitates that the rule require zones of streams, the reestablishment would include predictive and avoidance of such damage as a primary potential of appropriate stream channel discriminant modeling approaches, consideration.’’ According to habitat within the reconstructed stream such as those in place in many western commenters, we did not provide to recolonize the stream via emigration, states. The final rule requires use of sufficient evidence that the ecological the potential for the adjacent streams these methods and protocols for all condition of streams could be restored and upstream habitats to serve as a perennial streams within and adjacent with the available technology and source for emigration into the to the proposed permit area. Some states science. They alleged that our rule reconstructed stream (i.e., the species and regions have developed indices of created an impossible standard of pool for successful recolonization), and biotic integrity or bioassessment reclamation, a standard that had not the return of naturally occurring leaf protocols for intermittent streams. In been demonstrated to be achievable by litter and other organic matter to the those instances, final §§ 780.28(g)(3)(iii) operators or enforceable by regulatory area. and 780.19(c)(6)(vii) and their authorities. This final rule improves our stream counterparts in §§ 784.28 and 784.19 Some industry commenters agreed assessment and restoration requirements require use of those protocols to assess that full restoration of perennial and and analyzes these resources listed in the baseline condition of and to monitor intermittent streams is not attainable. the above paragraph, beginning at the intermittent streams. Requiring these According to those commenters, we application process. Upstream habitat types of baseline assessments and should not adopt a rule that establishes and water quantity and quality will be monitoring protocols instead of the an unattainable standard. assessed as part of the baseline data RBPIII, BACI, hydrogeomorphic We agree that full restoration of the required in a permit application. Under protocols, and instead of using biology and ecological function of the final rule, streambank and buffer perennial stream indices for intermittent mined-through streams is not always zone vegetation will receive greater and ephemeral streams will encourage possible and that restoration of those protection or restoration, including the further development of scientifically streams has often fallen short of goals. using native species (i.e., naturally defensible methods and protocols. However, our experience indicates that occurring leaf litter and other organic We realize, however, that at present restoration of impaired streams is matter). The implementation of the final few scientifically defensible protocols possible after mining. Streams that were have been established for not attaining their designated aquatic 95 Barbara Doll, et al., Identifying Watershed, bioassessments of intermittent streams. life use have been shown to improve Landscape, and Engineering Design Factors that In the final rule, we do not require that enough, through restoration techniques, Influence the Biotic Condition of Restored Streams. SMCRA regulatory authorities develop to be removed from the section 303(d) 93 Water, 8(4), p.151 (2016). list of impaired waters.94 Derek B. Booth, et al., Integrating Limiting-Factors new protocols for this purpose, but we Analysis with Process-Based Restoration to Improve do require them to reevaluate the best In addition, standards to assess and Recovery of Endangered Salmonids in the Pacific technology currently available for monitor ecological function are both Northwest, USA. Water, 8(5), p.174 (2016). intermittent streams every 5 years and established and currently in use to Eric R. Merriam & J. Todd Petty, Under siege: Isolated tributaries are threatened by regionally make any appropriate adjustments to impaired metacommunities. 560 Science of The account for new protocols that may have 93 33 U.S.C. 1313(d). 94 Total Environment, 170–178 (2016). been developed. See See generally, U.S. Environmental Protection Agency. Nonpoint Source Success Stories, U.S. Moritz Leps et al., 2016. Time is no healer: § 780.28(g)(3)(iv)(B). Until scientifically Environmental Protection Agency Web page found Increasing restoration age does not lead to defensible protocols are developed for at https://www.epa.gov/polluted-runoff-nonpoint- improved benthic invertebrate communities in source-pollution/nonpoint-source-success-stories. restored river reaches. 557 Science of The Total intermittent streams, we are requiring Environment, 722–732 (2016). baseline assessment and monitoring of (last accessed October 5, 2016). U.S. Environmental Protection Agency. 2011. Document Jennifer J. Follstad Shah et al., 2007. River and these streams using a description of the #EPA841-R-11-003. FY2010 Assessment of riparian restoration in the Southwest: Results of the water quality, water quantity, stream Improving and Recovered Waters with Total National River Restoration Science Synthesis channel configuration, a quantitative Maximum Daily Loads (TMDLs). Office of Water, Project. 15 (3) Restoration Ecology, 550–562 (2007). U.S. Environmental Protection Agency, Washington S.W. Miller et al., 2010. Quantifying assessment of the streamside vegetation, DC. Available online at http://water.epa.gov/ Macroinvertebrate Responses to In-Stream Habitat and an initial cataloging of the stream lawsregs/lawsguidance/cwa/tmdl/results_index.cfm Restoration: Applications of Meta-Analysis to River biota. For further detail, please see our 4 pp. Restoration. 18(1) Restoration Ecology, 8–19 (2010).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93090 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

rule will also increase the amount of We recognize that stream restoration the best technology currently available reforested habitat, which should and creation is an emerging area of to protect fish, wildlife, and related improve watershed quality. Baseline scientific study and that in some cases environmental values from the adverse data will contain information on the reconstruction of functional stream impacts of coal mining is a prohibition streams potentially affected by the channels on mined land can be difficult. on mining in or within 100 feet of a proposed operation, including It may be impossible in some cases to perennial or intermittent stream. The bioassessments of perennial and some precisely mirror the ecological function commenters recognize that such a intermittent streams that regulatory that was there before mining. However, prohibition would reduce minable authorities can use to determine the as we have just discussed, that is not acres, but they contend it is reasonable potential of these streams to provide what our rule requires. We also note, and practicable, given the decline in the biological emigrants (plants, animals, however, that one of the purposes of demand for coal resources. fungi, etc.) to reconstructed segments of SMCRA is to ensure that ‘‘surface The preamble to our proposed rule connected streams. This is not to say mining operations are not conducted discusses the history of the 1983 stream that the reclamation of all streams is where reclamation as required by this buffer zone rule in significant detail (see now possible or will now become a Act is not feasible’’ and that SMCRA 80 FR 44447–44451, Jul. 27, 2015). It timely and precise exercise; careful therefore requires a permit applicant to includes the following statement: consideration will need to be taken to demonstrate that ‘‘reclamation as ‘‘Historically, we and some state understand the potential for restoration required [by SMCRA] and the State or regulatory authorities applied the 1983 of each stream, and the economic and Federal program can be accomplished stream buffer zone rule in a manner that biological cost associated with these under the reclamation plan contained in allowed the placement of excess spoil determinations. the permit application[.]’’ If analysis of fills, refuse piles, slurry impoundments, This final rule is intended to increase the baseline data and other information and sedimentation ponds in intermittent protection or restoration of perennial in the application indicates restoration and perennial streams within the permit and intermittent streams and related of a stream cannot be accomplished area.’’ The specific language of the 1983 environmental resources, as well as to through use of conventional mining and rule allowed the regulatory authority to ensure that permittees and regulatory reclamation technology, the applicant authorize mining activities within the authorities make use of advances in will need to adjust the proposed stream buffer zone upon finding that science and technology. The final rule operation and reclamation plan to either ‘‘[s]urface mining activities will not provides that restoration of ecological avoid that stream or take other measures cause or contribute to the violation of applicable State or Federal water quality function does not mean that the restored (e.g., the construction of aquitards in the standards, and will not adversely affect stream must precisely mirror the backfill) to ensure restoration of a the water quantity and quality or other premining condition. For example, as stream’s water quality and quantity and environmental resources of the stream.’’ section 780.28(g)(3)(ii)(A) of our final aquatic life after the completion of As discussed in the preamble, that rule states, a demonstration of mining. provision has been subject to numerous ecological function does not require that R. We Should Apply the 1983 Stream court challenges and was substantially the reconstructed stream have precisely Buffer Zone Rule To Effectively Prohibit revised by the now-vacated 2008 stream the same biological condition or biota as Mining Activities Within 100 Feet of buffer zone rule. The 1983 rule will the stream segment did before mining. Streams remain the standard applied by state This is consistent with current, Numerous commenters urged us to regulatory authorities until the scientifically defensible bioassessment promulgate a rule consistent with their provisions of our final rule have been protocols used throughout a wide range interpretation of the 1983 stream buffer adopted by those individual regulatory of regulatory arenas, which allow for a zone rule as prohibiting all mining programs. natural range in variation of reference activities in or within 100 feet of a While we have not adopted a strict sites to which the assessments are perennial or intermittent stream. They prohibition standard for mining 96 compared. These bioassessment argued that the proposed rule weakens activities within the stream buffer zone, protocols use genus-level identification this interpretation of the 1983 rule by we have in our final rule required that counts of macroinvertebrates to ‘‘placing more emphases on mitigation certain conditions be met in order for determine biological condition, where of impacts on streams than on the regulatory authority to authorize available, and to calculate values protection and prevention.’’ They claim such activities. The final rule allows derived from measures such as species that the lack of science on successful mining activities in or within 100 feet richness, composition, tolerance, restoration of stream form and function of an intermittent or perennial stream feeding, and habitat measures that renders the proposed rule less only if the permit applicant makes determine stream quality. Assessment of protective than their interpretation of certain demonstrations and the the biological condition of these streams the 1983 rule and allows for the regulatory authority makes certain is based on these values, not directly on continued destruction of streams. Other findings. When the applicant proposes the species that were first sampled. This commenters maintain that the proposed to mine through a perennial or an change allows for some variation from rule is inconsistent with section intermittent stream, these required the initial stream compared to the 515(b)(24) of SMCRA,97 which requires, findings include the ability of the reconstructed stream as long as the in relevant part, that, to the extent permittee to actually restore the form, reconstructed stream is within a suitable possible, surface coal mining and hydrologic function, and ecological range according to the results of the reclamation operations use the best function of the stream as part of the bioassessment protocol used. technology currently available to reclamation process. We intend these minimize disturbances and adverse requirements to ensure that the 96 For example: Michael T. Barbour et al. Rapid impacts of the operation on fish, reconstructed stream will actually have bioassessment protocols for use in wadeable wildlife, and related environmental sufficient base flow, water quality, and streams and rivers. Periphyton, Benthic Macroinvertebrates, and Fish (2nd edn.). U.S. values. According to the commenters, an aquatic community similar to that Environmental Protection Agency, Office of Water, which existed prior to mining. As Washington, DC EPA (1999). 97 30 U.S.C. 1265(b)(24). discussed more comprehensively in

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93091

final rule § 780.28, in general, mining In general, we drafted the final rule This discussion refers to previous, activities in, through, or adjacent to using plain language principles, existing, proposed, and final rules and perennial or intermittent streams must consistent with section 501(b) of regulations. In general, we use not: cause or contribute to a violation of SMCRA, 30 U.S.C. 1251(a), which ‘‘previous’’ when we refer to regulations water quality standards; cause material provides that regulations must be that will no longer exist once this final damage to the hydrologic balance ‘‘concise and written in plain, rule is effective. We use ‘‘existing’’ to outside the permit area; result in understandable language,’’ and describe regulations that are unaffected conversion of a stream segment from Executive Order 13563, which provides by this rulemaking. ‘‘Proposed’’ perennial to intermittent, perennial to that our regulatory system ‘‘must ensure regulations are the regulations set forth ephemeral, or intermittent to ephemeral; that regulations are accessible, in our July 27, 2015, proposed rule. The and must be designed to minimize consistent, written in plain language, term ‘‘final’’ refers to the regulations adverse impacts on fish, wildlife and and easy to understand.’’ 98 In addition, that we are adopting today, including related environmental values to the a June 1, 1998, Executive Memorandum existing regulations that are extent possible using the best on Plain Language in Government redesignated in this rulemaking. technology currently available. 99 Writing requires the use of plain A. Part 700—General The final rule allows burial of language in all proposed and final intermittent or perennial streams with rulemaking documents published after Section 700.11: What coal exploration excess spoil or coal mine waste only if January 1, 1999. The Office of the and coal mining operations are subject the permit applicant demonstrates and Federal Register also encourages the use to our rules? the regulatory authority finds that the of plain language in writing regulations, Final Paragraph (d): Termination and loss of resources associated with the as set forth in detail at Reassertion of Jurisdiction burial of a stream will be offset through www.plainlanguage.gov and associated We proposed to revise § 700.11(d) to fish and wildlife enhancement measures links. add clarity to the regulations, to commensurate with the magnitude of Plain language requirements vary the adverse impacts from burial of the conform them with proposed revisions from one document to another, to 30 CFR part 800 concerning financial stream. In addition, the area where depending on the intended audience. proposed enhancement activities are to assurances for treatment of long-term Plain language documents have logical discharges, and to add provisions occur must be incorporated into the organization and easy-to-read design permit and bonded for reclamation. In consistent with a court decision that features like short sections, short resulted from a previous rulemaking. approving a plan that provides for the sentences, tables, and lots of white appropriate level of enhancement, the The rationale for the proposed revisions space. They use common everyday is set forth at 80 FR 44436, 44466–44467 regulatory authority also must establish words (except for necessary technical standards for determining when (Jul. 27, 2015). We received no terms), pronouns, the active voice, and comments specific to proposed reclamation bonds can be released for a question-and-answer format when such areas. This regulatory approach paragraphs (d)(1) and (4), so they are not feasible. discussed below. ensures that the desired results are The final rule text and preamble use actually achieved, and, if they are not, the pronouns ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ to Final Paragraph (d)(2): Termination of the regulatory authority will be in a refer to OSMRE, and the pronouns ‘‘I,’’ Jurisdiction for Permanent Regulatory position to use the proceeds from ‘‘you,’’ and ‘‘your’’ to refer to a permit Program Sites forfeiture of the reclamation bonds to applicant or permittee. We avoid use of One commenter expressed concern accomplish the desired objective of the the word ‘‘shall’’ in the rule text and that replacement of the term approved reclamation plan. preamble, except in quoted material. ‘‘increment’’ with ‘‘portion’’ in the V. Explanation of Organizational Instead, we use ‘‘must’’ to indicate an introductory language of paragraph Changes and Plain Language Principles obligation, ‘‘will’’ to identify a future (d)(2) implies that a permittee may The final rule includes organizational event, and ‘‘may not’’ to convey a apply for bond release on a portion of changes for clarity. Those changes serve prohibition. a permit that has not been separately several purposes, including— VI. How do our final regulations differ bonded as an increment. According to • Breaking up overly long sections from our proposed regulations? the commenter, bonds and jurisdiction and paragraphs into multiple shorter apply to the entire permit or to the sections and paragraphs for ease of Except as otherwise discussed in the permit increment for which bond is reference and improved comprehension. preamble to this final rule, we are posted. The commenter stated that our • Renumbering sections in the adopting the regulations as proposed on permitting, bonding, and termination of underground mining rules to align their July 27, 2015, for the reasons set forth jurisdiction regulations need to use the numbering with the corresponding in the preamble to the proposed rule. In same terminology so that regulators and sections in the surface mining rules. this portion of the preamble to the final the public can easily discern which This change improves ease of reference rule, we explain our responses to the sections of a mine are active or in and the user-friendliness of our rules. comments that we received on the text reclamation and which sections are • Moving permitting requirements of the proposed regulations. We also eligible for release and eventual from subchapter K (performance discuss how we revised the proposed termination of jurisdiction. standards) to subchapter G to regulations in response to those Our regulations restrict termination of consolidate permitting requirements in comments and other considerations. jurisdiction to those areas for which subchapter G. However, in general, we do not discuss bond has been fully released, but • Restructuring subchapter G to better syntax improvements, plain language otherwise, we do not agree that our distinguish between baseline changes, and other revisions of a minor permitting, bonding, and termination of information requirements and nature. jurisdiction regulations must use the reclamation plan requirements. same terminology or that the boundaries • Removing redundant, suspended, 98 76 FR 3821 (Jan. 21, 2011). of each original permit increment must and obsolete provisions. 99 63 FR 31883–31886 (Jun. 10, 1998). remain inviolate. Under § 800.13(b),

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93092 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

with the approval of the regulatory the permittee having an eternal jurisdiction is required only if all three authority, we have always allowed possibility of reassertion of jurisdiction. factual situations identified in clearly defined portions of the permit Several commenters asserted that paragraphs (d)(3)(i) through (iii) exist. area requiring extended liability to be SMCRA provides no authority for the Paragraph (d)(3)(i) specifies that the separated from the original area and assertion of jurisdiction over mining conditions that develop after bonded separately. The change in operations that have obtained bond termination of jurisdiction must terminology from ‘‘increment’’ to release. constitute a violation of the reclamation ‘‘portion’’ in our termination of These comments reflect a perspective requirements of the applicable jurisdiction regulations as part of this on the principle of reassertion of regulatory program. Paragraph (d)(3)(ii) final rule is consistent with both the jurisdiction under SMCRA, which is specifies that the conditions that language and approach outlined in now a matter of settled law. In 1991, the develop after termination of jurisdiction § 800.13(b). The public should have no U.S. Court of Appeals for the District of must be the result of surface coal mining difficulty identifying the portions of the Columbia Circuit upheld the 1988 operations for which jurisdiction was permit area for which bond has been termination of jurisdiction rules at 30 terminated. The addition of paragraphs released and jurisdiction has been CFR 700.11(d), which include a similar (d)(3)(i) and (ii) is consistent with the terminated because § 800.13(b) requires provision requiring reassertion of preamble to the 1988 rules, which that the boundaries of each portion be jurisdiction under specified provides that ‘‘it would not be clearly defined. circumstances. See Nat’l Wildlife Fed’n appropriate for the regulatory authority One commenter opposed the v Lujan, 950 F.2d 765, 770 (D.C. Cir. to reassert jurisdiction under the proposed revisions to this paragraph 1991). Specifically, with respect to the approved program’’ if ‘‘the problem was because, in the commenter’s opinion, reassertion of jurisdiction under not caused by the permittee’s violation they would require that, even in SMCRA, the court held that: of the regulatory program.’’ 101 primacy states, bond release and Several commenters asserted that termination of jurisdiction be based The question is whether the effect of the paragraph (d)(3) would require regulation comports with the statutory upon 30 CFR part 800 rather than the scheme. We believe that it does in light of the reassertion of jurisdiction on sites where provisions of the applicable regulatory language of the regulation and the third-party disturbances created the program. That was not the intent of our interpretation provided in both the preamble conditions resulting in the need for proposed revisions. To avoid this and the Secretary’s brief here. reassertion of jurisdiction. The rule does misinterpretation, final paragraph The preamble adopts an objective standard, not require reassertion of jurisdiction (d)(2)(ii) provides for termination of stating that jurisdiction must be re-asserted when the impact is a result of a third- jurisdiction whenever the regulatory whenever ‘‘any reasonable person could party disturbance. Instead, the rule authority has made a final decision to determine’’ that fraud, collusion or applies only to impacts resulting from fully release the performance bond or misrepresentation had occurred. [53 FR the mining operation. We have added financial assurance in accordance with 44359] (1988). The Secretary’s brief not only language at paragraph (d)(3)(ii) that adopts this standard but also clarifies its the applicable regulatory program. The scope: clarifies this point. revised language is similar to the One commenter opposed the rule It is important to note in this connection that because it provides no discretion to the language of paragraph (d)(2)(i) in this the filing of an application for bond release respect. is in itself a representation that the operator regulatory authority in deciding The commenter also alleged that has satisfied his reclamation obligations whether to reassert jurisdiction and proposed paragraph (d)(2)(ii)(B), which since an operator is not entitled to release does not provide an endpoint for concerns sites with postmining from the bond unless he has met those reassertion of jurisdiction. The final rule discharges requiring long-term obligations. . . . If an operator applies for that we are adopting today, like the treatment, provided confirmation that release but has not fulfilled his obligations, proposed rule and the 1988 rule, does we intend to retain jurisdiction in he is guilty of misrepresentation by the very not provide discretion to the regulatory perpetuity. That was not the intent of fact of making an application. authority or an endpoint (equivalent to the proposed provision, but we Brief for the Secretary at 27 n.11. This is a statute of limitations) because neither understand how it could be a reasonable way of implementing the Act’s is appropriate if bond release and misinterpreted. We have determined condition ‘‘[t]hat no bond shall be fully termination of jurisdiction were based that proposed paragraph (d)(2)(ii)(B) is released until all reclamation requirements of upon fraud, collusion, or this chapter are fully met.’’ 30 U.S.C.[] unnecessary because it essentially 1269(c)(3). The condition implies that after misrepresentation of a material fact. duplicates § 800.18(i) and because reclamation requirements are met, the bond One commenter alleged that adding proposed paragraph (d)(2)(ii)(A) refers may be ‘‘fully released.’’ Id. When it turns ‘‘intentional or unintentional’’ as an to financial assurances as well as out that the operator had in fact not fulfilled adjective modifying ‘‘material performance bonds. Therefore, we are its reclamation obligations at the time of misrepresentation of a material fact’’ not adopting proposed paragraph release, the Secretary’s interpretation of would increase long-term liability and (d)(2)(ii)(B). Final paragraph (d)(2)(ii) ‘‘misrepresentation’’ ensures that jurisdiction result in additional litigation by ‘‘shall’’ be reasserted. 30 [CFR] nongovernmental organizations, as includes only proposed paragraph 100 (d)(2)(ii)(A) and is renumbered to 700.11(d)(2). would the provision requiring accommodate the removal of proposed Therefore, we made no changes in reassertion of jurisdiction for paragraph (d)(2)(ii)(A). response to these comments. postmining discharges requiring However, final paragraph (d)(3) differs treatment. Neither of the added Final Paragraph (d)(3): Reassertion of provisions represents a substantive Jurisdiction somewhat from the proposed rule in that we added paragraphs (d)(3)(i) and change in policy or regulation. Several commenters opposed this (ii) and placed most of proposed Therefore, we find no basis for the paragraph as unreasonable. Others paragraph (d)(3) in paragraph (d)(3)(iii). commenter’s allegation. Another alleged that it was illegal because it Under the final rule, reassertion of commenter opposed adding ‘‘intentional would apply retroactively. Others or unintentional’’ as a modifier for alleged that it would be inconsistent 100 Nat’l Wildlife Fed’n v. Lujan, 950 F.2d 765, with SMCRA because it would result in 770 (D.C. Cir. 1991). 101 53 FR 44356, 44359 (Nov. 2, 1988).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93093

‘‘misrepresentation of a material fact,’’ would depend upon whether the reclamation misrepresentation of a material fact. alleging that it was unnecessary. This failure was caused by a violation by the Clerical errors and other minor mistakes 102 phrase is helpful to clarify operator of the regulatory program. would not meet this threshold because circumstances to which it can be The regulatory authority inquiry to they would not be considered applied and better informs the reader of which this paragraph refers may be the misrepresentation of a material fact. The how the rule is to be interpreted and result of information supplied by the adjective ‘‘material’’ means the fact applied. No changes have been made as public, information gleaned from the must be critical to the decision to in response to these comments. news media, or observations by release bond. In other words, Several commenters alleged that regulatory authority personnel in the misrepresentation of a material fact adoption of the provisions discussed in course of inspecting nearby mine sites. refers to a situation in which, in the the preceding paragraph would mean One commenter asked whether the absence of the misrepresentation, the that a permittee would never have the permittee or the regulatory authority regulatory authority would not have certainty that it has fulfilled all would be required to conduct water released the bond. However, in response obligations for a permitted site. sampling on sites for which bond has to these and other comments, we have According to the commenters, this been fully released. The answer is no. added paragraphs (d)(3)(i) and (ii) to result would infringe upon the There is no authority under SMCRA to specify that reassertion of jurisdiction is permittee’s ability to conduct business impose such a requirement. In addition, required only when conditions exist and could adversely impact the it would defeat one of the purposes of that would constitute a violation of the availability of surety bonds. As termination of jurisdiction; i.e., to reclamation requirements of the discussed in the preceding paragraph, determine when monitoring and applicable regulatory program and those neither of the added provisions inspection under SMCRA are no longer conditions are the result of surface coal represents a substantive change in necessary. mining operations for which policy or regulation. Therefore, we have One commenter implied that the rule jurisdiction was terminated. This no reason to anticipate that the outcome should specify that the need for limitation is consistent with the feared by the commenter will develop. reassertion of jurisdiction will be preamble to the 1988 rules, which Even if it did, that outcome would not determined using only the bond release provides that ‘‘it would not be justify allowing a termination of standards in effect at the time of appropriate for the regulatory authority jurisdiction based on fraud, collusion, termination of jurisdiction. We find that to reassert jurisdiction under the or misrepresentation of a material fact to no such provision is necessary because approved program’’ if ‘‘the problem was stand if the mining operation has the rule already provides that not caused by the permittee’s violation resulted in a situation that constitutes a reassertion of jurisdiction is required of the regulatory program.’’ 103 only if the regulatory authority becomes violation of SMCRA or the applicable Two commenters asserted that the aware that the bond release was based regulatory program. rule is unnecessary because some states One commenter opined that the rule upon fraud, collusion, or the intentional have a fund to address post-bond release would penalize successful operators or unintentional misrepresentation of a problems. We find that this comment is because operators exiting the coal material fact. This sentence refers to not germane because, in 1988, we business would not be subject to this decisions in which the regulatory determined that there was a need for a rule. Both the 1988 rule and this final authority released bond fully but would rule providing for both termination of rule apply to the permittee in existence not have done so if the information jurisdiction and reassertion of at the time of termination of provided by the permittee had not been jurisdiction. The proposed rule did not jurisdiction. If reassertion of jurisdiction tainted by the fraud, collusion, or propose to alter that determination nor is necessary, the regulatory authority misrepresentation of a material fact at did we request comment on that must require that the permittee that time. Paragraph (d)(3) neither possibility. implement corrective measures mentions nor provides a basis for One commenter suggested that, in lieu regardless of whether the permittee has reasserting jurisdiction whenever the of adopting this rule, we establish a exited the coal business. regulatory authority adopts revised Similarly, another commenter bond release criteria. Unless otherwise fund similar to the Abandoned Mine expressed concern that the regulatory specified in the rulemaking adopting Reclamation Fund that would cover authority might be held responsible if those criteria, the revised criteria would problems that arise after termination of the permittee could not be located or apply only prospectively. In any event, jurisdiction. We have no authority to was no longer a viable business entity. they could not be used to reassert establish such a fund or assess the fees Nothing in the proposed or final rules jurisdiction over permits with bond that would be required to operate it. would support this outcome. released before the effective date of the One commenter took issue with the One commenter asserted that the revised criteria because the adoption of statement in the preamble to the proposed rule is unworkable because it revised bond release criteria would not proposed rule at 80 FR 44436, 44467 is not clear how it will be enforced. The be considered fraud, collusion, or that the intentional or unintentional final rule will be implemented in the misrepresentation of a material fact. misrepresentation of a material fact same manner as the 1988 rules. The Several commenters opposed includes the ‘‘subsequent discovery of a preamble to the 1988 rules provides the paragraph (d)(3) because, in their view, discharge requiring treatment.’’ The following explanation of how the it would require reassertion of commenter noted that this language regulatory authority may become aware jurisdiction for any error or mistake in differs slightly from the proposed text of of a situation involving fraud, collusion, a document submitted as part of the the regulation, which did not use the or the intentional or unintentional bond release process, no matter how term ‘‘subsequent’’. According to the misrepresentation of a material fact: minor the error or mistake. We disagree. commenter, reassertion of jurisdiction Both the 1988 rule and final paragraph for a discharge that was undiscoverable Liability under the approved program for a at the time of the application for bond failure of reclamation, however, may be the (d)(3) require reassertion of jurisdiction subject of a Secretarial or regulatory authority only for fraud, collusion, or release would be inconsistent with inquiry or a civil suit in the courts pursuant to section 520 of the Act. Such liability 102 53 FR 44356, 44358 (Nov. 2, 1988). 103 Id. at 44359.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93094 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

language and reasoning in NWF v. reassertion of jurisdiction. Although not mining and reclamation operations, not Lujan. expressly stated in the preamble, we just surface coal mining and reclamation We do not agree. Nothing in the court would anticipate that reassertion of operations. The comments that we did decision says that the discharge must be jurisdiction would be required under receive generally opposed this discoverable at the time of bond release the 1988 rule if the questions are extension. One commenter alleged that to be considered a misrepresentation of answered in the affirmative. Therefore, including coal exploration in the a material fact. Instead, the court we find no inconsistency between the termination of jurisdiction rules would decision focuses on section 519(c)(3) of 1988 preamble and our final rule. For impose an undue burden on operators SMCRA,104 which, in relevant part, added clarity, as discussed below, we and regulatory authorities and would provides that ‘‘no bond shall be fully have revised the pertinent sentence in discourage future exploration. Another released until all reclamation the proposed rule by adding a proviso commenter noted that SMCRA provides requirements of the Act are fully met.’’ that reassertion of jurisdiction is only minimal requirements for coal We anticipate that there would be very required only if the conditions creating exploration and that it neither mandates few cases in which a discharge was not the need for treatment of the discharge inspections nor notification of citizens discoverable at the time of bond release. are the result of the mining operation. or opportunity for citizens to comment However, should an unanticipated In final paragraph (d)(3)(iii), we upon or appeal critical regulatory mining-related discharge requiring removed the phrase ‘‘if it is decisions on coal exploration. treatment develop after bond release, demonstrated that’’ found in (d)(3) in According to the commenter, the issue the final rule would require reassertion the proposed rule. The language in the of when SMCRA jurisdiction terminates of jurisdiction because the conditions proposed rule is somewhat confusing in the context of coal exploration rarely resulting in formation of the discharge because it did not address what a arises. The commenter suggested that it were present at the time of bond release. demonstration must include or who might be appropriate to leave this issue Therefore, development of a discharge must make the demonstration. The to the discretion of individual requiring treatment after bond release preamble to the proposed rule describes regulatory programs. means that the permittee’s certification proposed paragraph (d)(3) as meaning After evaluating the comments, we that all reclamation requirements were that ‘‘the regulatory authority must have decided not to proceed with our met ultimately proved to be a reassert jurisdiction if the termination proposal to revise § 700.11(d) to apply misrepresentation of a material fact. was based upon fraud, collusion, or to coal exploration. Our regulations at One commenter opposed our misrepresentation of a material fact.’’ 106 Part 772 do not require a permit or proposed addition of the sentence The language of the final paragraph regulatory authority approval for coal establishing discovery of a discharge (d)(3)(iii) more effectively conveys this exploration unless the exploration requiring treatment of parameters of meaning. In addition, it is consistent involves the removal of more than 250 concern after termination of jurisdiction with the preamble to the 1988 rule, tons of coal or will take place on lands as a misrepresentation of material fact. which states that the regulatory designated as unsuitable for surface coal According to the commenter, addition authority would have to reassert mining operations. Therefore, there are of this sentence would be inconsistent jurisdiction ‘‘[i]f following final bond no permit boundaries or defined with the preamble to the 1988 rule, release, any reasonable person could endpoints. In the absence of a permit, which states that the discovery of an determine that the bond release was there is no bond, so bond release cannot acid seep subsequent to bond release based upon fraud, collusion, or a be used as a determinant for termination would not automatically require misrepresentation of a material fact at of jurisdiction. As one commenter reassertion of jurisdiction: the time of release. . . .’’ 107 suggested, we will rely upon the [T]he occurrence of an acid seep In paragraph (d)(3)(iii), we also discretion of each regulatory authority subsequent to bond release does not, by revised the language in proposed to determine when termination of itself, establish the cause of the seep, whether paragraph (d)(3) pertaining to the jurisdiction is appropriate for coal reclamation had been completed, whether discovery of discharges requiring exploration. intervening events occurred, or the treatment by deleting the reference to 105 B. Part 701—Permanent Regulatory circumstances surrounding bond release. mining-related parameters of concern Program There is a distinct difference between and by adding a proviso that the the situation described in the 1988 conditions creating the need for Section 701.5: Definitions preamble and the sentence that we treatment must be the result of the Acid Drainage or Acid Mine Drainage proposed to add to our rules and that we mining operation. The revised language are adopting in revised form as part of focuses simply on whether the A commenter asserted that normal this final rule. The sentence in our discharge requires treatment and rainfall can have a pH of less than 6.0 proposed and final rules applies to a whether the need for treatment is a as a result of the presence of carbon discharge for which a treatment need result of the mining operation. There is dioxide in the atmosphere. In addition, has already been established, while the no need for use of the new term the commenter claimed that, seep cited in the 1988 preamble is a ‘‘parameters of concern’’ in this context. historically, some of the lowest pH in newly discovered seep for which there rainfall occurs over the Appalachian has been no determination whether the Coal Exploration Region, where, in 2012, pH reported in seep is a discharge that will require We received a few comments in proximity to the intersection of West treatment or whether it is the result of response to our statement in the Virginia, Pennsylvania, and Ohio, was the surface coal mining operations for preamble to the proposed rule that we approximately 4.5 based on National which jurisdiction was terminated. As intended to correct an oversight in the Trends Network trend maps between noted in the preamble, these factual 1988 final rule text by applying the 1986 and 2012. The commenter also questions need to be answered before a termination of jurisdiction provisions to opined that assigning a pH level of less determination can be made on coal exploration and surface coal than 6.0 was arbitrary and could result in a situation where acid rainfall in 104 30 U.S.C. 1269(c)(3). 106 80 FR 44436, 44467 (Jul. 27, 2015). some regions could cause an operator to 105 53 FR 44356, 44361 (Nov. 2, 1988). 107 53 FR 44356, 44359 (Nov. 2, 1988). be in violation of the rule. We reject the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93095

commenter’s arguments for a number of change as overly expansive. After rule, and noted that it should instead be reasons. First, we did not arbitrarily evaluating those comments, we have based on the hydrologic regime. As select the pH value used in our decided not to make the proposed pointed out by several commenters, the definition of acid drainage or acid mine change. We agree that collection of angle of draw is a term more appropriate drainage, and it is not a new baseline data from the area in which for defining the limits of surface specification in this rule. The definition impacts are reasonably probable will subsidence impacts that could occur for acid drainage was codified in our provide sufficient basis for evaluation of adjacent to an area of high extraction regulation in March, 1979. In the the permit application and design of the mining. Commenters pointed out that preamble to that regulation, we proposed operation. Similarly, we agree hydrologic impacts to surface water and explained that we selected a pH of less with the commenters that limiting groundwater related to dewatering than 6.0 for the definition because the monitoring outside the permit area to caused by high extraction mining may U.S. Environmental Protection Agency the area in which impacts are extend significantly beyond the limits of set that level as the minimum for its reasonably probable will provide direct subsidence impacts as measured effluent limitations and because pH sufficient data to detect and evaluate the by the angle of draw. Therefore, these values outside the range of 6.0–8.5 in impacts of mining and reclamation in a commenters suggested we adopt a term natural waters are indicative of stress.108 timely manner. Expanding baseline data that more accurately addresses the Second, our definition contains another collection and monitoring to areas in potential limits of dewatering. We condition that must be met before we which impacts are reasonably possible, acknowledge that dewatering impacts consider water draining from a mining but not reasonably probable, would may extend beyond the limits defined area with a pH of less than 6.0 to be acid increase cost with little benefit. by the angle of draw; therefore, we are drainage or acid mine drainage: total As we explained in the preamble to replacing the term ‘‘angle of draw’’ with acidity must exceed total alkalinity. the proposed rule, the definition of the term ‘‘angle of dewatering’’. As the Sometimes a stream under natural ‘‘adjacent area’’ depends on the nature commenters recognized, the actual zone conditions can have pH values of less of the resource and the context in which of hydrologic impacts to surface water 110 than 6.0, but its acidity will not exceed the regulations use the term. In and groundwater caused by subsidence its alkalinity. In addition, an applicant response to a comment from another induced dewatering will be highly site reports baseline data, including pH federal agency, we modified final specific depending of lithology, depth of level, for both groundwater and surface paragraph (1) to clarify that, in the coal seam, aquifer characteristics and water as part of the permit application context of the Endangered Species Act, the extent to which groundwater required by final rule § 780.19. This ‘‘adjacent area’’ includes areas outside contributes to surface flow of streams. baseline data provides site specific of the proposed or actual permit area Due to the variability of these impacts information to the regulatory authority where surface coal mining operations or and the site specific nature of the data so that rainfall impacts or other existing underground mining activities may needed to accurately determine the conditions affecting the pH of water at affect a species listed or proposed for angle of dewatering we are not placing the site are known prior to mining. listing as endangered or threatened, or a specific limits on this area; instead, we Thus, we decline to make changes to the having designated or proposed critical are defining the term ‘‘angle of definition based on this comment and habitat under the Endangered Species dewatering’’ to mean, ‘‘the angle created are adopting the proposed rule Act. This modification, found at final from a vertical line drawn from the definition without modification. rule paragraph (1)(ii), is to ensure outer edge or boundary of high- protection is extended to proposed or extraction underground mining Adjacent Area listed species under the Endangered workings and an oblique line drawn As discussed in the preamble to the Species Act, as well as proposed or from terminus of the vertical line at the proposed rule, we proposed to modify designated critical habitats listed under mine floor to the farthest expected our existing definition of ‘‘adjacent the Endangered Species Act that may be extent that the mining will cause area’’.109 See 80 FR 44467–44468 (Jul. impacted by the proposed mining dewatering of groundwater or surface 27, 2015). After evaluating the activity. Any impact to a proposed or water.’’ This definition,111 or similar comments we received, we are adopting listed species or proposed or designated variations, has been in use for many the definition as proposed, with critical habitat, whether adverse or years, and is commonly used in defining exceptions. beneficial, should be included within First, we proposed to revise the basic the definition of adjacent area. the potential impact area for stream definition of ‘‘adjacent area’’ to We have also made a change to dewatering and other adverse impacts to encompass the area outside the paragraph (b) of the proposed definition surface water and groundwater. proposed or actual permit area when of ‘‘adjacent area,’’ now final paragraph We also received several comments there is a reasonable ‘‘possibility’’ of (2). This paragraph clarifies the previous on this proposed definition that we are adverse impacts from surface coal definition by specifying that the not adopting. A couple of commenters mining operations or underground adjacent area includes the area of expressed concern regarding the mining activities, as determined by the probable impacts from underground potential inability to access the regulatory authority. This portion of the workings. We proposed to revise the ‘‘adjacent area’’ because of a lack of proposed definition was substantively definition to state that the adjacent area landowner consent. We acknowledge identical to the existing definition includes the area overlying the that lack of landowner consent may except that the existing definition underground workings plus the area restrict data collection. However, the included only the area in which impacts encompassed by a reasonable angle of regulatory authority needs sufficient are reasonably ‘‘probable’’ rather than draw from the perimeter of the data about the adjacent area to properly the area in which impacts are underground workings. Several evaluate the permit application and reasonably possible. Several commenters questioned the application commenters objected to the proposed of the phrase ‘‘reasonable angle of 111 D.Y. Dixon and H.W. Rauch, The Impact of Three Longwall Coal Mines on Streamflow in the draw’’ in paragraph (b) of the proposed Appalachian Coalfield, In the Proceedings of the 108 44 FR 14919 (Mar 13, 1979). 9th International Conference on Ground Control in 109 80 FR 44436, 44467–44468 (Jul. 27, 2015). 110 80 FR 44436, 44467 (Jul. 27, 2015). Mining, Morgantown, W.V.,169–182 (1990).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93096 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

prepare the cumulative hydrologic authority to better understand the In the preamble to the proposed rule, impact assessment. If one landowner potential cumulative impact on the we invited comment on whether the refuses access, one solution could be to hydrologic and biologic environment in definition of ‘‘adjacent area’’ should expand the initial ‘‘adjacent area’’ to the permit and adjacent areas from the prescribe the Hydrologic Unit Code include land further away for which proposed operation. (HUC) 12 watershed or a more access can be obtained. We encourage Paragraph (c) 112 of the proposed appropriate minimum watershed size permit applicants to work with the definition established what the term for the adjacent area for surface water regulatory authority to determine an ‘‘adjacent area’’ means with respect to resources. Several commenters appropriately-sized ‘‘adjacent area’’ underground mine pools. Two supported inclusion of at least the next with sufficient sampling points to commenters questioned the need for higher order drainage area for baseline satisfy all planning and regulatory including paragraph (c) within the surface water characterization where needs. definition of adjacent area. One of the dewatering of streams by longwall or Additionally, several commenters two commenters asserted that the other high-extraction mining may occur opined that the proposed definition of requirements in the existing paragraph as a mechanism to define adjacent area. ‘‘adjacent area’’ would result in an (c) are adequately addressed and there In contrast, another commenter strongly expanded permit area to secure access is no need for revision and the other opposed an approach of using the next and result in increased costs. In some commenter asserted that the higher order drainage area to determine cases the permit area may coincide with requirements are sufficiently discussed ‘‘adjacent area’’. That commenter stated the extent of probable impacts; however, in paragraph (a), now final paragraph that using the definition of ‘‘adjacent that is the exception. Most of the time (1). Final paragraph (c), now final area’’ as the drainage area of the the permit area is smaller than the paragraph (3), is retained because it operation and at least the next higher ‘‘adjacent area’’; therefore, we do not highlights the importance of ensuring order drainage area could result in believe this definition will impact the that areas that might be affected several thousand acres and associated size of the permit area. physically or hydrologically by the stream lengths being added to the One commenter proposed adoption of dewatering of a mine pool or areas that stream mapping and monitoring the adjacent area definition used by the may develop mine pools will be requirements. We agree with this Wyoming Department of Land Quality. included in the adjacent area because of commenter and have not changed the That definition provides that ‘‘[a]djacent the long-term cost associated with definition for two reasons. Changing the area means land located outside the remediation and treatment of discharges definition to include a specific permit area upon which air, surface that could continue in perpetuity. watershed would create fixed water, groundwater, fish, wildlife, or Inclusion of these areas ensures that boundaries for the ‘‘adjacent area’’ and other resources protected by the Act sufficient groundwater data will be may not be adequate to capture all areas may reasonably be expected to be collected to assist the regulatory with probable impacts on resources. In adversely impacted by mining or authority to determine what, if any, addition, the fixed area may be larger reclamation operations. Unless impacts the mine operation will have on than necessary, which may result in otherwise specified by the areas that mine pools could adversely collection of data with little or no value Administrator, this area shall be impact. for evaluation of the impacts of mining presumptively limited to lands within and reclamation. (one-half mile) of the proposed permit In conjunction with the comments area.’’ This suggestion was not accepted listed above, both commenters Angle of Dewatering because of the one-size-fits-all minimum recommended, that if proposed In response to numerous comments, application of ‘‘one-half mile.’’ We have paragraph (c), now final paragraph (3), we are adding the definition of ‘‘angle no indication that this size limitation is retained, that we replace the words of dewatering’’ to the final rule. As we would ensure the inclusion of all areas ‘‘might be affected’’ in the final rule discussed in the definition of ‘‘adjacent where there is the reasonable language. One commenter suggested area’’ we are defining the term ‘‘angle of probability of adverse impacts. replacing the words ‘‘might be affected’’ dewatering’’ to mean, ‘‘the angle created One commenter alleged that the with ‘‘may realize physical or from a vertical line drawn from the proposed rule inappropriately assumes hydrological adverse impacts.’’ This outer edge or boundary of high- that adjacent waters are inextricably phrase does not afford the regulatory extraction underground mining linked to, what the commenter referred authority sufficient flexibility in making workings and an oblique line drawn to as, ‘‘the core/jurisdictional waters.’’ determinations about areas that may be from the terminus of the vertical line at This commenter explains that adjacent affected by dewatering. The other the mine floor to the farthest expected waters may have little, if any, biological commenter suggested we replace ‘‘might extent that the mining will cause connection to ‘‘the core/jurisdictional be affected’’ with ‘‘could reasonably be dewatering of groundwater or surface waters;’’ they may contain two distinct, significantly affected, based on the water.’’ This definition,113 or similar functionally independent communities professional judgment of a professional variations, has been in use for many that may only interact slightly. We hydrologist within the regulatory years, and is commonly used in defining disagree that the rule assumes a authority.’’ This phrase is too vague and the potential impact area for stream biological connection between two subjective, particularly since the dewatering and other adverse impacts to adjacent water bodies. The rule at commenter does not explain what the surface water and groundwater as a section 780.19 requires the operator to term ‘‘reasonably be significantly result of underground mining. As the collect geologic, hydrologic, and affected’’ means. Therefore, we are commenters recognized, the actual zone biologic data in the permit area and retaining the words ‘‘might be affected’’ of hydrologic impacts to surface water adjacent area. To the extent that in the final rule text within final and groundwater caused by subsidence distinct, functionally independent paragraph (3) and adopting paragraph induced dewatering will be highly site communities exist in adjacent areas, the (c), as proposed, with the exception of specific; depending of lithology, depth baseline data collection will document renumbering it as final paragraph (3). of coal seam, aquifer characteristics, and that fact. This information will then assist the operator and the regulatory 112 80 FR 44436, 44467–68 (Jul. 27, 2015). 113 Dixon, supra at 169–182.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93097

the extent to which groundwater restoration is based on the land’s approximate original contour at § 701.5, contributes to surface flow of streams. original or natural configuration, before the commenters questioned our legal Due to the variability of these impacts any mining, and not on its altered authority to make this modification to and the site specific nature of the data contour as impacted by pre-SMCRA our regulations. These commenters needed to accurately determine the mining. The addition of the word ‘‘any’’ contend that requiring operations to angle of dewatering it is not possible to simply clarifies this point. Clearly, ensure that the reclaimed area closely define one all-inclusive ‘‘angle’’ of SMCRA did not intend previously resembles the general surface dewatering. Therefore, we are mined landscapes with dangerous configuration prior to any mining, identifying impacts to be expected highwalls and ungraded spoil piles and instead of the general surface within the ‘‘angle of dewatering’’. The ridges as an acceptable postmining configuration just prior to permit permittee will be responsible for topography when they are remined issuance, would impose an performing the necessary onsite under SMCRA. The added language is unachievable standard. However, the investigation to estimate the ‘‘angle of intended to assure these lands will be requirement that operations ensure that dewatering’’, and to define the reclaimed to eliminate as many of these the reclaimed area closely resemble the potentially affected surface area and adverse features and contours to the general surface configuration prior to groundwater resources. extent possible. During a nationwide any mining is not a new requirement. In evaluation of approximate original fact, SMCRA’s legislative history shows Approximate Original Contour contour in 2010, we learned that certain that, except in limited circumstances, it We proposed to revise the definition state regulatory authorities were was commonly understood that of ‘‘approximate original contour’’ to allowing pre-SMCRA abandoned mine previously mined areas could and clarify that the term refers to the general land features, such as dangerous should be remined and reclaimed to land configuration within the permit highwalls and ungraded spoil piles and achieve original contours. When area as it existed before any mining and ridges, to form the basis of postmining testifying about Pennsylvania’s surface not to a configuration immediately prior topography when they are remined coal mining law, the basis for SMCRA, to the current mining. As the preamble under SMCRA. This practice is not Pennsylvania’s Governor Milton J. explained,114 this approach is consistent allowed under SMCRA and the changes Shapp testified that: with section 515(b)(2) of SMCRA,115 to this definition provide clarification Since our strip mining laws have been in which requires that surface coal mining but do not depart from, nor conflict effect, many coal operators have come back and reclamation operations be with, the statutory definition, as in the same area and are now digging the conducted so as to ‘‘restore the land suggested by the commenter. second seam; and, of course, as they do that, affected to a condition capable of Other commenters stated that it was they are restoring the original contour, so that supporting the uses which it was not appropriate to require current a large percentage of the scars of western capable of supporting prior to any mining operations to repair the damage Pennsylvania, where we has [sic] this double mining . . . .’’. As the preamble also caused by pre-law mine operations. seam, have already been corrected .... explained,116 the U.S. District Court for Another commenter asked us to clarify H.R. 2 Hearing Part II at 46. The the District of Columbia held that the when the new definition might be addition of the word ‘‘any’’ is merely a word ‘‘any’’ used in this SMCRA section applied on previously mined areas clarification. Furthermore, commenters ‘‘indicates that Congress intended the permitted before or after the effective did not provide an explanation or an operator to restore the land to the date of the new rule, as it could have example to illustrate why this condition that existed before it was ever major impact on staff resources to re- requirement is unachievable. mined.’’ 117 review previously approved plans. As In support of their contention that we Numerous commenters took mentioned above, the clarification that lack the legal authority to insert the exception to the addition of the word pre-SMCRA abandoned mine land word ‘‘any’’ into the definition of ‘‘any’’ in front of the word ‘‘mining’’ in features may not provide the basis for approximate original contour, the definition of approximate original approximate original contour is not a commenters made three main contour. One commenter contended that new requirement. Therefore, all SMCRA arguments. First, commenters rely on the current definition is clear and permits should already contain two recent decisions from the should not be changed and that the reclamation plans that ensure that the Departmental Cases Hearings Division proposed change would conflict with land will be reclaimed to the general in the Department’s Office of Hearings the statutory definition at section 701(2) surface configuration of the land prior to and Appeals, in which an of SMCRA.118 As stated above, and in mining, regardless of this rulemaking. administrative law judge allowed a the preamble to the proposed rule, the Furthermore, as discussed below, it is mining company to model postmining changes to this definition only clarify common practice for remining surface configurations on pre-SMCRA our longstanding policy that operations to repair the damage caused abandoned mine land features. ‘‘approximate original contour’’ refers to by pre-law mine operations. While However, decisions of administrative the general land configuration within SMCRA does not limit operations to law judges are not Departmental the permit area as it existed before any only remining operations, and does not precedents and are not binding on the mining and not to a configuration require operators to reclaim abandoned Interior Board of Land Appeals, other immediately prior to the current mining. mine land features outside of a permit administrative law judges, the Office of The use of the term ‘‘original’’ within disturbance boundary, any previously Surface Mining, or Article III Courts. the definition of approximate original mined areas that are re-disturbed during West Cow Creek Permittees v. BLM, 142 contour supports the contention that the course of remining must be IBLA 224, 235 n.16 (1998). In fact, reclaimed according to all of the administrative decisions of this type are 114 80 FR 44436, 44468 (Jul. 27, 2015). requirements of SMCRA. No changes only binding on the parties if the 115 30 U.S.C. 1265(b)(2). were made as a result of these decision is not appealed or if the 116 Id. comments. decision is upheld upon appeal to the 117 In re Permanent Surface Mining Regulation Litigation. I, Round I (PSMRL I, Round I), 1980 U.S. Other commenters not only objected Interior Board of Land Appeal. In this Dist. LEXIS 17722 at *95 (D.D.C. 1980). to the addition of the word ‘‘any’’ before case, both decisions have been appealed 118 30 U.S.C. 1291(2). the word ‘‘mining’’ in the definition of to the Interior Board of Land Appeals

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93098 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

and are awaiting a decision. Finally, In promulgating our regulation at make changes to the definition of these decisions did not address our § 816.106, we determined that no approximate original contour based on authority under SMCRA but were based approximate original contour exception these comments. on a state regulatory authority’s was necessary where a previously Several commenters stated that interpretation of its regulations. mined area has sufficient spoil to approximate original contour conditions Second, commenters stated that it was completely backfill the reaffected area before any mining might be difficult to incorrect for us to reference the or enlarged highwall. In those instances, determine because some sites may have postmining land use and backfilling and there is no reason to treat the site any been mined before the publication of grading performance standards at differently and the operator must follow United States Geological Survey Sections 515(b)(2) and (b)(3) of SMCRA the general backfilling and grading quadrangle maps or were mined in support of its clarification that requirements at § 816.102. If centuries ago. We do not believe that the postmining surface configuration should approximate original contour were lack of detailed USGS topographic maps be based on contours prior to any based on the surface configuration at or other information for very old pre- mining. These commenters instead permit issuance, instead of our SMCRA mined areas should inhibit the insist that we should only consider the longstanding policy of using the surface ability to comply with this requirement. statutory definition of approximate configuration prior to any mining, the Considering the remining of previously original contour at section 701(2) 119 in exemption for previously mined areas mined sites requires an approximate its analysis of whether approximate would not be necessary because an restoration and not an exact restoration original contour should be based on the applicant would always be able to base of contours, before any mining, general contours prior to any mining or whether reclamation on any pre-SMCRA knowledge of the natural topography it is appropriate to base postmining abandoned mine land features within a typical of the local area should be contours on pre-SMCRA abandoned permit, such as orphan spoil piles, pits, sufficient. We made no changes as a mine land features present at the and highwalls. This outcome would not result of this comment. proposed mining site at permit issuance. result in the reclamation of previously Similarly, one commenter expressed We do not agree. Postmining land use mined areas. While encouraging concern that the changes in the language and approximate original contour are remining is important, we have already of the definition somehow altered the closely linked and should not be provided an exemption for certain standard for requiring the restoration of artificially separated. The requirements remining activities and do not believe land configuration from ‘‘approximate’’ at sections 515(b)(2) and (b)(3) 120 that that a greater exemption is necessary to to ‘‘exact’’ original contours. It is not our land be backfilled and graded to encourage reclamation of pre-SMCRA intent to require reclamation to achieve ‘‘restore the approximate original abandoned coal mine sites through the ‘‘exact’’ original contour. The final contour’’ with all highwalls, spoil piles, remining. For the preceding reasons, we rule reflects that changes in the surface and depressions eliminated and find the arguments challenging our legal configuration after mining compared to ‘‘restore’’ the land to the uses that ‘‘it authority to make these changes the land’s configuration before any was capable of supporting prior to any unsupported and have not revised our mining are allowed as long as the mining’’ complement each other, definition. premining configuration closely ensuring that the standard for One commenter expressed concern resembles the post-mine configuration. reclamation is the condition of the land that the proposed changes could be Another commenter requested that we in its natural, or ‘‘original’’ condition, interpreted to alter the core elements of explain the meaning of the term prior to any mining activities. Our approximate original contour. While ‘‘approximate’’ or ‘‘closely resembles’’ longstanding understanding of this this comment did not request a change as it relates to the definition of connectedness is evidenced in the fact to the definition, we can confirm that approximate original contour. Such a that approximate original contour and the changes do not alter the requirement discussion is not necessary as the use of postmining land use are listed together that the reclaimed area must closely these terms within the definition have at 816.102(a) as requirements for resemble the general surface not been proposed for change and backfilling and grading. configuration prior to any mining, must maintain the same meaning as they had Third, a few commenters questioned blend into and complement the drainage before this revised definition. whether requiring that approximate pattern of the surrounding terrains, and Some commenters expressed concern original contour be based on the must contain no highwalls or spoil that the revised definition implies that condition of the land prior to any piles. These requirements apply, soil resources from previously mined mining would preclude the beneficial regardless of the presence or absence of areas must be restored, and argued that practice of remining. We agree that abandoned mine land features, unless a soil resources at many pre-law sites section 102(h) of SMCRA 121 promotes separate exception applies. were not protected and it would be the reclamation of pre-law sites that Another commenter expressed unreasonable to impose such a have been left in an environmentally concern that returning land to its requirement to fully reclaim them. We degraded condition. However, these approximate original contour would disagree that the revised definition of commenters may not be aware that our limit certain types of postmining land approximate original contour implies, or regulations already provide an uses. Commenters did not provide any could reasonably require, permittees approximate original contour exemption examples of situations where removal of and mine operators to recreate soil for previously mined areas ‘‘where the pre-SMCRA abandoned mine land resources that have been permanently volume of all reasonably available spoil features would preclude any postmining lost. We fully recognize that previously is demonstrated in writing to the land uses. We do not share the concern mined areas commonly have significant regulatory authority to be insufficient to expressed by this commenter. In our limitations. At the same time, these completely backfill the reaffected or experience, ensuring the elimination of limitations should not be used as an enlarged highwall.’’ 30 CFR 816.106(b). pre-SMCRA abandoned mine land excuse to not make improvements, such features only enhances the land’s as elimination of highwalls and spoil 119 30 U.S.C. 1291(a)(2). capability to support a wider variety of piles, and remediation of hazardous and 120 30 U.S.C. 1265(b)(2) and (b)(3). postmining land uses. Therefore, we do environmentally degraded conditions. 121 30 U.S.C. 1202(f). not believe that there is any need to We also reject the comment that grading

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93099

of remined spoil piles to meet definition of approximate original surrounding terrain as the approximate approximate original contour is contour to include the restoration of original contour model. In this example, technically and economically topography caused by settlement due to to achieve the requirements of impossible. Most on-going remining underground mine subsidence would be approximate original contour, the mined operations currently comply with the inappropriate. Furthermore, following area that was topographically flat to requirement of § 816.102 and are the same logic, explicitly excluding gently rolling before any mining should already achieving approximate original underground mining subsidence be reclaimed to a flat to gently rolling contour. Where they have insufficient impacts is unnecessary because topography. spoil to fully reclaim the highwall, approximate original contour already Commenters alleged that our § 816.106 provides an alternative option does not apply to these impacts. proposed change does not adequately for reclamation. We therefore decline to One commenter alleged that the post consider the effects of swell or bulking make changes in this definition based mining configuration should only have factors on grading and that an on these comments. to resemble the areas surrounding the unintended consequence of our Others commented that the changes to permits and that the proposed addition proposed change might be the the approximate original contour of the phrase ‘‘within the permit area’’ construction of more excess spoil fills. definition appear to focus mainly on to the definition of approximate original While the commenters did not clearly problems in Appalachia, where contour is unlawful and contrary to explain why they believed that changes remining, thick overburden, and SMCRA. The commenter based this to the approximate original contour mountaintop removal are prevalent. contention on one portion of the definition would have this result, other While we agree that these conditions statutory definition of approximate commenters mistakenly believed that may be prevalent in Appalachia, sites original contour that references ‘‘the our changes were intended to require with previously mined areas exist surrounding terrain’’. We did not adopt the sites to be returned to the ‘‘exact’’ throughout the coal regions. For this comment as it does not fully reflect premining contours, which would limit example, we noted problems with the definition as it appears in SMCRA. the amount of spoil that could be achieving approximate original contour The full statutory definition reads returned to the mined out area and in Oklahoma in a 2010 National Priority ‘‘ ‘approximate original contour’ means increase the need for excess spoil fills. Review of approximate original contour. that surface configuration achieved by However, as we explained above, our The clarifications provided in this final backfilling and grading of the mined rule change does not require a return to rule are applicable nationwide and will area so that the reclaimed area . . . the exact premining contours and ensure that, unless an operation closely resembles the general surface therefore we do not anticipate an qualifies for an exemption from the configuration of the land prior to mining increased demand for excess spoil fills. requirement to achieve approximate and blends into and complements the Therefore, we have not made any original contour, such as the exemption drainage pattern of the surrounding change to this definition in response to for previously mined areas with terrain....’’123 The interpretation these commenters. insufficient spoil to completely reclaim urged by the commenter fails to give One commenter asserted that the the highwall under § 816.106, the force to the beginning of the definition, proposed definition deletes the reclamation will be based on contours which requires that the reclaimed area reference in the statutory definition to present prior to any mining. closely resemble the general surface permanent water impoundments. That Several commenters advocated configuration of the land prior to mining is not the case. The final definition, like expanding the definition of approximate and misses the distinction between the proposed definition, provides that original contour to include the resembling the surface configuration the requirement to eliminate all restoration of topography damaged by and blending into the surrounding area. highwalls and spoil piles does not surface subsidence from underground The purpose of blending the reclaimed prohibit ‘‘the approval of permanent mining, specifically longwall mining. mined area with surrounding terrain is water impoundments that comply with Other commenters expressed opposition to ensure that there is a topographic §§ 816.49, 816.55, and 780.24(b) or to the inclusion of such language and connection that avoids dangerous and §§ 817.49, 817.55, and 784.24(b) of this instead urged that subsidence from abrupt topographic changes, often due chapter.’’ That provision is underground mining be specifically to swell and bulking factors. substantively identical to the previous excluded from the definition of Complementing the drainage patterns of definition in § 701.5. approximate original contour. After the surrounding area is also necessary to Other commenters stated they were consideration of both positions, we have ensure that surface water flows similarly unclear as to whether the rule would determined that these changes are not to how it did before mining and that it allow the creation and approval of the necessary because approximate original does not cause pooling above the mine type of impoundments frequently contour is not applicable to surface site or downstream off-site damage. referred to as final-cut impoundments or subsidence for underground mining. Approximate original contour has never final-cut lakes. Some of these Pursuant to section 701(2) of SMCRA, been based on restoring the commenters pointed out that the requirement to achieve approximate configuration of the mined area to impoundments can serve as an aquatic original contour is applicable to resemble the surrounding terrain, resource for fish and wildlife habitat ‘‘reclaimed areas, including any especially because, in some situations, and are often requested by landowners. terracing or access roads,’’ that are the topographic differences can be We agree that permanent water subject to ‘‘backfilling and grading of significant. As an example, if the mined impoundments, including properly the mined area.’’ 122 As the area above area were flat to gently rolling constructed final-cut lakes, can provide underground mine works are not part of topographically before any mining and valuable fish and wildlife habitat, the mined area that are backfilled and the surrounding area were naturally a recreational facilities, or water resource graded, they are not subject to much steeper topography, it would be features. For that reason, our definition requirements of approximate original inappropriate to reclaim the mined area of ‘‘land use’’ in section 701.5 includes contour. Therefore, expanding the with the intention of using the ‘‘developed water resources’’ as a specific land use category. As 122 30 U.S.C. 1291(2). 123 30 U.S.C. 1291(2). previously noted, the final definition of

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93100 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

‘‘approximate original contour’’ explained below, we modified this hydrologic modeling, Federal specifically allows permanent water definition in response to comments. Emergency Management Agency flood impoundments that comply with One commenter argued that the maps, a standard distance from top of §§ 816.49, 816.55, and 780.24(b) or definition of ‘‘bankfull’’ should include banks, or Rosgen’s 2X maximum § 817.49, 817.55, and 784.24(b). Sections a storm frequency interval to make the bankfull depth method. Calculation of 816.49(b) and 817.49(b) of our rules definition applicable to altered flood prone areas is not germane to the establish criteria for the approval of watersheds or systems that have definition of ‘‘bankfull stage’’; however permanent impoundments, including experienced downcutting and are we would expect that standard final-cut impoundments. Paragraphs disconnected from floodplains. It was engineering practices would be used to (b)(7) and (8) of those rules are never our intent to except altered calculate the flood prone areas. Our rule particularly pertinent to final-cut watersheds or systems that are uses ‘‘bankfull stage’’ only for the impoundments. They require a disconnected from floodplains from this purpose of determining the point from demonstration that approval of the definition. We agree that streams, such which the stream buffer zone must be impoundment would not result in as those with steep-sloped areas, that measured and describing stream retention of spoil piles or ridges that are may be entrenched and lack a channel profiles. As we discuss above, inconsistent with the definition of floodplain should be addressed by the we have revised the term from approximate original contour or the definition because entrenched streams ‘‘bankfull’’ to ‘‘bankfull stage’’ and have creation of an excess spoil fill elsewhere are commonly found within all of the more consistently aligned our proposed within the permit area. coal regions of the United States. In definition to the definition relied on by consideration of this comment, we are A commenter approved of the leading experts. adding the term ‘‘stage’’ to the term One commenter argued that a clarification in the proposed rule 124 that ‘‘bankfull’’ and revising the definition to definition of ‘‘bankfull’’ is not necessary coal refuse piles should be evaluated include entrenched streams, rivers and because most ephemeral streams do not separately from the analysis of lakes. The term ‘‘bankfull stage’’ is have banks. We disagree. For the approximate original contour. As the appropriate because experts generally reasons explained later in this preamble, commenter noted, requirements for the use the term ‘‘bankfull stage’’ when we modified the definition of construction of permanent coal mine describing high water events in streams, ‘‘ephemeral stream’’ in the final rule to refuse piles are addressed separately rivers, or lakes that have active flood ‘‘include[ ] only those conveyances with from approximate original contour at 125 plains or are entrenched. For channels that display both a bed-and- 515(b)(11) and 516(b)(4) of SMCRA. entrenched streams, rivers, or lakes, bank configuration and an ordinary high The regulations for coal waste are experts define ‘‘bankfull stage’’ as the water mark, and that have streambeds available at §§ 816.81, 816.83, 816.84, highest scour line, bench, or top of the located above the water table year- 816.87, 817.81, 817.83, 817.84, and point bar.128 round.’’ Thus, if a conveyance lacks a 817.87. However, if coal refuse material Another commenter alleged that the bank, we would not classify the is placed in the mined out area, the proposed definition of ‘‘bankfull’’ is conveyance as a stream. As such, a mined out area must still be returned to inconsistent with the definitions of definition of ‘‘bankfull stage’’ remains approximate original contour unless the leading experts such as Rosgen, the necessary to establish the boundaries of regulatory authority has approved a coal United States Geological Survey, and the streamside vegetative corridor for all refuse disposal area in that location. We North Carolina University. The stream types. have not made any changes to the commenter argued that multiple other In the final rule, ‘‘bankfull stage’’ proposed rule in response to this factors in the proposed rule—such as means the water level at which a stream, comment. bankfull width, depth, and flood prone river, or lake begins to overflow its Backfill area—rely on a properly assessed natural banks and enter the active ‘‘bankfull stage’’ and that an incorrect floodplain or if the stream, river, or lake We received no comments on this definition would lead to inaccurate is entrenched, bankfull stage is proposed definition, which we are data, which in turn would lead to identified as the highest scour line, adopting as proposed. improperly designed projects. In place bench, or top of the point bar. This term Bankfull Stage of the ‘‘bankfull’’ definition, the and definition applies to all streams, commenter argued for consistent and rivers, and lakes. We proposed to define ‘‘Bankfull’’ as clear terminology, such as the definition Biological Condition the ‘‘water level, or stage, at which a relied on by leading experts, to ensure stream, river, or lake is at the top of its that appropriate and accurate data are We proposed to define ‘‘biological banks and any further rise would result collected. Additionally, the commenter condition’’ as a measure of the in water moving into the flood argued that the definition and proposed ecological health of a stream or segment plain.’’ 126 We explained in the rule increased confusion because the of a stream as determined by the type, preamble to the proposed rule that the agency did not provide guidance for the diversity, distribution, abundance, and proposed definition paralleled the calculation of flood prone areas or physiological state of aquatic organisms definition in the National Weather include references to methods such as and communities found in the stream or Service glossary and clarified the stream segment. Some commenters technical and scientific term that we use 128 See, e.g., Dave Rosgen, Applied river expressed support for the proposed ‘‘to more precisely fix the boundaries of morphology, Wildland Hydrology, Pagosa Springs, definition. Some commenters Colorado (1996); Cheryl Harrelson et al., Stream questioned how this term differed from stream buffer zones and riparian channel reference sites: an illustrated guide to field corridors in our proposed stream techniques. Gen Tech. Rep. RM–245, Fort Collins, another new term that we proposed to restoration requirements.’’ 127 As Colorado (1994); U.S. Department of Agriculture, define, ‘‘ecological function’’. In Forest Service, Rocky Mountain Forest and Range response, we revised the definition of Experiment Station.; William A. Harmon, Finding 124 ‘‘biological condition’’ by deleting the 80 FR 44436, 44468 (Jul. 27, 2015). Bankfull Stage in North Carolina Streams, Volume 125 30 U.S.C. 1265(b)(11) and 1266(b)(4). 590, Issue 3 of AG (Series) River course, North statement that biological condition is a 126 80 FR 44436, 44587 (July 27, 2015). Carolina Cooperative Service Extension Service measure of the ecological health of a 127 Id. at 44469. (2000). stream or segment of a stream. The final

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93101

definition clarifies that biological preamble discussion of final rule modifying the final rule to condition refers to the characteristics of §§ 780.19(c)(6) and 784.19(c)(6), below, accommodate this request. Regulatory the biota found in surface water bodies, some of this information is necessary to authorities are required to assess the including streams. adequately determine the condition of probable cumulative impacts of all Several commenters requested we the stream premining, during mining, anticipated mining in a given area, remove the term ‘‘physiological state’’ and after mining because these regardless of a specified hydrologic unit from the definition of biological inventories and assessments provide code (HUC), to assure the proposed condition because it refers to a crucial information on the function of operation has been designed to prevent condition that is difficult to measure these streams. material damage to the hydrologic and also implies that any change in this One commenter requested that we balance outside the permit area. condition would prevent mining. We exclude ephemeral streams from the Therefore, the region that needs to be agree with this assessment. definition of ‘‘biological condition’’ included in an area may be larger or ‘‘Physiological state’’ may be because assessment of the biological smaller than a HUC 6 or 8. unmeasurable and our concerns are condition of ephemeral streams is Numerous commenters asked us to effectively addressed by the rest of the impractical and unreasonable due to consider deleting the requirement definition of ‘‘biological condition’’ inconsistent flows. We agree with the within the proposed rule of using a when it refers to the type, diversity, commenter’s statement about the HUC–12 watershed size in delineating distribution, and abundance of aquatic impracticality of assessing the biological the ‘‘cumulative impact area’’. The organisms and communities found in a condition of ephemeral streams. commenters stressed that a HUC–12 stream, stream segment, or other waters. However, instead of revising the watershed may be appropriate in some Therefore, we have deleted definition of biological condition, as cases but would result in areas that are ‘‘physiological state’’ in the definition of explained above, we have revised our too broad or too restrictive in others. ‘‘biological condition’’ within the final baseline data requirements. This The commenters requested the proposed draft rule. revision to final § 780.19(c)(6)(vi), rule be revised to allow the regulatory One commenter expressed concern includes the elimination of the authority flexibility in requiring a more that the definition of ‘‘biological requirement that permit applications suitably-sized watershed approach condition’’ coupled with the definition include baseline data on the biological based on the permit area under of ‘‘parameters of concern’’ would condition of ephemeral streams. consideration, existing and anticipated impose new and burdensome We also revised the definition of coal mining operations, and site and requirements. We disagree. We define ‘‘biological condition’’ by adding the regional characteristics. We agree with ‘‘parameters of concern’’ as those phrase ‘‘found in surface water bodies, the commenters and have revised the chemical or physical characteristics and including streams’’ because biological proposed definition to allow the use of properties of surface water or condition assessments are not a HUC–12 or a different-sized watershed groundwater that could be altered by inherently limited to streams. This deemed appropriate for purposes of surface or underground coal mining change was made to better tailor the preparation of the cumulative activities, including discharges definition to the manner in which the hydrologic impact assessment. This associated with those activities, in a term is explained and used in a final change will allow the regulatory manner that would adversely impact the report from the U.S. Environmental authority to use a watershed size that is quality of groundwater or surface water, Protection Agency Practitioners more appropriate to the area under including adverse impacts on aquatic Guide 129 stating, ‘‘[a]s a practical evaluation. life. The definition of ‘‘parameters of matter, our rules use this term only in In addition to this change we altered concern’’ clarifies that these parameters connection with perennial and the definition of ‘‘cumulative impact may be of import because of potential intermittent streams, but there is no area’’ within the final rule by impacts on biological conditions. scientific basis for limiting the renumbering the paragraphs and Neither the definition of ‘‘parameters of definition itself in that manner.’’ removing proposed paragraph (c)(6). concern’’ nor ‘‘biological condition’’ Proposed paragraph (c)(6) specified that Cumulative Impact Area prescribe additional biological data anticipated underground mining collection beyond the requirements We are adopting the definition of includes all areas of contiguous coal expressly defined elsewhere in the final ‘‘cumulative impact area’’ as proposed reserves adjacent to an existing or rule. with the following exceptions. We have proposed underground mine that are Some commenters noted that altered the nomenclature of this owned or controlled by the applicant. gathering data on ‘‘biological condition’’ definition by modifying the paragraphs This proposal was included because, of streams would increase permitting to conform to the rest of the rule. barring significant changes in economic and monitoring costs on the part of the Instead of using (a) through (c) to or regulatory conditions, the mine operator and the burden of the designate paragraphs, as we did in the would reasonably be expected to extend regulatory authority to review the proposed rule, we use (1) through (3) to into those reserves in the future. We resulting data. We agree with the designate paragraphs in the final rule. received numerous comments commenters and have made several One commenter requested that, at a requesting that we not adopt the changes to these requirements in minimum, the eight or six digit proposed requirement that the relationship to ephemeral and hydrologic unit code be used to cumulative impact area include all areas intermittent streams. These changes can delineate the cumulative impact area to of contiguous coal reserves adjacent to be found within final rule ensure the inclusion of all impacts from an existing or proposed underground §§ 780.19(c)(6) and 784.19(c)(6), related active, closed, and expired mines on mine when the applicant owns or to underground mining, formerly downstream water quality. We are not controls those reserves. Commenters §§ 780.19(e) and 784.19(e) of the stated that the requirement was too proposed rule. These changes will 129 U.S. Envtl. Prot. Agency, A Practitioner’s broad and unworkable and could result Guide to the Biological Condition Gradient: A reduce the cost and time commitment of Framework to Describe Incremental Change in in an increased burden on industry and the operator and regulatory authority. Aquatic Ecosystems. EPA–842–R–16–001. U.S. the regulatory authority. Commenters However, as further described in the Envtl. Prot. Agency, Washington, DC (2016). also stated that the information related

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93102 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

to coal reserves may be proprietary, and several technical reference documents proposed definition included the ability that the cumulative impact area should for the development of cumulative of the stream ecosystem to retain and be defined based on potential impacts hydrologic impact assessments, transform inorganic materials needed from approved operations and including information on anticipated for biological processes into organic operations that are in some stage of the mining activities that provides guidance forms and to oxidize organic molecules permit application process instead of as requested by the commenter. Those back into elemental forms through resource control or ownership. For the documents are available on our home respiration and decomposition. It reasons presented by the commenters, page on the internet (www.osmre.gov) or further stated that the term includes the we agree that the inclusion of all upon request. role that the stream plays in the life continuous coal reserves adjacent to an Several commenters stated there was cycles of plants, insects, amphibians, existing or proposed underground mine no justification for a requirement to reptiles, fish, birds, and mammals that in proposed paragraph (c)(6) is too analyze the anticipated impacts after either reside in the stream or depend speculative. Therefore, we have final bond release and that any upon it for habitat, reproduction, food, removed it from the final definition. requirement to do so was beyond water, or protection from predators. When neither baseline data nor SMCRA authority. In response, we have Finally, the proposed definition stated analyses have been supplied by the decided that it is neither feasible nor that the biological condition of a stream applicant or permittee, a commenter practical to attempt to predict can be used as one measure to infer the claimed that it may not be technically anticipated cumulative impacts status of the stream’s ecological feasible to assess the impacts of following final bond release. The final function. anticipated mining upon water definition that we are adopting does not Various commenters found the resources during mining and require this analysis of potential definition to be overly broad, too vague, reclamation and after final bond release. impacts after final bond release. unclear, or lacking the specificity We agree that evaluation of potential One commenter disagreed with the needed to establish standards for the impacts from areas of existing or inclusion of any proposed surface or restoration of ecological function. Other anticipated mining on surface water and underground coal mining operation for commenters opposed the definition groundwater resources are not which a request for an authorization, based on the opinion that the definition technically feasible in the absence of certification, or permit has been relied too heavily on research in baseline or other data. This rule sets submitted under the Clean Water Act as Appalachia and upon the U.S. Army forth requirements for the collection and anticipated mining. We disagree with Corps of Engineers guidance 132 analysis of premining data about the site this comment. Inclusion of proposed referenced in the preamble to the of the proposed mining operation and operations in situations where the Clean proposed rule. Other commenters adjacent areas adequate to establish a Water Act authorization process has expressed concern that we are comprehensive baseline that will begun will result in preparation of a mandating specific metrics that may not facilitate evaluation of the effects of the more comprehensive analysis by the be applicable to all regions of the proposed operation. If sufficient data is permit applicant or permittee and the country or that may be unreasonably not available on areas of anticipated regulatory authority. Those operations expensive. In response to these mining to allow for a meaningful are within the realm of anticipated comments, and others which voiced analysis of potential impacts, the mining because the permitting process concern that compliance with this regulatory authority cannot approve the for those mines has begun, albeit under definition is critical to the permit application in accordance with the Clean Water Act rather than determination of bond release, we § 780.21 of this rule. In addition, the SMCRA. Nothing in section 507(b)(11) conducted further analyses to determine commenter continued that we should of SMCRA 131 limits ‘‘anticipated how to make this definition more provide guidance on incorporating mining’’ to operations that have begun applicable to scientifically defensible anticipated mining areas into the the SMCRA permitting process. Further, standards and to be more clearly cumulative hydrologic impact § 780.27(a), about permitting measurable, and thus capable of assessment. We disagree. The concept of requirements that apply to proposed implementation in the context of bond including anticipated mining as part of activities in or through ephemeral release. Therefore, and for the reasons the cumulative impact area is not new streams and § 780.28(a), about explained further below, we modified and has been an integral component of additional permitting requirements that the final rule to define ecological the cumulative impact area since the apply to proposed activities in, through, function as ‘‘the species richness, early 1980s. Sections 507(b)(11) and or adjacent to a perennial or intermittent diversity, and extent of plants, insects, 510(b)(3) of SMCRA 130 require that the stream specifies that if the proposed amphibians, reptiles, fish, birds, regulatory authority prepare an permit area includes waters subject to mammals and other organisms for assessment of the probable cumulative the Clean Water Act, the regulatory which the stream provides habitat, food, impact of all anticipated mining in the authority must condition the permit to water, or shelter. The biological area upon the hydrology of the general prohibit initiation of surface mining condition of a stream is one way to area. In 1983, we adopted a definition activities in or affecting those waters describe its ecological function.’’ This of cumulative impact area to identify before the permittee obtains all definition includes some characteristics both the extent of the area that must be necessary authorizations, certifications, of what is often referred to in scientific included in this evaluation and the and permits under the Clean Water Act. literature as ecological structure, which scope of the term ‘‘anticipated mining.’’ often encompasses the abundance and Ecological Function Paragraphs (c)(1) through (3) of the composition of species as a result of proposed definition, now paragraphs We proposed to define the ‘‘ecological (3)(i) through (iii) are substantively function’’ of a stream as the role that the 132 U.S. Army Corps of Engineers, Operational identical to paragraphs (a) through (c) of stream plays in dissipating energy and Draft Regional Guidebook for the Functional the previous definition. In addition, transporting water, sediment, organic Assessment of High-Gradient Ephemeral and Intermittent Headwater Streams in Western West over the years, we have published matter, and nutrients downstream. The Virginia and Eastern Kentucky. ERDC/ELTR–10–11, July 2010, U.S. Army Engineer Research and 130 30 U.S.C. 1257(b)(11) and 1261(b)(3). 131 30 U.S.C. 1257(b)(11). Development Center, Vicksburg, MS., (Jul. 2010).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93103

physical, chemical, and biological elemental forms. We also removed the methodology for measuring ecological forces.133 Our definition of ecological specific reference to salamanders function is still a matter of scientific function includes this abundance and because that reference could be debate. While we agree that science will composition of species when it refers to considered regionally biased and is continue to evolve on this topic, we the species richness, diversity, and unnecessary, as salamanders are not disagree that this continued evolution extent of plants, insects, amphibians, part of the ecology of all streams. precludes us from defining ecological reptiles, fish, birds, mammals and other Because we are requiring the function as we have done in the final organisms. We are including this reestablishment of ecological function rule. The final definition of ‘‘ecological characteristic of ecological structure in as a condition for bond release, we have function’’ merely clarifies our intended the final rule definition of ecological an obligation to both the permittees and meaning of the term. It is not a metric function because this rule at the SMCRA regulatory authorities to in and of itself and standards for § 800.42(d)(2) requires restoration of provide enough information within the implementing this definition can be ecological function in connection with definition to allow for the creation of adapted, updated, and adjusted as the Phase III bond release, and it is therefore clear standards for purposes of bond methodology evolves. necessary to have a definition that release. This necessitates a definition Ephemeral Stream indicates the ways ecological function that gives clear guidance to regulatory can be measured. The traditional authorities on the meaning of ecological As discussed in the preamble to the bioassessment tools we require to assess function but is still broad enough to proposed rule, we proposed to redefine and monitor perennial streams (and allow them to assess and monitor ‘‘ephemeral stream’’ in a manner that is intermittent streams where scientifically organisms that these regulations do not substantively identical to the manner in defensible protocols exist) are specifically address. The final rule which the U.S. Army Corps of Engineers appropriate to measure ecological provides the regulatory authority with a defines that term in Part F of the 2012 function according to our definition. practical definition of ‘‘ecological reissuance of the nationwide permits The last sentence of the definition of function’’ that will enable them to create under section 404 of the Clean Water ‘‘ecological function’’ specifies that the specific standards for assessing Act. See 80 FR 44436, 44470 (Jul. 27, biological condition of a stream is one ecological function in their various 2015). Our existing definition classifies way of describing its ecological regions. The final definition does not streamflow in response to the melting of function. Therefore, unless the mandate specific metrics, although it snow and ice as an ephemeral stream, regulatory authority determines does specify that the biological whereas the Corps’ definition is silent additional criteria are necessary or condition of a stream is one way to on this point. The preamble to the appropriate, establishment of a standard describe its ecological function. Under Corps’ definition states that the based on biological condition (and this definition, regulatory authorities are definition appropriately focuses on the scientifically defensible bioassessment free to develop specific standards duration of flow and provides that protocols as described within the final related to various types of organisms or melting snow should not be considered rule within § 780.19(c)(6)) would populations including the use of a precipitation event because the suffice. indirect ways to measure those development of snowpack over the We designed the final definition to organisms or populations, such as winter season is not a particular event. better support the various ways in through leaf litter breakdown.134 It also See 77 FR 10184, 10262 (Feb. 21, 2012). which regulatory authorities throughout recognizes that the presence of various An industry commenter supported the the United States will actually have to types of populations, such as Corps’ treatment of snowmelt as assess and monitor ecological function periphyton, fish, soil microbes, and appropriate because in areas where in the context of sampling organisms. mammals, could provide support to a there is an ephemeral channel, snow Some commenters objected to including finding that ecological function has depth can cause extended runoff which factors within the definition of been restored. The final definition also should not be considered in the ‘‘ecological function’’ that have no is designed to allow for future determination of the channel direct role in demonstrating the success innovations in measuring ecological classification. In a similar vein, a of reclamation under SMCRA. For function as they become available. regulatory authority noted that small example, the commenters noted that the Some commenters opposed the rills created by rainfall events and ecological role that a stream plays in proposed definition because of a fear snowmelt in the arid and semi-arid transporting nutrients downstream, that we (or a third party, pursuant to the landscape should not be considered known as nutrient cycling, is included citizen suit provisions of section 520 of ephemeral streams; other regulatory within the definition, but is not a SMCRA) 135 could initiate action against authority commenters, however, criterion used in determining eligibility a state regulatory authority for failure to recognized snowmelt is an important for bond release. Another commenter analyze each facet of the definition source of streamflow in ephemeral noted that there is no agreement on during review of the permit application. streams and asserted that it should be objective standards for many facets of While the final rule cannot prevent considered as part of the definition. the definition. In response to these citizen suit litigation, the final rule, After reviewing the comments, we are comments, the final definition when followed, provides sufficient revising the definition of ephemeral eliminates references to physical and flexibility to defend against this type of streams to include those conveyances chemical processes such as dissipating challenge. receiving runoff from snowmelt events energy; transporting water, sediment, Finally, some commenters found our and that have both a bed-and-bank organic matter, and nutrients proposed definition to be overreaching configuration and an ordinary high downstream; transforming inorganic and academic in nature and noted that water mark. Including snowmelt events, materials needed for biological in addition to rainfall events, as a processes into organic forms; and 134 Mark O. Gessner & Eric Chauvet, A Case for primary source of flow is appropriate, as Using Litter Breakdown to Assess Functional long as groundwater is not a source of oxidizing organic molecules back into Stream Integrity. 12(2) Ecological Applications, 498–510 (2002). surface water flow. The additional 133 Eric Stokstad, On the Origin of Ecological 134 30 U.S.C. 1270. requirements that only those Structure, 326 (5949), Science, 33–35. 135 30 U.S.C. 1270. conveyances with channels that display

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93104 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

both a bed-and-bank configuration and another location are not included in the rule that discusses the minimization an ordinary high water mark will ensure definition. The addition of the word and disposal of excess spoil. This that rills created by rainfall or snowmelt ‘‘permanent’’ and the list explaining section of the rule allows the placement events would not be classified as an what is not considered ‘‘excess spoil’’ of what would otherwise be ‘‘excess ephemeral stream. should preclude any misinterpretation spoil’’ on the mined-out area to heights One commenter strongly advised us to that excess soil includes spoil or topsoil in excess of the approved approximate make no reference to the term ‘‘swale’’ piles that are recognized as temporary in original contour surface. The purpose of as a stream. The commenter stated that nature. § 780.35(b)(3) is to avoid or minimize in the western United States the term Another commenter noted that the construction of excess spoil fills on ‘‘swale’’ is commonly used to describe proposed definition of ‘‘excess spoil’’ undisturbed lands. When considering topographic features that are often not could, perhaps, inadvertently, designate the definition of excess spoil and the waters of the United States under the material placed in an existing bench to provisions of § 780.35(b)(3), spoil placed Clean Water Act because these features be classified as ‘‘excess spoil’’. This above the approved approximate lack an ordinary high water mark. The commenter explained that spoil material original contour as described in the term ‘‘swale’’ was not used in the placed on an existing bench above the commenter’s scenario is not considered proposed rule or the final rule. To approximate original contour would be ‘‘excess spoil.’’ minimize any confusion concerning subject to the more stringent proposed One commenter stated that the what is or what is not a stream, we have requirements for excess spoil disposal. proposed changes to the ‘‘excess spoil’’ revised the stream definitions for According to the commenter, this would definition are primarily focused on ‘‘ephemeral stream’’, intermittent result in an increased burden to both stream’’, and ‘‘perennial stream’’ to mountaintop removal and thick industry and regulatory authorities include a requirement that any overburden mines and have little while not providing additional stability topographic feature to be considered a relevance outside Appalachia, and that or stream protection. Interpretation of stream must have both a bed-and-bank they should therefore be limited to the commenter’s term ‘‘existing bench’’ and an ordinary high water mark, in Appalachia. We acknowledge that could be viewed in two ways. One addition to the other requirements ‘‘excess spoil’’ is primarily generated in interpretation is that the ‘‘existing outlined in the specific definitions. central and southern Appalachia where bench’’ is actually a previously mined both thick overburden and steep slopes Excess Spoil bench. The other interpretation is that are prevalent. However, mines in other One commenter stated that the the ‘‘existing bench’’ is new regions also generate ‘‘excess spoil’’. For proposed definition of ‘‘excess spoil’’ construction as part of an active example, Alaska has a permit that was awkwardly worded. The operation. If the first interpretation of generates excess spoil. Further, by commenter explained that the concept the commenter’s term is accepted— definition, excess spoil is only of ‘‘excess spoil’’ is complicated by the considering a bench on a previously applicable to those areas where it is goal of minimizing ‘‘excess spoil’’ to mined area—we note that spoil generated, so, by default, if an area does reduce burial of streams. To address this placement on previously mined benches not generate excess spoil then the rule and related comments expressing is preferable to construction of ‘‘excess provisions that pertain to excess spoil confusion regarding the term, we added spoil’’ on unmined land because it is would not apply on that location. to the definition of ‘‘excess spoil’’ a list more environmentally sound. In One commenter indicated that the of the types of spoil that do not response, we revised the definition to proposed preamble discussion implies constitute ‘‘excess spoil’’. This list exclude spoil material placed outside that box cut spoil placed outside of the excludes from the definition of ‘‘excess the mined-out area as part of a remining pit is not excess spoil for non-steep spoil’’: Spoil required to restore the operation as explained within § 816.106 slope mining. We agree, noting that, by approximate original contour of the or § 817.106 of the final rule. Next, we definition, the creation of box cut spoil mined-out area; spoil used to blend the considered the second potential on non-steep sloped areas does not final configuration of the mined-out area interpretation—that the commenter’s automatically qualify this material as with the surrounding terrain in non- term ‘‘existing bench’’ pertains to excess spoil, as this spoil is available for steep slope areas; spoil placed outside construction as part of a current placement within the mined area and the mined-out area as part of a remining operation. The commenter is concerned outside of the mined area when used to operation; spoil placed within the that the classification of ‘‘excess spoil’’ blend with the surrounding terrain. mined-out area in accordance with the includes spoil material placed in a thick overburden provisions of manner that the lower portion of that Fill § 816.105(b)(1) of the final rule, except spoil extends onto an open bench, most We received no comments on this spoil material placed on the mined-out likely a bench developed along a lower proposed definition, which we are area as part of an excess spoil fill with coal seam mined, and the spoil material adopting as proposed. a toe located outside the mined-out area; is placed at an elevation that is above and any temporary stockpile of material the original elevation line. For the Form that will be subsequently transported to purposes of responding to this another location. comment, we consider the commenter’s Within §§ 780.28, 784.28, 800.42, Other commenters stated that the reference to ‘‘original elevation line’’ to 816.57, and 817.57 of the proposed rule, proposed definition might be mean the approved approximate relating to activities in through, or misinterpreted to apply to topsoil or to original contour surface. In the scenario adjacent to perennial and intermittent temporary spoil piles. We agree and that the commenter describes, the spoil streams, we made reference to the have revised the final rule to specify material is placed on a newly created restoration of the ‘‘form’’ of a stream. that ‘‘excess spoil’’ means spoil material bench that is within the mined area and Specifically, the proposed rule required permanently disposed of within the is therefore not considered ‘‘excess applicants desiring to mine through or permit area. We further specified that spoil’’. To further address the divert a perennial or intermittent stream temporary stockpiles of material that commenter’s concern, we direct the to ‘‘demonstrate that [they could] restore will be subsequently transported to commenter to § 780.35(b)(3) of the final the form . . . of the affected stream.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93105

. . .’’ 136 Additionally, in §§ 816.57 and incorporating into the final rule for ‘‘Groundwater.’’ 142 Under the proposed 817.57 137 we proposed that ‘‘form’’ of a clarity. As contained in the final rule, rule, we defined ‘‘groundwater’’ to mean stream segment must be restored. We the term ‘‘form’’ includes, but is not subsurface water located in those explained in the preamble to the limited to, the flood-prone area to portions of soils and geologic formations proposed rule that: bankfull width ratio (entrenchment), that are fully saturated with water; that a restored stream channel or a stream- channel width to depth ratio, channel is, those zones where all the pore spaces channel diversion need not exactly replicate slope, sinuosity, bankfull depth, and rock fractures are completely filled the channel morphology that existed before dominant in-stream substrate particle with water. In conformity with plain mining . . . it must have a channel size, and capacity for riffles and pools. language principles it is important to morphology comparable to the premining Specific to the definition of ‘‘form,’’ avoid redundancy. Therefore, in the form of the affected stream segment in terms final rule we have removed the phrase, of baseline stream pattern, profile, and entrenchment defines the extent of flood prone area relative to channel size and, ‘‘i.e., those zones where all the pore dimensions, including channel slope, spaces and rack fractures are completely sinuosity, water depth, bankfull depth, therefore, the areas in which bankfull width, width of the flood-prone hydrophilic and hydrophytic plant filled with rock’’ as this is inherent in the meaning of the phrase ‘‘saturated area, and dominant in-stream substrate species are most adaptable. Channel 138 with water’’, rendering the former particle size. width-to-depth ratio, in conjunction phrase redundant. Despite this explanation in the with channel slope, determines the We received comments from a preamble, several commenters discharge that, over time, transports regulatory authority that suggested that questioned the meaning of the term most sediment downstream. Sinuosity we define groundwater as ‘‘any water ‘‘form’’ and how this term related to the directly influences channel slope. The that is beneath the ground surface.’’ We term ‘‘function’’ that was also discussed dominant in-stream substrate particle do not concur. It would not be in the proposed rule. Similarly, many size is dependent on discharge at appropriate to define groundwater in commenters questioned the application bankfull stage and channel slope, and those terms because the definition of and relationship to the term ‘‘form’’ determines the nature of in-stream proposed by the commenter is not used to the bond release provisions of habitat and the types of biota that will by the scientific community. Another § 800.42(b)(1) of the proposed rule and dominate given appropriate water commenter said that the term ‘‘fully’’ references to bond release within quality and nutrient availability. was not necessary in our definition. proposed §§ 780.28, 784.28, 800.42, Additionally, in a natural or properly Although we agree with the commenter 816.57, and 817.57. After consideration restored stream these components of that the term ‘‘fully’’ may be of these comments, we agree that the ‘‘form’’ reach equilibrium such that they superfluous in some instances, we use of the term ‘‘form’’ and the similar all remain relatively constant, even as retained the definition based upon our term ‘‘hydrological form’’ within the the dynamic stream exists in a constant review of scientific literature including proposed rule could be confusing. state of flux, with meanders migrating Freeze and Cherry.143 Therefore, we have eliminated any downstream, and the stream channel at Another commenter concerned about reference to ‘‘hydrological form’’ and any given location moving back and restoring perched aquifers within the included in § 701.5 a definition of the forth across the flood prone area. All of permit area opined that perched term ‘‘form’’. The term ‘‘form’’ as used these features are integral to restoring aquifers are often difficult to in the proposed rule in § 816.57(b)(2)(i) ‘‘form’’ and ultimately to achieving differentiate from temporary saturation and in the final rule definition was successful stream restoration. of the soil horizon as a result of drafted based on the criteria established Establishment of ‘‘form’’ is a precipitation events. We disagree. A in ‘‘Applied River Morphology’’ by prerequisite to achieving ‘‘hydrologic perched aquifer has distinct properties, 139 Rosgen. function.’’ such as saturated permeable sediments The addition of the definition of Fugitive Dust overlying discontinuous impermeable ‘‘form’’ will also provide clarity sediments that are not found in soil regarding the requirements for achieving We proposed to remove this horizons. The geologic information the Phase I bond release when mining definition because it defines a term that permittee is required to collect as part through or permanently diverting a we no longer use in our regulations. See of the permit application process under perennial or intermittent stream as 80 FR 44436, 44471 (Jul. 27, 2015).140 final rule § 780.19(f) will provide the discussed and explained more We received no comments on the information needed to differentiate a thoroughly throughout the applicable deletion of this term, so we are adopting perched aquifer from a temporarily sections of the final rule preamble our proposed action of deletion. saturated soil horizon within the permit discussion. area. Groundwater The term ‘‘form,’’ as used in Another commenter asserted that the §§ 780.28(e)(1)(viii), 784.28(e)(1)(viii), proposed definition for ‘‘groundwater’’ 800.42(b)(1), 816.57(e), and 817.57(e), We proposed to revise the definition of groundwater to provide clarity and to included water in regional and perched means the physical characteristics, aquifers. The same commenter was also pattern, profile, and dimensions of a replace the words ‘‘ground water’’ with the single word ‘‘groundwater’’ concerned with the inclusion of stream channel. It is necessary to define ‘‘perched aquifers’’ in the definition of the ‘‘form’’ of a stream because it greatly throughout our regulations for internal consistency. Specifically, our proposed groundwater. The commenter was influences a stream’s ‘‘hydrologic concerned that mining through a function,’’ which is also a term we are definition was adapted from a publication entitled ‘‘The ABCs of perched aquifer within the permit area 141 would no longer be allowed because it 136 Aquifers’’ and Freeze and Cherry’s 80 FR 44436, 44610 and 44632 (Jul. 27, 2015). would be considered impacts to 137 80 FR 44436, 44656 and 44681 (Jul. 27, 2015). 138 Id. 140 80 FR 44436 (Jul. 27, 2015). groundwater, constituting material 139 Dave Rosgen, Applied River Morphology, 141 Andrew Stone.’’The ABCs of Aquifers,’’ (May Chapter 2, Fundamental Principles of River Systems 30, 2010); available at http://www.nationaldriller. 142 Allen Freeze & John A. Cherry, Groundwater, and Chapter 5, The Morphological Description. com/articles/85773-the-abcs-of-aquifers (last Prentice-Hall, Englewood Cliffs, N.J., at pg. 2 (1979). (1996). accessed Nov. 8, 2016). 143 Id. at 2.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93106 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

damage of the hydrologic balance regulations. However, as stated in the methods, including avoiding acid or outside the permit area. We disagree preamble to the proposed rule,148 these other toxic mine drainage and with both of the commenter’s assertions. revisions are necessary to provide preventing, to the extent possible using First, under our previous definition of clarity and consistency. the best technology currently available, groundwater,144 perched aquifers, local additional contributions of suspended Highwall Remnant aquifers, and regional aquifers are all solids to streamflow. Both of these included in the definition. Therefore, We received no comments on our methods address water quality issues. there is no change in this respect to the proposed removal of this definition, definition of groundwater in the final which we are removing as proposed. Hydrologic Function rule; we merely listed specific aquifer Hydrologic Balance Within §§ 780.28, 784.28, 800.42, types for the sake of clarity. In the 816.57, and 817.57 of the proposed rule, proposed rule, we inadvertently We proposed to revise our definition relating to activities in through, or excluded ‘‘local aquifer’’ from the list of of ‘‘hydrologic balance’’ in § 701.5 to adjacent to perennial or intermittent types of aquifers. This was an oversight; include more emphasis on water quality streams, we made reference to the therefore, we added ‘‘local aquifer’’ to by specifying that the definition restoration of the ‘‘form’’ of a stream. the final rule definition of encompasses ‘‘interactions that result in Specifically, the proposed rule required ‘‘groundwater’’. Secondly, the changes in the chemical composition or applicants desiring to mine through or commenter’s assertion that mining physical characteristics of groundwater divert a perennial or intermittent stream through a perched aquifer within the and surface water, which may in turn to ‘‘demonstrate that [they could] restore permit area would no longer be affect the biological condition of streams the form . . . of the affected stream . . permissible is not accurate. As stated in and other water bodies.’’ Several . .’’ 150 Additionally, in §§ 816.57 and the preamble,145 perched aquifers could commenters either questioned the 817.57,151 we proposed that ‘‘form’’ of a be mined through within the permit rationale for inclusion of the latter stream segment must be restored. We area and need not be restored unless phrase or erroneously interpreted it as explained in the preamble to the restoration is needed to prevent material incorporating biological condition into proposed rule that: the definition. The commenters opposed to the hydrologic balance outside the a restored stream channel or a stream- permit area. the proposed addition, asserting that the definition of ‘‘hydrologic balance’’ channel diversion need not exactly replicate Another commenter suggested that we the channel morphology that existed before mention in the definition of should focus on water quality and mining. . . it must have a channel groundwater that the terms ‘‘aquifer’’ quantity and not the aquatic morphology comparable to the premining and ‘‘water table’’ are sometimes used to community. form of the affected stream segment in terms mean the same thing in our regulations. We never intended for biological of baseline stream pattern, profile, and The terms do not mean the same thing condition to be part of the definition of dimensions, including channel slope, and we have used the terms consistently ‘‘hydrologic balance’’ which we agree sinuosity, water depth, bankfull depth, and correctly throughout the preamble should be limited to water quality, bankfull width of the flood-prone area, and dominant in-stream substrate.152 and final rule. Aquifer means a zone, quantity, movement, and storage. stratum, or group of strata that can store Therefore, the definition that we are Despite this explanation in the and transmit water in specific quantities adopting as part of this final rule does preamble, several commenters for a specific use.146 Water table is the not include the phrase ‘‘which may in questioned the meaning of the term level (elevation) in the saturated zone at turn affect the biological condition of ‘‘form’’ and how this term related to the which the hydraulic pressure is equal to streams and other water bodies.’’ term ‘‘function’’ that was also discussed atmospheric pressure.147 We use both of However, that phrase is an accurate in the proposed rule. Similarly, many these terms, consistently in the final statement in that interactions that result commenters questioned the application rule and not as implied by the in changes in the chemical composition of and relationship to the term ‘‘form’’ commenter. The same commenter also or physical characteristics of to the bond release provisions of asserted that we should include in the groundwater and surface water may § 800.42(b)(1) of the proposed rule and final definition the fact that indeed affect the biological condition of references to bond release within groundwater water levels may vary streams and other water bodies, which §§ 780.28, 784.28, 800.42, 816.57, and seasonally. Although we agree with the is one of the reasons that the impact of 817.57. After consideration of these commenter that groundwater levels may mining and reclamation on the comments, we agree that the use of the vary seasonally, it is not necessary to hydrologic balance is a primary focus of term ‘‘form’’ and the similar term include this fact in the definition of SMCRA and the permitting process. ‘‘hydrological form’’ within the groundwater. However, a requirement One commenter stated that the proposed rule could be confusing. exists in final rule § 780.19(b) that the definition should be limited to the flow, Therefore, we have eliminated any permit application must include quantity, and physical form of water. reference to ‘‘hydrological form’’ and information sufficient to document According to the commenter, the have included a definition of the term seasonal variations in the quality, definition should not include any ‘‘hydrologic function’’ in § 701.5. The quantity, and usage of groundwater, mention of water quality. We disagree. term ‘‘hydrologic function,’’ is a term including all surface discharges within SMCRA quite clearly includes water we are incorporating into the final rule the proposed permit area and adjacent quality as a component of the for clarity. area. hydrologic balance. For example, The addition of the definition of We received another comment stating section 515(b)(10) 149 requires that ‘‘hydrologic function’’ will also provide that the definition of groundwater did surface coal mining operations clarity regarding the requirements for not need to be changed from the existing minimize disturbances to the prevailing achieving Phase II bond release when hydrologic balance at the mine site and mining through or permanently 144 44 FR 15318 (Mar. 13, 1979). in associated offsite areas by various 145 80 FR 44436, 44471 (Jul. 27, 2015). 150 80 FR 44436, 44610 and 44632 (Jul. 27, 2015). 146 44 FR 15317 (Mar. 13, 1979). 148 80 FR 44436, 44587 (July 27, 2015). 151 80 FR 44436, 44656 and 44681 (Jul. 27, 2015). 147 Freeze and Cherry, Groundwater at 39. 149 30 U.S.C. 1265(b)(10). 152 Id.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93107

diverting a segment of a perennial or reasons explained in the preamble to the ‘‘intermittent stream.’’ Within the final intermittent stream as discussed and ‘‘ephemeral stream’’ definition, we are rule the definition of ‘‘intermittent explained more thoroughly throughout adding reference to ‘‘snowmelt’’ within stream’’ now includes the clarifying the applicable sections of the final rule the definition of ‘‘intermittent stream.’’ statement: ‘‘[t]he water table is located preamble discussion. One commenter suggested the above the streambed for only part of the The term ‘‘hydrologic function’’, as definition should be tied to the number year, which means that intermittent used in §§ 780.28(e), 784.28(e), of months in each year that snowmelt streams may not have flowing water 800.42(b)(2), 816.57(f), and 817.57(f), normally contributes to the baseflow in during dry periods.’’ Additionally, we refers to the role that streams play in the stream. This comment was not agree with commenters that snowmelt transport of water and flow of water accepted because the ‘‘intermittent should be considered a supplemental within the stream channel and stream’’ definition recognizes that source of water for streamflow. floodplain. As contained in the final snowmelt provides supplemental flow Therefore, we have incorporated rule, the term ‘‘hydrologic function’’ and that supplemental flow may only ‘‘snowmelt’’ into the final rule includes total flow volume, seasonal occur during certain times of the year. definition. variations in streamflow and base flow, Another commenter pointed out that A commenter asserted that based on and provisions of the water needed to the proposed definition of ‘‘intermittent the proposed definition of ‘‘intermittent maintain floodplains and wetlands stream’’ did not explicitly mention the stream’’ and the prohibition of the associated with the stream. relationship the stream has to the water placement of sedimentation control Establishment of ‘‘hydrologic function’’ table. The commenter thought this was structures in a perennial or intermittent occurs after achieving ‘‘form.’’ The problematic because we included the stream, coal mining would be severely ‘‘form’’ of the stream has a significant relationship in the proposed definition and negatively impacted in the western impact on hydrologic function. of ‘‘perennial stream’’. For the purposes region. The commenter implies that of consistency and clarity we added a because intermittent streams with Intermittent Stream statement in the final rule definition nominally, low-yield base flow from As discussed in the preamble to the that describes the relationship between spring discharges are common in the proposed rule,153 we proposed to the water table and an intermittent western region, the proposed definition redefine ‘‘intermittent stream’’ in a stream. would change the stream classification. manner that is substantively identical to One commenter opined that the We disagree. Neither the proposed the manner in which the U.S. Army definition of ‘‘intermittent stream’’ definition nor the definition within the Corps of Engineers defines that term in should address whether a stream’s final rule has any effect on the steam Part F of the 2012 reissuance of the function is impaired by change in flow designation because both definitions nationwide permits 154 under section and potential change in frequency, require contribution of groundwater 404 of the Clean Water Act.155 duration, magnitude, rate of change, and flow to the stream during parts of the Additionally, we proposed to remove timing of flows. We did not accept this year. In addition, the commenter opined paragraph (a) of our former definition of comment because functional that there should be an allowance for ‘‘intermittent stream.’’ See 80 FR 44436, impairment from water quantity sediment control systems for other 44472 (Jul. 27, 2015). We received changes is more appropriately mining areas in relationship to differing opinions on this invitation for addressed by the definition of ‘‘material intermittent streams similar to the comment. One regulatory authority and damage to the hydrologic balance exceptions allowed for excess spoil fills other commenters supported the outside the permit area’’ found at and steep-slope areas as provided in proposed deletion while others urged § 701.5, and explained in this preamble. proposed paragraph (c) of § 816.57 and the retention of paragraph (a), which Although we specified within the discussed within the preamble to the provided that an intermittent stream proposed definition that an proposed rule.156 The exceptions means ‘‘a stream or reach of a stream ‘‘intermittent stream’’ means ‘‘a stream outlined in the proposed rule are that drains a watershed of at least one or part of a stream that has flowing incorporated into the final rule because square mile. . . .’’ This former water during certain times of the year in some steep-slope areas the only place definition functioned to automatically when groundwater provides water for to install a sedimentation control designate any stream or reach of stream streamflow’’ several commenters structure is in the stream. This is that drains a watershed of at least one questioned the extent to which discussed in more detail in the square mile as an intermittent stream. groundwater should be considered in preamble discussion of paragraph (h) of We agree with the commenters the definition of ‘‘intermittent stream.’’ § 816.57. supporting the deletion of paragraph (a) Some commenters requested that the Similar to the explanations within the because the former definition is definition of ‘‘intermittent stream’’ definitions of ‘‘ephemeral’’ and inconsistent with generally accepted specify that the groundwater ‘‘perennial’’ streams and to address stream classification systems because it contribution is from an aquifer and not commenters’ confusion concerning what is based on watershed size rather than a result of man-made features such as is or what is not a stream, we have streambed characteristics, duration, and upstream reservoirs, groundwater revised the definition of ‘‘intermittent source of streamflow. Therefore, we are pumped to the surface, or irrigation stream’’ to clarify that an ‘‘intermittent not including paragraph (a) as it existed return flows. In addition, several stream’’ only includes those in the former regulation within the commenters recommended the conveyances with channels that display definition of ‘‘intermittent stream’’ in definition require that there be a both a bed-and-bank configuration and the final rule. contribution from groundwater and not an ordinary high water mark. The We received comments requesting strictly surface water runoff. Another addition is consistent with the preamble that we add runoff from snowmelt commenter requested clarification that discussions of the ‘‘ephemeral stream’’ events to the definition. For the same the mere occurrence of snowmelt in and ‘‘perennial stream’’ definitions. spring would not automatically make a One commenter opined that linking 153 80 FR 44436, 44472 (Jul. 27, 2015). stream ‘‘intermittent’’ rather than the SMCRA definitions of ephemeral 154 77 FR 10184,10288 (Feb. 21, 2012). ‘‘ephemeral.’’ In consideration of these 155 33 U.S.C. 1344. comments, we clarified the definition of 156 80 FR 44436, 44554–44555 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93108 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

and intermittent streams to the ‘‘alien species.’’ In response to the this preamble. Other comments are definitions of those terms in the U.S. request to define ‘‘non-invasive discussed in the sections of the Army Corps of Engineers 2012 species,’’ we decline because those preamble that address the changes we Nationwide Permit may result in our species that are not defined as invasive have made to our subsidence control definitions becoming obsolete when the species will be classified as non- plan provisions at § 784.30 (previously nationwide permits are re-evaluated. invasive species. § 784.20), or that explain the measures After considering the comments, we are to prevent, control, or correct damage Land Use not adopting the U.S. Army Corps of resulting from subsidence at § 817.121. Engineers’ definition verbatim. One commenter stated that we should Notably, as explained more fully in our use or recognize international preamble discussion at Part IV.K., we Invasive Species definitions of ‘‘land use’’ such as the are revising the definition of ‘‘material Some commenters requested the final definitions from the Organisation for damage’’ in the context of the rule include definitions of ‘‘invasive Economic Co-operation and subsidence control provisions of species,’’ ‘‘non-invasive species,’’ and Development because these definitions §§ 784.30 and 817.121 to specifically ‘‘native species.’’ Other commenters are more practical when recognizing include wetlands, streams, and bodies requested that we allow the regulatory economic and cultural activities of water. Adding these features to the authority to have latitude to define these associated with human use of the land. definition clarifies that not only terms. In response, we are adding two The commenter further stated that we subsidence damage to surface lands but definitions to the final rule. We are should explain the meaning of ‘‘support also subsidence damage resulting in defining ‘‘invasive species’’ and ‘‘native facilities’’ and ‘‘integral part of the use’’ functional impairment of wetlands, species’’ in the final rule. In the included within the definition of ‘‘land streams, and bodies of water, must be preamble to the proposed rule at use.’’ The existing definition of ‘‘land repaired pursuant to the subsidence § 780.12(g) 157 we referenced Executive use’’ is sufficient. Moreover, as these repair provisions of § 817.121(c). As Order 13112,158 which focused on terms were included in the previous previously explained, we have required ‘‘invasive species.’’ This 1999 Executive version of the definition of ‘‘land use’’ operators to address impacts and correct Order included definitions of both and not otherwise proposed for change, subsidence damages to land and water ‘‘invasive species’’ and ‘‘native species.’’ we see no need to further explain their features since 1995 when we published On December 5, 2016, the 1999 meaning or to use other definitions as the final rule addressing the subsidence Executive Order was amended by suggested by the commenter. Our reason provisions of the Energy Policy Act of Executive Order 13751.159 Executive for changing this definition to include 1992. Thus, by adding ‘‘wetlands, Order 13751, entitled ‘‘Safeguarding the the sentence, ‘‘[e]ach land use category streams, and bodies of water’’ to the Nation from the Impacts of Invasive includes land used for facilities that definition of ‘‘material damage’’ in the Species,’’ includes a slightly modified support the land use’’ is to ensure the subsidence context, we are merely definition of invasive species as definition is aligned with our reinforcing our longstanding position. compared to the 1999 Executive Order. corresponding changes to §§ 780.24 and Some commenters requested that the Because the 1999 Executive Order 784.24. The alterations of this section final rule specifically address material language more closely tracks the allow for modification of postmining damage to the hydrologic balance language of SMCRA related to land uses from premining without outside the permit area from longwall protection of the human health and the requiring approval of higher and better mining that adversely impacts the environment, with one minor change for use if the land that existed before productivity of prime farmland. grammatical improvements, we are mining was already capable of Longwall mining is a method of incorporating the definitions from the supporting that use in its existing underground mining that results in 1999 Executive Order into the final rule: condition. We did not receive any planned subsidence. The commenters In response to the commenters that comments on this aspect of definition suggested revisions to several provisions suggested that we allow the regulatory change. of our regulations, including the authority latitude to define these terms, Material Damage definition of ‘‘material damage’’ in the we do not agree. It is important to have context of subsidence in § 701.5, our uniform definitions of these terms, and This definition discusses ‘‘material subsidence control regulations in these definitions, adapted from the 1999 damage’’ in the context of the § 784.30 (previously § 784.20), and our and 2016 Executive Orders, accomplish subsidence control provisions of prime farmland restoration regulations that objective. These final definitions of §§ 784.30 and 817.121, which we have in § 785.17. ‘‘invasive species’’ and ‘‘native species’’ clarified in this final rule. Several We decline to adopt the satisfy the purposes of SMCRA, are commenters raised concerns about the recommended revisions. We do not appropriate, will provide sufficient effects of subsidence on the land and interpret SMCRA as authorizing guidance to regulatory authorities, and waters overlying the underground protection of prime farmland from the are generally consistent with the mining activities. Commenters also impacts of subsidence from longwall applicable Executive Orders. For raised concerns about the applicability mining operations beyond the degree of example, although our definition of of the definition of ‘‘material damage’’ protection afforded by § 817.121(c) of ‘‘invasive species’’ contains the term (in the context of underground mine our final rule. Section 516(b)(1) of ‘‘alien species’’ and the definition in subsidence) to hydrologic features and SMCRA 160 does not require that Executive Order 13751 does not, our use recommended that subsidence damage operations using mining technology that of that term is consistent with that to surface waters be more specifically requires planned subsidence in a Executive Order’s new definition of regulated. Many of these concerns are predictable and controlled manner discussed in Part IV.K. of the preamble (primarily longwall mining) adopt 157 80 FR 44436, 44491 (Jul. 27, 2015). which discusses material damage from measures to prevent subsidence from 158 Exec. Order No. 13112 of February 3, 1999, 64 subsidence and in the preamble causing material damage to the extent FR 6184 (Feb. 8, 1999). discussion to our definition of material 159 Executive Order 13751 was published in the technologically and economically Federal Register on December 8, 2016, and can be damage to the hydrologic balance found at 81 FR 88609. outside the permit areas in § 701.5 of 160 30 U.S.C. 1266(b)(1).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93109

feasible. However, our regulations at outside the permit area’’ on a case-by- groundwater, or on the biological § 817.121(c) provide that, to the extent case basis. Similarly, some commenters condition of a perennial or intermittent technologically and economically suggested that, instead of a uniform stream.’’ What constitutes an adverse feasible, the permittee of any type of federal definition of ‘‘material damage impact for determining material damage underground mine, including longwall to the hydrologic balance outside the to the hydrologic balance outside the mines, must correct any material permit area’’, we could better address permit area is now based on damage resulting from subsidence the concerns that we raised in the consideration of certain types of caused to surface lands, wetlands, preamble to the proposed rule by reasonably anticipated or actual effects streams, or water bodies by restoring the providing technical support to the of the operation, such as effects that (1) land and water features to a condition regulatory authorities so that they could cause or contribute to a violation of capable of maintaining the value and be equipped to define ‘‘material damage applicable state or tribal water quality reasonably foreseeable uses that the to the hydrologic balance outside the standards or a state or federal water land was capable of supporting before permit area’’ in their own states. quality standard established for a subsidence damage occurred. Our We agree with these commenters in surface water outside the permit area definition of ‘‘material damage’’ in final part—states do need the flexibility to under section 303(c) of the Clean Water § 701.5 in the context of subsidence define ‘‘material damage to the Act, 33 U.S.C. 1313(c), or, for a surface includes any functional impairment of hydrologic balance outside the permit water for which no water quality surface lands, features, including area’’ to account for local and regional standard has been established, effects wetlands, streams, and bodies of water, differences in geology, hydrology, that cause or contribute to non- structures or facilities, and any physical mining, and reclamation. However, a attainment of any premining use of change that has a significant adverse federal definition is necessary to surface water outside the permit area; impact on the affected land’s capability provide guidance and clarity to the (2) preclude a premining use of to support any current or reasonably regulatory authorities as they define the groundwater outside the permit area; or foreseeable uses or that causes a term for their own jurisdictions. As (3) result in a violation of the significant loss in production or income. discussed in more detail in the Endangered Species Act of 1973, 16 Therefore, under final § 817.121(c), to preamble to the proposed rule, our U.S.C. 1531 et seq. the extent technologically and previous rules did not contain a The combination of the basic economically feasible, the permittee definition of ‘‘material damage to the definition and procedures for must repair any surface lands, including hydrologic balance outside the permit considering the types of effects that prime farmland, whenever subsidence area,’’ and, in the more than 30 years constitute material damage to the resulting from underground mining since SMCRA’s enactment, very few hydrologic balance outside the permit causes significant loss in production or states have adopted a definition.161 As area in paragraphs (1) through (3) is income or has a significant adverse a result of the lack of a definition, what substantively similar to the proposed impact on the capability of the land to constitutes ‘‘material damage to the definition, with several exceptions. support the uses that it supported before hydrologic balance outside the permit First, we deleted the references in the subsidence damage occurred. In area’’ varies greatly. This has led to proposed definition to reasonably addition, we added § 817.121(c)(2), differences in enforcement across the foreseeable uses based on comments which requires that the permittee country. These differences have also from the public, state regulatory implement fish and wildlife resulted in coal field water quality data authorities, and other federal agencies. enhancement measures, as approved by that shows significant coal mining Among other things, the term the regulatory authority in a permit impacts in many streams across the ‘‘reasonably foreseeable uses’’ is too revision, to offset subsidence-related country.162 For these reasons, we are speculative for purposes of this material damage to wetlands or a adopting a definition of ‘‘material definition. Second, we also deleted perennial or intermittent stream when damage to the hydrologic balance references to ‘‘existing use,’’ because, as correction of that damage is outside the permit area’’ that provides some commenters noted, it could create technologically and economically minimum nationwide standards while confusion because the regulations infeasible. also providing each regulatory authority implementing the Clean Water Act with the flexibility to tailor the define that term in the context of that Material Damage to the Hydrologic definition to meet the needs of its law. To avoid any possible confusion, as Balance Outside the Permit Area jurisdiction while ensuring minimal some commenters suggested, we We received numerous general and standards are met. replaced ‘‘existing’’ with ‘‘premining’’ specific comments on various aspects of To help clarify the regulation and to in paragraph (2) and added a definition our proposed definition for ‘‘material comply with the requirements of the of that term in § 701.5. That definition damage to the hydrologic balance Office of the Federal Register, we have provides that ‘‘premining’’ refers to the outside the permit area.’’ Several revised and re-designated proposed conditions and features that exist on a commenters requested that we refrain paragraphs (a) and (b) of the definition site at the time of application for a from finalizing a definition and into three paragraphs (1), (2), and (3). permit to conduct surface coal mining continue to allow regulatory authorities The basic definition now provides operations. the flexibility to define the term for their that ‘‘material damage to the hydrologic This revised definition also removes jurisdictions in order to best reflect local balance outside the permit area’’ is an the proposed definition’s direct conditions. These commenters often adverse impact, from surface coal reference to designated uses. We made focused on the diversity of the country mining and reclamation operations, this change for two reasons. First, the and objected to the perceived ‘‘one-size- underground mining activities, or concept of water quality standards fits-all’’ approach of the proposed subsidence associated with under the Clean Water Act, includes, definition. Some commenters noted that underground mining activities, on the but is ultimately broader than using just some states, such as West Virginia and quality or quantity of surface water or designated use. Designated uses are part Montana, already have definitions of the of the water quality standards, along term. Other states define ‘‘material 161 80 FR 44436, 44473–44476 (Jul. 27, 2015). with water quality criteria, damage to the hydrologic balance 162 See, e.g., 80 FR at 44440–44441 (Jul. 27, 2015). antidegradation provisions, and other

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93110 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

policies each respective state develops definition is possible for several other reasons, the Clean Water Act to help implement the Clean Water Act. reasons. For the first time since SMCRA authority has the flexibility under the Consideration of all of these was enacted, a federal definition of Clean Water Act and the implementing components of water quality standards material damage to the hydrologic regulations at 40 CFR part 131 to revise provides a more complete evaluation of balance outside the permit area the designated use to more accurately what constitutes material damage to the describes levels of unacceptable changes reflect the highest attainable designated hydrologic balance outside the permit to the hydrologic balance that result use. area. from a SMCRA operation. These A commenter also asserted that the Second, we wanted to emphasize the unacceptable impacts include definition, as proposed would result in relationship between the requirements precluding the attainment of Clean denial of all future permit applications. of SMCRA and Clean Water Act as it Water Act water quality standards, not We disagree. As previously stated, relates to surface water affected by coal maintaining premining use for material damage to the hydrologic mining operations. Thus, the final groundwater, and effects that result in a balance outside the permit area only definition of material damage to the violation of the Endangered Species Act. occurs when a mining operation causes hydrologic balance outside the permit As previously stated, post-SMCRA a stream not to satisfy its applicable area better reconciles the requirement of mining has impaired receiving streams, Clean Water Act water quality standards SMCRA to perform a cumulative which is an unacceptable effect of or an aquifer to not meet its premining hydrologic impact assessment with the current mining practices under the Act. use. Variations in water quality, jurisdiction given to the Clean Water If the concept of material damage to the quantity, biological condition, and/or Act authority for the Nation’s waters. It hydrologic balance outside the permit aquatic habitat can occur as long as the also highlights the need for coordination area had been more clearly understood stream satisfies is applicable Clean between the regulatory authority and or defined, these impacts should have Water Act water quality standards or an the appropriate Clean Water Act been prevented. aquifer meets its premining use. A authorities to develop the CHIA and to mining operation can have an adverse Commenters have generally cited two make the appropriate findings that the effect on a receiving stream as long as situations in which it will be impossible operation has been designed to prevent the stream still satisfies its applicable for regulatory authorities to apply the material damage to the hydrologic water quality standards, an aquifer proposed definition. First, they claim balance outside the permit area. meets its premining use as determined In order to effectively implement this that a one-time or temporary occurrence by the SMCRA regulatory authority, and definition, the regulatory authority and should not constitute material damage no violations of the Endangered Species appropriate Clean Water Act authorities to the hydrologic balance outside the Act are occurring. For example, a should coordinate during the permit permit area. As discussed in more detail reduction in a stream’s index of biotic application process consistent with the below, we generally agree, as long as the integrity score would not constitute requirements of the final rule. After temporary occurrence does not affect ‘‘material damage to the hydrologic permit issuance, they should also jointly the stream to the extent that, for balance outside the permit area’’ if the investigate potential water quality example, the stream fails to satisfy stream is satisfying its applicable Clean violations related to coal mining applicable water quality standards or Water Act water quality standards and operations, as appropriate. At both of violate the SMCRA material damage not in violation of the Endangered these stages, this coordination focuses thresholds set for the site. However, Species Act. Similarly, a reduction in an on exchanging project specific over the years, regulatory authorities, aquifer’s water quality parameter information to provide the regulatory including us, have witnessed single or concentrations is not ‘‘material damage authority with information to better temporary events of large magnitude to the hydrologic balance outside the assess the effects of the operation on the that have risen to the level of ‘‘material permit area’’ as long as the aquifer is cumulative impact area. This process damage to the hydrologic balance meeting its premining use and it is not should focus on the pertinent water outside the permit area’’. These events preventing an adjacent receiving stream quality standards in force for the clearly violated the Clean Water Act from satisfying its applicable Clean specific site and any applicable state or water quality standards of the streams Water Act water quality standards or if tribal polices governing low flow, affected. Second, these commenters no designated use is defined, its mixing zones, and/or any variances in contend that the definition does not premining use outside the permit area. play to ensure an appropriate evaluation allow natural and non-mining The concept of Clean Water Act water of what constitutes material damage to conditions to be factored into whether a quality standards has always existed in the hydrologic balance outside the stream maintains its applicable water both the Clean Water Act and has been permit area, where it should be quality standards. As discussed below, relevant in SMCRA analyses since the measured, and what material damage we disagree. The definition allows inception of both statutes, see, e.g., and evaluation thresholds are applicable natural, non-mining, and mining-caused section 508(a)(13) of SMCRA. This for each situation. This process should stream variations as long as the stream approach taken in our definition, enhance regulatory certainty for permit maintains its applicable water quality consequently, is not a new one; the applicants and operators because it will standards. The definition simply definition simply codifies a system that minimize or eliminate conflicts between provides a common framework from has existed for more than thirty years the agencies concerning impacts to which to assess impacts to receiving and under which many permits have receiving water bodies and identify bodies of water. Latitude exists within been issued. measures that should be adopted to this definition for regulatory authorities A commenter objected to our comply with the requirements of both to tailor the specific meaning of statement in the proposed rule that statutes. ‘‘material damage to the hydrologic because the Clean Water Act does not A commenter expressed concern that balance outside the permit area’’ to suit apply to groundwater, the regulatory the proposed definition was impossible their particular state and situations authority would need to use ‘‘best to interpret and evaluate in regard to encountered at specific mines. In judgment’’ to establish ‘‘material compliance with SMCRA. We disagree; addition, if the designated use is damage to the hydrologic balance’’ interpretation and compliance with this inaccurate or unattainable for natural or criteria to protect existing and

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93111

foreseeable uses of groundwater. The area. Therefore, adoption of a standard to the hydrologic balance outside the commenter asserted that the use of term that does not allow any variation in permit area. ‘‘best judgment’’ was not sufficiently water quality or quantity within a In the underground mining context, clear and would negatively impact the designated use category is not consistent one commenter opined that the rule operator and, thus, it should be with SMCRA. should specifically mention that a eliminated. First, ‘‘best judgment’’ does Some commenters expressed concern regulatory authority cannot approve a not appear in the regulation. Instead, it that the definition as proposed would permit application unless it determines is in recognition of the many decisions prohibit any adverse impacts at all and that the proposed operation is not the regulatory authority must make would, for example, consider temporary predicted to cause subsidence that about a specific coal mining operation. or minor impacts to be ‘‘material would result in the dewatering of any The regulatory authority makes these damage to the hydrologic balance perennial or intermittent stream. Our decisions using their ‘‘best judgment’’ outside the permit area.’’ As explained final rule defines material damage to the based on the information and data above, we disagree that the definition hydrologic balance outside the permit gleaned during the decision making prohibits ‘‘any impact’’ outside the area to encompass an adverse impact process. This is wholly appropriate, and permit area. The concept of water from subsidence that would dewater or we are not making any changes to the quality standards has inherent impair an intermittent or perennial final rule in response to this comment. flexibility within the standards that stream to the extent that applicable Several commenters implied that allow temporary and minor impacts Clean Water Act water quality standards material damage to the hydrologic outside the permit area as long as the are or would not be met or, if no balance outside the permit area should magnitude of those impacts does not designated use is assigned, the actual arise any time a partial degradation to violate applicable Clean Water Act premining use would be precluded, or surface water or groundwater occurred. water quality standards for the surface the Endangered Species Act violated. Specifically, they suggested that as part water under review. This change, when However, as discussed above, material of the definition, we should require that read in context of the entire definition, damage to the hydrologic balance material damage to the hydrologic supports the intent of SMCRA, which outside the permit area will not occur if balance outside the permit area include allows some change in baseline the surface water or groundwater can be impacts that ‘‘partially or significantly conditions provided that those changes repaired so that it still attains applicable degrade’’ or ‘‘partially, completely are not of such magnitude that a stream Clean Water Act water quality eliminate, or significantly degrade’’ any is incapable of attaining its applicable standards, or, if no designated use designated use under sections 101(a) or Clean Water Act water quality exists, its actual premining use. As 303(c) of the Clean Water Act or any standards.165 For example, if the impact discussed in more depth above, in Part existing or reasonably foreseeable use of from a mining operation causes a IV.K., as long as these regulations are surface water or groundwater outside measurable decrease in a stream’s index followed, subsidence damage from an the permit area. We disagree that of biotic integrity value, but the stream underground mining operation that does material damage to the hydrologic is still attaining its water quality not rise to the level of material damage balance outside the permit area occurs standards under the Clean Water Act, to the hydrologic balance outside the every time a stream or groundwater is this would not be considered material permit area may be allowed. partially degraded, or in some damage to the hydrologic balance Similarly, several commenters circumstances significantly degraded, outside the permit area under the suggested a single exceedance of a water because the terms ‘‘partially’’ and definition we are finalizing today. quality standard should not be ‘‘significantly’’ are subjective, do not Similarly, temporary impacts would be considered material damage to the convey a sense of magnitude, and are allowed unless those impacts violate hydrologic balance outside the permit open to interpretation and abuse. Both applicable Clean Water Act water area as it may not impact the stream the Clean Water Act and SMCRA allow quality standards or results in a hydrology to the degree that the some variation in water quality. For violation of the Endangered Species Act. designated uses are impaired. We agree instance, the Clean Water Act Some temporary impacts—such as with this comment. Similar to what we recognizes that in some situations water dewatering a stream for all but a de said in our discussion of temporary quality may vary while still being minimis amount of time or discharges impacts, under our definition, a simple protective of the designated use. containing parameters of concern in exceedance of a water quality standard However, if the ambient quality is on sufficient quantities—may, however, would not necessarily constitute the verge of the ambient water quality rise to the level of material damage to material damage to the hydrologic criterion level, then any amount of the hydrologic balance outside the balance outside the permit area. If degradation could impair the designated permit area if those impacts violate stream metrics indicate the stream is use. In addition, section 515(b)(10) of applicable Clean Water Act water maintaining its applicable Clean Water SMCRA 163 requires operations to quality standards. Therefore, Act water quality standards after minimize material damage to the incorporating the concept of the Clean exceedance events, then material hydrologic balance inside the permit Water Act water quality standards into damage to the hydrologic balance boundary and section 510(b)(3) of this definition as a benchmark to outside the permit area has not SMCRA requires that the proposed determine material damage to the occurred. However, there could be operation be ‘‘designed to prevent hydrologic balance outside the permit situations where the SMCRA regulatory material damage to hydrologic balance area accommodates the seasonal and authority determines a single outside [the] permit area.’’ 164 SMCRA, natural fluctuation inherent in natural exceedance does constitute material therefore, allows damage to the systems and allows some level of impact damage to the hydrologic balance hydrologic balance as long as that to the hydrologic balance consistent outside the permit area: if the stream damage does not rise to the level of with SMCRA while also providing a metrics indicate that the exceedance material damage outside the permit point of reference for determining when would violate applicable Clean Water the level of impact becomes detrimental Act water quality standards or one of 163 30 U.S.C. 1265(b)(10). the other criteria listed in paragraphs (2) 164 30 U.S.C. 1260(b)(3). 165 30 U.S.C. 1265(b)(10). through (3). As we explained above, the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93112 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

SMCRA regulatory authority should Clean Water Act provides a variety of of SMCRA’’ because that change could consult with the Clean Water Act policies to allow sufficient time to attain raise potential conflicts with the Clean authority to make this determination. the designated uses, such as water Water Act if the stream’s designated It is also possible to cause material quality standards variances, permit uses have changed since the enactment damage to the hydrologic balance compliance schedules, or designated of SMCRA. outside the permit area while satisfying use changes. Several commenters noted Another commenter suggested we all effluent limitations established in the that a use attainability analysis may be revise the regulation to provide a NPDES permit. SMCRA permits require required to establish or change a hierarchy of stream use categories that in-stream monitoring for parameters that designated use and that the use would provide consistency in are not limited or required to be attainability analysis may be time- determining material damage to the monitored by the corresponding NPDES consuming and expensive. In such hydrologic balance outside the permit permits. Therefore, required monitoring cases, the regional U.S. Environmental area (i.e., first designated uses, then under the SMCRA permit may indicate Protection Agency offices and relevant existing uses, and finally reasonably that a parameter that was not expected state Clean Water Act agencies can foreseeable uses). We agree that the to have the potential to exceed a provide support and may suggest other regulation needs to specify the priority numeric or narrative water quality approaches appropriate for the of stream use categories and have made criteria in the receiving stream but does situation. As noted above, we are changes as a result. As discussed above, in fact exceed the established criteria. retaining the link to attainment of we added clarifying language to This situation could also occur if designated uses in the broader water paragraph (1) that specifies that adverse numerous individually compliant quality standards approach; however, impacts that violate applicable Clean discharges cumulatively create a we are also making a clarifying change Water Act water quality standards and, situation that violates a stream’s to address some of these concerns. As if no water quality standards have been applicable Clean Water Act water proposed, the definition accounts for established, then the adverse impacts quality standards or would cause a situations where no designated use has may not preclude any actual premining violation of the Endangered Species Act. been identified for a particular stream. use. The proposed rule would have also One commenter asserted that the In those situations, the proposed rule required operators to ensure that definition of material damage to the would have required that the ‘‘existing ‘‘reasonably foreseeable uses’’ of surface hydrologic balance outside the permit use’’ be maintained in a receiving water were maintained. However, many area should apply to all streams and stream. In the final rule, to prevent commenters raised concerns about the stream segments, and that the confusion with the Clean Water Act difficulty in interpreting or assigning assessment of material damage to the definition of existing uses and prevent reasonably foreseeable use to streams. hydrologic balance outside the permit abuses related to impaired streams, we We agree and have removed the area must not be restricted to only those have made revisions to further clarify language concerning reasonably streams for which the U.S. Army Corps this concept. Our intent is to maintain foreseeable uses. The final rule no of Engineers, during the Clean Water the actual use of surface water prior to longer includes the term ‘‘reasonably Act section 404 process, makes the proposed mining operation. We are foreseeable uses’’ in contexts other than jurisdictional determinations. We agree also concerned that the baseline protection of reasonably foreseeable that material damage to the hydrologic standard for material damage to the surface land uses from the adverse balance outside the permit area is not impacts of subsidence. As explained in hydrologic balance outside the permit restricted to only those streams for other areas of the preamble, we removed area and/or stream restoration standards which there is a Clean Water Act the term from the definition of material for an impaired stream, with or without jurisdictional determination issued by damage to the hydrologic balance a designated use, may be mistakenly the U.S. Army Corps of Engineers. outside the permit area for two reasons. considered as an existing, impaired In addition, final rule First, the term appears in SMCRA only condition rather than its actual or § 780.19(c)(6)(i)(C) simplifies the in section 516(b)(1), which requires that potential designated use. To remove any process of delineating stream transitions operators of underground mines adopt confusion and add clarity, we removed by requiring that the SMCRA regulatory subsidence control measures to, among the phrase ‘‘existing use’’ from the authority default to any jurisdictional other things, maintain the value and stream determinations made by the U.S. definition and added ‘‘actual use’’ to reasonably foreseeable use of surface Army Corps of Engineers to delineate signify uses that existed prior to lands. Sections 717(b) and 720(a)(2) of stream transitions. If the U.S. Army submission of a coal mine permit SMCRA separately protect certain water Corps of Engineers has not determined application. Thus, paragraph (1) now uses. Second, numerous commenters the location of a transition point, the specifically states that if no designated opposed inclusion of the term regulatory authority must set one. There use has been established under the ‘‘reasonably foreseeable uses’’ on the are a number of available resources that Clean Water Act, a mining operation basis that it is too subjective, difficult to may be helpful including the state Clean cannot preclude attainment of any determine, and open to widely varying Water Act authority. The regulatory actual premining use of surface water interpretations, which could result in authority is encouraged to coordinate outside the permit area. inconsistent application throughout the with the U.S. Army Corps of Engineers One commenter suggested we only coalfields. and other partners in identification of consider ‘‘existing uses’’ and that we Proposed paragraph (a) defined stream transition points. define ‘‘existing uses’’ as any uses in material damage to the hydrologic Several commenters suggested that existence as of August 3, 1977, which is balance outside the permit area as any linking the definition of material the date SMCRA was enacted. We have adverse impact that would preclude any damage to the hydrologic balance not adopted this suggestion because we reasonably foreseeable use of surface outside the permit area with designated removed the phrase ‘‘existing uses’’ water or groundwater outside the permit use could be problematic in situations from the definition as it relates to area. Several commenters objected to where designated uses have not been surface waters and replaced it with ‘‘any the use of the term ‘‘reasonably identified or are not instructive, not premining use.’’ We did not replace it foreseeable uses’’. Several commenters accurate, and/or not attainable. The with ‘‘any actual use as of the enactment suggested using alternate terms such as

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93113

‘‘protected use,’’ ‘‘existing uses’’, and A commenter suggested we revise the under any circumstance; other statutes ‘‘future probable use’’. As explained definition to ensure it adequately notwithstanding. above, we deleted references to protects listed species or designated Many commenters raised concerns ‘‘reasonably foreseeable uses’’ in critical habitats. The commenter further with a statement in the preamble to the paragraph (1) of the final definition and elaborated that the definition should not proposed rule that stated: A ‘‘SMCRA elsewhere in our rules. The term was be linked to the Endangered Species regulatory authority may need to confusing and could have led to Act’s jeopardy analysis. We agree that establish numerical material damage possibly conflicting interpretations. the definition of material damage to the criteria for parameters of concern for Another commenter suggested that hydrologic balance outside the permit which there are no numerical water linking material damage to the area should adequately protect listed quality standards or water quality hydrologic balance outside the permit species and designated critical habitat, criteria under the Clean Water Act.’’ 168 area with the concept of reasonably whether aquatic or terrestrial. Paragraph For support, these commenters also foreseeable uses will create conflicts (b) of the proposed rule was included to cited section 702 of SMCRA 169 because, between the Clean Water Act and prevent impacts to threatened or to their understanding of the regulation, SMCRA agencies about what is a endangered species or adverse effects on the development of numeric standards foreseeable use. For the reasons designated critical habitat outside the to determine material damage to the explained above, we did not accept this permit area in violation of the hydrologic balance outside the permit comment. Endangered Species Act of 1973, 16 area would create a conflict with the A commenter expressed concern U.S.C. 1531 et seq. As proposed, it did Clean Water Act. In response, we note about how the Clean Water Act concept not specifically link this definition with that nothing in the definition requires of anti-degradation would relate to a jeopardy analysis under the the creation of numeric standards. In the variability in a stream designated use Endangered Species Act, and we are not proposed rule, the requirement for caused by SMCRA mining impacts. We doing so in the final rule. In the final numeric standards was included in clarified the definition by directly rule, this paragraph has been § 773.15(e)(3), which stated that a linking to the concept of Clean Water redesignated as (3) and simplified to regulatory authority needed to include a permit condition specifying criteria for Act water quality standards, which bring attention to the prohibitions found material damage to the hydrologic includes provisions for impaired in the Endangered Species Act of 1973, balance outside the permit area on a streams and antidegradation. To which also includes the unauthorized site-specific basis, expressed in establish material damage in situations ‘‘taking’’ of listed species (a criminal numerical terms for each parameter of involving impaired streams, the SMCRA prohibition). This provision, in concern. As discussed in the preamble regulatory authority should consult with conjunction with the other provisions of this final rule related to fish and to final § 773.15(e)(3), we are not the Clean Water Act authority to ensure wildlife resources discussed in the adopting the proposed requirement for a thorough understanding of the water preamble at §§ 780.16(b) and 783.20, numeric criteria unless numeric water quality standards applicable to the should provide adequate protections for quality criteria exist. stream and specific situation under threatened and endangered species, One commenter also suggested that review. aquatic and/or terrestrial, in accordance inclusion of the term biological In the proposed rule, groundwater with the Endangered Species Act. condition and ecological function into was included with paragraph (a). One One commenter, citing section 702,166 this definition is a duplication of the commenter specifically suggested we of SMCRA, requested that the definition Clean Water Act sections 401 and 404 define material damage to the of material damage to the hydrologic processes. We disagree. First, the term hydrologic balance outside the permit balance outside the permit area be ‘‘ecological function’’ is not found in the area so that it applies to groundwater. expanded to encompass any violations definition of material damage to the Although groundwater was included in of other applicable statutes or hydrologic balance outside the permit the proposed definition, we have regulations in addition to those stated in area nor is it a required element to be decided to include paragraph (2) in the the proposed rule text. The term assessed when setting criteria to asses if final rule to specifically state that ‘‘material damage to the hydrologic material damage to the hydrologic operators must maintain premining uses balance outside the permit area’’ is a balance outside the permit has occurred associated with groundwater. This term unique to SMCRA and there is no (section 780.21). Second, to the extent change clarifies that material damage to need to refer to other statutes or that any Clean Water Act section 401 or the hydrologic balance outside the regulations within this definition. 404 processes also apply, the final rule permit area protects groundwater Section 702 of SMCRA 167 will continue allows any information obtained in resources that may not have uses to fully apply independent of this these processes to be used to inform and assigned to them. In particular, this definition. We singled out the support analyses conducted under paragraph states that ‘‘material damage Endangered Species Act in paragraph SMCRA. It is vital to link water quality to the hydrologic balance outside the (3) because the statutory language is changes with aquatic impacts that may permit area’’ would include those unique in its prohibitions against result from SMCRA sites in order to adverse impacts that preclude jeopardizing the continued existence of determine whether material damage to attainment of any premining use of species and adverse changes to their the hydrologic balance outside the groundwater outside the permit area. In designated critical habitat (if in the permit area has been prevented. This addition, paragraphs (1) and (2) of the context of Section 7 of the Endangered linkage is necessary to evaluate the definition would preclude the discharge Species Act), and its prohibition against overall impact of the mining operation of contaminated groundwater into a unauthorized ‘‘taking’’ of listed species on the receiving stream and its aquatic receiving stream if that discharge caused generally. In summary, we agree that community and to assess unacceptable the stream to not satisfy its applicable SMCRA operations cannot materially changes in either designated use, actual, Clean Water Act water quality damage streams outside the permit area or premining use when a designated use standards. Thus, groundwater protections are included in this final 166 Id. 168 80 FR 44436, 44475 (Jul. 27, 2015). definition. 167 Id. 169 30 U.S.C. 1292.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93114 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

is not assigned. For these reasons we are those that rise to the level of precluding water quality standards, the regulatory retaining the term biological condition designated or existing uses because authority would either need to modify within the definition of material damage those noncompliant discharges, the permit so that material damage to to the hydrologic balance. according to the commenter, remain the hydrologic balance outside the Many commenters speculated as to solely within the purview of the Clean permit area does not occur or how coal mining impacts to receiving Water Act authority. We disagree. disapprove the permit. streams would be assessed in light of SMCRA gives jurisdictional authority to Several commenters suggested mining the proposed definition. Several its regulatory authorities over aspects of operations should not be required to commenters questioned the use of the water quality resulting from coal improve a stream’s biological condition phrase ‘‘adverse impacts’’ and were mining 170 and requires the evaluation beyond the premining condition. We do concerned that the phrase could be of water quality from SMCRA sites and not agree with this assertion for interpreted to mean any impact to a modification of the SMCRA permit any previously impaired streams. We agree receiving stream. We disagree with this time a SMCRA site is causing, or leading that if a stream is attaining its applicable interpretation. The definition of to, material damage to the hydrologic Clean Water Act water quality ‘‘material damage to the hydrologic balance outside the permit area. standards, there is no requirement balance outside the permit area’’ needs Several commenters expressed under SMCRA for the operation to to be read, understood, and applied in concern that extraneous, non-mining implement measures, for example, to its entirety. As discussed above, an related impacts, including natural attain higher designated use categories. adverse impact does not necessarily conditions, would be included in That is not the case for mining constitute material damage to the assessment of material damage to the operations affecting previously hydrologic balance outside the permit hydrologic balance outside the permit degraded streams. Section 515(b)(24) of area. The definition includes only those area and urged us to limit the scope of SMCRA specifically requires the adverse impacts that, either individually assessment to only those impacts enhancement of fish, wildlife, and or cumulatively, would preclude a directly attributable to the surface coal related environmental values where receiving stream from attaining its mining and reclamation operation. We practicable and section 508(a)(9) of applicable Clean Water Act water agree with the commenters that many SMCRA 171 requires steps be taken to quality standards, or if no designated surface coal mining and reclamation comply with all air and water quality use exists, the premining use. operations are located in areas with laws. Returning a degraded stream to a Several commenters proposed their multiple land uses and that water degraded state neither enhances fish, own definitions of material damage to quality can be impacted from these wildlife, and related environmental the hydrologic balance outside the other non-coal mining sources and values nor takes steps to comply with permit area. Most of these suggested natural conditions. The regulations the Clean Water Act’s goal of definitions tied material damage to the require permit applicants to acquire maintaining a stream’s designated use or hydrologic balance outside the permit water samples to help assess the instituting measures to help it attain its area to permanent impacts after baseline water quality in all streams water quality standards.172 Thus, the mitigation attempts have failed. We overlying and adjacent to the proposed Clean Water Act regulatory authorities decline to adopt the term ‘‘permanent’’ operation and for groundwater. Impacts must develop water quality standards because impacts can materially damage to the water from other existing that help streams achieve their the hydrologic balance outside the upstream land uses, including non-coal designated uses. Allowing a mining permit area yet not be considered mining sources, will be reflected in the operation to return a stream to a permanent. There are many examples baseline data. The baseline data will degraded state without some form of over the last 30 years of impacts that form the basis of the cumulative enhancement would, thus, conflict with were not permanent but that clearly rose hydrologic impact assessment the Clean Water Act section 303(d). As to the level of material damage to the developed by the regulatory authority. a result, in instances where a stream is hydrologic balance outside the permit That assessment evaluates the capacity not meeting its designated use, it is vital area. Some examples include the Martin of the receiving stream to assimilate the that the regulatory authority work County, Kentucky slurry breach, expected water quality emanating from closely with the Clean Water Act impacts to Tug Fork River that killed all the proposed mining operation, and authority to determine the level of aquatic life in Coldwater Fork and Wolf from all other mining-related activities, impairment, evaluate the potential Creeks, and a mine release of very high known and anticipated, within an area impacts from the proposed operation, conductivity water released from the known as the cumulative impact area. and thoroughly assess the anticipated Blacksville No. 2 Mine into Dunkard The cumulative hydrologic impact effects of the proposed operation over Fork in Greene County, Pennsylvania assessment, therefore, provides the the anticipated life-of-the-mine. This that created a golden algae bloom that regulatory authority with sufficient coordination is critical because the state caused a massive fish kill in 40 miles of information to assess whether the Clean Water Act authorities must stream. These events have all been proposed mining operation, in implement measures to ensure that all mitigated and would not be considered combination with other existing and streams achieve their assigned permanent even though they clearly reasonably anticipated mining activities, designated use(s) in conformity with constituted material damage to the will materially damage the hydrologic section 303(d) of the Clean Water hydrologic balance outside the permit balance outside the permit area. For Act.173 area which should have been prevented. example, if a stream’s assimilative One commenter also suggested the Thus, singular, nonpermanent events capacity for a certain parameter is rule should grant discretion to the can rise to the magnitude of material already consumed by other activities or regulatory authority when applying damage to the hydrologic balance if the proposed operation would bioassessment standards for material outside the permit area. exacerbate natural conditions to the damage to the hydrologic balance A commenter recommended that the point where the stream might fail to rule specify that a SMCRA regulatory attain its applicable Clean Water Act 171 30 U.S.C. 1258(a)(9). authority should not consider 172 33 U.S.C. 1251 et seq. noncompliant discharges other than 170 See, e.g., 30 U.S.C. 1260(b)(3) and 1265(b)(10). 173 33 U.S.C. 1313(d).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93115

evaluation. We agree, and as discussed statutory provisions that specifically conflicts with section 515(c)(2) of in more detail in the preamble concern impacts to waters outside of the SMCRA 178 and is a significant change discussion of material damage to the permitted area are applicable to both from the existing regulations that could hydrologic balance outside the permit surface and underground mining cause confusion for regulatory area in the proposed rule, we stated that operations. Although this has been our authorities and the regulated the regulatory authorities would have longstanding position and is clearly community. Specifically, one discretion to set criteria, including mandated by SMCRA, the definition of commenter alleged that the change from bioassessment criteria, to determine, on material damage to the hydrologic ‘‘removing substantially all overburden a case-by-case basis, whether there has balance outside the permit area that we off the bench’’ to ‘‘removing been material damage to the hydrologic are finalizing today removes any of the substantially all overburden above the balance outside the permit area.174 We ambiguity that may have resulted in this coal seam’’ and the clarification that the are adopting that approach today. Thus, comment. overburden be used to create the the definition contained in this section Moreover, our definition does not postmining contours would be a source provides regulatory authorities with the conflict with the Energy Policy Act. of misunderstanding. For the reasons framework to set their own criteria. This Section 2504 of Energy Policy Act discussed below, we disagree and are framework consists of factors that the requires operators to repair or adopting the definition as proposed. regulatory authority must consider in compensate for subsidence impacts they As we explained in the preamble to developing and applying their unique cause to surface structures and requires the proposed rule, we added a bioassessment criteria for material replacement of water supplies adversely definition of ‘‘mountaintop removal damage to the hydrologic balance impacted by coal mine subsidence. The mining’’ to § 701.5 by consolidating the outside the permit area. water replacement provisions of the descriptions of mountaintop removal One commenter indicated that the Energy Policy Act are incorporated into mining operations in previous definition of material damage to the our regulations at section 817.40 and are §§ 785.14(b) and 824.11(a)(2) and (3).179 hydrologic balance outside the permit still in effect. These regulations provide Previous § 824.11(a)(2) is nearly area has been expanded to include additional protections for individual identical to section 515(c)(2) 180 of quality and quantity impacts to surface well owners. A change to an individual SMCRA, which explains that water and ground water but also well that would trigger the replacement approximate original contour does not includes adverse impacts to the provision of section 817.40 would not need to be achieved where an operation biological condition of a stream. They necessarily constitute material damage will mine ‘‘an entire coal seam or seams further stated that the definition to the hydrologic balance outside the running through the upper fraction of a expanded the hydrologic impact review permit area unless that damage was the mountain, ridge, or hill (except as to the adjacent area and/or shadow area result of wholesale adverse changes to provided in subsection (c)(4)(A) hereof) of underground mines. In addition, the an aquifer that the regulatory authority by removing all of the overburden and commenter suggested that inclusion of determines rose to the level of material creating a level plateau or a gently subsidence damage within the damage to the hydrologic balance rolling contour with no highwalls definition of material damage to the outside the permit area. remaining.’’ Id. Previous § 785.14(b) hydrologic balance outside the permit The commenter further suggested that uses the same language except that it area contradicted the Energy Policy inclusion of the term biological qualifies the amount of overburden with Act.175 We disagree with the condition in the introductory text of the the word ‘‘substantially’’ and clarifies commenter’s classification of an definition would result in a ‘‘massive’’ that the overburden is removed ‘‘off the expanded area of review. In accordance amount of new information for the bench.’’ In our definition of with sections 508(a)(13)(A) and (C) and regulatory agency to review. We agree ‘‘mountaintop removal mining,’’ we 515(b)(10) of SMCRA, we have always that new information will be received have retained the word ‘‘substantially’’ considered adjacent areas and shadow on biological condition, but this and clarified that ‘‘substantially all of areas to be part of the evaluation of information is not anticipated to be the overburden above the coal seam’’ material damage to the hydrologic ‘‘massive’’ or otherwise overburden the must be removed and used to create balance outside the permit area. regulatory authority. Experience in the approved postmining contours. Specifically, these areas are clearly Tennessee federal program indicates Overburden is commonly understood to contemplated by section 508(a)(13)(A) collection and submission of permit be the strata overlying the coal seam. If and (C) of SMCRA, which requires specific biological condition one ‘‘removes all of the overburden’’ measures to be taken to ensure information does not substantially then they are removing the material protection of quality and quantity of increase the volume of information ‘‘above the coal seam’’ to uncover and surface and ground waters both on- and submitted for a coal mine permit then extract the entire coal seam. off-site from adverse effects of mining application. Biological condition is a Therefore, we view this change as and reclamation.176 Similarly, section critical component of determining the merely a clarification. Furthermore, the 515(b)(10) requires the operation to impact from the mining operation not addition of the phrase ‘‘and using that ‘‘minimize the disturbances to the only on water quality and quantity of overburden’’ actually makes the prevailing hydrologic balance at the the receiving stream but on impact to definition more consistent with SMCRA mine-site and in associated offsite areas the aquatic environment. This as it fully implements section and to the quality and quantity of water information needs to be evaluated to 515(c)(4)(E),181 which requires that in surface and ground water systems ensure mining and reclamation ‘‘spoil [] be placed on the mountaintop both during and after surface coal operations do not cause material bench as is necessary to achieve the mining operations ....’’177 These damage to the hydrologic balance planned postmining land use.’’ outside the permit area. Therefore, contrary to the assertions of 174 80 FR 44436, 44475 (Jul. 27, 2015). Mountaintop Removal Mining 175 42 U.S.C. 6201 et seq. 178 30 U.S.C. 1265(c)(2). 176 30 U.S.C. 1258(a)(13)(A) and (C) (emphasis Some commenters expressed concern 179 80 FR 44436, 44476 (Jul. 27, 2015). added). that the proposed definition of 180 30 U.S.C. 1265(c)(2). 177 30 U.S.C. 1265(b)(10) (emphasis added). ‘‘mountaintop removal mining’’ 181 30 U.S.C. 1265(c)(4)(E).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93116 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

the commenters, adding ‘‘above the coal understood and used in the context of elements of this final rule affect a mine seam’’ and ‘‘using that material to the streams affected by coal mining. operator’s responsibility to comply with create’’ to the definition of mountaintop Measuring from the OHWM as effluent limitations or other removal mining does not create a opposed to the bankfull elevation, requirements of the Clean Water Act. conflict with the language of SMCRA which is the point at which the The requirements of the Clean Water and does not create confusion. No streambanks can hold no more water Act have independent force and effect change has been made to the proposed before spilling flow onto the floodplain, regardless of the terms of the SMCRA definition in our final rule. could result in a slightly narrower buffer permit. The independent effect of the zone or streamside vegetated corridor, Clean Water Act is recognized in section Native Species but, in most cases, the difference would 702(a) of SMCRA, which provides As discussed within the explanation be minimal. that— of the definition of ‘‘invasive species’’, Parameters of Concern Nothing in this Act shall be construed as some commenters requested that the superseding, amending, modifying, or final rule include definitions of We proposed to add the definition of repealing the * * * [t]he Federal Water ‘‘invasive species,’’ ‘‘non-invasive ‘‘parameters of concern’’ because we Pollution Control Act [Clean Water Act] species,’’ and ‘‘native species.’’ Other used the term extensively in the [citations omitted], the State laws enacted commenters requested that we allow the proposed rule. Under the proposed pursuant thereto, or other Federal laws definition, ‘‘parameters of concern’’ relating to the preservation of water regulatory authority to have latitude to 185 define these terms. In response, we are consists of those chemical or physical quality. adding two definitions to the final rule. characteristics or properties of surface Another commenter requested the We are defining ‘‘invasive species’’ and water or groundwater that could be definition be revised to state that the ‘‘native species’’ in the final rule. In the altered by mining activities in a manner ‘‘parameters of concern’’ will be preamble to the proposed rule at section that would adversely impact the quality determined by the approved regulatory 780.12(g) 182 we referenced Executive of surface water or groundwater or the authority. While we agree that the Order 13112 183 that focused on biological condition of a stream. We regulatory authority should identify ‘‘invasive species.’’ As discussed above continue to use the definition of local ‘‘parameters of concern,’’ if with respect to ‘‘invasive species,’’ the ‘‘parameters of concern’’ within the applicable, and include them in the 1999 Executive Order includes final rule and adopt it as proposed, with required baseline monitoring data, we definitions of both ‘‘invasive species’’ one exception. Within the definition, we are not modifying the definition. and ‘‘native species.’’ We are have replaced ‘‘biological condition of a Instead, we have clarified §§ 780.19, incorporating a definition of ‘‘native stream’’ with ‘‘including adverse 784.19, and 780.23 of the rule to state species’’ into the final rule that does not impacts on aquatic life.’’ that groundwater and surface water conflict with either the 1999 or 2016 One commenter expressed concern quality descriptions include all Executive Orders. that the definition of ‘‘biological ‘‘parameters of concern’’ as identified by In response to the commenters that condition’’ coupled with the definition the regulatory authority. With these suggested that we allow the regulatory of ‘‘parameters of concern’’ would clarifications, any ‘‘parameters of authority latitude to define the terms impose new and burdensome concern’’ identified by the regulatory ‘‘invasive species’’ and ‘‘native species’’, requirements. The definition of authority will more accurately reflect we do not agree because it is important ‘‘parameters of concern’’ was used to those constituents that could potentially to have uniform definitions of these clarify that these parameters may be of impact water resources during coal terms and the definitions, adapted from concern because of potential impacts on mining and reclamation activities in the 1999 and 2016 Executive Orders in aquatic life. Including ‘‘biological their specific region of the country. a manner that focuses on the specific condition’’ in the context of this One commenter requested we adopt goals of SMCRA, are appropriate. definition does not, in and of itself, the term ‘‘pollutants’’ instead of require additional biological data ‘‘parameters of concern.’’ We disagree Occupied Residential Dwelling and beyond the requirements expressly because the term ‘‘pollutant’’ is Structures Related Thereto defined elsewhere in the regulation; narrower than ‘‘parameters of concern.’’ We received no comments on our however, we agree that the use of term We intend the term ‘‘parameters of proposed revisions to this definition, did not provide sufficient clarity and concern’’ to cover all of the chemical or which we are adopting as proposed. have replaced ‘‘biological condition of a physical characteristics that are stream’’ with ‘‘including adverse currently present in surface water or Ordinary High Water Mark impacts on aquatic life’’. groundwater, or that could be released One commenter stated that we should use We also received a variety of as a result of coal mining and the ordinary high water mark (OHWM) comments on the definition of reclamation activities or from the instead of the bankfull elevation when ‘‘parameters of concern.’’ A few natural environment during such measuring distances from streambanks commenters asked us to delete this activities, and that could be present in because the OHWM is both more common for proposed definition altogether. These sufficient concentrations to result in that purpose and more easily determined. We adopted the commenter’s suggestion, which commenters alleged that the definition material damage to the hydrologic meant that we needed a definition of OHWM. conflicts with the Clean Water Act and balance outside the permit area. In To promote consistency between SMCRA exceeds our authority. We disagree. The addition, using ‘‘parameters of concern’’ and the Clean Water Act, we settled on the Clean Water Act established a national instead of ‘‘pollutant’’ in our regulations definition in regulation 33 CFR 328.3(e). goal to restore or maintain the chemical, avoids confusion with the term We made only one change—replacing physical, and biological integrity of the ‘‘pollutant’’ as defined in section 502(6) 184 ‘‘shore’’ with ‘‘bank’’ in our definition Nation’s water. The final rule of the Clean Water Act. because ‘‘bank’’ is more commonly definition, like the proposed rule In consideration of these comments, definition, complements these Clean we are not making any additional 182 80 FR 44436, 44491 (Jul. 27, 2015). Water Act requirements. None of the modifications to the final rule. As 183 Exec. Order No. 13112 of February 3, 1999, 64 FR 6184 (Feb. 8, 1999). 184 33 U.S.C. 1251(a). 185 30 U.S.C. 1292(a).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93117

discussed above, the final rule will be language recognizing that state or nonmonetary benefit to the adopted as proposed with the exception protections for all stream types may landowner to the community than the of the removal of the reference to exceed the U.S. Army Corps of premining land uses.’’ The phrase ‘‘biological condition of a stream.’’ Engineers’ requirements and compel ‘‘capable of’’ was added to the definition regulatory authorities to adopt more Perennial Stream of ‘‘reclamation’’ because the previous stringent protections within the permit definition could have been As discussed in the preamble to the conditions. States have the ability to misconstrued to require the 186 proposed rule, we proposed to adopt more stringent rules when they implementation of the postmining land redefine ‘‘perennial stream’’ in a manner are revising their regulations governing use, exceeding section 515(b)(2)’s that is substantively identical to the surface coal mines and underground requirement that the disturbed land be manner in which the U.S. Army Corps mines to satisfy the requirements set restored ‘‘to a condition capable of of Engineers defines that term in Part F forth in the final rule. States can adopt supporting the uses which it was of the 2012 nationwide permits 187 more stringent rules that afford greater capable of supporting prior to any under section 404 of the Clean Water protections to ephemeral, intermittent, Act.188 We are adopting the proposed mining, or higher or better uses. . . and perennial streams. Because states .’’ 191 Requiring reclamation of disturbed definition with a few changes. First, in already have the authority under section areas to a condition in which the site is response to commenters requesting that 505(b) of SMCRA 189 to provide for more ‘‘capable of’’ supporting the uses it was we include runoff from snowmelt to our stringent land use and environmental ‘‘capable of’’ supporting before any definition, ‘‘runoff from rainfall events controls and regulations of surface coal mining is the functional equivalent of and snowmelt’’ is now included within mining and reclamation operations than requiring that disturbed areas be ‘‘able the definition of ‘‘perennial stream.’’ the provisions of SMCRA, it is not This is consistent with the ephemeral necessary to add additional language to to’’ support the same land uses the land and intermittent stream definitions and the final rule. was ‘‘able to’’ support prior to mining. discussed in more detail within those This is consistent with the common sections of this preamble. Second, we Premining meaning of the word and nothing in are adding the statement that ‘‘perennial In response to requests from several SMCRA indicates that ‘‘capable of’’ streams include only those conveyances commenters, we are adding a definition should be given anything other than the with channels that display both a bed- of ‘‘premining’’ to § 701.5 of the final ordinary meaning of the word. For and-bank configuration and an ordinary rule. The definition provides that example, the Merriam-Webster high water mark.’’ This addition is also ‘‘premining’’ refers to the conditions Dictionary defines ‘‘capable’’ as consistent with the ephemeral and and features that exist on a site at the meaning ‘‘able to achieve efficiently intermittent stream definitions time of application for a permit to whatever one has to do; competent’’ and discussed herein. conduct surface coal mining operations. ‘‘having the ability, fitness, or quality In our revised definition, ‘‘perennial Some of our regulations refer to necessary to do or achieve a specified stream’’ means a stream or part of a conditions or features in existence thing.’’ 192 Although previous § 816.133 stream that has flowing water year- before any mining occurred on the site, may have been misconstrued to only round during a typical year. One not the conditions or features in require that a site be reclaimed for one commenter stated that the term ‘‘typical existence at the time of preparation of postmining land use, the revised year’’ is too vague. Another commenter the permit application. In those definition of ‘‘reclamation’’ clarifies that requested clarification on the length of instances, we typically use the terms the land itself must be reclaimed to time meant by ‘‘most of the year.’’ Our ‘‘prior to any mining’’ or ‘‘before any support the same variety of land uses it final definition of ‘‘perennial stream’’ is mining’’ instead of ‘‘premining.’’ was able to support prior to any mining. substantively identical to the Reclamation Where the land was capable of corresponding U.S. Army Corps of supporting a wide variety of uses, the Engineers’ definition. Both definitions As we explained in the preamble, we reclaimed land must also be able to recognize that perennial streams or proposed to revise the definition of support those land uses. For example, segments of those streams may cease ‘‘reclamation’’ to fully implement even if the proposed postmining land flowing during periods of sustained, SMCRA by expanding the definition to use for a formerly forested area is below-normal precipitation. Thus, a include the entire disturbed area, to grassland, and grassland is established cessation in flow during those periods encompass all actions taken to restore after mining, the soil must be restored would not result in the reclassification land and water to the conditions to a condition that could also support of the stream as intermittent. To the required by SMCRA, and to clarify that forests. In this regard, the ability to extent a SMCRA regulatory authority the reclaimed land must be capable of successfully support a type of vegetation needs additional clarification of the supporting the uses it was capable of indicative of a single land use may not terms ‘‘typical year’’ and ‘‘most of the supporting prior to any mining or, alone prove the land’s capability has year,’’ we recommend that they subject to certain restrictions, higher or 190 been restored to the requirements of coordinate with the Clean Water Act better uses. section 515(b)(2) of SMCRA.193 Finally, Several commenters requested authority. previous § 780.23(a)(2)(i), which we explanation of the terms ‘‘capable of’’ One commenter asserted that the adopted in the final rule as and ‘‘higher or better’’ as referenced in regulations pertaining to a ‘‘perennial § 779.22(b)(1), specifies that capability the proposed definition. We did not stream’’ should allow regulatory must be determined on the basis of soil authorities to adopt and apply propose to revise the definition of and foundation characteristics, regulations that could better protect ‘‘higher or better uses’’ in this perennial streams. Similarly, another rulemaking. Section 701.5 defines this 191 commenter requested the addition of term as meaning the ‘‘postmining land 30 U.S.C. 1265(b)(2). 192 capable. 2016. In Merriam-Webster.com. uses that have a higher economic value Retrieved Nov.1, 2016, from http://www.merriam- 186 80 FR 44436, 44476–44477 (Jul. 27, 2015). webster.com/dictionary/capable. Oxford University 187 77 FR 10184, 10288 (Feb. 21, 2012). 189 30 U.S.C. 1255. Press. 188 33 U.S.C. 1344. 190 80 FR 44436, 44477 (Jul. 27, 2015). 193 30 U.S.C. 1265(b)(2).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93118 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

topography, vegetative cover, and the We do not agree with the commenter a water supply’’ provides sufficient hydrology of the proposed permit area. that the outcome described above specificity without being under One commenter urged us to include represents a change from the status quo. inclusive or over inclusive. within the definition of ‘‘reclamation’’ a The outcome described by the A commenter noted that the preamble reference to the restoration of streams commenter is consistent with the to the proposed definition stated that damaged by subsidence. We are not baseline conditions upon which the the definition would include recharge incorporating this recommendation into DRIA was based. Section 522(a)(3)(C) of areas for wetlands. See 80 FR 44436, the final rule because we have SMCRA 194 provides that a regulatory 44588 (Jul. 27, 2015). The commenter specifically addressed this issue within authority may, pursuant to a petition, further noted that the definition itself § 784.30, relating to preparation of a designate a surface area as unsuitable does not mention wetlands, which ‘‘subsidence control plan and what for certain types of surface coal mining means that, in practice, recharge areas information must that plan include’’ operations if those operations will for wetlands are unlikely to be protected and § 817.121, relating to what measures ‘‘affect renewable resource lands in as renewable resource lands. The must be taken to ‘‘prevent, control, or which such operations could result in a commenter recommended that we revise correct damage resulting from substantial loss or reduction of long- the definition to explicitly include subsidence’’ within the final rule and range productivity of water supply or of recharge areas for wetlands. We discussed more thoroughly within those food or fiber products, and such lands acknowledge the inconsistency cited by sections. to include aquifers and aquifer recharge the commenter. However, nothing in areas.’’ This language clearly includes section 522(a)(3)(C) of SMCRA mentions Reclamation Plan watersheds of reservoirs and natural wetlands as being renewable resource Several commenters combined their water bodies that function as water lands. Therefore, we decline to revise comments on this definition within supplies. We have always interpreted the definition as recommended. their discussion of the definition of the definition of ‘‘renewable resource Wetlands will be considered renewable ‘‘reclamation.’’ Therefore, we addressed lands’’ as including those resource lands only to the extent they the comments regarding ‘‘reclamation watersheds.195 Therefore, there is no are integral features of watersheds of plan’’ in the same manner as explained need for a socioeconomic analysis of the surface water bodies that function as in the definition of ‘‘reclamation.’’ We proposed definition because the water supplies. received no additional comments on our revisions are intended to reconcile the Replacement of Water Supply definition to both the underlying proposed revisions to this definition; We received no comments on our statutory provision and historical therefore, we are adopting the definition proposed revisions to this definition, practice. as proposed. which we are adopting as proposed. However, we agree that the scope of Renewable Resource Lands the proposed definition is too broad in Temporary Diversion We proposed to define ‘‘renewable that it would include the watersheds of One commenter expressed concern resource lands’’ as ‘‘aquifers, aquifer all surface waters, not just surface water that the proposed definition of recharge areas, recharge areas for other bodies that serve as water supplies. ‘‘temporary diversion’’ includes no subsurface and surface water, areas of Therefore, we decided not to adopt the specific time for ‘‘temporary.’’ The agricultural or silvicultural production proposed revision to the definition to commenter noted that, under the of food and fiber, and grazing lands.’’ the extent that it would include proposed definition, a temporary The only substantive difference from the ‘‘recharge areas for other subsurface and diversion could remain in place until previous definition, which we adopted surface water.’’ Instead, we revised the the end of mining and reclamation on March 13, 1979, was the addition of definition to include ‘‘recharge areas for activities, which may be measured in recharge areas for surface water. other subsurface water,’’ which is decades, and therefore is not consistent One commenter expressed concern consistent with the previous definition’s with the common usage of the word that the inclusion of recharge areas for inclusion of areas for the recharge of ‘‘temporary.’’ The commenter surface water could have the effect of other underground waters. We also recommended that, with respect to classifying all lands within watersheds revised the definition to include stream diversions, the word that drain to a stream or reservoir used ‘‘surface water bodies that function as a ‘‘temporary’’ be subdivided into a for a public drinking water supply as water supply.’’ The latter revision more ‘‘short-term temporary’’ period no more renewable resource lands and thus open closely tracks the language of section than two years in duration and a ‘‘long- the door to challenges seeking to ban all 522(a)(3)(C) of SMCRA. term temporary’’ period two years or coal mining in those watersheds. One commenter supported the longer in duration that can extend until According to the commenter, this proposed modification of the definition the end of mining and reclamation outcome would be inconsistent with the to include recharge areas for surface activities. statement in the DRIA that the proposed waters. The commenter recommended The commenter correctly points out rule would not strand or sterilize any that we revise the proposed definition to that proposed §§ 780.28 and 784.28 reserves; i.e., that the proposed rule explicitly identify examples of surface would establish different standards for a would not make any coal reserves that waters by adding ‘‘(such as lakes, ponds, temporary stream channel diversion in are technically and economically and wetlands)’’ after ‘‘surface water.’’ place for more than two years as feasible to mine under baseline We decline to adopt this compared to one in place for less than conditions unavailable for extraction. recommendation because our revision of two years. However, we do not agree The commenter further opined that, if the definition to include ‘‘watersheds that the revision suggested by the we decide to proceed with adoption of for surface water bodies that function as commenter is necessary or would the revised definition, we should improve clarity. We define a ‘‘temporary conduct a detailed socioeconomic 194 30 U.S.C. 1272(a)(3)(C). diversion’’ as a ‘‘channel constructed to 195 See 48 FR 41327 (Sept. 14, 1983) (‘‘these types impact analysis to fully assess the of lands [watershed lands] may, on a case-by-case convey streamflow or overland flow’’ repercussions of expanding the scope of basis, be determined to be renewable resource and specify that the term ‘‘includes only the definition. lands’’). those channels not approved by the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93119

regulatory authority to remain after definition of this term. After evaluating under the Clean Water Act. However, reclamation as part of the approved the comments, we agree that adoption of section 505(b) of SMCRA 198 specifies postmining land use.’’ Thus, a the definition is unnecessary for that any state law or regulation that temporary diversion is in place only implementation of the final rule. In provides for ‘‘more stringent land use until its intended purpose has been response to comments, we have revised and environmental controls of surface fulfilled, after which time it is removed. the final rule by replacing the term coal mining and reclamation operations A temporary diversion may be in place ‘‘waters of the United States’’ with than do the provisions of this Act or any through the reclamation phase and bond ‘‘waters subject to the jurisdiction of the regulation issued pursuant thereto shall release, which, as the commenter notes, Clean Water Act, 33 U.S.C. 1251 et seq.’’ not be construed to be inconsistent with could be decades. While the term this Act.’’ Therefore, SMCRA regulatory Wetlands ‘‘permanent diversion’’ is not authorities may use wetlands specifically defined, it includes We did not propose to add a definitions and delineation techniques anything that is not a ‘‘temporary definition of ‘‘wetlands.’’ However, a that differ from those in the U.S. Army diversion.’’ We do not define the term few commenters requested that we Corps of Engineers’ Manual so long as ‘‘temporary’’ relative to the time a define ‘‘wetlands’’ or, preferably, clarify those definitions and techniques do not diversion is in place, but rather that the term ‘‘wetlands’’ as used in our exclude any areas that qualify as according to whether it will be removed final rule corresponds to the existing wetlands under the Wetlands at some point in the reclamation definition within the regulations Delineation Manual. With respect to the process. promulgated pursuant to the Clean comment that the rule should require Relative to the commenter’s assertion Water Act. We find that a unique that the U.S. Army Corps of Engineers that the definition should be clarified, definition in the final rule is delineate, document, map, and field we did make changes to § 816.43 in the unnecessary. Instead, we will defer to confirm wetlands, we do not have the final rule to establish three categories of the definition of ‘‘wetlands’’ as authority under SMCRA to impose diversions (diversion ditches, stream promulgated by the U.S. Army Corps of obligations on the U.S. Army Corps of diversions, and conveyances or Engineers and U.S. Environmental Engineers. We encourage the SMCRA channels within the disturbed area) and Protection Agency. Additionally, these regulatory authority to coordinate we specify the requirements that apply commenters stated that we should review of permit applications with the to each category. specify in the final rule that wetlands U.S. Army Corps of Engineers, but we Another commenter stated that the must be delineated using field find no reason to expressly restrict word ‘‘conveyance’’ in the definition of techniques according to the most recent wetland delineation to the U.S. Army a temporary diversion should be requirements from the Clean Water Act Corps of Engineers as part of this final removed or, at a minimum, modified so regulatory authority. One commenter rule. that if the conveyances fail, they will be suggested that the U.S. Army Corps of limited to discharges ‘‘out of the pit.’’ Engineers should delineate, document, Section 701.16: How will the stream The commenter further asserted that ‘‘in map, and field confirm wetlands. This protection rule apply to existing and pit’’ conveyance structures that fail do commenter also suggested that we adopt future permits and permit applications? not pose a risk to the public or the a definition of ‘‘wetlands’’ that includes Our proposed rule did not include environment. Therefore, according to an explanation that ‘‘wetlands are one regulatory text clarifying how the rule the commenter, they should not be subset of the Waters of the United States would affect existing permits and regulated under SMCRA or the Clean and are subject to the requirements of permit applications. A number of Water Act. We did not alter the final the Clean Water Act, just as are streams commenters emphasized that the final rule in response to this comment and other regulated bodies.’’ rule needed to include such a provision, because many of these conveyances may We decline to adopt the commenters’ both for clarity and to ensure be quite lengthy, often thousands of feet recommendations. We are not aware of preservation of the rights of existing in length, and a failure along such a any instances in which the lack of a permit holders. Some commenters noted conveyance may result in water flowing definition of ‘‘wetlands’’ under SMCRA that many of the requirements of the away for the pit, not always into the pit has created a problem. For regulatory stream protection rule, such as as suggested by the commenter, which purposes, the term ‘‘wetlands’’ is expanded baseline data collection and may potentially result in discharges off commonly understood to mean permit application requirements and site. We did however add language to wetlands as determined using the related performance standards and bond the final definition to include channels diagnostic techniques in the U.S. Army release requirements, would be that convey flows to a siltation structure Corps of Engineers Wetlands impossible for existing operations to or other treatment facility. Thus, Delineation Manual, Technical Report meet because the site has already been diversions can be constructed within Y–87–1, as published in January 1987 disturbed. According to the the permit area to convey water to a and subsequently modified. Paragraph commenters, the final rule should apply siltation structure or, as the commenter 26 in Part II of that manual summarizes only to new operations or to additions suggested, to the mine pit. the fundamental characteristics of to existing operations, not to existing wetlands. Section 702(a) of SMCRA 197 permitted lands and reclaimed areas. Waters of the United States provides that ‘‘[n]othing in this Act Others emphasized the general legal We proposed to define the term shall be construed as superseding, principle that regulations should be ‘‘waters of the United States’’ in the amending, modifying, or repealing’’ the prospective in nature, not retroactive. same manner it is defined within 40 Clean Water Act or ‘‘any rule or One commenter observed that it is not CFR 230.3(s), which is part of the regulation promulgated thereunder.’’ clear which parts of the proposed rule section 404(b)(1) guidelines under the Therefore, SMCRA regulatory would apply to existing permits. The Clean Water Act.196 We received authorities must define and identify commenter noted that the DRIA stated comments both supporting and wetlands in a manner that is no less that, for purposes of that analysis, opposing our proposed addition of a inclusive than any definition used §§ 774.15, 800.18, 800.40, 816.35,

196 80 FR 44436, 44478 (Jul. 27, 2015). 197 30 U.S.C. 1292(a). 198 30 U.S.C. 1255(b).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93120 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

816.36, 816.41, 817.35, 817.36, and exists to mine coal in a particular protection rule under the applicable 817.41 would be considered as applying location using a particular method that regulatory program, with two to existing permits. The commenter right does not vest until issuance of a exceptions. First, the stream protection further stated that the final rule should SMCRA permit. Even then, the rule would not apply to applications for include interim requirements or a regulatory authority has the right to incidental boundary revisions that do schedule for existing permits and permit require reasonable revision of the permit not propose to add acreage for coal applications under review to comply to ensure compliance with the Act and removal. Second, the stream protection with the final rule. applicable regulatory program. See rule would not apply to applications We agree that, in general, the final 199 section 511(c) of SMCRA and the that the regulatory authority has rule that we are publishing today should implementing regulations at 30 CFR determined to be administratively be prospective, not retroactive. 774.10(b). Therefore, we have added § 701.16 to Paragraph (a)(2) of § 701.16 provides complete before the effective date of the clarify the applicability of the rule. that the stream protection rule applies stream protection rule under the Section 701.16 applies only to the to any application for a new permit applicable regulatory program. The revisions to Parts 701 through 827, pending a decision by the regulatory rationale for this paragraph is consistent which paragraph (a) characterizes as the authority as of the effective date of the with the rationale contained in ‘‘stream protection rule.’’ Section 701.16 stream protection rule under the paragraphs (a)(2) and (3). does not affect the revisions to our applicable regulatory program, unless Paragraph (a)(5) of section 701.16 termination of jurisdiction rules in the regulatory authority has determined provides that the stream protection rule § 700.11(d) because those revisions the application to be administratively applies to any application for a permit merely codify longstanding court complete under § 777.15 or its state revision submitted on or after the decisions and legal representations program counterpart before the effective effective date of the stream protection concerning the applicability of the rules date of the stream protection rule under rule under the applicable regulatory governing the termination and the applicable regulatory program. program, or pending a decision by the reassertion of jurisdiction. Paragraphs Exempting administratively complete regulatory authority as of that date, that (a)(1) through (5) of § 701.16 establish applications would protect permit minimum applicability standards for applicants who invested time and proposes a new excess spoil fill, coal those stream protection rule provisions money in developing a good-faith mine waste refuse pile, or coal mine that do not contain their own specific application under the existing rules. waste slurry impoundment or that applicability provisions. Paragraph (a)(3) of § 701.16 provides proposes to move or expand the location Section 701.16 supersedes the that the stream protection rule applies of an approved excess spoil fill or coal statement in the DRIA that identifies to any application for the addition of mine waste facility. Many of the studies §§ 774.15, 800.18, 800.40, 816.35, acreage to an existing permit submitted cited in Part II of the preamble mention 816.36, 816.41, 817.35, 817.36, and to the regulatory authority after the that excess spoil fills are especially 817.41 as applying to existing permits. effective date of the stream protection detrimental to streams, both because Under § 701.16, the stream protection rule under the applicable regulatory they often cover stream segments and rule would not apply to existing permits program, with the exception of because of the adverse impacts of unless the permittee applies for certain applications for incidental boundary drainage from and through the fill on types of permit revisions. Therefore, revisions that do not propose to add aquatic life in streams downstream of there is no need for this rule to establish acreage for coal removal. Under section the fill. Coal mine waste refuse piles 200 interim requirements or a compliance 511(a)(3) of SMCRA and 30 CFR and slurry impoundments have similar schedule for existing permits. Of course, 774.13(d), any extensions to the area characteristics in that they sometimes it would not be inconsistent with covered by a permit, except incidental cover stream segments and because SMCRA for a regulatory authority to, in boundary revisions, must be made by drainage from and through the refuse its discretion, apply some or all application for a new permit. However, pile or slurry impoundment could provisions of the stream protection rule some state regulatory programs to part or all of a permit or application authorize addition of acreage to an adversely impact aquatic life in not listed in paragraph (a) of this existing permit via the permit revision receiving streams. section. process, provided that the revision Paragraph (a)(5) protects the rights Paragraph (a)(1) of § 701.16 provides meets the application information and investment of existing permittees that the stream protection rule applies requirements for a new permit and the and persons with administratively to any application for a new permit regulatory authority processes the complete applications, while limiting submitted to the regulatory authority application like an application for a new that protection to the locations and after the effective date of the stream permit. Paragraph (a)(3) would apply to dimensions approved in the permit or protection rule under the applicable these situations. We added the contained in an administratively regulatory program. One commenter provision excluding incidental complete permit revision. Allowing a argued that the final rule should apply boundary revisions that add acreage for permittee to revise the permit to add only to new leases or lands acquired coal removal as a safeguard against new excess spoil fills or coal mine waste after the effective date of the rule abuse of the exception for incidental because adoption of the proposed rule facilities, or to alter the location or size boundary revisions. of those fills or coal mine waste would significantly increase the cost of Paragraph (a)(4) of § 701.16 provides facilities, without complying with the mining large tracts of lands and coal that the stream protection rule applies reserves in which companies have to any application for the addition of provisions of this final rule would be already made significant investments. acreage to an existing permit pending a inconsistent with the principal purpose We do not agree. Persons who acquire decision by the regulatory authority as of the stream protection rule; i.e., leases, lands, or interests in land do so of the effective date of the stream preventing the loss or degradation of subject to future regulatory restrictions streams. on use of those leases, lands, or interests 199 30 U.S.C. 1261(c). in land. To the extent a property right 200 30 U.S.C. 1261(a)(3).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93121

C. Part 773—Requirements for Permits also cited In re Surface Mining these provisions further define ‘‘harm’’ and Permit Processing Regulation Litigation, 627 F.2d 1346 to ‘‘include significant habitat (D.C. Cir. 1980) as support for their modification or degradation which Section 773.5: How must the regulatory assertions. As discussed further in Part actually kills or injures fish or wildlife authority coordinate the permitting IV.I. of this preamble, neither the by significantly impairing essential process with requirements under other proposed rule nor this final rule exceed behavioral patterns, including, breeding, laws? our authority but instead fills a spawning, rearing, migrating, feeding or We are finalizing § 773.5 as proposed. regulatory gap. This final rule better sheltering.’’ 206 Take that is incidental to We received no comments on this accomplishes statutory directives in lawful activity is allowed, but only if section. SMCRA, including those that require the person obtains an authorization for Section 773.7: How and when will the the prevention of material damage to the that ‘‘incidental take’’ from the U.S. Fish regulatory authority review and make a hydrologic balance outside the permit and Wildlife Service or the National decision on a permit application? area and those that require a Marine Fisheries Service, as minimization of disturbances to the appropriate, before engaging in the We are finalizing § 773.7 as proposed. prevailing hydrologic balance at the activity.207 If a person ‘‘takes’’ a We received no comments on this mine site and in associated offsite areas. threatened or endangered species section. See, e.g., 30 U.S.C. 1260(b)(3), without obtaining authorization from Section 773.15: What findings must the 1260(b)(10). However, we did not adopt the appropriate agency, that person regulatory authority make before proposed paragraph (e)(3) as part of the could be subject to civil or criminal 208 approving a permit application? final rule because we determined that penalties. we did not need this paragraph to in Our final § 773.15(j) provides We are adopting § 773.15 as proposed order to implement the statutory applicants and regulatory authorities with the exception of paragraphs (e), (j), directives. Furthermore, we modified with four pathways to demonstrate that and (n). One commenter urged us to proposed §§ 780.21(b) and 784.21(b) to the operation will be conducted in revise paragraph (e)(2) to provide that a allow regulatory authorities to select compliance with the Endangered regulatory authority may not approve a narrative as well as numeric thresholds Species Act.209 Paragraphs (j)(1) through permit application unless it determines for material damage to the hydrologic (4) set forth those pathways. that the proposed operation is not balance outside the permit area for the Section 773.15(j)(1) applies when the predicted to cause subsidence that reasons discussed in the preamble to applicant provides documentation that would result in the dewatering of any those sections. In determining the the proposed surface coal mining and perennial or intermittent stream. appropriate numeric or narrative reclamation operations would have no Proposed paragraph (e)(2), like section thresholds, the regulatory authority will effect on species listed or proposed for 510(b)(3) of SMCRA,201 provides that consult with the Clean Water Act listing as threatened or endangered the regulatory authority may not authority, as appropriate, and undertake under the Endangered Species Act of approve a permit application unless the a comprehensive evaluation of the 1973, 16 U.S.C. 1531 et seq., or on regulatory authority finds in writing that factors set forth in § 780.21(b)(6). designated or proposed critical habitat the proposed operation has been Proposed § 773.15(j) would have under that law. This finding requires a designed to prevent material damage to required that the regulatory authority demonstration that no impact on a the hydrologic balance outside the find that the operation is not likely to proposed or listed species, or on permit area. Therefore, we decline to jeopardize the continued existence of designated or proposed critical habitat, make the change that the commenter species listed or proposed for listing as will occur, regardless of the severity of recommends. Instead, the definition of threatened or endangered under the the impact or whether the impact is ‘‘material damage to the hydrologic Endangered Species Act of 1973, 16 positive or negative. An applicant might balance outside the permit area’’ in U.S.C. 1531 et seq., or result in demonstrate this by showing that § 701.5 of the final rule will govern destruction or adverse modification of surveys have not revealed the presence when dewatering of a perennial or designated critical habitat under that of any listed or proposed species or intermittent stream will constitute law. We revised proposed § 773.15(j) in designated or proposed critical habitat material damage to the hydrologic response to comments from the public within the proposed permit or adjacent balance outside the permit area and thus and other federal agencies and as a areas or that the operation has been prevent approval of the permit result of our consultation with the U.S. designed to avoid areas where a species application. Fish and Wildlife Service under is known to occur. However, the permit Proposed paragraph (e)(3) would have sections 7(a)(1) and (a)(2) of the applicant and the regulatory authority required that the regulatory authority Endangered Species Act of 1973.203 should communicate early in the include in the permit site-specific Referring to species listed as threatened process with the relevant office of the criteria for material damage to the or endangered, the Endangered Species U.S. Fish and Wildlife Service or hydrologic balance outside the permit Act provides that ‘‘it is unlawful for any National Marine Fisheries Service to area. Proposed paragraph (e)(3) would person subject to the jurisdiction of the ensure that any necessary surveys have have required that the criteria be United States to . . . (C) take any such been completed and any avoidance expressed in numerical terms for each species within the United States.’’ 204 measures are sufficient to ensure that parameter of concern. Several ‘‘Take’’ is defined in the statute to mean there will be no effect on relevant commenters opposed this proposed ‘‘to harass, harm, pursue, hunt, shoot, species or habitat. provision, alleging that requiring the wound, kill, trap, capture, or collect, or Paragraph (j)(2) applies when the regulatory authority to set numerical to attempt to engage in any such applicant and the regulatory authority criteria would supersede the Clean conduct.’’ 205 The U.S. Fish and Wildlife document compliance with a valid Water Act, which would violate section Services’ regulations implementing 702 of SMCRA.202 Some commenters 206 50 CFR 222.102. 203 16 U.S.C. 1536(a)(1)–(2). 207 16 U.S.C. 1539(a)(1). 201 30 U.S.C. 1260(b)(3). 204 16 U.S.C. 1538(a)(1)(C). 208 16 U.S.C. 1540. 202 30 U.S.C. 1292(a)(3). 205 16 U.S.C. 1532(19). 209 16 U.S.C. 1531, et seq.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93122 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

biological opinion that covers the for listing as threatened or endangered appropriate Service(s) on any actions issuance of permits for surface coal under the Endangered Species Act is that may impact species listed under the mining operations and the conduct of beyond our authority under SMCRA. Endangered Species Act or designated those operations under the applicable Some commenters alleged that we do critical habitat for those species, while regulatory program. Paragraph (j)(2) not have authority to enforce the section 7(a)(4) requires us to confer with would apply to the biological opinion requirements of the Endangered Species the appropriate Service(s) on any associated with this rulemaking, or to a Act. We do not agree with either actions that may jeopardize the biological opinion covering the issuance comment. As we noted in the preamble continued existence of any species of permits for surface coal mining to the proposed rule, both SMCRA and proposed to be listed under the operations and the conduct of those the Endangered Species Act provide Endangered Species Act (and any operations. Compliance with the authority to protect species that have critical habitat proposed to be pertinent biological opinion is an been proposed for listing.210 SMCRA designated for such species). Seizing on ongoing obligation that extends for the sections 515(b)(24) and 516(b)(11) 211 this difference, commenters criticize our duration of the surface coal mining and require that, at a minimum, mining inclusion of species proposed for listing reclamation operations. operations must ‘‘to the extent possible in certain provisions of this rulemaking, Paragraph (j)(3) is an option when we using the best technology currently claiming that we have incorrectly are the regulatory authority or there is available, minimize disturbances and conflated the two different another federal nexus to the proposed adverse impacts of the operation on fish, requirements. The commenters are operation. Under this option, the wildlife, and related environmental wrong. The existence of a consultation applicant must provide documentation values, and achieve enhancement of requirement under section 7(a)(2) for that interagency consultation under such resources where practicable.’’ The listed species does not diminish our section 7 of the Endangered Species Act requirement to minimize impacts to separate obligation under section 7(a)(4) of 1973, 16 U.S.C. 1536, has been ‘‘fish, wildlife, and related to address the impact of coal mining completed for the proposed operation. environmental values’’ is not in any way operations on species proposed for Paragraph (j)(4) is an option when a limited to species that have already listing. Section 7(a)(4) (in addition to state regulatory authority is responsible been listed under the Endangered our SMCRA authorities) provides us for permitting actions, and another Species Act. with the authority to protect both option under this paragraph is either Moreover, three different provisions species proposed for listing and unavailable or is not utilized. Under this of the Endangered Species Act apply to proposed critical habitat. option, the applicant must provide the Department of the Interior in Regarding paragraph (k), a commenter documentation that the proposed connection with the implementation of requested that we include language operation is covered under a permit SMCRA. First, section 7(a)(1) of the within paragraph (k) and in other issued pursuant to section 10 of the Endangered Species Act 212 provides provisions of the rule that relate to the Endangered Species Act of 1973, 16 that ‘‘[t]he Secretary shall review other National Historic Preservation Act 216 to U.S.C. 1539. programs administered by him and explicitly state that those provisions Some commenters requested that we utilize such programs in furtherance of only apply to ‘‘undertakings’’ and that revise proposed § 773.15(j) because, as the purposes of this Act.’’ That would our requirements only apply to federal initially proposed, they believed this necessarily include utilizing SMCRA to regulatory programs. Similarly, another section required the regulatory authority protect ecosystems and conserve commenter asked that we clarify that to make a finding that the operation was endangered and threatened species as the National Historic Preservation Act is ‘‘not likely to jeopardize the continued provided for in the Endangered Species not applicable to state programs and existence of species listed or proposed 213 Act. Second, section 7(a)(2) of the suggested that reference to the National for listing’’ under the Endangered 214 Endangered Species Act requires us Historic Preservation Act be removed. Species Act. The commenters alleged to consult with the U.S. Fish and We did not propose any substantive that it was the responsibility of the Wildlife Service or the National Marine changes to paragraph (k) and we are not Service(s) to make a ‘‘jeopardy’’ Fisheries Service to ‘‘insure that any making any changes in that paragraph in determination and that the regulatory action authorized, funded, or carried response to these comments. The authorities do not have the expertise to out’’ by us will not jeopardize the suggestions made by the commenters make this type of finding. We agree and continued existence of any species are contrary to our longstanding have clarified the final regulation. As listed as threatened or endangered explained above, we revised this section position related to this topic as reflected under the Endangered Species Act or in our 1987 rulemaking, ‘‘Protecting to require the that the regulatory result in the destruction or adverse authority make a finding that the permit Historic Properties from Surface Coal modification of designated critical Mining Operations.’’ This final rule will comply with the Endangered habitat. Third, section 7(a)(4) of the Species Act, either because the amended our regulations with respect to Endangered Species Act 215 requires that how historic properties are considered proposed operation will have no effect we ‘‘confer with the Secretary on any upon any species listed or proposed for during surface coal mining operations. action which is likely to jeopardize the listing as threatened or endangered Within that rulemaking, we stated: continued existence of any species under the Endangered Species Act of Under section 522(e) of SMCRA, the proposed to be listed under section 4 [of 1973, or on designated or proposed regulatory authority (and OSMRE for permits the Endangered Species Act] . . .’’ critical habitat under that law or it issues) must protect publicly and privately (Emphasis added). Thus, section 7(a)(2) because the applicant and the regulatory owned properties listed on the National requires us to consult with the Register of Historic Places. There is no authority have documented compliance obligation under section 522(e)(3) to protect with one of the mechanisms described 210 80 FR 44436, 44565 (Jul. 27, 2015). properties that are eligible for, but not listed in paragraphs (j)(2) through (4). 211 30 U.S.C. 1265(b)(24), 1266(b)(11). on, the National Register. However, this Many commenters also alleged that 212 16 U.S.C. 1536(a)(1). finding requires the regulatory authority to imposing a requirement that an 213 16 U.S.C. 1531(b). consider such resources when making operation must not jeopardize the 214 16. U.S.C. 1536(a)(2). continued existence of species proposed 215 16 U.S.C. 1536(a)(4). 216 54 U.S.C. 300101–307108.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93123

permitting decisions in order to assure that that require treatment, regardless of permittee and the monitoring the regulatory authority can assist the whether the parameter that creates the requirements of this final rule are Secretary in implementing his need for treatment is a parameter of directed toward identifying mining- responsibilities under section 106 of the concern. In final paragraph (n)(1), we related impacts on water quality and National Historic Preservation Act.217 replaced ‘‘parameters of concern’’ with quantity so that those impacts can be We continue to adhere to this position. the term ‘‘toxic mine drainage,’’ which distinguished from nonmining-related Moreover, our proposed rule did not is both more appropriate and more impacts. include any substantive changes to encompassing. There is no need for a One commenter asserted that by paragraph (k). If we determine it is replacement term in final paragraph incorporating paragraph (n) we were appropriate to change our position on (n)(2). improperly attempting to adopt and protecting historic places from surface Several commenters suggested that incorporate by reference a flawed policy coal mining operations, this proposed paragraph (n) should be document entitled, ‘‘Hydrologic Balance determination would be better revised to explain what the term ‘‘long- Protection: Policy Goals and Objectives addressed in a future rulemaking. term treatment’’ means, how a on Correcting, Preventing, and Proposed paragraph (n)(1) would have determination of a need for long-term Controlling Acid/Toxic Mine Drainage’’ required that the applicant demonstrate treatment is made, and the ramifications that we issued on March 31, 1997. In that the proposed operation has been if the findings incorrectly determine the that policy and accompanying designed to prevent the formation of need for long-term treatment. We do not documents, we explain that approval of discharges with levels of parameters of agree that there is a need for additional a permit that would result in the concern that would require long-term specificity in the text of the rule. ‘‘Long- creation of a discharge requiring long- treatment after mining has been term’’ refers to a discharge that term treatment would be inconsistent completed. Proposed paragraph (n)(2) continues to require treatment for more with SMCRA. We do not agree that the would have required that the applicant than a short time after the completion of policy is flawed because it is fully demonstrate that there is no credible land reclamation. The ramifications of justified by SMCRA.218 Therefore, we evidence that the design of the proposed making a demonstration and finding made no changes to paragraph (n) based operation will not work as intended to that ultimately prove inaccurate will on this comment. prevent the formation of discharges with vary with the circumstances resulting in We received many comments levels of parameters of concern that the discharge, the nature of the supporting proposed section (o), which would require long-term treatment after discharge, and the timing of the required that the regulatory authority mining has been completed. discovery. Possible outcomes include find that, to the extent possible using A commenter supported proposed issuance of a permit revision order, the best technology currently available, paragraph (n), noting that it ensures enforcement action, or initiation of the proposed operation has been advances in predicting the formation of action to rescind the permit under designed to minimize disturbances and mine drainage will be employed to section 773.20 of this rule. In all cases, adverse impacts on fish, wildlife, and prevent water pollution. However, other the permittee will need to treat the related environmental values, as commenters expressed concern that the discharge and post appropriate final identified in §§ 779.20 or 783.20, and to ‘‘no credible evidence’’ standard would assurance or bond to cover treatment enhance those resources where create uncertainty and result in costs. practicable, as required under § 780.16 unjustified permit denials by regulators A commenter expressed concern that or § 784.16. This language is similar to fearful of approving any permit proposed paragraph (n) would shift the sections 515(b)(24) and 516(b)(11) of application in areas where acid-forming burden of monitoring and accountability SMCRA 219 and is intended to reinforce or toxic-forming materials are present. for everything that happens to water compliance with those statutory In response, we modified paragraph quality in the watershed to the coal provisions. We are adopting § 773.15(o) (n)(2) to delete the ‘‘no credible industry. We disagree with the as proposed, with the exception that the evidence’’ standard and replace it with commenter. Final paragraph (n)(1) final rule does not include the phrase a requirement that the demonstration requires that the applicant demonstrate, ‘‘as identified in § 779.20 or 783.20’’ and finding be based on a thorough and the regulatory authority concur, that because those sections do not require analysis of all available evidence. Final the proposed operation has been identification of all related paragraph (n)(2) also requires that the designed to prevent toxic mine drainage environmental values. applicant explain why a study or other that would require long-term treatment evidence that supports a contrary after mining has been completed. Final Section 773.17: What conditions must conclusion is not credible or applicable paragraph (n)(2) requires that the the regulatory authority place on each to the proposed operation. applicant demonstrate, and the permit issued? Final paragraph (n) requires not only regulatory authority concur, that a We proposed to revise paragraph (e) a demonstration by the applicant, but thorough analysis of all available of this section by adding paragraph also concurrence by the regulatory evidence supports a conclusion that the (e)(4) to require that the permittee notify authority. The requirement for design of the proposed operation will the regulatory authority and other concurrence by the regulatory authority work as intended to prevent the appropriate state and federal regulatory provides an additional safeguard against formation of discharges that would agencies of any noncompliance with a the approval of applications that require long-term treatment after mining term or condition of the permit. ultimately create long-term discharges has been completed. Final paragraph Notification would allow those agencies in need of treatment. (n)(2) also provides that, if a study or to take any necessary action to minimize Unlike the proposed rule, final other evidence supports a contrary the impacts of the noncompliance on paragraphs (n)(1) and (2) do not refer to conclusion, the applicant must explain the environment or public health or ‘‘parameters of concern’’ because the why that study or other evidence is not safety, consistent with the purpose purpose of this finding is to prevent the credible or applicable to the proposed formation of any long-term discharges operation. Nothing in final paragraph 218 See, e.g., 30 U.S.C. 1258(a)(13), 1260(b)(3), (n) assigns accountability for all water 1265(b)(10), 1266(b)(9). 217 52 FR 4244 (Feb. 10, 1987). quality issues in the watershed to the 219 30 U.S.C. 1265(b)(24) and 1266(b)(11).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93124 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

stated in section 102(a) of SMCRA.220 appropriate state and federal regulatory authority of Clean Water Act agencies in We have also added final paragraph (i) agencies whenever conditions within determining when permits are required. that requires compliance with all the permit area result in an imminent We do not agree with those commenters effluent limitations and conditions in danger to the health or safety of the who stated that it violated section 702(a) any National Pollutant Discharge public or cause or could be reasonable of SMCRA or otherwise superseded the Elimination System permit for expected to cause significant, imminent authority of Clean Water Act agencies. consistency with §§ 816.41, 816.42, and environmental harm to land, air, or Nothing in the language of this 817.42. water resources, regardless of whether a condition authorizes the SMCRA One commenter generally supported noncompliance exists. We note, regulatory authority to determine when proposed § 773.17(e) but expressed however, that this requirement for a Clean Water Act permit is needed— concern that the provision would immediate notification is only that is exclusively the jurisdiction of the unnecessarily limit the notification applicable to situations that could result agencies responsible for implementing requirement to situations caused by the in an imminent danger to public health and administering the Clean Water Act. operator’s noncompliance with terms or safety or significant, imminent Instead, the condition merely and conditions of the permit. The environmental harm. For all other underscores that the permittee must commenter recommended broadening situations, as required by § 840.11(a) obtain any required permits, the requirement in proposed paragraph and (b), the regulatory authority will be authorizations, or certifications before (e)(4) to include notification to the at the site for inspections at least initiating mining activities for which appropriate regulatory authorities monthly and, as required by those permits, authorizations, and anytime the operator’s monitoring §§ 816.35(b)(1) and 816.36(b)(1), will certifications are needed. The condition reveals the potential for environmental review all monitoring data quarterly. will allow the SMCRA regulatory harm, regardless of whether it is caused Thus, the regulatory authority will have authority to take enforcement action if by the operator’s noncompliance. We the tools to detect changes that do not another agency determines that a non- decline to revise this section as the rise to the level of imminent harm. SMCRA permit is needed, but the commenter suggests. As required in Another commenter objected to the SMCRA permittee does not obtain the final rule § 780.23, an operator must provision in paragraph (e)(4) that would necessary permit before beginning the monitor water resources located both require notice be provided to ‘‘other pertinent mining operations. within the proposed permit area, as well appropriate state and federal regulatory These same commenters also as adjacent areas. This monitoring must agencies.’’ According to the commenter, questioned why we would single out the include locations that are situated the SMCRA regulatory authority is the Clean Water Act as opposed to other upgradient and downgradient for only agency with jurisdiction over state and federal permits for inclusion groundwater and upstream and compliance with SMCRA permits. We as permit conditions. After evaluating downstream for surface water of the agree with commenter that the SMCRA these comments, we have decided to mining operations. Samples obtained regulatory authority has jurisdiction expand the scope of paragraph (h) to from the upgradient and upstream concerning SMCRA permit issues; require that the permittee obtain all monitoring sites are representative of however, coal mine operations are necessary authorizations, certifications, conditions existing in the waters prior subject to other state and federal and permits in accordance with ‘‘other to any potential influence of the mining permitting actions. We have, however, applicable federal, state, and tribal laws and reclamation activities. Those limited the scope of paragraph (e)(4) before conducting any activities that samples collected from the only to those situations that would require authorization, certification, or a downgradient and downstream sites are require the issuance of a cessation order permit under those laws.’’ Within the used to evaluate the effect of the for imminent danger or environmental proposed rule, we limited the scope of operations on water resources once harm under § 843.11(a). That approach this provision to the Clean Water Act compared to the upgradient/upstream should minimize the reporting burden because that is the primary federal samples. Therefore, any condition on the permittee, while ensuring that statute applicable to water quality and detected in the samples, even in those the regulatory authority and other given the focus of this rule it satisfied collected in waters prior to entering the appropriate agencies receive notice of our purpose to highlight the need for mine site indicating an off-site source, situations that require immediate compliance with the Clean Water Act that could result in an imminent danger attention to protect the public or and to enhance coordination with the to the health or safety of the public or prevent significant environmental harm Clean Water Act authorities. See 80 FR that could cause or reasonably be from occurring. 44436, 44480 (Jul. 27, 2015). Upon expected to cause significant, imminent, We also proposed to add a new permit further review, we find no reason to environmental harm will be reported as condition in paragraph (h) of this limit the scope of this provision to the part of the ongoing monitoring section, which would require the Clean Water Act as it is equally requirements regardless of whether or permittee obtain all necessary important that the permittee comply not a noncompliance exists. authorizations, certifications, and with all applicable laws. Another commenter alleged that the permits in accordance with Clean Water As discussed in Part IV, above, in proposed rule language lacked clarity on Act requirements before conducting any response to general comments about when the notification was required, activities that require approval or direct enforcement of water quality what information needed to be included authorization under the Clean Water standards we have added paragraph (i) in the notice, and the timing required Act. Several commenters objected to to final rule § 773.17. This paragraph for the notification. In response to these this proposed addition. A couple of adds a condition whereby the permittee comments, the language of the final rule commenters stated that requiring Clean must comply with all effluent has been modified. We have added Water Act permits before mining limitations and conditions in any language in paragraph (e)(4) specifying contradicted section 702 of SMCRA.221 National Pollutant Discharge that the operator must notify the Others interpreted proposed paragraph Elimination System permit issued for regulatory authority and other (h) as allowing SMCRA to supersede the their operation by the appropriate authority under the Clean Water Act. As 220 30 U.S.C. 1202(a). 221 30 U.S.C. 1292. we explained in Part IV of the preamble,

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93125

the addition of this required permit sufficient foundation. According to the proposed § 780.19(k). Instead, as condition and the revised rule text at 30 commenter, the sanction (permit suggested by one commenter, we are CFR 816.42 supports our longstanding nullification) is disproportionately replacing the permit nullification regulatory requirement that coal mining harsh compared to the lesser sanctions provisions of that paragraph with operations must comply with the and penalties that section 521 of procedures and requirements analogous effluent limitations prescribed by Clean SMCRA 224 authorizes for violations that to those that apply to improvidently Water Act authorities in NPDES permits are causing actual harm on the ground. issued permits under §§ 773.21 through under section 402 of the Clean Water The commenter noted that, unlike 773.23. This approach will afford the Act.222 In combination, these revisions proposed paragraph (k), section 521 permittee ample due process, as urged are intended to ensure that violations of affords the permittee due process with by numerous commenters. Consistent effluent limitations are violations of the respect to the sanctions and penalties with the new approach, we are SMCRA permit, and therefore are that it authorizes. Finally, the codifying the replacement provisions in enforceable by the SMCRA regulatory commenter urged that we rely upon the section 773.20 rather than section authority. regulatory authority’s power to order 780.19 because Part 773 contains the revision of a permit under section 511 Section 773.20: What actions must the requirements for permit processing. of SMCRA 225 to address legitimate regulatory authority take when a permit However, we do not agree with those concerns with permits that have been is issued on the basis of inaccurate commenters who suggested that these issued. information? regulations should apply only when Several commenters expressed information has been falsified or when Under proposed § 780.19(k), a permit concern that adoption of proposed the applicant intentionally submits issued on the basis of what the § 780.19(k) would create uncertainty as inaccurate or incomplete data. The regulatory authority later determines to to the validity of the bond posted for the purpose of final § 773.20 is to minimize be substantially inaccurate baseline permit. One commenter suggested that both the possibility that mining information would be void from the the rule should be revised to specify conducted under permits approved on date of issuance and have no legal that the permit would be revoked rather the basis of inaccurate information effect. Proposed paragraph (k) also than voided, a change that the could result in environmental harm and would have required that the permittee commenter indicated would resolve the extent of that harm. The reason for cease mining-related activities and uncertainty about the status of the bond. the inaccuracy of the information is not immediately begin to reclaim the Several commenters also expressed relevant to attainment of this purpose. disturbed area upon notification by the concern that because the permit would Thus, limiting § 773.20 to situations in regulatory authority that the permit is be considered null and void from the which permit application information void. date of issuance, the former permittee was intentionally falsified would be Some commenters opposed proposed theoretically could be subject to § 780.19(k) on the basis that it deprived counterproductive and inconsistent enforcement action for mining without with the purpose of this section. permittees of their rights without due a permit during the time between permit process and that the phrase issuance and permit nullification. We also disagree with the comment ‘‘substantially inaccurate’’ was too One commenter thought that we had that section 521(a)(4) of SMCRA subjective, vague, poorly defined, already addressed this issue in the provides the sole circumstances under essentially unlimited in scope, and regulations at §§ 773.21 through 773.23 which a SMCRA permit may be difficult to enforce. One commenter governing improvidently issued revoked. As discussed in the preamble alleged that proposed paragraph (k) was permits. That is not the case, however, to the rule concerning improvidently unreasonable because it did not because those regulations apply only to issued permits,227 the U.S. Court of consider whether the inaccuracy was the permit eligibility criteria of the Appeals for the D.C. Circuit has held intentional or had any material impact. applicable regulations implementing that SMCRA provides both express and Another commenter characterized the section 510(c) of SMCRA; 226 i.e., an implied authority for the suspension or proposed paragraph as an unauthorized improvidently issued permit is a permit rescission of improvidently issued punitive provision that lacks any that should not have been issued permits: statutory support. According to that because, at the time of permit issuance, While it is true that section 510(c) does not commenter, section 521(a)(4) of the permittee or operator owned or expressly provide for suspension or SMCRA 223 provides the sole controlled a surface coal mining and rescission of existing permits, the IFR circumstances under which a SMCRA reclamation operation with an unabated [interim final rule] rescission and suspension permit may be revoked—and then only or uncorrected violation. See 30 CFR provisions reflect a permissible exercise of for a pattern of violations. 773.21(a). Another commenter OSM’s statutory duty, pursuant to section The commenter further alleged that suggested that we replace proposed 201(c)(1) of SMCRA, to ‘‘order the the explanation in the preamble that paragraph (k) with regulations suspension, revocation, or withholding of proposed § 780.19(k) is necessary to analogous to those that apply to any permit for failure to comply with any of the provisions of this chapter or any rules avoid or minimize the environmental improvidently issued permits. However, harm that could result from initiation or and regulations adopted pursuant thereto.’’ this commenter, like several other 30 U.S.C.[ ] 1211(c). The IIP [improvidently continuation of an operation approved commenters urged us to limit their issued permit] provisions simply implement on the basis of inaccurate baseline applicability to situations in which the Congress’s general directive to authorize information constitutes flawed information has been falsified or the suspension and rescission of a permit ‘‘for reasoning because proposed paragraph applicant intentionally submits failure to comply with’’ a specific provision (k) does not require any connection inaccurate or incomplete data. of SMCRA—namely, section 510(c)’s permit between the inaccurate baseline After evaluating the comments eligibility condition. In addition, apart from information and environmental harm— received, we have decided not to adopt the express authorization in section 1211(c), it merely presumes harm without a OSM retains ‘‘implied’’ authority to suspend 224 30 U.S.C. 1271. or rescind improvidently provided permits 222 33 U.S.C. 1342. 225 30 U.S.C. 1261. 223 30 U.S.C. 1271(a)(4). 226 30 U.S.C. 1260(c). 227 65 FR 79583–79584 and 79628 (Dec. 19, 2000).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93126 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

because of its express authority to deny replaced the references to the complete reclamation within the time permits in the first instance.228 administrative review procedures of 43 specified in the rescission order. The same rationale applies to final CFR 4.1370 through 4.1377, which Paragraph (f) of § 773.20 addresses § 773.20 because it authorizes apply only to improvidently issued commenter concerns about the impact suspension or rescission of a permit for permits, with references to 30 CFR part on bond coverage. Paragraph (f)(1) failure to comply with a specific 775, which contains administrative and provides that, if the regulatory authority provision of SMCRA; i.e., the judicial review provisions pertinent to suspends or rescinds a permit, the bond prohibition in section 510(b)(1) 229 decisions on permits. In addition, we posted for the permit will remain in against approval of a permit application established a uniform 60-day notice effect until the permittee completes all unless the regulatory authority finds in period for proposed suspensions and reclamation obligations under the writing that ‘‘the permit application is rescissions, rather than adopting the 60- reclamation plan approved in the permit accurate and complete and that all the day notice period for proposed and obtains bond release under requirements of this Act and the State suspensions and 120-day notice period §§ 800.40 through 800.44. Paragraph or Federal program have been complied for proposed rescissions set forth in (f)(2) provides that the regulatory with.’’ Similarly, under the rationale set § 773.22(b) and (c). We find that there is authority must initiate bond forfeiture forth by the court, the regulatory no purpose or need for the longer notice proceedings under § 800.50 if the authority has implied authority under period for proposed rescissions, permittee does not complete all SMCRA to suspend or rescind permits particularly when the purpose of reclamation obligations within the time issued on the basis of inaccurate § 773.20 is to minimize any specified in the permit rescission order. information because the regulatory environmental harm that may result D. Part 774—Revision; Renewal; authority has the authority to deny the from the issuance of permits on the Transfer; Assignment, or Sale of Permit permit in the first instance. We further disagree with the comment basis of inaccurate information. Finally, Rights; Post-Permit Issuance that described the proposed paragraph in 30 CFR 773.20 (c) and (d), we provide Requirements a mechanism through which the as duplicative and unnecessary because Section 774.9: Information Collection states already have effective permittee can avoid permit suspension Section 774.9 pertains to compliance administrative processes in place to or rescission by providing updated with the Paperwork Reduction Act, 44 scrutinize data and address issues. We information and submitting an U.S.C. 3501, et seq. We are adding applaud the administrative processes application to revise the permit as that states have put in place as needed to correct the deficiency. We are contact information for persons who safeguards against the approval of adopting this mechanism in part wish to comment on these aspects of permit applications with inaccurate because of comments urging us to allow part 774. baseline information. However, no the permittee to take corrective action Section 774.10: When must the process is perfect. Final § 773.20 instead of requiring nullification of the regulatory authority review a permit provides a mechanism to address permit. As the commenters noted, after issuance? defective permits that slip through those permit nullification would be We are adopting § 774.10 as proposed, safeguards. disproportionately harsh compared to Paragraph (a) of § 773.20 provides that the sanctions and penalties that SMCRA with the exception that we are the regulatory authority must initiate and the regulations impose for reorganizing paragraph (a) and adding a action that could lead to suspension or performance standard violations. new paragraph (a)(2), which replaces rescission of the permit whenever the Providing an alternative to permit proposed § 780.16(c)(5). In the final regulatory authority discovers that the suspension or rescission also is rule, we are re-designating the permit was issued on the basis of what responsive to a comment that we should introductory text of proposed later turns out to be inaccurate baseline allow use of the permit revision § 774.10(a) as paragraph (a)(1). In information. In response to commenters’ procedures of section 511 of SMCRA to concert with this change, we are re- designating proposed paragraphs (a)(1) concerns that the ‘‘substantially remedy the deficiency. through (4) as paragraphs (a)(3) through inaccurate’’ threshold in proposed Paragraph (e) of § 773.20 sets forth the § 780.19(k) was too subjective and too (6). actions that the permittee must take if Proposed § 780.16(c)(5) required that broad in scope, we added a proviso that a permit is suspended or rescinded. the permittee periodically evaluate the § 773.20(a) applies only if the Paragraph (e) is similar to, and based impacts of the operation on fish, information is inaccurate to the extent upon 30 CFR 843.13(c), which specifies wildlife, and related environmental that it would invalidate one or more of the actions that the permittee must take values in the permit and adjacent areas the findings required for permit if a permit is suspended or revoked for and then use that information to modify application approval under § 773.15 or a pattern of violations. Paragraph (e)(1) the operations to avoid or minimize other provisions of the regulatory provides that, if the permit is adverse effects. Several commenters program. suspended, the permittee must cease all Paragraphs (b) through (d) of § 773.20 requested that we provide guidance or surface coal mining operations under are a streamlined version of the specify the frequency and rigor of the the permit and complete all affirmative requirements and procedures in 30 CFR mandated periodic evaluation of an obligations specified in the suspension 773.21 through 773.23 pertaining to operation’s impact on fish and wildlife. improvidently issued permits. We have order within the time established in that Additionally, commenters requested adapted those requirements and order. It also specifies that the clarification as to whose responsibility procedures as appropriate, discarding regulatory authority must rescind the it would be to complete this evaluation. provisions that are unique to permit if the permittee does not Some commenters opposed this improvidently issued permits. We have complete those obligations within the paragraph because it could be time specified. Paragraph (e)(2) provides interpreted as requiring that the 228 Nat’l Mining Ass’n v. Dep’t of the Interior, 177 that, if the permit is rescinded, the permittee modify operations even when F.3d 1,9 (D.C. Cir. 1999) (‘‘NMA v. DOI II’’). permittee must cease all surface coal the adverse effects on wildlife are 229 30 U.S.C. 1260(b)(1). mining operations under the permit and beyond the control of the permittee.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93127

Other commenters found this paragraph probable hydrologic consequences of sometimes unwieldy documents. to be unnecessarily disruptive in that it mining prepared under § 780.20 or However, other commenters alleged that would undermine the certainty § 784.20, if needed, or documentation adoption of this provision would provided by approval of the permit that the findings in the existing require major changes in state regulatory application. In response to these determination are still valid. programs at great expense for both the comments, we are not adopting In addition, proposed paragraph regulatory authority and the applicant. proposed § 780.16(c)(5). Instead, we are (c)(1), relating to the approval process, Several commenters characterized the including a modified version of that provided that a complete and accurate proposed requirement as an unfunded paragraph within the final rule as renewal application will be approved mandate on the states unless we are § 774.10(a)(2). Under the final rule, unless certain findings are made. We prepared to award grants to states to evaluation of the impacts of the proposed one such finding at (c)(1)(viii), fully fund the infrastructure needed for operation on fish, wildlife, and related which would allow a regulatory electronic permitting. One commenter environmental values will be part of the authority to disapprove an application acknowledged that a fully implemented midterm permit review conducted by for renewal if the regulatory authority electronic permitting system may the regulatory authority and thus will be determined, based on an analysis of the facilitate transfer of application the responsibility of the regulatory monitoring results or the updated documents, thus avoiding copying and authority. This timing and the shift in determination of the probable mailing costs. However, the commenter responsibility from the permittee to the hydrologic consequences of mining, that noted, these savings may be illusory as regulatory authority is appropriate the finding it originally made under the regulatory authority likely also because the purpose of the midterm § 773.15(e)—the operation is designed to would request multiple hard copies. permit review is to determine whether prevent material damage to the Some commenters argued that decisions the assumptions and predictions upon hydrologic balance outside the permit on electronic permitting should be left which permit application approval was area—is no longer accurate. to the state regulatory authorities. based have proven reasonably accurate. Several commenters objected to Another commenter alleged that If the assumptions and predictions are proposed requirements at (b)(2)(vii), SMCRA provides no authority for us to not accurate, the regulatory authority (b)(2)(viii), and (c)(1)(viii). These prescribe the format of permit will issue an order to the permittee to commenters expressed concern that the applications. revise the permit to ensure compliance proposed requirements would For the reasons set forth in the with the regulatory program. In this compromise the right of successive preamble to the proposed rule,231 we case, if the regulatory authority renewal and recommended the deletion continue to support and encourage the determines, as a result of the midterm of these regulations. The commenters use of electronic permitting. However, permit review, that the fish and wildlife also stated that there are existing we recognize that state regulatory protection and enhancement plan opportunities to review data as it relates authorities differ in their capability to approved in the permit is not effectively to the probable hydrologic implement electronic permitting and minimizing disturbances and adverse consequences, and it is unnecessary to that implementation may not be cost- impacts on fish, wildlife, and related couple a data review requirement with effective or practicable in all cases. In environmental values to the extent permit renewal. After reviewing the addition, we cannot guarantee possible using the best technology comments, we agree with the availability of the funding needed to currently available, as required by commenters and have deleted the implement electronic permitting. 230 section 515(b)(24) of SMCRA, the proposed requirements at (b)(2)(vii), Therefore, we have not adopted regulatory authority will issue an order (b)(2)(viii), and (c)(1)(viii) from the final § 777.11(a)(3) as proposed and have to the permittee to revise the permit to rule. removed reference to any requirement update the technology required or make that permit applications be filed in an other changes necessary to comply with E. Part 777—General Content electronic format. Therefore, the final this provision of the Act. The regulatory Requirements for Permit Applications rule text is substantially similar to previous regulation § 777.11. As authority has the discretion to Section 777.1: What does this part finalized, paragraph (a)(3) is determine the extent of the evaluation cover? conducted as part of the midterm permit substantively identical to section 507(b) review. We are finalizing § 777.1 as proposed. of SMCRA,232 which provides that We received no comments on this ‘‘[t]he permit application shall be Section 774.15: How may I renew a section. submitted in a manner satisfactory to permit? Section 777.11: What are the format and the regulatory authority.’’ We proposed within paragraph Several commenters provided content requirements for permit (b)(2)(vii), relative to application suggestions on how large map files, applications? requirements and procedures, to require professional certifications, and an analysis of the monitoring results Proposed paragraph (a)(3) of this verification of submittals could be under §§ 816.35 through 816.37 or section would have required that all submitted electronically. One §§ 817.35 through 817.37, relating to permit applications be filed in an commenter recommended that all groundwater, surface water, and electronic format prescribed by the systems include a common system biological condition of streams and an regulatory authority unless the component, which could allow a evaluation of the accuracy and adequacy regulatory authority grants an exception company to use a central system that of the determination of the probable for good cause. One commenter can easily be transferred to a common hydrologic consequences of mining supported this proposal because it file type for delivery across multiple prepared under § 780.20 or § 784.20 of would facilitate the acquisition and states. Another commenter urged that this chapter. We also proposed at transfer of permit files by coalfield digital permit files be available for paragraph (b)(2)(viii) to require an residents via the internet and avoid the download on a document-by-document update of the determination of the need for those residents to make a lengthy trip to the office of the 231 See 80 FR 44436, 44481 (Jul. 27, 2015). 230 30 U.S.C. 1265(b)(24). regulatory authority and copy 232 30 U.S.C. 1257(b).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93128 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

basis because persons with computers Several commenters opined that the Final Paragraph (b): Sampling and that have slow processor speeds may requirement within proposed paragraph Analyses of Groundwater and Surface not be able to open permits in large file (a) about submitting the results of the Water format without having their computers laboratory quality assurance and quality In paragraph (b) we proposed to add crash repeatedly. The commenter also control procedures to the regulatory a requirement that sampling and recommended that digital permit files authority was vague and did not include analyses of surface water and be available on both compact disc and the relevant information necessary to groundwater be conducted according to flash drive and that digitally submitted determine the level of quality assurance the methodology in 40 CFR parts 136 maps, plans, and cross-sections be made and quality control (level I, II, III, or IV). and 434. Several commenters asserted available in both high-definition and In addition, the commenters claimed the that some of the methodology in 40 CFR low-definition versions. We recognize requirement for electronically submitted parts 136 and 434 is not applicable to the merit of these suggestions and data including the identification of any the type of sampling and analysis recommendations. However, we are not data transformations would require conducted at coal mines and the including them in the final rule because significant effort by the laboratories that operator should be allowed to use a final paragraph (a)(3) does not require perform this work. The commenters scientifically-valid methodology use of electronic permitting. Regulatory opined the transformed data are acceptable to the regulatory authority. authorities electing to require the typically identified by the laboratory We agree. To address this comment, we submission of permit applications through the use of flags within the final revised paragraph (b) to clarify that all electronically may wish to consider laboratory report and because these flags sampling and analyses of groundwater these recommendations. are generated by the laboratory the flags and surface water be performed to satisfy all the requirements of this Section 777.13: What requirements are likely to differ from lab to lab. Our subchapter and that they are conducted apply to the collection, analysis, and intent with this requirement is to ensure according to the methodology in 40 CFR reporting of technical data and to the the quality assurance and quality parts 136 and 434; or scientifically- use of models? control data, regardless of the level, is submitted to the regulatory authority so defensible methodology acceptable to Final Paragraph (a): Technical Data and that they can review the data. the regulatory authority, in coordination Analyses Furthermore, transformed data should with any agency responsible for be noted by the laboratory. However, we administering or implementing a In paragraph (a)(1), we proposed to are not requiring the codes used to program under the Clean Water Act that add requirements for the submission of denote the transformed data to be the requires water sampling and analysis. certain data, such as metadata and field same for all laboratories. Therefore, The addition of (b)(2) takes a reasonable sampling sheets associated with the based on these comments, we did not approach to sampling and analyses of technical data submitted in the permit make any changes to proposed surface water and groundwater application. Several commenters paragraph (a), pertaining to the requirements of this subchapter. asserted that requiring materials submission of laboratory quality Additionally, we received several submitted to the regulatory authority assurance and quality control data, in comments from industry and regulatory (including technical data, maps, plans the final rule. authorities recommending that we and cross sections) to be accompanied remove the requirements to provide by metadata, where appropriate, was a However, for the purpose of surface water and groundwater good idea and provided valuable clarification, we added additional sampling field sheets to the regulatory information to the regulatory authority. language to the final rule about water authority. Instead, these commenters However, several regulatory authorities quality field sampling sheets that are suggested that the regulatory authorities opined that the requirements under required to be submitted to the should be able to use their discretion to § 777.13, including providing metadata regulatory authority. In the proposed request them as needed. We disagree. would create an undue hardship for the rule, we required field sheets for water Surface water and groundwater regulatory authority by requiring quality samples from wells.234 It was sampling field sheets contain the additional funds and personnel to log, our intent that a permittee submit to the metadata regarding field parameter track, and review the data. We are aware regulatory authority sample field sheets measurements and methods used in the that we will be requiring the operator to for all water quality samples collected collection of water quality samples of collect additional data and submit that from surface water and groundwater both surface water and groundwater. data to the regulatory authority, but the monitoring. Our intent is supported by Meta data contained on sampling field data is necessary to establish quality, proposed paragraph (b) where we sheets, such as, calibration information comprehensive baseline data, along reference sampling and analysis of for instruments used to measure field with mining and post-mining data that surface water and groundwater. To parameters and information concerning will help ensure there are no adverse clarify this we added language to final the sampling methods used to collect impacts from coal mining operation that paragraph (a) expressly requiring water quality samples are necessary to would cause material damage to the submission of the field sampling sheets accurately assess the water quality data. hydrologic balance outside the permit for each surface-water sample collected Further, several commenters suggested area. As explained further in the and for each groundwater sample that sending groundwater sampling field proposed rule, metadata, which consists collected from wells, seeps, and springs. sheets to the regulatory authority does of data describing the contents and We added ‘‘seeps and springs’’ to the not enhance the review process because context of data files, greatly increases list of sample field sheets we require a applicants already provide boring logs the usefulness of the original data by permittee to submit to the regulatory and well construction diagrams which providing information about how, authority because seeps and springs are include information concerning the where, when, and by whom the data commonly monitored to assess water depth of the well screens for all were collected and analyzed.233 quality of groundwater, monitoring wells included as a part of the permit application. In addition, the 233 80 FR 44436, 44481 (Jul. 27, 2015). 234 80 FR 44436, 44592 (Jul. 27, 2015). commenters asserted that descriptions

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93129

of the sampling methodology for all evaluation of ecological function; and levels of regulation under the Act.’’ groundwater samples are included in therefore our regulations are consistent. See 44 FR 15017 (Mar. 13, 1979).235 detail within the hydrogeology sections We also proposed to modify the In the final rule, we removed the first of the SMCRA permit application and existing provisions by adding paragraph sentence of previous paragraph (b) that the static water level collected prior (d)(2), which would require that all because it is poorly worded, to any purging should be considered models be calibrated using actual, site- unnecessary, duplicative of the sufficient for understanding whether the specific data and that they be validated remainder of paragraph (b), and could well screen was or was not fully erroneously be interpreted as applying saturated on the sample date. We for the region and ecosystem in which they will be used. By adding these to maps and plans for all operations, not disagree with the commenters’ just maps and plans for operations in additional requirements we intend to assertions about the lack of importance existence before the effective date of a improve the accuracy and validity of of groundwater field sheets when permanent regulatory program for the models and promote better data reviewing hydrologic data from the state in which the operation is located. well. We are requiring groundwater collection and analysis procedures to We also revised paragraph (b) to clarify sampling sheets be submitted to the ensure more informed permitting that its provisions apply only when regulatory authority because the decisions. Several commenters from applicable; i.e., that there is no need to groundwater sampling sheets contain industry and regulatory authorities provide maps and plans showing each information about instrument recommended that we provide period listed in paragraphs (b)(1) calibration, well purging, and sample regulatory authorities sufficient through (3) if the operations was not in collection that are necessary to discretion to allow for professional existence during one or more of those thoroughly review water-quality data judgment concerning the necessity for periods. and are not included in the information site-specific data and the data referenced in the comment. Therefore, Previous paragraph (b)(4) required requirements to process models. Also, that maps and plans show those no changes were made to the final rule several commenters opined that using in response to this comment. portions of the operation where surface site-specific data for calibration may not coal mining operations occurred after Final Paragraph (c): Geological be possible because it may be costly and the estimated date of issuance of a Sampling and Analysis the regulatory authority does not have permit under the approved regulatory We received one comment about control of activities outside of coal program. This paragraph is unnecessary proposed paragraph (c). The commenter mining permit, thus making it difficult because the map of the proposed permit opined that by requiring all geologic to include that site specific data. We area identifies the lands upon which sampling and analysis to be conducted disagree because it is important to use surface coal mining and reclamation using a scientifically valid mythology, it actual site-specific data to calibrate the operations will take place after issuance would result in increases in costs and models. A model that is calibrated using of the permit. Furthermore, previous time for permit preparation and site-specific data is more likely to paragraph (b)(4) inappropriately refers approval. We agree that increases in provide better modeling results. to surface coal mining operations that occurred after the estimated date of costs and time for permit preparation Therefore, the final rule adopts permit issuance. This language is and approval may occur; however any § 777.13 as proposed, with minor cost increase is outweighed by the inconsistent with section 506(a) of changes as explained herein to added benefit of better permitting SMCRA,236 which specifies that ‘‘no paragraphs (a), (b), and (d). decisions using comprehensive and person shall engage in or carry out on high quality geologic data. Therefore, Section 777.14: What general lands within a State any surface coal we made no changes to paragraph (c) in requirements apply to maps and plans? mining operations unless such person response to this comment. However, in has first obtained a permit. . . .’’ response to a federal agency comment, We revised § 777.14 from the Therefore, final section 777.14 does not in the final rule we use the term proposed section by making editorial include a counterpart to previous ‘‘scientifically-defensible methodology,’’ revisions to clearly distinguish between paragraph (b)(4). instead of the term ‘‘scientifically-valid requirements that apply to maps and Section 777.15: What information must methodology,’’ as proposed. plans for all operations and those that my application include to be Final Paragraph (d): Use of Models apply only to maps and plans for administratively complete? operations in existence before the A few commenters requested an effective date of a permanent regulatory We are finalizing § 777.15 as explanation for our alleged aversion to program for the state in which the proposed. We received no comments on the use of models to characterize operation is located. Specifically, this section. baseline hydrologic condition within paragraph (a) applies to maps and plans § 777.13(d) when elsewhere in the rule F. Part 779—Surface Mining Permit for all operations, while paragraph (b) Applications—Minimum Requirements we allow models to evaluate ecological applies only to maps and plans for function of streams through the use of for Information on Environmental operations in existence before the bioassessment protocols. These Resources and Conditions effective date of a permanent regulatory commenters assert that this alleged program for the state in which the Section 779.1: What does this part do? disparity creates regulatory inconsistency and should be addressed operation is located. This distinction is With the exception of altering the title for clarity. These commenters consistent with the preamble to this rule of this section for clarity, we are mischaracterize our position. In final as originally promulgated, which states paragraph (d), we allow for the use of that ‘‘[t]he concept of delineation of 235 The contents of 30 CFR 777.14 were originally models as long as they incorporate site phases of mining on application maps published on March 13, 1979 as 30 CFR 771.23(e) relates to key dates in the interim before their redesignation as 30 CFR 777.14 on Sept. specific data to calibrate each model. 28, 1983. The 1979 preamble incorrectly refers to Contrary to commenters’ assertions, we [initial] and permanent regulatory 30 CFR 771.23(e) as 30 CFR 771.21(e). also require site specific data for our programs establishing different periods 236 30 U.S.C. 1256(a).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93130 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

finalizing section 779.1 as proposed. We agencies, expressed support for the narrowed the requirements down to received no comments on this section. proposed changes to this section. In those that we determined to be particular, these commenters voiced necessary to ensure revegetation and Section 779.2: What is the objective of strong support for the use of native reclamation of mine sites in accordance this part? species rather than introduced species with SMCRA. We also reorganized and We are finalizing § 779.2 as proposed. because the use of native species would restructured the rule to improve clarity. We received no comments on this minimize adverse effects on fish and Proposed paragraph (a)(1) would have section. wildlife. required that the applicant identify, Section 779.4: What responsibilities do Other commenters opposed the describe, and map existing vegetation I and government agencies have under proposed revisions to § 779.19 as types and plant communities on the this part? unnecessary and excessively proposed permit and adjacent areas and burdensome. These commenters urged within any proposed reference areas. We are finalizing § 779.4 as proposed. us not to adopt the proposed revisions Several commenters asserted that we We received no comments on this and instead simply reaffirm the lack the authority under SMCRA to section. regulatory authority’s discretion to require vegetation information for the Section 779.10: Information Collection require vegetation information as adjacent area. While we do not agree needed. We disagree that the previous with that assertion, we determined that Section 779.10 pertains to compliance regulations were adequate. The previous vegetation information for the adjacent with the Paperwork Reduction Act, 44 regulations provided the regulatory area typically would not be useful either U.S.C. 3501, et seq. We are adding authority with complete discretion in to the applicant in preparing the contact information for persons who deciding whether to require submission reclamation and revegetation plans for wish to comment on these aspects of of vegetation information as part of the the permit or to the regulatory authority part 779. permit application. In view of other in reviewing and processing the permit Previous § 779.11: General changes to our regulations to generally application. Therefore, final paragraph Requirements require revegetation with native species (a) does not require vegetation and reestablishment of native plant information for the adjacent area. The We have removed and reserved communities (with certain exceptions), regulatory authority, however, may use previous § 779.11 for the reasons discretionary submission of premining its discretion to require vegetation discussed in the preamble to the vegetation information is no longer information for the adjacent area. proposed rule.237 appropriate. The vegetation information Several commenters questioned the Previous § 779.12: General required by final section 779.19 is value of the vegetation information Environmental Resources Information essential to fully implement the requirements in situations where We have removed and reserved revegetation requirements of section reestablishment of native plant 239 previous § 779.11 for the reasons 515(b)(19) of SMCRA, which communities would be inconsistent discussed in the preamble to the provides that surface coal mining with the postmining land use. We did proposed rule.238 operations must establish ‘‘a diverse, not provide a waiver under these effective, and permanent vegetative circumstances for several reasons. First, Section 779.17: What information on cover of the same seasonal variety this rule is intended to more fully cultural, historic, and archeological native to the area of land to be affected implement section 508(a)(2) of resources must I include in my permit and capable of self-regeneration and SMCRA,241 which requires that the application? plant succession at least equal in extent permit application include a statement We are finalizing § 779.4 as proposed. of cover to the natural vegetation of the of ‘‘the capability of the land prior to We received no comments on this area.’’ To comply with this requirement, any mining to support a variety of uses section. both the applicant and the regulatory giving consideration to soil and authority need to know the vegetative foundation characteristics, topography, Section 779.18: What information on cover native to the area of land to be and vegetative cover.’’ Descriptions of climate must I include in my permit affected and the extent of cover of the the vegetative communities that exist on application? natural vegetation of the area. The the site, as required by final paragraph One commenter requested that we information must be in sufficient detail (a), and of the native vegetation and add language requiring climate data and to assist in preparation of the plant communities typical of that area analysis to this section. We did not add revegetation plan under § 780.12(g) and in the absence of human alterations, as this requirement because a requirement to provide a baseline for comparison required by final paragraph (c), are an to include a statement of the climatic with postmining vegetation, as final important part of the determination of factors, including average seasonal paragraph (b)(1) requires. In addition, the capability of the land. Second, there precipitation, direction and velocity of the information required by § 779.19 is no guarantee that the approved winds, and temperature ranges, is will assist in implementation of section postmining land use will be already required under final rule 508(a)(2) of SMCRA,240 which requires implemented before expiration of the §§ 779.18 and 783.18 and additional that the reclamation plan in each permit revegetation responsibility period or information under this section would application identify both the premining even that it will be implemented at all. not add meaningful information. land uses and the capability of the land Therefore, our final revegetation rules at prior to any mining to support a variety §§ 780.12(g) and 816.111 through Section 779.19: What information on of uses. 816.116 require planting and vegetation must I include in my permit In response to comments that the reestablishment of native plant application? proposed rule was unnecessary and communities on mined lands unless the Several commenters, including the excessively burdensome, we reevaluated approved postmining land use is U.S. Forest Service and other federal each element of the proposed rule and implemented before the entire bond amount for the area has been fully 237 80 FR 44436, 44482 (Jul. 27, 2015). 239 30 U.S.C. 1265(b)(19). 238 Id. 240 30 U.S.C. 1258(a)(2). 241 30 U.S.C. 1258(a)(2).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93131

released under §§ 800.40 through native species of grasses and forbs and will be taken to avoid the establishment 800.43. Third, sites with agricultural, the presence of invasive or noxious of invasive species on reclaimed areas industrial, commercial, residential, or species would make reestablishment of and to control invasive species if they recreational postmining land uses that native plant communities challenging, if are established. The allowable amount may be incompatible with restoration of not impossible. As an example, one of invasive species at the time of bond native plant communities overall often commenter provided results from the release will depend on multiple factors, contain small areas that can (and, under latest Natural Resources Conservation which we discuss in the performance this final rule, must) be planted with Service’s National Resource Inventory standards related to revegetation success native species to provide some wildlife survey showing that over 50 percent of in §§ 816.111 through 816.116 of the habitat. the non-federal native grassland in final rule. A commenter on proposed paragraph North Dakota is impacted by non-native In response to a comment from the (a) asked that we specify how an species and that non-native species U.S. Army Corps of Engineers to revise applicant should select appropriate cover at least 25 percent of the soil the rule to provide better protection for reference areas. Other commenters surface. The Natural Resources wetlands, we added paragraph (b)(4) to interpreted the proposed rule as always Conservation Service concluded that it the final rule. That paragraph requires requiring use of reference areas and is impossible to return a site to its that the applicant delineate all wetlands objected to this alleged requirement. We historic plant community if Kentucky and areas bordering streams that did not intend to require use of a bluegrass comprises more than 30 support, or are capable of supporting, reference area. We worded final percent of the vegetation at the site.242 hydrophytic or hydrophilic vegetation paragraph (a) in a manner that clarifies The Natural Resources Conservation or vegetation typical of floodplains. that an applicant may use a reference Service’s finding supports our Hydrophytic vegetation consists of area for purposes of determining requirement to avoid non-native, plants that grow either partly or totally revegetation success under § 816.116, invasive species in reclamation and submerged in water, while hydrophilic but that use of a reference area is not illustrates the value of reestablishing the vegetation consists of water-loving required. We find it unnecessary to native plant communities unless plants that grow along the margins and provide further regulatory instruction introduced species are necessary for the banks of rivers and streams. This on selecting reference areas because postmining land use. The Natural vegetation is indicative of wetlands, selecting reference areas is a common Resource Inventory also concluded that which means that vegetation scientific practice. Furthermore, ‘‘[n]on-native invasive plants negatively information of this nature will proved selection of a reference area depends impact rangeland throughout the baseline data to assist in the upon site-specific factors and the western United States by displacing identification and protection of regulatory authority is the best resource desirable species, altering ecological wetlands. This provision also will for further guidance on that matter. and hydrological processes, reducing facilitate implementation of § 816.97(e) Paragraph (b)(2) of the final rule, wildlife habitat, degrading systems, of the final rule, which requires use of which we proposed as paragraph (a)(1), altering fire regimes, and decreasing the best technology currently available requires that the description and map of productivity.’’ 243 to avoid, restore, or replace wetlands vegetation types and plant communities Commenters requested that we clarify and to enhance wetlands where be adequate to evaluate whether the the permissible amount of invasive practicable. Protection or restoration of vegetation provides important habitat species after the completion of wetlands is difficult in the absence of for fish and wildlife and whether the reclamation, especially when invasive information about where those wetlands proposed permit area contains native species are present prior to mining. In were originally located and what type of plant communities of local or regional response, we added paragraph (b)(3) to vegetation they supported. The significance. Some commenters the final rule. That paragraph requires requirement for information about requested additional clarification about the applicant to identify areas with vegetation bordering streams also will what would constitute a native plant significant populations of invasive or facilitate implementation of our stream community of ‘‘local or regional noxious species. Final paragraph (b)(3) assessment requirements in significance,’’ while another commenter provides the regulatory authority with § 780.19(c)(6) and our streamside asked us to define ‘‘plant community.’’ the information necessary to determine vegetative corridor requirements of We did not revise the rule in the manner whether there is a potential problem § 816.57(d)(2)(iii). that the commenters requested because with non-native or noxious species and Commenters requested that we ‘‘plant community’’ is a commonly to decide on the appropriate steps to specify a timeframe for the requirement understood scientific term and because take, such as authorizing unique in proposed § 779.19(a)(2) that the the regulatory authority should have the handling of the soil materials as permit applicant identify the plant latitude to determine what constitutes a described in § 816.22(f)(1)(ii) of the final communities that would exist on the plant community of local or regional rule. Section 780.12(g)(1)(xi) of the final proposed permit area under conditions significance. We encourage the rule requires that the proposed of natural succession. Some commenters regulatory authority to confer with state revegetation plan describe measures that requested that we specify whether the and federal agencies with permit applicant must do this for each responsibilities for fish and wildlife in 242 U.S. Dep’t. of Agric. Natural Res. Conservation of the particular stages of succession or making this determination. One Service, Nation Resources Inventory Report on Non- whether the requirement applies only to potential resource for identifying native native Invasive Plant Species; available at http:// the climax community. One commenter _ plant communities of local or regional www.nrcs.usda.gov/Internet/FSE DOCUMENTS/ noted that, given the various intensive stelprdb1254898.pdf. (last accessed on Nov. 1, significance is the Natural Heritage 2016). land uses over the last 200 years and the Network, a network of state programs 243 Roger Shely et al. Invasive Plant Management presence of many non-native species, it that gather and disseminate biological on Anticipated Conservation Benefits: A Scientific could be very difficult to know what information on species of conservation Assessment,). 291–336 (2011). Conservation qualifies as ‘‘natural succession’’ and Benefits of Rangeland Practices: Assessment, concern and natural plant communities. Recommendations, and Knowledge Gaps (D.D. urged us to remove this requirement. As Several commenters expressed Briske, ed.). U.S. Dep’t of Agric., Natural Res. an example, the commenter questioned concern that the dominance of non- Conservation Serv. (2011). whether tallgrass prairie would be the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93132 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

natural succession community in the classification is accepted in the Therefore, we are not adopting proposed Midwest. After evaluating these and scientific community suitable for that paragraph (d) as part of this final rule. other comments, we decided not to state or region in which the proposed Section 779.20: What information on adopt proposed paragraph (a)(2). We operation is located’’ to reduce the fish and wildlife resources must I replaced proposed paragraph (a)(2) with potential for abuse of the discretion include in my permit application? final paragraph (c), which provides that, given here to the regulatory authority. if the vegetation on the proposed permit Another commenter noted that some Section 779.20 is intended to ensure area has been altered by human activity, long-term mining operations may have that the permit applicant has the the applicant must describe the native existing, longstanding vegetation data information needed to design the vegetation and plant communities systems and that it would be impractical proposed mining operation in a manner typical of the area in the absence of to substitute a new system when the that meets the fish and wildlife human alterations. This information final rule comes into effect. protection and enhancement should be readily available from After evaluating the comments requirements of the regulatory program. historical references and may be received, we decided not to adopt The regulatory authority also needs this inferred from surviving remnants of proposed paragraphs (b) and (c). information to evaluate the probable natural vegetation in the surrounding Instead, final paragraph (b)(1) provides impacts of the proposed mining area, if those remnants are similar to the that the description and map of operation on fish, wildlife, and related proposed permit area. The applicant vegetation types and plant communities environmental values for the proposed and regulatory authority need this required under paragraph (a) must be in permit and adjacent areas and to information to prepare and review the sufficient detail to assist in preparation determine whether the scope of the revegetation plan, which must be of the revegetation plan under proposed fish and wildlife protection designed to restore native plant § 780.12(g) and to provide a baseline for and enhancement plan is sufficient. communities, as appropriate and comparison with postmining vegetation. Except as discussed below, we have consistent with the final rule. The regulatory authority will determine adopted § 779.20 as proposed, with Proposed § 779.19(b) would have which classification system best meets minor editorial revisions for clarity and required that the vegetation descriptions the requirements of paragraph (b)(1), consistency. Several commenters expressed in the permit application adhere to the other provisions of final § 779.19, and concern that changes to the fish and National Vegetation Classification the revegetation requirements of wildlife resource information Standard, while proposed paragraph (c) §§ 780.12(g) and 816.111 through would have allowed use of other requirements might increase the amount 816.116. Furthermore, it is not clear that generally-accepted vegetation of time it takes to review and process the National Vegetation Classification classification systems in lieu of the permits, resulting in a need for Standard is readily adaptable to National Vegetation Classification regulatory authorities to hire additional preparation of descriptions of vegetation Standard. In the preamble to the staff. The proposed and final rules are types and plant communities for proposed rule, we invited comment on similar to the fish and wildlife resource purposes of SMCRA. In addition, we what other classification systems may information requirements in previous agree with those commenters who exist. See 80 FR 44436, 44483 (Jul. 27, § 780.16(a). They require very little questioned the value of proposed 2015). We received a large number of additional information. Therefore, we paragraph (b) when proposed paragraph comments in response to this request. do not anticipate that final § 779.20 will (c) would have allowed use of other Many commenters proposed to keep the have a significant impact on regulatory classification systems. systems already in use. Other authority resource needs. commenters expressed support for the Proposed paragraph (d) would have National Vegetation Classification required that the permit application Final Paragraph (a): General Standard and stated that any include a discussion of the potential for Requirements alternatives should be evaluated based reestablishing both the premining plant Proposed paragraph (a), like previous in part, on consistency with the communities and the plant communities § 780.16(a), provided that the permit National Vegetation Classification that would exist on the proposed permit application must include information Standard approach. area under conditions of natural on fish and wildlife resources for the Some commenters opined that the succession. Some commenters alleged proposed permit and adjacent areas. The National Vegetation Classification that proposed paragraph (d) would serve Department of Justice requested that we Standard is not the best method for no purpose, at least in the Midwest revise this provision to clarify that the classifying vegetation and that the where agricultural postmining land uses term ‘‘fish and wildlife resources’’ decision as to what method to use predominate. Because this final rule includes all species of fish, wildlife, should be left to the discretion of the contains numerous requirements for use plants and other life forms listed or regulatory authority. Another of native species in revegetation and for proposed for listing under the commenter opined that the regulation or reestablishment of native plant Endangered Species Act of 1973, 30 preamble should provide direction as to communities, we do not agree that U.S.C. 1531, et seq. Final § 779.20(a) what level of hierarchy in the National proposed paragraph (d) would serve no includes the requested revision, which Vegetation Classification Standard is purpose. However, proposed paragraph is not substantive. appropriate for applications for coal (d) is not appropriate for § 779.19, mining operations. Other commenters which merely requires baseline Final Paragraph (b): Scope and Level of questioned why proposed paragraph (b) information on premining vegetation Detail required use of the National Vegetation and historical plant communities. Nor is As proposed, § 779.20(b) provided Classification Standard when proposed it necessary because determination of that the regulatory authority would paragraph (c) allowed the regulatory the potential for reestablishment of determine the scope and level of detail authority to approve other classification native plant communities currently or for this information in coordination systems. One commenter suggested formerly found in the area is an implicit with state and federal agencies that have revising proposed paragraph (c) by element of the revegetation plan responsibilities for fish and wildlife. It adding ‘‘provided that the alternative required under § 780.12(g) of this rule. also specified that the scope and level

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93133

of detail of the information must be regulatory authority to ascertain communities are still of interest because sufficient to design the fish and wildlife compliance with final § 773.15(j). they may provide habitat to species that protection and enhancement plan Another commenter recommended are valuable in other ways. Final required under § 780.16. We received no that we delete all of proposed paragraph § 779.19(a)(1) requires that the permit comments specific to this provision. (c)(1), as the proposed language would application identify, describe, and map Final paragraph (b) adopts the proposed place a significant burden on permit existing vegetation types and plant rule without change. applicants, requiring them to know the communities within the proposed affairs and plans of all private surface permit area in a manner that is adequate Final Paragraph (c): Site-Specific landowners in a given area and convey to evaluate whether the vegetation Resource Information Requirements those plans as part of a permit provides important habitat for fish and Proposed paragraph (c) sets forth application. We disagree and decline to wildlife. In addition, final § 779.20(b) requirements for site-specific fish and delete this paragraph. This requirement provides that the regulatory authority wildlife resource information. At the to analyze the possible effects of action must determine the scope and level of request of a federal agency, we revised by private surface landowners is similar detail for the fish and wildlife resource proposed paragraph (c)(1), which in terminology to a portion of the information required in coordination pertains to species listed or proposed for definition of ‘‘Cumulative Impacts’’ with state and agencies with listing under the Endangered Species used in the U.S. Fish and Wildlife responsibilities for fish and wildlife. Act of 1973, by replacing the phrase Service and the National Marine Also, final section 780.16 requires ‘‘fish and wildlife or plants’’ with Fisheries Service regulations additional action if the information ‘‘species’’ and the phrase ‘‘state or implementing the Endangered Species required by final § 779.20(b) indicates private’’ with ‘‘non-federal’’ to be Act 246 and therefore is a warranted and that the proposed permit area or the consistent with terminology used in necessary element in this review. Also, adjacent area contains species listed or connection with the Endangered because our previous regulations at 30 proposed for listing as threatened or Species Act. The phrase ‘‘state or CFR 780.16(a)(2) included the endangered species under the private’’ might inadvertently exclude requirement to provide site-specific Endangered Species Act or that are activities of local and tribal resource information in each permit designated as critical habitat. As one governments and quasi-governmental application, there is no additional commenter noted, one potential agencies. burden on permit applicants. resource for identifying this information Another commenter suggested that we Some commenters suggested that we is the Natural Heritage Program, a define ‘‘reasonably certain to occur.’’ revise paragraph (c)(1) to require that network of state programs that gather We do not agree. That term, which the applicant identify cumulative and disseminate biological information mirrors the terminology used in the U.S. impacts on federally-listed species. on species of conservation concern and Fish and Wildlife Service and the Final paragraph (c)(1) provides that ‘‘the on natural plant communities. Each National Marine Fisheries Service site-specific resource information must state Natural Heritage Program would regulations implementing the include a description of the effects of also be an appropriate entity to assist Endangered Species Act.247 The U.S. future non-federal activities that are the regulatory authority to identify Fish and Wildlife Service and the reasonably certain to occur within the native plant communities of local or National Marine Fisheries Service have proposed permit and adjacent areas.’’ regional significance. The combination published an Endangered Species That provision is the functional of these requirements should ensure Consultation Handbook that explains equivalent of an analysis of cumulative that the site-specific resource the meaning of this phrase.248 No impacts. Therefore, no rule change is information includes information on additional definition is needed in this necessary. Other commenters asserted habitat under the circumstances rule. that we lack authority to require that described by the first commenter and in One commenter urged us to require applicants submit this information to a all other situations in which that the application include information state regulatory authority or to require information on habitat is important. on habitat for species listed as that a state regulatory authority conduct A commenter requested that we threatened or endangered. Another a cumulative effects analysis. According include specific reference to the Natural commenter requested that the rule to the commenters, the Endangered Heritage Program throughout the final specifically require information about Species Act only requires such an rule, and specifically within final biological communities that do not analysis for federal actions. We disagree. §§ 779.20 and 783.20, when providing contain species of special concern. As discussed in the preamble for final information about threatened, According to the commenter, those § 773.15(j), section 7(a)(1) of the endangered, and rare species of plants Endangered Species Act provides that 246 50 CFR 402.02 defines ‘‘cumulative effects’’ as and animals at the state and federal ‘‘[t]he Secretary shall review other ‘‘those effects of future State or private activities, level. The commenter also suggested programs administered by him and not involving Federal activities, that are reasonably that evidence of any coordination with utilize such programs in furtherance of certain to occur within the action area of the the Natural Heritage Program or other the purposes of this Act.’’ 244 That Federal action subject to consultation.’’ resource agencies be attached to the 247 50 CFR 402.02 defines indirect effects are would necessarily include using ‘‘those that are caused by the proposed action and permit application. While we agree that SMCRA to protect species listed or are later in time, but still are reasonably certain to coordination with each states’ National proposed for listing as threatened or occur’’, and ‘‘cumulative effects’’ as ‘‘those effects Heritage Program can be an important endangered under the Endangered of future State or private activities, not involving step in obtaining information about 245 Federal activities, that are reasonably certain to Species Act. Furthermore, the occur within the action area of the Federal action threatened, endangered, and rare description of the effects of future non- subject to consultation.’’ species of plants and animals, we federal activities that final paragraph 248 U.S. Fish and Wildlife Serv. and National decline to require this and any evidence (c)(1) requires is necessary for the Marine Fisheries Serv., Endangered Species of coordination with any National Consultation Handbook: Procedures for Conducting Consultation and Conference Activities Under Heritage Program be included within 244 16 U.S.C. 1536(a)(1). Section 7 of the Endangered Species Act, 4–32 the permit application. These 245 16 U.S.C. 1531(b). (March 1998). requirements are more appropriately

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93134 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

addressed on a case-by-case basis at the Proposed § 779.20(d)(2)(iv) provided commenters noted that section discretion of the regulatory authority, that the regulatory authority may not 515(b)(24) of SMCRA,251 which contains because each regulatory authority has approve the permit application until all the performance standard for protection the appropriate local expertise and issues pertaining to threatened and of fish and wildlife, does not include an network of resources to make these endangered species are resolved and the express prohibition on mining. Instead, decisions. However, we do agree that regulatory authority receives written it provides that ‘‘to the extent possible the Natural Heritage Program is an documentation from the Service that all using the best technology currently excellent resource for information about issues have been resolved. Proposed available,’’ surface coal mining and threatened, endangered, and rare § 780.16(e)(2)(iv) contained a reclamation operations must ‘‘minimize species of plants and animals. substantively identical provision. The disturbances and adverse impacts of the A commenter requested that we final rule consolidates both of those operation on fish, wildlife, and related define the term ‘‘endemic species’’ in proposed rules into final § 780.16(b)(2) environmental values.’’ proposed paragraph (c)(3). Another in revised form. Many commenters The counterargument is that section commenter recommended that we characterized this provision of the 515(b)(23) of SMCRA provides that clarify that habitat for endemic species proposed rules as a U.S. Fish and surface coal mining and reclamation should be based on actual habitat Wildlife Service veto over the SMCRA operations must ‘‘meet such other boundaries rather than state or other permit. We discuss that comment in criteria as are necessary to achieve jurisdictional boundaries that are less Part IV.J., above. The preamble to final reclamation in accordance with the relevant from a biological perspective. § 780.16(b)(2) discusses other comments purposes of this Act, taking into Final paragraph (c)(3) does not include that we received on proposed consideration the physical, a definition of ‘‘endemic species’’ both §§ 779.20(d)(2)(iv) and 780.16(e)(2)(iv) climatological, and other characteristics because that term has a commonly and the revisions that we made in of the site.’’ 252 One of the purposes of understood meaning and because the response to those comments and the Act is to ‘‘assure that surface mining U.S. Fish and Wildlife Service’s discussions with the U.S. Fish and operations are not conducted where published glossary of terms related to Wildlife Service. reclamation as required by this Act is endangered species already defines Proposed § 779.20(e) would have not feasible.’’ 253 ‘‘endemic species’’ as ‘‘[a] species native provided that the regulatory authority, Other commenters wanted us to and confined to a certain region; in its discretion, may use the resource define or otherwise clarify the terms, generally used for species with information collected under § 779.20 ‘‘exceptional environmental value,’’ comparatively restricted and information gathered from other ‘‘coordination between agencies, distribution.’’ 249 The commenter is agencies to determine whether, based on ‘‘scientific principles and analysis’’, and correct that jurisdictional boundaries scientific principles and analyses, any ‘‘consultation’’ in proposed paragraph should not determine whether a species stream segments, wildlife habitats, or (e). They requested clarification on how is endemic to the area. For example, a watersheds in the proposed permit area this provision would be applied to species with a small distribution within or the adjacent area are of such regulatory decisions made prior to the one state but that is widespread exceptional environmental value that final rule. They also sought an throughout the rest of the country any adverse mining-related impacts opportunity for further public comment would not typically be considered must be prohibited. on the meaning of ‘‘exceptional endemic, despite its low numbers We received comments both opposing environmental value’’ and on how this within the state boundaries. and supporting proposed paragraph (e). provision would be applied. We also Proposed § 779.20(d) contained Many commenters who supported this received comments criticizing the lack provisions regarding U.S. Fish and provision urged us to revise it to of a definition of ‘‘adverse impacts,’’ Wildlife Service review of the fish and categorically prohibit mining in those and inquiring whether this term wildlife resource information in the areas rather than to afford discretion to extended to impacts that were short- permit application. Proposed § 780.16(e) the regulatory authority to do so. term or temporary or that imposed no contained substantively identical However, section 522 of SMCRA 250 permanent change on biota or the provisions for U.S. Fish and Wildlife establishes the process and criteria for ecosystem. Service review of the fish and wildlife categorically designating areas After evaluating the comments that protection and enhancement plan in the unsuitable for all or certain types of we received, we decided not to adopt permit application. This final rule mining. Commenters seeking a proposed § 779.20(e) because avoiding consolidates proposed §§ 779.20(d) and categorical prohibition should avail disturbances to habitats of unusually 780.16(e) into final § 780.16(e), both to themselves of the petition process high value for fish and wildlife, as streamline the regulations and in provided under that section of SMCRA. described in final § 779.20(c)(3), is one response to a comment noting that the Commenters opposing proposed of the options provided in final Service reviews baseline fish and paragraph (e) challenged our authority § 816.97(f). Therefore, there is no need wildlife resource information together under SMCRA to adopt such a to further discuss or address the with the fish and wildlife protection provision. They also alleged that it comments that we received on proposed and enhancement plan, not separately. could result in a compensable taking of § 779.20(e). While we are not adopting The preamble to final § 780.16(e) mineral interests, that it provides too proposed paragraph (e), we encourage discusses the comments that we much power to state and federal fish states to consider doing so under section received on the provisions of proposed and wildlife agencies, and that it could 505 of SMCRA,254 which specifies that §§ 779.20(d) and 780.16(e) and how we be enormously disruptive and any state law or regulation that revised the rule in response to those economically costly because potential ‘‘provides for more stringent land use comments and discussions with the U.S. permit applicants would not have and environmental controls and Fish and Wildlife Service. reasonable certainty as to which portions of the proposed permit area 251 30 U.S.C. 1265(b)(24). 249 U.S. Fish and Wildlife Serv. Endangered they would be allowed to mine. Other 252 30 U.S.C. 1265(b)(23). Species Glossary. http://www.fws.gov/endangered/ 253 30 U.S.C. 1202(c). about/glossary.html (last accessed Nov. 1, 2016). 250 30 U.S.C. 1272. 254 30 U.S.C. 1255(b).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93135

regulations of surface coal mining and of uses giving consideration to soil and soil survey information that exists; reclamation operations than do the foundation characteristics, topography, therefore, if, as the commenter suggests, provisions of this Act or any regulation and vegetative cover, and, if applicable, this soil survey information does not issued pursuant thereto shall not be a soil survey. This statutory provision exist it would not be required. In the construed to be inconsistent with this requires the applicant to include event Order 4 soil surveys are the only Act.’’ information about soil and foundation data set available those should be characteristics in each permit submitted; conducting an Order 2 soil Section 779.21: What information on application, not just in those survey would not be required if such a soils must I include in my permit applications that contain prime survey for the proposed permit area application? farmland.259 This information, detailed does not exist. The purpose of this In the proposed rule,255 we explained in final paragraphs (b) through (d), does section, and others related to the August 4, 1980 suspension of the not need to take the form of a establishing soil condition, is to rules in relationship to lands other than requirement to conduct a soil survey ascertain as much information as prime farmlands, why we proposed to unless prime farmland may be present. possible about the capability and lift the suspension of previous § 779.21, While it is true that the regulations do productivity of the land prior to mining and why we replaced those provisions not require that soil surveys be in order to develop a reclamation plan with language consistent with the conducted for lands that may not be that restores the premining land use holding in In Re Permanent Surface prime farmland, it is also true that some capabilities. Mining Regulation Litigation I, Round soil surveys for these lands may already Some commenters opined that I.256 One commenter questioned our exist and these already-existing soil proposed paragraph (c) is problematic. logic in lifting the suspension and the surveys would be useful to the The commenter stated that relying on consistency of the proposed rule with regulatory authority in fulfilling its descriptions of soil depths taken from the court’s holding. As explained in the responsibilities under section 508(a)(2) soil mapping completed by the Natural preamble to our proposed rule, this is of SMCRA. Therefore, for lands that Resources Conservation Service is not consistent with the court’s decision that may not be prime farmland, our final reliable because these maps may not section 507(b)(16) of SMCRA is a clear rule does not require a soil survey to be accurately reflect on-site conditions. expression of congressional intent to conducted, but it does require the Final § 816.22(a)(1)(i) requires mine require soil surveys only for prime submittal of soil survey information if it operators to remove and salvage all farmlands identified by a already exists. topsoil and other soil materials. reconnaissance inspection.257 Regarding paragraph (a), other Therefore, regardless of whether or not Consistent with that decision the final commenters indicated that, given the the Natural Resources Conservation rule clarifies that soil surveys are only predominant land use in some areas of Service maps are exactly accurate is of required when a reconnaissance prime farmland and the Natural secondary consequence because the inspection suggests that the land may be Resources Conservation Service’s mine operator must remove and salvage prime farmland. In those circumstances extensive mapping, a ‘‘reconnaissance these materials as they exist at the the permit application must include the inspection’’ is not necessary to make a permit site. For example, if the map results of the reconnaissance inspection determination regarding whether prime indicates that a certain soil type and, when prime farmland is found to farmland exists in the permit area. contains eight inches of topsoil, but the be present, the soil survey information Similarly, other commenters expressed on-site conditions reveal twelve inches required by § 785.17(b)(3). If prime concern about the requirement for ‘‘a of topsoil exist, the mine operator is farmlands are not identified, the court soils reconnaissance inspection’’ to required to remove and salvage all held that § 508(a)(3) did not constitute determine the presence of prime twelve inches of topsoil, not merely the authority for our regulations to require farmland without further guidance eight inches indicated on the map. an applicant to provide soil survey regarding what the reconnaissance Some commenters also questioned information for lands not qualifying as inspection would entail. However, proposed paragraph (f), which affords prime farmland. Our final rule is paragraph (a) does not contain any new the regulatory authority the opportunity consistent with the decision. To begin, requirements regarding these issues; it to require whatever information it may we rely on section 508(a)(2) of merely includes and cross-references need to determine land use capability. SMCRA.258 This section of SMCRA existing prime farmland regulations These commenters opined that this requires that each reclamation plan within § 785.17 and reiterated at paragraph requires applicants to prepare submitted as part of a permit § 779.21(e) of the final rule. the reclamation plan with no guidance application pursuant to any approved In paragraph (b), we require the regarding what is necessary to satisfy State program or a Federal program permit applicant to include soil surveys this requirement. The commenters under the provisions of SMCRA shall completed by the Natural Resources misinterpret this regulation; it merely include necessary details to demonstrate Conservation Service. A commenter states the inherent authority of the that reclamation required by the State or suggested that this information is regulatory authority to determine, on a case-by-case basis, what additional Federal program can be accomplished, a frequently unavailable on federal, state, or tribal lands, and, in situations where information is necessary to assess the statement of the capability of the land such soil survey information is land use capability. This provision is prior to any mining to support a variety available, it is frequently provided as an discretionary with the regulatory Order 4 soil survey and is not authority and provides a regulatory 255 80 FR 44436, 44484–44485 (Jul. 27, 2015). 256 In re Permanent Surface Mining Regulation sufficiently detailed to be useful authority with the ability to use its best Litig. I, Round I (PSMRL I, Round I), 1980 U.S. Dist. without substantial interpolation. The professional judgment to require LEXIS 17722 at *62 (D.D.C., February 26, 1980). commenter recommended that we allow information that may be needed for 257 80 FR 44436, 44485 (Jul. 27, 2015) (citing 30 Order 2 soil surveys to address local conditions or circumstances. U.S.C. 1258(a)(2) and 1257(b)(16) and In re reclamation plan needs. For non-prime However, we have modified final rule Permanent Surface Mining Regulation Litig. I, Round I (PSMRL I, Round I), 1980 U.S. Dist. LEXIS farmland an applicant need only submit § 779.21(f) to clarify that any other 17722 at *62 (D.D.C., February 26, 1980)). information ‘‘on soils’’ that the 258 30 U.S.C. 1258(a)(2). 259 30 U.S.C. 1257(b)(16). regulatory authority finds necessary to

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93136 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

determine land use capability may be impossible standard. Similarly, Appalachia where coal mining has collected. Moreover, we removed the commenters also noted that it was existed for more than 150 years. This phrase ‘‘and to prepare the reclamation sometimes difficult to determine with commenter also questioned whether the plan’’ because the regulatory authority precision all of the land uses within the purpose of the proposed rule is to does not prepare the reclamation plan. five-year standard included in the require that vegetative communities and A commenter requested that we existing regulations at 30 CFR 780.23(a) land uses are restored to what existed require more detailed soil descriptions and that the longer timeframe detailed prior to any mining—such as the because, in the commenter’s opinion, in paragraph (a)(2) would make it even vegetative communities that existed in more detailed soil descriptions are more difficult. We do not intend this 1930. The proposed rule at needed to differentiate between the soil requirement to be unfair, impractical, or §§ 779.22(b)(2)(i) and 783.22(b)(2)(i) horizons (O, A, E, B, C, and R) so that create an impossible standard, and for established requirements for a narrative they can be properly characterized and clarity are adding a statement to the end analysis of the productivity of the segregated. Other commenters suggested to (a)(2); ‘‘to the extent that this proposed permit area . . . as that we require the retention of physical information is readily available or can determined by actual yield data or yield soil core samples and photographs be inferred from the uses of other lands estimates . . . ’’. One commenter on this because mischaracterization of soil in the vicinity.’’ In most cases, it would section expressed concern that we were horizons could allow improper mixing be sufficient for the applicant to provide making a substantive change by adding of higher quality soils with poor soils. historical land use information similar the word ‘‘actual’’ to the requirement for We disagree with these comments to that required for a Phase I yield data regarding the average yield of because the minimum requirements as Environmental Site Assessment under food, fiber, forage or wood products established in our final rule are the Comprehensive Environmental obtained on the land before mining. sufficient to develop adequate Response, Compensation and Liability Another commenter objected to reclamation plans for the salvage and Act (CERCLA).261 Standards for these proposed paragraph (b)(2) requiring the storage of topsoil and other soil assessments have been established by presentation of productivity data horizons as needed to reconstruct a soil ASTM International.262 Assessments expressed as average yield of food, fiber, medium that will support the approved may include a review of publicly forage, or wood products obtained postmining land use. As discussed available records, aerial photos, soil under ‘‘high levels of management’’ previously, § 779.21(f) allows the surveys, deed searches, and interviews because this allegedly requires coal regulatory authority to require a greater with owners, occupants, neighbors, and mining operators to speculate about level of detail, if deemed necessary, local government officials. Various industries and commercial enterprises which could include the information military and government agencies began in which they have no expertise. We suggested by the commenters. collecting aerial imagery as far back as disagree. Our previous regulations at Another commenter questioned the the 1940’s and 1950’s. Advancements in § 780.23(a)(2)(ii) required the applicant rationale of expanding the requirements satellite and sensor technology resulted to determine productivity by yield data for soil information, stating that the in agencies gathering imagery from or estimates for similar sites based on proposed rule is not supported by space during the 1970s and 1980s. current data from the U.S. Department science. This commenter did not While results will vary depending on of Agriculture, state agricultural provide any specific information in one’s geographic area of interest, most universities, or appropriate state natural support of the assertion that this areas of the continental United States resource or agricultural agencies. requirement is not supported by have aerial imagery coverage dating Likewise, our previous regulations at science. Not only do we disagree with back several decades. A free, open, and §§ 780.23(a)(2)(ii) and 784.15(a)(2)(ii) the commenter we note that all of the commonly used repository of aerial included a requirement for productivity final rule requirements, including soil imagery is available online through the information to be expressed ‘‘under mapping and available surveys, soil U.S. Geological Survey portal called higher levels of management’’, thus, this depth and quality, are collectively Earth Explorer: http:// is not a new requirement. While our necessary to effectively determine the earthexplorer.usgs.gov/. This user- previous regulations do not use the premining capability and productivity friendly platform hosts a plethora of word ‘‘actual’’, inclusion of the word of the land and to establish the soil aerial imagery as well as satellite ‘‘actual’’ in the revised regulations salvage, soil substitute, and soil imagery. Based on the material available merely emphasizes the distinction replacement requirements to ensure for the site and region, the regulatory between actual data and estimated data restoration of these capabilities and authority should easily be able to and imposes no new requirements. In successful establishment of native determine whether the statement of the response to commenters’ concerns about vegetation. Moreover, these historical uses of the area is reasonable. potential land uses and determining requirements are not only consistent A regulatory authority commenter premining capability, we included a with the Act they are essential to objected to the placement of the phrase more thorough discussion of these fulfilling the requirements of the Act.260 ‘‘capability of the land prior to any issues in the preamble to final § 780.24. mining’’ in proposed rule § 779.22(b)(1). We received many comments Section 779.22: What information on Although this phrase is taken directly regarding the proposed requirement at land use and productivity must I from section 508 of SMCRA,263 the § 779.22(b)(3), which would have include in my permit application? commenter expressed concern that required the permit applicant to provide Commenters expressed concern that ‘‘prior to any’’ mining is not sufficiently a narrative analysis of productivity of proposed paragraph (a)(2), which would defined. Further, the commenter opines the proposed permit area for fish and require a description of the historic use that it will be problematic to determine wildlife before mining. Many of the land, contains no time limitation, the capability of land for areas such as commenters supported this is unfair and impractical, and creates an 261 42 U.S.C. 9601 et seq.; see also 40 CFR part requirement, expressing that 260 See, e.g., 30 U.S.C. 1257(b)(16); 30 U.S.C. 312. productivity information was essential 1258(a)(2) and (3); 30 U.S.C. 1265(b)(2), (5), (6) and 262 See ASTM 1527–05 and 1527–13. to establishing a baseline on which (7). 263 30 U.S.C. 1258(a)(2)(B). impacts to fish and wildlife can be

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93137

evaluated and for establishing a capability of the land to sequester and and to protect the integrity of the public reference for reclamation of the area to store carbon. The regulatory authority water supply. premining conditions. Other may want to factor this information into Another commenter requested clarity commenters alleged that the decisions concerning an applicants about the extent of ‘‘water supplies’’ requirement was unclear on the level proposed changes in land use, or that must be mapped as required in this and scope the analysis must entail and revegetation, including the provisions at section. As stated in proposed what metrics and historical final 780.16(d)(3) regarding mandatory paragraph (a)(11), any public water documentation would be necessary. enhancement measures to address losses supply and associated wellhead After consideration of the comments of mature native forests. protection zone located within one-half both supportive and critical of this mile, measured horizontally, of the Section 779.24: What maps, plans, and provision, we have determined that this proposed permit area must be included cross-sections must I submit with my requirement is overly burdensome due in maps and, when appropriate, in plans permit application? to the survey effort that would be and cross sections included in the required to document productivity. As We proposed to consolidate existing permit application. This section of the expressed in the preamble for the §§ 779.24 and 779.25 into § 779.24 and rule does not intend for the origin of the proposed rule, the fish and wildlife add a new paragraph (c) to clarify that source waters to be included, but rather information required by proposed the regulatory authority may require the location of the public water supply paragraph (b)(3) would have assisted the that the applicant submit all materials itself. The scale of the map must be regulatory authority in evaluating the in a digital format that includes all sufficient to include all pertinent environmental impacts of the proposed necessary metadata.265 Except as features as required in final rule § operation and in determining the fish discussed below, we are adopting, as 779.24. and wildlife protection and proposed, §§ 779.24 and the counterpart Proposed paragraph (a)(13) requires enhancement measures that may be at 783.24, related to underground that the location of any discharge, appropriate. However, these mining. including, but not limited to, a mine- productivity needs can be adequately Section 779, pertains to the minimum water treatment or pumping facility, met by the requirements at §§ 779.20(a)– requirements for information on into or from an active, inactive, or (c) and 783.20(a) through (c) to include environmental resources and conditions abandoned underground mine that is general and site-specific resource for surface coal mining applications. In hydrologically connected to the information on fish and wildlife § 779.24(a)(2), the text mistakenly proposed permit area or that is located resources in the permit application to a referred to underground mining within one-half mile, measured level of detail determined by the activities when we meant surface horizontally, of the proposed permit regulatory authority in coordination mining activities; hence, we replaced area be shown on a map or cross-section with state and federal agencies with the word ‘‘underground’’ with the word and included in the permit application. responsibilities for fish and wildlife. ‘‘surface’’ in the final rule text. In the final rule, we have revised the Therefore, we have eliminated this fish Several commenters requested we phrase ‘‘hydrologically connected to the and wildlife productivity narrative from revise paragraph (a)(9) to include that proposed permit area’’ to the final rule. streams and wetlands within the ‘‘hydrologically connected to the site of Paragraph (c) allows the regulatory jurisdiction of the Clean Water Act be the proposed operation’’ for consistency authority the flexibility to require other field delineated, documented, mapped, with final rule § 783.24(a)(13), which information deemed necessary to and then field confirmed by the U.S. describes what maps, plans, and cross- determine the condition, capability, and Army Corps of Engineers. We are not sections the operator must submit with productivity of the land within the adopting this recommendation because a permit application for an underground proposed permit area. In the preamble, we cannot place responsibilities on the mine. The type of information required we noted that this additional U.S. Army Corps of Engineers through in this section aids the applicant in information may include data about a SMCRA rulemaking. However, as preparing the determination of the site’s carbon absorption and storage revised, our final rule at § 773.5(a) probable hydrologic consequences of capability. Commenters claimed that it requires that each SMCRA regulatory mining required by section 507(b)(11) of is not within the purview of SMCRA program provide for coordination of SMCRA 266 and the regulatory authority authority to evaluate the carbon review of permit applications and in preparing the cumulative hydrologic footprint of the proposed operation. We issuance of permits for surface coal impact assessment required by the same disagree. SMCRA clearly allows mining operations with the federal and provision of the Act and by section regulatory authorities to consider the state agencies responsible for permitting 510(b)(3) of SMCRA.267 Several effects of the proposed operation on the and related actions under, among other commenters, including regulatory condition of the land, which includes laws, the Clean Water Act. This authorities and industry commenters, the land’s capability prior to any provision will ensure that the U.S. opined that paragraph (a)(13) did not mining.264 The capability of the land Army Corps of Engineers has an provide any benefit and would result in within the proposed permit area could opportunity to participate in the increased costs. We disagree. The include the land’s ability to absorb and SMCRA permitting process to the degree locations of any of these types of store greenhouse gases. As indicated in that it deems appropriate. discharges are necessary for the our Draft and final EIS, greenhouse Commenters expressed concern about applicant to prepare the determination gases are sequestered and stored in soils the confidentiality of information of the probable hydrologic and vegetative biomass, which reduces provided to the regulatory authority consequences of mining required by the total amount of carbon present in within proposed paragraph (a)(11). In section 507(b)(11) of SMCRA,268 and for the atmosphere and mitigates the response to these comments, we revised the regulatory authority to prepare the adverse effects of climate change. § 779.24(a)(11), to ensure that this cumulative hydrologic impact Mining may remove significant amounts information is kept confidential when of forest cover, which would reduce the necessary for safety and security reasons 266 30 U.S.C. 1257(b)(11). 267 30 U.S.C. 1260(b)(3). 264 See 30 U.S.C. 1258. 265 80 FR 44436, 44486 (Jul. 27, 2015). 268 30 U.S.C. 1257(b)(11).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93138 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

assessment required by the same and vertical extent of aquifers on a map In paragraph (a)(27), we proposed to provision of the Act and by section provided no benefit and would result in add a requirement that the application 510(b)(3) of SMCRA.269 Another increased costs. Maps showing the areal identify all directional or horizontal commenter was concerned that the and vertical extent of aquifers are drilling for hydrocarbon extraction requirement in paragraph (a)(13) may needed to accurately assess the extent of operations, including those using present private property access issues groundwater within the proposed hydraulic fracturing methods, within or for permit applicants. We acknowledge permit and adjacent areas so that the underlying, the proposed permit and that lack of landowner consent may regulatory authority can conduct an adjacent areas. A few commenters restrict data collection; however, we adequate assessment of the hydrology so objected to the addition of this anticipate that the applicant will make that it can ensure the proposed coal requirement. These commenters pointed every effort to obtain necessary access mining operation will minimize to the difficulty in obtaining the from private property owners. We also disturbance of the hydrologic balance information as it is often proprietary anticipate that the applicant will inside the permit area and adjacent information or would otherwise be time coordinate with the regulatory authority areas and prevent material damage to consuming to acquire. The commenters to rectify this issue, and, at the very the hydrologic balance outside the also noted that, at least in western least, document the inability to access permit area. Another commenter stated states, this type of drilling generally the private property because of a refusal that it would prefer the option to use occurs in zones well below the depth of by the property owner to provide maps instead of cross-sections to show coal mines and potable water aquifers. permission. the data required by paragraph (a)(19). Some commenters suggested that the Proposed paragraphs (a)(18) and (20) In consideration of this comment, we regulatory authority should have the included a requirement to submit agree that it is prudent to allow the flexibility in determining if this geographic coordinates of test borings, applicant the flexibility, in consultation information is necessary. We agree to an core samplings, and monitoring stations. with the regulatory authority, to select extent. We have removed any specific One commenter stated that these the most appropriate means of references to directional or horizontal requirements would require field supplying this information in the permit drilling as this requirement applies to surveying which would add significant application. Therefore, paragraph (19) all oil and gas wells regardless of costs to the application process and that has been revised to allow for the whether they are conventional or coordinates derived through the use of information to be provided on unconventional. In addition, we appropriate software could provide appropriately-scaled cross-sections or included a requirement that the lateral greater accuracy than hand-held field maps, in a narrative, or a combination extent of the well bores must be devices. Proposed paragraphs (a)(18) of these methods. provided unless that information is and (20) do not specify the means that To provide clarity, we further revised confidential under state law. However, must be used to obtain the geographic paragraph (a)(19) of the final rule to as required in previous § 779.25(a)(10), coordinates, only that the coordinates replace ‘‘portrayal of seasonal some information related to oil and gas need to be included in the permit variations’’ with ‘‘maximum and wells is necessary for both the applicant application. The use of hand-held global minimum variations.’’ The modification and the regulatory authority to fully positioning system field devices is clarifies it is the range in variations in evaluate the impacts of the potential acceptable, but the use of appropriate hydraulic head that is needed to provide mining and reclamation activities with geospatial software and publicly meaningful information relative to regard to the existence of these types of available imagery is also acceptable and wells within the proposed and adjacent provides accurate data. We have not individual water level measurements. areas. Mining and reclamation activities modified the final rule in response to We also omitted the word ‘‘estimated’’ must be planned appropriately to this comment. concerning the elevation of the water Proposed paragraph (a)(19) expands table in the aquifers to clarify that the accommodate the presence of these upon the requirement in existing section elevations must be based on structures; therefore, the locations of the 779.25(a)(6), which requires maps groundwater data collected from the site wells, and in many instances the showing the location and extent of rather than on an estimation of the depths, must be known prior to the subsurface water, if encountered. The levels based on other sources. Finally, development of the mining plan. In expanded application requirements of we revised ‘‘location and extent of recognition that the well completion the proposed rule would also require all subsurface water, if encountered’’ to information may be confidential, the mining applications for both surface and ‘‘location and extent of any subsurface final rule includes the qualifier, ‘‘if underground mines to identify aquifers; water encountered’’ to clarify that the available,’’ relative to the depth this requirement is currently only intent is to record the presence of any information and we have required the applicable to underground mines under subsurface water encountered within lateral extent of the well bores to be existing § 783.25(a)(6). We also the proposed permit and adjacent areas. provided unless that information is proposed to require that the application In paragraph (a)(21), we proposed to confidential under state law. include the areal and vertical add a requirement that any coal or rider With regard to paragraph (c)—the new distribution of aquifers and a portrayal seams located above the coal seam to be paragraph we proposed related to digital of seasonal variations in hydraulic head mined also be identified in this section. submittal of information—we invited in different aquifers. In addition, However, this requirement was removed comment on whether the digital format proposed paragraph (a)(19) includes a from the final rule due to a redundancy option should be mandatory to facilitate requirement for the estimated elevation with requirements in § 780.19(e)(3). review by both the public and the of the water table required by section Likewise, the requirement in paragraph regulatory authority instead of allowing 507(b)(14) of SMCRA.270 Two (a)(23) to identify the location and the regulatory authority discretion in commenters stated that the requirement extent of known workings of determining the format that the operator in paragraph (a)(19) to provide the areal underground mines underlying the is required to submit their data. One proposed permit and adjacent areas are commenter suggested that we require all 269 30 U.S.C. 1260(b)(3). removed in the final rule due to regulatory authorities to post online all 270 30 U.S.C. 1257(b)(14). redundancy with § 783.24(a)(23). mine permit applications and associated

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93139

files. Several commenters were in favor establishment and spread of invasive plan approved in the permit (including of making this requirement mandatory; species, were too onerous for the establishing appropriate vegetation however, another commenter suggested applicant to provide, too difficult to bordering perennial, intermittent, and that the final rule should not require the establish with any accuracy before a ephemeral streams); demonstrating digital format option for all materials mining operation begins, and too revegetation success and the restoration submitted to regulatory authorities lengthy for the regulatory authority to of the ecological function of all because there are instances where analyze and approve. We disagree. reconstructed perennial and published maps are utilized and These new permit description intermittent stream segment; and metadata may not be available. We agree requirements are necessary to fulfill applying for each phase of bond release with the commenter’s rationale; thus, statutory requirements, particularly the under section 800.42. there were no changes made to requirement to use ‘‘the best technology Several commenters expressed paragraph (c) in the final rule. currently available’’ to ‘‘minimize disturbances and adverse impacts of the concern that these new requirements Previous § 779.25: Cross Sections, Maps, operation on fish, wildlife, and related will place operators in a position to fail and Plans environmental values, and achieve or force them into noncompliance, if, We have removed and reserved enhancement of those resources where despite their best efforts, they do not previous § 779.25 for the reasons practicable’’ within section 515(b)(24) of meet the proposed timetables for discussed in the final rule.271 SMCRA.272 The requirements of this demonstration of revegetation success, section, including the requirement that restoration of the ecological function of G. Part 780—Surface Mining Permit an applicant provide a timetable for all reconstructed perennial and Applications—Minimum Requirements reclamation and other activities, will intermittent stream segments, or for Operation and Reclamation Plans also ensure that these activities have application for each phase of bond Section 780.1: What does this part do? been given sufficient consideration release. In addition, these commenters With the exception of altering the title before a permit is issued. These claim that establishing a timetable for of this section for clarity, we are additional descriptions and timetables completion of these activities, including finalizing section 780.1 as proposed. We are realistic and achievable and will the return of ecological function to received no comments on this section. allow the regulatory authority to fully streams, is unrealistic and that these analyze the permit and the operators’ new requirements would remove the Section 780.2: What is the objective of efforts to comply with SMCRA. discretion from regulatory authorities to this part? One commenter stated that the whole require items they determine are We are finalizing § 780.2 as proposed. section implies that these programs important on a case-by-case basis. We We received no comments on this have not been successful in returning disagree. The current rules already section. lands to approximate original contour require ‘‘a detailed timetable for the and in repairing lands and waters completion of each major step in the Section 780.4: What responsibilities do damaged by pre-SMCRA mining. We reclamation plan’’ within § 780.18(b)(1). I and government agencies have under disagree. Reclamation has been This section now lists the major steps this part? successfully accomplished in many that, at a minimum, must be included in We are finalizing § 780.4 as proposed. instances. However, reclamation the timetable. The rule provides the techniques can be improved as the We received no comments on this regulatory authority with flexibility to regulatory authorities, mine operators, section. require additional steps at its discretion. and the scientific community learns Moreover, these minimum standards Section 780.10: Information Collection more about successful reclamation. For help implement various provisions of Section 780.10 pertains to compliance instance, the Forestry Reclamation SMCRA including, but not limited to: with the Paperwork Reduction Act, 44 Approach of planting shrubs and trees section 507(d) of SMCRA, which U.S.C. 3501, et seq. We are adding in soil that is not compacted has provides that ‘‘[e]ach applicant for a contact information for persons who thoroughly changed how this industry permit shall be required to submit to the wish to comment on these aspects of returns forests to mine sites. regulatory authority as part of the part 780. Additionally, eliminating or limiting the use of non-native, invasive grasses has permit application a reclamation plan Section 780.11: What must I include in improved native reclamation in arid which shall meet the requirements of the description of my proposed areas. The rule that we are adopting this Act’’; 273 section 508(a)(4), which operations? today promotes the use of these and requires ‘‘a detailed description of how We are finalizing § 780.11 as other best practices in the field of the proposed postmining land use is to proposed. We received no comments on reclamation and will benefit native be achieved and the necessary support this section. species, communities, and ecosystems activities which may be needed to both within and beyond the permitted achieve the proposed land use’’; 274 Section 780.12: What must the site. section 508(a)(7), which requires a reclamation plan include? detailed, estimated timetable for the Section 780.12 sets forth requirements Final Paragraph (b): Reclamation accomplishment of each major step in for the reclamation plan which must be Timetable the reclamation plan’’; 275 and section included within a permit application. Section 780.12(b) contains a 515(b)(16), which requires that mining Several commenters stated that the new requirement that applicants submit a operations ‘‘insure that all reclamation requirements for describing, in detail timetable for reclamation activities efforts proceed in an environmentally and in writing, the plans for all which constitute major steps in the sound manner and as activities, including planned animal reclamation process, including, but not contemporaneously as practicable with husbandry practices, reclamation limited to: The planting of all vegetation timetables, and plans for minimizing the in accordance with the revegetation 273 30 U.S.C. 1257(d). 274 30 U.S.C. 1258(a)(4). 271 80 FR 44436, 44486 (Jul. 27, 2015). 272 30 U.S.C. 1265(b)(24). 275 Id. at (a)(7).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93140 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

the surface coal mining operations.276 the reclamation plan’’ is consistent with function of all reconstructed perennial Additionally, permit documents, such section 508(a)(7) of SMCRA.278 and intermittent stream segments. At as reclamation plans, are allowed to be Several commenters objected to the paragraph § 780.12(b)(7), we have updated, and frequently are. inclusion of proposed paragraphs (b)(3) clarified that applicants must include as Reclamation schedules can be revised as and (b)(7), deeming them unnecessary part of their timetable a needed during the course of mining as but not providing justification for this ‘‘demonstration’’ that restoration of long as the regulatory authority finds assertion. We disagree. As discussed ecological function will be achieved. the adjustment acceptable under section throughout this preamble and This is a change from the proposed rule, 511(a) of SMCRA.277 This process specifically within §§ 780.28, 816.56, which required ‘‘restoration of the should protect operators in situations and 816.57, stream reconstruction is ecological function,’’ and could have where, despite their best efforts, they essential to achieving reclamation. been interpreted as referring to the cannot meet the original reclamation Moreover, section 508(a)(13) of SMCRA performance of reclamation work rather schedule. No changes were made as a specifically requires ‘‘a detailed than to the time when that work must description of the measures to be taken result of these comments. be completed. Actual restoration, as during the mining and reclamation We made changes to paragraphs required in the performance standard of process to assure the protection of . . . (b)(3), (b)(5), and (b)(7) to clarify that § 816.57(g), must occur prior to Phase III establishment of the surface drainage the quality of surface and ground water systems....’’279 Adding the bond release. Our intent here is that the pattern and stream-channel timetable establishes a point at which configuration; the planting of requirements in paragraphs (b)(3) and (b)(7) will ensure that both the the permittee must demonstrate that appropriate vegetation along the banks regulatory authority and industry are ecological function has been restored. of perennial, intermittent, and mindful of the importance of these Several commenters requested that we ephemeral streams; and the restoration measures and carefully plan for their require a qualified biologist or ecologist of the ‘‘form’’ of all perennial and appropriate implementation. To ensure to provide written attestation to any intermittent stream segments are major consistency with final rule §§ 780.28, steps which must be included in the stream restoration plans and any bond 816.56, and 816.57, we have revised reclamation plan. As proposed, release that includes a restored stream. paragraph (b)(3). paragraph (b)(3) added to the list of We did not modify the final rule in This modification reflects the response to these comments. Our final milestones in the reclamation timetable different requirements for restoration of a requirement for establishing rule incorporates sufficient scientific ‘‘form’’ of perennial and intermittent expertise and success standards. For ‘‘[r]estoration of the form of all streams that must occur prior to Phase perennial and intermittent stream instance, final rule § 780.12(g)(6) now I bond release, discussed in the includes the requirement that a segments through which you mine, preamble of §§ 800.42(b) and 816.57(e) either in their original location or as qualified, experienced biologist, soil and the postmining surface drainage scientist, forester, or agronomist must permanent stream-channel diversions.’’ pattern and stream-channel The requirement described at proposed prepare or approve the revegetation configuration requirements related to plan, which includes the vegetation paragraph (b)(5) was, ‘‘planting,’’ and ephemeral streams discussed in proposed paragraph (b)(7) provided for found within the streamside vegetative §§ 800.42(b) and 816.56(b), that also corridor. Similarly, all reclamation the ‘‘[r]estoration of ecological function must occur prior to Phase I bond of all reconstructed perennial and plans described within final § 780.13(b) release. must be prepared by, or under the intermittent stream segments either in We have also modified paragraph direction of, and certified by a qualified their original location or as permanent (b)(5). As proposed, this paragraph registered professional engineer, a stream channel diversions.’’ As merely required ‘‘planting.’’ Some professional geologist, or, in any state discussed in more detail below, these commenters alleged that this was that authorizes land surveyors to changes were made in order to clarify nebulous. We agree with these prepare and certify maps, plans, and the previous regulation at § 780.18(b)(1) commenters and have revised the cross-sections, a qualified registered by identifying these requirements as paragraph to clarify that the professional land surveyor, with ‘‘major steps in the reclamation establishment of appropriate vegetation process’’ and to conform § 780.12(b) of includes the establishment of 100-foot assistance from experts in related fields the proposed rule to the proposed rule wide, streamside, vegetative corridors such as landscape architecture. These at §§ 780.28 and 816.57, which related when required by § 816.56(c), which requirements ensure the use of experts to activities, in, through, or adjacent to relates to ephemeral streams, and in establishing the plans for streams and the restoration of ecological § 816.57(d), which relates to perennial reclamation. Within §§ 816.111(b) and function, and to proposed rule and intermittent streams and to clarify 817.111(b), we require these plans to be §§ 816.111 and 816.116, which related that the reclamation plan must include followed, and within §§ 816.116(d) and to revegetation. It is necessary to a timetable for the planting of all 817.116(d), we require a scientifically document these milestones to ensure vegetation including vegetation along derived success standard for all that successful reclamation is the banks of streams. Furthermore, this revegetation. In addition, regulatory accomplished and to provide the requirement, as revised, complements authorities have the expertise and regulatory authority with assurance that the requirements of § 800.42(c), which protocols necessary to analyze permit these activities have been given relates to Phase II bond release. documents and bond release evidence, sufficient consideration. Moreover, as We also modified proposed (b)(7) for including those in place within previously discussed, the inclusion in clarity and consistency with final rule §§ 780.12(b) and 800.42(b)(4). Therefore, the reclamation plan of a ‘‘detailed §§ 816.57(g) and 800.42, which relate to this final rule incorporates sufficient estimated timetable for the the requirements and timing of scientific expertise and success accomplishment of each major step in achieving restoration of ecological standards and requiring a qualified biologist or ecologist to provide written 276 30 U.S.C. 1265(b)(16). 278 30 U.S.C. 1258(a)(7). attestation of any stream restoration 277 30 U.S.C. 1261(a). 279 Id. at 1258(a)(13). plans and any bond release is not

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93141

warranted. We have not incorporated calculation. We have made no changes that this sentence does not properly this into the final rule. based on these comments. reflect our intent, which was to As proposed, § 780.12(b)(7) added a minimize compaction of soil materials requirement to demonstrate restoration Final Paragraph (d): Backfilling and Grading Plan in the root zone, while still requiring of ecological function of all compaction of spoil in order to reconstructed perennial and This section of the final rule adds minimize conductivity levels in intermittent streams to the list of major greater specificity to the backfilling and leachate and runoff from the mine. steps in the reclamation process. This is grading plan, requiring a description of Therefore, the final rule replaces that consistent with final paragraph (b) that how the operator will compact spoil to sentence with paragraphs (d)(2)(i) and requires each permit application to reduce infiltration, minimize leaching (ii). Paragraph (d)(2)(i) requires that the include a detailed timetable for and discharges of parameters of backfilling and grading plan describe in completion of each major step in the concern, limit the compaction of topsoil detail how spoil will be compacted in reclamation process. Several and soil materials in the root zone to the order to reduce infiltration to minimize minimum necessary to achieve stability, commenters opposed the addition of leaching and discharges of parameters of and identify measures that will be used proposed paragraph (b)(7) because they concern. Paragraph (d)(2)(ii) requires to alleviate soil compaction if necessary. thought it was redundant of the permit that the backfilling and grading plan The final rule also requires, if acid- or other authorization required under limit compaction of topsoil and soil 280 forming and toxic-forming materials are section 404 of the Clean Water Act. materials in the root zone to the We disagree and are retaining paragraph present, a description of how the minimum extent necessary to achieve (b)(7). The stream restoration operator will handle these materials to stability. The plan also must identify requirements in our final rule share protect groundwater and surface water measures that the permittee will use to elements in common with requirements in accordance with § 816.38 of this alleviate soil compaction if it under section 404 of the Clean Water chapter. nonetheless occurs. These changes Act, but they are not substantively Some commenters argued that identical. implementation of the Forestry better reflect our intent to minimize Reclamation Approach by itself would both compaction and conductivity Final Paragraph (c): Reclamation Cost not reduce elevated conductivity levels levels. Estimate resulting from mountaintop removal Some commenters alleged that there Commenters alleged that by only mining operations to the point at which was an apparent contradiction between requiring the reclamation to include the those levels would no longer damage our emphasis on using compaction to standardized construction cost aquatic life. We acknowledge that the ensure stability and reduce leaching and estimation methods and equipment cost comment is correct. However, as our attempts to limit compaction that guides, the proposed rule did not discussed in the preamble to the impedes revegetation. Moreover, some adequately address all the factors and proposed rule, there is evidence that the commenters opined that our costs involved in completing use of the Forestry Reclamation requirements related to compaction are reclamation. Many of these commenters Approach will reduce levels of impractical as proposed. These use actual cost methods which take in conductivity progressively over time.281 commenters stated that our standards more local factors, conditions, and In addition, our final rule includes other for limiting compaction are not circumstances. After consideration of measures to address conductivity. The supported by scientific evidence and this comment, we have added language final rule includes a definition of will require a significant engineering to the final rule to allow applicants to ‘‘material damage to the hydrologic analysis by the regulatory authority to use ‘‘up-to-date actual contracting costs balance outside the permit area’’, in determine what the compaction incurred by the regulatory authority for § 701.5; requires baseline information standard should be on various portions similar activities’’ in lieu of more broad- on conductivity in § 780.19, requires of the permit. Additionally, one based standardized construction costs. that the backfilling and grading plan commenter in particular stated that the A commenter also questioned the lack describe in detail how spoil will be language in this paragraph requiring of definitions of ‘‘direct’’ and ‘‘indirect’’ compacted to reduce infiltration and that compaction of backfills be costs. We do not believe that ‘‘direct and minimize leaching in § 780.12(d)(2)(i); minimized, except as needed to reduce indirect’’ costs need to be defined requires the elimination of durable rock infiltration and minimize leaching and within the regulatory text because they fills in § 816.71(g); and requires that discharges, is inconsistent with the are relatively common terms. Another excess spoil be placed in a manner that requirements of § 816.38(a), which commenter stated that indirect costs will minimize adverse effects of requires compaction to prevent acid- should not be included as they are leachate and runoff on groundwater and forming materials from leaching into the irrelevant to the cost of reclamation and surface water, including aquatic life in soil. In response to these comments, we the calculation of bonds. Indirect cost § 816.71(a)(1)). amounts are relevant to bond Proposed paragraph (d)(1) included a have made changes to the final rule at calculations, as those costs are related to sentence stating, ‘‘You must limit § 780.12(d)(1) and (2) to clarify when administration and overhead. In the compaction to the minimum necessary compaction must be used to minimize event that the regulatory authority must to achieve stability requirements unless infiltration, leaching, and related forfeit bonds for the purpose of carrying additional compaction is needed to discharges and when compaction is out reclamation plans in lieu of the reduce infiltration to minimize leaching problematic because it impedes mine operator, costs of a third-party and discharges of parameters of revegetation. However, we disagree with contractor to implement the plan, concern.’’ However, we have concluded the commenters who stated that the including overhead cost and profit must requirement to minimize compaction be included. Therefore, we determine 281 Kenton L. Sena, Influence of Spoil Type on within the root zone is not supported by that the inclusion of indirect costs is Afforestation Success and Hydrochemical Function scientific evidence. In reclamation essential to an adequate bond on a Surface Coal Mine in Eastern Kentucky (2014). projects across the nation, limiting Theses and Dissertations—Forestry. Paper 16, pp. compaction resulted in increased 39 and 60. See http://uknowledge.uky.edu/forestry_ 280 33 U.S.C. 1344. etds/16/ (last accessed Nov. 1, 2016). reclamation success (e.g., Forestry

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93142 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Reclamation Approach,282 Extreme evaluation reports or other oversight reclamation plan. Contour maps are Surface Roughening),283 and supporting activities. We do not agree with the essential to making those evidence for this can be found on commenter’s assumption that this determinations. However, we do not SMCRA permitted sites as well as requirement constitutes a performance allege that cross-sections are within performance reports, annual standard. Rather, it is a permitting unnecessary. Contour maps and cross reports, and other publications authored requirement that helps in ensuring that sections are complementary tools and by us and other SMCRA regulatory the adequacy and effectiveness of regulators should use both to evaluate authorities. proposed backfilling and grading plans. changes to reclamation plans and to One commenter alleged that in Another commenter alleged that the monitor compliance. § 780.12(d) we did not provide a requirement to limit compaction to the rationale for our proposal to increase minimum extent necessary to achieve Final Paragraph (e)(1): Soil Handling requirements for backfilling and grading stability was ambiguous and, as a result, Plan—General Requirements plans. The commenter alleged that we it would be difficult for the regulatory We proposed in paragraph (e)(1)(i) to did not cite specific problems or authority to evaluate and monitor require that the soil handling plan deficiencies with state regulatory compliance in the field due to include a schedule for removal, storage, programs under the existing language. contradictory compaction requirements. and redistribution of topsoil, subsoil or Specifically, the commenter alleged that We recognize that permit requirements other materials including the use of we inappropriately added a about under-compaction and over- organic matter. Numerous commenters performance standard requiring that compaction were combined in the weighed in on aspects of this proposed applicants limit compaction to the proposed rule, possibly leading to requirement. Several commenters stated minimum necessary to achieve stability. confusion. For clarity, they have been that leaving certain organic materials, The purpose of these provisions is to separated into paragraphs (d)(2)(i) and such as duff and root wads, in replaced address the widespread and well known (d)(2)(ii) in the final rule. topsoil is not beneficial for agricultural water quality issues that have been Commenters asserted that the lands and may result in difficulty traced to mineralization of infiltrated submission of contour maps in establishing the vegetation and plant water, the well-known stream health paragraph (d)(1) as part of the crops that are necessary to prove deficiencies that have been traced to backfilling and grading plan is of productivity for bond release. Other inadequate forest cover of streams in limited use and would need to be commenters expressed concern that the previously forested areas,284 285 and the continually adjusted to reflect changes use of organic material could elevate associated leaching of minerals into in market conditions, in geology, or in total suspended solids and total water that will be discharged offsite. other on-site factors. These commenters dissolved solids, slow reclamation and These provisions will ensure that allege that cross-sections are a better revegetation, and disrupt surface owner operators make effective plans to tool for making adjustments to the final priorities and postmining land use minimize compaction of spoil near the surface configuration, including plans. Still other commenters claimed surface of the fill and to facilitate the drainage patterns, compared to typical that the proposed rule did not allow establishment of vegetation in cross-sections, which the commenters regulatory authorities the flexibility to accordance with the reclamation plan. claim, have worked best. We are not waive these requirements. We agree Revegetation contributes to the making any changes to the final rule in with the commenters that it would be enhancement of onsite and offsite response to these comments. counterproductive to mandate the use of streams. The commenter is correct that Compliance with goals of protecting organic materials on land where those we do not cite specific problems or streams and achieving the approximate materials would interfere with the deficiencies with the implementation of original contour can best be judged success of the approved postmining state regulatory programs in order to through the use of contour maps, which land use. Instead of making changes to justify these changes to our regulations. offer more detail than a two this section, however, we have revised Our inspections and other oversight dimensional cross-section alone. While § 816.22(f) to incorporate flexibility into activities in primacy states, including not every change in a reclamation plan the performance standards related to the the annual evaluation reports, focus on would require a new contour map, at a salvage, storage, and redistribution of the success of state regulatory certain point, using only cross sections organic material. Specifically, the authorities in achieving compliance to document revised reclamation plans language we added to § 816.22(f)(3) with the approved regulatory program could cause both regulatory authorities clarifies that the use of organic materials for the state. They do not identify or and operators to miss potentially in certain agricultural areas is not discuss situations in which the existing significant changes in the configuration required. Because the use of organic regulations provide inadequate of the reclaimed land’s surface, changes materials in reclamation substantially protection. The provisions of this rule that, cumulatively or individually, outweighs the disadvantages, however, will address adverse impacts that could significantly impact the we have not made revisions to other historically have been allowed to occur achievement of approximate original regulations that govern the use of these under the existing regulations and that contour and the restoration of streams. materials. have not captured by the annual As an example, poorly located two Another commenter alleges that the dimensional cross-sections could mask preamble to the proposed rule contains 282 Jim Burger et al. The forestry reclamation problems with the location and shape of conflicting statements. The commenter approach. Forest Reclamation Advisory 2 the streams that are supposed to be alleges that in the discussion of organic (December 2005). restored, a problem that would not matter we state that these materials are 283 Mary Ann Wright. The practical guide to reclamation in Utah. Utah Oil, Gas & Mining occur with a three dimensional contour necessary to establish pre-existing plant Division, Univ. of Utah, (2000). map. Regulatory authorities need to use species to restore land use, but this is in 284 Margaret Palmer et al., Mountaintop Mining the best tool for determining whether conflict with our statement that Consequences. 327 (5962) Science 148–149. streams are being appropriately restored vegetative cover has nothing to do with 285 Margaret Palmer & Emily Bernhardt, to form and whether approximate land use capability. The commenter Mountaintop Mining Valley Fills and Aquatic Ecosystems: A Scientific Primer on Impacts and original contour is being addressed as misinterprets the proposed rule Mitigation Approaches. Working paper: 24 (2009). changes are made to the approved preamble discussion because there is no

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93143

statement that the use of organic available to enhance reclamation of surface disturbance, as previously cited, material is necessary to restore land use mine sites even though postmining soil the benefit gained by utilizing organic capability, either by itself or to promote environments are often highly deficient matter as part of reclamation far the revegetation of pre-existing plant in organic matter.288 Moreover, organic outweighs negative impacts associated species. We conclude that the matter serves as a seed bank for the with disturbing additional acres. commenter erred by incorrectly reestablishment of native plants that Because of these benefits, we are referencing our proposed preamble would otherwise be lost if that material retaining the requirement to salvage, discussion at paragraph (e)(1)(ii), where burned or buried. While we recognize store, and redistribute the organic we discussed the salvage and that requiring the salvage of all soil, material. We added language to the final distribution of soil necessary to restore topsoil plus subsoil and organic rule to ensure that the requirements land use capability, with the proposed materials, will increase costs over which govern the placement of organic preamble discussion of organic matter spoiling these materials, we are matter do not conflict with certain found at paragraph (e)(1)(i). Within the finalizing this rule because the salvage agricultural or other postmining land preamble about proposed paragraph of topsoil and organic materials is key uses. Additionally, in locations where (e)(1)(i) we discussed premining land to revegetation success, the use capability, but did not specifically establishment of most postmining land significant populations of invasive plant refer to the use of organic materials as uses, and the restoration of premining species are documented, those organic the commenter alleges. capability. However, in recognition of materials may be buried, but not One commenter opined that requiring limited circumstances under which it burned, as provided for in storage and redistribution of organic would not be practical to separate §§ 816.22(f)(3)(iii) and 816.22(f)(4). matter exceeds our authority because, organics from topsoil, final rule We proposed to require that three soil according to the commenter, SMCRA §§ 780.12(e) and 816.22(f), when read in horizons, topsoil, B horizon, and C limits our authority to the removal and conjunction, allow organics and topsoil horizon, be removed, segregated, replacement of topsoil. We disagree. As to be salvaged together, when stockpiled, and redistributed to achieve we explained in the preamble to our appropriate. This should make the the optimal rooting depth as a final 286 proposed rule, the use of organic salvage of even thin topsoil more cost growing medium. We received many matter assists in satisfying the effective compared to separating topsoil comments on this proposal. Several requirement of section 515(b)(19) of from organic materials, and it will be 287 commenters argued that this SMCRA to establish a diverse, more beneficial than spoiling both requirement would place an effective, and permanent vegetative materials, as frequently has been done. unnecessary burden on state regulatory cover of the same seasonal variety Some commenters discussed potential authorities because the regulatory native to the area; therefore, this unintended consequences of the requirement is fully within our proposal to require salvage and storage authorities would expend more time authority. Organic matter contributes to of organic materials. In general, the reviewing the soil handling plan and enhancing postmining land use commenters state these requirements are significantly more time inspecting the capability, enhances revegetation too prescriptive and create more operation to ensure the proper removal diversity, and aids in establishing problems than they resolve. More and replacement of all three horizons. permanent vegetative ground cover of specifically, several commenters One commenter asserted that successful the same seasonal variety native to the contended that this requirement would soil restoration has been achieved in area as required for the postmining land lead to additional transportation and instances where soil horizons were use. However, as discussed in more storage of organics. Some commenters mixed. Another commenter referenced detail throughout this preamble, the contended that the need for extra circumstances where some soil distribution of organic matter is not storage acres appeared to be at cross- horizons, including some topsoil, can required when it conflicts with certain purposes with one of the purposes of demonstrate characteristics adverse to postmining land uses. the proposed rule—to minimize surface soil reconstruction and reestablishing Regarding the proposed requirement disturbance when possible. Other vegetation. Specifically, the commenter to salvage topsoil and organic materials, commenters expressed concern that referenced soils with unfavorable we received comments asserting that saving organic material in steep slope sodium content and some topsoil that is topsoil is often too thin to salvage. Other areas is challenging and may be an salt-affected, and advocated that these commenters stated that because thin unsafe practice which may put workers should not be salvaged or spread again. topsoil is often closely integrated with at risk. Commenters also argued that the Another commenter noted that this organic matter, it would be difficult to regulatory authorities should have portion of the proposed rule appeared to separate thin topsoil from organic discretion to determine what is best for be based upon achieving reforestation matter. We also received comments these materials, given the terrain. on Appalachian mines and may not be alleging that handling of organic If it is feasible to mine in steep sloped appropriate in other parts of the materials as prescribed will significantly areas, operators should also be capable country. Some commenters opposed of safely excavating and salvaging these increase the cost of reclamation due to proposed paragraph (e)(1)(ii), which materials. While we recognize that the increased hauling and storage costs. specified that the reclamation plan must handling of organic matter has some Other commenters supported the require the removal, segregation, potential for requiring some additional salvage of all topsoil and use of organic stockpiling, and redistribution of the B matter. and C soil horizons and materials other Historically, organic matter has 288 Peter Stahl, Accumulation of Organic Carbon than topsoil in order to achieve the almost universally been either burned, in Reclaimed Coal Mine Soils of Wyoming; http:// asmr.us/Publications/Conference%20Proceedings/ optimal rooting depths required to which adds to air pollution and the 2003/1206-Stahl.pdf (last accessed Nov. 1, 2016) restore premining land use capability release of greenhouse gases, or buried. and J.A. Harris, The Impact of Storage of Soils In either case, the organic matter is not during Opencast Mining on the Microbial and to comply with revegetation Community: A Strategist Theory Interpretation; requirements. They alleged that the http://onlinelibrary.wiley.com/doi/10.1111/j.1526- proposed rule is inconsistent with 286 80 FR 44436, 44488–4489 (Jul. 27, 2015). 100X.1993.tb00014.x/abstract (last accessed Nov.1, 287 30 U.S.C.1265(b)(19). 2016). paragraphs (b)(5) through (7) of section

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93144 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

515 of SMCRA,289 which require salvage site productivity. Finally, we added an sections 508(a)(2)(B) 294 and and redistribution soil materials, other exception at paragraph (e)(1)(iii in 515(b)(2),295 which require that we than topsoil, only for prime farmland response to comments objecting to use ensure successful revegetation and the and in situations in which the subsoil of the B and C horizons when one or restoration of premining land use or other materials have been approved both of those horizons have physical or capability. as a topsoil substitute. They asserted chemical characteristics that make them Several commenters objected to the that requiring the salvage of subsoil or inferior to other overburden materials in other materials for anything other than creating a medium conducive to plant proposed requirement to develop, as prime farmland is not supported by growth. Paragraph (e)(1)(iii) specifies part of the reclamation plan, a soil SMCRA. As we explained in the that the soil handling plan need not handling plan that will restore the land preamble to our proposed rule, require salvage of the B and C soil to premining capability. These scientific studies have determined that horizons if the applicant demonstrates commenters indicated that it would be an adequate root zone is critical to plant that those horizons are inferior to other better to design a soil handling plan to growth and survival, and that topsoil overburden materials as a plant growth accommodate the approved postmining alone generally does not provide an medium, provided that the applicant land use provided for in § 816.111 of adequate root zone. See 80 FR 44488– complies with the soil substitute our regulations because the regulatory 44489 (Jul. 27, 2015). These studies requirements of paragraph (e)(2). We authority measures the success of the document that salvage and also note that, while several of the reclamation by achievement of that use. redistribution of topsoil alone will not reference materials we cite relate to Commenters further alleged that the necessarily restore the mine site to a issues of Appalachia reforestation,292 proposed rule would lead to confusion condition in which it is capable of soils outside Appalachia will likewise because, prior to this rule, reclamation supporting the uses that it was capable benefit from this enhanced recovery of success has always been determined by 293 of supporting before any mining, as soil resources. In addition, we expect the ability to achieve the approved required by section 515(b)(2) of that these requirements will result in postmining land use. SMCRA.290 Therefore, salvage and greatly improved quality of the growth redistribution of subsoil and other soil medium needed to ensure the We disagree. Section 515(b)(2) of materials will be necessary on sites restoration of premining capability and SMCRA 296 requires that mine operators other than prime farmland in order to revegetation. Finally, because the ‘‘restore land affected to a condition meet the requirements of section process of reviewing and approving capable of supporting the uses which it 515(b)(2) 291 of SMCRA. Consistent with reclamation plans, as well as inspecting was capable of supporting prior to any this rationale, the final rule differs sites for compliance is well established, mining. . . .’’ Section 508(a)(2) of slightly from the proposed rule in that we conclude that these requirements SMCRA requires that the reclamation final 30 CFR 780.12(e)(1)(ii) requires will not place an added burden upon plan in the permit application salvage, stockpiling (if necessary), and the regulatory authorities. demonstrate that the reclamation can be redistribution of the B and C soil Additional commenters also asserted successfully accomplished.297 This horizons and other underlying strata that the regulatory authority should requires the regulatory authority to only ‘‘to the extent and in the manner have the discretion to make case-by-case assess of the capability of the land to needed’’ to achieve the optimal rooting determinations about the redistribution support a variety of uses prior to any of soil materials and the depths at depths required to restore premining mining.298 This assessment must which those materials must be buried. land use capability and to comply with include an assessment of the premining revegetation requirements. Addition of These commenters noted that each state physical characteristics of the land and the qualifier ‘‘if necessary’’ with respect already has an acceptable method to a determination regarding the various to stockpiling reflects the fact that demonstrate compliance with the soil stockpiling may not be needed if redistribution requirements. These land uses the site would be able to salvaged materials can be immediately commenters cite the many years of support. Although revegetation success redistributed on backfilled areas. successful bond releases as evidence standards are essential to determining In addition, paragraph (e)(1)(ii) that the current process for making whether the postmining land use has includes the addition of certain determinations related to soil materials been attained, revegetation alone does exceptions in recognition of is adequate. We agree that not ensure that reclamation has restored circumstances when the segregation of determinations on the redistribution of the land’s capability to support the uses the B and C soil horizons and other soil materials should be based on site- it was determined capable of supporting underlying strata is not required. We specific information and the experience prior to any mining. If prior to any made this change in response to of local experts, and this rule does not mining the land had significant physical comments urging us to allow blending depart from this perspective. Although restrictions or limitations due to, for of soil horizons when experience has this rule requires the regulatory example, slope or natural soils, the demonstrated that doing so results in a authority to make additional postmining reclamation might be superior growing medium. As a further determinations, the regulatory authority limited. If, however, the land had few response to these comments, we added remains the ultimate decision-maker on physical limitations and was capable of an exception at paragraph (e)(1)(iv, the handling and replacement of soils, supporting a wide variety of uses prior and its decisions will be based on local, which allows blending of the B horizon, to any mining, the land must be capable site-specific conditions. This rule is C horizon, and other underlying strata, of supporting the same variety of uses necessary to align our regulations with or portions thereof, to the extent that after reclamation. research or prior experience under the specific requirements of SMCRA similar conditions has demonstrated that blending will not adversely affect 292 Carl E. Zipper et al., Rebuilding Soils on 294 30 U.S.C. 1258(a)(2)(B). Mined Land for Native Forest in Appalachia, 77 295 30 U.S.C. 1265(b)(2). Soil Sci. Am. J. 337–349 (2012). 289 296 30 U.S.C. 1265(b)(2). 30 U.S.C. 1265(b)(5) through (7). 293 Alberta Transp. Alberta Transportation Guide 290 30 U.S.C. 1265(b)(2). to Reclaiming Borrow Excavations, p. 5–6 297 30 U.S.C. 1258(a)(2)(B). 291 30 U.S.C. 1265(b)(2). (December 2013). 298 Id.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93145

Final Paragraph (e)(2): Soil Handling Several commenters questioned the rule. While this term is applicable to Plan—Substitutes and Supplements criteria permitting the use of soil soil, the commenter is correct in stating While existing regulations allow the supplement and substitution materials. that it is more commonly used in use of materials as topsoil substitutes These commenters alleged that the association with water and aquatic and supplements if those materials are proposed regulations are not consistent organisms’ tolerance to temperature. On 304 ‘‘equal to or better than’’ the topsoil, the with section 515(b)(5) of SMCRA, reconsideration we have decided the proposed rule would allow the approval which allows soil substitution and added value of including this of topsoil and subsoil substitutes and supplements ‘‘if other strata can be characteristic as it relates to soil supplements only if those materials shown to be more suitable for vegetation substitute materials is limited and will would create a better growing medium requirements . . . .’’ These commenters not be required. However, the other than the original topsoil or subsoil. alleged that the proposed regulations characteristics listed in proposed Commenters opined that the existing ignore the term ‘‘more suitable’’. These § 780.12(e)(2)(iii)(B) are all essential to regulations work well, that a change is commenters suggested that we revise conducting a comprehensive analysis of not needed, and that we have not the regulations to use the ‘‘best whether a material is an acceptable satisfactorily explained why we overburden material available.’’ We substitute. Moreover, with the exception proposed to make this change. Other have declined to make this change. Our of ‘‘thermal toxicity,’’ which we did not commenters stated that if we intend to final regulations for the use of soil include in the final rule, all of the soil require the use of better materials, that supplements and substitutes are fully characteristics included in final requirement should be limited to consistent with section 515(b)(5) of paragraph (e)(2)(iii)(B) were included in 305 substitute topsoil and not extended to SMCRA. As noted above, section previous § 780.18(b)(4). Additionally, subsoil as well. We disagree. As 515(b)(5) of SMCRA allows for soil any one of these characteristics explained in the preamble to the substitution and supplements if a individually, if sufficiently adverse, proposed rule,299 these new regulations demonstration can be made that other could impact the success of will better implement section 515(b)(5) strata are ‘‘more suitable for vegetation revegetation. For example, a potential of SMCRA,300 which allows use of other requirements . . . .’’ Paragraph substitute material may have an strata’’ . . . if topsoil is of insufficient (e)(2)(i)(B) (purposed as (e)(2)(ii)(B), excessively low pH. This factor alone quantity or of poor quality for sustaining which we are finalizing today with only could render it unacceptable as a vegetation, or if other strata can be minor edits for clarity, allows for the substitute material. The final rule shown to be more suitable (emphasis use of substitutes and supplements if requires the regulatory authority to added) for vegetation requirements.’’ 301 ‘‘[t]he use of the overburden materials examine these factors in a thorough and Under this standard subsoil substitutes, that you have selected . . . will result comprehensive fashion. We received comments alleging that it like topsoil, must be ‘‘more suitable’’ in a soil medium that is more suitable is unnecessarily duplicative to require than the existing topsoil in order to than existing topsoil and subsoil to support and sustain vegetation . . . .’’ the testing of substitute soil materials satisfy vegetation requirements. (Emphasis added.) This language is fully twice—once to prove they are suitable Moreover, this provision of our rule is consistent with the language to section and then again after they have been consistent with the requirements of 515(b)(5). Likewise, final paragraph placed. We disagree. Testing of 515(b)(2) 302 in that it will assist in the (e)(2)(i)(C) [proposed as (e)(2)(ii)(C)] is substitute materials before placement is restoration of premining capability by also consistent with section 515(b)(5) of necessary because the testing serves as encouraging development of the root SMCRA. That paragraph allows for a baseline for the substitution plan, zone required by many plants for substitutes and supplements if ‘‘[t]he while testing after placement is needed physical support, moisture and nutrient overburden materials that . . . you to ensure that the substitution plan has uptake.303 Thus, we are making no select for use as a soil substitute or been properly implemented. changes to the proposed rule with supplement [materials that] are the best A commenter stated that expansion of respect to subsoil substitutes. materials available in the proposed the soils-related regulations requires soil Commenters further stated that the permit area to support . . . vegetation science expertise that many regulatory proposal to require the ‘‘best materials’’ consistent with the postmining land use authorities lack. Any soil science available is unnecessarily restrictive, and the revegetation plan . . .’’. expertise and costs related to address places an unnecessary burden on (Emphasis added.) Therefore we are not that need, if currently unavailable regulatory authority resources, and modifying the final rule based on these within a regulatory program, would requires more monitoring with little comments. certainly be a legitimate program cost, benefit. We disagree. The use of the best Several commenters stated that the and, subject to appropriation, states materials available will ensure better inclusion of a number of characteristics would be eligible to receive matching reclamation. Additionally, while we for consideration, such as total depth, grant funding to assist with these have raised the threshold on what texture, and pH of soil horizons and expenses. materials may be considered as an overburden material in paragraph Final Paragraph (f): Surface Stabilization acceptable substitute for subsoil, the (e)(2)(iii)(B), are unnecessary and costly Plan process for using substitutes is to test and compare. Commenters essentially the same and should place specifically objected to the inclusion of Several commenters considered this no greater burden on regulatory staff. As ‘‘thermal toxicity,’’ which they paragraph to be a new permitting such, we are not altering the final rule indicated is a term that is generally used requirement. They generally contend in response to these comments. relating to water, not soil. These that there is no value in this addition commenters were uncertain about what and claim that it was proposed without 299 80 FR 44436, 44489–44490, (Jul. 27, 2015)). that parameter required. In response to justification. In addition, some 300 30 U.S.C. 1265(b)(5). commenters asserted that proposed 301 these comments, we have eliminated the 30 CFR 1265(b)(5). paragraph (f) should be removed 302 30 U.S.C. 1265(b)(2). term ‘‘thermal toxicity’’ from the final 303 Alberta Transp. Alberta Transportation Guide because it is duplicative of other non- to Reclaiming Borrow Excavations, p. 5–6, 304 Id. SMCRA related requirements governing (December 2013). 305 Id. the content of a mine’s air quality

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93146 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

permits. Another commenter suggested include native pollinator-friendly plants revegetation plan identify the measures that the regulation be relocated or and the planting arrangements must that the permittee will take to avoid the revised to better explain the associated promote the establishment of pollinator- establishment of invasive species on permitting requirements. We disagree. friendly habitat. reclaimed areas or to control those As explained in the preamble to the In response to a comment, we revised species if they do become established. proposed rule,306 the surface § 780.12(g)(1)(ix), regarding normal We recognize that it may not be possible stabilization plan required by paragraph husbandry practices, to correctly cross- to completely avoid the presence of (f) is the permitting counterpart to the reference § 816.115(d). some invasive species. The bottom line performance standards at § 816.95, Commenters recommended that we is that invasive species must not be which requires that all exposed surface revise paragraph (g) to require that the present in quantities that would prevent areas must be protected and stabilized selection of revegetation material take attainment of the revegetation success to effectively control erosion and air into account habitats for the wildlife standards established in accordance pollution attendant to erosion, and 30 species with the greatest conservation with final § 816.116. CFR 816.150 and 816.151, which need, as determined by the state wildlife At least one commenter suggested that require dust control on mine roads. This agency, the U.S. Fish and Wildlife we move proposed paragraphs (g)(2) and permitting requirement, which we are Service, and regional or national (3) to part 816 and make them adopting as part of the final rule, allows wildlife conservation initiatives. performance standards. We declined to the regulatory authority to evaluate the According to the commenters, species of make this change. The revegetation anticipated adequacy and effectiveness concern, which include many grassland plan, which is submitted and approved of proposed surface stabilization birds, may benefit by replacing as part of the permit, is a critical measures. Additionally, while many premining forested lands with grassland component of the planning stage. After facets of air quality are not governed by habitat. the permit, which includes the SMCRA, it is clearly within our SMCRA Revisions of the nature advocated by revegetation plan, is approved, the authority to regulate air pollution the commenters may exceed our permittee then is obligated to comply attendant to erosion caused by mining authority under SMCRA. In particular, with the terms and conditions of the activity. Therefore we are not modifying adoption of a rule promoting the approved permit. However, in reviewing the final rule based on this comment. establishment of grasslands in place of the structure of proposed paragraphs the forests that would naturally exist on (g)(2) and (3) in response to this Final Paragraph (g): Revegetation Plan those sites would be inconsistent with comment, we determined that the Final paragraph (g) is substantively section 515(b)(19) of SMCRA, which requirement in proposed paragraph identical to proposed paragraph (g), requires that the permittee ‘‘establish on (g)(2) that the species and planting rates except as discussed below. the regraded areas, and all other lands and arrangements selected as part of the Proposed paragraph (g)(1)(v) provided affected, a diverse, effective, and revegetation plan meet the requirements that the revegetation plan must include permanent vegetative cover of the same of paragraphs (a) and (b) of § 816.116 is the species to be planted and the seasonal variety native to the area of not appropriate. Paragraph (a) of seeding and stocking rates and planting land to be affected and capable of self- § 816.116 requires that the regulatory arrangements to be used to achieve or regeneration and plant succession at authority select standards for complement the postmining land use least equal in extent of cover to the revegetation success and statistically and to enhance fish and wildlife habitat. natural vegetation of the area.’’ 307 valid sampling techniques. Paragraph Final paragraph (g)(1)(v) adds a However, the final rule does require that (b) of § 816.116 requires that the requirement that the revegetation plan permit applications include appropriate revegetation success standards reflect include the species to be planted and fish and wildlife enhancement the revegetation plan requirements of the seeding and stocking rates and measures. Specifically, final § 780.12(g). Nothing in those two planting arrangements to be used to § 780.16(d)(2)(iv) promotes the paragraphs would impact development achieve the streamside vegetative reestablishment of native forests or of the revegetation plan. Therefore, final corridor provisions of final §§ 816.56(c) other native plant communities, both paragraph (g)(2) does not include the and 816.57(d), when applicable. We within and outside the permit area. provision in proposed paragraph (g)(2) added this requirement to emphasize Many commenters supported that would have required that the the critical nature of streamside proposed paragraph (g)(1)(xi), which revegetation plan meet the requirements vegetative corridors in achieving required that the applicant describe the of paragraphs (a) and (b) of § 816.116. restoration of streams that are mined process for monitoring and controlling Final paragraph (g)(3)(vii) differs from through. invasive species. Other commenters proposed paragraph (g)(3)(vii) in that One commenter requested that we requested an explanation of how the the final rule does not include mention implement, to the maximum extent rule would apply to naturalized of state and federal poisonous plant practicable, measures to support invasive or non-native species or when laws. We made this change because we pollinators with respect to native plants, invasive or non-native species drift from are not aware of any state or federal consistent with the Presidential adjacent lands and establish themselves poisonous plant laws. Memorandum dated June 20, 2014, on the mine site. The final rule does not Some commenters requested the rule ‘‘Creating a Federal Strategy to Promote distinguish between naturalized non- include more specific information on the Health of Honey Bees and Other native species and non-native species the meaning of native plant Pollinators.’’ In response to this that are not naturalized. Nor does it communities and the natural succession comment, we added paragraph differentiate on the basis of how non- process. Final paragraph (g)(3)(iv) (g)(1)(v)(B) to the final rule. That native species arrive on the mine site. differs slightly from its counterpart in paragraph provides that, to the extent Instead, it differentiates on the basis of the proposed rule in that we added a practicable and consistent with other whether the volunteer non-native clarification that the species in the revegetation and regulatory program species are invasive. In all cases, final revegetation plan must be consistent requirements, the species mix must paragraph (g)(1)(xi) requires that the with the appropriate stage of natural succession in the native plant 306 80 FR 44436, 44490 (Jul. 27, 2015). 307 30 U.S.C. 1265(b)(19). communities described in § 779.19 of

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93147

the final rule. In other words, we do not commenters considered the proposed implemented before the entire bond intend to require planting of species that requirement too stringent; they amount for the area has been fully would not survive on drastically recommended fewer restrictions on the released. These provisions provide the disturbed sites. use of non-native species and more flexibility needed to allow the use of Several commenters stated that the flexibility for the regulatory authority to introduced species for agricultural standards for revegetation are not clear approve vegetation plans based on local postmining land uses. Therefore, final and asked whether sites are to be conditions. As previously explained, paragraph (g)(5) does not include the returned to the vegetation that existed our final regulations allow for the provision in proposed paragraph (g)(5) prior to human influence. If this is the appropriate use of introduced species that would have allowed the regulatory case, the commenters stated, this for reclamation, as long as they are not authority to exempt lands with long- requirement would be impossible to invasive. Requirements to use native term, intensive agricultural postmining meet in situations where non-native species (and, where appropriate, land uses from the requirements of vegetation constitutes a significant introduced, non-invasive species) for paragraph (g)(3)(i). portion of the premining landscape. The reclamation allow the regulatory Some commenters requested that we final rule does not necessarily require authority to approve vegetation plans include a definition of ‘‘resembles’’ that the site be revegetated with the based on local conditions. They also within § 780.12(g)(3)(ii), which requires species that characterized the site before minimize the risk of allowing non- ‘‘a permanent vegetative cover that it was altered by human activities. The native species to be introduced when resembles native plant communities in species selected must be suitable for the they are not the best choice for long- the area.’’ We find it unnecessary to postmining land use. Final paragraph term reclamation. define this term. The final rule allows (g)(3)(i) requires use of species native to We also received comments that the regulatory authority the flexibility to the area, but it also allows use of alleged that the requirement to use approve a native, non-invasive introduced species as part of the native vegetation conflicted with the vegetative cover that would allow for permanent vegetative cover for the site requirement to achieve a condition in natural succession specific to that site. if the introduced species are both non- which the site will support a productive To the extent that more explanation is invasive and necessary to achieve the postmining land use and the needed, section 515(b)(19) of SMCRA postmining land use, planting of native requirement for use of species capable requires that the permittee ‘‘establish on species would be inconsistent with the of self-regeneration and natural the regraded areas, and all other lands approved postmining land use, and the succession. The commenters alleged affected, a diverse, effective, and approved postmining land use is that the proposed requirements were permanent vegetative cover of the same implemented before the entire bond neither sufficient nor the most seasonal variety native to the area of amount for the area has been fully productive way to achieve the land to be affected and capable of self- released under §§ 800.40 through postmining land use. These commenters regeneration and plant succession at 800.43. Final paragraph (g)(3)(i) is noted that many non-native species least equal in extent of cover to the consistent with section 515(b)(19) of might prove better candidates for natural vegetation of the area....’’310 SMCRA,308 which requires achieving productivity, self- We updated proposed paragraph (g)(4) establishment of ‘‘a diverse, effective, regeneration, and natural succession. in the final rule to more clearly reflect and permanent vegetative cover of the Similarly, some commenters expressed our intent to allow the regulatory same seasonal variety native to the area concern that use of native species is not authority to approve the use of of land to be affected and capable of always suitable or best for a particular introduced species when controlling self-regeneration and plant succession at postmining land use, and that restoring erosion, but only if such use does not least equal in extent of cover to the the premining vegetation may conflict impede establishment of the permanent natural vegetation of the area; except, with fish and wildlife postmining land vegetation needed to meet revegetation that introduced species may be used in uses that involve elk and other game success standards. We made this change the revegetation process where desirable species. is in response to commenters who asked and necessary to achieve the approved Nothing in our rules prohibits for clarity about natural succession and postmining land use plan.’’ Moreover, revegetation of sites with a fish and the establishment of permanent native the default requirement in the final rule wildlife postmining land use with vegetation. for use of native species is consistent species appropriate for the wildlife for We also made a change to paragraph with Section 2(a)(2)(i) of Executive which the site will be managed. (g)(6) of the final rule. The proposed Order 13751 stating, ‘‘[i]t is the policy Furthermore, final § 780.12(g)(3)(i), rule required that a professional forester of the United States to prevent the which incorporates the provisions of or ecologist develop and certify any introduction, establishment, and spread proposed paragraph (g)(6), allows the revegetation plan that includes trees or of invasive species, as well as to applicant to propose, and the regulatory shrubs. Many commenters expressed eradicate and control populations of authority to approve, use of introduced concern over this requirement and invasive species that are established.’’ species to achieve a particular noted that many other experienced Moreover, that Executive Order postmining land use, provided certain professionals have the expertise to provides that Federal agencies to ‘‘the conditions are met. Final paragraphs design and certify these plans. Some extent practicable and permitted by law (g)(3)(i) and (g)(4) allow the use of commenters observed that states may . . . prevent the introduction, introduced species if (1) the introduced not professionally recognize or certify establishment, and spread of invasive species are needed to achieve a quick- ecologists, and in those states that do species.’’ 309 growing, temporary, stabilizing cover on certify ecologists, it may be rare to find Many commenters supported the disturbed and regraded areas, and the an ecologist with sufficient experience requirement to reclaim lands using species selected to achieve this purpose to develop and certify revegetation predominantly native species. Other will not impede the establishment of plans for coal mining operations. We permanent vegetation; (2) the agree and have modified the final rule 308 30 U.S.C. 1265(b)(19). postmining land use requires the use of to address these concerns. Under the 309 Sec. 1 Policy and Sec. 2 Federal Agency introduced, non-invasive species, and Duties. 81 FR 88609 (Dec. 8, 2016). (3) the postmining land use will be 310 30 U.S.C. 1265(b)(19).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93148 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

final rule, any qualified and effective, and permanent vegetative approved postmining land use is experienced biologist, soil scientist, cover of the same seasonal variety implemented before final bond release. forester, or agronomist can now prepare native to the area of land to be affected Final Paragraph (h): Stream Protection or approve all revegetation plans. This and capable of self-regeneration and and Reconstruction Plan change allows a wide variety of plant succession at least equal in extent qualified and experienced professionals of cover to the natural vegetation of the A commenter expressed concern that to approve these plans. We trust that a area.’’ Landowners may replant the site the steps in this plan would be qualified and experienced professional with other species if they wish after inflexible and result in inappropriate in one subject area may consult with final bond release, which terminates enforcement actions that do not take other appropriate individuals as jurisdiction under SMCRA. into account the time required for necessary to prepare or approve the Other commenters claimed that the restoration and recovery of natural revegetation plan. proposed rule’s emphasis on native stream functions. The commenter stated Another commenter suggested that we species is flawed due to concerns about that § 780.12(h) implies that it is replace all references to ‘‘introduced’’ the availability and survivability of possible to predict when biological species with ‘‘invasive’’ species. We did native species, as well as their stream functions might be restored, a not make this change. These terms are additional cost. We agree that these characterization with which the not synonyms (i.e., there are introduced native species requirements could commenter disagrees. We do not agree species that are not invasive), and there increase short-term reclamation costs, that the regulation is inflexible or that it would result in inappropriate are instances where ‘‘introduced’’ is but they are not cost-prohibitive. The enforcement actions. We recognize that more appropriate. The final rule at use of native species is the best once a permittee completes construction § 701.5 defines invasive species as ‘‘an technology currently available, and in of the stream channel and plants of the alien species (a species that is not native the long-term, this requirement could streamside vegetative corridor, there are to the region or area), the introduction also lower maintenance costs. We few, if any, measures that may be taken of which has caused or is likely to cause disagree that the availability and to speed ecological restoration. The rule economic or environmental harm or survivability of native species should does not anticipate any enforcement harm to human health’’. The final rule prohibit our requirement to use them to action for failure to achieve restoration prohibits use of these species for reclaim SMCRA permitted disturbances. revegetation under SMCRA. However, of ecological function within any Native species are currently in wide use specific time. However, it requires that introduced species that are non-invasive as best practices in SMCRA and non- may be used in reclamation, as provided final bond release be delayed until that SMCRA reclamation across the United in final § 780.12(g)(3). requirement is accomplished. States, and substantial progress Other commenters expressed A commenter stated that the use of opposition to the proposed rule because continues to be made in the availability the term ‘‘restoration’’ relating to they considered the previous and diversity of native species. Best streams should be changed to regulations sufficient and not in need of practices include contracting with ‘‘reclamation’’ because the term any updates. We disagree. While it is growers to produce seed from the ‘‘restoration’’ is not included in the true that under SMCRA, voluntary best premining vegetation or from adjacent definitions section of SMCRA. We have practices have advanced to minimize (and appropriate) areas for use in not made this change. The absence of the effect of introduced, invasive reclamation. This enhances the the term in SMCRA does not prohibit its species on the natural processes and establishment and the survivability of use, where appropriate, in our capability of reclaimed land, (as the native species that are used. regulations. Moreover, section 508(a)(9) examples: the elimination in most Commenters also expressed concern of SMCRA requires the permittee to instances of using crested wheatgrass, that the proposed regulations would include in the reclamation plan a Agropyron cristatum,311 Kentucky 31 effectively eliminate postmining land statement of ‘‘the steps to be taken to tall fescue, Lolium arundinaceum,312 use options other than forest. We comply with the . . . water quality laws and smooth brome, Bromus inermis; 313 disagree. As explained in the preamble and regulations.’’ 316 As discussed using the Forestry Reclamation discussion at section 701.5 within the further in §§ 780.27, 780.28, 816.56, and Approach; 314 and extreme surface ‘‘land use’’ definition, there are several 816.57, the establishment of standards roughening 315), the previous regulations acceptable postmining land uses, and for restoration of ecological function were insufficient because they did not forest is only one potential postmining must be in coordination with the require use of these best practices. land use. In addition, the revegetation appropriate Clean Water Act authority Commenters also opined that these plan set forth in this paragraph only to ensure compliance with all Clean new regulations may not accommodate requires the proposed vegetative cover Water Act requirements, where landowner desires. We agree that this to be consistent with both the approved applicable. Further, the term statement may sometimes be true, but postmining land use and the ‘‘restoration’’ is appropriate in the section 515(b)(19) of SMCRA requires establishment of the plant communities context of ecological function the establishment of ‘‘a diverse, described in the permit application, as restoration requirements for streams, required by § 779.19. Only those whereas the term ‘‘reclamation’’ would 311 Gerald E. Schuman, Mined land reclamation portions of the proposed permit area be far less clear. in the Northern Great Plains: Have we been that are forested at the time of permit A commenter opined that because the successful ?, Proceedings 19th Annual Meeting, American Society of Mining and Reclamation. 2002. application or that would revert to forest Clean Water Act requires stream 312 U.S. Dep’t. of Agric., NRCS, (2002). Tall under conditions of natural succession restoration plans, there is no need for a Fescue, Lolium arundinaceum Plant Fact Sheet. must be revegetated using native tree SMCRA review and approval of 313 U.S. Dep’t. of Agric., NRCS, (2006). Smooth and understory species. This proposals to mine through a perennial brome, Bromus inermis Plant Fact Sheet. requirement would not apply when a or intermittent stream. Therefore, 314 Jim Burger, et al. The forestry reclamation postmining land use other than forestry according to the commenter, we should approach. Forest Reclamation Advisory 2 (2005). 315 M.A. Wright, The practical guide to has been approved, provided simply reference the Clean Water Act reclamation in Utah. Univ. of Utah, Utah Oil, Gas reforestation is inconsistent with the & Mining Division, (2000). land use and provided that the 316 30 U.S.C. 1258(a)(9).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93149

permit. The commenter further suggests permittee must comply with all Final Paragraph (n): Handling and Acid- that this requirement be modified or applicable applications, regulations, and Forming and Toxic-Forming Materials removed as it is duplicative of permit approval documents of other We have added final paragraph (n) to requirements of other agencies, applicable laws or face enforcement the final rule because we determined supersedes the Clean Water Act, and is mechanisms by the pertinent agencies to that it was more appropriate to place the in violation of section 702 of SMCRA.317 compel compliance. We disagree with permitting requirements about how a We disagree with the commenter’s the commenter because section 508(a)(9) permittee must develop an acid-forming assertion that this requirement of SMCRA 320 specifically requires that supersedes the Clean Water Act. In Part and toxic-forming handling plan in the the applicant demonstrate in the IV.I., above, we further discuss the performance standards of proposed § reclamation plan ‘‘the steps to be taken relationship between SMCRA and Clean 816.38. Specifically, we have moved Water Act. While Clean Water Act to comply with applicable air and water proposed § 816.38(a) through (d), which stream restoration plans may serve as quality laws and regulations and any prescribe handling of acid-forming and the basis for the restoration plan applicable health and safety toxic-forming materials, to final required by our final rule, (which is standards.’’ 321 Because this is a paragraph (n) because these handling further justification for coordination statutory requirement, it cannot be requirements must be included in the with the Clean Water Act authority in removed as the commenter suggests: It reclamation plan. 324 the development of such plans), the is important that the applicant describe As discussed in the preamble, we regulations referenced in our final rule how compliance will be attained, proposed to modify section 816.38 to address the need for a plan that restores especially considering complex mining implement more completely section 325 stream form, hydrologic function and scenarios and requirements. 515(b)(14) of SMCRA, which requires ecological function. The completion of that all acid-forming materials and toxic these various phases of a stream Final Paragraph (m): Consistency With materials be ‘‘treated or buried and restoration plan are all tied to bond Land Use Plans and Surface Owner compacted or otherwise disposed of in release; therefore it is critical that any Plans a manner designed to prevent plan utilized be incorporated into the contamination of ground or surface One commenter urged us to not to SMCRA permit. In addition, the Clean waters.’’ Our revisions to proposed adopt the requirements under paragraph Water Act authority may not always § 816.38, now paragraph (n) of § 780.12, require a stream restoration plan, but (m) because a mine operator already are also consistent with section may instead require mitigation in must comply with any state and local 515(b)(10)(A) of SMCRA,326 which accordance with Clean Water Act land use plans and programs and these requires the permittee to ‘‘minimize the provisions. It is not uncommon for requirements are beyond the authority disturbances to the prevailing mitigation to consist of in-lieu fee of the SMCRA agency. The commenter hydrologic balance . . . by avoiding payments to a ‘‘mitigation bank’’ which adds that neither the regulatory acid or toxic mine drainage. . . .’’ In negates the obligation to actually restore authority nor the mine operator can proposed § 816.38(a), now the lost stream functions required by the know what future plans a landowner § 780.12(n)(1), we discuss how handling final rule. Our regulations require a may implement that may alter a of acid-forming or toxic-forming demonstration that intermittent and formerly approved permit following materials identified during collection of perennial streams can be restored termination of jurisdiction. As we baseline information under final hydrologically and ecologically, explained in the preamble to the § 780.19(e)(3) will be prescribed in the otherwise the regulatory authority may proposed rule,322 the requirements of reclamation plan. In particular, not approve of a request to mine this paragraph are now consistent with paragraph (n)(1) pertains to handling through such steams. Therefore we the requirements of section 508(a)(8) of acid-forming and toxic-forming cannot rely on provisions within the SMCRA 323 which requires that each materials when they are identified in the overburden above the lowest coal Clean Water Act to satisfy this reclamation plan submitted as part of seam mined. One commenter suggested requirement. permit application include a statement that we should allow the practice of of the ‘‘consideration which has been Final Paragraph (l): Compliance With blending acid-forming materials with the Clean Air Act and the Clean Water given to making the surface mining and spoil that exhibits sufficient alkalinity Act reclamation operations consistent with to prevent acid drainage. Because of the This section requires that the surface owner plans, and applicable neutralization effects of this practice, we reclamation plan describe the steps to State and local land use plans and agree with the commenter and have comply with the requirements of the programs.’’ Mine operators must added text to paragraph (n)(1)(ii)(A) that Clean Air Act,318 the Clean Water consider making operations consistent expressly allows this practice. Several Act,319 and other applicable air and with surface owner plans, in addition to commenters asserted that we should water quality laws and regulations and considering post-mining land use. limit the scope of proposed § 816.38(c), health and safety standards. A Contrary to the commenters’ opinion now final § 780.12(n)(1)(ii), to areas commenter asserted that there is no that this requirement is beyond our where surface water and groundwater rational basis for this requirement and authority, final paragraph (m) problems could occur. We made no recommends that we remove it because specifically mirrors the requirements of revisions in response to this comment. it is unnecessary for an applicant to section 508(a)(8) of SMCRA; therefore, Adverse impacts to surface water or describe the steps taken or that are to be we are adopting paragraph (m) as groundwater may occur anywhere acid- taken in association with laws other proposed. forming or toxic-forming materials are than SMCRA. In support of this present. Thus, final paragraph (n)(1)(ii) assertion, the commenter states that the properly applies whenever acid-forming 320 30 U.S.C. 1258(a)(9). 317 30 U.S.C. 1292. 321 Id. 324 80 FR 44436, 44547–44548 (Jul. 27, 2015). 318 42 U.S.C. 7401 et seq. 322 80 FR 44436, 44492 (Jul. 27, 2015). 325 30 U.S.C. 1265(b)(14). 319 33 U.S.C. 1251 et seq. 323 30 U.S.C. 1258(a)(8). 326 30 U.S.C. 1265(b)(10).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93150 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

or toxic-forming materials are present; material, acid-forming or toxic-forming safety issues. We disagree with the therefore, no revisions are necessary or elements or compounds may be leached commenters. This rule requires the appropriate. The same commenters also from the materials by infiltrating development of a plan to prevent any asserted that proposed § 816.38(c), now precipitation (above the groundwater adverse hydrologic impacts that might § 780.12(n)(1)(ii), was overly restrictive table) or by flowing groundwater (below result from exposure of the stratum and should allow techniques other than the groundwater table). As one beneath the coal seam that was exposed those set forth in the proposed rule. We commenter noted, these requirements during the mining process. The disagree with the characterization that are consistent with the holding in Rith requirement to develop a plan will final paragraph (n)(1)(ii) is overly Energy, Inc. v. OSM, 111 IBLA 239 apply only when the baseline geologic restrictive; this provision allows the (IBLA 1989) that requires that acid- information collected under section operator to either demonstrate that acid forming and toxic-forming materials be § 780.19(e) indicates that the stratum or toxic drainage will not be generated handled in a manner that will avoid the immediately below the lowest coal seam or choose from proven methods of creation of acid or toxic mine drainage to be mined contains acid-forming or handling acid-forming and toxic- so as to minimize disturbance to the toxic-forming materials. Final forming materials to prevent material prevailing hydrologic balance. § 773.15(n) prohibits the regulatory damage to the hydrologic balance In § 816.38(d), now § 780.12(n)(2), we authority from approving the permit outside the permit area. The have provided for placement of acid- application unless the applicant commenters suggested, for example, that forming or toxic-forming materials in an demonstrates, and the regulatory it may be possible to effectively prevent excess spoil fill or coal mine waste authority concurs, that the operation has refuse pile using the methods outlined pollution resulting from acid-forming or been designed to prevent the formation in paragraph (1) to prevent toxic-forming materials by placing the of toxic mine drainage or other contamination of ground or surface materials in a position that is ‘‘high and discharges that would require long-term waters. Although we did not receive dry.’’ We agree that, in common with treatment after mining has been comments on proposed paragraph (d), other placement methods, placing acid- completed. Therefore, the plan must be we made nonsubstantive changes to the forming or toxic-forming materials adequate to satisfy this requirement. paragraph to conform to plain language One option the permittee may employ is permanently above the groundwater principles and to accommodate moving placing a compacted low permeability table can be effective. Final paragraph the text to § 780.12. layer over the in-place stratum (n)(1)(ii), describes several methods of In § 816.38(a), now § 780.12(n)(3), we immediately beneath the coal seam addressing acid-forming or toxic- address the measures that you must using the same safety measures that forming materials, including treatment specify in your reclamation plan to allowed removal of the coal. with neutralizing materials and prevent adverse hydrologic effects placement of the materials so that they resulting from acid-forming or toxic- Section 780.13: What additional maps will remain permanently above, or forming materials being exposed during and plans must I include in the below, the groundwater table. However, mining, if they are present in the reclamation plan? we must point out that paragraph stratum immediately below the lowest Section 780.13 explains the additional (n)(1)(ii)(B) only allows placement of coal seam being mined. Several maps, plans, and cross sections that the acid-forming or toxic-forming materials commenters, including regulatory applicant must include in the below the water table, without authorities and operators, recommended reclamation plan. We have adopted the surrounding them with compacted low deleting this paragraph, arguing that it section as proposed with the exception permeability material, if you can erroneously presupposes that all coal of one additional requirement, a few demonstrate and the regulatory seams and the pit floor contain acid- non-substantive changes, and authority finds in writing that complete forming and toxic-forming materials. In renumbering of paragraphs. saturation will prevent the formation of addition, the commenters opined that A few commenters expressed concern acid or toxic mine drainage. If you, the requiring an impervious layer below the about the proposed requirement in permittee cannot make this coal seam could potentially cause more § 780.13(a)(9) to map each feature and demonstration, you must either treat the problems than it solves by reducing facility that is constructed to protect or acid-forming or toxic-forming material recharge to aquifers below the coal seam enhance fish, wildlife, and related in accordance with paragraph and by sealing unmined coal faces, thus environmental values. Commenters (n)(1)(ii)(A) or completely surround the impeding potential groundwater stated that this is time consuming and acid-forming or toxic-forming materials recharge to the backfill. The that these features are likely to change with compacted low permeability commenters were particularly over the course of mining operations; material in accordance with paragraph concerned with the proposed therefore, the commenters advocated the (n)(1)(ii)(C). If you surround the material requirement to cover exposed coal elimination of these requirements. We with compacted low permeability seams and the stratum immediately disagree. This requirement provides material, you may place the material beneath the lowest coal seam mined valuable information that will allow the either permanently below the with a layer of compacted material with regulatory authority to assess, monitor, groundwater table in accordance with a hydraulic conductivity at least two and review the evolving operation. paragraph (n)(1)(ii)(C)(1), or orders of magnitude lower than the While this requirement may result in permanently above the groundwater hydraulic conductivity of the overlying, more time and effort at the initial table in accordance with paragraph less-compacted spoil. The commenters permitting stage, it should save time and (n)(1)(ii)(C)(2). Surrounding the material asserted that this requirement is effort in subsequent permit reviews. with compacted low permeability unnecessary and will result in Furthermore, it is important to material is necessary regardless of additional cost with little benefit to accurately document efforts to protect or placement location because spoil is water quality by imposing increased enhance fish, wildlife, and related known to be highly variable in terms of inspection frequency. Commenters also environmental values. hydraulic conductivity. Therefore, opined that this would require operators As discussed within the preamble to unless these materials are surrounded to work adjacent to the highwall for § 816.57(d), we have added to our by compacted low permeability longer periods, presenting numerous performance standards a requirement to

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93151

establish 100-foot wide vegetative us. Furthermore, submission of digital Final Paragraph (b): Protection of corridors along certain perennial and data is increasingly common and does Threatened and Endangered Species intermittent streams. In order to ensure not require highly specialized and Species Proposed for Listing as consistency between the permit technology or equipment. Consequently, Threatened or Endangered requirements and the performance we have made no substantive change to Proposed paragraph (b) required the standards, we have also added a new the final rule. permittee to describe how the permit paragraph (a)(14) to § 780.13, which would comply with the Endangered requires the applicant to provide data Section 780.14: What requirements apply to the use of existing structures? Species Act, 16 U.S.C. 1531 et seq., about each streamside vegetative including any species-specific corridor that it proposes to establish. Most changes to § 780.14 are editorial protection and enhancement plans Documenting the proposed location of in nature. They primarily implement developed in accordance with that law. vegetative corridors will aid the plain language principles and improve In response to comments from federal applicant in planning and allows the syntax and structure. In addition, we agencies, we have added a new regulatory authority to assess the revised paragraph (b)(2) to eliminate the paragraph (b)(1) stating that final proposed location of the vegetative paragraphs (b)(2) and (b)(3) apply when corridors to ensure they can be requirement for specifying the interim steps in the schedule for reconstruction the proposed operation may affect established consistent with the species listed or proposed for listing as requirements of § 816.57(d). of each existing structure because such a requirement would have no utility to threatened or endangered under the The U.S. Forest Service supported Endangered Species Act of 1973, 16 adoption of proposed paragraph (a)(15) the regulatory authority. What matters from a regulatory perspective is the U.S.C. 1531 et seq., or designated or and we received no comments opposing proposed critical habitat under that law. it. For clarity, however, we have divided starting and ending dates of the reconstruction, which revised paragraph Another commenter requested that we the requirements of this paragraph into add ‘‘proposed species’’ to this section. (b)(2) continues to require. We also two separate paragraphs, numbered We made the recommended revisions revised paragraph (b)(2) to apply the (a)(16) and (a)(17) because of the because, as discussed in greater detail in schedule requirement to both addition of new paragraph (a)(14) to the the preamble text for section 773.15(j) modification and reconstruction of final rule. Final paragraph (a)(16) above, both SMCRA and the Endangered existing structures, not just to requires the applicant to provide the Species Act provide authority to protect ‘‘location and geographic coordinates of reconstruction of those structures. The species that have been proposed for each monitoring point for groundwater change makes paragraph (b)(2) listing.327 Section 7(a)(4) of the and surface water.’’ Final paragraph consistent with the language of Endangered Species Act 328 requires that (a)(17) requires the applicant to provide paragraph (b)(1). It also avoids the need Federal agencies confer with the U.S. ‘‘the location and geographic for the applicant and regulatory Fish and Wildlife Service on any agency coordinates of each point at which you authority to distinguish between action that is likely to jeopardize the propose to monitor the biological modification and reconstruction. That continued existence of any species condition of perennial and intermittent distinction serves no regulatory purpose proposed to be listed as threatened or streams.’’ because any existing structure must be endangered. SMCRA sections 515(b)(24) Proposed paragraph (c) clarified that brought into compliance with and 516(b)(11) 329 require that, at a the regulatory authority may require an applicable regulatory requirements. It minimum, mining operations must ‘‘to applicant to submit the materials makes no difference whether the effort the extent possible using the best required under this section in digital to achieve compliance is called technology currently available, format. The U.S. Forest Service and modification or reconstruction. minimize disturbances and adverse others expressed general support for Section 780.15: What plans for the use impacts of the operation on fish, submitting data in digital format. Other wildlife, and related environmental commenters recommended that this of explosives must I include in my application? values, and achieve enhancement of paragraph be revised to encourage, but such resources where practicable.’’ The not require, the digital format option for One commenter recommended that requirement to minimize impacts to all materials submitted for review and we revise the blasting regulations in ‘‘fish, wildlife, and related analysis by the public and the relation to the impact of the use of environmental values’’ is not in any way regulatory authority. These commenters explosives on birds. This limited to Endangered Species Act- expressed concern that requiring recommendation is outside the scope of listed species. materials to be submitted in a digital our current rulemaking because the Several commenters expressed format would be financially support for proposed § 780.16(b) to the burdensome and that some operators or proposed rule included no substantive revisions to the blasting regulations. extent that it requires compliance with state regulatory authorities might not the Endangered Species Act 330 and possess the technical ability to provide Section 780.16: What must I include in incorporation of any species-specific the information in a digital format. We the fish and wildlife protection and protection and enhancement measures do not agree. Proposed paragraph (c) did enhancement plan? into the permit, including those not require the submission of materials provided for under applicable biological in a digital format but merely clarified Section 780.16 is intended to ensure opinions for the mining operations at that the regulatory authority can require that a proposed surface coal mining and issue. However, commenters also noted digital submissions if it so chooses. reclamation operation is designed in a that ‘‘species-specific protection and Requiring permit materials to be manner that meets the fish and wildlife enhancement measures’’ are not submitted in digital format could protection and enhancement developed in accordance with the actually save regulatory authorities a requirements of the regulatory program. significant amount of time that might Except as discussed below, we have 327 80 FR 44436, 44565 (Jul. 27, 2015). otherwise be spent digitizing materials adopted § 780.16 as proposed, with 328 16 U.S.C. 1536(a)(4). submitted by applicants so that they minor editorial revisions for clarity and 329 30 U.S.C. 1265(b)(24), 1266(b)(11). will be accessible to the public and to consistency. 330 16 U.S.C. 1531 et seq.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93152 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Endangered Species Act, as our permit area. Therefore, we have description will vary depending on how proposed regulation indicated. They determined that it is more accurate to the applicant intends to demonstrate noted that a more appropriate simply require that an application must compliance with the Endangered Endangered Species Act tool might be a demonstrate compliance with the Species Act, site-specific habitat conservation plan under Section Endangered Species Act because this considerations, and the number and 10 of the Endangered Species Act and requirement would encompass any type of listed or proposed species suggested we replace ‘‘protection and necessary species-specific protection potentially impacted by the operation. enhancement plan’’ with ‘‘habitat and enhancement measures developed Other commenters expressed concern conservation plan’’ as an example of a in coordination with the appropriate over the requirement, now located in relevant plan developed in accordance U.S. Fish and Wildlife Service or final paragraph (b)(2), that compliance with the Endangered Species Act. We National Marine Fisheries Service with the Endangered Species Act must agree and have changed the text of office. However, in evaluating this be demonstrated before the regulatory paragraph (b)(2) accordingly. However, suggestion we have determined that authority may approve a permit. Many species-specific protection and proposed paragraph (e)(4), containing commenters opined that it takes a long enhancement measures, where the requirement that an application time to obtain approval of necessary developed, should also be followed must demonstrate compliance with the protection and enhancement measures wherever possible. Endangered Species Act should be for proposed or listed species from the Several commenters also requested moved to paragraph (b). Therefore, we U.S. Fish and Wildlife Service or that we require an applicant to combined proposed paragraph (e)(3) National Marine Fisheries Service and demonstrate that it has complied with with final paragraph (b)(1) and moved questioned whether it was possible to all applicable species-specific proposed paragraph (e)(4) to a new obtain a permit on the condition that no protection and enhancement measures. paragraph at (b)(2) in the final rule. impact to listed species would occur until the coordination process was However, compliance with applicable Other commenters requested that we complete. We have evaluated this species-specific protection and require applicants to demonstrate that request and determined that, until the enhancement measures, while the proposed permit would not coordination process is complete, it important, does not necessarily ensure adversely impact any species listed or would be very difficult to determine compliance with the Endangered proposed for listing under the Species Act. For example, we, along whether an operation will not impact Endangered Species Act. Additionally, species. However, where an operation with the U.S. Fish and Wildlife Service, one commenter suggested that there and a representative group of state can be reduced in size or divided into should be a strict prohibition on any different phases to avoid proposed or regulatory authorities have only activity within 100 feet of streams developed species-specific protection listed species, there is no prohibition on because of the potential to adversely pursuing a permit for that smaller area and enhancement measures for a limited impact aquatic species. We do not agree number of species. While this type of while simultaneously pursuing approval that additional prescriptive protective of a second, nearby permit where guidance can reduce uncertainty and measures should be required in this streamline the permitting process, it is impacts to species may occur. This section or that an applicant must could allow an operator to begin mining not possible to develop range-wide, demonstrate that a proposed mining species-specific protection and on the permit that would have no operation will not adversely impact any impacts to species, assuming all other enhancement measures for every listed species. In the final rule, we have requirements were met, such as the Endangered Species Act-listed species revised our previous regulations to requirement that phases of operations affected by coal mining operations. ensure that threatened and endangered that are significantly related must be Further, the fact that guidance has not species and species proposed for listing evaluated in a single impact statement been produced for a particular species as threatened or endangered are pursuant to NEPA,332 while continuing does not excuse an applicant from correctly identified and described, as the coordination process on the permit developing protection and enhancement explained in § 779.20; that the permit is where impacts to species are possible. measures specific to that species for designed to protect and enhance those inclusion in a permit application. species, as explained in § 780.16; and Final Paragraph (c): Protection of Other Where species-specific protective that the regulatory authority makes a Species measures have not been developed, an finding that the permit complies with One commenter recommended we applicant will have to coordinate with the Endangered Species Act as remove from the final rule all language the appropriate office of the U.S. Fish explained in § 773.15(j). The analysis of that the commenter characterized as and Wildlife Service or National Marine what protection and enhancement ‘‘subjective,’’ such as ‘‘to the maximum Fisheries Service to ensure that measures are required under paragraph extent practicable’’ or to ‘‘minimize adequate measures are incorporated into (b) should be species and site-specific disturbances and effects’’ and instead a permit. Where species-specific and should be done in close provide specific examples of techniques protective measures have been coordination with the appropriate state and practices that would be expected to developed, such as the range-wide or federal agencies. These types of be implemented or followed. We have Indiana Bat protection and species and site-specific considerations not revised the final rule in response to enhancement plan guidelines finalized do not lend themselves to prescriptive this comment. Similar language is found in 2009,331 site-specific modifications to rules. The exact process of developing throughout SMCRA, and provides an these guidelines are often necessary protection and enhancement plans will appropriate level of flexibility for each depending on the size, location, or other depend on how the applicant intends to regulatory authority to determine the characteristics of the operation and/or demonstrate achievement of the finding applicability of techniques and practices required under final § 773.15(j). Final on a case-by-case basis. It would be 331 OSMRE, Range-wide Indiana Bat Protection § 780.16(b) fits into this scheme by inappropriate to prescribe techniques and Enhancement Plan Guidelines for Surface Coal- Mining Operations, Jul. 2009, available at: http:// simply requiring that an applicant and practices within the regulations www.osmre.gov/lrg/docs/INBatPEPGuidelines.pdf describe how it will comply with the (last accessed Nov. 1, 2016). Endangered Species Act. This 332 40 CFR 1502.4(a).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93153

implementing SMCRA, as these may be supportive, of the requirement in years must be reviewed no less site specific, and the best technology proposed paragraph (c)(3) that frequently than the permit midterm or currently available and best practices operations must maintain, to the extent every five years, whichever is more are not static and evolve. possible, an intact forested stream buffer frequent. The regulatory authority must In response to paragraph (c)(1) of the of at least 100 feet between surface use that evaluation to determine proposed rule, many commenters disturbances and perennial and whether it is necessary to order the opposed the requirement to time mining intermittent streams. We have deleted permittee to modify operations to avoid operations as to avoid or minimize proposed paragraph (c)(3) because we or minimize adverse impacts on those disruption of critical life cycle events have revised final § 816.57(b) to include values. The regulatory authority has the for all fish and wildlife, such as a prohibition on mining in or within discretion to determine the rigor of migration, nesting, breeding, calving, 100 feet of a perennial or intermittent these periodic reviews, which is and spawning. These commenters stream, subject to the exemptions appropriate because they have the local criticized the paragraph as either contained in final § 780.28, making expertise to determine whether the unclear, conflicting with other proposed paragraph (c)(3) of this section operation is having the anticipated requirements, or overbroad and noted redundant. A discussion of all impact on fish, wildlife and related that, if implemented, it could halt all comments on the 100 foot stream buffer, environmental values and whether mining activity because these critical including comments on proposed revisions are necessary. For example, if lifecycle events happen throughout the paragraph (c)(3), is available in the unexpected drought conditions cause year. While it may, on a species by preamble discussion of §§ 780.28 and protection and enhancement measures species basis, be necessary to time 816.57. to be less effective than initially certain activities to avoid or minimize One commenter requested that we anticipated, the regulatory authority impacts on certain species, we generally define or otherwise clarify the term review of the fish and wildlife agree with commenters that requiring it ‘‘environmental values’’ as discussed in protection and enhancement plan for all species would not be appropriate. proposed paragraphs (c)(4), (5), and should evaluate whether, and to what Therefore, we have deleted this (d)(1) because the term is not currently extent, revisions should be made to the paragraph and renumbered the defined within the proposed rule or permit to effectively implement section remaining paragraphs accordingly. previous regulations. We decline to 515(b)(24) of SMCRA.333 The review Proposed paragraph (c)(2), now final define this term, because imposing a under final § 774.10(a)(2) is separate paragraph (c)(1), requires a description national definition for ‘‘environmental from any monitoring and evaluation of how the permittee will retain forest values’’ would be too restrictive and requirements that may be required to cover and other native vegetation as would not account for regional ensure compliance with the Endangered long as possible and time the removal of differences. The regulatory authority has Species Act. that vegetation to minimize adverse the proper expertise to determine its Some commenters stated that impacts on aquatic and terrestrial meaning on a case-by-case basis. proposed paragraph (c)(6), which we species. Some commenters alleged that Proposed paragraph (c)(5) required adopted as final paragraph (c)(3) and this requirement is too difficult to the operator to periodically evaluate the which requires the selection of non- comply with because timing the impacts of the operation on fish, invasive native species for revegetation, removal of forest cover and native wildlife, and related environmental could conflict with the need to use non- vegetation for one species might conflict values in the permit and adjacent areas native species for site stabilization, such with the timing for another species. As and to use of that information to modify as on steep slopes, and in situations an example, several commenters the operations to avoid or minimize where erosion is a problem. As support, pointed out conflicts between cutting adverse effects. Several commenters some commenters noted that the Natural restrictions for endangered bats and the expressed concern that we did not Resources Conservation Service needs of other species. We do not agree provide guidance on the appropriate guidelines propose the use of non- with this concern. Paragraph (c) frequency for these ‘‘periodic natives to control erosion. We do not addresses the protection of non-listed evaluations’’, on how rigorous the view these requirements as conflicting. species and related environmental evaluation should be, and on who The final rule does not prohibit the use values and requires applicants to would be responsible for completing the of non-invasive, non-native vegetation minimize disturbances and adverse evaluations. Some commenters when appropriate to control erosion and impacts on species ‘‘to the extent recommended the removal of this when approved in the revegetation plan. possible using the best technology paragraph because of concerns that However, § 780.16 focuses on the currently available.’’ If it is not possible operators might be required to change protection and enhancement of fish and to time the removal of vegetation to mining operations to offset impacts to wildlife resources, which typically minimize adverse impacts to a non- wildlife beyond the control of the benefit from the use of non-invasive, Endangered Species Act species because operators. We agree that the proposed native species, whenever possible. In of other species considerations, such as rule language was ambiguous about how response to comments requesting the the Endangered Species Act-listed often the periodic review should be. In discretion to use non-native plant Indiana Bat tree cutting guidelines, a response, we are deleting this paragraph species in limited circumstances, we description of why the vegetation must in the final rule and renumbering the have modified this paragraph to allow be cut at a specific time is sufficient to remaining paragraphs. However, we for the limited use of non-native satisfy this requirement. We have not have added a new requirement at final species. Specifically, we have included made any changes as a result of these § 774.10(a)(2) that requires the a reference to final § 780.12(g)(4), which comments as this paragraph provides regulatory authority to review the allows for use of non-native species sufficient flexibility to time the removal impacts of the operation on fish, when they are necessary to achieve a of forest cover and vegetation to best wildlife, and related environmental quick-growing, temporary, stabilizing protect aquatic and terrestrial species, values in the permit and adjacent areas. cover on disturbed and regraded areas, including endangered species. This review must occur not later than as long as the species selected to We received numerous comments, the middle of each permit term except ranging from highly critical to very that permits with a term longer than five 333 30 U.S.C. 1265(b)(24).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93154 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

achieve this purpose will not impede postmining land use plan.’’ 335 seq., and the steps the permittee will the establishment of permanent Therefore, because of the statutory take or has taken to procure those vegetation. importance of the use of native species, authorizations, certifications, and Commenters questioned the benefits we have decided that it is not necessary permits. Furthermore, we point out that of using native vegetation in final or appropriate to expand the regulatory issuance of a permit does not authorize paragraph (c)(3), alleging that non- authority’s discretion any further than a permittee to conduct any surface native vegetation provides increased the exemption in final § 780.12(g)(4) and mining activity in or affecting waters forage and habitat for turkey, deer, and have not made any changes in response subject to the Clean Water Act until the elk. We do not agree. The best available to these comments. appropriate Clean Water Act science indicates that, on a broader Proposed paragraph (c)(7) is authorization, certification, or permit is ecological scale, planting native species renumbered in the final rule as obtained. Information submitted and contributes to the overall health of paragraph (c)(4). In the final rule we analyses conducted under subchapter G natural communities. Disturbances of require a permittee to describe the plan of this chapter may inform the agency intact ecosystems that open and for avoiding wetlands, perennial and responsible for authorizations, fragment habitat, such as land clearing intermittent streams, and habitat certifications, and permits under the activities, increase the potential of adjacent to perennial or intermittent Clean Water Act, but they are not a invasion by alien species. Native plants streams. If avoidance of perennial or substitute for the reviews, provide important alternatives to alien intermittent streams is not possible, we authorizations, certifications, and species for conservation and restoration outline the steps to minimize impacts permits required under the Clean Water projects in these disturbed areas. Native that must be taken in final paragraphs Act. species can satisfy many of the same (c)(4)(i)(A)–(C). In final paragraph (c)(4)(i), we have Final Paragraph (d): Enhancement land management needs that nonnative Measures species do, but often with lower costs added ‘‘wetlands’’ to the list of and maintenance requirements. Once important habitat features that must, if Proposed paragraph (d) required that established in an appropriate area, most possible, be avoided during mining. permit applicants describe how they native plant species are hardy and do This change is in response to comments would use the best technology currently not require watering, fertilizers, or from other federal agencies who available to enhance fish, wildlife, and pesticides.334 They generally require expressed concern that wetlands were related environmental values both within and outside the area to be less watering and fertilizing than non- not specifically mentioned in this disturbed by mining activities, where natives because they are adapted to paragraph. Adding the term ‘‘wetlands’’ practicable. Section 515(b)(24) of local soils and climate conditions. They to relevant sections of final paragraph SMCRA 339 requires that surface coal are less likely to need pesticides (c)(4) and its subparts will ensure that mining and reclamation operations ‘‘to because they are often more resistant to operations avoid mining through the extent possible using the best insects and disease. Finally, local wetlands as well as perennial and technology currently available, wildlife evolved along with local plants; intermittent streams, and habitat minimize disturbances and adverse therefore, wildlife readily uses native adjacent to perennial or intermittent impacts of the operation on fish, plant communities for food, cover and streams, if possible. wildlife, and related environmental rearing young. One commenter expressed concern values, and achieve enhancement of Commenters also recommended that that the requirement in proposed paragraph (c)(7)(ii), final paragraph such resources where practicable.’’ the determination of the types of Therefore, to be consistent with the vegetation to be used should be left to (c)(4)(i)(B), to ‘‘minimize the length of the stream mined through,’’ is statutory language, final § 780.16(d)(1)(i) the discretion of the regulatory authority adds the qualifying phrase ‘‘to the and should be done on a case-by-case duplicative of the Clean Water Act section 404 336 permitting program and extent possible’’ to the proposed rule. basis because regional and site-specific Proposed paragraph (d)(1) also conditions vary. They also stated that is impermissible under section 702 of SMCRA.337 We disagree. Final included a list of twelve potential landowner input should be considered enhancement measures. Many when determining vegetative cover. In paragraph (c)(4) is designed to ensure that operations use ‘‘the best technology commenters were generally supportive response to these concerns, we note that of these potential enhancement final § 780.12(g)(4) gives the regulatory currently available [to] minimize disturbances and adverse impacts’’ 338 measures and as discussed below, we authority sufficient flexibility to allow are adopting that list in revised form as the use of non-native species when on the fish and wildlife that depend on the wetlands, perennial and intermittent final paragraph (d)(2). Others were necessary to achieve a quick-growing, concerned that these potential temporary, stabilizing cover on streams, and habitat adjacent to perennial or intermittent streams. Thus, enhancement measures were disturbed and regraded areas, as long as requirements, or could be construed by the selected species will not impede the compliance with this provision of SMCRA is a separate, independent regulatory authorities as mandatory establishment of permanent vegetation. enhancement measures to be performed However, SMCRA clearly directs mining obligation on operators from requirements of the Clean Water Act. on each permitted operation. operations to establish ‘‘permanent Commenters explained that mandating vegetative cover of the same seasonal In response to a comment we received from a federal agency we have added conservation easements and/or deed variety native to the area of land to be restrictions may conflict with State affected,’’ allowing non-native species paragraph (c)(4)(ii) which requires the permittee to identify the authorizations, Trust Lands, state agency goals and to be used only ‘‘where desirable and objectives, and result in unlawful necessary to achieve the approved certifications, and permits required by the Clean Water Act, 33 U.S.C. 1251 et takings or overly burdensome requirements that private landowners or 334 Virginia Department of Conservation and 335 local government agencies would not be Recreation. Native Plants for Conservation, 30 U.S.C. 1265(b)(19). Restoration, and Landscaping, (Sept. 2011). http:// 336 33 U.S.C. 1344. willing to accept. These concerns are www.dcr.virginia.gov/natural-heritage//document/ 337 30 U.S.C. 1292. cp-nat-plants.pdf (last accessed Nov. 1, 2016). 338 30 U.S.C. 1265(b)(24). 339 Id.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93155

misplaced as these enhancement measures on or near the disturbed areas, § 780.16(c)(4), to allow non-native measures are only provided as a list of allowing enhancement measures away species to be used. We disagree. Because potential measures to be used, to the from the disturbed area provides these paragraphs describe a choice of extent possible. In addition, the list significant flexibility and may, at times, discretionary enhancement measures, provided is not exhaustive, as regulatory be the most beneficial and/or they are appropriately more limited in authorities have the discretion to practicable option. Further, there is no scope than the requirements of final approve other types of enhancement requirement within SMCRA that § 780.16(c)(4). While the use of non- measures on a case-by-case basis. Other permitted sites must only contain lands native species may, at times, be commenters interpreted proposed spatially connected to one another. necessary, it should not be considered paragraph (d)(1) as requiring Commenters expressed concern with an enhancement measure. implementation of all twelve potential a perceived ambiguity of the phrase Another commenter sought enhancement measures or, for each ‘‘natural succession’’ in proposed clarification about how native forest and enhancement measure not used, an paragraph (d)(1)(iv), which is now final other native vegetation will be explanation of why that particular paragraph (d)(2)(iv), as it relates to the reestablished ‘‘both within and outside enhancement measure was not establishment or description of a native of the permit area’’ as stated in proposed practicable. That was not our intent. plant community. Commenters alleged paragraph (d)(1)(iv), which is now final Therefore, we modified proposed that the term ‘‘natural succession’’ is too paragraph (d)(2)(iv). The commenter paragraph (d)(1) by separating it into broad in concept and needs a specific asserted that this paragraph needed to final paragraphs (d)(1)(i) and (d)(1)(ii). definition. The commenters requested be revised and limited to ‘‘areas within New language in final paragraph clarification of the term ‘‘natural the permit area’’ that have been or will (d)(1)(i) clarifies that the list of proposed succession’’ and an explanation of why be disturbed by mining activities. We do enhancement measures in final use of the term is necessary. We not agree. This section provides paragraph (d)(2) is not exhaustive and disagree that natural succession is an optional measures to maximize that regulatory authorities may approve ambiguous concept. Our final rule uses opportunities to enhance restoration of other enhancement measures. New the term ‘‘natural succession’’ in the native vegetation and natural wildlife language in final paragraph (d)(1)(ii) standard ecological context of that term, habitat. Enhancement opportunities clarifies that if an applicant does not which means the predictable maturation may arise within the permit boundary. include any enhancement measure, it of the native vegetative community over However, where disturbance from must explain, to the satisfaction of the time. The references to natural mining may remove a significant regulatory authority, why succession are not a prescriptive portion of native forest or other native implementation of enhancement mandate for one particular type of plant vegetation, it may be possible to look measures is not practicable. An community. Instead, we use the term some distance outside of the applicant does not have to address the ‘‘natural succession’’ as an outcome- disturbance area for opportunities to practicability of all twelve potential based requirement aimed at ensuring reestablish native vegetative cover enhancement measures. that the types of plant communities that during mining. The resulting benefits to Several commenters alleged that it are initially established allow for the species could be realized while mining would be difficult to know whether an predictable maturation of the site. When was ongoing, thus offsetting some of the enhancement measure is ‘‘practicable’’ a site would typically mature to forest, adverse impact on species caused by and expressed concern that a regulatory it would be appropriate to establish mining. authority could force an applicant to This particular commenter also native vegetation that will not impede enact all enhancement measures. asserted that mining companies cannot that process. However, this standard was present in operate outside approved permit areas; One commenter suggested we our previous regulations and thus, according to the commenter, any promote the establishment of pollinator- commenters did not identify any regulation that requires lands not friendly species as described within situations in which a regulatory disturbed by mining activities to be Presidential Memorandum ‘‘Creating a authority had abused its discretion with affected would be contrary to SMCRA’s Federal Strategy to Promote the Health respect to whether an enhancement requirement to minimize disturbances. of Honey Bees and Other measure was practicable. Therefore, we We do not agree. Some of these Pollinators.’’ 341 have not defined ‘‘practicable’’ in This suggestion furthers measures could be implemented off- response to these comments. the goals not only of the Presidential permit without adding land to the Commenters opined that it is Memorandum but also of SMCRA permit area if the enhancement activity 342 inappropriate to allow enhancement section 515(b)(24) because it clearly would involve de minimis disturbance, measures distinct from the area to be promotes fish, wildlife, and related as described in proposed § 780.16(d)(3) disturbed by mining activities, environmental values. Consequently, we and in final § 780.16(d)(4). If especially if enhancement measures have added the clause ‘‘establishing reestablishment of native vegetation would take place in a location native plant communities designed to would involve more than a de minimis physically unconnected to the mine site. restore or expand native pollinator disturbance, or if excluding lands from Allowing the regulatory authority the populations and habitats’’ to final a permit area would restrict the flexibility to approve enhancement paragraph (d)(2)(iv) in response to this regulatory authority’s ability to inspect measures in locations away from the comment. and confirm completion of a permit disturbance area is necessary to fully Some commenters also recommended term, then these lands could be made realize the mandate in section we revise § 780.16(d)(2)(iv) and (v) as part of the permit area in order to 515(b)(24) of SMCRA to achieve we have in the proposed rule at implement the planned enhancement. enhancement of fish, wildlife, and § 780.16(c)(6), which is now final Commenters stated that the related environmental values where enhancement measure at proposed practicable.340 While it is typically 341 Presidential Memorandum of June 20, 2014, paragraph (d)(1)(v), which is now final Creating a Federal Strategy to Promote the Health preferable to conduct enhancement of Honey Bees and Other Pollinators, 79 FR 35903 paragraph (d)(2)(v), involving the (June 24, 2014). establishment of vegetative corridors at 340 30 U.S.C. 1265(b)(24). 342 30 U.S.C. 1265(b)(24). least 100 feet wide along each bank of

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93156 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

streams that lacked such buffers before modified to specify that permanently separate SMCRA requirement for mining, could be interpreted by a fencing off perennial and intermittent mandatory enhancement measures. We regulatory authority as requiring an streams, as well as wetlands, from received comments in support of artificial water source, especially in livestock was also an appropriate allowing Clean Water Act mitigation to semi-arid states. Further, the enhancement measure. This change was satisfy the requirement for fish and commenters stated that the cost of made to address federal agency wildlife enhancement measures under providing these artificial water sources concerns about inclusion of wetlands this paragraph. Mitigation required was not analyzed in the DEIS and that (as discussed above) and to retain under the Clean Water Act may satisfy we did not evaluate legal considerations consistency with other parts of the final the fish and wildlife enhancement related to water rights in western rule about promoting the protection of requirement under the final rule to the regions. The commenters concern is wetlands. extent that mitigation under the Clean misplaced. Nothing in this paragraph Final paragraph (d)(3), which we Water Act requires actual on-site requires establishment of vegetation that proposed as paragraph (d)(2), makes the enhancement activities. Payments into a would need an artificial water source. use of enhancement measures general fund, as opposed to payments or Use of vegetation that requires an mandatory where a proposed surface activities directed to improvement or artificial water source would be mining activity would result in the preservation of a specific stream or site, inconsistent with the purpose of the fish temporary or permanent loss of mature would not be acceptable because the and wildlife enhancement measures in native forest or other native plant general fund may be used to finance this rule, which is to encourage communities that cannot be restored enhancement projects outside the restoration or establishment of natural fully before final bond release under coalfields and because it would not be conditions using native species. §§ 800.40 through 800.43 of this chapter possible to determine whether the Commenters voiced concern that or permanent loss of a segment of a payment into a general mitigation fund proposed § 780.16(d)(1)(v), which is perennial or intermittent stream. Final would be commensurate with the now final § 780.16(d)(2)(v), was too paragraph (d)(3)(ii), which we proposed magnitude of long-term adverse impacts inflexible in requiring that, if an as paragraph (d)(2)(ii), requires that the as required under final paragraph enhancement measure involved creating enhancement measures be (d)(3)(ii). a vegetative corridor for a stream that commensurate with the magnitude of We received comments from federal previously lacked such a buffer, the the long-term adverse impacts of the agencies that wetlands should be buffer zone had to be at least 100 feet proposed operation and, ideally, be included in proposed paragraph wide. We agree with this concern and permanent. (d)(2)(i), which is now final paragraph have modified this paragraph to provide In the preamble discussion of (d)(3)(i)(B). We agree with this comment additional flexibility. The regulation proposed § 780.16(d)(2), which is now and have added wetlands to this now states a preference, but not a final paragraph (d)(3), we explained that paragraph. requirement, for a minimum 100-foot ‘‘long-term’’ means that the permittee We also invited comment on corridor for such enhancement would not be able to correct the proposed § 780.16(d)(2)(ii), which is measures. For clarity, we have also resource loss before expiration of the now final paragraph (d)(3)(ii), about revised this requirement to describe the period of extended revegetation whether our regulations should define enhancement as the creation of a responsibility as prescribed in proposed ‘‘commensurate’’ in the context of corridor where there is no such corridor § 816.115 and identified two examples ‘‘long-term’’ and, if so, how we should before mining but where a vegetative of long-term loss: the removal of define that term. We received two corridor typically would exist under significant native forest cover and the comments in support of defining natural conditions. burial of a perennial or intermittent ‘‘commensurate,’’ but neither provided Another commenter was concerned stream segment by an excess spoil fill or an example of a definition of that term. that in the event extra material is coal mine waste disposal facility. We In light of the small number of needed to restore the 100-foot riparian invited comment on whether there are affirmative responses and the fact that zone and is stacked at the edge of the other interpretations of ‘‘long-term’’ that neither commenter provided any vegetative corridor, it could disrupt the we should consider. We received two suggested definition, we do not believe mine operator’s ability to restore the comments in support of the proposed that a definition is warranted. Instead, permit to approximate original contour rule’s preamble description of ‘‘long- we have determined that the regulatory or cropland use. The commenter did not term’’ and were offered no alternate authority should have the flexibility to provide an explanation as to why it may definitions. We did, however, receive determine if the enhancement measures be necessary to stack extra material to many comments requesting that we are commensurate to the magnitude of create a vegetative corridor. However, further clarify ‘‘long-term’’ within this long-term adverse impacts of the regardless of the size of the hypothetical section. In response to these comments proposed operation. Therefore, we are stack we do not anticipate this as an we have revised this paragraph to clarify not adding a definition of impediment to achieving approximate that ‘‘long-term’’ adverse impacts are ‘‘commensurate.’’ original contour. In the commenter’s either the permanent loss of wetlands, Final paragraph (d)(3)(iii)(A) provides scenario the stacking would be or segments of perennial or intermittent that enhancement measures to address a temporary. Ultimately, the reclamation streams, or the temporary or permanent proposed operation with long term plan would require the material to be loss of mature native plant or forest effects must be implemented within the placed to achieve approximate original communities that cannot be restored same watershed if possible. Otherwise, contour, establish the vegetative before bond release. enhancement measures must be corridor consistent with this final rule, In the preamble discussion of implemented in the closest watershed and the approved postmining land use. proposed § 780.16(d)(2), which is now available as long as it is approved by the Accordingly, we have not modified the final § 780.16(d)(3), we also invited regulatory authority. Some commenters proposed rule in response to this comment on whether the regulatory requested that we require the term comment. authority may consider mitigation ‘‘watershed’’ to be applied in Proposed paragraph (d)(1)(vii), which measures approved under the authority accordance with the Hydrologic Unit is now final paragraph (d)(2)(vii), was of the Clean Water Act as satisfying the Code to provide boundaries for the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93157

enhancement measures. We disagree. we agree and have deleted the not defined in our previous regulations The regulatory authority is in the best paragraph. or the proposed rule. We are not making position to determine the scope and Some commenters advocated any changes in response to these location of the enhancement measures. removing proposed paragraph (d)(3), comments. The commenters did not The regulatory authority may factor in which is now final paragraph (d)(4), as identify the alleged inconsistencies and the size of the watershed, which inconsistent with SMCRA. Specifically, the two terms, ‘‘proposed operation’’ requires a case-by-case, region-by-region these commenters alleged that and ‘‘area to be mined’’ are used analysis and cooperation between the achievement of the enhancement throughout SMCRA, our previous and operators and the regulatory authority. requirements described in paragraph existing regulations, and are generally In any case, the regulatory authority (d)(2) would always involve more than accepted terms in the mining industry. should have flexibility on these issues. a de minimis disturbance of the surface Similarly, several commenters stated A few commenters also requested that land outside the area to be mined, and that the enhancement option allowing we identify the approach to be used in therefore would need to be placed the reclamation of ‘‘previously mined identifying suitable surrogate within the permit. We do not agree that areas located outside the area that you enhancements in adjacent watersheds all enhancement measures would be propose to disturb’’ creates confusion as and specify the criteria for determining considered more than a de minimis to whether activities related to the the equivalent size and cost of disturbance. In the final paragraph enhancement measures outside the enhancement. Commenters also (d)(2), which we proposed as paragraph mining area are considered a mining requested that we provide a mitigation (d)(1), there are examples of activity. Other commenters also hierarchy similar to the 2008 enhancement measures that do not rise expressed concern about a perceived Compensatory Mitigation for Losses of to the level of de minimis disturbance, inconsistency within proposed Aquatic Resources.343 We decline to such as establishing conservation § 780.16(d)(2)(xi) and asked the make these changes. Because this easements or nest boxes for birds. following question: ‘‘[i]s [the area] information is best assessed on a case- Therefore, we have adopted final ‘outside the area you propose to disturb’ by-case basis, the regulatory authorities paragraph (d)(4) because it is important to be included within the proposed should have the discretion to make to allow small enhancement measures permit area?’’ We agree that this was these determinations. without the added burden of including confusing. Therefore, we have revised those areas within the permit boundary. final § 780.16(d)(2)(xi) to prescribe, One commenter requested we add Another concern voiced by ‘‘[r]eclaiming previously mined areas language to proposed commenters is that if there is more than located outside the area that you § 780.16(d)(2)(iii)(A), which is now final a de minimis disturbance to the lands propose to disturb for coal extraction.’’ § 780.16(d)(3)(iii)(A), to specify that, on associated with these enhancement This revision more clearly reflects that federal lands, proposed enhancement measures, the revegetation standards this area is within the permit area and measures would have to comply with within the permit must be met on these related to mining activity, but is not an the Federal Land Policy and lands associated with the enhancement 344 area of the permit that is proposed to be Management Act, and be consistent measures. We agree that if there is more disturbed by coal extraction. with that federal land management than a de minimis disturbance to the agency’s land use plan. We disagree. land, for any reason, the area would Final Paragraph (e): Fish and Wildlife The suggested rule change is not have to be permitted under SMCRA and Service and National Marine Fisheries necessary because, for federal lands, any revegetation standards would have to be Service Review areas upon which fish and wildlife met. However, we did not revise the Proposed §§ 779.20(d) and 780.16(e) enhancement measures are conducted rule in response to this concern because contained substantively identical will be part of the permit area and all there are numerous enhancement provisions regarding U.S. Fish and proposed measures will be reviewed measures that can be completed that Wildlife Service review of the fish and and processed as part of the SMCRA would not require adding additional wildlife resource information and the permit application and Mineral Leasing land to the permit area, such as creating fish and wildlife protection and Act mining plan, as described in Parts rock piles of value to raptors and other enhancement plan, respectively. The 740 through 746 of our regulations. wildlife for nesting and shelter. final rule consolidates proposed Nothing in this or any other rule grants Commenters also were concerned that §§ 779.20(d) and 780.16(e) into final the permittee authority to take any the term ‘‘de minimis disturbance’’ is § 780.16(e), both to streamline the action on federal lands that is subjective and open to interpretation, regulations and in response to a inconsistent with any land management and some commenters requested a comment noting that the Service agency’s land use plan or federal law. definition of the term. We decline to reviews baseline fish and wildlife Proposed paragraph (d)(2)(iv) define the term. Regulatory authorities resource information together with the provided that the regulatory authority are in the best position to determine fish and wildlife protection and must include a condition in the what constitutes ‘‘de minimis enhancement plan, not separately. approved permit that requires the disturbance’’ in each circumstance; We have modified paragraph (e) and completion of the enhancement therefore, a definition in these other provisions of the final rule to measures for operations with regulations is not necessary. reference the National Marine Fisheries anticipated long-term adverse impacts. Some of the same commenters further Service because that agency, along with We received a comment that this alleged that the enhancement measures the U.S. Fish and Wildlife Service, language seemed circular because we and the terms describing the shares responsibility for administration were essentially requiring insertion of a enhancement measures as prescribed by of the Endangered Species Act. This permit condition requiring the applicant proposed § 780.16(d)(3), now modification is necessary for accuracy to comply with conditions of the permit. § 780.16(d)(2), were inconsistent with and to clarify that, where applicable, Upon consideration of this comment, other requirements in the proposed rule. such as in situations where anadromous Specifically, the commenters expressed fish or most species within a marine 343 73 FR 19594 (Jun. 9, 2008). concern that the terms ‘‘proposed environment would be impacted, the 344 43 U.S.C. 1701 et seq. operation’’ and ‘‘area to be mined’’, are regulatory authority must provide the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93158 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

resource information, as explained under that law, or species proposed for the Clean Water Act, in violation of within this section, to the National listing as threatened or endangered section 702 of SMCRA,347 and Marine Fisheries Service. under that law. Under both the previous inappropriate for inclusion in the Final paragraph (e)(1)(i) requires the regulations and the final rule, the regulations at a national or even regulatory authority to provide both the regulatory authority must provide that regional scale. Commenters’ concerns protection and enhancement plan information to the U.S. Fish and regarding duplication of the Clean developed under this section and the Wildlife Service within ten days of Water Act are discussed in Part IV.I., resource information required under receipt of the request. above. We have made a number of final § 779.20 to the appropriate regional Proposed §§ 779.20(d)(2)(ii) through changes to the baseline data collection or field office of the U.S. Fish and (iv) and 780.16(e)(2)(ii) through (iv) requirements of the final rule in Wildlife Service or to the National prescribed how the regulatory authority response to some of these general Marine Fisheries Service, as applicable, must handle comments received from comments as well as more specific when that information includes species the U.S. Fish and Wildlife Service and comments, described below. listed as threatened or endangered how any disagreements must be One commenter suggested that we under the Endangered Species Act, resolved. These provisions mirrored the should require the applicant to monitor critical habitat designated under that 1996 Biological Opinion 345 dispute all baseline monitoring sites for all law, or species proposed for listing as resolution process. We received many parameters throughout the life of the threatened or endangered under that comments, both in support of and permit to ensure uniformity of the law. The regulatory authority must opposed to these requirements. After water-quality data; thus enhancing the provide both the resource information considering these comments, we ability to detect adverse impacts from and the protection and enhancement decided not to adopt proposed the coal mining operation. We agree plan to the appropriate Service(s) no §§ 779.20(d)(2)(ii) through (iv) and with the commenter that baseline later than the time that it provides 780.16(e)(2)(ii) through (iv). Instead, monitoring sites need to be monitored written notice of the permit application final § 773.15(j) provides applicants and throughout mining and reclamation. to governmental agencies under existing regulatory authorities with several However, unlike the commenter, we § 773.6(a)(3)(ii). pathways for demonstrating compliance recognize the need for flexibility; i.e., Several commenters supported this with the Endangered Species Act. that the frequency and parameter lists of provision because it would ensure better the monitoring sites could be modified coordination and sharing of information Previous § 780.18: Reclamation Plan: based on site specific factors, as long as among the applicant, the regulatory General Requirements sufficient data are collected to authority, and the applicable Service We have removed and reserved adequately assess these resources. After early in the permitting process. Other previous § 780.18. As discussed in the baseline monitoring has been completed commenters, however, were confused preamble to the proposed rule we have and mining has commenced, the by these transmittal requirements, at revised many aspects of previous operator can use the permit revision least as they stood in the proposed rule § 780.18 and moved it to final rule procedures of § 774.13 to request that where we had placed them in two § 780.12.346 the regulatory authority modify the separate sections. Proposed monitoring requirements established in Section 780.19: What baseline § 779.20(d)(1)(i) contained the the permit. requirement to transmit resource information on hydrology, geology, and A commenter commended us for information to the Service(s) at the time aquatic biology must I provide? requiring monthly collection of baseline the application is filed with the This section establishes the baseline samples as discussed in paragraphs regulatory authority, while proposed information on hydrology, geology, and (b)(6)(ii)(A) and (c)(4)(ii)(A), and § 780.16(e)(1)(i) contained the aquatic biology that is required to be excluding samples collected during requirement to transmit the protection contained within the permit abnormal hydrologic events. In contrast, and enhancement plan. The application. We received many however, many commenters thought commenters criticized us for creating comments both supporting and collecting twelve monthly, evenly redundant requirements, asserting that objecting to this section; these spaced, samples of groundwater and the U.S. Fish and Wildlife Service comments are addressed below. surface water was not necessary to review of baseline wildlife information Several commenters addressed this establish seasonal variation and did in the permit application was an section in its entirety. Of these nothing but add time to the permitting unnecessary step because § 780.16 commenters, some supported the process and substantially increase costs. already allowed the agency to review revisions within the proposed rule that We disagree with this assertion. A study this information in connection with the would require more extensive baseline by the U.S. Environmental Protection fish and wildlife enhancement plan. In data collection and found the revisions Agency in 2001 348 indicated that response to these comments, we to be both attainable and prudent. In twelve, evenly spaced samples were the consolidated the two provisions in final contrast, other commenters opposed the absolute minimum to establish § 780.16(e)(1)(i). proposed revisions and requested that statistical rigor. As a result, we have Final paragraph (e)(1)(ii) is similar to they be removed from the final rule. The retained this provision; however, we our previous regulations, which allowed commenters opposing the revisions have provided the regulatory authority the U.S. Fish and Wildlife Service to generally considered the proposed with some discretion as it relates to request fish and wildlife resource baseline collection requirements to be establishing the groundwater baseline. information and the fish and wildlife too costly, not beneficial, duplicative of We discuss the rationale for this and protection and enhancement plan change in rule language further in the submitted as part of a permit 345 1996 Biological Opinion and Conference application when the information in Report (1996 Biological Opinion), Consultation 347 30 U.S.C. 1292. those applications does not include Conducted by the U.S. Dep’t. of the Interior, U.S. 348 U.S. Envtl. Prot. Agency, Office of Water, Fish and Wildlife Serv. regarding Endangered species listed as threatened or Statistical Analysis of Abandoned Mine Drainage in Species Act—Section 7 Consultation. Effective the Establishment of the Baseline Pollution Load for endangered under the Endangered September 24, 1996. Coal Re-mining Permits, 266, EPA–821–B–01–014, Species Act, critical habitat designated 346 80 FR 44436, 44487–44493 (Jul. 27, 2015). (Dec. 2001).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93159

preamble discussion of paragraph (b). In Palmer Drought Severity Index in the aquatic biology that must be included response to other comments about these context of extending the baseline data within a permit application. We paragraphs, however, we clarified the collection period. proposed that this information be extent of the baseline sample period by Another commenter opined that we provided in ‘‘sufficient detail’’ to assist adding the term ‘‘approximately’’ with did not conduct a frequency analysis to the applicant in developing valid respect to the requirement for ‘‘equally determine the cost of collecting and probable hydrologic consequences spaced monthly intervals.’’ Several analyzing the disqualified baseline data conclusions and to help the regulatory commenters objected to the former to the industry, or the uncertainty of the authority make certain hydrologic terminology and requested latitude to cost to a mining company to obtain determinations. Several commenters account for variations in field permits in a timely manner. The change requested that we clarify the meaning of conditions. We did not intend the discussed above removes the need for us ‘‘sufficient detail’’ or otherwise provide ‘‘equally spaced monthly intervals’’ to to analyze costs to industry for specific guidance to ensure consistency be interpreted to mean that there could collecting and analyzing disqualified in the permitting process. A definition be no variation in the monthly spacing data and for extended permit processing is unnecessary. Section 780.20, ‘‘How intervals, but we recognize that the time. must I prepare the determination of the proposed rule could be misinterpreted. Certain paragraphs of the final rule, probable hydrologic consequences of Therefore, we have revised the final rule however, still require that the Palmer my proposed operation?’’, describes the at paragraphs (b)(6) about groundwater Drought Severity Index be noted during objective of this part, which is to ensure and (c)(4) about surface water to provide sample collection to give a sense of that the permit applicant provides the discretion regarding the sampling magnitude to precipitation deficits or regulatory authority with intervals. This change also responds to surpluses. This notation will provide comprehensive and reliable information comments received from several important context to the baseline data on how it proposes to conduct surface regulatory authorities, which expressed collected with regard to water quality mining activities and reclaim the concern that dangerous weather and quantity. The final rule also disturbed area in compliance with the conditions and frozen streams could provides discretion to the regulatory Act, this chapter, and the regulatory make it dangerous or impossible to authority to extend the baseline program. Therefore, each regulatory collect evenly spaced monthly samples. sampling period to ensure that the authority is in the best position to These regulatory authorities noted baseline data collected at the site is provide guidance on what constitutes specifically that significant snow packs representative of the premining ‘‘sufficient detail’’ to meet that and icy conditions can occur, hydrology in the area if National program’s requirements. particularly in the western and northern Oceanic Atmospheric Administration, One commenter alleged that we failed or other atmospheric databases, reaches of the coalfields. Because of to define ‘‘probable’’ in § 780.19(a)(1) including the Palmer Drought Severity groundwater contributions to and should provide a definition or Index, indicate weather conditions were intermittent and perennial streams, further elaborate on what is sufficient to highly unusual during the baseline completely frozen streams are rare in satisfy the probable hydrologic sampling period. consequences of the operation. most circumstances. Despite this rarity, A commenter asserted that the Webster’s dictionary defines probable as we recognize the importance of proposed rule does not specify how all ‘‘likely to happen or to be true but not providing the regulatory authority samples will be collected and analyzed certain.’’ 349 discretion as to what constitutes or identify appropriate analytic This common definition approximately equally spaced sampling methods. We have not altered the final adequately describes the intent of the intervals, so that dangerous conditions rule in response to this comment certainty of events that need to be and the need to sample of completely because it is inappropriate to provide evaluated when determining the frozen streams can be avoided. In more than a framework from which to probable hydrologic consequences and addition, we have added paragraphs collect baseline samples due to the wide no further regulatory definition is (b)(6)(ii)(B) and (c)(4)(ii)(B) to provide variety of standardized methods needed. Several commenters expressed the regulatory authorities flexibility to available to collect and analyze water. concern about the ability to acquire modify the intervals to ensure the safety Commenters also claimed that we landowner permission for sampling in of personnel while conducting should allow the use of statistical the adjacent area for baseline or groundwater and surface water methods and qualitative assessments to monitoring purposes. We are aware of sampling trips and in the rare cases of establish watershed baseline conditions. this concern, but it has been an issue completely frozen streams. Qualitative assessments do not satisfy since SMCRA was passed and has been We also modified the language of the the intent of establishing the baseline successfully navigated for the past 35 paragraphs (b) and (c) concerning the conditions in a watershed. Instead of years. Furthermore, the regulatory use of the Palmer Drought Severity conducting a qualitative assessment to authority has the latitude to modify Index as a trigger to extend baseline establish the baseline conditions in a sampling locations when landowner sampling. The proposed rule contained watershed, it is important to collect access is problematic. a ‘‘+/¥ 3.0’’ standard. Several states actual baseline data for the permit. Several commenters were opposed to provided an analysis of this standard for However, the final rule allows proposed paragraph (a)(4), now their respective states, which concluded regulatory discretion in determining the paragraph (a)(1)(iv), which would have that long periods of time existed during statistical methods used to assess the required baseline information in which daily or weekly Palmer Drought baseline data collected for the permit sufficient detail to assist the regulatory Severity Index exceeded +/¥ 3.0. The application. result of these analyses indicate that the authority in preparing the cumulative time required under the proposed rule Final Paragraph (a)(1): General hydrologic impact assessment. As to collect baseline data would be Requirements 349 In paragraph (a)(1), we are finalizing probable. 2016. In Merriam-Webster.com. extended for multiple years in order to Retrieved Nov. 2, 2016, from http://www.merriam- meet that standard. In response, we the requirements for the baseline webster.com/dictionary/probable. Oxford Univ. have removed the reference to the information on hydrology, geology, and Press.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93160 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

required by § 780.21, the cumulative we are, by default, enforcing an effluent either the analysis is flawed by under or hydrologic impact assessment includes limit standard for conductivity. We do over-reporting the ionic content of a an evaluation of whether the proposed not prescribe the water quality particular ion or an ion constituting a operation has been designed to prevent standards for discharges from mine significant portion of the water sample material damage to the hydrologic sites. Instead, the Clean Water Act is missing. For either reason, the cation- balance outside the permit area. These authority makes those anion balance is a quick, easy, and commenters criticized a perceived lack determinations.351 Inclusion of the inexpensive method of performing of sufficient technical guidance with parameter specific conductance in the quality assurance and quality control of respect to the information and metrics baseline sampling as part of the baseline the water sample. For these reasons, we needed in the cumulative hydrologic sampling protocol is meant to provide have retained the cation-anion balance impact assessment. Because these another parameter to help establish the requirement. We also note that most comments are more relevant to § 780.21, premining water-quality conditions. labs report this ratio when the major relating to requirements that apply to A number of commenters suggested cations and anions are analyzed. the preparation and review of the various parameters be added or deleted cumulative hydrologic impact from the baseline data collection list A commenter suggested that the assessment, these comments are found in proposed § 780.19.352 preamble discuss the differences in how addressed within that section. Conversely, a number of commenters variations in selenium speciation impacts aquatic life. Selenium Final Paragraph (a)(2): Core Baseline objected to the expanded list as too costly, too burdensome to collect, speciation refers to the different forms Water-Quality Data Requirements for of selenium (elemental, selenate, Surface Water and Groundwater analyze, or review, and without offering any real benefit to establishing the selenite, and selenide). A fact sheet from In response to many of the general baseline condition in the streams. the California Resources Agency comments outlined above, we have Several commenters took a more provides a concise summary, which we made changes to the baseline data moderate approach and suggested that paraphrase here.353 Selenium has a collection requirements. Significantly, any extra parameters beyond those complex environmental chemistry. In we have removed six parameters that we required over the last 30 years should be natural systems, it occurs in four proposed to have operators collect and considered for discretionary inclusion different chemical (oxidation or analyze in surface water and by each regulatory authority and not be valence) forms: Selenide (Se2¥); groundwater—ammonia, arsenic, part of a nationwide list. As discussed elemental selenium (Se0); selenite cadmium, copper, nitrogen, and zinc.350 above, we have removed several (Se4+), and selenate (Se6+). The form Removing these parameters will reduce parameters from the mandatory list in selenium takes in nature depends on a the amount of data collected and the response to commenters’ suggestions. variety of environmental conditions, potential for duplication without We have also declined to add other and the chemical form is very important reducing the protections proposed. parameters to a nationwide list, but the in understanding how it affects aquatic First, information on the presence or rule affords necessary discretion to the life. In alkaline surface waters that are absence of the parameters we removed regulatory authority to add other commonly found in arid areas, selenium is available under an existing Clean parameters if deemed useful at a occurs mainly as soluble selenate salts Water Act process. Pursuant to 40 CFR particular site. Within the final rule, for 122.44(d), the Clean Water Act NPDES that are highly mobile because they are permitting authority completes a the sake of clarity, we have listed the soluble in water and do not adhere well reasonable potential analysis and parameters in a table located in to soils. Selenates can be reduced to develops permit limits for any pollutant renumbered § 780.19(a)(2) for both selenites, which are more readily in an authorized discharge that has a surface water and groundwater. accumulated by fish and other aquatic reasonable potential to cause or Several commenters suggested the organisms. Selenites may be converted contribute to an exceedance of water cation-anion balance requirement to elemental selenium, which is not quality criteria. The parameters we should be removed from the parameter very soluble in water and is not readily removed, except for ammonia and list unless laboratory data is suspected taken up by plants or animals. In nitrogen, are contained in the parameter to be inaccurate. The cation-anion ratio sediment, most of the selenium may list for the baseline determination for is a measure of the electrical neutrality occur in the elemental form. If reasonable potential analysis. Second, of the water sample. To achieve sediments become oxidized (exposed to state regulatory agencies indicated these electrical neutrality, the sum total of the air) most of the selenium can be parameters are rarely found in mine negatively charged particles (anions) converted to selenates and selenites. effluent in appreciable concentrations. must equal the sum of the positively Metal and organic selenides also are Third, we have made revisions to the charged particles (cations). When the common in bottom sediments. Like final rule to ensure that regulatory two are approximately equal, two things elemental selenium, selenides can authorities have the flexibility to require are evident—no ions with substantive become oxidized to forms that are more collection of additional parameters and/ concentrations are missing from the available to plants and wildlife. Organic or monitoring. Specifically, we added sample and the analysis is accurate. forms of selenium also occur in or are language to §§ 780.19(b)(4) and Analyzing just the major cations and produced by plants and animals. While 780.19(c)(2) to clarify that a regulatory anions will not usually result in exact the organic forms of selenium are authority can require baseline collection proportions of positive and negative typically less abundant than inorganic of any parameter that is not on the list ions because not every ion is analyzed. selenium (selenate and selenite), the of parameters contained in these When the ratio is not within regulations. One commenter mistakenly approximately 10%, it indicates that 353 State of California Res. Agency, Fact Sheet: asserted that because we have identified Selenium and Its Importance to the Salton Sea (Feb. the parameter specific conductance as a 351 See, e.g., U.S. Envtl. Prot. Agency, A Field- 2005), http://www.water.ca.gov/serp.cfm?q= Based Aquatic Life Benchmark for Conductivity in selinium&cx=001779225245372747843%3 core baseline water-quality requirement, Central Appalachian Streams 76 FR 30938 (May 27, Amxwnbyjgliw&cof=FORID%3A10&ie=UTF- 2011). 8&submit.x=13&submit.y=3. (last accessed Nov. 1, 350 80 FR 44436, 44600–44601 (Jul. 27, 2015). 352 80 FR 44436, 44600–44601 (Jul. 27, 2015). 2016).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93161

organic forms are important from a water temperature measurements for all mining operation on ‘‘any’’ biological toxicity standpoint. water-quality samples because water underground mine pools within the Despite these differences in selenium temperature influences biological proposed permit and adjacent areas. speciation, we find no need to revise the activity and water chemistry. Based on One commenter objected to the proposed rule in response to this the commenter’s suggestion, we have unilateral treatment of underground comment. Like the proposed rule, the revised the parameters in paragraph mine pools. The commenter argued that final rule at § 780.19(b) requires baseline (a)(2) of this section to include mine pools below drainage elevation data on total and dissolved selenium in temperature within the baseline data have a low chance or historic incidence surface water and the dissolved fraction collection requirements for surface of impacting surface hydrology. Thus, in groundwater. Other provisions of water and groundwater. the commenter alleged that applying § 780.19 require detailed baseline this provision to mine pools below Final Paragraph (b): Groundwater information on geology, including drainage elevation would add effort and Information geochemistry. This combination should expense with limited to no be adequate for the applicant to prepare Several commenters raised concerns environmental benefits. We decline to a probable hydrologic consequences with § 780.19(b)(2) about baseline make modifications based on this determination, as discussed in § 780.20, collection requirements when an comment for several reasons. First, all that predicts the impact of the proposed underground mine is present within the underground mine pools are part of a operation on levels of selenium and permit or adjacent area. One commenter hydrologic system whether there other parameters in surface water and a asserted that the need for the classified as above drainage or below hydrologic reclamation plan, as requirement was too narrow and that drainage.355 Information about how discussed in § 780.22, that explains how this change lacked justification. Another mine pools affect baseline hydrologic the applicant will address adverse commenter thought sampling all mine conditions is necessary to estimate the impacts and prevent material damage works within 500 feet of the proposed impacts the proposed operation will outside the permit area. The regulatory operation should be sufficient. We have on the hydrologic system, authority must independently prepare a disagree with both of these comments. including mine pools. Second, several cumulative hydrologic impact Both the regulatory authority and the examples exist of active coal mining assessment of whether the proposed applicant need to understand the spatial operations breaching flooded adjacent operation would cause material damage and temporal relationships of adjacent mines and inundating the active mines to the hydrologic balance outside the and/or overlying mine works. Both with water.356 Consequently, knowing permit area in conformity with § 780.21. entities need to analyze water quality the extent and characteristics of Several commenters suggested that we and quantity data regarding adjacent mine pools is a vital piece of require testing for dissolved analytes underground mine pools in areas information for both safety and instead of total analytes for adjacent to proposed permitting actions; environmental reasons. Third, contrary groundwater. We agreed with the especially if the mine works are to the commenter’s statements, suggestions because under ideal hydrologically connected to the examples exist of flooded underground proposed permitted area. This conditions (proper well construction, mine pools discharging to streams.357 information and data are necessary for well development, and groundwater For these reasons, we are retaining the the applicant to analyze the probable sampling procedures) field-filtered requirement for an assessment of the hydrologic consequences and for the groundwater samples (dissolved) should characteristics of any underground mine regulatory authority to develop the yield identical metal concentrations pool within the permit area or adjacent when compared to unfiltered cumulative hydrologic impact 354 areas as proposed. groundwater samples; hence, we assessment. We note, however, that the Another commenter alleged that we have made the change at § 780.19(a)(2) applicant is not required to undertake provided no details on the methods that the sampling unless the regulatory of the final rule. the applicant should use to assess authority finds that a hydrologic One commenter suggested that, when seasonal changes in quality, quantity, connection exists between the adjacent evaluating stream function, more than and flow patterns in a given mine pool. or overlying underground mine and the flow data should be collected. The They also asserted that we provided no proposed operation. When permitting commenter further opined that the information about how the applicant an operation that may hydrologically baseline data collection should include should demonstrate that the mine pool impact an adjacent underground mine an evaluation of the premining is or is not physically connected to the pool, there is no justification for hydrological regime and the material proposed operation. Details on assessing ignoring that connection. Hydrologically composition of stream beds, flow seasonal changes and associated connected underground mine pools may patterns, water chemistry, and surface methodology are best left to the water temperature. We agree, however, result in the need for treatment facilities because the water quality in those mine discretion of the regulatory authority. all of these requirements, except Industry and the technical reviewers temperature, are addressed in the pools may affect the proposed operation and may also pose significant proposed rule that we are finalizing 355 David M. Light & Joseph J. Donovan,, Mine- today at paragraph (c)(6)(iii)(A) and environmental and safety concerns if water flow between contiguous flooded § 784.19(c)(6)(i)(A). The omission of the new operation causes problems due underground coal mines with hydraulically water temperature from paragraph to underground openings that are comprised barriers, 21(2) Environmental & (c)(6)(iii)(A) and § 784.19(c)(6)(i)(A) was flooded or gas-filled. Engineering Geoscience, 147–164, (May 2015). In proposed paragraph (b)(2), we 356 J. Donovan, et al., 6th ICARDS Cairns, QLD, an oversight. It is important to require pp. 869–875 (2003); Pennsylvania Dep’t. of Envtl. required an assessment of the Prot., Report of Comm’n. on Abandoned Mine 354 Robert A. Saar, Filtration of ground water characteristics of underground mine Voids and Mine Safety, p. 3 (2002). Samples: A review of Industry practice, 17(1) pools present in the permit area and 357 J.W. Hawkins and M. Dunn, Final report Groundwater Monitoring and Remediation, 56–62, stated that the determination of the Fairmont, West Virginia mine-pool, Hydrologic (Feb. 1997); U.S. Envtl. Prot. Agency, Envtl. characteristics of a 35-year-old underground mine Engineering Committee of the Science Advisory probable hydrologic consequences pool, U.S. Dep’t. of the Interior, OSMRE, Mine Board, To filter, or not to filter; That is the question, required under § 780.20 must include a Water and the Environment, Vol. 26, pp. 150–159 1997, EPA–SAB–EEC–LTR–97–011, (Sept. 1997). discussion of the effect of the proposed (2014).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93162 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

have a wide array of skills, expertise, evaluation and to correct the problem variations can be significant, we require and methods that enable this before it becomes more widespread. collection of this data. requirement to be addressed. With A commenter opined that the One commenter stated that the respect to demonstrating the hydraulic groundwater data that we proposed to requirements related to the frequency connection between mine pools, require in paragraph (b)(5) is and duration of data collection and methods exist to provide a reasonable insufficient to establish groundwater requirement for the geographic demonstration of hydraulic interaction. quantity and that groundwater discharge distribution of wells in proposed, and These methods include installation of rates or usage rates as required in this now final paragraph (b)(6), are welcome piezometers in the strata of interest with section do not represent groundwater additions to the groundwater an assessment of the hydraulic head, quantity. The commenter asserted that characterization requirements. groundwater movement patterns, and the direction of groundwater flow Several commenters suggested that structural geology influences between (horizontally and vertically) requires groundwater quality does not change the mine site and adjacent mining. elevation data, not just depth to water much over the course of a month or a Several commenters suggested that data. We agree and have modified the year; therefore, twelve monthly samples the ‘‘modeling’’ we specified for final rule text requiring elevation data should not be required. We agree and predicting mine pools has not yet been for water table surfaces and have revised the final rule by adding developed or validated for most mining potentiometric head surfaces. The same paragraph (b)(6)(ii)(C), which affords the regions and therefore is not practicable. commenter asserted that to determine regulatory authority discretion to grant We disagree with these comments. the quantity of groundwater, an operator the applicant an option to collect eight Modeling is a broad term and would need information on the samples spread over two years with incorporates the entire range of models geometry of the aquifer (area times certain conditions. Specifically, the from simple mathematical models to saturated thickness). The commenter regulatory authority may initiate review complex numerical models. We are not suggested that we require information of the permit application after collection and analysis of the first four quarterly prescribing the exact modeling methods on the areal extent of aquifers and groundwater samples, but it may not to be used; the regulatory authority has saturated thickness. We agree with the approve the application until after discretion to make this determination commenter and have revised the final receipt and analysis of the final four on the level of detail required. rule text to require that the applicant quarterly groundwater samples. We are determine the areal extent and thickness Related to paragraph (b)(3), allowing regulatory authority to start of aquifers. Although we agree with the ‘‘[m]onitoring wells,’’ several reviewing the application because the commenter that groundwater discharge commenters suggested we remove the likelihood of the groundwater data rates or usage rates do not represent phrase ‘‘when necessary’’ from substantially changing during the final groundwater quantity, we have retained §§ 780.19(b)(3) and 784.19(b)(3) with four quarters is low due to typically the requirement for this information in respect to when an applicant must slow groundwater travel times. install monitoring wells to document the final rule because it is closely seasonal groundwater variation. We associated with groundwater quantity. Final Paragraph (c): Surface-Water agree with the commenter and have Several commenters objected to the Information made this change because the use of the term ‘‘water bearing stratum’’ One commenter expressed concern information is necessary to determine in proposed paragraph (b)(5). In with proposed paragraph (c)(2)(xix) groundwater movement of parameters to response, we have changed the term relating to surface water quality down gradient water bodies and to be ‘‘water bearing stratum’’ to ‘‘aquifer’’ in descriptions, which would have able to evaluate impacts to groundwater recognition of commenters’ concern required baseline information for any quantity and quality as a result of the that, as proposed, this provision might parameter added to a National Pollutant mining operation. have been misinterpreted to include Discharge Elimination System permit. Several commenters suggested that water contained in rock units that do The commenter indicated that this groundwater quantity measurements not sufficiently supply water in usable requirement would cause unnecessary required in paragraph (b)(5) for each quantities. The term ‘‘aquifer’’ is used in delays to the SMCRA permit review coal seam and aquifer are not necessary hydrogeology to denote water bearing process because the National Pollutant to establish baseline characterization units with properties to yield water in Discharge Elimination System permit is and did nothing but add additional cost. economic quantities sufficient to supply often not obtained until later in the Another commenter asserted that domestic or public water wells. We are SMCRA permitting process, which installation of up and down gradient aware of the use of perched aquifer could require the applicant to redo the monitoring wells, as required by systems in many states, and this baseline collection data. We agree and paragraph (b)(6), is not necessary terminology change helps satisfy the have revised the rule to clarify that the because it adds unnecessary time and commenter’s concern and affords users National Pollutant Discharge cost to the permitting process and of these systems the sampling, Elimination System parameter should be left to the discretion of the monitoring, and protections found in requirement would apply only when regulatory authority. We disagree with the revised regulations. those parameters are known at the time these comments. Groundwater levels One commenter opposed our limits of permit application. This change can change over relatively large areas as on using extrapolated measurements to should ensure that there are no the result of surface and underground determine seasonal variations in unnecessary permitting delays as a coal mining. Changes in groundwater groundwater and surface water quality. result of this requirement. levels can affect groundwater flow Like the proposed rule, the final rule One commenter noted that the direction, travel times, and water does not allow extrapolated data to be requirements in proposed paragraph quality, potentially resulting in adverse used because based on our past (c)(3)(i) referring to ephemeral streams impacts to the hydrology within and experience, extrapolating data is not a contradicted with the requirements in outside the permit area. Without reliably accurate method to document proposed paragraph (c)(4)(i). In adequate monitoring in place, it and describe seasonal variations in proposed paragraph (c)(3)(i), we becomes significantly harder to do the chemical parameters. Because seasonal specified that the applicant provide

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93163

baseline information on seasonal flow conflict. Non-SMCRA agencies that requires sampling all streams within a variations and peak-flow magnitude and accept visual flow measurements can reasonable angle of de-watering as frequency for all perennial, intermittent, continue to do so even if our provided in the definition at § 701.5. and ephemeral streams and other requirements are more rigorous. With regard to paragraph (c)(4)(i)(B), a surface-water discharges within the Another commenter suggested we add commenter suggested that we specify proposed permit and adjacent areas. language pertaining to peer-reviewed the number of sampling locations that However, proposed paragraph (c)(4)(i) citations to document the flow qualify as a representative number when specified a requirement that the permit measurement method chosen. This is sampling ephemeral streams and other applicant establish monitoring points in not necessary because the regulatory commenters requested more guidance a representative number of ephemeral authority can decide the generally- on who determines the ‘‘representative streams within the proposed permit accepted measured flow method it sample of ephemeral streams.’’ We area, to ensure collection of data prefers and require whatever decline to prescribe the number of sufficient to fully describe baseline documentation necessary to substantiate representative samples that adequately surface water conditions. For clarity, the the flow measurement method. characterize ephemeral streams, monitoring requirements for a A few commenters remarked that we hydrology, and biology and instead rely representative sample of ephemeral did not fully consider the burdensome on the applicant and regulatory streams has been retained in final costs to industry of implementing the authority to decide the density of paragraph (c)(4)(i)(B) and removed from proposed requirements in sampling on ephemeral streams. It is final paragraph (c)(3), which now only 780.19(c)(3)(i)(A) about measuring and within the regulatory authority’s applies to perennial and intermittent analyzing peak flow. We agree with the discretion to determine what constitutes streams. As discussed in the preamble commenters that the costs of measuring a representative sample of ephemeral to the proposed rule,358 we proposed to and analyzing peak flow magnitude and streams in order to ensure the permit modify the previous regulations to frequency were not fully considered, but application contains ‘‘sufficient detail’’ require the use of generally-accepted we have corrected that omission in the about the hydrology, geology, and professional flow measurement RIA and addressed it in the preamble aquatic biology as required by paragraph techniques to ensure the accuracy of discussion of the Paperwork Reduction (a). We also decline a request from a baseline flow data. We proposed this Act of 1995, below. However, we do not commenter to prescribe what ‘‘sufficient change to eliminate visual and agree with the commenters that the detail’’ means in this context. The estimated flow methods which have additional costs to obtain this data regulatory authority is in the best proven to be very inaccurate. Accurate would pose an unrealistic burden and position to determine whether a permit flow measurements must be obtained to thus should be eliminated. The data application contains sufficient detail appropriately evaluate the impacts of collected as part of final paragraph about hydrology, geology, and aquatic the operation on receiving streams. We (c)(3)(i)(A) will help establish a surface biology for it to process the application. received numerous comments about water flow baseline that industry and Another commenter suggested various aspects of our proposed flow the regulatory authority can use to better ephemeral stream sampling for twelve measurement changes. One commenter assess the impacts of mining and the consecutive months was not possible indicated that the proposed rule could effectiveness of reclamation. because ephemeral streams only flow in be interpreted to ban the use of weirs. One commenter claimed that the response to precipitation events. We This is incorrect; weirs are not banned. regulations are overbroad in that they agree with the comment and have added A weir is a calibrated device using a require upgradient and down gradient language in several places to clearly pre-defined stage-discharge baseline sampling points on all indicate a zero flow event is a valid flow measurement that can be visually intermittent and perennial streams even observation. The commenter also recorded by noting the stage of the water if impacts are not probable. The recommended daily measurements of flowing through the weir. The regulations at paragraph (c)(4)(i)(A) intermittent and perennial streams in distinction is that the visual observation require baseline characterization on all the proposed and adjacent areas to of a stage or measurement has been intermittent and perennial streams on separate seasonal and event-generated calibrated to a stage-discharge curve and and adjacent to the permitted area. This variations. We are declining to require produces an accurate flow estimate. information is not overbroad because it daily flow measurements but sufficient This method has a scientific basis and is vital to help the applicant and discretion exists within the rule for provides the level of accuracy and regulatory authority to understand the regulatory authorities to require daily precision necessary to derive accurate surface water system, provide context flow measurements when they deem it flows. and data for the probable hydrologic necessary to characterize baseline One commenter suggested that the consequence determination, hydrologic conditions. proposed rule should be modified to reclamation plan, and cumulative Several commenters favored the continue to allow well-accepted, hydrologic impact assessment analysis, increased monitoring requirements and standardized, flow measurement and to protect both the operator and went further to suggest that twenty-four methods. We agree; the final rule does regulatory authority in the event of a months of data should be collected, allow-generally accepted methods, but non-mining related impact in the analyzed, and submitted for permit does not allow visual flow estimates for surface water system on or adjacent to application review. We decline to the reasons discussed above. Another the permitted area. The commenter also require twenty-four months of data commenter opined that not allowing requested that we provide greater clarity because of the statistical validity offered visual flow measurements would create to the word ‘‘potentially’’ in the context by twelve months of evenly spaced data, conflict with the requirements of of monitoring on potentially affected as discussed above. However, the agencies that do allow visual flow streams. Potentially affected streams are regulatory authority does have the measurements. Because visual all streams capable of receiving mine latitude to require as much additional observations are not acceptable under water from the permitted site and baseline data as necessary to adequately the final rule, there should be no streams undermined by an underground characterize baseline. mining operation. In underground A commenter opined that the 358 80 FR 44436, 44498 (Jul. 27, 2015). mining operations, the regulation also requirements outlined in proposed

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93164 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

paragraph (c)(4) amounted to a snapshot types of self-recording devices to assessment requirements in in time and were inadequate to measure precipitation on the market and §§ 780.19(c)(6) and 780.19(e), especially determine the baseline flow conditions. not all have the same issues with as they related to the following As we understand the comment, the maintenance. Any mechanical device requirements: Sampling of commenter suggests that obtaining peak left in the environment is prone to some macroinvertebrate populations within flow measurements up and down maintenance issues, but operators can all streams; ephemeral stream baseline gradient of the proposed operation on minimize these issues by choosing a sampling; and detailed descriptions of all intermittent and perennial streams is device that best fits their site. Similarly, stream channel and streamside insufficient to characterize seasonal a commenter asked for clarification vegetation requirements for streams in variation. We disagree with the surrounding use and validity of the adjacent area. Commenters asked assertion. The minimum requirements hydrologic models generated by how that information would be useful in prescribed by the regulation provide an precipitation records. The final rule text designing the mining and reclamation adequate baseline characterization. at paragraph (c)(5)(ii) is clear and plan or in the context of other SMCRA Further, the combination of the provides the regulatory authority with regulatory program requirements. Some locations identified in final paragraphs discretion to determine if a hydrologic commenters recommended requiring (c)(4), quantitative measurements found model is necessary, and, if so, the data for only a representative sample of in (c)(3), minimum parameter list at regulatory authority can decide the all streams, rather than for each stream. (a)(2), and monthly frequency at (c)(4) accuracy and validity of the model Further, we received other comments on will provide adequate baseline results. Another commenter suggested a variety of topics. All of these characterization. These regulations are that the final rule should not require a comments are addressed below. minimum sampling requirements; the precipitation recording device at each regulatory agency may require more permitted area. The commenter In the final rule, we have consolidated locations, samples, and increased suggested that several ‘‘permit areas’’ all stream assessment requirements in frequency as necessary. can be in very close proximity to one § 780.19(c)(6) by merging proposed We received many comments about another resulting in redundant data paragraphs (c)(6) and (e). Comments the requirement in paragraph (c)(5) for collection. We agree and have added relevant to proposed paragraph (e) are self-recording devices to measure paragraph (c)(5)(iii) in the final rule to addressed in this section. In addition to precipitation. Most commenters alleged allow close proximity permitted areas to consolidating the paragraphs, we have the devices were prone to maintenance share a precipitation recording device. carefully reevaluated each component of problems, that they were not practical However, it is important to note, as we the proposed rule concerning stream on large mine sites, and/or that adequate mention above, that because assessments. The final rule retains only measurements could be obtained from precipitation can vary significantly those components that add value to the other sources. The final rule still across relatively small areas, the permitting process and that have utility requires these devices because regulatory authority should carefully in the context of SMCRA regulatory variations in precipitation can occur consider exercising this discretion programs. However, for the most part, over relatively small areas. For example because a precipitation recording device we have not adopted the suggestion to at large mine sites, the operator might located nearby will not always provide require data only for a representative need more than one recording device to accurate data for the precipitation event sample of streams. Each stream is ensure that precipitation events are at the mine site. unique in terms of configuration, recorded adequately at the mine site. vegetation, and aquatic life. Therefore, it The commenters’ concern over Final Paragraph (c)(6): Stream is important to include data specific to maintenance is an issue that can be Assessments each stream in the permit application. addressed when the operator is We received numerous comments, The following table summarizes how we choosing a self-recording device to both supporting and objecting to the revised the data requirements from the measure precipitation. There are many scope and scale of our proposed stream proposed rule to the final rule.

Required in Proposed Rule Required in Final Rule Stream assessment component [30 CFR 780.19(c)(6)&(e)] [30 CFR 780.19(c)(6)]

Map with identification of each stream ...... All perennial, intermittent, and ephemeral All perennial, intermittent, and ephemeral streams within the proposed permit and ad- streams within the proposed permit area. jacent areas. All perennial and intermittent streams within the adjacent area. Location of transition points from ephemeral to All perennial, intermittent, and ephemeral All perennial, intermittent, and ephemeral intermittent and from intermittent to perennial. streams within the proposed permit and ad- streams within the proposed permit area. jacent areas. All perennial and intermittent streams within the adjacent area. Stream pattern, profile, and dimensions, with All perennial, intermittent, and ephemeral All perennial and intermittent streams within measurements of channel slope, sinuosity, streams within proposed permit and adja- the proposed permit. water depth, alluvial groundwater depth, cent areas. depth to bedrock, bankfull depth, bankfull width, width of the flood-prone area, and dominant in-stream substrate. Streamside vegetation characteristics...... All perennial, intermittent, and ephemeral All perennial, intermittent, and ephemeral streams within proposed permit and adja- streams within the proposed permit area. cent areas. Identification of stream segments on list of im- All perennial, intermittent, and ephemeral All perennial, intermittent, and ephemeral paired surface waters under section 303(d) streams within the proposed permit and ad- streams within the proposed permit and ad- of the Clean Water Act. jacent areas. jacent areas.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93165

Required in Proposed Rule Required in Final Rule Stream assessment component [30 CFR 780.19(c)(6)&(e)] [30 CFR 780.19(c)(6)]

Extent and quality of streamside wetlands ...... No ...... All perennial, intermittent, and ephemeral streams within the proposed permit area. All perennial and intermittent streams within the adjacent area. Biological condition ...... All perennial and intermittent streams within All perennial streams within the proposed per- the proposed permit area.. mit area. All perennial and intermittent streams within Each perennial stream within the adjacent the adjacent area that would receive dis- area that could be affected by the proposed charges from the proposed operation.. operation A representative sample of ephemeral All intermittent streams within the proposed streams within the proposed permit area. permit area, if a scientifically defensible pro- A representative sample of ephemeral tocol for assessment of intermittent streams streams within the adjacent area that would has been established. In the absence of a receive discharges from the proposed oper- protocol, a description of the biology of the ation. stream is required. Each intermittent stream within the adjacent area that could be affected by the proposed operation, if a scientifically defensible pro- tocol for assessment of intermittent streams has been established. In the absence of a protocol, a description of the biology of the stream is required. Location of channel head on terminal reaches All perennial, intermittent, and ephemeral All perennial, intermittent, and ephemeral of stream. streams within the proposed permit and ad- streams within the proposed permit area jacent areas.. All perennial and intermittent streams within the adjacent area.

The language contained in the intermittent to perennial streams, and vegetation’’. Specifically, in the final introductory text of proposed paragraph vice versa, when applicable, to the rule, we have changed ‘‘riparian zone (c)(6) has been revised and is included extent such a determination exists. vegetation’’ to ‘‘vegetation growing as part of final paragraphs (c)(6)(i) and In final paragraph (c)(6)(ii) we begin along the banks of each stream’’ and (ii). Final paragraph (c)(6)(i), now to explain the substantive stream ‘‘percentage of the riparian zone that is requires the applicant to map and assessment requirements. This forested’’ to ‘‘[t]he extent to which separately identify all perennial, paragraph was located in the proposed streamside vegetation consists of trees intermittent, and ephemeral stream rule at 780.19(c)(6)(i). Some commenters and shrubs’’. Second, final paragraph segments within the proposed permit opposed the proposed rule because (c)(6)(iv) now states that ‘‘[y]ou must area and all perennial and intermittent many of the requirements were identify the parameters responsible for stream segments within the adjacent inapplicable to ephemeral streams. In the impaired condition and the total area. In the proposed rule, these response, we have divided this portion maximum daily loads associated with requirements would have extended to of the rule into two separate those parameters, when applicable.’’ ephemeral streams adjacent to the categories—perennial and intermittent This language is clearer than the general permit area as well, but this requirement streams, and ephemeral streams. For reference to stressors in the proposed has been eliminated in the final rule perennial and intermittent streams, final rule, as this has been replaced with because we have determined that the paragraph (c)(6)(ii)(A) requires the same identification of the parameters that data collected from adjacent ephemeral amount of information as in the cause the impaired condition. streams would serve no useful purpose proposed rule; however, because this We have also made a substantive within a SMCRA permit as there are no type of information is not easily change to final paragraph (c)(6)(iii) by performance standards or reclamation attainable and would not be useful adding an additional requirement—a requirements pertinent to ephemeral within these final regulations, we have scientific calculation of the species streams in adjacent areas. That is not the now excluded ephemeral streams from diversity of the vegetation. This case for ephemeral streams within the these requirements. Now, in final addition was made in response to proposed permit area because final rule paragraph (c)(6)(ii)(B), we require only a comments from other federal agencies §§ 780.27 and 816.56 establish description of the general stream- that stated it will assist the regulatory permitting and reclamation channel configuration of ephemeral authority in documenting baseline requirements that apply when mining in streams within the proposed permit conditions with an appropriate level of or through an ephemeral stream. For the area. detail and better ensure restoration of purposes of clarity and continuity, In response to comments claiming any streamside vegetative corridors proposed paragraph (c)(6)(iv) has been this portion of the rule was confusing damaged or destroyed by mining in or moved to final paragraph (c)(6)(i)(B), when it referred to ‘‘riparian zone’’ near streams. We agree and have and proposed paragraph (c)(6)(v) has vegetation, the requirements within modified the final rule accordingly. been moved to final rule (c)(6)(i)(C). In proposed rule paragraphs (c)(6)(ii) and Many commenters raised concerns final paragraph (c)(6)(i)(C), we have also (vi), now final paragraphs (c)(6)(iii) and about the data we are requiring in final clarified that any map of streams must (iv), have been revised for clarity. First, paragraphs (c)(6)(ii) and (iii). Some be consistent with any U.S. Army Corps final paragraph (c)(6)(iii) now specifies commenters recommended that we of Engineers determination of the the types of vegetation that we were identify specific methodologies that locations of transition points from referring to when we proposed to would be used to gather these data ephemeral to intermittent and from require a description of ‘‘riparian zone required in the final rule within

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93166 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

§ 780.19(c)(6)(ii) and (iii). Other wetlands damaged or destroyed by We agree with these commenters in commenters requested that the mining in or near streams. This part and, as discussed below, have applicant have the option of collecting assessment requirement is consistent removed provisions requiring the vegetative information using aerial with 515(b)(19) of SMCRA 359 which determination of the biological mapping and/or other geographic requires establishment of ‘‘a diverse, condition of all ephemeral streams and information system data or effective, and permanent vegetative those intermittent streams without methodologies. According to these cover of the same seasonal variety established scientifically defensible commenters, the methodologies for native to the area of land to be affected bioassessment protocols within the state collecting these data should be left to and capable of self-regeneration and or region where the proposed mining the discretion of the regulatory authority plant succession at least equal in extent will occur. However, we disagree with due to varying regional and site specific of cover to the natural vegetation of the these commenters in other respects. conditions and should be determined on area.’’ Arid and semi-arid states across the a case-by-case basis. We agree with In the proposed rule, paragraph (e) United States have scientifically other commenters that suggested the on- contained the requirements related to defensible bioassessment protocols for the-ground locations of the data points the assessment of the biological perennial streams and/or intermittent should be determined as a collaborative condition of streams. In the final rule, streams that have been established by effort between the regulatory authority we revised these requirements and Clean Water Act authorities and these and the applicant and that specific moved them to paragraphs (c)(6)(vi) and protocols consider geographic and methodologies should not be identified (vii). As finalized, an assessment of the annual variation of macroinvertebrate in this rule. The regulatory authorities biological condition is required for each populations. In their comments, several are in the best position to assess the perennial stream within the proposed SMCRA regulatory authorities in the methodologies, protocols, and locations permit area and within the adjacent area western states provided evidence of acceptable for the data collection that could be affected by the proposed rigorous protocols for determining the requirements within the final operation. For intermittent streams, the biological condition of perennial paragraphs (c)(6)(ii) and (iii). In some biological condition assessment streams that are already in place.360 situations, the regulatory authority may requirements apply to each intermittent Also, the U.S. Environmental Protection determine that it is scientifically stream within the proposed permit area Agency has established a scientifically defensible to use aerial mapping and/or and within the adjacent area that could defensible bioassessment protocol and other geographic information system be affected by the proposed operation, accompanying indices that are valid on data when sampling during the correct but only if a scientifically defensible all perennial streams within the 48 361 time of year, for example during full bioassessment protocol has been conterminous states, further leaf-out, to determine the extent to established to assess intermittent supporting the requirement of sampling which streamside vegetation consists of streams in the state or region in which protocols and indices in perennial 362 trees and shrubs and the percentage of the stream is located. Under the rule streams. The ability to obtain channel canopy coverage as required in finalized today, we have eliminated the information through bioassessment final paragraphs (c)(6)(iii)(B) and (C). requirement to assess the biological protocols is currently available on However, we decline to revise the rule condition of all ephemeral streams and national, regional, and state levels and to provide the regulatory authority with those intermittent streams in states or the ability to establish effective baseline the discretion to eliminate some of these regions in which there are no information on all perennial streams, no established scientifically defensible requirements altogether. These matter the size, habitat type, or bioassessment protocols available; these requirements are all necessary to attain vegetative cover is attainable using the changes will be discussed in more detail the appropriate level of detail for best technology currently available. below. establishing the baseline condition on Many commenters opposed the 360 See Arizona Department of Environmental the site for future monitoring and to proposed requirements for assessing Quality. Implementation Procedures For the assess reclamation success. biological condition because of the Narrative Biocriteria Standard. (2015); Colorado Final paragraph (c)(6)(v) has been Dep’t. of Pub. Health and Env’t. Water Quality alleged limited applicability of these Control Div.—Monitoring Unit. Development of modified to include a requirement for provisions within semi-arid and arid Biological Assessment Tools for Colorado; M. assessing the extent and quality of regions. As support, these commenters Tepley, Montana Rivers and Streams Assessment. streamside wetlands. This requirement noted that the preamble to the proposed Cramer Fish Sciences, Lacey Office, (2013); Utah applies to all perennial, intermittent, Dep’t. of Envtl. Quality, Div. of Water Quality. 2014. rule only discusses evidence supporting Utah Comprehensive Assessment of Stream and ephemeral streams within the these requirements with examples from Ecosystems; E.G. Hargett, The Wyoming Stream proposed permit area and for all West Virginia and other areas with 26 or Integrity Index (WSII)—Multimetric Indices for perennial and intermittent streams more inches of average precipitation per Assessment of Wadeable Streams and Large Rivers in Wyoming. Wyoming Dep’t. of Envtl. Quality within the adjacent area, and it requires year. In addition, the proposed rule Water Quality Div. document #11–0787, (2011); the identification of the extent of required the use of a bioassessment U.S. Envtl. Prot. Agency, Information on wetlands adjoining streams and a protocol for all stream types, which Bioassessment and Biocriteria Programs from description of the quality of those many commenters alleged would have Streams and Wadeable Rivers. https:// www.epa.gov/wqc/information-bioassessment-and- wetlands. We added this paragraph in very little value because of a lack of biocriteria-programs-streams-and-wadeable-rivers response to comments from other baseline studies to use as a reference. (last accessed Oct. 21, 2016). federal agencies that recommended They also noted that natural stream 361 For the 48 conterminous states, U.S. Envtl. additional protections for wetlands in conditions are highly variable in arid Prot. Agency, National Rivers and Streams Assessment: Field Operations Manual. EPA–841–B– the final rule because wetlands have and semi-arid areas both aerially and 07–009. Washington, DC (2007). vegetation not normally associated with from stream to stream, and this makes 362 Alaska is scheduled to have these protocols other types of habitat. This change will it difficult to determine a mine’s and indices established in 2020. Further, ‘‘AKMAP assist regulatory authorities in impacts on the biological condition of statistical surveys can provide baseline information documenting baseline conditions with for protection and restoration actions.’’ See, Alaska streams. Dep’t. of Envtl. Conservation. Alaska Clean Water an appropriate level of detail in order to Five-Year Strategic Plan Fiscal Years 2016–2020, p. better ensure restoration of any 359 30 U.S.C. 1265(b)(19). 5 (2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93167

Some commenters recommended that occur, all streams within the influence values may be used independently to we use biological assessments that focus of the operation need an appropriate provide conclusive evidence that water on terrestrial productivity to assess the level of knowledge specific to each quality standards are or are not biological condition of streams, such as stream to be able to comprehensively attained.368 But more importantly, as yield in pounds per acre, percent measure these offsite impacts (if they used in this rule, bioassessments (using groundcover, stems per acre, tree occur). And because these offsite at a minimum, macroinvertebrate diameter at breast height, livestock impacts may encompass many different sampling) are part of a suite of average daily gains, and species types of effects (e.g., physical, chemical, scientifically defensible data that will be frequency. We disagree because these biological, human-related) to surface used. These bioassessments also include assessments do not assess the aquatic waters off of the permitted site at any physical, chemical, and other biological biota as accurately as the bioassessment time or in any location, this level of attribute measurements to determine protocols we are requiring in the final detail using the best technology baseline condition and to monitor the rule and, thus, are not the best currently available is warranted. operation through final bond release. In technology currently available to assess Second, small perennial streams that addition, regulatory authorities the effects of mining on perennial occur within the proposed permitted routinely use bioassessment protocols streams. site may differ in physical, chemical, for practical and compliance purposes, One commenter requested we remove and biotic attributes from those adjacent including total maximum daily load all bioassessment protocols because to the proposed permitted site. If development and monitoring, streams were already being reclaimed perennial streams from areas adjacent to measuring national pollutant discharge successfully. We disagree. There are the permit are used for this baseline elimination system permit compliance, documented instances of streams survey, the attributes and biological analyzing and establishing best adversely affected by mining across the assemblages that contain localized and practices for restoration, and measuring United States. In addition, these unique species within the permit may the progress of stream restoration. baseline assessments are not solely be missed.365 Assessing only a subset of Similar to our discussion in the designed to monitor the reclamation of perennial streams within the proposed preamble to the proposed rule, we streams, but also to monitor streams that site may also lose this type of biological anticipate that the SMCRA regulatory are not approved for disturbance but resolution and is not appropriate when authority, with assistance from the may be impacted by the operation. SMCRA requires the operation to appropriate Clean Water Act agencies, Across all coal bearing regions, since the minimize effects to water quality and will define the range of values required approval of state run regulatory quantity as required by section to support each designated use and 366 authorities, examples of surface water 515(b)(10) of SMCRA, and to fish and premining use of the stream.369 The impacts have been identified.363 While wildlife and related environmental SMCRA and the Clean Water Act many of these effects are minor and values as required by 515(b)(24) of authorities have the knowledge and 367 moderate, they also involve off-site SMCRA. In summary, the perennial history to provide permit applicants impacts. Other impacts are not currently streams under these requirements may with a robust protocol that will define detected, and this rule is designed to contain rare, sensitive, and important the range of values required to support improve the baseline analysis to further habitat and small populations of rare each existing and applicable Clean detect the potential for offsite impacts, and sensitive organisms that are not Water Act water quality standards of the to detect unplanned impacts, and to likely to be comprehensively cataloged stream in question. The final rule minimize these off-site impacts using without thoroughly sampling the simply codifies a minimum requirement the best technology currently available. potential permitted site. Third, it is to incorporate within this protocol a We are retaining these requirements. incumbent that the permittee provide measurement of aquatic organisms These baseline assessments of the assurance that effects of the operation (benthic macroinvertebrates), a biological condition of streams where on federal, state, and tribal-listed calculated values for habitat (including scientifically defensible protocols exist threatened and endangered species have vegetation), and assessments of water will allow for appropriate stream been properly assessed. quality and quantity. The baseline Another reason the commenters assessment and monitoring and will biological, physical, and chemical offered for deleting these mandatory result in minimization of effects to fish, assessments of these streams will also wildlife, and environmental resources bioassessments was that these bioassessment protocols have allow the regulatory authority to consistent with the requirements of provide guidance to operators on ways section 515(b)(24) of SMCRA.364 historically been conducted for a different purpose: As part of a suite of to prevent material damage to the Some commenters also recommended hydrologic balance outside of the that we eliminate the requirement for metrics (i.e., scientifically defensible data) used and not a stand-alone tool to permitted area because these baseline bioassessments of every perennial measurements can be compared with stream potentially affected by the characterize the nature of an ecosystem or community. We did not alter the rule the measurements needed to support proposed operation. These commenters each designated use and premining use suggested we use a representative in response to these comments and are retaining these bioassessments as of the stream in question. The stream sample or solely streams from comparison between the values, adjacent areas, which they claim would specified in final paragraph (c)(vii). The U.S. Environmental Protection Agency including index values, and the baseline suffice to assess baseline condition and measurements is based upon substantial monitor reclamation within the first established the policy that scientifically defensible biocriteria studies and scientific support, and it is proposed permit. We disagree. First, appropriate to conduct monitoring of because offsite impacts are to be 365 Judy L. Meyer, et al., The Contribution of avoided or minimized when they do Headwater Streams to Biodiversity in River 368 T.T. Davies, Memorandum to Water Networks, Journal of the American Water Resources Management Division Directors, Transmittal of 363 Representative sample of SMCRA regulatory Association (JAWRA) 43(1):86–103. DOI: 10.1111/ final policy on biological assessments and criteria. authority Notice of Violations across the United j.1752–1688.2007.00008 (2007). U.S. Envtl. Prot. Agency. Washington, DC (June 19, States. 366 30 U.S.C. 1265(b)(10). 1991). 364 30 U.S.C. 1265(b)(24). 367 Id. at 1265(b)(24). 369 80 FR 44436, 44475 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93168 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

streams potentially impacted by coal measures in field and laboratory design assemblage or community under study mining activities using these protocols. and operations and statistical analysis and are sensitive to stressors beyond the One commenter requested that we techniques to provide comprehensive permitted site, and provide a response address whether the biological data integrity. This protocol also that can be discriminated from natural assessments currently employed for includes a section that describes the variation. Again, each permit can rely Clean Water Act section 404 370 recommended training, on the National Rivers and Streams permitting will suffice. If the assessment communications, safety considerations, Assessment for streams to provide the includes all of the characteristics safety equipment and facilities, and minimum requirements found in this required in this final rule and its safety guidelines for field operations. final rule because this assessment is implementing regulations, the Clean This protocol addresses quality scientifically defensible in the 48 Water Act section 404 assessment will assurance and quality control issues and conterminous states. suffice. This commenter was also is valid throughout the 48 conterminous Several commenters opposed our use concerned that these bioassessment states; therefore, it may be used to assess of bioassessment indices as one way to requirements could result in needless and monitor SMCRA-permitted describe ecological function. They noted data duplication that may delay operations. Final § 780.19(c)(6)(vii)(E) that well-respected aquatic ecologists, permitting issuance and potentially includes a requirement to describe the including one ecologist we have cited conflict with the Clean Water Act and technical elements of the bioassessment and relied upon within the proposed the U.S. Army Corps of Engineers protocol, including, but not limited to rule, have not been able to agree on requirements. We understand this sampling methods, sampling gear, index metrics of ecological function in stream concern. Final § 780.19(h) requires period, sample processing and analysis, networks, let alone on the ability to coordination between the SMCRA and quality assurance/quality control restore them. As one example, regulatory authority and the Clean procedures; an appropriate, commenters referred to the Maryland Water Act authority. Coordination may scientifically defensible bioassessment Stream Restoration Association, and include baseline data collection points would have this information readily these commenters asserted that this and parameters and the sharing of data available. association has not yet agreed on such to the extent practicable and consistent metrics for streams in the Appalachian Commenters also expressed concern with each agency’s mission, statutory counties of Maryland. We attempted to with the proposed rule’s reliance on the requirements, and implementing corroborate the commenters’ assertion, information created by the regulations. This will minimize delays, but we could not find a source for this data duplication, and conflicting bioassessments. Specifically, they noted disagreement on the metrics for the requests. that the proposed rule did not account Appalachian counties of Maryland. We Commenters also voiced concern over for changes in biodiversity of a did, however, discover that the official the quality control that the regulatory perennial stream or other surface waters Web site of the Maryland Stream authority would use for these caused by outside sources during the Restoration Association includes at least bioassessments. These commenters life of the permit. We disagree. Final one reference to a protocol for adequate indicated that strict quality controls to § 780.19(c)(4)(i) requires sampling stream restoration within the accurately determine the perennial upgradient and downgradient of the Chesapeake Bay watershed, which stream condition would be difficult to proposed permit area in each perennial includes many references and examples execute and requested that the and intermittent stream within the of using biological indices to measure regulatory authority be provided proposed permit and adjacent areas. ecological function on restoration discretion to either modify or eliminate This sampling array will account for projects.371 Additionally, the Maryland bioassessment protocols. One potential effects from outside sources. In Department of Natural Resources uses commenter specified that the regulatory addition, the protocols and indices we bioassessment protocols (with authority should be able to use its are requiring have been established identification to the genus level for discretion to grant waivers of this while considering natural spatial and regulatory actions) for restoration requirement to protect the safety of the annual variation. Determining the targeting and measuring restoration individuals performing the studies. We effects of human activity in streams progress for Maryland’s wadeable disagree that quality control for these involves the establishment of reference streams.372 These Maryland Department bioassessments would be too difficult to streams and conditions. This process of Natural Resources references further execute. We also decline to make these includes the sampling of aquatic biota support our requirement for use of bioassessments optional. These and the habitat (e.g., geography, scientifically defensible bioassessments bioassessment protocols, both at the altitude, vegetation, attributes of the because they demonstrate that adequate state and federal level are designed to physical stream channel and protocols can be, and have been, address quality control throughout the surrounding area, and water chemistry) developed for the measurement of design, data collection, and analysis in and adjacent to the stream. These ecological function. Ecological function phases. These protocols were developed data are collected to determine reference is more thoroughly addressed in our specifically to consider the safety of and non-reference streams and produce preamble discussion of our definition of those performing the protocols and we consistent results. Once these reference that term in § 701.5 above. anticipate that the bioassessments will streams and conditions are established, Several commenters stated that there be conducted consistent with the safety index thresholds are then established, are other scientifically defensible of those performing the assessments. If and these will be used to make bioassessment protocols that could be a state protocol is not available that assessments and monitor streams. This includes these quality and safety is also mainly an iterative process, 371 Joe Berg, et al., Recommendations of the procedures, the ‘‘National Rivers and where reference streams and conditions Expert Panel to Define Removal Rates for Individual Streams Assessment 2013/2014 Field are sampled, resampled, and Stream Restoration Projects: FINAL REPORT, Operations Manual for Wadeable reanalyzed, and the index may be Urban Stormwater Work Group Chesapeake Bay Partnership (2012). Streams’’ includes quality assurance refined as time passes and more data are 372 Maryland Biological Assessment Methodology collected. These metrics are also for Non-Tidal Wadeable Streams, Last Revised on 370 33 U.S.C. 1344. ecologically relevant to the biological June 4, 2014.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93169

used to assess and monitor the habitat condition. Final paragraph bioassessment protocols available. biological condition of streams and (c)(vii)(E) requires the operator to Generally, the best technology currently recommended that we allow other describe the technical elements of the available in many areas for these types bioassessment protocols and the protocols, including, but not limited to; of streams does not include multimetric bioassessments that were in sampling methods, sampling gear, index bioassessment protocols because the proposed rule. We agree with this period, sample processing and analysis, application of those protocols would not recommendation. Further, we recognize and quality assurance/quality control produce reliable, substantive that many states are not currently using procedures. These two requirements are information that the regulatory authority multimetric macroinvertebrate sampling included to provide sufficient would be able to use to assess stream that use an index of biological integrity. information to the regulatory authority function or to monitor reclamation Therefore, we have revised the final rule that the bioassessment to be used will success. in response to these comments to allow be appropriate and scientifically Therefore, we did not include these for the use of other scientifically defensible; for scientifically defensible requirements in the final rule. However, defensible bioassessment protocols as bioassessments, this information should these intermittent and ephemeral long as specific minimum requirements be readily available. These measures are streams represent a large proportion of are satisfied. In paragraphs (c)(vii)(A) supported by current science and are the stream lengths within watersheds, through (D) of the final rule we clarify also in response to comments described especially in semi-arid and arid the minimum requirements for above regarding the concern over the environments, and need to be assessed scientifically defensible bioassessment bioassessment protocols containing the with a degree of scientific rigor. Current protocols. This includes a measurement proper quality control and safety science provides examples of watershed management and resource protection that is based upon an appropriate array procedures. A publication by the U.S. only having limited success if non- of aquatic organisms, that at a minimum Environmental Protection Agency in perennial streams are excluded from includes benthic macroinvertebrates, 2013 identified 13 technical elements of assessments and reclamation identified to the genus level where biological assessment programs and activities.376 One reason for the possible, otherwise to the lowest included recommendations on how to more precisely define aquatic life uses importance of these streams is that their practical taxonomic level. We retain the and approaches for deriving biological natural, seasonal flow provides minimum requirements to sample criteria, monitoring biological significant exports to the downstream benthic macroinvertebrates as they are condition, supporting causal analysis, habitat such as nutrients and processed particularly useful for assessing the and developing-stressor response organic matter.377 In addition, these biological condition of the stream relationships.373 This publication serves small streams and their associated because they are diverse, abundant, as resource to determine the scientific adjacent vegetative communities can sensitive to environmental stress, rigor of potential bioassessment differ widely in physical, chemical, and relatively immobile (compared to fish), protocols to be used.374 biotic attributes and provide habitats for and many macroinvertebrates have Many commenters supported a range of species that may not be able relatively long life cycles of at least a biological condition assessments for all to persist in perennial stream reaches year. These characteristics of streams and other commenters due to competition, predation, invasive macroinvertebrates integrate the effects supported only including them for species, or abiotic factors.378 Permanent of environmental stressors over time intermittent and perennial streams. As a residents as well as migrants travel and therefore are good indicators of result of comments we received and our through ephemeral and intermittent local conditions as well as upstream reanalysis of the proposed rule’s stream channels at particular seasons or land and water resource conditions. We biological condition requirements, we life stages, and this movement links do not require fish sampling and other removed the provisions of proposed headwaters with downstream and organism samplings (such as paragraph (e) that would have assessed adjacent terrestrial ecosystems.379 periphyton) in our final rule; however, the biological condition of all Therefore, although we are not requiring regulatory authorities have the intermittent streams and a the use of a scientifically defensible discretion to require other sampling representative sample of ephemeral bioassessment protocol for these streams protocols. Additionally, the protocol streams in those states or regions in if one does not currently exist, final must result in the calculation of index which there are currently no established paragraphs (c)(6)(ii) and (iii) require the values for both stream habitat and scientifically defensible bioassessment assessment of the physical structure of aquatic biota based on the reference protocols available. For all intermittent the channel and a habitat assessment of condition. We included the terms and some representative number of the vegetative communities within and ‘‘stream’’ before habitat and ‘‘aquatic ephemeral streams, the proposed rule adjacent to ephemeral streams and those biota based on the reference condition’’ would have required adherence to a instead of only macroinvertebrates as multimetric bioassessment protocol.375 376 Catherine Leigh, et al., Ecological research proposed, as these more appropriately Many commenters correctly noted that and management of intermittent rivers: an historical review and future directions. Freshwater describe the requirements due to the it is currently impractical to require the inclusion of other types of Biology (2015). assessment of the biological condition of 377 Raphael D. Mazor, et al. Integrating bioassessments other than multimetric ephemeral streams and of those intermittent streams into watershed assessments: indices that use an index of biological intermittent streams in states or regions Applicability of an index of biotic integrity. integrity. We revised final paragraph in which there are no established Freshwater Science, pgs. 459–474 (2011). (c)(vii)(C) and added paragraphs 378 Emily S. Bernhardt and Margaret Palmer. The environmental costs of mountaintop mining valley (c)(vii)(D) and (E) to provide clarity with 373 U.S. Envtl. Prot. Agency, Biological fill operations for aquatic ecosystems of the Central respect to the appropriate final Assessment Program Review: Assessing Level of Appalachians. Annals of the New York Academy of characteristics of the required Technical Rigor to Support Water Quality Sciences, 1223.1: 39–57 (2011). bioassessment protocols. Final Management. Washington, DC, EPA 820–R–13–001 379 Judy L. Meyer, et al. The Contribution of (2012). Headwater Streams to Biodiversity in River paragraph (c)(vii)(D) requires the 374 J.E., Allende, Rigor: The essence of scientific Networks. Journal of the American Water Resources protocol to include a quantitative work, Elec. Journal of Biotechnology, 7(1), (2004). Association (JAWRA) 43(1):86–103. DOI: 10.1111/ assessment of in-stream and riparian 375 33 U.S.C. 1251(a) or 1313(d). j.1752–1688.2007.00008.x (2007).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93170 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

intermittent streams in states or regions serves as a reliable national resource for (Wadeable Streams) prohibits sampling in which there are no scientifically sampling streams, including of sites with water in less than 50% of defensible bioassessment protocols. intermittent streams. Of critical the reach length. It also specifies that all Without established scientifically importance to the sampling of sites must be sampled during base flow defensible bioassessment protocols, intermittent streams is the correct conditions. In addition, the these assessments of the physical timing of sampling. The protocol in the coordination with the appropriate Clean structure of the channel and an National Rivers and Streams Water Act authorities will help establish assessment of the vegetative Assessment 2013–2014 Field Operations the appropriate sampling dates for the communities are part of the best Manual for Wadeable Streams requires streams in question. technology currently available to greater than 50 percent water We received support for the describe the streams and provide the throughout the channel reach to execute identification of macroinvertebrates to regulatory authority with significant, sampling. The manual also advises the genus level within proposed useful, and scientifically defensible against sampling when precipitation paragraph (e)(2)(i), now included within information to determine how to results in streamflow above baseflow. final paragraphs (c)(6)(vii)(A) and minimize the operations’ effects to fish, The appropriate time to sample (c)(6)(viii)(B), along with an assessment wildlife, and related environmental intermittent streams is normally of every stream segment potentially resources consistent with section narrower than appropriate sampling of affected by the permit. However, one 515(b)(24) of SMCRA.380 These perennial streams, simply because of the commenter wanted us to specifically requirements are consistent with amount of time when proper water flow mention the limitations of these proposed paragraphs (i) and (ii) and are exists. When conducted during the methods for assessing impacts to species discussed in further detail above. correct time of year, this one-time sensitive to water-quality degradation, In addition to the requirements of sample will provide the regulatory including federally-listed threatened final paragraphs (c)(6)(ii) and (ii), final authority with a description of the biota and endangered species. Several paragraph (c)(6)(viii) requires, at the within these intermittent streams and supporters of the proposed rule also time of application, a description of the provide significant and useful requested we require more sampling. results of a one-time sampling of the information to determine how best to For example, commenters suggested aquatic biota of each intermittent stream minimize the adverse impacts of the sampling fish to the species level, bird segment in states or regions in which operation on fish, wildlife, and related surveys, and hyporheic zone there are no established bioassessment environmental resources consistent with assessments in addition to protocols available. Final paragraph section 515(b)(24) of SMCRA.382 These macroinvertebrate data collection. Final (viii) requires that these one-time assessments will also help the paragraph (c)(6) sets out the minimum sampling events use a sampling method regulatory authority determine if any sampling requirements. We decline to or protocol established or endorsed by species of special concern are present add other requirements. The regulatory an agency responsible for implementing within these stream reaches. These authority always has the discretion to the Clean Water Act, 33 U.S.C. 1251 et assessments are not intended to be used require additional measures as seq.381 Although indices for the for analyses other than to identify those appropriate to their region or to the bioassessment of intermittent streams species that are found within these particular permit under consideration. are not currently widely available, streams and to aid in identification of Other commenters opposed the effective and scientifically defensible the types of communities present (e.g., requirement in final paragraph protocols exist nationwide (the best coldwater stream community). (c)(viii)(A) to identify current technology also includes the Other commenters requested we macroinvertebrates to the genus level. proper Quality Assurance and Quality include an addition to the rule that These commenters alleged that such a Control) to sample intermittent streams requires a strict adherence to the requirement is unnecessary, too for the identification and cataloging of approved bioassessment protocol (e.g., expensive, and family level the biota found within streams. The best sampling gear, sample index period, identification is preferred and already technology currently available for this sample anniversary dates, and sample performing adequately. We disagree. one time sampling event are frequently processing methods). This commenter While genus-level identifications are the protocols for the bioassessments also voiced a concern that sample more expensive to process than family- described above for perennial and some periods for small perennial streams level identifications, they are also the intermittent streams, but without the (those most likely to be directly affected best technology currently available and further scientific analysis and by mining activities) are shorter than allow for increased specificity, or degree determination of index values. These those for larger perennial streams. of detail, of the biology that exists in one-time sampling events must also According to the commenter, we should streams. Further, most scientifically possess the same quality control and prescribe sampling times that avoid defensible protocols now require genus- safety considerations as the early season and late-summer index level identification in their scientifically defensible bioassessment periods because these streams are bioassessments when possible. Also, protocols. As an example, the ‘‘National typically hydrologically stressed and many studies show that genus-level Rivers and Streams Assessment 2013– they tend to score poorly (e.g., reduced identification provides both a greater 2014 Field Operations Manual for species diversity and richness) in many degree of confidence on the condition of Wadeable Streams’’ published by the indices during these times. We decline streams and a certain degree of U.S. Environmental Protection Agency to adopt this recommendation because knowledge about what types of stressors the protocols, requirements, and are affecting streams if they are 380 30 U.S.C. 1265(b)(24). updates incorporated into the final rule undergoing stress. In the vast majority of 381 For example, the U.S. Envtl. Prot. Agency has discussed above address this concern. situations, these genus-level a sampling protocol applicable across the nation. For example, the U.S. EPA National identification tools, when compared to National Rivers and Streams Assessment: Field Rivers and Streams Assessment 2013– family level identification tools, detect Operations Manual. (2007) EPA–841–B–07–009. U.S. Envtl. Prot. Agency, Washington, DC. This is 2014: Field Operations Manual smaller differences in water quality and just one example, more regional specific protocols are therefore preferred, not only for may exist. 382 30 U.S.C. 1265(b)(24). assessment purposes but for monitoring

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93171

purposes.383 We also recognize that may not have or use numerical commenters supported their use while there may be instances where it is not bioassessment methods. We disagree. many claimed they were not effective. possible to identify to genus and an This requirement harmonizes a state’s We also invited commenters to suggest identification is needed due to a small Clean Water Act bioassessment methods other approaches that may be equally or sample size or other limiting factors, and the SMCRA requirements found in more effective. We received several such as situations when an paragraph (c). Moreover, final paragraph suggestions, including: Solely identification is needed and only a (c)(6)(vii) requires applicants to use qualitative measures; yield in pounds partial body is available for either a method approved by the state per acre, percent groundcover, stems per identification, the specimen is not the Clean Water Act authority or ‘‘other acre, diameter at breast height, livestock correct sex, or not within the scientifically-defensible bioassessment average daily gains, and species appropriate life stage to identify to protocols accepted by agencies frequency; a standard that simply says genus level. Therefore, final paragraph responsible for implementing the Clean that there is no material damage to the (c)(6)(viii)(B) now states that the Water Act, 33 U.S.C. 1251 et seq., hydrologic balance outside the permit applicant must identify benthic modified as necessary to meet the area if there is no change in designated macroinvertebrates to the genus level following requirements’’. Thus, a use of the receiving stream as described where possible, otherwise to the lowest SMCRA regulatory authority in a state by the Clean Water Act regulatory practical taxonomic level. This without existing bioassessment methods authority attributable to surface coal provision also allows for higher-level approved by a state or tribal Clean mining; Water Quality Standards and identifications where classifications of Water Act authority must either develop Physical Habitat scoring are both more taxa such as flatworms, water mites, and a method acceptable to the Clean Water dependable measures with replicable oligochaetes are not practicable. In most Act authority or use another results that are not subject to as many instances, identification to the genus scientifically defensible bioassessment variables both in the environment and level is appropriate for samples in all protocol accepted by agencies sample methodology; standardized life stages. responsible for implementing the Clean qualitative assessments for intermittent One commenter opposed our use of Water Act, such as the U.S. streams; premining and postmining extrapolated measurements within the Environmental Protection Agency’s qualitative biological and habitat bioassessment protocols. This National River and Streams Assessment assessments made at the appropriate commenter opposed these by stating for Wadeable Streams. time to determine if and where that in other sections of the proposed The commenter also maintained that macroinvertebrates, fish, or amphibians rule we will no longer allow the use of bioassessments and are present in intermittent streams. extrapolated data because our past correlation index values are not Although we appreciate the suggestions, experience indicates that extrapolation reasonable for isolated locations in these alternatives do not adequately is not a reliably accurate method to streams that have highly variable flow assess the biological functions of document and describe seasonal conditions. In response, we note that streams as accurately as bioassessment variation in chemical parameters; requirement for biological condition protocols described in the final rule and therefore this rule should be consistent data in paragraph (c)(6) only applies to are not the best technology currently and not use an extrapolated biological (1) all perennial streams and (2) any available. intermittent streams in a state or region index value based on arbitrarily Final Paragraph (d): Additional developed correlation methods to with a scientifically defensible bioassessment method. If no Information for Discharges From establish a standard for reclamation Previous Coal Mining Operations success. We disagree. We have bioassessment methods exist for A commenter from a regulatory experienced inaccuracies and other intermittent streams, then the agency suggested that we define the problems with the extrapolation of requirements to obtain biological term ‘‘discharge.’’ We agree that this seasonal variation in chemical condition data included in paragraph term could be clarified and have parameters while gathering baseline (c)(6) applies only to perennial streams included the modifier ‘‘point-source’’ data and it is an established problem, on the permitted and adjacent area. We are also not aware of any type of before discharge in the final rule. In this while the extrapolation of biological situation the commenter describes in section, we also removed the condition data is a standard that has which hydrologic conditions are limited requirement to obtain biological been produced and replicated within to such a small area and to such few condition information because it was scientifically defensible bioassessment streams that development of biological redundant with § 780.19(c)(6), which protocols. requires essentially the same A regulatory authority commenter and correlation index values is precluded.384 Hydrologic data may have information. indicated that the requirement in Several commenters suggested that a proposed paragraph (e)(2), now final widely variable temporal and spatial characteristics, but it typically forms single, low-flow sample representing paragraph (c)(6)(vii), to use a patterns that cover areas large enough to baseline for each mine discharge located bioassessment method that is approved enable development of scientifically over and adjacent to a mine site does by the state Clean Water Act regulatory defensible bioassessment protocols. not make sense in light of the authority appears to be in direct conflict We sought comments within the requirement for twelve evenly-spaced with the state’s water quality laws and proposed rule at 780.19(e) on the monthly baseline samples in paragraphs standards. The commenter opined that effectiveness of using index scores from (b) and (c) to characterize groundwater this requirement places an additional bioassessment protocols to ascertain and surface water baseline conditions. burden on the state regulatory authority impacts on existing, reasonably Some commenters suggested that no to review, approve, and validate foreseeable, or designated uses. Many sample was necessary for the discharges bioassessment protocols when a state from previous operations due to the 384 Again, we reference the U.S. Entl. Prot. volume of sampling required for surface 383 D.R. Lenat and V.H. Resh, Taxonomy and Agency’s National Rivers and Stream Assessment as water and groundwater characterization. stream ecology—the benefits of genus-and species- a scientifically defensible bioassessment for all level identifications. Journal of the North American perennial streams within the forty-eight We understand the seeming Benthological Society, 20(2), pp. 287–298 (2011). conterminous states. contradiction in sampling frequency

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93172 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

between surface water and groundwater determining if a remining operation is appropriate. This is a and mine discharges, but these further degrading the form, hydrological mischaracterization of the proposed rule regulations are an adequate basis to function, biological condition, or text; there is no language in the establish the minimum regulatory ecological function of an existing stream paragraph that requires or implies ‘‘all’’ authority standards. The low flow segment. streams must be characterized. We period is the most critical period to Final Paragraph (e): Geologic require the operator to obtain the understand mine discharges because it Information information necessary to assess the is at that period when the impacts of both the proposed operation concentrations of water quality Some commenters suggested that the and all anticipated mining on surface- parameters are the highest in both the requirement at proposed paragraph water and groundwater systems in the discharge and receiving streams. Thus, (f)(3)(iii), now paragraph (e)(3), to obtain cumulative impact area. Further, a sample collected during this time is pyritic sulfur and alkalinity information nothing in § 780.21 of the proposed or most likely to reveal potential issues as should only apply to regions where it is final rule, which sets the requirements compared to samples taken during necessary to acquire such data to for the preparation and review of the higher flows when concentrations are prevent acid mine drainage. Under cumulative hydrologic impact diluted. Of course, state regulatory paragraph (e)(5), the regulatory assessment, requires or implies that authorities have the discretion to authority has the discretion to waive the ‘‘all’’ streams must be characterized to require whatever sampling frequencies pyritic sulfur and alkalinity data if determine the cumulative hydrologic for discharges that they consider information exists to support the impacts. Therefore, the commenter’s necessary to make technical assessments regulatory authority’s written finding. concerns are misplaced, and we have and associated findings for permits We note, however, that we are unclear made no changes to the final rule based within their jurisdiction. For the reasons how not collecting the alkalinity and on this comment. pyritic sulfur is beneficial in any identified above, we are not revising the Another commenter pointed out that manner. The applicant must conduct an sampling requirements for mine proposed paragraph (g), now final analysis of the geochemical nature of discharges. paragraph (f), requires the regulatory the strata to be removed and assess the One commenter suggested that the authority to obtain all hydrologic, net neutralization potential of the entire language pertaining to the required geologic, and biologic information overburden column. To do so, every sampling for previous mine operations necessary to perform the cumulative stratum needs to be tested, its net was imprecise and further questioned hydrologic impact assessment. They whether abandoned and permitted neutralization potential calculated, and opined that it places an extraordinary discharges were required to be sampled. an analysis made of the overall net huge burden on the regulatory authority The final rule language requires neutralization of all the overburden on to obtain all this data and this rule sampling of all discharges from the site. Only in cases where the strata appears to require the regulatory abandoned mine sites found on and can be shown through existing authority to research proposed adjacent to a proposed mining operation information to historically produce net cumulative hydrologic impact that might have a hydrologic connection alkaline effluent would it make sense to assessments, when the traditional role to the operation. This requirement waive this requirement. of the regulatory authority has been to provides information that both the Another commenter requested that we evaluate and review permit applications regulatory authority and applicant will define ‘‘other parameters that may need to assess whether any adverse influence the required reclamation.’’ In that contain the information. We agree impacts from the discharges within and response, we note that such factors may with the commenter. We mistakenly adjacent to the permitted area are a include the weather regime, availability stated in the proposed rule that the result of the current mining operation. of water, placement of overburden regulatory authority was responsible for Without this information, the operator containing sulfur, and vegetation obtaining this information. The and regulatory authority are less likely requirements because these factors can preamble to the previous final rule to detect any changes in water quality significantly affect effluent water quality contains a lengthy discussion on this and/or flow from these previous mine from the reclaimed site. topic, which makes it clear that the discharges which may be linked to the applicant is responsible for collecting Final Paragraph (f): Cumulative Impact proposed operation. For all of these this information. See 48 FR 43970 (Sept. Area Information reasons, we decline to change the final 26, 1983). In the final rule, we have rule language regarding data We received a couple of comments corrected this error and changed ‘‘[t]he requirements for pre-existing mine about proposed paragraph (g),385 now regulatory authority must obtain . . .’’ discharges. paragraph (f), which addresses to ‘‘[y]ou must obtain . . .’’ A commenter opined that the extra cumulative impact area information. We have also made other changes that monitoring and parameters proposed in One commenter claimed that the clarify our intent and the role of the §§ 780.19(d) and 784.19(d) are a paragraph requires the characterization applicant and the regulatory authority. disincentive for remining. We of ‘‘all’’ perennial, intermittent, and First, in paragraph (f)(1), of the final understand the concern with respect to ephemeral streams, implying there are rule, to better conform to the subject of remining. However, adequate baseline no limits to what has to be considered this paragraph, we changed the rule text characterization is more important in when making a determination of the from ‘‘probable cumulative hydrologic remining situations, especially with pre- cumulative impacts of the proposed impacts of the proposed operation . . .’’ existing discharges. Section operation on the surface water and to ‘‘impacts of both the proposed 780.28(e)(3)(i)(D) requires that, when groundwater. The commenter asserted operation . . .’’ Second, in paragraph mining through a degraded stream, the that we should use the term (f)(2), we replaced the word ‘‘must’’ mining ‘‘[w]ill not further degrade the ‘‘representative sampling’’ and let the with ‘‘may’’ in the first sentence. This form, hydrological function, biological regulatory authority use their change better conforms to the sentence condition, or ecological function of the professional judgment on what is that followed. Third, we modified text existing stream.’’ Thus, adequate within paragraph (f)(3) that clarifies the baseline characterization is vital for 385 80 FR 44436, 44602–44603 (Jul. 27, 2015). role of the regulatory authority and

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93173

complements the changes made in intermittent and perennial streams for because the nature of response of the paragraph (f)(1). biological information. However, this Clean Water Act authority is out of the commenter indicated that this waiver control of the SMCRA regulatory Final Paragraph (g): Exception for could conflict with the stream baseline authority. Adding ‘‘make best efforts to’’ Operations That Avoid Streams requirements in paragraph (c) pertaining also addresses other comments received This section establishes an exception to surface water baseline sample on what is now final paragraph (h)(2), for operations that avoid streams and collection. We disagree. The which provides that the regulatory specifies that the regulatory authority establishment of baseline flow and authority make best efforts to ‘‘minimize may waive the biological condition quality characteristics in paragraph (c) differences in baseline data collection information requirements of paragraph applies to all streams within, and points and parameters.’’ These (c)(6)(vi) through (viii) of this section if adjacent to, the permitted area and commenters also alleged that significant it is demonstrated, and if the regulatory cannot be waived. Proposed paragraph delays in SMCRA permitting will result authority finds in writing, that the (h), now final paragraph (g), only allows if the regulatory authority must operation will not: Mine through or the regulatory authority to waive the reconcile the baseline data collection bury a perennial or intermittent stream; biological information required in points and parameters required by this create a point-source discharge to any paragraphs (c)(6)(vi) through (viii)—not rule with the Clean Water Act perennial, intermittent, or ephemeral the water quality and quantity requirements, which are more complex stream; or modify the base flow of any information in paragraph (c). and include a greater number of perennial or intermittent stream. Several One commenter suggested that many parameters. We understand the concern, commenters supported this proposed other non-mining related impacts occur but data collection reconciliation is section. Other commenters requested in streams that could potentially affect important to alleviate wasted effort and that we remove the reference to the receiving stream’s aquatic to ensure consistency between the Clean ephemeral streams in § 780.19(h)(2), environment. The commenter suggested Water Act authority and the SMCRA now § 780.19(g)(2). We disagree. removing the exemptions proposed in permit holders. For example, multiple Changes to the hydrology in ephemeral paragraph (h) and instead require but non-coordinated macroinvertebrate streams are linked to intermittent and biological condition baseline data in all sampling can yield inaccurate results if perennial streams and must be circumstances. We disagree with the conducted at a similar location and at a considered when approving a potential suggestion to remove the three frequency that does not allow the site to exception for collecting baseline exemption clauses because it saves time recover sufficiently between sample condition information. and resources in situations where it is events. For all of these reasons, we Another commenter suggested that we not likely to yield data to help with decline to completely remove the include non-point source discharges reclamation, and also non-mining language requiring coordination. within this paragraph because there are related activities are not regulated under One commenter suggested that we instances where these types of SMCRA. The requirements of place a reasonable time limit on the discharges can impact surface waters, paragraphs (c)(2) and (3) will provide agencies to respond to information potentially affecting aquatic sufficient data to characterize baseline needed from other agencies in order for environments. We decline to modify the conditions in most situations where the SMCRA regulatory authority to final rule in response to this comment mining operations avoid all activities make a permitting decision. The because the burden associated with within or near streams. If the regulatory commenter suggested that permit monitoring all non-point source authority chooses to require biological applicants would be at the mercy of discharges into streams may be condition data when one of the three other agencies to get all the information outweighed by any benefit that may be conditions is present, the final rule necessary for a permitting decision and received. Moreover, the surface water contains sufficient discretion for them suggested requiring a reasonable time monitoring requirements, as prescribed to do so. For these reasons, we are limit for agency responses to by the final rule are adequate to retaining the exemptions within the information requests. We are not determine the quantity and quality of final rule language. adopting this suggestion because we surface water. Other commenters have no authority to place regulatory Final Paragraph (h): Coordination With requested more guidance on whether burdens on other agencies exercising Clean Water Act Agencies stormwater controls and outfalls that other statutory authorities. The intent of discharge into ephemeral, intermittent, We received several comments on this provision is to ensure all or perennial streams are considered proposed paragraph (i), now final information is available to the SMCRA ‘‘point sources’’ under this paragraph. paragraph (h), and, as a result, we have regulatory authority to make an Consistent with section 502 of the Clean made a few revisions. First, some evaluation, permitting decision, and Water Act,386 we consider stormwater commenters asserted that requiring permit findings and associated (not including agricultural stormwater) coordination with Clean Water Act documents. In addition, the requirement that is discharged by means of any agencies would not necessarily be to have sufficient information to make discernible, confined and discrete useful if the Clean Water Act authority permitting decisions and develop conveyance, including but not limited did not respond to coordination supporting documentation is not a new to any pipe, ditch, channel, tunnel, attempts. It is important to obtain the requirement. conduit, well, discrete fissure, input from the Clean Water Act Final Paragraph (i): Corroboration of container, or other floating craft into a authority when considering aquatic Baseline Data stream to be a point source discharge. impacts from SMCRA sites on adjacent One commenter correctly noted that receiving streams; the Clean Water Act We received many comments on the proposed paragraph (h), now paragraph authority is a valuable source of requirement in proposed paragraph (j), (g) allows the regulatory authority to information and should be used in now final paragraph (i), to corroborate a grant a waiver from the requirement to SMCRA permitting decisions. In sample of the baseline information. establish baseline conditions in response to the commenter’s concerns, Many commenters indicated mandatory however, we added the phrase ‘‘make sample corroboration was not a feasible 386 33 U.S.C. 1362. best efforts to’’ in the introductory text mechanism to achieve the desired result

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93174 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

because of the timing and expense; analyzing field blanks, and duplicate Specifically, the commenter requested a others asked what constituted a identification of benthic samples. defined level of probability; otherwise, ‘‘sample.’’ The intent of sample Similarly, several regulatory authorities the commenter opined that the concept corroboration is to ensure the quality of commented that they already have of probable hydrologic consequences is the data collected and that the data sufficient corroboration requirements in ambiguous and the applicant has accurately characterizes the baseline their state regulations and the discretion to determine what probable conditions. We recognize that co- requirement should be stricken from the hydrologic consequences determination collection of samples or other similar rule. We applaud these regulatory means. We disagree. Section 507(b)(11) means of corroboration is not the only authorities for their efforts to ensure an of SMCRA 388 and other guidance method to corroborate samples, and we adequate and accurate baseline provided in §§ 780.20(a) and 784.20(a) have added the phrase ‘‘visual characterization, but we decline to sufficiently detail what must be observation of sample collection’’ as an remove this requirement and we also considered by the applicant when allowable means to corroborate a decline to adopt standard quality determining the probable hydrologic sample. assurance and quality control sampling consequences and the purpose and goal Some commenters inquired as to procedures. Not all states are as in making these determinations. In whether corroboration meant one proactive as these states cited by the addition, we have published several sample or numerous samples. One commenters, and corroboration is an technical reference documents commenter noted that, under the important responsibility that should be concerning the development of probable proposed provision, one sample is applicable to all states. As noted above, hydrologic consequences sufficient to meet the corroboration however, we have left the provision in determinations and cumulative requirements but that such general terms so that each state can hydrologic impact assessments. These corroboration would have no validity tailor the corroboration protocol to its documents can be accessed via our Web because it has a statistical strength of unique needs. site at http://www.osmre.gov/. As a zero. We understand the need for Many commenters opined that result, we do not need to set a level of statistical certainty in some situations, requiring the regulatory authority to probability or to otherwise define but the goal of the corroboration is to corroborate a sample was a major ‘‘probable hydrologic consequences evaluate gross water quality features not change from the previous applicant self- determination.’’ to achieve statistical certainty. Final monitoring requirement and will Throughout this section we are paragraph (i), however, leaves the considerably increase staff time and cost substituting the term ‘‘biology’’ for regulatory authority with the discretion to implement. Other commenters ‘‘biological condition’’ for the same to determine the number and means of suggested that the regulatory agency be reasons we articulate in connection with sample corroboration, even if it is just required to conduct this assessment and final paragraphs (c)(6)(vi) through (viii) one sample. The regulatory authority is should not contract with third party of § 780.19. In brief, we use the term in the best position to determine the entities at the applicant’s expense to ‘‘biology’’ to encompass the type of number of corroboration samples due to complete the task in lieu of the information needed to establish both the their familiarity with the area, water regulatory authority. The final rule, as biological condition of perennial and quality, and labs used to general data. modified, emphasizes the need for intermittent streams, for which Similarly, another commenter raised accurate baseline information to be established protocols exist, and the the possibility of safety concerns if collected by the applicant. Final biology of intermittent streams, for corroboration were to occur during paragraph (i) simply establishes a which established protocols are not winter months when sites may not be quality assurance and control step in the currently in place. This recognizes that readily or safely accessible. We did not application review process, subject to not all states have scientifically revise paragraph (i) in response to this regulatory authority approval, that defensible protocols for assessing the concern because we are not prescribing should not incur extraneous expense to biological condition of intermittent when the corroboration occurs; thus, the either the regulatory authority or the streams. For the same reasons, we have regulatory authority has the flexibility to applicant because of the minimal removed the requirement to evaluate, approve corroboration at times when number of samples required. for the probable hydrologic sites can be safely accessible. consequences determination, the A commenter, who supported the Section 780.20: How must I prepare the biological condition of ephemeral corroboration requirement, suggested determination of the probable streams within the proposed permit and that we revise the language to specify hydrologic consequences of my adjacent areas. For additional that the corroboration occur on a proposed operation (PHC information on why we have made these random sampling of sites with a large determination)? type of changes, please refer to the enough sample size to statistically As discussed in the preamble to the preamble discussion in final paragraphs represent the data reported to the state proposed rule, we proposed to modify (c)(6)(vi) through (viii) of § 780.19, regulatory authority. For the same § 780.20.387 After evaluating the above. reasons discussed in the previous comments we received, we are adopting paragraphs, we decline to be more the section as proposed, with the Final Paragraph (a): Content of PHC specific and prescriptive. The regulatory exceptions discussed below. Determination authority is in in the best position to In general, this section relates to the Final paragraph (a), similar to determine corroboration protocol and preparation of the probable hydrologic proposed paragraph (a), revises the validity for each proposed operation. consequences determination. One requirements concerning preparation of One commenter suggested we commenter requested that we provide a the determination of the probable consider adopting standard quality definition of a ‘‘probable hydrologic hydrologic consequences of mining in assurance and quality control sampling consequences determination’’ and previous §§ 780.21(f)(1) through (f)(3) by procedures, such as those required by provide a method for predicting the adding a requirement to consider the the U.S. Environmental Protection probable hydrologic consequences. impacts of the proposed operation on Agency, that require the collection of duplicates at ten percent of stations, 387 80 FR 44436, 44500–44501 (Jul. 27, 2015). 388 30 U.S.C. 1257(b)(11).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93175

the biological condition of perennial in order for the regulatory authority to all anticipated mining in the area upon and intermittent streams located within have a full description of the probable the hydrology of the area and the proposed permit and adjacent areas, hydrologic consequences, we have particularly upon water availability rather than only on the quantity and determined that biological, . . .’’ Section 510 (b)(3) of SMCRA 393 quality of surface water and hydrological, geologic, and ecological states that neither a permit nor a groundwater as in the previous rule. information should be addressed within revision to an existing application can One commenter made a general the same assessment. be approved unless, among other things, statement that numerical standards and Several commenters opined that ‘‘the assessment of the probable biological assessments should be proposed paragraph (a), requiring the cumulative impact of all anticipated included to improve probable probable hydrologic consequences mining in the area on the hydrologic hydrologic consequences determination to include surface water balance specified in section 507(b) has determinations and cumulative quality impacts from point source been made by the regulatory authority hydrologic impact assessments. For discharges, effectively replaces the and the proposed operation thereof has information concerning the use of reasonable potential analysis under the been designed to prevent material numerical standards in the final rule, Clean Water Act and is in violation of damage to hydrologic balance outside please refer to the preamble discussion section 702 of SMCRA.391 Furthermore, permit area . . .’’ in § 773.15 above. For biological the commenter suggested the One commenter was concerned about assessments, refer to § 780.19(c)(6)(ii) documentation of water quantity is proposed paragraph (a)(5)(vi) which through (viii). problematic due to issues with stream requires that the probable hydrologic In response to proposed §§ 780.20(a) flow modeling. We disagree. The consequences determination contain a and 784.20(a), one commenter suggested probable hydrologic consequences finding about the impact that any that we should not extend the same determination has always required that diversion of surface or subsurface flows protections to ephemeral streams as we the applicant address the anticipated to underground mine workings or any do to intermittent and perennial effects of the planned mining operation changes in watershed size as a result of streams. We did not propose to extend and subsequent reclamation on the the postmining surface configuration the same protections to ephemeral quality and quantity of surface water would have on the availability of streams that we did for intermittent and and groundwater water resources in the surface water and groundwater. perennial streams. In response to proposed permit and adjacent areas Commenters claimed the requirement scientific literature supporting the including those waterways that would was open ended, that evaluations of benefits of these headwaters to essential receive drainage from the site; therefore, impacts starting at first order streams biological and ecological functions, the with regards to this requirement, would be incredibly cumbersome and final rule provides greater protections to paragraph (a) does not require time consuming, and that such ephemeral streams than do the existing additional analysis from what was diversions should be addressed on a regulations as described in Part VII of previously required. We also disagree regional basis in order to properly assess the preamble to the proposed rule.389 that this requirement in any way impacts and costs. We disagree. These enhanced protective measures are supersedes the Clean Water Act. Part Consideration of this type of data is consistent with the purpose of SMCRA IV.I. of this preamble further discusses necessary to produce a comprehensive at section 102(f) which requires us to the relationship between SMCRA and probable hydrologic consequences ‘‘strike a balance between protection of Clean Water Act. determination for the proposed mining the environment and agricultural One commenter objected to the operation, as well as a thorough and productivity and the Nation’s need for requirement in paragraph (a) for the inclusive cumulative hydrologic impact coal as an essential source of probable hydrologic consequences assessment. For example, diversions of energy.’’ 390 While the protections we determination to include specific surface or subsurface flows to are now promulgating for ephemeral findings on the criteria listed in underground mine workings will streams will be greater than under the paragraphs (a)(1) through (a)(5) and increase the existing volume of water previous rules, they will not be the same further stated that SMCRA holds the which could exceed the holding as those extended to intermittent and regulatory authority responsible for capacity of the mine voids and result in perennial streams. In particular, because making such findings relative to the an unanticipated blowout or discharge of the difficulty in sampling the cumulative impact. We disagree. of the water to the ground surface. biological condition of ephemeral Section 507(b)(11) of SMCRA 392 Diversions could also impact users of streams, we have removed ephemeral requires that the permit application surface water or groundwater by streams from the requirement under this contain, in a manner satisfactory to the diminishing or eliminating the paragraph to evaluate biological regulatory authority, ‘‘a determination availability of the water resources. We condition. of the probable hydrologic agree that it may be prudent in some One commenter recommended we consequences of the mining and instances to evaluate diversions of flows split paragraph (a) into two reclamation operations, both on and off to underground mine workings on a subparagraphs—one related to the mine site, with respect to the regional basis and that should be biological consequences and one related hydrologic regime, quantity and quality considered by the regulatory authority to hydrologic consequences. The of water in surface and ground water while preparing the cumulative commenter also requested that any systems including the dissolved and hydrologic impact assessment. discussion of biological consequences suspended solids under seasonal flow However, it is the responsibility of the not be contained within the cumulative conditions and the collection of applicant to ensure that all activities of impact assessment. We are not adopting sufficient data for the mine site and the proposed operation have been this suggestion because water quality surrounding areas so that an assessment considered and evaluated relative to and quantity are linked to biological can be made by the regulatory authority potential impacts. In addition, changes condition and ecological function, and, of the probable cumulative impacts of in watershed size as a result of the postmining surface configuration can 389 80 FR 44436, 44451 (Jul. 27, 2015). 391 30 U.S.C. 1292. 390 30 U.S.C. 1202(f). 392 30 U.S.C. 1257(b). 393 30 U.S.C. 1260(b)(3).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93176 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

also affect the volume and availability of drainage that could occur after the should be added to the baseline water resources resulting in either too completion of land reclamation in the monitoring plans. much, or not enough, available water as evaluation. One commenter indicated that peak- compared to premining conditions; Proposed paragraph (a)(5) required flow data, as required in proposed therefore, it is necessary that all that the applicant determine what paragraph (a)(5)(iv), may be insufficient activities for a proposed mining impact the proposed operation will have to accurately predict trends in operation be considered for their on specific water quality parameters, ephemeral streams due to the episodic potential effect on the quality and including parameters for which baseline nature of the flows. We agree with the quantity of surface and groundwater, information is required under commenter and have now exempted including the biology of the waterways, § 780.19(a)(2). We required in proposed ephemeral streams from the requirement for the proposed permit and adjacent paragraph (a)(5)(ii) the addition of any in §§ 780.19(c)(3) and 780.20(a)(5)(iv) in area. other water quality parameters in the the final rule. Peak-flow magnitude and In final paragraphs (a) and (a)(5)(vii), evaluation that were identified to be of frequency data will be required for we have exempted operations that avoid local importance. perennial and intermittent streams streams from the requirement to assess One commenter disagreed with this within the proposed permit and the impact the proposed operation will addition because it required the adjacent areas. have on biology of perennial and regulatory authority to identify the Many commenters on proposed intermittent stream. We are doing this water quality parameters of local § 780.20(a)(5)(vii) reiterated various for the same reasons we articulate above importance rather than the Clean Water points made in connection with in the preamble discussion of final rule Act authorities, which the commenter proposed § 780.19(e), now § 780.19(g), which allows the regulatory alleged violates section 702 of § 780.19(c)(6)(ii) through (viii), such as: authority to waive the biological SMCRA.394 As discussed in Part IV, Support for the assessment of the effects information requirements of final rule section I of this preamble, we disagree the proposed operation will have on the § 780.19(c)(6)(vi) through (viii), if the that this requirement in any way biological condition of streams; requests applicant demonstrates and the supersedes the Clean Water Act. Of that the regulations be revised to clarify that a qualitative evaluation of streams regulatory authority finds in writing that course, the SMCRA regulatory authority is sufficient in certain cases to establish the operation will not mine through or should consult with the Clean Water findings on the biological condition of bury a perennial or intermittent stream, Act regulatory authority as needed to streams; and that it is not necessary to create a point source discharge to any identify water quality parameters of complete a new and comprehensive perennial, intermittent, or ephemeral local importance. assessment of streams for every mine stream, or modify the base flow of any We also revised paragraph (a)(5)(ii) in perennial or intermittent stream. For site. Our responses to these comments the final rule to clarify that the proposed additional information on why we made are set out in the preamble to final reference to ‘‘water quality’’ refers to these types of changes, please refer to § 780.19(c)(6)(ii) through (viii) and are both groundwater and surface water the preamble discussion above. One not repeated here. quality. We further revised this commenter questioned whether, during In § 780.20(a)(5)(vii), we proposed to paragraph to reference the parameters preparation of the probable hydrologic require an evaluation of the biological listed § 780.19(a)(2) as those which must consequences determination, an condition of the operation in streams be addressed in the findings on the operator would always be able to obtain both within the permit area and in impacts of the proposed operation on from the regulatory authority the criteria ‘‘adjacent areas.’’ Several commenters groundwater and surface water. needed to determine whether the expressed concern that the baseline data operation may cause material damage to Consequently, we have deleted as collection and permitting process may the hydrologic balance outside the redundant proposed paragraphs be difficult because the extent of the permit area as required in paragraph (5)(ii)(A) through (K) which listed those ‘‘adjacent area’’ may not be easy to (a)(1). We anticipate that the applicant parameters. determine and may change as data are will collaborate and coordinate with the Another commenter requested that we collected and analyzed. We encourage regulatory authority as necessary to revise proposed paragraph (a)(5)(ii)(L), applicants to coordinate with the ensure that the criteria for assessing the now paragraph (a)(5)(ii) in the final rule, regulatory authority in determining the material damage to the hydrologic to state that the regulatory authority size of the adjacent area, i.e., the area balance outside the permit area are would identity parameters of local from which baseline data must be established in time to be available for importance. We agree and have made collected. However, should the the probable hydrologic consequences appropriate revisions to that paragraph. regulatory authority determine that determination. We also anticipate that The regulatory authority is in the best supplemental information, including the regulatory authority will coordinate position to identify those local additional information on the adjacent with Clean Water Act agencies in parameters of concern, if applicable, area, is needed to fully evaluate the preparing these criteria. and include them in the required probable hydrologic consequences of We have revised final paragraph (a)(2) baseline monitoring data. Therefore, we the proposed operation you must then to clarify that the applicant must have revised §§ 780.19 and 780.23 in the submit supplemental information, as evaluate the potential for toxic mine final rule to specify that the regulatory explained in paragraph (b), below. drainage not only during active mining authority will be the one that and reclamation operations but also determines parameters to be of local Final Paragraph (b): Supplemental after these activities have been importance. We anticipate that, during Information completed. This provision now specifies the development of the permit As proposed, paragraph (b) was that when making a finding on whether application package, the applicant will substantively identical to previous acid-forming or toxic-forming materials take part in this process by consulting § 780.21(b)(3), with the exception that are present that could result in with the regulatory authority about we proposed to expand the conditions contamination of surface water or which, if any, additional parameters under which the regulatory authority groundwater, the applicant must must request additional supplemental consider discharges of toxic mine 394 30 U.S.C. 1292. information related to the probable

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93177

hydrologic consequences determination. 507(b) has been made by the regulatory Section 780.21: What requirements We received numerous comments authority and the proposed operation apply to preparation, use, and review of stating that the requirement to submit thereof has been designed to prevent the cumulative hydrologic impact supplemental information is redundant material damage to hydrologic balance assessment (CHIA)? with similar data requirements in outside permit area’’ prior to Our previous regulations contained § 780.19, and is onerous and 396 approval. Likewise, for permit very few standards or criteria for burdensome. Commenters also stated revision applications, section 510(b)(3) preparation of the cumulative that the supplemental information of SMCRA requires, ‘‘the assessment of hydrologic impact assessment. As we should not be mandatory under these the probable cumulative impact of all stated in the preamble to the proposed circumstances, given the more anticipated mining in the area on the rule, the lack of standards or content comprehensive nature of baseline hydrologic balance specified in section requirements for the cumulative permit application information 507(b) has been made by the regulatory hydrologic impact assessment, coupled requirements concerning hydrology and authority and the proposed operation with the lack of a definition of ‘‘material geology that will be required under the thereof has been designed to prevent damage to the hydrologic balance rule and given that the regulatory material damage to hydrologic balance outside the permit area,’’ created an authority has the implied authority to outside permit area’’ prior to impediment to stream protection under request additional information if and approval.397 when necessary. We agree with these SMCRA because there are no objective comments and have removed paragraph One commenter expressed concern criteria to apply. Therefore, as discussed (b) from the final rule. that unless the regulations set forth in the preamble to the proposed rule, we specific criteria to determine when an proposed to modify our regulations at Final Paragraph (c): Subsequent updated or new probable hydrologic § 780.21 to include content Reviews of PHC Determinations consequences determination is needed, requirements for the cumulative We are adopting paragraph (c)(1), now an applicant could be subjected to hydrologic impact assessment, final paragraph (b)(1), as proposed, denials or endless cycles of probable procedural requirements, and criteria which is substantively identical to hydrologic consequences determination for determining material damage to the previous § 780.21(f)(4), which requires studies depending on the bias and hydrologic balance outside the permit that the regulatory authority determine preferences of the regulatory authority. area.401 We received numerous whether a new or updated probable Thus, this commenter and others comments on our proposed revisions. hydrologic consequences determination requested that we revise this paragraph After evaluating the comments, we are is needed as part of the process of to provide objective criteria to clarify adopting § 780.21 as proposed, with the evaluating permit revision applications. this provision and ensure consistency. revisions discussed below. We proposed paragraph (c)(2) to clarify We disagree with the commenter’s Final Paragraph (a): General that the applicant must prepare a new assertion that objective criteria for Requirements or updated probable hydrologic defining when an updated or new consequences determination whenever a probable hydrologic consequences Proposed paragraph (a)(2) provided regulatory authority review finds that determination must be made should be that the regulatory authority would one is needed. Several commenters included in this section of the final rule. consider relevant information on file for objected to the addition of proposed Section 510(b)(3) of SMCRA 398 is not other mining operations located within paragraph (c)(2). These commenters explicit regarding that criteria that will the cumulative impact area or in similar noted that a new or updated probable result in the need for a new or updated watersheds during preparation of the hydrologic consequences determination probable hydrologic consequences cumulative hydrologic impact would result in increased cost and staff determination, as these criteria may assessment. One state regulatory time to the applicant. We disagree. The vary among state regulatory programs. authority suggested we change ‘‘will requirement in proposed paragraph Regulatory authorities should have consider’’ to ‘‘may consider.’’ We reject (c)(1), now final paragraph (b)(1), for the discretion in establishing the criteria this comment because the intent of the regulatory authority to make a that will trigger the need for an updated cumulative hydrologic impact determination on whether a new or probable hydrologic consequences assessment is specifically to assess the updated probable hydrologic determination based on the changes that cumulative impacts of all coal mining consequences determination is are proposed in the permit revision and reclamation operations in the necessary for a permit revision is application and based upon local, defined cumulative impact area. To substantively the same as that in regional, and operational conditions. properly assess these impacts, the previous § 780.21(f)(4); it has always Further, we do not agree with the regulatory authority must consider other been anticipated that the applicant commenter’s concern about regulatory mining operations in the defined would submit a revised or new abuse. Section 510(b)(3) of SMCRA 399 cumulative area. Thus, we have changed determination should the regulatory clearly contemplates the regulatory ‘‘will consider’’ to ‘‘must consider’’ in authority deem one necessary. Thus, as authority making the assessment of the order to indicate the necessity of the this is an existing requirement, there probable cumulative impact of all requirement to consider other mining will not be any additional cost or staff anticipated mining in the area. In the operations and to clarify that this aspect time beyond satisfying the requirement event the regulatory authority denies the of the cumulative hydrologic impact of the previous § 780.21(f)(4). This permit, the permittee may exercise its assessment cannot be overlooked during requirement, moreover, is consistent rights pursuant to section 514 of the assessment. Further, this with section 510(b)(3) of SMCRA 395 SMCRA.400 modification reflects the plain language which requires that ‘‘the assessment of principles discussed in Part II of this the probable cumulative impact of all 396 30 U.S.C. 1260(b)(3). preamble because ‘‘will consider’’ anticipated mining in the area on the 397 30 U.S.C. 1260(b)(3). expresses that the activity may be hydrologic balance specified in section 398 Id. completed in the future. Because the 399 Id. 395 30 U.S.C. 1257(b)(11) and 1260(b)(3). 400 30 U.S.C. 1264. 401 80 FR 44436, 44501–44503 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93178 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

information about existing mining recognize that some information Environmental Protection Agency is operations is available, its consideration associated with other adjacent and required to review those changes to should occur prior to completion of the underlying industries, such as oil and ensure that revisions in designated uses cumulative hydrologic impact gas, may be proprietary or difficult to are consistent with the Clean Water Act assessment and not at some point in the obtain. For this reason, the regulatory and that new or revised criteria protect future. authority should consider all available the designated uses to ensure Another commenter opined that the information, but it must consider coal compliance with the requirements of analysis conducted in the cumulative mining information that it has on file. section 303(c) of the Clean Water Act hydrologic impact assessment should be One regulatory authority commenter and federal water quality standards. performed by mine operators instead of indicated that the proposed rule did not Therefore, we are still requiring that the the SMCRA regulatory authority. This include a provision for proposed mine current approved designated uses under commenter asserted that regulatory sites that may be hydrologically 303(c) of the Clean Water Act 405 be authorities have historically been isolated. When preparing the displayed on a map for the purpose of negligent in conducting thorough cumulative hydrologic impact the cumulative hydrologic impact cumulative hydrologic impact assessment only ‘‘relevant’’ information assessment. However, at the suggestion assessments because of limited must be considered. In this context, of a federal agency we removed resources and that material damage hydrologically isolated, proposed mine reference to section 101(a) of the Clean findings historically often have sites do not have ‘‘relevant’’ information Water Act,406 which is a statement of included little supporting analysis or associated with the permit application. the general goals and policies of the information. This commenter also Therefore, we are not modifying the Clean Water Act. Limiting reference to asserted that the previous regulations do final rule in response to this comment. section 303(c) of the Clean Water Act is not require collection of sufficient data Paragraph (a)(3) of the final rule more precise. to prepare an adequate cumulative clarifies that information required for As discussed earlier in this preamble, hydrologic impact assessment and that preparation of the cumulative final § 780.19 requires the collection of mine operators have information more hydrologic impact assessment must be certain baseline hydrologic information. readily available than do the regulatory received and reviewed prior to approval Final paragraph (b)(3) of § 780.21 authorities and this information should of the permit application. The proposed requires that the cumulative hydrologic be utilized. Section 507(b)(11) of rule only required receipt of the impact assessment contain a description SMCRA 402 specifically requires an information prior to permit application of the baseline hydrologic information assessment to be performed by the approval. We made this change to for the proposed permit and adjacent regulatory authority of the probable ensure that the regulatory authority both areas that are collected under § 780.19. cumulative impacts of all anticipated received and used all the information In response to comments about the level mining in the area upon the hydrology necessary to properly develop the of detail required, final paragraph (b)(3) of the area. Further, section 510(b)(3) of cumulative hydrologic impact clarifies that the description must be SMCRA 403 specifies that no permit assessment. both qualitative and quantitative. Both application or revision may be approved Final Paragraph (b): Contents quantitative and qualitative information unless the application affirmatively on water quality and quantity is needed demonstrates and the regulatory Proposed paragraph (b) established to describe baseline hydrologic authority finds in writing that the detailed requirements for the content of conditions adequately because assessment of the probable cumulative the cumulative hydrologic impact qualitative descriptions often provide impact of all anticipated mining in the assessment to ensure that the needed context for quantitative area has been made and the operation assessment is sufficiently information. has been designed to prevent material comprehensive to support the required Proposed paragraph (b)(3)(ii) would damage to the hydrologic balance finding that the proposed operation has have required information about outside the permit area. This assessment been designed to prevent material existing usage of surface water and cannot be delegated to mine operators as damage to the hydrologic balance groundwater, as well as information the commenter proposes and therefore, outside the permit area. Several defining the quality of water required we have not changed the final rule in commenters supported the content for each existing and reasonably response to this comment. requirements identified in proposed foreseeable use of groundwater and One commenter recommended that paragraph (b), but other commenters surface water and each designated use we use consistent terminology between opposed elements of those of surface water under section 303(c) of the preamble to the proposed rule, requirements. the Clean Water Act.407 Two which stated that we intended to ensure One commenter questioned the commenters indicated that the that the regulatory authority considers requirement of paragraph (b)(1)(iv) that cumulative hydrologic impact all available information and the the designated uses of surface water assessment findings on reasonably proposed rule, which states that the under section 303(c) of the Clean Water foreseeable designated uses are not regulatory authority ‘‘must consider’’ Act 404 be displayed on a map. The clearly defined and may result in relevant information on file. We are not commenter reasoned that the designated variable interpretations when modifying the final rule in response to uses that must be specified to meet this forecasting potential reasonably this comment. Although the regulatory requirement should include the foreseeable uses. One commenter authority should consider any designated uses prescribed by the state requested that we make a distinction information available to it for the in which the operation may occur between protecting designated uses and assessment, paragraph (a)(2) sets a because many states adopt their own existing uses. Another commenter minimum standard for the regulatory designated uses that may differ from strongly recommended that the final authority to consider relevant coal federal designations. We agree with the rule clarify that the corrective action for mining information on file. We commenter that states may change a designated use. However, the U.S. 405 Id. 402 30 U.S.C. 1257(b)(11). 406 33 U.S.C. 1251(a). 403 30 U.S.C. 1260(b)(3). 404 33 U.S.C. 1251(a) or 33 U.S.C. 1313(c). 407 Id.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93179

designated uses should be tied to the commenter was concerned with how construed as superseding, amending, postmining land use and be determined these impacts would be expressed in modifying, or repealing’’ the Clean by the state Clean Water Act authority, terms of each baseline parameter Water Act ‘‘or any rule or regulation instead of some other arbitrarily identified under § 780.19. The promulgated thereunder.’’ Part IV.I. of assigned higher use that was not commenter requested guidance on this preamble discusses the achievable prior to mining. In response evaluating impacts within the interrelationship between the Clean to all of these comments, final cumulative impact area on a parameter- Water Act and SMCRA. Other paragraph (b)(3)(ii) includes a by-parameter basis. We direct the commenters provided suggestions to requirement for information on the commenter to the definition of refine the language of this provision. For quantity, as well as the quality, of water ‘‘cumulative impact area’’ in § 701.5, instance, one commenter suggested needed to support, maintain, or attain which establishes the scope and intent replacing the phrase ‘‘numerical terms’’ water uses. In addition, final paragraph of the evaluations within the cumulative with ‘‘be expressed in applicable state (b)(3)(ii) requires a list of water uses for impact area. We decline to delve into an or federal water quality standards (or which the information required in explanation of methods used to predict criteria)’’ to allow the use of both paragraph (b)(3) must be assessed. water quality on a parameter-by- numerical and narrative standards. Specifically, for surface water, final parameter basis because it is beyond the Another commenter supported the use paragraph (b)(3)(ii)(A) requires scope of this document. In general, to of narrative standards, when applicable, assessment of the designated uses or, if arrive at mining-induced changes by compared to numerical standards. One no designated use exists, each parameter, most common methods state regulatory authority requested that premining use. Final paragraph entail some form of statistical method, the rule require the use of numerical (b)(3)(ii)(B) requires assessment of with regression analysis of parameter and narrative standards that have premining uses of groundwater. Unlike concentration through time being the defensible numeric threshold criteria. the proposed rule, the final rule does most common. Additionally, guidance After evaluating these and other not require an assessment of reasonably documents are available through our similar comments, we decided not to foreseeable uses of either surface water National Library at www.osmre.gov/ adopt the proposed requirement that or groundwater. We did not adopt the resources/Library.shtm. These numerical criteria be established for proposed requirement for assessment of documents provide guidance on each parameter of concern. Instead, final reasonably foreseeable uses because of preparation of the determination of the paragraph (b)(6) requires that the the subjective nature of that probable hydrologic consequences of cumulative hydrologic impact determination. the operation that the applicant must assessment and the permit include site- Proposed paragraph (b)(3)(iii) would prepare and the cumulative hydrologic specific numeric or narrative thresholds have required the inclusion of a impact assessment that the regulatory for material damage to the hydrologic description and map of the local and authority must prepare. We are also balance outside the permit area. The regional groundwater systems as part of available for technical assistance in regulatory authority has the discretion the cumulative hydrologic impact developing the methods necessary to to determine which parameters require assessment. One regulatory authority support cumulative hydrologic impact material damage thresholds. Material sought flexibility regarding the assessment findings. In summary, both damage thresholds define the point at presentation and description of the local the regulatory authority and the which the operation has failed to and regional aquifer system. In response applicant need to understand and prevent material damage to the to this comment, we slightly modified forecast the impact of the mining and hydrologic balance outside the permit the requirement to allow a description reclamation plan on the baseline area. or map rather than requiring submission parameters in final § 780.19 and assess Final paragraph (b)(6)(i) provides that, of both a description and a map in all the sum total of these impacts on the when identifying material damage cases. This change provides the hydrologic balance within the thresholds in connection with a regulatory authority with flexibility to cumulative impact area, as defined at particular permit, the regulatory accept maps, descriptions, or both in § 701.5 and as required in paragraphs authority will, in consultation with the order to best explain aquifer (b)(3) through (b)(5) of § 780.21. Clean Water Act authority, as characteristics, such as hydraulic appropriate, undertake a comprehensive Proposed paragraph (b)(6) required gradient. evaluation that considers the following that the cumulative hydrologic impact Proposed paragraph (b)(3)(iv) required factors— baseline information on the biological assessment include criteria defining (1) The baseline data collected under condition of all perennial, intermittent, material damage to the hydrologic § 780.19; and ephemeral streams. In response to balance outside the permit area on a (2) The PHC determination prepared comments, we modified final paragraph site-specific basis. Proposed paragraph under § 780.20; (b)(3)(iv) to be consistent with the (b)(6)(i) required that these criteria be (3) Applicable water quality standards monitoring requirements at final established on a numerical basis for under section 303(c) of the Clean Water § 780.19(c)(6)(vi) through (viii) of this each parameter of concern. Numerous Act; part, which no longer require commenters argued that there is no (4) Applicable state or tribal water monitoring of the biological condition of authority under SMCRA to establish quality standards for surface water and ephemeral streams. numerical criteria for material damage groundwater; One commenter questioned proposed to the hydrologic balance outside the (5) Ambient water quality criteria paragraph (b)(5), which required that a permit area. Commenters also claimed developed under section 304(a) of the quantitative assessment be conducted that establishment of enforceable water Clean Water Act; 408 on how all anticipated surface and quality criteria under SMCRA that differ (6) Biological requirements of any underground mining may impact the from water quality standards species listed as threatened or quality of surface water and promulgated under the Clean Water Act endangered under the Endangered groundwater in the cumulative impact would violate section 702(a) of SMCRA. Species Act of 1973, or their designated area. According to the commenter, this Section 702(a) provides, in relevant requirement is too vague. The part, that ‘‘[n]othing in this Act shall be 408 33 U.S.C. 1314(a).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93180 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

critical habitat, habitat occupied by criteria, which we now refer to as within the final rule because we agree those species, and areas in which those material damage thresholds, the with commenters that thresholds would species are present for only a short time regulatory authority must take into provide a more objective method to but that are important to their consideration the biological assess the potential development of persistence; and requirements of any species listed as material damage outside the permit (7) Other pertinent information and threatened or endangered under the area. In addition, evaluation thresholds considerations to identify the Endangered Species Act when those provide an opportunity to develop and parameters for which thresholds are species or designated critical habitat are implement corrective measures before necessary. present within the cumulative impact adverse impacts rise to the level of The factors listed above and in final area. The U.S. Fish and Wildlife Service material damage to the hydrologic paragraphs (b)(6)(i)(A) through (G) do requested that we revise this provision balance outside the permit area. We not constitute material damage to also apply to both the habitat revised the terminology from thresholds in and of themselves; they occupied by those species and any areas ‘‘corrective action thresholds’’ to are only factors to be considered in in which those species are present only ‘‘evaluation thresholds’’ because the determining which parameters require for a short time but that are important action of reaching a threshold would material damage thresholds and what to their persistence, such as migration result in reassessment of the probable those thresholds should be. and dispersal corridors. Final paragraph hydrologic consequences determination Final paragraph (b)(6)(ii) modifies (b)(6)(i)(F) includes the recommended and cumulative hydrologic impact final paragraph (b)(6)(i) slightly in that language as an evaluation criterion for assessment. Corrective action may not it provides that the regulatory authority, material damage thresholds. be necessary if additional evaluation in consultation with the Clean Water In the proposed rule,409 we invited shows that the impact will not rise to Act authority, must adopt numeric comment on whether the final rule the level of material damage to the material damage thresholds as should require that the regulatory hydrologic balance outside the permit appropriate, taking into consideration authority establish corrective action area. However, if adverse trends exist, it relevant contaminants for which there thresholds, which would be lower than is incumbent upon the SMCRA are water quality criteria under the material damage thresholds to identify regulatory authority to evaluate the Clean Water Act, 33 U.S.C. 1251 et seq. the point at which the permittee must causes of the adverse trends and take Final paragraph (b)(6)(ii) further take action to minimize adverse trends action to ensure that the trends do not provides that the regulatory authority that may continue and ultimately cause result in material damage to the may not adopt a narrative threshold for material damage to the hydrologic hydrologic balance outside the permit parameters for which numeric water balance outside the permit area. We area. quality criteria exist under the Clean received comments both supporting and Final paragraph (b)(7) requires that Water Act. These provisions reflect opposing the development of these evaluation thresholds be expressed as concerns that were raised during the corrective action thresholds. Several numeric values because the thresholds rule review process. They are intended commenters supported the must be measurable in order to function to promote coordination and establishment of corrective action as an early warning system that consistency with Clean Water Act thresholds because it would provide a provides ample opportunity for the regulatory programs. more objective way to assess the permittee and the regulatory authority One environmental organization existence or nonexistence of material recommended that we codify the damage to the hydrologic balance to conduct the necessary evaluation and following language from the preamble of outside the permit area. One commenter undertake any necessary measures to the proposed rule: ‘‘SMCRA material opposed the concept of corrective action prevent material damage to the damage criteria must be no less thresholds because, according to the hydrologic balance outside the permit stringent than Clean Water Act water commenter, establishment of those area. This requirement is intended to quality standards and criteria in all thresholds would conflict with section identify and address potential water cases, but, in some situations, they may 702 of the Act. Part IV.I., above, quality and quantity issues before any need to be more stringent to protect discusses this issue. Another standards have been violated. This early unique uses or to comply with the commenter opposed corrective action intervention strategy is necessary Endangered Species Act.’’ We did not thresholds as being duplicative of the because, once a water quality issue adopt this recommendation because requirement to monitor surface water exists, it is often very costly or there may be situations in which the and groundwater during mining, which impossible to correct. Evaluation quoted preamble language does not should be sufficient to identify trends thresholds institutionalize early apply. that could lead to potential problems. In detection techniques, which can prevent An industry commenter expressed addition, the commenter noted that the the need for long-term treatment and concern that we did not provide regulatory authority would also be other costly environmental harms sufficient information or clear aware of trends through review of the through the prevention of material specifications for the ‘‘numerical terms quarterly water monitoring reports damage to the hydrologic balance for each parameter of concern. Final required for all operations and the outside the permit area. paragraph (b)(6) no longer includes the annual reports required by some state Under final § 773.15(e), a SMCRA quoted phrase from the proposed rule. programs. regulatory authority may not approve a Instead, the final rule grants the After evaluating these comments and SMCRA permit application if the regulatory authority discretion to the changes that we made to paragraph cumulative hydrologic impact determine which parameters require (b)(6), we are adding new paragraph assessment indicates material damage to material damage thresholds and (b)(7) to the final rule. This paragraph the hydrologic balance is likely to occur whether those thresholds should be requires the establishment of evaluation outside the permit area. Material narrative or numeric, except as provided thresholds. We included the damage to the hydrologic balance in final paragraph (b)(6)(ii). requirement for evaluation thresholds outside the permit area that occurs after Proposed paragraph (b)(6)(ii) provided permit issuance constitutes a violation that, in establishing material damage 409 80 FR 44436, 44502 (Jul. 27, 2015). of final § 816.34(a)(2). In that situation,

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93181

the state regulatory authority must take short-term local or temporal stream determinations, with appropriate enforcement action. impacts may occur and may not rise to documentation, or an explanation of Evaluation thresholds are not the level of material damage to the why the determination is not necessary enforceable as performance standards. hydrologic balance outside the permit or appropriate. Final paragraph (b)(9)(i) They also do not amend, supersede, area. provides that one of those modify or otherwise conflict with Two regulatory authority commenters determinations is that, except as applicable Clean Water Act suggested we replace the term provided in final §§ 780.22(b) and requirements, including any National ‘‘exceedance’’ with ‘‘long term 816.40, the proposed operation will not: Pollutant Discharge Elimination System exceedance’’ at proposed paragraph (A) Cause or contribute to a violation of effluent limitations or applicable state (b)(8)(i)(B), now paragraph (b)(9)(i). In applicable water quality standards or federal water quality standards. consideration of the implications adopted under the authority of section Instead, evaluation thresholds trigger an associated with words that may qualify 303(c) of the Clean Water Act, 33 U.S.C. obligation for the regulatory authority, exceedance such as ‘‘long-term’’ or 1313(c), or other applicable state or in consultation with the Clean Water ‘‘minor,’’ and concerns on how the term tribal water quality standards; (B) cause Act agency, as appropriate, to evaluate would be interpreted, we removed the or contribute to a violation of applicable the circumstances causing adverse reference to exceedance at previous state or tribal groundwater quality trends and exceedance of the threshold. paragraph (b)(8)(i)(B), now final standards; (C) preclude attainment of a The purpose of the evaluation and paragraph (b)(9)(i). coordination is to better ensure that An industry commenter suggested premining use of a surface water located material damage to the hydrologic that we revise proposed (b)(8)(i)(B) to outside the permit area when no water balance outside the permit area does not account for drought conditions, changes quality standards have been established occur as a result of mining activity. If in human activity, and other for that surface water; or (D) preclude monitoring results at the locations environmental and human use changes attainment of a premining use of designated under final paragraph that are unrelated to mining that could groundwater located outside the permit (b)(6)(iv) document an exceedance of an affect a watershed or streamflow regime. area. evaluation threshold, the regulatory In response, we added language to final We have also revised paragraph (b)(8), authority must determine the cause of paragraphs (b)(9)(i) through (iv) that the now final rule paragraph (b)(9), slightly the exceedance in consultation with the proposed operation— by moving three subsections. Proposed Clean Water Act authority, as (1) Will not violate applicable Clean paragraph (b)(8)(i)(A) pertained to appropriate. The regulatory authority Water Act water quality standards; conversion of streams from one stream must also determine the likelihood that (2) Preclude attainment of premining type to another stream type (e.g., the evaluation threshold exceedance use when no water quality standards intermittent to ephemeral) outside of the will develop into material damage to the exist, or preclude attainment of permit area. We have allowed some hydrologic balance outside the permit premining uses for groundwater; forms of conversion as long as the area. (3) Not result in changes in size or stream maintains its designated use(s) The regulatory authority must issue frequency peak flows in areas outside and have moved this language to final an order to revise the permit if the the permit boundary; rule paragraph (b)(9)(iii). We retained regulatory authority determines that the (4) Perennial and intermittent streams the language pertaining to streams will have sufficient base flow at all adverse trend is the result, in whole or maintaining their applicable Clean times to maintain their premining flow in part, of the mining operation. For a Water Act water quality standards and more complete discussion of the regime; and moved it to final rule paragraph relationship between material damage (5) Be designed to protect quality and (b)(9)(i)(A). We also slightly modified thresholds, evaluation thresholds, and quantity of aquifer units to ensure the language at paragraph (b)(6)(i)(F) water monitoring requirements please prevailing hydrologic balance. pertaining to adversely affecting see the discussion of general comments This revision clarifies that it is the threatened or endangered species. We in Part IV. M. of this preamble. mining operation that cannot cause the We received numerous comments on adverse impacts identified in final modified final rule paragraph (b)(6)(i)(F) proposed paragraph (b)(8), now final paragraphs (b)(9)(i) through (iv). It to say the cumulative hydrologic impact paragraph (b)(9). In response to these allows the regulatory authority to assessment evaluation must consider comments and to maintain consistency distinguish between environmental and impacts to threatened and endangered with other aspects of the final rule, we human use changes that are related to species and also included language to revised proposed paragraph (b)(8)(i), mining from the proposed operation and the definition of material damage to the now final paragraph (b)(9)(i), to ensure those that are not. In addition, the hydrologic balance outside the permit that the proposed operation will not baseline monitoring requirements in area pertaining to a violation of the result in violation of applicable Clean § 780.19 of the final rule will better Endangered Species Act. We changed Water Act water quality standards or enable the regulatory authority to the language in those two sections to disrupt or preclude attainment of distinguish between mining-related match the intent of each respective certain uses as identified in final impacts and non-mining impacts. section. Adding language to the paragraphs (b)(9)(i)(A), (B) and (C). For Final paragraph (b)(9) requires the definition of ‘‘material damage to the consistency with the revised definition regulatory authority to, after hydrologic balance outside the permit of ‘‘material damage to the hydrologic consultation with the Clean Water Act area’’ in reference to a violation of the balance outside the permit area’’ in authority, as appropriate, provide Endangered Species Act also serves as a § 701.5, we deleted ‘‘reasonably supporting data and analyses that the way to memorialize the performance foreseeable uses’’ from this paragraph. proposed operation has been designed standard nature of such an event. We The final rule still protects designated to prevent material damage to the also made these changes to be consistent and premining uses. It more closely hydrologic balance outside the permit with final rule § 780.16(b), pertaining to mirrors the requirements of SMCRA, area. To support this finding, the the fish and wildlife protection and while explicitly acknowledging that cumulative hydrologic impact enhancement plan and § 779.20, isolated water quality exceedances or assessment must include several pertaining to information about the fish

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93182 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

and wildlife resources to be included in 816.111. These design criteria guide the commenter’s raised concerns about the permit application. design, construction, and conversions both inside the permit area Some commenters expressed concern implementation of the final site and outside the permit area. We address with the proposed language at reclamation configuration and include commenters’ concerns about paragraph (b)(8)(ii), now paragraph requirements to address postmining conversions outside the permit area in (b)(9)(ii), requiring that the operation be drainage issues and stormwater this section of the final rule and discuss designed to prevent an increase in management. In addition, hydrologic the changes to the final rule about damage from flooding when compared performance criteria exist at section conversions inside the permit area in to premining conditions. One of the 816.34 to prevent stormwater-induced the preamble discussion of final rule commenters indicated that it would be flooding from SMCRA sites. §§ 780.28(e) and 784.28(e), below. In difficult to make the measurements One commenter questioned the consideration of the comments specific required under this provision and that application of the term ‘‘recharge to preparation, use, and review of the it would require an investigation of capacity’’ within proposed paragraph cumulative hydrologic impact premining flood events to establish (b)(8)(iii), now paragraph (b)(9)(iii). We assessment, we have revised paragraph baseline for assessing damage from have removed this term from this (b)(9)(iii) of the final rule about flooding. We agree that the proposed paragraph of the final rule because the conversions of perennial and language could be interpreted to require term refers to the ability of the intermittent streams outside the permit an investigation of premining flood overburden to release water to the area. We acknowledge that conversion events. We have removed the phrase surface water system and does not of streams may often have beneficial ‘‘damage from’’ within paragraph reflect the goal of maintaining baseflow effects, such as converting an ephemeral (b)(9)(ii) of the final rule in order to in streams overlying and adjacent to a stream to an intermittent or perennial clarify that such a premining SMCRA mine site. Recharge capacity is stream. Thus, we have revised the rule investigation is not required. The final an important consideration in the language to allow conversion of rule, however, continues to require a overall hydrologic balance but is not the intermittent streams to perennial finding that the operation has been primary objective of paragraph streams or conversion of an ephemeral designed to ensure that flows will not (b)(9)(iii). Recharge capacity is a term stream to an intermittent or perennial cause increased flooding outside the used to describe the movement of water stream outside the permit area as long permit area compared to premining through soil and rock, ultimately to as the conversion is consistent with the conditions. This revision focuses discharge as surface water flow. This requirements in paragraph (b)(9)(i) and assessment upon peak flows that could concept is different than the primary does not violate the Endangered Species result in flooding and not damage from objective of (b)(9)(iii) which is to Act. Allowing conversion of certain flooding. In addition, we added the maintain baseflow in a stream. For this streams addresses the commenters’ phrase ‘‘outside the permit area’’ to reason, we removed the term ‘‘recharge concern about limiting or preventing clarify that the operation must be capacity’’ to focus the requirement on conversion while at the same time designed to ensure that neither the sustaining baseflow to prevent material adhering to the environmental mining operation nor the final damage to the hydrologic balance objectives of SMCRA found in sections configuration of the reclaimed area will outside the permit area. 510(b) and 515(b).410 result in changes in the size or Commenters alleged that, as One regulatory authority suggested frequency of peak flows from proposed, paragraph (b)(8)(iii), now that we delete proposed paragraph precipitation events or thaws that would paragraph (b)(9)(iii), prohibited the (b)(8)(iv), now paragraph (b)(9)(iv), cause an increase in flooding outside conversion of a perennial or intermittent related to the protection of the quantity the permit area, when compared with stream to an ephemeral stream or and quality of water in ‘‘any aquifer that premining conditions. We made this conversion of a perennial stream to an significantly ensures the prevailing change to focus the assessment on peak intermittent stream. A regulatory hydrologic balance.’’ The commenter flows that could result in flooding and authority commented that, as drafted, opined that water replacement potential damage. One commenter the provision would result in the requirements for in-use water supplies suggested modifying the word inability of mine operators to permit are already protected and adhered to by ‘‘changes’’ to ‘‘increases’’ to be more and mine lands because stream operators and that replacement supplies accurate and limiting. This modification conversion is a common, existing are of equal or better quantity, quality, is not necessary because the final rule occurrence during mining and and delivery method. We interpret this at paragraph (b)(9)(ii) states that the reclamation. Two other commenters comment to mean that existing rule changes would be of size or frequency indicated that, in effect, this paragraph language in other sections provides the to cause an increase in flooding. would be impossible to satisfy because same protection as proposed paragraph Another commenter recommended streams behave differently depending (b)(9)(iv) and that existing water that the applicant should plan for, and upon numerous natural and man-made replacement provisions can be better submit, sufficient information on the interdependent variables. The than existing conditions. While we magnitude of precipitation events, commenters further opined that support the regulatory authorities’ especially given that the operator knows technological and economic limitations continued use and implementation of the final reclamation configuration of may necessitate stream conversion in water replacement requirements, we the site and can anticipate the some situations. The same commenters decline to remove the provision because magnitude of stormwater runoff also suggested that it should be final paragraph (b)(9)(iv) protects more resulting from the final reclamation permissible to allow a portion of a resources than the water replacement configuration. The commenter also watershed to be degraded as long as the provisions found in the previous opined that this information was not watershed as a whole remains regulations. Water replacement required in the proposed rule. We do functional. For these reasons the provisions are designed to address not agree with the commenter that the commenters recommended removal of individual water supplies on a case-by- proposed rule did not address this issue; the proposed provision that they case basis, which implies an intact design criteria for postmining site interpreted as limiting or preventing configuration are found at §§ 816.102 to stream conversions. Several of the 410 30 U.S.C. 1260(b) and 1265(b).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93183

aquifer system. In contrast, final monitoring data and to review the Section 780.22: What information must paragraph (b)(9)(iv) requires a review of, probable hydrologic consequences I include in the hydrologic reclamation and prevention of, material damage to determination. plan and what information must I the hydrologic balance outside the One regulatory authority commenter provide on alternative water sources? permit area to important and explained that it has been standard hydrologically significant aquifers in Section 780.22 describes the practice since its program was approved order to address an entire aquifer, not information the operator must include just a single water supply. to update the cumulative hydrologic in the hydrologic reclamation plan and impact assessment whenever a change the information that must be provided Final Paragraph (c): Subsequent or proposed change of any aspect of the Reviews on alternative water sources. As hydrologic environment warranted the discussed in the preamble to the We have made a minor change to update or when area is added to the proposed rule, we proposed to modify proposed paragraph (c)(1)(i), now final permit. The commenter continued by our regulations at § 780.22.413 In paragraph(c)(2). Commenters pointed noting that a significant update to the response to comments that we received, out that, within this section, biological probable hydrologic consequences we have made several modifications. monitoring was not included in the determination or the hydrologic review of monitoring data that the reclamation plan would trigger a Final Paragraph (a): Hydrologic regulatory authority must perform. We cumulative hydrologic impact Reclamation Plan agree that it should be included and assessment update. Another regulatory This paragraph identifies the have added the requirement to this authority commenter indicated that requirements the permit applicant must section. cumulative hydrologic impact One commenter opined that proposed include in the hydrologic reclamation assessment reviews are done as a matter § 780.21(c) is not adequately plan, including the maps and of course and updated as necessary. conservative because it requires descriptions that demonstrate how the Industry commenters recognized that cumulative hydrologic impact proposed operation will comply with any data analysis may be done assessments only for significant permit the applicable provisions of subchapter periodically, as determined by the revisions. According to the commenter, K, that relate to protection of the regulatory authority, in the Annual cumulative hydrologic impact hydrologic balance. We received a Report, interim review, or other similar assessments should also be required for comment from a regulatory authority on certain non-significant revisions. report or process. Commenters generally proposed paragraphs (a)(2)(i) and (ii), However, the commenter did not supported a requirement that allows the requesting that we clarify the provide any specific examples of non- state regulatory authority discretion for relationship between disturbances to the significant revisions that would have determining when a cumulative hydrologic balance in adjacent areas, the potential to affect the analysis. We hydrologic impact assessment needs to which are allowable, and material are retaining the rule as proposed in be updated. Although we recognize that damage to the hydrologic balance relationship to this comment. As some states do a good job with these outside the permit area, which is not explained in the preamble to the updates, a periodic review of the 411 allowable. The regulatory authority also proposed rule preparation of a new cumulative hydrologic impact suggested that we define disturbances. or updated cumulative hydrologic assessment data and conclusions must We have defined material damage to the impact assessment will occur whenever occur on a frequent basis to ensure that hydrologic balance outside the permit the regulatory authority finds that one is material damage to the hydrologic area in § 701.5 and have provided a needed based on the evaluation in final balance outside the permit area is not paragraphs (c)(1) and (2). general discussion of material damage to occurring or is likely to occur through Several industry and regulatory the hydrologic balance outside the the life of the permit. The absence of authority commenters expressed permit area in Part IV. L. of the consistent cumulative hydrologic concern that the cumulative hydrologic preamble. Under our regulations as impact assessment reviews likely results impact assessment review process finalized today, any activity that in adverse trends that may persist to a required in paragraph (c) was linked to adversely affects the hydrology of point where corrective action options permit renewal. These commenters adjacent areas but that does not rise to 412 become limited, costly, or impossible. stated that section 506(d) of SMCRA the level of material damage to the Regular review will allow the operation guarantees the right of successive permit hydrologic balance outside the permit plan to be adjusted before corrective renewal and any changes to the area would be considered a disturbance cumulative hydrologic impact action is needed or options become too subject to the minimization assessment and underlying conclusions limited to adequately protect the requirements of our rule. Consequently, might provide an opportunity to void hydrologic balance. We selected three although we appreciate the commenter’s this right. In response, we have revised year intervals for this review because concern, it is not necessary to define final paragraph (c)(2) to require review that time period is not linked with ‘‘disturbance,’’ and we have not made of the cumulative hydrologic impact permit renewal or mid-term review but any substantive changes to these assessment, including the evaluation is frequent enough to allow for detection paragraphs in the final rule. thresholds, every three years instead of of necessary changes in the mining and Importantly, these paragraphs retain the linking the review to the renewal of the reclamation plan and/or needed distinctions present in sections permit. Because of the same concerns corrective action to ensure protection of 510(b)(3) and 515(b)(10) of SMCRA.414 about permit renewal, we have revised the hydrologic balance outside the We did make minor revisions to clarify paragraphs (b)(vii) through (viii) of final permit area. This ensures that permit the applicability of the bonding sections rule § 774.15, related to permit renewal, renewal and mid-term reviews are not to paragraphs (a)(2) and (4). to remove the requirements to review all contingent on the cumulative hydrologic impact assessment review. 411 80 FR 44436, 44503 (Jul. 27, 2015). 413 80 FR 44436, 44526–27 (Jul. 27, 2015). 412 30 U.S.C. 1256(d). 414 30 U.S.C. 1260(b)(3) and 1265(b)(10).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93184 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Final Paragraph (b): Alternative Water to the application for a surface coal that identifies specific water supplies Source Information mining and reclamation permit, which that may be adversely affected and that Several regulatory authority has been affected by contamination, would require an alternative source. The commenters expressed concern about diminution or interruption resulting final rule does not require replacement proposed paragraph (b). One regulatory from underground coal mining of all potentially impacted supplies operations.417 authority suggested that we delete the Thus, we are not prior to any mining; however, the water removing paragraph (b)(1) from the final must be replaced prior to the supply paragraph and retain the previous rule text, but have revised some of the being adversely impacted. This regulations. In particular, the regulatory text for the sake of clarity. For the sake provision guarantees that there will be authority did not like it that this of clarity, we also added paragraph no gap in the availability of water provision invoked the alternative water (b)(1)(ii) to include the requirement for sources and that water sources remain source requirements for adverse effects an implementation schedule as part of available for use throughout the mining to water sources ‘‘within the proposed the water supply replacement plan. This process. As long as this guarantee is permit . . . area[ ].’’ The commenter additional requirement will help ensure met, the timing of when a specific pointed out that there are always that the water supply replacement plan alternative water source needs to be adverse impacts within the permit area. developed by the operator is well replaced is left to the discretion of the We are not accepting the suggestion to planned and feasible. One regulatory regulatory authority, as approved in the remove the entire paragraph (b) because authority suggested that we delete the water supply replacement plan. this paragraph is necessary to clarify the word ‘‘may’’ in proposed paragraph Section 780.23: What information must water supply replacement requirements (b)(3)(i). This paragraph requires that an I include in plans for monitoring of of sections 717(b) and 720(a)(2) of alternative water supply be developed 415 groundwater, surface water, and the SMCRA. However, upon our own and installed on a permanent basis biological condition of streams during review of the rule language, we before the operation ‘‘may’’ adversely and after mining? recognized that we erroneously affect an existing water supply protected included the phrase ‘‘within the under the performance standards of As discussed in the preamble to the proposed permit area and adjacent area’’ final § 816.40, which discusses the proposed rule,418 we proposed to in paragraph (b)(1) of the proposed rule responsibility of an operator to replace modify our regulations at § 780.23. This and are removing it from the final rule water supplies. If there is a possibility section describes what the operator to ensure the regulations conform to that a coal-mining operation could must include in plans for monitoring of section 717(b) and 720(a)(2), which do adversely impact an existing water groundwater and surface water, and the not contain this limiting phrase. supply, an alternative water supply biological condition of streams during Some of the other regulatory authority must be developed and installed on a and after mining. This includes annual commenters asserted that in certain permanent basis before the operation biological monitoring of intermittent situations the regulatory authority reaches a point where it could adversely and perennial streams. In response to already requires water supply affect that existing water supply. comments and based upon our further infrastructure to be put in place in Although we do not agree with the evaluation of the proposed rule, we advance of mining to ensure commenter’s concern about the use of have made several changes to the final uninterrupted service. It is good that ‘‘may’’ we have revised the text for the rule. some regulatory authorities are already purpose of clarity and without using the We have revised paragraph (a)(1)(i) ensuring that there will be no gap in the word ‘‘may’’ in the revision. Therefore, and (b)(1)(i) to clarify that the water supply as a result of mining. within the final rule, paragraph (b)(3)(i) monitoring plans for groundwater and However, given the importance in the final rule reads, ‘‘[w]hen a surface water must include the locations Congress has placed on protecting water suitable alternative water source is of monitoring sites, the measurements supplies, this requirement should be available, your operation plan must that must be taken at each location, and applicable everywhere. The importance require that the alternative water supply a listing of the parameters to be of protection water supplies was be developed and installed on a monitored. This additional information underscored in section 717(b) of permanent basis before your operation will assist the review and analysis of the SMCRA that requires that the operator advances to the point at which it could data obtained from monitoring by of a surface coal mine replace the water adversely affect and existing water providing location and measurement supply of an owner of interest in real supply protected under § 816.40 of the context. Additionally, in final property who obtains all or part of his chapter.’’ paragraphs (a)(1)(ii) and (b)(1)(iii), we supply of water for domestic, Other commenters expressed concern have deleted ‘‘for each parameter’’ to be agricultural, industrial, or other about the lack of regulatory authority consistent with the changes made to legitimate use from an underground or discretion in the proposed rule to make final paragraphs (a)(1)(i) and (b)(1)(i). surface source where such supply has a determination that a water supply Final Paragraph (a): Groundwater been affected by contamination, could be adversely impacted. In Monitoring Plan diminution, or interruption proximately addition, a commenter was concerned resulting from such surface about the potential burden on industry, In the second sentence of operation.416 Similarly, section 709(a) of especially for underground operations, § 780.23(a)(1)(iii), we state that, at a SMCRA affords protections for water to replace all potentially impacted water minimum, the groundwater monitoring replacement as a result of underground supplies in advance of mining. The final plan must include monitors in three mining operations requiring that rule mirrors the water replacement types of locations. One commenter underground coal mining operations provisions located in previous requested that we rephrase this sentence must promptly replace any drinking, §§ 816.41(h) and 817.41(j), which to require only that the groundwater domestic, or residential water supply provide the regulatory authority the monitoring plan ‘‘consider’’ the from a well or spring in existence prior discretion to approve the probable placement of monitoring wells in these hydrologic consequences determination three types of locations because the 415 30 U.S.C. 1307(b) and 1309a(a)(2). 416 30 U.S.C. 1307(b). 417 30 U.S.C. 1309a(a)(2). 418 80 FR 44436, 44505–44507 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93185

commenter alleges that some operators backfill area and in the underground ‘‘proposed’’, final paragraph (a)(1)(iv)(B) cannot establish monitoring sites at the mine pools is necessary because these now correctly reflects the status of the locations specified in this section due to areas are the most likely sources of acid permit application process during factors beyond their control, such as mine drainage if it develops. Therefore, compliance with this provision. land ownership conflicts. We decline to we are retaining these requirements in Under final paragraphs (a)(2)(i) and make this change because it would, in the final rule. (b)(2)(i), we replaced the text ‘‘if those effect, make the requirements of One commenter questioned whether parameters relate to’’ with ‘‘to the extent subparagraphs (A)–(C) about monitoring the monitoring wells required under needed to assess,’’ in order to clarify well placement discretionary. The proposed § 784.23(a)(1)(iii)(C) for mine that the parameters to be monitored groundwater sampling data collected as pools that result from underground under final paragraphs (a)(2)(i) and part of paragraph (a) is necessary for mining operations would be removed (b)(2)(i) must be sufficient to evaluate comparison with the groundwater data before final bond release and asserted the requirements of paragraphs collected as part of § 780.19, a that if they are not removed, it could (a)(2)(i)(A), and (B) and (b)(2)(A)–(E). comparison that will help identify any become a safety issue. Data from Furthermore, under paragraphs trends and changes in the groundwater hydrologically connected mine pools (a)(2)(i)(A) and (b)(2)(i)(B), we have conditions. We recognize that land will provide both the permittee and the added ‘‘accuracy of the’’ to stipulate that ownership conflicts may present certain regulatory authority with necessary the purpose of the monitoring is to challenges. However, without minimum information to evaluate the efficacy of improve accuracy of the findings and predictions of the probable hydrologic requirements for groundwater the probable hydrologic consequences consequences determination prepared monitoring, the regulatory authority determination and to evaluate under § 780.20. would have insufficient data to conditions in the mine pools prior to determine if material damage to the Under the final rule, we have deleted final bond release; thus, we are retaining proposed paragraphs (a)(2)(i)(B) and hydrologic balance outside the permit the requirement. However, we agree area has occurred. Therefore, we have (b)(2)(i)(D) regarding the requirement to with the commenter that a monitoring monitor the parameters necessary to determined that locating monitoring well left after final bond release could wells as required under paragraphs assess the biological condition of become a safety issue if it is not perennial or intermittent streams or (a)(iii)(A) through (C) is necessary, transferred to the property owner despite potential difficulties associated other surface water bodies that receive because no one would be responsible for discharges from groundwater within the with locating monitoring wells in maintaining the well. When no longer different locations. proposed permit and adjacent areas. The needed, and with approval by the remaining sections have been Several commenters questioned the regulatory authority, monitoring wells renumbered accordingly. The necessity of installing groundwater must be permanently sealed or monitoring requirements in the deleted monitoring wells in aquifers located transferred to another party consistent paragraphs were removed because the above and below the coal seam to be with §§ 816.13 and 816.39 of this part. information they required was already mined as proposed in paragraph Therefore, because appropriate transfer accounted for in the monitoring (a)(1)(iii)(A), in backfilled portions of or sealing of monitoring wells must requirements under final paragraphs the permit area as proposed in already occur under final §§ 816.13 and (a)(2)(i)(A) and (b)(2)(i)(B), which paragraph (a)(1)(iii)(B), and in existing 816.39, respectively, we do not need to require monitoring of parameters underground mine workings that are in make any changes to final § 784.23 in necessary to assess the accuracy of the direct hydrologic connection to the response to this comment. Under findings and predictions in the probable proposed operation as proposed in paragraph (a)(1)(iv)(B), we now hydrologic consequences determination paragraph (a)(1)(iii)(C). The commenters requiring that the monitoring data be under § 780.20. In turn, considered monitoring above and below used to determine the ‘‘biology’’ of the § 780.20(a)(5)(vii) states that the the coal seam unnecessary and perennial and intermittent streams applicant must base the probable expensive, and wells installed in the within the proposed permit and hydrologic consequences determination backfill and in underground mine adjacent areas instead of the ‘‘biological on an analysis of the baseline workings to be of little value. Despite condition’’ of those streams. We made hydrologic, geologic, biological, and these comments, we have not removed this change for the same reasons we other information required under these requirements because they are articulated above in connection with § 780.19 and must include findings on necessary to ensure that the coal mining final § 780.19(c)(6)(vi) through (viii): the impact that the proposed operation operation, during and after mining, is ‘‘biology’’ encompasses the type of will have on the biology of perennial not causing material damage to the information needed to establish both the and intermittent streams within the hydrologic balance outside the permit biological condition of perennial and proposed permit and adjacent areas, area. Data collected from upgradient intermittent streams, for which except as provided in § 780.19(g) of that monitoring wells installed in aquifers established protocols exist and the part. Therefore, monitoring of located above and below the coal seam biology of intermittent streams for parameters necessary to assess the provide information on the condition of which established protocols do not accuracy of the findings and predictions the groundwater entering the mine site. exist. This language change recognizes of the probable hydrologic Comparison of this upgradient that not all states have scientifically consequences determination would information to groundwater data valid protocols for assessing the necessarily include monitoring of the obtained from downgradient monitoring biological condition of intermittent biology, making proposed (a)(2)(i)(B) wells as it exits the mine site will streams. We also made an editorial and (b)(2)(i)(D) redundant. provide the mine operator and the correction, by inserting ‘‘proposed’’ We made several changes to final regulatory authority insight into the before permit and adjacent areas. During paragraphs (a)(2)(ii) and (b)(2)(ii). First, effects of the mining activities on the the development of the groundwater we revised the titles of these paragraphs quality and quantity of the groundwater monitoring plan, the permit has not to clarify that these sections contain the as compared to offsite conditions. been issued yet and is part of the permit minimum requirements for sampling Monitoring wells installed in the application. By inserting the word and analysis of groundwater and surface

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93186 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

water, respectively. Next, we clarified moved this requirement. It is now found existing or foreseeable use for paragraphs (a)(2)(ii) and (b)(2)(ii) by in final § 780.23(a)(2)(i) and (ii)(D) and agricultural, human, or fish and wildlife deleting ‘‘that the following parameters states that the plan must require purposes. be measured at each location’’ and monitoring of all parameters for which This exception also implements replacing it with ‘‘collection and the regulatory authority has established section 102(f) of SMCRA 421 by striking analysis of a sample from each ‘‘evaluation thresholds under a balance between the protection of the monitoring point.’’ Finally, we added § 780.21(b)(7) of this part.’’ We chose to environment and supporting the language to the end of paragraphs require monitoring for evaluation Nation’s need for coal by requiring (a)(2)(ii) and (b)(2)(ii) to better introduce thresholds instead of material damage ground water monitoring only where the data sampling and analysis thresholds because, as set forth in final there is an existing or foreseeable use for requirements in (a)(2)(ii)(A) through (D) § 780.21(b)(7), evaluation thresholds agricultural, human, or fish and wildlife and (b)(2)(ii)(A) through (D). must be set for all critical water quality purposes, or where the aquifer We also reduced redundancies in the and quantity parameters. Evaluation significantly ensures the hydrologic rule by removing the breakout of thresholds under § 780.21(b)(7) are balance within the cumulative impact specific parameters that must be values for water quality and quantity area. Where a permit qualifies for the collected and analyzed every 3 months parameters that, when attained, will exemption in final (a)(4), the applicant in proposed paragraphs (a)(2)(ii)(A) trigger reassessment of the probable can avoid monitoring costs, allowing through (Q) and (b)(2)(ii)(B) through (S). hydrologic consequences determination resources to be available for other These parameters are already listed in and development of corrective protection and enhancement measures final § 780.19(a)(2). Instead, final measures, if necessary, to prevent that could have a more direct benefit to paragraphs (a)(2)(ii)(A) and (b)(2)(ii)(A) material damage to the hydrologic the environment. simply require that the data collected balance outside the permit area. Final Paragraph (b): Surface-Water include an analysis of each sample for Monitoring of these critical parameters Monitoring Plan parameters listed in § 780.19(a)(2). The is thus crucial to detect whether remaining requirements have been re- hydrologic conditions are being affected For changes made to final paragraphs lettered accordingly. For clarification by the mining operation in a manner (b)(1)(i), (b)(1)(iii), (b)(2)(i), (b)(2)(ii), purposes, under proposed paragraph that could cause an exceedance of the and (b)(3)(ii), please refer to the (a)(2)(ii)(R), now final paragraph comparable material damage threshold preamble discussion above in the (a)(2)(ii)(B), we have added language if corrective action is not taken. Thus, corresponding paragraphs in final that specifies that the reporting any parameter for which there is an paragraph (a). requirements apply to water levels for evaluation threshold set must be Several commenters requested that we all wells and discharge rates for all monitored; otherwise, the purpose of allow multiple permits to rely on data springs or underground openings used setting an evaluation threshold is not from a single self-recording device for monitoring purposes. We have being achieved. where the multiple permits are close revised proposed paragraphs (a)(2)(ii)(S) Commenters noted that ‘‘water- enough to share data. These commenters and (b)(2)(ii)(T), now final paragraphs bearing stratum,’’ as used in proposed alleged that allowing multiple operators (a)(2)(ii)(C) and (b)(2)(ii)(C), paragraph (a)(4), is a new term and is to share the cost of a self-recording respectively, for clarity. Final not defined. In response, in final device could result in labor and paragraphs (a)(2)(ii)(C) and (b)(2)(ii)(C) paragraph (a)(4), we have replaced the equipment cost reductions. In response now more clearly state that the data term ‘‘water-bearing stratum’’ with to these comments we have added final required under this paragraph must ‘‘aquifer,’’ a term that is defined in paragraph (b)(1)(ii)(C) to allow, at the include an analysis of all parameters § 701.5. This change avoids using an discretion of the regulatory authority, a detected in the baseline sampling undefined term but does not change the single self-recording device to provide conducted under § 780.19(d) of this meaning of the paragraph. precipitation monitoring data for part. Several commenters requested, that, multiple permits that are contiguous or Proposed paragraphs (a)(2)(ii)(T) and in order to better protect groundwater nearly contiguous provided the device (b)(2)(ii)(U), now final paragraphs resources, we rescind the exception in can provide adequate and accurate (a)(2)(ii)(D) and (b)(2)(ii)(D), paragraph (a)(4) from monitoring for coverage of precipitation events respectively, have been modified to be aquifers that have no existing or occurring in that area. consistent with the revisions made to foreseeable use for agricultural or other We removed the phrase ‘‘for each the titles of these sections. Additionally, human purposes or for fish and wildlife parameter to be monitored’’ in we have replaced the phrase purposes and that do not significantly paragraph (b)(1)(iii). For additional ‘‘parameters of local significance’’ with ensure the hydrologic balance within information about this change, please the phrase ‘‘other parameters of the cumulative impact area. We decline refer to the preamble discussion above concern’’ for consistency with the to make this change. SMCRA requires in final paragraph (a)(1)(ii). We revised paragraph (b)(1)(v)(B) to definition of ‘‘parameters of concern’’ monitoring ‘‘for those surface coal more thoroughly address concerns from included in final § 701.5. mining and reclamation operations Proposed paragraphs (a)(3)(ii) and which remove or disturb strata that commenters about the clarity of the (b)(3)(ii) included the sentence: ‘‘[a]t a serve as aquifers which significantly proposed rule. This provision now minimum, the plan must require insure the hydrologic balance of water requires the applicant to describe how 420 monitoring of all parameters for which use either on or off the mining site.’’ the monitoring data will be used to the regulatory has established a Because SMCRA does not further define determine the impacts of the operation ‘material damage criteria’ 419 pursuant to the qualities of aquifers that ‘‘upon the biology of perennial and the cumulative hydrologic impact ‘‘significantly insure the hydrologic intermittent streams, lakes, and ponds assessment.’’ We have revised and balance,’’ we have used our discretion within the proposed permit and to interpret this monitoring requirement adjacent areas.’’ For clarity we have 419 ‘‘Material damage criteria’’ are referred to as to refer to aquifers that are or have an substituted a reference to ‘‘lakes’’ and ‘‘material damage thresholds’’ in the final rule. See final preamble discussion for section 780.21(b)(6). 420 30 U.S.C. 1267(b)(2). 421 30 U.S.C. 1202(f).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93187

‘‘ponds’’ for the reference in the areas. Similarly, we revised proposed required by the National Pollutant proposed rule to ‘‘other surface-water paragraph (b)(2)(i)(F), now final Discharge Elimination System bodies.’’ We have discussed the paragraph (b)(2)(i)(E), to clarify the permitting authority and the substitution of ‘‘biology’’ for ‘‘biological monitoring plan must include the measurement of flow rates is required as condition’’ to ‘‘biology’’ above in the parameters needed to assess the part of the National Pollutant Discharge preamble discussion of § 780.19(c)(6)(vi) suitability of the quality and quantity of Elimination System permit. Therefore, through (viii). surface water to support the premining the requirement to measure the flow A commenter questioned the need for land uses both within the proposed rates does not supersede section 402 the monitoring data required in permit and adjacent areas. Clean Water Act; it is consistent with proposed paragraph (b)(1)(v)(B) to We have revised final paragraph that Act. We have also prohibited the determine the impacts of the operation (b)(2)(ii) for clarity. Please refer to the use of visual observations to measure on the biology of streams that will be preamble discussion above on flow rates. As we have stated elsewhere mined through, alleging that this data is paragraph (a)(2)(ii) for more in this preamble, visual observations, by unnecessary. The commenter also information. Proposed paragraph their very nature, lack precision and alleged that this requirement contradicts (b)(2)(ii)(A), now final paragraph vary among observers. As such, they are SMCRA’s requirement to minimize (b)(2)(ii)(B), remains essentially not an objective measurement and impacts within the permit boundary. unchanged except that we have clarified cannot be reproduced. We disagree that this data is that flow rates must be obtained from We have provided additional unnecessary. The collection of data each sampling location. language at the end of final paragraph related to baseline hydrologic and We have revised proposed paragraphs (b)(2)(iv) to specify that the applicant biologic conditions is necessary for the (b)(2)(ii)(T) and (U), now final must revise the surface-water operator to make a determination paragraphs (b)(2)(ii)(C) and (D) for monitoring plan to incorporate any site- whether restoration of the stream is clarity. For additional information, specific monitoring requirements possible as required in §§ 780.12, please refer to the preamble discussions imposed by the National Pollutant 780.27, 780.28, 816.56, and 816.57 of above on final paragraphs (a)(2)(ii)(C) Discharge Elimination System this chapter. In addition, it provides and (D). permitting or Clean Water Act authority information on the quality and quantity One commenter requested that we subsequent to submission of the SMCRA of the surface waters prior to mining include a list of parameters in permit application. We have added this which will document the baseline § 780.23(b)(2)(iii), related to minimum provision to ensure that the applicant conditions needed for determining requirements for point source updates the SMCRA permit application whether stream restoration is successful. discharges, including those parameters as necessary with information that it has In final rule paragraph (b)(2)(i), we listed in proposed § 780.23(b)(2)(ii)(A) submitted in accordance with National have deleted ‘‘if those parameters relate through (S). Conversely, another Pollutant Discharge Elimination System to the’’ and replaced it with ‘‘to the commenter did not want us to require permit requirements. extent needed to assess the . . . .’’ all of the parameters referenced in We are adopting final paragraph Please see the preamble discussion at § 780.23(b)(2)(ii) for point-source (b)(3)(ii) as proposed except that we are (a)(2)(i) for more discussion of this discharges, alleging that it would be requiring that the plan include change. In the final rule, we have also outside of our authority under SMCRA. monitoring of all parameters for which deleted proposed paragraph (b)(2)(i)(D) Monitoring requirements for point- the regulatory authority has established which set out a requirement for source discharges are determined by evaluation thresholds under monitoring of the biological condition of Clean Water Act authorities under the § 780.21(b)(7) of this part. We explain perennial or intermittent streams or National Pollutant Discharge this revision further at our preamble other surface water bodies within the Elimination System program. We do not discussion for (a)(3)(ii). proposed permit and adjacent areas and have the authority under SMCRA to Final Paragraph (c): Biological have renumbered the remaining mandate what parameters must be Condition Monitoring Plan paragraphs accordingly. Please refer to included in National Pollutant the preamble discussion above in Discharge Elimination System permits; Various commenters opposed the new § 780.28(a)(2)(i)(B) for further therefore, we have made no changes to biological condition monitoring plan information about this change. the final rule in response to these requirements at proposed paragraph (c), In the final rule, we revised proposed comments. alleging that the new requirements will paragraph (b)(2)(i)(E), now final A commenter stated that we should be costly to comply with and do not paragraph (b)(2)(i)(D), to clarify that the delete proposed paragraph (b)(2)(iii)(B) offer clear guidance. Commenters surface-water monitoring plan must which requires the surface water specifically expressed uncertainty about include monitoring of those parameters monitoring plan to include the the frequency and timing of monitoring necessary to assess the suitability of the measurement of flow rates for point- under this paragraph. We acknowledge quality and quantity of surface water for source discharges. The commenter that the requirements at proposed all designated uses under 303(c) of the alleged that this paragraph supersedes paragraph (c), final paragraph (c), may Clean Water Act.422 We further revised section 402 Clean Water Act contribute to increased monitoring this provision to specify that, if there are requirements 423 by establishing criteria costs. However, we have carefully no designated uses associated with the for flow measurements other than under evaluated the potential benefits of the surface water, the parameters for National Pollutant Discharge information required by this provision monitoring must be sufficient to assess Elimination System permits. We and have determined that it is necessary all premining uses of the surface water. disagree with the commenter. Paragraph to adequately determine the condition We have also clarified that these (b)(2)(iii)(A) of this section clearly states of the stream premining, during mining, requirements apply both to surface that monitoring of point-source and after mining. We find that the water located within the proposed discharges must be in accordance with beneficial impacts of this information permit and to those in the adjacent 40 CFR parts 122, 123, and 434 and as outweigh the costs and burdens to the operator and regulatory authority. With 422 33 U.S.C. 1251(a) and 30 U.S.C. 1313(c). 423 33 U.S.C. 1342. respect to the frequency of monitoring

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93188 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

during and after mining, the final rule regions. While many of these effects are one sample is taken per year, the within paragraph (c)(2)(iii) clarifies that minor, they also often involve off-site information gathered will not be helpful the sampling frequency must be no less impacts, and to minimize these off-site in determining, in a timely manner, than annual and must not be so frequent impacts using the best technology whether corrective actions are as to deplete the populations being currently available, we are retaining necessary. While these commenters are monitored. these requirements. These baseline correct that this sampling is only Some commenters opposed the assessments of the biological condition required annually, additional samples requirement for the biological condition of perennial streams where scientifically can be taken as long as the additional monitoring plan as proposed in defensible protocols exist will allow for sampling will not deplete the paragraph (c), because of an alleged lack appropriate stream assessment and populations of species being monitored. of available studies demonstrating that monitoring and will result in Additionally, the information obtained this type of monitoring is necessary for minimization of effects to fish, wildlife, from the biological condition or appropriate to streams outside of and environmental resources consistent monitoring plan should be evaluated Appalachia. We have determined that with the requirements of section alongside the other parts of the water these requirements are necessary for and 515(b)(24) of SMCRA.426 For further monitoring requirements, such as the appropriate for mining operations discussion of using scientifically surface-water and groundwater throughout the country. Although we defensible bioassessment protocols monitoring requirements of paragraphs cite studies about Appalachia in support when monitoring streams please see the (a) and (b). Taken together, the once-a- of our conclusions,424 the ability to final preamble discussion in year biological condition monitoring obtain information through § 780.19(c)(6). and the other more frequent monitoring bioassessment protocols is currently As stated in final § 780.19(c)(6)(vii), requirements of paragraphs (a) and (b), available on international, national, the permittee must adhere to a will allow the regulatory authority to regional, and state levels and the ability bioassessment protocol approved by the have the data necessary to identify to establish effective baseline state or tribal agency responsible for trends that indicate that an operation is information for monitoring on all preparing the water quality inventory at risk of causing material damage to the perennial streams, no matter the size, required under section 305(b) of the hydrologic balance outside the permit 427 habitat type, or vegetative cover is Clean Water Act, 33 U.S.C. 1315(b), area. Therefore, we are retaining the attainable using the best technology or other scientifically-defensible requirement for biological condition currently available. Additionally, the bioassessment protocol accepted by monitoring because it is necessary to U.S. Environmental Protection Agency agencies responsible for implementing determine whether material damage to authored the ‘‘National Rivers and the Clean Water Act. Through the hydrological balance outside the Streams Assessment.’’ This assessment coordination with the U.S. permit area is occurring, as well as to explains the minimum requirements for Environmental Protection Agency, the assess the effects of mining operations monitoring streams and is consistent U.S. Army Corps of Engineers, and state on fish, wildlife, and related with our final rule. Further, this Clean Water Act authorities, environmental resources. assessment is scientifically defensible in publications and additional information the 48 conterminous states.425 As to the on applicability and region-specific These commenters also asserted that necessity of this monitoring, there are bioassessment protocols can be biological condition monitoring does long-standing examples of surface water provided for SMCRA regulatory not identify the cause of the impacts impacts identified by SMCRA regulatory authorities to establish appropriate and could reflect impacts not associated authorities across all coal bearing biological condition monitoring plans with the mining operations, such as consistent with the required use of logging, farming, livestock, irrigation, 424 See, e.g., S.T. Larned, et al., Emerging scientifically-defensible bioassessment natural variation, or unusual flow concepts in temporary-river ecology. Freshwater protocols. For further information on events. We agree that in certain Biology. pgs. 55, 717–738 (2010). bioassessment protocols, please refer to instances, such as those listed above, it L.A. Beche, et al., Long-term seasonal variation in is possible that the biological condition the biological traits of benthic-macroinvertebrates the preamble discussion of paragraphs in two Mediterranean-climate streams in California, (vi) through (viii) of final § 780.19(c)(6). monitoring may show impacts that are U.S.A. Freshwater Biology. pgs. 51: 56–75 (2006). Many commenters supported the not directly associated with the mining A. Boulton and P. Lake. The ecology of two requirement to monitor the effects of the operations. However, as stated above, intermittent streams in Victoria, Australia III. we intend for data obtained from the Temporal changes in faunal composition. mining operation upon the biological Freshwater Biology pgs. 27, 123–138 (1992). condition of intermittent and perennial biological condition monitoring to be E. Bernhardt and M. Palmer. The environmental streams, noting that biological evaluated with the data obtained from costs of mountaintop mining valley fill operations monitoring is necessary to assess the surface-water and groundwater for aquatic ecosystems of the Central Appalachians. monitoring, not on a stand-alone basis. The Year in Ecology and Conservation Biology. effects of mining operations on fish, Ann. N.Y. Acad. Sci. pgs. 39–57 (2011). wildlife, and related environmental Evaluation of the data resulting from the C. Leigh and K. Fritz, Ecological research and resources as well as to determine three types of monitoring will allow the management of intermittent rivers: An historical whether material damage to the regulatory authority to determine if review and future directions. Freshwater Biology hydrological balance outside the permit impacts to stream biology are related to (2015). the mining operation and if corrective T. Nadeau and M. Cable Rains, Hydrological area is occurring. Other commenters Connectivity Between Headwater Streams and opposed monitoring the effects of the action is needed to prevent the Downstream Waters: How Science Can Inform mining operation upon the biological operation from causing material damage Policy. Journal of the American Water Resources condition of streams and recommended to the hydrological balance outside the Ass’n, pgs. 43(1): 118–133 (2007). permit area. This requirement provides 425 U.S. Envtl. Prot. Agency. National Rivers and that we eliminate this requirement from Streams Assessment 2013–2014: Field Operations the rule. Commenters opposing the applicants better protection against Manual—Wadeable. EPA–841–B–12–009b. Office biological condition monitoring potential liability for environmental of Water Washington, DC (2013), see also, U.S. requirement alleged that, because only harm because the additional data will Envtl. Prot. Agency, https://www.epa.gov/wqc/ make it easier to determine whether the information-bioassessment-and-biocriteria- programs-streams-and-wadeable-rivers (last 426 30 U.S.C. 1265(b)(24). impact is a result of mining activities or accessed Nov. 1, 2016). 427 33 U.S.C. 1315(b). activities unrelated to mining.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93189

Several commenters suggested that naturally revegetated and that any supporting evidence, that Clean Water the biological condition monitoring mining would re-disturb important Act authorities allow large municipal plans in §§ 780.23(c) and 784.23(c) plant communities, despite the fact that wastewater treatment plants to should be prepared by a qualified these areas might also contain eliminate biological monitoring. We do ecologist or biologist. Because the unreclaimed abandoned mine features. not agree that the regulatory authority requirements contained in final We agree that, in some instances, should have increased discretion to paragraph (c) and paragraphs (vi) unreclaimed areas that have naturally waive biological condition monitoring. through (viii) of final § 780.19(c)(6) revegetated, may qualify for the As discussed above and in the preamble contain detailed requirements about exemption under final paragraph (d)(1). to the proposed rule,429 biological what must be monitored and which However, despite naturally revegetating monitoring is generally necessary to scientific protocols are acceptable, it is and supporting a biological community, determine whether material damage to not necessary to also have the plans be these sites are often still dangerous prepared by a qualified ecologist or because of unreclaimed spoil piles, the hydrologic balance outside the biologist. highwalls, and pits. Further, permit area is occurring and to assess We made minor clarifying revisions reclamation funds are severely limited the effects of mining operations on fish, throughout final paragraph (c). and remining is often the only viable wildlife, and related environmental Specifically, the phrase ‘‘for which method of reclaiming previously mined resources. The biological condition baseline biological condition data was areas, especially those that are far away monitoring plan is just one part of the collected under § 780.19(c)(6)(iv) of this from public roads or are not actively water monitoring requirements under part’’ has been added to paragraphs discharging acid-mine drainage. 780.23. Other parts of the water (c)(1) and (c)(2)(ii). This addition The exception at final paragraph monitoring requirements, such as the provides greater specificity as to the (d)(1) applies only where the permit surface water and groundwater monitoring locations within the area consists solely of lands eligible for monitoring requirements of paragraphs proposed permit and adjacent areas that remining and the regulatory authority (a) and (b), determine whether the biological condition monitoring plan has determined that a less extensive corrective actions are necessary. Taken must include. Additionally, we updated monitoring plan is adequate to monitor together, the once-a-year biological the citation in final paragraph (c)(2)(i) to the impacts. The applicant would also condition monitoring and the other reflect changes we made to final have to comply with final § 785.25. more frequent monitoring requirements, § 780.19. Therefore, the exception cannot be will allow the regulatory authority to invoked for every remining operation. Final Paragraph (d): Exceptions have the data necessary to identify With this exception we are attempting trends that indicate that an operation is This paragraph lists exceptions to the to encourage the mining of already at risk of causing material damage to the requirements for monitoring disturbed sites, which will then be hydrologic balance outside the permit groundwater, surface water and the reclaimed in a manner that returns the biological condition of streams during land to a premining state or another area. Despite the importance of this and after mining. It provides the appropriate postmining land use. While data, the final rule, at (d)(1) and (d)(2), regulatory authority with the flexibility additional disturbances, and the recognizes that there are some limited to modify the groundwater and surface potential for water quality impacts, situations when biological condition water requirements of paragraphs (a) would occur with any mining operation, monitoring would be unnecessary or and (b) of this section and modify or reclaiming these sites to a more natural unlikely to be helpful in detecting waive the biological condition condition is the best alternative in the material damage to the hydrologic monitoring plan requirements of long term. This exception conforms to balance outside the permit area and the paragraph (c) of this section. As section 102(h) of SMCRA,428 by effects of mining operations on fish, discussed below, we did not make any promoting the reclamation of mined wildlife, and related environmental changes to this section in response to areas left without adequate reclamation resources. We do not find any other comments. prior to the enactment of SMCRA. While exceptions necessary or appropriate One commenter recommended a small percentage of previously mined under SMCRA. We also do not agree deleting proposed paragraph (d)(1), areas may have naturally revegetated that deference to a Clean Water Act which provides the regulatory authority over decades, most of these sites, authority is appropriate under this the discretion to modify groundwater, regardless of revegetation, continue to provision as paragraph (d) relates to all surface water, and biological condition substantially degrade the quality of the monitoring, not just the monitoring monitoring plan requirements if the environment, prevent or damage the done pursuant to the Clean Water Act. proposed permit includes only land beneficial use of land or water It is the regulatory authority’s eligible for remining. This commenter resources, and endanger the health or responsibility to ensure that SMCRA’s expressed concern that this provision safety of the public. For these reasons, could be abused through overuse and requirements are met, including those we are retaining the exception as related to material damage to the that biological condition monitoring proposed. hydrologic balance outside the permit should be waived only when a stream Several commenters also contains no valuable biological recommended that we allow the area and fish, wildlife, and related community. The commenter asserted regulatory authority to waive biological environmental resources. Finally, that biological communities in these condition monitoring requirements in municipal wastewater treatment plants remined areas will be impacted and that other circumstances. Other commenters are not subject the same requirements as merely conducting a baseline suggested that we defer to the Clean surface coal mining and reclamation assessment of a stream’s biological Water Act authority to determine if operations and the analogy to these condition would not be sufficient. Many biological monitoring is necessary. In facilities is not indicative or commenters expressed concern that, in support of this position, these representative of SMCRA’s some instances, pre-SMCRA commenters assert, without any requirements. unreclaimed mines have been left undisturbed for so long that the area has 428 30 U.S.C. 1202(h). 429 80 FR 44436, 44469 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93190 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Final Paragraph (e): Coordination With reduce the capability of the land to the definition of ‘‘material damage to Clean Water Act Agencies support fish and wildlife habitat or the hydrologic balance outside the This paragraph is being finalized as cropland. However, this principle permit area in § 701.5, while the first proposed with the exception that it has applies regardless of whether a higher or criterion is intended to protect been reorganized for clarity. The better use is involved. Our rules do not downstream properties from flood statement ‘‘make best efforts to’’ was seek to prevent this outcome. Instead, damage, consistent with section 102(a) 433 initially applied only to minimizing they require that the permittee reclaim of SMCRA, which provides that one differences in monitoring locations and the land to a condition in which it is of the purposes of SMCRA is to protect reporting requirements and sharing data capable of supporting the uses that the society and the environment from the to the extent practicable and consistent land was capable of supporting before adverse effects of surface coal mining with each agency’s mission, statutory any mining. If the land was capable of operations. None of the three new requirements, and implementing supporting both industrial and cropland criteria place an undue burden on the regulations. Several commenters noted uses prior to any mining, then the landowner or unduly restrict landowner that coordinating with Clean Water Act permittee must reclaim the mined land rights. agencies in a timely manner can be to a condition capable of supporting The same commenters further alleged difficult if the regulatory authority does both industrial and cropland uses after that adoption of the proposed rule not receive responses from the Clean mining and reclamation. Nothing in our would place a burden on state Water Act agencies. We agree and, in rules prohibits implementation of the regulatory authorities by requiring response to this comment, moved the industrial land use before bond release, significantly more time for review and statement ‘‘make best efforts to’’ to the even if doing so reduces or effectively inspection. We do not agree. As eliminates the site’s capability to discussed in the preamble to the first sentence of the paragraph, revising 434 the section to read that the SMCRA support cropland. Our rules, like section proposed rule, adoption of this rule 432 regulatory authority must make its best 515(b)(2) of SMCRA, merely require will reduce the burden on both permit effort to consult in a timely manner with that the land be reclaimed to its applicants and regulatory authorities by the agencies responsible for issuing premining capability until eliminating the requirement in our permits, authorizations, and implementation of the postmining land previous rules to process all proposed certifications under the Clean Water use, which is not the responsibility of postmining land uses that differ from Act, minimize differences in monitoring the permittee. Thus, our rules operate as the premining use or uses as alternative locations and reporting requirements, a protective measure to ensure postmining land uses. Under the and share data to the extent practicable restoration of site capability in the event proposed and final rules, the alternative and consistent with each agency’s that the approved postmining land use postmining land use review process mission, statutory requirements, and is not implemented. does not apply if the proposed implementing regulations. A few commenters alleged that the postmining land use is a use that the proposed rule would greatly limit site was capable of supporting before Section 780.24: What requirements postmining land use options and any mining, even if that land use is not apply to the postmining land use? severely complicate the ability to obtain that same as the current premining land One commenter opposed adoption of approval of higher or better uses. use. The final rule includes no proposed § 780.24 because, according to According to the commenters, the additional regulatory authority review the commenter, previous § 780.24 is proposed rule thus would place an and inspection requirements for this sufficient. The commenter did not undue burden on the landowner and type of land use change. It is true that elaborate further. We disagree for the restrict landowner rights. We do not both proposed and final paragraphs reasons discussed in the preamble to the agree. In reality, the final rule would (b)(1)(iii)(E) through (G) add three new proposed rule.430 ease the requirements for obtaining demonstration and finding requirements Another commenter alleged that the approval of a proposed postmining land for approval of alternative postmining proposed rule confuses land use and use that differs from the actual land uses (higher or better uses). land capability. We disagree. Whenever premining use, provided that the However, we anticipate that the sections 508(a)(2) and (3) and 515(b)(2) proposed use is a use that the land was additional burden associated with those of SMCRA 431 use the term ‘‘capable’’ or capable of supporting prior to any demonstrations and findings will be ‘‘capability,’’ they do so in the context mining. Proposed and final paragraphs more than offset by a reduction in the of land uses, as do our regulations. (b)(1)(iii)(E) through (G) add three new number of alternative postmining land The commenter also alleged that the demonstration and finding requirements use determinations required under the preamble to proposed § 780.24 assumes for approval of alternative postmining final rule compared to the previous that a change to a higher or better land land uses; i.e., higher or better uses that rules. use would be a change to a higher preclude restoration of the land to a Final Paragraph (a): What postmining capability. According to the commenter, condition capable of supporting the uses a change to a higher or better that it was capable of supporting before land use information must my postmining land use may reduce the any mining. Those additional provisions application contain? capability of the land to support other are intended to ensure that restoration Proposed paragraph (a)(2) would uses that it could previously support. of the land to a condition capable of require that each permit application We agree that implementation of certain supporting the alternative postmining include a discussion of the utility and postmining land uses would reduce the land use would not result in increased capability of the reclaimed land to capability of the land to support other flooding on adjoining properties, support a variety of other uses, uses. For example, construction of preclude attainment of designated uses including the uses that the land was industrial or commercial facilities as of surface water outside the permit area, capable of supporting before any part of implementation of a commercial or preclude actual premining uses of mining, as identified under § 779.22, or industrial postmining land use would surface water outside the permit area. regardless of the proposed postmining The latter two criteria are elements of 430 80 FR 44436, 44507–44508 (Jul. 27, 2015). 433 30 U.S.C. 1202(a). 431 30 U.S.C. 1258(a)(2) and (3) and 1265(b)(2). 432 30 U.S.C. 1265(b)(2). 434 See 80 FR 44436, 44508–44509 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93191

land use. One commenter expressed the permit application ‘‘include, in the provision as a requirement for the concern that the proposed rule would degree of detail necessary to regulatory authority to consult with the result in an extensive list of current demonstrate that reclamation required landowner on all proposed postmining uses. Proposed paragraph (a)(2) would by the State or Federal program can be land uses. The commenter did not require more than a list of current accomplished,’’ a statement of ‘‘the use indicate whether it thought that such uses—it would require a discussion of which is proposed to be made of the consultation should be required, as it is the utility and capability of the land following reclamation, including a for approval of higher or better uses. reclaimed land to support both those discussion of the utility and capacity of However, section 508(a)(3) of SMCRA uses and the other uses that the land the reclaimed land to support a variety requires only that the application was capable of supporting before any of alternative uses.’’ In this context, the include ‘‘the comments of any owner of mining. A separate regulation at term ‘‘alternative uses’’ refers to the uses the surface.’’ Proposed paragraph § 779.22(a)(1) requires only a list of that the land was capable of supporting (a)(4)(i) is consistent with this statutory existing uses, consistent with section before any mining. Section 515(b)(2) of requirement and we are adopting it as 508(a)(2)(A) of SMCRA,435 which SMCRA 438 requires that surface coal final without change. The fact that provides that the application also must mining and reclamation operations SMCRA requires that the landowner identify ‘‘the uses existing at the time of ‘‘restore the land affected to a condition have an opportunity to comment on the application.’’ To the extent that the capable of supporting the uses which it proposed postmining land use, commenter may have been concerned was capable of supporting prior to any however, implies that the regulatory about a potentially unlimited suite of mining, or higher or better uses of authority must consider those land uses, we note that our intent is to which there is reasonably likelihood.’’ comments, to the extent appropriate, require identification and discussion The information required by proposed when deciding whether to approve the only of those land use categories set paragraph (a)(2) is critical ‘‘to proposed postmining land use. forth in the definition of ‘‘land use’’ in demonstrate that reclamation required Proposed paragraph (a)(4)(ii) would § 701.5. by the state or federal program can be require that each permit application The commenter further alleged that accomplished,’’ as required by section include a copy of the comments the proposed rule does not account for 508(a) of SMCRA, because it is needed concerning the proposed postmining historical land use practices and to determine whether the proposed land use that the applicant receives capabilities resulting from agricultural operation has been designed to comply from state and local government practices. According to the commenter, with the performance standard in agencies that would have to initiate, the conversion of prairies to cropland section 515(b)(2) of SMCRA. implement, approve, or authorize the and the installation of drainage ditches However, in response to these and proposed use of the land following and drain tiles have altered the other comments concerned about the reclamation. One commenter urged us capability of the affected lands to potential burden on regulatory not to apply this requirement when the support certain land uses. Nothing in authorities and relevance to permitting premining and postmining land uses are the proposed or final rules would have decisions, we have made two the same. The commenter further the effect alleged by the commenter. modifications to proposed paragraph alleged that the permit applicant would Both proposed and final § 780.24(a)(2) (a)(2). First, final rule § 780.24(a)(2) be unable to meet this requirement in require identification and discussion of excludes prime farmland historically states and localities that do not have the uses that the land was capable of used as cropland. Under existing planning or zoning entities. supporting before any mining not at § 785.17(e)(1), the approved postmining Section 508(a)(3) of SMCRA requires some time in the distant past before the land use for these prime farmlands must that the application include the advent of agriculture. It does not matter be cropland, so there is no discretion comments of ‘‘State and local whether that capability is naturally available in determining an appropriate governments or agencies thereof which occurring or the result of agriculture postmining land use. Furthermore, would have to initiate, implement, drainage projects or other human lands reclaimed in accordance with approve or authorize the proposed use intervention. prime farmland standards will be of the land following reclamation.’’ The commenter also alleged that the capable of supporting almost all other There is no exception for situations in proposed rule differs from the statutory potential land uses by default. Second, which the premining and postmining provision that it is intended to we have limited the scope of final land uses are identical. In addition, implement because section 508(a)(2)(B) paragraph (a)(2) to include only the there is no guarantee that state and local of SMCRA 436 focuses on the capability proposed postmining land use and the governments and agencies would not of the land whereas the proposed rule variety of uses that the land was capable have a role in initiation, changes the emphasis to the uses that of supporting before any mining. The implementation, approval, or the land was capable of supporting proposed rule implied that the applicant authorization of the postmining land before any mining. According to the had to discuss other uses in addition to use in those circumstances. Therefore, commenter, this change in emphasis is these. We agree that information we are adopting proposed paragraph unnecessary and will not result in concerning any other potential (a)(4)(ii) without change. However, provision of any useful information. postmining land use would not be nothing in that paragraph compels those We do not agree. Section 508(a)(3) of relevant to the decision making process. governments or agencies to submit SMCRA 437 provides the primary Proposed paragraph (a)(4)(i) would comments. Nor does that paragraph statutory authority for § 780.24(a)(2), require that each permit application prohibit approval of the proposed not, as the commenter alleges, section include a copy of the comments postmining land use in the absence of 508(a)(2)(B) of SMCRA. Sections 508(a) concerning the proposed postmining comments from those governments or and (a)(3) of SMCRA require that the land use that the applicant receives agencies. Consequently, the reclamation plan submitted as part of from the legal or equitable owner of commenter’s statement that the record of the land surface. One applicant would be unable to meet this 435 30 U.S.C. 1258(a)(2)(A). commenter erroneously described this requirement in states and localities that 436 30 U.S.C. 1258(a)(2)(B). do not have planning or zoning entities 437 30 U.S.C. 1258(a)(3). 438 30 U.S.C. 1265(b)(2). has no basis.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93192 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Numerous commenters opposed According to the commenter, under the commenter that, while the regulatory adoption of proposed paragraph previous rules, landowner consent was authority must take the preferences of (a)(6)(ii), which would have required often given for uses that were neither landowners into consideration when that the permit applicant disclose any higher nor better, that were improbable evaluating a proposed postmining land monetary compensation provided to the or impractical, and that sometimes were use, landowner consent is not probative landowner in exchange for the even undesirable for the landowner. The of whether a proposed land use meets landowner’s agreement to an alternative commenter further stated that regulators the criteria for approval. postmining land use. Many commenters rely on landowner consent to an Final Paragraph (b): What requirements alleged that we have no authority to excessive degree to document whether apply to the approval of alternative require disclosure of private contracts, the proposed postmining land use meets postmining land uses? with one commenter asserting that it the statutory standards for approval as would require the disclosure of a higher or better use. The commenter One commenter asserted that we proprietary and confidential business cites a decision of Administrative Law should delete proposed paragraph (b)(1) information. Other commenters asserted Judge Harvey Sweitzer in Farrell Cooper because the preamble provides only that the provision would be impossible Mining Company v. OSMRE, Docket No. anecdotal evidence to support the to enforce. Some commenters opined 2013–1–R, September 30, 2015, as proposition that the current regulations that the required information is not providing insight into the legal and are insufficient to reliably achieve relevant to whether the postmining land economic forces that hinder proper land proposed higher or better land uses. use change is likely to be achieved, nor restoration following mining. According However, the commenter only provided is it information that the regulatory to the commenter, mining can alter arguments concerning paragraph authority could use in reaching a landforms for the better, but the (b)(1)(i), so we interpret the comment as decision on a request for approval of an economics of mining also can push both being directed at only that alternative postmining land use. One permittees and surface owners to subparagraph. Proposed paragraph commenter erroneously asserted that overestimate the need for, and utility of, (b)(1)(i) would require that the applicant this provision would act as a such structures, resulting in the creation demonstrate that there is a reasonable prohibition on compensation and would of impoundments too large to ever fill likelihood that a proposed alternative illegally require the regulatory authority with water, losses of pastureland, postmining land use will be achieved to adjudicate contract disputes. Another retention of mining-related structures after mining and reclamation, as documented by, for example, real estate commenter urged us to respect the for industrial uses never realized, and and construction contracts, plans for ability of landowners to determine how creation of flat land in inaccessible areas installation of any necessary best to use their property after mining where there is no need to such land. infrastructure, procurement of any and to avoid unnecessary regulation of The commenter further stated that, as in necessary zoning approvals, landowner private real estate dealings where such the Farrell-Cooper decision, she had commitments, economic forecasts, and regulation would provide no significant repeatedly observed legal instruments in studies by land use planning agencies. environmental or land use planning which coal companies essentially According to the commenter, it is benefit. contract upfront with surface owners to impractical to expect long-term mining Another commenter alleged that the mandate their acquiescence in any proposed rule would not be effective in operations to present evidence such as future changes to landforms or land use real estate and construction contracts to addressing the core issue, which is the that the permittee may seek to permit. failure of regulatory authorities to make support the proposition that the mined The commenter also cited the Farrell- an independent and fact-based area will in fact achieve the proposed Cooper decision as documenting the determination that the proposed change postmining land use years prior to the failure of regulators to enforce their laws in land use meets statutory completion of reclamation activities. and regulations and make independent requirements. According to the Moreover, our regulations do not and factually supported findings commenter, compensation for require attainment of proposed because of deferral to landowner landowner agreement to a postmining alternative postmining land uses (higher judgment. land use change could easily be or better uses) as the commenter appears disguised as something else and there is After considering these comments, we to imply, but, consistent with the no reason to believe that disclosure of decided to adopt the approach underlying statutory provision, they do compensation would improve the recommended by the last comment require that the applicant demonstrate, quality of the decision-making process. discussed above. Specifically, we are and the regulatory authority find, that Therefore, the commenter not adopting proposed paragraph there is a reasonable likelihood that the recommended that the monetary (a)(6)(ii). Instead, we revised proposed proposed higher or better use will be disclosure provision be deleted and paragraph (b)(2)(ii) to include language achieved. Section 515(b)(2) of replaced with a provision specifying clarifying that landowner consent alone SMCRA 439 requires that the permittee that landowner consent alone is is an insufficient basis for a regulatory restore land affected by mining insufficient basis for approval of a authority finding that the applicant or operations to a condition capable of proposed alternative postmining land permittee has made the demonstration supporting either the uses that it was use without further demonstrations of needed for approval of a proposed capable of supporting prior to any compliance with the criteria for alternative postmining land use. We mining or ‘‘higher or better uses of approval of an alternative postmining agree with the commenter that this which there is reasonable likelihood.’’ land use. approach should be more effective in Our proposed and final rules give fuller The commenter explained that, in her ensuring that both applicants and effect than our previous rules to this experience, some permittees have made regulatory authorities consider all the statutory provision by creating a clearer payments or used other means to criteria in paragraphs (b)(1)(i) through distinction between requirements persuade landowners to concur with (iii) for approval of alternative applicable to proposed higher or better alternative postmining land uses that postmining land uses rather than postmining land uses and requirements are not higher or better uses or for deferring to the professed wishes of the which there is no intent to implement. landowner. We also agree with the 439 30 U.S.C. 1265(b)(2).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00128 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93193

applicable to proposed postmining land change because we have always replaced the term ‘‘existing’’ when uses consisting of one or more of the considered tribal law to be included in referring to uses of surface water with uses that the site was capable of the statutory phrase. ‘‘any actual use of surface water outside supporting prior to any mining. We revised proposed paragraph the permit area before mining.’’ This Our rules always have required a (b)(1)(iii)(E) to refer to changes in the change is intended to avoid any demonstration and finding that there is size or frequency of peak flows that confusion with the term ‘‘existing uses’’ a reasonable likelihood of achieving a would cause an increase in flooding under the regulations implementing the proposed alternative postmining land rather than an increase in damage from Clean Water Act. use, as does the statute. Proposed flooding as in the proposed rule. We One commenter expressed concern paragraph (b)(1)(i) differs from the made this change because determination that proposed paragraph (b)(1)(iii)(F) previous rule only in that the proposed of whether there would be an increase could be an issue in the arid Southwest rule provides examples of how that in flooding is easier and more feasible when the operation includes the demonstration and finding may be than a determination of whether there construction of permanent made. The list is not exhaustive, but it would be an increase in damage from impoundments that do not discharge. provides guidance on the type of flooding. The latter standard would According to the commenter, the rule documentation needed to make a good- require projection of future could be interpreted to mean that non- faith demonstration and finding. If a development downstream of the discharging impoundments are permit applicant is unable to provide proposed permit area, which could be precluding downstream reaches from documentation of this nature, then there difficult and speculative. attaining their designated use even is no basis upon which the regulatory Final paragraphs (b)(1)(iii)(F) and (G) though the immediate downstream authority can make a finding that there differ from their counterparts in the reaches are ephemeral. This situation is a reasonable likelihood of achieving proposed rule in that we removed could exist only if the runoff from a the proposed postmining use, as the references to reasonably foreseeable mine comprises a critical element of the commenter implicitly acknowledges. uses of surface water and groundwater. flow necessary to support a designated When there is uncertainty about the The final rule no longer includes the use of surface water outside the permit reasonable likelihood of achieving a term ‘‘reasonably foreseeable uses’’ in area under section 303(c) of the Clean higher or better use, the applicant contexts other than protection of Water Act.442 We do not anticipate that should propose a different postmining reasonably foreseeable surface land uses such a situation would arise, given the land use, one that the land was capable from the adverse impacts of subsidence. infrequency and ephemeral nature of of supporting before any mining. If, at Our reasons for deletion of this term are surface runoff in arid areas. a later date, implementation of a higher twofold. First, the term appears in Another commenter stated that or better use becomes more likely, the SMCRA only in section 516(b)(1), which proposed paragraph (b)(2)(i) requiring permittee may submit a permit revision requires that operators of underground the regulatory authority to consult with application to change the postmining mines adopt subsidence control ‘‘the landowner or the land management land use. measures to, among other things, agency having jurisdiction over the The commenter also questioned the maintain the value and reasonably lands to which the use would apply’’ is ability of regulatory authorities to foreseeable use of surface lands. vague and unnecessary because it does evaluate the likelihood that real estate Sections 717(b) and 720(a)(2) of SMCRA not explain what specifically the and construction contracts will ensure separately protect certain water uses. regulatory authority is to seek implementation of the postmining land Second, numerous commenters opposed consultation on. The commenter opines use. However, the commenter provided inclusion of the term ‘‘reasonably that the regulatory authority only needs no explanation of why this would be the foreseeable uses’’ on the basis that it is to know that the landowner has case and we have no reason to believe too subjective, difficult to determine, consented to the land use change. that regulatory authorities lack this and open to widely varying Further, the commenter states that our capability. interpretations, which could result in previous regulations require that Final paragraph (b)(1) differs slightly inconsistent application throughout the consent be provided in writing and from proposed paragraph (b)(1) in that coalfields. thus, the proposed paragraph is we replaced the phrase ‘‘use or uses’’ Final paragraphs (b)(1)(iii)(F) and (G) unnecessary. We disagree. In our with ‘‘uses’’ for consistency with also differ from their counterparts in the experience landowners frequently paragraph (a) and to emphasize that the proposed rule in that we clarified that discuss significant concerns about default requirement is to restore the site these paragraphs apply only outside the alternate postmining land uses when to a condition in which it is capable of permit area, consistent with section engaged by the regulatory authority. For supporting the uses that it was capable 510(b)(3) of SMCRA,441 which applies this reason, consulting with the of supporting before mining, not just the the prohibition on material damage to landowner is essential, particularly single use that existed prior to mining. the hydrologic balance only outside the when assessing the ‘‘reasonable The revised language is consistent with permit area. We also removed all likelihood’’ that a change in land use section 515(b)(2) of SMCRA,440 which references to groundwater because these will occur. Therefore, we are adopting requires that the land be restored ‘‘to a paragraphs pertain only to surface this paragraph as proposed. condition capable of supporting the uses flows. In addition, we revised these which it was capable of supporting prior paragraphs to track more closely the Final Paragraph (d): What restrictions to any mining.’’ language concerning designated uses of apply to the retention of mining-related We revised proposed paragraph surface water under the Clean Water Act structures? (b)(1)(iii)(D) by adding the word ‘‘tribal’’ in our definition of ‘‘material damage to Paragraph (d) establishes restrictions to the phrase ‘‘Federal, State, or local the hydrologic balance outside the on the retention of mining-related law’’ found in section 515(b)(2) of permit area’’ in § 701.5. Finally, in structures, other than impoundments SMCRA. We consider this revision to be response to comments from the U.S. and roads, for potential future use in a clarification rather than a substantive Environmental Protection Agency, we support of the postmining land use. One

440 30 U.S.C. 1265(b)(2). 441 30 U.S.C. 1260(b)(3). 442 33 U.S.C. 1313(c).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93194 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

commenter asserted that we should not proposed rule with ‘‘revegetating the language of proposed paragraph (e) did adopt proposed paragraph (d) because site in accordance with the revegetation not match the description of that adoption is likely to lead to economic plan approved under § 780.12(g) of this paragraph in the preamble to the waste when structures that could have part for the permit area surrounding the proposed rule. The preamble discussion been utilized by successive landowners site upon which the structure was accurately describes our intent, whereas or tenants are torn down during previously located.’’ Section 780.12(g) the actual language of the proviso in reclamation. We find that the outcome includes the exceptions allowed under proposed paragraph (e) does not. posited by the commenter is unlikely to paragraphs (b)(19) and (20) of SMCRA. Therefore, we are not adopting the occur. Structures that are not used for One commenter expressed concern language of paragraph (e) set forth in the postmining land use purposes are that proposed paragraph (d)(3) may not proposed rule. Instead, the language of unlikely to be maintained by current or allow buildings left after reclamation to paragraph (e) that we are adopting as future landowners. As such, they be sold. Nothing in the proposed or final part of this final rule is consistent with rapidly become eyesores and attractive rules would prohibit sale of a building. the description and discussion in the nuisances. Unused structures also If the sale occurs before expiration of preamble to proposed paragraph (e).445 prevent restoration of the land upon the revegetation responsibility period Specifically, we are replacing the phrase which they are sited to a condition and the building continues to be used in ‘‘provided that you comply with capable of supporting the uses that the support of the postmining land use, the paragraphs (a) and (b) of this section’’ in land was capable of supporting before building may remain on site. If the sale the proposed rule with ‘‘provided that any mining, as required by section occurs before expiration of the restoration of the land to that capability 515(b)(2) of SMCRA. Therefore, we are revegetation responsibility period and does not require disturbance of land adopting paragraph (d) as proposed, the building is no longer used in previously unaffected by mining.’’ Final with the modifications discussed below. support of the postmining land use, but paragraph (e) does not include the One commenter opposed the is being used for some other purpose, limitations that would lead to the provisions in proposed paragraphs the permittee may apply for a change in outcomes described by the commenter. (d)(2) and (3) that effectively require postmining land use for the land It will not create a disincentive for that the land upon which a structure is containing the building. If the sale remining. sited be revegetated with native occurs after final bond release for the vegetation if the structure is removed land upon the building is sited, the sale Section 780.25: What information must because of a failure to implement the and use of the building are no longer a I provide for siltation structures, approved postmining land use during concern under SMCRA because the land impoundments, and refuse piles? the revegetation responsibility period. is no longer considered to be the site of Section 780.25 as proposed, provides According to the commenter, the land a surface coal mining and reclamation for safety enhancements related to from which the structure was removed operations subject to jurisdiction under siltation structures, impoundments, and could be used for cropland or in some SMCRA. Under all other circumstances, refuse piles.446 We received a general other manner that would not warrant the buyer must remove the building comment supporting the proposed rule, planting of native vegetation. The unless it is used in support of the particularly those related to safety commenter also noted that planting approved postmining land use. enhancements, such as the planning for with native vegetation may not be the stabilization of siltation structures, Final Paragraph (e): What special consistent with the surface owner’s land impoundments, and refuse piles. As provisions apply to previously mined use intentions. discussed below, some commenters also areas? Surface owner intentions are an suggested improvements. After important consideration, but they are Several commenters noted that evaluating all the comments, we made not the exclusive criterion for selection proposed paragraph (e) contained an several modifications resulting in a final of the species planted on land disturbed erroneous cross-reference to 30 CFR rule that addresses the concerns of by mining operations. Section 780.24(b))(1)(iv), which does not exist. commenters and improves the clarity of 515(b)(19) of SMCRA 443 requires that One commenter alleged that adoption of § 780.25. lands disturbed by surface coal mining proposed paragraph (e) without operations be revegetated with native correction of the cross-reference would Final Paragraph (a): How do I determine species unless introduced species are have the effect of prohibiting the the hazard potential of a proposed desirable and necessary to achieve the regulatory authority from approving any impoundment? postmining land use. Section 515(b)(20) alternative postmining land uses on For the purposes of clarity and to be of SMCRA 444 provides an exception to previously mined land. The commenter consistent with other bureaus within the that requirement for sites with a long- also asserted that adoption of the Department of the Interior, final term, intensive agricultural postmining proposed requirement for compliance paragraph (a) includes a table land use. with proposed paragraph (a) would representing a simplified process of However, we determined that the create a significant disincentive to hazard classification. In response to the proposed rule’s revegetation remining previously mined land proposed rule, a commenter considered requirement was not fully in accord because paragraph (a) requires our reliance upon the U.S. Department with the underlying statutory provisions restoration of the land to a condition in of Agriculture Natural Resource discussed above because it did not which it is capable of supporting the Conservation Service’s Technical clearly provide for the exceptions uses that it was capable of supporting Release No. 60, misplaced. The authorized by the statute. Therefore, in before any mining. According to the commenter noted that, within the final 30 CFR 780.24(d)(2) and (3), we are commenter, compliance with this Department of the Interior, the replacing the phrase ‘‘establishing requirement is impossible if topsoil and Technical Release No. 60 has been native vegetation in accordance with subsoil was not salvaged prior to the superseded by the Federal Emergency § 816.111 of this chapter’’ in the initial mining. Management Agency’s hazard After evaluating these comments, we 443 30 U.S.C. 1265(b)(19). find that the commenters are correct. In 445 80 FR 44436, 44510, 44608 (Jul. 27, 2015). 444 30 U.S.C. 1265(b)(20). addition, our review disclosed that the 446 80 FR 44436, 44511–44513 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93195

classifications. There is little difference (a)(1)(iv) and now found in final underground mine workings and an between the two classification systems, paragraph (b)(4)(i), are not necessary for analysis of the impacts of such drainage. but to be consistent, we are small structures in areas with 26.0 We agree that prudent planning is incorporating the classification table in inches or less of average annual appropriate; therefore, we are the Federal Emergency Management precipitation or for siltation structures. incorporating this requirement, as Agency’s Federal Guidelines for Dam This is because such structures cannot proposed, into the final rule. Safety, Hazard Potential Classification impound sufficient water to pose a In paragraph (a)(1)(vi)(A) of the System for Dams in the final rule. The significant risk in the event of failure. proposed rule, we included a table characterizes the hazard potential Therefore, we have altered the final rule requirement that the plan must include of a dam as ‘‘low,’’ ‘‘significant,’’ or to grant exemptions for small structures ‘‘a certification statement that includes ‘‘high.’’ In addition, the nature of the in areas with less than 26.0 inches of a schedule setting forth the dates when hazard is considered—with the primary annual precipitation, found at paragraph any detailed plans for structures that are consideration being the potential for (b)(4)(ii)(A), and at paragraph not submitted with the general plan will human mortality. Additionally, because (b)(4)(ii)(B), for siltation structures; as be submitted to the regulatory SMCRA mandates protection of the long as the structures do not meet the authority.’’ We have modified this environment as well as the public, the criteria in § 77.216(a) of this title 447 or requirement and reclassified it as potential for environmental or ‘‘lifeline have a ‘‘significant’’ or ‘‘high’’ hazard paragraph (b)(6) in the final rule. We losses’’ is also considered. ‘‘Lifeline potential as detailed in the hazard have removed the ‘‘certification losses’’ refer to disruption of important potential classification table within statement’’ but required the plan public utilities, some of which could paragraph (a) of this section. include a schedule setting forth the result in risk to the public. For example, Some commenters also claimed that dates when detailed design plans will disruption of highways, waterlines, or the requirements in the proposed rule at be submitted to the regulatory authority. communications could interfere with paragraph (a)(1)(iv), now paragraph Final Paragraph (c): How must I prepare police, fire, or ambulance services. (b)(5)(i) in the final rule, are focused on the detailed design plan for proposed Major railroads and highways are regional issues, such as breakthroughs siltation structures, impoundments, and included in this category due to the into underground workings and refuse refuse piles? impact of their disruption on large piles, which are more common in the numbers of people. A feature of the eastern portion of nation. These Proposed paragraph (a)(2) applied to system is that it is used only for hazard commenters asserted that this provision structures that meet the criteria for classification, and each agency or requires a large amount of additional ‘‘Significant’’ or ‘‘High Hazard’’ bureau is able to impose design, and unnecessary design, permitting, and classification in accordance with the operation, and maintenance criteria that construction work for the small U.S. Department of Agriculture Natural meet their specific needs. For example, impoundments typical in western mines Resources Conservation Service within final paragraph (a), we are that generally pose little risk of failure Technical Release 60 448 and the criteria requiring applicants to use the Federal or danger to the public. Similar to our of the Mine Safety and Health Emergency Management Agency hazard discussion of the exemptions within Administration’s regulation at 30 CFR classification system, but we impose the final paragraph (b)(4), we concur that 77.216(a). Proposed paragraph (a)(3) additional requirements detailed within extensive evaluations of breakthroughs, applied to ‘‘other structures,’’ or the remainder of § 780.25. as required in final paragraph (b)(5)(i) structures not meeting these criteria. Final Paragraph (b): How must I prepare would not be necessary for small We have reclassified proposed the general plan for proposed siltation structures in areas with 26.0 inches or paragraphs (a)(2), relating to design structures, impoundments, and refuse less of average annual precipitation or plans for high hazard dams, significant piles? for siltation structures. Again, this is hazard dams, and certain impounding because such structures cannot structures to paragraph (c)(1), and (a)(3), As a result of the adoption of the impound sufficient water to pose a relating to other structures, to paragraph hazard potential classification system significant risk in the event of failure. (c)(2) within the final rule. Additionally, for dams within paragraph (a) of the we have made clarifications and final rule, we have relocated the We have provided exemptions in paragraphs (b)(5)(ii)(A) for structures in modifications to these sections. We have explanation of general plan renumbered the paragraphs for clarity requirements for proposed siltation areas with less than 26.0 inches of annual precipitation, and (b)(5)(ii)(B) for and to emphasize the distinctions structures, impoundments, and refuse between the two classifications. piles, discussed at paragraph (a) within siltation structures; as long as the structures do not meet the criteria in 30 In addition to the reclassification of the proposed rule, to paragraph (b) of proposed rule (a)(2) to (c)(1) in the final the final rule. CFR 77.216(a) or have a ‘‘significant’’ or ‘‘high’’ hazard potential under rule, we have removed the references to Some commenters raised concerns the U.S. Department of Agriculture’s that this section blurs the distinction paragraph (a) of this section. The same commenter that generally Technical Release 60, hazard between typical sediment structures and classification procedure from final structures that satisfy the Mine Safety supported the safety enhancements to § 780.25 also specifically supported the paragraph (c)(1) and revised it to apply and Health Administration criteria and to structures that would have a imposes unreasonable evaluation and inclusion of the requirement within the proposed rule at paragraph (a)(1)(v), significant or high hazard potential design criteria on sediment structures. under paragraph (a) of final rule and, Specifically, these commenters now paragraph(b)(5)(i), that the general plan for each impoundment include an similar to the proposed rule, would questioned the requirement for satisfy the criteria of the Mine Safety geotechnical evaluation, including analysis of the potential for the impoundment to drain into subjacent and Health Administration’s regulation consideration of subsidence, on a small at 30 CFR 77.216(a). sediment structure designed to typically 447 30 CFR 77.216(a), Water, sediment, slurry contain little or no water. impoundments and impoundment structures; 448 U.S. Dep’t. of Agric., Natural Resources We concur that extensive geotechnical general. Mine Safety and Health Admin., Dep’t. of Conservation Serv., Earth Dams and Reservoirs, evaluations as proposed in paragraph Labor. Technical Release No. 60 (July 2005).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93196 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Paragraphs (c)(1) and (c)(2) of the final One commenter questioned the Final Paragraph (e): What additional rule both include requirements related requirement in proposed paragraph design requirements apply to permanent to who may prepare plans. We have (c)(2), that the applicant submit the and temporary impoundments? moved these from ‘‘general Mine Safety and Health Administration For the purposes of clarity, proposed requirements’’ and provided separate plan to the SMCRA regulatory authority paragraph (c), relating to ‘‘permanent paragraphs for each to emphasize the and suggested that we delete it. This and temporary impoundments,’’ has distinctions between the levels of commenter alleged that this proposed been modified and reclassified as associated risk and design requirements. requirement is unnecessarily confusing paragraph (e) within the final rule. We The structures within paragraph (c)(1) of and meaningless because an incomplete removed the reference to the criteria for the final rule are critical structures, the plan would not be useful to the Significant Hazard Class or High Hazard failure of which could result in regulatory authority. The commenter Class dams in published by the U.S. significant loss of human life. Therefore, suggested that the provision be either Department of Agriculture, Natural we have made the design plans for these eliminated or revised to require the Resources Conservation Service structures subject to more stringent submission of the completed Mine Technical Release No. 60. As discussed requirements, including that they be above, in connection with paragraph (a), prepared by or under the direction of a Safety Health Administration impoundment plan through a permit we are requiring hazard classification to registered professional engineer; or for be done in accordance with the Federal revision. The commenter also noted that structures covered in paragraph (c)(2), a Emergency Management Agency’s the Mine Safety and Health licensed land surveyor. However, we hazard potential classification system. note that all coal mine waste structures Administration plan is already subject In proposed paragraph (c)(4), now to which §§ 816.81 through 816.84 to many layers of review and submitting (e)(3), we proposed a requirement that apply, must be designed by a registered, it to the regulatory authority would be permittees of impoundments that will professional engineer even if such duplicative. In addition, the commenter meet the Significant Hazard Class or structures do not meet the hazard noted that many of the procedures set High Hazard Class criteria for dams 449 classification criteria of (c)(1). In out in the plan do not impact the or satisfy the Mine Safety and Health addition, we are requiring that the environment and would not be relevant Administration criteria of 30 CFR engineer or land surveyor certify the to a SMCRA review. We concur with the 77.216(a), include with each plan a plans. The engineer or land surveyor commenter and have removed the stability analyses of the structure. One must have a documented history of requirement within the final rule. It is commenter stated that the Mine Safety experience with dams and not necessary for the applicant to and Health Administration already impoundments. This is a new submit plans required by the Mine require these actions as part of their requirement; however, due to the Safety and Health Administration to the regulatory program and doing so here potential for loss of life in the event of SMCRA regulatory authority because, would be duplicative. The commenter failure it is important that designers of even without those plans, the SMCRA also indicated that by adding this to the these structures have, in addition to regulatory authority can determine SMCRA permit we are implying that compliance with the Mine Safety and appropriate credentials, a documented whether there are deviations from the Health Administration provisions is not history of pertinent experience. SMCRA plans. Paragraph (a)(3) of the proposed rule, adequate. This commenter asserted that We have moved the requirements that now paragraph (c)(2), includes detailed it is likely to cause inconsistency in design plan requirements for ‘‘other detailed plans not submitted with the requirements between the Mine Safety structures.’’ Similar to the detailed permit application be submitted in and Health Administration and the design plans for high hazard dams, accordance with a provided schedule SMCRA regulatory authority. In general, significant hazard dams, and and that they be submitted and the commenters requested that we impounding structures, this paragraph approved before construction begins remove the provision. We disagree. We details each of the requirements from paragraph (a)(1)(vi), under are well within our statutory authority 450 necessary for an adequate design plan ‘‘General requirements’’ in the proposed under section 515(f) of SMCRA to for structures other than those rule, to paragraph (c)(3) ‘‘Timing of impose the requirements of paragraph enumerated in paragraph (c)(1). submittal of detailed plans’’ in the final (e)(3). Section 515(f) of SMCRA requires Additionally, within paragraph rule. This was done because operators to follow standards and (c)(2)(i)(A), we included the requirements for detailed plans were criteria that conform to standards and criteria used by engineers to ensure that requirement that the qualified registered provided in the two previous flood control structures are safe and professional engineer, or qualified paragraphs in the final rule: High hazard effectively perform their intended registered professional land surveyor in dams, significant hazard dams, and states that allow land surveyors to function. In addition, these certain impounding structures in requirements in no way supersede design these structures, must be paragraph (c)(1) and other structures in experienced in the design and requirements imposed by the Mine paragraph (c)(2). We decided to address Safety and Health Administration but construction of impoundments. Again, the issue of scheduling immediately this is a new requirement. We recognize are, in practice, complementary. after requirements for those plans were Analyses required by the Mine Safety that although the hazard is inherently presented. lower there is still a potential for loss of Health Administration are pertinent to life. Therefore, utilizing experienced Final Paragraph (d): What additional individual stages of construction and professionals is necessary. Paragraph design requirements apply to siltation are submitted piecemeal during (c)(2)(i)(B) also includes a requirement structures? construction. Those required by the that all coal mine waste structures to SMCRA regulatory authority are which §§ 816.81 through 816.84 of this For the purpose of clarity, proposed paragraph (b), relating to siltation 449 U.S. Dep’t. of Agriculture, Natural Resources chapter apply must be certified by a Conservation Serv. 2005. ‘‘Earth Dams and qualified, registered, professional structures, has been reclassified and is Reservoirs’’ Technical Release No.60 (July 2005). engineer to ensure proper construction. found at paragraph (d) in the final rule. 450 30 U.S.C. 1265(f).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93197

pertinent to the structure upon These are issues that should be receiving runoff from snowmelt events completion of all construction. The examined during the National Pollutant and that have both a bed-and-bank regulatory authority cannot, during the Discharge Elimination System configuration and an ordinary high application review process, evaluate the permitting process and addressed in water mark. The final rule also revises potential impact of the completed that permit. Nothing in this section, our definition of ‘‘intermittent stream’’ structure without requiring and however, exempts an operator from so that it no longer automatically receiving analyses based on the final complying with its National Pollutant includes streams draining a watershed configuration. Therefore, in the final Discharge Elimination System permit as of at least one-square mile. This change rule we now reference the hazard approved. Should discharges of may result in a number of streams classification in paragraph (a) rather stormwater following a precipitation classified as ‘‘intermittent’’ under the than the Natural Resources event result in exceedances of effluent previous regulations being categorized Conservation Service Technical Release limitations defined in the permit, they as ‘‘ephemeral streams’’ under the final No. 60. To the extent that duplication would be addressed in the same way as rule because the final rule amends the may exist between the two regulatory any other such exceedance. In addition definition of ‘‘intermittent stream.’’ regimes, we encourage states to to potential enforcement by the Clean Additionally, permitting requirements coordinate the processing of permit Water Act regulatory authority, the for ephemeral streams differ from those applications with the Mine Safety and SMCRA regulatory authority may also for perennial and intermittent streams. Health Administration. For example, the have separate enforcement obligations Because of the distinctions between states could perform side-by-side review for failure to comply with requirements ephemeral streams and other types of of the analyses of initial stages of § 780.28(a). streams, we added § 780.27 to the final submitted to Mine Safety and Health One commenter suggested that we rule to specifically address the Administration and the final revise the permitting requirements to permitting requirements for mining in configuration submitted with the make them similar to the performance or through ephemeral streams. Creating SMCRA permit application. standard changes finalized in a 1983 this distinct section also addresses 451 commenters’ concerns that it was Final Paragraph (f): What additional rulemaking, by: (1) Replacing the difficult to discern when regulations design requirements apply to coal mine term ‘‘coal processing waste banks’’ applied strictly to ephemeral streams or waste impoundments, refuse piles, and with ‘‘refuse piles’’ and (2) replacing the applied to all streams. impounding structures constructed of term ‘‘coal processing waste dams and coal mine waste? embankments’’ with references to coal Final Paragraph (a): Clean Water Act mine waste impounding structures. We Requirements In proposed paragraph (d)(2)(iv), now concur, and, as indicated in the paragraph (f)(2)(iv) in the final rule, we proposed rule,452 we have replaced the If the proposed permit area includes require that impoundments and siltation term ‘‘coal processing waste banks’’ waters subject to the jurisdiction of the structures be designed to ensure that at with ‘‘refuse piles’’ and the terms ‘‘coal Clean Water Act, including some least 90 percent of the stormwater stored processing waste dams and ephemeral streams, the regulatory in the impoundment during the design embankments’’ with references to coal authority must condition the permit to precipitation event will be removed mine waste impounding structures. prohibit initiation of surface mining within a 10-day period. One commenter activities in or affecting the applicable asserted that this requirement would Section 780.26: What special waters before you obtain all necessary need to be addressed in the National requirements apply to surface mining authorizations, certifications, and Pollutant Discharge Elimination System near underground mining? permits under the Clean Water permit as well because it could impact We have redesignated proposed Act.454This paragraph makes clear that mixing zone limits, loading limits, and § 780.27, and it is now § 780.26 in the although a SMCRA permit may be whether the operation meets numerical final rule. With the exception of the obtained prior to you obtaining all effluent standards. This assertion redesignation, we are finalizing this necessary authorizations, certifications, appears to be based on a belief that section as proposed. We received no and permits under the Clean Water Act, greater than normal (stormwater) comments on this section. the regulatory authority must place a discharges equate to greater than normal condition upon the permit that no loadings of parameters. We proposed Section 780.27: What additional surface mining activities in or affecting this requirement for safety reasons as it permitting requirements apply to waters subject to the jurisdiction of the is important to restore the stormwater proposed activities in or through Clean Water Act may be initiated before storage capacity as quickly as possible ephemeral streams? you, obtain all necessary authorizations, to prepare for the possible occurrence of In the preamble to the proposed rule certifications, and permits under the another significant event. Although the we discussed the unique characteristics Clean Water Act.455 rate of discharge of water is greater than of ephemeral streams and the vital A similar requirement was found in normal following a significant importance of headwater streams, proposed § 780.28(a), however, as precipitation event, parameters with including ephemeral streams, in discussed in the introduction of numerical effluent limits commonly maintaining the ecological health and § 780.27, we have separated out the defined in a National Pollutant function of streams down gradient of requirements for ephemeral streams and Discharge Elimination System permit headwater streams.453 In the preamble the requirements pertaining to them are tend to be at low concentrations after a to § 701.5 of the final rule, we discussed found in final rule § 780.27. This final significant precipitation event, due to the revisions of the proposed definition paragraph more closely tracks the dilution, with the exception of of ‘‘ephemeral stream.’’ As revised, the permit condition found in final rule suspended solids. Therefore, in many final definition of ‘‘ephemeral stream’’ § 773.17(h) and the provisions of final cases we do not anticipate that it would now includes those conveyances rule § 780.16(c)(4)(ii) about protection of be necessary to address stormwater other species and the requirement to discharged over time or that such a 451 48 FR 44006 (Sept. 26, 1983). discharge would tend to exceed loading 452 80 FR 44436, 44511 (Jul. 27, 2015). 454 33 U.S.C. 1251 et seq. limits or numerical effluent standards. 453 80 FR 44436, 44451–44453 (Jul. 27, 2015). 455 33 U.S.C. 1251 et seq.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93198 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

explain how you will avoid or minimize or configuration; or reclaim a previously alterations. Still another example of mining through or discharging dredged mined area. Because the drainage when the regulatory authority may fill material into wetlands or streams pattern and stream-channel approve an alternate drainage pattern is that are subject to the jurisdiction of the configuration requirements need only be when the premining drainage pattern Clean Water Act. This approach similar to the premining patterns and was altered by previous activities, reconciles the needs of other federal configurations, some differences are whether mining-related or not. As noted agencies to consider the SMCRA permit allowable—i.e., an operator is not by commenters, in some circumstances, when making decisions about granting required to reconstruct 100 percent of restoring the postmining drainage to the Clean Water Act authorizations, the ephemeral streams that existed prior approximate drainage pattern before any certifications, and permits but balances to mining to the same premining human activity occurred may be the needs of the permittee to make configuration. However, in order to beneficial and should be allowed. To informed decisions about the feasibility control meander migration, ephemeral address this concern, we added final of mining in or through ephemeral streams that are reconstructed, must be paragraph (b)(2)(vii) because the streams. Placing a permit condition constructed within a floodplain-width premining surface drainage pattern and upon the permittee will avoid lined channel that is filled with stream-channel configuration on unnecessary and often costly permit substrate material appropriate to the previously mined areas may not be revisions by requiring the permittee to anticipated gradient and flow optimal or desirable from a land use, consult with the Clean Water Act conditions. The reconstructed channel hydrological or ecological perspective. authority at the early stages of the is initially excavated in this substrate Final Paragraph (c): Streamside SMCRA permitting process. These and allowed to move within the Vegetative Corridors modifications to the final rule were floodplain as a natural stream would based on both public comment and migrate. These processes contain As discussed previously in this comments from a federal agency. meander migration within the designed preamble, throughout the final rule we have replaced the term ‘‘riparian Final Paragraph (b): Postmining Surface floodplain and thus prevent uncontrolled erosion of the corridor’’ as used in the proposed rule Drainage Pattern and Stream-Channel with ‘‘streamside vegetative corridor’’; Configuration reconstructed stream channel. We added these requirements in this change is also incorporated into this Unlike the requirements for consultation with another federal section. The final rule is based on the current understanding of the intermittent and perennial streams agency to clarify the goal of final rule discussed in § 780.28, final rule contributions made by streamside § 780.27(b), i.e., to ensure that the paragraph (b) of this section only vegetative corridors along ephemeral stream channel will be stabilized and requires the restoration of a postmining streams. As discussed above, although a erosion minimized. surface drainage pattern that is similar permittee is not required to reconstruct to the premining drainage pattern, These requirements ensure 100 percent of the ephemeral streams relatively stable, and in dynamic near- establishment of a postmining drainage mined in or through, those ephemeral equilibrium and postmining stream- pattern that is functionally equivalent to streams that are reconstructed must channel configurations that are the premining pattern, is relatively include streamside vegetative corridors relatively stable and similar to the stable, and in dynamic near constructed in accordance with premining configuration of ephemeral equilibrium, while affording the § 816.56(c)(1) through (3) of the final streams. This means that the stream regulatory authority the discretion to rule. We note that final rule flood plains maintain their alignments alter the drainage pattern in certain § 816.56(c)(4) provides exceptions to the and widths, and although the stream situations that are likely to be better for requirements to establish streamside channel location within the floodplain the hydrologic balance. For example, vegetative corridors. Final paragraphs may vary, the general configuration of the regulatory authority may allow a (c)(4)(i) through (ii) of § 816.56 excludes the stream channel remains relatively variance from the requirements in prime farmland historically used for constant. To be clear, this section does paragraph (b)(1) when onsite conditions cropland or situations in which not require the establishment of are such that undesirable situations can establishment of a streamside vegetative hydrologic or ecological function as be avoided by altering the drainage corridor comprised of native species mandated for perennial and intermittent pattern. Examples might include would be incompatible with an streams. Paragraph (b)(2) also allows the situations where reconstructing the approved post-mining land use that is regulatory authority to approve or premining pattern could result in implemented prior to final bond release. require a drainage pattern or stream- instability, downcutting or widening, or In response to commenters’ concerns channel configuration that differs from excessive erosion of the reconstructed that prime farmland should not be the premining pattern if appropriate to: stream channel, or when reconstruction impacted by streamside vegetative Ensure stability; prevent or minimize of the premining drainage pattern would corridors, we have made clear in final downcutting or widening of eliminate an opportunity to enhance rule § 780.27(c)(3) that final reconstructed stream channels and wildlife habitat. Other examples would § 780.27(c)(1) and (2) do not apply to control meander migration; promote include cases where the premining ephemeral streams located on prime enhancement of fish and wildlife drainage is altered to accommodate farmland. habitat; accommodate any anticipated anticipated increased runoff; Several commenters objected to the temporary or permanent increase in accommodate construction of spoil, requirement to establish a streamside surface runoff as a result of mining and mine waste, or impounding structures; vegetative corridor along ephemeral reclamation; accommodate the or to replace previously channelized or streams claiming that it is burdensome construction of excess spoil fills, coal severely altered streams. Another or unnecessary. We disagree. As noted mine waste piles, or impounding example would be the accommodation in the preamble to the proposed rule,456 structures; replace previously of the construction of approved scientific literature documents that channelized or severely altered streams structures, such as excess spoil fills or streamside vegetative corridors— with a more natural, relatively stable, coal mine waste impounding structures, and ecologically sound drainage pattern which may necessitate drainage patterns 456 80 FR 44436, 44494 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00134 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93199

formerly referred to as riparian corridors streamside vegetative corridors preamble to the proposed rule.459 After in the proposed rule—are essential in contributing to the ecological condition evaluating the comments we received in promoting stream health and that of a stream will typically not extend response to the proposed rule, we have ephemeral streams are important to the beyond a watershed boundary. reorganized and made several over-arching health of the hydrologic However, if they do and are affected by modifications to this section in the final regime.457 Given the unique and mining operations, or mining operations rule. Our reorganizational changes and essential contributions of ephemeral necessitate the reconstruction of these relevant general comments are streams to the hydrologic regime, the particular ephemeral streams, these 100- discussed below and are followed by a maintenance, restoration, and foot, streamside, vegetative buffers discussion of comments on specific establishment of streamside vegetative would also need to be part of the paragraphs of § 780.28. Because of the corridors for these stream segments is a permitted site, including the area within reorganization, we provide an critical element of stream protection. an adjacent watershed. If the area within introduction to each final paragraph Moreover, the history of our regulations the other watershed is not affected by explaining how the final rule related to related to buffer zones for streams is mining operations, this area would the proposed rule. directly linked to the mandates of include the already existing vegetation Many commenters opined that the SMCRA found at sections 515(b)(10) and would already be in compliance of organization of § 780.28 made it difficult and (24),458 which require the this requirement. to determine which permitting minimization of disturbances to the Other commenters suggest that the requirements applied to each stream prevailing hydrologic balance and to use of native species in the vegetative classification. Proposed § 780.28 fish, wildlife, and related environmental streamside corridor is in conflict with contained the permitting requirements values. Requirements for streamside requirements imposed by the U.S. Army for perennial, intermittent, and vegetative corridors for ephemeral Corps of Engineers aimed at improving ephemeral streams. Commenters stated streams were not included in the reclamation success by using non-native that this approach was confusing previous regulations because the species. To eliminate this potential because the requirements for mining majority of the research that identified conflict, we added paragraph through or diverting ephemeral streams ephemeral streams as vital to the overall 816.57(d)(2)(i) to the final rule. That differed from those for perennial or health of streams was conducted after paragraph requires planting to be in intermittent streams. In response, and as the previous regulations were accordance with the revegetation plan explained in the preamble to § 780.27, implemented. One of the purposes of approved in the permit, unless the we have removed the requirements this final rule is to incorporate the applicable Clean Water Act authority applicable to ephemeral streams from results of new research and best directs otherwise. Similarly, one § 780.28 and placed them in the new technology currently available. By commenter raised concerns that the § 780.27. As a result, all requirements in including these protections for requirement for streamside vegetative § 780.28 apply to perennial and ephemeral streams we are satisfying this corridors along ephemeral streams may intermittent streams, and we have mandate. conflict with local government agency changed the title of the section to reflect One commenter expressed concern requirements, such as when a local this reorganization. The final rule that the establishment of the riparian government agency regulates a drain clearly distinguishes between the corridor, along ephemeral streams in within that area. It is difficult to requirements that apply to perennial, particular, supersedes the Clean Water conceive of a situation where the intermittent, and ephemeral streams. As Act and is inconsistent with the land scenario proffered by this commenter discussed in more detail below, we have use provisions of SMCRA. Specifically, would occur on a mining permit or, if also made a number of organizational the commenter alleged that the it did, why one of the other exceptions changes to § 780.28 to improve clarity. In Part III of the preamble to the proposed rule did not consider the would not apply, such as the exception proposed rule,460 we identified six actual orientation of headwater for prime farmland. specific goals for revising our ephemeral streams where watershed Some commenters stated that streams regulations to better protect streams and breaks may fall within 100 feet of each that have no streamside vegetation or associated environmental values. One of side of the stream channel. It is not clear aquatic life, such as slot canyons and these goals was to protect and restore how the commenter concluded that this desert swales, should be exempt from streams and related resources, including requirement supersedes the Clean Water these requirements. Under the final rule, the headwater streams that are vital to Act. Although the Clean Water Act does if baseline surveys confirm that maintaining the ecological health and not require establishment of postmining vegetation does not exist within 100 feet productivity of downstream waters. We streamside vegetative corridors, it of a stream, establishment of a reiterate the need to protect these certainly does not prohibit the practice. streamside vegetative corridor is not streams in the final rule. This need is It is also not clear how the commenter required. However, we anticipate that strongly rooted in SMCRA and in concluded that the requirement is these situations will be extremely rare scientific literature documenting the inconsistent with SMCRA land use because some vegetation almost exists. importance of streams.461 provisions because if the postmining Some commenters, however, land use requires reconstruction of Section 780.28: What additional requested that we institute stronger ephemeral streams, construction of permitting requirements apply to protections than proposed and prohibit associated streamside vegetative proposed activities in, through, or all mining in or through intermittent corridors would be entirely consistent adjacent to a perennial or intermittent and perennial streams. Other and required. In response to this stream? commenters took the opposite position comment, we also note that the natural Final § 780.28 establishes standards and argued that the proposed rule for the review and approval of permit tipped the statutory balance between 457 Catherine Leigh, et al. Ecological research and applications that propose to conduct management of intermittent rivers: A historical surface mining activities in, through, or review and future directions. Freshwater Biology. 459 80 FR 44436, 44513–44518 (Jul. 27, 2015). (2015). adjacent to streams. We discussed the 460 See 80 FR 44436, 44443 (Jul. 27, 2015). 458 80 FR 44436, 44513–44518 (Jul 27, 2015). purpose of these standards in the 461 80 FR 44436, 44439 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93200 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

environmental protection and the values and to achieve enhancement of demonstrations a permittee must make Nation’s need for coal too far toward those resources where practicable. We prior to performing certain activities in environmental protection without acknowledge that some commenters or within a perennial or intermittent providing an adequate explanation of assert that this translates to a blanket stream. Included in the chart are the the need for such protection. As we prohibition on mining in, through or requirements with which a permittee discussed in the preamble to the adjacent to streams and others want must comply when proposing to proposed rule, while it is true that fewer restrictions, but SMCRA requires, construct a coal mine waste facility that SMCRA contains numerous and we promulgate through the final encroaches upon any part of a perennial requirements aimed at minimizing or rule, a median position, effectively or intermittent stream. Proposed preventing adverse impacts to fish, balancing the commenters’ concerns. paragraph (d) contained similar wildlife, related environmental values, Some commenters alleged that requirements. In response to the the quantity and quality of surface water restrictions on mining in or through proposed rule, one commenter objected and groundwater, and the hydrologic streams may have negative impacts on to the proposed permitting of coal mine balance,462 it is also true that SMCRA proven lignite reserves, leaving the waste facilities in 100-year floodplains seeks to ‘‘strike a balance between reserves stranded and unable to be and suggested that these facilities protection of the environment and economically mined. The commenters should require a higher level of scrutiny agricultural productivity and the suggested that we create an exception with greater long-term protective Nation’s need for coal as an essential for lignite. We disagree that this rule measures than proposed. In response, source of energy.’’ 463 The final rule will strand lignite reserves. The we note that, in most states, state and strikes the appropriate balance. It does commenters did not present any support local authorities determine whether any not prohibit all mining in or through for their position, and there is nothing facility may be constructed in a intermittent and perennial streams. inherently unique about lignite reserves floodplain. Like any other permit Similar to our previous regulations, the that would prevent a permittee from applicant seeking to construct a final rule contains a general prohibition satisfying the requirements of this structure in the 100-year floodplain, a against mining in or through section to allow mining in or through permit applicant seeking to construct a intermittent and perennial streams. streams or relocating streams in order to coal mine waste facility in a 100-year However, the final rule contains recover lignite. More importantly, many floodplain must comply with state and carefully crafted exceptions to this of the requirements that the commenters local laws and regulations. We have not general prohibition which will allow allege would strand lignite reserves made any changes to the final rule in mining in or through intermittent and would likely be inapplicable under the response to this comment. We defer to perennial streams if applicants satisfy final rule because of changes we have state or local authorities with certain requirements. These exceptions made in response to public comments knowledge of the applicable laws and are designed to minimize disturbances and the interagency process. For regulations to make a determination on and ensure the protection and instance, many streams located above whether a coal mine waste facility may restoration of perennial and intermittent the lignite reserves, especially in the be appropriately placed in a 100-year streams and related resources which are Gulf Coast Region, that were classified floodplain. critical to maintaining the ecological as intermittent under the previous Several commenters suggested that health and productivity of downstream regulations, are now categorized as the final rule should allow temporary waters, while balancing, as SMCRA ephemeral streams in the final rule. This impacts to streams, such as a temporary is the case because § 701.5 of the final requires, the nation’s need for coal as an conversion of a perennial stream to an rule amends the definitions of essential energy source. As we intermittent stream. Temporary impacts intermittent and ephemeral streams. acknowledge in the preamble to the to stream flow during mining and Under the previous regulations, we proposed rule, our previous regulations reclamation are allowed under the rule. would have categorized a stream with a did not fully protect many vital This is consistent with SMCRA and our 464 bed-and-bank configuration that is environmental values. The final rule, previous regulations.466 As an example always above the water table and with which includes these carefully crafted of one temporary impact permissible flows arising solely from precipitation exceptions, is informed by our under the final rule, consider final rule regulatory experience over the more (and snow melt) as intermittent if it had a drainage area of at least one square paragraph (e)(2), which addresses than three decades since the adoption of converting a minimal portion of a our previous regulations, both as a mile. As discussed in the preamble to final § 701.5, we will now consider a mined-through segment of an regulatory authority and overseeing intermittent stream. It may take several regulatory authorities, and reflects stream with ephemeral flow characteristics (i.e., one with a bed-and- years for a backfilled area to reach advances in scientific knowledge and hydrologic equilibrium. During that mining and reclamation techniques bank configuration, an ordinary high water mark, that is always above the time, a stream may be temporarily developed during that time. Further, the converted. However, to convert a final rule more completely implements water table and with flows arising solely from precipitation (and snow melt)) to minimal portion of a stream, the sections 515(b)(24) and 516(b)(11) of permittee must still demonstrate that it SMCRA,465 which provide that, to the be ephemeral, regardless of the size of the drainage area. Because the final rule will restore the hydrologic function and extent possible using the best ecological function of the stream as a technology currently available, surface contains fewer restrictions for mining in or through ephemeral streams, it is whole within the mined area to its coal mining and reclamation operations premining stream type prior to bond must be conducted to minimize unlikely that lignite reserves will be stranded as a result of this rule. For release. This is only one example of an disturbances and adverse impacts on allowable temporary impact to streams fish, wildlife, and related environmental these reasons, we did not add an exception for lignite. 466 See 30 CFR 1265(b)(10) which requires 462 As discussed more fully below in our 80 FR 44436, 44514. minimization to ‘‘disturbances to the prevailing 463 30 U.S.C. 1202(f). discussion on final paragraph (e), we hydrologic balance at the mine site and in 464 80 FR 44436, 44438–44447 (Jul. 27, 2015). have restructured the final rule by associated offsite areas,’’ not avoidance or a 465 30 U.S.C. 1265(b)(24) and 1266(b)(11). adding a chart to explain the prohibition of disturbances.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00136 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93201

and we agree with the commenter that the Clean Water Act, 33 U.S.C. 1251 et mining activities in or affecting waters temporary impacts are permissible. We seq.’’ subject to the jurisdiction of the Clean discuss the specific requirements a Final paragraph (a) more closely Water Act before the permittee obtains permittee must demonstrate to achieve tracks the permit condition found in all necessary authorizations, approval to convert a minimal portion final rule § 773.17(h) and the provisions certifications, and permits pursuant to of a mined-through segment of an of final rule § 780.16(c)(4)(ii) about the Clean Water Act. Permit conditions intermittent stream to an ephemeral protection of other species and the are directly enforceable under stream in more detail in final paragraph requirement to explain how you will SMCRA.472 The fact that this permit (e)(2). avoid or minimize mining through or condition requires compliance with the discharging dredged fill material into Clean Water Act before surface mining One regulatory authority commenter wetlands or streams that are subject to requested additional explanation about activities take place in streams does not the jurisdiction of the Clean Water Act. convert the SMCRA enforcement of a the performance standards for alluvial It differs from the proposed rule because valley floors in Western states. We did permit condition into a Clean Water Act it now conditions the initiation of enforcement action, nor does it not propose any changes to the previous surface mining activities in or affecting regulations concerning alluvial valley supersede the Clean Water Act. waters subject to the jurisdiction of the Another commenter alleged that, in floors in Western states. Therefore, the Clean Water Act upon first receiving the the rule, Clean Water Act requirements final rule does not affect those necessary authorizations, certifications, are always mentioned in the context of performance standards. and permits under the Clean Water Act. perennial or intermittent streams. The Final Paragraph (a): Clean Water Act This difference in when applicable commenter suggested that wetlands are Requirements surface activities can be initiated equally subject to the requirements of reconciles the needs of other federal the Clean Water Act. The commenter Final paragraph (a) is similar to agencies to consider the SMCRA permit recommended that specific mention of proposed paragraph (a). For reference, when making decisions about granting wetlands be added to § 780.28(a). We we proposed to add paragraph (a) to Clean Water Act authorizations, agree with the commenter that wetlands emphasize that a person seeking to certifications, and permits but balances are equally subject to the requirements conduct surface mining activities ‘‘in the needs of the permittee to make of the Clean Water Act; however, we waters of the United States’’ must informed decisions about the feasibility decline to make changes to § 780.28(a) procure all necessary authorizations, of mining in or through intermittent or because § 780.28 specifically addresses certifications, and permits pursuant to perennial streams. Placing a permit activities in, through, or adjacent to the Clean Water Act 467 before initiating condition upon the permittee will avoid perennial or intermittent streams. Please mining in those waters. In the preamble unnecessary and often costly permit see the discussion of wetlands in the to the proposed rule we explained that revisions by requiring the permittee to preamble to final rule § 780.16(c)(4). issuance of the SMCRA permit alone is consult with the Clean Water Act Final Paragraph (b): To what activities not sufficient.468 authority at the early stages of the SMCRA permitting process, but will not does this section apply? We have modified final paragraph (a) delay the SMCRA permit authorization. We have made non-substantive to clarify that if the proposed permit These modifications to the final rule area includes waters subject to the modifications to the title of this were based on both public comment and paragraph. Like proposed paragraph (b), jurisdiction of the Clean Water Act, comments from a federal agency. including perennial and intermittent final paragraph (b) explains that the Moreover, final paragraph (a) ensures permit applicant must provide certain streams, the regulatory authority must protection of streams as required by information and demonstrations condition the permit to prohibit section 515(b)(10) and compliance with whenever it proposes to conduct surface initiation of any surface mining section 702(a) of SMCRA, which mining activities in or through a activities in or affecting those waters specifies that nothing in the Act should perennial or intermittent stream or on before you obtain all necessary be construed as superseding, amending, the surface of lands within 100 feet of authorizations, certifications, and modifying, or repealing, ‘‘federal laws a perennial, or intermittent stream. We permits under the Clean Water Act.469 relating to the preservation of water have added a reference to final This paragraph makes clear that quality,’’ including the Clean Water Act paragraphs (c) through (g) in order to although a SMCRA permit may be and state laws enacted pursuant to the clarify that the specific demonstrations obtained prior to you obtaining all Clean Water Act.471 required are found in those paragraphs. necessary authorizations, certifications, Some commenters opposed the idea of us instituting a permit condition As discussed above, we have also and permits under the Clean Water Act, removed references to ephemeral the regulatory authority must place a relative to the Clean Water Act asserting that it exceeds our authority under streams from this section. condition upon the permit that no One commenter suggested that we SMCRA, duplicates the requirements of surface mining activities in or affecting replace the term ‘‘bankfull’’ in proposed the Clean Water Act, or inappropriately those waters may be initiated before you paragraph (b)(1)(ii) with the phrase requires the SMCRA regulatory obtain all necessary authorizations, ‘‘ordinary high water mark’’ because authority to determine whether the certifications, and permits under the ordinary high water mark is both more 470 applicant obtained the appropriate Clean Water Act. Also, at the commonly accepted and more easily Clean Water Act authorizations, suggestion of a federal agency, we have determined. We agree and have revised certifications, or permits. We disagree. removed reference to ‘‘in waters of the final paragraph (b)(2) and other We are not exceeding our authority or United States’’ and replaced it with the references to ‘‘bankfull’’ throughout the duplicating the efforts of the Clean phrase, ‘‘subject to the jurisdiction of final rule for consistency.473 Water Act authority by requiring the For further 467 regulatory authority to condition the 33 U.S.C. 1251 et seq. 472 See 30 U.S.C. 1271(a)(4). 468 80 FR 44436, 44515 (Jul. 27, 2015). permit to prohibit initiation of surface 473 See Final rule sections: 701.5—ephemeral, 469 33 U.S.C. 1251 et seq. intermittent, and perennial stream definitions, 470 33 U.S.C. 1251 et seq. 471 30 U.S.C. 1292(a). Continued

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00137 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93202 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

discussion of this term, you may consult dimensions of a stream channel. determining flood-prone areas. This the preamble discussion on § 701.5 of Reestablishment of ‘‘form’’ is a commenter recommended that we the final rule. prerequisite for restoration of hydrologic require commonly accepted hydrologic function and ecological function and modeling like the Federal Emergency Final Paragraph (c): Postmining Surface ultimately, stream restoration. Management Agency’s mapping system, Drainage Pattern and Stream-Channel Several commenters alleged that Configuration Rosgen’s Stream Classification, and the restoring the premining drainage pattern measuring of flood-prone elevation, and As a general rule, a permittee that is a significant and onerous constraint that we establish a specific distance for proposes to mine through a perennial or on postmining grading and backfilling the width of each side of the flood- intermittent stream must include in its plans. The commenters also asserted prone area. In addition, the commenter permit application a plan to restore a that replicating premining suggested that we provide guidance on surface drainage pattern that is characteristics of a stream channel considering seasonality effects when relatively stable, and in dynamic near- would be virtually impossible. In conducting these measurements. equilibrium and stream-channel response to these comments, we note Conversely, we received numerous configuration that is similar to the that the final rule does not require the comments specifically opposing the premining configuration and is permittee to demonstrate that the adoption of such changes. These relatively stable. Final paragraph (c)(1) postmining drainage pattern be returned commenters claimed that this approach prescribes this general rule, but final to exactly the premining state. In both would be too prescriptive and stated paragraph (c)(2) grants the regulatory the proposed and final rule paragraph that the regulatory authority should authority discretion to approve or (c), we require only that the postmining have discretion to determine which require a postmining drainage pattern or drainage pattern be similar to the methodologies to adopt and what kind configuration that deviates from the premining pattern unless the regulatory of data to require. We agree with these general rule in specific circumstances. authority grants an exception under latter commenters that the regulatory These requirements ensure the (c)(2). Other commenters claimed, authority is in the best position to adopt establishment of a postmining drainage without explaining the assertion, that the most appropriate approach because pattern or stream-channel configuration the requirements in proposed paragraph it is the regulatory authority that is most that is functionally equivalent to the (c), including the requirement to restore familiar with the unique geographic and premining pattern, while affording the postmining drainage patterns, are geologic characteristics of its own regulatory authority the discretion to unnecessary in most states. We disagree jurisdiction. This will also allow the approve other configurations when such that these requirements are unnecessary regulatory authorities additional configurations are likely to be better for in any state. As we have previously flexibility to adapt to changing the hydrologic balance or ecological stated in this preamble, streams are circumstances or to adopt newer function. We have re-designated and important nationwide. Further, as we techniques as they become available separated select portions of proposed explained in the preamble of the without waiting for an additional paragraph (c) to create final paragraph proposed rule, ‘‘in addition to federal rulemaking. (c) and more clearly explain the [providing] ecological benefits, th[ese] permittee’s obligations. Components of requirement[s] would better implement However, we note that many of the final paragraph (c) were in proposed the requirement in section 515(b)(3) of parameters suggested by the commenter, paragraph (c)(1) and we discussed them SMCRA that the permittee restore the including sinuosity, bankfull depth, and in the preamble to the proposed rule.474 approximate original contour of the the flood-prone area to bankfull width However, we re-designated the land.’’ 475 All mines, regardless of ratio (entrenchment) are included in the paragraph to improve clarity and location, are subject to the requirement final rule § 701.5 definition of ‘‘form’’ address commenters’ concerns that to restore approximate original contour. and discussed in the preamble of final proposed § 780.28(c) was confusing. Moreover, requiring a permittee to rule § 816.57(e). For clarification, a Additionally, as discussed below, we restore the premining drainage pattern stream segment cannot be successfully have added final paragraphs (c)(2)(iv) and stream channel configuration will reconfigured unless the ‘‘form’’ of a through (vii) to explain when the likely result in the least impact to the stream is restored throughout the length regulatory may approve or require a hydrologic and ecological function of of each stream segment. Therefore, the different postmining surface drainage the stream as a whole. Therefore, we are commenters’ concerns are addressed in pattern or stream-channel configuration. retaining this essential requirement. the performance standards of final rule The general requirement in final One commenter suggested that we § 816.57(e) and may also be considered paragraph (c)(1) to return the drainage add specific requirements to final when developing the plan to configure pattern and stream-channel paragraph (c) for applicants to submit a stream channel as required by final configuration to the functional data on stream pattern and sinuosity, rule § 780.28(c)(1)(ii). As explained in equivalent of the premining state water depth, alluvial groundwater the preamble to final rule § 816.57(e), in recognizes that the design of a stream depth, depth to bedrock, elevation, order to achieve Phase I bond release, a channel is essential to stream health and bankfull depth, and width. The permittee must demonstrate that it has that successfully restoring stream commenter asserted that the general successfully restored or reconstructed channel configuration is the first step in requirements in proposed paragraph (c) the ‘‘form’’ of the stream segment in the process of reestablishing the ‘‘form’’ were not sufficient. According to the accordance with the approved design of the stream. As explained in its commenter, requiring this data would developed in accordance with definition at final rule § 701.5, the term allow the regulatory authority to better § 780.28(c)(1). A permittee successfully ‘‘form’’ refers to the physical compare the restored drainage pattern restores ‘‘form’’ under our final rule by characteristics, pattern, profile and and stream-channel configuration with utilizing many of the methodologies the what existed prior to mining. The commenter suggests. Final paragraph (c) 780.16(c)(2), 780.28(b)(2) and (d)(2), 780.35(e), commenter also requested a definition, requires a plan to construct a 780.37(a)(4)(i), 784.16(c)(2), 784.28(b)(2) and (d)(2), 784.35(e), 784.37(a)(4)(i), 816.57(b), 816.57(d)(iv), guidance, or methodology for postmining stream channel 816.97(j)(2)(i), 817.57(b), 817.57(d)(iv). configuration similar to the premining 474 80 FR 44436, 44514–44516 (Jul. 27, 2015). 475 80 FR 44436, 44516 (Jul. 27, 2015). configuration. Although we are not

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00138 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93203

requiring a specific methodology for explained below, we have added four channelized or otherwise severely restoring ‘‘form’’ in the permitting more exemptions to the general altered with a more natural, relatively requirements of final paragraph (c), the requirement to restore the premining stable, and ecologically sound drainage performance standards require the drainage pattern and stream-channel pattern or stream-channel configuration. characteristics that establish ‘‘form’’ to configurations. The regulatory authority In response to several commenters, be present in the postmining stream may now also grant exemptions when including a federal agency commenter, channel configuration. Final paragraph doing so is necessary or appropriate to: we have added exception (c)(2)(vii). (c) works in conjunction with the (1) Accommodate any anticipated This exception allows for a different performance standards of § 816.57(e). temporary or permanent increase in pattern or configuration when it is Final paragraph (c)(2) prescribes surface runoff as a result of mining and necessary to reclaim a previously mined seven circumstances under which a reclamation; (2) accommodate the area because the premining surface regulatory authority may waive the construction of excess spoil fills, coal drainage pattern and stream-channel general requirement to restore the mine waste refuse piles, or coal mine configuration on previously mined areas premining drainage pattern and stream- waste impounding structures; (3) may not be optimal or desirable from a channel configurations. Proposed replace a stream that was channelized or land use, hydrological, or ecological paragraphs (c)(1)(i) through (iii) otherwise severely altered prior to perspective. contained three of these exemptions, submittal of the permit application with Some commenters suggested that which we have retained in final a more natural, relatively stable, or there may be additional reasons to paragraphs (c)(2)(i) through (iii). ecologically sound drainage pattern or change minor channel drainage patterns However, we have added clarity to these stream-channel configuration; or (4) such as to accommodate coal removal, exemptions to ensure that the goal of reclaim a previously mined area. minimize the re-handling of backfill, final § 780.28(c) perpetuated, i.e., that In response to a commenter’s concern and conduct contemporaneous the stream channel be stabilized and that mining may result in temporary or reclamation. We agree that minor erosion be minimized. The regulatory permanent increases in surface runoff, deviations from the premining drainage authority may grant these exemptions if we have added final paragraph (c)(2)(iv). pattern are permissible. However, the it finds that a different pattern or This provision accommodates situations additional exceptions outlined by the configuration is necessary or in which watershed boundaries have commenters are not necessary because appropriate to: (1) Ensure stability, (2) been moved from premining locations. the final rule only requires the restored prevent or minimize deepening or Relocating watershed boundaries may drainage patterns be similar to the widening of reconstructed stream result in larger surface water flows in original drainage patterns. They do not channels and control meander some watersheds and smaller surface have to be exactly the same. Moreover, migration, or (3) promote or enhance water flows in other watersheds. the commenters’ concerns may be wildlife habitat consistent with sections We have added final paragraph addressed in the expanded list of 515(b)(24) and 516(b)(11) of SMCRA.476 (c)(2)(v) in response to a comment exemptions that we have discussed The same commenters that objected to suggesting that proposed paragraph (c) above. the general requirements in proposed and proposed paragraph (d), which set Another commenter alleged that the and final section (c)(1) also opined that out requirements to construct excess requirements contained in proposed the regulatory authority-approved spoil fills, coal mine waste refuse piles, paragraph (c) did not appear to account deviations in proposed paragraph or coal mine waste impounding for special cases, such as dropped off (c)(1)(i) through (iii) would be subject to structures, conflicted with one another. final cuts or initial cut development. We a great amount of subjectivity and The commenter opined that it would be disagree because the examples the misinterpretation by regulators and impossible to restore the surface commenter provides are not special could result in the inconsistent drainage pattern and stream-channel cases. Final paragraph (c)(2) provides treatment of operators. We disagree that configuration of a stream if an excess the regulatory authority with discretion these requirements are too subjective, spoil fill or coal mine waste disposal to approve a different postmining and we do not agree that they will be facility is constructed. We have resolved pattern in certain circumstances, subject to misinterpretation. The this alleged conflict by clarifying that including what the commenter information and demonstrations the regulatory authority may approve a describes as ‘‘special cases.’’ For required supply basic information that postmining surface drainage pattern or example, if any of the conditions the regulatory authority needs to stream-channel configuration that identified in paragraphs (c)(2)(i) through determine if mining activity will result differs from the premining pattern or (vi) apply, such as promoting in material damage to the hydrologic configuration when it is necessary to enhancement of the fish and wildlife balance outside the permit area as well accommodate the construction of excess habitat, in the reclaimed area of initial as cause irreparable long-term damage spoil fills, coal mine waste refuse piles cut development or in the area of final to the health of the streams on permit. or coal mine waste impounding cut, the regulatory authority could allow Despite the commenters’ allegations, structures. the permittee to alter the postmining final paragraph (c)(2) provides more We have added final paragraph drainage pattern from that which consistency in determining whether (c)(2)(vi) to correlate with final existed premining. If the exceptions mining activity will result in material paragraph (e)(3), which we added to the identified in paragraphs (c)(2)(i) through damage to the hydrologic balance or final rule to incentivize mining (vi) do not apply, the permittee must cause irreparable long-term damage to techniques that result in improvements reconstruct the drainage pattern to a the health of streams, while to streams that are degraded. Final condition similar to the premining simultaneously allowing each regulatory paragraph (c)(2)(vi) allows an exemption pattern. authority the flexibility to take site- to the requirement to restore premining We have not adopted proposed specific considerations into account. drainage pattern and stream-channel paragraph (c)(2)(iv)(A), which would In paragraph (c)(2)(iv) through (vii) of configurations if the regulatory have required the selective placement of the final rule, for the purposes authority finds that a different pattern or low permeability materials in the configuration is necessary or backfill or fill and associated stream 476 30 U.S.C. 1265(b)(24) and 1266(b)(11). appropriate to replace a stream that was channels to create an aquitard that

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00139 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93204 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

would channel infiltrated precipitation The streamside vegetative corridor must surface of lands within 100 feet of to restored streams in order to be consistent with natural vegetation streams to establish a ‘‘riparian reestablish perennial or intermittent patterns and must adhere to the corridor’’ following mining. Several stream flow. Some commenters noted streamside vegetative corridor commenters misinterpreted the that this requirement could be difficult requirements of final paragraph (d) of language in the proposed rule to mean or impossible to achieve in many § 816.57. At final paragraph (d)(2) of that all lands within 100 feet of a stream circumstances because of the lack of § 780.28, we also require that the must be revegetated with hydrophilic available soil or subsoil, root depth corridor width must be measured vegetation. One commenter who issues, lack of available aquitard horizontally on a line perpendicular to interpreted our rule this way cited the material, and changes in permeability the stream, beginning at the ordinary Bureau of Land Management’s due to mining. These commenters stated high water mark. We proposed similar definition of ‘‘riparian corridor’’ as that the regulatory authority is in the requirements at proposed paragraph ‘‘area exhibiting vegetation and physical best position to establish objective (b)(3), but we have moved them to final characteristics reflective of permanent standards for restoring the ecological paragraph (d) and consequently, re- surface or subsurface water influence’’ function of a stream. While we titled this paragraph. We have also and suggested that not all areas within acknowledge that reestablishing made some other modifications, as 100 feet of a stream have riparian sufficient flow is paramount to discussed below. characteristics. We did not intend to successfully returning hydrologic Although we have made substantive imply that the entirety of the corridor function—and ultimately ecological changes to the final rule in response to must be planted with hydrophilic function—to intermittent and perennial comments, we have retained many of vegetation. In order to correct this streams, we agree with the commenters the concepts and specific provisions of potential misinterpretation, we have that the applicant and the regulatory the proposed rule relating to streamside replaced the phrase ‘‘riparian corridor’’ authority are in the best position to corridors. For example, proposed with ‘‘streamside vegetative corridor.’’ determine the most appropriate method paragraph (b)(3)(i) required the corridor Our use of the term ‘‘streamside for ensuring stream flow is reestablished width to be measured on a line vegetative corridor’’ is intended to post mining. In final paragraph (g) we perpendicular to the stream, beginning clarify that the permittee must use set out the standards for stream at the ‘‘bankfull elevation or, if there are appropriate native vegetation, which is restoration. Use of aquitards to no discernable banks, the centerline of not always riparian or hydrophilic in reestablish flow is just one method of the active channel.’’ One commenter nature. Postmining streamside accomplishing this restoration suggested that the 100-foot wide vegetative corridors should reflect what Therefore, we have removed the specific corridor should be measured following is determined to exist in the premining requirement in proposed paragraph the angle of the land rather than landscape and are not necessarily (c)(2)(iv)(A) to construct aquitards. As horizontally on a line perpendicular to dependent upon the presence of surface discussed in the preamble to final the stream beginning at the bankfull or groundwater. Despite this change in paragraph (g)(3)(iv)(A), although we do elevation or, if there are no discernable terminology, the comments on proposed not require the use of aquitards we have banks, the center line of the active (b)(3)(i), including references to required that the regulatory authority channel. We recognize that it may be ‘‘riparian corridor’’, and our responses use the best technology currently easier for a person to actually measure to those comments are still pertinent to available to either create standards to if he or she follows the angle of the land, final paragraphs (d)(1) and (d)(2) and we but this type of measurement is also restore the form, hydrologic function, discuss them below. and water quality of intermittent likely to produce irregular results across streams and reestablishment of the country due to different Many commenters supported the streamside vegetation for intermittent topographies. Moreover, the method proposed corridor. Others supported the streams when there are no scientifically proposed by this commenter does not concept of a corridor, but suggested defensible protocols established to account for seasonal variability and, in modifications to the size or assess biological condition or, where practice, may not uniformly preserve a implementation of the corridor. Still scientifically defensible protocols exist, full 100-foot corridor on each side of the others opposed the proposed corridor. assess the biological condition of the stream. As discussed in the preamble Many of the commenters who supported stream. discussion of ‘‘ordinary high water the proposed requirement for a corridor For the reasons discussed in the final mark’’ in § 701.5 of the final rule, one requested that we strengthen the preamble to Part 800, we are not commenter suggested that the term proposal to impose a strict 100-foot adopting proposed § 780.28(c)(2)(B), ‘‘ordinary high water mark’’ is more buffer on each side of a stream and not which would have required a separate commonly accepted and more easily allow the exceptions or variances that bond guaranteeing the return of determined than the term ‘‘bankfull.’’ we proposed in paragraph (b)(3)(iii). ecological function. We agree and have revised references to These commenters asserted that ‘‘bankfull’’ throughout the final rule. anything less than an unequivocal 100- Final Paragraph (d): Streamside Thus, we modified final paragraph foot buffer on either side of all streams, Vegetative Corridors (d)(2) to provide that when determining even in situations where excess spoil is Final paragraph (d)(1) requires that the 100-foot width of the riparian placed or coal mine waste disposal any permittee proposing to conduct any corridor along both banks of the stream, facilities exist, is ‘‘unreasonable’’ surface mining activities in or through measurements should be done because the risk of damaging vital a perennial or intermittent stream or on horizontally on a line perpendicular to waterways and imperiled species poses the surface of lands within 100 feet of the ordinary high water mark. a greater threat than the stranding of a perennial or intermittent stream must We have also replaced the term some coal reserves. Further, the include in the permit application a plan ‘‘riparian corridor’’ with the term commenters alleged that an already to establish a vegetated streamside ‘‘streamside vegetative corridor.’’ declining coal market will not suffer any corridor at least 100 feet wide along Proposed paragraph (b)(3)(i) required a significant loss if we were to impose a each bank of the stream after the permittee seeking to conduct mining 100-foot ‘‘buffer’’ with no exceptions. completion of surface mining activities. activities in or through streams or on the Several commenters alleged that the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00140 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93205

proposed 100-foot minimum width for the site-specific nature of the controls, such as final rule § 780.12(f), the corridor as proposed in paragraph determination of the appropriate which is designed to stabilize exposed (d)(1) was arbitrary. Some of these corridor width. While it does establish surfaces and effectively control erosion. commenters suggested that the a minimum width, the provision also Another commenter asked if a regulatory authority should establish the allows a regulatory authority, depending riparian corridor must be established width of the corridor on a site-by-site on the permit, to require a wider along all streams inside a permit area basis. Still other commenters objected to corridor. For example, a wider corridor including streams that will not be the 100-foot riparian corridor, alleging may be preferable when species or impacted. In general, the section applies that we had converted a best habitats of concern are present or only to streams within the permit area management practice for operating near because of climatological and that are affected by mining. Any affected streams into an unauthorized, rigorous topographical characteristics of the streams within the permit area would be permitting and design standard that also permit and the relevant adjacent areas. adequately protected by the dictates long-term land uses. Some commenters recommended that requirements of this section. It is Upon review of these comments, we we extend the requirement to establish possible, however, that in a single are retaining the requirement for a a 100-foot corridor to non-forested areas. permit area a permittee may propose to general rule establishing a 100-foot wide Like the proposed rule, the final rule mine through one stream without streamside vegetative corridor on each 100-foot streamside vegetative corridor touching a second stream, but that the side of perennial and intermittent requirement applies whenever a 100-foot streamside vegetative corridors streams, subject to certain narrowly- permittee proposes to conduct surface could overlap. Consistent with the tailored exceptions, because this strikes mining on the surface of lands within permitting requirements of this the necessary balance between 100 feet of streams, or when the paragraph and final rule environmental protection and the permittee proposes to conduct surface § 816.57(d)(1)(ii), in this scenario the Nation’s need for coal as an essential mining activities in or through all permittee must ‘‘establish a vegetative source of energy.477 In the preamble to streams, with the exception of corridor on any land [disturbed] within the proposed rule at Part IV and diversions that will be in place less than 100 feet of a perennial or intermittent proposed § 816.57(a), we explained that three years and subject to the exceptions stream.’’ Therefore, to the extent it this distance is consistent with our in final rule § 816.57(d)(4)(i) through disturbs the second stream’s vegetative history of requiring a minimum, (iii). Thus, the streamside vegetative corridor, the permittee must establish a nationwide, 100-foot corridor width on corridor requirement is not limited to streamside vegetative corridor for that either side of a stream. Contrary to the streams in forested areas as the second stream. assertions by some commenters, this commenter contends. Final rule Some commenters suggested that the requirement has never been considered paragraph (d) requires a permittee to 100-foot riparian corridor should not merely a ‘‘best management practice.’’ populate streamside vegetative corridors apply in situations where no riparian Furthermore, as discussed in the consistent with natural vegetation corridor existed prior to mining or preamble to the proposed rule, this patterns and the performance where there was ‘‘human development’’ width is supported by science.478 In requirements of final § 816.57. Final prior to mining. As discussed in Part III sum, the minimum 100-foot corridor § 816.57(d)(2) prescribes the specific of the preamble to the proposed rule,481 width is within the lower end of the requirements for planting streamside streamside vegetative corridors are range of recommended minimum vegetative corridors. Although essential to stream health. Therefore, we widths for wildlife habitat and flood permittees are required to use native decline to include additional exceptions mitigation, in the middle of the range trees and shrubs when planting areas to account for the use of the land prior for sediment removal and nitrogen within the streamside corridor that were to mining. removal from streams, and exceeds the forested or may revert to forest under One commenter suggested that the range recommended for water condition of natural succession, this establishing of a riparian corridor may temperature moderation and bank requirement does not foreclose degrade critical habitat for threatened, stabilization and aquatic food web establishing streamside vegetative endangered, or candidate species by maintenance.479 This approach is well corridors on non-forested land. These substituting vegetation. We intend within our authority pursuant to section requirements are part of the best § 780.28 to work in concert with the rest 515(b)(24) of SMCRA to employ, to the technology currently available to of Part 780, including § 780.16, which extent possible, the best technology minimize adverse impacts on fish, outlines the requirements for a valid currently available, to minimize wildlife, and related environmental fish and wildlife enhancement plan. As disturbances and adverse impacts on values and to achieve enhancement of explained in the preamble discussion of fish, wildlife, and related environmental those resources, as required by section § 780.16, the regulatory authority may 480 values. We conclude, therefore, that the 515(b)(24) of SMCRA. not issue a permit until an applicant 100-foot minimum width strikes an Other commenters contend that the first explains how it will adhere to the appropriate balance between the various removal of vegetation and soil Endangered Species Act and what recommended corridor widths and disturbance from non-forested areas action it will take to protect other specific environmental objectives. could lead to sedimentation and other species. The 100 foot minimum corridor pollution that may cause undue harm to One commenter suggested that requirement, however, does not change streams and the species that depend on establishing a riparian corridor might them. We disagree with the commenters impact property rights because the 477 30 U.S.C. 1202(f). asserting that a streamside vegetative landowner might not want a streamside 478 80 FR 44436, 44494 and 44552 (Jul. 27, 2015). corridor may cause undue harm to vegetative corridor as part of the 479 See, e.g., David Welsch, Riparian Forest streams because these commenters fail postmining land use. The last sentence Buffers: Functions and Design for Protection and to consider the other requirements of of final § 780.28(d) requires the corridor Enhancement of Water Resources, NA–PR–07–91, our regulations that require a permittee to be consistent with natural vegetation U.S. Dep’t. of Agric., Forest Serv. Northeastern Area and Private Forestry (1991). http:// to implement erosion and sedimentation patterns and to adhere to the streamside www.na.fs.fed.us/spfo/pubs/n_resource/buffer/ cover.htm (last accessed Nov. 1, 2016). 480 30 CFR 1265(b)(24). 481 80 FR 44436, 44443 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00141 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93206 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

vegetative corridor requirements of final emphasizing that this will protect fish prevention of damage from mining in or § 816.57(d). As discussed more fully in and wildlife habitat and encourage through streams. We recognize that the preamble to final rule § 816.57(d)(4), ‘‘beneficial remining’’ techniques. Final section 515(b)(10) of SMCRA 483 there are exceptions to establishing a paragraph (e) sets out the specific requires that the permittee conduct streamside vegetative corridor. To be demonstrations that a permittee must surface mining operations to minimize consistent with final rule §§ 780.28(d) include in a permit application if disturbance to the prevailing hydrologic and 816.57(d), if a landowner does not mining is proposed in or within 100 feet balance at the mine site and associated consent to establishing a streamside of a perennial or intermittent stream. In offsite areas, but section 510(b)(3) of vegetative corridor and none of the proposed paragraph (c) we explained SMCRA 484 forbids the issuance of a exceptions identified in final rule § the requirements to be satisfied when surface mining permit if the regulatory 816.57(d)(4) are applicable, mining may mining through or diverting a perennial, authority cannot find that the proposed not take place in or through a stream or intermittent or ephemeral stream. In operation has been designed to prevent on the surface of lands within 100 feet proposed paragraph (d), we explained material damage to the hydrologic of a stream. the requirements to be satisfied when an balance outside the permit area. Several commenters objected to applicant proposed to construct an Scientific literature, studies, and establishing a corridor along ephemeral excess spoil fill or coal mine waste examples of SMCRA-permitted sites streams. As discussed above, we are disposal facility in a perennial or demonstrate that, unless carefully retaining the requirement to establish a intermittent stream. Many commenters designed, mining activities in or streamside vegetative corridor for all remarked that proposed paragraphs (c) through streams can increase the streams, including ephemeral streams. and (d) were confusing because it was potential for material damage to the However, because we have moved the difficult to discern what demonstrations hydrologic balance outside the permit permitting requirement for ephemeral were necessary for mining through or area.485 Contrary to the commenter’s streams to new § 780.27(c), we address diverting a stream and what additional assertions, the required demonstrations comments specific to permit application demonstrations were required for set forth in proposed paragraphs (b), (c), requirements for mining in, through, or constructing excess spoil fills or coal and (d), and in final paragraph (e) are adjacent to ephemeral streams in the mine waste disposal facilities in a not a blanket prohibition on mining in preamble to that paragraph. stream. Additionally, many commenters these areas. Rather, final paragraph We have moved the specific 100-foot expressed confusion about mixed (e)(1) contains the findings required to streamside vegetative corridor standards references to ephemeral streams, stating ensure that, among other things, the and the exceptions to these they could not differentiate when the proposed operation is designed to requirements, initially placed in demonstrations applied to perennial minimize the disturbance to the § 780.28(b)(3)(ii) and (iii),which and intermittent streams only and when prevailing hydrologic balance at the prescribe permitting requirements to the the required demonstrations applied to mine site and prevent material damage performance standards of Part 816. We all streams. In consideration of these to the hydrologic balance outside the acknowledge that the permittee is comments, we have consolidated into permit area. These carefully crafted obligated only to include a plan to final paragraph (e) the demonstration requirements balance environmental establish a vegetated streamside corridor requirements for intermittent and protection and responsible extraction of at the permitting stage. Although the perennial streams that were in proposed coal. sufficiency of the plan should be paragraphs (c) and (d). To correspond For clarity, we have included a table assessed in accordance with the with these changes, we have revised the in final paragraph (e)(1) that identifies, requirements of final rule § 816.57(d), title of this paragraph to encompass all by type of activity, the demonstrations the adequacy of the streamside proposed mining activities in or within that must be made as part of the permit vegetative corridor is assessed after 100 feet of a perennial or intermittent application if the applicant proposed to mining is complete and the corridor is stream, not just the diversion of streams conduct mining activities in or through constructed. The regulatory authority and placement of excess spoil fill or a perennial or intermittent stream or on will assess the adequacy of the coal mine waste disposal facilities. In the surface of land within 100 feet of a streamside vegetative corridor prior to addition to the consolidation of perennial or intermittent stream. For bond release. Therefore, these proposed paragraphs (c) and (d) into requirements are more appropriately final paragraph (e), we modified these 483 Id. characterized as performance standards provisions in response to comments, 484 30 U.S.C. 1260(b)(3). and are now in final rule paragraphs including comments from other federal 485 See Margaret A. Palmer, Reforming watershed restoration: Science in need of application and (d)(2) through (4) of § 816.57. Because of agencies. These modifications include applications in need of science. Estuaries and this relocation, we discuss comments removal of references to ephemeral Coasts 32(1): 1–17 (2009). Margaret A. Palmer, & specifically related to the exceptions streams. As discussed above, we have Emily S. Bernhardt, Mountaintop Mining Valley proposed in § 780.28(b)(3)(iii) in the fills and Aquatic Ecosystems: A Scientific Primer on consolidated the permitting Impacts and Mitigation Approaches. Working preamble to § 816.57(d)(4). requirements related to ephemeral paper. (2009). Margaret A. Palmer, et al. Final Paragraph (e): What streams and have moved them to final Mountaintop Mining Consequences. Science rule § 780.27. We also discuss other 327(5962): 148–149 (2010). U.S. Dep’t. of the demonstrations must I include in my modifications to final paragraph (e) Interior, U.S. Geological Survey, David J. application if I propose to conduct Wangsness, Reconnaissance of stream biota and below. activities in or within 100 feet of a physical and chemical water quality in areas of One commenter considered any selected land use in the coal mining region, perennial or intermittent stream? prohibition on mining in intermittent southwestern Indiana, 1979–80, Open File Report Similar to the proposed rule, final 82–566 (1982). U.S. Dep’t. of the Interior, U.S. and perennial streams to be contrary to Geological Survey, David J. Wangsness et al., paragraph (e) generally prohibits mining SMCRA. These commenters asserted Hydrology of area 30, eastern region, Interior Coal in or near streams, but allows the that section 515(b)(10) 482 requires only Province, Illinois and Indiana Open File Report 82– permittee to conduct certain mining that ‘‘damage be minimized,’’ which the 1005 (1983); U.S. Dep’t of Interior, U.S. Geological activities when the permittee Survey, David J. Wangsness, et al., Hydrology of commenter alleges is different than the area 32, Eastern Region, Coal Province, Indiana demonstrates specific criteria. Some Open File Report 81–498 (1981). https:// commenters supported this approach, 482 30 U.S.C. 1265(b)(10). pubs.usgs.gov/of/1981/0498/report.pdf.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00142 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93207

clarity, this preamble discussion refers to each column of the table by column number as shown below:

1 2 3 4

Demonstration Activity

Any activity other than mining Mining through or permanently di- Construction of an excess spoil through or permanently divert- verting a stream. fill, coal mine waste refuse pile, ing a stream or construction of or impounding structure that en- an excess spoil fill, coal mine croaches upon any part of a waste refuse pile, or impound- stream. ing structure that encroaches upon any part of a stream.

As discussed separately in each The chart differentiates between three received from another federal agency we paragraph several exceptions exist. categories of mining activities: Mining modified proposed paragraphs (b)(2)(i) Generally, permits subject to approved through or permanently diverting a and (iii), now final paragraph (e)(1)(i), to mining programs that expressly prohibit stream, identified in column 3; provide that any proposed activity all surface mining activities in or within construction of an excess spoil fill, coal would not cause or contribute to the 100 feet of perennial or intermittent mine waste refuse pile, or impounding violation of any applicable water quality streams, as discussed in final paragraph structure that encroaches upon any part standards adopted pursuant to section (i) of this section, and similarly final of a stream, identified in column 4; and 303(c) of the Clean Water Act,486 or § 816.57(i) are exempt from final any activity other than the activities other applicable state or tribal water paragraph (e) because all activity is identified in columns 3 and 4. This quality standards. This revision clarifies prohibited. third category of activities is identified that the permittee must prevent all Within the final rule we also allow in column 2. The permittee must make water quality violations and eliminates certain exceptions applicable to the demonstrations listed in column 1 if any confusion that the term ‘‘designated permanent impoundments as specified there is a ‘‘Yes’’ in the column for the use’’ may have caused in the proposed in final paragraph (e)(4) and for streams type of activity the applicant is rule. that are considered intermittent due to proposing to conduct. For example, if an In final rule paragraph (e)(1)(ii) we low flowing springs and seeps as applicant seeks to mine through or retain the requirement in proposed prescribed in final rule paragraph (e)(5). permanently divert a stream, it must paragraph (b)(2)(iv) that proposed A commenter contended that the make the following demonstrations operations will not ‘‘cause material proposed rule conflicted with page ES– listed in column 1, subject to the damage to the hydrologic balance 19 of the DEIS, which stated that the exceptions provided in the chart: outside the permit area.’’ Additionally, preferred alternative ‘‘would allow (i),(ii),(iii),(iv),(v),(vii),(viii),(ix),(x). in response to a comment from another mining through any type of stream Column 2 of the chart, which governs federal agency, we have added the provided the applicant satisfactorily any activity other than mining through requirement that the proposed activity demonstrates to the regulatory or permanently diverting a stream and also must not ‘‘upset the dynamic near authority’’ that ‘‘the hydrological form construction of an excess spoil fill, coal equilibrium of streams outside the and ecological function of the affected mine waste refuse pile, or impounding permit area.’’ As provided in the chart stream segment could and would be structure that encroaches upon any part in column 4, the permittee must also demonstrate this requirement if restored using the techniques in the of a stream, correlates to the provisions proposing to construct an excess spoil proposed reclamation plan.’’ The of proposed paragraph (b)(2). Column 3 fill, coal mine waste refuse pile, or commenter misquotes the DEIS. The of the chart about mining through or impounding structure that encroaches DEIS describes Alternative 8, the permanently diverting a stream on any part of a stream. This is Preferred Alternative, at page ES–19, correlates to the provisions of proposed consistent with our revised definition of and describes the demonstrations paragraph (c). Column 4 of the chart, material damage to the hydrologic prescribed by proposed paragraph about construction of an excess spoil balance outside the permit area and the (c)(2)(ii) through (iv), which set out fill, coal mine waste refuse pile, or requirements of section 515(b)(22) of additional requirements applicable to impounding structure that encroaches SMCRA about the placement of excess permittees that propose to mine through upon any part of a stream, correlates to 487 proposed paragraph (d). Each of the spoil. or divert a perennial or intermittent Proposed paragraph (b)(2)(ii), required demonstrations, identified as stream. However, the four that the permittee demonstrate that the paragraphs (i) through (xiii), is demonstrations prescribed by proposed mining activity would not result in paragraph (b)(2)(i) through (iv), that discussed below to the extent they were conversion of a stream segment from were prerequisites for satisfying modified or were the subject of intermittent to ephemeral, from proposed paragraphs (c)(2)(ii) through comment. perennial to intermittent, or from (iv), were also explained in the DEIS at Proposed paragraphs (b)(2)(i) through perennial to ephemeral. This page ES–19. The chart we have added (iv) set forth the general demonstrations requirement did not apply to excess to the final rule in paragraph (e)(1) necessary when a permittee proposes to spoil fills or coal mine waste facilities. should eliminate confusion. It explains mine in or near perennial or As discussed more comprehensively in each of the demonstrations required for intermittent streams. Although we have the explanation of final paragraph (e)(2), each type of proposed mining activity moved the paragraphs to final paragraph below, we have modified this and there are no longer incorporations (e), we have retained these by reference, which may have been a demonstrations with modifications. For 486 33 U.S.C. 1313(c). source of confusion to the commenter. example, in response to comments 487 30 U.S. C. 1265(b)(22).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00143 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93208 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

demonstration by requiring two separate there is no ‘‘practicable alternative’’ to (d)(2)(ii) imposed a similar requirement findings. The first finding, as prescribed mining through or diverting the stream. that we have modified in response to in final paragraph (e)(1)(iii), requires the The replacement of the term ‘‘no comment. In the final rule, we have permittee to demonstrate that when reasonable alternative’’ with the term clarified that ‘‘upland locations in the proposing to conduct any activity in or ‘‘no practicable alternative’’ is vicinity of the proposed operation’’ through an intermittent or perennial consistent with other demonstration includes abandoned mine lands and stream, with the exception of the standards found in the proposed and unreclaimed bond forfeiture sites. The construction of excess spoil fill, coal final rule, such as paragraph (d)(ii), now term ‘‘vicinity’’ will be determined by mine waste refuse piles, or impounding paragraph (e)(1)(vi). Moreover, the use the regulatory authority on a case-by- structures, the permittee will not of the term ‘‘practicable’’ more closely case basis. One commenter suggested convert the affected stream segment tracks the requirements of section that we alter the final rule to include from a perennial to ephemeral stream. 515(b)(24) of SMCRA.488 One ‘‘abandoned underground mines’’ after We received many comments in support commenter asserted that the proposed ‘‘upland locations’’ to increase the of prohibiting conversion of perennial to requirement was contrary to SMCRA likelihood of selecting an alternative ephemeral streams. The commenters, and was duplicative of and in conflict that reduces excess spoil placement or including another federal agency, cited with both section 404 of the Clean coal mine waste disposal in a perennial the significance of heightened Water Act, which requires avoidance, or intermittent stream and instead biodiversity in perennial streams as minimization, and mitigation of places it in an already disturbed area. rationale for precluding conversion. We impacts, and the Clean Water Act Selective placement may aid in agree and have modified the final rule. section 404(b)(1) alternatives reclamation of another site. We agree Final paragraph (e)(1)(iii) prohibits analysis.489 We disagree for several with the commenter’s rationale and are converting an affected stream segment reasons. SMCRA requires that the modifying final paragraph (e)(1)(vi) to from perennial to ephemeral. permittee minimize disturbances to the add, ‘‘including abandoned mine lands’’ The second finding derived from prevailing hydrologic balance on the of all types, not only ‘‘abandoned proposed (b)(2)(ii), now final paragraph mine site 490 and this demonstration is underground mines’’ and ‘‘unreclaimed (e)(1)(iv), requires that a permittee necessary to determine if the operation bond forfeiture sites.’’ The types of sites demonstrate that the proposed activity would, in fact, be minimizing the we listed are only two examples of the would not result in conversion of the disturbance to the prevailing hydrologic kinds of sites that the permittee should affected stream segment from balance. Similarly, this requirement is consider: This list is not exhaustive. intermittent to ephemeral or from an appropriate means of obtaining the However, we caution that although perennial to intermittent, except when background data and analyses that both using abandoned underground mines the applicant proposes to construct an the applicant and the regulatory may serve as a solution for avoiding excess spoil fill, coal mine waste refuse authority need to make informed above ground placement of excess spoil pile, or impounding structure that decisions about compliance with the or coal mine waste, this solution may encroaches upon any part of a stream. requirements of sections 515(b)(24) and not always be practicable because of As set forth in Column 3, final 516(b)(11) of SMCRA, both of which additional costs and permitting paragraph (e)(2) does allow limited require the minimization of requirements and the burden of exceptions, which we explain below, in disturbances to fish, wildlife, and satisfying the other regulatory the discussion of final paragraphs (e)(2) related environmental values and the requirements related to these practices, and (e)(5). enhancement of such resources where including section 816.41, which Final paragraph (e)(1)(v) is similar to 491 practicable. prescribes the requirements for proposed paragraph (b)(2)(ii). However, As prescribed by column 3, final we have modified the final rule to discharging water and other materials paragraph (e)(1)(v) does not apply to into an underground mine. require the permittee to demonstrate specific intermittent streams as that ‘‘there is no practicable alternative’’ identified in final paragraph (e)(3) Another commenter suggested that we that would avoid mining through or because the permittee must make add the phrase, ‘‘or reduce the extent diverting a perennial or intermittent different demonstrations for these types of’’ to proposed paragraph (d)(2)(ii), stream. The final rule deviates from the of streams. We explain the exceptions now paragraph (e)(1)(vi), so that it proposed rule, which required the for these streams in the discussion of would read: ‘‘[a]fter evaluating all permittee to demonstrate ‘‘that there is final paragraph (e)(3). potential upland locations in the no reasonable alternative’’ that would Final paragraph (e)(1)(vi) applies vicinity of the proposed operation, there avoid mining through or diverting a when a permittee proposes to construct is no practicable alternative that would perennial or intermittent stream when an excess spoil fill, coal mine waste avoid or reduce the extent of placement the permittee proposed to mine through refuse pile, or impounding structure of excess spoil or coal mine waste in a or divert a perennial or intermittent that encroaches upon any part of perennial or intermittent stream.’’ The stream. We determined that use of the perennial or intermittent stream. The commenter alleged that the additional phrase ‘‘no reasonable alternative’’ was permittee must evaluate ‘‘all potential language is necessary to effectively not sufficiently precise; therefore we upland locations, including abandoned communicate that the demonstration replaced the term. The analysis of mine lands and unreclaimed bond must decrease the amount of placement practicable alternatives will identify forfeiture sites’’ and demonstrate that of excess spoil or coal mine waste. The whether an alternative is capable of there is no practicable alternative that commenter opined that the proposed being accomplished. For example, an would avoid placement of excess spoil phrase would clarify our proposed rule applicant’s unwillingness to pursue an or coal mine waste in a perennial or and prevent the permittee from placing alternative does not render it infeasible. intermittent stream. Proposed paragraph any portion of the material in a Similarly, increased costs do not perennial or intermittent stream. We necessarily render an alternative 488 30 U.S.C. 1265(b)(24). agree with the commenter’s assertion infeasible. In the final rule, the 489 33 U.S.C. 1344(b)(1). that construction of excess spoil fills, applicant must demonstrate, and the 490 30 U.S.C. 1265(b)(10). coal mine waste refuse piles, or regulatory authority must agree, that 491 30 U.S.C. 1265(b)(24) and 1266(b)(11). encroachment of impounding structures

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00144 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93209

upon streams are permissible only this requirement does not apply to the requirements in proposed paragraph when, among other criteria, no perennial or intermittent streams with a (b)(3), now final paragraph (d), about practicable alternative for placement in degraded form because the permittee establishment of streamside vegetation the vicinity exists, and that the must make different demonstrations for when proposing to mine through or permittee must minimize perennial and these types of streams. Furthermore, this permanently divert a perennial or intermittent stream disturbance. final paragraph does not apply to intermittent stream. One commenter However, we find the addition of the streams that are considered intermittent recommended that we require phrase ‘‘or reduce the extent of’’ due to low flowing springs and seeps as establishment of a 100-foot forested limiting and not as protective. In the prescribed in final rule paragraph (e)(5) buffer on either side of stream for excess final rule we are retaining the term because again, different demonstrations spoil piles and coal waste disposal ‘‘avoid.’’ Merriam Webster’s dictionary are required. facilities. We disagree. Final paragraph defines ‘‘avoid’’ as ‘‘keep away Final paragraph (e)(1)(viii) is similar (e)(1)(viii) specifically exempts excess from.’’ 492 This term is more consistent to proposed paragraph (c)(2)(iv), but we spoil piles and coal waste disposal areas with section 515(b)(10) of SMCRA 493 modified the final rule after considering from this demonstration because the which requires permittees to minimize comments and to conform to other final streams beneath them no longer exist, disturbances to the prevailing rule changes. For example, the final rule and the stormwater conveyances hydrologic balance. requires the permittee to restore or constructed in conjunction with the Final paragraph (e)(1)(vii) requires the improve the hydrologic function. One structures are not reconstructed streams. permittee to demonstrate that the commenter recommended that the final As discussed in final paragraph, (e)(5), proposed operation has been designed rule require a permittee to restore permittees do not have to make the to minimize the extent to which the ‘‘stream function in addition to demonstration required in final permittee will mine through or divert hydrologic form’’ to ensure the final rule paragraph (e)(1)(viii) for streams that are perennial and intermittent streams or fully protects the essential elements of considered intermittent due to low cover streams by an excess spoil fill, stream health. In support, the flowing springs and seeps because coal mine waste refuse pile, or a coal commenter noted that current scientific different demonstrations are required. mine waste impounding structure. The literature indicates that a stream’s form Final paragraph (e)(1)(ix) requires the permittee must apply this minimization is generally not a proxy for its function. applicant to demonstrate that it has analysis after it makes the alternatives We agree. Although we mentioned designed the proposed excess spoil fill, analysis required by final paragraph ‘‘form’’ in the proposed rule, which we coal mine waste refuse pile, or (e)(1)(v), discussed above. This intended to include hydrologic form, impounding structure that encroaches demonstration is similar to the many other commenters were confused upon any part of a stream to minimize requirements in proposed paragraphs by the term ‘‘hydrologic form.’’ We have the amount of excess spoil or coal mine (c)(2)(iii), relating to mining through or eliminated that term and added a waste the proposed operation will diverting a perennial or intermittent definition of ‘‘hydrologic function’’ to generate. We proposed that the stream, and (d)(2)(iii)(A), relating to the final rule to emphasize the permittee make this demonstration in construction of an excess spoil fill or a importance of the role streams play in proposed paragraph (d)(2)(i) and coal mine waste facility. Because of the transport of water and flow of water explained the proposed demonstration format of our chart in final paragraph within the stream channel and in the preamble.494 One commenter (e)(1) and the similarity between the floodplain. The term ‘‘hydrologic contended that our reference to filter requirements we have combined the function’’ includes total flow volume, presses in the preamble to the proposed demonstrations in the final rule. seasonal variations in streamflow and rule exhibits a preference for employing However, as prescribed by Column 3, base flow, and provision of water filter presses to reduce the generation of this requirement does not apply to needed to maintain floodplains and coal mine waste. This is an erroneous perennial or intermittent streams with a wetlands associated with the stream. interpretation. Filter presses were listed degraded form because the permittee ‘‘Form’’ includes the physical as one of several examples of must make different demonstrations for characteristics of the stream and is a minimization processes that could be these types of streams. Furthermore, this prerequisite of ‘‘hydrologic function.’’ used by a permittee and should not be final paragraph does not apply to The final rule clarifies that a permittee viewed as a preference or the only streams that are considered intermittent must demonstrate that it will restore or option. Many commenters supported due to low flowing springs and seeps as improve both the ‘‘form’’ and hydrologic proposed paragraph (d)(2)(i), citing the prescribed in final rule paragraph (e)(5) function of a mined through or diverted increased level of stream protection because again, different demonstrations stream. Another commenter opined that compared to our previous regulations. are required. the demonstrations that stream Final paragraph (e)(1)(viii) requires restoration plans must restore ‘‘form and We appreciate these comments and are the permittee to demonstrate that the ecological function’’ will require a new, adopting proposed paragraph (d)(2)(i), stream restoration techniques prescribed expansive section of the permit similar now paragraph (e)(1)(ix), with minor in the proposed reclamation plan are to, and duplicative of, a section 404 adjustments. As reflected in the chart found in paragraph (e)(1) of the final adequate to ensure restoration or Clean Water Act permit. We disagree rule, we have added references in improvement of the form, hydrologic and refer the commenter to our columns 2 and 3 to final rule function, dynamic near-equilibrium, discussion in the general comments in § 780.35(b), which governs streamside vegetation, and ecological Part IV. I. We have incorporated both of minimization of excess spoil. These function of the stream after it has been these requirements, as proposed, into references operate to remind any mined through or permanently diverted. the final rule and we encourage SMCRA permittee proposing to engage in any However, as prescribed by Column 3, regulatory authorities to coordinate the processing of permit applications with activity in, through, or adjacent to a the Clean Water Act authority to avoid perennial or intermittent stream that, in 492 Avoid. 2016. In Merriam-Webster. Retrieved Nov. 10, 2016 from www.merriam-webster.com/ any potential for duplication. demonstrating that it will minimize dictionary/avoid. This paragraph of the final rule also 493 30 U.S.C. 1265(b)(10). requires the permittee to demonstrate 494 80 FR 44436, 444517 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00145 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93210 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

excess spoil, it must provide supporting achieved the ‘‘fully and permanently enhancement plan contains measures to calculations and other documentation of offset’’ requirement. fully and permanently offset any long- the design that it adopts to achieve In addition to the comments in term adverse impacts within the minimization. response to our invitation for comment footprint of the fill, refuse pile, or coal Final paragraph (e)(1)(x) requires that we received many other comments on mine waste impoundment on fish, a permittee proposing to engage in any this proposed paragraph. Another wildlife, and related values. We are not activity in, through, or adjacent to a commenter expressed concern that the prescribing the enhancement measures perennial or intermittent stream must requirement may create a duplicative that the permittee must select, although demonstrate that the proposed operation mitigation requirement if excess spoil we do list potential enhancement is designed, ‘‘to the extent possible fill or coal mine waste disposal facilities measures in § 780.16(d). One potential using the best technology currently are built in waters within the enhancement measure in final rule available’’, to minimize adverse impacts jurisdiction of the Clean Water Act. We § 780.16(d)(2)(v), proposed paragraph on fish, wildlife, and related disagree. We expect the SMCRA and the (d)(1)(v), is a vegetative corridor environmental values. We required this Clean Water Act regulatory authority to enhancement. In the preamble to the demonstration in proposed paragraph coordinate to ensure the selection of the proposed rule, we recommended that, if (d)(iii)(A). However, as proposed it was appropriate fish and wildlife that option is selected, the regulatory applicable only when a permittee enhancement plan, to achieve a solution authority should consider the creation proposed to construct an excess spoil that satisfies the requirements of both of a conservation easement to ensure fill or coal mine waste disposal facility. SMCRA and the Clean Water Act. The that the enhancement is fully and Although we intended this requirement same commenter expressed concern that permanently offsetting the impacts of to apply to all activities in, through, or the proposed paragraph included the the fill, refuse pile, or coal waste adjacent to perennial or intermittent term ‘‘related environmental values,’’ impoundment and that the newly streams, we did not articulate this which in the commenter’s opinion planted vegetation is not destroyed at requirement clearly in the proposed creates a duplicative mitigation bond release. We did not mandate the requirement. The language of SMCRA rule. Therefore, we have clarified the selection of vegetative corridor expressly requires that the regulatory final rule to accurately express our enhancement or the use of conservation authority consider ‘‘fish, wildlife, and intent. This clarification more easements. We merely suggested these related environmental values.’’ 498 accurately tracks the requirements of selections as options for enhancement 495 Another commenter questioned the measures. Other enhancement measures section 515(b)(24) of SMCRA, which statement in the preamble to proposed applies to any permit issued under any are permissible; thus, there is no rule section 816.71 that referred to backdoor requirement, and we have approved State or Federal program.496 proposed rule § 780.28, where we made no revisions to the final rule based Final paragraph (e)(1)(xi) requires a explained that we do not consider on this comment. permittee that proposes construction of surface runoff diversions constructed Final paragraph (e)(1)(xii) requires a an excess spoil fill, coal mine waste under § 816.71(e) to qualify as fish and permittee to demonstrate that each facility, or impounding structure that wildlife enhancement measures excess spoil fill, coal mine waste refuse encroaches upon any part of a stream to pursuant to the requirements of pile, and coal mine waste impounding demonstrate that the fish and wildlife § 780.16(d).499 By their very nature, structure it proposes to construct is enhancement plan required in final rule however, these diversions are designed in a manner that will not § 780.16 includes measures that will channelized surface water runoff result in formation of toxic mine fully and permanently offset any long- conveyances, and their design and drainage. This demonstration was term adverse impacts on fish, wildlife, construction do not include measures required in proposed paragraph and related environmental values intended to provide any form of habitat; (d)(2)(v); however, it was combined within the footprint of the fill, refuse therefore, they would not qualify as a with another demonstration which is pile or impoundment. We imposed this type of enhancement that would ‘‘fully now required by final paragraph requirement in paragraph (d)(2)(iv) of and permanently’’ offset the long-term (e)(1)(i). For clarity we have separated the proposed rule, but we invited adverse effects of placement of excess these demonstrations in the final rule. comment seeking suggestions for more spoil or coal mine waste facilities. We Final paragraph (e)(1)(xiii) requires specific standards or criteria for are therefore not changing the rule in that a permittee demonstrate determining the meaning of ‘‘fully and response to this comment. compliance with the revegetation plan permanently offset.’’ 497 Some Another commenter alleged that required under final rule § 780.12(g), commenters considered the term ‘‘fully proposed paragraph (d)(2)(iv), now which requires reforestation of each and permanently offset’’ to be vague, but paragraph (e)(1)(xi), inappropriately completed excess spoil fill if the land is offered no clarification or alternative. In introduces a backdoor requirement for forested at the time of the application or contrast, another commenter expressed the establishment of a riparian corridor if the land would revert to forest under its full endorsement of this phrase. even though the proposed regulatory the conditions of natural succession. Because we received no practicable text about the establishment of a This demonstration is intended to alternative for standards or criteria for riparian corridor does not apply to coal minimize the adverse impacts of the fill determining the meaning of ‘‘fully and mine waste disposal facilities and on watershed hydrology, especially the permanently offset,’’ we have adopted placement of excess spoil. The quantity and quality of surface runoff, the requirement as proposed with the commenter misinterprets the proposed and aquatic life in the stream. We exception of the redesignation. The rule. If an applicant proposes an excess proposed this demonstration at regulatory authority will have some spoil fill or a coal mine waste disposal paragraph (d)(vi), and are finalizing it, discretion to determine, on a case-by- facility in an intermittent or perennial with the exception of the redesignation, case basis, whether the permittee has steam, the regulatory authority is as proposed. obliged to ensure the fish and wildlife Under the provisions in final 495 30 U.S.C. 1265(b)(24). paragraph (e)(2), a permittee may 496 30 U.S.C. 1265(a). 498 Id. propose to convert a minimal portion of 497 80 FR 44436, 44518 (Jul. 27, 2015). 499 80 FR 44436, 44556 (Jul. 27, 2015). a segment of an intermittent stream

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00146 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93211

within the mined area to an ephemeral circumstances more fully described in discussed in the introduction to final stream. The regulatory authority may final rule § 780.28(e)(5). § 780.28, temporary impacts, such as approve the permittee’s proposal if the A commenter questioned why temporarily converting certain streams, permittee demonstrates and the converting an intermittent to an are permissible. This is consistent with regulatory authority finds that ephemeral stream may be permissible SMCRA, which allows disturbances to converting any portion of the but converting a stream in the opposite be minimized, not precluded.501 For intermittent stream will not degrade the manner, such as from an intermittent to this reason, we do allow permittees to hydrologic function, dynamic near- a perennial stream or an ephemeral to convert intermittent to ephemeral equilibrium, or the ecological function an intermittent stream was not restricted streams as long as the permittee satisfies of the stream as a whole within the in the proposed rule. The commenter is the requirements of final paragraph mined area. The regulatory authority correct in that we do not require a (e)(2). Similarly, another commenter must make this determination by permittee to demonstrate that the claimed that prohibiting conversions of comparing the proposed action to the conversion of a stream from ephemeral the upper limits of headwater streams to intermittent or intermittent to baseline stream assessment conducted would disproportionately affect perennial would not degrade the under § 780.19(c)(6). Appalachian watersheds where mining hydrologic function or the ecological in steep slopes is prevalent. The This is a revision to our proposed function. We have not restricted this commenter supported this claim by rule. In the proposed rule at paragraph type of conversion because the same noting that impacts to the location of the (b)(2)(ii), we required a permittee to processes that create streams that lose stream type transition point is likely to demonstrate that any mining activity in water as it flows downstream resulting be most prevalent in steep slope or through a perennial, intermittent, or in a conversion from intermittent to environments, like Appalachia, as well ephemeral stream, with the exception of ephemeral and perennial to intermittent as areas with thick overburden and low- constructing an excess spoil fill or coal does occur in the opposing direction. gradient streams. We agree that mine waste facility, would not ‘‘result in Streams may gain flow after reclamation conversion of intermittent streams to conversion of the stream segment from when increases in water volume ephemeral streams is most common in intermittent to ephemeral, from contribute to, rather than diminish, the areas like Appalachia where stream perennial to intermittent, or from flow. This additional contribution of baseflow is more complex because of perennial to ephemeral.’’ 500 We flow comes from infiltrated water the permeability of rock strata and the received many comments opposing the exiting the backfill. The gaining stream presence or absence of fractures in the proposed prohibition on stream now maintains flow throughout the year strata. Further, following mining the conversions. For example, one and develops physical features, backfill is no longer stratified and, commenter asserted that the prohibition including for example, an altered bed- although reconstructed intermittent on converting an intermittent stream to and-bank that result in a classification streams can be engineered to resemble an ephemeral stream may preclude of a stream as intermittent or perennial. premining characteristics, it is not mining in many areas. This regulatory Prior to mining, the same stream may realistic to expect that they can be authority commenter asserted that have been classified as an intermittent precisely reproduced. Therefore, to converting stream types, should be or ephemeral stream because of the lack prevent the disproportionate impact the based on compliance with water quality of certain physical features and the brief commenter describes, some conversion standards, designated uses, approved duration of flow. The reclassified stream must be allowed. Therefore, final land uses, or other permit requirements with greater flow has beneficial paragraph (e)(2) allows for differences in instead of, what it opines as an arbitrary characteristics, such as a potential geology and hydrology nationwide. requirement. We agree. In the final rule, increase in both the diversity and Another commenter questioned why a portion of an intermittent stream may abundance of aquatic species and the we would authorize converting a be converted to an ephemeral stream if potential to add more varied uses, perennial stream to an ephemeral a permittee can demonstrate and the especially recreational uses. stream, but not allow an intermittent regulatory finds that the permittee will Additionally, streams that gain flow can stream to be converted to an ephemeral not degrade the hydrologic or ecological result in improved habitat especially if stream. As explained in the discussion coupled with stream flow throughout of final paragraph (e)(1)(iii), permittees function of the stream as a whole within the seasons. Moreover, converting an may not convert a perennial stream to the mined area. The compliance factors intermittent stream to a perennial an ephemeral stream, but permittees enumerated by the regulatory authority stream or an ephemeral stream to an may, in specific circumstances, convert commenter should be included when intermittent stream promotes a more a minimal portion of a mined-through demonstrating to the regulatory productive and varied aquatic life as segment of an intermittent stream to an authority that no hydrologic or long as the sediment transport remains ephemeral stream. SMCRA allows ecological function will be degraded similar. Therefore, we do not restrict minimized disturbances to the quality and to satisfy the requirements of this type of conversion—from and quantity of surface water and section 800.42 related to bond release. intermittent to perennial or from groundwater both during and after Additionally, in certain circumstances, ephemeral to intermittent—beyond the surface coal mining.502 In the final rule a seep may create short segments of an criteria included in this section and we clarify that a permittee may effect intermittent stream in an otherwise §§ 780.12 and 780.19. these stream conversions only after ephemeral stream. This is an issue in Another commenter objected to the demonstrating that the hydrologic certain areas, such as North Dakota. proposed rule and argued that, as function and the ecological function of Therefore, we have created an exception described in the Draft Environmental the stream segment as a whole, within to final paragraph (e)(2)(i) for this Impact Statement, it would preclude the the permit, will not be degraded. To limited circumstance. The exception is conversion of any stream segment, and ensure the hydrologic function and enumerated at final rule paragraph this complete restriction will effectively ecological function will not be (e)(2)(ii), by specifically exempting the prohibit any mining that would directly impact the headwaters (or source) of an 501 30 CFR 1265(b)(10) and (b)(24). 500 80 FR 44436, 44610 (Jul. 27, 2015). intermittent or perennial stream. As 502 30 U.S.C. 1265(b)(10).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00147 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93212 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

degraded, the regulatory authority must the profile or dimensions of the stream condition, or ecological function of the examine and compare the baseline channel; and stream; and stream assessment data collected as • Degradation of the stream channel • It will result in establishment of a required by final rule § 780.19(c)(6). We has resulted in a substantial adverse streamside vegetative corridor in discuss this data fully in the preamble impact on the ecological function of the accordance with § 816.57(d) of this to final rule § 780.19(c)(6). We discuss stream. chapter. the requirements for restoring ecological Implementation of these provisions is Although not as comprehensive as the function in connection with final important because remining through final rule, proposed § 816.57(b)(4) paragraph (g), below. As explained in these types of streams often provide included a ‘‘special provision for final rule § 780.28(e)(2), allowing a environmental benefits including restoration of degraded stream permittee to convert a minimal segment improved water quality and restored segments.’’ In this section we proposed of specific stream types satisfies the streamside vegetative corridors.504 For to include a requirement that ‘‘if the requirements of sections 515(b)(10) and example, satisfying the criteria in final stream segment to be mined through or 515(b)(24) of SMCRA because paragraphs (e)(3) will accomplish the diverted is in a degraded condition disturbances to the prevailing mandate of section 515(b)(24) of before mining, you must implement hydrologic balance are minimized and SMCRA 505 by minimizing disturbances measures to enhance the form and the permittee is required to employ the to fish, wildlife, and other ecological function of the segment as best control technology currently environmental values while part of the restoration or diversion available to minimize disturbances to process.’’ As we explained in the simultaneously encouraging remining 506 fish, wildlife, and related environmental and the reclamation benefits that preamble to the proposed rule, we values.503 accompany mining. As explained in the intended the proposed provision to Another commenter stated that the chart in the final rule at paragraph (e)(1) ensure that stream segments degraded proposed rule, prohibiting stream and discussed above, final paragraphs by prior human activities are improved conversions was highly restrictive, may (e)(1)(v) and(vii) provide exceptions to to the fullest extent possible, not just restored to the condition that existed strand coal, and did not recognize the demonstrations required in before the current mining operation. In longitudinal variations in transition paragraph (e)(1) as long as the permittee the proposed rule we did not define points, such as when transition points demonstrates and the regulatory what qualifies as a degraded stream. move upstream or downstream authority finds that implementation of Although we have not defined depending on precipitation patterns. We the proposed mining and reclamation ‘‘degraded’’ as some commenters agree with the commenters that the plan will satisfy five criteria. In requested, we have added final proposed rule prohibited stream particular, final paragraph (e)(3) paragraph (e)(3)(ii) to clarify that the conversions and could restrict some provides exemptions from: The exemption allowed by final paragraph mining. We also recognize that surface requirement in final paragraph (e)(1)(v) (e)(3) is conditioned upon the stream mining activities will, in most cases, for a practicable alternative analysis and displaying two characteristics: Prior lower the water table and, thus, impact the requirement in final paragraph anthropogenic activity has resulted in the location of the stream type transition (e)(1)(vii) that the permittee minimize substantial degradation of the profile or points which are the point where an the extent of perennial or intermittent dimensions of the stream channel and ephemeral stream becomes intermittent stream mined through. However, final degradation of the stream channel has or an intermittent stream becomes paragraphs (e)(3)(i)(A)–(E) require a resulted in substantial adverse impact perennial. Furthermore, the inherent permittee proposing to mine through on the ecological function of the stream. nature of mining, particularly intermittent streams prescribed by final We address the comments to disruption of the water table, makes paragraph (e)(3)(i), to demonstrate that: proposed § 816.57(b)(4), about restoring • minimal stream conversions It will improve the form of the degraded stream segments here because unavoidable. We discuss points in stream segment; in final paragraph (e)(3), we have support of allowing permittees to • It will improve the hydrologic improved and modified proposed convert minimal portions of intermittent function or the dynamic near- § 816.57(b)(4), and placed the new streams above in connection with final equilibrium of the stream; requirements in final rule § 780.28 paragraph (e)(2). • Is likely to result in improvement of because they are permitting To incentivize operators to engage in the biological condition, dynamic near- requirements and not performance re-mining and the associated equilibrium or ecological function of the standards. One commenter suggested improvements that occur when mining stream; that permittees should restore streams to through streams exhibiting substantial • It will not further degrade the a higher quality than existed under degradation as a result of prior hydrologic function, biological premining conditions and that the anthropogenic activity and a degraded actual premining conditions stream channel that has resulted in 504 See James McElfish, Jr. & Ann Beier, documented during baseline substantial adverse impact on ecological Environmental Regulation of Coal Mining: SMCRA’s investigations should be a factor when function, we have added provisions in Second Decade 278 (1990); see also Pa. Dep’t of designing and approving plans for final paragraph (e)(3) for mining Envtl. Prot., Discussion Paper on Water Quality Issues Related to Coal Mining (1998). U.S. Env’t. stream restoration, but that this factor operations that seek to mine in, through, Prot. Agency, Office of Water, Doc. No. EPA–821– should not be dispositive. We agree and or near certain intermittent streams. B–00–002, Economic and Environmental Impact we have added language to the final rule This exemption is restricted to Assessment of Proposed Effluent Limitation at paragraphs (e)(3)(i)(C) and (D) to intermittent streams that satisfy the Guidelines and Standards for the Coal Mining Industry: Remining and Western Alkaline clarify that the permittee must consider following criteria, as prescribed by final Subcategories 8–1, (March 2000) (stating that ‘‘EPA both the biological condition or paragraph (e)(3)(ii): estimates that 38 percent to 44 percent of AML ecological function and hydrologic • Prior anthropogenic activity has [Abandoned Mine Lands] acres affected by function of the stream, as determined by remining would experience significant decreases in resulted in substantial degradation of AMD [abandoned mine drainage] pollutant the baseline data, when designing the levels.’’). 503 30 U.S.C. 1265(b)(10) and (b)(24). 505 30 CFR 1265(b)(24). 506 80 FR 44436, 44454 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00148 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93213

reconstructed stream, and that it should according to the commenter, the lignite use for greater than three years, and improve streams harmed by seam is often the aquifer that supplies stream channels reconstructed after the anthropogenic activities, rather than the groundwater for these low flowing completion of mining. These structures return it to a similar state. springs. Therefore, the commenter must be designed to restore, Another commenter opined that recommended that proposed approximate, or improve the premining anthropogenic activities have severely § 780.28(b)(2)(ii) be modified to allow characteristics of the original stream altered many pre-mining stream the conversion of an intermittent stream channel, to promote the recovery and channels and the resulting erosion to an ephemeral stream if the enhancement of aquatic habitat and the should not be reproduced in the conversion does not affect water uses or ecological and hydrologic function of reclamation process. We agree and have significant wildlife habitat. We have the stream, and to minimize adverse modified the final rule to prevent the incorporated this recommendation into alteration of stream channels on and off reproduction of degraded stream the final rule at paragraph (e)(5). This the site, including channel deepening or channels. Paragraphs (e)(3)(i)(B) through exception is designed to address the enlargement. In final paragraph (f)(1)(ii), (D) requires a demonstration and limited scenario described by the we have retained the requirements in finding by the regulatory authority that commenter in reference to North proposed paragraph (c)(2)(v)(A) that the the design will not further degrade the Dakota. To accommodate the scenario pertinent stream-channel characteristics hydrologic function, biological the commenter describes we prescribe include, but are not limited to, the condition, or ecological function of the in column 3 of final paragraphs baseline stream pattern, profile, stream segment. These requirements, (e)(1)(iv), (vii), and (viii) that the dimensions, substrate, habitat, and coupled with the other necessary permittee is not required to make the natural vegetation growing in the demonstrations, are likely to improve requisite demonstrations if the riparian zone and along the banks of the premining characteristics of the following alternative demonstrations streams. Commenters supported these original stream channel to promote the enumerated in final paragraphs (e)(5)(i) requirements because they make our recovery and enhancement of the through (iii) are satisfied: regulations more consistent with similar • aquatic habitat and the ecological and The intermittent stream segment is requirements imposed under section hydrologic functions of the stream. a minor interval in what is otherwise a 404 of the Clean Water Act and its In response to commenters, we have predominately ephemeral stream; • implementing regulations. In addition to added final paragraph (e)(4), which The permittee demonstrates to the re-designating this section, we have also prescribes that the demonstrations satisfaction of the regulatory authority made some modifications to the final required by final paragraph (e)(1) do not that the intermittent segment has no rule which we discuss below. apply to a stream segment that will be significant fish, wildlife, or related part of a permanent impoundment environmental values, as documented As proposed, this section applied to approved and constructed pursuant to by the stream assessment baseline data temporary stream-channel diversions the requirements of final rule § collected as required by final rule that were to remain in place for two or 816.49(b) that prescribes mandates for § 780.19(c)(6); and more years. Some commenters objected permanent impoundments. • The permittee demonstrates to the to the imposition of design criteria for We received comments from a satisfaction of the regulatory authority temporary stream-channel diversions, regulatory authority explaining that, in that conversion of the intermittent proclaiming it a wasteful and its experience, particularly in North stream will not adversely affect water nonsensical requirement. One of these Dakota, streams that are otherwise uses. commenters suggested that temporary ephemeral can have segments that are These three alternative diversions should require only considered intermittent due to low demonstrations include the requirement temporary designs, citing the flowing springs and seeps. The that the permittee demonstrate that the unpredictability of the need for commenter asserted that in the intermittent stream segment is a minor temporary diversions at the time of geographic area where it performs interval in what is otherwise a permitting. The same commenter also oversight it is common to find short predominately ephemeral stream. stated that the National Pollutant reaches of streams that are classified as Discharge Elimination System intermittent because of low flowing Final Paragraph (f): What design requirements will be in place to protect springs from shallow aquifers. requirements apply to the diversion, downstream waters and our rule would According to the commenter, these low restoration, and reconstruction of be problematic for establishment of long flowing springs often occur at the upper perennial and intermittent stream term drainage control in terms of reaches of an ephemeral stream in channels? planning and layout cost, extra native grasslands and the flows In addition to satisfying the construction time expense, and frequently cease within a few hundred requirements in paragraphs (a) through maintenance. The same commenter also feet or less from the water source. The (e), permittees proposing to divert, opined that additional land disturbance commenter explained that in its restore, or reconstruct perennial and will result in added and un-necessary experience the water is frequently saline intermittent stream channels must also negative environmental impact. These and usually has little or no value as fish satisfy the design requirements commenters suggested striking the and wildlife habitat. Furthermore, the prescribed in final paragraph (f). We requirement or modifying it in the final features do not have sufficient flow to proposed similar requirements in rule to reflect a longer term. While we serve as a livestock watering source by proposed paragraphs (c)(2)(v) and (vi) of agree that the length of time a temporary ranchers. According to the commenter, § 780.28, but we have re-designated and stream-channel diversion may be in proposed rule § 780.28(b)(2)(ii), modified these paragraphs in response place may not be known at the time of precluding conversions of stream to comments and for clarity. permitting, we know from over thirty segments, from which final paragraph Final paragraph (f)(1) is similar to years of experience that many of these (e)(1)(iv) is derived, would essentially proposed paragraph (c)(2)(v)(A). This diversions are in place for significantly prohibit mining in certain areas. The paragraph applies to permanent stream- long periods. Further, if the commenter specifically referred to channel diversions, temporary stream- commenters’ suggestion of striking the locations where lignite is mined because channel diversions that will remain in required design criteria were accepted,

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00149 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93214 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

‘‘temporary diversions’’ may be premining characteristics of the original that were in the proposed rule at constructed as little more than straight- stream channel in the final rule to more proposed paragraph (c)(2)(v)(C). The lined ditches that could potentially be accurately reflect the mandates of final paragraph requires that all in place for the life of a permit, which section 515(b)(24) of SMCRA 508 and the temporary and permanent stream- may exceed decades. This outcome does scientific literature that discusses the channel diversions be designed to not adequately implement the importance of hydrologic and ecological ensure that the combination of channel, requirements of SMCRA, ‘‘to minimize function.509 bank, and flood-plain configuration is disturbances to the prevailing For clarity, we have separated out the adequate to pass safely the peak runoff hydrologic balance at the mine-site and last paragraph of proposed paragraph of a 10-year, 6-hour precipitation event in associated offsite areas....’’507 (c)(2)(v)(A) and re-designated it as final for a temporary diversion and 100-year, Therefore, we are retaining the design paragraph (f)(1)(iii). This provision 6-hour precipitation event for a criteria. However, we did reanalyze the clarifies that permittees planting permanent diversion. two year requirement and changed the vegetation along the banks of temporary We invited comment on whether the final rule to apply to temporary stream- diversions in use for three or more years design event for a temporary diversion channel diversions that will remain in are not required to include species that should be raised to the 25-year, 6-hour use for three or more years. This is a would not reach maturity until after the event to provide added safety and reasonable time frame as many smaller diversion is removed. This will prevent protection against overtopping. In mines will be completed in less than unnecessary land disturbance and cost. response we received some comments three years. It would not be reasonable In the final rule, we have replaced the in support of raising the criteria, while to expect a temporary stream diversion term ‘‘in the riparian zone’’ with ‘‘along other commenters were opposed. The in place for less than three years to the banks of the diversion’’ to fully commenters supporting the increase reestablish the stream biology because encompass all streamside vegetation. cited the unpredictability of storm the diversion may not be in place for a Also, as discussed above, we have events. The comments opposed to a sufficient period to reestablish stream changed ‘‘in use for 2 or more years’’ larger precipitation event cited biology. However, a diversion of a with ‘‘in use for 3 or more years.’’ unnecessary increased costs to construct stream segment in place for more than We have retained proposed paragraph and maintain larger sediment structures. three years, and as long as several (c)(2)(v)(B), but re-designated it as final Another commenter suggested that we decades, is capable of developing paragraph (f)(2). This paragraph requires impose site-specific goals such as zero sufficient biology and should be the permittee to design all temporary flows or allowable increases in constructed to ‘‘restore, approximate, or and permanent stream channel downstream and upstream flood risks as improve the premining characteristics of diversions to ensure that the hydraulic implemented and determined by the the original stream channel. . . .’’ capacity is at least equal to the Federal Emergency Management Throughout the final rule we have hydraulic capacity of the unmodified Agency. We disagree with this comment removed the proposed term ‘‘restored’’ stream channel immediately upstream because adopting site-specific design and have replaced it with from the diversion and no greater than storm standards would, effectively, ‘‘reconstructed’’ in order to describe the hydraulic capacity of the result in no minimum national more accurately the reclamation that unmodified stream channel standards. Final paragraph (f)(3) must occur after mining in or through immediately downstream of the prescribes minimum standards and the intermittent or perennial streams. diversion. As we explained in the regulatory authority has discretion to Several commenters stated that preamble to the proposed rule,510 this impose more stringent site-specific ‘‘restored’’ was vague because no stream requirement will protect against the standards if it deems them appropriate. that is re-created using the criteria in scouring and other adverse impacts that This approach ensures flood risk is § 780.28 will have the exact could result from a sudden constriction appropriately addressed. To comply characteristics of a pristine stream. in channel capacity of the unmodified with the minimization requirements of Some of these commenters opined that stream channel downstream of the SMCRA we have the responsibility to using the term ‘‘restored’’ implied an diversion which may harm important address flood risk because any increase unachievable standard. We agree with habitat. This paragraph is consistent in flood risk caused by mining would the commenters and note that with the requirement in section constitute the potential for material reconstructed streams may deviate from 515(b)(24) of SMCRA to minimize damage to the hydrologic balance the premining characteristics as long as adverse impacts on fish, wildlife, and outside the permit area.512 Ultimately, the requirements of the final rule are related environmental values to the we decided to retain the 10-year, 6-hour satisfied. Additionally, we have added extent possible, using the best design criteria because it provides the phrase ‘‘or improve’’ to final technology currently available.511 sufficient protection. The 25-year, 6- paragraph (f)(1)(i), to emphasize the Final paragraph (f)(3) adopts the hour criteria provides minimal risk importance of, and to encourage, mining design criteria for all temporary and reduction at the price of significantly techniques that improve existing stream permanent stream-channel diversions additional cost and land disturbance. In channels. In the proposed rule we addition, we point out to the required the design to ‘‘promote the 508 30 U.S.C. 1265(b)(24). commenters that throughout the final recovery and enhancement of aquatic 509 See Lainie R. Levick et al., The Ecological and rule, we have adopted provisions, such habitat.’’ Promoting recovery and Hydrological Significance of Ephemeral and as final rule § 816.43, that afford greater enhancement of aquatic habitat is most Intermittent Streams in the Arid and Semi-arid protection for stream diversions by American Southwest. U.S. Envtl. Prot. Agency and successfully done by promoting U.S. Dep’t of Agriculture ARS Southwest Watershed imposing new design and performance recovery and enhancement of the Research Center, EPA/600/R–08/134, ARS/233046, criteria and sediment control measures ‘‘ecological and hydrologic functions of 116 p. http://www.epa.gov/esd/land-sci/pdf. that should capture any additional the stream.’’ Therefore, we have Margaret A. Palmer, Reforming watershed runoff within the permit area. Thus, restoration: Science in need of application and included the requirement to ‘‘restore, applications in need of science. Estuaries and although we are not adopting the approximate, or improve’’ the Coasts 32(1): 1–17 (2009). commenters’ specific suggestions, we 510 80 FR 44436, 44517 (Jul. 27, 2015). 507 30 U.S.C. 1265(b)(10). 511 30 U.S.C. 1265(b)(24). 512 30 U.S.C. 1265(b)(10).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00150 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93215

have afforded sufficient protection to temporary diversion and the 100-year, with minor exceptions, adopted the these diversions. 6-hour event for a permanent diversion. paragraph as proposed. Similar to other A commenter asserted that As discussed above, we are retaining paragraphs in this section we have considerations for floodplains are not both paragraphs in the final rule and we replaced the term ‘‘restored’’ to typically included in temporary have concluded that a permittee can and ‘‘reconstructed’’ because the latter term diversion design; therefore, this must satisfy both requirements. better describes the streams that are commenter questioned whether Together these requirements ensure that recreated after mining using the criteria proposed paragraph (c)(2)(v)(C), now disturbances and adverse impacts to prescribed in this section. final paragraph (f)(3), will no longer fish, wildlife, and related environmental One commenter objected to this require a permit applicant to ‘‘consider values are minimized.513 We portion of the proposed rule, alleging the size of the watershed reporting to acknowledge that reconciling these that stream restoration requires far more the ditch when designing a temporary requirements may create challenges; than just engineering and that the rule diversion.’’ The commenter did not however, these requirements are should be clarified to ensure that the explain the term ‘‘ditch.’’ As we explain necessary to more closely recreate requirement applies only to the in the preamble to final rule § 816.43, natural conditions as we have explained engineering aspect of stream channel there are several types of diversions, above. Although the permittee may restoration. The commenter also noted including diversion ditches, stream exercise discretion in designing these that the U.S. Army Corps of Engineers diversions, and conveyances or diversions, the requirements of final requires only permanent streams with channels within the disturbed area. paragraphs (f)(2) and (f)(3) must be watersheds over 640 acres to be certified Historically, ‘‘ditch’’ has been used by satisfied. One method that a permittee by a professional engineer. Finally, the industry and others—whether correctly may select to satisfy both requirements commenter considered this requirement or incorrectly—to describe each of these is to construct a lined channel designed to be excessive, costly, and useless types of diversions. This is further to accommodate discharge from a 10- because both the U.S. Army Corps of complicated by the fact that each of year or 100-year, 6-hour precipitation Engineers and the regulatory authority these classifications of diversions may event for a temporary or permanent constantly inspect the reclamation of be subdivided as temporary or stream diversion then fill the channel these streams. permanent. Because this comment was with substrate material comparable to In response, we note that this in direct response to proposed that of the premining stream channel. requirement does not apply to all paragraph (c)(2)(v)(C), we interpreted This material should be selected streams within a permitted area; it the commenter to be referring to consistent with the baseline stream applies only to stream segments temporary stream diversions as assessment required in final reconstructed after being impacted by classified by final rule § 816.43(a)(2)(i). § 780.19(c)(6)(ii)A. After this is mining activities. Also, because of the The commenter’s assertion that complete, a stream channel similar to permanency of these reconstructed floodplain is not considered in the premining stream channel can be streams, it is important to ensure that temporary diversion design is incorrect. constructed in the substrate. The the reconstructed stream matches the We note that, with the exception of the reconstructed stream channel and flood- design plan. This determination is most re-designation, the final rule pertaining prone area will convey in-channel and appropriately made by a qualified, to capacity of diversion ditches is overbank flows that occur during typical registered, professional engineer. identical to that in the existing rules at precipitation events. If a larger storm Moreover, the last sentence of final § 816.43(b)(3). Our final rule specifies event occurs, it is likely that the stream paragraph (f)(4) expressly limits the that the permittee include precipitation and flood-prone area substrate will be certification to the location, dimensions, event design criteria for temporary eroded; however, the lining of the larger and physical attributes of the stream. As stream diversions. This includes the channel that was constructed first will we explained in the preamble to the watershed area tributary that ‘‘reports’’ prevent erosion of the underlying spoil. proposed rule,514 the engineering to the diverted stream. Therefore, This is consistent with how natural certification does not include permittees must continue to consider streams function. During storm events, assessment of ecological function the size of the watershed ‘‘reporting’’ to the substrate in natural streams is because that is beyond the professional the ‘‘ditch.’’ If the commenter was typically eroded until bedrock is competency of an engineer. referring to temporary diversion ditches encountered. In our scenario, the Final Paragraph (g): What requirements that are channels constructed to convey channel that was constructed first apply to establishment of standards for surface water runoff or other flows from operates similar to the bedrock in a restoration of the ecological function of areas not disturbed by mining activities natural stream. a stream? away from or around disturbed areas, Final paragraph (f)(4) requires a please refer to § 816.43 of the final rule. permittee to submit a certification from Final paragraph (g) replaces proposed Another commenter asserted that it is a qualified, registered, professional paragraph (e) which prescribed the almost impossible for a stream channel engineer that the designs for all diverted standards the permittee must satisfy to diversion to meet the requirements of and reconstructed stream-channels restore the ecological function of a both proposed paragraphs (c)(2)(v)(B), occurring after the completion of mining stream and provided general guidance now final paragraph (f)(2), which satisfy the design criteria of this section for regulatory authorities to establish requires that the hydraulic capacity be and any additional design criteria standards for determining when the no greater than the capacity of the established by the regulatory authority. permittee had ‘‘restored’’ the ecological unmodified stream channel downstream This certification may be limited to the function of a restored or permanently- of the diversion and no less than the location, dimensions, and physical diverted perennial or intermittent capacity of the unmodified stream characteristics of the stream channel. stream. In the final rule, we have channel upstream of the diversion, and This requirement was proposed at clarified that the permittee must proposed paragraph (c)(2)(v)(C), now paragraph (c)(2)(iv). We have ‘‘reconstruct’’ streams that it mines, not final paragraph (f)(3), which requires redesignated the final paragraph and, ‘‘restore’’ or ‘‘permanently divert them;’’ that the design be able to pass the 10- year, 6-hour precipitation event for a 513 30 U.S.C. 1265(b)(24). 514 80 FR 44436, 44516 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00151 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93216 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

have moved to paragraph (g) the criteria must occur after mining in or through their jurisdiction. If, at some point, we that the regulatory authorities must use intermittent or perennial streams. determine that a regulatory authority is to establish the standards for restoring One commenter objected to the not satisfying the minimum ecological function; have clarified that requirement that the regulatory requirements as identified in the requirement to restore ecological authority establish standards for § 780.28(g), we may exercise our function applies only to perennial and determining when ecological function oversight responsibilities as outlined in intermittent streams; and have has been restored because the 30 CFR part 842. prescribed the specific criteria the commenter opined that permittees can We agree with the comments that we regulatory authority must use when it never restore identical ecological should have been more specific about establishes standards for restoring the function. In response, we acknowledge the criteria for establishing standards for ecological function of perennial and that there has been no consistent assessing whether the permittee has intermittent streams. Specifically, the documentation that streams can be restored the ecological function of a permittee must employ the best restored to their identical ecological reconstructed stream. To remedy this, in technology currently available when it function. Neither the proposed rule nor paragraphs (g)(2), (3), and (4) of the final restores the biological component of the final rule, however, requires that the rule, we clearly prescribed the streams. Because the best technology restored ecological function of a stream minimum requirements the regulatory currently available varies based upon be identical to what it was before authority must satisfy when it the type of stream that is restored, we mining. Instead, § 780.28(g)(3)(ii)(A) of establishes standards. The inclusion of differentiated between the standards to the final rule explicitly provides that the these minimum requirements should be used for perennial and intermittent reconstructed streams or stream-channel also address the commenters’ concern streams. We made these revisions in diversions need not have precisely the that the task of developing standards for response to comments from the public same biological condition or biota as the determining when the ecological and other federal agencies. We discuss stream segment had before mining. function is restored was too complex of the modifications we made to the final Several commenters contended that a task for regulatory authorities. We rule in more detail below. the permit requirements in proposed have also moved proposed paragraphs § 780.28(e)(1) were too subjective and In final paragraph (g)(1), we retained § 816.57(b)(2)(ii)(B), (C), and (D), into vague. Similarly, some commenters the requirement that the regulatory final § 780.28(g) because these were also concerned that the standards authority establish criteria for provisions are more appropriately for restoring ecological function are too determining when the permittee has categorized as permitting requirements, difficult to determine without further restored the ecological function of a not performance standards. guidance and that developing standards Final paragraph (g)(2) replaces and perennial or intermittent stream after will be a task too complex for regulatory enhances the requirement in proposed mining through the stream. However, in authorities. Many commenters opined § 780.28(e)(1)(ii) that the regulatory response to a federal agency comment, that the general reference to proposed authority must coordinate with ‘‘the we removed the adjective ‘‘objective’’ § 816.57(b)(2), which provided the Clean Water Act permitting authority to because the requirements in final requirements for restoration of ‘‘form’’ ensure compliance with all Clean Water paragraphs (g)(2) through (4) provide and ‘‘function’’ of streams, was too Act requirements.’’ We have modified adequate guidance for establishing these vague and objected stating that the rule this requirement to encompass standards. did not prescribe specific standards for coordination with all ‘‘appropriate We made additional revisions to this the restoration of ecological function. To agencies responsible for administering requirement. First, we clarified that the clarify, we are not establishing the Clean Water Act, 33 U.S.C. 1251 et requirement to restore ecological standards for restoration of ecological seq.’’ This clarification ensures that the function applies only to perennial and function. The regulatory authority must regulatory authority must consult with intermittent streams. Although final follow the minimum requirements we any federal or state Clean Water Act § 780.28 specifically refers to these two prescribe in final paragraph (g) to regulatory authority including agencies stream types and not ephemeral establish standards for determining responsible for permitting and streams, several commenters opined when the permittee has restored enforcement actions. We have made this that the proposed rule was unclear ecological function. We are granting this change in response to comments about what requirements applied to discretion to the regulatory authority received by other federal agencies and each stream type. Therefore, final because of the unique characteristics of state regulatory authorities. paragraph (g)(1) specifically refers to mining operations and biological In final paragraph (g)(3), we provide perennial and intermittent streams to systems across the nation and due to the that the biological component standards clarify that any applicant proposing to specialized expertise of the regulatory for restoration of the ecological function mine through a perennial or intermittent authority in relationship to specific of perennial and intermittent streams stream must incorporate the standards geographic areas. However, the must employ the best technology imposed by the regulatory authority and regulatory authority must satisfy the currently available. This is consistent explain how it will satisfy the criteria set forth in § 780.28 for with section 515(b)(24) of SMCRA,515 standards. We reiterate that final establishing appropriate standards. which requires utilization of the best § 780.27 provides the requirements Another commenter requested that we technology currently available to applicable to ephemeral streams. revise the regulations to penalize minimize disturbances and adverse Second, consistent with other regulatory authorities that fail to impacts upon fish, wildlife, and related paragraphs of the final rule, we removed establish standards, in accordance with environmental values. In the final rule the proposed terms ‘‘restored’’ and our requirements, for determining when we prescribe two separate standards for ‘‘permanently diverted.’’ Several the permittee has restored the ecological assessing the restoration of ecological commenters asserted that those terms function of a stream. This is not function. The first standard, articulated are vague. We agree and we have necessary. As we discussed, the final in paragraphs (g)(3)(ii) and (iii), applies replaced those terms with rule appropriately provides regulatory to perennial streams and to those ‘‘reconstructed’’ in order to describe authorities with the flexibility and more accurately the reclamation that discretion to establish standards for 515 30 U.S.C. 1265(b)(24).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00152 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93217

intermittent streams for which a quantitative manner. We acknowledge family level. The assertion that genus scientifically defensible index of biotic that some Clean Water Act authorities level identification is too stringent or integrity and the use of bioassessment use a qualitative or narrative approach arbitrary is unfounded because many protocols have been established. For in their multimetric bioassessment states require identification to the genus these streams we specify that the best protocols. While these approaches may level.518 For example, the state of West technology currently available is the be acceptable, physical habitat Virginia has developed and is in the biological condition of the stream as measurements alone are generally process of adopting, a genus level index. determined by an index of biotic inadequate to determine if the permittee Similarly, many projects in Virginia integrity and the use of bioassessment has restored ecological function because require use of the Eastern Kentucky protocols consistent with final rule water quality and biological measures Stream Assessment Protocol, which § 780.19(c)(6). The second standard, are also important.517 One other uses genus level taxonomy. We have, articulated in paragraph (g)(3)(iv)(A), commenter encouraged us to require however, modified the aspects of the applies to all other intermittent streams. functional assessment protocols to test proposed rule that required genus level For these streams, we specify that the for specific attributes of stream function identification. Final § 780.19(c)(6)(vii) best technology currently available including: Timing and amount of leaf requires permittees to measure aquatic consists of the establishment of litter and wood inputs, dissolved organisms identified to the genus level standards that rely upon restoration of organic carbon, dissolved oxygen, where possible, otherwise to the lowest the ‘‘form,’’ ‘‘hydrologic function,’’ and nitrogen and phosphorus levels, gross practical taxonomic level. This water quality of the stream and the primary production, and nutrient modification allows for situations where reestablishment of streamside vegetation uptake and storage. We have the permittee cannot measure the genus as a surrogate for the biological determined, however, that this level of level taxonomy without harming the condition of the stream. We developed specificity is not necessary because the population. We have incorporated these these two standards after reviewing protocol we set out in final protocols by reference in final pertinent scientific literature and § 780.19(c)(6)(vi) through (viii), and § 780.28(g)(3)(ii). Therefore, when the considering the comments we received discussed in the preamble to § 780.19(c), state regulatory authority establishes the on this topic, including comments from should adequately capture the biological criteria for best technology currently other federal agencies, as we discuss condition of streams. For additional available for perennial streams and below. discussion of this topic, please see some intermittent streams, the protocols In the preamble to paragraph general comment N in Part IV. outlined in final rule § 780.19(c)(6), (b)(2)(ii)(C) of proposed § 816.57,516 we Other commenters objected to the must be used, including identification invited comment on the effectiveness of requirement in proposed to the genus level, where possible, using index scores from bioassessment § 816.57(b)(2)(ii)(C), which has been otherwise to the lowest practical protocols to ascertain impacts on moved to final § 780.28(g)(3). This taxonomic level. existing, reasonably foreseeable, or provision required that the permittee In response to our invitation for designated uses. We also invited assess the biological condition of a comment on the effectiveness of using commenters to suggest other approaches reconstructed stream by using a protocol index scores from bioassessment that may be equally or more effective. that meets the requirements of proposed protocols to ascertain impacts on We are discussing the response to these § 780.19(e)(2). Proposed § 780.19(e)(2)(i) existing, reasonably foreseeable, or comments here because, as we required that, for perennial and designated uses, another commenter discussed above, in the final rule we intermittent streams, the permittee opined that using bioassessment have moved those provisions to identify benthic macroinvertebrates to protocols would not effectively measure § 780.28(g)(3). Final rule the genus level. The commenters impact on designated uses for streams in §§ 780.28(g)(3)(ii) and (iii) now contain specifically objected to this western states. This commenter, the provisions that govern the use of requirement, alleging that this level of protocols for perennial streams and identification is significantly more 518 The following are examples from coal mining certain intermittent streams and final expensive and more stringent, that it is regions across the nation. This list is not rule § 780.28(g)(3)(iv) now contains the arbitrary, and that it has no apparent exhaustive: Gregory J. Pond, et al., The Kentucky macroinvertebrate bioassessment index, Kentucky provision that governs the standards benefit. Another commenter added that Dep’t for Env’t. Protection, Division of Water, Water that apply to all other intermittent the bioassessment method is resource Quality Branch, Frankfort (2003). streams. In response to our invitation, intensive and that potentially affected Deborah Arnwine, Quality system standard some commenters asserted that the streams are small and highly variable in operating procedure for macroinvertebrate stream surveys, Division of Water Pollution Control, Dep’t Clean Water Act methodology for water nature, making the development of of Env’t. and Conservation, State of Tennessee quality standards and physical habitat credible index values challenging, if not (2011). scoring are more dependable measures impossible. We disagree. As the Eric G. Hargett, The Wyoming Stream Integrity than index scores derived from commenters noted in response to Index (WSII)–Multimetric indices for assessment of bioassessment protocols. These proposed § 816.57(b)(2)(ii)(C), now wadeable streams and large rivers in Wyoming.’’ Wyoming Dep’t of Environmental Quality, Water commenters asserted that the Clean 780.28(g)(3), genus-level identification Quality Division, Cheyenne, Wyoming. Document: Water Act methodologies are superior to is often more costly than family-level 11–0787 (Aug. 2011). index scores from bioassessment identification. However, scientific Water Quality Assessment Branch Mississippi protocols because they are capable of literature supports genus level Dep’t of Envtl. Quality, Development and replication and are not subject to as identification because it provides a Application of the Mississippi Benthic Index of Stream Quality (M–BISQ). (June 2003). many variables in the environment and more accurate indication of the Texas Commission on Environmental Policy, sample methodology. Other commenters biological condition of a stream than Surface Water Quality Monitoring Procedures, recommended that if we decided to use Volume 2: Methods for Collecting and Analyzing index scores from bioassessment 517 U.S. Envtl. Prot. Agency. Rapid Bioassessment Biological Assemblage and Habitat Data (June 2007) protocols we should require them to be Protocols. Watershed Academy Web. https:// Aquatic Life Use Attainment Methodology to cfpub.epa.gov/watertrain/ Determine Use Attainment for Rivers and Streams, used in a qualitative rather than a moduleFrame.cfm?module_id=25&parent_object_ Policy Statement 10–1. 2010. Colorado Dep’t of id=1019&object_id=1019 (last accessed Nov. 10, Public Health and Environment Water Quality 516 80 FR 44436, 44553 (Jul. 27, 2015). 2016). Control Commission.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00153 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93218 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

however, did not provide specific compensatory mitigation.522 The we are also requiring that the rationale for this assertion. Despite what regulations at § 780.28(g)(3)(i) through bioassessment protocol prohibit the commenter claims, regulatory (iv) implement the recommendations substantial replacement of pollution- authorities, including those in western made by scientists and other stream sensitive species with pollution-tolerant states, routinely use multimetric experts about the best way to minimize species. This provision in final bioassessment protocols for many the loss of stream functions. paragraph (g)(3)(ii)(B) ensures that a full purposes, including using them to At the same time, we recognize that complement of native species is restored develop total maximum daily load some states may not have an established in the reconstructed stream and that the development, to measure national scientifically defensible protocol for stream is not simply dominated by pollutant discharge elimination system intermittent streams. Therefore, in pollution-tolerant species. permit compliance, and to do a Use paragraph (g)(3)(iv)(A) we provide that One commenter opined that to Attainability Analyses, which states in states without currently established determine if ecological function has employ in order to determine whether a scientifically defensible bioassessment been restored and to assess biological designated use for a waterbody is not protocols for intermittent streams, the condition regulatory authority staff must feasible. We acknowledge that a major permittee must rely upon the restoration possess more knowledge, skills, and challenge for conducting bioassessments of the form, hydrologic function, water abilities related to biological evaluation in environmentally diverse regions is quality, and reestablishment of than required under the previous ensuring that an index provides streamside vegetation as surrogates for regulations and that this will create an consistent meaning in different the biological condition of the stream. unnecessary burden. We agree that environmental settings. Further, we However, we do not mean this approach expertise in biology may be required for recognize that those who develop to be a permanent solution because regulatory staff to properly review bioassessment indices should carefully states are developing additional permit applications that propose to evaluate index performance across bioassessment protocols for intermittent conduct activities in, through, or different environmental gradients where streams. Consequently, in final rule adjacent to streams, but we disagree that an index value is applied.519 For this § 780.28(g)(3)(iv)(B), we require the the requirement is unnecessary. reason, and as we stated in the proposed regulatory authority at five year Restoring ecological function will result rule, ‘‘we anticipate that the SMCRA intervals to reevaluate the best in significant long-term benefits to regulatory authority, with assistance technology currently available for stream health. Additionally, in from the appropriate Clean Water Act intermittent streams. We expect the relationship to bioassessment protocols agencies, will define the range of index regulatory authorities to consider specifically, the regulatory authority is values required to support each existing advancements in bioassessment in the best position to assess protocols and designated use of the stream protocols and to adjust their permitting because it has the most relevant segment in question.’’ 520 processes to implement the best information and experience related to After considering all of the technology currently available. the specific geographic region and can commenters’ suggestions, we are Final § 780.28(g)(3)(ii)(C) ensures that tailor the protocols to meet local retaining the requirement that SMCRA populations of organisms used to assess environmental constraints. Therefore, regulatory authorities use existing biological condition are capable of we are retaining this requirement. For scientifically defensible multimetric maintaining themselves by independent further evaluation of the impacts upon bioassessment protocols to assess the effort and prevents the usage of stocked regulatory authority staff, please review ecological function when such protocols or introduced populations. We proposed the RIA. Other commenters are available. This requirement is now a similar requirement in recommended that we require a set out in two places: Final rule § 816.57(b)(2)(ii)(D); however, one qualified biologist or ecologist to § 780.28(g)(3), the analog to proposed commenter asserted that this provision formally attest to the sufficiency of any rule § 816.57(b)(2)(ii)(C); and final rule did not provide sufficient detail plan submitted in the permit §§ 780.19(c)(6)(vi) through (viii), the explaining how an operator will application to restore the biological analog to proposed rule § 780.19(e)(2). determine whether a population is self- function of impacted streams and all These protocols are the best technology sustaining. In response, we note that the determinations regarding restoration of currently available to measure the regulatory authority will have discretion stream ecological function. We have not biological condition of perennial and to determine the sufficiency of the adopted this recommended change. intermittent streams. The approach we population reproduction. Natural Instead, we have retained, with slight take in the final rule is consistent with reproduction is an indicator of a self- modification from what was proposed, a section 515(b)(24) of SMCRA,521 which sustaining population. As discussed in process that will ensure that reviewers requires the impacts to fish, wildlife, the preamble to the proposed rule, use the standards as prescribed by final and related environmental values be organisms that happen to drift into the paragraphs (g)(2) through (4) to minimized using the best technology reconstructed channel from other areas determine when the operator has currently available. Additionally, will not accurately reflect that the restored the ecological function of the studies show that the best technology permittee has restored ecological reconstructed stream, and that requires currently available includes ‘‘incentives function.523 the applicant to incorporate those for avoidance and minimization’’ of Based upon scientific literature we standards and explain how it will 524 disturbance to streams because that is reviewed at commenters’ suggestions, satisfy the requirements. As prescribed less likely to result in loss of stream by final paragraph (g)(2) of § 780.28, this 522 functions and services than Colleen E. Bronner, et al., 2013. An process includes coordination with Assessment of U.S. Stream Compensatory Clean Water Act regulatory authorities. Mitigation Policy: Necessary Changes to Protect 519 See Raphael D. Mazor et al., Bioassessment in Ecosystem Functions and Services. 49(2) Journal of These authorities, along with the complex environments: Designing an index for the American Water Resources Association SMCRA regulatory authority, and, as consistent meaning in different settings, Freshwater (JAWRA) 449–462 (April 2013). Science. 2016. Published online Oct. 22, 2015. 523 80 FR 44436, 44553–44554 (Jul. 27, 2015). intensively mined Appalachian watershed, 29(4) 520 80 FR 44436, 44475 (Jul. 27, 2015). 524 J. Todd Petty, et al. Landscape indicators and Journal of the North American Benthological 521 30 U.S.C. 1265(b)(24). thresholds of stream ecological impairment in an Society, 1292–1309 (2010).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00154 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93219

necessary, the U.S. Fish and Wildlife proposed for listing as threatened or a permittee’s application proposing to Service when performing its endangered under the Endangered conduct surface mining activities in or consultation duties under section 7 of Species Act,526 and § 773.15(j)(2), which within 100 feet of a perennial or the Endangered Species Act, have requires documentation that the intermittent stream may not be sufficient expertise to make the required proposed operation would have no approved unless the regulatory determinations. effect on species listed or proposed for authority makes a specific, written Although operators are not required to listing as threatened or endangered finding that the permittee has fully reconstruct streams that have the under the Endangered Species Act.527 satisfied all of the applicable precise biological condition as their Similarly, one commenter asserted requirements of final paragraphs (c) premining counterparts, we prescribed that proposed § 816.57(b)(2)(ii), now through (f) of this section. Additionally, in proposed rule § 816.57(b)(2)(ii)(B) incorporated in final rule § 780.28(g)(4), for the permit to be valid the regulatory that the reconstructed stream must be did not protect newly listed, threatened authority must include a detailed adequate to support both the uses that or endangered species that are not rationale for the finding. We did not existed before mining and must not designated or otherwise protected under receive any comments on this paragraph preclude the attainment of the the Endangered Species Act at the time and we are accepting it as proposed. designated uses that existed before the Clean Water Act designated use is mining pursuant to sections 101(a) of developed. This commenter urged us to Final Paragraph (i): Programmatic 303(c) of the Clean Water Act.525 We require that streams be restored to Alternative have retained this requirement, with the protect both designated use and any We have added final paragraph (i) to exception of removing reference to additional uses needed to support clarify that paragraphs (c) through (h) of section 101(a) of the Clean Water Act, newly listed species. We did not make this section will not apply if a and moved it to final § 780.28(g)(4). any changes to the final rule as a result regulatory authority amends its program Some commenters expressed support for of this comment because it is adequately to expressly prohibit all surface mining allowing some variation in the species addressed in final rule § 816.97(b)(1)(ii) activities, including the construction of composition and the array of insects, through (iii), which require the operator stream-channel diversions, that would fish, and other aquatic organisms found to promptly report the presence of any result in more than a de minimis in a reconstructed stream or stream- federally-listed species located within disturbance of land in or within 100 feet channel diversion as long as the change the permit or adjacent area to the of a perennial or intermittent stream. in species composition does not regulatory authority. This requirement We have added this alternative in preclude any use that existed prior to applies even if the species was not response to comments advocating a mining, nor attainment of any listed before permit issuance. The complete ban on activities within 100 designated use before mining. However, regulatory authority must coordinate feet of any stream because the other commenters indicated that these with the U.S. Fish and Wildlife Service commenters viewed a ban as the most requirements are duplicative of the to determine whether and under what protective course of action. Although we Clean Water Act and should be conditions the operation may proceed are not adopting a complete ban as part eliminated. We disagree because, as and to revise the permit as necessary. of the final rule, we have concluded that discussed in Part IV. I., above, the We added final paragraph (g)(4)(ii) in the regulatory authority should retain requirements of the final rule do not response to a federal agency comment the discretion to enact more stringent supersede or duplicate the Clean Water and a similar comment from another measures. Thus, we are clarifying that Act; instead, these requirements commenter that alleged that prohibiting the regulatory authority has the option complement the Clean Water Act and activity from completely ‘‘precluding’’ a to enact such a prohibition. will increase coordination between the water use is ‘‘an inordinately lax Section 780.29: What information must SMCRA regulatory authority and the standard that would allow severe I include in the surface-water runoff Clean Water Act authority. impairment of a stream.’’ One of these control plan? Other commenters suggested that we commenters also suggested that we revise proposed § 816.57(b)(2)(ii)(B), replace ‘‘preclude’’ with ‘‘cause or As discussed in the preamble to the which has been moved to final rule contribute to the impairment of.’’ In lieu proposed rule, section 780.29 identifies § 780.28(g)(4), to make clear that all of accepting the recommendation to the required information for surface restored streams and receiving streams replace ‘‘preclude’’ we have retained water runoff control plans.528 After outside the permit area must have that terminology in final paragraph evaluating the comments that we biological assemblages that support (g)(4)(i) and we have added final received, we have made several changes threatened and endangered species in paragraph (g)(4)(ii). This paragraph to the final rule. the area. We decline to make this clarifies that the standards for restoring Final paragraph (a)(1) requires an change here for several reasons. First, ecological function must not prevent a explanation of how you will handle this comment is more applicable to final stream segment from satisfying the anti- surface-water runoff in a manner that § 780.28(g)(3), which sets out the degradation requirements of the Clean will prevent flows from the proposed requirements for establishing, where Water Act as adopted by state or tribes permit area, both during and after applicable, appropriate biological or as established by a federal mining and reclamation, from exceeding conditions. Second, this revision would rulemaking under the Clean Water Act. the premining peak flow from the same be duplicative because we have area for the same-size precipitation included specific requirements Final Paragraph (h): What finding must event. In most cases, this will require protecting threatened and endangered the regulatory authority make before monitoring peak surface water flows in species throughout the final rule approving a permit application under existing natural drainage channels at or including, among others, § 773.15(j)(1), this section? near the permit boundary. which requires documentation that the Final paragraph (h), previously One commenter alleged that offsite proposed permit area and adjacent area proposed paragraph (e)(2), specifies that flooding as a result of uncontrolled do not contain species listed or surface water runoff is probably limited 526 16 U.S.C. 1531 et seq. 525 33 U.S.C. 1313(c). 527 16 U.S.C. 1531 et seq. 528 80 FR 44436, 44519 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00155 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93220 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

to areas where during mining and described by the frequency of precipitation events of any specific postmining topography are significantly occurrence and duration; for example, ‘‘size’’ are unlikely to reoccur on altered from the premining conditions, the 10-year, 24-hour event. The duration multiple occasions at a site. However, for example, in steep slope areas of must be selected based on the time of over the baseline monitoring period, Appalachia. The commenter opined that concentration of the drainage being multiple precipitation events and the requirements should be limited, evaluated. A site specific storm duration associated peak flows should be either through geographic or slope based is required because shorter duration observed. From these, the premining restrictions, to areas where they would storms typically have greater relationship between precipitation and be applicable. We disagree. Regardless precipitation intensities, and use of the peak flows can be determined. This of the premining topography of a mine appropriate duration in the analysis will hydrologic response relationship can be site, surface water runoff characteristics result in the maximum flow for a given plotted as a curve, and used to estimate are significantly altered during mining; frequency of occurrence event. peak flows for precipitation events that hence, a surface water runoff control One commenter stated that differ from those measured during the plan is necessary to ensure that surface development of a surface water runoff baseline monitoring period. water flows from the site during mining control plan to evaluate peak flows Consequently, § 780.19(c)(3)(i)(A) do not exceed premining peak flows. cannot be done using National Pollutant requires baseline measurement of peak Unless specifically exempted, such as in Discharge Elimination System points or flow magnitude and frequency and special categories of mining, the the monitoring points required in § 780.19(c)(5) requires measurement of permittee is required to restore the mine § 780.19, regarding baseline information precipitation events using on-site, self- site to approximate original contour. on hydrology, geology, and aquatic recording devices or, at the discretion of Therefore, the postmining topography biology. We agree that those monitoring the regulatory authority, a single device should not be significantly different points are intended to facilitate located to provide baseline data for from the premining conditions. assessment of water quality and all of multiple permits located close to each However, it will still be necessary to these points may not be the best other. Results of these measurements verify that postmining surface water locations for assessing peak discharge can be used in the design of the surface runoff does not exceed premining flows. from the permit area. Also, the National water runoff control system. This will protect both downstream Pollutant Discharge Elimination System One commenter alleged that discharge populations and shield industry from monitoring points within the permit estimates are based on empirical models liability because flows from the mine area are not required for surface water and methodology that require the site will be documented. runoff analysis. However, it is necessary engineer to fit the appropriate for the operator to measure peak surface methodology to the study area being Some commenters expressed concern water flows at or near the permit evaluated. We agree. Premining about the proposed use of the Natural boundaries. Often peak surface water precipitation and peak flow information Resource Conservation Service’s flow monitoring points coincide with obtained as described above can be used synthetic storm distribution method for the location of National Pollutant in these models to establish the estimating peak storm flows as required Discharge Elimination System hydrologic response characteristics of in the proposed rule. These commenters monitoring points. Therefore, in each drainage area being considered. were particularly concerned about our response to the commenter, we point The data collected will allow the allowing only one method to estimate out that select National Pollutant engineer to verify that model output peak storm flows when other methods Discharge Elimination System approximates the observed relationship may be acceptable. In response to this monitoring points may be useful in between precipitation and peak flows. comment, we have modified the final analyzing surface water runoff. During mining and reclamation, the rule at paragraph (a)(1) to include the Paragraph (b) requires a monitoring- measured precipitation for each phrase ‘‘or another scientifically- point density that adequately represents drainage area can be input to the model, defensible method approved by the the drainage pattern across the entire and the output observed. The only regulatory authority that takes into proposed permit area, with a minimum requirement is that the measured peak account the time of concentration to of one monitoring point per watershed flows from the permit area do not estimate peak flow discharges.’’ We discharge point. In the context of a exceed the estimated premining peak recognize that other equally viable surface water runoff control plan, a flow for the same event. methods for estimating storm peak flows watershed discharge point refers to a Proposed and final paragraph (b) set exist and this change in the final rule point of discharge from the permit area. out the various requirements for a provides the regulatory authority the The associated watershed is the surface-water-runoff monitoring and discretion to allow other valid methods. drainage area that contributes to that inspection program including the However, although we are not point. Potentially, and to the requirement that the program ‘‘provide prescribing a specific method for commenter’s point, the watershed sufficient precipitation and stormwater characterizing surface water runoff from discharge point may also coincide with discharge data for the proposed permit a mine site, you must use a scientifically a National Pollutant Discharge area to evaluate the effectiveness of the defensible, repeatable method Elimination System monitoring point. surface-water runoff control practices acceptable to the regulatory authority The essential factor is that the drainage under paragraph (a).’’ A commenter that adequately characterizes pattern across the entire proposed asserted that it was impossible to precipitation-related surface water permit area is adequately represented. imagine that premining and postmining runoff. It is imperative that storm One commenter noted that peak flows peak flows from same-sized duration for each drainage be based on at any given moment during the precipitation events would be the same. its time of concentration. Time of operation may be different than the The commenter alleged that it is not the concentration is defined as the time flows reflected during baseline sample size of the discharge, but whether needed for water to flow from the most collection, as mandated by section damage could occur as a result of the remote point in a watershed to the 780.19. Therefore, according to the discharge that should be considered. We watershed discharge point. A commenter, this could result in false agree in part. It is virtually certain that, precipitation event is typically designs and expectations. We agree that if not controlled, surface water flows

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00156 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93221

from an area during and after mining establish the minimum point density Another commenter suggested that it will differ from, and in most cases based on local conditions, type of is not necessary for us to require post- exceed, premining flows for the same mining, type of sediment control mining monitoring and inspection of precipitation event. It is equally certain measures, and other factors. The each watershed to evaluate the quantity that flows from a larger event will then commenters appear to take issue with of flow after mining because the result in offsite damage that would not the requirement in paragraph (b) that regulatory authority will be making have occurred absent the mining there be a minimum of one monitoring monthly inspections and discharge activities. This is the very situation that point per watershed discharge point. issues should be identified at that time. the surface water runoff control plan Since the purpose of the surface water We have not changed the final rule as required by this section is intended to runoff control plan is to prevent offsite a result of this comment. Monthly prevent. We are requiring the permittee damage, the requirement for one inspections performed by the regulatory to design and construct or install surface monitoring point per discharge is authority are unlikely to coincide with water runoff control structures, as well reasonable as the data will validate that storm events and do not include as develop and implement the the surface water runoff control plan is measurement of peak stormwater reclamation plan, so that, at any given working and that it is preventing discharges associated with these events. time the flows at the permit boundary mining-related offsite flooding, stream Therefore, results of scheduled and on adjacent areas do not exceed scouring and damage to private inspections that occur after a storm premining flows for any given property. To specifically address the event cannot be used to determine if precipitation event. requirements of paragraph (a), flooding resulted from mining activities Another requirement in proposed and monitoring points should be located at or if it would have occurred even in the final paragraph (b) is that the program the places where streams flow from the absence of mining. must contain ‘‘a monitoring-point permit area, and would, in most cases, Another commenter suggested that density that adequately represents the coincide with the locations of baseline pursuant to the Clean Water Act drainage pattern across the entire surface water monitoring points. stormwater program, stormwater at proposed permit area, with a minimum Citing the above reasons for a mine sites is already carefully of one monitoring point per watershed federally mandated minimum sampling controlled by multiple best management discharge point.’’ Upon review of the density, another commenter suggested practices, technology requirements, proposed rule and the comments that the current criteria for sampling erosion and sediment control practices, received, we recognize that there may be density are sufficient for most permits and buffer zones. The commenter confusion about the role of ephemeral and that the changes in the proposed alleged that the requirement for a streams in the monitoring and rule should be limited to applicable surface-water runoff monitoring and inspection program. While it is essential areas based upon either geographical or inspection program conflicts with, and that the ephemeral stream drainage slope based considerations. We are not is duplicative of Clean Water Act pattern should be similar to the altering the final rule as a result of this requirements. We disagree and are not premining conditions and surface water comment. SMCRA regulations currently making any changes to the final rule in flows should be similar to premining contain no minimum sampling density response to this comment because, flows prior to final bond release, in a criteria. Regardless of geographic despite the cited stormwater control surface water runoff context, it is not location or topography, changes to measures, stormwater-related offsite necessary to measure discharges of ground cover and precipitation damage frequently occurs. In addition, particular ephemeral streams either infiltration characteristics occur and the cited measures do not specifically before, during, or after mining. The often result in increased stormwater include monitoring of stormwater purpose of monitoring in this context is runoff from a site in comparison to discharges at permit boundaries. to ensure that flows during and after conditions prior to disturbance. The Therefore, the monitoring and mining do not exceed premining flows. intent of stormwater runoff monitoring inspection program required in final Monitoring each ephemeral stream is to prevent offsite flooding attributable paragraph (b) supplements, rather than would require many monitoring points, to mining activities. One monitoring conflicts with existing requirements. yet not provide significant useful point at each point of discharge of a In the final rule we are dividing information because the pre- and perennial or intermittent stream leaving proposed paragraph (c) into paragraphs postmining locations of ephemeral the permit area is the minimum that (c) and (d). Final paragraph (c) now streams will differ, in some cases could be effective. contains the requirement for the surface- significantly. During mining, the surface A commenter suggested that the water runoff control plan to include water that typically feeds these phrase ‘‘watershed discharge point’’ as ‘‘[d]escriptions, maps, and cross- ephemeral streams will be captured by used in paragraph (b) of the proposed sections of runoff-control structures.’’ the drainage control system and rule, is not clear with respect to the After reviewing the comments we have conveyed to one or more discrete flow corresponding drainage area associated decided to add a definition to address monitoring points that may be with that point. Similarly, another confusion about the scope of the term associated with a National Pollutant commenter noted that we did not define ‘‘runoff-control structures’’ which we Discharge Elimination System the term ‘‘watershed discharge point’’ use both here and in § 816.34(d)(1), monitoring point. Therefore, we do not and that a common understanding of the which relates to protecting the require you to include headwater term is not available. To clarify, a hydrologic balance. The definition streams that emanate from the permit watershed discharge point is a selected makes clear that the term ‘‘runoff- area as ephemeral streams when you point of interest within a stream control structures’’ includes the many determine the monitoring-point density channel, such as a culvert location or a different types of hydraulic structures under paragraph (b). stream channel at a permit boundary. that play roles in controlling runoff of Some commenters suggested that a The associated watershed is the land surface water on a mine site. All federally-mandated minimum area that drains to that watershed conveyance channels, including monitoring-point density standard is discharge point. These terms are drainage benches, diversion ditches, unnecessary and that the regulatory commonly accepted in hydrology and and groin ditches, control where surface authority should have flexibility to engineering disciplines. runoff flows, and these structures

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00157 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93222 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

control the rate of runoff by their excess spoil is, or would be, generated. ensure that temporary overburden channel slope and resistance to flow, After evaluating the other comments stockpiles are not subjected to this the latter of which is dependent on that we received, we are adopting the requirement. channel surface roughness. Siltation section as proposed, with the following In paragraph (b)(2)(iii), we proposed structures such as sedimentation ponds exceptions and responses to comments. to limit postmining drainage structures, or ditches control the rate of discharge access roads, and berms on the Final Paragraph (b): Demonstration of by storing water entering the structures perimeter of the backfilled area to a Minimization of Excess Spoil and releasing it at a slower rate, maximum width of 20 feet unless a need controlled by the outlet structure. All of One commenter expressed concern for greater width is demonstrated. In the these structures work as a system, that the definition of excess spoil could proposed rule, we invited comment on controlling flow of surface water on and be interpreted to require spoil from an whether the maximum width should be across a mine site, and the rate at which initial cut to be stored and hauled a larger or smaller than 20 feet.530 In it is discharged outside the permit area. significant distance to the final cut, as response, a commenter suggested that Our definition recognizes that these opposed to allowing the initial cut spoil the maximum width should be structures are interdependent and that to be blended into the surrounding area. increased to 50–70 feet and that this they function as a system to control The commenter notes that it is common increase would not place additional surface water runoff. practice in the Midwest to blend the burden upon industry or the regulatory Final paragraph (d) now contains the initial cut spoil into the final authority. Similarly, other commenters requirement for the surface-water runoff approximate original contour expressed concern that this limitation control plan to include an ‘‘explanation configuration and leave a final cut could result in unsafe conditions of how diversions will be constructed in impoundment. The commenter opined because, in their view, greater widths compliance with § 816.43’’. In proposed that a change from this practice would for roadways, along with safety berms paragraph (c), this provision applied not be extremely costly. The commenter and drainage structures, are necessary only to diversions but also to ‘‘other was concerned that this paragraph in for safe operation during mining. In channels to collect and convey surface conjunction with the definition of addition, some commenters questioned water runoff’’ even though § 816.43 ‘‘excess spoil’’ in § 701.5, may result in whether this limitation would be in applies only to diversions. We have material blended into the surrounding conflict with typical state and federal removed this erroneous reference to area being interpreted as ‘‘excess spoil’’ safety regulations that are derived from ‘‘other channels to collect and convey and therefore creation of an end cut typical mining and haulage equipment surface water runoff’’ from the final impoundment would be prohibited. We dimensions. We are adopting this rule. agree with the commenter’s concern, paragraph as proposed. It is true that the however, as discussed in the preamble widths of these structures may need to Section 780.31: What information must to the definition of ‘‘excess spoil,’’ we be greater during active mining to I provide concerning the protection of have clarified that material used to ensure safe operations and compliance publicly owned parks and historic blend the final configuration of the with state or federal safety regulations. places? mined-out area with the surrounding However, it is also true that adoption of We are finalizing section 780.31 as terrain in non-steep slope areas in this limitation should not impact safety proposed. We received no comments on accordance with §§ 816.102(b)(3) and because it is only applicable to the this section. 817.102(b)(3) is not considered excess drainage structures, access roads, and spoil. Thus, final cut impoundments are berms on the perimeter of the backfilled Section 780.33: What information must still allowable in the situation described area that remain after completion of I provide concerning the relocation or by the commenter as long as all other mining and final grading. After final use of public roads? requirements of the regulations are grading is complete, access to the We are finalizing § 780.33 as satisfied. perimeter of the backfilled area by proposed. We received no comments on In paragraph (b)(1) of the final rule we mining or haulage equipment is not this section. are including a requirement for normally required. Moreover, in final submission of a demonstration, with paragraph (b)(2)(iii) we have now Section 780.35: What information must supporting calculations and other provided a narrow exception in cases I provide concerning the minimization documentation, that the operation has where the permittee demonstrates an and disposal of excess spoil? been designed to minimize, to the extent essential need to exceed the maximum As discussed in the preamble to the possible, the volume of excess spoil that width of 20 feet. We expect that the proposed rule, § 780.35 identifies the the operation will generate. One number of such cases will be very small required information for minimization commenter expressed concern that the because the 20 foot width is sufficient and disposal of excess spoil.529 In requirement to demonstrate that the in most circumstances. Examples of an response to proposed § 780.35, one operation has been designed to ‘‘essential need’’ would include a commenter recommended that we minimize, to the extent possible, the situation where there is no other restrict proposed rule changes on the volume of excess spoil that the alternative that will allow access to an minimization and disposal of excess operation will generate could be applied area with a postmining land use that spoil to where they are appropriate to temporary overburden stockpiles, requires the use of large off-road or based on geography. According to the such as those created by dozers, truck, commercial vehicles. commenter, this restriction is warranted loaders, shovels, or draglines, and Paragraph (b)(4) prohibits the creation because of the proposed rule’s reliance which will be used for future of a permanent impoundment under on data from central Appalachia. We reclamation. As discussed more fully in § 816.49(b) or the placement of coal disagree and have not revised the final the preamble discussion of the combustion residue or noncoal rule in response to this comment definition of ‘‘excess spoil’’ in § 701.5, materials in the mine excavation if because final rule § 780.35 applies to we added paragraph (5) to the definition doing so would result in the creation of any site, regardless of geography, where of ‘‘excess spoil’’ to specifically exclude excess spoil. We received many temporarily placed material from the 529 80 FR 44436, 44519–22 (Jul. 27, 2015). definition. This modification will 530 80 FR 44436, 44520–44521 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00158 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93223

comments about the correlation between performance standards of final rule wildlife, and other environmental the allowance of final cut § 816.74. Paragraph (c) aids in the values. Paragraph (b)(3) of this section, impoundments and this section. A final minimization of placement of excess moreover, allows placement of spoil in cut impoundment results when no spoil, to the extent possible, on the mined area to heights in excess of material is available to fill the final cut undisturbed land. The previous the premining elevation, whereas in an area mine. In most cases, material regulations at § 816.74 allow, but do not §§ 780.27(b)(2)(v) and 780.28(c)(2)(v) from the initial cut will have been used require, placement of excess spoil on allow alteration of the premining to blend the backfilled area into the preexisting benches. Paragraph (c) drainage pattern in the mined area to surrounding topography. Although the requires that excess spoil placement on accommodate construction of excess term ‘‘final cut impoundment’’ is preexisting benches be maximized spoil fills. The intent of these provisions commonly used by industry and before any excess spoil fills can be taken together is to minimize regulatory authorities, we have replaced constructed. Therefore, if surface construction of excess spoil fills on it with the term ‘‘permanent mining is proposed in an area where undisturbed land, by moving spoil impoundment’’ in the final rule to be mine benches from pre-law contour upslope, and to the extent possible, into consistent with section 515(b)(8) of mining remain in the vicinity of the the mined area, thereby minimizing the SMCRA.531 Some commenters opined proposed permit, you must demonstrate potential for spoil placement to impact that allowing these final cut how you will maximize placement of streams, particularly perennial and impoundments to remain as permanent excess spoil on preexisting benches intermittent streams. impoundments is contrary to the before you place any on undisturbed The same commenter also alleged that SMCRA requirement to achieve land. this requirement would, in many cases, approximate original contour after necessitate using the stream channel as Final Paragraph (e): Requirements mining is completed. We disagree. a sediment conveyance. We disagree. Related to Perennial and Intermittent Permanent impoundments, of which Movement of excess spoil upslope, and Streams final cut impoundments are one into the mined area in conjunction with example, are specifically allowed in the One commenter suggested we replace the requirement of § 816.57(h)(ii) to definition of approximate original the term ‘‘bankfull elevation’’ with the place siltation structures as near as contour in paragraph (2) of section 701 term ‘‘ordinary high water mark’’ possible to the toes of fills, will virtually of SMCRA.532 However, the permittee is because the latter term is the one more eliminate the possibility of streams required to achieve approximate commonly used and more easily being used as sediment conveyances in original contour on the remainder of the measured. We agree and have revised connection with spoil placement. paragraph (e) of the final rule so that the backfilled mined area. Final Paragraph (h): Geotechnical A commenter alleged that we are term ‘‘ordinary high-water mark’’ is Investigation attempting to limit the size of what the used to represent the location on the commenter characterized as ‘‘final cut cross section of a stream channel from Proposed paragraph (g)(6), now impoundments’’ to no more than what which the 100-foot streamside paragraph (h)(6), requires the is needed to support the approved vegetative corridor, which is now performance of stability analyses that postmining land use and that there is no required by § 780.28(d), is measured. addresses static, seismic, and post- legal basis for that limit. Although the This change is consistent with the earthquake (liquefaction) conditions comment was not clear, because the addition of the term ‘‘ordinary high because those conditions are part of a commenter referred to impoundments water mark’’ throughout the final rule, comprehensive stability analysis. One in connection with approved including the final definition of commenter stated that post-earthquake postmining land uses, we concluded ‘‘ordinary high water mark’’ in § 701.5. (liquefaction) conditions should not be a required part of a stability analysis that the commenter was referencing Final Paragraph (f): Location and Profile permanent impoundments. We disagree because liquefaction is not a concern in with commenter’s assertion. Section Proposed paragraph (e)(2), now final coarse-sized mine spoil composed of a 515(b)(8) of SMCRA 533 specifically paragraph (f)(2), requires that fills be large fraction of rock material. links the size of an impoundment with located on the most moderately sloping Moreover, a liquefaction analysis would its intended purpose. The allowable size and naturally stable areas available. One be a costly exercise with no apparent of any permanent impoundment is commenter expressed concern that this benefit. We agree that the potential for based on its intended use as part of the requirement would encourage more fills liquefaction is primarily a concern in postmining land use. However, there is in intermittent or perennial, rather than loose, saturated, relatively fine-grained nothing in the language of paragraph ephemeral streams. Paragraph (f)(2), soil materials, such as materials that are (b)(4) that explicitly or implicitly creates however, should not be read in isolation impounded in slurry impoundments an additional limitation on permanent and in fact requires the regulatory and incorporated into upstream impoundment size. authority to determine the areas that are available for excess spoil fill constructed impoundments. Excess Final Paragraph (c): Preferential Use of construction after considering spoil consists of soil and rock mixtures Preexisting Benches for Excess Spoil requirements of the Act,534 and this placed and compacted in an unsaturated Disposal chapter. These other requirements state. Materials of this type, and placed After consideration of the comments would include the stability in this manner, are not normally related to performance standards about requirements of paragraph (b) of susceptible to liquefaction. Therefore, disposing of excess spoil on preexisting § 816.71, relating to the disposition of we have removed the requirement that benches, we have added paragraph (c) to excess spoil; the protections for the stability analysis include post- the final rule. This paragraph adds a perennial and intermittent streams as earthquake (liquefaction) conditions permitting requirement to match the set out in § 780.28; and the requirement from the final rule. Excess spoil fills in § 816.71(a)(4) to minimize excess remain subject to all other slope 531 30 U.S.C. 1265(b)(8). spoil and its adverse impacts on fish, stability requirements in final rule 532 30 U.S.C. 1291(2). §§ 816.71 and 817.71, relating to 533 30 U.S.C. 1265(b)(8). 534 30 U.S.C. 1265(b)(22)(E). disposal of excess spoil.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00159 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93224 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Section 780.37: What information must Section 780.38: What information must Section 783.18: What information on I provide concerning access and haul I provide concerning support facilities? climate must I include in my permit roads? application? We are finalizing § 780.38 as We are finalizing § 783.17 as Final Paragraph (a): Design and Other proposed. We received no comments on proposed. We received no comments on Application Requirements this section. this section. Paragraph (a)(4)(i) of final rule H. Part 783—Underground Mining § 780.37 requires that the permit Section 783.19: What information on Permit Applications—Minimum application identify each road that you vegetation must I include in my permit Requirements for Information on propose to locate in or within 100 feet, application? Environmental Resources and measured horizontally on a line Conditions We have modified this section; perpendicular to the stream, beginning however, these modifications are at the ordinary high water mark, of a Section 783.1: What does this part do? discussed in final rule § 779.19, which perennial or intermittent stream. The is the surface mining counterpart to final rule differs from the proposed rule With the exception of altering the title § 783.19. in that it specifies that the measurement of this section for clarity, we are must begin at the ordinary high water finalizing § 783.1 as proposed. We Section 783.20: What information on fish and wildlife resources must I mark of the stream, rather than at the received no comments on this section. include in my permit application? bankfull elevation of the stream. A Section 783.2: What is the objective of commenter on another rule with the We have modified this section; this part? 100-foot provision recommended this however, these modifications are change because it is both more We are finalizing § 783.2 as proposed. discussed in final rule § 779.20, which commonly used and readily determined We received no comments on this is the surface mining counterpart to § 783.20. than the bankfull elevation. We have section. made this change universally Section 783.21: What information on throughout our regulations. Section 783.4: What responsibilities do soils must I include in my permit Final paragraph (a)(5) requires that I and government agencies have under application? the permit application explain why the this part? Similar to its surface mining roads, fords, and stream crossings We are finalizing section 783.4 as counterpart found at § 779.21, § 783.21 identified in paragraph (a)(4) are proposed. We received no comments on identifies the information on soils that necessary and how they comply with this section. must be included in a permit the applicable requirements of § 780.28 application. However, § 783.21 is and § 816.150(b)(5) and (d) and Section 783.10: Information Collection exclusive to underground mining § 816.151(d)(2), (e)(5), and (e)(6). The Section 783.10 pertains to compliance permits. final rule differs from the proposed and Several commenters urged us to with the Paperwork Reduction Act, 44 previous rules in that it adds fords, increase prime farmland reconnaissance which are subject to the requirements of U.S.C. 3501, et seq. We are adding surveys to include areas beyond the § 780.28 and thus should be included in contact information for persons who permit area and to extend these surveys the explanation required by paragraph wish to comment on these aspects of into the adjacent area for areas that will (a)(5). The final rule also replaces the part 783. be undermined. Moreover, some reference to section 515(b)(18) of Previous § 783.11: General commenters recommended that all SMCRA 535 in the proposed and Requirements applicable soil survey information, previous rules with a reference to the including information required for the regulations implementing that provision Like proposed § 779.11, the surface permit area, be included if prime of SMCRA. This revision is mining counterpart to § 783.11, we have farmland is identified in the adjacent nonsubstantive in nature because an removed and reserved previous § 783.11 area. In addition, some commenters applicant must comply with the for the reasons discussed in the recommended that all standards referenced rules anyway, but adding the preamble to the proposed rule.536 required by § 785.17, related to prime citations makes the rule more user- farmland, as well as § 823.15, related to friendly, internally consistent, and Previous § 783.12: General revegetation and restoration of soil easier to understand. Environmental Resources Information productivity, be fully applicable if prime farmlands are damaged by Final Paragraph (c): Standard Design Like proposed § 779.12, the surface subsidence in the adjacent area. We are and Plans mining counterpart to § 783.12, we have not accepting the suggestions in these In response to proposed paragraph (c) removed and reserved previous § 783.12 comments because impacts caused by a commenter pointed out that the cross for the reasons discussed in the 537 surface mining on prime farmland soils reference to § 816.151(b) regarding preamble to the proposed rule. differ from impacts caused by mine factors of safety was in error and that Section 783.17: What information on subsidence. In surface mining, soil the correct cross reference should be cultural, historic, and archeological layers must be removed prior to mining. paragraph (c) of § 816.151. Likewise, the resources must I include in my permit Those soil layers are later replaced as commenter noted the identical problem application? part of reclamation as further explained existed in proposed § 784.37(c) which in final rule § 816.22(e). This is similarly cited proposed § 817.151(b) We are finalizing § 783.17 as fundamentally different from what instead of paragraph (c). We have made proposed. We received no comments on occurs from the settling of the soil layers the necessary corrections to the final this section. caused by mine subsidence. It would rule at both §§ 780.37(c) and 784.37(c). not be appropriate to salvage soil layers 536 80 FR 44436, 44482 (Jul. 27, 2015). prior to subsidence. In fact, doing so 535 30 U.S.C. 1265(b)(18). 537 80 FR 44436, 44482 (Jul. 27, 2015). would have far greater impact on the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00160 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93225

soil resource than would normally be § 701.5. It is also inconsistent with a for well installations in areas that would caused by mine subsidence. Moreover, similar requirement in § 779.24(a)(23) not normally require property control, damage caused by subsidence can be which does not have the 2,000-foot which would be incredibly costly and frequently mitigated without the need stipulation. We agree with the difficult to obtain. for any soil salvaging. This is not true commenter and have removed the After considering these comments, we when compared to impacts caused by 2,000-foot radius requirement from the added two new §§ 783.26 and 784.40, to surface mining or impacts related to final rule. the final rule to allow incremental mining activities on the permit area of One commenter asserted that the submission of permit application underground mines that would result in water well data required in proposed information for underground mines and the destruction of the soil resource § 783.24(a) is redundant, will not serve incremental initiation of monitoring of should it not be appropriately salvaged any substantial purpose, and will be groundwater, surface water, and the as required by § 817.22. Therefore, the time consuming and costly to obtain. It biological condition of perennial and regulations governing the soils above was suggested that the regulatory intermittent streams in the adjacent area areas that are undermined are authority be allowed flexibility in of underground mines. We decided not appropriately different. The determining what type and the volume to allow incremental submission of determination that different standards of well data is necessary to be submitted permit application information and apply to soils for undermined areas is in the permit application and that some incremental initiation of monitoring for consistent with SMCRA, which of the data be allowed to be maintained surface mines because surface mining recognizes the distinct difference at the mine site for review. While we involves much more extensive surface between surface coal mining and recognize that the collection of disturbance than underground mining underground coal mining.538 The groundwater data will have associated and because most surface mines have a requirements at §§ 784.30 and 817.121 costs, the data are necessary to much shorter life than underground satisfactorily address the restoration of determine the hydrogeology of the mines. damages from underground mining proposed mine site and adjacent areas The chief drawback of allowing caused to prime farmland as well as so the applicant may properly evaluate incremental submission of permit damage to any renewable resource and prepare a comprehensive application information is that there lands. Moreover, any comments related determination of the probable may be insufficient information for the to suggestions to amend the prime hydrologic consequences of the regulatory authority to prepare the farmland regulations at §§ 785.17 or proposed operation. The data are also cumulative hydrologic impact 823.15 are not germane to this necessary to support development of the assessment or to make the findings rulemaking and would be better suited hydrologic reclamation plan required by required for approval of a permit to consideration under a potential future final rule § 780.22 and the cumulative application. Therefore, final rule rulemaking on that topic. hydrologic impact assessment required § 783.26(b) specifies that the regulatory by final rule § 780.21. Therefore, we authority has complete discretion in Section 783.22: What information on have not modified the final rule in deciding whether to grant a request for land use and productivity must I response to this comment. incremental submission of permit include in my permit application? application information. The final rule We have modified this section; Previous § 783.25: Cross Sections, Maps, also establishes minimum requirements however, these modifications are and Plans and criteria for both requests for discussed in final rule § 779.22, which Like proposed § 779.25, the surface incremental submission and processing is the surface mining counterpart to mining counterpart to § 783.25, we have of those requests. § 783.22. removed and reserved previous § 783.25 Specifically, paragraph (b)(1) of the for the reasons discussed in the final rule provides that each increment Section 783.24: What maps, plans, and preamble to the proposed rule.539 must be clearly defined. It also requires cross-sections must I submit with my that each increment include at least five Section 783.26: May I submit permit permit application? years of anticipated mining. This time application information in increments Similar to its surface mining period is equivalent to the standard as mining progresses? counterpart found at § 779.24, § 783.24 term of a permit under final rule identifies what maps, plans, and cross- We received several comments urging § 773.19(c) and section 506(b) of sections must be included in a permit us to allow applicants to submit permit SMCRA.540 application. However, § 783.24 is application information for the adjacent Paragraph (b)(2) requires that the exclusive to underground mining area in stages, especially for schedule include a map showing the permits. underground mining operations. limits of underground mining activity As proposed, § 783.24(a)(23) would Commenters alleged that requiring under each increment. It also requires have required that the application information for the entire adjacent area establishment of those limits in a include maps, plans, or cross-sections would be exorbitantly expensive and manner that will prevent any impact on showing the location and extent of result in collection of data that either the succeeding increment before the known workings of active, inactive, or would be outdated by the time that regulatory authority approves mining abandoned underground mines located underground mining activities could within that increment. either within the proposed permit area affect areas located distant from the area Paragraph (b)(3) requires submission or within a 2,000-foot radius in any in which mining initially begins or of data for each successive increment at direction of the proposed underground would be useless because of changes in least one year in advance of any workings. One commenter stated this mining plans. One commenter also anticipated impacts of underground requirement conflicts with the urged us to allow incremental mining upon that increment. This time ‘‘reasonable possibility of adverse monitoring of the adjacent area. period is consistent with final rule impacts in the adjacent area’’ included According to the commenter, the § 784.19(b) and (c), which require a in the definition of adjacent area within applicant would have to obtain property minimum of 12 months of baseline

538 30 U.S.C. 1266(a). 539 80 FR 44436, 44482 and 44523 (Jul. 27, 2015). 540 30 U.S.C. 1256(b).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00161 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93226 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

monitoring data in each permit Section 784.2: What is the objective of development of plans to account for the application. this part? correction of damages caused by Paragraph (b)(4)(i) provides that the We are finalizing § 784.2 as proposed. subsidence to these features. In regulatory authority must condition the We received no comments on this particular, § 817.121 requires repair of permit to require that the permittee section. damages to wetlands, streams or other reevaluate the adequacy of the probable water bodies caused by subsidence. Section 784.4: What responsibilities do hydrologic consequences determination I and government agencies have under Section 784.13: What additional maps under § 784.20 and the hydrologic this part? and plans must I include in the reclamation plan under § 784.22 as part reclamation plan? of each submission. The absence of We are finalizing § 784.4 as proposed. baseline permit application information We received no comments on this We have modified this section; for all increments at the time of permit section. however, these modifications are application approval means that the Section 784.10: Information Collection discussed in final rule § 780.13, which permittee must use the baseline data Section 784.10 pertains to compliance is the surface mining counterpart to collected for each successive increment § 784.13. to reevaluate the accuracy of the with the Paperwork Reduction Act, 44 probable hydrologic consequences U.S.C. 3501, et seq. We are adding Section 784.14: What requirements determination and the adequacy of the contact information for persons who apply to the use of existing structures? hydrologic reclamation plan before the wish to comment on these aspects of mining operation may affect the new part 784. We have modified this section; however, these modifications are increment. Section 784.11: What must I include in discussed in final rule § 780.14, which Similarly, paragraph (b)(4)(ii) the general description of my proposed operations? is the surface mining counterpart to provides that the regulatory authority § 784.14. must condition the permit to prohibit We are finalizing § 784.11 as the conduct of any underground mining proposed. We received no comments on Section 784.16: What must I include in activity that might impact an increment this section. the fish and wildlife protection and before the regulatory authority reviews enhancement plan? the information submitted for that Section 784.12: What must the Final Paragraph (d): Enhancement increment, updates the cumulative reclamation plan include? Measures hydrologic impact assessment prepared Final Paragraph (b): Reclamation under § 784.21 to incorporate that Timetable One commenter suggested that we information, and determines that the We received comments urging us to clarify that the enhancement measures findings made at the time of approval of extend the requirements for reclamation enumerated in proposed rule (d)(2), the permit application under § 773.15 plans to areas adjacent to the permit final rule paragraph (d)(3), are only remain accurate. If the regulatory area including areas located above necessary where there are actual long- authority cannot make this underground mine works. The term adverse impacts as opposed to only determination, it must require that the commenters stated that the restoration projected impacts before mining permittee either cease mining or revise plan and reclamation timetable should operations have begun. This commenter the permit in a manner that will correct address restoration of the form of all opined that the need for ‘‘permanent’’ that problem and enable the regulatory perennial and intermittent stream enhancement measures cannot be authority to make the necessary segments through or beneath which established prior to beginning findings. mining will occur. These commenters operations and until the potential Final rule § 784.40 provides that the suggested that under paragraph (b) we resultant subsidence has actually requirements, procedures, and criteria should require detailed timetables for occurred. The commenter misinterprets of 30 CFR 783.26 apply with equal force the restoration of the form and function our rule. Paragraph (d) applies only to to the permit application information of streams that are damaged by activities conducted on the surface of requirements of part 784. In addition, in subsidence and that reclamation plans the land. Other commenters asserted response to the comment discussed should include lands disturbed within that we made no distinction between above, § 784.40(c) specifies that the the area adjacent to the permit area. We surface and underground mines and that are not adopting this suggestion because plans submitted under § 784.23 for it is unclear if the required impacts caused by subsidence in the monitoring of groundwater, surface enhancement measures are applicable to water, and the biological condition of areas adjacent to underground mines are the permit area only or to the permit perennial and intermittent streams may appropriately addressed in other area and the area overlying the be structured and implemented in an sections of this regulation. As we underground workings. To clarify this incremental manner consistent with the discuss in § 783.21 and elsewhere schedule approved under paragraph (b). within this preamble, under section point, we revised paragraph (d)(3)(i) to 516(a) of SMCRA; 541 we are authorized state, ‘‘if you propose to conduct I. Part 784—Underground Mining to adopt regulations that consider the activities on the land surface that would Permit Applications—Minimum distinct differences between surface and result in’’ to eliminate any confusion Requirements for Operation and underground mining. Specifically, regarding underground mining. Reclamation Plans § 784.30 identifies features, including Subsidence impacts on streams are Section 784.1: What does this part do? certain structures and renewable regulated under § 784.30 and 817.121. resource lands that may be materially Activities subject to paragraph (d)(3) With the exception of altering the title damaged by subsidence. Furthermore, include, but are not limited to, the of this section for clarity, we are in § 817.121, we require the construction of refuse piles or slurry finalizing § 784.1 as proposed. We impoundments in intermittent or received no comments on this section. 541 30 U.S.C. 1266(a). perennial streams.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00162 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93227

Previous § 784.17: Protection of Publicly overburden less than 150 feet deep or intermittent streams. In response to Owned Parks and Historic Places that experiences pillar failure can proposed paragraph (c)(3)(D) about We have removed previous § 784.17 intercept those fractures and negatively seepage-run sampling, one commenter to final rule § 784.31. Section 784.17 is impact the flow regime in overlying stated that it is not reasonable to require now reserved. streams. seepage run analyses on ephemeral Another commenter noted a streams. We agree. Our removal of the Previous § 784.18: Reclamation Plan: misplaced requirement in proposed reference to ‘‘ephemeral streams’’ General Requirements paragraph (b)(6)(i)(C) that required addresses this concern. Other We have removed and reserved monitoring points to be located in a commenters expressed concern about previous § 784.18. Like previous representative number of ephemeral the requirement for seepage analysis § 780.18, the surface mining counterpart streams within the proposed permit and when longwall mining methods are to previous § 784.18, and as discussed adjacent areas. Because that section of employed beneath a perennial or in the preamble to the proposed rule we the regulations relates to groundwater intermittent stream. Specifically, one have moved and revised many aspects information, final paragraph (b)(6)(i)(C) commenter favored the proposed of previous § 784.18 to final rule now specifies that a permit applicant language and suggested a seepage § 780.12.542 locate monitoring points within the analysis for all coal mining operations proposed permit area and the area adjacent to streams to help determine Section 784.19: What baseline overlying the proposed underground the interconnections between the information on hydrology, geology, and workings. surface and ground water systems and aquatic biology must I provide? Final Paragraph (c): Surface-Water the proposed mine site. In a similar In addition to the comments we Information comment, another commenter suggested received about baseline information for that seepage run analysis include all One commenter alleged that no surface mining permits and comments mining scenarios, not just longwall evidence of significant damage to that addressed both surface mining and mining. We decline to add this language streams resulting from longwall mining underground mining permit for all mining operations but note that activity existed and that we provided no applications baseline information, we sufficient flexibility exists for a rationale for requiring operators to received comments exclusive to the regulatory authority to require such collect a substantial volume of impact of the proposed rule upon additional information if deemed environmental and engineering data that underground mining. While we necessary. A commenter commended us would support requiring stream discussed the baseline information for requiring seepage run analysis, but assessments as proposed in paragraph relative to surface mining in § 780.19, recommended strengthening the (c)(6). Further, commenters claimed that we are addressing the comments that are language to include analysis of the exclusive to underground mining in this the proposed assessments provided no specific purpose with respect to entire length of an intermittent or section. perennial stream within and outside the A commenter requested stream satisfying permit and bonding obligations. The commenters also permit area and performed at both low sampling to be restricted to streams over and high flow conditions to characterize the shadow areas of underground mines indicated that the data collection would be costly and time consuming, and the seepage under a variety of flow that use planned subsidence (i.e., conditions. We have accepted this longwall or high extraction room and would provide neither the industry nor comment and have modified the rule pillar mining method). We have not the regulatory agency with the language at § 784.19(c)(3)(D) to clarify made any changes in response to this information necessary to demonstrate where and when the seepage analysis is comment. Although the typical room whether or not streams have actually to occur. Another commenter requested and pillar mining method leaves pillars been damaged. We disagree with these that we clarify where, when, and how in place to support the overlying comments. Numerous examples exist of seepage analysis should be conducted. overburden, all underground operations longwall damage to streams both in We decline to prescribe additional create mine voids that have the United States and abroad, mostly in the 544 requirements as to where, when, and potential to result in a groundwater sink form of dewatered stream channels. how the analysis should be done other forming over large areas. Depending on For this reason, the data requests, the magnitude of the groundwater sink, engineering analysis, and hydrologic than as described in paragraphs (c)(3), impacts can range from none to full assessments are necessary to understand which requires all measurements to be scale aquifer de-watering over large the geologic and hydrologic made using generally-accepted areas, especially if pillar or retreat environment and to enable accurate professional techniques approved by the mining occurs. The presence of fine hydrologic consequences and impact regulatory authority. grained lithology (silt and claystone), assessments. One commenter indicated the seepage run determinations do not take into typically found in the overburden above Final Paragraph (c)(3): Surface-Water account evaporation or uptake of water coal seams, can mitigate the impacts Quantity Descriptions experienced at the surface, but these by plants and any analysis would geologic formations do not prevent all We modified the final rule at necessarily be greatly influenced by hydrologic impacts, especially in stream paragraph (c)(3) to remove the reference temporal and seasonal weather events. valleys with deep stress relief fractures, to ‘‘ephemeral streams’’ because this The commenter opined that the which can extend to 150 feet deep.543 section applies only to perennial and proposed regulation would impose an Any underground mine operating in onerous and costly sampling 544 See, e.g., C.J. Booth, et al., Hydrogeologic requirement that may not represent the Impacts of Underground (Longwall) Mining in the 542 80 FR 44436, 44487–44493 (Jul. 27, 2015). Illinois Basin, Proceedings: Third Workshop on actual reasons for changes in 543 Jay W. Hawkins et al., Shallow Ground Water Surface Subsidence Due to Underground Mining, streamflow. We do not agree with the Flow in Unmined Regions of the Northern Morgantown, W.Va., June 1–4, 1993, pp. 222–227; commenter because evapotranspiration Appalachian Plateau: Part 1 and Part 2. Physical B.M. Stout, Impact of longwall mining on is a minor component of the seepage Characteristics. 1996 Annual Meeting of the headwater streams in northern West Virginia, West American Society for Surface Mining and Virginia Research Institute. Morgantown, W. Va. pg. analysis due to the location and depth Reclamation, Knoxville, TN (1996). 35 (2002), see also Wilkowske, 2007. of the water potentially moving toward

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00163 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93228 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

the mining. Stated another way, the Final Paragraph (c)(6): Stream least equal in extent of cover to the water under analysis has already Assessments natural vegetation of the area.’’ undergone evapotranspiration losses on Some commenters asserted that the Final Paragraph (g): Exception for its journey into the groundwater system. information contained in proposed Operations That Avoid Streams We also agree that groundwater is § 780.19(c)(6)(ii) and (iii) for a subject to seasonal and weather One commenter requested that we description of the riparian zone and for clarify the term ‘‘modify’’ in proposed influences. However, the objective of the biological condition of each stream paragraph (h)(3), now final paragraph the regulatory requirement for a seepage segment is unnecessary in areas located (g)(3). That provision allows a waiver of analysis is to document the interaction above underground mine works. As the biological information requirements of proposed, and existing, mine pool(s) proposed, these specific sections were if it can be demonstrated to the with the surface and groundwater only applicable to surface mining regulatory authority’s satisfaction that systems adjacent and overlying the operations, while the counterpart to the proposed operation will not ‘‘modify mined area. The regulatory authority these provisions for underground mines the baseflow of any perennial or has the discretion to decide the level of was proposed within proposed intermittent stream.’’ The common detail provided in the seepage analysis § 784.19(c)(6)(ii) and (iii). Upon definition of ‘‘modify’’ as found in any that accomplishes the objective. reconsideration, we have revised dictionary is sufficient and the § 784.19(c)(6)(i) and (ii) in our final rule One commenter opined that the regulatory authority is in the best for underground mines to make it position to determine if the baseflow of problems associated with subsidence- identical to § 780.19(c)(6)(ii) and (iii). induced stream loss were limited to the a perennial or intermittent stream has For both sections, the data requirements been modified. We expect that the Appalachian region and should not be are identical and pertain to permitted required throughout the country. They regulatory authority will broadly and adjacent area (for underground interpret the word ‘‘modify’’ in the further suggested that each regulatory mines, the area overlying the authority should have the latitude to context of baseflow changes but only to underground works). In final rule include changes likely to result from decide the need for such analysis. We paragraphs (c)(6)(ii) and (iii) of mining. Prudence dictates that the are not implementing these suggestions §§ 780.19 and 784.19, we removed the regulatory authority would require the for several reasons. First, stream loss phrase ‘‘riparian zone’’ and replaced it operator to have obtained the necessary over longwall mined areas is not with ‘‘vegetation along the banks of each baseline data to support or defend specific to the Appalachian Region. stream.’’ We made this slight change to potential impacts that may result from Stream de-watering has occurred in the clarify the intent of the rule language mining before granting this waiver. We Illinois coal basin, in the western and avoid confusion related to how also expect that underground mines that United States, and abroad. Second, ‘‘riparian area’’ would be interpreted. intend to undermine a stream will be Assessing the biological condition of longwall mining causes subsidence in required to conduct the baseline stream each ephemeral, intermittent, or the overburden and induces fracturing assessment regardless of any potential perennial stream that could be impacted in the overburden which can extend baseflow modification consistent with by subsidence is critical with respect to upwards from 24 to 54 times the mined paragraphs (c)(1) and (c)(3)(i) of determining potential impacts to aquatic height with a surface fracture zone § 784.19. communities and the possibility for extending from the land surface down to material damage to the hydrologic Section 784.20: How must I prepare the 50 feet.545 Furthermore, these fractures balance outside the permit area. determination of the probable can connect with natural stress relief Therefore, we have retained hydrologic consequences of my fracturing in the valley floor which requirements within the final rule at proposed operation (PHC ultimately can produce impacts to the paragraphs (c)(6)(vii) and (viii), which determination)? overlying aquifer units and surface requires biological condition water system. These impacts to As discussed in the preamble to the assessments for underground mines. In proposed rule, § 784.20 explains the overlying aquifers and surface water can § 784.19(c)(6)(v), we also added a requirements of the determination of the cause stream de-watering as the requirement to identify the presence of probable hydrologic consequences of a hydrologic balance re-equilibrates to the and to assess the quality of wetlands proposed operation.547 After evaluating new hydrologic stress imposed by the adjoining streams on the permitted and the comments that we received subsidence created by longwall panels. adjacent areas. These two additions are exclusive to the impacts of underground For these reasons, an assessment of the in response to comments from other mining, we are not making changes to potential for underground mines to federal agencies requesting such and the final rule. cause stream loss in overlying streams will provide further clarification about should be performed in all situations, the level of detail needed to document Final Paragraph (a): Content of PHC regardless of region. Such an analysis is baseline conditions. The additions will Determination required to definitively state in the also ensure restoration of any Proposed § 784.20 is substantively probable hydrologic consequences and streamside vegetative corridor and identical to § 780.20, which pertains to cumulative hydrologic impact wetlands impacted by mining in or near surface mining, with the exception of assessment and associated written streams. These assessment requirements paragraphs (a)(3), (a)(6), and (a)(7). findings that material damage to the are also consistent with 515(b)(19) of Some commenters suggested that we 546 hydrologic balance will not occur as a SMCRA which requires add specific language to § 784.20 to result of the proposed operation. establishment of ‘‘a diverse, effective, require that the probable hydrologic and permanent vegetative cover of the consequences determination contain a same seasonal variety native to the area finding that the operation does not have 545 C.J. Coe & S.M. Stowe, Evaluating the Impact of Longwall Mining on the Hydrologic Balance, In: of land to be affected and capable of the potential for causing subsidence- Proceedings, National Water Well Association self-regeneration and plant succession at related dewatering that would lead to Conference on the Impact of Mining on Ground Water, National Water Well Assoc. (1984). 546 30 U.S.C. 1265(b)(19). 547 80 FR 44436, 44526 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00164 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93229

material damage to the hydrologic increased costs during preparation of distinct difference between surface and balance outside the permit area. Such a the permit application. It was suggested underground coal mining.’’ 549 This provision is not necessary. Our final that rather than requiring a section establishes requirements for the rule at § 784.20(a)(6) requires the determination, paragraph (a)(7) should probable hydrologic consequences content of the probable hydrologic require a discussion of the potential of determination, which is required by consequences to contain findings the mine pool to discharge to the ground section 507(b)(11) of SMCRA.550 The addressing the impact of subsidence surface. Commenters also suggested that probable hydrologic consequences from the proposed underground mining this analysis only be conducted as determination and the cumulative activities on perennial and intermittent necessary on a case-by-case basis. We hydrologic impact assessment must streams. As stated at § 784.20(a), the disagree, because before mining begins, address impacts of the proposed probable hydrologic consequences it is important for the regulatory operation on surface and groundwater determination must address the impacts authority and applicant to understand systems, both within and outside the of the proposed operation upon the what will happen at mine closure with proposed permit area. As discussed quality and quantity of surface water the water quality and quantity of the above, the information required by and groundwater and upon the biology mine pool. A primary environmental paragraph (a)(7) is necessary to assess threat from an underground mine, other of intermittent and perennial streams the potential impacts of the than subsidence, is the formation of a under seasonal flow conditions for the underground mining operation on both post-closure point source and non-point proposed permit and the adjacent areas. surface water and groundwater. Thus, discharges, which often arise from water The determination is based an analysis the information is within the scope of of baseline hydrologic, geologic, accumulating in the underground mind 551 voids. These discharges may be acidic section 507(b)(11) of SMCRA. In biological, and other information as addition, because water accumulating in required in final rule § 784.19. In or alkaline in character, and contain unusually high metal concentrations or mine voids is a circumstance unique to addition, § 784.20(a)(1) requires a underground mines, we are only finding whether the operation may high total dissolved solids, resulting in requiring this information for proposed cause material damage to the hydrologic elevated electrical conductivity in the underground mining operations, which balance outside the permit area (i.e., in receiving streams. The characteristic is consistent with section 516(d) of the adjacent area, above the discharge can substantially degrade SMCRA,552 which requires modification underground workings.) Thus, the water quality and the biological to the SMCRA section 507 permitting probable hydrologic consequences condition of streams. The probable determination includes an assessment of hydrologic consequences analysis is requirements as ‘‘necessary to any potential for subsidence-related designed to address the anticipated accommodate the distinct difference dewatering to cause material damage to effects of the planned mining operation between surface and underground coal 553 the hydrologic balance outside the and subsequent reclamation on the mining.’’ quality and quantity of surface water permit area. Any subsidence-induced Section 784.21: What requirements and groundwater systems within, and dewatering impacts analyzed in the apply to preparation and review of the probable hydrologic consequences adjacent to, the proposed permit area, which should include water that cumulative hydrologic impact determination at § 784.20(a)(6) must assessment (CHIA)? also be addressed in the hydrologic accumulates in the mine pool. The reclamation plan established in analysis required by paragraph (a)(7) We have modified this section; § 784.22(a)(2). will, therefore provide the applicant however, these modifications are with information regarding the Several commenters were concerned discussed in final rule § 780.21, which likelihood that the proposed is the surface mining counterpart to with the addition of § 784.20(a)(7). underground mining operation will § 784.21. Paragraph (a)(7), requires that the create future noncompliant discharges probable hydrologic consequences of a perpetual nature that would require Section 784.22: What information must determination include a finding on treatment. It will also allow the I include in the hydrologic reclamation whether the proposed underground regulatory authority to prepare a better plan and what information must I workings would flood after mine closure cumulative hydrologic impact provide on alternative water sources? and, if so, a statement and explanation assessment, which could lead to of the highest anticipated prevention measures or changes in the Section 784.22 sets out the potentiometric surface of the mine pool mining plan to avoid the creation a post- information the operator must include after closure; whether, where, and when closure discharge that would cause in the hydrologic reclamation plan and the mine pool is likely to result in a material damage to the hydrologic the information that it must provide surface discharge; and the predicted balance outside the permit area in about alternative water sources. quality of any discharge from the mine violation of section 510(b)(3) of Although many aspects of this section pool. The regulatory authority is to use SMCRA.548 are substantively identical to the surface this information, in combination with One commenter also questioned the mining counterpart found at § 780.22, models and calculations of void space statutory support for paragraph (a)(7). there are several differences that and adjacent mine barrier seepage, to Section 516(d) of SMCRA states that the resulted in unique comments from predict the probability of a blowout, permitting provisions of Title V of the industry and the public, discussed where and when blowouts might occur, Act are applicable to ‘‘surface below. In response to these comments and the likelihood that water discharged operations and surface impacts incident we have made modifications to the final as a result of the blowout will require to an underground coal mine with such rule. treatment to meet water quality modifications to the permit application standards or any applicable effluent requirements, permit approval or denial 549 30 U.S.C. 1266(d). limitations. Commenters stated that the procedures, and bond requirements as 550 30 U.S.C. 1257. prediction of mine pool hydrology and are necessary to accommodate the 551 Id. potential for discharges are speculative 552 30 U.S.C. 1266(d). and challenging and would result in 548 30 U.S.C. 1260(b)(3). 553 30 U.S.C. 1257.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00165 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93230 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Final Paragraph (a): Hydrologic costs, and an implementation schedule. Commenters alleged that we do not have Reclamation Plan This water supply replacement plan the statutory authority to require As discussed in more detail in the will indicate whether the alternative biological monitoring requirements for preamble to § 784.28, the final rule at water sources are ‘‘available’’ and underground mining operations, and § 784.22(a)(2)(ii) has been revised to ‘‘feasible.’’ asked that we clarify the source of our Another commenter opined that an indicate that the hydrologic reclamation authority. Our authority to require operator should be required to plan ‘‘must include remedial measures biological monitoring for underground demonstrate in the permit application for any predicted diminution of mining operations is detailed in section that a firm plan for a permanent 557 streamflow or loss of wetlands as a 516(b)(11) of SMCRA.’’ Without replacement water supply system exists, biological monitoring for underground result of subsidence’’ and ‘‘must discuss that the plan should include details to the results of past use of the proposed mining, the regulatory authority cannot support the furtherance of the plan, and reliably determine if disturbances and remedial measures in the vicinity of the that it should indicate that the proposed mining operation and under adverse impacts of the operation on fish, permanent replacement water supply wildlife, and related environmental similar conditions elsewhere.’’ In order system will be installed and to assess the likelihood that those values have been minimized or successfully operating no less than three enhanced. Through biological remedial measures will be effective to years following water diminution. The correct subsidence-related stream monitoring, the regulatory authority commenter suggested that we gains a better understanding of the dewatering, this provision requires the implement a maximum three year operator and the regulatory authority to requirements necessary to minimize period to resolve issues such as surface disturbance and adverse impacts and consider actual results that the proposed property access, pipeline rights-of-way remedial measures have achieved in enhance, where practicable, fish, concerns, as well as permitting and wildlife, and related environmental similar conditions, where available construction. It is more appropriate to information exists. If streams in similar values. require such a time limit in § 817.40 Further, these commenters stated that conditions have not been adequately which describes the responsibility of the restored, the regulatory authority may the cause-effect relationships between operator to replace water supplies. In nutrient stressors and biological choose to prohibit planned subsidence the proposed rule at paragraph (c)(3) of mining techniques that would result in 555 responses, from which the designated section 817.40, we required the use criteria are derived, can be highly subsidence to streams within the operator to provide a permanent adjacent area overlying the underground uncertain and recommended that, before replacement water supply within two corrective action is assigned, the workings in order to ensure the years of the date of receiving notice of prevention of material damage to the regulatory authority should consider an unanticipated loss or damage to a natural annual variation of biological hydrologic balance outside the permit protected water supply impacted by area. indices, as well as establish methods to subsidence. The three years suggested evaluate these potential effects to better Final Paragraph (b): Alternative Water by the commenter is too long a period address regional conditions and Source Information for the user or owner to go without a experience and state-wide water quality permanent water supply. However, we One commenter was concerned about criteria. The final rule in added text in final rule § 817.40(c)(3) proposed paragraph (b)(1), asserting that § 784.19(c)(6)(vii) states that the that gives the regulatory authority the the discussion of alternative water operator must adhere to a bioassessment discretion to grant an extension if the source information should specifically protocol approved by the state or tribal operator has made a good faith effort to include extension of and connection to agency responsible for preparing the meet the deadline, but has been unable public water supply lines. We direct the water quality inventory required under to do so for reasons beyond its control. commenter to the definition of section 305(b) of the Clean Water Act,558 ‘‘replacement of water supply’’ in our Section 784.23: What information must or other scientifically-defensible existing regulations and the preamble I include in plans for monitoring of bioassessment protocol accepted by discussion to the final rule 554 groundwater, surface water, and the agencies responsible for implementing implementing this definition which biological condition of streams during the Clean Water Act. This final rule specifically identifies hooking-up a and after mining? language allows the regulatory authority replacement water supply to a public or As discussed in the preamble to the to consider, if they choose, natural, private water supply system as a cost to proposed rule,556 § 784.23 describes annual variation of biological indices be paid by the permittee. We are not what the operator must include in plans when approving the biological accepting the commenter’s suggestion to for monitoring of groundwater and condition monitoring plan. While incorporate this requirement here as it surface water, and the biological bioassessments will be required, the would be redundant. condition of streams during and after regulatory authority has discretion to Proposed and final (b)(1) require the mining. After evaluating the comments address regional conditions and applicant to demonstrate that alternative that we received exclusive to the experience and state-wide water quality water sources are both ‘‘available and impacts of underground mining, we are criteria. feasible to develop.’’ The same not making and changes to the final rule Section 784.24: What requirements commenter opined that we should not that were not addressed in the apply to the postmining land use? define the terms ‘‘available’’ and preamble discussion of § 780.23. ‘‘feasible.’’ Instead of defining these We have modified this section; terms, we have added paragraph Final Paragraph (c): Biological however, these modifications are (b)(1)(ii) which, for all uses protected Condition Monitoring Plan discussed in final rule § 780.24, which under § 817.40, requires the applicant to This paragraph describes the is the surface mining counterpart to submit, a water supply replacement biological condition monitoring plan. § 784.24. plan that includes construction details, 555 80 FR 44436, 44676–44677 (Jul. 27, 2015). 557 30 U.S.C. 1266(b)(11). 554 60 FR 16672, 16676 (Mar. 31, 1995). 556 80 FR 44436, 44626 (Jul. 27, 2015). 558 33 U.S.C.1315(b).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00166 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93231

Section 784.25: What information must workings in connection with a coal damage to the hydrologic balance I provide for siltation structures, preparation plant be conducted in outside the permit area. impoundments, and refuse piles? accordance with a plan approved under One commenter misconstrued proposed paragraph (e) as allowing the We have modified this section; previous § 784.25, while final § 827.12 regulatory authority to exempt however, these modifications are contains a similar requirement for disposal in accordance with final pneumatic backstowing operations from discussed in final rule § 780.25, which § 784.26. We revised paragraph (a) of compliance with the requirements of is the surface mining counterpart to proposed § 784.26 for consistency with proposed paragraphs (a) through (d). § 784.25. these requirements. Specifically, final According to the commenter, the Section 784.26: What information must § 784.26(a) clarifies that, as provided in regulatory authority cannot make a I provide if I plan to return coal final §§ 816.81(h) and 817.81(h), the determination that backstowing will not processing waste to abandoned permittee may return coal processing have an adverse impact on hydrology underground workings? waste from either surface-mined coal or without the information required by those paragraphs. Final paragraph (d) As proposed,559 we are removing underground-mined coal to abandoned eliminates this ambiguity and clarifies previous § 784.26 and redesignating underground mine workings for disposal only if the regulatory authority that the regulatory authority may only previous § 784.25 as § 784.26 in revised and the Mine Safety and Health waive the monitoring requirements of form. We received several comments on Administration first approve the final paragraph (c), not the information the proposed rule that resulted in disposal plan. We also added a requirements of final paragraphs (a) and revisions to proposed § 784.26. One reference to § 816.41 to final (b). We anticipate that the regulatory commenter urged us to be more § 784.26(b)(15) to accompany the authority will use the information consistent in our implementation of existing reference to final § 817.41. submitted under paragraphs (a) and (b) plain language principles, including Proposed paragraph (b)(2) required in determining whether the applicant application of those principles to that each plan for the return of coal has adequately demonstrated that the provisions for which we proposed no processing waste to abandoned proposed pneumatic backstowing substantive revisions. In response to this underground mine workings include a operation will not adversely impact comment, we revised and restructured description of all chemicals used to surface water, groundwater, or water proposed § 784.26 to improve its clarity process the coal, the quantity of those supplies. and organization, to streamline its chemicals remaining in the coal Section 784.27: What additional contents, and to eliminate redundancies processing waste, and the likely impact permitting requirements apply to and ambiguities. Among other things, those chemicals would have on proposed activities in or through we combined proposed paragraphs (b) groundwater and any persons, aquatic ephemeral streams? and (c) into a single paragraph (c) in the life, or wildlife using or exposed to that final rule because both proposed groundwater. One commenter objected In the preamble to the proposed rule paragraphs (b) and (c) specified content to the addition of this paragraph we discussed the unique characteristics requirements for the plan to return coal because many chemicals used to process of ephemeral streams and the vital processing waste to abandoned coal are nonhazardous or nontoxic. The importance of headwater streams, underground mine workings. commenter also questioned whether including ephemeral streams, in In the preamble to proposed § 784.26, monitoring of nonhazardous chemicals maintaining the ecological health and we invited comment on whether we would be required under this rule. function of streams down gradient of should adopt similar requirements that Final paragraph (b)(2) retains the headwater streams.560 In the preamble would apply to backstowing of coal proposed requirement because to § 701.5 of the final rule, we discussed processing waste in abandoned information about the additives to coal the revisions of the proposed definition underground mines when that activity processing waste is necessary to of ‘‘ephemeral stream.’’ As revised, the occurs in connection with either a properly evaluate the potential of the final definition of ‘‘ephemeral stream’’ surface coal mine or a coal preparation injected material to affect water now includes those conveyances plant regulated under 30 CFR 785.21. resources. The regulatory authority will receiving runoff from snowmelt events See 80 FR 44528 (Jul. 27, 2015). One determine whether the permittee must and that have both a bed-and-bank commenter responded in the monitor groundwater for the presence of configuration and an ordinary high affirmative. Previous § 816.81(f) those chemicals. The commenter further water mark. The final rule also revises required that disposal of coal mine alleged that the requirement to our definition of ‘‘intermittent stream’’ waste in underground mine workings as characterize these chemicals prior to so that it no longer automatically part of a surface mining operation were their injection into underground includes streams draining a watershed to be conducted in accordance with a workings would interfere with of at least one-square mile. This change plan approved under previous § 784.25. regulatory programs governing these may result in a number of streams that Final § 816.81(h), which corresponds to discharges under laws other than were classified as ‘‘intermittent’’ under previous § 816.81(f), contains a similar SMCRA. We do not agree with the the previous regulations being requirement for disposal in accordance commenter because final paragraph categorized as ‘‘ephemeral’’ under the with final § 784.26, which replaces (b)(2) simply requires disclosure of final rule. This is significant because previous § 784.25. In addition, both constituents and analyses of how those permitting requirements for ephemeral previous § 827.12 and the version of chemicals will impact the hydrologic streams differ from those for perennial § 827.12 that we are adopting as part of balance. It does not establish discharge and intermittent streams. this final rule require that coal limits for those chemicals, although the Because of the distinctions between preparation plants comply with final rule would prohibit approval of the ephemeral streams and other types of § 816.81. Therefore, previous § 827.12 permit application if the cumulative streams, we have added § 784.27 to the already required that disposal of coal hydrologic impact assessment final rule to specifically address the mine waste in underground mine determines that disposal of coal permitting requirements for processing waste in underground mine 559 80 FR 44436, 44528 (Jul. 27, 2015). workings would result in material 560 80 FR 44436, 44451–44453 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00167 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93232 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

underground mining activities in or channel configurations that are similar corridor’’ as used in the proposed rule through ephemeral streams. Creating to the premining ephemeral streams and with ‘‘streamside vegetative corridor’’; this distinct section also addresses relatively stable—i.e., the form. It does this change is also incorporated into this commenters’ concerns that it was not require the reestablishment of section. The final rule is based on the difficult to discern when regulations hydrologic or ecological function as current understanding of the applied strictly to ephemeral streams or required for perennial and intermittent contributions made by streamside applied to all streams. streams. Paragraph (b)(2) also allows the vegetative corridors along ephemeral Several commenters asserted that regulatory authority to approve or streams. As discussed above, although a avoiding impacts to ephemeral streams require a drainage pattern or stream- permittee is not required to reconstruct would create an unnecessary and heavy channel configuration that differs from all of the ephemeral streams mined in financial burden that effectively curtails the premining pattern if appropriate to or through, those ephemeral streams longwall mining and will result in ensure stability, prevent or minimize that are reconstructed must include stranded coal reserves. Further, these downcutting of reconstructed stream streamside vegetative corridors commenters contend that protecting channels, promote enhancement of fish constructed in accordance with § 817.56 ephemeral streams exceeds SMCRA and wildlife habitat, accommodate any of the final rule. authority because SMCRA does not anticipated temporary or permanent Section 784.28: What additional contain a provision requiring avoidance increase in surface runoff as a result of permitting requirements apply to of impacts to these streams. We direct mining and reclamation, accommodate proposed surface activities in, through, commenters to our discussion of the the construction of excess spoil fills, or adjacent to perennial or intermittent financial burden of the final rule found coal mine waste piles, or impounding streams? within the accompanying RIA and the structures, replace previously general comments in Part IV, F., above. channelized or severely altered streams Some commenters recommended that However, as discussed within this with a more natural and ecologically § 784.28(b) and (c) and § 817.57 be preamble we are not affording the same sound drainage pattern or configuration revised to require that streams be protections to ephemeral streams as we or reclaim a previously mined area. The protected from dewatering by longwall do for intermittent and perennial drainage pattern and stream-channel and other high-extraction underground streams. As this comment centers on the configuration requirements need only be mining methods, and that, if dewatering impacts from underlying underground similar to the premining patterns and does occur, corrective action should be operations due to subsidence, further configurations. Some differences are taken to restore streamflow and protect discussion about subsidence and allowable. You are not required to the biological integrity of the dewatered material damage to the hydrologic reconstruct all of the ephemeral streams stream. We agree with the commenters balance outside the permit area can be that existed prior to mining to the same that streams should not be permanently found in the discussion of general premining configuration. dewatered by subsidence caused by comments in Part IV, K of this preamble. These requirements ensure underground mining operations; Also, for further discussion on the establishment of a postmining drainage however, we decline to make changes to protections afforded ephemeral streams pattern that is functionally equivalent to § 784.28(b) and (c) and § 817.57 as a versus intermittent and perennial the premining pattern, while affording result. Those sections do not regulate streams, please refer Part IV, O of this the regulatory authority the discretion to subsidence from underground mining preamble. alter the drainage pattern in certain activities; instead, those sections situations that would be better for the address direct surface impacts to Final Paragraph (a): Clean Water Act hydrologic balance. Under paragraph streams from underground mining Requirements (b)(2), the regulatory authority may activities, such as placement of coal Similar to final rule § 780.27(a), if the allow a variance from the requirements refuse within the 100 foot stream buffer proposed permit area includes waters in paragraph (b)(1) for certain express zone. These surface facilities of an subject to the jurisdiction of the Clean purposes: To ensure stability; prevent or underground mine will impact streams Water Act, including some ephemeral minimize downcutting or widening of and lands on the surface in much the streams, the regulatory authority must reconstructed stream channels and same manner as a surface coal mining condition the permit to prohibit control meander migration; promote operation in that areas are disturbed initiation of mining-related activities in enhancement of fish and wildlife directly by activities such as topsoil or affecting waters subject to the habitat; accommodate any anticipated removal, grading of the existing surface jurisdiction of the Clean Water Act temporary or permanent increase in to facilitate construction of buildings before you obtain all necessary surface runoff as a result of mining and and other support facilities, authorizations, certifications, and reclamation; accommodate the construction of ventilation shafts and permits under the Clean Water Act.561 construction of excess spoil fills, coal other entries, coal processing facilities, mine waste refuse piles, or coal mine roads and disposal of coal refuse. Final Paragraph (b): Postmining Surface waste impounding structures; replace a Otherwise known as the disturbed area, Drainage Pattern and Stream-Channel stream that was channelized or the surface facilities of an underground Configuration otherwise severely altered prior to mine are subject to the provisions of Unlike the requirements for submittal of the permit application with section 515(b)(10) of SMCRA,562 which intermittent and perennial streams a more natural, relatively stable, and requires disturbances to the hydrologic addressed in § 784.28, final rule ecologically sound drainage pattern or balance to be minimized. Because paragraph (b) of this section only stream-channel configuration; or surface facilities of underground mines requires the restoration of a postmining reclaim a previously mined area. are permitted as part of the permit area, surface drainage pattern that is similar which is defined at existing § 701.5 as to the premining drainage pattern, Final Paragraph (c): Streamside ‘‘the area of land, indicated on the relatively stable, and in dynamic near- Vegetative Corridors approved map . . . required to be equilibrium and postmining stream- As discussed previously in this covered by the operator’s performance preamble, throughout the final rule we 561 33 U.S.C. 1251 et seq. have replaced the term ‘‘riparian 562 30 U.S.C. 1265 (b)(10).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00168 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93233

bond under subchapter J of this chapter Section 784.29: What information must proposed to remove the previously and which shall include the area of land I include in the surface-water runoff suspended language. upon which the operator proposes to control plan? We received comments concerning conduct surface coal mining and We have modified this section; this proposed nonsubstantive change to reclamation operations under the however, these modifications are previous 30 CFR 784.20(a)(3), which has permit, including all disturbed areas;’’ discussed in final rule § 780.29, which been redesignated as 30 CFR mining activities within this disturbed is the surface mining counterpart to 784.30(a)(3). These commenters area are not subject to the provisions of section 784.29. requested that, instead of removing the 563 section 510(b)(3) where material Section 784.30: When must I prepare a suspended language, we should revise it damage to the hydrologic balance subsidence control plan and what consistent with the Court’s decision. outside the permit area must be information must that plan include? Although we agree with the commenters prevented. (See our general comment that we could correct the deficiency the discussions about this topic at Part IV). Consistent with our revisions to the court identified and require a pre- definition of material damage (in the While it is true that the changes that subsidence survey documenting the context of the subsidence control condition of all noncommercial commenters suggest to these provisions of §§ 784.30 and 817.121), buildings or occupied residential regulations, which relate to surface our final rule has been revised at dwellings and related structures that facilities of underground mines, would § 784.30(a) to require that the pre- might be materially damaged by be inappropriate, it is also true that subsidence survey include mapping of subsidence or have their reasonably SMCRA directs us to take into wetlands, streams, or water bodies and foreseeable value diminished, we consideration the distinct differences a narrative description indicating decline to do so at this time because it between surface and underground whether subsidence could cause is not related to the primary purpose of 564 mining operations. One of these material damage to or diminish the this rule (i.e., protection of streams and distinctions is the impacts from value or reasonably foreseeable use of related environmental values). subsidence. Whereas the impacts from such features. In addition, as explained Substantive changes of the type surface facilities of underground mines in the discussion of general comments recommended by the commenters are within the permit area are similar to the in Part IV.K. of this preamble, we have better addressed in a potential future impacts of surface mines, subsidence revised the requirements for subsidence rulemaking. impacts within the adjacent area of control plans at § 784.30(c) to include underground mines are distinctly wetlands, streams, or water bodies when Section 784.31: What information must different. These impacts to areas describing the anticipated effects of I provide concerning the protection of overlying the underground workings of planned subsidence and measures to be publicly owned parks and historic places? an underground mine (the adjacent area) taken to mitigate or remedy any subsidence-related material damage to that are not otherwise disturbed to such features, whenever the pre- We are finalizing § 784.31 as facilitate mining range from virtually subsidence survey indicates the proposed. We received no comments on indiscernible to a host of adverse presence of wetlands, streams and water this section. impacts and damages to land and water bodies that could be materially damaged resources, water supplies, and Section 784.33: What information must by subsidence. These provisions are I provide concerning the relocation or structures. These impacts can vary due intended to ensure that subsidence use of public roads? to the local geology and mining method related material damages to streams, and (room and pillar versus longwall). other water resources regulated in We are finalizing § 784.33 as Subsidence impacts do not typically accordance with section 516 of proposed. We received no comments on require conventional reclamation, such SMCRA,565 are effectively addressed in this section. as large scale backfilling, grading, the applicants subsidence control plan. Section 784.35: What information must replacement of soil, and revegetation Final Paragraph (a): Pre-Subsidence I provide concerning the minimization because the topsoil and overburden is Survey and disposal of excess spoil? not removed to access the coal. Yet, subsidence damages must be repaired in When previous 30 CFR 784.20(a)(3) We have modified this section; accordance with the subsidence was issued in 1995, it required a pre- however, these modifications are provisions of SMCRA and the existing subsidence survey of the condition of all discussed in final rule § 780.35, which subsidence control regulations, which noncommercial buildings or occupied is the surface mining counterpart to are found at §§ 784.20 (probable residential dwellings and related § 784.35. hydrologic consequences), 784.22 structures that might be materially Section 784.37: What information must (hydrologic reclamation plan), and damaged by subsidence or have their reasonably foreseeable value diminished I provide concerning access and haul 817.121 (performance standards for the by subsidence, within the area roads? repair of lands and waters damaged by encompassed by the angle of draw. 60 subsidence). In order to clarify that FR 16729–16730, 16748 (Mar. 31, 1995). We have modified this section; these provisions apply to streams, This provision, however, was vacated however, these modifications are wetlands, and other bodies of water on by a court and has been suspended discussed in final rule § 780.37, which the surface that may be impacted by since December 22, 1999 (64 FR 71652– is the surface mining counterpart to subsidence, we have made changes to 71653). See also 80 FR 44528 (citing § 784.37. these regulations. These specific Nat’l Mining Ass’n v. Babbitt, 173 F.3d Section 784.38: What information must changes are discussed in greater detail 906 (D.C. Cir. 1999)). In an effort to I provide concerning support facilities? at the preamble to those provisions. remove regulations that had been suspended for over 15 years, we We are finalizing § 784.38 as 563 30 U.S.C. 1260(b)(3). proposed. We received no comments on 564 30 U.S.C. 1266(a). 565 30 U.S.C. 1266. this section.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00169 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93234 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Section 784.40: May I submit permit 515(c)(4)(D) of SMCRA in the manner that would damage natural watercourses application information in increments suggested by the commenters, it would within the permit area if the applicant as mining progresses? effectively ban mountaintop removal can demonstrate that the damage will be Please refer to the preamble for mining operations because streams fully offset by implementation of the could neither be filled with excess spoil fish and wildlife enhancement measures § 783.26 for a discussion of this part of 573 the final rule and the comments that led nor mined through to recover the proposed under section 780.16. We to its adoption. underlying coal. This is so, because, by received two comments on this topic, definition, mountaintop removal mining one supporting the alternative and one Previous § 784.200: Interpretative Rules operations remove all of the overburden opposing it. Related to General Performance overlying the coal beneath a mountain The commenter opposing the Standards or ridgetop with the resultant creation of alternate approach opined that there is We have removed and reserved a level plateau or gently rolling contour no good evidence that fish and wildlife § 784.200 for the reasons discussed in in accordance with section 515(c)(2) of enhancement measures can offset the 569 the preamble to the proposed rule.566 the Act, necessarily damaging some damage caused by mining through streams or parts of streams in the streams. The commenter further alleged J. Part 785—Requirements for Permits process. Such a ban, however, would that ‘‘numerous studies have for Special Categories of Mining effectively nullify section 515(c)(2) of demonstrated a lack of success in fully 570 restoring the biological condition of Section 785.10: Information Collection the Act, which explicitly allows such operations. A ban would also be streams once they have been damaged Section 785.10 pertains to compliance inconsistent with SMCRA and by coal mining or other activities, even with the Paperwork Reduction Act, 44 effectively nullify section when their physical conditions have U.S.C. 3501, et seq. We are adding 515(c)(4)(E),571 which specifically been restored.’’ The commenter cited contact information for persons who provides that excess spoil not retained several references allegedly supporting wish to comment on these aspects of on the mountaintop must be placed in this assertion. The commenter in part 785. accordance with section 515(b)(22).572 support of the alternate approach Section 785.14: What special provisions Section 515(b)(22)(E), in turn, allows the recommended that we adopt it within apply to mountaintop removal mining placement of this spoil in ‘‘springs, the final rule because it provides flexibility and allows a permittee may operations? natural water courses or wet weather seeps’’ as long as ‘‘lateral drains are either to cause no net damage or allows This section implements section constructed from the wet areas to the for offsets. 515(c) of SMCRA,567 which contains main underdrains in such a manner that As discussed above, we decline to special performance standards related to filtration of the water into the spoil pile adopt this approach in the final rule. In mountaintop removal operations. will be prevented.’’ section 780.16 of the final rule, Section 701.5 of this rule generally At paragraph (b)(9), we proposed to however, we allow fish and wildlife defines mountaintop removal operations reconcile these potentially conflicting enhancement measures to offset other as ‘‘surface mining activities in which statutory sections by requiring the permanent impacts to wetlands and to the mining operation extracts an entire applicant to demonstrate that the intermittent and perennial streams, such coal seam or seams running through the proposed mountaintop removal mining as those resulting from the placement of upper fraction of a mountain, ridge, or operation has been designed to meet excess spoil, provided that the scope of hill . . . by removing substantially all three criteria to ensure that natural the enhancement measures is overburden above the coal seam and watercourses mined by a mountaintop commensurate with the magnitude of using that overburden to create a level removal mining operation are affected the long-term adverse impacts of the plateau or a gently rolling contour, with no more than natural watercourses proposed operation. The proposed no highwalls remaining, that is capable mined by other surface mining methods permanent adverse impacts to wetlands of supporting one or more of the and restored to approximate original and streams cannot be approved if the postmining land uses . . . .’’ contour under our other regulations. We regulatory authority determines that the The majority of commenters are adopting this approach as proposed, proposed enhancement measures will expressed concern about how we with a few changes discussed below, not meet this standard because of a lack proposed to give effect to section because, by explaining what damage to of demonstrated ability to actually 515(c)(4)(D) of SMCRA.568 Specifically, natural watercourses means in the achieve the necessary commensurate many commenters requested that we context of mountaintop removal mining enhancement. Because the final rule specifically require mountaintop operations, it reconciles the potentially requires the use of fish and wildlife removal operations to ensure that ‘‘no conflicting requirements of SMCRA and enhancements to offset specific damage damage will be done to natural gives effect to sections 515(c)(2), to streams, we decided that we do not watercourses’’ as required by that 515(c)(4)(D), and 515(c)(4)(E) of need to adopt another similar provision section. These commenters alleged that SMCRA. with regard to mountaintop removal our proposed rule did not go far enough Although we are generally adopting mining operations. and requested that the final rule contain this section as proposed, in the Final Paragraph (b): Application and an absolute prohibition on mining preamble to the proposed rule, we Approval Requirements activities, including forbidding excess invited comment on whether we should spoil fills and mining through streams, adopt a different approach to As proposed, final paragraph (b)(9) because these could result in damage to reconciling these provisions; i.e., a rule requires that, for mountaintop removal a natural watercourse. that would allow the approval of mining operations that seek a variance We decline to adopt this suggestion. mountaintop removal mining operations from approximate original contour If we were to interpret section restoration requirements, the applicant 569 Id. demonstrate that the proposed operation 566 80 FR 44436, 44528 (Jul. 27, 2015). 570 30 U.S.C. 1265(c)(2). will not damage natural watercourses 567 30 U.S.C. 1265(c). 571 30 U.S.C. 1265(c)(4)(E). 568 30 U.S.C. 1265(c)(4)(D). 572 30 U.S.C. 1265(b)(22). 573 80 FR 44436, 44530 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00170 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93235

within the permit or adjacent areas. removal mining operations can result in (b)(9)(iv)(A) addresses surface flow and Further, the paragraph specifies at least the discharge of increased levels of paragraph (b)(9)(iv)(B) addresses four criteria—final paragraphs (b)(9)(i) pollutants to surface water or groundwater. Final paragraph through (iv)—that must be met for a groundwater; changes in peak flows (b)(9)(iv)(A) also differs from its regulatory authority to determine that from the permit area that would cause counterpart in the proposed rule in that no damage will occur to natural an increase in flooding; and increased we removed references to ‘‘reasonably watercourses. Together, these four flow volumes that could adversely affect foreseeable uses’’ of surface water and criteria ensure that a mountaintop actual uses of surface water, designated groundwater. The final rule no longer removal mining operation will not uses of surface water under section includes the term ‘‘reasonably damage watercourses any more than a 303(c) of the Clean Water Act,575 or foreseeable uses’’ in contexts other than surface mining operation without an premining uses of groundwater outside protection of reasonably foreseeable approximate original contour variance. the permit area. The criteria in final surface land uses from the adverse In essence, they define ‘‘damage’’ in the paragraph (b)(9) are designed to prevent impacts of subsidence. Our reasons for context of section 515(c)(4)(D) of adverse impacts to surface water and deletion of this term are twofold. First, SMCRA. groundwater resources within the the term appears in SMCRA only in While it is true that some commenters permit and adjacent areas of a section 516(b)(1), which requires that indicated that the approach taken in mountaintop removal mining operation operators of underground mines adopt paragraph (b)(9) is not restrictive that would be greater than if the area subsidence control measures to, among enough, it is also true that our proposed was restored to approximate original other things, maintain the value and and final regulations address this issue contour. reasonably foreseeable use of surface and correct several deficiencies in our To be consistent with SMCRA and lands. Section 717(b) of SMCRA previous regulations, which did not other sections of the final rule, we establishes water supply replacement require prevention of damage to natural added two criteria to the three included requirements for surface mines, watercourses above the lowest coal in the proposed rule. The first criterion including mountaintop removal mining seam mined. First, we removed the we added is final paragraph (b)(9)(ii), operations. The regulations limitation to watercourses below the and was also recommended by a implementing section 717(b) of lowest coal seam mined because the commenter. That paragraph specifies SMCRA 576 are found at 30 CFR 816.40. underlying statutory provision at that the regulatory authority must also Second, we generally agree with the section 515(c)(4)(D) of SMCRA does not consider the overall additional adverse numerous commenters who opposed contain such a limitation. The applicant impacts to the aquatic and terrestrial inclusion of the term ‘‘reasonably now must demonstrate that the ecology that could result from granting foreseeable uses’’ on the basis that it is proposed operation will not damage a variance to approximate original too subjective, difficult to determine, natural watercourses within the contour restoration requirements. We and open to widely varying proposed permit and adjacent areas, also added final paragraph (b)(9)(v), interpretations, which could result in regardless of where the watercourse is which allows the regulatory authority to inconsistent application throughout the located. Second, even for watercourses require additional demonstrations as coalfields. below the lowest coal seam mined, the necessary to determine that no damage We also revised proposed paragraph previous regulations did not contain any to natural watercourses will occur. We (b)(9)(iv)(A) to track more closely the criteria for determining whether an agree with the commenter that language in our final definition of operation is likely to cause damage. To suggested these additional requirements ‘‘material damage to the hydrologic correct this deficiency, the proposed because they should provide adequate balance outside the permit area’’ at and final rules contain criteria that minimum standards that will allow the section 701.5 about designated uses of provide protection from the most likely regulatory authority to determine surface water under the Clean Water adverse impacts that could occur within whether damage to natural watercourses Act. Finally, in response to comments the watershed of the natural will in fact be prevented. from the U.S. Environmental Protection watercourses on the permit and adjacent In addition to these new criteria, we Agency, we replaced the term ‘‘existing’’ areas. have revised proposed paragraph when referring to uses of surface water While we discussed overall adverse (b)(9)(iii) so that final paragraph with ‘‘any premining use of surface impacts to aquatic and terrestrial (b)(9)(iii) refers to changes in the size or water outside the permit area.’’ This ecology from surface mining operations frequency of peak flows that would change is intended to avoid any in the preamble to the proposed rule,574 cause an increase in ‘‘flooding’’ rather confusion or conflict between the terms mountaintop removal mining operations than an increase in ‘‘damage from we use in our regulations and the term might create additional adverse impacts flooding’’ as in the proposed rule. We ‘‘existing uses’’ under the regulations to streams because they often made this change because determination implementing the Clean Water Act. completely remove headwater streams of whether there would be an increase Commenters also expressed concern within the mined-out area, extensively in flooding is easier and less speculative that our proposal to remove the ‘‘no restructure the surface configuration than a determination of whether there damage to natural watercourses’’ and drainage patterns, bury additional would be an increase in damage from provision from the performance stream segments below the mined-out flooding. Under the latter standard, the standards in section 824.11 and make it area with significant quantities of excess applicant would have to project future a permitting requirement does not spoil that is not being used to restore the development downstream of the comport with section 515 of SMCRA. approximate original contour, and proposed permit area, which could be We agree that this requirement should remove expansive areas of native, difficult and conjectural. also be a performance standard, so the typically forested, vegetation and We divided proposed paragraph final rule restores that requirement to replace it with an intensely modified, (b)(9)(iii), now final paragraph (b)(9)(iv), § 824.11, with revisions to refer to the often pasture-like landscape. These into an introductory paragraph and two new permitting provisions in drastic disturbances from mountaintop separate subparagraphs. Paragraph § 785.14(b)(9).

574 80 FR 44436, 44439–44447 (Jul. 27, 2015). 575 33 U.S.C. 1313(c). 576 30 U.S.C. 717(b).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00171 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93236 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

We received comments on proposed the site to its approximate original from the adverse impacts of subsidence. paragraph (b)(11), which would have contour and revegetating the regraded Our reasons for deletion of this term are required posting of a bond amount land in the event that the approved twofold. First, the term appears in sufficient to restore the site of a postmining land use is not SMCRA only in section 516(b)(1), which mountaintop removal mining operation implemented. requires that operators of underground to approximate original contour if the mines adopt subsidence control Final Paragraph (c): Additional approved postmining land use has not measures to, among other things, Requirements for Permit Issuance been implemented before expiration of maintain the value and reasonably the revegetation responsibility period One commenter expressed concern foreseeable use of surface lands. Second, under § 816.115. Commenters thought that the proposed paragraph (c) would numerous commenters opposed this requirement to be illogical because draw attention to mountaintop removal inclusion of the term ‘‘reasonably mountaintop removal mining operations mining operations and would subject foreseeable uses’’ on the basis that it is are designed and approved to facilitate them to increased scrutiny because they too subjective, difficult to determine, higher and better postmining land uses, would be more readily identifiable by and open to widely varying which the Act limits to industrial, outside interest groups. The existing interpretations, which could result in commercial, residential, public facility regulations already require that inconsistent application throughout the (including recreational facilities) and mountaintop removal mining operations coalfields. agricultural postmining land uses). be clearly identified as such. The We have also revised paragraph Commenters were concerned that, with regulations finalized today merely add a (a)(9)(iii)(A) to track more closely the the exception of agricultural and some requirement that, as proposed, the language in our definition of ‘‘material recreational postmining land uses, permit identify the acreage and location damage to the hydrologic balance revegetation responsibility periods are of the lands within the permit area upon outside the permit area’’ at § 701.5 inconsistent with implementation and which mountaintop removal mining concerning designated uses of surface attainment of the higher and better land operations will occur. We are adding water under the Clean Water Act. uses proscribed by the other potential this requirement because some permits Finally, in response to comments from uses. combine mountaintop removal mining the U.S. Environmental Protection In response, we note that the intent of operations with other types of mining, Agency, we have replaced the term this provision is to ensure that such as area or contour mining. Because ‘‘existing’’ when referring to uses of mountaintop removal mining operations we are only adding additional detail to surface water with ‘‘any actual use of are approved only for legitimate the existing identification already surface water outside the permit area immediate postmining land use needs. required, we do not agree that this before mining.’’ This change is intended We find the 5-year revegetation additional information will subject the to avoid any confusion or conflict responsibility period provides sufficient permit to additional scrutiny by outside between the terms we use in our time for initiation of implementation of interests. Furthermore, this type of regulations and the term ‘‘existing uses’’ the approved postmining land use. information is in the public interest and under the regulations implementing the The preamble to proposed paragraph only makes clear the location and the Clean Water Act. (b)(11) stated that we were considering extent of the lands to which the As a result of a comment on a similar an alternative to requiring that the approximate original contour variance proposed rule provision at amount of bond initially posted include applies within the permit. § 780.24(a)(6)(ii), we have deleted an amount equal to the cost of restoring language in proposed paragraph the area to the approximate original Section 785.16: What special provisions (a)(10)(iii) of this section, which would contour in the event the proposed land apply to proposed variances from have prohibited the surface owner from use is not implemented. That alternative approximate original contour restoration receiving any compensation for would prohibit release of any bond requirements for steep-slope mining? requesting a variance from approximate amount for the entire permit until the As discussed in the preamble to the original contour. As discussed above, approved postmining land use has been proposed rule, we proposed to modify that comment stated that the proposed implemented. Upon further section 785.16.577 After evaluating the rule would not be effective in consideration, we decided to adopt this comments that we received, we are addressing the core issue, which is the alternative as final paragraph (c)(2). We adopting the section as proposed, with failure of regulatory authorities to make recognize that requiring that the amount the following explanations and an independent and fact-based of bond equal to the cost of restoring the exceptions. determination that the proposed change area to the approximate original contour in land use meets statutory may be unduly burdensome and Final Paragraph (a): Application and requirements. This concern is germane inconsistent with the principle under Approval Requirements here as well. We revised the final rule section 509 of SMCRA that the bond We divided proposed paragraph to require a copy of the landowner amount should be based upon the cost (a)(9)(iii) into two separate paragraphs. request. of completing the approved reclamation Paragraph (A) addresses surface flow In connection with paragraph (a)(13) plan in the event of default. Therefore, and paragraph (B) addresses ground of the proposed rule, we invited final rule paragraph (c)(2) instead water. Final paragraph (a)(9)(iii)(A) comment on whether we should requires that the permit include a differs from the language of the prohibit release of any bond amount for condition prohibiting the release of any proposed rule in that we have removed the entire permit area until the part of the bond posted for the permit references to reasonably foreseeable postmining land use for which the until substantial implementation of the uses of surface water and groundwater. approximate original contour variance approved postmining land use is The final rule no longer includes the was granted has been implemented.578 underway. The rule specifies that the term ‘‘reasonably foreseeable uses’’ in In response to this invitation for condition must provide that the contexts other than protection of comment, one commenter opined that prohibition does not apply to any reasonably foreseeable surface land uses bond should be retained and released as portion of the bond that is in excess of an amount equal to the cost of regrading 577 80 FR 44436, 44530–32 (Jul. 27, 2015). 578 80 FR 44436, 44531 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00172 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93237

it is currently done and that phased precipitation. It is during this time, after Final Paragraph (b): Additional release of bonds should be allowed the area has been backfilled and graded, Requirements for Permit Issuance when those aspects of performance and after vegetation has been For clarity, we decided to split responsibility are satisfied. Another established, that we expect the land use proposed paragraph (b) into three commenter suggested that bond release to actually be implemented. Five to ten separate paragraphs (b) through (d). We on approximate original contour years is a more than adequate time to are adopting paragraph (b)(1) as variances should be based on the actually implement the land use, and proposed. We are adopting proposed restoration of capability for the indeed that use may often be paragraph (a)(13) in revised form as postmining land use and not implemented in a shorter time. paragraph (b)(2), as discussed above, implementation of that use because the We recognize that requiring that the because the provisions of proposed permittee frequently has no control over paragraph (a)(13) concern bond release, amount of bond initially posted include implementation. Another commenter not the permit application, and thus are an amount equal to the cost of restoring indicated that the approach suggested in a better fit in paragraph (b). We are the proposed rule is illogical because the variance area to the approximate adopting proposed paragraphs (b)(2) and most of the postmining land uses original contour in the event the (3) as final paragraphs (c)(1) and (2) involved in the approximate original proposed land use is not implemented without change. We are adopting contour variance would be higher or within the revegetation responsibility proposed paragraph (b)(4) as final better uses. Another commenter period, as we proposed, may be unduly paragraph (d) without change. Finally, recommended that, for both burdensome and inconsistent with the we are not adopting proposed paragraph mountaintop removal mining operations principle under section 509 of SMCRA (b)(5) because that paragraph is and steep slope variances, no bond be that the bond amount should be based subsumed within § 773.15(h), which released until the postmining land use upon the cost of completing the requires a finding by the regulatory has been successfully achieved on the approved reclamation plan in the event authority that the permit applicant has area subject to the approximate original of default. Therefore, the final rule satisfied the requirements of Part 785. contour variance or exception. instead requires that the permit include We received a comment about Section 785.25: What special provisions paragraph (a)(13) of § 785.16 similar to a condition prohibiting the release of apply to proposed operations on lands a comment we received in response to any part of the bond posted for the eligible for remining? permit until substantial implementation proposed § 785.14(b)(11) about the We received two comments on our of the approved postmining land use is requirement to post a bond sufficient to proposed revisions 579 to § 785.25. One underway. The rule specifies that the restore approximate original contour in commenter supported proposed areas that have been previously granted condition must provide that the § 785.25 by emphasizing the value of variances if the approved postmining prohibition does not apply to any remining in improving the health of land use has not been implemented portion of the bond that is in excess of streams and the aquatic community. before expiration of the revegetation an amount equal to the cost of regrading The other commenter questioned the responsibility period under § 816.115. the site to its approximate original value of remining sites that currently Commenters thought this requirement to contour and revegetating the regraded support productive forestland as a result be illogical because these variances are land in the event that the approved of natural revegetation over time. granted in order to facilitate higher and postmining land use is not According to the commenter, remining better postmining land uses. implemented. those sites could be more Commenters were concerned that, with Regarding phased bond release, the environmentally disruptive than the exception of agricultural and some bond for any area subject to an environmentally beneficial. recreational postmining land uses, Section 701(34) of SMCRA 580 and 30 approximate original contour variance, revegetation responsibility periods are CFR 701.5 define ‘‘lands eligible for and therefore not restored to inconsistent with implementation and remining’’ as those lands that would attainment of the higher and better land approximate original contour, cannot be otherwise be eligible for abandoned uses proscribed by the other potential released using the same process as for mine land reclamation program uses. conventional reclamation, because this expenditures under section 404 or In response, we note that the intent of process would not result in retention of section 402(g)(4) of SMCRA.581’’ In proposed paragraph (a)(13), which we bond that can be used to return the land relevant part, those sections of SMCRA are adopting in revised form as final to its approximate original contour in generally require that the land be paragraph (b)(2), was to ensure that the the event the approved postmining land affected by coal mining, that the land be permittee made firm arrangements for use is never implemented. With regard left in an inadequate reclamation status implementation of the approved to employing land use capability as the before August 3, 1977, and that there be postmining land use and did not seek a standard for final release rather than no continuing reclamation variance just to avoid the higher cost of actual implementation of the approved responsibility under state or federal restoring the approximate original use, that standard does not protect laws. As a matter of law, permit contour or to satisfy landowner desires. against the needless drastic alteration of applicants may avail themselves of the As discussed in the environmental the landscape and associated benefits available to operations on lands impact statement for this rule, the environmental impacts. As discussed in eligible for remining if the proposed proposed land uses used to justify the preamble to section 785.14, these permit area meets these criteria. Benefits approximate original contour variances are limited to a reduced revegetation have in some cases never materialized. provisions are intended to prevent abuses that have resulted in radical responsibility period, reduced Under our existing rules, land within monitoring requirements, and departures from conventional the approximate original contour qualification for the permit eligibility variance area must be revegetated and is reclamation and to ensure that lands not subject to a period of responsibility, actually used in accordance with the 579 80 FR 44436, 44529–30 (Jul. 27, 2015). which usually varies from 5 to 10 years approved variance are restored to 580 30 U.S.C. 1291(34). depending upon average annual approximate original contour. 581 30 U.S.C. 1234 and 1232(g)(4).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00173 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93238 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

provisions of section 773.13 if must require in the permit that adequate 509(b) 582 or an alternative bonding unanticipated events or conditions bond and financial assurance coverage system or self-bond under section occur. be in effect at all times. It also specifies 509(c).583 The alternative bonding system requirements are much more K. Part 800—Performance Bond, that, except as provided in § 800.30(b), flexible and better-suited to financial Financial Assurance, and Insurance operating without adequate bond or assurance instruments than are the Requirements for Surface Coal Mining financial assurance is a violation of both collateral bond requirements, as and Reclamation Operations the regulations and the terms and conditions of the permit. We revised the discussed in the preamble to our Section 800.1: Scope and Purpose latter provision from the proposed rule, approval of the financial assurance We are finalizing section 800.1 as which erroneously referred to a provisions in the Tennessee federal 584 proposed. We received no comments on violation of a condition of the rules. program. this section. Conditions are established in the One commenter expressed the permit, not the rules. opinion that, because annuities Section 800.4: Regulatory Authority typically make payments at fixed Responsibilities Section 800.5: Definitions intervals, an annuity, by itself, likely Section 800.4 describes a regulatory could not guarantee that funds always Section 800.5 contains definitions of would be available immediately when authority’s responsibilities with respect certain terms that appear in Part 800. to bonding and liability insurance needed to continue long-term treatment We are adopting § 800.5 as proposed, requirements for surface coal mining of a discharge, particularly if with the exception of minor editorial operations. As proposed, we added a unexpected repair or replacement work revisions to the definitions of ‘‘collateral reference to financial assurances to must be performed without delay to bond’’ and ‘‘surety bond’’ and one paragraphs (a) and (b) of § 800.4, keep the treatment system operational. substantive revision to the definition of consistent with our revision of part 800 For that reason, the commenter to include criteria for financial ‘‘financial assurance.’’ Some suggested that we revise our rules to assurances for long-term treatment of commenters found the proposed rule allow use of an annuity only in discharges and to clarify which confusing because various provisions of combination with another mechanism provisions of part 800 apply to financial proposed part 800 and the preambles to that is able to cover all potential assurances. Final paragraphs (a) and (b) those provisions were inconsistent as to variations in treatment expenses. We require that the regulatory authority whether a financial assurance was a did not revise our rules in the manner prescribe and furnish forms for type of alternative bonding system or a suggested by the commenter because we performance bonds and financial funding mechanism distinct from the do not want to foreclose the possibility assurances and prescribe terms and alternative bonding systems discussed that an annuity could be structured to conditions for performance bonds, in § 800.9. One commenter urged us to address the situation that the financial assurances, and liability revise the definition to clearly specify commenter describes. However, we insurance policies. that financial assurances are a type of revised the proposed definition of Similarly, as proposed, we added a alternative bonding system. We agree. ‘‘financial assurance’’ to clarify that a sentence to paragraph (c) to specify that Therefore, the final definition of financial assurance is a type of the regulatory authority must determine ‘‘financial assurance’’ describes a alternative bonding system, which the amount of financial assurance financial assurance as a type of means that it must meet the criteria of required under § 800.18 and adjust that alternative bonding system. This change final § 800.9(a). Section 800.9(a)(1) amount as needed. In response to a from the proposed rule is consistent provides that the alternative bonding comment, final paragraph (c) includes a with the preamble to our approval of the system must assure that the regulatory requirement that the regulatory financial assurance provisions in the authority will have available sufficient authority also monitor trust Tennessee federal program. See 72 FR money to complete the reclamation plan performance under a financial 9616, 9618–9619 (Mar. 2, 2007). It also for any areas which may be in default assurance. is consistent with the preamble to a at any time. Furthermore, final § 800.18 Final paragraph (d) provides that the decision notice for a Pennsylvania establishes other criteria for financial regulatory authority may accept a self- regulatory program amendment that assurances to ensure the availability of bond if the requirements of § 800.23 and included the use of treatment trusts, the funds needed for long-term any additional requirements in the which correspond to financial treatment of discharges. regulatory program are met. Final assurances. We approved the use of One commenter requested that we paragraph (d) differs from the proposed those trusts as a type of alternative clarify whether existing treatment trusts rule in that it does not specify that the bonding system and responded would automatically be reclassified as permittee itself must meet self-bonding favorably to a comment that treatment financial assurances upon publication of requirements. We made this change trusts could be approved only as an this final rule. This rule is not because § 800.23 allows for third-party alternative bonding system. See 75 FR retroactive, so it will not operate as an guarantors. For clarity, we also added a 48526, 48533–48535, 48536, 48537– automatic reclassification of existing sentence reminding readers that state 48541 (Aug. 10, 2010). treatment trusts as financial assurances. regulatory programs need not include However, nothing in this rule would One commenter recommended that provisions authorizing the use of self- prohibit the regulatory authority from financial assurances not be subject to bonds. using the criteria in this rule to the alternative bonding system We adopted final paragraphs (e) and reevaluate the adequacy of existing requirements of § 800.9 and that we (f), which pertain to regulatory authority trusts. instead classify them as a hybrid of an responsibilities for bond release and Finally, a commenter recommended alternative bonding system and a bond forfeiture, as proposed. We that we use the term ‘‘trust’’ in place of received no comments on those collateral bond. We do not agree. Under SMCRA, each performance bond paragraphs. 582 30 U.S.C. 1259(b). As proposed, final paragraph (g) instrument must be either a surety bond 583 30 U.S.C. 1259(c). provides that the regulatory authority or collateral bond under section 584 72 FR 9616, 9618–9619 (Mar. 2, 2007).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00174 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93239

‘‘trust fund’’ because the trust fund is supported the proposed prohibition. hydrologic function have been restored only a part of a trust. We made the Other commenters opposed proposed primarily means waiting for the recommended change in the definition paragraph (d)(1) for reasons that streamside vegetation to mature and of ‘‘financial assurance.’’ included an alleged lack of justification, provide nutrients, habitat, and thermal alleged inappropriate meddling in, and regulation to the stream. We agree with Section 800.9: What requirements apply that comment, with the exception of to alternative bonding systems? unnecessary disruption of, existing alternative bonding systems, and a situations in which water quality Section 800.9 sets forth the desire to take advantage of the added problems resulting from the mining requirements for creating an alternative security of an alternative bonding operation exist. In those cases, the bonding system, such as a bond pool or system. One commenter noted that the permittee would be required to take long-term treatment trust. As proposed, preamble to proposed paragraph (d)(1) measures to correct the water quality final paragraph (a) provides that we may provided little information on the time problem under other provisions of the approve an alternative bonding system needed to restore the ecological function final rule. Failure to correct the source as part of a state or federal regulatory of a stream and did not explain the of any water quality issue would result program if the alternative will assure statement that the time needed to in the need for long-term treatment, in that the regulatory authority will have restore that function makes coverage of which case final paragraph (d)(2) would available sufficient money to complete that obligation by an alternative bonding prohibit posting of a self-bond. the reclamation plan for any areas system inappropriate. The preamble to Thus, after further consideration, we which may be in default at any time, the proposed rule states that an anticipate that the direct cost of except as provided in paragraphs (c) and alternative bonding system should not restoring the ecological function of a (d), and if the alternative provides a be allowed to cover restoration of the stream will be minimal, which means substantial economic incentive for the ecological function of streams because that the financial exposure of the permittee to comply with all that cost was not anticipated when the alternative bonding system as a result of reclamation provisions. alternative bonding system was allowing use of self-bonding to We revised and reorganized proposed established. The commenter did not guarantee restoration of ecological paragraph (b) to improve clarity and find this argument compelling because function is minimal. In addition, an adherence to plain language principles the same rationale would apply to other alternative bonding system is a and to avoid creating the impression stream restoration costs that could be permanent entity, so the time required that financial assurances need not covered by alternative bonding systems to document restoration of ecological necessarily comply with final section under the proposed rule. Similarly, the function is not an issue. Therefore, we 800.18, which sets forth special commenter found unpersuasive the find that allowing an alternative provisions that apply to all financial bonding system to provide coverage for guarantees (including financial statement in the preamble that proposed paragraph (d)(1) was justified because restoration of the ecological function of assurances) for long-term treatment of a stream poses little risk to the viability discharges. Specifically, final paragraph restoration of the ecological function of a stream is the responsibility of the or financial health of the system. (b)(1) provides that the alternative Proposed paragraph (d)(2)(i) entity doing the mining, not the bonding system will apply in lieu of the prohibited alternative bonding systems alternative bonding system. The requirements of §§ 800.12 through from covering long-term treatment of commenter noted that, under SMCRA, 800.23 ‘‘with the exception of those discharges that come into existence after the permittee always is responsible for provisions of § 800.18 of this part that the effective date of this final rule reclamation obligations, regardless of apply to financial assurances,’’ to the unless, upon discovery of the discharge, extent specified in the regulatory the nature of those obligations. Overall, the permittee makes a cash contribution program provisions establishing the the commenter argued that the proposed to the alternative bonding system in an alternative bonding system and the prohibition had no basis because there amount that the regulatory authority terms under which we approved the are no data to support the conclusion determines would be sufficient to cover system. As proposed, final paragraph that alternative bonding systems cannot all future treatment costs. The proposed (b)(2) provides that the alternative satisfactorily cover the obligation to rule also required that the contribution bonding system must include restore the ecological function of be maintained in a separate account appropriate conforming modifications to streams. available only for treatment of the the bond release provisions of §§ 800.40 After considering the arguments discharge for which the contribution through 800.44 and the bond forfeiture raised by commenters, we decided not was made. provisions of final § 800.50. to adopt proposed paragraph (d)(1). Proposed paragraph (d)(2)(ii) Final paragraph (c) provides that an Thus, alternative bonding systems may specified that long-term treatment of alternative bonding system may be provide coverage for restoration of the discharges that came into existence structured to include only certain ecological function of a stream unless before the effective date of the rule phases of mining and reclamation under the state amends the regulations would continue to be covered by the § 800.42, provided that the other phases governing its alternative bonding system alternative bonding system unless the of mining and reclamation are covered to provide otherwise. Once state amends its alternative bonding by one of the types of bond listed in reconstruction of the form of the stream system to provide otherwise. However, § 800.12. Final paragraph (c) differs and restoration of hydrologic function proposed paragraph (d)(2)(ii) also from proposed paragraph (c) in that we are achieved, restoration of ecological required that the permittee make a replaced ‘‘forms’’ with ‘‘types’’ for function likely will involve few, if any, contribution to the alternative bonding consistency with revisions to § 800.12. discrete activities or expenditures, with system in an amount sufficient to cover Proposed paragraph (d)(1) would have the possible exception of transplanting all costs that the alternative bonding prohibited alternative bonding systems macroinvertebrates or fish to the re- system will incur to treat the discharge from covering restoration of the established stream. As one commenter in perpetuity. ecological function of a perennial or on the proposed rule observed, Several commenters alleged that intermittent stream through which a restoration of the ecological function of proposed paragraph (d)(2) was permittee mines. One commenter a stream for which the form and confusing because, on one hand, it

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00175 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93240 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

prohibited alternative bonding systems takes effect and any existing (i.e., pre- bonding system (other than a financial from covering long-term treatment of program amendment) coverage under assurance) that we approved as part of discharges, while, on the other hand, it the alternative bonding system is a regulatory program before the effective listed financial assurances, which are a replaced by a sufficient site-specific date of this final rule to specify that any type of alternative bonding system, as financial guarantee or contribution. permittee responsible for an existing an acceptable method of guaranteeing • The alternative bonding system discharge requiring long-term treatment long-term treatment. In response, we remains liable for the cost of treating the must provide a cash contribution to the revised proposed paragraph (d)(2), discharge for as long as necessary if the alternative bonding system to cover which is now paragraph (d)(1) of the regulatory authority forfeits the anticipated future treatment costs if the final rule, to specify that financial permittee’s bond before replacement of permittee elects to retain coverage of assurances under section 800.18 may be coverage occurs. discharge treatment under the used for long-term treatment of • The alternative bonding system alternative bonding system. Final discharges, thus clarifying that the remains liable for the amount of the paragraph (d)(2)(i) differs from proposed limitations in final paragraph (d)(1) on shortfall if the permittee’s bond, paragraphs (d)(2)(i) and (ii) in that it coverage of long-term treatment of financial assurance, or cash contribution would require use of the state program discharges by alternative bonding to the alternative bonding system proves amendment process under 30 CFR systems do not apply to financial adequate to cover only part of the cost 732.17 to establish the requirement that assurances. of treating the discharge. participants in alternative bonding One commenter expressed concern We extensively revised proposed systems make a cash contribution to the that proposed paragraph (d)(2) did not paragraph (d)(2) to address the issues alternative bonding system to cover address either sites for which forfeiture that the commenter identified. long-term treatment costs. The proposed occurs before the applicable regulatory Paragraph (d)(1) of the final rule that we rule would have bypassed the state program is amended to implement the are publishing today, which is the program amendment process and final rule or sites for which bond primary successor to proposed imposed this requirement on all forfeiture occurs after the effective date paragraph (d)(2), applies uniform alternative bonding systems as of the of the program amendment but before effective date of the final rule. We agree requirements to all discharges regardless the permittee makes a contribution to with the commenter that use of the state of whether the discharge was discovered the alternative bonding system fully program amendment process is more before or after the effective date of this covering the estimated costs of long- consistent with the principle of state final rule. Final paragraph (d)(1) term treatment or replaces the primacy and part 732 of our regulations. alternative bonding system coverage provides that a discharge requiring long- Final paragraph (d)(2)(ii) provides with a collateral bond or financial term treatment is not eligible for that an alternative bonding system assurance. The commenter noted that coverage under an alternative bonding (other than a financial assurance) that the scope of coverage of an existing system, other than a financial assurance we approved as part of a regulatory alternative bonding system can only be under section 800.18, unless the program before the effective date of this changed through the submission and permittee contributes cash in an amount final rule must continue to provide approval of a regulatory program equal to the present value of all costs coverage for long-term treatment of amendment and even then can only be that the regulatory authority estimates discharges until we approve the changed prospectively. that the alternative bonding system will program amendment to which final The commenter further expressed incur to treat the discharge for as long paragraph (d)(2)(i) refers and until the concern that proposed paragraph as the discharge requires active or permittee either makes the cash (d)(2)(ii) could allow the elimination of passive treatment, taking into account contribution required by the state all alternative bonding system coverage the expenses listed in section program counterpart to final paragraph of treatment obligations dating back to 800.18(c)(2)(i) through (v). Final (d)(1) or posts a separate financial when the state attained primacy because paragraph (d)(1) also provides that, if assurance, collateral bond, or surety the proposed rule would require the alternative bonding system will bond to cover treatment costs. Final continued coverage under the existing receive interest or other earnings on the paragraph (d)(2)(iii) provides that an alternative bonding system ‘‘unless the cash contribution, the regulatory alternative bonding system (other than a regulatory authority amends its program authority may deduct the present value financial assurance) that we approved as to specifically establish an earlier of those estimated earnings from the part of a regulatory program before the effective date.’’ According to the present value of all estimated expenses effective date of this final rule must commenter, this clause would enable a when calculating the amount of the continue to provide coverage for long- state to exclude all existing discharges required cash contribution. Proposed term treatment of discharges if the requiring long-term treatment from paragraph (d)(2) required submission of permittee does not make the cash coverage under the alternative bonding a cash contribution ‘‘sufficient’’ to cover contribution required by the state system by specifying the date of treatment costs, but it did not define or program counterpart to final paragraph approval of the permanent regulatory otherwise explain the meaning of (d)(1), unless the permittee posts a program for the state as the ‘‘earlier ‘‘sufficient.’’ Final paragraph (d)(1) separate financial assurance, collateral effective date’’ to which proposed clarifies the meaning of ‘‘sufficient,’’ bond, or surety bond to cover treatment paragraph (d)(2)(ii) refers. both by specifying the costs that must be costs. Final paragraphs (d)(2)(ii) and (iii) To cure these perceived defects in the included in the calculation and by should avoid any gap in coverage of proposed rule, the commenter specifying how those costs are to be discharges that require long-term recommended that the final rule specify used to determine the amount of the treatment. that: cash contribution. Final paragraph (d)(2)(iv) provides • The permittee’s treatment We added paragraph (d)(2) to the final that final paragraphs (d)(2)(i) through obligation remains fully covered by any rule in response to the comment (iii) do not apply to an alternative existing alternative bonding system summarized above. Final paragraph bonding system that we approved as unless and until a regulatory program (d)(2)(i) provides that the regulatory part of a regulatory program if the amendment implementing section 800.9 authority must amend an alternative system that we approved includes an

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00176 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93241

exclusion for coverage of discharges that portfolios, which would both reduce the estimates that the alternative bonding require long-term treatment. Under expected rate of return and increase the system will incur to treat the discharge those circumstances, the permittee is amount of money that the permittee for as long as the discharge requires already required to provide separate must deposit to establish the trust fund active or passive treatment, taking into coverage for treatment costs. or annuity. As discussed in the account the expenses listed in We decline to adopt the commenter’s preamble to final section 800.18, we § 800.18(c)(2)(i) through (v). Final recommendation that the rule provide agree with the commenter that site- paragraph (d)(1) further provides that, if that the alternative bonding system specific trust funds and annuities the alternative bonding system will remains liable for the amount of the should hold conservative, low-risk receive interest or other earnings on the shortfall if the financial assurance or investment portfolios and we have cash contribution, the regulatory bond posted by the permittee, or the revised section 800.18 to include that authority may deduct the present value cash contribution that the permittee requirement. As discussed above, it of those estimated earnings from the makes to the alternative bonding system would not be equitable to require bond present value of all estimated expenses in lieu of posting a financial assurance pools and similar communal alternative when calculating the amount of the or bond, proves inadequate to cover the bonding systems to provide secondary required cash contribution. This full cost of treating the discharge. In the coverage for long-term treatment of approach also clarifies the meaning of case of a cash contribution, the discharges from operations that never ‘‘sufficient’’ in the proposed rule in a alternative bonding system already is participated in the alternative bonding manner consistent with final section responsible for treatment costs for all system and never provided revenue to 800.18(d) for financial assurances and covered discharges in the event that the the system. However, in response to this final section 800.18(c)(2) for collateral permittee defaults on that obligation. comment, we added final paragraph bonds and surety bonds posted for this However, when the permittee posts a (d)(3), which specifies that an purpose. separate financial assurance or bond, alternative bonding system to which We did not adopt the provision in the alternative bonding system would final paragraphs (d)(1) and (2) apply proposed paragraph (d)(2)(i) that would no longer be responsible for treatment may elect to provide secondary coverage have required that the alternative costs because it no longer covers that for long-term treatment of discharges bonding system place cash discharge. As specified in final when the permittee posts a financial contributions in a separate account paragraph (d)(3), the alternative bonding assurance, collateral bond, or surety available only for treatment of the system may elect to provide secondary bond to cover estimated treatment costs discharge for which the contribution is coverage for a discharge covered by a instead of making the cash contribution made. Some commenters alleged that separate financial assurance or bond, required by paragraph (d)(1) to retain or this provision would be inconsistent but it is not required to do so. It would obtain primary coverage under the with state accounting requirements and be neither equitable nor legal to require alternative bonding system. Final practices, as well as the pooling that the alternative bonding system paragraph (d)(3) also provides that the principle underlying most alternative cover a shortfall for an obligation for regulatory authority must establish bonding systems, other than financial which it is has neither provided terms and conditions for the secondary assurances. After considering these coverage nor received revenue. If the coverage to ensure that the coverage is arguments, we decided against adoption permittee defaults on a discharge consistent with the financial structure of of the proposed provision because the treatment obligation covered by a the alternative bonding system. alternative bonding system remains financial assurance or bond, the bond One commenter asked why proposed responsible for treatment of all forfeiture provisions of section 800.50 paragraph (d)(2)(i) required that cash discharges covered by the system, as would apply as they would in the case contributions for discharges discovered well as completion of all other of default on any other reclamation after the effective date of the final rule reclamation obligations of participating obligation covered by a conventional be in an amount sufficient to cover the operations, in the event of permittee bond. However, we anticipate that cost of treating the discharge ‘‘to meet default, regardless of the method of shortfalls would be rare, given the Clean Water Act standards or the water accounting. periodic adequacy reviews and quality requirements of this chapter,’’ One commenter alleged that requiring adjustments required by §§ 800.15 and while proposed paragraph (d)(2)(ii) participants in existing alternative 800.18. required that cash contributions for bonding systems to make a cash Another commenter observed that one existing discharges be in an amount contribution to the system or post consequence of adopting the proposed sufficient ‘‘to treat the discharge in separate financial assurances or bonds prohibition on alternative bonding perpetuity.’’ Some commenters opposed to cover treatment costs for discharges system (other than financial assurances) the language in proposed paragraph requiring long-term treatment was coverage of long-term treatment of (d)(2)(ii), arguing that not all discharges unfair because participants in discharges would be to prevent the require perpetual treatment and that the alternative bonding systems have regulatory authority from relying on a rule should be sufficiently flexible to already paid entry fees and continue to statewide bond pool or similar accommodate advances in science and pay whatever assessment is required to mechanism for the limited purpose of different treatment horizons. maintain participation in the system. bearing certain risks associated with a Final paragraph (d)(1) addresses these According to the commenter, the site-specific financial assurance (trust concerns by replacing both of the proposed requirement would force fund or annuity), such as the proposed standards for duration of participants to pay twice. We do not unpredicted failure of the treatment treatment with language requiring use of agree. The regulatory authority should system or lower-than-expected returns. the cost calculation methodology set not issue a permit for a proposed According to the commenter, the forth in section 800.18(c). Final operation that would result in a absence of a secondary risk-bearing paragraph (d)(1) provides that the discharge requiring long-term treatment. mechanism means that the regulatory amount of the cash contribution to the Therefore, typically, alternative bonding authority must require site-specific trust alternative bonding system must be in systems, like conventional bonds, are funds and annuities to hold an amount equal to the present value of structured on the presumption that no conservative, low-risk investment all costs that the regulatory authority such discharges will occur. If

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00177 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93242 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

unanticipated discharges requiring long- for future increments ‘‘in accordance ‘‘financial assurance’’ in section 800.5 to term treatment do occur, treatment costs with this section.’’ Therefore, to ensure specify that it is a type of alternative could threaten the viability of the consistency with section 509(a) of bonding system, so there should be no alternative bonding system or require SMCRA and to correct the ambiguity in confusion as to which provisions of part increased assessments on participants the proposed rule, final paragraph (c)(3) 800 apply to financial assurances. with operations that do not result in provides that the bond or bonds for Final paragraph (a), like paragraph (b) discharges of that nature. Thus, a successive increments must comply of the proposed rule, lists the types of requirement that individual permittees with paragraph (b) of this final rule. performance bonds that the regulatory bear the cost of treating unanticipated Section 800.12: What types of authority may accept; i.e., a surety bond, discharges requiring long-term performance bond are acceptable? a collateral bond, a self-bond, or a treatment, either by posting a separate combination of those types of bond. The financial assurance, collateral bond, or In this final rule, we are revising the final rule differs from the proposed rule surety bond or by making a cash section heading to refer to the type of in that the final rule replaces ‘‘form’’ contribution to the alternative bonding performance bond allowed, rather than with ‘‘type’’ and updates cross- system, is the most equitable the form of the bond as in the proposed references. The regulatory authority has arrangement to avoid unfairly burdening and previous rules. This revision the discretion to allow posting of fewer other participants in the alternative corrects an error in the proposed and types of bond as part of its approved bonding system. To the extent that an previous rules and removes an regulatory program. For example, the existing alternative bonding system may inconsistency with section 509(a) of 586 regulatory authority may decide not to already require individual payments for SMCRA, in which the term ‘‘form’’ include self-bonds as an allowable type future treatment of discharges of that refers to the document that constitutes of bond under its regulatory program. nature, those payments may be the bond, not the various types of Final paragraph (b), like proposed bonding mechanisms. For the same deducted from the amount of the cash paragraph (c), specifies that an reason, the final rule replaces the term contribution. alternative bonding system approved ‘‘form’’ in section 800.12 with ‘‘type’’ under § 800.9 of this rule may accept Section 800.10: Information Collection wherever the former term appeared in either more or fewer types of bond than Section 800.10 pertains to compliance the proposed rule. those listed in paragraph (a) of the final with the Paperwork Reduction Act, 44 Similarly, we are not adopting rule. Final paragraph (b) differs from U.S.C. 3501, et seq. We are adding proposed paragraph (a), which proposed paragraph (c) in that the final contact information for persons who corresponds to the first sentence of rule replaces ‘‘form’’ with ‘‘type’’ and wish to comment on these aspects of previous § 800.12. That sentence stated updates cross-references. part 800. that the regulatory authority must prescribe the form of the performance Proposed paragraph (d) would have Section 800.11: When and how must I bond. Section 509(a) of SMCRA does allowed the regulatory authority to file a performance bond? indeed require that the bond be filed accept only a financial assurance or a Section 800.11 discusses when and ‘‘on a form prescribed and furnished by collateral bond to guarantee treatment of how a permit applicant or permittee the regulatory authority,’’ but a long-term discharge under § 800.18 of must file a performance bond. We are § 800.11(b)(2) of this final rule already this rule. Several commenters opposed adopting section 800.11 as proposed, includes a counterpart to that this limitation. One regulatory authority with one revision. Proposed paragraph requirement and there is no need to requested that we revise proposed (c)(3) required that a permittee using repeat it in § 800.12. paragraph (d) to also allow the use of incremental bonding file additional One commenter argued that section surety bonds because the regulatory bond or bonds with the regulatory 800.12 should not include any mention authority had long relied upon surety authority to cover each succeeding of alternative bonding systems or bonds for coverage of some discharges increment before initiating and financial assurances because the section requiring long-term treatment. conducting surface coal mining heading refers only to performance According to the commenter, when a operations on that increment. However, bonds and readers might draw the surety bond is forfeited, the surety proposed paragraph (c)(3) was silent on erroneous conclusion that financial typically establishes a fully-funded trust whether bonds for increments other assurances are something other than a rather than paying the bond amount to than the initial increment must comply type of alternative bonding system. We the state. We confirm that, as stated in with proposed paragraph (b), which disagree. Section 509 of SMCRA,587 the preamble to the proposed rule,588 provided that the bond must be in an which contains provisions governing surety bonds are not the best means of amount determined under section both conventional bonds and alternative guaranteeing treatment of postmining 800.14, be on a form prescribed and bonding systems, is simply entitled discharges because surety bonds are not furnished by the regulatory authority, be ‘‘Performance Bonds.’’ Therefore, all designed to provide the income stream made payable to the regulatory types of bonding mechanisms, both needed to fund ongoing treatment. authority, and be conditioned upon the conventional and alternative, are However, based on the assertion by the faithful performance of all the considered performance bonds for regulatory authority, we have added requirements of the regulatory program purposes of section 509 of SMCRA. The surety bonds to the list of acceptable and the permit, including the heading for § 800.12 of this final rule instruments for guaranteeing long-term reclamation plan. Section 509(a) of merely follows the statutory lead. treatment. Paragraph (c) of the final rule, SMCRA 585 requires that performance Section 800.12 of this final rule is which corresponds to paragraph (d) of bonds posted before permit issuance intended to provide a complete picture the proposed rule, provides that the comply with requirements substantively of available bonding options under 30 regulatory authority may accept a identical to those contained in section CFR part 800 and section 509 of financial assurance, collateral bond, or 800.11(b) of this final rule. It further SMCRA. We revised the definition of surety bond to guarantee long-term states that the permittee must file bonds treatment of discharges. 586 30 U.S.C. 1259(a). 585 30 U.S.C. 1259(a). 587 30 U.S.C. 509. 588 80 FR 44436, 44533 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00178 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93243

One commenter alleged that the 816.57(b), and 817.57(b). Many streamside vegetation have been proposed rule provides no supporting commenters opposed this proposed rule satisfied consistent with final section evidence for provisions that would and the underlying requirement to post 816.115, ensuring the streamside restrict financially sound companies a bond to guarantee restoration of the vegetation has matured sufficiently to from using the entire panoply of ecological function of perennial and provide nutrients, habitat, and thermal financial mechanisms, including self- intermittent streams through which the regulation to the stream. The commenter bonding mechanisms consistent with permittee mines. The reasons for is largely correct, because under our the requirements of section 509(c) of opposition included uncertainty on how regulations most of the physical SMCRA.589 The commenter noted that to determine the amount of the bond or reconstruction necessary to reestablish state and federal bonding regulations the duration of the bond, a belief that the ecological function of the stream require that the regulatory authority the bond amount would be astronomical will have been completed at earlier examine a company’s finances at the and financially ruinous, and concerns phrases. Specifically, pursuant to final time of permit renewal to ascertain if that this requirement would dry up the section 800.42(b)(1), the form of a the company continues to qualify to remaining sources of surety bonds for stream, as defined in final § 701.5, must self-bond and that the regulatory the reclamation of coal mines. An be restored prior to achieving Phase I authority also may conduct this organization representing the surety bond release, while pursuant to final evaluation as part of the midterm permit industry noted that a surety bond § 800.42(c)(1)(ii), the hydrologic review. According to the commenter, covering this obligation might not be function of the stream must be restored these reviews provide sufficient widely available in the market because, prior to achieving Phase II bond release. protection to the regulatory authority. typically, there must be certainty Also, prior to achieving Phase II bond We do not agree that the periodic review regarding the scope and nature of the release, revegetation, including requirement for self-bonds provides a obligation and the duration of the successfully establishing the streamside satisfactory level of assurance that the obligation must be reasonable. vegetative corridor, pursuant to final funds needed for treatment will be According to the commenter, a surety § 800.42(c)(1)(iii) must occur. For these available if the permittee ceases would have great difficulty reasons, the final rule does not require treatment. The periodic reviews cited by underwriting the new obligation that costs associated with reconstructing the commenter may be too late to ensure because that obligation lacks an the stream channel and floodplain be that a self-bonded company in rapidly objective standard and appears included in the cost of restoring deteriorating financial health has either susceptible to wide variability based on ecological function; those the resources to post the required circumstances beyond the permittee’s reconstruction costs are specifically replacement bond or the ability to control. The commenter further included as part of the costs of some complete the reclamation work itself. explained that, when underwriting a other element of the reclamation plan— Under final section 800.23(g), a self- bond, the surety makes a judgment most likely the cost of final grading and bonded permittee must notify the about the operational and financial reestablishment of the surface drainage regulatory authority whenever it no viability of the permittee—a judgment pattern and stream-channel longer meets self-bonding eligibility that becomes less certain and more risky configuration, which must be criteria. The permittee then has 90 days as the obligation extends further into the accomplished before Phase I bond to post a replacement surety or future. In this case, according to the release. Similarly, the final rule does not collateral bond. However, a financially commenter, the duration of the require that costs associated with distressed company may be unable to obligation would be too long for the establishment of the streamside obtain replacement bond coverage, surety industry to underwrite. vegetative corridor be included in the We recognize that there are especially the large sums required to cost of restoring ecological function, uncertainties associated with restoration guarantee long-term treatment of because those costs are specifically of the ecological function of streams. We discharges. included as part of the cost of In addition, the final rule does not also recognize that some in the surety implementing the revegetation plan allow posting of a self-bond to cover industry may be unwilling to approved in the permit, which must long-term treatment of discharges underwrite bonds for this reclamation identify the type of vegetation and because self-bonds provide none of the obligation. However, surety bonds are planting techniques required for tangible financial resources afforded by not the only available option. Collateral financial assurances, collateral bonds, or bonds are a possibility under final establishment of streamside vegetative surety bonds. Financial assurances paragraph (d), as are alternative bonding corridors, typical of Phase II bond provide the income stream needed to systems under final § 800.9 in states that release. fund treatment. Collateral bonds require have those systems. Once reconstruction However, the commenter’s point the deposit of letters of credit, cash of the form of the stream and restoration about revegetation should not be taken accounts, certificates of deposit, bonds, of hydrologic function have been too far. Compliance with the or real property, all of which can be accomplished, we anticipate that performance standards for a streamside used to fund treatment if the permittee subsequent restoration of ecological vegetative corridor is not the only fails to do so. Surety bonds provide a function likely will involve few, if any, consideration when regulatory guarantee of payment of a sum certain discrete activities or expenditures, with authorities assess whether the permittee from an independent company. the possible exception of transplanting has restored the ecological function of Proposed paragraph (e) provided that macroinvertebrates or fish to the re- perennial and intermittent streams. the regulatory authority may accept only established stream. Restoration of ecological function a surety bond, a collateral bond, or a One commenter on the proposed rule includes restoration of the species combination thereof to guarantee observed that restoration of the richness, diversity, and extent of restoration of the ecological function of ecological function of perennial and organisms for which the stream a perennial or intermittent stream under intermittent streams, which the provides habitat, food, water, and proposed §§ 780.28(c), 784.28(c), permittee must achieve prior to Phase III shelter. Nonetheless, most of the bond release, primarily means ensuring reclamation work necessary to establish 589 30 U.S.C. 1259(c). the performance standards for the conditions favorable to restoration of

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00179 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93244 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

these organisms will have occurred cannot satisfactorily guarantee paragraph (b)(3) provided that the during Phase I or Phase II reclamation. restoration of ecological function. regulatory authority must include any We thus anticipate that the direct cost We do not agree with the commenters’ necessary access roads or routes in the of Phase III reclamation, including assertion that we have no legal basis area under extended liability. We restoring the ecological function of a under SMCRA to prohibit the use of received no comments on those perennial or intermittent stream, will be self-bonds to guarantee restoration of proposed provisions. For the reasons minimal in comparison to those the ecological function of streams. discussed below, we are adopting incurred in connection with Phase I and Section 509(b) of SMCRA 590 grants the proposed paragraph (b)(3) as final Phase II reclamation. This means in turn applicant or permittee the right to post paragraph (b)(2). Otherwise, we are that the amount of bond required to a surety or collateral bond. However, adopting paragraph (b) as proposed, guarantee restoration of ecological language of section 509(c) of SMCRA 591 with minor editorial revisions. function should be minimal. The differs from that of section 509(b) in that Proposed paragraph (b)(2) provided regulatory authority may allow the section 509(c) provides that the that the introductory text of proposed permit applicant or permittee to post regulatory authority ‘‘may’’ accept a paragraph (b) and proposed paragraphs any type of performance bond for self-bond. The term ‘‘may’’ is (b)(1) and (3) apply to the amount of reclamation obligations other than discretionary, which means that the bond posted to guarantee restoration of restoration of the ecological function of regulatory authority has the authority to the ecological function of perennial and a stream. However, the permit applicant decline to accept a self-bond. In this intermittent streams. We are not or permittee must post a type of bond case, we find it prudent to prohibit the adopting proposed paragraph (b)(2) other than a self-bond to guarantee use of self-bonds to guarantee because it is unnecessary. The restoration of the ecological function of restoration of the ecological function of introductory text of final paragraph (b) a stream. To be consistent with final streams because the requirement is new, and final paragraphs (b)(1) and (2) have § 800.42(c)(2), when determining the the time needed to accomplish no limitations in terms of applicability. amount of bond that should be held to restoration of ecological function is Thus, there is no need to include ensure restoration of ecological uncertain, and there is little industry or language that merely identifies one function, the regulatory authority must other experience available for situation (restoration of a stream’s consider the amount of work necessary comparison. ecological function) that may require to facilitate restoration. Furthermore, extended liability under the bond. Section 800.13: What is the liability Proposed paragraph (c) provided that, mining companies can avoid this period for a performance bond? problem entirely if they do not mine if the regulatory authority approves a Proposed § 800.13(a)(1) provided that through perennial or intermittent long-term, intensive agricultural liability under the performance bond postmining land use, the revegetation streams. Therefore, we are adopting will be for the duration of the surface responsibility period specified under proposed paragraph (e) as paragraph (d) coal mining and reclamation operation § 816.115 or § 817.115 will start on the of the final rule. Final paragraph (d), and for a period coincident with the date of initial planting for the long-term which is substantively identical to period of extended responsibility for agricultural use. We received no proposed paragraph (e), provides that successful revegetation under § 816.115 comments on this paragraph and are the regulatory authority may accept any or § 817.115 or until achievement of the adopting it as proposed. type of performance bond listed in reclamation requirements of the Proposed paragraph (d)(1) provided paragraph (a) other than a self-bond to regulatory program and the permit, that the bond liability of the permittee guarantee restoration of the ecological whichever is later. We received no includes only those actions that the function of a perennial or intermittent comments on this provision and are permittee is required to perform under stream under §§ 780.28(e) and (g), adopting it as proposed. the permit and regulatory program to 784.28(e) and (g), 816.57(g), and Proposed paragraph (a)(2) provided complete the reclamation plan for the 817.57(g). that, with the approval of regulatory area covered by the bond. We received One commenter alleged that authority, the applicant or permittee no comments on paragraph (d)(1) and eliminating self-bonding for mining may post a performance bond to are adopting it as proposed. through ephemeral streams would guarantee specific phases of reclamation Proposed paragraph (d)(2) provided severely limit the ability to mine in the within the permit area, provided that that the performance bond does not Powder River Basin because of the the sum of the phase bonds posted cover implementation of an alternative prevalence of self-bonds in that region. equals or exceeds the total amount postmining land use approved under Our final rule does not require the required under §§ 800.14 and 800.15. § 780.24(b) or § 784.24(b) when restoration of ecological function for We received no comments on this implementation of the land use is ephemeral streams. Therefore, the final provision and are adopting it as beyond the control of the permittee. It rule would not have the effect alleged proposed with minor editorial revisions. also specified that, except as provided by the commenter. Proposed paragraph (b) provided that in §§ 785.14(b)(11) and 785.16(a)(13), Some commenters argued that there is isolated and clearly defined portions of the permittee is responsible only for no basis under SMCRA to limit the the permit area that require extended restoring the site to conditions capable types of bond that the applicant or liability may be separated from the of supporting the approved postmining permittee may post to cover this original area and bonded separately land use. Upon further evaluation, we obligation. According to another with the approval of the regulatory determined that proposed paragraph commenter, the preamble to the authority. Proposed paragraph (b)(1) (d)(2) is not consistent with our proposed rule did not justify the specified that these areas must be previous, proposed, and final exclusion of self-bonds because it did limited in extent and not constitute a postmining land use regulations in not discuss regulatory authority scattered, intermittent, or checkerboard §§ 816.133 and 817.133, all of which experience with self-bonds or identify pattern of failure, while proposed require that the permittee restore all the time required for restoration of disturbed areas in a timely manner to ecological function. The implication is 590 30 U.S.C. 1259(b). conditions that are capable of that we have not shown that self-bonds 591 30 U.S.C. 1259(c). supporting either the uses they were

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00180 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93245

capable of supporting before any mining extend bond coverage to full restoration perennial and intermittent streams or higher or better uses. Our postmining of the site’s premining capability, which within the permit and adjacent areas to land use regulations are based upon is, in part, what section 515(b)(2) of the list of factors upon which the bond section 515(b)(2) of SMCRA,592 which SMCRA and §§ 816.133 and 817.133 of amount must be based. One commenter contains a substantively identical our final rule require. In addition, the alleged that this addition would require requirement. Two court decisions have introductory clause of the second that the bond cover impacts to adjacent held, in a slightly different context, that sentence of proposed paragraph (d)(2) areas, not just the permit area. This was a requirement to implement the created an exception for mountaintop not our intent. Upon reconsideration, postmining land use is inconsistent removal mining operations and steep- we decided not to adopt the added with section 515(b)(2) of SMCRA and its slope variances from approximate phrase. Paragraph (a)(1), which requires legislative history, which only require original contour restoration consideration of the requirements of the that the permittee demonstrate the requirements. Sections 515(c)(3) and permit, already covers costs associated capability of the land to support the (e)(2) of SMCRA 594 authorize approval with mining through and restoring postmining land use and demonstrate of mountaintop removal mining perennial and intermittent streams, restoration of premining operations and steep-slope variances including restoration of the ecological productivity.593 only for certain types of postmining function of those streams, as well as any The first sentence of proposed land uses, but SMCRA does not require measures taken to protect streams. paragraph (d)(2) provided that the bond that the permittee actually implement Therefore, there is no need for specific does not cover implementation of an those uses as part of surface coal mining mention of the biological condition of approved alternative postmining land and reclamation operations. Therefore, perennial and intermittent streams in use that is beyond the control of the we are not adopting the introductory paragraph (a)(2). permittee. That language is inconsistent clause of the second sentence of One commenter observed that the with the court decisions summarized proposed paragraph (d)(2) as part of term ‘‘probable difficulty of above, which, in effect, held that final paragraph (d)(2), which now reclamation’’ in proposed paragraph SMCRA does not require that the simply states that the permittee is (a)(2) is not defined and is otherwise permittee implement any approved responsible only for restoring the site to vague. The commenter recommended postmining land use, regardless of conditions capable of supporting the that we delay adoption of this provision whether that use is an alternative uses specified in § 816.133 or § 817.133. until after we convene a panel of experts postmining land use. Therefore, we are Finally, proposed paragraph (d)(4) to consider this matter and develop the not adopting the rule as proposed. The provided that bond liability for needed factors and methods. We do not first sentence of final paragraph (d)(2) treatment or abatement of long-term agree. Section 509(a) of SMCRA 595 simply provides that the performance discharges is specified in § 800.18. provides that ‘‘[t]he amount of the bond bond does not cover implementation of However, while final § 800.18(b) allows required for each bonded area * * * the approved postmining land use or the use of collateral and surety bonds to shall reflect the probable difficulty of uses. cover long-term treatment of discharges, reclamation giving consideration to For similar reasons, we are not it focuses on the use of financial such factors as topography, geology of adopting the second sentence of assurances for that purpose. Financial the site, hydrology, and revegetation proposed paragraph (d)(2), which assurances are a type of alternative potential.’’ Previous § 800.14(a)(3) provided that the permittee is bonding system. Therefore, final included an equivalent requirement. responsible only for restoring the site to paragraph (d)(4) does not include the Calculation of bond amounts under conditions capable of supporting the term ‘‘bond.’’ It simply provides that these provisions has rarely been an approved postmining land use. As § 800.18 specifies the liability for long- issue in recent years. In practice, the discussed above, section 515(b)(2) of term treatment or abatement of regulatory authority typically calculates SMCRA and §§ 816.133 and 817.133 of discharges. the amount of bond required by our final rule require restoration to a determining what it would cost the Section 800.14: How will the regulatory condition capable of supporting either regulatory authority to complete the authority determine the amount of the uses it could support before any reclamation plan in the event of performance bond required? mining or higher or better uses. forfeiture. This method indirectly Proposed paragraph (d)(2) is less Proposed § 800.14(a) provided that includes consideration of the listed stringent than those provisions because the regulatory authority must determine factors. Therefore, we find that it specifies that the permittee’s bond the amount of the performance bond convening a panel of experts to flesh out liability is limited to restoration of the required for the permit or permit the meaning of this statutory land to a condition in which it is increment based upon, but not limited requirement is neither necessary nor an capable of supporting the approved to, the requirements of the permit; the efficient use of resources. postmining land use. Thus, it does not probable difficulty of reclamation, Proposed paragraph (b)(1) provided giving consideration to the topography, that the amount of the performance 592 30 U.S.C. 1265(b)(2). geology, hydrology, and revegetation bond must be sufficient to assure the 593 See In re: Permanent Surface Mining potential of the permit area and the completion of the reclamation plan if Regulation Litigation, 14 Env’t Rep.Cas. (BNA) biological condition of perennial and 1083, 1106 (SMCRA does not require actual grazing the work has to be performed by a third or mandatory crop production on the reclaimed intermittent streams within the permit party under contract with the regulatory area to demonstrate that the land has been restored and adjacent areas; and the estimated authority in the event of forfeiture. We to a condition in which it is capable for use as reclamation costs submitted by the received no comments on proposed pasture land or prime farmland), and 1108 (‘‘The permit applicant. Proposed paragraph Act only requires an operator to demonstrate a paragraph (b)(1) and are adopting it as reasonable likelihood of sustaining higher or better (a) was substantively identical to paragraph (b) of the final rule. use.’’ It does not support a requirement for letters previous paragraph (a) with the We are not adopting proposed of commitment or a firm written commitment from exception that proposed paragraph (a)(2) paragraph (b)(2), which required that third parties to implement the use.) (D.D.C. Feb. 26, 1980). see also In re Permanent Surface Mining added the biological condition of the calculations used to determine the Regulation Litigation (Consolidated Action), 620 F. Supp. 1519, 1563 (D.D.C. 1985). 594 30 U.S.C. 1265(c)(3) and (e)(2). 595 30 U.S.C. 1259(a).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00181 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93246 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

amount of bond required for the permit apply similar requirements to the reclamation resulting form completion specifically identify the amount of bond determination of the amount of of activities required under the needed to guarantee restoration of the performance bond required when the reclamation plan. We are adopting ecological function of a perennial or permittee elects to post a collateral bond proposed paragraph (a)(2)(iii) as intermittent stream under proposed or surety bond instead of a financial paragraph (d) in the final rule because §§ 780.28 and 816.57 or proposed assurance for this purpose. We agree it applies to both adjustments initiated §§ 784.28 and 817.57. Proposed and have added those bond calculation by the regulatory authority and paragraph (b)(2) further provided that requirements to final section 800.18(c). adjustments initiated by the permittee. the permittee must post either a separate We revised proposed paragraph (d) to Proposed paragraph (b) provided that bond for that amount or incorporate that reference collateral bonds and surety the regulatory authority must notify the amount into the bond posted for the bonds to be consistent with this change. permittee, the surety, and any person entire permit or increment. Some We also redesignated proposed with a property interest in collateral commenters expressed concern about paragraph (d) as final paragraph (c) to who has requested notification under how to monetize costs for restoring the reflect our decision not to adopt § 800.21(f) of any proposed adjustment ecological function of a stream, which, proposed paragraph (c). Final paragraph to the bond amount. It also specified one commenter noted, primarily (c) provides that the amount of financial that the regulatory authority must involves waiting for the streamside assurance, collateral bond, or surety provide the permittee an opportunity for vegetative corridor to mature. We agree bond required to guarantee long-term an informal conference on the that restoration of the ecological treatment of discharges must be adjustment. We are adopting proposed function of a stream, as opposed to determined in accordance with § 800.18. paragraph (b) as paragraph (e) in the reconstruction of the stream channel Proposed paragraph (e) provided that final rule because it applies to both and planting of the streamside the total performance bond initially adjustments initiated by the regulatory vegetative corridor, involves few, if any, posted for the entire area under one authority and adjustments initiated by discrete costs, with the possible permit may not be less than $10,000. the permittee. We also are adding an exception of transplants of Proposed paragraph (f) provided that the introductory clause to final paragraph macroinvertebrates and fish. Therefore, permittee’s financial responsibility (e) to clarify that the paragraph sets we decided not to require a separate under § 817.121(c) for repairing or forth notice and procedural calculation of the cost of restoration of compensating for material damage requirements that the regulatory the ecological function of a stream. resulting from subsidence may be authority must follow before making Proposed paragraph (c) provided that, satisfied by the liability insurance any bond adjustment. when the permit includes a variance policy required under § 800.60. We Proposed paragraph (c) provided that from approximate original contour received no comments on these bond reductions under proposed restoration requirements under section proposed paragraphs and are adopting paragraph (a) are not subject to the bond 785.16, the amount of the performance them as proposed, with the exception release requirements and procedures of bond must be sufficient to restore the that we redesignated them as final disturbed area to the approximate paragraphs (d) and (e), respectively, to §§ 800.40 through 800.44. We received original contour if the approved reflect our decision not to adopt no comments on this paragraph and are postmining land use is not implemented proposed paragraph (c). adopting it as proposed, with one by the end of the applicable revegetation conforming revision. Final paragraph (c) Section 800.15: When must the responsibility period under § 816.115 or refers to bond reductions under regulatory authority adjust the § 817.115. We are not adopting paragraphs (a) and (b) to reflect the performance bond amount and when proposed paragraph (c) or its reorganization discussed above in may I request adjustment of the bond counterpart in section 785.16 for the which we revised proposed paragraph amount? reasons discussed in the preamble to (a) to include just those provisions that proposed § 785.16(a)(13) and final Proposed § 800.15 contained pertain only to bond adjustments § 785.16(b)(2). In lieu of proposed procedures and criteria for adjustment required by the regulatory authority in §§ 785.16(a)(13) and 800.14(c), final of bond amounts after permit issuance. final paragraph (a) and moved those § 785.16(b)(2) provides that a permit Final § 800.15 is substantively identical provisions of proposed paragraph (a) that contains a variance from restoration to proposed § 800.15, but, in the final that pertain only to bond adjustments of approximate original contour must rule, we revised and reorganized the requested by the permittee to final include a condition prohibiting the paragraphs to improve clarity and to paragraph (b). release of any part of the bond posted correct an inadvertent error in the The final rule redesignates proposed for the permit until substantial proposed rule. With the exception of paragraphs (d), (e), and (f) as paragraphs implementation of the approved proposed paragraphs (a)(2)(ii) and (iii), (f), (g), and (h), respectively. Proposed postmining land use is underway. The proposed paragraph (a) applied only to paragraph (d) provided that, in the event prohibition on bond release does not situations in which the regulatory that an approved permit is revised in apply to any portion of the bond that is authority must adjust the bond amount. accordance with subchapter G, the in excess of an amount equal to the cost Proposed paragraph (a)(2)(ii) identified regulatory authority must review the of regrading the site to its approximate the circumstances under which the bond amount for adequacy and, if original contour and revegetating the permittee may request a bond necessary, require adjustment of the regraded land in the event that the adjustment. To better distinguish bond amount to conform to the permit approved postmining land use is not between these two scenarios, we are as revised. It also included a reminder implemented. adopting proposed paragraph (a)(2)(ii) that the bond adjustment process may Proposed paragraph (d) provided that as final paragraph (b). Proposed not be used to reduce bond amounts on the amount of financial assurance paragraph (a)(2)(iii) provided that the the basis of completion of reclamation required for long-term treatment of regulatory authority may not use the activities. We received no comments on discharges must be determined in bond adjustment process to reduce the proposed paragraph (d), which we are accordance with section 800.18. amount of the performance bond to adopting as final paragraph (f), with Commenters recommended that we reflect changes in the cost of minor editorial revisions for clarity.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00182 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93247

Proposed paragraph (e) provided that Section 509(b) must be read in the nature described in paragraph (a)(1) the regulatory authority must require conjunction with section 519(c)(3),598 will develop in the future, provided that that the permittee post a bond or which provides for ‘‘the release of the the quantity and quality of the future financial assurance in accordance with remaining portion of the bond, but not discharge can be determined with § 800.18 whenever a discharge that will before the expiration of the period reasonable probability. We are adopting require long-term treatment is specified for operator responsibility in proposed paragraph (a)(2) as final identified. We received no comments on section 515.’’ Section 519(c)(3) further without change. proposed paragraph (d). Final paragraph specifies that ‘‘no bond shall be fully One commenter urged that final (g) is substantively identical to proposed released until all reclamation § 800.18 include language clarifying that paragraph (e), with minor changes to requirements of this Act are fully met.’’ it does not authorize approval of a conform to plain language principles One commenter noted that ‘‘trust permit application for a proposed and to clarify that the bond must be funds generally are [the] appropriate operation that anticipates creating a either a collateral bond or a surety bond. mechanism for guaranteeing indefinite discharge for which long-term treatment Proposed paragraph (f) provided that and variable operation and maintenance would be required. The commenter the regulatory authority may not reduce expenses and periodic outlays for expressed concern that, otherwise, the bond amount when the permittee refurbishing or replacing capital proposed paragraph (a)(2) could be does not restore the approximate equipment or improvements.’’ We agree interpreted as allowing approval and original contour as required or when the with this commenter’s assessment issuance of a permit with a predicted reclamation plan does not reflect the because trusts are structured to provide discharge of this nature. The commenter level of reclamation required under the the revenue stream needed to fund long- notes that approval of a permit regulatory program. We received no term treatment of discharges. application of this nature would be comments on proposed paragraph (f), Another commenter recommended inconsistent with proposed § 773.15(n), which we are adopting as final that we use the term ‘‘trust’’ in place of which prohibits the regulatory authority paragraph (h). ‘‘trust fund’’ because the trust fund is from approving a permit application only one element of a trust. We revised unless it finds that the proposed Section 800.16: What are the general the rule as recommended. operation has been designed to prevent terms and conditions of a performance We discuss other comments below in discharges requiring long-term bond? the context of the specific provisions to treatment. We are adopting section 800.16 as which they apply. We agree with the commenter that a proposed. We received no comments on Final Paragraph (a): Applicability permit applicant may not circumvent this section. § 773.15(n) and receive a permit for a Proposed paragraph (a)(1) provided site that is predicted to develop a Previous § 800.17: Bonding that § 800.18 applies whenever surface discharge requiring long-term treatment Requirements for Underground Coal coal mining operations, underground by posting a financial assurance under Mines and Long-Term Coal-Related mining activities, or other activities or § 800.18 to cover treatment costs. In Surface Facilities and Structures facilities regulated under SMCRA result response to this concern, we added We removed and reserved previous in a discharge to surface water or paragraph (a)(3) to the final rule. That § 800.17 for the reasons discussed in the groundwater that requires treatment and paragraph provides that § 800.18 applies preamble to the proposed rule.596 We that continues or may reasonably be only to discharges that are not received no comments specifically expected to continue after the anticipated at the time of permit opposing our proposed removal of this completion of mining, backfilling, application approval. It further states section. grading, and the establishment of that nothing in § 800.18 authorizes revegetation. We received no comments approval of a permit application for a Section 800.18: What special provisions specific to proposed paragraph (a)(1), proposed operation that anticipates apply to financial guarantees for long- which we are adopting as final with a creating a discharge for which long-term term treatment of discharges? few nonsubstantive editorial revisions treatment would be required. We received a wide range of to improve clarity. Final paragraph Finally, we are adding paragraph comments on proposed § 800.18. Some (a)(1) provides that § 800.18 applies to (a)(4) to the final rule as a reminder that, commenters challenged the validity of any discharge resulting from surface under final § 800.18(g), the regulatory the proposed rule on legal grounds, coal mining operations, underground authority must require adjustment of the while others supported it, sometimes mining activities, or other activities or bond amount whenever it becomes with caveats. facilities regulated under SMCRA aware of a situation described in One commenter asked how the length whenever both the discharge and the paragraph (a)(1) or (2). of time that a financial assurance or need to treat the discharge continue or Final Paragraph (b): Type of Financial bond must remain in place under may reasonably be expected to continue Instruments Allowed § 800.18, which could be in perpetuity, after the completion of mining, is consistent with section 509(b) of backfilling, grading, and the Proposed paragraph (b)(1) provided SMCRA.597 That section of the Act establishment of revegetation. that, except for permits covered by an provides that ‘‘[l]iability under the bond Consistent with proposed paragraph alternative bonding system, the shall be for the duration of the surface (a)(1), final paragraph (a)(1) also permittee must post a financial coal mining and reclamation operation provides that the term ‘‘discharge’’ assurance instrument or a collateral and for a period coincident with [the] includes both discharges to surface bond to guarantee treatment or operator’s responsibility for revegetation water and discharges to groundwater. abatement of postmining discharges. requirements in section 515.’’ Section Proposed paragraph (a)(2) provided One commenter opposed adoption of 509(b) establishes a minimum liability that § 800.18 also applies whenever proposed paragraph (b)(1), alleging that period for a bond, not a maximum. information available to the regulatory ‘‘[t]he record is devoid of any basis for authority documents that a discharge of restricting financially sound companies 596 80 FR 44436, 44537 (Jul. 27, 2015). from using the entire panoply of 597 30 U.S.C. 1259(b). 598 30 U.S.C. 1269(c)(3). financial mechanisms, including self-

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00183 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93248 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

bonding mechanisms consistent with fund ongoing treatment. However, based section 800.9(d). We also added the requirements of Section 509(c) of on the assertion of successful usage by language to clarify that final paragraph SMCRA.’’ 599 The commenter noted that the regulatory authority for this (b)(2) does not apply to financial state and federal bonding regulations purpose, we have added surety bonds to assurances, consistent with the intent of require that the regulatory authority the list of acceptable instruments for the proposed rule. Final paragraph (b)(2) examine a company’s finances at the guaranteeing long-term treatment. provides that operations with discharges time of permit renewal to ascertain if Another commenter suggested that we in states with an alternative bonding the company continues to qualify to avoid use of the term ‘‘financial system (other than a financial self-bond. The commenter further noted assurance instrument’’ because a assurance) approved under subchapter that the regulatory authority also can financial assurance always consists of T must comply with the requirements of review a company’s eligibility to self- more than one instrument. At a the applicable alternative bonding bond at the time of the midterm permit minimum, according to the commenter, system. review. Therefore, according to the a financial assurance that relies upon a Proposed Paragraph (c): Discharge commenter, there is neither a legal basis trust will include the indemnity Treatment Standards for Cost nor a need for proposed paragraph agreement describing the terms of the Calculation Purposes (b)(1). assurance and the trust agreement We do not agree with the commenter governing the trust. We agree with the Proposed paragraph (c) provided that that periodic review of a permittee’s commenter’s recommendation and calculation of the amount of financial eligibility to self-bond provides a rationale and revised proposed assurance or collateral bond required satisfactory level of assurance that the paragraph (b)(1) accordingly. Final must include the cost of treating the funds needed for treatment will be paragraph (b)(1) uses the term ‘‘financial discharge to meet any applicable available if the permittee ceases assurance’’ in place of ‘‘financial numerical standards or limits that are in treatment. The periodic reviews cited by assurance instrument.’’ effect at the time that the regulatory the commenter may be too late to ensure After the revisions discussed above, authority issues an order requiring that a self-bonded company in rapidly final paragraph (b)(1) provides that, posting of a financial assurance or bond, deteriorating financial health has either except for discharges covered by provided that the numerical standards the resources to post the required alternative bonding systems other than or limits are established in the SMCRA replacement bond or the ability to financial assurances, the permittee must permit, a permit or authorization issued complete the reclamation work itself. post a financial assurance, a collateral under the Clean Water Act, or Under 30 CFR 800.23(g), a self-bonded bond, or a surety bond to guarantee regulations implementing the Clean permittee must notify the regulatory treatment or abatement of discharges Water Act. Some commenters objected authority whenever it no longer meets that require long-term treatment. We to this provision, alleging that a SMCRA self-bonding eligibility criteria. The replaced the term ‘‘postmining permit cannot establish water quality permittee then has 90 days to post a discharges’’ in proposed paragraph standards or discharge limits. According replacement surety or collateral bond. (b)(1) with ‘‘discharges that require to the commenters, only the U.S. However, a financially distressed long-term treatment’’ to improve clarity Environmental Protection Agency and company may be unable to obtain and to be consistent with the states with delegated authority under replacement bond coverage, especially terminology used elsewhere in our the Clean Water Act have the authority the large sums required to guarantee regulations in this context. to set water quality standards. Nothing long-term treatment of discharges. Proposed paragraph (b)(2) provided in the proposed rule was intended to In addition, the final rule does not that the amount of a collateral bond imply that the SMCRA regulatory allow posting of a self-bond to cover posted to guarantee treatment of a authority may establish water quality long-term treatment of discharges discharge must include the cost of standards of the nature specified in the because self-bonds provide none of the treating the discharge during the time Clean Water Act. Upon further tangible financial resources afforded by required to collect and liquidate the evaluation, we determined that financial assurances, collateral bonds, or bond and convert the proceeds to a proposed paragraph (c) is unnecessary. surety bonds. Financial assurances financial instrument that will generate Therefore, the final rule does not provide the income stream needed to funds in an amount sufficient to cover include it. The regulatory authority will fund treatment. Collateral bonds require future treatment costs and associated determine when a discharge requires the deposit of letters of credit, cash administrative expenses. We extensively long-term treatment, and we will not accounts, certificates of deposit, stocks, revised proposed paragraph (b)(2) in attempt to define all potential sources of bonds, or real property, all of which can response to comments and incorporated treatment requirements in this rule. be used to fund treatment if the it as part of final paragraph (c)(2). The One commenter on proposed permittee fails to do so. Surety bonds preamble to final paragraph (c) paragraph (c) urged us to allow the use provide a guarantee of payment of a sum discusses the comments received and of cost data from the operation of certain from an independent company. the revisions made. existing water treatment facilities to One regulatory authority requested Proposed paragraph (b)(3) provided project likely future costs of long-term that we revise the rule to also allow the that operations with discharges in states treatment of discharges. No rule change use of surety bonds because it had long with an approved alternative bonding is needed because nothing in section done so with success. As stated in the system must comply with the 800.18 prohibits the use of data from preamble to the proposed rule,600 we requirements of proposed § 800.9(d)(2), existing water treatment facilities to continue to believe that surety bonds are which pertains to alternative bonding predict future treatment costs. not the best means of guaranteeing systems other than financial assurances. Final Paragraph (c): Calculation of treatment of a postmining discharge We received no comments specific to Amount of Financial Assurance or because a surety bond is not designed to proposed paragraph (b)(3). We are Performance Bond provide the income stream needed to adopting proposed paragraph (b)(3) in revised form as final paragraph (b)(2). As discussed above, we did not adopt 599 30 U.S.C. 1259(c). We revised this paragraph for proposed paragraph (c). Instead, final 600 80 FR 44436, 44533 (Jul. 27, 2015). consistency with our revisions to paragraph (c) specifies how to

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00184 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93249

determine the amount of financial pay for treatment of the discharge in sufficient to cover future treatment costs assurance or performance bond required perpetuity, together with related and associated administrative to guarantee long-term treatment of a administrative, maintenance, expenses.’’ As the commenter pointed discharge. Proposed paragraph (d) renovation, replacement, and land out, state law may not allow this already contained provisions governing reclamation expenses. In response to the conversion, which means that the calculation of the amount of financial commenter’s concerns with respect to premise in the proposed rule for assurance required, so final paragraph bond forfeiture and the handling of calculation of the bond amount is not (c)(1) specifies that, if the permittee bond forfeiture proceeds, we revised our correct. Even in those cases where state elects to post a financial assurance, the bond forfeiture regulations to clarify law may allow conversion of bond regulatory authority must calculate the that, if the permittee defaults on forfeiture proceeds into a financial amount of financial assurance required treatment obligations, the regulatory instrument equivalent to a financial in the manner provided in final authority must forfeit an amount of assurance, proposed paragraph (b)(2) paragraph (d). bond that is no less than the estimated did not specify how the regulatory As also discussed above, we are total cost of achieving the reclamation authority must calculate the amount of adopting proposed paragraph (b)(2) in plan requirements with respect to the bond that the permittee must post to be revised form as final paragraph (c)(2). discharge. We also revised our bond ‘‘sufficient to cover future treatment Final paragraph (c)(2) establishes how forfeiture regulations to specify that the costs and associated administrative the regulatory authority must calculate regulatory authority must calculate the expenses.’’ We agree with the the amount of collateral bond or surety estimated total cost of achieving the commenter that the method of bond that a permittee electing that reclamation plan requirements for long- calculation should be consistent with option must post. One commenter on term treatment of a discharge in a the method prescribed for financial proposed paragraph (b)(2) observed that manner consistent with final assurances to ensure that the amount the regulatory authority may not have § 800.18(c). See final § 800.50(a)(1)(ii). posted will be adequate to fully fund the legal authority under state law to In addition, final § 800.50(b)(2) requires future treatment needs and associated convert the bond forfeiture proceeds to that the regulatory authority use the costs. a financial instrument that will generate funds collected from bond forfeiture to In response to this comment, final funds. According to the commenter, a complete the reclamation plan, or the paragraph (c)(2) establishes criteria for collateral bond may not be an portion of the reclamation plan covered calculation of the amount of collateral appropriate mechanism for securing by the bond, on the permit area or bond or surety bond required. It long-term treatment obligations if the increment to which the bond applies. provides that, if the permittee elects to applicable state law requires the To further address the commenter’s post a collateral bond or surety bond, regulatory authority to deposit bond concerns, we replaced the phrase the bond amount must be no less than forfeiture proceeds in an account that ‘‘complete the reclamation plan, or the present value of the funds needed to earns little or no interest. The portion thereof,’’ in previous pay for— commenter recommended that we revise § 800.50(b)(2) with ‘‘complete the (i) Treatment of the discharge in proposed paragraph (b)(2) to provide reclamation plan, or the portion thereof perpetuity, unless the permittee that, in determining the amount of the covered by the bond,’’ to clarify that the demonstrates, and the regulatory collateral bond, the regulatory authority regulatory authority may not choose to authority finds, based upon available must account for how the moneys ignore any element of the reclamation evidence, that treatment will be needed obtained by collecting and liquidating plan that is covered by the bond. for a lesser time, either because the the bond will be managed. The commenter also recommended discharge will attenuate or because its We do not agree that a collateral bond that we revise the provisions governing quality will improve. This paragraph may not be an appropriate mechanism use of collateral bonds to guarantee corresponds to the first sentence of final for guaranteeing long-term treatment long-term treatment to include paragraph (d)(1)(i) for financial obligations. A collateral bond does not provisions similar to those that apply to assurances. generate a revenue stream for treatment, financial assurances under proposed (ii) Treatment of the discharge during but that does not matter as long as the paragraph (d). Most provisions of the time required to forfeit and collect permittee continues to treat the proposed and final paragraph (d) are the bond. This paragraph corresponds to discharge and the amount of the bond specific to financial assurances and, and replaces proposed paragraph (b)(2). is sufficient to cover future treatment thus, are not suitable for collateral (iii) Maintenance, renovation, and costs in the event of forfeiture. Nor do bonds. However, we agree that certain replacement of treatment and support we agree with the commenter’s provisions of proposed and final facilities as needed. This paragraph recommendation that we revise paragraph (d) that govern calculation of corresponds to final paragraph (d)(1)(ii) proposed paragraph (b)(2) to provide the amount of financial assurance that for financial assurances. that, in determining the amount of the the permittee must post are transferable (iv) Final reclamation of sites upon collateral bond, the regulatory authority to determinations of the amount of which treatment facilities are located must account for how the moneys collateral or surety bond that the and areas used in support of those obtained by collecting and liquidating permittee must post to ensure future facilities. This paragraph corresponds to the bond will be managed. Regulatory treatment. (As previously discussed, in final paragraph (d)(1)(iii) for financial authorities have extensive experience response to a different comment, we are assurances. managing bond forfeitures under adding surety bonds to the list of (v) Administrative costs borne by the SMCRA and we have no reason to acceptable financial instruments to regulatory authority. This paragraph believe that they are not capable of guarantee long-term treatment of corresponds to final paragraph (d)(1)(iv) managing collateral bonds posted to discharges.) for financial assurances. guarantee long-term treatment of Proposed paragraph (b)(2) envisioned The present value requirement discharges. that, after forfeiting a collateral bond, reflects the fact that, unlike financial Final paragraph (c)(2) requires that the regulatory authority would ‘‘convert assurances, collateral and surety bonds the amount of the bond be no less than the proceeds to a financial instrument do not provide an income stream to the present value of the funds needed to that will generate funds in an amount offset future treatment costs, nor do they

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00185 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93250 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

accrue interest or other earnings that are necessarily improve to the point that the permit until the trust fund or annuity available to the regulatory authority, so discharge no longer required treatment. reaches a self-sustaining level as the initial bond amount posted must be One commenter objected to the determined by the regulatory authority. adequate to fund all future costs related provision in proposed paragraph One commenter alleged that this to long-term treatment of discharges, (d)(1)(i) that placed the burden on the provision of proposed paragraph which is why the rule requires the permittee to demonstrate that a (d)(1)(i) implies that the regulatory present value of those expenses as discharge will not continue to require authority may withhold the release of a opposed to the net present value. treatment in perpetuity. The commenter surety bond for the permit until a trust asserted that the rule should establish or annuity is fully funded. According to Final Paragraph (d): Requirements for the nature and level of proof needed to the commenter, this action represents a Financial Assurances make that demonstration. We are not fundamental misunderstanding of For the reasons discussed below and aware of any methodology that can surety law because it requires the surety in the preamble to the proposed rule, we reliably predict a precise endpoint for to guarantee the permittee’s financial are adopting proposed paragraph treatment of a particular discharge. performance, which effectively converts (d)(1)(i) as final with minor editorial Furthermore, section 510(a) of the surety bond to a financial guarantee. revisions, the most significant of which SMCRA 602 provides that the permit The commenter is concerned that this replaces ‘‘permit’’ with ‘‘permit or applicant ‘‘shall have the burden of requirement will result in a great deal of permit increment’’ in recognition of the establishing that his application is in difficulty in obtaining surety bonds. The fact that permits may be bonded in compliance with all the requirements of commenter also alleged that the increments, in which case the the applicable State or Federal provision runs afoul of §§ 800.13 and provisions of this paragraph apply only program.’’ In addition, including 800.14, which, according to the to the bond for the permit increment. prescriptive provisions of the nature commenter, provide that separate bonds Proposed paragraph (d)(1)(i) provided recommended by the commenter might may be written not only for ecological that the trust fund or annuity must be be counterproductive in that they could restoration, but for any other specific established in a manner that guarantees prevent permittees from taking matter that a surety does not wish to that sufficient moneys will be available advantage of innovative technological cover. when needed to pay for treatment of and scientific advances. Final paragraph (d)(1)(i)(B) expressly discharges in perpetuity, unless the The commenter also asserted that requires that the regulatory authority paragraph (d)(1)(i) should expressly permittee demonstrates, and the retain all performance bonds posted for state that software packages such as regulatory authority finds, based upon the permit or permit increment until the AMD Treat and data from existing water available evidence, that treatment will trust or annuity reaches a self-sustaining treatment facilities can be used to be needed for a lesser time, either level as determined by the regulatory calculate total treatment costs over time. because the discharge will attenuate or authority. This provision is a logical We see no need to include this because its quality will improve. A implementation of section 509(a) of statement in the rule. Nothing in the 603 number of commenters opposed SMCRA, which requires that the final rule precludes use of either data performance bond be conditioned upon proposed paragraph (d)(1)(i) on the basis from existing treatment facilities or the ‘‘faithful performance of all the that there is insufficient evidence to AMD Treat software. However, the requirements of this Act and the justify an assumption that discharges software inputs and assumptions must permit.’’ Part IX.K.1. of the preamble to will require treatment in perpetuity. We be consistent with the requirements of the proposed rule contains an extensive disagree. The preamble discussion of this final rule. As another commenter explanation of why long-term treatment this issue in the proposed rule 601 noted, the AMD Treat software uses a of discharges is a requirement of explains that the prediction of future default value of 75 years for the life of SMCRA. See 80 FR 44436, 44532–44534 discharge quality is an imprecise the trust. That default value is (Jul. 27, 2015). We acknowledge that the science. This lack of precision and the inconsistent with this rule, which rule may decrease the willingness of the variability in discharge quality, together requires a default value of perpetuity in surety industry to underwrite with the potentially serious the absence of a demonstration that a performance bonds for the coal mining environmental impacts of toxic mine shorter treatment period will be industry, but both SMCRA and the drainage on water quality and aquatic sufficient. We agree with the regulations authorize other types of life, justify use of a worst-case scenario commenter’s observation that bonds, such as collateral bonds. We when establishing financial assurance spreadsheets can be created that rely reject the commenter’s assertion that requirements to ensure that adequate upon the same formula as the AMD § 800.18(d) runs afoul of §§ 800.13 and funds are available. Treat software, but that replace the 75- 800.14, as well as the commenter’s Some commenters misinterpreted the year default value when performing the allegation that §§ 800.13 and 800.14 studies cited in the preamble to recapitalization cost present value authorize separate bonds for any proposed paragraph (d)(1)(i). Those calculations with an assumption that specific reclamation obligation that the studies found that discharge quality the treatment period will be of infinite surety does not wish to cover. The improves over time for surface mines duration. comment implies that the surety can and below-drainage underground Proposed paragraph (d)(1)(i) also unilaterally decide that its bond does mines—and even for some above- provided that the regulatory authority not cover certain obligations under the drainage underground mines. According may accept arrangements that allow the permit, which has never been the case to the commenters, those studies permittee to build the amount of the under any version of our regulations. demonstrate that the need for discharge trust fund or annuity over time, The regulatory authority may, but is not treatment has an endpoint. However, provided that the permittee continues to required to, accept a bond that covers the studies do not support the treat the discharge during that time and only certain reclamation obligations commenters’ conclusion. While the regulatory authority retains under the permit, provided that a discharge quality improved, it did not performance bonds posted for the different bond covers the other

601 80 FR 44436, 44532 (Jul. 27, 2015). 602 30 U.S.C. 1260(a). 603 30 U.S.C. 1259(a).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00186 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93251

reclamation obligations. Final § 800.20 unpredicted events. Instead, section financial assurance hold a conservative, specifies that surety bonds are non- 509(e) of SMCRA and its implementing low-risk investment portfolio. cancellable during their terms. regulations at 30 CFR 800.15 require The commenter noted that proposed One commenter recommended that that the regulatory authority adjust the paragraph (d)(2) did not define we add the following sentence after the bond whenever the cost of future ‘‘investment objectives.’’ According to first sentence of proposed paragraph reclamation changes. Section 800.18(f) the commenter, preceding provisions of (d)(1)(i): ‘‘If the regulatory authority of the final rule includes similar proposed § 800.18(d) establish that the does not find that treatment will be requirements for financial assurances. primary objective of the trust or annuity needed for a lesser time, all calculations Furthermore, final paragraph (f)(1) is to guarantee treatment of the of the dollar amount of the financial requires that the regulatory authority discharge for as long as necessary, assurance, or any component of that conduct an annual review of the presumptively in perpetuity. Therefore, overall amount, must be based on an adequacy of the trust or annuity and the the commenter reasoned, any subsidiary infinite treatment period.’’ We find that assumptions upon which the trust or objectives must serve that primary the revision recommended by the annuity is based. Final paragraph (f)(2) objective and the composition of the commenter is unnecessary because, as specifies that the regulatory authority investment portfolio likewise must proposed, paragraph (d)(1)(i) of the final must require that the permittee provide reflect the primary objective. rule provides that the regulatory additional resources to the trust or The commenter provided additional authority must calculate the amount annuity whenever the review conducted explanation, which we paraphrase as needed for the trust or annuity using an under paragraph (f)(1) or any other follows: Risk tolerance is at its lowest assumption that the discharge will information available to the regulatory when a trust provides the only source of require treatment in perpetuity, unless authority at any time demonstrates that funding for an essential product or the permittee can demonstrate the financial assurance is no longer service. For example, a trust established otherwise. adequate to meet the purpose for which to provide funding for a regular course Proposed paragraph (d)(1)(ii) it was established. The combination of of treatment like kidney dialysis in a provided that the trust or annuity must these two requirements should be setting where there is no secondary be established in a manner that sufficient to address the commenter’s mechanism (e.g., health insurance or a guarantees that sufficient moneys will concerns in most cases. charitable hospital) that will provide the be available when needed to pay for Proposed paragraph (d)(1)(iii) treatment if the trust comes up short maintenance, renovation, and provided that the trust or annuity must would have an extremely low tolerance replacement of treatment and support be established in a manner that for risk. Three factors make mine facilities as needed. We are adopting guarantees that sufficient moneys will drainage treatment trusts or annuities proposed paragraph (d)(1)(ii) as final be available when needed to pay for especially intolerant of risk. First, the without change. final reclamation of the sites upon liabilities they cover are both One commenter asserted that we which treatment facilities are located continuous and perpetual. As in the should revise proposed paragraph and areas used in support of those kidney dialysis example, even (d)(1)(ii) to require that the financial facilities. We received no comments temporary interruptions are assurance include a component to specific to proposed paragraph unacceptable, but the difference is that account for unpredicted events, (d)(1)(iii), which we are adopting it as for the mine drainage trusts, the including possible catastrophic failure final without change. ‘‘patient’’ is assumed to live and need of the treatment system or components Proposed paragraph (d)(1)(iv) treatment forever. Second, they must of it, because the assumption of a zero provided that the trust or annuity must supply a firm guarantee; i.e., sufficient risk of premature system failure is be established in a manner that treatment funds must be immediately unreasonably rosy. According to the guarantees that sufficient moneys will available whenever needed. Third, they commenter, treatment systems, even be available when needed to pay for must be self-sustaining because the passive ones, fail more often than we administrative costs borne by the permittees that establish them will not would hope, sometimes regulatory authority or trustee to be around forever. By its nature, a catastrophically, and sometimes far implement paragraphs (d)(1)(i) through guarantee is supposed to eliminate or earlier than the predicted life cycle of (iii). We received no comments specific minimize risk, not invite it. Accepting the failed components. The commenter to proposed paragraph (d)(1)(iv), which significant risk of underperformance or suggested that, in calculating the we are adopting it as final without failure in exchange for higher potential amount of financial assurance or bond change. returns on investment may be a required, the regulatory authority must Proposed paragraph (d)(2) provided reasonable decision in some account for not only predicted events that the regulatory authority must circumstances, but not when the assets but also the risks posed by unpredicted specify the investment objectives of the must provide a guarantee, and events, including premature failure of trust or annuity. One commenter especially not when the guarantee is for the treatment system or its components. asserted that a financial assurance that a perpetual obligation. Greater risk in According to the commenter, the is not backstopped by some other form the investment portfolio also would be regulatory authority may not rely on the of treatment guarantee must acceptable where there is some permittee to provide additional funding demonstrate that it will be self- secondary financial guarantee over the long term because there is no sustaining forever to provide a solid immediately available to shield the guarantee that the permittee will be in guarantee of treatment in perpetuity. public from the risk. However, the existence for the long term. The commenter alleged that increasing proposed rule would allow the We are aware of no realistic means of the risk level of the financial assurance’s permittee to establish a financial predicting the cost of unpredicted and investment portfolio decreases the assurance as the lone guarantee of long- unpredictable events. Therefore, we are likelihood that the financial assurance term treatment. As a result, according to not revising our rules in the manner will be self-sustaining forever. the commenter, the risk tolerance of the sought by the commenter. Nothing in Therefore, according to the commenter, financial assurance is extremely low. section 509 of SMCRA requires that the we must revise proposed paragraph The commenter asserted that bond amount include a component for (d)(2) to expressly require that a proposed paragraphs (d)(2) and (3)

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00187 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93252 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

would allow the regulatory authority to trust or annuity, as in proposed commenter asserted that final paragraph specify that a trust invest exclusively in paragraph (d)(2), final paragraph (d)(2) (d)(3) must require that the calculation high-risk securities (e.g., junk bonds), as establishes criteria for the composition of the amount of the trust fund or long as it assigned a conservative of the investment portfolio to ensure annuity include adjustments for anticipated rate of return to that high- attainment of that objective, as the inflation and management fees; i.e., the risk portfolio. The commenter argued commenter recommended. Specifically, anticipated rate of return must be both that no matter how conservative the final paragraph (d)(2) provides that the real and net of management fees. predicted rate of return, the high-risk regulatory authority must require that We agree with the commenter. nature of the portfolio would be the investment portfolio held by the Section 509(a) of SMCRA provides that inappropriate for a financial assurance trust or annuity prudently account for the amount of a performance bond must required to provide a solid guarantee of the expected duration of the treatment be sufficient to assure the completion of uninterrupted, perpetual treatment. The obligation, the need to provide a the reclamation plan if the regulatory commenter recommended that we revise guarantee of uninterrupted treatment, authority has to perform the work in the proposed paragraph (d)(2) to provide and whether any other financial event of forfeiture. The revisions that that the regulatory authority must guarantee covers a portion of the the commenter recommends are require that the investment portfolio treatment obligation. As the commenter necessary to ensure that sufficient funds held by the financial assurance recommended under either alternative, will be available. Under section 509(c) prudently account for (i) the expected final paragraph (d)(2) also provides that, of SMCRA, an alternative bonding duration of the treatment obligation; (ii) if the financial assurance will provide system, which includes a financial the need to provide a guarantee of the only financial guarantee of assurance, must achieve the objectives uninterrupted treatment; and (iii) treatment, the regulatory authority must and purposes of the bonding of the whether any other financial guarantee require that the trust or annuity hold a bonding program, of which the covers the treatment obligation. As an low-risk investment portfolio. provision of section 509(a) described alternative, the commenter suggested Proposed paragraph (d)(3) provided above is one. Therefore, final paragraph that we revise proposed paragraph (d)(2) that, in structuring the trust or annuity, (d)(3) provides that, in determining the to provide that the regulatory authority the regulatory authority and the required amount of the trust or annuity, must require that the investment permittee must base calculations on a the regulatory authority must base portfolio held by the financial assurance conservative anticipated rate of return present value calculations on a prudently account for the risk tolerance on the proposed investments that is conservative anticipated real rate of of the trust fund or annuity. The consistent with long-term historical return on the proposed investments. commenter further asserted that under rates of return for similar investments. Final paragraph (d)(3) also specifies that both alternatives, the final paragraph One commenter expressed concern that the rate of return must be net of (d)(2) must specify that, if the financial the proposed rule did not address how management or trustee fees. assurance will provide the only the proposed investments would be The commenter also opposed the financial guarantee of treatment, the proposed, reviewed, and approved. provision of proposed paragraph (d)(3) regulatory authority must require that We do not intend for these rules to be that would require that the anticipated the financial assurance hold a low-risk overly prescriptive. The regulatory rate of return used in calculating the investment portfolio. authority may establish additional amount of a financial assurance be We concur with the commenter that procedural requirements if it desires to ‘‘consistent with long-term historical proposed paragraph (d)(2) is in need of do so, but we do not find that level of rates of return for similar investments.’’ revision for the reasons set forth in the detail necessary or appropriate for this The commenter observed that historical comments submitted, as summarized rule. Final paragraph (d)(2) establishes rates of return are not necessarily above. After evaluating the two the three basic factors that the predictive of future rates of return, alternatives that the commenter regulatory authority must consider in which means that the only rates of provided, we determined that the first reviewing the investment portfolio of return that matter are those that the alternative provides more guidance and the trust fund or annuity; that investment portfolio will earn in the is less subjective and easier to requirement should be sufficient for future. Therefore, the commenter understand than the second alternative. purposes of this rule. argued, the rule should require use of Therefore, as the commenter The commenter recommended that the best objective forecast of future long- recommended, final paragraph (d)(2) we revise proposed paragraph (d)(3) to term rates of return on a given class of provides that the regulatory authority expressly require that determination of assets, even if that forecast is must require that the investment the amount that the permittee must post significantly below the historical portfolio held by the financial assurance for a trust fund or annuity be based on average rate of return. The commenter prudently account for (i) the expected present value calculations. Present suggested that we either delete all duration of the treatment obligation; (ii) value calculations account for inflation, mention of historical rates of return the need to provide a guarantee of which means that they are based on real from paragraph (d)(3) or require that the uninterrupted treatment; and (iii) rather than nominal rates of return. regulatory authority afford ‘‘whatever whether any other financial guarantee According to the commenter, present consideration is appropriate’’ to covers the treatment obligation. value calculations also must account for historical rates of return. We concur We also revised proposed paragraph any fees paid to the trustee or manager. with the commenter’s arguments against (d)(2) to eliminate the reference to The commenter notes that proposed the proposed requirement that the ‘‘investment objectives.’’ As the § 800.18 does not specifically mention anticipated rate of return be consistent commenter noted, there is only one inflation or management fees and that with historical long-term rates of return. primary objective, which is to guarantee proposed paragraph (d)(3) does not Final paragraph (d)(3) does not include treatment of the discharge in perpetuity specify whether the anticipated rate of that provision. or for as long as treatment is necessary, return to which it refers is real A commenter expressed concern as paragraph (d)(1) requires. Instead of (reflecting adjustments for inflation) or about how regulatory authorities will simply requiring that the regulatory nominal, net (reflecting a reduction for determine whether a trust or annuity is authority specify the objectives of the management fees) or gross. The fully funded when the trust includes

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00188 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93253

assets with contingent value; e.g., coal property associated with long-term received no comments specific to reserves that can be converted to cash treatment facilities because it will be proposed paragraph (d)(6), which we are only if there is a willing purchaser or difficult if not impossible for the trustee adopting as final paragraph (d)(6) with lessee. The commenter cited an example to ensure the continuation of treatment minor editorial revisions. in which more than $3 million of a $7 operations when the permittee ceases Proposed paragraph (d)(7) provided million trust consisted of coal reserves treatment if the trustee is not provided that a financial institution or company pledged to the trust, but for which a rights to the personal and real property serving as a trustee or issuing an purchaser or lessee never materialized, involved. The commenter explained annuity must be a national bank leaving the trust severely under-funded. that it had encountered the need to chartered by the Office of the Based on this example, the commenter transfer ownership of treatment Comptroller of the Currency, an asserted that final § 800.18(d) must facilities and equipment to the trustee operating subsidiary of a national bank ensure that the dollar value assigned to so that if the permittee ceases to treat chartered by the Office of the the assets held by a trust or annuity is water at the site, the trustee can take Comptroller of the Currency, a bank or properly discounted for any possession of the personal property trust company chartered by the state in contingency. The commenter needed to continue the treatment which the operation is located, an recommended that final § 800.18 operations. The commenter noted that it insurance company licensed or include a provision that financial had seen state regulatory authorities authorized to do business in the state in assurances may only hold assets that are require that permittees transfer which the operation is located or immediately marketable and readily treatment equipment to the trustee to designated by the pertinent regulatory converted into cash. Alternatively, hold in the event the trustee needs to body of that state as an eligible surplus according to the commenter, final take over water treatment. In the lines insurer, or any other financial § 800.18 could specify that a financial commenter’s experience, a bill of sale of institution or company with trust assurance that holds assets that are not the treatment equipment to the trustee powers and with offices located in the immediately marketable or readily with a license back to the operator for state in which the operation is located. convertible into cash may not be use in water treatment operations With the exception discussed below, we considered fully funded until those worked successfully. The commenter are adopting proposed paragraph (d)(7) asserts are converted into either cash or recommended that we revise the final as part of the final rule. assets that are immediately marketable rule to provide a mechanism whereby One commenter opposed the mandate and readily converted into cash (i.e., the regulatory authority can require the in proposed paragraph (d)(7)(v) that the until the contingency on their valuation permittee to grant the trustee the real financial institution or company be is removed). Finally, the commenter and personal property rights necessary required to have an office located in the suggested that final section 800.18(d) to continue water treatment in the event state in which the operation is located. could include a provision similar to the permittee goes out of business or According to the commenter, this § 800.21(e)(1) governing collateral ceases water treatment for other reasons. provision is arbitrary, capricious, and an bonds. That provision draws a We agree with the commenter for the unconstitutional restraint on interstate distinction between the bond value and reasons set forth in the comment. Final the market value of the posted paragraph (d)(4)(ii) provides that, when commerce. The commenter also alleged collateral, with the former taking into appropriate, the terms and conditions of that this provision would be an unwise account the ‘‘legal and liquidation fees, the financial assurance must include a policy choice because not every state as well as value depreciation, mechanism whereby the regulatory that has long-term water treatment marketability, and fluctuations that authority may require the permittee to issues will have sufficient mine might affect the net cash available to the grant the trustee the real and personal discharge problems for a company to regulatory authority to complete property rights necessary to continue justify the establishment of a physical reclamation.’’ treatment in the event that the permittee office in that state. The commenter We agree with the commenter that ceases treatment. These rights include, further alleged that the requirement for real estate, including coal reserves, is an but are not limited to, access to and use an office located in the state does not inappropriate element of a trust or of the treatment site and ownership of appear to be reasonably related to the annuity unless that real estate is of an treatment facilities and equipment. goal of proposed paragraph (d)(7), income-producing nature. However, we Proposed paragraph (d)(5) provided which is to ensure that only competent see no need to adopt any of the rule that the trust or annuity must and reliable companies are allowed to changes that the commenter irrevocably establish the regulatory be trustees. According to the recommends. The investment portfolio authority as the beneficiary of the trust commenter, adoption of proposed criteria that we adopted as part of final or of the proceeds from the annuity for paragraph (d)(7)(v) would run counter to § 800.18(d)(2) and the requirement in the purpose of treating mine drainage or this goal because it would likely to final § 800.18(d)(3) that the required other mining-related discharges to make it more difficult for competent and amount of the trust fund or annuity be protect the environment and users of reliable companies that do not happen based upon present value calculations surface water. We received no to have a physical office in a state to using a conservative anticipated real comments specific to proposed serve as a trustee. The commenter rate of return for investments should paragraph (d)(5), which we are adopting suggested that we revise proposed preclude a recurrence of the example as final paragraph (d)(5) with minor paragraph (d)(7)(v) by replacing the cited by the commenter. editorial revisions. requirement for an office located in the Proposed paragraph (d)(4) provided Proposed paragraph (d)(6) specified state with a requirement that the that the trust or annuity must be in a that the trust or annuity must provide company be authorized to do business form approved by the regulatory that disbursement of money from the in the state, have trust powers authority and contain all terms and trust or annuity may be made only upon satisfactory to the regulatory authority, conditions required by the regulatory written authorization from the and be examined or regulated by a state authority. One commenter requested regulatory authority or according to a or federal agency. We agree with the that we clarify in the final rule how the schedule established in the agreement commenter’s arguments and suggested trust will hold personal and real accompanying the trust or annuity. We revisions. Final paragraph (d)(7)(v)

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00189 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93254 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

incorporates all of the commenter’s (e)(4). A commenter recommended or the regulatory authority must procure recommendations. deletion of proposed paragraph (e)(4), a new trustee. The commenter further recommended which provided that the regulatory One commenter recommended that that the final rule clarify that the authority could terminate a trust or we delete the phrase ‘‘demise of the SMCRA regulatory authority may annuity upon a determination that the trustee or the company issuing the function as a ‘‘state or federal agency’’ trustee’s administration of the trust or annuity’’ in the introductory text of under paragraph (d)(7)(v), which annuity is unsatisfactory to the proposed paragraph (e) because state provides that the trustee must be a regulatory authority. According to the law and trust instruments address financial institution or company whose commenter, state law and trust substitution of trustees in the event of ‘‘activities are examined or regulated by instruments can make provision for the demise of a trustee and that, thus, a state or federal agency.’’ The changing trustees if trust performance is there is no need for the rule to address commenter noted that the SMCRA an issue. The commenter explained that this situation. The commenter explained regulatory authority provides the termination of the trust may have that, in her experience, a clause primary regulatory oversight in every unintended results, such as triggering terminating the trust upon the demise of state in which the commenter has disposition of the trust assets outside the trustee likely would create problems established long-term treatment trusts. the trust, which means that they would for the regulatory authority because it We decline to adopt this no longer be available to cover treatment would terminate the authority of the recommendation because final costs. The commenter further explained regulatory authority to keep the assets of paragraph (d)(7)(v) applies to financial that trust instruments used by the trust within the trust, which means institutions and companies, which the regulatory authorities have provisions that the regulatory authority would lose SMCRA regulatory authority has neither for continuing the trust while obtaining the income-generating advantages of the the expertise nor the authority to a new trustee. Finally, the commenter trust. The commenter stated that a trust oversee or regulate. However, adoption noted that paragraph (e)(4) does not is intended to be as close to a perpetual of this rule will not necessarily interfere belong in paragraph (e) because instrument as is possible under current with the commenter’s operations paragraph (e)(4) pertains to replacement law. Therefore, according to the because the commenter is a not-for- of the trustee, while paragraph (e) commenter, termination should be profit organization, which means that it pertains to termination of the trust. limited to situations in which there is is not subject to final paragraph (d)(7). We concur with the commenter that no longer any need for the trust. The Instead, it must meet the criteria for not- proposed paragraph (e)(4) was commenter explained that the trust for-profit organizations under final improperly located, but we do not agree instruments should cover all other paragraph (d)(8). that the provision itself should be situations. The commenter also asserted The commenter requested that the deleted entirely. We find merit in that, with respect to annuities, a final rule clarify that a long-term retaining a provision that requires regulatory authority may run the risk of treatment trust can consist of both a replacement of the trustee when the compromising a claim against the trustee and a separate custodian of the regulatory authority determines that the liquidating underwriter of an annuity if financial assets in the trust. According trustee’s performance is unsatisfactory. the regulatory authority terminates that to the commenter, this approach works Therefore, while we are not adopting annuity. well for long-term treatment trusts proposed paragraph (e)(4), we are Based on the information and because it provides an extra level of adopting a similar provision as final explanation provided by the protection and separation between the paragraph (d)(9). Final paragraph (d)(9) commenter, we did not include the purely financial aspects of the trust and provides that the permittee or the phrase ‘‘demise of the trustee or the management of the other aspects of regulatory authority must procure a new company issuing the annuity’’ in the trusts. We have no objection to this trustee when the trustee’s introductory text of final paragraph (e). arrangement, but no rule change is administration of the trust fund or As previously discussed in the preamble necessary because nothing in the final annuity is unsatisfactory to the to final paragraph (d)(9), we also are not rule prohibits this arrangement. regulatory authority. adopting proposed paragraph (e)(4) One commenter noted that adoption because it concerns termination of the of proposed paragraph (d)(7) would Final Paragraph (e): Termination of a trustee rather than the trust. We are prevent a not-for-profit organization Financial Assurance Instrument adopting paragraphs (e)(1) through (3) as from serving as a trustee, even though, Proposed paragraph (e) provided that proposed because termination of a trust at present, at least one such organization termination of a trust or annuity may or annuity under those circumstances is is successfully operating as a trustee for have occurred only upon the demise of appropriate and will not have any discharge treatment trusts. In response, the trustee or the company issuing the adverse impacts. Final paragraph (e)(1) we have added paragraph (d)(8), which annuity or as specified by the regulatory allows termination when no further provides that the regulatory authority authority upon a determination that one treatment or other reclamation measures may allow a not-for-profit organization of the four situations described in are necessary. Final paragraph (e)(2) under section 501(c)(3) of the Internal paragraphs (e)(1) through (4) exists. allows termination when a satisfactory Revenue Code to serve as a trustee if the Those situations are: (1) No further replacement financial assurance or bond organization maintains appropriate treatment or other reclamation measures has been posted. And final paragraph professional liability insurance coverage are necessary; (2) a satisfactory (e)(3) allows termination when the and if the regulatory authority replacement financial assurance or bond terms of the trust fund or annuity determines that the organization has has been posted in accordance with establish conditions for termination and demonstrated the financial and paragraph (g); (3) the terms of the trust those conditions have been met. technical capability to manage trust or annuity establish conditions for funds and assume day-to-day operation termination and those conditions have Final Paragraph (f): Regulatory of the trust and treatment facility in the been met; and (4) the trustee’s Authority Review and Adjustment of event of a default. administration of the trust or annuity is Amount of Financial Assurance Final paragraph (d)(9) is the unsatisfactory to the regulatory Proposed paragraph (f)(1) provided counterpart to proposed paragraph authority, in which case the permittee that the regulatory authority must

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00190 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93255

establish a schedule for reviewing the those facilities. We received no should suffice and the regulatory performance of the trustee, the adequacy comments specific to this paragraph, authority should accept the surety bond. of the trust or annuity, and the accuracy which we are adopting in final form as In response to these comments, final of the assumptions upon which the trust proposed, with minor editorial § 800.20(c) no longer contains any or annuity is based. The proposed rule revisions. mention of the adequacy of reinsurance. specified that this review must occur on Our decision not to adopt this proposed at least an annual basis. Proposed Section 800.20: What additional provision should not be interpreted as a paragraph (f)(2) provided that the requirements apply to surety bonds? prohibition on regulatory authorities regulatory authority must require that Section 800.20 implements and conducting an analysis of the adequacy the permittee provide additional fleshes out section 509(b) of SMCRA,604 of reinsurance if they have the ability to resources to the trust or annuity which specifies that ‘‘[t]he bond shall be do so. We have instead revised the whenever the review conducted under executed by the operator and a proposed rule to focus on our primary paragraph (f)(1) or any other information corporate surety licensed to do business intent, which was to emphasize that the available to the regulatory authority at in the State where such operation is regulatory authority has the discretion any time demonstrates that the financial located.’’ Proposed paragraph (a) to establish limits on its exposure to a assurance is no longer adequate to meet provided that a surety bond must be single surety or the default of one or the purpose for which it was executed by the permittee and a more companies bonded by a single established. We received no comments corporate surety licensed to do business surety. specific to proposed paragraphs (f)(1) in the state where the operation is Final § 800.20(c) provides that the and (2), which we are adopting in final located. We received no comments regulatory authority may decline to form as proposed, with minor editorial specific to this paragraph, which we are accept a surety bond if, in the judgment revisions. adopting in final form as proposed. of the regulatory authority, the surety does not have resources sufficient to Proposed paragraph (b) provided that Final Paragraph (g): Replacement of cover the default of one or more mining surety bonds must be noncancellable Financial Assurance companies for which the surety has during their terms, except that surety Proposed paragraph (g) provided that provided bond coverage. This provision bond coverage for undisturbed lands a financial assurance may be replaced in is completely discretionary and the may be cancelled with the prior consent accordance with the provisions of criteria that the regulatory authority of the regulatory authority. The § 800.30(a), with the approval of the would use in deciding whether to proposed rule further provided that, regulatory authority. We received no accept a surety bond also are totally at within 30 days after receipt of a notice comments specific to this paragraph, the regulatory authority’s discretion. to cancel bond, the regulatory authority which we are adopting in final form as will advise the surety whether the bond Section 800.21: What additional proposed. may be cancelled on an undisturbed requirements apply to collateral bonds? Final Paragraph (h): Release of Liability area. We received no comments specific Proposed § 800.21 set forth the Proposed paragraph (h) provided that to this paragraph, which we are requirements that apply to various types release of reclamation liabilities and adopting in final form as proposed, with of collateral that may be posted as a obligations under financial assurances is minor editorial revisions. Final performance bond. Except as discussed subject to the applicable bond release paragraph (c) consists of proposed below, we received no comments on provisions of §§ 800.40 through 800.44. § 800.30(a)(2) in revised form. We are proposed § 800.21. We are adopting We received no comments specific to adopting proposed § 800.30(a)(2) as part proposed § 800.21 in final form as this paragraph, which we are adopting of final § 800.20 rather than as part of proposed, with minor editorial in final form as proposed. final § 800.30 because it pertains to revisions, unless otherwise noted below. sureties and, therefore, should apply to The second sentence of proposed Final Paragraph (i): Effect of Financial all surety bonds, regardless of whether paragraph (b)(2) provided that the Assurance on Release of Bond they are proffered as replacement bonds. regulatory authority must forfeit and Proposed paragraph (i) provided that Proposed § 800.30(a)(2) provided that collect on a letter of credit used as the permittee may apply for, and the the regulatory authority may decline to security in areas requiring continuous regulatory authority may approve, accept a proposed replacement surety bond coverage if the permittee has not release of any bonds posted for the bond if, in the judgment of the replaced the letter with another letter of permit or permit increment for which regulatory authority, the new surety credit or other suitable bond at least 30 the regulatory authority has approved a does not have adequate reinsurance or days before the letter’s expiration date. financial assurance under this section, other resources sufficient to cover the According to a commenter with provided that the permittee and the default of one or more mining experience in the use of letters of credit regulatory authority comply with the companies for which the surety has as a collateral bond, forfeiture is not bond release requirements and provided bond coverage. A few necessary because the regulatory procedures in §§ 800.40 through 800.44. commenters expressed concern about authority can draw upon the letter and The proposed rule specified that this the lack of criteria that the regulatory use the cash received to assure provision applies only if the financial authority could use in determining continuous bond coverage without assurance is both in place and fully whether to reject a surety. Another forfeiting the bond. In response to this funded; the permit or permit increment commenter found this provision comment, we revised the second fully meets all applicable reclamation problematic because regulatory sentence of proposed paragraph (b)(2) requirements, with the exception of the authorities generally lack the expertise and redesignated it as paragraph (b)(4) discharge and the presence of associated to review reinsurance contracts. in the final rule. Final paragraph (b)(4) treatment and support facilities; and the According to the commenter, if a state provides that, if the permittee has not financial assurance will serve as the department of insurance has licensed a replaced a letter of credit with another bond for reclamation of the portion of surety to conduct business, that license letter of credit or other suitable bond at the permit area required for postmining least 30 days before the letter’s water treatment facilities and access to 604 30 U.S.C 1259(b). expiration date, the regulatory authority

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00191 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93256 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

must draw upon the letter of credit and Specifically, final paragraph (c)(4) opposition to this proposed change, so use the cash received as a replacement provides that the appraised fair market we are adopting proposed § 800.23 as bond. value of real estate, as determined under part of the final rule. One commenter urged us to revise final paragraph (c)(2)(ii), is not the bond One commenter stated that there is a proposed paragraph (c) to clarify that, in value of the real estate. Under final pressing need to reform the self-bonding determining the bond value of real paragraph (c)(4), the regulatory rules more comprehensively, property, the regulatory authority need authority must calculate the bond value particularly in light of the dramatic not accept either the fair market value of real estate by discounting the decline of the western coal industry’s or the value placed on the property by appraised fair market value to account financial stability and inadequacy of the mining company, in keeping with for the administrative costs of self-bonds in a time of major coal previous preamble discussions that liquidating real estate, the probability of company bankruptcies. However, the accord discretion to regulatory a forced sale in the event of forfeiture, commenter acknowledged that authorities in evaluating real estate and a contingency reserve for comprehensive changes to § 800.23 are posted as a collateral bond. The unanticipated costs including, but not beyond the scope of the present commenter noted that regulatory limited to, unpaid real estate taxes, rulemaking. Another commenter urged authorities have experienced great liens, property maintenance expenses, us to revise § 800.23 to provide that no difficulty in collecting the bond value if and insurance premiums. part of a corporation may qualify for a a mining company defaults on a We also revised proposed paragraph self-bond if any part of that corporation, collateral bond guaranteed by real (e)(1) in response to comments. including any subsidiary, does not meet estate. She cited two instances in which Proposed paragraph (e)(1) required that the self-bonding eligibility the liquidation of real estate collateral a collateral bond be subject to a margin requirements. As discussed below, we yielded less than half of the bond value expressed as a ratio of bond value to intend to address the issues raised by of the collateral. The commenter further market value. One commenter observed these commenters as part of a separate explained that the administrative costs that this margin is not a ratio, but rather rulemaking because the proposed of liquidating real estate are high and a premium or additional amount stream protection rule did not include frequently are accompanied by required to cover the costs to liquidate or seek comment on changes of the unanticipated costs such as unpaid the collateral. The commenter requested nature that the commenters request. As discussed in the final RIA and EIS, taxes, maintenance issues, and the need that we eliminate the reference to a margin to improve accuracy and the energy industry is in the midst of a to maintain insurance on the property. adherence to plain language principles. major transformation. Low domestic and The commenter pointed out that The final rule implements the global demand for coal, plentiful low- appraisal principles recognize that commenter’s recommendation. Final cost shale gas, the strong U.S. dollar, forced sales will ordinarily not elicit a paragraph (e)(1) provides that the bond utility decisions to switch power plants fair market value for real property value (rather than the margin) of the from coal to natural gas, and coal power because fair market value assumes both collateral must reflect legal and plant retirements by utilities have a willing buyer and a willing seller who liquidation fees, as well as value created significant challenges for the are not under time constraints. Forced depreciation, marketability, and coal industry. Since the proposed sales do not meet those conditions. fluctuations that might affect the net stream protection rule was published in Therefore, according to the commenter, cash available to the regulatory July 2015, several large coal companies the regulatory authority must discount authority to complete reclamation. with approximately $2.4 billion in self- the value of real estate posted as a bonds filed for bankruptcy protection. collateral bond to account for Section 800.23: What additional On March 3, 2016, WildEarth administrative costs, property requirements apply to self-bonds? Guardians filed a petition for maintenance and insurance costs, and Under section 509 of SMCRA, a rulemaking under 30 CFR 700.12 the potential adverse implications of a regulatory authority may accept the self- requesting that we amend our self- forced sale. Otherwise, the regulatory bond of an applicant, where the bonding regulations at 30 CFR 800.23 to authority will not receive the funds applicant demonstrates, among other ensure that companies with a history of necessary to complete reclamation things, a history of financial solvency financial insolvency, and their under conditions of forfeiture. and continuous operation sufficient for subsidiary companies, are no longer To improve the probability that the authorization to self-insure (self- eligible to self-bond.606 In its petition, regulatory authority will realize the bond).605 The implementing federal WildEarth Guardians requested that we bond value of real property under regulations at 30 CFR 800.23 establish define ‘‘ultimate parent corporation,’’ conditions of forfeiture, we revised financial and other criteria for self- specify that the total amount of existing proposed paragraph (c) to provide more bonding as well as other requirements and proposed self-bonds may not specific safeguards when the permittee pertinent to self-bonding. Eighteen state exceed 25 percent of the ultimate parent posts real property as a collateral bond. regulatory programs allow self-bonding. corporation’s tangible net worth in the The revisions flesh out final paragraph We proposed only one substantive United States, require that both the self- (e)(1), which provides that the bond revision to previous § 800.23—a bonding applicant and its parent value of collateral is not the same as the revision of paragraph (b)(3)(i) to allow corporation be eligible to self-bond, and market value and which requires that the use of any nationally recognized prohibit self-bonding if either the the bond value reflect legal and statistical rating organization registered applicant or its parent corporation filed liquidation fees, as well as value with the Securities and Exchange for bankruptcy within the 5 years depreciation, marketability, and Commission in determining eligibility preceding the application to self-bond. fluctuations that might affect the net to self-bond, rather than limiting On September 7, 2016, we published cash available to the regulatory acceptable rating agencies to Moody’s a notice in the Federal Register granting authority to complete reclamation. Final Investor Service and Standard and the petition for rulemaking.607 The paragraph (c)(4) details the meaning of Poor’s. We received no comments in final paragraph (e)(1) in the context of 606 See 81 FR 31880–31881 (May 20, 2016). real property. 605 30 U.S.C. 1259(a). 607 81 FR 61612–61615 (Sept. 7, 2016).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00192 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93257

notice stated that we do not intend to collateral bonds whenever a self-bonded the permittee submits, and the propose the specific rule changes entity no longer meets the financial or regulatory authority approves, an identified in the petition because those other criteria for self-bonding. acceptable replacement. We received no changes did not address important comments specific to proposed Section 800.30: When may I replace a paragraph (a)(3), which we are adopting issues such as the process for evaluating performance bond or financial without change as final paragraph (a)(2), applications for self-bonds, monitoring assurance and when must I do so? the financial health of self-bonded with the exception that final paragraph entities, and providing a mechanism for Proposed paragraph (a) of this section (a)(2) refers to a ‘‘financial assurance’’ replacing self-bonds with other types of contains requirements pertaining to rather than a ‘‘financial assurance financial assurances if the need arises. replacement of performance bonds and instrument’’ for the reason discussed With respect to self-bonding, the notice financial assurances at the request of the above. provided that we anticipate reviewing permittee, while proposed paragraph (b) Proposed paragraph (b) pertains to the definitions in § 800.23(a) and the contains requirements pertaining to replacement of bonds by order of the financial tests and documentation replacement of performance bonds and regulatory authority. We received no required under § 800.23(b) to ensure financial assurances by order of the comments specific to this paragraph. We that the self-bond applicant is regulatory authority. The preamble to are adopting paragraphs (b)(1) and (2) as financially stable. The notice committed proposed § 800.30 contains a proposed, with the exception that we us to consider developing a systematic discussion of how proposed §§ 800.30 revised proposed paragraph (b)(2) to 608 review process for ascertaining whether differed from the previous rules. clarify that the notification under self-bonded entities remain financially Proposed paragraph (a) used the term § 800.16(e) to which that paragraph healthy and for spotting any adverse ‘‘financial assurance instruments.’’ refers means a notification from a bank, trends that might necessitate replacing a However, a commenter pointed out that surety, or other responsible financial self-bond with a different type of it would be more accurate to refer to entity. We also revised proposed financial assurance. We also will financial assurances, rather than to paragraph (b)(3) as discussed below. consider if we need to provide an financial assurance instruments. We Proposed paragraph (b)(3) would have independent third party review of the revised paragraph (a) in the manner that provided that, if the permittee does not self-bonding entity’s annual financial the commenter recommended because post replacement bond or financial reports and certification of the current this paragraph concerns replacement of assurance coverage within the time and future financial ability of the self- the entire financial assurance, not just established in an order issued under one of the instruments associated with bonding entity. We may propose paragraph (b)(2), the regulatory that assurance. additional procedures for replacing self- authority must issue a notice of Proposed paragraph (a)(1) provided violation to the permittee requiring that bonds in the event that a company no that the regulatory authority may allow the permittee post replacement bond or longer meets the financial tests and to the permittee to replace existing financial assurance coverage. Proposed clarify the penalties for an entity’s performance bonds and financial paragraph (b)(3) also would have failure to disclose a change in financial assurance instruments with other required that the notice of violation status. In addition, the notice stated that performance bonds and financial order a cessation of coal extraction and we are examining broader regulatory assurance instruments that provide initiation of reclamation activities under changes to part 800 to update our equivalent coverage. We received no §§ 816.132 or 817.132 if the permittee bonding regulations and ensure the comments specific to this paragraph, was actively conducting surface coal completion of the reclamation plan if which we are adopting as proposed, mining operations. However, upon the regulatory authority has to perform with the exception that final paragraph further review, we realized that the the work in the event of forfeiture. (a)(1) refers to ‘‘financial assurances’’ proposed rule did not properly convey Final § 800.4(d) clarifies that rather than ‘‘financial assurance our intent, which was to require regulatory authorities are under no instruments’’ for the reason discussed immediate cessation of all surface coal obligation to include the self-bond above. mining operations, not just coal option in their regulatory programs in Proposed paragraph (a)(2) provided extraction, followed by either posting of the first instance. In addition, on August that the regulatory authority may replacement bond or permanent 5, 2016, the Director of OSMRE issued decline to accept a proposed reclamation of the site under §§ 816.132 a policy advisory on self-bonding. The replacement surety bond if, in the or 817.132. We did not intend to require advisory states that ’’regulatory judgment of the regulatory authority, the that the permittee both post a authorities have discretion about new surety does not have adequate replacement bond or financial assurance whether to accept self-bonding,’’ even if reinsurance or other resources sufficient and permanently reclaim the site. an applicant or permittee meets to cover the default of one or more Therefore, we are not adopting the rule applicable eligibility criteria. According mining companies for which the surety as proposed. Instead, final paragraph to the advisory, ‘‘each regulatory has provided bond coverage. In this (b)(3) provides that, if the permittee authority should exercise its discretion final rule, we moved proposed does not post adequate bond or financial and not accept new or additional self- paragraph (a)(2) to final section assurance by the end of the time bonds for any permit until coal 800.20(c) because there is no reason to allowed under final paragraph (b)(2), the production and consumption market limit its applicability to replacement regulatory authority must issue a notice conditions reach equilibrium, events bonds. The preamble to final § 800.20(c) of violation requiring that the permittee which are not likely to occur until at discusses the comments that we cease surface coal mining operations least 2021.’’ Consistent with that received on proposed § 800.30(a)(2). immediately. The notice of violation guidance, we encourage regulatory Proposed paragraph (a)(3) provided also must require that the permittee authorities to robustly evaluate the that the regulatory authority may not either post adequate bond or financial financial condition of self-bonded release any existing performance bond assurance coverage before resuming companies and parent or third-party or financial assurance instrument until surface coal mining operations or guarantors on a regular basis and require reclaim the site in accordance with the replacement of self-bonds with surety or 608 80 FR 44539 (Jul. 27, 2015). provisions of §§ 816.132 or 817.132.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00193 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93258 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Section 800.40: How do I apply for identical to the introductory text of portion sought to be released.’’ We find release of all or part of a performance proposed paragraph (b)(2), with two that inclusion of the type of bond in the bond? exceptions. In the first sentence, we public notice would serve no useful Proposed § 800.40 corresponds to replaced the term ‘‘surface coal mining purpose because the notice concerns an previous § 800.40(a). We are adopting § operation’’ with ‘‘surface coal mining application for bond release, not an 800.40 as proposed, with the exception and reclamation operation’’ to reflect application for bond replacement. of minor editorial changes and the the fact that the site for which the Therefore, final paragraph (b)(3)(iv) does revisions discussed below. application is filed is in reclamation and not require that the notice include the Proposed paragraph (b)(1) required is no longer an active surface coal type of bond. Another exception is proposed that the bond release application mining operation. In the second paragraph (b)(2)(vi),which required that include the application form and sentence, we replaced ‘‘application’’ the public notice contain a description information required by the regulatory with ‘‘application form’’ because final of the results achieved under the authority. Final paragraph (b)(1) retains paragraph (b)(1) refers to the application approved reclamation plan, including the requirement for an application form, form and because the application an analysis of the results of the but it further specifies that the contains materials other than the form, including the copy of the advertisement monitoring conducted under §§ 816.35 application must be made on a form required by final paragraph (b)(3), through 816.37 or §§ 817.35 through prescribed by the regulatory authority, which does not need to be filed at the 817.37. Several commenters opposed consistent with other regulations. same time as the application form. this proposed requirement, noting the Specifically, final § 800.12(a) requires Proposed paragraphs (b)(2)(i) through expense of publishing what could be a that the regulatory authority prescribe (vii) required that the newspaper very lengthy notice. One commenter the form of the performance bond and advertisement include the name of the asserted that publishing monitoring final § 777.11(a)(3) requires that a permittee; the permit number and results might be beyond the capacity of permit application be filed in the format approval date; the number of acres and local newspapers. Another commenter prescribed by the regulatory authority. precise location of the land for which observed that the proposed rule did not We are extending this principle to bond release is being requested; the type specify how detailed this analysis applications for bond release. and amount of the bond filed and the should be or who determines what Final paragraph (b)(2) is a portion for which release is being constitutes a sufficient analysis. The combination of the part of proposed sought; the type and dates of commenter recommended that we revise paragraph (b)(1) that required submittal reclamation work performed; a the notice requirement to simply refer of ‘‘information required by the description of the results that the readers to the regulatory authority for regulatory authority’’ and the portion of permittee achieved under the approved more information on the analyses. proposed paragraph (b)(2)(vi) that reclamation plan and an analysis of the Another commenter urged deletion of requires a description of the results that results of the monitoring of proposed paragraph (b)(2)(vi) because the permittee has achieved under the groundwater, surface water, and the the information required by that approved reclamation plan and an biological condition of streams paragraph is inappropriate and analysis of the results of the monitoring conducted under §§ 816.35 through unnecessary for a public notice. The of groundwater, surface water, and the 816.37 or §§ 817.35 through 817.37; and commenter recommended that we move biological condition of streams the name and address of the regulatory this provision to be a separate element conducted under §§ 816.35 through authority. A few commenters suggested of the bond release application. 816.37 or §§ 817.35 through 817.37. In that the content requirements for the According to the commenter, this level the proposed rule, the latter requirement newspaper advertisement are excessive of analysis is more appropriate for an appeared in paragraph (b)(2)(vi) as one and ill-suited for a notice of that nature. application than for a public notice. of the elements of the newspaper According to the commenters, we In response to these comments, we advertisement. However, after should instead require that the moved most of proposed paragraph evaluating the comments that we advertisement refer readers to the (b)(2)(vi) to become part of the bond received, we determined that material of location where the bond release release application requirements of final this nature is more appropriately application may be reviewed in detail. paragraph (b)(2), with the level of detail considered to be part of the application We acknowledge the merit of the to be determined by the regulatory than part of the newspaper comment, but, in general, we cannot authority. However, section 519(a) of advertisement. adopt the recommendation because SMCRA specifically requires that the In the final rule, we are adopting section 519(a) of SMCRA 609 specifically public notice include ‘‘a description of proposed paragraph (b)(2) as final requires that the advertisement contain the results achieved as they relate to the paragraph (b)(3) because we divided most of the elements listed in proposed operator’s approved reclamation plan.’’ proposed paragraph (b)(1) into final paragraph (b)(2). Therefore, final paragraph (b)(3)(vi) paragraphs (b)(1) and (2). The One exception is proposed paragraph retains a requirement that the public introductory text of proposed paragraph (b)(2)(iv), which provided that, among notice include a brief description of the (b)(2) required that the application the items that the permittee must results achieved under the approved include a certified copy of an include in an advertisement published reclamation plan. One commenter advertisement published at least once a in a local newspaper announcing expressed concern that a resource issue week for four successive weeks in a submission of a bond release may exist if the regulatory authority is newspaper of general circulation in the application was the type and amount of responsible for determining the detail locality of the surface coal mining the bond filed and the portion for which required for the analysis of monitoring operation. The introductory text also release is sought. However, section results that the permittee must include provided that the permittee must submit 519(a) of SMCRA 610 requires only ‘‘the in the bond release application. We do the copy of the newspaper ad within 30 amount of the bond filed and the not agree. The regulatory authority can days after filing the application with the establish standard guidelines that all regulatory authority. The introductory 609 30 U.S.C. 1269(a). bond release applicants must follow. text of final paragraph (b)(3) is nearly 610 30 U.S.C. 1269(a). There is no need for a separate

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00194 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93259

determination of the analytical detail amount be sufficient to assure permit area is a rational extension of required for each application. completion of the reclamation plan section 510(b)(3) of SMCRA,613 which As discussed above, we agree that the approved in the permit. Stream prohibits the approval of a permit information required by proposed restoration is part of that plan. application unless the applicant paragraph (b)(2)(vi) is more appropriate Furthermore, permittees that avoid demonstrates and the regulatory for inclusion in the bond release mining through perennial and authority finds that the proposed application than in a public notice intermittent streams should not operation had been designed to prevent published in a newspaper. However, experience these adverse impacts. material damage to the hydrologic persons reading the notice should have Many commenters opposed proposed balance outside the permit area. Release sufficient contact information for the paragraph (a)(2), which provided that of any bond for an operation that is regulatory authority to enable them to the regulatory authority may not release likely to result in material damage to the readily make arrangements to review the any bond if, after an evaluation of the hydrologic balance outside the permit application. To ensure that the reader groundwater, surface water, and area in the future, would be has the information needed to make biological condition monitoring data irresponsible because the amount of those arrangements, final paragraph submitted under §§ 816.35 through bond remaining may be insufficient to (b)(3)(vii) includes a requirement that 816.37 or §§ 817.35 through 817.37, it remedy the problem when it ultimately the public notice identify the location at determines that adverse trends exist that occurs. which the application may be reviewed. may result in material damage to the In response to the comments that we hydrologic balance outside the permit Section 800.41: How will the regulatory received, we revised proposed area. In general, commenters found the authority process my application for paragraph (a)(2) to remove the provision ‘‘adverse trends’’ standard in this bond release? prohibiting bond release if the paragraph to be too vague and regulatory authority determines that Proposed § 800.41 corresponds to undefined. They expressed concern that ‘‘adverse trends exist that may result in previous § 800.40(b)(1). We are adopting permittees would not be able to obtain material damage to the hydrologic § 800.41 as proposed, with minor timely bond release if this provision is balance outside the permit area.’’ We editorial changes to improve clarity. adopted. One commenter alleged that agree that ‘‘may result’’ is too subjective. Specifically, we combined proposed this provision would give regulatory paragraphs (a)(1) and (2) into final Final paragraph (a)(2)(i) requires that authorities unwarranted authority to the regulatory authority conduct a paragraph (a)(1) and redesignated halt the bond release process, with the proposed paragraph (a)(3) as final scientifically defensible trend analysis practical result being that permittees of the groundwater, surface water, and paragraph (a)(2). We received no would not be able to secure surety comments on this section. biological condition monitoring data bonds because of the uncertainty submitted under §§ 816.35 through Section 800.42: What are the criteria for involved with a subjective 816.37 or §§ 817.35 through 817.37 bond release? determination of whether adverse trends before releasing any bond amount. Each exist. The commenter noted that some regulatory authority will determine Proposed § 800.42 corresponds to companies are having increasing what type of trend analysis is previous § 800.40(c). We have revised difficulty securing reclamation bonds scientifically defensible. Final the proposed rule to improve clarity, to because of bonding capacity limits. One paragraph (a)(2)(ii) provides that the conform to other rule changes, and, as regulatory authority noted that, to be regulatory authority may not approve a discussed below, in response to defensible, regulatory authority bond release application if the analysis comments. decisions must be based upon known conducted under final paragraph Some commenters opposed the conditions rather than something that (a)(2)(i) and other relevant information proposed changes to our bond release might happen. The commenter indicate that the operation is causing criteria, especially those pertaining to recommended deletion of this proposed restoring streams, alleging that the requirement, or, in the alternative, material damage to the hydrologic changes would create a vague and replacement of the ‘‘adverse trends’’ balance outside the permit area or is uncertain timeline for achievement of standard with a statistically significant likely to do so in the future. We did not reclamation, which, in effect, would degradation standard based upon adopt the statistically significant extend the bonding period, increase the monitoring data. degradation standard recommended by regulatory and financial burden on Section 519(b) of SMCRA requires one commenter because we are not clear permittees, decrease the availability of that, as part of the evaluation of each as to how such a standard would surety bonds, and delay return of full bond release application, the regulatory operate. use of the reclaimed land to the authority consider, among other things, Proposed paragraph (a)(3) prohibited landowner. We acknowledge that whether ‘‘pollution of surface and the release of any portion of the bond restoring the ecological function of subsurface water is occurring, the unless and until the permittee posts a perennial and intermittent streams as probability of continuance of future financial assurance or collateral bond if required by the final rule may take occurrence of such pollution, and the a discharge requiring long-term longer than the revegetation estimated cost of abating such treatment exists either on the permit responsibility period and, thus, may pollution.’’ The analysis of monitoring area or at a point that is hydrologically result in a delay in final bond release for results that proposed paragraph (b)(2) connected to the permit area. One some time after the demonstration of required is a logical extension of this commenter opposed proposed revegetation success under § 816.116 or statutory provision. Similarly, except as paragraph (a)(3) based on a belief that 817.116.611 However, section 509(a) of discussed below, the prohibition in surety bonds are not responsible for SMCRA 612 requires that the bond proposed paragraph (b)(2) on the release long-term treatment of discharges. The of bond when the regulatory authority commenter characterized proposed 611 Karl Williard et al., Stream-restoration—long determines, based on a trend analysis of paragraph (a)(3) as implying that the term performance: A reassessment. Final report for the Office of Surface Mining Cooperative monitoring data, that adverse trends regulatory authority may forfeit a surety Agreement S11AC20024 AS. exist that may result in material damage 612 30 U.S.C. 1259(a). to the hydrologic balance outside the 613 30 U.S.C. 1260(b)(3).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00195 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93260 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

bond to fund the long-term treatment area or at a point that is hydrologically § 800.42(a)(4) includes a reference to obligations. connected to the permit area, must post § 785.14(c)(2) because final The principle that any type of bond a separate financial assurance or §§ 785.14(c)(2) (mountaintop removal may be forfeited to obtain the funds collateral or surety bond under final mining operations) and 785.16(b)(2) needed for long-term treatment of § 800.18 before any portion of the (steep slope variances) contain identical discharges has long been official existing performance bond for the restrictions on bond release, which OSMRE policy. See the discussion in permit area may be released, unless the should be reflected in final § 800.42 for the preamble to proposed paragraph type and amount of bond remaining consistency. The rationale for applying (a)(3) at 80 FR 44540 (Jul. 27, 2015). The after the release would be adequate to final § 800.42(a)(4) to mountaintop commenter also alleged that proposed meet the requirements of section 800.18 removal mining operations is the same paragraph (a)(3) conflicted with as well as any remaining land as the rationale provided in the proposed § 800.12(d), which provides reclamation obligations. We added the preamble to the proposed rule for that the regulatory authority may only reference to the type of bond remaining applying that provision to steep-slope accept a financial assurance or collateral after the release because final § 800.18 variances. See 80 FR 44540 (Jul. 27, bond to guarantee treatment of a long- does not allow the use of a self-bond to 2015). The only difference is that the term discharge. Final section 800.12(c), guarantee long-term treatment of a statutory basis for applying paragraph which corresponds to proposed § discharge. Therefore, if the type of bond (a)(4) to mountaintop removal mining 800.12(d), allows the use of surety remaining after the release is a self- operations is section 515(c)(5) of bonds to guarantee long-term treatment bond, final paragraph (a)(3) requires that SMCRA,614 which is substantively of discharges. However, even in the the permittee replace the self-bond with identical to the steep-slope variance absence of the revision, no conflict a financial assurance, collateral bond, or provisions in section 515(e)(5) of exists. Proposed § 800.12(d) and its surety bond to provide coverage for SMCRA.615 successor, final section 800.12(c), apply long-term treatment. One commenter observed that to bonds specifically posted for long- Proposed paragraph (a)(4) provided proposed paragraph (a)(4) would be term treatment after discovery of an that, if the permit area or increment especially onerous because unanticipated discharge, while includes a steep-slope variance from reestablishing approximate original § 800.42(a)(3) applies to the bond posted restoration of the approximate original contour on a site that was prepared for at the time of permit issuance or for a contour under § 785.16, the portion of a postmining land use that requires a successive permit increment, at which the performance bond described in different surface configuration would be time no discharges in need of long-term § 785.16(a)(13) may not be released in extremely expensive, much more so treatment would have been known or whole or in part until the approved than restoration of approximate original anticipated. However, if an postmining land use is implemented or contour in the normal course of unanticipated discharge requiring long- until the site is restored to the contemporaneous reclamation. We term treatment develops after permit approximate original contour and acknowledge that the cost of restoring a issuance, the performance bond posted revegetated. However, we did not adopt site to approximate original contour at the time of permit issuance or for a § 785.16(a)(13) as proposed. Instead, after it was originally graded to a successive permit increment must cover final § 785.16(b)(2) requires that the different configuration may be high. all reclamation obligations, including permit include a condition prohibiting However, one of SMCRA’s fundamental long-term treatment of unanticipated the release of any part of the bond principles is to ensure restoration of the discharges, unless and until the posted for the permit until substantial approximate original contour, with permittee posts a financial assurance, implementation of the approved limited exceptions.616 Therefore, we collateral bond, or surety bond to postmining land use is underway. The find that final paragraph (a)(4) provides guarantee discharge treatment under rule specifies that the condition must an appropriate safeguard against abuse final § 800.18. provide that the prohibition does not of the exceptions that SMCRA Another commenter argued that apply to any portion of the bond that is establishes to facilitate certain proposed § 800.42(a)(3) improperly in excess of an amount equal to the cost postmining land uses. Final paragraph prohibited any bond release if the of regrading the site to its approximate (a)(4) should ensure that permittees permittee incurs a long-term discharge original contour and revegetating the propose mountaintop removal mining treatment obligation. According to the regraded land in the event that the operations and steep-slope variances commenter, this absolute prohibition approved postmining land use is not only in those situations in which fails to recognize the possibility that implemented. Therefore, we did not attainment of the underlying postmining more than sufficient bond may be in adopt the language that we proposed in land use is certain, rather than place on a large mine site with a § 800.42(a)(4) as part of the final rule. speculative. minimal impact discharge that requires Instead, final § 800.42(a)(4) provides One commenter suggested that we long-term treatment. Final paragraph that, if the permit area or increment revise proposed paragraph (a)(4) to (a)(3) includes a provision that takes includes mountaintop removal mining allow bond release as soon as this possibility into account. Final operations under § 785.14 or a variance implementation of the postmining land paragraph (a)(3) also applies only to from restoration of the approximate use begins. The proposed rule required discharges for which the permittee is original contour under section 785.16, full implementation of the postmining responsible. While not our intent, the amount of bond that may be released land use as a precondition to bond proposed paragraph (a)(3) applied to all is subject to the limitation specified in release. We agree with the commenter discharges in need of long-term § 785.14(c)(2) for mountaintop removal that this approach is too stringent. At treatment, regardless of whether the mining operations or the limitation the same time, however, we conclude permittee is responsible for the quality specified in § 785.16(b)(2) for a variance that the approach the commenter of the discharge. Final paragraph (a)(3) from restoration of the approximate recommended is too vague and subject provides that a permittee responsible for original contour. We inadvertently a discharge that requires long-term omitted a reference to § 785.14 in 614 30 U.S.C. 1265(c)(5). treatment, regardless of whether the proposed § 800.42(a)(4), an omission 615 30 U.S.C. 1265(e)(5). discharge emerges either on the permit that the final rule corrects. Final 616 See 30 U.S.C. 1265(b)(3).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00196 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93261

to abuse. Under such a standard, the rule could unfairly penalize the be performed by the regulatory authority regulatory authority could allow bond permittee for changing economic in the event of forfeiture.’’ That release after only minimal conditions beyond its control. Another requirement applies at all times, implementation of the postmining land commenter opposed this provision as a including after Phase I bond release. use, such as posting of a sign possible violation of landowner rights. We are adopting paragraph (b) as announcing a future industrial park, We did not revise proposed paragraph proposed, with minor editorial changes which may or may not come to pass. (a)(5) in response to these comments and the two revisions discussed in this Instead, final paragraph (a)(4) takes a because final paragraph (a)(5) does not paragraph. We improved the clarity of middle ground. Specifically, we prohibit bond release in situations in final paragraph (b)(1) by specifying that replaced the phrase ‘‘until the approved which the structure is only partially in Phase I reclamation includes postmining land use is implemented’’ in use by the time the remainder of the site construction of the postmining drainage proposed paragraph (a)(4) with ‘‘until is ready for final bond release. Partial pattern and stream-channel substantial implementation of the use signifies a reasonable probability of configuration required by §§ 816.56(b), postmining land use is underway’’ in future full utilization. We do not agree 816.57(c)(1), 817.56(b), and 817.57(c)(1). final paragraph (a)(4). Thus, the final with the commenter that we should This addition is consistent with the rule requires that substantial allow retention of the structure if the description of Phase I reclamation in implementation be underway before the structure remains unused for financial section 519(c)(1) of SMCRA, which regulatory authority may approve any or economic reasons. Those are prime provides that Phase I reclamation bond release for mountaintop removal examples of situations in which consists of ‘‘backfilling, regrading, and mining operations under § 785.14 or a structures should not be retained drainage control.’’ Construction of the site with a variance from restoration of because there is no reasonable certainty postmining drainage pattern and stream- the approximate original contour under of future use. We also do not agree with channel configuration is part of both § 785.16. the comment that final paragraph (a)(5) regrading and drainage control. In Proposed § 800.42(a)(5) provides that would violate landowner rights. The addition, final paragraph (b)(2) specifies the bond amount described in structure was built for mining purposes that the regulatory authority must retain § 780.24(d)(2) or § 784.24(d)(2) may not by the mining company. Therefore, the sufficient funds after Phase I bond be released either until the structure is mining company is in a position to release to cover restoration of both the in use as part of the postmining land use structure any agreements with the hydrologic function and ecological or until the structure is removed and the landowner concerning future use in a function of perennial and intermittent site upon which it was located is manner that takes the requirements of streams, not just ecological function as reclaimed in accordance with part 816 this rule into account. in proposed paragraph (b)(2). The or part 817. Sections 780.24(d)(2) and Proposed paragraph (b) contained the addition of hydrologic function is 784.24(d)(2) require that the bond criteria for Phase I bond release. One responsive to our revision of proposed posted for a permit include an amount commenter objected to our proposed paragraph (c) to classify restoration of sufficient to cover the cost of removing addition of language specifying that hydrologic function as part of Phase II mining-related structures (other than restoration of the form of perennial and reclamation. roads and impoundments) and intermittent stream segments that the Section 800.42(c) establishes criteria reclaiming the land upon which the permittee mines through is part of Phase for Phase II bond release. Final structures were located to a condition I reclamation, which consists of paragraphs (c)(1) and (2) differ from capable of supporting the premining backfilling, grading, and establishment proposed paragraphs (c)(1) and (2) in uses, even when the regulatory of drainage control. According to the several respects, apart from assorted authority has approved retention of the commenter, this language unlawfully minor editorial revisions. First, final structure as part of the postmining land amends section 519(c)(1) of SMCRA,617 paragraph (c)(1)(i) specifies that use. Otherwise, the risk is too great that which authorizes the release of 60% of redistribution of organic materials is a the structure will never be used for the the reclamation bond for a permit area part of Phase II reclamation, consistent postmining land use, that it will ‘‘when the operator completes the with final § 816.22(f), which requires deteriorate and become an attractive backfilling, regrading, and drainage salvage and redistribution or reuse of nuisance, and that no funds will be control.’’ For the same reason, the most organic materials. Second, final available for demolition and removal, as commenter objected to the proposed paragraph (c)(1)(ii) provides that Phase we explain the preamble to the requirement to retain sufficient bond II reclamation includes restoration of proposed rule. See 80 FR 44540 (Jul. 27, after Phase I release to cover restoration the hydrologic function of perennial and 2015). of the ecological function of streams and intermittent streams that the permittee One commenter argued that the final completion of the fish and wildlife mines through. This revision resolves an rule must provide additional flexibility enhancement measures required in the ambiguity in the proposed rule, which for unique property use situations; e.g., permit. never specified whether restoration of situations in which the property owner, We do not agree with the commenter’s hydrologic function was a part of sub-lessee, or authorized postmining rationale. First, restoration of the form restoration of the form of the stream or land user may only be partially using a of perennial and intermittent streams part of restoration of the ecological structure after mine closure as part of that the operation mines through is a function of the stream. Restoration of the approved postmining land use. part of regrading and establishment of hydrologic function is not properly According to the commenter, the drainage control. Second, nothing in classified as a part of Phase I authorized postmining land user may section 519 of SMCRA overrides the reclamation because it is not necessarily not have sufficient funding to proceed requirement in section 509(a) of a part of backfilling, regrading, or with complete implementation of the SMCRA 618 that the amount of bond ‘‘be drainage control. Nor is it properly postmining land use before final bond sufficient to assure the completion of classified as part of the restoration of the release or implementation of the the reclamation plan if the work had to ecological function of a stream because postmining land use may no longer be restoration of the hydrologic function is economically feasible. Several 617 30 U.S.C. 1269(c)(1). a prerequisite for restoration of the commenters alleged that the proposed 618 30 U.S.C. 1259(a). ecological function. Therefore, we

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00197 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93262 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

decided that restoration of hydrologic bond release and completion of the Section 800.43: When and how must the function is best classified as part of revegetation responsibility period. The regulatory authority provide notification Phase II reclamation. Third, final only exception is prime farmland of its decision on a bond release paragraph (c)(1)(iii) clarifies that the historically used for cropland, in which application? requirement for successful case, section 519(c)(2) of SMCRA 619 establishment of revegetation applies to prohibits Phase II bond release until soil We are adopting § 800.43 as proposed, streamside vegetative corridors. We productivity for prime farmlands has with minor editorial and organizational have no reason to believe that proposed returned to equivalent levels of yield as changes to improve clarity. We received paragraph (c)(1)(iii) would have been non-mined land of the same soil type in no comments on this section. interpreted differently, but the revision the surrounding area under equivalent Section 800.44: Who may file an should resolve any questions on that management practices. objection to a bond release application point. Section 800.42(d) establishes criteria and how must the regulatory authority Final paragraphs (c)(3) through (5) for Phase III bond release. Under final respond to an objection? contain only minor editorial revisions § 700.11(d)(2), Phase III bond release from their counterparts in the proposed equates to termination of jurisdiction We are adopting § 800.44 as proposed, rule. The principal revision is the under SMCRA. We are adopting with minor editorial changes to improve clarification that final paragraph (c)(4) § 800.42(d) as proposed, with minor applies only to prime farmland clarity. We received no comments on editorial changes to improve clarity and this section. historically used for cropland. This correct cross-references. We received restriction is consistent with § 785.17(a) few comments on proposed paragraph Section 800.50: When and how will a of our existing rules. (d). One commenter observed that bond be forfeited? In the preamble to proposed demonstrating full restoration of the § 800.42(c), we invited comment on ecological function of a stream segment We are adopting § 800.50 as proposed whether we should provide national is difficult to quantify for purposes of with the exception of two revisions standards for establishment of Phase III bond release because no clear resulting from comments that we vegetation for the purposes of Phase II standards exist. Sections 780.28(g) and received on proposed § 800.18(b). We bond release or whether establishment 784.28(g) of this final rule require that received no comments specific to of standards for this purpose is best left the regulatory authority establish § 800.50. to the regulatory authority, based on standards for determining when the local conditions. See 80 FR 44541 (Jul. In response to the comments that we ecological function of a perennial or 27, 2015). We received few comments received on proposed § 800.18(b), as intermittent stream has been restored. on this question, but those that we did discussed in the preamble to The commenter also asked what science receive generally supported leaving § 800.18(b), we revised § 800.50(a)(1) to or management tools exists to define establishment of standards to the clarify that, if the amount of bond to be restoration of ecological function. regulatory authority. One commenter forfeited is less than the total amount of Sections 780.28(g)(3) and 784.28(g)(3) of found establishment of standards bond posted, the amount forfeited must this final rule identify, and require use unnecessary because §§ 816.116 and be no less than the estimated total cost 817.116 already establish revegetation of, the best technology currently of achieving the reclamation plan success standards in more detail. available for this purpose. Finally, the requirements. We also revised We decided to retain the current commenter inquired as to how this § 800.50(a)(1) to specify that the arrangement in which there are no requirement would apply to ephemeral regulatory authority must calculate the national standards. Regulatory streams. The answer is that this estimated total cost of achieving the authorities have established these requirement applies only to perennial reclamation plan requirements for long- standards as part of their approved and intermittent streams that the term treatment of a discharge in a regulatory programs in the past and they permittee mines through. It does not manner consistent with final apply to ephemeral streams. will continue to do so. These standards § 800.18(c). See final § 800.50(a)(1)(ii). apply only for purposes of determining Another commenter complained that In addition, we revised § 800.50(b)(2) to when revegetation has been successfully the proposed rule is not clear regarding require that the regulatory authority use the consideration of pre-existing established for purposes of Phase II the funds collected from bond forfeiture impacts in making a bond release bond release. They differ from the to complete the reclamation plan, or the determination. The commenter revegetation success standards to which portion of the reclamation plan covered requested that the final rule clarify that §§ 816.116 and 817.116 apply in that by the bond, on the permit area or the permittee will not be responsible for standards developed in compliance increment to which the bond applies. with §§ 816.116 and 817.116 include the pre-existing impacts. The commenter also asserted that we should convene a We replaced the phrase ‘‘complete the revegetation responsibility period reclamation plan, or portion thereof,’’ in specified in §§ 816.115 and 817.115 and group of bonding experts and state previous § 800.50(b)(2) with ‘‘complete determine, in part, when the regulatory agencies to discuss the issue of pre- the reclamation plan, or the portion authority may approve Phase III bond existing conditions and how to best thereof covered by the bond,’’ to clarify release. The regulatory authority has the address it during the bond release discretion to apply identical standards process. The commenter did not that the regulatory authority may not to both Phase II and III bond release, but identify any pre-existing impacts or choose to ignore any element of the doing so would have the effect of explain what the term means. However, reclamation plan that is covered by the creating little distinction between Phase under SMCRA, the permittee is bond. II and III bond release. Elimination of responsible only for impacts resulting Section 800.60: What liability insurance this distinction would be inappropriate from the mining operation. Therefore, must I carry? for a national rule because section we do not see a need to convene a group 519(c)(2) clearly contemplates a of experts to discuss this topic. We are adopting § 800.60 as proposed. distinction between ‘‘successful We received no comments on this reclamation’’ for purposes of Phase II 619 30 U.S.C. 1269(c)(2). section.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00198 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93263

Section 800.70: What special bonding of topsoil, subsoil, and other material to than the previous rule allegedly provisions apply to anthracite be used as a final growing medium in required. According to the commenter, operations in Pennsylvania? accordance with § 816.22. Proposed adoption of the proposed rule could We are adopting § 800.70 as proposed. § 780.12(e)(1)(ii) specified that the lead to the need to stockpile We received no comments on this permit application must include a plan substantially larger volumes of soil, requiring that the B horizon, C horizon, which would involve added cost, both section. and other underlying strata, or portions because of the increased volume of soil L. Part 816—Permanent Program thereof, be removed and segregated, materials and because of the Performance Standards—Surface stockpiled, and redistributed to achieve requirement to segregate the soil Mining Activities the optimal rooting depths required to materials by horizon. The commenter restore premining land use capability or noted that, in the Midwest, loess and Section 816.1: What does this part do? to comply with the revegetation drift soils can be more than 10 feet With the exception of altering the title requirements of §§ 816.111 and 816.116. thick. The commenter questioned the of this section for clarity, we are benefit of salvaging that depth of soil. Final Paragraph (a): Removal and finalizing § 816.1 as proposed. We The commenter suggested that the rule Salvage received no comments on this section. should require the salvage and Proposed § 816.22(a)(1) required that redistribution of additional topsoil and Section 816.2: What is the objective of the permittee separately remove and the B and C horizons only in those this part? salvage all topsoil and other soil regions or states in which greater soil We are finalizing § 816.2 as proposed. materials identified for salvage and use depth is required to establish a suitable We received no comments on this as postmining plant growth media in the plant growth medium. section. soil handling plan approved in the The commenter further alleged that permit under § 780.12(e). the rule may pose a problem for mining Section 816.10: Information Collection Some commenters claimed that there operations in the Southwest, because Section 816.10 pertains to compliance is no scientific support for the topsoil can be less than six inches thick. with the Paperwork Reduction Act, 44 proposition that the recovery and According to the commenter, the rule U.S.C. 3501, et seq. We are adding redistribution of all topsoil and subsoil should allow the use of a topsoil-subsoil contact information for persons who is necessary to achieve reclamation mixture in this situation. wish to comment on these aspects of success in all situations. Another We have made limited revisions to the part 816. commenter alleged that some western proposed rule in response to these soils do not contain multiple soil comments and other related comments Section 816.11: What signs and markers horizons. According to the commenter, on § 780.12(e). Final § 816.22(a)(1)(i), must I post? topsoil is typically stripped as one layer which we proposed as the first sentence We are finalizing § 816.11 as down to unsuitable materials (bedrock of § 816.22(a)(1), no longer requires that proposed. We received no comments on or unsuitable soils, likely the C soil horizons be separately removed and this section. horizon). The commenter objected to the salvaged. Instead, we have added requirement to salvage and redistribute § 816.22(a)(1)(ii), which provides that Section 816.13: What special soil horizons separately because it the soil handling plan approved in the requirements apply to drilled holes, would slow topsoil placement and permit under § 780.12(e) will specify wells, and exposed underground complicate direct placement. The which soil horizons the permittee must openings? commenter urged us to revise the separately remove and salvage. It also We are finalizing § 816.13 as proposed rule to allow mixing of soil requires that the plan specify whether proposed. We received no comments on horizons. The commenter also argued some or all of those soil horizons or this section. that requiring additional segregation of other soil substitute materials may or horizons would increase costs, delay must be blended to achieve an improved Section 816.22: How must I handle reclamation, and hinder long-term plant growth medium. The net effect is topsoil, subsoil, and other plant growth success because of increased handling that the final rule allows for some media? and equipment traffic. flexibility in the removal, salvage, and As discussed in the preamble to the One commenter opposed the use of topsoil and other soil materials, proposed rule,620 we proposed to proposed requirement to salvage and although it primarily relies upon the modify § 816.22 to require the salvage, redistribute all existing topsoil as requirements for approval of soil protection, and redistribution of all soil scientifically and practically substitutes and supplements in materials to restore the site’s capability unsupported. According to the § 780.12(e)(2) in determining whether to to support the postmining land use and commenter, salvage and redistribution allow the use of substitutes for existing the uses that it supported before mining. of topsoil in some areas, such as western soil horizons. After evaluating the comments that we North Dakota, would result in We also revised the second sentence received, we are adopting the section as construction of a postmining soil that of proposed § 816.22(a)(1), which is now proposed, with the following inhibits growth of many types of plants final § 816.22(a)(1)(iii). We added an explanations and exceptions. because of the high levels of sodium and introductory phrase specifying that the Many comments on proposed § 816.22 other salts in that topsoil. requirement to complete removal and also cited or apply to the closely related Another commenter expressed salvage of all soil materials before any provisions of proposed § 780.12(e), so disappointment at the lack of a defined drilling, blasting, mining, or other we are including some discussion of limit to the depths of soil horizons that surface disturbance takes place in the those provisions here. Proposed the permittee must salvage and area that is to be disturbed may be § 780.12(e)(1)(i) required that the permit redistribute to construct a plant growth waived in the soil handling plan application include a plan and schedule medium. The commenter explained approved in the permit under final rule for removal, storage, and redistribution that, in some regions, the proposed rule § 780.12(e). This change acknowledges would require salvage and the fact that in some cases where soil 620 80 FR 44436, 44542–44543 (Jul. 27, 2015). redistribution of soil to a greater depth substitutes are approved for use in place

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00199 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93264 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

of the existing topsoil or subsoil, the structure and ecology that is difficult to subsoil and an adequate root zone. We substitute materials may not be restore or replicate. summarized that explanation in the available for salvage until later in the Several commenters objected to the preamble to the proposed rule, but it mining process. However, we do not application of these requirements bears repeating here: anticipate that this situation will be nationwide because, according to the Plant roots extend through the topsoil into commonplace. commenters, salvage and redistribution the subsoil (root zone), which provides a In addition, as discussed in the of soil materials other than topsoil is substantial proportion of the plant’s nutrient preamble to § 780.12(e), we have revised only necessary to address conditions requirements. For example, field studies have the proposed requirements for soil found in the Appalachian Region. One shown that between 45 percent and 65 handling plans in permit applications. commenter alleged that the preamble to percent of nitrogen available to plants from Final § 780.12(e)(1)(ii) differs slightly the proposed rule provided no rationale the soil lies below a depth of 6 inches. During dry summer weather, many plants, from the proposed in that the final rule for the nationwide application of the rule except a research report from especially deep-rooted plants like alfalfa and requires separate removal, stockpiling most trees, depend for their survival on (if necessary), and redistribution of the Appalachia and a guide to the moisture available in the subsoil. Alfalfa B and C soil horizons and other reclamation of borrow sites used for extracts 55 percent of its moisture underlying strata only ‘‘to the extent transportation facilities in Alberta, requirements from soil materials deeper than and in the manner needed’’ to achieve Canada. According to the commenter, one foot and is capable of extracting water the optimal rooting depths required to these two documents clearly do not from subsoil up to 6 feet in depth. Even restore premining land use capability represent the vast majority of mined and medium-rooted crops like wheat and corn extract up to 40 percent of their moisture and to comply with revegetation reclaimed lands throughout the United States. The commenter further alleges requirements from soil materials deeper than requirements. It does not require salvage one foot. Finally, many plants depend on and redistribution of ‘‘all’’ of those soil that the preamble fails to evaluate or discuss the postmining productivity of root penetration well into the subsoil for horizons and overburden strata. physical support, especially where topsoil is New final § 780.12(e)(1)(iii) provides reclaimed lands on the tens of thin. If plant roots are unable to penetrate thousands of acres of mined and that the plan need not require salvage of deeply into a reclaimed subsoil, soil reclaimed land outside Appalachia soil horizons that the permittee capability for plant growth will be where no subsoil has been salvaged. degraded.622 demonstrates, to the satisfaction of the We do not agree with these Alfalfa, corn, and wheat are widely regulatory authority, are inferior to other comments. A suitable growth medium, grown crops, so the fact that this soil horizons or overburden materials as including an adequate root zone, is information appears in an Alberta a plant growth medium, provided that essential to establishing successful publication in no way compromises its the permittee complies with the soil vegetation and demonstrating substitute requirements of paragraph restoration of premining land use applicability throughout the coalfields. Finally, the commenter did not (e)(2). We added this language in capability in every region. In those provide references to studies on the response to comments objecting to the relatively rare cases in which restoration postmining productivity of reclaimed proposed requirement for salvage, of a particular ecological community lands outside Appalachia where no segregation, and redistribution of soil requires a shallow root zone or other subsoil has been salvaged, and we are horizons when one or more of those specialized soil condition, not aware of studies or data on this horizons have physical or chemical § 816.22(e)(1)(v) authorizes variations in topic. characteristics that make them inferior the depth of soil redistribution. See 71 One commenter recommended that to other overburden materials in FR 51684–51688 (Aug. 30, 2006) for an we revise proposed § 816.22(a)(1), creating a medium conducive to plant extensive discussion of this topic. which is now final § 816.22(a)(1)(iii), by growth. We made this change in Otherwise, as explained in the preamble removing the reference to drilling. response to comments urging us to to our proposed rule, scientific studies According to the commenter, drilling allow blending of soil horizons when have determined that an adequate root may be necessary to install power poles experience has demonstrated that doing zone is critical to plant growth and and fence posts, the installation of so results in a superior growing survival, and that topsoil alone typically which paragraph (a)(2)(i) exempts from medium. does not provide an adequate root zone. In response to comments supporting See 80 FR 44436, 44488–44489 (Jul. 27, soil salvage and removal requirements. the blending of soil horizons, we added 2015). These studies, which are not We accepted this recommendation and § 780.12(e)(1)(iv), which allows limited to Appalachia, document that made other revisions to the proposed blending of the B horizon, C horizon, salvage and redistribution of topsoil rule to ensure consistency with final and underlying strata, or portions alone will not necessarily restore the § 780.12(e) and other provisions of final thereof, to the extent that research or mine site to a condition in which it is § 816.22. Final paragraph (a)(1)(iii) now prior experience under similar capable of supporting the uses that it provides that, except as provided in the conditions has demonstrated that was capable of supporting before any soil handling plan approved in the blending will not adversely affect soil mining, as required by section 515(b)(2) permit under § 780.12(e), the permittee productivity. In other words, blending of SMCRA,621 nor will it necessarily must complete removal and salvage of of subsoil horizons does not require support the postmining land use. topsoil, subsoil, and organic matter approval in accordance with the soil Therefore, salvage and redistribution of before any mining-related surface substitute and supplement requirements subsoil and other soil materials disturbance takes place on that area, of paragraph (e)(2). However, any typically will be necessary to meet the other than the minor disturbances proposal to blend topsoil with other soil requirements of section 515(b)(2) of identified in paragraph (a)(2). One commenter requested that we horizons must be approved as a topsoil SMCRA. substitute or supplement under The Alberta publication to which the revise proposed paragraph (a)(2)(i) by paragraph (e)(2). We find that topsoil commenter refers contains a particularly 622 80 FR 44436, 44488–44489 (Jul. 27, 2015), merits extra consideration because, in cogent explanation of the importance of citing Alberta Transp., Alberta Transportation most areas, topsoil is uniquely valuable Guide to Reclaiming Borrow Excavations, pp. 5–6 as a plant growth medium, with a 621 30 U.S.C. 1265(b)(2). (Dec. 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00200 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93265

adding monitoring wells to the list of vegetative cover or through other soil materials. We adopted a revised small structures that are considered measures approved by the regulatory version of proposed paragraph (d)(2) as minor disturbances and thus are exempt authority.’’ One commenter alleged that final paragraph (d). In response to a from the requirement to remove and many non-native, non-invasive plants comment, we added a reference to deep salvage topsoil and other soil materials. can do a better job of protecting the tillage as a method of alleviating According to the commenter, the extent stockpiles than native vegetation and compaction and preventing slippage of disturbance caused by the suggested that we allow their use. Other between the spoil and the soil. We also construction of monitoring wells is commenters argued that it will be replaced the reference to ‘‘topsoil’’ with similar to the extent of disturbance impossible to keep common non-native a reference to ‘‘soil materials’’ in order caused by the construction of power plants from colonizing the stockpiles. to be consistent with the revisions to poles, signs, and fence lines. We agree Another commenter noted that it may be other provisions of this section that with this rationale and the commenter’s impossible to keep stockpiles free of require the salvage and redistribution of recommendation. Final paragraph non-invasive species because stockpiles both topsoil and subsoil, not just (a)(2)(i) provides that the removal and are often configured in a way that makes topsoil. Finally, we made assorted plain salvage of topsoil and other soil mowing, a common method of language changes and streamlined the materials in advance of minor controlling non-invasive species, rule text. disturbances that occur at the site of impractical. Final Paragraph (e): Redistribution small structures, such as power poles, We did not revise the proposed rule signs, monitoring wells, or fence lines, in response to these comments because Final paragraph (e)(1)(ii) differs from is not necessary. we find that the rule already proposed paragraph (e)(1)(ii) in that we In addition, we restructured proposed accommodates the commenters’ replaced the word ‘‘contours’’ with the paragraph (a)(2) to automatically exempt concerns. When the permittee selects phrase ‘‘final surface configuration.’’ We minor disturbances that meet the the vegetative cover method of made this change because the term criteria of either paragraph (a)(2)(i) or controlling erosion, final paragraph ‘‘contours’’ could be interpreted as paragraph (a)(2)(ii) from soil salvage (b)(2)(iii) requires the use of a ‘‘non- applying only to elevation differences, requirements unless the regulatory invasive vegetative cover,’’ which could which is not our intent in this context. authority specifies otherwise. Proposed include non-native plants that are non- The phrase ‘‘final surface configuration’’ paragraph (a)(2), like the previous rules, invasive. Nothing in this paragraph refers to the shape of the land surface required affirmative regulatory authority would prohibit or require the control or and the features of that surface. This approval as a prerequisite for exemption eradication of volunteer non-native, term is more encompassing, and thus from the soil salvage requirements. This non-invasive species that colonize the more relevant, to soil redistribution. In change will reduce burdens on both the stockpiles. Finally, mowing is not the addition, because the term ‘‘general permittee and the regulatory authority only means of controlling invasive surface configuration’’ appears as the without any danger of environmental species, nor is it necessarily the most core element of the definition of harm. Only very minor soil losses will effective. The permittee has the ‘‘approximate original contour’’ in occur from the construction of small flexibility to implement other accepted section 701(2) of SMCRA 623 and 30 CFR structures like power poles, fence lines, control techniques when mowing is not 701.5, it is more appropriate for use in signs, or monitoring wells under practical. Finally, in the event that it is the context of redistribution of soil paragraph (a)(2)(i), while there will no difficult or impossible to establish and materials under final section 816.22(e). soil loss at all under paragraph (a)(2)(ii), maintain an effective, quick-growing, The term ‘‘surface configuration’’ or a which applies only to activities that will non-invasive vegetative cover, final variation thereof also appears in not destroy the existing vegetation and paragraph (b)(2)(iii) allows the §§ 780.12(d), 780.20, 780.35, 816.102, will not cause erosion. regulatory authority to approve the use 816.104, 816.105, 816.106, and 816.107, which lends support to replacement of Final Paragraph (b): Handling and of other measures to protect the stockpiles from wind and water erosion. ‘‘contours’’ with ‘‘final surface Storage configuration’’ in the final rule. We revised proposed paragraph (b)(1) Final Paragraph (c): Soil Substitutes and We revised proposed paragraph for clarity and consistency with other Supplements (e)(1)(iii) to make that paragraph provisions of this section and Paragraph (c) specifies that, if the soil consistent with § 780.12(d)(2)(ii), which § 780.12(e) concerning segregation of handling plan approved in the permit in provides that the backfilling and grading soil materials. Final paragraph (b)(1) accordance with § 780.12(e) provides for plan must ‘‘[l]imit compaction of topsoil now includes a new first sentence the use of topsoil or subsoil substitutes and soil materials in the root zone to the requiring that the permittee segregate or supplements, the permittee must minimum necessary to achieve and separately handle the materials salvage, store, and redistribute the stability.’’ It also requires that the plan removed under paragraph (a) to the overburden materials selected and ‘‘identify measures that will be used to extent required in the soil handling plan approved for that purpose in a manner alleviate soil compaction if necessary.’’ approved in the permit pursuant to consistent with paragraphs (a), (b), and Similarly, final paragraph (e)(1)(iii) § 780.12(e). Proposed paragraph (b)(1) (e) of § 816.22. We discuss all comments requires that the permittee minimize required segregation of all soil materials, received on the use of soil substitutes compaction of the topsoil and soil but final §§ 780.12(e) and 816.22 and supplements in the preamble to materials in the root zone to the extent provide exceptions to that requirement § 780.12(e). possible and alleviate any excess under certain circumstances. compaction that may occur. It further We received a number of comments Final Paragraph (d): Site Preparation requires that the permittee limit use of on the provision in proposed paragraph We did not adopt proposed paragraph measures that result in increased (b)(2)(iii) requiring that stockpiled (d)(1) because that paragraph pertained compaction to those situations in which material ‘‘[b]e protected from wind and to backfilling and grading of spoil, added compaction is necessary to water erosion through prompt which is the subject of § 816.102, not to ensure stability. In response to a establishment and maintenance of an the subject of § 816.22, which, in this effective, quick-growing, non-invasive context, is the placement and grading of 623 30 U.S.C. 1291(2).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00201 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93266 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

suggestion from the U.S. Environmental element of restoration of land use reasons discussed in the preamble to the Protection Agency, we revised proposed capability. Without this provision, the proposed rule, but the permittee and the paragraph (e)(1)(iv) by adding language requirement for uniform soil thickness regulatory authority have the flexibility clarifying that the standards referenced would result in an inability to meet the to choose another statistically valid in the final rule are those that have been postmining land use capability technique. established under section 303(c) of the requirement on portions of the permit Several commenters opposed Clean Water Act, or other state or tribal area where a reduction in soil thickness proposed paragraph (e)(2) because it water quality standards. compared to premining conditions required the permittee to use a Final paragraph (e)(1)(v) requires would result in diminished soil statistically valid technique to redistribution of salvaged soil materials capability or productivity. document that soil materials have been to achieve an approximately uniform Final paragraph (e)(1)(v) also includes redistributed in the locations and and stable thickness when doing so is a provision allowing soil thicknesses to depths required by the soil handling consistent with the approved vary when those variations are plan developed under § 780.12(e) and postmining land use, the final surface necessary or desirable to achieve approved as part of the permit. configuration, surface-water drainage specific revegetation goals and According to the commenters, a systems, and the requirement in ecological diversity. This provision is requirement for soil depth mapping § 816.133 that all disturbed areas be identical to corresponding provisions in using statistically valid techniques is restored to conditions that are capable both the proposed and previous rules. inappropriate because other means are of supporting the uses they were One commenter suggested that we available to verify soil replacement capable of supporting before any mining expressly provide an additional depths, including regulatory authority or higher or better uses approved under exception to allow for variability in inspection reports that routinely final § 780.24(b) . Previous paragraph underlying spoil quality, compatibility document soil depths. We disagree with (d)(1)(i), which final paragraph (e)(1)(v) with the root zones, and land use. the commenters. Under the final rule, replaces, required redistribution of Except as discussed above, we have inspection reports are acceptable only if topsoil and topsoil substitutes and made no substantive changes to this the inspectors use a statistically valid supplements to achieve an approximate provision because final paragraph sampling technique and document the uniform, stable thickness ‘‘when (e)(1)(v) already allows for variations in data in the reports. Because of the consistent with the approved thickness when such variations are limited numbers of soil types likely to postmining land use, contours, and consistent with the postmining land use be present within the permit area, we do surface-water drainage systems.’’ We and when variations are necessary or not anticipate the requirement in final inadvertently excluded the quoted desirable to achieve specific paragraph (e)(2) to be onerous or language from the proposed rule. Final revegetation goals and ecological expensive. paragraph (e)(1)(v) incorporates the diversity. Final Paragraph (f): Organic Matter quoted language, with the exception Final paragraph (e)(2) requires the use that we replaced ‘‘contours’’ with ‘‘the of a statistically valid sampling Under the previous rules, permittees final surface configuration’’ for the technique to document that soil almost universally either burned or reasons discussed above in connection materials have been redistributed in the buried organic matter, which meant that with final paragraph (e)(1)(ii). As locations and depths required by the the potential beneficial impacts of those explained in the preamble to the soil handling plan approved in the materials on soil productivity were not previous rule, the quoted language is permit in accordance with section realized. In addition, burning organic intended to ‘‘make clear that the 780.12(e). In the preamble to the material releases greenhouse gases into uniform soil thickness provision is a proposed rule,624 we encouraged the use the atmosphere. Proposed paragraph (f) function of the approved postmining of the U.S. Environmental Protection required that the permittee salvage duff, land use, contours, and surface water Agency’s Data Quality Objectives seven- other organic litter, and vegetative drainage systems, and is not, in itself, an step method to statistically validate soil materials such as tree tops, small logs, inflexible requirement.’’ See 71 FR sampling techniques. Several and root balls. It also required that the 51685 (Aug. 30, 2006). commenters alleged that this technique permittee then redistribute those We further revised the previous and is not necessary because state regulatory materials across the regraded surface or proposed rules by adding language authorities have valid existing methods incorporate them into the soil to control providing that the requirement to for documenting the redistribution of erosion, promote growth of vegetation, redistribute soil materials in a uniform soil. The commenters urged us to serve as a source of native plant seeds thickness applies only when such provide regulatory authorities with the and soil inoculants to speed restoration redistribution is consistent with the discretion to determine which statistical of the soil’s ecological community, and requirement in section 816.133 to method to use. One commenter added increase the moisture retention restore all disturbed areas to conditions that the U.S. Environmental Protection capability of the soil. Proposed that are capable of supporting the uses Agency’s method is overly complex and paragraph (f) banned the burying or they were capable of supporting before intended for landfills, which, unlike burning of organic matter. However, as any mining or higher or better uses mine sites, are highly controlled sites. an alternative to redistribution, it approved under § 780.24(b). This As in the proposed rule, final allowed use of those materials for additional proviso harmonizes this rule paragraph (e)(2) simply requires the use stream restoration purposes or to with our revised land use rules in final of a statistically valid sampling construct fish and wildlife enhancement §§ 780.24 and 816.133 and with section technique. It does not require use of the features. 515(b)(2) of SMCRA, all of which U.S. Environmental Protection Agency One commenter argued that topsoil require that the permittee restore mined Data Quality Objectives method. We and organic materials are frequently so land to a condition capable of encourage use of the U.S. closely integrated that separating the supporting the uses that it was capable Environmental Protection Agency Data two into stockpiles and then of supporting before any mining or Quality Objectives method for the subsequently distributing them higher or better uses of which there is separately is virtually impossible. We reasonable likelihood. Soils are a critical 624 80 FR 44436, 44543 (Jul. 27, 2015). agree that segregation of topsoil and

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00202 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93267

organic materials is not always easily shelterbelts comprised mainly of non- machinery. Therefore, we have added accomplished. Therefore, we have native species planted decades ago are paragraph (f)(3)(ii) to the final rule. That added a sentence to final paragraph commonly piled and burned or buried paragraph provides that, when the (f)(1)(i) to clarify that the permittee may to make way for improved crop circumstances described in paragraphs salvage organic matter and topsoil in a production. Similarly, according to the (f)(3)(i)(A) through (C) apply, the single operation that blends those commenter, the placement of tree tops, permittee must make reasonable efforts materials when doing so is practicable small logs and root balls on intensively to redistribute the salvaged organic and consistent with the approved grazed pastures on reclaimed land may materials on other portions of the permit postmining land use. not be appropriate and will likely be area or use them to construct stream Other commenters expressed concern contrary to the private landowner’s improvement or fish and wildlife about introducing weed seeds and root wishes. The commenter agreed that habitat enhancement features consistent material which would complicate retention and replacement of the types with the approved postmining land use. management of the site. One commenter of organic materials described in the We recognize that there may be opposed the use of organic materials proposed rule may enhance reclamation circumstances in which it is not from non-native species, such as in many instances, especially in and reasonably possible to use all available Russian olive and Siberian elm, which near reclaimed streams, forests, and organic materials for these purposes. may be present in windbreaks and wildlife habitat. However, the Therefore, the last sentence of final shelterbelts, for stream restoration and commenter also asserted that we must paragraph (f)(3)(ii) allows the permittee fish and wildlife enhancement recognize that this practice is not to bury the remaining materials in the purposes. The commenter noted that appropriate nationwide under all backfill, provided the permittee adoption of the proposed rule, which conditions and that it may, in fact, be demonstrates, and the regulatory would allow those uses, could spread unacceptable to the private surface authority finds, that it is not reasonably invasive, non-native trees species. owner. Therefore, the commenter possible to use all available organic In response to these comments, we recommended qualifying this materials. This provision also is reconsidered the impact of the proposed requirement by requiring salvage and responsive to other comments alleging rule on the spread of invasive or redistribution only ‘‘where appropriate that salvage of all available organic noxious species. To reduce the potential to enhance revegetation and fulfill the materials could result in a greater impact, we have revised § 779.19(b)(3) postmining land use.’’ amount of material than can be to require that permit applicants In response to these comments, we reasonably and practically used. identify those portions of the proposed moved proposed paragraph (f)(3) to However, final paragraph (f)(4)(i) retains permit area that support significant paragraph (f)(2)(ii) in the final rule. We the proposed prohibition on burning of populations of non-native invasive or then added a new paragraph (f)(3), organic materials. Retention of this noxious species. This information will which provides that the redistribution prohibition is appropriate because identify areas where the salvage of requirements for organic matter do not burial is a viable alternative method of organic materials should be prohibited apply to those portions of the permit disposal and because burial does not to prevent the spread of undesirable area identified in paragraphs (f)(3)(i)(A) result in the greenhouse gas emissions species. In concert with that through (C). Final paragraph (f)(3)(i)(A) produced by combustion. requirement, we have added paragraph creates an exception for those portions Another commenter contended that (f)(1)(ii) to the final rule. This new of the permit area upon which row the distribution of organic materials paragraph provides that the requirement crops will be planted as part of the would make the use of mechanical tree to salvage organic materials does not postmining land use before final bond planters impractical. As a result of this apply to organic matter from areas release. Final paragraph (f)(3)(i)(B) comment, we have added paragraph identified under § 779.19(b) as creates a similar exception for those (f)(2)(iii) to the final rule. That containing significant populations of portions of the permit area that will be paragraph allows the permittee to adjust invasive or noxious non-native species. intensively managed for hay production the timing and pattern of the Final paragraph (f)(1)(ii) further before final bond release. This exception redistribution of large woody debris in provides that the permittee must bury does not extend to pasture land or other order to accommodate the use of organic matter from these areas in the grazing land. Finally, as a technical mechanized tree-planting equipment on backfill at a sufficient depth in order to clarification, we added final paragraph sites with a forestry postmining land prevent the regeneration or proliferation (f)(3)(i)(C), which creates an exception use. of undesirable species. for lands upon which structures, roads, Some commenters alleged that the Numerous commenters opposed the other impervious surfaces, or water requirement to salvage and redistribute proposed requirement to salvage, store, impoundments have been or will be organic materials conflicts with section and redistribute organic materials. Many constructed as part of the postmining 816.111(d)(2), which allows the use of commenters alleged that this land use before final bond release. suitable mulch as one method of requirement would interfere with the We intend for these exceptions to be stabilizing the surface and controlling use of mechanized equipment on applied narrowly. Most sites with erosion, but which requires that the cropland, land used for hay production, cropland or hayland postmining land mulch be free of weeds and noxious and some forestry plantations. Several uses have relatively little woody plant plant seeds. With respect to this last commenters alleged that, while this material present before mining, so there comment, we note that §§ 816.22(f) and practice may be applicable to should be areas on the edge of fields or 816.111(d)(2) serve different purposes. reforestation of mined lands in that are used for non-cropland purposes Section 816.111(d)(2) pertains to surface Appalachia, it would definitely be upon which those woody organic stabilization of newly planted areas. We detrimental to reclamation in other parts materials can be spread. We anticipate do not anticipate that the organic of the country. One commenter cited the that non-woody organic materials can materials to which § 816.22 pertains example of the Northern Great Plains, and would be salvaged and mixed with will be either suitable for or used for where reclaimed lands are used for row the topsoil for cropland and hayland in that purpose. Instead, they would either crop and small grain production and order to improve productivity without be mixed with the soil or redistributed where trunks, stumps, and brush from hampering the use of agricultural on the surface separate from the mulch.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00203 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93268 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Another commenter argued that long- available in other regions. Moreover, handling is critical to long-term term storage of tree roots and logs can commenters claim that decades of data reclamation success on mine sites. result in deterioration of those demonstrate that successful forest Several commenters alleged that the materials, rendering them of limited reclamation can be achieved without the requirements for salvage and use. The commenter also alleged that handling of soils and organic matter as redistribution of organic matter will segregating the organic material for prescribed in the proposed rule. result in additional handling of soil storage would be costly and complex, We do not agree with the commenters materials and more equipment traffic while placement on temporary that Forest Reclamation Advisory No. 8 over re-soiled sites, which could result redistribution areas to prevent serves as sound guidance only for in greater soil compaction. While deterioration would cause reclamation unique situations in which extreme increased soil compaction may be a costs to triple because the material measures are necessary. The Advisory possibility if redistribution occurs while would have to be moved three times. documents the importance of organic soils are wet, the permittee can avoid According to the commenter, the need materials and native soils in supporting excessive compaction by choosing to for additional storage sites would result reforestation and forestry postmining use proper equipment and by timing in increased disturbance. The land uses. However, we recognize that redistribution to avoid equipment traffic commenter further noted that it is it will not apply in all situations over wet soils. This approach will allow unlikely that this material could be nationwide. Therefore, our reference in the site to both benefit from shredded because of the presence of the preamble to the proposed rule to the redistribution of the organic matter and rocks in root balls. practices set out in the Forest avoid adverse impacts associated with We acknowledge that lengthy storage Reclamation Advisory No. 8 should not excessive compaction. of organic materials is detrimental to be interpreted as a mandate to their value as a source of seeds, implement those practices in situations Section 816.34: How must I protect the mycorrhizae, fungi, and other forms of where it would be inappropriate to do hydrologic balance? life that are important to soil ecology. so, as set forth in paragraphs (f)(3)(i)(A) As discussed in the preamble to the For that reason, we encourage that an through (C) of the final rule. proposed rule, we proposed to add new operation be designed so that organic Several commenters asserted that the § 816.34 to incorporate, consolidate, and material salvaged from one portion of storage and redistribution of reorganize portions of previous § 816.41, the permit can be immediately undecomposed organic material will previously entitled, ‘‘Hydrologic- redistributed as part of the reclamation hinder plant growth because bacteria balance protection.’’ 628 We received of a different portion of the permit. Such responsible for decomposition often rob comments expressing concern about the a design would have the added benefit the soil of nutrients essential to plant proposed rule that resulted in changes of reducing costs by requiring that the growth. We agree with the commenter to the final rule, as discussed below. material be handled only once. that, initially, the carbon-to-nitrogen Additionally, we received comments However, when long-term storage is ratio will rise, making less nitrogen supporting this new section, including necessary, the stored materials would available to plants. However, this rise is one from another federal agency still be valuable as a soil additive in the only temporary. Ultimately, the carbon- supporting proposed paragraph (a)(5) form of compost or rotted organic matter to-nitrogen ratio will decrease, making about the protection of existing water that would improve the tilth of the soil. more nitrogen available for plant rights under state law. We have The final rule does not prescribe a growth.626 Studies have confirmed that finalized paragraph (a)(5) as proposed. storage method, so the permittee would salvage and redistribution of organic One commenter questioned the use of not be required to use the most matter will greatly increase nutrient the phrase ‘‘best technology currently expensive method available. availability in the long term.627 available’’ as proposed in paragraphs Several commenters alleged that the Some commenters also asserted that (a)(8) and (a)(10) and suggested that we removal, storage, and redistribution of salvage, storage, and redistribution of change this phrase to ‘‘best management organic matter would be very costly and organic materials will require the use of practices.’’ The commenter asserted that argued that implementation of these new equipment, which will result in at most mining operations the measures is unnecessary to reconstruct additional mining costs. While implementation of ‘‘best management productive postmining soil. Some permittees may incur some additional practices,’’ such as minimizing the commenters contended that reference to handling costs, the equipment needed disturbed area, specially handling and our Forest Reclamation Advisory No. for these operations is readily available placing acid and toxic materials, and 8,625 which highlights the importance of to the industry and should not result in ensuring timely revegetation, are re-spreading stumps, woody debris, and any significant additional cost. The sufficient to prevent the formation of roots on the regraded area, is environmental benefits of salvaging and acid and toxic drainage. We agree with inappropriate because that document is redistributing organic matter should the commenter and have replaced the not applicable outside Appalachia. The outweigh any added operational cost. term ‘‘best technology currently commenters acknowledge that Forest One commenter noted that well- available’’ with the term ‘‘best Reclamation Advisory No. 8 may serve documented research has shown that management practices’’ for several as sound guidance for unique situations appropriate equipment and reduced soil reasons. First, the actions described in which extreme measures are above often require the use of earth necessary, but assert that the approach 626 U.S. Dep’t. of Agric., Natural Res. moving equipment, and the term ‘‘best outlined in this guidance does not Conservation Serv., Carbon to Nitrogen Ratios in management practice’’ is typically used Cropping Systems. East National Technology by those in the profession of backfilling represent the best technology currently Support Center, Greensboro, N.C., in cooperation with North Dakota NRCS. (2011). (This reference and grading. Secondly, upon further 625 J.C. Skousen, et al, Forest Reclamation provides evidence for these temporary changes review of these paragraphs, we have Advisory No. 8: Selecting Materials for Mine Soil within crop fields; however, they also apply to determined that this change will help Construction when Establishing Forests on reconstructed SMCRA soils as they are substantially eliminate confusion. The term ‘‘best Appalachian Mine Sites, p. 2, (Jul. 2011). Available altered by human activity). at: http://arri.osmre.gov/FRA/Advisories/FRA_No.8 627 C.E. Zipper, et al., Rebuilding Soils on Mined technology currently available’’ is used %20Soil%20Materials.pdf (last accessed Nov. 3, Land for Native Forest in Appalachia. Soil Sci. Soc. 2016). Am. J. (77:337–349), p. 347 (2012). 628 80 FR 44436, 44543–45 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00204 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93269

in SMCRA,629 but in a context that is change to the final rule should clarify are adopting paragraph (b)(1) as inapplicable to this section of the rule. commenter’s concern. proposed. We also made additional changes to We have modified paragraph Final paragraph (d) establishes paragraphs (a)(8) and (a)(10) in response (a)(10)(ii) by adding the term ‘‘best examination and reporting requirements technology currently available’’ to to this comment. Paragraph (a)(8) now for the surface runoff control structures clarify that the operator should prevent states, ‘‘The regulatory authority will identified in the surface water runoff contributions of suspended solids to determine the meaning of the term ‘‘best control plan approved in the permit surface stream flow using ‘‘best management practices’’ on a site- under section 780.29. To be consistent technology currently available’’ instead specific basis. At a minimum, the term with final section 780.29, we modified of ‘‘best management practices.’’ We includes equipment, devices, systems, proposed paragraphs (d)(1) and (d)(2), made this change to be consistent with methods, and techniques that are by changing the term ‘‘hydraulic the language of SMCRA at section currently available anywhere, as structures’’ to ‘‘runoff-control 515(b)(10)(B)(i).631 determined by the Director determines structures.’’ Runoff control structures to be best management practices.’’ One commenter opined that the previous regulations were sufficient and are any man-made structures designed Paragraph (a)(10) requires the permittee to control or convey stormwater runoff to ‘‘[p]rotect the surface-water quality by proposed paragraph (a)(11) is unnecessary. We added this paragraph on or across a mine site. As discussed using best management practices, as in the preamble to § 780.29, this term described in paragraph (a)(8) of this for informational purposes. It helps the regulated community locate other encompasses the entire surface water section to handle earth materials, provisions in our regulations that control system and includes diversion ground water discharges, and runoff protect surface-water quality and flow ditches, drainage benches or terraces, . . . .’’ rates and reminds them of their drop structures or check dams, all types These additions provide the obligations under those provisions. We of conveyance channels, downdrains, regulatory authorities with discretion to are retaining it in the final rule because and sedimentation and detention ponds determine the meaning of the term ‘‘best it provides a service in this regard to and associated outlets. It does not management practices’’ on a site- both to the regulated community and include swales or reconstructed specific basis. This is important because the public. perennial, intermittent, or ephemeral methods for groundwater and surface Paragraph (b)(1) requires that to the stream channels. water protection may vary by region. maximum extent practicable, operators Proposed paragraph (d)(1) required Consequently, the best management must use mining and reclamation that after each occurrence of certain practices should be determined by the practices that minimize water pollution, precipitation events, the permittee must regulatory authorities. We have changes in flow, and adverse impacts on examine the structures identified under provided some guidance to help stream biota rather than relying upon § 780.29, and submit a report certified regulatory authorities in making this water treatment. We received many by a registered, professional engineer to determination. At a minimum, the term comments in support of this the regulatory authority within 48 includes equipment, devices, systems, modification. However, one commenter hours. Several commenters indicated methods and techniques that are questioned our authority to make this that it might not be possible to inspect currently available anywhere, even if change. Section 515(b)(24) of SMCRA all structures and report upon the they are not widely utilized. provides the authority to minimize conditions within 48 hours because of A regulatory authority commenter disturbances and adverse impacts on the number of applicable structures or expressed concern with the requirement fish, wildlife, and related environmental because of the difficulty in achieving at paragraph (a)(10)(i) that runoff be values, such as protecting the access if the precipitation event created handled in a manner to ‘‘avoid the hydrologic balance.632 In addition, deteriorated site conditions. In formation’’ of acid or toxic mine section 515(b)(10) 633 of SMCRA consideration of these comments, we drainage. We agree with the commenter. requires the operator to minimize the have modified paragraph (d)(1) to Recognizing that the formation of acid disturbances to the prevailing require the operator to examine all or toxic mine drainage cannot be wholly hydrologic balance at the mine site and structures identified under § 780.29, avoided, we have revised the final rule associated offsite areas and to the within 72 hours of cessation of each to be clear that surface water quality quality and quantity of water in surface occurrence of certain precipitation must be protected in a manner that water and groundwater systems. These events. ‘‘prevents postmining discharges of acid sections provide us with the statutory Proposed paragraph (d)(1)(i) required or toxic mine drainage.’’ This revision authority to make the changes discussed the examination of runoff control more appropriately conforms to section in paragraph (b)(1). structures after each occurrence of the 2- 515(b)(10)(A) of SMCRA 630 which Another commenter suggested that we year recurrence interval, or greater flow requires the operator to minimize the revise ‘‘maximum extent practicable’’ to event, in areas with an average annual disturbances to the prevailing allow for greater permitting flexibility; precipitation of more than 26.0 inches. hydrologic balance at the mine site and however, the commenter did not In the preamble to the proposed rule, we associated offsite areas and to minimize explain why additional flexibility was invited comment on whether a the disturbances to the quality and necessary. Additional flexibility would precipitation event with a 2-year quantity of water in surface water and weaken this requirement, making it recurrence interval is an appropriate groundwater systems during and after more difficult to enforce mining and threshold for requiring examination of mining by avoiding acid and toxic mine reclamation practices that minimize sediment control systems in mesic drainage. The postmining discharge of water pollution, changes in flow, and regions or whether we should allow acid mine drainage is what paragraph adverse impacts to stream biota. We variations based upon differences in (a)(10)(i) was meant to address. This have not accepted the suggestion and terrain, storm frequency, the nature of sedimentation control structures, and 629 30 U.S.C. 1265(b)(10) and (24) and 631 30 U.S.C. 1265(b)(10)(B)(i). 1266(b)(11). 632 30 U.S.C. 1265(b)(24). the frequency with which discharges 630 30 U.S.C. 1265(b)(10). 633 30 U.S.C. 1265(b)(10). from sedimentation control structures

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00205 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93270 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

occur.634 Some commenters opined that retaining in the final rule, proposed for surface mining.638 After evaluating the requirement for an inspection after paragraph (d)(1)(ii), which gives the the comments that we received, we are every 2-year event was unnecessary. regulatory authority the responsibility to adopting § 816.35 as proposed, with Other commenters asserted that the specify the size of a significant event for several modifications. regulatory authority should have inspection in areas with an average Numerous commenters expressed discretion to determine the inspection annual precipitation of 26.0 inches or concern with proposed paragraph (a)(2). frequency because it should be based on less because the regulatory authority is This proposed paragraph required experience and local conditions. After in the best decision to make groundwater monitoring throughout consideration we have retained the 2- determinations about their specific mining and reclamation until final bond year recurrence interval requirement of region. release. Several regulatory authority proposed paragraph (d)(1)(i). Regardless Proposed paragraph (d)(2) required commenters questioned the feasibility of of the region, sediment control, flood that within 48 hours of cessation of the proposed monitoring requirements potential, and flood-related damage certain precipitation events, a report because proposed § 800.42(d) required remain a concern. Bankfull flow in a certified by a registered, professional that, among other requirements, stream in any area generally occurs in engineer, must be submitted to the monitoring wells be removed before an response to a precipitation event with regulatory authority. One commenter applicant can apply for final bond an average recurrence interval of 1.5 noted that all precipitation events are release. years.635 Because a majority of sediment reported on a monthly basis and are The requirements for closing transport over time is accomplished at addressed by the field inspector as monitoring wells are found in § 816.39, moderate flow rates,636 we chose to needed. Another commenter suggested which require a permittee to require inspection of the sediment that if a reporting requirement is permanently seal exploratory and control structures following occurrence retained, a more reasonable reporting monitoring wells in a safe and of a 2-year event in areas where requirement would be 14 days. We agree environmentally sound manner in precipitation is greater than 26 inches with commenters that although it is accordance with § 816.13 before the per year. important to perform the inspection as regulatory authority may approve final One regulatory authority commenter soon as possible (but not longer than bond release. Commenters are correct stated that it currently receives reports within the allotted 72 hours), it is not that it would be impossible to continue of significant precipitation events when critical that the report be submitted groundwater monitoring until final there is a discharge or failure at a runoff immediately. Therefore, in bond release while simultaneously closing monitoring wells. Therefore, we control structure. Waiting until there consideration of these comments, we have modified final paragraph (a)(2) to has been a discharge or failure does not modified paragraph (d)(2)(i) to require require that groundwater monitoring, at satisfy our intent in promulgating that a report be submitted by the a minimum, must continue through paragraph (d)(1). The final rule seeks to operator to the regulatory authority mining, reclamation, and the prevent discharges or failures that could within 30 days of cessation of the revegetation responsibility period as harm the public, environment, or applicable precipitation event. prescribed by 816.115 of this part. private property by specifying the To account for situations where a Additionally, monitoring must continue threshold at which a precipitation event series of precipitation events occur in a beyond the minimum time frame, as rises to the level of significance and the short timeframe, we have added necessary, for the monitoring results to time when the mine operator must take paragraph (d)(2)(ii) to allow the meet the criteria required in action. Consequently, we have retained submission of one report to cover all 816.35(d)(1) and (2), as determined by paragraph (d)(1)(i) as proposed. precipitation events that occur within a the regulatory authority. These In areas with an average annual 30-day period. modifications ensure that groundwater precipitation of 26.0 inches or less, In response to proposed paragraph monitoring will continue until the paragraph (d)(1)(ii) requires an (d)(2), one commenter suggested that if regulatory authority determines that examination after a significant flow the reporting requirement is retained as requirements prescribed in this section event of a size specified by the proposed, a professional engineer are satisfied. Permittees may seek regulatory authority. We invited certification should not be required revisions to their monitoring plans, in comment on whether we should because an inspection by any qualified certain circumstances, through the establish more specific criteria for person should be sufficient. We permit revision procedures contained in examination of runoff control structures disagree. For the same reasons 637 § 774.13. in arid and semiarid regions. One discussed in the preamble of section We have modified paragraph commenter from a Western state 780.25, the examination report (d)(2)(iii) to clarify that the permittee regulatory authority claimed that the addressing the performance of the must demonstrate that the operation has storm event should not be less than the runoff control structures should be preserved or restored the biological 10-year recurrence interval. We certified by a registered, professional condition of the stream within the recognize that there are limited engineer because it affords a strict level permit and adjacent areas to the discharges from runoff control of accountability. This increased biological condition determined during structures in areas with an average accountability is necessary given the baseline data collection. We made this annual precipitation of 26.0 inches or hazard potential in the event of failure change to establish that the baseline less, but the commenter provided no and it is imperative that these structures conditions of the stream serve as the rationale for using a minimum be in sound condition at the time the standard for stream preservation or recurrence interval of ten years. We are certification is made. restoration. Section 816.35: How must I monitor In paragraph (d)(2), we have replaced 634 80 FR 44436, 44545 (Jul. 27, 2015). the terms ‘‘existing’’ and ‘‘reasonably 635 Dave Rosgen. Applied River Morphology, groundwater? Wildland Hydrology, Pagosa Springs, Colorado foreseeable’’ with ‘‘approved (1996). As discussed in the preamble to the postmining land uses within the permit 636 Id. proposed rule, we proposed to modify 637 Id. groundwater monitoring requirements 638 80 FR 44436, 44545–46, 44650 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00206 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93271

area.’’ We evaluated our use of the term commenters suggested that paragraph water monitoring ceases. This ‘‘existing use’’ throughout the rule and (e) is unnecessary as regulators already requirement is important because were concerned that, because the term possess the inherent authority to require hydrologic impacts can take years to ‘‘existing use’’ is also used in a Clean additional monitoring. Two coal develop given the slow movement of Water Act context, it might cause organizations noted that additional groundwater and its potential impact on confusion. In response we deleted the monitoring is already done in many surface water. Our experience has term from the final rule. We deleted the states and only enforcement of our shown numerous instances where term ‘‘reasonably foreseeable uses’’ from previous rules is necessary. While we hydrologic issues develop after a site the final rule except in connection with acknowledge that some states require has reached Phase 1 or Phase 2 of the protection of reasonably foreseeable additional monitoring, this is not a reclamation and associated bond surface lands uses from the adverse universal practice throughout all states release. Also, discontinuing the data impacts of subsidence. The term and there are no regulations currently in collection requirements prior to final appears only in SMCRA in section place that require regulatory authorities bond release is contrary to the objectives 516(b)(1), which requires that operators to uniformly impose additional found in SMCRA section 508(a)(13).640 of underground mines adopt subsidence monitoring. Therefore, we have retained We made several modifications to control measures to, among other things, paragraph (e), with no change to the paragraph (d), which allows the maintain the value and reasonably final rule. permittee to use the permit revision foreseeable use of surface lands. It is not Finally, one commenter stated that procedures section 774.13 to request a appropriate for a more general context. paragraph (f) does not allow the transfer modification of the surface-water Further, many commenters objected to of wells and may be inconsistent with monitoring requirements, provided that the usage of ‘‘reasonably foreseeable’’ landowner desires. The commenter is certain demonstrations are made. First, asserting that it is too subjective, incorrect because our regulations we modified paragraph (d)(2)(iii) to difficult to assess, and open to varying expressly provide for the transfer of clarify that the operation must wells. Paragraph (f) states that the interpretations, which could result in demonstrate that it has preserved or requirement to install, maintain, inconsistent application. Therefore, in a restored the biological condition of the operate, and, when no longer needed, groundwater context we have replaced stream to the condition determined remove all equipment, structures, and ‘‘reasonably foreseeable use’’ with the during baseline data collection. We other devices used in conjunction with phrase ‘‘approved postmining land uses made this change to make clear the link monitoring groundwater should be within the permit area’’ to avoid between baseline conditions and the consistent with §§ 816.13 and 816.39. confusion with Clean Water Act restoration or preservation standard, Section 816.13 allows for retention and terminology. and to ensure the regulatory authority Several commenters requested that we transfer of a drilled hole or groundwater considers any baseline changes in allow a regulatory authority to monitoring well for use as a water well advance of modifying the monitoring discontinue monitoring when the under the conditions set forth in plan. regulatory authority determines it is no § 816.39. Therefore, we have not longer needed. Similarly, several modified paragraph (f) of the final rule. Second, we modified paragraph commenters indicated that paragraph (d)(2)(iv) to remove the phrase (d) should allow the regulatory Section 816.36: How must I monitor ‘‘reasonably foreseeable uses.’’ The final authority the discretion to modify surface water? rule no longer includes the term monitoring requirements based on the As discussed in the preamble to the ‘‘reasonably foreseeable uses’’ in site specific knowledge and experience proposed rule, we proposed to modify contexts other than protection of of the regulatory authority. As discussed the surface water monitoring reasonably foreseeable surface land uses above, paragraph (d) allows permittees requirements.639 A commenter asserted from the adverse impacts of subsidence. to request revisions to a groundwater that surface water monitoring and We have several rationales for removal monitoring plan by using the permit associated data collection need not of this term. First, the term appears in revision procedures of § 774.13. The continue indefinitely. The commenter SMCRA only in section 516(b)(1),641 requested revision may include changes opined that collecting water quality data which requires that operators of to the parameters covered and the long after reclamation is complete underground mines adopt subsidence sampling frequency. However, our amounted to collecting and analyzing control measures to, among other things, obligation is to ensure that the ambient stream flow conditions and is maintain the value and reasonably monitoring requirements are applied a waste of time, especially for large foreseeable use of surface lands. consistently and objectively, and western surface mines. We declined to Sections 717(b) and 720(a)(2) of recognizing the difficulty in detecting change the requirement that requires the SMCRA 642 separately protect certain and predicting impacts to groundwater, operator to monitor surface water until water uses. Additionally, numerous only permits which have demonstrated final bond release. However, we have commenters opposed inclusion of the the required conditions as stated in revised final paragraph (a)(2) to clarify term ‘‘reasonably foreseeable uses’’ on a paragraph (d) may be revised by a that monitoring must continue through basis that is subjective, difficult to regulatory authority. Allowing mining and reclamation until the determine, and open to widely varying monitoring modifications based on such regulatory authority approves release of interpretations, which could result in subjective factors as a regulatory the entire bond amount for the inconsistent application throughout the authority’s experience and/or site monitored area as required in §§ 800.40 coalfields. We also wanted to avoid any knowledge would defeat this obligation. through 800.43. This change ensures potential conflicts with the Clean Water Commenters stated that paragraph (e), that the regulatory authority conducts Act authority in determining the which prescribes when the regulatory the necessary steps outlined in applicability of reasonably foreseeable authority must require additional §§ 800.40 through 800.43 related to the use(s). groundwater monitoring, should be bond release criteria before surface modified to permit regulatory 640 30 U.S.C. 1258(a)(13). authorities to use their discretion 639 80 FR 44436, 44546–47, 44650–51 (Jul. 27, 641 30 U.S.C. 1266(b)(1). regarding additional monitoring. Other 2015). 642 30 U.S.C. 1307(b) and 1309a(a)(2).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00207 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93272 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

In paragraph (d)(2)(iv), we also added With respect to regulatory authority We are declining to adopt the a requirement to demonstrate that the discretion to modify the monitoring commenters’ suggestion. The exceptions surface water availability and quality plan, paragraph (d) allows permit discussed above are the only exceptions are maintained or restored to the extent revisions that include such that are consistent with the purposes of necessary to support the approved modifications as long as the SMCRA, as described in section 102 of postmining land uses within the permit requirements of paragraphs (d)(2)(i) the Act.645 SMCRA section 102 (d) sets area. This change was made to ensure through (vi) are met. This latitude helps out the goal of ‘‘assur[ing] that surface that the regulatory authority does not the regulatory authorities meet changing coal mining operations are so conducted approve a monitoring plan modification conditions in a watershed due to mining as to protect the environment.’’ 646 that would prevent a determination that and non-mining related changes. To Section 102(h) of SMCRA sets out a goal the surface water retains the ability to both protect the operator and to to ‘‘promote the reclamation of mined support the postmining land use, as delineate the source of water quality areas left without adequate reclamation well as any actual uses of the surface changes that may occur in a watershed, prior to August 3, 1977, and which water prior to mining. The previous rule we consider it vital to be able to modify continue, in their unreclaimed at § 816.41(e)(3)(i) required a the parameter list to ascertain impacts condition, to substantially degrade the demonstration that the water quantity from all sources. quality of the environment, prevent or and quality are suitable to support damage the beneficial use of land or Section 816.37: How must I monitor the approved postmining land uses. water resources, or endanger the health biological condition of streams? Proposed § 816.36(d)(2)(iv) would have or safety of the public.’’ 647 We do not replaced this provision with a As discussed in the preamble to the agree with the commenter that requirement for a demonstration that the proposed rule, we proposed to modify biological monitoring should be operation has maintained the our regulations at § 816.37 643 to require modified or terminated based on site availability and quality of surface water monitoring of the biological condition of conditions, or other issues such as in a manner that can support existing perennial and intermittent streams in anticipated future water use, natural and reasonably foreseeable uses of the the manner specified in the monitoring resource management decisions, and water. However, as explained above, we plan approved under proposed public need. The biological condition have now decided not to include the § 780.23(c).644 After evaluating the monitoring plan requires the reference to reasonably foreseeable uses comments that we received, we have establishment of a sufficient number of in the final rule. Therefore, our rationale revised the final rule. As discussed in appropriate monitoring locations up for deletion of the requirement in the the preamble to final § 780.19(c)(6), the gradient and down gradient of the mine proposed rule pertaining to postmining requirements for assessing biological site and adjacent areas to provide the land uses, as set forth at 80 FR 44436, condition of intermittent streams apply regulatory authority with the necessary 44546–44547 (Jul. 27, 2015), no longer only if a scientifically defensible data to determine the impacts of the applies and we are retaining that bioassessment protocol has been operation upon the hydrologic balance. requirement as part of our final rule. established for assessment of These measurements allow the Additionally, we have created two intermittent streams in the state or regulatory authority to have the data separate paragraphs to help clarify that region in which the stream is located. necessary to make an informed decision there are two distinct requirements: One For all other intermittent streams the as to whether a trend, emanating from relating to support of the approved best control technology currently the operation, may result in material postmining land use (paragraph (d)(iv)) available consists of the establishment damage to the hydrologic balance and the other relating to maintenance of of standards that rely on restoring the outside the permit area and whether the all designated uses (paragraph (d)(v)). ‘‘form,’’ ‘‘hydrologic function,’’ and streams are trending toward ecological These paragraphs delineate the two water quality of the stream and the success. Further modifications or related but distinctly different concepts. reestablishment of streamside vegetation waivers to the monitoring of biological In paragraph (d)(v) we have added the as a surrogate for the biological conditions of streams of the type that word ‘‘any’’ before the words condition of the stream. Therefore, in the commenters suggest would reduce ‘‘designated uses’’ to address situations final rule § 816.37(a)(ii) we make clear the amount of data available to make where more than one designated use that you must use the bioassessment informed decisions and would thus, applies to a stream. protocol that complies with final rule reduce the effectiveness of monitoring. One commenter responded to our § 780.19(c)(6)(vii). Therefore, we are not providing any solicitation for comments on whether Some commenters suggested that the further exceptions or waivers in we should place restrictions on the regulatory authority should be granted §§ 816.37 or 780.23(d). For additional regulatory authority’s ability to modify discretion to modify or terminate information on the exceptions for the approved monitoring plan. The monitoring based on site conditions, remining and operations that avoid commenter asserted that the regulatory such as geology, hydrology, anticipated streams, refer to the preamble authority should be able to modify the future water use, public need, or other discussion of § 780.23(d). parameter list after a permit has been natural resource management Several commenters objected to the issued because it needs to consider the considerations. Section 780.23(d) of the requirement at paragraph (a)(2) that the physical, climatological, and other final rule makes clear that the regulatory permittee must continue monitoring characteristics of the site when making authority may waive or modify the throughout mining and during regulatory decisions on SMCRA sites. biological condition monitoring plan reclamation until the regulatory The commenter also opined that requirements in two scenarios: (1) When authority release the entire bond allowing the regulatory authority the lands are eligible for remining, and (2) amount for the monitored area. discretion to make permit modifications for operations that avoid streams. As Specifically, commenters stated that to the monitoring plan allows the detailed in paragraph (a)(1)(i) of there is no need to monitor biological regulatory authority to adopt new § 816.37, these exceptions also apply testing methods as they become within this section of the final rule. 645 30 U.S.C. 1202(d). available without having to promulgate 646 Id. a state program regulatory change. 644 80 FR 44436, 44547 (Jul. 27, 2015). 647 30 U.S.C. 1202(h).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00208 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93273

activity in stream channels during the While we acknowledge the variable pollution.’’ After evaluating the various phases of bond release for well- nature of biological data, we find that it comments, we made several functioning streams, newly reclaimed is necessary and appropriate to use this modifications and additions to the final streams, or until full reclamation has data to document the restoration of rule. As discussed in the preamble to been achieved because the resources ecological function in perennial and § 780.12(n), we determined that the spent on such monitoring would be intermittent streams, especially when requirements of proposed paragraphs (a) better allocated to other reclamation the data is consistently collected before through (d) 651 of this section were more tasks. These commenters further suggest mining, during mining, and during appropriately located in the permitting that the focus should be upon reclamation, until the regulatory standards than in the performance monitoring in other areas which the authority releases the entire bond standards. Therefore, we have moved operator and the regulatory authority amount for the monitored area under these paragraphs to new paragraph (n) agree are of higher importance. §§ 800.40 through 800.43. Rigorous in § 780.12, which describes what After careful consideration of these quality assurance and quality control should be included in the reclamation comments, we are retaining the final methods will reduce the imprecision plan if the baseline data indicates the rule as proposed. We have determined associated with sampling. In addition, presence of acid-forming and toxic that monitoring is important in all the monitoring required in this forming materials. We retained in phases of mining and reclamation paragraph is just one part of the water § 816.38 the requirements related to through final bond release, as required monitoring requirements in this rule. performance standards for handling of by §§ 800.40 through 800.43 of the final Other parts of the water monitoring acid-forming and toxic-forming rule. Regulatory authorities cannot requirements, such as the groundwater materials and have combined and assess whether ecological function has and surface water monitoring organized them into two paragraphs, (a) been restored without biological requirements of §§ 816.35 and 816.36, and (b). We have addressed all monitoring. A snapshot sample after will allow the operator and the comments about the paragraphs moved reclamation presents an incomplete regulatory authority to determine, in a to § 780.12 in the preamble to that picture and cannot demonstrate whether timely manner, whether ecological section. or not ecological success has been function will be successful. Moreover, In final paragraph (a), to ensure that achieved. Annual, long-term monitoring sampling of only water quality the permittee is taking all appropriate of all restored perennial and parameters and or stream form will action to prevent the formation of acid intermittent stream channels is suffice to determine the success of or toxic mine drainage, we have specified that the permittee must use necessary to ensure the restoration of ecological condition. For these reasons, the best technology currently available ecological function as required by the we have not changed the final rule in to avoid the creation of acid or toxic final rule. Long-term monitoring is also response to these comments. A final commenter objected to mine drainage into surface water or necessary to determine if the restoration paragraph (c), which, if the sample groundwater. We have added is trending toward success and to give analysis demonstrates noncompliance, nonsubstantive language to paragraph operators time to correct any negative requires a permittee to notify the (a) to conform to plain language trends before bond release is scheduled. regulatory authority, take any actions principles. In addition we require that The early identification of negative required under § 773.17(e), and the permittee comply with the trends will allow the regulatory implement any applicable remedial reclamation plan approved in the permit authority and the operator to identify measures required by the hydrologic in accordance with § 780.12(n). In and correct any negative trends before reclamation plan. The commenter addition, we incorporated proposed they present larger and more significant suggested that these requirements paragraph (f), about adhering to issues that could delay bond release, duplicate the reporting requirements of disposal, treatment, and storage increase costs, or result in further the Clean Water Act and that, as a practices, into final paragraph (a) with corrective actions. In addition, we note result, they are burdensome. In the final no changes. In proposed paragraph (e), that the final rule affords the regulatory rule, we have deleted proposed now paragraph (b), we have replaced the authority discretion in determining how paragraph (c). term ‘‘biological condition’’ with to assess restoration of ecological ‘‘biology’’ in the final rule to conform to function, and the regulatory authority Sections 816.38: How must I handle other provisions of the final rule. can use this discretion in considering acid-forming and toxic-forming Specifically, we are no longer assessing the establishment of monitoring materials? the biological condition of all locations and sampling frequency as As discussed in the preamble,648 we intermittent streams. However, as noted in § 780.23(c)(2)(ii) and (iii). proposed to modify § 816.38 to more explained in the preamble discussion of Other commenters expressed concern completely implement two sections of final § 780.19(c)(6), we are requiring the that there is currently insufficient SMCRA: Section 515(b)(14) of cataloging and monitoring of the biology scientific data to determine suitable SMCRA,649 which requires that all acid- of those intermittent streams for which timing for initiating the required forming materials and toxic materials be a biological condition assessment is not monitoring in reclaimed streams. Still ‘‘treated or buried and compacted or required. The term ‘‘biology’’ is other commenters maintained that otherwise disposed of in a manner sufficiently broad to encompass both biological data are not reliable for designed to prevent contamination of streams for which assessment of the determining trends toward reclamation ground or surface waters,’’ and section biological condition is required under success because biological data is overly 515(b)(3) of SMCRA,650 which provides § 780.19(c)(6) (all perennial streams and influenced by seasonal conditions that ‘‘overburden or spoil shall be certain intermittent streams) and those which render sampling methods shaped and graded in such a way as to streams for which assessment of the imprecise. One commenter prevent slides, erosion, and water biological condition is not required. recommended that water quality In the preamble to the proposed rule, parameters and stream form are valid 648 80 FR 44436, 44547–44548 (Jul. 27, 2015). we invited comment on whether the indicators of the ability of a stream to 649 30 U.S.C. 1265(b)(14). support the necessary biota long-term. 650 30 U.S.C. 1265(b)(3). 651 80 FR 44436, 44651 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00209 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93274 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

final rule should require use of specific We are the adopting this section of the section 303(c) of the Clean Water Act.657 generally-accepted tests for rule as proposed except for a minor, This modification will improve identification of potential acid-forming non-substantive word change in implementation of the rule and provide and toxic-forming materials in the paragraph (a)(3) and a clarifying increased clarity for the regulated overburden strata.652 Commenters did statement in paragraph (c)(3). public. not identify any specific tests. Several Final Paragraph (c): Measures To We proposed in paragraph (a)(3)(i) to commenters noted that the regulatory Address Unanticipated Adverse Impacts require a demonstration that the authority should have the discretion to to Protected Water Supplies discharge be at a known rate and of a determine the tests that are best suited quality that will meet the effluent for their region. Based in part on this In paragraph (c)(3), we added the limitations for pH and total suspended response, we have decided not to following statement to the final rule, include specific tests in the final rule. ‘‘[t]he regulatory authority may grant an solids referenced in § 817.42. One This decision also allows permit extension if you have made a good-faith commenter asserted that this provision applicants and regulatory authorities to effort to meet this deadline, but have appears to usurp the allowance and avail themselves of advances in been able to do so for reason beyond permit limits that would be approved technology without the need for a rule your control.’’ Although we did not under a Safe Drinking Water Act change. receive any comments on this section, Underground Injection Control permit we determined upon further review of and conflicts with paragraph (b). The Section 816.39: What must I do with the proposed rule that it would be commenter’s vague assertion that the exploratory or monitoring wells when I appropriate for the regulatory authority section ‘‘appears to usurp allowance no longer need them? to grant an extension of time to comply and permit limits’’ does not provide To accommodate renumbering and with water replacement requirements if enough information to fully understand final rule changes in part 800, we have the deadline for compliance cannot be commenter’s concern. The commenter renumbered references to part 800 in met for reasons beyond the control of recommended that the regulatory this section. With the exception of this the operator, despite the operator’s jurisdiction of the Safe Drinking Water renumbering, we are finalizing § 816.39 good-faith efforts. Act Underground Injection Control as proposed. We received no comments Section 816.41: Under what conditions program be recognized. We recognize on this section. may I discharge water and other the jurisdiction of the Safe Drinking Section 816.40: What responsibility do materials into an underground mine? Water Act and we emphasize again that I have to replace water supplies? our regulations do not supersede other As discussed in the preamble to the federal laws. Paragraph (a)(3)(i) does not We proposed to modify our proposed rule, we proposed to modify ‘‘usurp’’ the allowance and permit 655 regulations by adding a new § 816.40 to and expand previous § 816.41 to set limits approved under commenter’s replace water supply definitions and out the conditions under which an Underground Injection Control permit. requirements previously located in operator of a surface mine may Rather, the provision implements §§ 701.5, paragraphs (a) and (b) and discharge water and other materials into section 510(b)(3) of the Act 658 which 816.41(h).653 Some commenters an underground mine and to more fully prohibits approval of a permit suggested that we delete this proposed implement section 510(b)(3) of application unless the applicant section because it is unnecessary while SMCRA,656 which prohibits approval of demonstrates, and the regulatory other commenters supported the a permit application unless the authority finds, that the proposed modifications. We considered the applicant demonstrates, and the operation has been designed to prevent comments and determined that this regulatory authority finds, that the material damage to the hydrologic section is necessary because it more proposed operation has been designed 659 fully implements the requirements of to prevent material damage to the balance outside the permit area. We section 717(b) of SMCRA 654 by hydrologic balance outside the permit have determined that paragraph (a)(3)(i) establishing performance standards for area. The U.S. Forest Service provided helps to prevent material damage to the situations when damage to water comments in support of the proposed hydrologic balance outside the permit supplies is anticipated (as allowed in rule. We are adopting the rule, as area because exceeding pH and total paragraph (b) of final rule § 780.22) or proposed, with minor modifications. We suspended solid effluent limitations of when unanticipated damage to discuss these changes and responses to section 816.42 can cause material protected water supplies occurs. relevant comments below. damage to the hydrologic balance We received one comment requesting We have replaced the term ‘‘biological outside the permit area. The commenter that this section apply only to valid condition’’ with ‘‘biology’’ in paragraph has not provided any information water rights existing at the time of (a)(1)(iii) to conform to other changes suggesting that it does not, nor has the permitting. However, this comment is within the final rule. Specifically, we commenter provided any information to outside the scope of the proposed rule are no longer assessing the biological clarify how this provision conflicts with because neither the proposed rule nor condition of all intermittent streams. the Safe Drinking Water Act. Thus, the final rule address or determine the However, as explained in the preamble based on our expertise and on the validity of water rights. The final rule discussion of final rule § 780.19(c)(6), vagueness of the comment, we reject the ensures that if a water right has been we are requiring the cataloging and commenter’s assertion. Paragraph adversely impacted, there will be a monitoring of the biology of intermittent (a)(3)(i) fits within the context of the mechanism to replace the adversely streams. authority that the Act provides and impacted water supply. Consequently, In addition, we have modified complements Safe Drinking Water Act we are not modifying the final rule in paragraph (a)(2) by replacing ‘‘result in’’ standards. We also address commenter’s response to this comment. with the ‘‘cause or contribute to’’ to attention to Part IV of this preamble better conform to language used in 652 80 FR 44436, 44547 (Jul. 27, 2015). 657 33 U.S.C. 1313(c). 653 80 FR 44436, 44548 (Jul. 27, 2015). 655 80 FR 44436, 44549 (Jul. 27, 2015). 658 30 U.S.C. 1260(b)(3). 654 30 U.S.C.1307(b). 656 30 U.S.C. 1260(b)(3). 659 30 U.S.C. 1260(b)(3).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00210 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93275

discussing the relationship between the § 816.42.660 We also proposed to replace requirements for each of the three Act and other statutes. the reference to the effluent limitations different types of diversions. These Furthermore, the commenter has not in 40 CFR part 434 with reference to the changes and relevant comments are provided a cogent argument as to why effluent limitations established in the discussed below. Furthermore, as a it believes that paragraph (3)(i) conflicts NDPES permit for a specific operation. result of these changes we have re- with paragraph (b). Paragraph (3)(i) Many commenters, including one from designated many of the proposed provides for a demonstration that the another federal agency, supported the paragraphs within the final rule. discharge will be at a known rate and of modifications because these changes Additionally, we have added ‘‘tribal’’ a quality that will meet the effluent make our regulations consistent with to the list of laws and regulations at limitations for pH and total suspended the policy and practice of the U.S. final paragraph (a)(5)(iv). solids referenced in § 816.42. Paragraph Environmental Protection Agency. (b) provides that discharges are limited Several commenters requested that we Final Paragraph (a): Classification to the following materials: Water; coal modify the final rule to clarify that an Several commenters expressed processing waste; fly ash from a coal- operator must comply with the effluent confusion about the relationship fired facility; sludge from an acid-mine- limitations established in the NPDES between § 816.43(a) and the provisions drainage treatment facility; flue-gas permit and all other water quality of §§ 780.28 and 816.57. Commenters’ desulfurization sludge; inert materials standards. We agree that this distinction confusion appears to stem from the fact used for stabilizing underground mines; is necessary. In response to comments that ‘‘diversion’’ as it is defined in our and underground mine development received, and to clarify who will enforce existing regulations covers a variety of waste. The commenter merely asserts, Clean Water Act requirements different types of water conveyance without explanation or support, that applicable to discharges associated with structures. ‘‘Diversion’’ is defined in these two provisions conflict and does surface and underground mining § 701.5 of the existing regulations as a not provide any information activities, we have added new rule text ‘‘channel, embankment, or other demonstrating how our regulations at § 816.42(a)(1), (a)(2), (b), (c) and (d). manmade structure constructed to governing the rate and quality of These sections are discussed in more divert water from one area to another.’’ discharge conflict with our regulations detail in the general comments found in This broad definition includes channels limiting the materials that can be Part IV.G., of this preamble. The designed to keep water from entering discharged. language added to final rule § 816.42(d) the disturbed area, known as ‘‘diversion We proposed in paragraph (a)(5) to requires the SMCRA regulatory ditches’’ within the regulated require the permittee to obtain written authority to coordinate with the community. Our definition also permission from the owner of the mine appropriate Clean Water Act authorities includes the internal drainage system into which a discharge is to be made to determine whether there have been conveyances and channels within the and provide a copy of the authorization violations of the Clean Water Act. The disturbed area that act to transport water to the regulatory authority. A regulatory SMCRA regulatory authority must take for sedimentation control and surface authority commented that this is a enforcement or other action as water runoff control. Furthermore, still contentious issue in Virginia and has appropriate in accordance with the been the subject of recent litigation. other diversions, including those terms of the SMCRA permit. This discussed in §§ 780.28 and 816.57, are This regulatory authority opined that section does not preclude the SMCRA the application of paragraph (a)(5) to streams that have been relocated from regulatory authority from performing their original position to allow for existing permits may cause problems. the statutory obligation to initiate We appreciate the commenter’s concern mining. All of these types of diversions immediate enforcement action when may be further subdivided as and understand the need to avoid any ‘‘permittee is in violation of any disruptions. In the final rule § 701.16, ‘‘permanent diversions’’ or ‘‘temporary requirement of this Act, which diversions.’’ In final rule § 701.5, we we have clarified that the stream condition, practice, or violation also protection rule, with enumerated define ‘‘temporary diversions’’ to mean creates an imminent danger to the ‘‘a channel constructed to convey exceptions, does not apply retroactively health or safety of the public, or is to existing or approved permits and streamflow or overland flow away from causing, or can reasonably be expected the site of actual or proposed coal permit applications. The applicability to cause significant, imminent criteria adopted in final rule § 701.16 exploration or surface coal mining and environmental harm to land, air or reclamation operations. The term increase regulatory certainty and water resources ....’’661 address commenters’ concerns about includes only those channels not Additionally we have modified approved by the regulatory authority to potential problems from the application paragraph (g) to better track the of paragraph (a)(5) to existing permits. remain after reclamation as part of the language of section 303(c) of the Clean approved postmining land use.’’ 662 Section 816.42: What Clean Water Act Water Act. Because the definition of ‘‘diversion’’ requirements apply to discharges of my Section 816.43: How must I construct under our regulations includes many operation? and maintain diversions? types of manmade structures This section requires discharges from As discussed in the preamble to the constructed to transport water, we have surface coal mining operations to be in proposed rule, we proposed to modify added paragraphs (a)(1), (2), and (3) to compliance with water quality our previous regulation at § 816.43.663 specifically categorize diversions. This standards and effluent limitations After evaluating the comments that we should eliminate the confusion established in NDPES permits and that expressed by the commenters. received, we have made significant • any discharges of overburden or fill modifications to the final rule to In final paragraph (a)(1), we material must be made in compliance categorize and clarify the specific prescribe the requirements for diversion with permits issued pursuant to section ditches. Diversion ditches may be 404 of the Clean Water Act. As 660 80 FR 44436, 44549 (Jul. 27, 2015). temporary or permanent ditches that discussed in the preamble to the 661 30 U.S.C. 1271(a)(2). convey water not impacted by the proposed rule, we proposed to re- 662 33 U.S.C. 1313(c). mining operation around disturbed designate and modify previous 663 80 FR 44436, 44549–44550 (Jul. 27, 2015). areas, bypassing siltation structures.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00211 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93276 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

• In final paragraph (a)(2), we Several commenters claimed that diversions as one commenter suggested. prescribe the requirements for stream using the term ‘‘diversions’’ of perennial As discussed more fully in the preamble diversions. Stream diversions are and intermittent streams in proposed to final rule § 816.57(c), we intend for temporary or permanent stream paragraph (b) was confusing because the certification of stream diversions to relocations. Temporary stream there is an alleged overlap and potential verify that the permittee has re- diversions may be further characterized conflict between § 816.43 and proposed established the ‘‘form’’ of the stream. consistent with the requirements of §§ 780.28 and 816.57, which prescribe Such a certification is essential for § 780.28(f), which sets out specific requirements for stream relocations, also stream diversions because restoration of requirements for temporary stream known as stream diversions. These ‘‘form’’ is critical to the return of diversions in place for more than three commenters advocated removing hydrologic function and ecological years. references to stream relocations from function. In contrast, we are not requiring restoration of hydrologic • In final paragraph (a)(3), we this section. Our response is two-fold. function and ecological function for prescribe the requirements for First, the diversion classification system diversion ditches and conveyances and conveyances or channels within the established in our final rule should channels within the disturbed area disturbed area. These diversions include eliminate the commenters’ confusion. because these two types of diversions all other conveyances, temporarily or Second, there is no need to remove the are not intended to serve as a surrogate permanently constructed, within the requirements for stream relocations from this section. Final § 816.43 is broad for an existing intermittent and disturbed area to convey surface water perennial stream. Rather, they are runoff and other flows from or across in scope and sets out specific requirements for the design, location, designed either to divert un-impacted disturbed areas to siltation structures water away from the disturbed area or during mining. Following mining and construction, maintenance, and use of all the various types of diversion, to capture and transport water through reclamation, permanent conveyances the disturbed area to a siltation and channels that are retained to including stream relocations. As discussed above, we identified three structure. Thus, the normal inspection support the postmining land use will process should adequately verify that remain, but the siltation structures will categories of diversions, each with two subsets: Temporary or permanent. Many diversion ditches and conveyances or be removed as required by the channels within the disturbed area have reclamation plan. of the requirements in this section apply to all or most of these categories. been constructed and maintained as To clarify further, we have described the Therefore, it is logical for us to place designed. We decline, consequently, to differences between temporary and these requirements in one section. In require engineer certification of permanent diversions for each of the contrast, the relevant portions of diversion ditches and internal three types of diversions. Paragraph (a) §§ 780.28 and 816.57 that deal with conveyances and channels. classifies each of the types of diversions, stream diversions set forth additional As part of the classification and contains regulations applicable to all permitting and performance standards explanation of the three types of three types of diversions, the two that apply exclusively to perennial and diversions we have moved and re- subsets of each type—temporary and intermittent streams. Paragraph (a)(2) of designated proposed paragraphs (a)(2) permanent diversions—and, as specified § 816.43 specifies that when a permittee and (a)(7) to final paragraphs (c) and (d), in paragraph (a)(2), references the diverts perennial and intermittent respectively, because these requirements apply to all types of additional requirements that apply if the streams, it must satisfy not only the diversions. diversion involves a perennial or requirements of this section but also intermittent stream, consistent with the those of §§ 780.28 and 816.57. Final Paragraph (b): Design Criteria requirements of final §§ 780.28 and Some commenters recommended that Several commenters maintained that 816.57. we consolidate proposed § 816.57(b)(3) the requirements related to design As part of the clarification and and previous § 816.43(b)(4) which criteria for temporary diversions should classification, we have moved proposed required a qualified professional not apply to existing or already paragraph (c) and divided it into two engineer to certify that the stream approved, but not yet constructed, parts: Final paragraph (a)(1) entitled diversion has been constructed in diversions. These commenters asserted ‘‘Diversion Ditches’’ and final paragraph accordance with the design approved in that immediate imposition of these (a)(3), entitled ‘‘Conveyances or the permit and to certify that it meets all requirements will result in numerous Channels within the Disturbed Area.’’ the engineering-related requirements of permit revisions and will place a We did this because the conveyances or the regulations. The commenters tremendous, unnecessary burden upon channels identified in proposed identified proposed § 816.43(b) as an regulatory authorities, particularly in paragraph (c) included both flows appropriate place to do this. Similarly, states that are currently implementing diverted from disturbed areas as well as another commenter asked for assurance design criteria where no problems have impacted flows from within the that we require a qualified professional occurred. In the final rule § 701.16, we disturbed area. As commenters pointed engineer to certify all diversions, have clarified that the stream protection out, discussing both types of diversions especially diversions affecting streams. rule, with enumerated exceptions, does was confusing. In the final rule, by It is not necessary to incorporate not apply retroactively to existing or setting out the three categories of redundant regulations in multiple approved permits and permit diversions in paragraph (a), we clearly locations. Because the requirements for applications. As discussed elsewhere in distinguish between the various types of engineer certification of diversions this preamble, the applicability criteria diversions based upon their specific apply only to stream diversions, we adopted in final rule § 701.16 increase functions. As commenters have have retained those requirements in regulatory certainty and address asserted, it is important for us to make final § 816.57(c)(2). Although we commenters’ concerns about disruptions such distinctions so that the regulatory incorporate the requirement by and costs for permit applicants and the community can confidently identify the reference in paragraph (a)(2) of final regulatory authority. standards that apply to each type of § 816.43, we do not repeat it. We also Some commenters recommended that diversion. decline to require the certification of all some of the design criteria imposed in

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00212 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93277

proposed § 816.43(a), now paragraph permanent diversions of miscellaneous been, and remain, inherently (b), should apply only to regions that are flows to be designed and constructed to unpredictable. experiencing diversion failures. As safely pass the peak runoff from a 100- After reviewing and considering all discussed in the preamble to the year, 6-hour precipitation event as the comments we received in response, proposed rule,664 past diversion failures opposed to a 10-year, 6-hour we have determined that the 10-year, 6- have significantly contributed to failures precipitation event. hour precipitation event is a sufficient of larger structures downstream—such Several commenters opposed minimum design criterion. We concur as siltation structures. In the past, the adopting increased design criteria for that a 25-year, 6-hour precipitation cumulative effect of a failure of a miscellaneous flows, and no design event is not necessary to provide diversion followed by a failure of larger commenters supported the change. We a sufficient added margin of safety. The structures downstream has resulted in have eliminated references to final rule imposes new and more adverse social, economic, and ‘‘miscellaneous flows’’ in the final rule protective design and performance environmental effects. Thus, the because this general term is now criteria for temporary diversions. potential for diversion failures is a subsumed by the distinct categories of Furthermore, sediment control measures threat to the environment and diversions we defined in paragraph (a) within the permit area will may capture surrounding communities absent of the final rule. Final paragraph (b) additional surface runoff. These reasonable regulation, such as the prescribes a single set of design criteria additional measures will provide an design criteria in final paragraph (b). to all three categories with one added margin of safety without raising Therefore, we proposed, and are important distinction. That difference is the design event. finalizing, design criteria that that the flow capacity for stream We replaced the term ‘‘biological reasonably minimize the potential for diversions includes flow in the flood- condition’’ with ‘‘biology’’ in paragraph diversion failure, regardless of the prone area, while flow capacity for (b)(1)(ii) of the final rule to conform to location of the diversion. Minimizing diversion ditches and conveyances or other changes within the final rule. the potential for diversion failure will channels within the disturbed area Specifically, we are no longer assessing reduce the possibility of failures to includes only in-channel flow, with the biological condition of all downstream siltation structures, and the sufficient freeboard to prevent out-of- intermittent streams. However, as resulting possibility of offsite impacts channel flow. This distinction is explained in the preamble discussion of that could lead to material damage to necessary because only stream final rule § 780.19(c)(6), we are the hydrologic balance outside the diversions are intended to function as requiring the cataloging and monitoring permit area. Commenters’ suggestions natural streams. We are also adopting of the biology of intermittent streams. that the criteria should apply only if separate design criteria standards for diversion failures occur in a specific temporary and permanent diversions as Section 816.45: What sediment control region is unreasonable and inconsistent proposed. Therefore, the design event measures must I implement? 665 with the purposes of the Act because for all temporary diversions will be the As discussed in the preamble to the waiting for a failure to occur in an area 2-year, 6-hour precipitation event and proposed rule, we proposed to modify before addressing failures is not an the design event for all permanent our regulations at § 816.45 667 about the diversions will be a 10-year, 6-hour appropriate response to a known and sediment control measures an operator precipitation event. demonstrated hazard. Aside from must implement within the disturbed We also invited comment on whether speculative comments that these events area of the permit. After evaluating the are purely regional issues, commenters the design event for a temporary diversion should be raised from a 10- comments that we received, we are did not attempt to demonstrate that the adopting the section as proposed, with likelihood of diversion failures in their year, 6-hour precipitation event to a 25- year, 6-hour precipitation event to the following explanations and regions is so remote that these exceptions. regulatory changes are unnecessary. provide an added margin of safety. Final paragraph (a) requires the use of Thus, with the exception of re- Many commenters opposed raising the the best technology currently available designation of the paragraphs and plain design event. One commenter opined in the design, construction, and language modifications, we have that a 25-year, 6-hour design event will maintenance of sediment control finalized the design criteria as proposed. result in larger channels, additional As discussed in the preamble to riprap, and higher costs. Another measures. We have modified proposed proposed § 816.43(c),666 we made two commenter stated that a typical paragraph (a)(2) by deleting the phrase requests for comment. First, we asked diversion will result in a wider channel ‘‘more stringent of’’ and replaced it with for comment on whether we should requiring increased cut and fill volumes the phrase ‘‘the applicable effluent revise proposed paragraph (c) to apply for construction. The commenter added limitations.’’ This change renders the the same design criteria for temporary that it has not experienced any failures regulation consistent with paragraph (a) and permanent diversions of or breaches of temporary diversions of § 816.42, which requires compliance miscellaneous flows as we apply to designed for the 10-year 6-hour event with applicable water quality standards temporary and permanent diversions of and thus argued that altering the design and effluent limitations. perennial and intermittent streams. This criteria would not provide any In final paragraph (b), we listed seven would result in temporary diversions of additional environmental protection or potential sediment control methods. We miscellaneous flows being designed and benefit. Another commenter asserted made a minor word change in the constructed to safely pass the peak that the regulatory authority should introductory paragraph (b) to remove runoff from a 10-year, 6-hour retain discretion to increase design the phrase ‘‘and adjacent to’’ that could precipitation event, rather than a 2-year, standards based on sufficient local or be misinterpreted to apply to 6-hour precipitation event. regional data demonstrating the need. undisturbed areas. This change makes it Additionally, this would require Some commenters argued that the clear that sediment control measures are increasing unpredictability of carried out only on the disturbed areas, 664 80 FR 44436, 44549–44550 (Jul. 27, 2015). precipitation events necessitates a 25- unless otherwise provided. 665 See 30 U.S.C. 1202(a). year, 6-hour precipitation design event. 666 80 FR 44436, 44550 (Jul. 27, 2015). However, precipitation events have 667 80 FR 44436, 44550 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00213 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93278 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

We modified final paragraph (b)(4) by perennial streams. Typically, sediment locations have been approved by the adding ‘‘surface’’ and ‘‘from laden water is directed to the sediment Clean Water Act Authority. undisturbed areas’’ to clarify that this ponds, and treated water is returned to Final Paragraph (e): Exemptions paragraph refers only to surface runoff the stream by constructed channels. from undisturbed areas. Likewise, we Placing these structures as closely as Paragraph (e) sets out conditions revised paragraph (b)(5) to clarify that possible to the outlet of the disturbed under which the regulatory authority surface runoff from undisturbed areas is area will limit the length of these may grant an exemption from the what is being conveyed. channels and help minimize any requirements of this section. The As proposed, paragraph (b)(7) stated adverse effects. Shorter channels, exemption applies when the area is that ‘‘treating with chemicals’’ is moreover, require less maintenance, and small, and the operator can demonstrate allowed. This statement could have are therefore, less susceptible to failure. that drainage from the disturbed area been misconstrued as allowing Impacts to streams will also be will comply with section 816.42. For treatment of entrained sediment and minimized if sediment ponds are small disturbed areas, more damage may suspended solids to occur outside of constructed outside perennial or be done by attempting to construct sediment ponds. Therefore, we have intermittent channels. However, siltation structures than if the land was added language to clarify that this type because it is not always possible to left undisturbed. Construction of of treatment of surface runoff must construct out-of-stream structures due to siltation structures requires disturbance occur in sediment ponds and that local topography, §§ 780.28 and of land and, until vegetated, they treatment cannot be carried out by other 816.57(h) of this rule provide that the contribute small amounts of sediment. means, such as by broadcasting regulatory authority can approve As noted, the exemption does not apply chemicals on the ground, or within construction in stream channels. if the drainage will not comply with other conveyances. We have also section 816.42. revised this paragraph to allow the use One commenter suggested that this of flocculants, as well as other types of paragraph be removed because the Section 816.47: What requirements chemicals. Clean Water Act, and not SMCRA, apply to discharge structures for We received comments that proposed governs the location of sedimentation impoundments? paragraph (b)(8), ‘‘treating mine ponds. The commenter pointed out that drainage in underground sumps,’’ is the Environmental Protection Agency’s To conform to plain language considered processing waste water and recent Clean Water Rule: Definition of principles we have made minor, would not be subject to oversight under ‘‘Waters of the United States’’ 668 nonsubstantive changes to final rule this section. We agree and deleted provides for locating structures of this § 816.47. Otherwise, we are finalizing paragraph (b)(8) from the final rule. type in these areas. The commenter 816.47 as proposed. We received no implied that the Clean Water Act permit comments on this section. Section 816.46: What requirements will be adequate for governing the apply to siltation structures? Section 816.49: What requirements placement of sediment ponds and apply to impoundments? Final Paragraph (a): Scope alleged that this section supersedes the Paragraph (a) sets out the scope of the Clean Water Act authority, violates As discussed in the preamble to the section. It provides specific exceptions section 702 of SMCRA,669 and must be proposed rule, we proposed to modify to the requirements which follow. As removed from the final rule. We our regulations at § 816.49, which set proposed, paragraph (a) used the term disagree. Section 507(b)(10) of out the requirements for permanent and ‘‘disturbed areas’’ to describe the areas SMCRA 670 requires operators to provide temporary impoundments.671 After subject to these exceptions. However, the name and location of the surface evaluating the comments we received, the term ‘‘disturbed areas’’ did not stream or tributary into which surface we are adopting the section as proposed, appear anywhere else in the section. drainage will be discharged in the with the following exceptions: First, we Rather, as proposed, this section permit application. Since are basing the requirements in described the activities subject to the authorizations, certifications, and paragraph (a) on Mine Safety and Health requirements of this section as activities permits required under the Clean Water Administration requirements and that will ‘‘disturb the land surface.’’ For Act may be obtained during or after guidance instead of upon a Natural this reason in paragraph (a) of the final completion of the SMCRA application Resource Conservation Service rule, we have substituted the phrase review process, it is necessary in many publication; second, we are moving the ‘‘disturb the land surface’’ for cases that locations of these structures design certification requirement set out ‘‘disturbed areas.’’ be identified before the Clean Water Act in proposed paragraph (a) to the authority has made a determination. permitting section; third, we have added Final Paragraph (c): Sediment Ponds The requirements of this paragraph a table to § 816.49(a)(3) to define the Paragraph (c)(1) includes a ensure that, subject to subsequent minimum freeboard hydrograph criteria requirement that permittees locate approval by the Clean Water Act for the design precipitation event and sediment ponds as near as possible to authority, impacts to the stream will be further clarified what adequate the disturbed area and outside perennial minimized. Alternatively, the applicant freeboard is; fourth, in response to or intermittent stream channels unless can postpone submittal of the permit comments from another federal agency the regulatory authority approves of the application until siltation structure we have modified the requirements for location in accordance with §§ 780.28 foundation investigations at paragraph and 816.57(h). In all cases, operators 668 80 FR 37054 (June 29, 2015). (a)(4) and clarified that this includes must construct sediment ponds as 669 30 U.S.C. 1292. (‘‘Nothing in this chapter shall abutments; and finally we have added closely as possible to the downstream be construed as superseding, amending, modifying, the word ‘‘features’’ to paragraph (b)(9). limit of the disturbed areas they serve. or repealing the . . . Federal Water Pollution These changes and relevant comments Control Act . . ., the State laws enacted pursuant These requirements minimize, to the thereto, or other Federal laws relating to are discussed below. extent possible, adverse impacts to preservation of water quality.’’). streams, particularly intermittent and 670 30 U.S.C. 1257. 671 80 FR 44436, 44551–52 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00214 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93279

Final Paragraph (a): Requirements That proposed paragraph (a)(3) to the that it has minimized excess spoil and Apply to Both Permanent and permitting regulations at requires that the final configuration of a Temporary Impoundments § 780.25(c)(1)(i). The design certification fill must be suitable for the approved We proposed to update the reference requirements at § 780.25(c)(1)(i) are postmining land use. It is also to the Natural Resource Conservation substantively unchanged from proposed consistent with the practice followed by Service publication 210–VI–Technical paragraph (a)(3). the vast majority of the regulatory At the suggestion of another federal Reference 60.672 One commenter noted authorities located in mining areas that agency and to improve clarity we have that these requirements are duplicative generate excess spoil. Paragraph (b)(9) modified final paragraph (a)(4) about of those required by the Mine Safety and requires a demonstration that the foundations. We have added Health Administration. The commenter impoundment has been designed with ‘‘abutments’’ to the requirement to claimed that duplicative requirements dimensions, features, and other ensure precautions are taken to fully could create conflict between the characteristics that will enhance fish prevent failure of impounding structure operator and regulating authorities and and wildlife habitat to the extent that foundations. Additionally, we have result in increased permitting delays doing so is not inconsistent with the added the phrase ‘‘and control of and costs. We agree that there should be intended use. This demonstration adds underseepage’’ at final paragraph a clear demarcation of requirements no additional burden because it is (a)(4)(ii) to ensure that seepage failures consistent with the requirements at between the regulatory authority and of the dam foundation are prevented. other federal agencies. In connection § 780.16 to prepare, using the best This would include the potential for technology currently available, a fish with our review of this comment, we piping failures. have also determined that the Federal and wildlife protection and Emergency Management Administration Final Paragraph (b): Requirements That enhancement plan and § 816.97(a) to has applicable guidance that pertains Apply Only to Permanent minimize disturbances and adverse specifically to these kinds of Impoundments impacts on fish, wildlife, and related environmental values to the extent impoundments and that the Mine Safety With the exceptions of changes to possible and achieve enhancement of Health Administration references that paragraphs (b)(2) and (b)(9), we have those resources where practicable. Thus, Federal Emergency Management finalized paragraph (b) as proposed. Administration guidance in the Upon further evaluation and in these three provisions merely clarify administration of its program. For that consultation with the U. S. existing requirements. Any burden on reason, we have deleted references to Environmental Protection Agency, we the operator would result from its 210–VI–Technical Reference 60, added modified paragraph (b)(2) by replacing failure to comply with previous references to the Mine Safety and Health ‘‘meet’’ with the phrase ‘‘not cause or regulations and not the effect of Administration regulations at 30 CFR contribute to a violation of’’ and finalized paragraphs (b)(7), (b)(8), and 77.216, and added language to clarify referenced the applicable section of the (b)(9). Significantly, the commenter has that an impoundment that includes a Clean Water Act to better conform with provided no information to support its dam with a significant or high hazard language used in section 303(c) of the claim that these criteria would delay potential classification under § 780.25(a) Clean Water Act.673 Similar changes reclamation or make reclamation or of the final rule must comply with the have been made throughout the final contemporaneous reclamation difficult requirements set forth by the Mine rule. or impossible. Nor has the commenter Safety and Health Administration. One commenter maintained that the provided any information to These changes will clearly distinguish requirements of proposed paragraphs substantiate the claim that these criteria between the requirements imposed by (b)(7), (b)(8), and (b)(9) could delay will create a need, which did not exist the SMCRA regulatory authority and reclamation or could make prior to the rule, to haul large amounts those that are imposed by other federal contemporaneous reclamation difficult of material. Finally, backfilling and agencies and ensure that the permittee because of an alleged additional need to reclamation plans as required in follows all of the most recent and haul large amounts of material at the § 780.12(d) must contain contour maps, appropriate technical guidance. end of mining. The commenter is models, and cross-sections that show in Although, as discussed above, we have mistaken because these provisions detail the final configuration of the deleted references to Technical impose requirements that are merely permit area by proper planning and Reference 60, we have added a table to clarifications and outgrowths of existing spoil handling. If the operator has § 816.49(a)(3) that defines the minimum requirements. Paragraph (b)(7) requires complied with this provision and spillway freeboard criteria for the design a demonstration that approval of the properly planned its operation it should precipitation event based on Table 2–5 impoundment will not result in be able to minimize any costs associated of Technical Reference 60 as those retention of spoil piles or ridges that are with haulage. requirements are considered the inconsistent with the definition of We have clarified paragraph (b)(9) by minimum standard for such structures. approximate original contour. This adding the word ‘‘features’’ so that this We also require that impoundment demonstration adds no additional provision now reads ‘‘[t]he embankments must have adequate burden because § 816.102 already impoundment has been designed with freeboard to resist overtopping by waves requires disturbed areas to be backfilled dimensions, features, and other in conjunction with a typical increase in and graded to the approximate original characteristics that will enhance fish water elevation at the downwind edge contour. Paragraph (b)(8) requires a and wildlife habitat to the extent that of any body of water, by sudden demonstration that approval of the doing so is not inconsistent with the influxes of surface runoff from impoundment will not result in the intended use.’’ This addition helps precipitation events, or by any creation of an excess spoil fill elsewhere assure that the demonstration includes combination of these effects. within the permit area. This provision is design features that promote habitat To increase clarity, we have moved an outgrowth of existing § 816.71 which enhancement. As noted in the the design certification requirements of requires the permittee to demonstrate discussion of the definition of approximate original contour at § 701.5, 672 Id. 673 33 U.S.C. 1313(c). we fully appreciate the value of

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00215 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93280 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

impoundment features but not at the 519 of SMCRA 674 and §§ 800.40 of all stream types and many comments loss of restoring the postmining surface through 800.44, which establish bond opposing the extension to ephemeral configuration to its approximate original release procedures and criteria to ensure streams of the protections we give to contour. compliance with the reclamation intermittent and perennial streams. Some commenters claimed that requirements of SMCRA and the After review of the comments, we have § 816.49 inappropriately focuses upon applicable regulatory program. decided not to extend the same Appalachia. We disagree. The Second, we have replaced an protections to ephemeral streams that construction of permanent ambiguous reference to ‘‘bond release’’ we do to intermittent and perennial impoundments postmining is conducted in the previous and proposed rules with streams. However, consistent with Part outside Appalachia as frequently, if not a reference to final bond release under VII of the preamble to the proposed more frequently, than inside § 800.42(d). This revision is appropriate rule,675 in response to scientific Appalachia. For example, in the Illinois because § 816.55 requires the removal of literature about the benefits of Basin where the water table lies near the temporary structures and the renovation headwaters to essential biological and surface, permanent impoundments are of permanent structures to meet ecological functions, we are extending commonly used as a fish and wildlife program requirements for retention. some additional protections (postmining enhancement. Thus, § 816.49 will apply Clearly, these requirements could not surface drainage pattern and stream- to all mining regions where permanent apply to applications for Phase I and II channel configuration and final pit impoundments are permitted. bond release. establishment of streamside vegetative Several commenters expressed Third, we removed language that corridors) to ephemeral streams that our concern that these regulations may would have allowed retention of previous rules do not afford. affect local water rights. We disagree treatment facilities after final bond Another commenter raised a concern and do not anticipate any infringement release. This language is inconsistent that requiring uniform restoration of of local water rights as a result of this with final § 800.18, which requires biological components in ephemeral rule. The demonstrations required in reclamation of the sites upon which streams is not feasible and asked for a this section require an analysis of the treatment facilities are located and areas clarification that this requirement does impact that the impoundment would used in support of those facilities. In not apply to ephemeral streams. This particular, § 800.18(i)(3) specifies that have on post mining land use. The commenter is correct that we did not the financial assurance will serve as the regulatory authority, which is in the propose to require the operator to bond for reclamation of the portion of best position to make this decision, will restore the ecological function of the permit area required for postmining have the final authority to determine if ephemeral streams. For additional water treatment facilities and access to any impact to local water rights may information as to the protections those facilities. occur. Furthermore, aside from vague extended to ephemeral streams, you suggestions that revisions to § 816.49 Section 816.56: What additional may review the preamble to the proposed rule at Part VII, B, ‘‘What may affect water rights, commenters performance standards apply to mining specific rule changes are we proposing have provided no information, activities conducted in or through an 676 ephemeral stream? with respect to ephemeral streams?’’ evidence, or analysis to indicate how One commenter suggested that a valid revisions to § 816.49 would affect water Several commenters suggested that we reason for not providing the same rights. should make clear which requirements protection to ephemeral streams is the Section 816.55: What must I do with in the rule apply to which types of increased cost associated with sedimentation ponds, diversions, streams. Specifically, these commenters protection and reconstruction to the impoundments, and treatment facilities noted proposed § 816.57, which would same standard as intermittent and after I no longer need them? have applied to activities in, through, or perennial streams. As previously stated, adjacent to perennial or intermittent we are not affording the same In the previous and proposed rules, streams, also contained cross-references protections to ephemeral streams as this regulation appeared in § 816.56, but to proposed § 780.28(b)(3), which would intermittent or perennial streams. Also we are redesignating it as § 816.55 in the have addressed the establishment of we note that changes in the definitions final rule to accommodate the addition riparian corridors for ephemeral of intermittent and ephemeral streams of a new § 816.56, which concerns streams. In response, we have added in the final rule, specifically the ephemeral streams, adjacent to § 816.57, new § 816.56 that sets out the removal of the one square mile which concerns perennial and requirements specific to ephemeral watershed criteria, will result in many intermittent streams. One commenter streams, including the requirement to streams, particularly those in the asked us to draft more plain language establish a 100-foot streamside western region of the country, that were revisions to our regulations in sections vegetative corridor that complies with previously characterized as intermittent where we are making few or no the standards in § 816.57(d)(1)(iv) under the current definition being substantive revisions. We have through (4) if activities are conducted reclassified as ephemeral under the final restructured and revised § 816.55 to through an ephemeral stream. The rule. In circumstances where this occurs implement that recommendation. comparable requirements for the and where a stream is no longer defined In addition, we have made three streamside vegetative corridors for as intermittent, the level of protection substantive revisions to the proposed intermittent and perennial streams are for that stream may be reduced, which rule. First, we removed language that still found in § 816.57. could also reduce the cost necessary to could have been interpreted to allow In the proposed rule, we invited protect or reconstruct it. abandonment of the permit as an comment on whether we should extend One commenter suggested that, if we alternative to seeking bond release. to ephemeral streams all the protections did not extend the same protections to Abandonment of a permanent program we give to perennial and intermittent ephemeral streams that we do to permit before final bond release would streams. We received a variety of intermittent and perennial streams, we be inconsistent with both the comments advocating equal protection termination of jurisdiction provisions of 675 80 FR 44436, 44451–44453 (Jul. 27, 2015). § 700.11(d)(2) and the intent of section 674 30 U.S.C. 1269. 676 80 FR 44436, 44452–44453 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00216 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93281

should alternatively consider providing (a)(1) to reflect plain language Before addressing some of these more more stringent protections for principles, and added final specific changes, we address general ephemeral streams that are located subparagraph (a)(2) to clarify that comments about the section below. within watersheds that are relatively compliance with the Clean Water Act Many commenters requested that we undisturbed, diverse, part of functioning under final subparagraph (a)(1) requires clarify what standards apply to systems, or watersheds that support compliance with applicable water perennial and intermittent streams and federally-protected aquatic species. quality standards. what standards apply to ephemeral Although we understand the • We have split the requirements of streams. As discussed in the preamble commenter’s concerns, the protections proposed paragraph (b) among multiple to new § 816.56, we have removed the we have added for ephemeral streams paragraphs. Proposed paragraph (b)(1) standards for ephemeral streams that will provide better protection than has been deleted in the final rule were found in proposed § 816.57. As under the previous rule. In particular, because it simply stated that you must finalized, therefore, § 816.57 describes scientific literature supports the comply with specific provisions of your only additional performance standards protections that we are extending to permit, which goes without saying. that apply to activities in, through, or ephemeral streams, particularly the Proposed paragraph (b)(2) is split among within 100 feet of a perennial or reestablishment of the streamside final paragraphs (d), (e), (f), and (g). intermittent stream. Furthermore, we vegetative corridor: These streams, Specifically, proposed paragraph clarified in the title of § 816.57 that along with their naturally occurring (b)(2)(i) is final paragraph (e), part of applies only to mining activities vegetation provide significant exports to proposed paragraph (b)(2)(ii) is final conducted in, through, or within 100 the downstream habitat and higher paragraph (d), part of proposed feet of a perennial or intermittent order biomass that includes leaf litter paragraph (b)(2)(ii)(A) is final paragraph stream. We also changed the title of breakdown and biomass production.677 (f), and proposed paragraphs (b)(2)(ii)(B) final paragraph (b) to reflect the To the extent the commenter is through (D) now form parts of final rule substance of the prohibition in § 816.57: concerned with aquatic species paragraphs (f) through (g). This section is a prohibition on mining protected under the Endangered Species • Because we have split paragraph (b) in or within 100 feet of a perennial or Act, this rule does not supersede the over multiple paragraphs, we have intermittent stream. Commenters can requirements of the Endangered Species moved the prohibition on placement of now easily determine the standards Act. Compliance with that law may sedimentation control structures from applicable to perennial and intermittent result in additional protections if a proposed paragraph (c) to final streams and the standards applicable to threatened or endangered species is paragraph (h). ephemeral streams by reviewing the present. • We have changed the terms respective sections on each. Some commenters requested that we ‘‘sedimentation control’’ and Section 816.57: What additional clarify which stream types require the ‘‘sedimentation pond’’ to ‘‘siltation performance standards apply to mining establishment of the 100-foot streamside structure’’ throughout final paragraph activities conducted in or through a vegetative corridor. This corridor is (h). perennial or intermittent stream or on • required for all stream types: Section the surface of land within 100 feet of a We have added final paragraph 816.56(c) contains the requirements for (h)(1)(ii) in response to comment. perennial or intermittent stream? • ephemeral streams, and § 816.57(d) We have modified final paragraph contains the requirements for We have changed the structure of (h)(2), which was proposed paragraph § 816.57 in the final rule. In order to intermittent and perennial streams. (c)(2), in multiple places: First, we have Likewise, a commenter specifically make it easier to track the responses to added the requirement that the asked for clarification as to which various comments received on proposed exceptions from the prohibitions only streams require restoration of ecological § 816.57, we are providing the following apply if approved in the permit; second, function. The restoration of ecological summary of the changes to this final we have added coal mine waste refuse function is only required for perennial section: piles and coal mine waste impounding • and intermittent streams; therefore, it is We have clarified the title of structures in steep slope areas as an discussed only in §§ 816.57 § 816.57 to specify that this section exception; and third, we have added a (performance standards) and 780.28 applies only to mining activities demonstration requirement and a (permit application requirements). conducted in, through, or on the surface requirement that the regulatory Similarly, the requirements to restore or of land within 100 feet of a perennial or authority make a written finding. improve the form, hydrologic function intermittent stream. • We have added the term ‘‘coal mine • (including flow regime), streamside We have moved the general waste refuse pile’’ to final paragraph vegetation, and ecological function of prohibition on mining within 100 feet of (h)(3)(ii), which was proposed the stream after you have mined it apply a perennial or intermittent stream from paragraph (c)(3)(ii). to affected stream segments of perennial proposed paragraph (a)(1) to final • We have changed the term ‘‘coal and intermittent streams. paragraph (b), changed the title of final mine waste disposal structure’’ to ‘‘coal One commenter claimed that this paragraph (b) to reflect the substance of mine waste impounding structure’’ in rulemaking does not reduce the the prohibition, and changed the term final paragraph (h)(3)(ii), which was destruction of streams or improve ‘‘bankfull’’ to ‘‘ordinary high water proposed paragraph (c)(3)(ii). stream restoration, as allegedly mark’’ in the same paragraph. • We have changed the phrase ‘‘coal demonstrated by the most recent • We have moved the ‘‘Clean Water mine waste disposal structure’’ in assessment of the impacts from Act requirements’’ from proposed proposed paragraph (c)(3)(iii) to ‘‘coal underground coal mining and mine paragraph (a)(2) to final paragraph (a)(1), mine waste structure’’ in final paragraph subsidence on streams in Pennsylvania. clarified the title of final paragraph (h)(3)(iii). We appreciate this comment as it • We have added final paragraph highlights the fact that there is a real 677 Ralphael D. Mazor, et al., Integrating (h)(3)(iii)(A). need to better protect streams because, intermittent streams into watershed assessments: • Applicability of an index of biotic integrity. We corrected cross-references as under the previous regulations, streams Freshwater Science, 33.2. (2014) pgs. 459–474. needed. are being impacted. This rulemaking

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00217 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93282 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

will address situations such as those vegetative corridors, and paragraphs (c) for ensuring successful reclamation to cited by the commenter in a number of and (d) of this section require that these ensure stream health were general in ways. First, final § 780.28(e)(1) requires features actually be constructed nature and lacking in effectiveness, as that an operator make one or more of consistent with these plans. Specific evidenced by our own oversight thirteen demonstrations to better ensure drainage patterns and vegetative reports.680 The final rule clarifies and that the hydrologic function and corridors will vary and this rule allows closely mirrors the requirements of ecological function of stream segments for appropriate tailoring to individual sections 515(b)(10), (16), and (24) of can be restored if the operator plans to circumstances while reducing adverse SMCRA which require, among other mine though or permanently divert a impacts to streams. things, the use of the best technology stream, construct an excess spoil fill, Several commenters questioned the currently available to minimize coal mine waste refuse pile, or requirement of this section to achieve disturbances and adverse impacts to fish impounding structure, or conduct any ecological function. As support, these and wildlife and other environmental other activity within or near a perennial commenters often cited judicial values. or intermittent stream. Second, decisions, such as Ohio Valley A commenter claimed that the paragraphs (e), (f), and (g) requires an Environmental Coalition (OVEC) v. proposed rule failed to address damage operator to demonstrate that physical Hurst,678 which they characterize as to the hydrologic balance from form, hydrologic function, and disallowing agencies’ reliance on backfilling with coal combustion ecological function of perennial or ‘‘unproven and speculative mitigation residues and that this constitutes a intermittent streams have been measures.’’ In OVEC, an agency issued glaring omission. The commenter adequately restored after mining and a finding of no significant impact under recommended that we establish a new reclamation are complete. These the National Environmental Policy Act part in the final rule text that addresses complementary requirements— in reliance, in part, on a finding that the placement of coal combustion increased planning to protect streams mitigation measures would reduce the residues in surface and underground before they are affected and stronger environmental impacts to an mines. We did not include specific rule reclamation standards for those that are insignificant level. The court language addressing the placement of affected—strike a balance that allows determined that this agency’s coal combustion residues because that mining while ensuring that restoration consideration of mitigation measures as activity is already indirectly covered in of affected streams can be, and is being part of its cumulative impact analysis this rulemaking in sections such as achieved. was inadequate because the agency did § 780.12(d)(2)(iii), handling of acid- not support its claims that those A commenter argued that this section forming and toxic-forming materials to mitigation measures would actually prevent the formation of acid or toxic takes an unnecessary one-size-fits-all mitigate the impacts as claimed by the approach and that biological drainage and to protect groundwater agency, or be successful. To the extent and surface water; § 780.20, components of perennial, intermittent, that this district court decision is even and ephemeral streams differ determination of the probable instructive to this rulemaking, we have hydrologic consequences; and § 780.21, significantly. For similar reasons, adequately supported our approach and another commenter claimed that preparation and review of the included measures to ensure its success. cumulative hydrologic impact requiring the same protections for all Notably, the final rule at paragraph (b) streams, including ephemeral ones, is assessment. However, in order to contains a general prohibition against comprehensively address this issue, not practical. As noted above, we agree mining through intermittent and with these commenters only to the additional direct regulation of the perennial streams unless the permittee placement of coal combustion residues extent that the protections for makes certain demonstrations prior to ephemeral streams should be different on active and abandoned coal mines is mining related to its ability to restore better addressed in a separate than for perennial and intermittent those streams. If the permittee cannot streams and have clarified the different rulemaking. Such a rulemaking is one of make those required demonstrations, our priorities.681 requirements by adding § 816.56, which the general prohibition on mining specifies the requirements for through those streams applies. This Final Paragraph (a): Compliance With ephemeral streams, and by revising this approach is supported by ample Federal, State, and Tribal Water Quality section to clarify that it applies to scientific literature that concludes that Laws and Regulations perennial and intermittent streams. the most appropriate approach for These differing requirements are one Proposed paragraph (a)(2), now final protecting streams is a general paragraph (a)(1), requires permittees to example of why this rule does not prohibition of mining through perennial approach the regulation of streams in a conduct surface mining activities in or or intermittent streams but that affecting waters subject to the one-size-fits-all manner. More exceptions can be made when streams importantly, however, this section and jurisdiction of the Clean Water Act only can be restored to a certain level of if they first obtain all necessary § 780.28 do not create one-size-fits-all stream health.679 The same general requirements for perennial or authorizations, certifications, and approach existed in our previous rules, permits under the Clean Water Act. In intermittent streams; instead, they but the measures in the previous rules incorporate site specific requirements the final rule, we have split proposed paragraph (a)(2) into two parts. and demonstrations when mining is 678 604 F. Supp. 2d 860 (S.D. W. Va. 2009). Paragraph (a)(1) in the final rule is planned in or near an intermittent or 679 Colleen E. Bronner, et al., An Assessment of perennial stream, allowing for U.S. Stream Compensatory Mitigation Policy: Necessary Changes to Protect Ecosystem Functions 680 Assessment of the WVDEP Trend Station 071, differences in topography, geology, and and Services. Journal of the American Water West Fork of Pond Fork Watershed, Boone County, climate in the various regions of the Resources Association (JAWRA) 49(2):449- 462. West Virginia, September 21, 2011. country. For instance, paragraphs (c) DOI: 10.1111/jawr.12034. (2013) See also Palmer, 681 80 FR 77709, 77803 (Dec. 15, 2015). (Unified and (d) of § 780.28 require that plans for Margaret A., and Kelly L. Hondula, Restoration as Agenda of Federal Regulatory and Deregulatory mitigation: Analysis of stream mitigation for coal Actions); see also 72 FR 12026 (Mar. 14, 2007). individual mines be designed to restore mining impacts in southern Appalachia. (Advance Notice of Proposed Rulemaking, the surface drainage patterns and stream Environmental science & technology 48.18 Placement of Coal Combustion Byproducts in channel configurations and establish pgs.,10552–10560 (2014). Active and Abandoned Coal Mines).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00218 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93283

substantively the same as proposed paragraph (b) with the two exceptions requirements. One commenter claimed paragraph (a)(2), and specifies that all discussed below. First, in final that this requirement will increase necessary authorizations, certifications, paragraph (b), we have changed the title engineering review and other and permits required under the Clean of proposed paragraph (a)(1) ‘‘General administrative tasks and costs. Also, the Water Act must be obtained prior to prohibition’’ to ‘‘Prohibition on mining commenter alleged that previous conducting surface mining activities in in or within 100 feet of a perennial or regulations only required streams with or affecting an intermittent or perennial intermittent stream.’’ This change drainage areas in excess of one square stream. For clarity, we added paragraph reflects the now clear separation mile of drainage to be certified. While (a)(2) which requires that surface between § 816.56, which applies only to we recognize that additional effort will mining activities must comply with all ephemeral streams, and § 816.57. be required to obtain this certification, applicable or state and tribal laws and Second, as discussed in the preamble we have retained the requirement in the regulations concerning surface water discussion of ‘‘ordinary high water final rule as it ensures that the plan and groundwater. The use of the word mark’’ in § 701.5 of the final rule, one required under § 780.28(c) will be fully applicable is important because these commenter suggested that the term implemented. Proper implementation is standards are not applicable to segments ‘‘ordinary high water mark’’ is more integral to the successful ecological of streams that are buried, such as under commonly accepted and more easily development of the stream. an excess spoil fill, in accordance with determined than the term ‘‘bankfull.’’ Certifications are routinely required for the Clean Water Act and SMCRA. We agree and have revised references to other hydrology structures, such as Additionally, in response to comments ‘‘bankfull’’ throughout the final rule. We siltation structures, sedimentation from other federal agencies we now require that the 100-foot distance ponds, and impoundments; thus, this accounted for situations when states be measured horizontally on a line additional requirement would not and tribes achieve primacy and perpendicular to the stream, beginning require significantly more effort than implement laws or regulations related to at the ordinary high water mark. was required under the previous surface water or groundwater. regulations. We did, however, revise Together, final paragraphs (a)(1) and Final Paragraph (c): Postmining Surface (a)(2) make clear that the operator must Drainage Pattern and Stream-Channel this section slightly to clarify that the obtain all necessary authorizations, Configuration certification requirement may be limited certifications, and permits under the In section 780.28 of the proposed rule, to the location, dimension, and physical Clean Water Act and conduct the we set out requirements for an characteristics of the stream diversion or mining activities in a way that meets the application that proposes to mine channel. approved water quality standards through or divert a perennial, Final Paragraph (d): Establishment of 683 required under the Clean Water Act. intermittent, or ephemeral stream. In Streamside Vegetative Corridors Paragraph (a)(2) is an outgrowth of the order to make the applicable requirement under final paragraph (a)(1) requirements clearer for the regulated Final paragraph (d) now contains the that was proposed in paragraph (a)(2). public, we have added final performance standards that we listed in Thus, the addition of final paragraph § 816.57(c)(1), which is similar to proposed § 780.28(b)(3). We made this (a)(2) in the final rule is a clarification proposed § 780.28(c). Final change to reduce redundancy within of the proposed requirement.682 § 816.57(c)(1) clarifies that if you mine §§ 780.27(c) and 780.28(d) and provide through or permanently divert a Final Paragraph (b): Prohibition on one location for streamside vegetative perennial or intermittent stream, you corridor requirements. As discussed Mining in or Within 100 Feet of a must construct a postmining surface Perennial and Intermittent Stream above, requirements for streamside drainage pattern and stream-channel vegetative corridors for ephemeral As discussed above, in the final rule, configurations that are consistent with streams are now included in new we moved the general prohibition on the surface drainage pattern and stream § 816.56(c). To the extent that the mining in or within 100 feet of a channel configurations approved in the comments we received about perennial and intermittent stream from permit in accordance with section performance standards are duplicative proposed paragraph (a)(1) to final 780.28. The language of paragraph (c)(1) of comments received about the paragraph (b), changed the title of final has, for clarity, been modified in that it permitting section, such as comments paragraph (b) to reflect the substance of specifically points out that construction inquiring why we refer to streamside the prohibition, and changed the term of both the postmining surface drainage vegetative corridors instead of the ‘‘bankfull’’ to ‘‘ordinary high water pattern and stream-channel proposed term ‘‘riparian corridors’’ or mark’’ in the same paragraph. Proposed configuration must meet the the use of ‘‘ordinary high water mark’’ paragraph (a)(1), now final paragraph requirements approved in the permit instead of ‘‘bankfull elevation,’’ please (b), prohibits surface mining activities under § 780.28(c). The proposed refer to the prior preamble discussions in or through a perennial or intermittent language referenced some of the related to § 701.5 and part 780. The stream or that would disturb the surface permitting requirements in § 780.28(c) performance standards at final of land within 100 feet of a perennial or but not all. This revision clarifies that § 816.57(d) are substantially identical to intermittent stream unless the the construction or reconstruction of the the proposed language provided in regulatory authority authorizes that stream channel must meet all standards § 780.28(b)(3) with the exceptions activity in the permit. We did not set forth in the permit. described below. receive any comments on proposed Proposed paragraph (b)(3), now final paragraph (a)(1), and, we are adopting paragraph (c)(2), requires the As discussed in the preamble to the section as proposed as final certification by a professional, qualified §§ 780.27(c) and 780.28(d) of this final engineer that a stream channel diversion rule, several commenters alleged that 682 See 80 FR 44436, 44656 (Jul. 27, 2015). (‘‘You or reconstructed stream channel has we selected the 100-foot width for the may conduct surface mining activities in waters of been constructed in accordance with the vegetative corridor arbitrarily. In the the United States only if you first obtain all permit and that it meets all engineering preamble to the proposed rule at necessary authorizations, certifications, and permits §§ 780.16 and 816.57(a), we explained under the Clean Water Act, 33 U.S.C. 1251 et seq.’’) (emphasis added). 683 80 FR 44436, 44610. the ecological and historical support for

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00219 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93284 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

selecting this buffer zone width.684 As requirement is provided for clarity to for perennial and intermittent streams, we explained, this width is based upon ensure those species planted within the adequately addresses the commenter’s scientific literature substantiating that a streamside vegetative corridor are those concerns. Specifically, final vegetative filter strip width of 100 feet approved in the permit and are §§ 816.56(d)(4) and 816.57(d)(4) provide generally will reduce sediment, thus consistent with final § 780.12 (g)(1)(v). that the requirement for a streamside eliminating many harmful pollutants. Many commenters argued that the vegetative corridor does not apply to Additionally, studies of effective buffer proposed rule was too rigid and did not prime farmland historically used for widths for wildlife generally provide sufficient flexibility within the cropland or to situations in which recommend wider buffers than those streamside corridor vegetation establishment of a streamside vegetative required for sediment control and requirements to allow for differences in corridor comprised of native species protection of water quality. The streams, soil, and climate conditions would be incompatible with an minimum 100-foot buffer width we across the country. In response, final approved postmining land use that is adopt in the final rule lies within the paragraph (d)(2)(iii) clarifies that the implemented before final bond release. lower end of the range of recommended streamside vegetative corridors must Therefore, a landowner desiring to grow minimum widths for wildlife habitat include appropriate native hydrophytic crops on land within 100 feet of a and flood mitigation, in the middle of vegetation, vegetation typical of stream may do so, provided the the range for sediment and nitrogen floodplains, or hydrophilic vegetation regulatory authority approves a removal, and exceeds the range characteristic of riparian areas and cropland postmining land use and the recommended for water temperature wetlands to the extent that the corridor landowner actually implements that moderation, bank stabilization, and contains suitable habitat for those land use before final bond release. aquatic food web maintenance. species and the stream and the This commenter also suggested we Therefore, this width is an appropriate geomorphology of the area are capable consider adopting the protocol outlined compromise that accomplishes various of supporting vegetation of that nature. in the U.S. Army Corps of Engineers environmental and stability objectives Similarly, paragraph (d)(3) waives the permitting process for compensatory and is consistent with section 102(f) of requirement of planting hydrophytic or mitigation. We do not agree that SMCRA, which requires a balance hydrophilic species within those adoption of the suggested protocol is between environmental protection and portions of streamside corridors where appropriate. The final rule implements the need for coal production.685 Similar the stream, soils, or climate are section 515(b)(24) of SMCRA,687 while to proposed § 780.28(b)(3)(iii), final incapable of providing the moisture or the protocol suggested by the paragraph (d)(4) recognizes that other growing conditions needed to commenter governs implementation of streamside vegetative corridors are not support and sustain hydrophytic or section 404 of the Clean Water Act.688 required under certain circumstances hydrophilic species. However, the Section 515(b)(24) of SMCRA requires such as when the land is prime applicant must plant the corridor with that, ‘‘to the extent possible using the farmland historically used for cropland. appropriate native species that are best technology currently available,’’ Proposed § 780.28(b)(3)(ii) would consistent with the baseline information surface coal mining and reclamation have required that the streamside concerning natural streamside operations must ‘‘minimize vegetative corridor use only native vegetation, unless otherwise directed by disturbances and adverse impacts of the species. A few commenters opined that an agency responsible for implementing operation on fish, wildlife, and related revegetation within the streamside section 404 of the Clean Water Act.686 environmental values, and achieve vegetative corridor using only native These additions will allow operators enhancement of such resources where species may contradict what is and regulatory authorities more practicable.’’ We find that adoption of a recommended or requested by a Clean flexibility to revegetate the streamside protocol intended for implementation of Water Act authority or the National corridors to account for regional the Clean Water Act is not an Resources Conservation Service. We differences in hydrology, ecology, and appropriate means of implementing this agree with these commenters in part. climate while also imposing a uniform provision of SMCRA, which does not Final § 816.57(d)(2)(i) requires the use of national standard. mention compensatory mitigation. appropriate native species adapted to A commenter also requested that we Moreover, our final rule is consistent the area unless an agency responsible revise proposed § 780.28(b)(3), which with the Presidential Memorandum on for implementation of section 404 of the required establishment of a riparian Mitigating Impacts on Natural Resources Clean Water Act, 33 U.S.C. 1344, corridor at least 100 feet wide on each from Development and Encouraging requires the use of a non-native species. side of a perennial, intermittent, or Related Private Investment,689 which The National Resources Conservation ephemeral stream if mining activities mandates that the Department of the Service only issues recommendations. were conducted in or within 100 feet of Interior, among other agencies, promote So, to the extent that a Clean Water Act the stream, to better reflect premining avoidance of impacts to ‘‘land, water, authority requires the use of a land uses or landowner preferences. The wildlife, and other ecological resources recommendation to use non-native commenter specifically referred to (natural resources) caused by land and species made by the National Resources premining situations where crops are water-disturbing activities, and to Conservation Service, it is allowable planted within 100 feet on either side of ensure that any remaining harmful under our regulations. This change an ephemeral, intermittent, or perennial effects are effectively addressed, satisfies our objectives for improving stream or where the landowner would consistent with existing mission and reclamation while ensuring there is no like for crops to be planted within 100 legal authorities.’’ 690 conflict with the Clean Water Act. feet of a stream after reclamation. We Final paragraph (d)(2)(ii) ensures that find that no change is necessary in 687 30 U.S.C. 1265(b)(24). the species planted during reclamation response to this comment. Proposed 688 33 U.S.C. 1344. are consistent with the revegetation plan § 780.28(b)(3)(iii)(A) and (B), which we 689 Presidential Memorandum issued November are adopting as final § 816.56(c)(4) for 3, 2015. See also Secretarial Order No. 3330, approved in the permit. This new Improving Mitigation Policies and Practices of the ephemeral streams and § 816.57(d)(4) Department of the Interior (October 31, 2013); 600 684 80 FR 44436, 44494 and 44552 (Jul. 27, 2015). DM 6. 685 30 U.S.C. 1202(f). 686 33 U.S.C. 1344. 690 Id. at Section 1.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00220 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93285

As proposed, § 780.28(b)(3)(iii) listed Similarly, several commenters opined the restoration of stream form and three situations in which the streamside that for bond release, the regulatory function. Although the proposed rule vegetative corridor requirements would authority must consider whether the included provisions to measure the not apply. With the exception of form, hydrologic function, and biological condition of a restored or proposed § 780.28(b)(3)(iii), this ecological function of intermittent or reconstructed stream, it did not paragraph has now been redesignated as perennial stream segments have been specifically discuss the hydrologic final § 816.56(c)(4) for ephemeral appropriately restored or reconstructed function of the stream except to note at streams and final § 816.57(d)(4) for because all three (form, hydrologic proposed paragraph (b)(ii)(B) that the perennial streams. We did not adopt function, and ecological function) are postmining function ‘‘must be adequate proposed § 780.28(b)(3)(iii)(C), which integral to the demonstration of to support the uses of that stream expressly stated that the streamside successful reclamation. segment that existed before mining and vegetative corridor requirement does not As described at length in the it must not preclude attainment of the apply to stream segments buried preamble to the proposed rule, designated uses of that stream segment beneath an excess spoil fill, a coal mine restoration of form alone has not been under section 101(a) or 303(c) of the waste refuse pile, or a coal mine waste shown to provide assurance that Clean Water Act before mining.’’ Several impounding structure. We did not adopt function will return, especially when commenters suggested that we should this provision because it is self-evident considering the extreme nature of the expand the provisions relating to stream that requirements specifically impacts of mining within the stream function to include more hydrological applicable to reconstructed streams, buffer.691 Thus, we are not removing the information, such as the material such as the streamside vegetative requirement for restoration of stream composition of stream beds, flow corridor revegetation requirements, do function. We do, however, agree with patterns, water chemistry, and stream not apply to segments of streams that no the commenters that restoration of water temperature because ultimately, longer exist because they have been stream function would be more clearly restoring ecological function is buried as allowed by our regulations. expressed by including separate dependent on restoring these The U.S. Fish and Wildlife Service requirements for hydrologic function hydrological parameters. We agree that recommended that we add additional and ecological function. Therefore, we we should expand our treatment of criteria to proposed paragraph (b)(2)(ii), have divided proposed paragraph (b)(2) stream function in order to properly now final paragraph (d), to explicitly into three paragraphs in which we account for conditions prior to mining state that riparian zone plantings must include requirements to restore form in and, as discussed, have divided stream meet applicable performance standards paragraph (e) and divide the function into hydrologic and ecological for stocking and survival. We did not requirement to restore stream function. We have added paragraph (f) adopt this recommendation because hydrologic function into paragraph (f) to require the restoration of hydrologic § 816.116 applies to riparian zone and paragraph (g) about the restoration function. ‘‘Hydrologic function’’ is plantings and contains sufficient of ecological function. Notably, the discussed in more detail in the standards for determining vegetation restoration of form is a prerequisite for preamble to the definition of that term success. Thus, inclusion of revegetation the restoration of hydrologic function in § 701.5. In sum, hydrologic function success standards in § 816.57 would be and the restoration of hydrologic includes total flow volume, seasonal redundant. function is a prerequisite for restoration variations in streamflow and base flow, As mentioned above, proposed of ecological function. and provision of the water needed to paragraph (b)(2) has been split between maintain floodplains and wetlands Final Paragraph (e): Restoration of Form multiple paragraphs of the final rule. associated with the stream. Taken Proposed paragraph (b)(2)(i) is final ‘‘Form’’ for purposes of this section is together, the restoration or paragraph (e), part of proposed defined in § 701.5. We received no reconstruction of the prerequisite paragraph (b)(2)(ii)(A) has moved to comments on proposed paragraph ‘‘form’’ in paragraph (e) and ‘‘hydrologic final paragraph (f), and proposed (b)(2)(i), now final paragraph (e), function’’ in paragraph (f), means that paragraphs (b)(2)(ii)(B) through (D) now relating specifically to the restoration of the stream will have similar physical form parts of final rule paragraphs (f) form. As mentioned above, several characteristics, pattern, profile, and through (g). As discussed below, we commenters suggested that both form dimensions as the stream in which changed the structure and substance of and ecological function need to be mining activities were conducted in, proposed paragraph (b)(2) to respond to included as part of the evaluation of a through, or near. As explained in the comments. stream before bond release is accepted. preamble discussion of the definition of Proposed paragraph (b)(2) set forth the We agree and have modified the Phase ‘‘form’’ this will include but not be proposed requirements to restore the I bond release criteria at § 800.42(b)(1) limited to, a similar flood-prone area to form and function of stream segments. to require the restoration of form of bankfull width ratio (entrenchment), Many commenters expressed their perennial and intermittent stream channel width to depth ratio, channel views of the relationship between the segments. We are reiterating this slope, sinuosity, bankfull depth, form and function of a stream. On one requirement in final paragraph (e), dominant in-stream substrate, and hand, many commenters claimed that which also serves to incorporate a capacity for riffles and pools, as the restoration of the stream form should be similar provision that was proposed as stream in which mining activities were considered adequate to achievement of § 816.57(b)(2)(iii)(C), which required conducted.692 These additions clarify ecological function. On the other hand, restoration of form for Phase I bond that hydrologic function includes, but is a commenter opined that a stream’s release. not limited to the restoration of the flow form is generally not a proxy for its regime, except as otherwise approved by function. Another commenter Final Paragraph (f): Restoration of the regulatory authority under recommended that the final rule require Hydrologic Function § 780.28(e)(2). They provide sufficient an operator to restore hydrologic As discussed above, proposed function in addition to ecological paragraph (b)(ii) would have required 692 See also, Dave Rosgen, Applied River function to ensure protection for this Morphology, Wildland Hydrology, Pagosa Springs, essential element of stream health. 691 80 FR 44436, 44438–44453 (Jul. 27, 2015). Colorado (1996).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00221 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93286 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

guidance on what is required to restore ecological function has been restored ecological function has been restored; or reconstruct the form and hydrologic are discussed in the preamble to yet, according to the commenters, function of a stream. § 780.28. experts in the discipline of stream Final paragraph (f) also specifies that Numerous commenters objected to restoration, including some cited by us you must demonstrate restoration of the any requirement to demonstrate the in the preamble to the proposed rule, hydrologic function of a stream segment restoration of the ecological function of have not been able to agree on the that has been affected by mining perennial and intermittent streams. metrics of ecological function or activities before you qualify for Phase II Some commenters suggested that a whether such function can be restored. bond release under § 800.42(c)(1). This separate requirement for the restoration They also cite to a purported lack of language was added in response to of ecologic function is not necessary agreement on how the baseline and the comments that requested we consider because some western mines are already restored ecological function should be what types of information should be restoring the hydrologic form using measured. Some commenters also cited considered for bond release relative to geomorphic reclamation methods and this requirement as an example of the restoration of ‘‘stream function.’’ As some midwestern mines are restoring flawed science and reasoning that they discussed in the preamble discussion of stream channels based on the U.S. Army allege permeates the proposed rule paragraph (e), Phase I bond release will Corps of Engineers permit requirements. because the proposed definition of not be permitted until reconstruction of These commenters allege that these ecological function relies on a draft U.S. the form of the stream is demonstrated practices should be sufficient to restore Army Corps of Engineers document and certified. We have also revised the stream to its form and function that, in addition to not being final after § 800.42(c)(1)(ii), which establishes the under SMCRA. We recognize that the five years, is geared toward Appalachia. criteria for bond release to include the techniques voluntarily employed in Although the specifics on establishing requirement for the restoration of some western mines in the application successful ecological function vary hydrologic function as a condition of of geomorphic reclamation principles throughout the scientific community, it Phase II bond release in order to better and some midwestern mines that is generally accepted that ecological guarantee that reestablishment of employ natural stream channel design function is an essential ingredient in hydrologic function is achieved. We are for reconstructed or permanently stream health.693 However, the therefore requiring in § 780.28(g) that diverted streams are the type of best definition of ‘‘ecological function’’ the regulatory authority develop criteria technology currently available that this neither mandates specific metrics nor is for determining restoration of ecological rule seeks to implement across all the definition specific to Appalachia. function on a permit-specific basis. mining regions. We also understand that For example, U.S. Environmental These criteria will help determine the frequency of mines using Protection Agency publication whether restoration is possible and geomorphic reclamation is increasing discussing streams in the Southwest whether the permit allowing mining and has been shown to result in more United States advocates for the through streams should move forward. stable streams and facilitates restoration of ecological function by These standards must also be in place reestablishment of ecological function. focusing on the importance of to determine if ecological function has Even so, we do not have reliable ‘‘maintain[ing] water quality, overall been restored during reclamation as evidence that reconstruction of the watershed function or health, and required by final rule §§ 780.28(g) and physical form or hydrologic function is provisioning of the essential and 816.57(g). common across all mining regions or biological requirements of clean that such reconstruction will necessarily 694 Final Paragraph (g): Restoration of water. Prescribing protocols, as we result in successful restoration of Ecological Function have done here, is the first step in ecological function. Thus, these achieving ecological function.695 Proposed paragraph (b)(2) required voluntary techniques are not sufficient Moreover, adopting the suggestion of the restoration of stream form and to negate the need for a separate the scientific community to retain the function. Specifically it required the requirement to demonstrate the requirements to restore the ecological restoration of ecological function. In restoration of ecological function. This function of these streams will ensure addition, proposed paragraph (b)(2)(ii) requirement will also ensure that SMCRA is implemented more fully referred to specific provisions in the consistency across the nation and nationwide. For instance, section permitting requirements of proposed provide guidance to the regulatory 515(b)(10) of SMCRA requires § 780.28(e)(1), related to the restoration authorities on implementing measures permittees to minimize disturbances to of biological condition. As explained to improve stream health. the prevailing hydrologic balance at the above, in the final rule, we have split Other commenters asserted that the mine-site and in associated offsite areas the requirements pertaining to the requirement is too subjective. As an and to the quality and quantity of water restoration of stream form and function example, a commenter expressed in surface and ground water systems into three paragraphs—paragraphs (e) concern with the allegedly subjective both during and after surface coal through (g). As revised, final paragraph interpretation of the language in (g) requires the restoration of the proposed paragraph (b)(2)(ii)(B) that 693 Margaret A. Palmer, Standards for ecologically ecological function of a perennial or biological condition of a stream must be successful river restoration. Journal of Applied intermittent stream before final bond restored to a level ‘‘adequate to support Ecology. Vol. 42, pgs. 208–217 (2005). 694 L. Levick, et al.,The Ecological and release may occur. As revised, the uses that existed prior to mining.’’ Hydrological Significance of Ephemeral and paragraph (g) no longer contains a They also opined that there is not Intermittent Streams in the Arid and Semi-arid specific reference to biological sufficient consensus within the American Southwest. U.S. Environmental condition or criteria for measuring Protection Agency and USDA/ARS Southwest scientific community that ecological Watershed Research Center, EPA/600/R–08/134, ecological function. Instead, it cross- function after mining-related ARS/233046, pg.116 (2008). references § 780.28(g), which contains disturbances can be fully restored. 695 Id. and Colleen E. Bronner, et al., An these criteria. Consequently, all Several commenters criticized the Assessment of U.S. Stream Compensatory comments received on proposed proposed rule because it would require Mitigation Policy: Necessary Changes to Protect Ecosystem Functions and Services. Journal of the §§ 816.57(b)(2)(ii)(B) through (D) that that the regulatory authority establish American Water Resources Association (JAWRA) are related to determining whether standards for determining when 49(2):449–462. DOI: 10.1111/jawr.12034 (2013).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00222 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93287

mining operations.696 Section 515(b)(10) of SMCRA. Thus, we are including the and reclamation process to assure the of SMCRA,697 therefore, requires requirement for restoration of ecological protection of the quality of surface and adequate protection of the quality and function in the final rule. ground water systems.’’ Further, section quantity of water both on the permit and Final paragraph (g)—paragraph 509(a) SMCRA 701 requires a off the permit, which includes ensuring (b)(2)(iii)(D) of the proposal—also performance bond to be sufficient to the water quality and quantity is specifies that if a permittee cannot assure the completion of the approved sufficient to maintain the health of restore the ecological function of a reclamation plan. These SMCRA organisms within the waters of the reconstructed perennial or intermittent provisions make clear that functional stream. Likewise, section 515(b)(24) of stream as established by the regulatory stream restoration is to be part of the SMCRA 698 requires that the best authority under § 780.28(g)(1), that performance bond. We do, however, technology currently available should permittee cannot achieve final bond point out that in § 780.28(g)(3)(ii)(A) the be used to minimize disturbances and release. Our regulations create a phased reconstructed stream segment does not adverse impacts to fish and wildlife. approach to stream restoration. Phase I have to have precisely the same Despite these statutory requirements, it bond release requires the demonstration biological condition or biota as the is beyond dispute that mining activities of successful restoration of form; Phase stream segment did before mining in under the previous regulations have II bond release requires the order to demonstrate the restoration of been directly linked to degradation of demonstration of successful restoration ecological function. So the regulatory stream biological health.699 of hydrologic function as provided in authority, which is in the best position Although we understand commenters’ paragraphs (e) and (f); and final bond to make that determination, can decide concerns about consensus within the release requires the restoration of what constitutes an acceptable level of scientific community, the final rule ecological function. This approach ecological function to satisfy the adopts the best science currently makes the permittee accountable for the regulatory requirements. Although we available to provide a concrete establishment of an acceptable level of are retaining the requirement for bond definition of ecological function. ecological function. release, as discussed further in the Ecological function is defined in § 701.5 Many commenters opposed the preamble to Part 800, we agree with the as ‘‘the species richness, diversity, and prohibition on final bond release until commenters that raised concerns about extent of plants, insects, amphibians, after the permittee has demonstrated the potential for harm to the permitting reptiles, fish, birds, and mammals and restoration of ecological function. They process if we retained a proposed other organisms for which the stream claim that it is impossible to determine requirement to permit and bond streams provides habitat, food, water or shelter. the cost of restoring the ecological separately. Therefore, we have removed The biological condition of a stream is function and, because of this, it will be the requirements in § 800.14(b)(2) that one way to describe its ecological impossible to capture the cost of such required a separate bond calculation for function.’’ The final rule also provides restoration when calculating the bond, the restoration of stream’s ecological guidance on measuring the ecological as required by proposed § 800.14(b)(2). function. function. As the preamble to the Similarly, some commenters suggested One commenter expressed concern definition of ecological function that, because ecological function cannot that the requirement to return ecological explains, for purposes of measuring the be controlled, it is impossible to function to intermittent and perennial restoration of ecological function of accurately predict when, if ever, such streams would be misconstrued as also perennial and intermittent streams that function will be restored, which would applying to ephemeral streams. The are mined in or through, a regulatory mean that bonds could be held for an commenter further asserted that, authority may use the baseline data on indefinite amount of time. These because ephemeral streams only flow in the biology of the restored or commenters allege that the possibility of response to precipitation events, the reconstructed stream to determine the an indefinite bond would create a need to assess the biological component restoration success. The final rule also substantial new risk for sureties and of ephemeral streams is unnecessary. reasonably imposes several make it difficult for operators to obtain We agree and, as discussed above, have requirements, including the requirement a bond. clarified that section applies only to for a streamside vegetative corridor and We agree that the restoration of intermittent and perennial streams. baseline sampling to measure ecological ecological function may take a long Requirements for ephemeral streams, function of streams prior to mining so time, particularly if this restoration which do not include the restoration of that restoration of ecological function requires establishment of substantial ecological function, are now located in following mining can be measured. The canopy cover over the stream, but we § 816.56. final rule also imposes several measures maintain that SMCRA does require A commenter noted that we did not to ensure the use of the best technology bonding until that function is restored. propose to require that a stream segment currently available to minimize or There is a direct connection between have precisely the same biological prevent impacts. These provisions of the SMCRA and inclusion of ecological condition as it had before mining and final rule provide clear guidance that function restoration in the performance suggested that we should revise the rule ensures that a restored or reconstructed bond. The reclamation plan in to explicitly identify the acceptable stream is not simply physically restored § 780.12(h) requires compliance with level of variations in the parameters that in form and hydrologic function but also the stream protection, stream are connected with the ecological it is restored to its position in the reconstruction, and functional function of stream segments. We have ecosystem. The provisions address the restoration requirements of §§ 780.28 determined that the regulatory authority direct link between mining and the and 816.57 of this chapter for perennial is in the best position to make that degradation of a stream’s biological and intermittent streams. SMCRA determination because they have the 700 health and implement the requirements section 508(a)(13)(A) requires that proper expertise with respect to the the reclamation plan have ‘‘sufficient local ecological regimes and would, 696 30 U.S.C 1265(b)(10). details of the description of the along with the Clean Water Act 697 Id. measures to be taken during the mining authority, be the best judge as to the 698 30 U.S.C. 1265(b)(24). 699 80 FR 44436, 44439–44441 (Jul 27, 2015). 700 30 U.S.C. 1258(a)(13). 701 30 U.S.C. 1259(a).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00223 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93288 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

level of change that is permissible structures in a perennial or intermittent intended because it will result in more, within the confines of SMCRA. For stream or the use of perennial or not less, land disturbance since the further information on how restoration intermittent streams as waste treatment diversions will have to be constructed of ecological function is measured in the systems to convey surface runoff from on both sides of a stream. Similarly, final rule, please refer to the preamble the disturbed area to a siltation structure another commenter noted that this discussion of § 780.28(g)(3)(ii). except as provided in paragraphs proposed prohibition would Many commenters opined that (h)(1)(ii) and (h)(2). significantly alter the typical drainage streams are difficult to replace and that In the proposed rule, the terms control practices currently in use, and there is little scientific evidence that a ‘‘sedimentation pond’’ and ‘‘siltation the effect will be to require construction stream can be successfully restored to structure’’ were used interchangeably of many additional drainage control its previous ecological function. As throughout § 816.57. To provide diversions and additional sediment discussed in the preamble to the consistency and clarity, we have either basins with associated costs. proposed rule,702 we acknowledge that changed the term ‘‘sedimentation pond’’ Commenters further noted that allowing restoration of ecological function may to ‘‘siltation structure’’ or added the construction of a sedimentation pond or be difficult, but as documented by term ‘‘siltation structure’’ to the siltation structure in an intermittent or successes in Illinois, it is possible.703 applicable regulation. This makes it perennial stream is an efficient and cost We recognize the important role streams clear that the forms of siltation effective way to control the flow of play in the ecosystem and the structures can vary; a sedimentation surface water within the mined area. difficulties in restoring that role after pond being only one type of siltation While retention of a siltation structure mining activities have occurred in or structure. These changes in terminology outside of an intermittent or perennial through a stream; therefore, we are clarify that the rule covers all types of stream may be beneficial after mining, it adopting what could be termed an siltation structures and not just is also true that a siltation structure avoidance and minimization policy. sedimentation ponds. situated in an intermittent or perennial This approach is the best solution A commenter expressed concern that stream segment would not protect the currently available to eliminate the general prohibition upon placement postmining stream habitat. Permanent potential impacts to stream resources of siltation structures or the use of retention of a pond in an intermittent or while satisfying the purposes of SMCRA streams to convey surface runoff perennial stream requires significant found at sections 102(c) and (d).704 extends to ephemeral streams. long-term maintenance, which cannot Additionally, studies demonstrate that Similarly, other commenters explained be assured after final bond release and ‘‘incentives for avoidance and that ephemeral streams are prevalent in termination of jurisdiction. For this and minimization’’ are the key to success many areas of western mining other reasons, such as potential liability and ‘‘federal policy [being] revised to operations, and the only way to in the event of failure and impacts to minimize the loss of stream functions effectively provide sediment control for stream health, the U.S. Army Corps of and services’’ 705 is paramount. those operations is to construct siltation Engineers has historically shown Therefore, the regulations at § 780.28(g) structures downstream of the mine in reluctance to grant such retentions. and § 816.57(g) implement those various areas along minor native and As long as it is not retained after recommendations made by scientists reclaimed ephemeral draws. As reclamation, however, we agree that and other experts examining streams. previously discussed in this section, we construction of a sedimentation pond in Scientists consider the first step in have removed the provisions of a stream during mining should be restoring ecological function is to proposed § 816.57 that applied to allowed provided that the fish and mandate that ecological function be ephemeral streams and moved them to wildlife measures and enhancements restored, yet provide flexibility in how new § 816.56. As a result, § 816.57 required in § 780.16 are met. Therefore, this will be achieved. Recommendations applies only to perennial and we have added paragraph (h)(1)(ii) to made by Bonner, et al. are consistent intermittent streams. Notably, within allow siltation structures to be with our final regulations; in particular, § 816.56, there is no comparable constructed in perennial and ensuring that surface mining operations provision to paragraph (h) of this intermittent streams immediately are conducted only where reclamation section, which makes clear that we are downstream of a stream segment that to the degree required by the Act is not prohibiting the use of an ephemeral has been mined through. feasible.706 stream segment inside a mined area to A commenter objected to the be used to convey surface water. requirement in proposed paragraph Final Paragraph (h): Prohibition on Final paragraph (h)(1) contains the (c)(1), now paragraph (h)(1), which Placement of Siltation Structures in general prohibition, subject to prohibits the retention of siltation Perennial or Intermittent Streams exceptions, on the placement of siltation structures postmining. The commenter Proposed § 816.57(c), now § 816.57(h), structures in perennial and intermittent claimed that this requirement is not prohibits construction of siltation streams. Many commenters disagreed reasonable as sediment control with this general prohibition. Some structures, especially on ephemeral 702 80 FR 44436, 44440 (Jul. 27, 2015). commenters proffered that, in the arid streams, are commonly left in place after 703 J.W. Nawrot, and W.G. O’Leary, Illinois stream west, wildlife use and opportunities for mining and reclamation has been restoration—opportunities or habitat enhancement: Policy and principles, and practices. Proceedings of fish habitat can be created or increased completed because they can be the 2009 Geomorphic Reclamation and Natural if a sedimentation pond in perennial or beneficial to wildlife habitat and water Stream Design at Cao Mines: A Technical intermittent streams is converted to a for livestock. As previously discussed, Interactive Forum 28–30. Bristol, Virginia, pgs. pond after mining and reclamation. Yet the prohibition on the construction of 183–195 (2009). 704 30 U.S.C. 1202(c) and (d). another commenter asserted that siltation structures within streams 705 Colleen E. Bronner, et al., An Assessment of retaining siltation structures postmining applies only to perennial and U.S. Stream Compensatory Mitigation Policy: is beneficial for habitat enhancement. intermittent streams; thus, the situation Necessary Changes to Protect Ecosystem Functions Additional commenters indicated that a described by the commenter would not and Services. Journal of the American Water Resources Association (JAWRA) 49(2):449–462. prohibition on sediment control ponds be prohibited by this section because it DOI: 10.1111/jawr.12034. (2013). in perennial or intermittent streams may concerns a siltation structure in an 706 30 U.S.C. 1202(f). have the opposite effect of what we ephemeral stream. Moreover, we agree

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00224 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93289

that siltation structures in intermittent Section 816.59: How must I maximize Section 816.67: Use of Explosives: or perennial streams can be beneficial coal recovery? Control of Adverse Effects and, as discussed above, have added We are finalizing § 816.59 as Final Paragraph (b): Airblast.—(1) paragraph (h)(1)(ii) to allow the proposed. We received no comments on Limits construction of a siltation structure in a this section. The published version of the stream channel immediately Section 816.61: Use of Explosives: proposed rule inadvertently omitted the downstream of a stream segment that is General Requirements second column in the table in section mined through. However, we are Final Paragraph (d): Blast Design 816.67(b)(1)(i), which meant that the retaining the prohibition of retention of table included no airblast limits. Final siltation structures postmining in the We are adopting this section as paragraph (b)(1)(i) restores that column final rule. proposed except to correct an and the airblast limits to the table. As proposed in paragraph (c)(2), now inadvertent error in paragraph (d)(2). One regulatory authority noted the paragraph (h)(2), the prohibition on Previous paragraph (d)(2) stated that the error and recommended restoration of placement of siltation structures in blast design ‘‘may be presented as part the airblast limits. However, the intermittent or perennial streams does of a permit application or at a time, commenter also stated that the table and before the blast, approved by the not apply to siltation structures related the airblast limits are no longer needed regulatory authority.’’ The proposed to excess spoil fills, coal mine waste because of standardization of rule interpreted this language as refuse piles, or coal mine waste microphones. The commenter meaning that the regulatory authority recommended that we consider impounding structures in steep-slope must approve the blast design either as areas. We have replaced the term, ‘‘coal replacing the table with a 133 dB (linear part of the decision on the initial permit peak) maximum limit on airblast levels. mine waste disposal facilities’’ in application or at a later time before the paragraph (h)(2) with, ‘‘coal mine waste Linear peak is the maximum level of air blast. However, the preamble to the pressure fluctuation measured in refuse piles’’ and, ‘‘coal mine waste previous rule explains that we never decibels without frequency weighting to impounding structures’’ to clarify that intended to require regulatory approval ensure the measured parameter is this exemption applies to siltation of blast designs: indicative of the level experienced by structures associated with both of these The intent of the design is not primarily for the human auditory system. Frequency types of facilities. After the completion public or regulatory review; rather it serves weighting is not applied to airblast of construction and revegetation of the as a tool for the operator, blaster, and the measurements because much of the fill or coal mine waste refuse pile or blasting crew to understand the blast layout sound from an airblast is at inaudible impounding structure. However, new and implementation and for the regulatory authority to be advised of the blast frequencies and would therefore be paragraph (h)(3)(iii)(A) requires that all parameters and timing, to initiate monitoring, excluded. accumulated sediment be removed from if appropriate, and to ensure compliance We commend the commenter for the siltation structure and any stream with performance standards.707 suggesting this update, but we cannot segment between the siltation structure Therefore, we are not adopting adopt it as part of this final rule because and the toe of the fill or coal mine waste paragraph (d)(2) in the form in which it our proposed rule did not give sufficient disposal structure. Once the siltation was proposed. Instead, final paragraph notice that we might revise the airblast structure has served its treatment (d)(2) returns to the intent of the limits and the suggested revision is not purpose, the permittee must remove it previous (1983) rule, but without the a logical outgrowth of other rule as required in paragraph (h)(3)(iii)(B) ambiguity of the previous rule. Among changes, a correction of an error, or a and restore the stream as required in other things, the last sentence of final nonsubstantive editorial change. paragraph (h)(3)(iii)(C) so as to achieve paragraph (d)(2) reads: ‘‘Regulatory Section 816.68: Use of Explosives: the higher functionality of the natural authority approval of the blast design is Records of Blasting Operations stream condition and eliminate the risks not required, but, as provided in We are finalizing § 816.68 as inherent in an unmaintained structure. paragraph (d)(5) of this section, the regulatory authority may require proposed. We received no comments on Final Paragraph (i): Programmatic changes to the design.’’ this section. Alternative Section 816.62: Use of Explosives: Section 816.71: How must I dispose of We have added § 816.57(i) to the final Preblasting Survey excess spoil? rule to clarify that paragraphs (b) We are finalizing § 816.62 as As discussed in the preamble to the through (h) of this section will not apply proposed. We received no comments on proposed rule, we proposed to modify 708 if a regulatory authority amends its this section. our regulations at § 816.71. After program to expressly prohibit all surface evaluating the comments that we mining activities, including the Section 816.64: Use of Explosives: received, we are adopting the section as construction of stream-channel Blasting Schedule proposed, with the following diversions, that would result in more We are finalizing § 816.64 as modifications. than a de minimis disturbance of land proposed. We received no comments on A commenter noted that this section in or within 100 feet of a perennial or this section. does not distinguish between excess spoil and fill placed in, near, or outside intermittent stream. We have added this Section 816.66: Use of Explosives: a stream. No real distinction exists in alternative in response to comments Blasting Signs, Warnings, and Access this context. Fill placed in, near, or advocating a complete ban on activities Control outside of a stream, is considered excess within 100 feet of any stream as the We are finalizing § 816.66 as spoil. The standards in this section, most stream protective course of action. proposed. We received no comments on however, ensure that the design and Thus, we are granting the regulatory this section. placement of any excess spoil fill authority the option to enact such a prohibition. 707 48 FR 9792 (Mar. 8, 1983). 708 80 FR 44436, 44555–61 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00225 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93290 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

satisfies the minimum performance the backfilled area, rather than 515(b)(24) of SMCRA,709 which requires standards, generally related to stability, generation of additional excess spoil. operators to minimize adverse impacts which are necessary to ensure the safety Final paragraph (h)(3)(ii), discussed in on fish, wildlife, and related of an excess spoil fill wherever it is more detail below, allows the final environmental values. located. The permitting requirements in elevation of the backfilled area to Additionally, in paragraph (a)(5), in §§ 780.27 and 780.28, which minimize exceed the premining elevation, so, in response to comments, we have deleted adverse impacts to streams, apply to all cases where maintenance of wetlands the language ‘‘damage from’’ as it excess spoil fills that encroach upon any would be an issue it is more likely that pertains to flooding. As explained more part of a stream. displaced spoil will be placed in the fully above in connection with final A commenter alleged that the process backfilled area rather than an excess § 780.21(b)(9)(ii), we have made this of restoring streams to their original spoil fill. change in order to clarify that we are not elevations and enhancing the flood This commenter also alleged that the requiring an investigation of premining plain widths in their approximate proposed rule would increase the need flood events in order to assess the original locations will increase the for additional spoil storage and increase potential for damage from flooding. This generation of additional spoil and mining costs to the point where many revision focuses the assessment upon elevations of spoil in the graded areas will not be practical to mine. We peak flows that could result in flooding reclamation areas. Although specifically decline to make any changes as a result and not damage from flooding. referencing proposed rule § 816.71, of this comment. The required volume Further, in paragraph (a)(6), we have about disposal of excess spoil, the of spoil storage is dependent on the replaced the terms ‘‘existing uses’’ with commenter appears to be referring to volume and nature of overburden that the term ‘‘premining uses’’ and removed § 780.28(c) about the permitting the operator must remove to access the the term ‘‘reasonably foreseeable uses’’ requirements for restoring the coal, and will not be affected by the when referencing foreseeable uses of approximate premining surface drainage rule. Section 780.35(b) requires that the groundwater. We replaced the term pattern and stream-channel operator demonstrate how you will ‘‘existing use’’ with ‘‘premining use’’ configuration of intermittent and minimize generation of excess spoil. because the U.S. Environmental perennial streams and § 816.57, which Therefore, the rule should decrease the Protection Agency expressed concern includes associated performance need to develop additional spoil storage about our use of the term ‘‘existing use’’ standards. Nevertheless, we are sites. throughout the proposed rule and Finally, this commenter alleged that addressing the comment in this section suggested that, because the term many of these backfilling requirements because of the impacts on spoil ‘‘existing use’’ is also used in a Clean are not feasible or necessary in regions handling. We do agree that Water Act context, it might cause outside of Appalachia. It is true that implementing the requirements of confusion to use it in this context. In §§ 780.28 and 816.57 may result in a excess spoil is generated predominantly response we have deleted the term from different handling plan than currently in Appalachia; however, it is generated, the final rule. We have deleted the term used because the reestablishment of and should be minimized, in other ‘‘reasonably foreseeable uses’’ from the stream channels will require additional regions as well. The requirements of this final rule except in connection with the blending of spoil material into the section do not apply at sites where protection of reasonably foreseeable backfilled areas than is currently excess spoil is not generated. surface lands uses from the adverse performed. We disagree with the Another commenter noted that dry impacts of subsidence. The term comment that excess spoil will be valleys are common in the arid and appears only in SMCRA in section created when the stream drainage semi-arid West and suggested that 516(b)(1), which requires that operators patterns are restored because the excess spoil placement should be volume of spoil generated is dependent allowed in those areas where there are of underground mines adopt subsidence on the mining scenario (depth to the no streams to impact. In response, we control measures to, among other things, coal seam, bulking factors, blasting note that none of the requirements in maintain the value and reasonably patterns, etc.). However, we do agree this section would preclude the foreseeable use of surface lands. It is not that additional spoil handling will be placement of material in dry valleys as appropriate for a more general context. required to restore the drainage pattern, suggested by the commenter, as long as Further, many commenters objected to including additional grading and the other requirements of the section are the usage of ‘‘reasonably foreseeable’’ blending necessary to create stream satisfied. Specifically, paragraphs (a)(3), asserting that it is too subjective, drainage patterns that are consistent (h)(1), and (h)(3) require that the final difficult to assess, and open to varying with form. Nevertheless, we are not configuration be compatible with the interpretations, which could result in modifying the final rule in response to postmining land use and be capable of inconsistent application. this comment our clarification here and supporting appropriate vegetation, that We have removed the reference to explanations in final rule §§ 780.28 and the topography blend with the ‘‘surface water’’ from paragraph (a)(6) 816.57 are sufficient. surrounding terrain, and that the because we address surface water in The same commenter alleged that drainage pattern be similar to the final paragraph (a)(7). In the proposed restoring wetlands at grade could result premining pattern. rule we used the terms ‘‘exceedance’’ in the generation of additional spoil and ‘‘violation’’ interchangeably. We because spoil has to be relocated to keep Final Paragraph (a): General determined that we should select one wetland elevations low in the reclaimed Requirements term for consistency. Therefore, in area. We decline to make any changes We modified paragraph (a)(1) by paragraph (a)(7), we have replaced the as a result of this comment. It appears clarifying that the permittee must word ‘‘exceedance’’ with the word that this issue would, for the most part, minimize the adverse effects of a coal ‘‘violation’’ to be consistent with the affect areas with shallow groundwater, mine waste disposal facility on terminology used throughout the final such as occurs in parts of the groundwater and aquatic life, in rule. In addition, we added the phrase midcontinent region. It also appears that addition to surface water. The specific ‘‘adopted under the authority of section restoring wetlands at grade would tend reference to ‘‘aquatic life’’ will more to result in more spoil being placed in thoroughly implement section 709 30 U.S.C. 1265(b)(24).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00226 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93291

303(c) of the Clean Water Act,710 for permittee’s obligations pursuant to final acknowledged in the preamble to the surface water downstream of the toe of §§ 780.16 and 780.28. proposed rule, freezing of water in rocks the fill’’ to paragraph (a)(7). We added and soil does not occur in all climates Final Paragraph (f): Control of Water this language to paragraph (a)(7), to and is limited to a relatively shallow Within the Footprint of the Fill clarify, that water emanating from the depth below the surface.712 Therefore, toe of the fill should not violate any Final paragraph (f) prescribes the freezing and thawing are not processes applicable water-quality standards requirements for constructing that would affect most underdrains after adopted under the authority of section underdrains and temporary diversions they are buried. However, during 303(c) of the Clean Water Act. to control erosion, prevent water construction, the underdrains are infiltration, and ensure stability of the exposed to the surface and, in some Final Paragraph (d): Requirements for excess spoil disposal fill. Paragraph cases, multiple freeze-and-thaw cycles Handling Organic Matter and Soil (f)(3)(iii) sets forth the criteria that must occur before they are covered Materials be used to select rock that is resistant to sufficiently to prevent freezing. This section requires that a permittee weathering for underdrain construction. Moreover, an underdrain is only as good remove all vegetation, other organic Our rule requires use of the Los Angeles as its weakest point, and failure of an matter, and soil materials from the Abrasion test and the Sulfate Soundness underdrain could have catastrophic disposal area prior to placement of the test for choosing rock. One commenter consequences, which could occur years excess spoil. A commenter requested asserted that these two tests are more after bond release. Finally, we note that, elaborate and expensive testing methods that the final rule include a provision excess spoil fills are primarily found in than the Slake Durability Index Test, allowing the regulatory authority to the states of West Virginia, Kentucky, which is commonly used under the waive the requirement of this paragraph and Virginia, with a few fills existing regulations. This commenter for the removal of topsoil and organic constructed in Alaska. All of these alleged that the proposed tests do not matter in areas of steep slopes. mining regions experience freeze and provide any added value. We are not According to the commenter, this thaw cycles. The use of the Sulfate modifying the final rule as a result of requirement could present safety Soundness test is both appropriate and this comment. Our previous regulations concerns in steep slope areas. We are necessary in these regions. Therefore, allowed for end dumped durable rock not including such an exemption in the we decline to make any changes as a fills and the Slake Durability Index test rule because, in our experience, steep result of this comment. was appropriate because it can be used slope areas used for disposal of excess to determine the percentage of material Final Paragraph (g): Placement of Excess spoil are usually no greater in slope in an excess spoil fill that is ‘‘durable.’’ Spoil than the location where coal extraction The final rule at § 816.71(g)(2), however, occurs. If the permittee is able to safely prohibits durable rock fills and instead Final paragraph (g) specifies the remove this soil and organic material at 816.71(f)(1) requires that the requirements for proper transport and from the mined area, it should also be permittee ‘‘design and construct placement of excess spoil in a able to do so from the disposal area. underdrains and temporary diversions controlled manner in horizontal lifts not Furthermore, if left in place, this matter as necessary to control erosion, prevent exceeding four feet in thickness. The may decompose and form a weak zone water infiltration into the fill, and spoil must be concurrently compacted that is likely to fail in steep areas. ensure stability.’’ Because of this to ensure mass stability and to prevent Final Paragraph (e): Surface Runoff change, we are requiring the use of tests mass movement during and after Control Requirements that are more appropriate for evaluating construction. Finally, the paragraph the materials that will be used in excess prescribes grading techniques to ensure In the preamble to proposed spoil fill underdrains. The two tests that surface and subsurface drainage is § 816.71(e)(1), we stated that we do not specified in the final rule are designed compatible with the natural consider surface runoff channels to assess the resilience of rock used to surroundings. A commenter requested constructed under § 816.71(e)(1) to be construct underdrains. The primary that we revise this paragraph to allow stream channel diversions or restored mechanisms that cause breakdown of the regulatory authority to allow an streams and thus, these structures material used in excess spoil fill excess spoil fill that involves the would not qualify as fish and wildlife underdrains are abrasion due to truck placement of material in lifts greater enhancement measures.711 One traffic and freezing and thawing, both of than four feet when supported by an commenter alleged that this statement is which can occur before the underdrain alternative engineering design. Another contrary to the U.S. Army Corps of is adequately covered. The tests we are commenter indicated that the proposed Engineers’ past position that some requiring specifically address these provision is unworkable and unrealistic diversions may qualify as mitigation. mechanisms. The Los Angeles Abrasion in mining operations where the spoil We decline to make any changes as a test is used to evaluate rock material can include single boulders that exceed result of this comment. Because these breakdown resulting from abrasion, and four feet in diameter. The commenter structures are designed channels to the Sulfate Soundness test is used to further stated that it has successfully convey only surface water flow, within evaluate the resistance of rock materials created excess spoil fills without this the channel, with no flood-prone area or due to breakdown resulting from provision for decades and should be specifically planned vegetative corridor, freezing and thawing. allowed to continue to do so. As we they do not qualify as a type of Another commenter recommended explained in the preamble for section enhancement that would fully and that only the Los Angeles Abrasion test 816.71(g) of the proposed rule, the permanently offset the long-term should be required in circumstances purpose of this provision is to minimize adverse effects of the placement of where the underdrain rock is placed in voids in the fill and thus, reduce excess spoil or coal mine waste interior or deep portions of an excess impacts to fish and wildlife facilities, which is required to meet the spoil fill and would not be subjected to resources.713 The commenter appears to freeze and thaw cycles, as well as in 710 33 U.S.C. 1313(c). warm climates where freezing 712 80 FR 44436, 44559 (Jul. 27, 2015). 711 80 FR 44436, 44556–44557 (Jul. 27, 2015). conditions are unlikely to occur. As we 713 80 FR 44436, 44687 (Jul. 27, 2015)

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00227 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93292 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

equate ‘‘successful’’ excess spoil fill encouraging the geomorphic evidence is captured by a mine construction strictly based on stability. reclamation technique, where representative. These photographs must Although lifts greater than four feet may appropriate, because of its demonstrated clearly verify that the requirement for be stable, allowing this exemption success. This technique has resulted in the four-foot lift thickness has been would be contrary to the purpose of this less maintenance than traditional achieved and document the elevation rulemaking, which is to better protect reclamation techniques. It has enabled and location of the photograph. An streams. Therefore, we decline to make the creation of a diverse and natural- example of visual evidence of the any changes as a result of this comment. looking wildlife habitat and similar location can be a global positioning Paragraph (g)(2), as mentioned above, natural drainage patterns. However, we system-tagged photograph with latitude, contains a prohibition on so-called recognize that the geomorphic longitude, and elevation clearly ‘‘durable rock fills.’’ It forbids any reclamation technique is not displayed as well as a map with these excess spoil transport and placement appropriate for all sites. We encourage photographs embedded and tagged. techniques that do not involve the the use of geomorphic reclamation Also, this photographic documentation, controlled placement of spoil, including techniques ‘‘when practicable’’ and along with the weekly examination end-dumping, wing-dumping, cast- grant discretion to the regulatory reports, must be included in the blasting, gravity placement, or casting authority to determine the extent to quarterly report required under section spoil downslope. A commenter which this requirement can be (k)(3) of this section. expressed concern that under the rule, implemented on a site specific basis. the use of trucks for spoil transport Therefore, we decline to make any A regulatory authority stated that the would not be considered to be changes as a result of this comment. daily inspections required by controlled placement under section § 816.71(k)(2)(i) would result in more 515(b)(22)(A) of SMCRA because the Final Paragraph (k): Inspections and report reviews and place additional spoil would be dumped from the back Examinations resource burdens on regulatory of a truck, which the commenter This paragraph prescribes the authorities. While it is true that the interpreted as ‘‘end dumping’’.714 The inspection and documentation required quarterly reports required under final commenter stated that a strict during construction of the excess spoil paragraph (k)(3) will be more extensive, interpretation of this provision could fill. We modified paragraph (k)(1) to they will also provide a more render entire truck fleets un-usable for clarify that inspections will occur at comprehensive record than is currently excess spoil transport, even if the spoil least quarterly during construction, with required. Further, these records will be was subsequently spread and additional complete inspections available on-site for regulatory authority compacted. In response to this conducted during critical construction inspection. Since the time interval comment, we note that we do not intend periods. We invited comment on between an inspection, partial or to prohibit the mechanical transport of whether the final rule should require complete, may be several weeks or spoil. The use of trucks to transport and additional specific oversight by a longer, a significant volume of excess place material, via dumping, from the qualified engineer when segregated, spoil can be placed in a fill during that bed of the truck is permissible under the graded, natural material is used to 715 time period. The only way for the final rule. This final rule simply construct the filter system. In inspector to be certain that the lift prohibits the dumping of material down response, one commenter noted that requirement has been fulfilled is additional inspection is not necessary the face of a fill to its final location. through the documentation supplied by and should not be included in the final this provision. Thus, the additional Final Paragraph (h): Final Configuration rule. The commenter added that the review time that this provision will Paragraph (h) identifies the requirement to perform daily require is ancillary to the benefit of requirements for final fill configuration. inspections during placement of excess attaining better oversight of the Specifically, paragraph (h)(3)(i) requires spoil material is onerous and requested that geomorphic reclamation principles we remove it. This commenter further operation by the regulatory authority. be used to establish the final surface asserted that because construction of The regulatory authority also referenced configuration of the fill. Specifically, the excess spoil fills is time intensive and proposed §§ 780.19(k) and 784.19(k) permittee must grade the top surface of may occur 24 hours per day, daily which provided that a permit will be the fill to create a topography that inspections and recordkeeping for spoil void from the date of issuance if it is includes ridgelines and valleys with placement and compaction are issued on the basis of what the varied hillslope configurations when unnecessary, costly, and especially regulatory authority later determines to such configurations are practicable, unwarranted when the postmining land be substantially inaccurate baseline compatible with stability and use is range land. The commenter makes information. The regulatory authority postmining land use considerations, and a valid point that, as proposed, alleged that daily inspections could generally consistent with the numerous inspections of the excess increase the likelihood of permit topography of the area before any spoil placement in four-foot lifts would nullifications, especially if the term mining. One commenter questioned the be required. It is true that placement in ‘‘substantially inaccurate’’ is too broadly rationale for requiring the use of the lower portions of the fill may result interpreted. In response we note first geomorphic reclamation principles. In in more than one lift completed every that, as discussed in the preamble to paragraph (h) we are requiring a final day. In response, we have revised the final rule §§ 780.19 and 784.19, we have surface configuration that not only final rule to provide an alternative to the removed the two paragraphs that the promotes greater erosional stability but daily inspection requirement. In final commenter referenced. Second, also has more ecological benefits than paragraph (k)(2)(i), the permittee may however, the scenario described does other techniques. Although section choose to have inspections conducted not seem plausible; we fail to see how 816.71 includes other requirements to by a qualified engineer or specialist on an increased frequency of inspection of ensure long term stability and to a weekly basis rather than a daily basis, excess spoil placement could lead a minimize discharges, we are provided that daily photographic regulatory authority to determine that the baseline information a permittee 714 30 U.S. 1265(b)(22)(A). 715 80 FR 44436, 44560 (Jul. 27, 2015). submitted at the time of permit

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00228 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93293

application was substantially Why did we remove the provisions for about our use throughout the rule of the inaccurate. durable rock fills in previous 30 CFR term ‘‘existing use’’ and suggested that, 816.73? because the term ‘‘existing use’’ is also Final Paragraph (l): Coal Mine Waste This section of the existing used in a Clean Water Act context, in Final paragraph (l)(1) allows disposal regulations was deleted as part of this relationship to surface water, it might of coal refuse in an excess spoil fill, rulemaking. As explained in the cause confusion for us to use it here. In subject to specific requirements. As preamble to § 816.71(g) of the proposed response we have deleted the term from proposed, paragraph (l)(1) required the and final rules, we are removing this the final rule. We have deleted the term permittee to demonstrate that no section as proposed. ‘‘reasonably foreseeable uses’’ from the credible evidence existed that the final rule except in connection with the disposal of coal mine waste in an excess Section 816.74: What special protection of reasonably foreseeable spoil fill will cause or contribute to a requirements apply to the disposal of surface lands uses from the adverse violation of applicable water quality excess spoil on a preexisting bench? impacts of subsidence. The term standards as prescribed by section We are finalizing § 816.74 as appears only in SMCRA in section 303(c) of the Clean Water Act or effluent proposed. We received no comments on 516(b)(1), which requires that operators limitations. Furthermore, the disposal of this section. of underground mines adopt subsidence the waste must not result in material Section 816.79: What measures must I control measures to, among other things, damage to the hydrologic balance maintain the value and reasonably outside the permit area. A commenter take to protect underground mines in the vicinity of my surface mine? foreseeable use of surface lands. It is not stated that the term ‘‘credible evidence’’ appropriate for a more general context. is too vague and suggested we adopt We are finalizing § 816.79 as Further, many commenters objected to ‘‘weight of the evidence’’ as a better proposed. We received no comments on the usage of ‘‘reasonably foreseeable’’ standard. At the suggestion of another this section. asserting that it is too subjective, commenter, we have removed any Section 816.81: How must I dispose of difficult to assess, and open to varying reference to a standard of evidence and coal mine waste? interpretations, which could result in now require that you demonstrate, and inconsistent application. Therefore, in a As discussed in the preamble to the the regulatory authority find in writing, groundwater context we have replaced proposed rule,717 we proposed to that the disposal of coal mine waste in ‘‘reasonably foreseeable use ‘‘with the modify our regulations at § 816.81. We the excess spoil fill will not cause or term ‘‘premining use’’ to avoid are adopting the section as proposed contribute to a violation of applicable confusion with Clean Water Act with some minor language water quality standards adopted under terminology. the authority of section 303(c) of the modifications for clarity, consistency Finally, in paragraph (b)(7) we have Clean Water Act, 33 U.S.C. 1313(c), with other sections of the final rule, and removed ‘‘surface water’’ because we other state or tribal water quality the requirements of SMCRA. address surface water in final paragraph standards, or effluent limitations or Final Paragraph (b): Basic Performance (8). In paragraph (b)(8), we have result in material damage to the Standards clarified that a coal mine waste disposal hydrologic balance outside the permit We have modified paragraph (b)(1) by facility may not cause, or contribute to area. clarifying that the permittee must a violation of section 303(c) of the Clean Why did we remove the provision for minimize the adverse effects of a coal Water Act,719 of the surface water rock-core chimney drains in previous 30 mine waste disposal facility on downstream of the facility. CFR 816.72(b)? groundwater, surface water, and aquatic life. We have replaced ‘‘biological Final Paragraph (e): Foundation As we proposed in the preamble to condition’’ with ‘‘aquatic life’’ to be Investigations the proposed rule,716 we have removed more comprehensive as only certain previous § 816.72(b) because mine Similar to the modifications we made streams are assessed using operators are no longer constructing fills at final §§ 816.49(a)(4), about bioassessment protocols associated with with rock-core chimney drains. We foundations, at the suggestion of another biological condition. The specific received no comments in response to federal agency and to improve clarity reference to ‘‘aquatic life’’ will more our proposal to remove this abandoned we have modified final paragraph (e) thoroughly implement section practice. about foundation investigations. We 515(b)(24) of SMCRA,718 which requires have added ‘‘abutment’’ to the A rock-core chimney drain is a minimal adverse impacts on fish, vertical wall of durable rock within the requirement to ensure precautions are wildlife, and related environmental taken to fully prevent failure of fill, extending along the centerline from values. the toe of the fill to the head of the fill impounding structure foundations. In paragraph (b)(6) we have deleted Additionally, we have added the phrase and from the base of the fill to the the language ‘‘damage from’’ as it surface of the fill. To clarify, our ‘‘and control of underseepage’’ to ensure pertains to flooding to ensure that the that seepage failures of the dam removal of this paragraph will not occurrence and extent of flooding prohibit construction of head-of-hollow foundation are prevented. This would should be minimized, not just the include the potential for piping failures. or valley fills. However, applications for resulting damage. fills including rock-core chimney drains In paragraph (b)(7), we have replaced Section 816.83: What special will not be approved. Any proposed the terms ‘‘existing’’ and ‘‘reasonably requirements apply to coal mine waste excess spoil fills must satisfy the foreseeable’’ use of groundwater and refuse piles? permitting requirements of §§ 780.28 replaced it with any ‘‘premining’’ use of and 780.35. If approved, excess spoil fill groundwater. The U.S. Environmental We are finalizing § 816.83 as disposal must comport with the Protection Agency expressed concern proposed. We received no comments on performance standards of § 816.71. this section. 717 80 FR 44436, 44562–44563 (Jul. 27, 2015). 716 80 FR 44436, 44561 (Jul. 27, 2015). 718 30 U.S.C. 1265(b)(24). 719 33 U.S.C. 1313(c).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00229 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93294 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Section 816.84: What special section 515(b)(24) of SMCRA,723 which a standard because it allows for more requirements apply to coal mine waste provides that, ‘‘to the extent possible impacts than SMCRA 515(b)(24) 725 impounding structures? using the best technology currently intends. On the other hand, the ‘‘may We are finalizing § 816.84 as available,’’ surface coal mining and affect’’ standard is too stringent because proposed. We received no comments on reclamation operations must be there are situations in which a mining this section. conducted so as to ‘‘minimize operation may affect a listed species, but disturbances and adverse impacts of the as a result of protective measures Section 816.87: What special operation on fish, wildlife, and related designed during consultation, material performance requirements apply to environmental values, and achieve damage of the hydrologic balance is burning and burned coal mine waste? enhancement of such resources where avoided. The commenter’s suggested We are finalizing § 816.87 as practicable.’’ Thus, SMCRA only modification would also prohibit proposed. We received no comments on requires minimization, not avoidance, of activities that may affect, but are not this section. adverse impacts to fish, wildlife, and likely to adversely affect, species. In related environmental values. Congress order to address these issues, we have Section 816.89: How must I dispose of was very specific when it selected the modified the language in paragraph noncoal mine wastes? phrase ‘‘minimize disturbances and (b)(1)(i) to clarify that no surface mining We are finalizing § 816.89 as adverse impacts’’ in section 515(b)(24) activities may violate the Endangered proposed. We received no comments on of SMCRA as opposed to using the term Species Act and that nothing in our this section. ‘‘avoid’’ as it did in other environmental regulations authorizes the taking of a protection performance standards such species listed as threatened or Section 816.95: How must I protect as section 515(b)(10)(A) and (E) of endangered under the Endangered surface areas from wind and water SMCRA.724 Clearly, it was the intent of Species Act of 1973, 16 U.S.C. 1531 et erosion? Congress to allow a degree of impact, seq., unless the U.S. Fish and Wildlife Section 816.95 explains the additional not the greatest possible reduction of Service or the National Marine Fisheries performance standards that apply to impact as the commenter presupposes. Service, as applicable, authorizes the protect topsoil from erosion and air A few commenters requested that we taking under 16 U.S.C. 1536(b)(4). We pollution attendant to erosion. We ensure that our fish and wildlife also added reference to the National proposed to revise § 816.95 from the enhancement measures do not interfere, Marine Fisheries Service to this previous regulation to replace the contradict, or incorporate conservation regulation in the event that a species references to topsoil with the terms soil measures contained in voluntary under its jurisdiction may be impacted and soil substitutes.720 This change is conservation programs as approved by by mining activities. See 16 U.S.C. consistent with §§ 780.12(e) and state or federal agencies. These 1532(15). 816.22(c) which allow for the use of commenters further explain that One commenter stated that it is topsoil and subsoil substitutes. incorporating voluntary conservation unclear what actions the regulatory In response to the proposed rule we program agreements into a SMCRA authority would take in the event a did not receive any specific comments permit would impinge on the species is unexpectedly found in the about this section. However, in response ‘‘voluntary’’ status of the conservation permit area or adjacent area, as to general comments made by the U.S. measures and potentially render these described in paragraph (b)(1)(ii). The Environmental Protection Agency, we voluntary conservation agreements commenter also stated that such a modified paragraph (b)(1)(ii) referencing ineligible for mitigation credits. We are discovery could conceivably shut down applicable water quality standards not changing the rule in response to this an ongoing operation at great expense. adopted under the authority of section request. We recommend that these However, § 817.97(b) in the current 303(c) of the Clean Water Act.721 This measures be discussed during regulations already requires operators to addition was necessary to maintain coordination with the appropriate state ‘‘promptly report’’ the presence of any consistency with changes made and federal agencies during the listed or threatened species within the elsewhere in the final rule. permitting process described in permit area when the operator becomes §§ 779.20(b) and 783.20(b). aware of it. This section of the current Section 816.97: How must I protect and regulations also specifies that upon such enhance fish, wildlife, and related Final Paragraph (b): Requirements notification, ‘‘the regulatory authority environmental values? Related to Federal, State, and Tribal shall consult with the appropriate State One commenter on this section Endangered Species Laws and Federal fish and wildlife agencies recommended that we require As proposed, paragraph (b) prohibited and, after consultation, shall identify permittees to avoid impacts to the surface mining activities that are likely whether, and under what conditions, extent possible instead of requiring the to jeopardize the continued existence of the operator may proceed.’’ Operators minimization of impacts. The threatened or endangered species listed have not raised concerns about this commenter pointed out that using an by the Secretary of the Interior or existing requirement, and we are avoidance standard is guaranteed to proposed for listing, or that are likely to unaware of any instances where the prevent impacts, whereas there is a risk result in the destruction or adverse requirement has been overly of failure associated with minimization, modification of designated critical burdensome. Furthermore, the risk of even if it is followed by restoration and habitat in violation of the Endangered unexpected occurrences of listed enhancement. We are not accepting this Species Act. One commenter species can be minimized by gathering suggestion. As we described in the recommended that we modify the the best possible data and coordinating preamble to our proposed rule, our language to prohibit operations that with the relevant agencies at the permit substantive revisions to § 816.97 722 are ‘‘may affect’’ listed species instead of application and approval stages. See intended to more fully implement jeopardizing their continued existence. § 773.15(j)(1) (requiring operators to We recognize that jeopardy is too low of provide documentation that the 720 80 FR 44436, 44564 (Jul. 27, 2015). proposed permit area and adjacent area 721 33 U.S.C. 1313(c). 723 30 U.S.C. 1265(b)(24). 722 80 FR 44436 (Jul. 27, 2015). 724 Id. and 30 U.S.C. 1265(b)(10)(A) and (E). 725 30 U.S.C. 1265(b)(24).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00230 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93295

do not contain threatened or endangered paragraph is to add a reference to the Golden Eagle Protection Act 729 and that species). National Marine Fisheries Service in the this effort to expand our jurisdiction is We invited comment on whether to event that a species under its unlawful. We disagree. This paragraph limit the notification requirement of jurisdiction may be impacted by mining does not expand our jurisdiction; it proposed paragraph (b)(1)(ii) to the activities. merely describes the process of alerting active mining phase of the operation. Other commenters stated that our the U.S. Fish and Wildlife Service of the Specifically, we sought comment on final rule at paragraph (b)(2) should not presence of bald or golden eagles, their whether the final rule should explicitly contain analogous requirements for state eggs, or nests and the responsibilities of state that the notification requirement listed species. We decline to eliminate the operator and the regulatory agency expires at the time of Phase II bond these requirements because they are in this process. This requirement was release, since there is typically a lack of necessary to comply with section present in the previous regulations and activity on the site after that stage of 515(b)(24) of SMCRA, which requires has been retained unedited in the final reclamation. We received comments in operators to ‘‘minimize disturbances rule. support of and in opposition to and adverse impacts of the operation on terminating the notification requirement fish, wildlife, and related environmental Final Paragraph (d): Miscellaneous at Phase II bond release. Those in favor values, and achieve enhancement of Protective Measures for Other Species of of terminating the requirement argued such resources where practicable.’’ 726 Fish and Wildlife that it would save government and In response to paragraph (b)(2), which In paragraph (d)(1), we proposed to industry resources, since impacts would requires operators to notify the delete the clause in our existing be less likely after this stage and regulatory authority of any state or regulations that allowed regulatory because habitat restoration is generally tribal-listed, threatened or endangered authorities to waive, if they determined in place—or at least in process—at the species within the permit area or the it was unnecessary, the requirement that time of Phase I bond release. These adjacent area of which the permittee electric power transmission lines and commenters stated that most of the becomes aware, regardless of whether other transmission facilities used for, or major earth moving and planting the species was listed before or after incidental to, surface mining activities operations are complete at that point, permit issuance, we received a comment on the permit area be designed and and no major activity would be taking that neither the SMCRA nor the constructed to minimize electrocution place after Phase I bond release. Those Endangered Species Act provides hazards to raptors and other avian who argued against terminating the protection for state-listed species. As species with large wingspans. We are requirement voiced concern that risks to stated in the proposed preamble,727 not aware of any situations in which listed species continue after active paragraph (b)(2) was established to set these precautions are not necessary or mining and require long-term treatment. forth the requirements for state listed appropriate. We received comments The U.S. Fish and Wildlife Service species under state statutes protecting supporting this change and are recommended that we not limit the state listed, threatened, and endangered finalizing it as proposed. notification requirement because species. In addition, in In re: Permanent One commenter requested that we information about the new or increased Surface Mining Regulation Litigation, delete paragraph (d)(4), which requires occupancy of the site or adjacent area is No. 79–1144, slip op, at pp. 58–63 (D.C. the exclusion of wildlife from ponds useful in understanding the recovery of Cir. 1984), a federal district court ruled that contain hazardous concentrations areas affected by the mining activity. that section 515(b)(24) of SMCRA 728 is of toxic or toxic-forming materials. This After consideration of the comments, we not limited to Federally-listed species. requirement has been part of our have determined that continued Therefore, under SMCRA, operators are existing regulations since December 11, notification after Phase II bond release required to minimize disturbances to 1987. This provision was once deleted is not a burdensome requirement as the state, tribal, and federally-listed from the regulations, as we maintained notification requirement does not also endangered or threatened species. We that there was little evidence of harm to require prescribed searches or have made additional changes to final wildlife as a result of unprotected toxic assessments of the area and that there is paragraphs (b)(2)(ii)(A) and (B) provide ponds on the site of any mining continued value to these notices as it clarity on the process of coordination operation. We stated at the time the would allow the appropriate agencies to with the appropriate agencies, the requirements to minimize disturbances gather data on these species is data after process for proceeding with activities, and adverse impacts on wildlife by Phase II; therefore, we have not limited and process for revising the permit utilizing the best technology currently the notification requirement. when a state-listed species is found available would be sufficient to protect Furthermore, we note that the within the permitted site. wildlife from toxic ponds. But the court requirement is limited to notification. If in In re: Permanent Surface Mining the operation is unlikely to cause any Final Paragraph (c): Bald and Golden Regulation Litigation, No. 79–1144, slip harm to the newly found species, no Eagles op, at pp. 58–63 (D.C. Cir. 1984) rejected action will be required. In contrast, not One commenter recommended that these arguments, stating that the requiring disclosure could result in we remove § 816.97(c), which describes absence of evidence of harm to wildlife unquantified harm to species and the process of protecting bald and supported the retention of the fencing expose operators to liability under the golden eagles, their nests, and eggs, and requirement. The court believed the Endangered Species Act. Therefore, we the process of reporting and addressing regulations specific to utilizing the best have not limited the notification the presence of bald and golden eagle technology currently available did not requirement. nests. This commenter claimed that this provide regulatory authorities with Commenters supported the provision would usurp the authority sufficient guidance. Therefore, until we requirement in paragraph (b)(1)(iv), to that Congress delegated to the U.S. Fish are further directed by the courts or comply with any species-specific and Wildlife Service under the Bald and presented with sufficient scientific protection measures required by the evidence, we will keep this provision regulatory authority in coordination 726 30 U.S.C. 1265(b)(24). within the regulations. with the U.S. Fish and Wildlife Service. 727 80 FR 44436, 44465 (Jul. 27, 2015). The only change we have made to this 728 30 U.S.C. 1265(b)(24). 729 16 U.S.C. 668–668d.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00231 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93296 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Another commenter objected to Final Paragraph (e): Wetlands unusually high value for fish and proposed paragraph (d)(4) asserting that We proposed to redesignate wildlife. Paragraph (f) paragraph now many ponds in the Appalachian and § 816.97(f) of our previous regulations as requires operators to ‘‘avoid Illinois Basins are treated with paragraph (e) within the final rule and disturbances to, restore or replace, and, chemicals because of acidity, iron, and revise it for clarity and consistency with where practicable, enhance riparian and manganese levels and some are being section 515(b)(24) of SMCRA.731 The other native vegetation along rivers and treated with a ‘‘proprietary mix’’ of previous rule was not fully consistent streams, lentic vegetation bordering treatment chemicals. The commenters with section 515(b)(24) of SMCRA,732 ponds and lakes, and habitat of assert that proposed paragraph (d)(4) is which requires both minimization of unusually high value for fish and not fully protective because we have not disturbances and adverse impacts on wildlife, as described in § 779.20(c)(3) stated the standard for ‘‘toxic or toxic- fish, wildlife, and related environmental . . . .’’ forming materials.’’ We disagree. In values to the extent possible and Final Paragraph (g): Vegetation existing 30 CFR 701.5 we define toxic- enhancement of those resources where Requirements for Fish and Wildlife forming materials as ‘‘earth materials or practicable. Proposed paragraph (e) was Habitat Postmining Land Use waste which, if acted upon by air, water, drafted to align with 515(b)(24) of In proposed paragraph (f), now weathering, or microbiological SMCRA 733 by requiring the permittee to redesignated as paragraph (g) in the processes, are likely to produce avoid disturbances ‘‘[t]o the extent final rule, we proposed to require, chemical or physical conditions in soil possible, using the best technology among other things, the exclusive use of or water that are detrimental to biota currently available. . .’’ and native vegetation where fish and and or uses of water.’’ The preamble to ‘‘. . .where practical, enhance wildlife habitat is a postmining land our 1979 implementing regulations wetlands.’’ One commenter objected to use. We received many comments in explains the basis for the wording found the proposed changes and interpreted 730 support of this requirement. As in the definition. Accordingly, we the proposed rule to require all three discussed elsewhere in the preamble, have not made any changes to the final actions, i.e., avoidance, restoration or we have, within the final rule, made rule based on this comment. replacement, and enhancement, allowances for the use of non-natives Another commenter objected to wherever wetlands exist on the that are both non-invasive and paragraph (d)(5) under the mistaken permitted site. This is not an accurate necessary to achieve the approved impression that it would require reading of the requirements. If possible, postmining land use.736 In addition, operators to reforest lands that were the operator must avoid disturbances to § 780.12(g)(4) allows for the short-term forested or that would have reverted to wetlands. If this is not possible, then use of non-natives when necessary to forest under conditions of natural restoration or replacement of that achieve a quick-growing, temporary, succession at the time of permit affected wetland is required. Finally, in stabilizing cover on disturbed and application, regardless of the approved all instances, if it is practical, the regraded areas, as long as the species postmining land use. We have made no operator is to enhance the wetlands selected to achieve this purpose are change in the final rule because the rule within the permitted area. The previous consistent with measures to establish allows for non-forestry vegetation and regulations, as described within the permanent vegetation. Several other land uses, such as those described preamble to the proposed rule,734 allow commenters stated that non-native in § 816.97(g) for the cropland the permittee to choose from one of annual crops can be used to supplement postmining land use. these options, which, as described Similarly, a commenter asked if we natural food sources for wildlife. We above, is inconsistent with 515(b)(24) of were deleting the fish and wildlife acknowledge that this is true. However, SMCRA. We did not make changes due postmining land use category because we do not agree that the use of non- to this comment, although to further proposed paragraph (d)(5) states that, native species is necessary to align with SMCRA at 515(b)(24), we ‘‘to the extent possible,’’ the operator successfully reclaim the site to the ‘‘fish have added ‘‘. . . using the best must ‘‘reclaim and reforest lands that and wildlife habitat’’ land use category. technology currently available . . .’’ to were forested at the time of application This land use category is defined within the final rule within this paragraph. § 701.5 as land that is ‘‘dedicated and lands that would revert to forest For additional clarification and under conditions of natural succession wholly or partially to the production, compliance with the Clean Water Act, in a manner that enhances recovery of protection, or management of species of 33 U.S.C. 1344, we have added an the native forest ecosystem as fish or wildlife.’’ This definition does additional provision in paragraph (e)(2) expeditiously as practicable.’’ Fish and not allow for a focus on game species to stating that nothing in paragraph (e)(1) wildlife habitat land use is still a the detriment of other species, and there of this section authorizes destruction or suitable post mining land use category. are no other aspects of this land use degradation of wetlands in violation of Section 701.5 defines both ‘‘land use’’ category that would necessitate the use section 404 of the Clean Water Act.735 and ‘‘fish and wildlife habitat’’ land use. of non-native plant species. Therefore, These definitions in § 701.5 are used in Final Paragraph (f): Habitat of Unusually an exception for the use of non-natives conjunction with §§ 780.24 and 784.24 High Value for Fish and Wildlife for this land use category is not to determine the requirements that We have moved portions of proposed warranted. apply to postmining land use. The paragraph (e) related to habitat of Another commenter stated that requirements of § 816.97 and 817.97 unusually high value for fish and exceptions should be made where provide additional protection and wildlife to final paragraph (f). This native species are not commercially enhancement measures that should be change was made to reduce confusion available. We do not find this argument implemented to the extent possible, between wetlands and habitats of persuasive for a number of reasons. using the best technology currently First, the use of native species is a best available. Therefore, we are not making 731 30 U.S. 1265(b)(24). practice in SMCRA and non-SMCRA any changes in response to this 732 Id. regulated reclamation across the United comment. 733 Id. States, and substantial progress 734 80 FR 44436, 44566 (Jul. 27, 2015). 730 44 FR 14941 (Mar. 13, 1979). 735 33 U.S.C. 1344. 736 30 CFR 780.12(g)(3)(i)

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00232 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93297

continues to be made in the availability of high value trees and shrubs further the contemporaneous reclamation and diversity of native species. Best enhances the function and resources of requirement.741 We received practices also include contracting the site for wildlife and increases its expressions of support for this change, growers to produce seed from the overall environmental and aesthetic including from the U.S. Forest Service; premining vegetation or adjacent (and value. Through proper forestry therefore, we are maintaining this appropriate) areas for use in management techniques, the inclusion addition in the final rule. reclamation. This enhances the of shrubs within a forestry post mining establishment and the survivability of land use would improve Section 816.102: How must I backfill the the native species that are used. In implementation of the revegetation mined area and grade and configure the § 780.12(g)(4), we have described requirements of 515(b)(19) of land surface? circumstances under which the need to SMCRA 739 and the provisions of section As discussed in the preamble to the provide stabilization of disturbed and 515(b)(24) of SMCRA 740 concerning proposed rule, we proposed to modify regraded areas makes it necessary for protection and enhancement of fish, our regulations at § 816.102.742 We have the regulatory authority to allow quick- wildlife, and related environmental amended the language of the proposed growing, temporary, stabilizing cover on values. The proposed, and now final rule to reflect that there are allowable disturbed and regraded areas, provided regulations require this practice to the deviations from the general requirement that the species selected to achieve this extent that it is not inconsistent with the to return all land disturbed by coal purpose are consistent with measures to type of forestry conducted as part of the mining operations to its approximate establish permanent vegetation. These postmining land use. original contour prior to any mining. requirements are consistent with section Additionally, after evaluating the 515(b)(19) of SMCRA,737 which Final Paragraph (j): Vegetation comments that we received, we have provides that permanent vegetative Requirements for Other Postmining corrected and added citations to cover must be of the same seasonal Land Uses statutory and regulatory authority variety native to the area of land to be A commenter objected to the provisions; added affected and capable of self- requirement in proposed paragraph § 816.102(a)(3)(iv)(B),(C),and (D); and regeneration. This section of SMCRA (i)(1), now paragraph (j)(1), to deleted a provision in section allows for the use of introduced species intersperse greenbelts and plantings of 816.102(a)(5). We discuss these changes in the revegetation process where non-invasive native plants that provide and responses to relevant comments desirable and necessary to achieve the food or cover for wildlife in sites that below. approved postmining land use plan.738 are otherwise approved for residential, We proposed to revise the public service, commercial, industrial, introductory language of paragraph (a) Final Paragraph (h): Vegetation or intensive recreational uses. These to clarify that the requirement to backfill Requirements for Cropland Postmining commenters expressed concern over the applies only to mined areas.743 We Land Use potential for conflicts between noted that, although the existing rule A commenter objected to proposed greenbelts and the features, for example applies the backfilling requirement to paragraph (g), now final paragraph (h), power lines, of the selected land use. the entire disturbed area, this is and requested it be amended to clarify This concern is exaggerated. Pursuant to inappropriate because ‘‘those portions that the operator and surface owner may the requirements of § 780.12(g), the of the disturbed area outside the mined determine whether trees, hedges, and revegetation plan must be approved by area do not contain a pit or similar fence rows are appropriate for planned the regulatory authority. The excavation that requires backfilling.’’ 744 postmining, crop-management practices. requirement in paragraph (j)(1) will be To support this statement, we referred The proposed rule requirement applies satisfied if this plan is followed. the public to the preamble discussion of only ‘‘where appropriate for wildlife- Moreover, the regulation states that the proposed definition of ‘‘backfill’’ in management and crop-management greenbelts are not required if their use 30 CFR 701.5 745 which we derived from practices.’’ Given this exception, no would be inconsistent with the A Dictionary of Mining, Mineral, and revision is necessary to accommodate approved postmining land use plan for Related Terms (U.S. Bureau of Mines, trees, hedges, and fence rows if they are that site. Even so, in most cases, 1968). Specifically, we proposed to appropriate for planned postmining, greenbelts could be situated to avoid define ‘‘backfill’’ as ‘‘the spoil and waste crop-management practices. conflict with other necessary features of materials used to fill the void resulting Final Paragraph (i): Vegetation the approved land use. from an excavation created for the purpose of extracting coal from the Requirements for Forestry Postmining Section 816.99: What measures must I earth.’’ We simultaneously proposed to Land Uses take to prevent and remediate define the action of ‘‘backfilling’’ as ‘‘the landslides? One commenter objected to our process of filling that void.’’ 746 In requirement within proposed paragraph We are finalizing § 816.99 as response, one commenter argued that (h), now final paragraph (i), to plant proposed. We received no comments on our proposed definitions were understory species on lands managed this section. inaccurate because many mining for forestry as the postmining land use. Section 816.100: What are the standards companies in North Dakota excavate The commenter claimed that this areas to construct sediment ponds—and requirement was ‘‘not sensible,’’ as the for conducting reclamation contemporaneously with mining? not to extract coal— and these must be rationale for a forest post mine land use backfilled when they are no longer is to provide forest resources for wildlife As discussed in the preamble to the needed. Although the term ‘‘backfill’’ is and for potential future harvesting of proposed rule, we proposed to modify these resources. We disagree that the our regulations at § 816.100 to add 741 80 FR 44436, 44567 (Jul. 27, 2015). requirement is ‘‘not sensible’’ and are stream restoration to the list of 742 80 FR 44436, 44567–44570 (Jul. 27, 2015). finalizing it as proposed. Interspersion reclamation activities that are subject to 743 80 FR 44436, 44567 (Jul. 27, 2015). 744 Id. 737 30 U.S.C. 1265(b)(19). 739 30 U.S.C. 1265(b)(19). 745 Id. 738 30 U.S.C. 1265(b)(10). 740 30 U.S.C. 1265(b)(24). 746 80 FR 44436, 44468 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00233 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93298 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

commonly used in the manner impoundments have been created for Permanent impoundments are suggested by the commenter outside the the purpose of avoiding the costs allowable deviations from approximate mining context, in the mining context, associated with spoil transport. original contour, but they are not an the term refers to material placed in the The commenter is correct that the exemption from the requirement to mined area and to the related act of term ‘‘approximate original contour’’ is return land to the approximate original placing that material in the void created often misconstrued and misapplied. As contour that existed prior to any by mining. In the mining context, the that commenter noted, the previously- mining.749 Permanent impoundments of filling in of sediment ponds or other referenced state geologist incorrectly an appropriate size and proper depth excavations when they are no longer excluded so-called ‘‘impoundment can provide significant wildlife habitat needed is referred to as ‘‘reclaiming’’ the slopes’’ from his approximate original and recreational value. However, this site to its approximate original contour. contour analysis because he apparently does not mean permanent Thus, our proposed definitions are believed that any slope leading down to impoundments can be as large and as accurate. the water level of a permanent deep as a surface owner or a permittee In new § 816.102(a)(1), we have impoundment is part of the design might like them to be. The size and replaced the phrase ‘‘except in the criteria for a permanent depth of permanent impoundments are following circumstances with deviations impoundment.748 He therefore limited by the requirements of final rule from the approximate original contour interpreted our previous regulations as §§ 780.24 and 816.102(a)(3)(ii). restoration requirements are allowed in providing an exemption for these slopes We have previously approved the following situations.’’ This change from the requirement to restore the land highwall retention provisions as part of should make it clear to permit to its approximate original contour for the New Mexico and Utah regulatory applicants and to state regulatory areas around permanent impoundments. programs.750 Our proposed rule allowed authorities that an exemption from the This interpretation was erroneous, and for the retention of modified highwalls approximate original contour restoration we agree with the commenter that the under limited circumstances. We requirements cannot be claimed by the postmining contours of the entire permit received many comments on this permittee when a permanent area should be evaluated for proposal. Some commenters urged us to impoundment is created or when one of approximate original contour eliminate the proposed retention of the other situations enumerated in compliance. modified highwalls. The commenters § 816.102(a)(1) are present. We discuss It is not appropriate to create argued that highwalls are not natural this point in more detail below. permanent impoundments merely for and that, while they may serve as The proposed deviations from the the purpose of avoiding the true cost of habitat for some wildlife, such as general approximate original contour reclaiming the mined out area and raptors, they present significant danger restoration requirements generated restoring its approximate original to inhabitants, livestock, and other numerous comments. One commenter contour. As the commenter suggests, the wildlife. Other commenters opposed our argued that the definition of regulatory and statutory provisions proposed highwall retention provisions ‘‘approximate original contour’’ in dealing with impoundments, highwall because, in the commenters’ view, those paragraph (a)(1) was ambiguous and elimination, spoil pile elimination, and provisions are not applicable to other could lead to a loophole around the drainage patterns should all be read regions and could be used as a loophole statutory requirement to backfill and together and applied together so that to circumvent the approximate original grade. The commenter noted a recent land affected by a surface coal mining contour restoration requirement. Other administrative decision 747 documenting and reclamation operation will be commenters opined that a national rule testimony by a geologist with a state returned to the same approximate was not needed because similar configuration that existed prior to any regulatory authority who claimed that highwall retention provisions have been mining. In other words, land that was the slopes of impoundments above the approved in state regulatory programs generally flat prior to any mining should level of the water should not be where the limited retention of highwalls be generally flat after the mining and considered in evaluating whether a is an acceptable method of restoring reclamation operations are complete, mining company has backfilled and mined land to its approximate original although there may be some variations graded in a manner that achieves the contour. approximate original contour. The in site elevation after mining. The Section 816.102(a)(3)(iii) of the final commenter asserted that SMCRA, the permittee should not propose, and the rule still allows for the retention of regulatory authority should not approve, previous regulations, and the proposed modified highwalls under limited the creation of land forms that were not regulations cannot be read to support circumstances. However, we have present within the permit area prior to the state engineer’s testimony. The changed the rule in response to the any mining. After reclamation commenter argued that this approach commenters’ concerns by addressing: (1) operations are complete, the mined out would allow mine operators to create The nature of highwalls, (2) the effect of area and the area affected by surface ponds in front of highwalls or leave highwalls on wildlife, and (3) the coal mining and reclamation operations unreclaimed pits as ‘‘supposed danger that highwalls represent. We should closely resemble the contours of impoundments’’ and then contend that explain these changes further below. the land that existed prior to any the land forms do not need to conform We disagree that our proposed mining. to the approximate original contour highwall retention provisions are requirements. To prevent a misreading inapplicable in regions outside of New 748 So-called impoundment slopes are not part of of the statute or regulations, the the design criteria for permanent impoundments Mexico and Utah, as commenters commenter recommended that we because such slopes play no role in the water- contended. Although the New Mexico clarify that slopes of impoundments are holding capacity of the impoundment. Only a small and Utah programs allow for highwall a part of the contour of a mine site. The portion of the slope of an impoundment above the retention under limited circumstances, normal water line—the ‘‘embankment slope’’—is commenter also noted that many properly a part of the design criteria of an impoundment. The embankment slope is the slope 749 Permanent impoundments are allowed by 747 Farrell-Cooper Mining Company v. OSMRE, from the normal waterline of the impoundment to section 515(b)(8) of SMCRA, 30 U.S.C. 1265(b)(8). OHA Docket No. 2013–1–R (Amended Decision of the maximum water level where the water flows out 750 45 FR 86459 (Dec. 31, 1980), and 58 FR 48600 ALJ Sweitzer at 30, 31). the emergency spillway. Id. (Sept. 17, 1993), respectively.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00234 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93299

New Mexico and Utah are not the only means that regulatory authorities must ecological niche for wildlife, the states where there are cliffs. This rule establish permit conditions to ensure regulatory authority must establish will have application any time a that the retained segment restores the conditions ensuring that the naturally occurring feature like a cliff is form of the destroyed natural cliff or replacement highwall provides the same destroyed by coal mining operations, as bluff.755 As we stated in the preamble to ecological niche. In the preamble to the long as the requirements of the proposed rule, this may require proposed rule, we mentioned that § 816.102(a)(3)(iii) are met. While our blasting ledges into the highwall face or permittees may need to blast ledges into rule has nationwide applicability, we creating microhabitats at the base of the the highwall face to provide nesting acknowledge that it will only affect highwall remnant.756 Although we habitat for raptors and other cliff- regions and areas with cliffs. These mentioned these two examples in the dwelling habitat or create microhabitats provisions will have no effect at all on preamble to the proposed rule, we at the base of a highwall remnant. regions or areas where naturally emphasize here that these examples are Again, these examples are not occurring cliffs are not present. not intended to be exhaustive, and they exhaustive. Additionally, we added We also disagree that this new will often not be sufficient to ensure final paragraphs (a)(3)(iv)(B) and (C), regulatory provision could provide a that the retained segment resembles which require that the retained highwall ‘‘loophole’’ around the requirement to similar premining landforms. be stable and not create a safety hazard restore the land to its approximate Paragraph (a)(3)(iv)(A) further ensures compared to the premining feature that original contour. As we explain below, that highwalls closely resemble the it replaces. the retention of modified highwalls is replaced features by making it clear that We disagree with commenters who actually in harmony with the modified highwall segments are not argue that limited highwall retention requirement to restore to approximate authorized in excess of the number, will not comply with SMCRA Section original contour. length, and height needed to replace 515(b)(24). That section requires that While we agree that highwalls created similar premining landforms. As a surface coal mining and reclamation as a part of a mining operation are not simple illustration, a two hundred foot operations use the best technology natural features, highwalls retained cliff cannot be replaced with two one currently available to minimize pursuant to paragraph (a)(3)(iv) are hundred foot highwalls. Likewise, five disturbances and adverse impacts on consistent with approximate original twenty foot bluffs cannot be replaced fish, wildlife, and related environmental contour because they are allowed only with a one hundred foot highwall. values and to achieve enhancement of when they are replacing natural cliffs Rather, a highwall segment may be those resources where practicable. As which existed prior to any mining and retained only if, under section (a)(3)(iv), we did in the preamble to the proposed then only if they are modified to it replaces similar natural landforms, rule,758 we emphasize that the simulate the preexisting cliffs. and if, under (a)(3)(iv)(A), it closely requirement to restore ecological niches Highwalls that are allowable resembles those similar premining will improve implementation of SMCRA postmining features are not formed by landforms. 515(b)(24). In order to comply with both natural processes and must be modified, To avoid any confusion about the SMCRA and the final rule, operators in some cases significantly, to closely word ‘‘similar’’ in this context, we must use the best technology available resemble a natural landform. To ensure emphasize, as we did in the preamble to to identify ecological niches prior to that this occurs, final the proposed rule, that retained mining and to restore them after mining. § 816.106(a)(3)(iv)(A) requires the highwall segments must be modified to We also believe that the commenters’ regulatory authority to establish closely resemble the features destroyed confusion about impacts on wildlife and conditions to ensure that the retained by mining and to restore the ecological habitat may stem from confusion segment resembles similar premining functions of those features.757 Any surrounding the term ‘‘ecological landforms. As we discussed in the attempt to replace a natural landform niches.’’ The term is not defined in the preamble to the proposed rule, the rule with a landform that is different in scale regulation and is only used in allows retention of modified highwall or type from the one destroyed by §§ 816.102 and 817.102. In the proposed segments only if they replace cliffs and mining is inconsistent with the purpose rule, we used the term without defining bluffs that existed prior to any and intent of this regulation. it, but intended it to be understood as mining.751 We also clarified in the As mentioned above, several it is used in common scientific parlance. preamble to the proposed rule that we commenters asserted that the retention We have retained that approach in the intend the rule to reconcile the potential of highwalls will have a negative effect final rule. conflict between the requirement to on wildlife. For instance, commenters As we discussed in the preamble to restore the approximate original contour argued that, although highwalls may the proposed rule, ‘‘ecological niche’’ and the requirement to eliminate all create habitat for raptors and cliff- includes the wildlife habitat and highwalls.752 In effect, this means that dwelling wildlife, they may pose a ecological functions of the feature. the retention of highwalls is limited to danger to livestock and grassland Thus, no highwalls can be retained, as a very specific set of circumstances and wildlife. We share commenters’ concern a commenter suggested, in areas where carries with it certain responsibilities. for the effect of highwalls on wildlife no cliffs or bluffs existed premining As we proposed,753 a permittee can and note that this concern is addressed because such a highwall would provide only retain a highwall if the permittee in the final rule. Final section a different ecological niche than destroyed naturally-occurring cliffs or 816.102(a)(3)(iv)(A) requires the premining landforms. Nor can a bluffs while mining. Even then, a regulatory authority to establish highwall be retained if it fails to fully permittee must modify the highwall conditions to ensure that the retained restore the variety of environmental segments to closely resemble the segment restores the ecological niches values provided by the destroyed features destroyed by mining.754 This that the premining landforms provided. premining landform. Succinctly, in If a cliff, prior to mining, provided an order to restore an ecological niche, it is 751 80 FR 44436, 444569 (Jul. 27, 2015). necessary to understand where the 752 Id. 755 See Id. premining landforms provided 753 Id. 756 See Id. 754 Id. 757 80 FF 44436, 44569 (Jul. 27, 2015). 758 80 FR 44436, 44569 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00235 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93300 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

important environmental functions, regulation. As we discussed in the commenter recommended that we revise how the premining landforms provided preamble to the proposed rule, the rule this section to require the permittee or environmental values, and how a harmonizes SMCRA section 515(b)(3)’s operator to ‘‘significantly’’ minimize retained highwall segment must be requirements to eliminate highwalls and erosion and water pollution. We have modified to provide the same restore the approximate original contour declined to make this revision, as it is environmental values. The regulatory and clarifies any potential conflict unnecessary. The word ‘‘minimize’’ is authority, for its part, must establish between these requirements.759 A used alone throughout the performance conditions ensuring that these values federal final rule is necessary to ensure standards of SMCRA.761 We are are understood and restored. that these two provisions are properly adopting this term in our regulations to Some commenters suggested that, if harmonized, to avoid regulatory more closely follow the mandates of highwalls are allowed to be retained, loopholes, and to provide consistency SMCRA. Moreover, the word they should be no greater in length than and clarity to affected regulated entities ‘‘minimize,’’ as commonly understood, the natural cliffs that existed prior to and the public. We understand that indicates that the permittee or operator mining. These commenters further some states have incorporated elements must reduce erosion and water suggested that trails be cut through of the final rule into their programs retained highwalls at intervals to allow without a corresponding federal pollution to the extent possible. Adding for the passage of livestock and wildlife. regulation, but that does not preclude us ‘‘significantly’’ would be redundant in We address the commenters’ concern in from adopting these provisions in our this context. Thus, we are not accepting final section 816.102(a)(3)(iv)(A). As federal rule. the commenter’s suggestion to include previously discussed, this paragraph Many commenters argued that these the word ‘‘significantly.’’ prohibits the retention of modified provisions should be implemented at Finally, in § 816.102(a)(5), we highwall segments that are longer than the discretion of state regulatory proposed to require that backfilling and the premining landform. Again, as authorities. Regulatory authorities retain grading be conducted to minimize water discussed above, this requirement their traditional discretion under pollution, including discharges of cannot be avoided by combining or SMCRA to adopt provision that are no parameters of concern for which no dividing the dimensions of premining less stringent than SMCRA and no less numerical effluent limitation or water natural landforms. Furthermore, we effective than the Secretary’s regulations quality standards have been established. note that if trails are necessary to in meeting the requirements of the Act. One commenter argued that proposed restoring the ecological niches provided This final rule sets appropriate baseline § 816.102(a)(5) was too vague to by premining landforms, then those requirements for regulatory authorities. implement. This commenter claimed trails would be authorized under Regulatory authorities must establish that a permittee would not be able to paragraph (a)(3)(iv)(A). conditions to ensure that the retained In response to concerns about the segment: (1) Closely resembles the understand, without numerical effluent dangers posed by highwalls, we added landforms that existed before any limitations or water quality standards, paragraph (a)(3)(iv)(B). Commenters mining; (2) restores the ecological how compliance will be determined, argued that due to the nature of some niches that those landforms provided; what effluent limits are appropriate, and sedimentary geological formations, (3) is stable; (4) does not create an whether grading and backfilling were highwalls might prove to be unstable increased safety hazard compared to the being conducted appropriately. We because they are susceptible to feature that existed before any mining; understand the commenter’s concern weathering. Paragraph (a)(3)(iv)(B) and (5) does not adversely impact the and deleted this language from the final requires the regulatory authority to hydrologic balance through the rule. With this revision, § 816.102(a)(5) establish conditions to ensure that the exposure of water-bearing strata. These now requires the permittee to retained segment is stable. To address are reasonable requirements that ‘‘[m]inimize erosion and water pollution similar safety concerns we also added enhance implementation of SMCRA both on and off the site.’’ As we stated paragraph (a)(3)(iv)(C). This provision section 515(b)(3) and protect both the in the preamble to the proposed rule, requires the regulatory authority to natural and human environment. however, SMCRA requires the permittee establish conditions to ensure that the Furthermore, state regulatory authorities to ‘‘minimize the disturbances to the retained segment does not create an retain their discretion to establish prevailing hydrologic balance at the increased safety hazard compared to the conditions that accomplish these mine site and in associated offsite areas premining feature that it replaces. The requirements. and to the quality and quantity of water commenters further claimed that leaving Some commenters argued that we in surface and ground water systems highwalls would allow for the exposure should require public notice, a public both during and after surface coal of water bearing formations. In hearing, and a comment period on any mining operations and during response, we added paragraph permit application, revision, or renewal reclamation.’’ 762 This statutory (a)(3)(iv)(D), which requires the that proposes to retain modified requirement continues to apply to regulatory authority to establish highwalls pursuant to paragraph permittees regardless of changes to the conditions to ensure that any exposure (a)(3)(iv) in order to give local residents regulatory text in this final rule. of water-bearing strata in the retained an opportunity to comment on potential segment does not adversely affect the changes to the local landscape. We have Section 816.104: What special hydrologic balance. declined to change § 816.102 in provisions for backfilling, grading, and Some commenters supported the response to this recommendation. surface configuration apply to sites with principle of allowing remnant highwall Existing § 773.6 already provides these thin overburden? features to replace cliffs destroyed rights.760 during the mining process but Section 816.102(a)(5) requires We are finalizing section 816.104 as questioned why it was necessary to permittees and operators to minimize proposed. We received no comments on include it in the federal final rule when erosion and water pollution. One this section. several states have successfully incorporated this into their programs 759 80 FR 44436, 44569 (Jul. 27, 2015). 761 30 U.S.C. 1265. without a corresponding federal 760 30 CFR 773.6. 762 30 U.S.C. 1265(b)(10).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00236 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93301

Section 816.105: What special the postmining land use, and Section 816.107: What special provisions for backfilling, grading, and compatible with the surrounding provisions for backfilling, grading, and surface configuration apply to sites with region.’’ It further states that ‘‘[n]o slope surface configuration apply to thick overburden? may exceed the angle of repose.’’ The operations on steep slopes? As discussed in the preamble to the commenter specifically states that We received no comments on this proposed rule, we proposed to modify allowing the overstacking of backfill to section. Nevertheless, we made one our regulations at § 816.105,763 which a height greater than the approximate modification from the proposed rule. details special requirements applicable original contour, but never more than Proposed paragraph (d) provided that, for operations with thick overburden. the angle of repose, conflicts with ‘‘you must handle woody materials in After evaluating the comments that we achieving the lowest practicable grade. accordance with § 816.22(f) of this part. received, we are adopting the section as In response, we note that the commenter You may not bury them in the proposed. appears to misunderstand the purpose backfill.’’ 764 We have removed the last of this section. Section 816.105 only Final Paragraph (b): Performance sentence because it is in conflict with applies to the limited circumstance of a Standards § 816.22(f)(ii) of the final rule. Section surface mine with thick overburden. 816.22(f)(ii) provides an exception that Two commenters expressed concern This section was specifically intended allows material to be buried in the about the requirement in proposed to recognize that in the limited backfill when significant populations of paragraph (b)(1) that operators backfill circumstance of thick overburden, it invasive or noxious non-native species the mined-out area to approximate may not be possible to achieve the are present and it is necessary to bury original contour and then place the approximate original contour the material at a sufficient depth to remaining spoil and waste materials on configuration that would otherwise be prevent regeneration or proliferation of top of the backfilled area. One required. In the limited situation of undesirable species. Removal of ‘‘[y]ou commenter alleged that because of this thick overburden, § 816.105 allows for many not bury them in the backfill’’ language, it was unclear whether the placement of spoil within the mined makes §§ 816.107 and 816.22 consistent proposed rule allowed ‘‘blending.’’ area in a surface configuration in a in their handling of organic matter. Blending involves placing spoil material manner that will probably not closely outside of the mined area as a transition Section 816.111: How must I revegetate resemble the general surface between the location where overburden areas disturbed by mining activities? configuration of the land prior to any is removed, considering spoil swell mining. As a result, the final reclaimed We proposed to revise and restructure factors, and the undisturbed previous § 816.111.765 After evaluating surrounding terrain. The purpose of surface configurations might exceed, in both contour height and slope the comments that we received, we are blending is to avoid any abrupt or adopting the section as proposed, with potentially hazardous changes in steepness, a normal approximate original contour configuration for mine a few modifications. Some commenters elevation between the mined area and expressed concern that this section does the existing, surrounding terrain. sites that do not have thick overburden. However, while this regulation not require the vegetative cover to be ‘‘of Blending can have beneficial impacts, the same seasonal variety native to the specifically allows the placement and such as reduced slope steepness area of land to be affected,’’ as required overstacking of spoil within the mined throughout the reclaimed area. Spoil by section 515(b)(19) of SMCRA.766 area at these sites, it recognizes there are used for blending the reclaimed area Previous § 816.111(b)(2) required that into the surrounding terrain also helps additional factors that must be vegetation have the same ‘‘seasonal to minimize the potential for excess considered before placing spoil beyond characteristics of growth’’ as the native spoil that would cause the burial of normally allowable limits. These plant communities they replace. This streams. This commenter stated that if additional factors include the avoidance requirement was part of a rule that was blending is not allowed, it will greatly of the creation of slopes that would be promulgated in 1983.767 We did not increase the spoil elevation in many considered unstable—but never to change this requirement in the final areas. The commenter further opined exceed the angle-of-repose— and the rule. Final § 780.12(g)(3)(iv) retains the that any provision prohibiting the avoidance of the creation of slopes that phrase ‘‘seasonal characteristics of practice of ‘‘blending’’ conflicts with would be considered ecologically growth.’’ The basis for the use of the SMCRA, which, according to the unsound. Moreover, even though term ‘‘seasonal characteristics of commenter, allows blending to achieve steeper-than-normal slopes would likely growth’’ instead of ‘‘seasonal variety’’ is approximate original contour. In be created for surface mining operations set forth in the 1982 preamble to the response, we direct the commenter to that have thick overburden, the grading proposed rule that resulted in, the 1983 subpart (5) of this section, which of spoil materials to the lowest final rule. In that preamble, we requires the final surface configuration practicable grade is still a reasonable explained that ‘‘seasonal variety’’ in to ‘‘blend[] into and complement[] the overall target. These qualifiers to the section 515(b)(19) of SMCRA 768 and drainage pattern of the surrounding grading of overstacked spoil will offer ‘‘seasonal characteristics of growth’’ terrain to the extent possible.’’ This reasonable protection in areas of thick have essentially the same meaning, but language specifically allows blending. overburden. that ‘‘seasonal characteristics of growth’’ We also note that this section applies is more easily understood, and refers to only to sites with thick overburden. Section 816.106: What special the major season of growth for Another commenter indicated that the provisions for backfilling, grading, and herbaceous species.769 This is still true; language of paragraph (b)(2) is surface configuration apply to contradictory. That paragraph states that previously mined areas with a 764 80 FR 44436, 44668 (Jul. 27, 2015). operators must ‘‘grade the backfilled preexisting highwall? 765 80 FR 44436, 44572–73 (Jul. 27, 2015). area to the lowest practicable grade that 766 30 U.S.C. 1265(b)(19). is ecologically sound, consistent with We are finalizing section 816.106 as 767 48 FR 40140, 40145 (Sept. 2,1983). proposed. We received no comments on 768 30 U.S.C. 1265(b)(19). 763 80 FR 44436, 44571 (Jul. 27, 2015). this section. 769 47 FR 12596 (Mar. 23, 1982).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00237 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93302 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

therefore, we have not made approved ‘‘impervious surface’’ in the establishment of trees and shrubs modifications to the final rule in support of the postmining land use. when the revegetation plan approved in response to the commenter’s concern. We disagree that there is any the permit requires the use of woody Some commenters claimed that the inconsistency. Our regulations at plants.’’ We invited comment on proposed rule appeared to have little § 816.111 are fully consistent with whether proposed paragraphs (b)(4) and applicability outside Appalachia and SMCRA. SMCRA recognizes the (5) strike the proper balance between suggested that revegetation issues legitimacy of appurtenant features that controlling erosion and promoting the should be resolved on a state-by-state support the postmining land use that establishment of native trees and might not support any vegetation, such basis. Section 780.12(g) is sufficiently shrubs. Commenters indicated that the as water features, rock piles for wildlife flexible to accommodate special language provided sufficient balance, circumstances in any location within habitat, or parking lots. These non- vegetative features are authorized by and we are adopting the rule as the nation, as well as geographic proposed. variability within an individual state section 515(b)(2) of SMCRA,771 which program. Our reference to circumstances allows for higher or better postmining We received comments that the or research from Appalachia or other land uses. These features are allowable requirement in paragraph (b)(4), which areas of the nation should not be pursuant to § 701.5, which defines is discussed above, is subjective and misconstrued to mean those locations ‘‘land use’’ as ‘‘specific uses or would be impossible to achieve. We are the sole focus of these regulations. management-related activities . . . acknowledge that background erosion Several commenters recommended [which] may include land used for levels on undisturbed sites vary from that we not codify the revegetation support facilities that are an integral region to region and site to site, requirements in the national part of the use.’’ Additionally, it would depending on geology, soils, regulations, but instead encourage the be unreasonable to expect parking lots topography, and climate. The final rule development of rules, policies, or and other impervious surfaces or water provides an exception for unavoidable features such as stock ponds that are procedures on a state-by-state basis. We erosion that is a consequence of the legitimate and integral parts of the have declined to make this change. The natural conditions of the site, if the approved postmining land use to regulations provide sufficient discretion 772 extent of unavoidable erosion is for individual states and tribes to support vegetation. One commenter expressed concern determinable by comparison to other accommodate their unique conditions. about the apparent removal of language undisturbed areas with the same or For instance, the revegetation plan relative to the revegetation of lands similar conditions. This requirement is permitting requirements within designated for cropland postmining reasonable and allows the regulator to § 780.12(g)(2)(i) mandate that the land use. Several commenters stated consider regional differences. We are proposed vegetative cover be consistent that the proposed rule is problematic not changing the rule in response to this with the plant communities described because sixty percent of all permitted comment. in the permit application. The reference land is cropland, and exemptions are In response to paragraph (b)(5), a to ‘‘native’’ plant communities in this necessary in order to use non-native section makes clear that the revegetation commenter inquired as to who decides species to accommodate cropland whether the re-established vegetative requirements are based on site-specific postmining land uses. In response, we cover inhibits the establishment of trees conditions. Therefore, we have not note that provisions containing and shrubs. The regulatory authority, made changes to the rule as a result of exceptions to the general requirement to these comments. use native species in order to achieve based on state specific regulations Several commenters alleged that the postmining land use, including contained in the approved program, has § 816.111 is inconsistent with sections cropland use, have been retained in the the discretion to make this 770 515(b)(19) and (20) of SMCRA. rule. The language relating to cropland determination. SMCRA section 515(b)(19) allows the revegetation previously found within Commenters also objected to the use of ‘‘introduced species’’ instead of § 816.111 has been relocated from the requirement in proposed paragraph native species where such use is performance standards to the permit (d)(2) to use native hay mulch to the ‘‘desirable and necessary to achieve the requirements and is now part of the extent it is commercially available. approved postmining land use plan.’’ revegetation plan requirements at While noting that ‘‘hay mulch’’ is not a SMCRA section 515(b)(20) creates § 780.24(a)(2). The provisions related to defined term, these commenters stated another limited exception to the postmining land uses (including requirement to use native species when that the term typically refers to grass cropland) can now be found in the final and legumes cut, dried, and stored for the regulatory authority issues ‘‘a rule at § 780.12(g)(3)(i) and (g)(5) written finding approving a long-term, use with livestock, and not to straw (proposed as § 780.12(g)(6)). mulch (baled stalks of a harvested wheat intensive, agricultural postmining land Proposed paragraph (b) requires that or similar crop), which is more typically use.’’ According to these commenters, the reestablished vegetative cover used to protect soils. A commenter also the statute provides no other exception comply with the revegetation plan raised a question regarding commercial from the requirement to establish a approved in accordance with proposed diverse, effective and permanent § 780.12(g). It further requires in availability of native hay seed stock for vegetative cover of the same seasonal paragraph (b)(4) that vegetative cover revegetation and questioned the efficacy variety native to the area. These ‘‘[b]e capable of stabilizing the soil of this requirement. We agree with the commenters argue that § 816.111(a)(3) surface and, in the long term, preventing commenters that the use of ‘‘hay and (a)(4) are inconsistent with SMCRA erosion in excess of what would have mulch,’’ in consideration of its because they would create exceptions to occurred naturally had the site not been commonly understood meaning, is not the revegetation requirements for rock disturbed.’’ Paragraph (b)(5) requires preferred as a mechanism for protecting piles, water areas, and other non- that the vegetative cover ‘‘[n]ot inhibit soils, and certainly should not be vegetation features and for any mandated. Therefore, we have 771 30 U.S.C. 1265(b)(2). eliminated the requirement to use 770 30 U.S.C. 1265(b)(19) and (20). 772 30 U.S.C. 1265(b)(19). ‘‘native hay mulch.’’

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00238 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93303

Previous § 816.113: Revegetation: demonstrate restoration of premining measure revegetation success because it Timing land use capability and must reflect’’ may be difficult to comply with this We have removed and reserved the revegetation plan—are inconsistent requirement in small areas with a previous § 816.113 for the reasons with 515(b)(19) of SMCRA. We disagree; limited sample size. We are not making discussed in the preamble to the this section, along with other sections of any changes as a result of this comment. proposed rule. Specifically, previous the final rule, actually implements both For a sample to be scientifically valid, § 816.113 has been redesignated and of these statutory sections. In particular, it must present results within acceptable moved to final rule § 816.111.773 this section defines how the regulatory bounds of statistical certainty. Each authority will determine that the regulatory authority retains the Previous § 816.114: Revegetation: reclamation performed at the site discretion to approve a model Mulching and Other Soil Stabilizing complies with these sections 515(b)(19) appropriate to the circumstances, as Practices and (20) of SMCRA: 778 Through long as it uses statistically valid We have removed and reserved standards for evaluating revegetation sampling techniques. For example, previous § 816.114 for the reasons success and statistically valid sampling current practices, when appropriate, discussed in the preamble to the techniques for measuring revegetation allow for small areas to be analyzed proposed rule. Specifically, previous success. Other sections of the rule, such along with other areas; this type of § 816.114 has been redesignated moved as § 780.12(g), which is cross-referenced grouping provides the larger sample size to final rule § 816.111.774 in paragraph (b), require a diverse, that will support the use of valid effective, permanent vegetative cover sampling techniques. Section 816.115: How long am I that is consistent with the native Commenters also expressed concern responsible for revegetation after vegetative plant communities and about the requirement in proposed planting? natural succession process within the § 816.116(b) to demonstrate restoration We are finalizing § 816.115 as permitted and surrounding areas. of premining land use capability using proposed. We received no comments on Additionally, some commenters revegetation success standards. These this section. asserted that the proposed regulations, commenters alleged that this which focus on establishing native requirement would impose an Section 816.116: What requirements vegetation, do not sufficiently allow for unnecessary burden placed on the apply to standards for determining the variety of postmining land uses that operators and regulatory authorities, as revegetation success? exist outside the forested regions of these standards would be hard to As discussed in the preamble to the Appalachia. These commenters quantify other than by planting and proposed rule, we proposed to modify suggested that the regulations do not sampling the vegetation of many our regulations at § 816.116 about the provide for a variety of agricultural different seed mixes to determine if the standards for determining revegetation lands, reestablishment of native premining capability has returned. After success.775 After evaluating the grasslands, certain types of managed consideration, we agree and have comments that we received, we are wildlife areas, industrial lands, eliminated the reference to revegetation adopting the section as proposed, with commercial lands, or recreational lands. success as part of an adequate the following exceptions and The commenters also claimed these demonstration of the affected land’s explanations. requirements have nothing to do with premining capability. We proposed to reorient our previous stream protection. In response, we note Section 816.116(b)(4) provides that regulations concerning revegetation that the reestablishment of native the standards of revegetation success success standards away from a focus on species vegetation is of primary must reflect the postmining land use a single postmining land use, which importance in reclaiming mined lands, established under section 780.24, but may or may not be implemented, toward and that the reclamation of these lands only to the extent that the approved standards pertinent to a determination can have significant impacts on a postmining land use will be of whether the site has been restored ‘‘to stream’s watershed and the health of implemented before final bond release a condition capable of supporting the that stream. Benefits to streams from the under §§ 800.40 through 800.43 of this uses which it was capable of supporting revegetation of terrestrial lands include chapter. Otherwise, the site must be prior to any mining, or higher or better the return of the appropriate surface revegetated in a manner that will restore uses of which there is reasonable water flow regimes and reestablishment native plant communities, and the likelihood,’’ as required by section of the proper nutrients and organic revegetation success standards for the 515(b)(2) of SMCRA.776 Commenters matter to the aquatic habitat. Regardless site must reflect this requirement. disagreed with this proposed switch in of the postmining land use, the final Commenters claim that this paragraph focus and claimed that it would be regulations are sufficiently flexible to inappropriately allows the regulatory contrary to statutory requirements. The allow planting of appropriate plant authority to create exceptions to the 779 commenters opined that sections species specific to the various regions requirements of section 515(b)(19). 515(b)(19) and (20) 777 set the minimum and local habitats, within limitations These commenters also asserted that requirements for revegetation, and we identified at § 780.12(g). sections 515(b)(19) and 515(b)(20) of 780 may not establish different requirements Final paragraph (a) is substantively SMCRA strictly limit exceptions to through a rulemaking. Similarly and identical to our previous regulation and the revegetation requirements to only without elaboration, commenters also provides the regulatory authority the two situations; where the permittee may opined that the proposed standards for discretion to select standards for use introduced species when desirable determining revegetation success—that revegetation success and statistically and necessary to achieve the approved the vegetation be ‘‘adequate to valid sampling techniques for postmining land use plan, and where measuring that success. One commenter the regulatory authority has approved a 773 80 FR 44436, 44574 (Jul. 27, 2015). requested that we remove the long-term, intensive, agricultural 774 80 FR 44436, 44574 (Jul. 27, 2015). requirement that statistically valid postmining land use. These commenters 775 80 FR 44436, 44574–76 (Jul. 27, 2015). sampling techniques must be used to 776 30 U.S.C. 1265(b)(2). 779 30 U.S.C. 1265(b)(19). 777 30 U.S.C. 1265(b)(19) and (20). 778 30 U.S.C. 1265(b)(19) and (20). 780 30 U.S.C. 1265(b)(19) and (20).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00239 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93304 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

also opposed the exemption, now in finalizing, is designed in accordance substantively changed since that time. final rule 816.116(c)(3), for ‘‘land with the Act. The preamble to the 1979 rule explains actually used for cropland’’ because Some commenters requested that we that we adopted the 90% equivalency cropland is not one of the two retain the existing regulations in provision in recognition of the fact that exemptions from the revegetation § 816.116 regulations pertaining to climatic variations may affect requirements set out in SMCRA sections revegetation standards and introduced productivity in the two consecutive 515(b)(19) and 515(b)(20).781 We are not species because they adhere much more growing seasons during which changing the rule in response to these closely to SMCRA than the proposed production is measured to determine comments because they fail to take into regulations. According to the revegetation success.795 After review, account other relevant portions of the commenters, SMCRA requires we have determined that this reasoning statute. As we discussed in our response revegetation standards to focus on the is still valid and are retaining this to comments made on § 816.111, which approved postmining land use. We provision. is closely related to § 816.116, our disagree. Proposed and final rule Finally, the commenters considered regulations at § 816.116(b)(4), (c)(3), and § 816.116(b) takes into account both the paragraph (g) to be inconsistent with (g) are also directly and specifically postmining land use approved by the § 515(b)(19) because, according to them, authorized by section 515(b)(19) of regulatory authority and the premining it would inappropriately exempt areas SMCRA.782 These paragraphs base land use capability of the permitted site. that are ‘‘to be developed for industrial, revegetation success standards on the These shared goals appear within commercial, or residential use’’ from the postmining land use that is achieved at SMCRA at sections 515(b)(19) and revegetation requirements. We are the time of final bond release. If the 515(b)(2).791 These commenters also adopting paragraph (g) as proposed. permittee achieves postmining land use claim that under SMCRA a native Paragraph (g) exempts areas with before final bond release, consistent vegetative cover is necessary, but impervious surfaces like roads, parking with section 515(b)(19) of SMCRA,783 its ‘‘introduced species may be used in the lots, and other structures, which are success in doing so will count toward revegetation process where desirable frequently part of industrial, the measurement of its revegetation and necessary to achieve the approved commercial, and residential uses, from success. If, however, it does not achieve postmining land use plan’’ regardless of counting against the measurement of the postmining land by that time, it will when that plan is completed; therefore, revegetation success. Removing this need to return the site to native plants. under SMCRA, revegetation with native requirement is impracticable because it This is consistent with section species is only necessary where there is is impossible to revegetate these types of 515(b)(19) of SMCRA 784 because it no approved post-mining land use, and surfaces. To the extent that portions of allows the permittee to use introduced conversely, when there is a post-mining the site are not covered in an species only as necessary to achieve the use, revegetation should be consistent impervious surface, those portions must postmining land use. Of course, our with that use and not require native be revegetated sufficient to ‘‘control regulations at paragraph (c)(3), as vegetation. We disagree. These erosion.’’ described in the preamble discussion of commenters have misinterpreted In addition to comments received § 816.111, also include an exception for SMCRA. In all cases, sections 508(a)(3) about how this section relates to ‘‘long-term intensive agricultural and (4) of SMCRA 792 require sections 515(b)(19) and (20) of postmining land use’’ to give effect to identification of a postmining land use SMCRA,796 we received five other section 515(b)(20) of SMCRA.785 before a permit is approved; therefore, comments on this section. First, a In addition to failing to give effect to to require native species only when commenter requested that we use the section 515(b)(19) of SMCRA,786 the there is no postmining land use is term ‘‘reclamation’’ instead of interpretation espoused by the illogical. We have further discussed ‘‘restoration’’ in the introductory commenters fails to give effect to section native species use in this preamble language to paragraph (b). As discussed 515(b)(2) of SMCRA 787 which, as within final rule § 780.16(c), above. above, we have deleted the clause to previously mentioned, requires Other commenters criticized which the commenter was referring. As restoration of land ‘‘to a condition paragraph (d) for allegedly being revised, this paragraph requires capable of supporting the uses which it contrary to section 515(b)(19) of assessment of the success of was capable of supporting prior to any SMCRA.793 Paragraph (d) provides that revegetation in relation to establishing mining, or higher or better uses of ‘‘ground cover, production, and stocking approved postmining mining land use; which there is a reasonable likelihood. of the revegetated area will be it does not require that the vegetation . . .’’ As explained in Part V of the considered equal to the approved demonstrate that premining capability preamble to the proposed rule,788 this success standards for those parameters has been restored. section is consistent with section when the measured values are not less Second, a commenter expressed 515(b)(2), (19), and (20) 789 by requiring than 90 percent of the success concern that the proposed rule would revegetation success standards that standard.’’ These commenters interpret require reclamation that will support support uses which the site was capable section 515(b)(19) of SMCRA 794 to both the premining land use and any of supporting prior to any mining or require that the minimum revegetation higher or better uses selected in the reasonably likely higher or better success rate needs to be at least equal in reclamation plan. Specifically, the uses.790 Thus, the regulation as we are extent of cover to the natural vegetation commenter explained that if the of the area. We are adopting this section ‘‘approved postmining land use is 781 30 U.S.C. 1265(b)(19) and (20). as proposed. Paragraph (d), however, pasture, but the land was used for 782 Id. which was previously located at cropland before mining, proposed 783 30 U.S.C. 1265(b)(19). §§ 780.12(e) and 816.22, require that the 784 § 816.116(a)(2), has been a part of our Id. soil be reconstructed in a manner that 785 30 U.S.C. 1265(b)(20). rules since 1979 and has not been 786 30 U.S.C. 1265(b)(19). would restore the site’s capability to 787 30 U.S.C. 1265(b)(2). 791 30 U.S.C. 1265(b)(2) and (b)(19). support cropland.’’ The commenter 788 80 FR 44436, 44446 (Jul. 27, 2015). 792 30 U.S.C. 1258(a)(3) and (4). 789 30 U.S.C. 1265(b)(2), (19), and (20). 793 30 U.S.C. 1265(b)(19). 795 44 FR 14902,15237 (Mar. 13, 1979). 790 30 U.S.C. 1265(b)(2). 794 30 U.S.C. 1265(b)(19). 796 30 U.S.C. 1265(b)(19) and (20).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00240 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93305

disagreed with this requirement because bodies of water that do not support and crop-management practices, the it requires additional reclamation on the vegetation are not directly subject to the operator must intersperse the crop fields basis of pure speculation that the site revegetation requirements, industrial with trees, hedges, or fence rows to might one day support a different land and commercial postmining land uses break up large blocks of monoculture use. We decline to make changes to may include areas that require and to diversify habitat types for birds § 811.116 based on the comment. revegetation and are subject to the and other animals. Thus, we are Section 508(a)(2) of SMCRA 797 requires revegetation requirements. retaining paragraphs (c)(1) and (2) as the development of a reclamation plan Fourth, several commenters proposed. demonstrating the capability of the land encouraged us not to set national A commenter requested that we prior to any mining to support a variety revegetation standards because of define the phrase ‘‘areal distribution,’’ of uses. Similarly, section 515(b)(2) of drastic differences between the regions as used in paragraph (c)(2) where we SMCRA 798 requires that the reclamation with respect to vegetation types, require that the standards for actually ‘‘restore land affected to a precipitation amounts, humidity, and determining revegetation success condition capable of supporting the uses temperature. We recognize the include the areal distribution of species which it was capable of supporting prior differences in vegetation across the required to be present. We disagree that to any mining, or higher or better uses nation. The final rule includes a specific regulatory definition of this of which there is reasonable likelihood, minimum requirements for native term is needed. In general, this as long as such use or uses do not species that allow for the differences paragraph requires that the replanting of present any actual or probable hazard to between the regions with specific the vegetation needs to resemble the public health or safety or pose any exceptions for introduced species as general spatial distribution of plant actual or probable threat of water established within § 780.12(g)(3) and species as they would be found in a diminution or pollution, and the permit (4). Moreover, we have retained the natural setting. For example, some applicants’ declared proposed land use measured values of the success species may clump or grow in clusters, following reclamation is not deemed to standards from our previous regulations. while others may be scattered or more be impractical or unreasonable, As prescribed in § 780.12(g), it is evenly distributed; this premining inconsistent with applicable land use primarily mine operators who will vegetative characteristic should be policies and plans, involves determine the types of vegetation at exhibited within the reclaimed area as unreasonable delay in implementation, each site as approved by the regulatory well. or is violative of Federal, State, or local authority. Proposed paragraph (d) was law [;]’’. Therefore, our regulations Finally, a fifth commenter asserted, substantively identical to the second requiring the restoration of the with respect to paragraph (c), that while sentence of paragraph (a)(2) of our premining capability of the land is in it is possible after mining to establish previously existing regulations which harmony with SMCRA. In most cases, native plant communities that provide a established statistical confidence all that is needed to restore the diverse, effective, and permanent requirements for revegetation sampling premining capability of the land is to vegetative cover comprised of species techniques and statistical adequacy restore appropriate topsoil thickness native to the area, those plant standards for determining when and rooting medium—not revegetation. communities often differ significantly revegetation success standards have As explained, restoring the capability of from the ones that existed prior to been met for ground cover, production, the land to support a variety of mining, primarily because of the and stocking. In paragraph (d) of the postmining land uses beyond the requirements in our rules to replace the preamble,799 we invited comment on immediately selected postmining land topsoil in a uniform thickness. whether our statistical confidence use is in fact what SMCRA requires. The However, in § 816.22(e)(1)(v) of our rule, interval requirements are appropriate in revegetation requirements apply only to we have provided an exception to this all situations. Several commenters the postmining land use, not to other requirement that allows the thickness to responded that the current statistical uses that the land would have been vary when consistent with the confidence intervals are effective; some capable of before mining. postmining land use and when of these commenters who supported Third, several commenters suggested variations are necessary or desirable to them also considered them unnecessary that proposed paragraph (b)(4), which achieve specific revegetation goals and in some cases. Other commenters would have required the establishment ecological diversity, as set forth in the considered them ineffective and of certain types of vegetation before the revegetation plan developed under unnecessary. Commenters suggested end of the vegetation responsibility § 780.12(g) of this chapter and approved that due to regional variability, a single liability period, should be changed to as part of the permit. Therefore, uniform statistical confidence interval would not require establishment of that vegetation soil thickness should not be a barrier to be appropriate nationally. Statistical ‘‘prior to bond release.’’ These the revegetation requirements in confidence is important to prove commenters noted that certain land § 780.12(g). whether revegetation has been uses, such as industrial or commercial Paragraphs (c)(1) and (2) require the successful. A confidence interval is a uses, have no vegetation responsibility description of the diversity and the areal range of values describing the period. To address this comment, we are extent of species respectively. One uncertainty surrounding an estimate, so changing the language within paragraph commenter recommended that these it is merely a way to numerically (b)(4) to require the achievement of all requirements not apply to land actually represent the certainty or uncertainty in postmining land use requirements prior used for cropland after the completion any given situation. Our regulation to final bond release instead of the of regrading and redistribution of soil requires revegetation that is ‘‘not less expiration of the revegetation liability materials. We disagree because these than 90 percent of the success standard, period. We also point out, however, that data are necessary to demonstrate using a 90-percent statistical confidence although certain features, such as compliance with the § 816.97(g) interval.’’ It is the mining operator and buildings, roads, parking lots, and performance standards. Under that the regulatory authority who will provision, in instances where cropland determine what that ‘‘success standard’’ 797 30 U.S.C. 1258(a)(2). is the postmining land use and where 798 30 U.S.C. 1265(b)(2). appropriate for wildlife-management 799 See 80 FR 44436, 44575 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00241 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93306 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

is, a standard that should take into Section 816.181: What requirements intention to re-mine or otherwise account regional concerns and apply to support facilities? disturb the abandoned mine land. The ecological conditions. It is also the We are finalizing § 816.181 as commenter suggested that the applicant mining operator and the regulatory proposed. We received no comments on should not be required to reclaim an authority that, in the reclamation plan, this section. abandoned mine land site just because will choose the actual vegetation type or it is located within an active permit. density that the operator must achieve. Previous § 816.200: Interpretative Rules Final paragraph (e)(1) requires that the Related to General Performance Our rule merely establishes in a way permittee permanently seal any Standards that is statistically valid throughout the underground opening unless the country that the permittee has complied We have removed and reserved regulatory authority approves use of the with that plan. We have, therefore, previous § 816.200 for the reasons hole or well for water monitoring made no change to the requirement and discussed in the preamble to the purposes or authorizes other are adopting this provision as proposed. 800 proposed rule. management of the hole or well. Final Section 816.131: What actions must I M. Part 817—Permanent Program paragraph (f)(1) requires that the take when I temporarily cease mining Performance Standards—Underground permittee seal these underground operations? Mining Activities openings unless the regulatory authority approves another use and finds that it We are finalizing § 816.131 as Section 817.1: What does this part do? will not adversely affect the proposed. We received no comments on With the exception of altering the title this section. environment or public health and of this section for clarity, we are safety. An opening to an underground Section 816.132: What actions must I finalizing § 817.1 as proposed. We mine, pre-law or not, presents a risk to take when I permanently cease mining received no comments on this section. public health and safety. For this operations? Section 817.2: What is the objective of reason, we are finalizing § 817.13 as We are finalizing § 816.132 as this part? proposed. proposed. We received no comments on We are finalizing § 817.2 as proposed. Section 817.22: How must I handle this section. We received no comments on this topsoil, subsoil, and other plant growth Section 816.133: What provisions section. media? concerning postmining land use apply Section 817.10: Information Collection We have modified this section; to my operation? Section 817.10 pertains to compliance however, these modifications are We are finalizing § 816.133 as with the Paperwork Reduction Act, 44 discussed in final rule § 816.22, which proposed. We received no comments on U.S.C. 3501, et seq. We are adding is the surface mining counterpart to this section. contact information for persons who § 817.22. wish to comment on these aspects of Section 816.150: What are the general part 817. Section 817.34: How must I protect the requirements for haul and access roads? hydrologic balance? Section 817.11: What signs and markers Final Paragraph (b): Performance must I post? We have modified this section; Standards Final Paragraph (a): General however, these modifications are Proposed paragraph (b)(4) prohibited Specifications discussed in final rule § 816.34, which all haul or access roads from causing or is the surface mining counterpart to We inadvertently referred to ‘‘surface’’ contributing to, directly or indirectly, mining activities in the proposed rule. § 817.34. In addition, as discussed in the violations of water standards applicable In the final rule we have replaced general comments Section IV. K. we to receiving waters. We have revised ‘‘surface’’ with ‘‘underground.’’ With have added language to final rule final paragraph (b)(4) to clarify, that the exception of this modification, we § 817.34(a)(2). This new language makes each road must be located, designed, are finalizing § 817.11 as proposed. We it clear that while underground constructed, used, maintained, and received no comments on this section. operations must prevent material reclaimed so that it does not violate any damage to the hydrologic balance applicable water-quality standards Section 817.13: What special outside the permit area, if a regulatory adopted under the authority of section requirements apply to drilled holes, authority determines that the permit 303(c) of the Clean Water Act, not just wells, and exposed underground application affirmatively demonstrates openings? applicable receiving waters. This is that the proposed operation, which may consistent with the remainder of the This section requires the mine include temporary subsidence that can final rule. We received no comments on operator to cap, seal, backfill, or be repaired, has been designed to this section. otherwise properly manage each shaft, prevent material damage of the Section 816.151: What additional drift, adit, tunnel, exploratory hole, hydrologic balance outside the permit requirements apply to primary roads? entryway, or other opening to the area, pursuant to § 817.121(c), the surface from underground. A permit may be issued. We are finalizing § 816.151 as commenter alleged that the proposed proposed. We received no comments on rule should be updated to provide Section 817.35: How must I monitor this section. clarification on performance standard groundwater? requirements where an abandoned mine Section 816.180: To what extent must I We have modified this section; protect utility installations? land site exists (and associated sinkholes, drifts, adits) within an active however, these modifications are We are finalizing § 816.180 as permit area, but the applicant has no discussed in final rule § 816.35, which proposed. We received no comments on is the surface mining counterpart to this section. 800 80 FR 44436, 44576 (Jul. 27, 2015). § 817.35.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00242 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93307

Section 817.36: How must I monitor that might otherwise develop as a result discussed in final rule § 816.45, which surface water? of exposure of that stratum is the same is the surface mining counterpart to We have modified this section; discussed in preamble for § 816.38. § 817.45. however, these modifications are Several commenters questioned why paragraph (c) was included in § 817.38 Section 817.46: What requirements discussed in final rule § 816.36, which apply to siltation structures? is the surface mining counterpart to of the proposed rule. They asserted that § 817.36. these requirements apply to surface coal We have modified this section; mining not underground mining. We however, these modifications are Section 817.37: How must I monitor the agree. The inclusion of paragraph (c) discussed in final rule § 816.46, which biological condition of streams? was an error and we have deleted is the surface mining counterpart to We have modified this section; paragraph (c) from the final rule and § 817.46. renumbered the other paragraphs however, these modifications are Section 817.47: What requirements accordingly. discussed in final rule § 816.37, which apply to discharge structures for is the surface mining counterpart to Section 817.39: What must I do with impoundments? § 817.37. exploratory or monitoring wells when I We have modified this section; Section 817.38: How must I handle acid- no longer need them? however, these modifications are forming and toxic-forming materials? To accommodate renumbering and discussed in final rule § 816.47, which Section 817.38 describes how the final rule changes in part 800, we have is the surface mining counterpart to operator must handle acid-forming and renumbered references to part 800 in § 817.47. toxic-forming materials. Although many this section. With the exception of this renumbering, we are finalizing § 817.39 Section 817.49: What requirements aspects of this section are substantively apply to impoundments? identical to the surface mining as proposed. We received no comments counterpart found at § 816.38, there are on this section. We have modified this section; however, these modifications are several differences that resulted in Section 817.40: What responsibility do discussed in final rule § 816.49, which unique comments for this section. We I have to replace water supplies? received several comments from is the surface mining counterpart to regulatory authorities and operators, We have modified this section; § 817.49. recommending that we delete paragraph however, these modifications are discussed in final rule § 816.40, which Section 817.55: What must I do with (a) of this section. Commenters asserted sedimentation ponds, diversions, that paragraph (a) erroneously is the surface mining counterpart to § 817.40. impoundments, and treatment facilities presupposes that all coal seams and the after I no longer need them? pit floor are acid forming and toxic Section 817.41: Under what conditions forming materials. The commenters may I discharge water and other We have modified this section; were particularly concerned with the materials into an underground mine? however, these modifications are discussed in final rule § 816.55, which requirement to specify that exposed coal We have modified this section; seams and the stratum immediately is the surface mining counterpart to however, these modifications are § 817.55. beneath the lowest coal seam mined discussed in final rule § 816.41, which must be covered with a layer of is the surface mining counterpart to Section 817.56: What additional compacted material with a hydraulic § 817.41. performance standards apply to mining conductivity at least two orders of activities conducted in or through an magnitude lower than the hydraulic Section 817.42: What Clean Water Act ephemeral stream? conductivity of the adjacent less- requirements apply to discharges from compacted spoil to minimize contact my operation? Section 817.56, like § 816.56, is a new section that we have added to address and interaction with water. For the same We have modified this section, reasons set forth in our preamble to confusion expressed by commenters including the title; however, these about which requirements in the rule § 816.38, we agree in part with the modifications are discussed in final rule commenters. apply to the various types of streams. § 816.42, which is the surface mining Specifically, these commenters noted We are revising proposed paragraph counterpart to § 817.42. (a) to align more with underground that proposed § 816.57, which would mining issues related to the handling Section 817.43: How must I construct have applied to surface mining activities acid-forming or toxic forming materials. and maintain diversions? in, through, or adjacent to perennial or We are retaining the first part of We have modified this section; intermittent streams, also contained paragraph (a) with a few changes that however, these modifications are cross-references to proposed § n are specific to underground mining. We discussed in final rule § 816.43, which 780.28(b)(3), which would have have revised paragraph (a) to clarify that is the surface mining counterpart to addressed the establishment of riparian for the face-up area you must identify § 817.43. corridors for ephemeral streams. (These potential acid-forming and toxic- sections have counterparts in §§ 817.57 forming materials in overburden strata Section 817.44: What restrictions apply and 784.28 that address streams and the stratum immediately below the to gravity discharges from underground impacted by surface activities coal seam to be mined. If the stratum mines? conducted in conjunction with immediately below the coal seam to be We are finalizing § 817.44 as underground mining.) To alleviate any mined contains acid-forming or toxic- proposed. We received no comments on confusion, we have added new § 817.56 forming material, you must develop a this section. which sets out the requirements for plan to prevent any adverse hydrologic ephemeral streams. These include impacts that might otherwise develop as Section 817.45: What sediment control requirements that are counterparts to a result of exposure of that stratum. measures must I implement? those for intermittent and perennial The rationale for requiring a plan to We have modified this section; streams such as requirements to comply prevent any adverse hydrologic impacts however, these modifications are with the Clean Water Act, establish a

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00243 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93308 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

postmining drainage pattern and stream Section 817.71: How must I dispose of Section 817.99: What measures must I channel configuration that is consistent excess spoil? take to prevent and remediate with the approved permit, and establish landslides? We have modified this section; a 100-foot streamside vegetative corridor We are finalizing § 817.99 as that complies with the standards in however, these modifications are discussed in final rule § 816.71, which proposed. We received no comments on § 817.57(d)(1)(iv) through (4) if activities this section. are conducted through an ephemeral is the surface mining counterpart to stream. The comparable requirements section 817.71. Section 817.100: What are the standards for the streamside vegetative corridors Section 817.74: What special for conducting reclamation for intermittent and perennial streams requirements apply to disposal of excess contemporaneously with mining? are still found in § 817.57. spoil on a preexisting bench? We are finalizing § 817.100 as proposed. We received no comments on Section 817.57: What additional We are finalizing § 817.74 as this section. performance standards apply to mining proposed. We received no comments on activities conducted in or through a this section. Section 817.102: How must I backfill perennial or intermittent stream or on surface excavations and grade and Section 817.81: How must I dispose of the surface of land within 100 feet of a configure the land surface? perennial or intermittent stream? coal mine waste? We have modified this section; We have modified this section; We have modified this section; however, these modifications are however, these modifications are however, these modifications are discussed in final rule § 816.102, which discussed in final rule § 816.57, which discussed in final rule § 816.81, which is the surface mining counterpart to is the surface mining counterpart to is the surface mining counterpart to § 817.102. § 817.57. § 817.81. Section 817.106: What special Section 817.59: How must I maximize Section 817.83: What special provisions for backfilling, grading, and coal recovery? requirements apply to coal mine waste surface configuration apply to refuse piles? previously mined areas with a We are finalizing § 817.59 as preexisting highwall? proposed. We received no comments on We are finalizing § 817.83 as this section. proposed. We received no comments on We are finalizing § 817.106 as this section. proposed. We received no comments on Section 817.61: Use of Explosives: this section. General Requirements Section 817.84: What special requirements apply to coal mine waste Section 817.107: What special We have modified this section; impounding structures? provisions for backfilling, grading, and however, these modifications are surface configuration apply to We are finalizing § 817.84 as discussed in final rule § 816.61, which operations on steep slopes? is the surface mining counterpart to proposed. We received no comments on section 817.61. this section. We have modified this section; however, these modifications are Section 817.62: Use of Explosives: Section 817.87: What special discussed in final rule § 816.107, which Preblasting Survey requirements apply to burning and is the surface mining counterpart to burned coal mine waste? We are finalizing § 817.62 as § 817.107. proposed. We received no comments on We are finalizing § 817.87 as Section 817.111: How must I revegetate this section. proposed. We received no comments on areas disturbed by mining activities? this section. Section 817.64: Use of Explosives: We have modified this section; General Performance Standards Section 817.89: How must I dispose of however, these modifications are noncoal mine wastes? discussed in final rule § 816.111, which We are finalizing § 817.64 as is the surface mining counterpart to We are finalizing § 817.89 as proposed. We received no comments on § 817.111. this section. proposed. We received no comments on this section. Previous § 817.113: Revegetation: Section 817.66: Use of Explosives: Timing Blasting Signs, Warnings, and Access Section 817.95: How must I protect Control surface areas from wind and water Like section 816.113, this section’s erosion? surface mining counterpart, we have We are finalizing § 817.66 as removed and reserved previous proposed. We received no comments on We have modified this section; § 817.113 for the reasons discussed in this section. however, these modifications are the preamble to the proposed rule. discussed in final rule § 816.95, which Section 817.67: Use of Explosives: Specifically, previous § 817.113 has is the surface mining counterpart to Control of Adverse Effects been redesignated and moved to final section 817.95. rule § 817.111.801 We are finalizing § 817.67 as Section 817.97: How must I protect and proposed. We received no comments on Previous § 817.114: Revegetation: enhance fish, wildlife, and related this section. Mulching and Other Soil Stabilizing environmental values? Section 817.68: Use of Explosives: Like § 816.114, this section’s surface We have modified this section; Records of Blasting Operations mining counterpart, we have removed however, these modifications are and reserved previous § 817.114 for the We are finalizing § 817.68 as discussed in final rule § 816.97, which reasons discussed in the preamble to the proposed. We received no comments on is the surface mining counterpart to this section. § 817.97. 801 80 FR 44436, 44574 (Jul. 27, 2015).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00244 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93309

proposed rule. Specifically, previous facilities.’’ 803 As part of this final rule, Nat’l Mining Ass’n v. Babbitt, 173 F.3d § 817.114 has been redesignated and we revised the definition of ‘‘material at 912), are better addressed in future moved to final rule § 817.111.802 damage’’ to incorporate the preamble rulemaking subject to full notice and language. opportunity to comment. Section 817.115: How long am I Some commenters suggested that the responsible for revegetation after regulations specify that the regulatory Final Paragraph (d): Repair or planting? authority must consider the repair of the Compensation for Damage to Non- We are finalizing § 817.115 as damage to be technologically and Commercial Buildings, Occupied proposed. We received no comments on economically infeasible when a Residential Dwellings, and Related this section. permittee has attempted to repair Structures surface lands or waters for two years We also received comments that we Section 817.116: What requirements without achieving complete success. should revise the proposed rule at apply to standards for determining According to the commenters, the paragraph (d) with regard to repair or revegetation success? regulatory authority should then require compensation for damage to non- We have modified this section; the permittee to perform appropriate commercial buildings, dwellings, and however, these modifications are mitigation work. In response to these related structures to ensure that the discussed in final rule § 816.116, which comments, we added § 817.121(g)(3)(ii), choice between repair and is the surface mining counterpart to which requires that the regulatory compensation rests with the person § 817.116. authority initiate bond forfeiture whose property has suffered damage, not the permittee causing the Section 817.121: What measures must I proceedings if the permittee has not subsidence damage. We have not made take to prevent, control, or correct completed correction or repair of any changes as a result of this comment damage resulting from subsidence? material damage to surface lands or waters or replaced adversely impacted because there appears to be a Consistent with the discussion about protected water supplies within 2 years misunderstanding of the revisions we our revisions to the definition of following the occurrence of that made in the proposed rule; our revisions material damage (in the context of the damage. Paragraph (g)(3)(ii) also were merely intended to adopt plain subsidence control provisions of requires that the regulatory authority language principles by use of the word §§ 784.30 and 817.121), our final use the funds collected to repair the ‘‘you’’ instead of ‘‘permittee’’, in doing paragraph (c) has been revised to specify surface lands and waters or replace the so we did not revise the previous that measures to prevent, control, or protected water supplies. In addition, language or intent with regard to this correct damage resulting from we added § 817.121(c)(2), which issue. subsidence also applies to wetlands, requires that the permittee implement streams and water bodies whenever the Final Paragraph (g): Adjustment of Bond fish and wildlife enhancement Amount for Subsidence Damage subsidence control standards are measures, as approved by the regulatory applicable to surface lands. These authority in a permit revision, to offset Final paragraph (g)(1) provides that, changes are consistent with our revised subsidence-related material damage to when subsidence-related material definition of material damage in the wetlands or a perennial or intermittent damage to land (including wetlands, context of the subsidence provision of stream when correction of that damage streams, and water bodies), structures or our regulations and the revisions to the is technologically and economically facilities protected under paragraphs (c) subsidence control plan regulations at infeasible. Paragraph (c)(2) is analogous through (e) occurs, or when § 784.30. to the fish and wildlife enhancement contamination, diminution, or requirements in §§ 780.16(d)(3) and interruption to a water supply protected Final Paragraph (c): Repair of Damage to under § 817.40 occurs, the regulatory Surface Lands and Waters 784.16(d)(3) that apply when mining activities conducted on the land surface authority must require the permittee to Final paragraph (c)(1) provides that to result in the permanent loss of wetlands post additional performance bond until the extent technologically and or a segment of a perennial or the repair, compensation, or economically feasible, the permittee intermittent stream. replacement is completed. Apart from must correct any subsidence-related the clarification that the term ‘‘land’’ material damage to surface lands, Previous Paragraph (c): Removal of includes wetlands, streams, and water wetlands, streams, or water bodies by Suspended Provisions bodies, consistent with the preamble to restoring the land and water features to We proposed to remove all of the previous rule, this paragraph is a condition capable of maintaining the previous paragraph (c)(4), except substantively identical to the value and reasonably foreseeable uses previous paragraph (c)(4)(v) because corresponding requirement in previous that the land was capable of supporting those provisions were vacated by a court § 817.121(c)(5). before the subsidence-related damage and have been suspended since Final paragraph (g)(2) explains how occurred. Final paragraph (c)(1) is December 22, 1999 (64 FR 71652– the bond amount must be calculated. substantively identical to the 71653). See also 80 FR 44528 (citing This paragraph is substantively corresponding provisions in previous Nat’l Mining Ass’n v. Babbitt, 173 F.3d identical to the corresponding § 817.121(c)(1). The primary revision is 906 (D.C. Cir. 1999)). Several provisions in previous § 817.121(c)(5) the addition of explicit references to commenters requested that we instead with one exception. We added final surface water features, consistent with revise those provisions in a manner paragraph (g)(2)(iii) to specify that, for the preamble to the previous definition consistent with the reasoning in the material damage to lands and waters, of ‘‘material damage’’ in § 701.5, which court’s decision. We decline to make the amount of the bond must equal the states that the definition’’ covers this revision at this time. Substantive estimated cost of restoring the land and damage to the surface and to surface changes of the type recommended by waters to a condition capable of features, such as wetlands, streams, and the commenters, especially ones related maintaining the value and reasonably bodies of water, and to structures or to evidentiary presumptions (see, e.g., foreseeable uses that they were capable of supporting before the material 802 80 FR 44436, 44574 (Jul. 27, 2015). 803 62 FR 16724 (Mar. 31, 1995). damage occurred. The previous rule

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00245 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93310 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

required that the bond amount for Section 817.122: How and when must I N. Part 824—Special Permanent damage to land equal repair costs, provide notice of planned underground Program Performance Standards— without elaborating on what ‘‘repair’’ mining? Mountaintop Removal Mining means in the context of damage to land Operations or waters. We are finalizing § 817.122 as proposed. We received no comments on Section 824.11: What special Final paragraph (g)(3)(i) provides that this section. performance standards apply to the bond requirements of paragraph mountaintop removal mining (g)(1) do not apply if repair, Section 817.131: What actions must I operations? compensation, or replacement is take when I temporarily cease mining As discussed in the preamble to final completed within 90 days of the operations? rule § 785.14, explaining what special occurrence of damage. Final paragraph We are finalizing § 817.131 as provisions apply to mountaintop (g)(3)(i) also establishes criteria for removal mining operations, we revised extension of the 90-day period that are proposed. We received no comments on this section. § 824.11 to include a new paragraph substantively identical to the (b)(6) in response to a comment. The corresponding provisions of the Section 817.132: What actions must I language adopted in this final rule previous rule at § 817.121(c)(5). take when I permanently cease mining therefore includes text requiring the Final paragraph (g)(3)(ii)(A) provides operations? prevention of ‘‘damage to natural that, if the permittee has not completed watercourses in accordance with the correction or repair of material damage We are finalizing § 817.132 as finding made by the regulatory authority to surface lands or waters or replaced proposed. We received no comments on under § 785.14 of this chapter.’’ this section. adversely impacted protected water O. Part 827—Special Permanent supplies within two years following the Section 817.133: What provisions Program Performance Standards—Coal occurrence of that damage, the concerning postmining land use apply Preparation Plants Not Located Within regulatory authority must initiate bond to my operation? the Permit Area of a Mine forfeiture proceedings under § 800.50 and use the funds collected to repair the We are finalizing § 817.133 as Section 827.12: What performance standards apply to coal preparation surface lands and waters or replace the proposed. We received no comments on plants? protected water supplies. We added this section. We are finalizing § 827.12 as paragraph (g)(3)(ii)(A) to the final rule to Section 817.150: What are the general proposed. We received no comments on place a cap on the length of time that requirements for haul and access roads? the bond may remain in place without this section. any effort to correct the material damage We have modified this section; VII. What effect would this rule have in or replace the adversely impacted water however, these modifications are federal program states and on Indian supply. Final paragraph (g)(3)(iii)(B) discussed in final rule § 816.150, which lands? provides two exceptions to the is the surface mining counterpart to The final rule that we are adopting requirement for initiation of bond § 817.150. forfeiture after two years. If either today applies to all non-Indian lands in exception applies, the regulatory Section 817.151: What additional states with a federal regulatory program. authority has the discretion to requirements apply to primary roads? States with federal regulatory programs include Arizona, California, Georgia, determine when the bond should be We are finalizing § 817.151 as Idaho, Massachusetts, Michigan, North released. The first exception applies if proposed. We received no comments on Carolina, Oregon, Rhode Island, South the landowner refuses to allow access to this section. Dakota, Tennessee, and Washington. implement the appropriate corrective These programs are codified at 30 CFR actions. The second exception applies if Section 817.180: To what extent must I parts 903, 905, 910, 912, 921, 922, 933, the permittee demonstrates, and the protect utility installations? 937, 939, 941, 942, and 947, regulatory authority finds, that We are finalizing § 817.180 as respectively. In general, there will be no correction or repair of the material need to amend the approved federal damage to surface lands or waters is not proposed. We received no comments on this section. program because, with limited technologically or economically exceptions, each program cross- feasible. When the latter exception Section 817.181: What requirements references 30 CFR parts 700, 701, 773, applies, final paragraph (g)(3)(iii)(B)(2) apply to support facilities? 774, 777, 779, 780, 783, 784, 785, 800, provides that the permittee must 816, 817, 824, and 827. complete the enhancement measures We are finalizing § 817.181 as Tennessee is the only federal program required under final paragraph (c)(2). proposed. We received no comments on state with active coal production and, Final paragraph (c)(2) requires that the this section. thus, is the only state in which the rule permittee implement fish and wildlife would have immediate impact. enhancement measures, as approved by Previous § 817.200: Interpretative Rules Related to General Performance Tennessee law already sharply restricts the regulatory authority in a permit most significant mining activities in or Standards revision, to offset material damage to a near perennial and intermittent streams, perennial or intermittent stream when We have removed and reserved which means that the provisions of correction of that damage is previous § 817.200 for the reasons proposed 30 CFR 780.28, 784.28, technologically and economically discussed in the preamble to the 816.57, and 817.57 pertaining to mining infeasible. We added final paragraph proposed rule.804 in, through, or near a perennial or (c)(2) and the enhancement provision in intermittent stream, are unlikely to have final paragraph (g)(3)(iii)(B)(2) to much effect on mining within that state. discourage abuse of this exception. 804 80 FR 44436, 44578 (Jul. 27, 2015). For example, section 69–3–108(f) of the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00246 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93311

Tennessee Code Annotated, as amended adopt counterpart revisions to its longer meets the requirements of by the Responsible Mining Act of 2009, regulations and other state program SMCRA or the federal regulations. prohibits issuance of any permit for the provisions and submit them for review IX. Procedural Matters and Required removal of coal by surface mining by OSMRE and the public as a program Determinations methods or for surface access points to amendment under 30 CFR 732.17. underground mining within 100 feet of Under 30 CFR 732.17(g)(9), no change to A. Regulatory Planning and Review the ordinary high water mark of a state law or regulations making up the (Executive Orders 12866 and 13563) stream. It also prohibits issuance of a approved program may take effect for Executive Order 12866 provides that permit that would allow placement of purposes of a state program until that the Office of Information and Regulatory overburden or waste from a surface change is approved by OSMRE as a Affairs (OIRA) will review all significant mine within that buffer zone. program amendment. rules. This final rule is considered a The federal rule adopted today will We will evaluate each state regulatory ‘‘significant regulatory action’’ under have some impacts in Tennessee, For program approved under 30 CFR part 806 Executive Order 12866 because it may instance, unlike the final rule, the state 732 and section 503 of the Act to raise novel legal or policy issues arising law does not apply to stream crossings, determine whether any changes in the out of legal mandates, the President’s to operations that improve the quality of state program are necessary to maintain priorities, or the principles set forth in stream segments previously disturbed consistency with federal requirements. the Executive Order and therefore is by mining, or to coal mine waste from If we determine that a state program subject to review by the Office of underground mines or coal preparation provision needs to be amended as a Management and Budget (OMB). plants. Likewise, unlike the federal rule, result of revisions to the corresponding OMB has also found that this rule is the state law does not apply to coal federal rule, we will notify the state in not likely to have an annual effect of transportation, storage, preparation and accordance with 30 CFR 732.17(d). 807 $100 million or more on the economy. processing, loading, and shipping Section 505(a) of the Act and 30 We prepared a final environmental operations when necessary because of CFR 730.11(a) provide that SMCRA and impact statement and regulatory impact site-specific conditions, provided that federal regulations adopted under analysis, which analyzed, among other those activities and operations do not SMCRA do not supersede any state law things, the costs and benefits of the rule, cause the loss of stream function. or regulation unless that law or including costs and benefits associated The following parts of the final rule regulation is inconsistent with the Act with environmental impacts, human also would apply to Indian lands by or the federal regulations adopted under 808 health impacts, energy market effects, virtue of cross-references in 30 CFR part the Act. Section 505(b) of the Act compliance costs, regulatory costs, coal 750: and 30 CFR 730.11(b) provide that we market welfare, economic activity, coal • 30 CFR 750.12(c)(1) includes the may not construe existing state laws and prices, electricity production, permitting provisions of parts 773, 774, regulations, or state laws and employment, and severance taxes.809 As 777, 779, 780, 783, 784, and 785 by regulations adopted in the future, as further discussed in those documents, cross-reference. There are no inconsistent with SMCRA or the federal the rule will not adversely affect in a substantive revisions to the exceptions regulations if these state laws and material way the economy, productivity, listed in 30 CFR 750.12(c)(2). regulations either provide for more competition, jobs, the environment, • 30 CFR 750.17 includes the bond stringent land use and environmental public health or safety, or state, local, or and insurance provisions of subchapter controls and regulations or have no tribal governments or communities. J (part 800) by cross-reference. counterpart in the Act or the federal Executive Order 13563 reaffirms the • 30 CFR 750.16 includes the regulations. principles of Executive Order 12866 performance standards of parts 816, 817, Under 30 CFR 732.15(a), each state while calling for improvements in the 824, and 827 by cross-reference. regulatory program must provide for the Nation’s regulatory system to promote The revisions to parts 700 and 701 state to carry out the provisions and predictability, to reduce uncertainty, also would apply to Indian lands by meet the purposes of the Act and its and to use the best, most innovative, virtue of 30 CFR 700.1(a), which implementing regulations. In addition, and least burdensome tools for prescribes that subchapter A of 30 CFR that rule requires that state laws and achieving regulatory ends. The chapter VII contains ‘‘regulatory regulations be in accordance with the Executive Order directs agencies to requirements and definitions generally provisions of the Act and consistent consider regulatory approaches that applicable to the programs and persons with the federal regulations. As defined reduce burdens and maintain flexibility covered by the Act.’’ After a tribe in 30 CFR 730.5, ‘‘consistent with’’ and and freedom of choice for the public receives approval of a tribal regulatory ‘‘in accordance with’’ mean that the where these approaches are relevant, program under section 710(j) of state laws and regulations are no less feasible, and consistent with regulatory SMCRA,805 we will treat tribe as a state stringent than, meet the minimum objectives. Executive Order 13563 for regulatory program purposes. Once requirements of, and include all emphasizes further that regulations that occurs, Part VIII of this preamble applicable provisions of the Act. The must be based on the best available (state regulatory programs) will apply in definition also provides that these terms science and that the rulemaking process place of Part VII of this preamble for any mean that the state laws and regulations must allow for public participation and Indian lands with an approved tribal are no less effective than the federal an open exchange of ideas. We have regulatory program. regulations in meeting the requirements developed this final rule in a manner of the Act. Under 30 CFR 732.17(e)(1), VIII. How would this rule affect state consistent with these requirements. we may require a state program regulatory programs? We have prepared a final RIA and amendment if, as a result of changes in submitted it to OMB. Based upon the Adoption of this final rule will not SMCRA or the federal regulations, the final RIA, we do not project that the have any immediate effect on approved approved state regulatory program no final rule will prohibit mining in excess state regulatory programs. Each state with primacy will need to propose and 806 30 U.S.C. 1253. 809 For a brief summary of the costs and benefits 807 30 U.S.C. 1255(a). associated with these categories, see RIA at ES–1– 805 30 U.S.C. 1300(j). 808 30 U.S.C. 1255(b). ES–4.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00247 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93312 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

of baseline conditions of any particular employees, we estimate compliance analysis recognizes that some coal reserves. Therefore, our estimates costs will total between zero and 0.1 administrative costs, such as increased do not include direct and indirect costs percent of revenues, depending on monitoring requirements, may vary associated with stranded coal reserves. mining region. The annual cost of the depending on the physical size of the final rule as a share of annual revenue mine. To the extent that small mines are B. Regulatory Flexibility Act (RFA) for a mine operated by a small entity is physically smaller, they may need to The final Regulatory Flexibility 1.2 percent. collect fewer samples than assumed in Analysis, which appears in Appendix A The largest affected group of small the standard mine used to estimate of our final RIA, considers the extent to coal mining entities is small surface costs. Additionally, in general, there are which the economic impacts resulting mines in Appalachia (311 mines). We likely to be fewer permits required of from this final rule could be borne by anticipate that this final rule will smaller operations. Thus, the final RIA small businesses. Because of the increase costs to small mines in estimates revenue impacts per business complexity of corporate structures in Appalachia with fewer than 20 by assuming a linear relationship exists the coal mining industry, it is difficult employees by approximately 1.1 percent between administrative costs and the to calculate the exact number of small of annual revenues for surface mines tons of coal produced by an entity. The entities that could be affected by this and 0.1 percent of annual revenues for final RIA also recognizes that small coal rule. The coal mining industry is underground mines. Average producers may be disproportionately continually changing and it is common compliance costs for small surface impacted by the final rule because they for large mining operators to merge with mines in Appalachia with 1,250 or may be more likely to lease the land that smaller operators, creating complicated fewer employees are estimated to be 1.1 they mine, operate with smaller business relationships between parent percent of annual revenues. Average budgets, and struggle to pay the corporations and subsidiaries. For this compliance costs for small underground minimum royalty payments, thus facing analysis, we use information from the mines in Appalachia with 1,500 or a greater risk of shutting down as coal Mine Safety and Health Administration fewer employees are estimated to be 0.1 production costs increase. Further, the about mine controllers because percent of annual revenues. final RIA recognizes that to the extent information on parent companies is not The estimated impacts of the stream that administrative costs are readily available. We then used two protection rule on small business independent of the scale of the affected methods for identifying small revenues have changed in the final RIA operations, revenue impacts could be controllers: as compared to the draft RIA for several larger for small entities than are Using the Small Business reasons. First, the estimated costs of the presented in this analysis. This aspect of Administration (SBA) definition of rule have been revised in the final RIA the analysis is caveated in Exhibits A– small mines,810 we estimate that there to reflect public comments as well as 9 through A–14 of the final RIA. were 97 small underground coal mining rule changes. Second, the SBA’s small entities, 199 small surface coal mining business thresholds for businesses in Description of Measures To Minimize entities, and 43 small anthracite coal the coal industry have been revised Economic Impacts on Small Entities mining entities producing coal in 2015. since development of the draft RIA. Section 507(c) of SMCRA 811 This is a total of 339 small entities in Specifically, the SBA thresholds for establishes the small operator assistance the industry, representing surface and underground mining were program (SOAP). To the extent that approximately 98 percent of all entities. 500 employees in the draft RIA, but the funds are appropriated for that program, Using the Mine Safety and Health SBA now splits the industry into three this provision of SMCRA authorizes us Administration definition of ‘‘small parts with separate thresholds: to provide small operators with training mines’’ (mines reporting less than 20 Bituminous coal and lignite surface and financial assistance in preparing employees), we estimate that there were mining has a threshold of 1,250 certain elements of permit applications. 167 small mines producing coal in 2015. employees, bituminous coal An operator is eligible to receive Using either definition of small entities, underground mining has a threshold of training and assistance if his or her nearly 90 percent of mines operated by 1,500 employees, and anthracite mining probable total annual production at all small entities were in the Appalachian has a threshold of 250 employees. While Basin. All of these entities are expected increasing the thresholds for these locations will not exceed 300,000 tons. 812 to be affected by this final rule. businesses results in more businesses Under section 507(c)(1) of SMCRA In particular, we estimate that being included as small entities, the and 30 CFR 795.9, the following permit compliance costs for surface mines with impacts per business are smaller as a application activities are eligible for fewer than 20 employees will total result. Third, as a consequence of financial assistance under SOAP: • between 0.1 and 3.1 percent of annual changes we made in response to public Preparation of the determination of revenues, depending on mining region. comments, we revisited the distribution the probable hydrologic consequences For surface mines reporting 1,250 or of administrative costs among entities. of mining, including collection and fewer employees, we estimate that In the draft RIA, we assumed that analysis of baseline data and any compliance costs will total between 0.1 administrative costs were evenly engineering analyses and designs and 3.1 percent of revenues, depending distributed across mining businesses, needed for the determination. on mining region. For underground regardless of size. This resulted in the • Collection and analysis of mines reporting 1,500 or fewer appearance of larger revenue impacts to geological data. smaller businesses associated with these • Development of cross-sections, 810 The Regulatory Flexibility Analysis has been costs. However, after reconsidering the maps, and plans. revised to reflect the recent changes to the Small • Collection of information on Business size thresholds identified by the Small various administrative cost components, Business Administration for coal mining we concluded that assuming a linear archaeological and historical resources companies. The Small Business Administration relationship between administrative and preparation of any related plans. thresholds for coal mining entities are as follows: costs and tons of coal produced is likely • Development of preblast surveys. Bituminous coal underground mining, 1,500 employees or less; bituminous coal and lignite to more accurately estimate the surface mining, 1,250 employees or less; anthracite administrative burden of the final rule. 811 30 U.S.C. 1257(c). mining, 250 employees or less. In section A.4 of the final RIA, the 812 30 U.S.C. 1257(c)(1).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00248 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93313

• Collection of site-specific that government regulations do not the Unfunded Mandates Reform Act, 2 information on fish and wildlife unnecessarily or disproportionately U.S.C. 1534, is not required. resources and preparation of fish and burden small entities. Small entities E. Executive Order 12630—Takings wildlife protection and enhancement include small businesses, small plans. governmental jurisdictions, and small Under the criteria in Executive Order These activities include many of the not-for-profit enterprises. As discussed 12630, we have made a determination new permit application requirements in in Part IX.B., OSMRE reviewed the that this final rule does not have this final rule; e.g., the expanded Small Business Administration (SBA) specific, identifiable takings baseline data requirements concerning and Mine Safety and Health implications. First, based upon the final hydrology, geology, and the biological Administration size standards for small RIA, we do not project that this final rule will prohibit mining in excess of condition of streams and the expanded mines. OSMRE concludes that the vast baseline conditions of any particular requirements for site-specific fish and majority of entities operating in the coal reserves. In Chapter 5 of the final wildlife protection and enhancement relevant sectors are small businesses as RIA we analyze the potential for coal plans. In addition, section 507(c)(2) of defined by the SBA.817 As such, the rule 813 reserves to be ‘‘stranded’’ or SMCRA provides that, as part of will likely affect a substantial number of SOAP, we must either provide training ‘‘sterilized.’’ We define stranded small entities. OSMRE finds, however, reserves as those that are technically or assume the cost of training eligible that the final rule will not have a small operators on the preparation of and economically minable, but significant economic impact on a unavailable for production given the permit applications and compliance substantial number of small entities. As with the regulatory program. Although new requirements and restrictions explained more in the Final Regulatory included in the final rule. Our analysis SOAP funding is available for activities Flexibility Analysis in the RIA, the associated with new permit application indicates that there will be no increase annual cost of the final rule as a share requirements and training, SMCRA does in stranded reserves, that is, the of annual revenue for mines operated by not authorize SOAP funding for engineering analyses determined that a small entity is 1.2 percent.818 This compliance costs associated with the the same volume of coal could be mined small change is not large enough to be expanded requirements for monitoring under the final rule as under the considered significant. groundwater, surface water, and the baseline. Second, the question of biological condition of streams. Although it is not required, OSMRE whether this final rule might affect a SOAP funding is subject to annual nevertheless chose to prepare an Initial compensable taking of a particular appropriation from the federal expense Regulatory Flexibility Analysis and property interest necessarily involves ad portion of the Abandoned Mine Final Regulatory Flexibility Analysis for hoc factual inquiries, including the Reclamation Fund established under this rule. Even though this rule is not economic impact of the final rule on a section 401(a) of SMCRA.814 Section economically significant, OSMRE particular claimant; the extent to which 401(c)(9) of SMCRA 815 caps SOAP believes it is prudent, and potentially this final rule might interfere with a funding at $10 million per year. Subject helpful to small entities, to provide an claimant’s reasonable, investment- to appropriations from Congress, we IRFA and FRFA for the rulemaking. backed expectations; and the character intend to provide financial assistance to This decision should not be viewed as of the government action. None of these small operators to develop permit a precedent for other rulemakings. factual inquiries is possible for a national rule of this scope, which does applications up to the $10 million cap. not specifically bar the mining of any We also intend to provide training to D. Unfunded Mandates Reform Act particular coal reserves. However, based assist small operators in meeting the As discussed in response to upon the final RIA, we have no basis to additional requirements of this final comments on the final RIA, Appendix I, believe that implementation of this final rule. SOAP assistance should this final rule will not impose an rule will result in compensable takings substantially reduce compliance costs unfunded mandate on state, local, or of any specific property interests. for small operators by offsetting the cost tribal governments or the private sector of most of the new permit application of $100 million or more per year. As F. Executive Order 13132—Federalism requirements. discussed in Chapter 9 of the final RIA, Executive Order 13132, entitled C. Small Business Regulatory the total aggregate annual compliance ‘‘Federalism’’ (64 FR 43255, August 10, Enforcement Fairness Act and related costs for this rule are on the 1999), requires that we develop a order of $81 million (when calculated at process to ensure ‘‘meaningful and The Regulatory Flexibility Act as a seven percent real rate of discount), timely input by State and local officials amended by the Small Business which includes the costs that state in the development of regulatory Regulatory Enforcement Fairness Act regulatory agencies are expected to policies that have federalism (SBREFA) generally requires an agency bear.819 More specifically, the increased implications.’’ Policies that have to prepare a regulatory flexibility federalism implications are defined in analysis of any rule subject to notice compliance and related costs for regulatory authorities as a result of this the Executive Order to include and comment rulemaking requirements regulations that have ‘‘substantial direct under the Administrative Procedure rule is only expected to be 820 effects on the States [in terms of Act, unless the head of the agency approximately $0.72 million. In addition, this final rule will not have a compliance costs], on the relationship certifies that the rule would not have a between the national government and significant economic impact on a significant or unique effect on state, 816 tribal, or local governments or the the States, or on the distribution of substantial number of small entities. power and responsibilities among the These statutes are designed to ensure private sector. Therefore, a statement containing the information required by various levels of government.’’ In addition, policies have federalism 813 30 U.S.C. 1257(c)(2). 814 30 U.S.C. 1231(a). 817 RIA, at Appendix A, p. A–15–A–16. implications if they preempt State law. 815 30 U.S.C. 1231(c)(9). 818 RIA, at Appendix A, p. A–27. In terms of compliance costs, the 816 5 U.S.C. 601. The exception is found in 5 819 RIA, at 9–2. Federal government must provide the U.S.C. 605(b). 820 RIA, at ES–31–ES–32. necessary funds to pay the direct costs

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00249 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93314 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

incurred by State and local governments of the Navajo Nation to initiate Executive Order 12866 meeting on the in complying with the regulation if the consultation on the stream protection stream protection rule, a Crow tribal rule: rulemaking and development of the representative indicated that the Tribe 1. Results in direct expenditures to DEIS. The Tribes in attendance wanted additional consultation on the state and local governments in aggregate requested that they be kept informed of stream protection rule. As a follow-up, of $25 million in any one year; or the rulemaking process and EIS we sent a letter to the Crow Tribe on 2. Results in expenditures to state and development. September 29, 2016, explaining that we local governments greater than one Our Director again met with tribal were in the late stages of rulemaking but percent of their annual revenues in any leaders in Washington, DC on December offering to meet with the Tribe at the one year. 1, 2011. At that time, we provided earliest opportunity. Having not As explained in Chapter 4.4 of the additional information on the elements received a response in over 30 days, we final RIA, and in our Paperwork under consideration for the alternatives proceeded to finalize the rule and its Reduction Act analysis in section J of in the DEIS and discussed the expected supporting documents. the Procedural Matters and Required impacts to the SMCRA regulatory Determinations of this preamble, we do On November 15, 2016, the day the program for Indian lands. From 2010– final environmental impact statement not anticipate that this rule will result 2016, the status of the stream protection in greater compliance costs for the was released to the public, we received rule was often included during our a letter from the Crow Tribe asking for States above thresholds listed above. As quarterly government-to-government consultation starting in January 2017. discussed in Part IV.C. of this preamble, meetings with the Crow Tribe, the Hopi On November 17, 2016, the Chairman of we also do not expect this rule to impact Tribe, and the Navajo Nation. Our the Crow Tribe requested a meeting the relationship between the Federal Western Regional Office conducts these with the Assistant Secretary for Land government and the States or on the quarterly consultation meetings with the and Minerals Management to discuss distribution of power and Tribes to discuss topics of interest such the rule and consultation with the Crow responsibilities among the various as our rulemakings activities, coal Tribe. This meeting took place the levels of government, as specified in the mining operations on Tribal lands, and following day on November 18, 2016, Order. development of Tribal primacy. On August 28, 2015, our Director sent which was also attended by the Director G. Executive Order 12988—Civil Justice letters to the Hopi and Crow Tribes and and Deputy Director of OSMRE. The Reform the Navajo Nation notifying them of the tribe did not raise any new issues at the Executive Order 12898, ‘‘Federal publication of our proposed stream meeting that had not already been Actions to Address Environmental protection rule, DEIS, and DRIA. The considered. Additionally, we informed Justice in Minority Populations and letters again included an offer to meet the Tribe that we did consider the Low-Income Populations’’ (February 11, with the Tribes and further discuss the comments of the Montana Department 1994), requires federal agencies to proposed rule and DEIS. On November of Environmental Quality, Cloud Peak identify disproportionately large and 6, 2015, we requested government-to- Energy, and Westmoreland Coal adverse human health or environmental government consultation with the Hopi Company, which the Tribe indicated effects of their programs, policies, and Tribe, Crow Tribe, and Navajo Nation. that they concurred with and adopted activities on minority and low-income At the request of the Navajo Nation, pending further review. We also populations. Among other actions, OSMRE Director Joseph Pizarchik committed to the Chairman that we agencies are directed to improve conducted government-to-government would continue to work with and meet research and data collection regarding consultation with Navajo Nation Tribal with the Tribe during implementation of health and environmental effects in leaders in Window Rock, Arizona on the rule. minority and low-income communities. January 13, 2016. During the meeting In addition, we sent letters to the We provide this analysis in the final EIS the Navajo Tribal leaders were briefed Southern Ute Indian Tribe, Ute for the final rule in the Environmental on the proposed stream protection rule. Mountain Ute Tribe, and Northern Justice discussion at section 4.4. On May 4, 2016, we offered to continue Cheyenne Tribe on March 7, 2016 government-to-government consultation H. Executive Order 13175— requesting government-to-government on an ongoing basis at the request of the consultation on the stream protection Consultation and Coordination With Navajo Nation. A consultation meeting Indian Tribal Governments rule. The three Tribes did not respond also occurred with the Navajo Nation on to these requests. Where coal extraction occurs on June 15, 2016, during which the Navajo We are committed to continuing Indian lands, we are the SMRCA Nation indicated its support for the working and meeting with the Tribes regulatory authority. Therefore, the final letter sent by the western states and that during implementation of the rule. rule has the potential to affect Indian it had no further comments on the tribes. Consistent with Executive Order proposed stream protection rule. We I. Executive Order 13211—Actions 13175, the President’s memorandum of also consulted with the Hopi Tribe on Concerning Regulations that April 29, 1994, ‘‘Government-to- June 28, 2016, at which time the Tribal Significantly Affect Energy Supply, Government Relations with Native representative indicated that the Hopi Distribution, or Use. American Tribal Governments’’ (59 FR Tribe had no further comments on the This final rule is not a significant 22951), the Department of the Interior proposed stream protection rule. Policy on Consultation with Indian The Crow Tribe did not request energy action under Executive Order Tribes (Dec. 1, 2011), and 512 additional consultation in response to 13211. As discussed below and in the Departmental Manual 2, we evaluated our offer on November 6, 2015, or final RIA, the revisions contained in this possible effects of the rule on federally during subsequent government-to- final rule will not have a significant recognized Indian tribes and engaged in government quarterly meetings held effect on the supply, distribution, or use government-to-government with the Tribe on January 13, 2016 and of energy. consultations. On May 12, 2010, our May 24, 2016, when the stream The Office of Management and Budget Director met with the Chairmen of the protection rule was discussed. On has identified nine outcomes that may Hopi and Crow Tribes and the President September 28, 2016, during an constitute ‘‘a significant adverse

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00250 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93315

effect.’’ 821 The three outcomes that are to substitute for the initial supply of hours that industry and state relevant to this final rule are: (1) A reduction over a period of time as governments would need to comply reduction in coal production in excess alternative investments are made. In the with each element of the rule. of five million tons per year, (2) a case of the United States power In addition, we estimated the total reduction in electricity production in generating sector and the increasingly annual non-hour cost burden to excess of one billion kilowatt-hours per diverse array of energy inputs, higher respondents. These non-wage costs year or in excess of 500 megawatts cost of one form of electricity include items such as equipment (MW) of installed capacity,822 and (3) an generation, such as coal, will result in required for monitoring, sampling, increase in the cost of energy an increase in use of an alternative form drilling and testing, operation and production in excess of one percent. of electricity generation, such as natural maintenance, and purchase of services. This final rule may affect the cost of gas. Due to the substitution of We calculated the total estimated coal production, the amount of alternative forms of generation for coal, burden for two respondent groups, mine electricity produced, and the cost of in the long-term there is a negligible operators and state regulatory energy production, but as explained effect on the supply and demand for authorities, on an annual basis averaged below, the increases are anticipated to electricity as a result of the final rule. over a 3-year period. be less than what would constitute ‘‘a There is some long-term cost involved We sought comments from the public significant adverse effect.’’ in moving from one fuel source to on the information collection activities In the final RIA, we analyzed the another due to additional capital for our regulations that would be effects of the final rule on coal expenditures. This cost is ultimately revised by the proposed stream production and electricity production. reflected in the price of electricity. protection rule. Although no comments Regarding coal production, this final Thereby, the final rule will result in a were submitted to the information rule is not expected to result in a slightly elevated electricity price that collection clearance officer during the reduction in national coal production in will translate to an expected decrease in public comment period a number of excess of five million tons per year. The electricity consumption by 78 million comments were submitted regarding greatest single-year reduction in kilowatt hours. In the United States, burden (hours and non-wage costs) domestic coal production is expected to reduced electricity consumption has which we considered in preparing this occur in 2021, reaching 2.3 million tons. typically been achieved by adoption of final rule and associated information The change in production from baseline more energy efficient practices such as collection clearance packages. conditions over the period of this purchases of energy efficient appliances analysis is on average 0.7 million tons, by households. Summary of Burden (Costs) Calculated significantly smaller than the 5 million This final rule will introduce a by Part for the Stream Protection Rule tons that is considered a significant number of new requirements that may This final rule contains collections of adverse effect. increase the overall costs of energy information that we have submitted to This final rule may also affect levels produced by coal. Compliance costs are the Office of Management and Budget of domestic electricity production by estimated to make up less than one (OMB) for review and were approved in influencing the costs of production. By percent of total coal production costs, accordance with the Paperwork increasing the costs of coal production, nationally, in every year within the Reduction Act, 44 U.S.C. 3501, et seq. the final rule may lead to subsequent study period. On average, compliance These collections are contained in 30 increases in the price of coal paid by costs are expected to account for 0.18 CFR parts 779, 780, 783, 784, 785, 800, power plants. Because coal makes up a percent of total coal production costs, 816, and 817. We also estimated significant part of the domestic energy nationally. The final rule may result in programmatic changes where burden is mix, a change in the price of coal is an increase in the price of coal, which being moved between parts. expected to be reflected in domestic may increase the costs of electricity Title: 30 CFR parts 779 and 783— electricity prices, reducing market production nationwide. We do not Surface and Underground Mining demand for electricity. The final RIA expect that this final rule will result in Permit Applications—Minimum uses the Energy Ventures Associates an increase in electricity production Requirements for Information on coal market model to predict the costs exceeding one percent over the 21- Environmental Resources and changes in electricity supply and year study period. Instead, as explained Conditions. demand resulting from the final rule. in the final RIA, on average, this final OMB Control Number: 1029–0035. Electricity is an essential service in the rule is expected to increase electricity Summary: Applications for surface United States industrial, commercial, costs nationwide by less than .01 and underground coal mining permits and residential sectors. Typically a percent. are required to provide adequate descriptions of the environmental supply reduction of an essential good or J. Paperwork Reduction Act service is followed by an immediate resources that may be affected by price spike. The extent and duration of Under 5 CFR part 1320, the rules proposed surface mining activities. the price spike depends on the implementing the information Without this information, OSMRE and economic viability of alternative inputs collection aspects of the Paperwork state regulatory authorities could not Reduction Act, a federal agency must approve permit applications for surface 821 OMB 2001. Memorandum for Heads of estimate the burden imposed on the coal mines and related facilities. Executive Department Agencies, and Independent public by any proposed collection of Title: 30 CFR part 780—Surface Regulatory Agencies, Guidance For Implementing information. This burden consists of Mining Permit Applications—Minimum E.O. 13211, M–01–27. http://www.whitehouse.gov/ ‘‘the total time, effort, or financial omb/memoranda/m01–27.html (last accessed Nov. Requirements for Operation and 1, 2016). resources expended by persons to Reclamation Plans. 822 Installed capacity is the ‘‘total manufacturer- generate, maintain, retain, or disclose or OMB Control Number: 1029–0036. rated capacity for equipment such as turbines, provide information to or for a Federal Summary: Sections 507 and 508 of the generators, condensers, transformers, and other agency.’’ Act contain permit application system components’’ and represents the maximum requirements for surface coal mining flow of energy from the plant or the maximum We estimated the aggregate burden (in output of the plant. Final Regulatory Impact hours) for information collection under activities, including a requirement that Analysis—Chapter 9, page 3. the final rule by calculating the number the application include an operation

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00251 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93316 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

and reclamation plan. The regulatory Title: 30 CFR part 785—Requirements Standards—Surface and Underground authority uses this information to for Permits for Special Categories of Mining Activities. determine whether the proposed surface Mining. OMB Control Number: 1029–0047. coal mining operation will achieve the OMB Control Number: 1029–0040. Summary: Sections 515 and 516 of environmental protection requirements Summary: Sections 507, 508, 510, SMCRA provide that permittees of the Act and regulatory program. 515, 701, and 711 of SMCRA require conducting coal mining and reclamation Without this information, OSMRE and applicants for special categories of operations must meet all applicable state regulatory authorities could not mining activities to provide performance standards of the regulatory approve permit applications for surface descriptions, maps, plans, and data program approved under the Act. The coal mines and related facilities. relating to the proposed activity. regulatory authority uses the Without this information, OSMRE and information collected to assist in Title: 30 CFR part 784—Underground state regulatory authorities could not evaluating compliance with this Mining Permit Applications—Minimum approve permit applications for special requirement. Requirements for Operation and categories of mining activities. Reclamation Plans. Title: 30 CFR part 800—Performance The table below summarizes estimated information collection OMB Control Number: 1029–0039. Bond, Financial Assurance, and Insurance Requirements for Surface burdens for our regulations as revised Summary: Sections 507(b), 508(a), Coal Mining and Reclamation by this final rule. We calculated the and 516(b) and (d) of SMCRA require Operations. total estimated burden for two applicants for permits for underground OMB Control Number: 1029–0043. respondent groups, mine operators and coal mines to prepare and submit Summary: OSMRE and state state regulatory authorities, on an operation and reclamation plans for coal regulatory authorities use the annual basis averaged over a 3-year mining activities as part of the information collected under 30 CFR part period. The table does not include application. Regulatory authorities use 800 to ensure that persons conducting operational or other costs that do not this information to determine whether or planning to conduct surface coal involve a collection of information. For the plans will achieve the reclamation mining and reclamation operations post ease of understanding, the following and environmental protection and maintain a performance bond or table depicts burden increases as a requirements of the Act and regulatory financial assurance in a form and result of the rule and total burden by 30 program. Without this information, amount adequate to guarantee CFR part after implementation of the OSMRE and state regulatory authorities fulfillment of all reclamation rule, but not programmatic changes could not approve permit applications obligations. where burden is moved between 30 CFR for underground coal mines and related Title: 30 CFR parts 816 and 817— parts or between sections, which is less facilities. Permanent Program Performance meaningful to respondents.

Total Estimated Estimated Estimated Total estimated Estimated oper- burden non-wage 30 CFR part Type of respondent annual burden hour burden hours ator non-wage costs (all non- responses changes due to (all burden hours cost changes due wage costs by 30 SPR by 30 CFR part) to SPR CFR part)

779 and 783 ...... Operators ...... 1,181 6,853 141,844 $41,590 $41,590 SRA 823 ...... 1,166 1,888 8,718 0 0 780 ...... Operators ...... 2,604 19,5340 58,559 6,444,960 7,474,551 SRA ...... 2,582 9,135 25,764 0 0 784 ...... Operators ...... 776 7,562 18,500 4,655,868 5,081,139 SRA ...... 798 2,757 6,533 0 0 785 ...... Operators ...... 187 400 12,240 0 0 SRA ...... 187 80 5,720 0 0 800 ...... Operators ...... 5,398 28,852 74,751 6,000 1,223,971 SRA ...... 13,859 4,818 104,473 10,817 291,158 816 and 817 ...... Operators ...... 469,455 136,578 1,742,515 10,513,667 33,364,075 SRA ...... 169 0 4,424 0 0

Subtotals ...... Operators ...... 479,601 199,779 2,048,409 21,662,085 47,185,326 SRA ...... 18,761 18,678 155,632 $10,817 $291,158

Grand totals ...... 498,362 218,457 2,204,041 21,672,902 47,476,484

Under the Paperwork Reduction Act, No person is required to respond to an ways to enhance the quality, utility, and we must obtain OMB approval of all information collection request unless clarity of the information to be information and recordkeeping the forms and regulations requesting the collected; and ways to minimize the requirements. In accordance with 44 information have currently valid OMB burden of collection on respondents, to U.S.C. 3507(d), we submitted the control numbers. These control numbers the Information Collection Clearance information collection and appear in §§ 779.10, 780.10, 783.10, Officer, Office of Surface Mining recordkeeping requirements of 30 CFR 784.10, 785.10, 800.10, 816.10, and Reclamation and Enforcement, 1951 parts 779, 780, 783, 784, 785, 800, 816, 817.10. Constitution Ave. NW., Room 203 SIB, and 817 to OMB for review, and OMB You should direct any comments on Washington, DC 20240. approved them. the accuracy of our burden estimates;

823 State Regulatory Agency (SRA).

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00252 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93317

K. National Environmental Policy Act available science in order to avoid or process identified in the new 2016 The revisions to our regulations minimize these negative impacts, and Biological Opinion and accompanying constitute a major Federal action provide regulatory certainty to industry. Memorandum of Understanding (MOU) affecting the quality of the natural and Further evidence is available through or a habitat conservation plan under human environment under the National several decades of our observing the Section 10 of the ESA in order to Environmental Policy Act of 1969 impacts of coal mining operations. In demonstrate ESA compliance. As noted elsewhere in this preamble, (NEPA). Therefore, we prepared a final addition since our earlier rulemakings, FEIS, and the 2016 Biological Opinion, Environmental Impact Statement (FEIS) there have been significant significant new information has become pursuant to section 102(2)(C) of NEPA, improvements in technologies and available that reveals that surface coal 42 U.S.C. 4332(2)(C), the Council on methods for prediction, prevention, mitigation, and reclamation of coal mining operations affect listed and Environmental Quality’s (CEQ) mining impacts on hydrology, streams, proposed species and proposed and implementing regulations (40 CFR part fish, wildlife, and related resources. designated critical habitats in a manner 1500 through 1508), and the (See Section II in this preamble and and to an extent not considered in the Department’s implementing regulations Chapter 1 in the FEIS). 1996 Biological Opinion, independently (43 CFR part 46). The FEIS, which is Additional information about the triggering reinitiation of ESA section 7 entitled ‘‘Stream Protection Rule; Final alternatives considered and the consultation on the 1996 Biological Environmental Impact Statement,’’ is Preferred Alternative selected may be Opinion. Therefore, even without this available on the Internet at reviewed in the FEIS. The evaluation of rulemaking, OSMRE would have been www.regulations.gov. The Docket ID alternatives, including the No Action required to reinitiate consultation on the number is OSM–2010–0021. A copy of Alternative, and decision to implement continuation of existing permits and the the FEIS is also available for inspection the Preferred Alternative is documented approval and conduct of future surface as part of the administrative record for in the Record of Decision, which is coal mining and reclamation operations this rulemaking in the South Interior available on the Internet at under both state and federal regulatory Building, Room 101, 1951 Constitution www.regulations.gov. The Docket ID programs adopted pursuant to SMCRA. Avenue NW., Washington, DC 20240, number is OSM–2010–0021. A copy of Further, any failure by OSMRE to and various other OSMRE offices, and it the Record of Decision is also available ensure full implementation of this is available on our Web site at: for inspection as part of the rulemaking in the Federal programs and www.osmre.gov. administrative record for this all approved state regulatory programs We, along with the U.S. rulemaking in the South Interior would require OSMRE to reinitiate Environmental Protection Agency, Building, Room 101, 1951 Constitution consultation on its surface coal mining published notices of availability of the Avenue NW., Washington, DC 20240, program. FEIS on November 16, 2016, 81 FR and it is available on our Web site at: Because full implementation of the 80592 and 81 FR 80664, respectively. In www.osmre.gov. final rule could potentially take several accordance with 40 CFR 1506.10(b)(2), a years under SMCRA’s cooperative final decision on the proposed action L. Consultation Under the Endangered federalism framework, OSMRE included was not made until at least thirty days Species Act of 1973 in its ESA section 7 consultation an after publication of the U.S. We completed formal Section 7 evaluation of the potential impacts to Environmental Protection Agency’s consultations with the U.S. Fish and species resulting from the continuation notice. Wildlife Service on the continuation of of existing permits approved under the The purpose of the proposed action is existing permits and the approval and 1996 Biological Opinion and the to update and revise our regulations to conduct of future surface coal mining approval and conduct of future surface provide a better balance between the and reclamation operations under both coal mining and reclamation operations Nation’s need for coal as an essential state and federal regulatory programs by states under the existing regulations energy source with the need to prevent adopted pursuant to SMCRA, as between the effective date of the stream or mitigate adverse environmental modified by the final rule. OSMRE and protection rule and the time when states effects of present and future surface coal the U.S. Fish and Wildlife Service agree update their programs to be consistent mining operations. The proposed action that, due to the broad scope of this with OSMRE’s stream protection rule will apply to both surface mines and rulemaking and consultation, and and all program amendments are underground mines and will protect, because the action under consultation approved by OSMRE. Therefore, the minimize, and mitigate adverse impacts sufficiently modifies the OSMRE’s scope of the consultation includes direct on surface water, groundwater, and site regulations consulted on under the 1996 implementation and enforcement of the productivity, with particular emphasis Biological Opinion, that this section 7 final rule in federal program states, on protecting or restoring streams, consultation supersedes the 1996 oversight of state programs under the aquatic ecosystems, riparian habitats Biological Opinion for all future existing regulations until those states and corridors, native vegetation, and the permitting actions. While the incidental amend their approved programs to be ability of mined land to support the uses take statement accompanying the 1996 consistent with the final stream that it was capable of supporting before Biological Opinion will remain valid for protection rule, oversight of state mining. all existing surface coal mining and programs as modified to be consistent Despite the enactment of SMCRA and reclamation permits that complied with with the final stream protection rule, the promulgation of federal regulations the terms and conditions of the 1996 including OSMRE’s oversight of implementing the statute, scientific Biological Opinion to obtain incidental compliance with requirements related to studies published since the adoption of take coverage prior to the effective date the protection and enhancement of our previous regulations indicate that of the stream protection rule, any new proposed or listed species and proposed surface coal mining operations continue permits, or revisions to previously or designated critical habitats. to have significant negative impacts on approved permits where a revision Through the process of completing streams, fish, and wildlife, which has would change the manner or extent of this section 7 consultation, OSMRE and created a need for us to update and effects to species, would need to the U.S. Fish and Wildlife Service revise the regulations to reflect the best complete the technical assistance entered into a MOU to improve

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00253 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93318 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

interagency coordination and under which this consultation would be Schuylkill River where it would enter cooperation to ensure that proposed, reinitiated. the Delaware River at Philadelphia at threatened, and endangered species and We have determined that adoption of mile 92.5 of the Delaware River. Given proposed and designated critical habitat the final rule would have no effect on the dilution that would take place are adequately protected for all surface species under the jurisdiction of the throughout these distances, we coal mining and reclamation permitting National Marine Fisheries Service. As determined that there would be no actions, including exploration discussed below, no listed or proposed effect on Atlantic sturgeon or shortnose operations, initial permit issuance, species under the National Marine sturgeon from mining in the anthracite renewals, and significant revisions. The Fisheries Service’s jurisdiction occur in region of Pennsylvania. MOU complements the U.S. Fish and the study area or in such proximity to The commenter also stated there Wildlife Service’s 2016 programmatic it that there would be any direct or could be effects to the Carolina distinct Biological Opinion. The MOU indirect effects on them from this population segment of the Atlantic specifically addresses the permit review action. sturgeon from potential mining in North and approval processes when proposed One federal agency specifically asked Carolina. There has been no coal mining or listed species or proposed or if we gave consideration to the impact in North Carolina since 1953. North designated critical habitats are involved, upon salmon near Tyonek, Alaska. We Carolina is not a part of the action area also referred to as the technical did, and there are no listed salmon for this rulemaking and no mining is assistance process, and provides species in Alaska that would be expected to occur there. Therefore, we detailed dispute resolution procedures impacted by mining activity. have determined that this action will should there be disagreement between Furthermore, in response to the have no effect on the Carolina distinct the SMCRA regulatory authority and the proposed rule, another commenter population segment of Atlantic relevant U.S. Fish and Wildlife Service stated that we must consult with the sturgeon. office under the final 2016 National Marine Fisheries Service on The commenter also stated that this programmatic Biological Opinion for the this rule. The commenter also stated rulemaking may have effects on the rule. that because of the potential impacts to lower Rio Grande River and the Gulf of The U.S. Fish and Wildlife Service species under the National Marine Mexico. The National Marine Fisheries issued a programmatic Biological Fisheries Service’s jurisdiction, Service provided us with a list of Opinion finding that OSMRE’s direct regulatory authorities must include the species that may be potentially affected enforcement of the federal regulatory National Marine Fisheries Service in in the Gulf of Mexico. The list included program, approval and conduct of consultations pursuant to section 7 of the following sea turtle and whale surface coal mining and reclamation the Endangered Species Act.824 species: North Atlantic distinct operations by primacy states, and Specifically, the commenter alleged that population segment of the green turtle, oversight and enforcement of those state the shortnose sturgeon and the New the leatherback sea turtle, the northwest programs, as modified by the final rule York Bight distinct population segment Atlantic distinct population segment of and associated MOU, is not likely to of Atlantic sturgeon are potentially the loggerhead sea turtle, the hawksbill jeopardize the continued existence of impacted by drainage from coal mining sea turtle, the Kemp’s ridley sea turtle, proposed and listed species and is not in the anthracite region of Pennsylvania the humpback whale, the sei whale, the likely to destroy or adversely modify that flows into the Delaware River. The fin whale, and the blue whale. None of proposed or designated critical habitat. only drainage from coal mining in the these species occur in the action area in Compliance with the terms and anthracite region of Pennsylvania that Texas, nor do they occur in the lower conditions of the 2016 programmatic flows into the Delaware River originates Rio Grande River. These obligate marine Biological Opinion and the MOU is only in Luzerne County and Schuylkill species (sea turtles and whales) occur in required where a proposed surface coal County. We conducted a geographic saltwater in the Gulf of Mexico. They mining operation may affect proposed information systems analysis of the never enter freshwater and do not occur or federally-listed species or proposed distance this drainage must travel before in the area that this rule will impact. or designated critical habitat and the reaching the Delaware River. Drainage Because coal mining occurs in inland proposed operation chooses to obtain from Luzerne County, after traveling areas in this region, drainage from incidental take coverage through through smaller tributaries, flows first mining would have to travel down compliance with the 2016 programmatic into the Lehigh River. It then travels 63 tributaries, into streams, then into large Biological Opinion. Alternatively, miles down the river before reaching the rivers and finally out into the Gulf of where a proposed operation may impact Delaware River at Easton, Pennsylvania Mexico before any of the marine species proposed or federally-listed species or at approximately mile 183.5 of the could potentially be encountered. We proposed or designated critical habitat, Delaware River. Atlantic sturgeons are conducted a geographic information the applicant may pursue ESA believed to spawn between the salt front system analysis of the drainage distance compliance through a process under of estuaries and the fall line of major from potentially mineable coal to the section 10 or may modify its project so rivers. The fall line of the Delaware Gulf Coast. The minimum drainage that it no longer has the potential to River is at Trenton, New Jersey, at distance from potentially mineable coal impact species or critical habitat. approximately Delaware River mile 136. to the Gulf Coast is 80 river miles. We Further details on this consultation Shortnose sturgeons are known to determined that the long distance, and can be found in the Biological spawn in the Delaware River between the volume and chemistry of the Assessment and Biological Opinion for miles 133 and 145 of that river. Thus, receiving waters means that there would the final rule, available at this drainage would have to travel over be no detectable residue of the drainage www.osmre.gov and on regulations.gov 100 miles before it reached a point by the time the drainage encounters any under the stream protection rule docket. where Atlantic sturgeon or shortnose threatened or endangered species. These documents contain the final sturgeon may be present. Drainage from Therefore, there would be no effect on species lists on which the consultations Schuylkill County would flow the marine species cited by the were based, terms and conditions that approximately 118 miles down the commenter. must be followed to obtain incidental In conclusion, we determined that take coverage, as well as the terms 824 16 U.S.C. 1536. this rulemaking will have no effect on

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00254 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93319

species under the jurisdiction of the 30 CFR Part 816 decision in accordance with the National Marine Fisheries Service. Environmental protection, applicable regulatory program to release Therefore, it is not necessary to consult Incorporation by reference, Reporting the performance bond or financial with the National Marine Fisheries and recordkeeping requirements, assurance fully. Service under the Endangered Species Surface mining (3) Reassertion of jurisdiction. Act. Following a termination under 30 CFR Part 817 paragraph (d)(1) or (2) of this section, M. Data Quality Act Environmental protection, the regulatory authority must reassert In developing this final rule, we did Incorporation by reference, Reporting jurisdiction under the regulatory not conduct or use a study, experiment, and recordkeeping requirements, program over a site or operation or survey requiring peer review under Underground mining whenever— the Data Quality Act (Pub. L. 106–554). (i) Conditions develop after 30 CFR Part 824 List of Subjects termination of jurisdiction that would Environmental protection, Surface constitute a violation of the reclamation 30 CFR Part 700 mining requirements of the applicable regulatory program; Administrative practice and 30 CFR Part 827 procedure, Reporting and recordkeeping (ii) The conditions described in requirements, Surface mining, Environmental protection, Surface paragraph (d)(3)(i) of this section are the Underground mining mining, Underground mining. result of surface coal mining operations for which jurisdiction was terminated; Janice M. Schneider, 30 CFR Part 701 and Assistant Secretary, Land and Minerals (iii) The written determination or Law enforcement, Surface mining, Management. Underground mining bond release referred to in paragraph For the reasons set forth in the (d)(1) or (2) of this section was based 30 CFR Part 773 preamble, the Department amends 30 upon fraud, collusion, or the intentional CFR parts 700, 701, 773, 774, 777, 779, Administrative practice and or unintentional misrepresentation of a 780, 783, 784, 785, 800, 816, 817, 824, procedure, Reporting and recordkeeping material fact. The intentional or and 827 as set forth below. requirements, Surface mining, unintentional misrepresentation of a Underground mining PART 700—GENERAL material fact includes the discovery of a discharge requiring treatment after 30 CFR Part 774 ■ 1. The authority citation for part 700 termination of jurisdiction, provided Reporting and recordkeeping continues to read as follows: that the conditions creating the need for requirements, Surface mining, treatment are the result of the mining Authority: 30 U.S.C. 1201 et seq. Underground mining operation. ■ 2. In § 700.11, revise the section (4) Exception for certain underground 30 CFR Part 777 heading and paragraph (d) to read as mining requirements. The provisions of Reporting and recordkeeping follows: paragraphs (d)(1) and (2) of this section requirements, Surface mining, § 700.11 What coal exploration and coal do not apply to the domestic water Underground mining mining operations are subject to our rules? supply replacement requirements of 30 CFR Part 779 * * * * * § 817.40 of this chapter or to the (d) Termination and reassertion of structural damage repair or Environmental protection, Reporting jurisdiction—(1) Termination of compensation requirements of and recordkeeping requirements, jurisdiction for initial regulatory § 817.121(d) of this chapter. Surface mining program sites. A regulatory authority PART 701—PERMANENT 30 CFR Part 780 may terminate its jurisdiction under the REGULATORY PROGRAM Incorporation by reference, Reporting initial regulatory program over a and recordkeeping requirements, completed surface coal mining and ■ 3. The authority citation for part 701 Surface mining reclamation operation, or portion continues to read as follows: thereof, when the regulatory authority 30 CFR Part 783 determines in writing that all Authority: 30 U.S.C. 1201 et seq. Environmental protection, Reporting requirements imposed under subchapter ■ 4. Amend § 701.5 as follows: and recordkeeping requirements, B of this chapter have been successfully ■ a. Revise the definitions for ‘‘Acid Underground mining completed. drainage’’ and ‘‘Adjacent area’’. (2) Termination of jurisdiction for ■ b. Add in alphabetical order a 30 CFR Part 784 permanent regulatory program sites. A definition for ‘‘Angle of dewatering’’; Reporting and recordkeeping regulatory authority may terminate its ■ c. Revise the definition for requirements, Underground mining jurisdiction under the permanent ‘‘Approximate original contour’’; regulatory program over a completed ■ d. Add in alphabetical order 30 CFR Part 785 surface coal mining and reclamation definitions for ‘‘Backfill’’, ‘‘Bankfull Reporting and recordkeeping operation, or portion thereof, when— stage’’, and ‘‘Biological condition’’; requirements, Surface mining, (i) The regulatory authority ■ e. Revise the definition for Underground mining determines in writing that all ‘‘Cumulative impact area’’; requirements imposed under the ■ f. Add in alphabetical order a 30 CFR Part 800 applicable regulatory program have definition for ‘‘Ecological function’’; Insurance, Reporting and been successfully completed; or ■ g. Revise the definitions for recordkeeping requirements, Surety (ii) Where a performance bond or ‘‘Ephemeral stream’’ and ‘‘Excess spoil’’; bonds, Surface mining, Underground financial assurance was required, the ■ h. Add in alphabetical order mining regulatory authority has made a final definitions for ‘‘Fill’’ and ‘‘Form’’;

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00255 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93320 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

■ i. Remove the definitions for ‘‘Fugitive resource or resources addressed by a does not include excess spoil fills and dust’’ and ‘‘Ground water’’; regulation in which the term ‘‘adjacent coal refuse piles. ■ j. Add in alphabetical order a area’’ appears will determine the size * * * * * definition for ‘‘Groundwater’’; and other dimensions of the adjacent Backfill, when used as a noun, means ■ k. Remove the definition for area for purposes of that regulation. the spoil and waste materials used to fill ‘‘Highwall remnant’’; (ii) In the context of the Endangered the void resulting from an excavation ■ l. Revise the definition for Species Act of 1973, 16 U.S.C. 1531 et created for the purpose of extracting ‘‘Hydrologic balance’’; seq., the term adjacent area includes coal from the earth. When used as a ■ m. Add in alphabetical order a those areas outside the proposed or verb, the term refers to the process of definition for ‘‘Hydrologic function’’; actual permit area where surface coal filling that void. The term also includes ■ n. Revise the definition for mining operations or underground all spoil and waste materials used to ‘‘Intermittent stream’’; mining activities may affect a species restore the approximate original ■ o. Add in alphabetical order a listed or proposed for listing as contour. definition for ‘‘Invasive species’’: endangered or threatened under that Act Bankfull stage means the water level ■ p. Revise the definitions for ‘‘Land or designated or proposed critical at which a stream, river, or lake begins use’’ and ‘‘Material damage’’; habitat under that Act. ■ to overflow its natural banks and enter q. Add in alphabetical order a (2) Underground mines. For the active floodplain, with the exception definition for ‘‘Material damage to the underground mines, the adjacent area of an entrenched stream, river, or lake, hydrologic balance outside the permit includes, at a minimum, the area in which case bankfull stage is the area’’; overlying the underground workings highest scour line, bench, or top of the ■ r. Revise the definition for plus the area within a reasonable angle point bar. ‘‘Mountaintop removal mining’’; of dewatering from the perimeter of the * * * * * ■ s. Add in alphabetical order a underground workings. definition for ‘‘Native species’’; Biological condition refers to the type, (3) Underground mine pools. For all diversity, distribution, and abundance ■ t. Revise the definition for ‘‘Occupied operations, the adjacent area also residential dwelling and structures of aquatic organisms and communities includes the area that might be affected found in surface water bodies, including related thereto’’; physically or hydrologically by the ■ streams. u. Add in alphabetical order dewatering of existing mine pools as definitions for ‘‘Ordinary high water part of surface or underground mining * * * * * mark’’ and ‘‘Parameters of concern’’; operations, plus the area that might be Cumulative impact area means an ■ v. Revise the definition for ‘‘Perennial affected physically or hydrologically by area that includes the— (1) Actual or proposed permit area. stream’’; mine pools that develop after cessation ■ (2) HUC–12 (U.S. Geological Survey w. Add in alphabetical order a of mining activities. definition for ‘‘Premining’’; 12-digit Watershed Boundary Dataset) ■ x. Revise the definition for * * * * * watershed or watersheds in which the ‘‘Reclamation’’; Angle of dewatering means the angle actual or proposed permit area is ■ y. Add in alphabetical order a created from a vertical line drawn from located or a differently-sized watershed definition for ‘‘Reclamation plan’’; and the outer edge or boundary of high- adequate for purposes of preparation of ■ z. Revise the definitions for extraction underground mining the cumulative hydrologic impact ‘‘Renewable resource lands’’, workings and an oblique line drawn assessment, as determined by the ‘‘Replacement of water supply’’, and from terminus of the vertical line at the regulatory authority. ‘‘Temporary diversion’’. mine floor to the farthest expected (3) Any other area within which The revisions and additions read as extent that the mining will cause impacts resulting from an actual or follows: dewatering of groundwater or surface proposed surface or underground coal water. mining operation may interact with the § 701.5 Definitions. * * * * * impacts of all existing and anticipated Acid drainage or acid mine drainage Approximate original contour means surface and underground coal mining means water with a pH of less than 6.0 that surface configuration achieved by on surface-water and groundwater and in which total acidity exceeds total backfilling and grading of the mined systems, including the impacts that alkalinity that is discharged from an area so that the reclaimed area closely existing and anticipated mining will active, inactive, or abandoned surface resembles the general surface have during mining and reclamation coal mining and reclamation operation configuration of the land within the until final bond release. At a minimum, or from an area affected by surface coal permit area prior to any mining existing and anticipated mining must mining and reclamation operations. activities or related disturbances and include: * * * * * blends into and complements the (i) The proposed operation; Adjacent area means— drainage pattern of the surrounding (ii) All existing surface and (1) Basic definition for all operations terrain. All highwalls and spoil piles underground coal mining operations; and all resources. (i) Except as provided must be eliminated to meet the terms of (iii) Any proposed surface or in paragraph (1)(ii) of this definition, the the definition, but that requirement does underground coal mining operation for adjacent area includes those areas not prohibit the approval of terracing which a permit application has been outside the proposed or actual permit under § 816.102 or § 817.102 of this submitted to the regulatory authority; area within which there is a reasonable chapter, the retention of access roads in (iv) Any proposed surface or probability of adverse impacts from accordance with § 816.150 or § 817.151 underground coal mining operation for surface coal mining operations or of this chapter, or the approval of which a request for an authorization, underground mining activities, as permanent water impoundments that certification, or permit has been determined by the regulatory authority. comply with §§ 816.49, 816.55, and submitted under the Clean Water Act; The area covered by this term will vary 780.24(b) or §§ 817.49, 817.55, and and with the context in which a regulation 784.24(b) of this chapter. For purposes (v) All existing and proposed coal uses this term; i.e., the nature of the of this definition, the term ‘‘mined area’’ mining operations that are required to

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00256 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93321

meet diligent development requirements Fill means a permanent, non- source of water for streamflow. for leased federal coal and for which a impounding structure constructed Intermittent streams include only those resource recovery and protection plan under §§ 816.71 through 816.83 or conveyances with channels that display has been either approved or submitted §§ 817.71 through 817.83 of this chapter both a bed-and-bank configuration and to and reviewed by the authorized for the purpose of disposing of excess an ordinary high water mark. officer of the Bureau of Land spoil or coal mine waste generated by Invasive species means an alien Management under 43 CFR 3482.1(b). surface coal mining operations or species (a species that is not native to * * * * * underground mining activities. the region or area), the introduction of Ecological function of a stream means * * * * * which has caused or is likely to cause the species richness, diversity, and Form, as used in §§ 780.28, 784.28, economic or environmental harm or extent of plants, insects, amphibians, 800.42, 816.57, and 817.57 of this harm to human health. reptiles, fish, birds, mammals, and other chapter, means the physical * * * * * organisms for which the stream characteristics, pattern, profile, and Land use means specific uses or provides habitat, food, water, or shelter. dimensions of a stream channel. The management-related activities, rather The biological condition of a stream is term includes, but is not limited to, the than the vegetation or cover of the land. one way to describe its ecological ratio of the flood-prone area to the Land uses may be identified in function. bankfull width (entrenchment), the ratio combination when joint or seasonal uses * * * * * of the channel width to channel depth, occur. Each land use category includes Ephemeral stream means a stream or channel slope, sinuosity, bankfull land used for facilities that support the part of a stream that has flowing water depth, dominant in-stream substrate land use. For purposes of this chapter, only during, and for a short duration particle size, and capacity for riffles and the following land use categories apply: after, precipitation and snowmelt events pools. (1) Cropland. Land used for the in a typical year. Ephemeral streams * * * * * production of crops for harvest, either include only those conveyances with Groundwater means subsurface water alone or in rotation with grasses and channels that display both a bed-and- located in soils and geologic formations legumes. Crops include row crops, small bank configuration and an ordinary high that are fully saturated with water, grains, hay, commercial nursery water mark, and that have streambeds including regional, local, and perched plantings, vegetables, fruits, nuts, crops, located above the water table year- aquifers. This term does not include and other plants typically cultivated for round. Groundwater is not a source of water in soil horizons that are commercial purposes in fields, water for streamflow. Runoff from temporarily saturated by precipitation orchards, vineyards, and similar rainfall events and snowmelt is the events. settings. primary source of water for streamflow. * * * * * (2) Pastureland or land occasionally Hydrologic balance means the cut for hay. Land used primarily for the * * * * * long-term production of adapted, Excess spoil means spoil material relationship between the quality and domesticated forage plants to be grazed permanently disposed of within the quantity of water inflow to, water by livestock or occasionally cut and permit area in a location other than the outflow from, and water storage in a cured for livestock feed. mined-out area. This term also includes hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or (3) Grazing land. Land used for all spoil material placed on the mined- grasslands and forest lands where the out area in excess of the amount reservoir. It encompasses the dynamic relationships among precipitation, indigenous vegetation is actively necessary to restore the approximate managed for grazing, browsing, or original contour when the spoil runoff, evaporation, and changes in storage of groundwater and surface occasional hay production. placement is part of an excess spoil fill (4) Forestry. Land used or managed water, as well as interactions that result with a toe located outside the mined-out for the long-term production of wood, in changes in the chemical composition area. This term does not include— wood fiber, or wood-derived products. (1) Spoil used to restore the or physical characteristics of (5) Residential. Land used for single- approximate original contour; groundwater and surface water. and multiple-family housing, mobile Hydrologic function, as used in (2) Spoil used to blend the final home parks, or other residential §§ 780.28, 784.28, 800.42, 816.57, and configuration of the mined-out area with lodgings. the surrounding terrain in non-steep 817.57 of this chapter, means the role (6) Industrial/Commercial. Land used slope areas in accordance with that streams play in the transport of for— § 816.102(b)(3) or § 817.102(b)(2) of this water and the flow of water within the (i) Extraction or transformation of chapter; stream channel and floodplain. The materials for fabrication of products, (3) Spoil placed outside the mined- term includes total flow volume, wholesaling of products, or long-term out area as part of a remining operation seasonal variations in streamflow and storage of products. This includes all under § 816.106 or § 817.106 of this base flow, and provision of the water heavy and light manufacturing facilities. chapter; needed to maintain floodplains and (ii) Retail or trade of goods or services, (4) Spoil placed within the mined-out wetlands associated with the stream. including hotels, motels, stores, area in accordance with the thick * * * * * restaurants, and other commercial overburden provisions of § 816.105(b)(1) Intermittent stream means a stream or establishments. of this chapter, with the exception of part of a stream that has flowing water (7) Recreation. Land used for public spoil material placed on the mined-out during certain times of the year when or private leisure-time activities, area as part of an excess spoil fill with groundwater provides water for including developed recreation facilities a toe located outside the mined-out area; streamflow. The water table is located such as parks, camps, and amusement or above the streambed for only part of the areas, as well as areas for less intensive (5) Any temporary stockpile of year, which means that intermittent uses such as hiking, canoeing, and other material that will be subsequently streams may not have flowing water undeveloped recreational uses. transported to another location. during dry periods. Runoff from rainfall (8) Fish and wildlife habitat. Land * * * * * events and snowmelt is a supplemental dedicated wholly or partially to the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00257 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93322 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

production, protection, or management (2) Effects that cause or contribute to shelving, changes in the character of of species of fish or wildlife. a violation of applicable state or tribal soil, destruction of terrestrial vegetation, (9) Developed water resources. Land water quality standards for groundwater the presence of litter and debris, or used for storing water for beneficial located outside the permit area, or other appropriate means that consider uses, such as stock ponds, irrigation, fire effects that preclude a premining use of the characteristics of the surrounding protection, flood control, and water groundwater located outside the permit areas. supply. area; or * * * * * (10) Undeveloped land or no current (3) Effects that result in a violation of Parameters of concern means those use or land management. Land that is the Endangered Species Act of 1973, 16 chemical or physical characteristics and undeveloped or, if previously U.S.C. 1531 et seq. properties of surface water or developed, land that has been allowed * * * * * groundwater that could be altered by to return naturally to an undeveloped Mountaintop removal mining means surface or underground mining state or has been allowed to return to surface mining activities in which the activities, including discharges forest through natural succession. mining operation extracts an entire coal associated with those activities, in a * * * * * seam or seams running through the manner that would adversely impact the Material damage, in the context of upper fraction of a mountain, ridge, or quality of groundwater or surface water, §§ 784.30 and 817.121 of this chapter, hill, except for outcrop barriers retained including adverse impacts on aquatic which pertain to subsidence from under § 824.11(b)(2) of this chapter, by life. underground mining operations, means: removing substantially all overburden Perennial stream means a stream or (1) Any functional impairment of above the coal seam and using that part of a stream that has flowing water surface lands, surface features overburden to create a level plateau or year-round during a typical year. The (including wetlands, streams, and a gently rolling contour, with no water table is located above the bodies of water), structures, or facilities; highwalls remaining, that is capable of streambed for most of the year. (2) Any physical change that— supporting one or more of the Groundwater is the primary source of (i) Has a significant adverse impact on postmining land uses identified in water for streamflow. Runoff from the affected land’s capability to support § 785.14 of this chapter. rainfall events and snowmelt is a any current or reasonably foreseeable * * * * * supplemental source of water for uses; or streamflow. Perennial streams include (ii) Causes a significant loss in Native species means, with respect to only those conveyances with channels production or income; or a particular ecosystem, a species that (3) Any significant change in the historically occurred or currently occurs that display both a bed-and-bank condition, appearance, or utility of any in that ecosystem. This term does not configuration and an ordinary high structure or facility from its pre- include alien species that occur in that water mark. subsidence condition. ecosystem or species introduced to that * * * * * Material damage to the hydrologic ecosystem. Premining refers to the conditions and balance outside the permit area means * * * * * features that exist on a site at the time an adverse impact, as determined in Occupied residential dwelling and of application for a permit to conduct accordance with the rest of this structures related thereto means, for surface coal mining operations. definition, resulting from surface coal purposes of §§ 784.30 and 817.121 of * * * * * mining and reclamation operations, this chapter, any building or other Reclamation means those actions underground mining activities, or structure that, at the time the taken to restore mined land and subsidence associated with subsidence occurs, is used either associated disturbed areas to a condition underground mining activities, on the temporarily, occasionally, seasonally, or in which the site is capable of quality or quantity of surface water or permanently for human habitation. This supporting the uses it was capable of groundwater, or on the biological term also includes any building, supporting prior to any mining or any condition of a perennial or intermittent structure, or facility installed on, above, higher or better uses approved by the stream. The determination of whether or below the land surface if that regulatory authority. The site also must an adverse impact constitutes material building, structure, or facility is adjunct meet all other requirements of the damage to the hydrologic balance to or used in connection with an permit and regulatory program that outside the permit area will be based on occupied residential dwelling. pertain to restoration of the site. For consideration of the baseline data Examples of such structures include, sites with discharges that require collected under § 780.19 or § 784.19 of but are not limited to, garages; storage treatment, this term also includes those this chapter and the following sheds and barns; greenhouses and actions taken to eliminate, remediate, or reasonably anticipated or actual effects related buildings; utilities and cables; treat those discharges, including both of the operation: fences and other enclosures; retaining discharges from the mined area and all (1) For a surface water located outside walls; paved or improved patios, walks other discharges that are hydrologically the permit area, effects that cause or and driveways; septic sewage treatment connected to either the mined area or contribute to a violation of applicable facilities; and lot drainage and lawn and the operation, regardless of whether state or tribal water quality standards, garden irrigation systems. This term those discharges are located within the including, but not limited to, state or does not include any structure used disturbed area. tribal water quality standards only for commercial agricultural, Reclamation plan means the plan for established under section 303(c) of the industrial, retail or other commercial reclamation of surface coal mining Clean Water Act, 33 U.S.C. 1313(c), or, purposes. operations under parts 780, 784, and for a surface water for which water * * * * * 785 of this chapter. quality standards have not been Ordinary high water mark means that * * * * * established, effects that cause or line on the bank established by the Renewable resource lands means contribute to non-attainment of any fluctuations of water and indicated by aquifers, aquifer recharge areas, recharge premining use of that surface water physical characteristics such as a clear, areas for other subsurface water, outside the permit area; natural line impressed on the bank, watersheds for surface water bodies that

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00258 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93323

function as a water supply, areas for revisions that do not propose to add surface coal mining operations with agricultural or silvicultural production acreage for coal removal. applicable requirements of the following of food and fiber, and grazing lands. (4) Any application for the addition of laws and their implementing Replacement of water supply means, acreage to an existing permit pending a regulations: with respect to protected water supplies decision under § 773.7 of this chapter or (1) The National Historic Preservation contaminated, diminished, or its state program counterpart as of the Act of 1966 (54 U.S.C. 300101 et seq.). interrupted by coal mining operations, effective date of the stream protection (2) The Archeological and Historic provision of water supply on both a rule under the applicable regulatory Preservation Act of 1974 (16 U.S.C. 469 temporary and permanent basis program, with two exceptions: et seq.). equivalent to premining quantity and (i) Applications for incidental (3) The Archaeological Resources quality. Replacement includes provision boundary revisions that do not propose Protection Act of 1979 (16 U.S.C. 470aa of an equivalent water-delivery system to add acreage for coal removal; and et seq.), where federal or Indian lands and payment of operation and (ii) Applications that the regulatory covered by that Act are involved. maintenance costs in excess of authority has determined to be (4) The National Environmental customary and reasonable delivery costs administratively complete before the Policy Act of 1969 (42 U.S.C. 4371 et for premining water supplies. effective date of the stream protection seq.). * * * * * rule under the applicable regulatory ■ 8. Revise § 773.7 to read as follows: program. Temporary diversion means a channel § 773.7 How and when will the regulatory constructed to convey streamflow or (5) Any application for a permit revision submitted on or after the authority review and make a decision on an overland flow away from the site of application for a permit, permit revision, or actual or proposed coal exploration or effective date of the stream protection permit renewal? rule under the applicable regulatory surface coal mining and reclamation (a) General. The regulatory authority operations or to convey those flows to program, or pending a decision as of that date, that proposes a new excess will review an application for a permit, a siltation structure or other treatment permit revision, or permit renewal; and facility. The term includes only those spoil fill, coal mine waste refuse pile, or coal mine waste slurry impoundment or issue a written decision granting, channels not approved by the regulatory requiring modification of, or denying authority to remain after reclamation as that proposes to move or expand the location of an approved excess spoil fill the application. Before making this part of the approved postmining land decision, the regulatory authority must use. or coal mine waste facility. (b) [Reserved] consider any written comments and * * * * * objections submitted, as well as the ■ 5. Add § 701.16 to read as follows: PART 773—REQUIREMENTS FOR records of any informal conference or PERMITS AND PERMIT PROCESSING hearing held on the application. § 701.16 How will the stream protection (b) When will the regulatory authority rule apply to existing and future permits ■ 6. The authority citation for part 773 make a decision on a permit and permit applications? is revised to read as follows: application? (1) If an informal (a) General applicability. The Authority: 30 U.S.C. 1201 et seq., 54 U.S.C. conference is held under § 773.6(c) of revisions to parts 701 through 827 of 300101 et seq., 16 U.S.C. 661 et seq., 16 this part, the regulatory authority will this chapter that became effective on U.S.C. 703 et seq., 16 U.S.C. 668a et seq., 16 issue a decision on the application January 19, 2017 (hereafter referred to as U.S.C. 469 et seq., and 16 U.S.C. 1531 et seq. within 60 days of the close of the the stream protection rule) apply as ■ 7. Revise § 773.5 to read as follows: conference. provided therein or, if there is no (2) If no informal conference is held specific applicability provision in the § 773.5 How must the regulatory authority under § 773.6(c) of this part, the revisions, to— coordinate the permitting process with regulatory authority must issue a (1) Any application for a new permit requirements under other laws? decision on the application within a submitted to the regulatory authority (a) To avoid duplication, each reasonable time established in the after the effective date of the stream regulatory program must provide for the regulatory program. In determining protection rule under the applicable coordination of review of permit what constitutes a reasonable time, the regulatory program. applications and issuance of permits for regulatory authority must consider the (2) Any application for a new permit surface coal mining operations with the following five factors: pending a decision under § 773.7 of this federal and state agencies responsible (i) The time needed for proper site chapter or its state program counterpart for permitting and related actions under investigations. as of the effective date of the stream the following laws and their (ii) The complexity of the permit protection rule under the applicable implementing regulations: application. regulatory program, unless the (1) The Clean Water Act (33 U.S.C. (iii) Whether there are any written regulatory authority has determined the 1251 et seq.). objections on file. application to be administratively (2) The Endangered Species Act of (iv) Whether the application complete under § 777.15 of this chapter 1973 (16 U.S.C. 1531 et seq.). previously has been approved or or its state program counterpart before (3) The Fish and Wildlife disapproved, in whole or in part. the effective date of the stream Coordination Act (16 U.S.C. 661 et seq.). (v) The time required for coordination protection rule under the applicable (4) The Migratory Bird Treaty Act of of permitting activities with other regulatory program. 1918 (16 U.S.C. 703 et seq.). agencies under § 773.5 of this part. (3) Any application for the addition of (5) The Bald and Golden Eagle (c) Who has the burden of proof? You, acreage to an existing permit submitted Protection Act (16 U.S.C. 668–668d). the applicant for a permit, revision of a to the regulatory authority after the (b) In addition to the requirements of permit, or the transfer, assignment, or effective date of the stream protection paragraph (a) of this section, each sale of permit rights, have the burden of rule under the applicable regulatory federal regulatory program must provide establishing that your application is in program, with the exception of for coordination of the review of permit compliance with all requirements of the applications for incidental boundary applications and issuance of permits for regulatory program.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00259 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93324 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

■ 9. Revise § 773.15 to read as follows: required by subchapter R of this intended to prevent the formation of chapter. discharges that would require long-term § 773.15 What findings must the regulatory (h) You have satisfied the applicable treatment after mining has been authority make before approving a permit application? requirements of part 785 of this chapter. completed. If a study or other evidence (i) If applicable, you have satisfied the supports a contrary conclusion, you The regulatory authority may not requirements for approval of a long- must explain why that study or other approve any application for a permit or term, intensive agricultural postmining evidence is not credible or applicable to a significant revision of a permit that land use. the proposed operation. you, the applicant, submit unless the (j)(1) You have provided application affirmatively demonstrates (o) To the extent possible using the documentation that the proposed best technology currently available, the and the regulatory authority finds, in surface coal mining and reclamation writing, on the basis of information set proposed operation has been designed operations would have no effect on to minimize disturbances and adverse forth in the application or from species listed or proposed for listing as information otherwise available that is impacts on fish, wildlife, and related threatened or endangered under the environmental values and to achieve documented in the approval, that— Endangered Species Act of 1973, 16 (a) The application is accurate and enhancement of those resources where U.S.C. 1531 et seq., or on designated or complete and you have complied with practicable, as required under § 780.16 proposed critical habitat under that law; all applicable requirements of the Act or § 784.16 of this chapter. or ■ and the regulatory program. (2) You and the regulatory authority 10. Revise § 773.17 to read as follows: (b) You have demonstrated that have documented compliance with a reclamation as required by the Act and § 773.17 What conditions must the valid biological opinion that covers the regulatory program can be regulatory authority place on each permit issuance of permits for surface coal issued? accomplished under the reclamation plan contained in the permit mining operations and the conduct of The regulatory authority must include application. those operations under the applicable the following conditions in each permit (c) The proposed permit area is not regulatory program; or issued: within an area— (3) You have provided documentation (a) You, the permittee, may conduct (1) Under study or administrative that interagency consultation under surface coal mining and reclamation proceedings under a petition filed section 7 of the Endangered Species Act operations only on those lands that are pursuant to part 764 or part 769 of this of 1973, 16 U.S.C. 1536, has been specifically designated as the permit chapter to have an area designated as completed for the proposed operation; area on the maps submitted with the unsuitable for surface coal mining or application and authorized for the term operations, unless you demonstrate that (4) You have provided documentation of the permit and that are subject to the you made substantial legal and financial that the proposed operation is covered performance bond or other equivalent commitments before January 4, 1977, in under a permit issued pursuant to guarantee in effect pursuant to part 800 relation to the operation covered by the section 10 of the Endangered Species of this chapter. permit application; Act of 1973, 16 U.S.C. 1539. (b) You must conduct all surface coal (k) The regulatory authority has taken (2) Designated under parts 762 and mining and reclamation operations only into account the effect of the proposed 764 or 769 of this chapter as unsuitable as described in the approved permitting action on properties listed on for the type of surface coal mining application, except to the extent that the and eligible for listing on the National operations that you propose to conduct; regulatory authority otherwise directs in Register of Historic Places. This finding or the permit. may be supported in part by inclusion (3) Subject to the prohibitions of (c) You must comply with the terms of appropriate permit conditions or § 761.11 of this chapter, unless one or and conditions of the permit, all changes in the operation plan protecting more of the exceptions provided under applicable requirements of the Act, and historic resources or a documented that section apply. the requirements of the regulatory decision that the regulatory authority (d) For mining operations where the program. private mineral estate to be mined has has determined that no additional (d) Without advance notice, delay, or been severed from the private surface protection measures are necessary. a search warrant, upon presentation of estate, you have submitted to the (l) For a proposed remining operation appropriate credentials, you must allow regulatory authority the documentation where you intend to reclaim in authorized representatives of the required under § 778.15(b) of this accordance with the requirements of Secretary and the regulatory authority chapter. § 816.106 or § 817.106 of this chapter, (e) The regulatory authority has— the site of the operation is a previously to— (1) Made an assessment of the mined area, as that term is defined in (1) Have the right of entry provided probable cumulative impacts of all § 701.5 of this chapter. for in §§ 842.13 and 840.12 of this anticipated coal mining on the (m) You are eligible to receive a chapter; and hydrologic balance in the cumulative permit, based on the reviews under (2) Be accompanied by private impact area; and §§ 773.7 through 773.14 of this part. persons for the purpose of conducting (2) Determined that the proposed (n) You have demonstrated, and the an inspection in accordance with parts operation has been designed to prevent regulatory authority concurs, that— 840 and 842 of this chapter, when the material damage to the hydrologic (1) The operation has been designed inspection is in response to an alleged balance outside the permit area. to prevent the formation of toxic mine violation reported to the regulatory (f) You have demonstrated that any drainage that would require long-term authority by the private person. existing structure will comply with treatment after mining has been (e) You must take all possible steps to § 701.11(d) of this chapter and the completed. minimize any adverse impact to the applicable performance standards of (2) A thorough analysis of all environment or public health and safety subchapter B or K of this chapter. available evidence supports a resulting from noncompliance with any (g) You have paid all reclamation fees conclusion that the design of the term or condition of the permit, from previous and existing operations as proposed operation will work as including, but not limited to—

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00260 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93325

(1) Any accelerated or additional section. The notice will set forth the (2) We will initiate bond forfeiture monitoring necessary to determine the reasons for that finding. proceedings under § 800.50 of this nature and extent of noncompliance and (c) Within 30 days of receiving a chapter if you do not complete all the results of the noncompliance. notice under paragraph (b) of this reclamation obligations within the time (2) Immediate implementation of section, you may— specified in the order issued under measures necessary to comply. (1) Challenge the preliminary finding paragraph (d)(2) of this section. (3) Warning, as soon as possible after by providing us with an explanation of learning of such noncompliance, any why the information either is not PART 774—REVISION; RENEWAL; person whose health and safety is in inaccurate or does not meet the standard TRANSFER, ASSIGNMENT, OR SALE imminent danger due to the established in paragraph (a) of this OF PERMIT RIGHTS; POST-PERMIT noncompliance. section; or ISSUANCE REQUIREMENTS (4) Notifying the regulatory authority (2) Supply, or agree to supply, ■ 12. The authority citation for part 774 and other appropriate state and federal updated information and submit an continues to read as follows: regulatory agencies whenever application to revise the permit as conditions within the permit area result needed to correct the deficiency in an Authority: 30 U.S.C. 1201 et seq. in an imminent danger to the health or expeditious manner. ■ 13. Revise the part heading for part safety of the public or cause or can (d)(1) We will evaluate any 774 to read as set forth above. reasonably be expected to cause explanation that you submit under ■ 14. Revise § 774.9 to read as follows: significant, imminent environmental paragraph (c)(1) of this part. harm to land, air, or water resources, (2)(i) If you do not take either of the § 774.9 Information collection. regardless of whether a noncompliance actions identified under paragraph (c) of In accordance with 44 U.S.C. 3501 et exists. this section, or if the evaluation under seq., the Office of Management and (f) As applicable, you must comply paragraph (d)(1) of this section Budget (OMB) has approved the with § 701.11(d) and subchapter B or K determines that the deficiency information collection requirements of of this chapter for compliance, identified in our preliminary finding this part and assigned it control number modification, or abandonment of still exists, we will serve you with a 1029–0116. The regulatory authority existing structures. written notice of proposed suspension (g) You or the operator must pay all uses this information to determine if or rescission of the permit, together with you, the applicant, meet the reclamation fees required by subchapter a statement of the reasons for the R of this chapter for coal produced requirements for permit revision; permit proposed suspension or rescission, renewal; or the transfer, assignment, or under the permit for sale, transfer, or (ii) Any proposed suspension or use, in the manner required by that sale of permit rights. The regulatory rescission will take effect 60 days from authority also uses this information to subchapter. the date that we provide notice under (h) You must obtain all necessary update the Applicant/Violator System. paragraph (d)(2)(i) of this section, unless authorizations, certifications, and You must respond to obtain a benefit. A you obtain temporary relief under permits in accordance with other federal agency may not conduct or § 775.11(b)(2) of this chapter. applicable federal, state, and tribal laws sponsor, and you are not required to (3) The proposed suspension or before conducting any activities that respond to, a collection of information rescission under paragraph (d)(2) of this require authorization, certification, or a unless it displays a currently valid OMB section is subject to administrative permit under those laws. control number. Send comments (i) You must comply with all effluent review under part 775 of this chapter. regarding burden estimates or any other limitations and conditions in any (4) Section 843.14 of this chapter will aspect of this collection of information, National Pollutant Discharge govern service under paragraph (d)(2) of including suggestions for reducing the Elimination System permit issued for this section. burden, to the Office of Surface Mining your operation by the appropriate (e)(1) If we suspend your permit Reclamation and Enforcement, authority under the Clean Water Act, 33 under paragraph (d)(2) of this section, Information Collection Clearance U.S.C. 1251 et seq. you must cease all surface coal mining Officer, Room 203–SIB, 1951 operations under the permit and ■ 11. Add § 773.20 to read as follows: Constitution Avenue NW., Washington, complete all affirmative obligations DC 20240. § 773.20 What actions must the regulatory specified in the suspension order within ■ 15. Revise § 774.10 to read as follows: authority take when a permit is issued on the time established in that order. We the basis of inaccurate information? will rescind your permit in accordance § 774.10 When must the regulatory (a) We, the regulatory authority, will with paragraph (d)(2) of this section if authority review a permit after issuance? take the actions set forth in paragraphs you do not complete those obligations (a)(1) The regulatory authority must (b) through (f) of this section if we issue within the time specified. review each permit issued and a permit on the basis of what we later (2) If we rescind your permit under outstanding under an approved determine to be inaccurate baseline paragraph (d)(2) of this section, you regulatory program during the term of information, provided that the must cease all surface coal mining the permit. information is inaccurate to the extent operations under the permit and (2) The review required by paragraph that it would invalidate one or more of complete reclamation within the time (a)(1) of this section must include, but the findings required for permit specified in the order. is not limited to, an evaluation of the application approval under § 773.15 or (f)(1) If we suspend or rescind your impacts of the operation on fish, other provisions of this chapter. permit under paragraph (d)(2) of this wildlife, and related environmental (b) We will provide you, the section, the bond posted for the permit values in the permit and adjacent areas. permittee, with written notice that we will remain in effect until you complete The regulatory authority must use that have made a preliminary finding that all reclamation obligations under the evaluation to determine whether it is your permit was issued on the basis of reclamation plan approved in the permit necessary to order the permittee to inaccurate information of the nature and obtain bond release under §§ 800.40 modify the fish and wildlife described in paragraph (a) of this through 800.44 of this chapter. enhancement plan approved in the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00261 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93326 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

permit to ensure that the operation ■ 16. Revise § 774.15 to read as follows: continuing ability to comply with the minimizes disturbances and adverse Act and the regulatory program on impacts on fish, wildlife, and related § 774.15 How may I renew a permit? existing permit areas. environmental values within the permit (a) Right of renewal. A valid permit, (iv) You have not provided evidence and adjacent areas to the extent possible issued pursuant to an approved of having continuing liability insurance using the best technology currently regulatory program, carries with it the or self-insurance coverage as required available. right of successive renewal, within the under § 800.60 of this chapter. (3) The review required by paragraph approved boundaries of the existing (v) You have not provided evidence (a)(1) of this section must occur not later permit, upon expiration of the term of that any performance bond required to than the middle of each permit term the permit. be in effect for the operation will except that permits with a term longer (b) Application requirements and continue in full force and effect for the than 5 years must be reviewed no less procedures. (1) You, the permittee, must proposed term of renewal. frequently than the permit midterm or file an application for renewal of a (vi) You have not posted any every 5 years, whichever is more permit with the regulatory authority at additional bond required by the frequent. least 120 days before expiration of the regulatory authority under part 800 of (4) Permits granted in accordance existing permit term. this chapter. with § 785.14 of this chapter (2) You must file the application for (vii) You have not provided any (mountaintop removal mining) and renewal in the form required by the additional revised or updated permits containing a variance from regulatory authority. At a minimum, information required by the regulatory approximate original contour restoration your application must include the authority. requirements in accordance with following information— (2) Burden of proof. In the § 785.16 of this chapter must be (i) Your name and address. determination of whether to approve or reviewed no later than 3 years from the (ii) The term of the renewal requested. deny an application for renewal of a date of issuance of the permit, unless (iii) The permit number or other permit, the burden of proof is on the the permittee affirmatively demonstrates identifier. opponents of renewal. that the proposed development is (iv) Evidence that a liability insurance (3) Alluvial valley floor variance. proceeding in accordance with the policy for the operation will continue in Areas previously identified in the terms of the permit. This review may be full force and effect during the proposed reclamation plan for the original permit combined with the first review renewal term or that you will have as exempt from the standards in conducted under paragraph (a)(3) of this adequate self-insurance under § 800.60 paragraphs (A) and (B) of section section if the permit term does not of this chapter for the proposed term of 510(b)(5) of the Act and the exceed 5 years. renewal. requirements of paragraphs (c) through (5) Permits containing an (v) Evidence that the performance (e) of § 785.19 of this chapter will retain experimental practice approved in bond for the permit will continue in full their exempt status for the term of the accordance with § 785.13 of this chapter force and effect for the proposed term of renewal. must be reviewed as set forth in the renewal. (d) Renewal term. The term for any permit or at least every 21⁄2 years from (vi) A copy of the newspaper notice permit renewal must not exceed the the date of issuance as required by the and proof of publication, as required by original permit term under § 773.19(c) of regulatory authority, in accordance with § 778.21 of this chapter. this chapter. § 785.13(g) of this chapter. (vii) Additional revised or updated (e) Notice of decision. The regulatory (6) Permits granted in accordance information required by the regulatory authority must send copies of its with § 785.18 of this chapter (variance authority. decision to the applicant, to each person for delay in contemporaneous (3) Applications for renewal are who filed comments or objections on reclamation requirement in combined subject to the public notification and the renewal, to each party to any surface and underground mining public participation requirements in informal conference held on the permit operations) must be reviewed no later §§ 773.6 and 773.19(b) of this chapter. renewal, and to OSMRE if OSMRE is not than 3 years from the date of issuance (4) If an application for renewal the regulatory authority. of the permit. This review may be includes any proposed revisions to the (f) Administrative and judicial review. combined with the first review permit, those revisions must be Any person having an interest which is conducted under paragraph (a)(3) of this identified and processed in accordance or may be adversely affected by the section if the permit term does not with § 774.13 of this part. decision of the regulatory authority has exceed 5 years. (c) Approval process—(1) Criteria for the right to administrative and judicial (b) After a review required by approval. The regulatory authority must review under part 775 of this chapter. paragraph (a) of this section, or at any approve a complete and accurate time, the regulatory authority may, by application for permit renewal, unless it PART 777—GENERAL CONTENT order, require reasonable revision of a finds, in writing that— REQUIREMENTS FOR PERMIT permit in accordance with § 774.13 to (i) The terms and conditions of the APPLICATIONS ensure compliance with the Act and the existing permit are not being ■ 17. Revise the authority citation for regulatory program. satisfactorily met. (c) Any order of the regulatory (ii) The present surface coal mining part 777 to read as follows: authority requiring revision of a permit and reclamation operations are not in Authority: 30 U.S.C. 1201 et seq. must be based upon written findings compliance with the environmental ■ 18. Revise § 777.1 to read as follows: and is subject to the provisions for protection standards of the Act and the administrative and judicial review in regulatory program. The permit § 777.1 What does this part cover? part 775 of this chapter. Copies of the eligibility standards in §§ 773.12 This part provides minimum order must be sent to the permittee. through 773.14 of this chapter apply to requirements concerning data collection (d) Permits may be suspended or this determination. and analysis and the format and general revoked in accordance with subchapter (iii) The requested renewal content of permit applications under a L of this chapter. substantially jeopardizes your regulatory program.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00262 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93327

■ 19. Revise § 777.11 to read as follows: administering or implementing a 779, and 780 of this chapter, and, as program under the Clean Water Act, 33 applicable to the operation, part 785 of § 777.11 What are the format and content U.S.C. 1251 et seq., that requires water this chapter. requirements for permit applications? sampling and analysis. (b) For underground mining activities, (a) An application must— (c) Geological sampling and analysis. the information required under parts (1) Contain current information, as All geological sampling and analyses 778, 783, and 784 of this chapter, and, required by this subchapter. performed to meet the requirements of as applicable to the operation, part 785 (2) Be clear and concise. this subchapter must be conducted of this chapter. (3) Be filed in the format prescribed using a scientifically defensible ■ 23. Lift the suspension of § 779.21 and by the regulatory authority. methodology. revise part 779 to read as follows: (b) If used in the application, (d) Use of models. (1) Unless the referenced materials must either be regulatory authority specifies otherwise, PART 779—SURFACE MINING PERMIT provided to the regulatory authority by you may use modeling techniques, APPLICATIONS—MINIMUM the applicant or be readily available to interpolation, or statistical techniques to REQUIREMENTS FOR INFORMATION the regulatory authority. If provided, prepare the permit application. ON ENVIRONMENTAL RESOURCES relevant portions of referenced (2) You must use actual site-specific AND CONDITIONS published materials must be presented data to calibrate each model. All models briefly and concisely in the application must be validated for the region and Sec. by photocopying or abstracting and with ecosystem in which they will be used. 779.1 What does this part do? explicit citations. (3) The regulatory authority may 779.2 What is the objective of this part? (c) Applications for permits; either disallow the use of models or 779.4 What responsibilities do I and revisions; renewals; or transfers, sales or require that you submit additional government agencies have under this part? assignments of permit rights must be actual, site-specific data. 779.10 Information collection. verified under oath, by a responsible ■ 21. Revise § 777.14 to read as follows: 779.11 [Reserved] official of the applicant, that the 779.12 [Reserved] information contained in the § 777.14 What general requirements apply 779.17 What information on cultural, application is true and correct to the to maps and plans? historic, and archeological resources best of the official’s information and (a)(1) Maps submitted with must I include in my permit application? belief. applications must be presented in a 779.18 What information on climate must I include in my permit application? ■ 20. Revise § 777.13 to read as follows: consolidated format, to the extent possible, and must include all the types 779.19 What information on vegetation § 777.13 What requirements apply to the of information that are set forth on must I include in my permit application? collection, analysis, and reporting of topographic maps of the U.S. Geological 779.20 What information on fish and technical data and to the use of models? wildlife resources must I include in my Survey of the 1:24,000 scale series. permit application? (a) Technical data and analyses. (1) (2) Maps of the proposed permit area 779.21 What information on soils must I All technical data submitted in the must be at a scale of 1:6,000 or larger. include in my permit application? application must be accompanied by (3) Maps of the adjacent area must 779.22 What information on land use and metadata, including, but not limited to, clearly show the lands and waters productivity must I include in my permit the names of persons or organizations within that area and must be at a scale application? that collected and analyzed the data, the determined by the regulatory authority, 779.24 What maps, plans, and cross- dates that the data were collected and but in no event smaller than 1:24,000. sections must I submit with my permit analyzed, descriptions of the (b) When applicable, maps must application? methodology used to collect and clearly show those portions of the 779.25 [Reserved] analyze the data, the quality assurance operation where surface coal mining Authority: 30 U.S.C. 1201 et seq. and 54 and quality control procedures used by operations occurred— U.S.C. 300101 et seq. (1) Prior to August 3, 1977. the laboratory and the results of those § 779.1 What does this part do? procedures, and the field sampling (2) After August 3, 1977, but prior to This part establishes the minimum sheets for each surface-water sample either— (i) May 3, 1978; or requirements for the descriptions of collected and for each groundwater (ii) January 1, 1979, if an applicant or environmental resources and conditions sample collected from wells, seeps, and operator obtained a small operator’s that you must include in an application springs. For electronic data, metadata exemption in accordance with § 710.12 for a permit to conduct surface mining must include identification of any data of this chapter. activities. transformations. (3) After May 3, 1978 (or January 1, (2) Technical analyses must be 1979, for persons who received a small § 779.2 What is the objective of this part? planned by or under the direction of a operator’s exemption in accordance The objective of this part is to ensure professional qualified in the subject to with § 710.12 of this chapter) and prior that you, the permit applicant, provide be analyzed. to the approval of the applicable the regulatory authority with a complete (b) Sampling and analyses of regulatory program. and accurate description of the groundwater and surface water. All ■ 22. Revise § 777.15 to read as follows: environmental resources that may be sampling and analyses of groundwater impacted or affected by proposed and surface water performed to meet the § 777.15 What information must my surface mining activities and the requirements of this subchapter must be application include to be administratively environmental conditions that exist conducted according to— complete? within the proposed permit and (1) The methodology in 40 CFR parts An administratively complete adjacent areas. 136 and 434, to the extent applicable; or application for a permit to conduct (2) A scientifically defensible surface coal mining operations and must § 779.4 What responsibilities do I and methodology acceptable to the include at a minimum— government agencies have under this part? regulatory authority, in coordination (a) For surface mining activities, the (a) You, the permit applicant, must with any agency responsible for information required under parts 778, provide all information required by this

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00263 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93328 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

part in your application, except when (3) Completing other appropriate Endangered Species Act of 1973, 30 this part specifically exempts you from analyses. U.S.C. 1531 et seq. The adjacent area doing so. must include all lands and waters likely (b) State and federal government § 779.18 What information on climate must to be affected by the proposed I include in my permit application? agencies are responsible for providing operation. information for permit applications to The regulatory authority may require (b) Scope and level of detail. The the extent that this part specifically that your permit application contain a regulatory authority will determine the requires that they do so. statement of the climatic factors that are scope and level of detail for this representative of the proposed permit information in coordination with state § 779.10 Information collection. area, including: and federal agencies with (a) The average seasonal precipitation. In accordance with 44 U.S.C. 3501 et responsibilities for fish and wildlife. (b) The average direction and velocity seq., the Office of Management and The scope and level of detail must be Budget (OMB) has approved the of prevailing winds. (c) Seasonal temperature ranges. sufficient to design the protection and information collection requirements of enhancement plan required under this part and assigned it control number (d) Additional data that the regulatory authority deems necessary to ensure § 780.16 of this chapter. 1029–0035. The information is being (c) Site-specific resource information collected to meet the requirements of compliance with the requirements of this subchapter. requirements. Your application must sections 507 and 508 of SMCRA, which include site-specific resource require that each permit application § 779.19 What information on vegetation information if the proposed permit area include a description of the premining must I include in my permit application? or the adjacent area contains or is likely environmental resources within and (a) You must identify, describe, and to contain one or more of the around the proposed permit area. The map existing vegetation types and plant following— regulatory authority uses this communities within the proposed (1) Species listed or proposed for information as a baseline for evaluating permit area. If you propose to use listing as threatened or endangered the impacts of mining. You, the permit reference areas for purposes of under the Endangered Species Act of applicant, must respond to obtain a determining revegetation success under 1973, 16 U.S.C. 1531 et seq., or benefit. A federal agency may not § 816.116 of this chapter, you also must designated or proposed critical habitat conduct or sponsor, and you are not identify, describe, and map existing under that law. When these required to respond to, a collection of vegetation types and plant communities circumstances exist, the site-specific information unless it displays a within any proposed reference areas. resource information must include a currently valid OMB control number. (b) The description and map required description of the effects of future non- Send comments regarding burden under paragraph (a) of this section federal activities that are reasonably estimates or any other aspect of this must— certain to occur within the proposed collection of information, including (1) Be in sufficient detail to assist in permit and adjacent areas. suggestions for reducing the burden, to preparation of the revegetation plan (2) Species or habitat protected by the Office of Surface Mining under § 780.12(g) of this chapter and state or tribal endangered species Reclamation and Enforcement, provide a baseline for comparison with statutes and regulations. Information Collection Clearance postmining vegetation; Officer, Room 203–SIB, 1951 (3) Habitat of unusually high value for (2) Be adequate to evaluate whether fish and wildlife, which may include Constitution Avenue NW., Washington, the vegetation provides important DC 20240. wetlands, riparian areas, cliffs that habitat for fish and wildlife and whether provide nesting sites for raptors, § 779.11 [Reserved] the proposed permit area contains significant migration corridors, native plant communities of local or specialized reproduction or wintering § 779.12 [Reserved] regional significance; areas, areas offering special shelter or (3) Identify areas with significant protection, and areas that support § 779.17 What information on cultural, populations of non-native invasive or populations of endemic species that are historic, and archeological resources must noxious species; and I include in my permit application? vulnerable because of restricted ranges, (4) Delineate all wetlands and all limited mobility, limited reproductive (a) Your permit application must areas bordering streams that either capacity, or specialized habitat describe the nature of cultural, historic, support or are capable of supporting requirements. and archeological resources listed or hydrophytic or hydrophilic vegetation eligible for listing on the National or vegetation typical of floodplains. (4) Other species or habitat identified Register of Historic Places and known (c) If the vegetation on the proposed through interagency coordination as archeological sites within the proposed permit area has been altered by human requiring special protection under state, permit and adjacent areas. The activity, you must describe the native tribal, or federal law, including species description must be based on all vegetation and plant communities identified as sensitive by a state, tribal, available information, including, but not typical of that area in the absence of or federal agency. limited to, information from the State human alterations. (5) Perennial or intermittent streams. Historic Preservation Officer and from (6) Native plant communities of local local archeological, historical, and § 779.20 What information on fish and or regional ecological significance. cultural preservation agencies. wildlife resources must I include in my (b) The regulatory authority may permit application? § 779.21 What information on soils must I require you, the applicant, to identify (a) General requirements. Your permit include in my permit application? and evaluate important historic and application must include information Your permit application must archeological resources that may be on fish and wildlife resources for the include— eligible for listing on the National proposed permit and adjacent areas, (a) The results of a reconnaissance Register of Historic Places by— including all species of fish, wildlife, inspection to determine whether the (1) Collecting additional information; plants, and other life forms listed or proposed permit area may contain (2) Conducting field investigations, or proposed for listing under the prime farmland historically used for

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00264 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93329

cropland, as required by § 785.17(b)(1) (ii) Yield estimates for similar sites (9) The name, location, ownership, of this chapter. based on current data from the U.S. and description of all surface-water (b)(1) A map showing the soil Department of Agriculture, state bodies and features, such as perennial, mapping units located within the agricultural universities, or appropriate intermittent, and ephemeral streams; proposed permit area, if the National state natural resources or agricultural ponds, lakes, and other impoundments; Cooperative Soil Survey has completed agencies. wetlands; and natural drainageways, and published a soil survey of the area. (c) Any additional information that within the proposed permit and (2) The applicable soil survey the regulatory authority deems adjacent areas. To the extent information that the Natural Resources necessary to determine the condition, appropriate, you may provide this Conservation Service maintains for the capability, and productivity of the land information in a table cross-referenced soil mapping units identified in within the proposed permit area. to a map if approved by the regulatory paragraph (b)(1) of this section. You authority. may provide this information either in § 779.24 What maps, plans, and cross- sections must I submit with my permit (10) The locations of water supply paper form or via a link to the application? intakes for current users of surface water appropriate element of the Natural flowing into, from, and within a (a) In addition to the maps, plans, and Resources Conservation Service’s soil hydrologic area defined by the information required by other sections survey Web site. regulatory authority. of this part, your permit application (c) A description of soil depths within (11) The location of any public water must include maps and, when the proposed permit area. supplies and the extent of any appropriate, plans and cross-sections (d) Detailed information on soil associated wellhead protection zones quality, if you seek approval for the use showing— (1) All boundaries of lands and names located within one-half mile, measured of soil substitutes or supplements under horizontally, of the proposed permit § 780.12(e) of this chapter. of present owners of record of those lands, both surface and subsurface, area. Both you and the regulatory (e) The soil survey information authority must keep this information required by § 785.17(b)(3) of this chapter included in or contiguous to the proposed permit area. confidential when required by state law if the reconnaissance inspection or when otherwise necessary for safety conducted under paragraph (a) of this (2) The boundaries of land within the proposed permit area upon which you and security purposes and protection of section indicates that prime farmland the integrity of public water supplies. historically used for cropland may be have the legal right to enter and begin surface mining activities. (12) The location of all existing and present. proposed discharges to any surface- (f) Any other information on soils that (3) The boundaries of all areas that you anticipate affecting over the water body within the proposed permit the regulatory authority finds necessary and adjacent areas. to determine land use capability. estimated total life of the surface mining activities, with a description of the size, (13) The location of any discharge § 779.22 What information on land use and sequence, and timing of the mining of into or from an active, inactive, or productivity must I include in my permit subareas for which you anticipate abandoned surface or underground application? seeking additional permits or expansion mine, including, but not limited to, a Your permit application must contain of an existing permit in the future. mine-water treatment or pumping a statement of the condition, capability, (4) The location and current use of all facility, that is hydrologically connected and productivity of the land within the buildings on the proposed permit area to the site of the proposed operation or proposed permit area, including— or within 1,000 feet of the proposed that is located within one-half mile, (a)(1) A map and narrative identifying permit area. measured horizontally, of the proposed and describing the land use or uses in (5) The location of surface and permit area. existence at the time of the filing of the subsurface manmade features within, (14) Each public road located in or application. passing through, or passing over the within 100 feet of the proposed permit (2) A description of the historical uses proposed permit area, including, but not area. of the land to the extent that this limited to, highways, electric (15) The boundaries of any public information is readily available or can transmission lines, pipelines, park and locations of any cultural or be inferred from the uses of other lands constructed drainageways, irrigation historical resources listed or eligible for in the vicinity. ditches, and agricultural drainage tile listing in the National Register of (3) For any previously mined area fields. Historic Places and known archeological within the proposed permit area, a (6) The location and boundaries of sites within the permit and adjacent description of the land uses in existence any proposed reference areas for areas. before any mining, to the extent that determining the success of revegetation. (16) Each cemetery that is located in such information is available. (7) The location and ownership of or within 100 feet of the proposed (b) A narrative analysis of— existing wells, springs, and other permit area. (1) The capability of the land before groundwater resources within the (17) Any land within the proposed any mining to support a variety of uses, proposed permit and adjacent areas. permit area which is within the giving consideration to soil and You may provide ownership boundaries of any units of the National foundation characteristics, topography, information in a table cross-referenced System of Trails or the Wild and Scenic vegetative cover, and the hydrology of to a map if approved by the regulatory Rivers System, including study rivers the proposed permit area; and authority. designated under section 5(a) of the (2) The productivity of the proposed (8) The location and depth (if Wild and Scenic Rivers Act. permit area before mining, expressed as available) of each water well within the (18) The elevations, locations, and average yield of food, fiber, forage, or proposed permit and adjacent areas. geographic coordinates of test borings wood products obtained under high You may provide information and core samplings. You may provide levels of management, as determined concerning depth in a table cross- this information in a table cross- by— referenced to a map if approved by the referenced to a map if approved by the (i) Actual yield data; or regulatory authority. regulatory authority.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00265 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93330 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(19) The location and extent of any qualified registered professional land through, or adjacent to a perennial or subsurface water encountered within surveyor, with assistance from experts intermittent stream? the proposed permit and adjacent areas. in related fields such as landscape 780.29 What information must I include in This information must include, but is architecture. the surface-water runoff control plan? 780.31 What information must I provide not limited to, the elevation of the water (2) Updated when required by the concerning the protection of publicly table, the areal and vertical distribution regulatory authority. owned parks and historic places? of aquifers, and maximum and (c) The regulatory authority may 780.33 What information must I provide minimum variations in hydraulic head require that you submit the materials concerning the relocation or use of in different aquifers. You must provide required by this section in a digital public roads? this information on appropriately-scaled format that includes all necessary 780.35 What information must I provide cross-sections or maps, in a narrative, or metadata. concerning the minimization and a combination of these methods, disposal of excess spoil? whichever format best displays this § 779.25 [Reserved] 780.37 What information must I provide concerning access and haul roads? ■ information to the satisfaction of the 24. Revise part 780 to read as follows: 780.38 What information must I provide regulatory authority. concerning support facilities? (20) The elevations, locations, and PART 780—SURFACE MINING PERMIT geographic coordinates of monitoring APPLICATIONS—MINIMUM Authority: 30 U.S.C. 1201 et seq. and 54 stations used to gather data on water REQUIREMENTS FOR OPERATION U.S.C. 300101 et seq. quality and quantity and on fish and AND RECLAMATION PLANS § 780.1 What does this part do? wildlife in preparation of the This part establishes the minimum application. You may provide this Sec. 780.1 What does this part do? requirements for the operation and information in a table cross-referenced 780.2 What is the objective of this part? reclamation plan portions of to a map if approved by the regulatory 780.4 What responsibilities do I and applications for a permit to conduct authority. government agencies have under this surface mining activities, except to the (21) The nature, depth, thickness, and part? extent that part 785 of this subchapter commonly used names of the coal seams 780.10 Information collection. establishes different requirements. to be mined. 780.11 What must I include in the general (22) Any coal crop lines within the description of my proposed operations? § 780.2 What is the objective of this part? permit and adjacent areas and the strike 780.12 What must the reclamation plan The objective of this part is to ensure and dip of the coal to be mined. include? that you, the permit applicant, provide 780.13 What additional maps and plans (23) The location and extent of known the regulatory authority with workings of active, inactive, or must I include in the reclamation plan? 780.14 What requirements apply to the use comprehensive and reliable information abandoned underground mines within of existing structures? on how you propose to conduct surface or underlying the proposed permit and 780.15 What plans for the use of explosives mining activities and reclaim the adjacent areas. must I include in my application? disturbed area in compliance with the (24) Any underground mine openings 780.16 What must I include in the fish and Act, this chapter, and the regulatory to the surface within the proposed wildlife protection and enhancement program. permit and adjacent areas. plan? (25) The location and extent of 780.18 [Reserved] § 780.4 What responsibilities do I and existing or previously surface-mined 780.19 What baseline information on government agencies have under this part? areas within the proposed permit area. hydrology, geology, and aquatic biology (a) You, the permit applicant, must (26) The location and dimensions of must I provide? provide to the regulatory authority all existing areas of spoil, coal mine waste, 780.20 How must I prepare the information required by this part, except noncoal mine waste disposal sites, determination of the probable hydrologic consequences of my proposed operation where specifically exempted in this dams, embankments, other (PHC determination)? part. impoundments, and water treatment 780.21 What requirements apply to (b) State and federal governmental facilities within the proposed permit preparation and review of the agencies must provide information area. cumulative hydrologic impact needed for permit applications to the (27) The location and, if available, the assessment (CHIA)? extent that this part specifically requires depth of all gas and oil wells within the 780.22 What information must I include in that they do so. proposed permit and adjacent areas. the hydrologic reclamation plan and You must identify the lateral extent of what information must I provide on § 780.10 Information collection. the well bores unless that information is alternative water sources? In accordance with 44 U.S.C. 3501 et 780.23 What information must I include in confidential under state law. You may seq., the Office of Management and plans for the monitoring of groundwater, Budget (OMB) has approved the provide information concerning well surface water, and the biological depth in a table cross-referenced to a condition of streams during and after information collection requirements of map if approved by the regulatory mining? this part and assigned it control number authority. 780.24 What requirements apply to the 1029–0036. Sections 507 and 508 of (28) Other relevant information postmining land use? SMCRA contain permit application required by the regulatory authority. 780.25 What information must I provide for requirements for surface coal mining (b) Maps, plans, and cross-sections siltation structures, impoundments, and activities, including a requirement that required by paragraph (a) of this section refuse piles? the application include an operation must be— 780.26 What special requirements apply to and reclamation plan. The regulatory (1) Prepared by, or under the direction surface mining near underground authority uses this information to mining? of, and certified by a qualified registered 780.27 What additional permitting determine whether the proposed surface professional engineer, a professional requirements apply to activities in or coal mining operation will achieve the geologist, or in any state that authorizes through an ephemeral stream? environmental protection requirements land surveyors to prepare and certify 780.28 What additional permitting of the Act and regulatory program. You, such maps, plans, and cross-sections, a requirements apply to activities in, the permit applicant, must respond to

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00266 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93331

obtain a benefit. A federal agency may detailed timetable for the completion of (ii) Limit compaction of topsoil and not conduct or sponsor, and you are not each major step in the reclamation soil materials in the root zone to the required to respond to, a collection of process including, but not limited to— minimum necessary to achieve stability. information unless it displays a (1) Backfilling. The plan also must identify measures currently valid OMB control number. (2) Grading. that will be used to alleviate soil Send comments regarding burden (3) Establishment of the surface compaction if necessary. estimates or any other aspect of this drainage pattern and stream-channel (iii) Handle acid-forming and toxic- collection of information, including configuration approved in the permit, forming materials, if present, to prevent suggestions for reducing the burden, to including construction of appropriately- the formation of acid or toxic drainage the Office of Surface Mining designed perennial, intermittent, and from acid-forming and toxic-forming Reclamation and Enforcement, ephemeral stream channels to replace materials within the overburden. The Information Collection Clearance those removed by mining, to the extent plan must be consistent with paragraph Officer, Room 203–SIB, 1951 and in the form required by §§ 780.27, (n) of this section and § 816.38 of this Constitution Avenue NW., Washington, 780.28, 816.56, and 816.57 of this chapter. DC 20240. chapter. (e) Soil handling plan.—(1) General (4) Soil redistribution. requirements. (i) The reclamation plan § 780.11 What must I include in the description of my proposed operations? (5) Planting of all vegetation in must include a plan and schedule for accordance with the revegetation plan removal, storage, and redistribution of Your application must contain a approved in the permit, including topsoil, subsoil, and other material to be description of the mining operations establishment of streamside vegetative used as a final growing medium in that you propose to conduct during the corridors along the banks of perennial, accordance with § 816.22 of this life of the mine within the proposed intermittent, and ephemeral streams chapter. It also must include a plan and permit area, including, at a minimum, when required by §§ 816.56(c) and schedule for removal, storage, and the following: 816.57(d) of this chapter. redistribution or other use of organic (a) A narrative description of the— (6) Demonstration of revegetation matter in accordance with § 816.22(f) of (1) Type and method of coal mining success. this chapter. procedures and proposed engineering (7) Demonstration of restoration of the (ii) Except as provided in paragraphs techniques. ecological function of all reconstructed (e)(1)(iii) and (iv) of this section, the (2) Anticipated annual and total perennial and intermittent stream plan submitted under paragraph (e)(1)(i) number of tons of coal to be produced. segments. of this section must require that the B (3) Major equipment to be used for all soil horizon, the C soil horizon, and aspects of the proposed operations. (8) Application for each phase of bond other underlying strata, or portions of (b) A narrative explaining the release under § 800.42 of this chapter. those soil horizons and strata, be construction, modification, use, (c) Reclamation cost estimate. The removed separately, stockpiled if maintenance, and removal (unless you reclamation plan must contain a necessary, and redistributed to the can satisfactorily explain why retention detailed estimate of the cost of extent and in the manner needed to is necessary or appropriate for the reclamation, including both direct and achieve the optimal rooting depths postmining land use specified in the indirect costs, of those elements of the required to restore premining land use application under § 780.24 of this part) proposed operations that are required to capability and to comply with the of the following facilities: be covered by a performance bond revegetation requirements of §§ 816.111 (1) Dams, embankments, and other under part 800 of this chapter, with and 816.116 of this chapter. impoundments. supporting calculations for the (2) Overburden and soil handling and estimates. You must use current (iii) The plan submitted under storage areas and structures. standardized construction cost paragraph (e)(1)(i) of this section need (3) Coal removal, handling, storage, estimation methods and equipment cost not require salvage of those soil cleaning, and transportation areas and guides or up-to-date actual contracting horizons which you demonstrate, to the structures. costs incurred by the regulatory satisfaction of the regulatory authority, (4) Spoil, coal processing waste, and authority for similar activities to prepare are inferior to other overburden noncoal mine waste removal, handling, this estimate. materials as a plant growth medium, storage, transportation, and disposal (d) Backfilling and grading plan. (1) provided you comply with the soil areas and structures. The reclamation plan must contain a substitute requirements of paragraph (5) Mine facilities. plan for backfilling the mined area, (e)(2) of this section. (6) Water pollution control facilities. compacting the backfill, and grading the (iv) The plan submitted under disturbed area, with contour maps, paragraph (e)(1)(i) of this section may § 780.12 What must the reclamation plan models, or cross-sections that show in allow blending of the B soil horizon, the include? detail the anticipated final surface C soil horizon, and underlying strata, or (a) General requirements. Your configuration of the proposed permit portions thereof, to the extent that application must contain a plan for the area, including drainage patterns, in research or prior experience under reclamation of the lands to be disturbed accordance with §§ 816.102 through similar conditions has demonstrated within the proposed permit area. The 816.107 of this chapter, using the best that blending will not adversely affect plan must show how you will comply technology currently available. soil productivity. with the operation and reclamation (2) The backfilling and grading plan (v) The plan submitted under requirements of the applicable must describe in detail how you will paragraph (e)(1)(i) of this section must regulatory program. At a minimum, the conduct backfilling and related explain how you will handle and, if plan must include all information reclamation activities, including how necessary, store soil materials to avoid required under this part and part 785 of you will— contamination by acid-forming or toxic- this chapter. (i) Compact spoil to reduce forming materials and to minimize (b) Reclamation timetable. The infiltration to minimize leaching and deterioration of desirable soil reclamation plan must contain a discharges of parameters of concern. characteristics.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00267 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93332 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(2) Substitutes and supplements. (i) (B) A comparison and analysis of the (B) To the extent practicable and You must identify each soil horizon for thickness, total depth, texture, percent consistent with other revegetation and which you propose to use appropriate coarse fragments, pH, and areal extent of regulatory program requirements, the overburden materials as either a the different kinds of soil horizons and species mix must include native supplement to or a substitute for the overburden materials available within pollinator-friendly plants and the existing topsoil or subsoil on the the proposed permit area, based upon a planting arrangements must promote the proposed permit area. For each of those statistically-valid sampling procedure. establishment of pollinator-friendly horizons, you must demonstrate, and (iv) You must include a plan for habitat. the regulatory authority must find in testing and evaluating overburden (vi) The planting and seeding writing, that— materials during both removal and techniques that you will use. (A)(1) The quality of the existing redistribution to ensure that only (vii) Whether you will apply mulch topsoil and subsoil is inferior to that of materials approved for use as soil and, if so, the type of mulch and the the best overburden materials available; substitutes or supplements are removed method of application. or and redistributed. (viii) Whether you plan to conduct (2) The quantity of the existing topsoil (f) Surface stabilization plan. The irrigation or apply fertilizer after the and subsoil is insufficient to provide an reclamation plan must contain a plan first growing season and, if so, to what optimal rooting depth. In this case, the for stabilizing road surfaces, extent and for what length of time. plan must require that all available redistributed soil materials, and other (ix) Any normal husbandry practices existing topsoil and favorable subsoil, exposed surface areas to effectively that you plan to use in accordance with regardless of the amount, be removed, control erosion and air pollution § 816.115(d) of this chapter. stored, and redistributed as part of the attendant to erosion in accordance with (x) The standards and evaluation final growing medium unless the §§ 816.95, 816.150, and 816.151 of this techniques that you propose to use to conditions described in paragraph chapter. determine the success of revegetation in (e)(2)(i)(A)(1) of this section also apply. (g) Revegetation plan. (1) The accordance with § 816.116 of this (B) The use of the overburden reclamation plan must contain a plan chapter. materials that you have selected, in for revegetation consistent with (xi) The measures that you will take combination with or in place of the §§ 816.111 through 816.116 of this to avoid the establishment of invasive existing topsoil or subsoil, will result in chapter, including, but not limited to, species on reclaimed areas or to control a soil medium that is more suitable than descriptions of— those species if they do become the existing topsoil and subsoil to (i) The schedule for revegetation of established. support and sustain vegetation the area to be disturbed. (2) Except as provided in paragraphs consistent with the postmining land use (ii) The site preparation techniques (g)(4) and (5) of this section, the species and the revegetation plan under that you plan to use, including the and planting rates and arrangements paragraph (g) of this section and that measures that you will take to avoid or, selected as part of the revegetation plan will provide a rooting depth that is when avoidance is not possible, to must be designed to create a diverse, superior to the existing topsoil and minimize and alleviate compaction of effective, permanent vegetative cover subsoil. the root zone during backfilling, that is consistent with the native plant (C) The overburden materials that you grading, soil redistribution, and communities and natural succession select for use as a soil substitute or planting. process described in the permit supplement are the best materials (iii) What soil tests you will perform, application in accordance with § 779.19 available to support and sustain together with a statement as to whether of this chapter. vegetation consistent with the you will apply lime, fertilizer, or other (3) The species selected as part of the postmining land use and the amendments in response to those tests revegetation plan must— revegetation plan under paragraph (g) of before planting or seeding. (i) Be native to the area. The this section. (iv) The species that you will plant to regulatory authority may approve the (ii) For purposes of paragraph (e)(2)(i) achieve temporary erosion control or, if use of introduced species as part of the of this section, the regulatory authority you do not intend to establish a permanent vegetative cover for the site will specify the— temporary vegetative cover, a only if— (A) Suitability criteria for substitutes description of other soil stabilization (A) The introduced species are both and supplements. measures that you will implement in non-invasive and necessary to achieve (B) Chemical and physical analyses, lieu of planting a temporary cover. the postmining land use; field trials, or greenhouse tests that you (v) The species that you will plant (B) Planting of native species would must conduct to make the and the seeding and stocking rates and be inconsistent with the approved demonstration required by paragraph planting arrangements that you will use postmining land use; and (e)(2)(i) of this section. to achieve or complement the (C) The approved postmining land use (C) Sampling objectives and postmining land use, enhance fish and is implemented before the entire bond techniques and the analytical wildlife habitat, and achieve the amount for the area has been fully techniques that you must use for streamside vegetative corridor released under §§ 800.40 through 800.43 purposes of paragraph (e)(2)(ii)(B) of requirements of §§ 816.56(c) and of this chapter. this section. 816.57(d) of this chapter, when (ii) Be capable of stabilizing the soil (iii) At a minimum, the applicable. surface from erosion to the extent that demonstrations required by paragraph (A) Revegetation plans that involve control of erosion with herbaceous (e)(2)(i) of this section must include— the establishment of trees and shrubs ground cover is consistent with (A) The physical and chemical soil must include site-specific planting establishment of a permanent vegetative characteristics and root zones needed to prescriptions for canopy trees, cover that resembles native plant support and sustain the type of understory trees and shrubs, and communities in the area. vegetation to be established on the herbaceous ground cover compatible (iii) Be compatible with the approved reclaimed area. with establishment of trees and shrubs. postmining land use.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00268 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93333

(iv) Have the same seasonal combustion of combustible noncoal materials with spoil of sufficient characteristics of growth, consistent materials. alkalinity to prevent the development of with the appropriate stage of natural (k) Management of mine openings, acid drainage. succession, as the native plant boreholes, and wells. The reclamation (B) Place acid-forming and toxic- communities described in the permit plan must contain a description, forming materials in a location below application in accordance with § 779.19 including appropriate cross-sections the water table where they will remain of this chapter. and maps, of the measures that you will fully saturated at all times, provided (v) Be capable of self-regeneration and use to seal or manage mine openings, that you demonstrate, and the regulatory natural succession. and to plug, case or manage exploration authority finds in writing in the permit, (vi) Be compatible with the plant and holes, boreholes, wells and other that complete saturation will prevent animal species of the area. openings within the proposed permit the formation of acid or toxic mine (vii) Meet the requirements of area, in accordance with § 816.13 of this drainage. applicable state and federal seed, chapter. (C) Isolate acid-forming and toxic- noxious plant, and introduced species (l) Compliance with Clean Air Act and forming materials by completely laws and regulations. Clean Water Act. The reclamation plan surrounding them with compacted (4) The regulatory authority may grant must describe the steps that you have material with a hydraulic conductivity an exception to the requirements of taken or will take to comply with the at least two orders of magnitude lower paragraphs (g)(3)(i), (iv), and (v) of this requirements of the Clean Air Act (42 than the hydraulic conductivity of the section when necessary to achieve a U.S.C. 7401 et seq.), the Clean Water Act adjacent spoil. quick-growing, temporary, stabilizing (33 U.S.C. 1251 et seq.), and other (2) The plan developed under cover on disturbed and regraded areas, applicable air and water quality laws paragraph (n)(1) of this section may and the species selected to achieve this and regulations and health and safety allow the placement of acid-forming and purpose will not impede the standards. toxic-forming materials in an excess establishment of permanent vegetation. (m) Consistency with land use plans spoil fill or a coal mine waste refuse (5) The regulatory authority may grant and surface owner plans. The pile, using one or more of the an exception to the requirements of reclamation plan must describe how the techniques identified in paragraphs paragraphs (g)(2), (g)(3)(iv), and (g)(3)(v) proposed operation is consistent with— (n)(1)(ii)(A) through (C) of this section. (1) All applicable state and local land of this section for those areas with a (3) If the baseline geologic use plans and programs. long-term, intensive, agricultural information collected under (2) The plans of the surface § 780.19(e)(3) of this chapter indicates postmining land use. landowner, to the extent that those (6) A qualified, experienced biologist, the presence of acid-forming or toxic- plans are practicable and consistent forming material in the stratum soil scientist, forester, or agronomist with this chapter and with other must prepare or approve all revegetation immediately below the lowest coal seam applicable laws and regulations. to be mined, you must identify the plans. (n) Handling of acid-forming and (h) Stream protection and measures that you will take to prevent toxic-forming materials. (1) If the any adverse hydrologic impacts that reconstruction plan. The reclamation baseline geologic information collected plan must describe how you will might develop as a result of exposure of under § 780.19(e)(3) of this part that stratum during the mining process. comply with the stream reconstruction indicates the presence of acid-forming requirements of §§ 780.27 and 816.56 of or toxic-forming materials in any § 780.13 What additional maps and plans this chapter for ephemeral streams and stratum above the lowest coal seam to must I include in the reclamation plan? the stream protection, stream be mined, you must develop a plan to (a) In addition to the maps and plans reconstruction, and functional prevent any adverse hydrologic impacts required under § 779.24 and other restoration requirements of §§ 780.28 that may result from exposure and provisions of this subchapter, your and 816.57 of this chapter for perennial fracturing of that stratum during the application must include maps, plans, and intermittent streams. mining process and demonstrate how and cross-sections of the proposed (i) Coal resource conservation plan. you will handle the materials to protect permit area showing— The reclamation plan must describe the groundwater and surface water. At a (1) The lands that you propose to measures that you will employ to minimum the plan must— affect throughout the life of the maximize the use and conservation of (i) Identify the anticipated postmining operation, including the sequence and the coal resource while using the best groundwater level for all locations timing of surface mining activities and technology currently available to within the mined-out area at which you the sequence and timing of backfilling, maintain environmental integrity, as propose to place acid-forming or toxic- grading, and other reclamation activities required by § 816.59 of this chapter. forming materials within the backfill. on areas where the operation will (j) Plan for disposal of noncoal waste (ii) Explain how you will use one of disturb the land surface. materials. The reclamation plan must the techniques in paragraphs (2) Each area of land for which a describe— (n)(1)(ii)(A) through (C) of this section performance bond or equivalent (1) The type and quantity of noncoal when placing those materials in the guarantee will be posted under part 800 waste materials that you anticipate backfill, as appropriate and as approved of this chapter. disposing of within the proposed permit by the regulatory authority, to prevent (3) Any change that the proposed area. the formation of acid or toxic mine operations will cause in a facility or (2) How you intend to dispose of drainage or other discharges that would feature identified under § 779.24 of this noncoal waste materials in accordance require long-term treatment after mining chapter. with § 816.89 of this chapter. has been completed: (4) All buildings, utility corridors, and (3) The locations of any proposed (A) Treat or otherwise neutralize acid- facilities to be used or constructed noncoal waste material disposal sites forming and toxic-forming materials to within the proposed permit area, with within the proposed permit area. prevent the formation of acid or toxic identification of those facilities that you (4) The contingency plans that you mine drainage. This technique may propose to retain as part of the have developed to preclude sustained include the blending of acid-forming postmining land use.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00269 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93334 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(5) Each coal storage, cleaning, (c) The regulatory authority may and the methods to be applied in processing, and loading area and require that you submit the materials controlling the adverse effects of facility. required by paragraph (a) of this section blasting operations. (6) Each temporary storage area for in a digital format. (b) Monitoring system. Each soil, spoil, coal mine waste, and noncoal application must contain a description mine waste. § 780.14 What requirements apply to the of any system to be used to monitor use of existing structures? (7) Each water diversion, collection, compliance with the standards of conveyance, treatment, storage and (a) Each application must contain a § 816.67 including the type, capability, discharge facility to be used, including description of every existing structure and sensitivity of any blast-monitoring the location of each point at which that you propose to use in connection equipment and proposed procedures water will be discharged from the with or to facilitate surface coal mining and locations of monitoring. proposed permit area to a surface-water and reclamation operations. The (c) Blasting near underground mines. body and the name of that water body. description must include— Blasting operations within 500 feet of (8) Each disposal facility for coal mine (1) The location of the structure. active underground mines require waste and noncoal mine waste (2) Plans of the structure. approval of the state and federal materials. (3) A description of the current regulatory authorities concerned with (9) Each feature and facility to be condition of the structure. the health and safety of underground constructed to protect or enhance fish, (4) The approximate dates when the miners. structure was originally built. wildlife, and related environmental § 780.16 What must I include in the fish values. (5) A showing, including relevant monitoring data or other evidence, of and wildlife protection and enhancement (10) Each explosive storage and whether the structure meets the plan? handling facility. permanent program performance (a) General requirements. Your (11) The location of each siltation standards of subchapter K of this application must include a fish and structure, sedimentation pond, chapter or, if the structure does not meet wildlife protection and enhancement permanent water impoundment, refuse the performance standards of plan that— pile, and coal mine waste impoundment subchapter K of this chapter, a showing (1) Is consistent with the requirements for which plans are required by § 780.25 of whether the structure meets the of § 816.97 of this chapter. of this part, and the location of each initial program performance standards (2) Is specific to the resources excess spoil fill for which plans are of subchapter B of this chapter. identified under § 779.20 of this required under § 780.35 of this part. (b) Each application must contain a chapter. (12) Each segment of a perennial or compliance plan for every existing (3) Complies with the requirements of intermittent stream that you propose to structure that you propose to modify or paragraphs (b) through (f) of this mine through, bury, or divert. reconstruct for use in connection with section. (13) Each location in which you or to facilitate surface coal mining and (b) Requirements related to the propose to restore a perennial or reclamation operations. The compliance Endangered Species Act of 1973. (1) intermittent stream or construct a plan must include— Paragraphs (b)(2) and (3) of this section temporary or permanent diversion of a (1) Design specifications for the apply when the proposed operation may perennial or intermittent stream. modification or reconstruction of the affect species listed or proposed for (14) Each streamside vegetative structure to meet the design and listing as threatened or endangered corridor that you propose to establish. performance standards of subchapter K under the Endangered Species Act of (15) Each segment of a perennial or of this chapter. 1973, 16 U.S.C. 1531 et seq., or intermittent stream that you propose to (2) A schedule for the initiation and designated or proposed critical habitat enhance under the plan submitted in completion of any modification or under that law. accordance with § 780.16 of this part. reconstruction under paragraph (b)(1) of (2) You must describe the steps that (16) The location and geographic this section. you have taken or will take to comply coordinates of each monitoring point for (3) Provisions for monitoring the with the Endangered Species Act of groundwater and surface water. structure during and after modification 1973, 16 U.S.C. 1531 et seq., including (17) The location and geographic or reconstruction to ensure that the any biological opinions developed coordinates of each point at which you performance standards of subchapter K under section 7 of that law and any propose to monitor the biological of this chapter are met. species-specific habitat conservation condition of perennial and intermittent (4) A demonstration that there is no plans developed in accordance with streams. significant risk of harm to the section 10 of that law. (b) Except as provided in environment or to public health or (3) The regulatory authority may not §§ 780.25(a)(2), 780.25(a)(3), 780.35, safety during modification or approve the permit application before 816.74(c), and 816.81(c) of this chapter, reconstruction of the structure. there is a demonstration of compliance maps, plans, and cross-sections required with the Endangered Species Act of under paragraphs (a)(5), (6), (7), (10), § 780.15 What plans for the use of 1973, 16 U.S.C. 1531 et seq., through and (11) of this section must be explosives must I include in my one of the mechanisms listed in prepared by, or under the direction of, application? § 773.15(j) of this chapter. and certified by a qualified registered (a) Blasting plan. Each application (c) Protection of fish, wildlife, and professional engineer, a professional must contain a blasting plan for the related environmental values in general. geologist, or, in any state that authorizes proposed permit area, explaining how You must describe how, to the extent land surveyors to prepare and certify you will comply with the requirements possible using the best technology maps, plans, and cross-sections, a of §§ 816.61 through 816.68 of this currently available, you will minimize qualified registered professional land chapter. This plan must include, at a disturbances and adverse impacts on surveyor, with assistance from experts minimum, information setting forth the fish, wildlife, and related environmental in related fields such as landscape limitations on ground vibration and values. At a minimum, you must architecture. airblast, the bases for those limitations, explain how you will—

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00270 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93335

(1) Retain forest cover and other (5) Implement other appropriate endangered on a state, tribal, or national native vegetation as long as possible and conservation practices such as, but not level. time the removal of that vegetation to limited to, those identified in the (v) Establishing a vegetative corridor minimize adverse impacts on aquatic technical guides published by the along the banks of streams where there and terrestrial species. Natural Resources Conservation Service. is no such corridor before mining but (2) Locate and design sedimentation (d) Enhancement measures.—(1) where a vegetative corridor typically ponds, utilities, support facilities, roads, General requirements. (i) You must would exist under natural conditions. rail spurs, and other transportation describe how, to the extent possible, Species selected for planting within the facilities to avoid or minimize adverse you will use the best technology corridor must be comprised of species impacts on fish, wildlife, and related currently available to enhance fish, native to the area, including native environmental values. wildlife, and related environmental plants adapted to and suitable for (3) Except as provided under values both within and outside the area planting in any floodplains or other § 780.12(g)(4) of this part, select non- to be disturbed by mining activities, riparian zones located within the invasive native species for revegetation where practicable. Your application corridor. Whenever possible, you that either promote or do not inhibit the must identify the enhancement should establish this corridor along both long-term development of wildlife measures that you propose to banks of the stream, preferably with a habitat. implement and the lands upon which minimum corridor width of 100 feet (4)(i) Avoid mining through wetlands you propose to implement those along each bank. or perennial or intermittent streams or measures. Those measures may include (vi) Implementing conservation disturbing riparian habitat adjacent to some or all the potential enhancement practices identified in publications, those streams. When avoidance is not measures listed in paragraph (d)(2) of such as the technical guides published possible, minimize— this section, but they are not limited to by the Natural Resources Conservation (A) The time during which mining the measures listed in paragraph (d)(2) Service. and reclamation operations disrupt of this section. (vii) Permanently fencing livestock wetlands or streams or riparian habitat (ii) If your application includes no away from perennial and intermittent associated with streams; proposed enhancement measures under streams and wetlands. (B) The length of stream mined paragraph (d)(1)(i) of this section, you (viii) Installing perches and nest through; and must explain, to the satisfaction of the boxes. (ix) Establishing conservation (C) The amount of wetlands or regulatory authority, why easements or deed restrictions, with an riparian habitat disturbed by the implementation of enhancement emphasis on preserving riparian operation. measures is not practicable. vegetation and forested corridors along (ii) If you propose to mine through or (2) Potential enhancement measures. Potential enhancement measures perennial and intermittent streams. discharge dredged or fill material into (x) Providing funding to cover long- include, but are not limited to— wetlands or streams that are subject to term operation and maintenance costs (i) Using the backfilling and grading the jurisdiction of the Clean Water Act, that watershed organizations incur in process to create postmining surface 33 U.S.C. 1251 et seq., your application treating long-term postmining features and configurations, such as must identify the authorizations, discharges from previous mining functional wetlands, of high value to certifications, and permits that you operations. anticipate will be needed under the fish and wildlife. (xi) Reclaiming previously mined Clean Water Act and describe the steps (ii) Designing and constructing areas located outside the area that you that you have taken or will take to permanent impoundments in a manner propose to disturb for coal extraction. procure those authorizations, that will maximize their value to fish (xii) Implementing measures to certifications, and permits. The and wildlife. reduce or eliminate existing sources of regulatory authority will process your (iii) Creating rock piles and other surface-water or groundwater pollution. application and may issue the permit permanent landscape features of value (3) Additional enhancement before you obtain all necessary to raptors and other wildlife for nesting requirements for operations with authorizations, certifications, and and shelter, to the extent that those anticipated long-term adverse impacts. permits under the Clean Water Act, 33 features are consistent with features that (i) The exception in paragraph (d)(1)(ii) U.S.C. 1251 et seq., provided your existed on the site before any mining, of this section does not apply if your application meets all applicable the surrounding topography, and the proposed surface mining activities requirements of subchapter G of this approved postmining land use. would result in the— chapter. Issuance of a permit under (iv) Reestablishing native forests or (A) Temporary or permanent loss of subchapter G of this chapter does not other native plant communities, both mature native forest or other native authorize you to conduct any surface within and outside the permit area. This plant communities that cannot be mining activity in or affecting waters may include restoring the native plant restored fully before final bond release subject to the jurisdiction of the Clean communities that existed before any under §§ 800.40 through 800.43 of this Water Act before you obtain any mining, establishing native plant chapter or required Clean Water Act authorization, communities consistent with the native (B) Permanent loss of wetlands or a certification, or permit. Information plant communities that are a part of the segment of a perennial or intermittent submitted and analyses conducted natural succession process, establishing stream. under subchapter G of this chapter may native plant communities designed to (ii) Whenever the conditions inform the agency responsible for restore or expand native pollinator described in paragraph (d)(3)(i) of this authorizations, certifications, and populations and habitats, or establishing section apply, the scope of the permits under the Clean Water Act, but native plant communities that will enhancement measures that you they are not a substitute for the reviews, support wildlife species of local, state, propose under paragraph (d)(1)(i) of this authorizations, certifications, and tribal, or national concern, including, section must be commensurate with the permits required under the Clean Water but not limited to, species listed or magnitude of the long-term adverse Act. proposed for listing as threatened or impacts of the proposed operation.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00271 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93336 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Whenever possible, the measures must or species proposed for listing as proposed critical habitat under that law, be permanent. threatened or endangered under that or to species proposed for listing as (iii)(A) Enhancement measures law. The regulatory authority must threatened or endangered under that proposed under paragraph (d)(3)(ii) of provide the resource information and law. this section must be implemented the protection and enhancement plan to within the watershed in which the the appropriate Service(s) no later than § 780.17 [Reserved] proposed operation is located, unless the time that it provides written notice § 780.18 [Reserved] opportunities for enhancement are not of the permit application to available within that watershed. In that governmental agencies under § 780.19 What baseline information on case, you must propose to implement § 773.6(a)(3)(ii) of this chapter. hydrology, geology, and aquatic biology enhancement measures in the closest (ii)(A) When the resource information must I provide? adjacent watershed in which obtained under § 779.20 of this chapter (a)(1) General requirements. Your enhancement opportunities exist, as does not include species listed as permit application must include approved by the regulatory authority. threatened or endangered under the information on the hydrology, geology, (B) Each regulatory program must Endangered Species Act of 1973, 16 and aquatic biology of the proposed prescribe the size of the watershed for U.S.C. 1531 et seq., designated or permit area and the adjacent area in purposes of paragraph (d)(3)(iii)(A) of proposed critical habitat under that law, sufficient detail to assist in— this section, using a generally-accepted or species proposed for listing as (i) Determining the probable watershed classification system. threatened or endangered under that hydrologic consequences of the (4) Inclusion within permit area. If the law, the regulatory authority must operation upon the quality and quantity enhancement measures to be provide the resource information and of surface water and groundwater in the implemented under paragraphs (d)(1) the protection and enhancement plan to proposed permit and adjacent areas, as through (d)(3) of this section would the appropriate regional or field office of required under § 780.20 of this part. involve more than a de minimis the U.S. Fish and Wildlife Service only (ii) Determining the nature and extent disturbance of the surface of land if the Service requests an opportunity to of both the hydrologic reclamation plan outside the area to be mined, you must review and comment on the resource required under § 780.22 of this part and include the land to be disturbed by information and the protection and the monitoring plans required under those measures within the proposed enhancement plan. § 780.23 of this part. permit area. (B) The regulatory authority must (e) Fish and Wildlife Service or provide the resource information and (iii) Determining whether reclamation National Marine Fisheries Service the protection and enhancement plan to as required by this chapter can be review. (1)(i) The regulatory authority the Service under paragraph (e)(1)(ii)(A) accomplished. must provide the protection and of this section within 10 days of receipt (iv) Preparing the cumulative enhancement plan developed under this of a request from the Service to review hydrologic impact assessment under section and the resource information the resource information and the § 780.21 of this part, including an submitted under § 779.20 of this chapter protection and enhancement plan. evaluation of whether the proposed to the appropriate regional or field office (2) The regulatory authority must operation has been designed to prevent of the U.S. Fish and Wildlife Service or document the disposition of comments material damage to the hydrologic the National Marine Fisheries Service, that it receives from the applicable balance outside the permit area. as applicable, whenever the resource Service(s) in response to the distribution (2) Core baseline water-quality data information submitted under § 779.20 of made under paragraph (e)(1)(i) of this requirements for surface water and this chapter includes species listed as section to the extent that those groundwater. You must provide the threatened or endangered under the comments pertain to species listed as following water-quality information for Endangered Species Act of 1973, 16 threatened or endangered under the each groundwater and surface-water U.S.C. 1531 et seq., designated or Endangered Species Act of 1973, 16 sample collected for baseline data proposed critical habitat under that law, U.S.C. 1531 et seq., to designated or purposes.

Parameter Surface water Groundwater

pH ...... Yes ...... Yes. Specific conductance corrected to 25°C (conductivity) ...... Yes ...... Yes. Total dissolved solids ...... Yes ...... Yes. Total suspended solids ...... Yes ...... No. Hot acidity ...... Yes ...... Yes. Total alkalinity ...... Yes ...... Yes. Major anions (dissolved), including, at a minimum, bicarbonate, sulfate, and chloride ...... Yes ...... Yes. Major anions (total), including, at a minimum, bicarbonate, sulfate, and chloride ...... Yes ...... No. Major cations (dissolved), including, at a minimum, calcium, magnesium, sodium, and potassium ...... Yes ...... Yes. Major cations (total), including, at a minimum, calcium, magnesium, sodium, and potassium ...... Yes ...... No. Cation-anion balance of dissolved major cations and dissolved major anions ...... Yes ...... Yes. Any cation or anion that constitutes a significant percentage of the total ionic charge balance, but that was not included in Yes ...... Yes. the analyses of major anions and major cations. Iron (dissolved) ...... Yes ...... Yes. Iron (total) ...... Yes ...... No. Manganese (dissolved) ...... Yes ...... Yes. Manganese (total) ...... Yes ...... No. Selenium (dissolved) ...... Yes ...... Yes. Selenium (total) ...... Yes ...... No. Any other parameter identified in any applicable National Pollutant Discharge Elimination System permit, if known at the Yes ...... No. time of application for the SMCRA permit. Temperature ...... Yes ...... Yes.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00272 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93337

(b) Groundwater information—(1) (A) Upgradient and downgradient of parameters that the regulatory authority General requirements. Your permit the proposed permit area; and determines to be of local importance. application must include information (B) Within the proposed permit area. (3) Surface-water quantity sufficient to document seasonal (ii)(A) To document seasonal descriptions. (i) At a minimum, surface- variations in the quality, quantity, and variations in groundwater quality and water quantity descriptions for usage of groundwater, including all quantity, you must collect samples and perennial and intermittent streams surface discharges, within the proposed take the measurements identified in within the proposed permit and permit and adjacent areas. paragraph (b)(5) of this section from adjacent areas must include baseline (2) Underground mine pools. If an each location identified in paragraph data documenting— underground mine pool is present (b)(6)(i) of this section at approximately (A) Peak-flow magnitude and within the proposed permit or adjacent equally-spaced monthly intervals for a frequency. areas, you must prepare an assessment minimum of 12 consecutive months. (B) Actual and anticipated usage. (C) Seasonal flow variations. of the characteristics of the mine pool, (B) If approved by the regulatory including seasonal changes in quality, (ii) All flow measurements under authority, you may modify the interval paragraph (c)(3)(i) of this section must quantity, and flow patterns, unless you or the 12-consecutive-month demonstrate, and the regulatory be made using generally-accepted requirement specified in paragraph professional techniques approved by the authority finds, that the mine pool is not (b)(6)(ii)(A) of this section if adverse hydrologically connected to the regulatory authority. All techniques weather conditions make travel to a must be repeatable and must produce proposed permit area. The location specified in paragraph (b)(6)(i) determination of the probable consistent results on successive of this section hazardous or if the water measurements. Visual observations are hydrologic consequences of mining at that location is completely frozen. required under § 780.20 of this part also not acceptable. (C) In lieu of the frequency specified (4) Surface-water sampling must include a discussion of the effect in paragraph (b)(6)(ii)(A) of this section, requirements. (i) You must establish of the proposed mining operation on the regulatory authority may allow you monitoring points at a sufficient number any underground mine pools within the to collect data quarterly for 2 years. The of locations within the proposed permit proposed permit and adjacent areas. regulatory authority may initiate review and adjacent areas to determine the (3) Monitoring wells. The regulatory of the permit application after collection authority must require the installation quality and quantity of water in and analysis of the first four quarterly perennial and intermittent streams of properly-screened monitoring wells groundwater samples, but it may not to document seasonal variations in the within those areas. At a minimum, you approve the application until after must locate monitoring points quality, quantity, and usage of receipt and analysis of the final four groundwater. upgradient and downgradient of the quarterly groundwater samples. proposed permit area in each perennial (4) Groundwater quality descriptions. (D) You must analyze the samples Groundwater quality descriptions must and intermittent stream within the collected in paragraph (b)(6)(ii)(A) of proposed permit and adjacent areas. include baseline information on the this section for the applicable water parameters identified in paragraph (a)(2) (ii)(A) To document seasonal quality parameters identified in variations in surface-water quality and of this section and any additional paragraph (a)(2) of this section and any parameters that the regulatory authority quantity, you must collect samples and other parameters specified by the take the measurements identified in determines to be of local importance. regulatory authority. (5) Groundwater quantity paragraph (c)(3) of this section from (iii) You must provide the Palmer descriptions. At a minimum, each location identified in paragraph Drought Severity Index for the proposed groundwater quantity descriptions must (c)(4)(i) of this section at approximately permit and adjacent areas for the initial include baseline data documenting equally-spaced monthly intervals for a baseline data collection period under seasonal variations in— minimum of 12 consecutive months. (i) The areal extent and saturated paragraph (b)(6)(ii) of this section. The (B) If approved by the regulatory thickness of all potentially-impacted regulatory authority may extend the authority, you may modify the interval aquifers; and minimum data collection period or the 12-consecutive-month sampling (ii) Approximate rates of groundwater specified in paragraph (b)(6)(ii) of this requirement specified in paragraph discharge or usage and the elevation of section whenever data available from (c)(4)(ii)(A) of this section if adverse the water table or potentiometric head the National Oceanic and Atmospheric weather conditions make travel to a in— Administration or similar databases location specified in paragraph (c)(4)(i) (A) Each water-bearing coal seam to indicate that the region in which the of this section hazardous or if the water be mined. proposed operation is located at that location is completely frozen. (B) Each aquifer above each coal seam experienced severe drought or (C) You must analyze the samples to be mined. abnormally high precipitation during collected under paragraph (c)(4)(ii)(A) of (C) Each potentially-impacted aquifer the initial baseline data collection this section for the applicable below the lowest coal seam to be mined. period. parameters identified in paragraph (a)(2) (6) Groundwater sampling (c) Surface-water information.—(1) of this section and any other parameters requirements. (i) You must establish General requirements. Your permit specified by the regulatory authority.(iii) monitoring wells or equivalent application must include information You must provide the Palmer Drought monitoring points at a sufficient number sufficient to document seasonal Severity Index for the proposed permit of locations within the proposed permit variation in surface-water quality, and adjacent areas for the initial and adjacent areas to determine quantity, and usage within the proposed baseline data collection period under groundwater quality, quantity, and permit and adjacent areas. paragraph (c)(4)(ii) of this section. The movement in each aquifer above or (2) Surface-water quality descriptions. regulatory authority may extend the immediately below the lowest coal seam Surface-water quality descriptions must minimum data collection period to be mined. At a minimum, for each include baseline information on the specified in paragraphs (c)(4)(ii) and (iii) aquifer, you must locate monitoring parameters identified in paragraph (a)(2) of this section whenever data available points— of this section and any additional from the National Oceanic and

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00273 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93338 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Atmospheric Administration or similar (A) Identification of any hydrophytic otherwise to the lowest practical databases indicate that the region in vegetation located within or adjacent to taxonomic level. which the proposed operation is located the stream channel. (B) Result in the calculation of index experienced severe drought or (B) The extent to which streamside values for both stream habitat and abnormally high precipitation during vegetation consists of trees and shrubs. aquatic biota based on the reference the initial baseline data collection (C) The percentage of channel canopy condition. period. coverage. (C) Provide index values that (5) Precipitation measurements. (i) (D) A scientific calculation of the correspond to the capability of the You must provide records of species diversity of the vegetation. stream to support its designated aquatic precipitation amounts for the proposed (iv) You must identify all stream life uses under section 303(c) of the permit area, using on-site, self-recording segments within the proposed permit Clean Water Act, 33 U.S.C. 1313(c). devices. and adjacent areas that appear on the (D) Include a quantitative assessment (ii) Precipitation records must be list of impaired surface waters prepared of in-stream and riparian habitat adequate to generate and calibrate a under section 303(d) of the Clean Water condition. hydrologic model of the site. The Act, 33 U.S.C. 1313(d). You must (E) Describe the technical elements of regulatory authority will determine identify the parameters responsible for the bioassessment protocol, including whether you must create such a model. the impaired condition and the total but not limited to sampling methods, (iii) At the discretion of the regulatory maximum daily loads associated with sampling gear, index period, sample authority, you may use precipitation those parameters, when applicable. processing and analysis, and quality data from a single self-recording device (v) For all perennial, intermittent, and assessment/quality control procedures. to provide baseline data for multiple ephemeral streams within the proposed (viii) Except as provided in paragraph permits located close to each other. permit area and for all perennial and (g) of this section, you must describe the (6) Stream assessments. (i)(A) You intermittent streams within the adjacent biology of each intermittent stream must map and separately identify all area, you must identify the extent of within the proposed permit area, and perennial, intermittent, and ephemeral wetlands adjoining the stream and each intermittent stream within the streams within the proposed permit area describe the quality of those wetlands. adjacent area that could be affected by and all perennial and intermittent (vi) Except as provided in paragraph the proposed operation, whenever an streams within the adjacent area. (g) of this section, you must provide an assessment of the biological condition of (B) The map must show the location those streams is not required under of the channel head of each stream assessment of the biological condition of— paragraph (c)(6)(vi) of this section. identified in paragraph (c)(6)(i)(A) of When obtaining the data needed to this section whenever the applicable (A) Each perennial stream within the proposed permit area. prepare this description, you must— area includes a terminal reach of the (A) Sample each stream using a (B) Each perennial stream within the stream. scientifically defensible sampling adjacent area that could be affected by (C) The map must show the location method or protocol established or the proposed operation. of transition points from ephemeral to endorsed by an agency responsible for (C) Each intermittent stream within intermittent and from intermittent to implementing the Clean Water Act, 33 the proposed permit area, if a perennial (and vice versa, when U.S.C. 1251 et seq.; scientifically defensible protocol has applicable) for each stream identified in (B) Identify benthic been established for assessment of paragraph (c)(6)(i)(A) of this section macroinvertebrates to the genus level intermittent streams in the state or whenever the applicable area includes where possible, otherwise to the lowest region in which the stream is located. such a transition point. If the U.S. Army practical taxonomic level; and Corps of Engineers has determined the (D) Each intermittent stream within (C) Describe the technical elements of location of a transition point, your the adjacent area that could be affected the sampling protocol, including but not application must be consistent with that by the proposed operation, if a limited to sampling methods, sampling determination. scientifically defensible protocol has gear, index period, sample processing (ii)(A) For all perennial and been established for assessment of and analysis, and quality assessment/ intermittent streams within the intermittent streams in the state or quality control procedures. proposed permit area, you must region in which the stream is located. (d) Additional information for describe the baseline stream pattern, (vii) When determining the biological discharges from previous coal mining profile, and dimensions, with condition of a stream under paragraph operations. If the proposed permit and measurements of channel slope, (c)(6)(vi) of this section, you must adjacent areas contain any point-source sinuosity, water depth, alluvial adhere to a bioassessment protocol discharges from previous surface or groundwater depth, depth to bedrock, approved by the state or tribal agency underground coal mining operations, bankfull depth, bankfull width, width of responsible for preparing the water you must sample those discharges the flood-prone area, and dominant in- quality inventory required under section during low-flow conditions of the stream substrate at a scale and 305(b) of the Clean Water Act, 33 U.S.C. receiving stream on a one-time basis. frequency adequate to characterize the 1315(b), or to other scientifically You must analyze the samples for the entire length of the stream within the defensible bioassessment protocols surface-water parameters identified in proposed permit area. accepted by agencies responsible for paragraph (a)(2) of this section and for (B) You must describe the general implementing the Clean Water Act, 33 both total and dissolved fractions of the stream-channel configuration of U.S.C. 1251 et seq., modified as following parameters— ephemeral streams within the proposed necessary to meet the following (1) Aluminum. permit area. requirements. The protocol must— (2) Arsenic. (iii) For all perennial, intermittent, (A) Be based upon the measurement (3) Barium. and ephemeral streams within the of an appropriate array of aquatic (4) Beryllium. proposed permit area, you must organisms, including, at a minimum, (5) Cadmium. describe the vegetation growing along benthic macroinvertebrates, identified (6) Copper. the banks of each stream, including— to the genus level where possible, (7) Lead.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00274 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93339

(8) Mercury. (5) You may request the regulatory certifications under the Clean Water (9) Nickel. authority to waive the requirements of Act; (10) Silver. paragraph (e)(3) of this section, in whole (2) Minimize differences in baseline (11) Thallium. or in part. The regulatory authority may data collection points and parameters; (12) Zinc. grant the waiver request only after and (e) Geologic information. (1) Your finding in writing that the collection (3) Share data to the extent practicable application must include a description and analysis of such data is unnecessary and consistent with each agency’s of the geology of the proposed permit because other representative mission, statutory requirements, and and adjacent areas down to and information is available to the implementing regulations. including the deeper of either the regulatory authority in a satisfactory (i) Corroboration of baseline data. The stratum immediately below the lowest form. regulatory authority must either coal seam to be mined or any aquifer (f) Cumulative impact area corroborate a sample of the baseline below the lowest coal seam to be mined information. (1) You must obtain the information in your application or that may be adversely impacted by hydrologic, geologic, and biological arrange for a third party to conduct the mining. The description must include— corroboration at your expense. (i) The areal and structural geology of information necessary to assess the impacts of both the proposed operation Corroboration may include, but is not the proposed permit and adjacent areas. limited to, simultaneous sample (ii) Other parameters that may and all anticipated mining on surface- collection and analysis, visual influence the required reclamation. water and groundwater systems in the (iii) An explanation of how the areal cumulative impact area, as required by observation of sample collection, use of and structural geology and other § 780.21 of this part, from the field measurements, or comparison of parameters affect the occurrence, appropriate federal or state agencies, to application data with application or availability, movement, quantity, and the extent that the information is monitoring data from adjacent quality of potentially impacted surface available from those agencies. operations. water and groundwater. (2) If the information identified as § 780.20 How must I prepare the (2) The description required by necessary in paragraph (f)(1) of this determination of the probable hydrologic paragraph (e)(1) of this section must be section is not available from other consequences of my proposed operation based on all of the following— federal or state agencies, you may gather (PHC determination)? (i) The cross-sections, maps, and and submit this information to the (a) Content of PHC determination. plans required by § 779.24 of this regulatory authority as part of the Your permit application must contain a chapter. permit application. As an alternative to determination of the probable (ii) The information obtained under collecting new information, you may hydrologic consequences of the paragraphs (e)(3) and (4) of this section. submit data and analyses from nearby proposed operation upon the quality (iii) Geologic literature and practices. mining operations if the site of those and quantity of surface water and (3) For any portion of the proposed operations is representative of the permit area in which the strata down to groundwater and, except as provided in proposed operations in terms of § 780.19(g) of this part, upon the biology the coal seam or seams to be mined will topography, hydrology, geology, be removed or are already exposed, you of perennial and intermittent streams geochemistry, and method of mining. under seasonal flow conditions for the must collect and analyze samples (3) The regulatory authority may not collected from test borings; drill cores; proposed permit and adjacent areas. approve the permit application until the You must base the PHC determination or fresh, unweathered, uncontaminated information identified as necessary in samples from rock outcrops, down to on an analysis of the baseline paragraph (f)(1) of this section has been hydrologic, geologic, biological, and and including the deeper of either the made available to the regulatory stratum immediately below the lowest other information required under authority and the regulatory authority § 780.19 of this part. It must include coal seam to be mined or any aquifer has used that information to prepare the below the lowest seam to be mined that findings on: cumulative hydrologic impact (1) Whether the operation may cause may be adversely impacted by mining. assessment required by § 780.21 of this Your application must include the material damage to the hydrologic part. following data and analyses: balance outside the permit area. (i) Logs showing the lithologic (g) Exception for operations that avoid (2) Whether acid-forming or toxic- characteristics, including physical streams. Upon your request, the forming materials are present that could properties and thickness of each regulatory authority may waive the result in the contamination of surface stratum, and the location of any biological information requirements of water or groundwater, including, but groundwater encountered. paragraphs (c)(6)(vi) through (viii) of not limited to, a discharge of toxic mine (ii) Chemical analyses identifying this section if you demonstrate, and if drainage after the completion of land those strata that may contain acid- the regulatory authority finds in writing, reclamation. forming materials, toxic-forming that your operation will not— (3) Whether the proposed operation materials, or alkalinity-producing (1) Mine through or bury a perennial may result in contamination, materials and the extent to which each or intermittent stream; diminution, or interruption of an stratum contains those materials. (2) Create a point-source discharge to underground or surface source of water (iii) Chemical analyses of all coal any perennial, intermittent, or within the proposed permit or adjacent seams for acid-forming or toxic-forming ephemeral stream; or areas that is used for a domestic, materials, including, but not limited to, (3) Modify the base flow of any agricultural, industrial, or other total sulfur and pyritic sulfur. perennial or intermittent stream. legitimate purpose. (4) You must provide any additional (h) Coordination with Clean Water (4) Whether the proposed operation geologic information and analyses that Act agencies. The regulatory authority will intercept aquifers in overburden the regulatory authority determines to will make best efforts to— strata or aquifers in underground mine be necessary to protect the hydrologic (1) Consult in a timely manner with voids (mine pools) or create aquifers in balance or to meet the performance the agencies responsible for issuing spoil placed in the backfilled area and, standards of this chapter. permits, authorizations, and if so, what impacts the operation would

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00275 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93340 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

have on those aquifers, both during § 780.21 What requirements apply to (ii) The quality and quantity of water mining and after reclamation, and the preparation, use, and review of the needed to support, maintain, or attain effect of those impacts on the hydrologic cumulative hydrologic impact assessment each— balance. (CHIA)? (A) Designated use of surface water (5) What impact the proposed (a) General requirements. (1) The under section 303(c) of the Clean Water operation will have on: regulatory authority must prepare a Act, 33 U.S.C. 1313(c), or, if there are no (i) Sediment yield and transport from written assessment of the probable designated uses, each premining use of the area to be disturbed. cumulative hydrologic impacts of the surface water. (ii) The quality of groundwater and proposed operation and all anticipated (B) Premining use of groundwater. surface water within the proposed mining upon surface-water and (iii) A description and/or maps of the permit and adjacent areas. At a groundwater systems in the cumulative local and regional groundwater systems. minimum, unless otherwise specified, impact area. This assessment, which is (iv) To the extent required by the finding must address the impacts of known as the CHIA, must be sufficient § 780.19(c)(6)(vi) of this part, the the operation on both groundwater and to determine, for purposes of permit biological condition of perennial and surface water in terms of the parameters application approval, whether the intermittent streams and, to the extent listed in § 780.19(a)(2) of this part and proposed operation has been designed required by § 780.19(c)(6)(viii) of this any additional water quality parameters to prevent material damage to the part, the biology of intermittent streams that the regulatory authority determines hydrologic balance outside the permit not included within § 780.19(c)(6)(vi) of to be of local importance. area. this part. (iii) Flooding and precipitation runoff (2) In preparing the CHIA, the (4) A discussion of any potential patterns and characteristics. regulatory authority must consider concerns identified in the PHC (iv) Peak-flow magnitude and relevant information on file for other determination required under § 780.20 frequency for perennial and intermittent mining operations located within the of this part and how those concerns streams within the proposed permit and cumulative impact area or in similar have been or will be resolved. (5) A qualitative and quantitative adjacent areas. watersheds. assessment of how all anticipated (v) Seasonal variations in streamflow. (3) As provided in § 780.19(f) of this surface and underground mining may (vi) The availability of groundwater part, the regulatory authority may not impact the quality of surface water and and surface water, including the impact approve a permit application until the groundwater in the cumulative impact of any diversion of surface or subsurface hydrologic, geologic, and biological area, expressed in terms of each baseline flows to underground mine workings or information needed to prepare the CHIA parameter identified under § 780.19 of any changes in watershed size as a has been made available to the this part. result of the postmining surface regulatory authority and the regulatory authority has used that information to (6) Site-specific numeric or narrative configuration. thresholds for material damage to the (vii) The biology of perennial and prepare the CHIA. (b) Contents. The CHIA must hydrologic balance outside the permit intermittent streams within the area. These thresholds must also be proposed permit and adjacent areas, include— (1) A map of the cumulative impact included as a condition of the permit. except as provided in § 780.19(g) of this When identifying thresholds to define part. area. At a minimum, the map must identify and display— when material damage to the hydrologic (viii) Other characteristics as required balance outside the permit area would (i) Any difference in the boundaries of by the regulatory authority. occur in connection with a particular the cumulative impact area for (b) Supplemental information. You permit, the regulatory authority will— groundwater and surface water. must provide any supplemental (i) In consultation with the Clean (ii) The locations of all previous, information that the regulatory authority Water Act authority, as appropriate, current, and anticipated surface and determines is needed to fully evaluate undertake a comprehensive evaluation underground mining. the probable hydrologic consequences that considers the following factors— of the proposed operation and to plan (iii) The locations of all baseline data (A) The baseline data collected under remedial and reclamation activities. collection sites within the proposed § 780.19 of this part; This information may include, but is not permit and adjacent areas under (B) The PHC determination prepared limited to, additional drilling, § 780.19 of this part. under § 780.20 of this part; geochemical analyses of overburden (iv) Designated uses of surface water (C) Applicable water quality materials, aquifer tests, hydrogeologic under section 303(c) of the Clean Water standards adopted under the authority analyses of the water-bearing strata, Act, 33 U.S.C. 1313(c). of section 303(c) of the Clean Water Act, analyses of flood flows, or analyses of (2) A description of all previous, 33 U.S.C. 1313(c); other characteristics of water quality or existing, and anticipated surface and (D) Applicable state or tribal quantity, including the stability of underground coal mining within the standards for surface water or underground mine pools that might be cumulative impact area, including, at a groundwater; affected by the proposed operation. minimum, the coal seam or seams (E) Ambient water quality criteria (c) Subsequent reviews of PHC mined or to be mined, the extent of developed under section 304(a) of the determinations. (1) The regulatory mining, and the reclamation status of Clean Water Act, 33 U.S.C. 1314(a); authority must review each application each operation. (F) The biological requirements of any for a permit revision to determine (3) A quantitative and qualitative species listed as threatened or whether a new or updated PHC description of baseline hydrologic endangered under the Endangered determination is needed. information for the proposed permit and Species Act of 1973, 16 U.S.C. 1531 et (2) The regulatory authority must adjacent areas under § 780.19 of this seq., when those species; designated require that you prepare a new or part, including— critical habitat for those species; habitat updated PHC determination if the (i) The quality and quantity of surface occupied by those species, such as review under paragraph (c)(1) of this water and groundwater and seasonal nesting, resting, feeding, and breeding section finds that one is needed. variations therein. areas; and any areas in which those

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00276 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93341

species are present only for a short time, measures to prevent material damage to would be consistent with paragraph but that are important to their the hydrologic balance outside the (b)(9)(i) of this section and would not persistence, such as migration and permit area. result in a violation of the Endangered dispersal corridors, are present within (8) An assessment of how all Species Act of 1973, 16 U.S.C. 1531 et the cumulative impact area; and anticipated surface and underground seq. (G) Other pertinent information and mining may affect groundwater (iv) The proposed operation has been considerations to identify the movement and availability within the designed to protect the quantity and parameters for which thresholds are cumulative impact area. quality of water in any aquifer that necessary. (9) After consultation with the Clean significantly ensures the prevailing (ii) In consultation with the Clean Water Act authority, as appropriate, an hydrologic balance. Water Act authority, adopt numeric evaluation, with references to (c) Subsequent reviews. (1) The thresholds as appropriate, taking into supporting data and analyses, of regulatory authority must review each consideration relevant contaminants for whether the CHIA will support a finding application for a significant permit which there are water quality criteria that the operation has been designed to revision to determine whether a new or under the Clean Water Act, 33 U.S.C. prevent material damage to the updated CHIA is needed. The regulatory 1251 et seq. The regulatory authority hydrologic balance outside the permit authority must document the review, may not adopt a narrative threshold for area. To support this finding, the CHIA including the analysis and conclusions, parameters for which numeric water must include the following together with the rationale for the quality criteria exist under the Clean determinations, with appropriate conclusions, in writing. Water Act, 33 U.S.C. 1251 et seq. documentation, or an explanation of (2) The regulatory authority must (iii) Identify the portion of the why the determination is not necessary reevaluate the CHIA at intervals not to cumulative impact area to which each or appropriate: exceed 3 years to determine whether the threshold applies. Parameters and (i) Except as provided in §§ 780.22(b) CHIA remains accurate and whether the thresholds may vary from subarea to and 816.40 of this chapter, the proposed material damage and evaluation subarea within the cumulative impact operation will not— thresholds in the CHIA and the permit area when appropriate, based upon (A) Cause or contribute to a violation are adequate to ensure that material differences in watershed characteristics of applicable water quality standards damage to the hydrologic balance and variations in the geology, adopted under the authority of section outside the permit area will not occur. hydrology, and biology of the 303(c) of the Clean Water Act, 33 U.S.C. This evaluation must include a review cumulative impact area. 1313(c), or other applicable state or of all biological and water monitoring (iv) Identify the points within the tribal water quality standards; data from both this operation and all cumulative impact area at which the (B) Cause or contribute to a violation other coal mining operations within the permittee will monitor the impacts of of applicable state or tribal groundwater cumulative impact area. the operation on surface water and quality standards; (3) The regulatory authority must groundwater outside the permit area (C) Preclude attainment of a prepare a new or updated CHIA if the and explain how those locations will premining use of a surface water located review conducted under paragraph facilitate timely detection of the impacts outside the permit area when no water (c)(1) or (2) of this section finds that one of the operation on surface water and quality standards have been established is needed. groundwater outside the permit area in for that surface water; or a scientifically defensible manner. The (D) Preclude attainment of any § 780.22 What information must I include permit applicant must incorporate those premining use of groundwater located in the hydrologic reclamation plan and what monitoring locations into the surface outside the permit area. information must I provide on alternative water and groundwater monitoring (ii) The proposed operation has been water sources? plans submitted under § 780.23 of this designed to ensure that neither the (a) Hydrologic reclamation plan. Your part. mining operation nor the final permit application must include a plan, (7) Evaluation thresholds for critical configuration of the reclaimed area will with maps and descriptions, that water quality and quantity parameters, result in changes in the size or demonstrates how the proposed as determined by the regulatory frequency of peak flows from operation will comply with the authority. After permit issuance, if precipitation events or thaws that would applicable provisions of subchapter K of monitoring results at the locations cause an increase in flooding outside this chapter that relate to protection of designated under paragraph (b)(6)(iv) of the permit area, when compared with the hydrologic balance. The plan must— this section document exceedance of an premining conditions. (1) Be specific to local hydrologic evaluation threshold, the regulatory (iii) Perennial and intermittent conditions. authority, in consultation with the streams located outside the permit area (2) Include preventive or remedial Clean Water Act authority, as will continue to have sufficient base measures for any potential adverse appropriate, must determine the cause flow at all times during and after mining hydrologic consequences identified in of the exceedance. If the mining and reclamation to maintain their the PHC determination prepared under operation is responsible for the premining flow regime; i.e., perennial § 780.20 of this part. These measures exceedance and if the adverse trend is streams located outside the permit area must describe the steps that you will likely to continue in the absence of will retain perennial flows and take during mining and reclamation corrective action, the regulatory intermittent streams located outside the through final bond release under authority must issue a permit revision permit area will retain intermittent §§ 800.40 through 800.43 of this chapter order under § 774.10 of this chapter. flows both during and after mining and to— The order must require that the reclamation. Conversion of an (i) Minimize disturbances to the permittee reassess the adequacy of the intermittent stream to a perennial hydrologic balance within the proposed PHC determination prepared under stream or conversion of an ephemeral permit and adjacent areas. § 780.20 of this part and the hydrologic stream to an intermittent or perennial (ii) Prevent material damage to the reclamation plan approved under stream outside the permit area may be hydrologic balance outside the proposed § 780.20 of this part and develop acceptable, provided the conversion permit area.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00277 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93342 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(iii) Meet applicable water quality existing water supply protected under have a direct hydrologic connection to laws and regulations. § 816.40 of this chapter. the proposed operation. (iv) Protect the rights of existing water (ii) Paragraph (b)(3)(i) of this section (D) Monitoring wells or equivalent users in accordance with paragraph (b) will not apply immediately if you monitoring points at the locations of this section and § 816.40 of this demonstrate, and the regulatory specified in the CHIA under chapter. authority finds, that the proposed § 780.21(b)(6)(iv) of this part. (v) Avoid acid or toxic discharges to operation also would adversely affect (iv) Describe how the monitoring data surface water and avoid or, if avoidance the replacement supply. In that case, will be used to— is not possible, minimize degradation of your plan must require provision of a (A) Determine the impacts of the groundwater. temporary replacement water supply operation upon the hydrologic balance. (vi) Prevent, to the extent possible until it is safe to install the permanent (B) Determine the impacts of the operation upon the biology of surface using the best technology currently replacement water supply required waters within the permit and adjacent available, additional contributions of under paragraph (b)(3)(i) of this section. areas. suspended solids to streamflow or to (4) Your application must describe how you will provide both temporary (C) Prevent material damage to the runoff outside the proposed permit area. hydrologic balance outside the permit (vii) Provide water-treatment facilities and permanent replacements for any unexpected losses of water supplies area. when needed. (v) Describe how the water samples protected under § 816.40 of this chapter. (viii) Control surface-water runoff in will be collected, preserved, stored, accordance with § 780.29 of this part. § 780.23 What information must I include transmitted for analysis, and analyzed (ix) Restore the approximate in plans for the monitoring of groundwater, in accordance with the sampling, premining recharge capacity. surface water, and the biological condition analysis, and reporting requirements of (3) Address the impacts of any of streams during and after mining? paragraphs (a) and (b) of § 777.13 of this transfers of water among active and (a) Groundwater monitoring plan.— chapter. abandoned mines within the proposed (1) General requirements. Your permit (2) Parameters.—(i) General criteria permit and adjacent areas. application must include a groundwater for selection of parameters. The plan (4) Describe the steps that you will monitoring plan adequate to evaluate must provide for the monitoring of take during mining and reclamation the impacts of the mining operation on parameters for which an evaluation through final bond release under groundwater in the proposed permit and threshold under § 780.21(b)(7) of this §§ 800.40 through 800.43 of this chapter adjacent areas and to determine in a part exists. It also must provide for the to protect and enhance aquatic life and timely manner whether corrective monitoring of other parameters that related environmental values to the action is needed to prevent the could be affected by the proposed extent possible using the best operation from causing material damage operation to the extent needed to assess technology currently available. to the hydrologic balance outside the the— (b) Alternative water source permit area. The plan must— (A) Accuracy of the findings and information. (1) If the PHC (i) Identify the locations to be predictions in the PHC determination determination prepared under § 780.20 monitored, the measurements to be prepared under § 780.20 of this part. of this part indicates that the proposed taken at each location, and the (B) Suitability of the quality and mining operation may result in parameters to be analyzed in samples quantity of groundwater for premining contamination, diminution, or collected at each location. uses of the groundwater within the interruption of an underground or (ii) Specify the sampling frequency. permit and adjacent areas, subject to surface source of water that is used for (iii) Establish a sufficient number of § 816.40 of this chapter. a domestic, agricultural, industrial, or appropriate monitoring locations to (C) Suitability of the quality and other legitimate purpose, you must— evaluate the accuracy of the findings in quantity of groundwater to support the (i) Identify alternative water sources the PHC determination, to identify premining land uses within the permit that are available, feasible to develop, adverse trends, and to determine, in a and adjacent areas. (ii) Minimum sampling and analysis and of suitable quality and sufficient in timely fashion, whether corrective requirements. At a minimum, the plan quantity to support the uses existing action is needed to prevent material before mining and, when applicable, the must require collection and analysis of damage to the hydrologic balance a sample from each monitoring point approved postmining land uses. outside the permit area. At a minimum, (ii) Develop a water supply every 3 months, with data submitted to the plan must include— the regulatory authority at the same replacement plan that includes (A) For each aquifer above or frequency. The data must include— construction details, costs, and an immediately below the lowest coal seam (A) Analysis of each sample for the implementation schedule. to be mined, monitoring wells or groundwater parameters listed in (2) If you cannot identify an equivalent monitoring points located § 780.19(a)(2) of this part. alternative water source that is both upgradient and downgradient of the (B) Water levels in each well used for suitable and available, you must modify proposed operation. monitoring purposes and discharge rates your application to prevent the (B) Monitoring wells placed in from each spring or underground proposed operation from contaminating, backfilled portions of the permit area opening used for monitoring purposes. interrupting, or diminishing any water after backfilling and grading of all or a (C) Analysis of each sample for supply protected under § 816.40 of this portion of the permit area is completed, parameters detected by the baseline chapter. unless you demonstrate, and the sampling and analysis conducted under (3)(i) When a suitable alternative regulatory authority finds in writing, § 780.19(d) of this part. water source is available, your operation that wells in the backfilled area are not (D) Analysis of each sample for all plan must require that the alternative necessary to determine or predict the parameters for which there is an water supply be developed and installed future impact of the mining operation evaluation threshold under on a permanent basis before your on groundwater quality. § 780.21(b)(7) of this part. operation advances to the point at (C) Monitoring wells in any existing (E) Analysis of each sample for other which it could adversely affect an underground mine workings that would parameters of concern, as determined by

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00278 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93343

the regulatory authority, based upon the provide adequate and accurate coverage (E) Needed to assess the suitability of information and analyses required of precipitation events occurring in that the quality and quantity of surface water under §§ 780.19 through 780.21 of this area. in the permit and adjacent areas to part. (iii) Specify the sampling frequency. support the premining land uses. (3) Regulatory authority review and (iv) Establish a sufficient number of (F) For which there is an evaluation action. (i) Upon completing the appropriate monitoring locations to threshold under § 780.21(b)(7) of this technical review of the application, the evaluate the accuracy of the findings in part. regulatory authority may require that the PHC determination, to identify (ii) Minimum sampling and analysis you revise the plan to increase the adverse trends, and to determine, in a requirements for monitoring locations frequency of monitoring, to require timely fashion, whether corrective other than point-source discharges. For monitoring of additional parameters, or action is needed to prevent material all monitoring locations other than to require monitoring at additional damage to the hydrologic balance point-source discharges, the plan must locations, if the additional requirements outside the permit area. At a minimum, require collection and analysis of a would contribute to protection of the the plan must include— sample from each monitoring point at hydrologic balance. (A) Monitoring of point-source least every 3 months, with data (ii) After completing preparation of discharges from the proposed operation. submitted to the regulatory authority at the cumulative hydrologic impact (B) Monitoring locations upgradient the same frequency. The data must assessment required under § 780.21 of and downgradient of the proposed include— this part, the regulatory authority must permit area in each perennial and (A) Analysis of each sample for the reconsider the adequacy of the intermittent stream within the proposed surface-water parameters listed in monitoring plan and require that you permit and adjacent areas, with the § 780.19(a)(2) of this part. make any necessary changes. exception that no upgradient monitoring (B) Flow rates at each sampling (4) Exception. If you can demonstrate, location is needed for a stream when the location. The plan must require use of on the basis of the PHC determination operation will mine through the generally-accepted professional flow prepared under § 780.20 of this part or headwaters of that stream. measurement techniques. Visual other available information that a (C) Monitoring locations specified in observations are not acceptable. particular aquifer in the proposed the CHIA under § 780.21(b)(6)(vi) of this (C) Analysis of each sample for permit and adjacent areas has no part. parameters detected by the baseline existing or foreseeable use for (v) Describe how the monitoring data sampling and analysis conducted under agricultural or other human purposes or will be used to— § 780.19(d) of this part. for fish and wildlife purposes and does (A) Determine the impacts of the (D) Analysis of each sample for all not serve as an aquifer that significantly operation upon the hydrologic balance. parameters for which there is an ensures the hydrologic balance within (B) Determine the impacts of the evaluation threshold under the cumulative impact area, the operation upon the biology of surface § 780.21(b)(7) of this part. regulatory authority may waive waters within the permit and adjacent (E) Analysis of each sample for other monitoring of that aquifer. areas. parameters of concern, as determined by (b) Surface-water monitoring plan.— (C) Prevent material damage to the the regulatory authority, based upon the (1) General requirements. Your permit hydrologic balance outside the permit information and analyses required application must include a surface- area. under §§ 780.19 through 780.21 of this water monitoring plan adequate to (vi) Describe how the water samples part. evaluate the impacts of the mining will be collected, preserved, stored, (iii) Minimum requirements for point- operation on surface water in the transmitted for analysis, and analyzed source discharges. For point-source proposed permit and adjacent areas and in accordance with the sampling, discharges, the plan must— to determine in a timely manner analysis, and reporting requirements of (A) Provide for monitoring in whether corrective action is needed to paragraphs (a) and (b) of § 777.13 of this accordance with 40 CFR parts 122, 123, prevent the operation from causing chapter. and 434 and as required by the National material damage to the hydrologic (2) Parameters.—(i) General criteria Pollutant Discharge Elimination System balance outside the permit area. The for selection of parameters. The plan permitting authority. plan must— must provide for the monitoring of (B) Require measurement of flow (i) Identify the locations to be parameters— rates, using generally-accepted monitored, the measurements to be (A) For which there are applicable professional flow measurement taken at each location, and the effluent limitation guidelines under 40 techniques. Visual observations are not parameters to be analyzed in samples CFR part 434. acceptable. collected at each location. (B) Needed to assess the accuracy of (iv) Requirements related to the Clean (ii)(A) Require on-site measurement of the findings and predictions in the PHC Water Act. You must revise the plan to precipitation amounts at specified determination prepared under § 780.20 incorporate any site-specific monitoring locations within the permit area, using of this part. requirements imposed by the National self-recording devices. (C) Needed to assess the adequacy of Pollutant Discharge Elimination System (B) Measurement of precipitation the surface-water runoff control plan permitting authority or the agency amounts must continue through Phase II prepared under § 780.29 of this part. responsible for administration of section bond release under § 800.42(c) of this (D) Needed to assess the suitability of 404 of the Clean Water Act, 33 U.S.C. chapter or for any longer period the quality and quantity of surface water 1344, subsequent to submission of the specified by the regulatory authority. in the permit and adjacent areas for all SMCRA permit application. (C) At the discretion of the regulatory designated uses under section 303(c) of (3) Regulatory authority review and authority, you may use precipitation the Clean Water Act, 33 U.S.C. 1313(c), action. (i) Upon completing the data from a single self-recording device or, if there are no designated uses, all technical review of your application, the to provide monitoring data for multiple premining uses of surface water in the regulatory authority may require that permits that are contiguous or nearly permit and adjacent areas, subject to you revise the plan to increase the contiguous if a single station would § 816.40 of this chapter; and frequency of monitoring, to require

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00279 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93344 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

monitoring of additional parameters, or groundwater and surface water discuss the utility and capability of the to require monitoring at additional monitoring plan requirements of reclaimed land to support the proposed locations, if the additional requirements paragraphs (a) and (b) of this section postmining land use and the variety of would contribute to protection of the and modify or waive the biological uses that the land was capable of hydrologic balance. condition monitoring plan requirements supporting before any mining, as (ii) After completing preparation of of paragraph (c) of this section. identified under § 779.22 of this the cumulative hydrologic impact (ii) The regulatory authority may chapter, regardless of the proposed assessment required under § 780.21 of approve your request if it determines postmining land use. this part, the regulatory authority must that a less extensive monitoring plan (3) You must explain how the reconsider the adequacy of the will be adequate to monitor the impacts proposed postmining land use is monitoring plan and require that you of the proposed operation on consistent with existing state and local make any necessary changes. groundwater and surface water, based land use policies and plans. (c) Biological condition monitoring upon an evaluation of the quality of (4) You must include a copy of the plan.—(1) General requirements. Except groundwater and surface water and the comments concerning the proposed as provided in paragraph (d) of this biological condition of the receiving postmining use that you receive from section, your permit application must stream at the time of application. the— include a plan for monitoring the (2) Operations that avoid streams. (i) (i) Legal or equitable owner of record biological condition of each perennial Upon your request, the regulatory of the surface of the proposed permit and intermittent stream within the authority may waive the biological area; and proposed permit and adjacent areas for condition monitoring plan requirements (ii) State and local government which baseline biological condition data of paragraph (c) of this section if you agencies that would have to initiate, was collected under § 780.19(c)(6)(vi) of demonstrate, and if the regulatory implement, approve, or authorize the this part. The plan must be adequate to authority finds in writing, that your proposed use of the land following evaluate the impacts of the mining operation will not— reclamation. operation on the biological condition of (A) Mine through or bury any (5) You must explain how the those streams and to determine in a perennial or intermittent stream; proposed postmining land use will be timely manner whether corrective (B) Create a point-source discharge to achieved and identify any support action is needed to prevent the any perennial, intermittent, or activities or facilities needed to achieve operation from causing material damage ephemeral stream; or that use. (C) Modify the base flow of any to the hydrologic balance outside the (6) If you propose to restore the perennial or intermittent stream. proposed permit area or a portion permit area. (ii) If you meet all the criteria of (2) Monitoring techniques. The plan thereof to a condition capable of paragraph (d)(2)(i) of this section with must— supporting a higher or better use or uses (i) Require use of a bioassessment the exception of paragraph (d)(2)(i)(B) of rather than to a condition capable of protocol that meets the requirements of this section, you may request, and the supporting the uses that the land could regulatory authority may approve, § 780.19(c)(6)(vii) of this part. support before any mining, you must (ii) Identify monitoring locations in limiting the biological condition provide the demonstration required each perennial and intermittent stream monitoring plan requirements of under paragraph (b)(1) of this section. within the proposed permit and paragraph (c) of this section to only the (b) What requirements apply to the adjacent areas for which baseline stream that will receive the point-source approval of alternative postmining land biological condition data was collected discharge. uses?—(1) Application requirements. If (e) Coordination with Clean Water Act under § 780.19(c)(6)(vi) of this part. you propose to restore the proposed (iii) Establish a sampling frequency agencies. The regulatory authority will permit area or a portion thereof to a that must be no less than annual, but make best efforts to— condition capable of supporting a higher (1) Consult in a timely manner with not so frequent as to unnecessarily or better use or uses, rather than to a the agencies responsible for issuing deplete the populations of the species condition capable of supporting the uses permits, authorizations, and that the land could support before any being monitored. certifications under the Clean Water (iv) Require submission of monitoring Act; mining, you must demonstrate that the data to the regulatory authority on an (2) Minimize differences in proposed higher or better use or uses annual basis. monitoring locations and reporting meet the following criteria: (3) Regulatory authority review and requirements; and (i) There is a reasonable likelihood action. (i) Upon completing review of (3) Share data to the extent practicable that the proposed use or uses will be your application, the regulatory and consistent with each agency’s achieved after mining and reclamation, authority may require that you revise mission, statutory requirements, and as documented by, for example, real the plan to adjust monitoring locations, implementing regulations. estate and construction contracts, plans the frequency of monitoring, and the for installation of any necessary species to be monitored. § 780.24 What requirements apply to the infrastructure, procurement of any (ii) After completing preparation of postmining land use? necessary zoning approvals, landowner the cumulative hydrologic impact (a) What postmining land use commitments, economic forecasts, and assessment required under § 780.21 of information must my application studies by land use planning agencies. this part, the regulatory authority must contain? (1) You must describe and map (ii) The proposed use or uses do not reconsider the adequacy of the the proposed use or uses of the land present any actual or probable hazard to monitoring plan and require that you within the proposed permit area public health or safety or any threat of make any necessary changes. following reclamation, based on the water diminution or pollution. (d) Exceptions.—(1) Lands eligible for categories of land uses listed in the (iii) The proposed use or uses will remining. (i) If the proposed permit area definition of land use in § 701.5 of this not— includes only lands eligible for chapter. (A) Be impractical or unreasonable. remining, you may request that the (2) Except for prime farmland (B) Be inconsistent with applicable regulatory authority modify the historically used for cropland, you must land use policies or plans.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00280 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93345

(C) Involve unreasonable delay in Landowner consent alone is an upon which the structure was implementation. insufficient basis for this finding. previously located. (D) Cause or contribute to a violation (c) What requirements apply to permit (3) The reclamation plan submitted of federal, state, tribal or local law. revision applications that propose to under § 780.12 of this part must specify (E) Result in changes in the size or change the postmining land use? (1) that if a structure is not in use as part frequency of peak flows from the You may propose to change the of the approved postmining land use by reclaimed area that would cause an postmining land use for all or a portion the end of the revegetation increase in flooding when compared of the permit area at any time through responsibility period specified in with the conditions that would exist if the permit revision process under § 816.115 of this chapter, you must the land were restored to a condition § 774.13 of this chapter. remove the structure and reclaim the capable of supporting the uses that it (2) If you propose a higher or better land upon which it was located by was capable of supporting before any postmining land use, the requirements restoring the approximate original mining. of paragraphs (b)(1) and (2) of this contour in accordance with § 816.102 of (F) Cause the total volume of flow section will apply and the application this chapter and revegetating the site in from the reclaimed area, during every must be considered a significant permit accordance with the revegetation plan season of the year, to vary in a way that revision for purposes of § 774.13(b)(2) of approved under § 780.12(g) of this part would preclude attainment of any this chapter. for the permit area surrounding the site designated use of a surface water upon which the structure was (d) What restrictions apply to the located outside the permit area under previously located. retention of mining-related structures? section 303(c) of the Clean Water Act, (e) What special provisions apply to (1) If you propose to retain mining- 33 U.S.C. 1313(c), or, if there are no previously mined areas? If land that was related structures other than roads and designated uses, any premining use of a previously mined cannot be reclaimed impoundments for potential future use surface water located outside the permit to the land use that existed before any as part of the postmining land use, you area. mining because of the previously mined must demonstrate, and the regulatory (G) Cause a change in the temperature condition, you may propose, and the authority must find in writing, that the or chemical composition of the water regulatory authority may approve, any size and characteristics of the structures that would preclude attainment of any appropriate postmining land use for that are consistent with and proportional to designated use of a surface water under land that is both achievable and the needs of the postmining land use. section 303(c) of the Clean Water Act, compatible with land uses in the 33 U.S.C. 1313(c), or, if there are no (2) The amount of bond required for surrounding area, provided that designated uses, any premining use of a the permit under part 800 of this restoration of the land to that capability surface water located outside the permit chapter must include the cost of does not require disturbance of land area. removing the structure and reclaiming previously unaffected by mining. (2) Regulatory authority decision the land upon which it was located to requirements. The regulatory authority a condition capable of supporting the § 780.25 What information must I provide may approve your request if it— premining uses. The bond must include for siltation structures, impoundments, and (i) Consults with the landowner or the the cost of restoring the site to its refuse piles? land management agency having approximate original contour in (a) How do I determine the hazard jurisdiction over the lands to which the accordance with § 816.102 of this potential of a proposed impoundment? use would apply; and chapter and revegetating the site in You must use the following table to (ii) Finds in writing that you have accordance with the revegetation plan identify the hazard potential made the demonstration required under approved under § 780.12(g) of this part classification of each proposed paragraph (b)(1) of this section. for the permit area surrounding the site impoundment that includes a dam:

Hazard potential 1 classification Loss of human life in event of failure Economic, environmental, or lifeline losses in event of failure

Low ...... None expected ...... Low potential; generally limited to property owned by the permittee. Significant ...... None expected ...... Yes. High ...... Loss of one or more lives probable ...... Yes, but not necessary for this classification. 1 Lifeline losses refer to disruption of lifeline facilities, which include, but are not limited to, important public utilities, highways, and railroads.

(b) How must I prepare the general in related fields such as landscape adjacent areas. When necessary, the plan for proposed siltation structures, architecture. investigation report also must identify impoundments, and refuse piles? If you (2) The plan must contain a design and construction measures that propose to construct a siltation description, map, and cross-sections of would prevent adverse subsidence- structure, impoundment, or refuse pile, the structure and its location. related impacts on the structure. your application must include a general (3) The plan must contain the (ii) Except for structures that would plan that meets the following hydrologic and geologic information meet the criteria in § 77.216(a) of this requirements: required to assess the hydrologic impact title or that would have a significant or (1) The plan must be prepared by, or of the structure. high hazard potential under paragraph under the direction of, and certified by (4)(i) The plan must contain a report (a) of this section, the requirements of a qualified registered professional describing the results of a geotechnical paragraph (b)(4)(i) of this section do not engineer, a professional geologist, or, in investigation of the potential effect on apply— any state that authorizes land surveyors the structure if subsurface strata subside to prepare and certify such plans, a as a result of past, current, or future (A) In areas with 26.0 inches or less qualified registered professional land underground mining operations beneath of average annual precipitation; or surveyor, with assistance from experts or within the proposed permit and (B) To siltation structures.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00281 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93346 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(5)(i) The plan must contain an (2) Detailed design plan requirements (2) The regulatory authority may analysis of the potential for each for other structures. If you propose to establish, through the regulatory impoundment to drain into subjacent construct an impounding structure that program approval process, engineering underground mine workings, together would not meet the criteria in design standards that ensure stability with an analysis of the impacts of such § 77.216(a) of this title and that would comparable to a 1.3 minimum static drainage. not have a significant or high hazard safety factor in lieu of conducting (ii) Except for structures that would potential under paragraph (a) of this engineering tests to establish meet the criteria in § 77.216(a) of this section, you must prepare and submit a compliance with the minimum static title or that would have a significant or detailed design plan that meets the safety factor of 1.3 required in high hazard potential under paragraph following requirements: § 816.49(a)(2)(ii) of this chapter. (a) of this section, the requirements of (i)(A) Except as provided in paragraph (3) Each plan must include stability paragraph (b)(5)(i) of this section do not (c)(2)(i)(B) of this section, the plan must analyses of the proposed impoundment apply— be prepared by, or under the direction if the structure would meet the criteria (A) In areas with 26.0 inches or less of, a qualified, registered, professional in § 77.216(a) of this title or would have of average annual precipitation; or engineer, or, in any state that authorizes a significant or high hazard potential (B) To siltation structures. land surveyors to prepare and certify under paragraph (a) of this section. The (6) The plan must include a schedule such plans, a qualified, registered, stability analyses must address static, setting forth the dates when any professional, land surveyor. The seismic, and post-earthquake detailed design plans for structures that engineer or land surveyor must certify (liquefaction) conditions. They must are not submitted with the general plan that the impoundment design meets the include, but are not limited to, strength will be submitted to the regulatory requirements of this part, current parameters, pore pressures, and long- authority. prudent engineering practices, and any term seepage conditions. The plan also (c) How must I prepare the detailed design criteria established by the must contain a description of each design plan for proposed siltation regulatory authority. The qualified engineering design assumption and structures, impoundments, and refuse registered professional engineer or calculation with a discussion of each alternative considered in selecting the piles?—(1) Detailed design plan qualified registered professional land specific analysis and design parameters requirements for high hazard dams, surveyor must be experienced in the and construction methods. significant hazard dams, and design and construction of impoundments. (f) What additional design impounding structures that meet MSHA requirements apply to coal mine waste criteria. If you propose to construct an (B) All coal mine waste structures to which §§ 816.81 through 816.84 of this impoundments, refuse piles, and impounding structure that would meet impounding structures constructed of the criteria in § 77.216(a) of this title or chapter apply must be certified by a qualified, registered, professional coal mine waste? If you propose to place that would have a significant or high coal mine waste in a refuse pile or hazard potential under paragraph (a) of engineer. (ii) The plan must reflect any design impoundment, or if you plan to use coal this section, you must prepare and and construction requirements for the mine waste to construct an impounding submit a detailed design plan that meets structure, including any measures structure, you must comply with the the following requirements: identified as necessary in the applicable design requirements in (i) The plan must be prepared by, or geotechnical investigation report paragraphs (f)(1) and (2) of this section. under the direction of, a qualified prepared under paragraph (b)(4) of this (1) Design requirements for refuse registered professional engineer with section. piles. You must design refuse piles to assistance from experts in related fields (iii) The plan must describe the comply with the requirements of such as geology, land surveying, and operation and maintenance §§ 780.28, 816.81, and 816.83 of this landscape architecture. The engineer requirements for each structure. chapter. must certify that the impoundment (iv) The plan must describe the (2) Design requirements for design meets the requirements of this timetable and plans to remove each impounding structures that will part, current prudent engineering structure, if appropriate. impound coal mine waste or that will be practices, and any design criteria (3) Timing of submittal of detailed constructed of coal mine waste. (i) You established by the regulatory authority. design plans. You must submit the must design impounding structures The qualified registered professional detailed design plans to the regulatory constructed of or intended to impound engineer must be experienced in the authority either as part of the permit coal mine waste to comply with the coal design and construction of application or in accordance with the mine waste disposal requirements of impoundments. schedule submitted under paragraph §§ 780.28, 816.81, and 816.84 of this (ii) The plan must incorporate any (b)(6) of this section. The regulatory chapter and with the impoundment design and construction measures authority must approve, in writing, the requirements of paragraphs (a) and (c) of identified in the geotechnical detailed design plan for a structure § 816.49 of this chapter. investigation report prepared under before you may begin construction of (ii) The plan for each impounding paragraph (b)(4) of this section as the structure. structure that meets the criteria of necessary to protect against potential (d) What additional design § 77.216(a) of this title must comply adverse impacts from subsidence requirements apply to siltation with the requirements of § 77.216–2 of resulting from underground mine structures? You must design siltation this title. workings underlying or adjacent to the structures in compliance with the (iii) Each plan for an impounding structure. requirements of § 816.46 of this chapter. structure that will impound coal mine (iii) The plan must describe the (e) What additional design waste or that will be constructed of coal operation and maintenance requirements apply to permanent and mine waste must contain the results of requirements for each structure. temporary impoundments? (1) You must a geotechnical investigation to (iv) The plan must describe the design permanent and temporary determine the structural competence of timetable and plans to remove each impoundments to comply with the the foundation that will support the structure, if appropriate. requirements of § 816.49 of this chapter. proposed impounding structure and the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00282 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93347

impounded material. An engineer or (ii) Postmining stream-channel (b) To what activities does this section engineering geologist must plan and configurations that are relatively stable apply? You, the permit applicant, must supervise the geotechnical investigation. and similar to the premining provide the information and In planning the investigation, the configuration of ephemeral stream demonstrations required by paragraphs engineer or geologist must— channels. (c) through (g) of this section, as (A) Determine the number, location, (2) The regulatory authority may applicable, whenever you propose to and depth of borings and test pits using approve or require a postmining surface conduct surface mining activities— current prudent engineering practice for drainage pattern or stream-channel (1) In or through a perennial or the size of the impoundment and the configuration that differs from the intermittent stream; or impounding structure, the quantity of pattern or configuration otherwise (2) On the surface of lands within 100 material to be impounded, and required under paragraph (b)(1) of this feet of a perennial or intermittent subsurface conditions. section when the regulatory authority stream. You must measure this distance (B) Consider the character of the finds that a different pattern or horizontally on a line perpendicular to overburden and bedrock, the proposed configuration is necessary or the stream, beginning at the ordinary abutment sites for the impounding appropriate to— high water mark. structure, and any adverse geotechnical (i) Ensure stability; (c) Postmining surface drainage conditions that may affect the (ii) Prevent or minimize downcutting pattern and stream-channel impounding structure. or widening of reconstructed stream configuration. (1) If you propose to mine (C) Identify all springs, seepage, and channels and control meander through a perennial or intermittent groundwater flow observed or migration; stream, your application must include a (iii) Promote enhancement of fish and anticipated during wet periods in the plan to construct— wildlife habitat; (i) A postmining surface drainage area of the proposed impounding (iv) Accommodate any anticipated structure on each plan. pattern that is similar to the premining temporary or permanent increase in surface drainage pattern, relatively (D) Consider the possibility of surface runoff as a result of mining and mudflows, rock-debris falls, or other stable, and in dynamic near- reclamation; equilibrium; and landslides into the impounding (v) Accommodate the construction of structure, impoundment, or impounded (ii) Postmining stream-channel excess spoil fills, coal mine waste refuse configurations that are relatively stable material. piles, or coal mine waste impounding (iv) The design must ensure that at and similar to the premining structures; configuration of perennial and least 90 percent of the water stored in (vi) Replace a stream that was intermittent stream channels. the impoundment during the design channelized or otherwise severely precipitation event will be removed (2) The regulatory authority may altered prior to submittal of the permit approve or require a postmining surface within a 10-day period. application with a more natural, drainage pattern or stream-channel relatively stable, and ecologically sound § 780.26 What special requirements apply configuration that differs from the drainage pattern or stream-channel to surface mining near underground pattern or configuration otherwise mining? configuration; or (vii) Reclaim a previously mined area. required under paragraph (c)(1) of this Your application must describe the (c) Streamside vegetative corridors. (1) section when the regulatory authority measures that you will use to comply If you propose to mine through an finds that a different pattern or with § 816.79 of this chapter if you ephemeral stream, your application configuration is necessary or intend to conduct surface mining must include a plan to establish a appropriate to— activities within 500 feet of an vegetative corridor at least 100 feet wide (i) Ensure stability; underground mine. along each bank of the reconstructed (ii) Prevent or minimize downcutting or widening of reconstructed stream § 780.27 What additional permitting stream channel, consistent with natural vegetation patterns. channels and control meander requirements apply to proposed activities in migration; or through ephemeral streams? (2) The plan submitted under (iii) Promote enhancement of fish and (a) Clean Water Act requirements. If paragraph (c)(1) of this section must be consistent with the requirements of wildlife habitat; the proposed permit area includes (iv) Accommodate any anticipated § 816.56(c) of this chapter for vegetative waters subject to the jurisdiction of the temporary or permanent increase in corridors along ephemeral streams. Clean Water Act, 33 U.S.C. 1251 et seq., surface runoff as a result of mining and the regulatory authority must condition (3) Paragraphs (c)(1) and (2) of this section do not apply to prime farmland reclamation; the permit to prohibit initiation of (v) Accommodate the construction of historically used for cropland. surface mining activities in or affecting excess spoil fills, coal mine waste refuse those waters before you obtain all § 780.28 What additional permitting piles, or coal mine waste impounding necessary authorizations, certifications, requirements apply to proposed activities structures; and permits under the Clean Water Act, in, through, or adjacent to a perennial or (vi) Replace a stream that was 33 U.S.C. 1251 et seq. intermittent stream? channelized or otherwise severely (b) Postmining surface drainage (a) Clean Water Act requirements. If altered prior to submittal of the permit pattern and stream-channel the proposed permit area includes application with a more natural, configuration. (1) If you propose to mine waters subject to the jurisdiction of the relatively stable, and ecologically sound through an ephemeral stream, your Clean Water Act, 33 U.S.C. 1251 et seq., drainage pattern or stream-channel application must include a plan to the regulatory authority must condition configuration; or construct— the permit to prohibit initiation of (vii) Reclaim a previously mined area. (i) A postmining surface drainage surface mining activities in or affecting (d) Streamside vegetative corridors. pattern that is similar to the premining those waters before you obtain all (1) If you propose to conduct any surface drainage pattern, relatively necessary authorizations, certifications, surface mining activities identified in stable, and in dynamic near- and permits under the Clean Water Act, paragraph (b) of this section, your equilibrium; and 33 U.S.C. 1251 et seq. application must include a plan to

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00283 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93348 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

establish a vegetated streamside corridor vegetative corridor requirements of stream? (1) Except as provided in at least 100 feet wide along each bank § 816.57(d) of this chapter. paragraphs (e)(4), (e)(5), and (i) of this of the stream as part of the reclamation (4) The corridor width must be section and § 816.57(i) of this chapter, process following the completion of measured horizontally on a line your application must contain the surface mining activities within that perpendicular to the stream, beginning applicable demonstrations set forth in area. at the ordinary high water mark. the table if you propose to conduct (2) The plan submitted under (5) Paragraphs (d)(1) through (2) of surface mining activities in or through paragraph (d)(1) of this section must be this section do not apply to prime a perennial or intermittent stream or on consistent with natural vegetation farmland historically used for cropland. the surface of land within 100 feet of a patterns. (e) What demonstrations must I perennial or intermittent stream, as (3) The plan submitted under include in my application if I propose paragraph (d)(1) of this section must be to conduct activities in or within 100 specified in paragraph (b) of this consistent with the streamside feet of a perennial or intermittent section.

Activity Any activity other than mining through or permanently diverting a stream Construction of an excess or construction of spoil fill, coal mine waste Demonstration an excess spoil fill, Mining through or perma- refuse pile, or impounding coal mine waste nently structure that refuse pile, or diverting a stream encroaches upon impounding any part of a structure that stream encroaches upon any part of a stream

(i) The proposed activity would not cause or con- Yes ...... Yes ...... Yes. tribute to a violation of applicable state or tribal water quality standards, including, but not limited to, standards established under the authority of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c). (ii) The proposed activity would not cause material Yes ...... Yes ...... Yes. damage to the hydrologic balance outside the permit area or upset the dynamic near-equi- librium of streams outside the permit area. (iii) The proposed activity would not result in con- Yes ...... Yes ...... Not applicable. version of the affected stream segment from pe- rennial to ephemeral. (iv) The proposed activity would not result in con- Yes ...... Yes, except as provided Not applicable. version of the affected stream segment from in paragraphs (e)(2) intermittent to ephemeral or from perennial to and (5) of this section. intermittent. (v) There is no practicable alternative that would Not applicable ...... Yes, except as provided Yes. avoid mining through or diverting a perennial or in paragraph (e)(3) of intermittent stream. this section. (vi) After evaluating all potential upland locations in Not applicable ...... Not applicable ...... Yes. the vicinity of the proposed operation, including abandoned mine lands and unreclaimed bond forfeiture sites, there is no practicable alternative that would avoid placement of excess spoil or coal mine waste in a perennial or intermittent stream. (vii) The proposed operation has been designed to Not applicable ...... Yes, except as provided Yes. minimize the extent to which perennial or inter- in paragraphs (e)(3) mittent streams will be mined through, diverted, and (5) of this section. or covered by an excess spoil fill, a coal mine waste refuse pile, or a coal mine waste impound- ing structure. (viii) The stream restoration techniques in the pro- Not applicable ...... Yes, except as provided Not applicable. posed reclamation plan are adequate to ensure in paragraph (e)(5) of restoration or improvement of the form, hydro- this section. logic function (including flow regime), dynamic near-equilibrium, streamside vegetation, and eco- logical function of the stream after you have mined through it, as required by § 816.57 of this chapter. (ix) The proposed operation has been designed to § 780.35(b) of this part re- § 780.35(b) of this part Yes. minimize the amount of excess spoil or coal mine quires minimization of ex- requires minimization waste that the proposed operation will generate. cess spoil. of excess spoil.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00284 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93349

Activity Any activity other than mining through or permanently diverting a stream Construction of an excess or construction of spoil fill, coal mine waste Demonstration an excess spoil fill, Mining through or perma- refuse pile, or impounding coal mine waste nently structure that refuse pile, or diverting a stream encroaches upon impounding any part of a structure that stream encroaches upon any part of a stream

(x) To the extent possible using the best tech- Yes ...... Yes ...... Yes. nology currently available, the proposed oper- ation has been designed to minimize adverse im- pacts on fish, wildlife, and related environmental values. (xi) The fish and wildlife enhancement plan pre- Not applicable ...... Not applicable ...... Yes. pared under § 780.16 of this part includes meas- ures that would fully and permanently offset any long-term adverse impacts on fish, wildlife, and related environmental values within the footprint of each excess spoil fill, coal mine waste refuse pile, and coal mine waste impounding structure. (xii) Each excess spoil fill, coal mine waste refuse Not applicable ...... Not applicable ...... Yes. pile, and coal mine waste impounding structure has been designed in a manner that will not re- sult in the formation of toxic mine drainage. (xiii) The revegetation plan prepared under Not applicable ...... Not applicable ...... Yes. § 780.12(g) of this part requires reforestation of each completed excess spoil fill if the land is for- ested at the time of application or if the land would revert to forest under conditions of natural succession.

(2)(i) As part of a proposal to mine (C) Is likely to result in improvement paragraph (e)(1)(viii) of this section do through an intermittent stream, you may of the biological condition or ecological not apply to an intermittent stream propose to convert a minimal portion of function of the stream; segment if— the mined-through segment of an (D) Will not further degrade the (i) The intermittent segment is a intermittent stream to an ephemeral hydrologic function, dynamic near- minor interval in what is otherwise a stream. The regulatory authority may equilibrium, biological condition, or predominantly ephemeral stream; approve the proposed conversion only if ecological function of the stream; and (ii) You demonstrate, and the you demonstrate, and the regulatory (E) Will result in establishment of a regulatory authority finds, that the authority finds, that the conversion streamside vegetative corridor for the intermittent segment has no significant would not degrade the hydrologic stream segment in accordance with fish, wildlife, or related environmental function, dynamic near-equilibrium, or § 816.57(d) of this chapter. values, as documented by the baseline the ecological function of the stream as (ii) To qualify for purposes of data collected under § 780.19(c)(6) of a whole within the mined area, as paragraph (e)(3)(i) of this section, a this part; and determined by comparison with the stream segment must display both of the (iii) You demonstrate, and the stream assessment conducted under following characteristics: regulatory authority finds, that § 780.19(c)(6) of this part. (A) Prior anthropogenic activity has conversion of the intermittent stream (ii) Paragraph (e)(2)(i) of this section resulted in substantial degradation of segment will not adversely affect water does not apply to the circumstances the profile or dimensions of the stream uses. described in paragraph (e)(5) of this channel; and (f) What design requirements apply to section. (B) Degradation of the stream channel the diversion, restoration, and (3)(i) Paragraphs (e)(1)(v) and (vii) of has resulted in a substantial adverse reconstruction of perennial and this section do not apply to a proposal impact on the ecological function of the intermittent stream channels? (1)(i) You to mine through a segment of an stream. must design permanent stream-channel intermittent stream when that segment (4) Paragraph (e)(1) of this section diversions, temporary stream-channel meets the criteria of paragraph (e)(3)(ii) does not apply to a stream segment that diversions that will remain in use for 3 of this section, provided you will be part of a permanent or more years, and stream channels to demonstrate, and the regulatory impoundment approved and be reconstructed after the completion of authority finds, that implementation of constructed under § 816.49(b) of this mining to restore, approximate, or the proposed mining and reclamation chapter. improve the premining characteristics of plan— (5) Paragraphs (e)(1)(iv) and (vii) of the original stream channel, to promote (A) Will improve the form of the this section and the requirement for the recovery and enhancement of stream segment; restoration of the hydrologic and aquatic habitat and the ecological and (B) Will improve the hydrologic ecological functions and the dynamic hydrologic functions of the stream, and function of the stream; near-equilibrium of a stream in to minimize adverse alteration of stream

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00285 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93350 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

channels on and off the site, including (3)(i) The biological component of the (ii) Result in that stream segment not channel deepening or enlargement. standards established under paragraph meeting the applicable anti-degradation (ii) Pertinent stream-channel (g)(1) of this section must employ the requirements under section 303(c) of the characteristics include, but are not best technology currently available, as Clean Water Act, 33 U.S.C. 1313(c), as limited to, the baseline stream pattern, specified in paragraphs (g)(3)(ii) through adopted by a state or authorized tribe or profile, dimensions, substrate, habitat, (iv) of this section. as promulgated in a federal rulemaking and natural vegetation growing in the (ii) For perennial streams, the best under the Clean Water Act. riparian zone and along the banks of the technology currently available includes (h) What finding must the regulatory stream. an assessment of the biological authority make before approving a (iii) For temporary stream-channel condition of the stream, as determined permit application under this section? diversions that will remain in use for 3 by an index of biological condition or The regulatory authority may not or more years, the vegetation proposed other scientifically-defensible approve an application that includes a for planting along the banks of the bioassessment protocols consistent with proposal to conduct surface mining diversion need not include species that § 780.19(c)(6)(vii) of this part. Standards activities in or within 100 feet of a would not reach maturity until after the established under paragraph (g)(1) of perennial or intermittent stream unless diversion is removed. this section for perennial streams— it first makes a specific written finding (2) You must design the hydraulic (A) Need not require that a that you have fully satisfied all capacity of all temporary and permanent reconstructed stream or stream-channel applicable requirements of paragraphs stream-channel diversions to be at least diversion have precisely the same (c) through (f) of this section. The equal to the hydraulic capacity of the biological condition or biota as the finding must be accompanied by a unmodified stream channel stream segment did before mining. detailed explanation of the rationale for immediately upstream of the diversion, (B) Must prohibit substantial the finding. but no greater than the hydraulic replacement of pollution-sensitive (i) Programmatic alternative. capacity of the unmodified stream species with pollution-tolerant species. Paragraphs (c) through (h) of this section (C) Must require that populations of channel immediately downstream from will not apply to a state program organisms used to determine the the diversion. approved under subchapter T of this biological condition of the reconstructed (3) You must design all temporary and chapter if that program is amended to stream or stream-channel diversion be permanent stream-channel diversions in expressly prohibit all surface mining self-sustaining within that stream a manner that ensures that the activities, including the construction of segment. combination of channel, bank, and stream-channel diversions, that would (iii) Paragraph (g)(3)(ii) of this section result in more than a de minimis flood-plain configuration is adequate to also applies to intermittent streams pass safely the peak runoff of a 10-year, disturbance of perennial or intermittent whenever a scientifically defensible streams or the surface of land within 6-hour precipitation event for a biological index and bioassessment temporary diversion and a 100-year, 6- 100 feet of a perennial or intermittent protocol have been established for stream. hour precipitation event for a assessment of intermittent streams in permanent diversion. the state or region in which the stream § 780.29 What information must I include (4) You must submit a certification is located. in the surface-water runoff control plan? from a qualified registered professional (iv)(A) Except as provided in Your application must contain a engineer that the designs for all stream- paragraph (g)(3)(iii) of this section, the surface-water runoff control plan that channel diversions and all stream best technology currently available for includes the following— channels to be reconstructed after the intermittent streams consists of the (a)(1) An explanation of how you will completion of mining meet the design establishment of standards that rely handle surface-water runoff in a manner requirements of this section and any upon restoration of the form, hydrologic that will prevent peak flows from the additional design criteria established by function, and water quality of the proposed permit area, both during and the regulatory authority. This stream and reestablishment of after mining and reclamation, from certification may be limited to the streamside vegetation as a surrogate for exceeding the premining peak flow from location, dimensions, and physical the biological condition of the stream. the same area for the same-size characteristics of the stream channel. (B) The regulatory authority must precipitation event. You must use the (g) What requirements apply to reevaluate the best technology currently appropriate regional Natural Resources establishment of standards for available for intermittent streams under Conservation Service synthetic storm restoration of the ecological function of paragraph (g)(3)(iv)(A) of this section at distribution or another scientifically a stream? (1) If you propose to mine 5-year intervals. Upon conclusion of defensible method approved by the through a perennial or intermittent that evaluation, the regulatory authority regulatory authority that takes into stream, the regulatory authority must must make any appropriate adjustments account the time of concentration to establish standards for determining before processing permit applications estimate peak flows. when the ecological function of the submitted after the conclusion of that (2) The explanation in paragraph reconstructed stream has been restored. evaluation. (a)(1) of this section must consider the Your application must incorporate those (4) Standards established under findings in the determination of the standards and explain how you will paragraph (g)(1) of this section must probable hydrologic consequences of meet them. ensure that the reconstructed stream or mining prepared under § 780.20 of this (2) In establishing standards under stream-channel diversion will not— part. paragraph (g)(1) of this section, the (i) Preclude attainment of the (b) A surface-water runoff monitoring regulatory authority must coordinate designated uses of that stream segment and inspection program that will with the appropriate agencies under section 303(c) of the Clean Water provide sufficient precipitation and responsible for administering the Clean Act, 33 U.S.C. 1313(c), before mining, stormwater discharge data for the Water Act, 33 U.S.C. 1251 et seq., to or, if there are no designated uses, the proposed permit area to evaluate the ensure compliance with all Clean Water premining uses of that stream segment; effectiveness of the surface-water runoff Act requirements. or control practices under paragraph (a) of

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00286 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93351

this section. The surface-water runoff to have the regulatory authority elevation, provided that the final surface monitoring and inspection program approve— configuration is compatible with the must specify criteria for monitoring, (a) Conducting the proposed surface surrounding terrain and generally inspection, and reporting consistent mining activities within 100 feet of the resembles landforms found in the with § 816.34(d) of this chapter. The right-of-way line of any public road, surrounding area. program must contain a monitoring- except where mine access or haul roads (4) You may not create a permanent point density that adequately represents join that right-of-way; or impoundment under § 816.49(b) of this the drainage pattern across the entire (b) Relocating a public road. chapter or place coal combustion proposed permit area, with a minimum residues or noncoal materials in the § 780.35 What information must I provide of one monitoring point per watershed mine excavation if doing so would concerning the minimization and disposal result in the creation of excess spoil. discharge point. of excess spoil? (c) Descriptions maps, and cross- (c) Preferential use of preexisting (a) Applicability. This section applies sections of runoff-control structures. A benches for excess spoil disposal. To the to you, the permit applicant, if you runoff-control structure is any man- extent that your proposed operation will propose to generate excess spoil as part made structure designed to control or generate excess spoil, you must of your operation. convey storm water runoff on or across maximize the placement of excess spoil (b) Demonstration of minimization of on preexisting benches in the vicinity of a minesite. This term encompasses the excess spoil. (1) You must submit a entire surface water control system and the proposed permit area in accordance demonstration, with supporting with § 816.74 of this chapter rather than includes diversion ditches, drainage calculations and other documentation, benches or terraces, drop structures or constructing excess spoil fills on that the operation has been designed to previously undisturbed land. check dams, all types of conveyance minimize, to the extent possible, the channels, downdrains, and (d) Fill capacity demonstration. You volume of excess spoil that the must submit a demonstration, with sedimentation and detention ponds and operation will generate. associated outlets. It does not include supporting calculations and other (2) The demonstration under documentation, that the designed swales or reconstructed perennial, paragraph (b)(1) of this section must intermittent, or ephemeral stream maximum cumulative volume of all explain, in quantitative terms, how the proposed excess spoil fills within the channels. maximum amount of overburden will be (d) An explanation of how diversions permit area is no larger than the returned to the mined-out area after capacity needed to accommodate the will be constructed in compliance with considering— § 816.43 of this chapter. anticipated cumulative volume of (i) Applicable regulations concerning excess spoil that the operation will § 780.31 What information must I provide backfilling, compaction, grading, and generate, as calculated under paragraph concerning the protection of publicly restoration of the approximate original (b) of this section. owned parks and historic places? contour. (e) Requirements related to perennial (a) For any publicly owned parks or (ii) Safety and stability needs and and intermittent streams. You must any places listed on the National requirements. comply with the requirements of Register of Historic Places that may be (iii) The need for access and haul § 780.28 of this part concerning adversely affected by the proposed roads with their attendant drainage activities in or near perennial or operation, you must describe the structures and safety berms during intermittent streams if you propose to measures to be used— mining and reclamation. You may construct an excess spoil fill in or (1) To prevent adverse impacts, or construct roads and their attendant within 100 feet of a perennial or (2) If a person has valid existing drainage structures and safety berms on intermittent stream. The 100-foot rights, as determined under § 761.16 of the perimeter of the backfilled area as distance must be measured horizontally this chapter, or if joint agency approval necessary to conduct surface coal on a line perpendicular to the stream, is to be obtained under § 761.17(d) of mining and reclamation operations, but, beginning at the ordinary high water this chapter, to minimize adverse when the roads are no longer needed to mark. impacts. support heavy equipment traffic, you (f) Location and profile. (1) You must (b) The regulatory authority may must reduce the total width of roads and submit maps and cross-section drawings require the applicant to protect historic their attendant drainage structures and or models showing the location and or archeological properties listed on or berms to be retained as part of the profile of all proposed excess spoil fills. eligible for listing on the National postmining land use to no more than 20 (2) You must locate fills on the most Register of Historic Places through feet unless you demonstrate an essential moderately sloping and naturally stable appropriate mitigation and treatment need for a greater width for the areas available. The regulatory authority measures. Appropriate mitigation and postmining land use. will determine which areas are treatment measures may be required to (iv) Needs and requirements available, based upon the requirements be taken after permit issuance, provided associated with revegetation and the of the Act and this chapter. that the required measures are proposed postmining land use. (3) Whenever possible, you must completed before the properties are (v) Any other relevant regulatory place fills on or above a natural terrace, affected by any mining operation. requirements, including those bench, or berm if that location would pertaining to protection of water quality provide additional stability and prevent § 780.33 What information must I provide and fish, wildlife, and related mass movement. concerning the relocation or use of public environmental values. (g) Design plans. You must submit roads? (3) When necessary to avoid or detailed design plans, including Your application must describe, with minimize construction of excess spoil appropriate maps and cross-section appropriate maps and cross-sections, fills on undisturbed land, paragraph drawings, for each proposed fill, the measures to be used to ensure that (b)(2)(i) of this section does not prohibit prepared in accordance with the the interests of the public and the placement of what would otherwise requirements of this section and landowners affected are protected if, be excess spoil on the mined-out area to §§ 816.71 through 816.74 of this under § 761.14 of this chapter, you seek heights in excess of the premining chapter. You must design the fill and

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00287 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93352 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

appurtenant structures using current (2) Engineering specifications used to registered professional engineer, or in prudent engineering practices and any design the bench cuts or rock-toe any state that authorizes land surveyors additional design criteria established by buttresses. Those specifications must be to certify the design of primary roads, a the regulatory authority. based upon the stability analyses qualified registered professional land (h) Geotechnical investigation. You required under paragraph (h)(6) of this surveyor, with experience in the design must submit the results of a section. and construction of roads, as meeting geotechnical investigation, with (k) Design certification. A qualified the requirements of this chapter; supporting calculations and analyses, of registered professional engineer current, prudent engineering practices; the site of each proposed fill, with the experienced in the design of earth and and any design criteria established by exception of those sites at which excess rock fills must certify that the design of the regulatory authority. spoil will be placed only on a each proposed fill and appurtenant (c) Standard design plans. The preexisting bench under § 816.74 of this structures meets the requirements of regulatory authority may establish chapter. The information submitted this section. engineering design standards for must include— primary roads through the regulatory § 780.37 What information must I provide program approval process, in lieu of (1) Sufficient foundation concerning access and haul roads? investigations, as well as any necessary engineering tests, to establish laboratory testing of foundation (a) Design and other application compliance with the minimum static material, to determine the design requirements. (1) You, the applicant, safety factor of 1.3 for all embankments requirements for foundation stability for must submit a map showing the location specified in § 816.151(c) of this chapter. each site. of all roads that you intend to construct or use within the proposed permit area, § 780.38 What information must I provide (2) A description of the character of together with plans and drawings for concerning support facilities? the bedrock and any adverse geologic each road to be constructed, used, or You must submit a description, plans, conditions in the area of the proposed maintained within the proposed permit and drawings for each support facility to fill. area. be constructed, used, or maintained (3) The geographic coordinates and a (2) You must include appropriate within the proposed permit area. The narrative description of all springs, cross-sections, design drawings, and plans and drawings must include a map, seepage, mine discharges, and specifications for road widths, appropriate cross-sections, design groundwater flow observed or gradients, surfacing materials, cuts, fill drawings, and specifications sufficient anticipated during wet periods in the embankments, culverts, bridges, to demonstrate compliance with area of the proposed fill. drainage ditches, drainage structures, § 816.181 of this chapter for each (4) An analysis of the potential effects and fords and low-water crossings of facility. of any underground mine workings perennial and intermittent streams. ■ 25. Lift the suspensions of §§ 783.21, within the proposed permit and (3) You must demonstrate how all 783.25(a)(3), 783.25(a)(8), and adjacent areas, including the effects of proposed roads will comply with the 783.25(a)(9) and revise part 783 to read any subsidence that may occur as a applicable requirements of §§ 780.28, as follows: result of previous, existing, and future 816.150, and 816.151 of this chapter. underground mining operations. (4) You must identify— Part 783—Underground Mining Permit (5) A technical description of the rock (i) Each road that you propose to Applications—Minimum Requirements materials to be used in the construction locate in or within 100 feet, measured for Information on Environmental of fills underlain by a rock drainage horizontally on a line perpendicular to Resources and Conditions blanket. the stream, beginning at the ordinary Sec. (6) Stability analyses that address high water mark, of a perennial or static and seismic conditions. The 783.1 What does this part do? intermittent stream. 783.2 What is the objective of this part? analyses must include, but are not (ii) Each proposed ford of a perennial 783.4 What responsibilities do I and limited to, strength parameters, pore or intermittent stream that you plan to government agencies have under this pressures and long-term seepage use as a temporary route during road part? conditions. The analyses must be construction. 783.10 Information collection. accompanied by a description of all (iii) Any plans to alter or relocate a 783.11 [Reserved] 783.12 [Reserved] engineering design assumptions and natural stream channel. calculations and the alternatives 783.17 What information on cultural, (iv) Each proposed low-water crossing historic, and archeological resources considered in selecting the specific of a perennial or intermittent stream must I include in my permit application? design specifications and methods. channel. 783.18 What information on climate must I (i) Operation and reclamation plans. (5) You must explain why the roads, include in my permit application? You must submit plans for the fords, and stream crossings identified in 783.19 What information on vegetation construction, operation, maintenance, paragraph (a)(4) of this section are must I include in my permit application? and reclamation of all excess spoil fills necessary and how they comply with 783.20 What information on fish and in accordance with the requirements of wildlife resources must I include in my the applicable requirements of § 780.28 permit application? §§ 816.71 through 816.74 of this of this part and §§ 816.150 and 816.151 783.21 What information on soils must I chapter. of this chapter. include in my permit application? (j) Additional requirements for bench (6) You must describe the plans to 783.22 What information on land use and cuts or rock-toe buttresses. If bench cuts remove and reclaim each road that productivity must I include in my permit or rock-toe buttresses are required under would not be retained as part of the application? § 816.71(b)(2) of this chapter, you must postmining land use, and provide a 783.24 What maps, plans, and cross- provide the— schedule for removal and reclamation. sections must I submit with my permit application? (1) Number, location, and depth of (b) Primary road certification. The 783.25 [Reserved] borings or test pits, which must be plans and drawings for each primary 783.26 May I submit permit application determined according to the size of the road must be prepared by, or under the information in increments as mining fill and subsurface conditions. direction of, and certified by a qualified progresses?

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00288 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93353

Authority: 30 U.S.C. 1201 et seq. and 54 § 783.11 [Reserved] the proposed permit area contains U.S.C. 300101 et seq. native plant communities of local or § 783.12 [Reserved] § 783.1 What does this part do? regional significance; § 783.17 What information on cultural, (3) Identify areas with significant This part establishes the minimum historic, and archeological resources must populations of non-native invasive or requirements for the descriptions of I include in my permit application? noxious species; and environmental resources and conditions (a) Your permit application must (4) Delineate all wetlands and all that you must include in an application describe the nature of cultural, historic, areas bordering streams that either for a permit to conduct underground and archeological resources listed or support or are capable of supporting mining activities. eligible for listing on the National hydrophytic or hydrophilic vegetation or vegetation typical of floodplains. § 783.2 What is the objective of this part? Register of Historic Places and known archeological sites within the proposed (c) If the vegetation on the proposed The objective of this part is to ensure permit and adjacent areas. The permit area has been altered by human that you, the permit applicant, provide description must be based on all activity, you must describe the native the regulatory authority with a complete available information, including, but not vegetation and plant communities and accurate description of the limited to, information from the State typical of that area in the absence of environmental resources that may be Historic Preservation Officer and from human alterations. impacted or affected by proposed local archeological, historical, and § 783.20 What information on fish and underground mining activities and the cultural preservation agencies. wildlife resources must I include in my environmental conditions that exist (b) The regulatory authority may permit application? within the proposed permit and require you, the applicant, to identify (a) General requirements. Your permit adjacent areas. and evaluate important historic and application must include information archeological resources that may be § 783.4 What responsibilities do I and on fish and wildlife resources for the government agencies have under this part? eligible for listing on the National proposed permit and adjacent areas, Register of Historic Places by— including all species of fish, wildlife, (a) You, the permit applicant, must (1) Collecting additional information, plants, and other life forms listed or provide all information required by this (2) Conducting field investigations, or proposed for listing under the part in your application, except when (3) Completing other appropriate Endangered Species Act of 1973, 30 this part specifically exempts you from analyses. U.S.C. 1531 et seq. The adjacent area doing so. § 783.18 What information on climate must must include all lands and waters likely (b) State and federal government I include in my permit application? to be affected by the proposed agencies are responsible for providing The regulatory authority may require operation. information for permit applications to that your permit application contain a (b) Scope and level of detail. The the extent that this part specifically statement of the climatic factors that are regulatory authority will determine the requires that they do so. representative of the proposed permit scope and level of detail for this § 783.10 Information collection. area, including— information in coordination with state (a) The average seasonal precipitation. and federal agencies with In accordance with 44 U.S.C. 3501 et (b) The average direction and velocity responsibilities for fish and wildlife. seq., the Office of Management and of prevailing winds. The scope and level of detail must be Budget (OMB) has approved the (c) Seasonal temperature ranges. sufficient to design the protection and information collection requirements of (d) Additional data that the regulatory enhancement plan required under this part and assigned it control number authority deems necessary to ensure § 784.16 of this chapter. 1029–0035. The information is being compliance with the requirements of (c) Site-specific resource information collected to meet the requirements of this subchapter. requirements. Your application must sections 507 and 508 of SMCRA, which include site-specific resource require that each permit application § 783.19 What information on vegetation information if the proposed permit area include a description of the premining must I include in my permit application? or the adjacent area contains or is likely environmental resources within and (a) You must identify, describe, and to contain one or more of the around the proposed permit area. The map existing vegetation types and plant following— regulatory authority uses this communities within the proposed (1) Species listed or proposed for information as a baseline for evaluating permit area. If you propose to use listing as threatened or endangered the impacts of mining. You, the permit reference areas for purposes of under the Endangered Species Act of applicant, must respond to obtain a determining revegetation success under 1973, 16 U.S.C. 1531 et seq., or benefit. A federal agency may not § 817.116 of this chapter, you also must designated or proposed critical habitat conduct or sponsor, and you are not identify, describe, and map existing under that law. When these required to respond to, a collection of vegetation types and plant communities circumstances exist, the site-specific information unless it displays a within any proposed reference areas. resource information must include a currently valid OMB control number. (b) The description and map required description of the effects of future non- Send comments regarding burden under paragraph (a) of this section federal activities that are reasonably estimates or any other aspect of this must— certain to occur within the proposed collection of information, including (1) Be in sufficient detail to assist in permit and adjacent areas. suggestions for reducing the burden, to preparation of the revegetation plan (2) Species or habitat protected by the Office of Surface Mining under § 784.12(g) of this chapter and state or tribal endangered species Reclamation and Enforcement, provide a baseline for comparison with statutes and regulations. Information Collection Clearance postmining vegetation; (3) Habitat of unusually high value for Officer, Room 203–SIB, 1951 (2) Be adequate to evaluate whether fish and wildlife, which may include Constitution Avenue NW., Washington, the vegetation provides important wetlands, riparian areas, cliffs that DC 20240. habitat for fish and wildlife and whether provide nesting sites for raptors,

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00289 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93354 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

significant migration corridors, existence at the time of the filing of the (5) The location of surface and specialized reproduction or wintering application. subsurface manmade features within, areas, areas offering special shelter or (2) A description of the historical uses passing through, or passing over the protection, and areas that support of the land to the extent that this proposed permit and adjacent areas, populations of endemic species that are information is readily available or can including, but not limited to, highways, vulnerable because of restricted ranges, be inferred from the uses of other lands electric transmission lines, pipelines, limited mobility, limited reproductive in the vicinity. constructed drainageways, irrigation capacity, or specialized habitat (3) For any previously mined area ditches, and agricultural drainage tile requirements. within the proposed permit area, a fields. (4) Other species or habitat identified description of the land uses in existence (6) The location and boundaries of through interagency coordination as before any mining, to the extent that any proposed reference areas for requiring special protection under state, such information is available. determining the success of revegetation. tribal, or federal law, including species (b) A narrative analysis of— (7) The location and ownership of identified as sensitive by a state, tribal, (1) The capability of the land before existing wells, springs, and other or federal agency. any mining to support a variety of uses, groundwater resources within the (5) Perennial or intermittent streams. giving consideration to soil and proposed permit and adjacent areas. (6) Native plant communities of local foundation characteristics, topography, You may provide ownership or regional ecological significance. vegetative cover, and the hydrology of information in a table cross-referenced the proposed permit area; and to a map if approved by the regulatory § 783.21 What information on soils must I authority. include in my permit application? (2) The productivity of the proposed permit area before mining, expressed as (8) The location and depth (if Your permit application must average yield of food, fiber, forage, or available) of each water well within the include— proposed permit and adjacent areas. (a) The results of a reconnaissance wood products obtained under high levels of management, as determined You may provide information inspection to determine whether the concerning depth in a table cross- proposed permit area may contain by— (i) Actual yield data; or referenced to a map if approved by the prime farmland historically used for (ii) Yield estimates for similar sites regulatory authority. cropland, as required by § 785.17(b)(1) based on current data from the U.S. (9) The name, location, ownership, of this chapter. Department of Agriculture, state and description of all surface-water (b)(1) A map showing the soil bodies and features, such as perennial, mapping units located within the agricultural universities, or appropriate state natural resources or agricultural intermittent, and ephemeral streams; proposed permit area, if the National ponds, lakes, and other impoundments; Cooperative Soil Survey has completed agencies. (c) Any additional information that wetlands; and natural drainageways, and published a soil survey of the area. within the proposed permit and (2) The applicable soil survey the regulatory authority deems necessary to determine the condition, adjacent areas. To the extent information that the Natural Resources appropriate, you may provide this Conservation Service maintains for the capability, and productivity of the land within the proposed permit area. information in a table cross-referenced soil mapping units identified in to a map if approved by the regulatory paragraph (b)(1) of this section. You § 783.24 What maps, plans, and cross- authority. may provide this information either in sections must I submit with my permit (10) The locations of water supply paper form or via a link to the application? intakes for current users of surface water appropriate element of the Natural (a) In addition to the maps, plans, and flowing into, from, and within a Resources Conservation Service’s soil information required by other sections hydrologic area defined by the survey Web site. of this part, your permit application regulatory authority. (c) A description of soil depths within must include maps and, when (11) The location of any public water the proposed permit area. appropriate, plans and cross-sections supplies and the extent of any (d) Detailed information on soil showing— associated wellhead protection zones quality, if you seek approval for the use (1) All boundaries of lands and names located within one-half mile, measured of soil substitutes or supplements under of present owners of record of those horizontally, of the proposed permit § 784.12(e) of this chapter. lands, both surface and subsurface, area or the area overlying the proposed (e) The soil survey information included in or contiguous to the underground workings. Both you and required by § 785.17(b)(3) of this chapter proposed permit area. the regulatory authority must keep this if the reconnaissance inspection (2) The boundaries of land within the information confidential when required conducted under paragraph (a) of this proposed permit area upon which you by state law or when otherwise section indicates that prime farmland have the legal right to enter and begin necessary for safety and security historically used for cropland may be underground mining activities. purposes and protection of the integrity present. (3) The boundaries of all areas that (f) Any other information on soils that of public water supplies. you anticipate affecting over the (12) The location of all existing and the regulatory authority finds necessary estimated total life of the underground proposed discharges to any surface- to determine land capability. mining activities, with a description of water body within the proposed permit § 783.22 What information on land use and the size, sequence, and timing of the and adjacent areas. productivity must I include in my permit mining of subareas for which you (13) The location of any discharge application? anticipate seeking additional permits or into or from an active, inactive, or Your permit application must contain expansion of an existing permit in the abandoned surface or underground a statement of the condition, capability, future. mine, including, but not limited to, a and productivity of the land within the (4) The location and current use of all mine-water treatment or pumping proposed permit area, including— buildings within the proposed permit facility, that is hydrologically connected (a)(1) A map and narrative identifying area or within 1,000 feet of the proposed to the site of the proposed operation or and describing the land use or uses in permit area. that is located within one-half mile,

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00290 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93355

measured horizontally, of either the (25) The location and extent of for each successive increment at least proposed permit area or the area existing or previously surface-mined one year in advance of any anticipated overlying the proposed underground areas within the proposed permit area. impact of underground mining upon workings. (26) The location and dimensions of that increment. (14) Each public road located in or existing areas of spoil, coal mine waste, (4) The regulatory authority within 100 feet of the proposed permit noncoal mine waste disposal sites, conditions the permit to— area. dams, embankments, other (i) Require that you reevaluate the (15) The boundaries of any public impoundments, and water treatment adequacy of the PHC determination park and locations of any cultural or facilities within the proposed permit under § 784.20 of this chapter and the historical resources listed or eligible for area. hydrologic reclamation plan under listing in the National Register of (27) The location and, if available, the § 784.22 of this chapter as part of each Historic Places and known archeological depth of all gas and oil wells within the submission under paragraph (b)(3) of sites within the permit and adjacent proposed permit and adjacent areas. this section. areas. You must identify the lateral extent of (ii) Prohibit the conduct of any (16) Each cemetery that is located in the well bores unless that information is underground mining activity that might or within 100 feet of the proposed confidential under state law. You may impact an increment before the permit area. provide information concerning well regulatory authority reviews the (17) Any land within the proposed depth in a table cross-referenced to a information submitted for that permit area which is within the map if approved by the regulatory increment, updates the CHIA prepared boundaries of any units of the National authority. under § 784.21 of this chapter to System of Trails or the Wild and Scenic (28) Other relevant information incorporate that information, and Rivers System, including study rivers required by the regulatory authority. determines that the findings made designated under section 5(a) of the (b) Maps, plans, and cross-sections under § 773.15 of this chapter remain Wild and Scenic Rivers Act. required by paragraph (a) of this section accurate. (18) The elevations, locations, and must be— ■ 26. Revise part 784 to read as follows: (1) Prepared by, or under the direction geographic coordinates of test borings of, and certified by a qualified registered and core samplings. You may provide Part 784—Underground Mining Permit professional engineer, a professional this information in a table cross- Applications—Minimum Requirements geologist, or in any state that authorizes referenced to a map if approved by the for Operation and Reclamation Plans land surveyors to prepare and certify regulatory authority. such maps, plans, and cross-sections, a Sec. (19) The location and extent of qualified registered professional land 784.1 What does this part do? subsurface water, if encountered, within surveyor, with assistance from experts 784.2 What is the objective of this part? the proposed permit and adjacent areas. 784.4 What responsibilities do I and in related fields such as landscape This information must include, but is government agencies have under this architecture. not limited to, the elevation of the water part? (2) Updated when required by the 784.10 Information collection. table, the areal and vertical distribution regulatory authority. of aquifers, and maximum and 784.11 What must I include in the general (c) The regulatory authority may description of my proposed operations? minimum variations in hydraulic head require that you submit the materials 784.12 What must the reclamation plan in different aquifers. You must provide required by this section in a digital include? this information on appropriately-scaled format that includes all necessary 784.13 What additional maps and plans cross-sections or maps, in a narrative, or metadata. must I include in the reclamation plan? a combination of these methods, 784.14 What requirements apply to the use whichever format best displays this § 783.25 [Reserved] of existing structures? information to the satisfaction of the 784.15 [Reserved] § 783.26 May I submit permit application 784.16 What must I include in the fish and regulatory authority. information in increments as mining (20) The elevations, locations, and wildlife protection and enhancement progresses? plan? geographic coordinates of monitoring (a) You may request that the 784.17 [Reserved] stations used to gather data on water regulatory authority approve a schedule 784.18 [Reserved] quality and quantity and on fish and for incremental submission of the 784.19 What baseline information on wildlife in preparation of the information required by this part, based hydrology, geology, and aquatic biology application. You may provide this on the anticipated progress and impact must I provide? 784.20 How must I prepare the information in a table cross-referenced of underground mining activities. to a map if approved by the regulatory determination of the probable hydrologic (b) At its discretion, the regulatory consequences of my proposed operation authority. authority may approve the proposed (21) The nature, depth, thickness, and (PHC determination)? schedule, provided that— 784.21 What requirements apply to commonly used names of the coal seams (1) Each increment is clearly defined preparation and review of the to be mined. and includes at least 5 years of cumulative hydrologic impact (22) Any coal crop lines within the anticipated mining. assessment (CHIA)? permit and adjacent areas and the strike (2) The schedule includes a map 784.22 What information must I include in and dip of the coal to be mined. showing the limits of underground the hydrologic reclamation plan and (23) The location and extent of known mining activity under each increment. what information must I provide on workings of active, inactive, or You must establish those limits in a alternative water sources? abandoned underground mines within 784.23 What information must I include in manner that will prevent any impact on plans for the monitoring of groundwater, or underlying the proposed permit and the succeeding increment before the surface water, and the biological adjacent areas. regulatory authority approves mining condition of streams during and after (24) Any underground mine openings within that increment. mining? to the surface within the proposed (3) The schedule requires that you 784.24 What requirements apply to the permit and adjacent areas. submit all required data under this part postmining land use?

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00291 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93356 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

784.25 What information must I provide for § 784.10 Information collection. storage, transportation, and disposal siltation structures, impoundments, and In accordance with 44 U.S.C. 3501 et areas and structures. refuse piles? seq., the Office of Management and (5) Mine facilities, including 784.26 What information must I provide if Budget (OMB) has approved the ventilation boreholes, fans, and access I plan to return coal processing waste to roads. abandoned underground workings? information collection requirements of 784.27 What additional permitting this part and assigned it control number (6) Water pollution control facilities. 1029–0039. Collection of this requirements apply to proposed § 784.12 What must the reclamation plan activities in or through ephemeral information is required under section include? streams? 516(d) of SMCRA, which in effect (a) General requirements. Your 784.28 What additional permitting requires applicants for permits for application must contain a plan for the requirements apply to proposed surface underground coal mines to prepare and reclamation of the lands to be disturbed activities in, through, or adjacent to a submit an operation and reclamation perennial or intermittent stream? within the proposed permit area. The plan for coal mining activities as part of 784.29 What information must I include in plan must show how you will comply the application. The regulatory the surface-water runoff control plan? with the reclamation requirements of authority uses this information to 784.30 When must I prepare a subsidence the applicable regulatory program. At a determine whether the plan will achieve control plan and what information must minimum, the plan must include all that plan include? the reclamation and environmental information required under this part 784.31 What information must I provide protection requirements of the Act and and part 785 of this chapter. concerning the protection of publicly regulatory program. You, the permit (b) Reclamation timetable. The owned parks and historic places? applicant, must respond to obtain a reclamation plan must contain a 784.33 What information must I provide benefit. A federal agency may not detailed timetable for the completion of concerning the relocation or use of conduct or sponsor, and you are not public roads? each major step in the reclamation required to respond to, a collection of 784.35 What information must I provide process including, but not limited to— information unless it displays a concerning the minimization and (1) Backfilling. disposal of excess spoil? currently valid OMB control number. (2) Grading. 784.37 What information must I provide Send comments regarding burden (3) Establishment of the surface concerning access and haul roads? estimates or any other aspect of this drainage pattern and stream-channel 784.38 What information must I provide collection of information, including configuration approved in the permit, concerning support facilities? suggestions for reducing the burden, to 784.40 May I submit permit application including construction of appropriately- the Office of Surface Mining designed perennial, intermittent, and information in increments as mining Reclamation and Enforcement, progresses? ephemeral stream channels to replace 784.200 [Reserved] Information Collection Clearance those removed by mining, to the extent Officer, Room 203–SIB, 1951 and in the form required by §§ 784.27, Authority: 30 U.S.C. 1201 et seq. and 54 Constitution Avenue NW., Washington, U.S.C. 300101 et seq. 784.28, 817.56, and 817.57 of this DC 20240. chapter. § 784.1 What does this part do? § 784.11 What must I include in the general (4) Soil redistribution. This part establishes the minimum description of my proposed operations? (5) Planting of all vegetation in requirements for the operation and Your application must contain a accordance with the revegetation plan reclamation plan portions of description of the mining operations approved in the permit, including applications for a permit to conduct that you propose to conduct during the establishment of streamside vegetative underground mining activities, except life of the mine, including, at a corridors along the banks of perennial, to the extent that part 785 of this minimum, the following— intermittent, and ephemeral streams subchapter establishes different (a) A narrative description of the— when required by §§ 817.56(c) and requirements. (1) Type and method of coal mining 817.57(d) of this chapter. procedures and proposed engineering (6) Demonstration of revegetation § 784.2 What is the objective of this part? techniques. success. The objective of this part is to ensure (2) Anticipated annual and total (7) Demonstration of restoration of the that you, the permit applicant, provide number of tons of coal to be produced. ecological function of all reconstructed the regulatory authority with (3) Major equipment to be used for all perennial and intermittent stream comprehensive and reliable information aspects of the proposed operations. segments. on how you propose to conduct (b) A narrative explaining the (8) Application for each phase of bond underground mining activities and construction, modification, use, release under § 800.42 of this chapter. reclaim the disturbed area in maintenance, and removal (unless you (c) Reclamation cost estimate. The compliance with the Act, this chapter, can satisfactorily explain why retention reclamation plan must contain a and the regulatory program. is necessary or appropriate for the detailed estimate of the cost of postmining land use specified in the reclamation, including both direct and § 784.4 What responsibilities do I and application under § 784.24 of this part) indirect costs, of those elements of the government agencies have under this part? of the following facilities: proposed operations that are required to (a) You, the permit applicant, must (1) Dams, embankments, and other be covered by a performance bond provide to the regulatory authority all impoundments. under part 800 of this chapter, with information required by this part, except (2) Overburden and soil handling and supporting calculations for the where specifically exempted in this storage areas and structures. estimates. You must use current part. (3) Coal removal, handling, storage, standardized construction cost (b) State and federal governmental cleaning, and transportation areas and estimation methods and equipment cost agencies must provide information structures. guides or up-to-date actual contracting needed for permit applications to the (4) Spoil, coal processing waste, costs incurred by the regulatory extent that this part specifically requires underground development waste, and authority for similar activities to prepare that they do so. noncoal mine waste removal, handling, this estimate.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00292 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93357

(d) Backfilling and grading plan. (1) substitute requirements of paragraph (B) Chemical and physical analyses, The reclamation plan must contain a (e)(2) of this section. field trials, or greenhouse tests that you plan for backfilling surface excavations, (iv) The plan submitted under must conduct to make the compacting the backfill, and grading the paragraph (e)(1)(i) of this section may demonstration required by paragraph disturbed area, with contour maps, allow blending of the B soil horizon, the (e)(2)(ii) of this section. models, or cross-sections that show the C soil horizon, and underlying strata, or (C) Sampling objectives and anticipated final surface configuration portions thereof, to the extent that techniques and the analytical of the proposed permit area, including research or prior experience under techniques that you must use for drainage patterns, in accordance with similar conditions has demonstrated purposes of paragraph (e)(2)(iii)(B) of §§ 817.102 through 817.107 of this that blending will not adversely affect this section. chapter, using the best technology soil productivity. (iii) At a minimum, the currently available. (v) The plan submitted under demonstrations required by paragraph (2) The backfilling and grading plan paragraph (e)(1)(i) of this section must (e)(2)(ii) of this section must include— must describe in detail how you will explain how you will handle and, if (A) The physical and chemical soil conduct backfilling and related necessary, store soil materials to avoid characteristics and root zones needed to reclamation activities, including how contamination by acid-forming or toxic- support and sustain the type of you will— forming materials and to minimize vegetation to be established on the (i) Compact spoil to reduce deterioration of desirable soil reclaimed area. infiltration to minimize leaching and characteristics. (B) A comparison and analysis of the discharges of parameters of concern. (2) Substitutes and supplements. (i) thickness, total depth, texture, percent (ii) Limit compaction of topsoil and You must identify each soil horizon for coarse fragments, pH, and areal extent of soil materials in the root zone to the which you propose to use appropriate the different kinds of soil horizons and minimum necessary to achieve stability. overburden materials as either a overburden materials available within The plan also must identify measures supplement to or a substitute for the the proposed permit area, based upon a that will be used to alleviate soil existing topsoil or subsoil on the statistically valid sampling procedure. compaction if necessary. proposed permit area. For each of those (v) You must include a plan for (iii) Handle acid-forming and toxic- horizons, you must demonstrate, and testing and evaluating overburden forming materials, if present, to prevent the regulatory authority must find in materials during both removal and the formation of acid or toxic drainage writing, that— redistribution to ensure that only from acid-forming and toxic-forming (A)(1) The quality of the existing materials approved for use as soil materials within the overburden. The topsoil and subsoil is inferior to that of substitutes or supplements are removed plan must be consistent with paragraph the best overburden materials available; and redistributed. (n) of this section and § 817.38 of this or (f) Surface stabilization plan. The chapter. (2) The quantity of the existing topsoil reclamation plan must contain a plan (e) Soil handling plan.—(1) General and subsoil on the proposed permit area for stabilizing road surfaces, requirements. (i) The reclamation plan is insufficient to provide an optimal redistributed soil materials, and other must include a plan and schedule for rooting depth. In this case, the plan exposed surface areas to effectively removal, storage, and redistribution of must require that all available existing control erosion and air pollution topsoil, subsoil, and other material to be topsoil and favorable subsoil, regardless attendant to erosion in accordance with used as a final growing medium in of the amount, be removed, stored, and §§ 817.95, 817.150, and 817.151 of this accordance with § 817.22 of this redistributed as part of the final growing chapter. chapter. It also must include a plan and medium unless the conditions described (g) Revegetation plan. (1) The schedule for removal, storage, and in paragraph (e)(2)(i)(A)(1) of this reclamation plan must contain a plan redistribution or other use of organic section also apply. for revegetation consistent with matter in accordance with § 817.22(f) of (B) The use of the overburden §§ 817.111 through 817.116 of this this chapter. materials that you have selected, in chapter, including, but not limited to, (ii) Except as provided in paragraphs combination with or in place of the descriptions of— (e)(1)(iii) and (iv) of this section, the topsoil or subsoil, will result in a soil (i) The schedule for revegetation of plan submitted under paragraph (e)(1)(i) medium that is more suitable than the the area to be disturbed. of this section must require that the B existing topsoil and subsoil to support (ii) The site preparation techniques soil horizon, the C soil horizon, and and sustain vegetation consistent with that you plan to use, including the other underlying strata, or portions of the postmining land use and the measures that you will take to avoid or, those soil horizons and strata, be revegetation plan under paragraph (g) of when avoidance is not possible, to removed separately, stockpiled if this section and that will provide a minimize and alleviate compaction of necessary, and redistributed to the rooting depth that is superior to the the root zone during backfilling, extent and in the manner needed to existing topsoil and subsoil. grading, soil redistribution, and achieve the optimal rooting depths (C) The overburden materials that you planting. required to restore premining land use select for use as a soil substitute or (iii) What soil tests you will perform, capability and to comply with the supplement are the best materials together with a statement as to whether revegetation requirements of §§ 817.111 available to support and sustain you will apply lime, fertilizer, or other and 817.116 of this chapter. vegetation consistent with the amendments in response to those tests (iii) The plan submitted under postmining land use and the before planting or seeding. paragraph (e)(1)(i) of this section need revegetation plan under paragraph (g) of (iv) The species that you will plant to not require salvage of those soil this section. achieve temporary erosion control or, if horizons which you demonstrate, to the (ii) For purposes of paragraph (e)(2)(i) you do not intend to establish a satisfaction of the regulatory authority, of this section, the regulatory authority temporary vegetative cover, a are inferior to other overburden will specify the— description of other soil stabilization materials as a plant growth medium, (A) Suitability criteria for substitutes measures that you will implement in provided you comply with the soil and supplements. lieu of planting a temporary cover.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00293 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93358 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(v) The species that you will plant (B) Planting of native species would maintain environmental integrity, as and the seeding and stocking rates and be inconsistent with the approved required by § 817.59 of this chapter. planting arrangements that you will use postmining land use; and (j) Plan for disposal of noncoal waste to achieve or complement the (C) The approved postmining land use materials. The reclamation plan must postmining land use, enhance fish and is implemented before the entire bond describe— wildlife habitat, and achieve the amount for the area has been fully (1) The type and quantity of noncoal streamside vegetative corridor released under §§ 800.40 through 800.43 waste materials that you anticipate requirements of §§ 817.56(c) and of this chapter. disposing of within the proposed permit 817.57(d) of this chapter, when (ii) Be capable of stabilizing the soil area. applicable. surface from erosion to the extent that (2) How you intend to dispose of (A) Revegetation plans that involve control of erosion with herbaceous noncoal waste materials in accordance the establishment of trees and shrubs ground cover is consistent with with § 817.89 of this chapter. must include site-specific planting establishment of a permanent vegetative (3) The locations of any proposed prescriptions for canopy trees, cover that resembles native plant noncoal waste material disposal sites understory trees and shrubs, and communities in the area. within the proposed permit area. herbaceous ground cover compatible (iii) Be compatible with the approved (4) The contingency plans that you with establishment of trees and shrubs. postmining land use. have developed to preclude sustained (B) To the extent practicable and (iv) Have the same seasonal combustion of combustible noncoal consistent with other revegetation and characteristics of growth, consistent materials. (k) Management of mine openings, regulatory program requirements, the with the appropriate stage of natural boreholes, and wells. The reclamation species mix must include native succession, as the native plant plan must contain a description, pollinator-friendly plants and the communities described in the permit including appropriate cross-sections planting arrangements must promote the application in accordance with § 783.19 and maps, of the measures that you will establishment of pollinator-friendly of this chapter. use to seal or manage mine openings, habitat. (v) Be capable of self-regeneration and and to plug, case or manage exploration (vi) The planting and seeding natural succession. holes, boreholes, wells and other techniques that you will use. (vi) Be compatible with the plant and openings within the proposed permit (vii) Whether you will apply mulch animal species of the area. area, in accordance with § 817.13 of this and, if so, the type of mulch and the (vii) Meet the requirements of chapter. method of application. applicable state and federal seed, (l) Compliance with Clean Air Act and (viii) Whether you plan to conduct noxious plant, and introduced species Clean Water Act. The reclamation plan irrigation or apply fertilizer after the laws and regulations. must describe the steps that you have first growing season and, if so, to what (4) The regulatory authority may grant taken or will take to comply with the extent and for what length of time. an exception to the requirements of requirements of the Clean Air Act (42 (ix) Any normal husbandry practices paragraphs (g)(3)(i), (iv), and (v) of this U.S.C. 7401 et seq.), the Clean Water Act that you plan to use in accordance with section when necessary to achieve a (33 U.S.C. 1251 et seq.), and other § 817.115(d) of this chapter. quick-growing, temporary, stabilizing applicable air and water quality laws (x) The standards and evaluation cover on disturbed and regraded areas, and regulations and health and safety techniques that you propose to use to and the species selected to achieve this standards. determine the success of revegetation in purpose will not impede the (m) Consistency with land use plans accordance with § 817.116 of this establishment of permanent vegetation. and surface owner plans. The chapter. (5) The regulatory authority may grant reclamation plan must describe how the (xi) The measures that you will take an exception to the requirements of proposed operation is consistent with— to avoid the establishment of invasive paragraphs (g)(2), (g)(3)(iv), and (g)(3)(v) (1) All applicable state and local land species on reclaimed areas or to control of this section for those areas with a use plans and programs. those species if they do become long-term, intensive, agricultural (2) The plans of the surface established. postmining land use. landowner, to the extent that those (2) Except as provided in paragraphs (6) A qualified, experienced biologist, plans are practicable and consistent (g)(4) and (5) of this section, the species soil scientist, forester, or agronomist with this chapter and with other and planting rates and arrangements must prepare or approve all revegetation applicable laws and regulations. selected as part of the revegetation plan plans. (n) Handling of acid-forming and must be designed to create a diverse, (h) Stream protection and toxic-forming materials. (1) If the effective, permanent vegetative cover reconstruction plan. The reclamation baseline geologic information collected that is consistent with the native plant plan must describe how you will under § 784.19(e)(3) and (4) of this part communities and natural succession comply with the stream reconstruction indicates the presence of acid-forming process described in the permit requirements of §§ 784.27 and 817.56 of or toxic-forming materials, you must application in accordance with § 783.19 this chapter for ephemeral streams and develop a plan to prevent any adverse of this chapter. the stream protection, stream hydrologic impacts that may result from (3) The species selected as part of the reconstruction, and functional exposure of those materials during revegetation plan must— restoration requirements of §§ 784.28 either the face-up process or disposal of (i) Be native to the area. The and 817.57 of this chapter for perennial underground development waste. At a regulatory authority may approve the and intermittent streams. minimum the plan must— use of introduced species as part of the (i) Coal resource conservation plan. (i) Identify the anticipated postmining permanent vegetative cover for the site The reclamation plan must describe the groundwater level for all locations at only if— measures that you will employ to which you propose to place acid- (A) The introduced species are both maximize the use and conservation of forming or toxic-forming materials. non-invasive and necessary to achieve the coal resource while using the best (ii) When approved in the permit, the postmining land use; technology currently available to place acid-forming and toxic-forming

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00294 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93359

materials in an excess spoil fill or a coal wildlife, and related environmental (5) A showing, including relevant mine waste refuse pile, using one or values. monitoring data or other evidence, of both of the following techniques, as (10) Each explosive storage and whether the structure meets the appropriate: handling facility. permanent program performance (A) Completely surround acid-forming (11) The location of each siltation standards of subchapter K of this and toxic-forming materials with structure, sedimentation pond, chapter or, if the structure does not meet compacted material with a hydraulic permanent water impoundment, refuse the performance standards of conductivity at least two orders of pile, and coal mine waste impoundment subchapter K of this chapter, a showing magnitude lower than the hydraulic for which plans are required by § 784.25 of whether the structure meets the conductivity of the adjacent spoil or of this part, and the location of each initial program performance standards coal mine waste. excess spoil fill for which plans are of subchapter B of this chapter. (B) Treat or otherwise neutralize acid- required under § 784.35 of this part. (b) Each application must contain a forming and toxic-forming materials to (12) Each segment of a perennial or compliance plan for every existing prevent the formation of acid or toxic intermittent stream that you propose to structure that you propose to modify or mine drainage. This technique may mine through, bury, or divert. reconstruct for use in connection with include the blending of acid-forming (13) Each location in which you or to facilitate surface coal mining and materials with spoil of sufficient propose to restore a perennial or reclamation operations. The compliance alkalinity to prevent the development of intermittent stream or construct a plan must include— temporary or permanent diversion of a acid drainage. (1) Design specifications for the perennial or intermittent stream. modification or reconstruction of the § 784.13 What additional maps and plans (14) Each streamside vegetative must I include in the reclamation plan? corridor that you propose to establish. structure to meet the design and performance standards of subchapter K (a) In addition to the maps and plans (15) Each segment of a perennial or intermittent stream that you propose to of this chapter. required under § 783.24 and other (2) A schedule for the initiation and provisions of this subchapter, your enhance under the plan submitted in accordance with § 784.16 of this part. completion of any modification or application must include maps, plans, reconstruction under paragraph (b)(1) of and cross-sections of the proposed (16) The location and geographic coordinates of each monitoring point for this section. permit area showing— (3) Provisions for monitoring the (1) The lands that you propose to groundwater, surface water, and structure during and after modification affect throughout the life of the subsidence. or reconstruction to ensure that the operation, including the sequence and (17) The location and geographic performance standards of subchapter K timing of underground mining activities coordinates of each point at which you of this chapter are met. and the sequence and timing of propose to monitor the biological (4) A demonstration that there is no backfilling, grading, and other condition of perennial and intermittent significant risk of harm to the reclamation activities to be conducted streams. (b) Except as provided in environment or to public health or on areas where the operation will §§ 784.25(a)(2), 784.25(a)(3), 784.35, safety during modification or disturb the land surface. 817.74(c), and 817.81(c) of this chapter, reconstruction of the structure. (2) Each area of land for which a maps, plans, and cross-sections required performance bond or other equivalent under paragraphs (a)(5), (6), (7), (10), § 784.15 [Reserved] guarantee will be posted under part 800 and (11) of this section must be of this chapter. § 784.16 What must I include in the fish (3) Any change that the proposed prepared by, or under the direction of, and wildlife protection and enhancement plan? operations will cause in a facility or and certified by a qualified, registered, feature identified under § 783.24 of this professional engineer, a professional (a) General requirements. Your chapter. geologist, or, in any state that authorizes application must include a fish and (4) All buildings, utility corridors, and land surveyors to prepare and certify wildlife protection and enhancement facilities to be used or constructed such maps, plans, and cross-sections, a plan that— within the proposed permit area, with qualified, registered, professional, land (1) Is consistent with the requirements identification of those facilities that you surveyor, with assistance from experts of § 817.97 of this chapter. propose to retain as part of the in related fields such as landscape (2) Is specific to the resources postmining land use. architecture. identified under § 783.20 of this (5) Each coal storage, cleaning, (c) The regulatory authority may chapter. processing, and loading area and require that you submit the materials (3) Complies with the requirements of facility. required by paragraph (a) of this section paragraphs (b) through (e) of this (6) Each temporary storage area for in a digital format. section. soil, spoil, coal mine waste, and noncoal § 784.14 What requirements apply to the (b) Requirements related to the mine waste. use of existing structures? Endangered Species Act of 1973. (1) (7) Each water diversion, collection, (a) Each application must contain a Paragraphs (b)(2) and (3) of this section conveyance, treatment, storage and description of every existing structure apply when the proposed operation may discharge facility to be used, including that you propose to use in connection affect species listed or proposed for the location of each point at which with or to facilitate surface coal mining listing as threatened or endangered water will be discharged from the and reclamation operations. The under the Endangered Species Act of proposed permit area to a surface-water description must include— 1973, 16 U.S.C. 1531 et seq., or body and the name of that water body. (1) The location of the structure. designated or proposed critical habitat (8) Each disposal facility for coal mine (2) Plans of the structure. under that law. waste and noncoal mine waste (3) A description of the current (2) You must describe the steps that materials. condition of the structure. you have taken or will take to comply (9) Each feature and facility to be (4) The approximate dates when the with the Endangered Species Act of constructed to protect or enhance fish, structure was originally built. 1973, 16 U.S.C. 1531 et seq., including

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00295 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93360 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

any biological opinions developed U.S.C. 1251 et seq., provided your the surrounding topography, and the under section 7 of that law and any application meets all applicable approved postmining land use. species-specific habitat conservation requirements of subchapter G of this (iv) Reestablishing native forests or plans developed in accordance with chapter. Issuance of a permit under other native plant communities, both section 10 of that law. subchapter G of this chapter does not within and outside the permit area. This (3) The regulatory authority may not authorize you to conduct any mining- may include restoring the native plant approve the permit application before related activity in or affecting waters communities that existed before any there is a demonstration of compliance subject to the jurisdiction of the Clean mining, establishing native plant with the Endangered Species Act of Water Act before you obtain any communities consistent with the native 1973, 16 U.S.C. 1531 et seq., through required Clean Water Act authorization, plant communities that are a part of the one of the mechanisms listed in certification, or permit. Information natural succession process, establishing § 773.15(j) of this chapter. submitted and analyses conducted native plant communities designed to (c) Protection of fish, wildlife, and under subchapter G of this chapter may restore or expand native pollinator related environmental values in general. inform the agency responsible for populations and habitats, or establishing You must describe how, to the extent authorizations, certifications, and native plant communities that will possible using the best technology permits under the Clean Water Act, but support wildlife species of local, state, currently available, you will minimize they are not a substitute for the reviews, tribal, or national concern, including, disturbances and adverse impacts on authorizations, certifications, and but not limited to, species listed or fish, wildlife, and related environmental permits required under the Clean Water proposed for listing as threatened or values. At a minimum, you must Act. endangered on a state, tribal, or national explain how you will— (5) Implement other appropriate level. (1) Retain forest cover and other conservation practices such as, but not (v) Establishing a vegetative corridor native vegetation as long as possible and limited to, those identified in the along the banks of streams where there time the removal of that vegetation to technical guides published by the is no such corridor before mining but minimize adverse impacts on aquatic Natural Resources Conservation Service. where a vegetative corridor typically and terrestrial species. (d) Enhancement measures.—(1) would exist under natural conditions. (2) Locate and design sedimentation General requirements. (i) You must Species selected for planting within the ponds, utilities, support facilities, roads, describe how, to the extent possible, corridor must be comprised of species rail spurs, and other transportation you will use the best technology native to the area, including native facilities to avoid or minimize adverse currently available to enhance fish, plants adapted to and suitable for impacts on fish, wildlife, and related wildlife, and related environmental planting in any floodplains or other environmental values. values both within and outside the area riparian zones located within the (3) Except as provided under to be disturbed by mining activities, corridor. Whenever possible, you § 784.12(g)(4) of this part, select non- where practicable. Your application should establish this corridor along both invasive native species for revegetation must identify the enhancement banks of the stream, preferably with a that either promote or do not inhibit the measures that you propose to minimum corridor width of 100 feet long-term development of wildlife implement and the lands upon which along each bank. habitat. you propose to implement those (vi) Implementing conservation (4)(i) Avoid mining through wetlands measures. Those measures may include practices identified in publications, or perennial or intermittent streams or some or all the potential enhancement such as the technical guides published disturbing riparian habitat adjacent to measures listed in paragraph (d)(2) of by the Natural Resources Conservation those streams. When avoidance is not this section, but they are not limited to Service. possible, minimize— the measures listed in paragraph (d)(2) (vii) Permanently fencing livestock (A) The time during which mining of this section. away from perennial and intermittent and reclamation operations disrupt (ii) If your application includes no streams and wetlands. wetlands or streams or riparian habitat proposed enhancement measures under (viii) Installing perches and nest associated with streams; paragraph (d)(1)(i) of this section, you boxes. (B) The length of stream mined must explain, to the satisfaction of the (ix) Establishing conservation through; and regulatory authority, why easements or deed restrictions, with an (C) The amount of wetlands or implementation of enhancement emphasis on preserving riparian riparian habitat disturbed by the measures is not practicable. vegetation and forested corridors along operation. (2) Potential enhancement measures. perennial and intermittent streams. (ii) If you propose to mine through or Potential enhancement measures (x) Providing funding to cover long- discharge dredged or fill material into include, but are not limited to— term operation and maintenance costs wetlands or streams that are subject to (i) Using the backfilling and grading that watershed organizations incur in the jurisdiction of the Clean Water Act, process to create postmining surface treating long-term postmining 33 U.S.C. 1251 et seq., your application features and configurations, such as discharges from previous mining must identify the authorizations, functional wetlands, of high value to operations. certifications, and permits that you fish and wildlife. (xi) Reclaiming previously mined anticipate will be needed under the (ii) Designing and constructing areas located outside the area that you Clean Water Act and describe the steps permanent impoundments in a manner propose to disturb for coal extraction. that you have taken or will take to that will maximize their value to fish (xii) Implementing measures to procure those authorizations, and wildlife. reduce or eliminate existing sources of certifications, and permits. The (iii) Creating rock piles and other surface-water or groundwater pollution. regulatory authority will process your permanent landscape features of value (3) Additional enhancement application and may issue the permit to raptors and other wildlife for nesting requirements for operations with before you obtain all necessary and shelter, to the extent that those anticipated long-term adverse impacts. authorizations, certifications, and features are consistent with features that (i) The exception in paragraph (d)(1)(ii) permits under the Clean Water Act, 33 existed on the site before any mining, of this section does not apply if you

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00296 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93361

propose to conduct activities on the section and the resource information comments pertain to species listed as land surface that would result in the— submitted under § 779.20 of this chapter threatened or endangered under the (A) Temporary or permanent loss of to the appropriate regional or field office Endangered Species Act of 1973, 16 mature native forest or other native of the U.S. Fish and Wildlife Service or U.S.C. 1531 et seq., to designated or plant communities that cannot be the National Marine Fisheries Service, proposed critical habitat under that law, restored fully before final bond release as applicable, whenever the resource or to species proposed for listing as under §§ 800.40 through 800.43 of this information submitted under § 783.20 of threatened or endangered under that chapter or this chapter includes species listed as law. (B) Permanent loss of wetlands or a threatened or endangered under the segment of a perennial or intermittent Endangered Species Act of 1973, 16 § 784.17 [Reserved] stream. U.S.C. 1531 et seq., designated or § 784.18 [Reserved] (ii) Whenever the conditions proposed critical habitat under that law, described in paragraph (d)(3)(i) of this or species proposed for listing as § 784.19 What baseline information on section apply, the scope of the threatened or endangered under that hydrology, geology, and aquatic biology enhancement measures that you law. The regulatory authority must must I provide? propose under paragraph (d)(1)(i) of this provide the resource information and (a)(1) General requirements. Your section must be commensurate with the the protection and enhancement plan to permit application must include magnitude of the long-term adverse the appropriate Service(s) no later than information on the hydrology, geology, impacts of the proposed operation. the time that it provides written notice and aquatic biology of the proposed Whenever possible, the measures must of the permit application to permit area and the adjacent area in be permanent. governmental agencies under sufficient detail to assist in— (iii)(A) Enhancement measures § 773.6(a)(3)(ii) of this chapter. (i) Determining the probable proposed under paragraph (d)(3)(ii) of (ii)(A) When the resource information hydrologic consequences of the this section must be implemented obtained under § 783.20 of this chapter proposed operation upon the quality within the watershed in which the does not include species listed as and quantity of surface water and proposed operation is located, unless threatened or endangered under the opportunities for enhancement are not Endangered Species Act of 1973, 16 groundwater in the proposed permit and available within that watershed. In that U.S.C. 1531 et seq., designated or adjacent areas, as required under case, you must propose to implement proposed critical habitat under that law, § 784.20 of this part. enhancement measures in the closest or species proposed for listing as (ii) Determining the nature and extent adjacent watershed in which threatened or endangered under that of both the hydrologic reclamation plan enhancement opportunities exist, as law, the regulatory authority must required under § 784.22 of this part and approved by the regulatory authority. provide the resource information and the monitoring plans required under (B) Each regulatory program must the protection and enhancement plan to § 784.23 of this part. prescribe the size of the watershed for the appropriate regional or field office of (iii) Determining whether reclamation purposes of paragraph (d)(3)(iii)(A) of the U.S. Fish and Wildlife Service only as required by this chapter can be this section, using a generally-accepted if the Service requests an opportunity to accomplished. watershed classification system. review and comment on the resource (iv) Preparing the cumulative (4) Inclusion within permit area. If the information or the protection and hydrologic impact assessment under enhancement measures to be enhancement plan. § 784.21 of this part, including an implemented under paragraphs (d)(1) (B) The regulatory authority must evaluation of whether the proposed through (d)(3) of this section would provide the resource information and operation has been designed to prevent involve more than a de minimis the protection and enhancement plan to material damage to the hydrologic disturbance of the surface of land the Service under paragraph (e)(1)(ii)(A) balance outside the permit area. outside the area to be mined, you must of this section within 10 days of receipt include the land to be disturbed by of a request from the Service to review (v) Preparing the subsidence control those measures within the proposed the resource information and the plan under § 784.30 of this part. permit area. protection and enhancement plan. (2) Core baseline water-quality data (e) Fish and Wildlife Service or (2) The regulatory authority must requirements for surface water and National Marine Fisheries Service document the disposition of comments groundwater. You must provide the review. (1)(i) The regulatory authority that it receives from the applicable following water-quality information for must provide the protection and Service(s) in response to the distribution each groundwater and surface-water enhancement plan developed under this made under paragraph (e)(1)(i) of this sample collected for baseline data section to the extent that those purposes.

Parameter Surface water Groundwater

pH ...... Yes ...... Yes. Specific conductance corrected to 25°C (conductivity) ...... Yes ...... Yes. Total dissolved solids ...... Yes ...... Yes. Total suspended solids ...... Yes ...... No. Hot acidity ...... Yes ...... Yes. Total alkalinity ...... Yes ...... Yes. Major anions (dissolved), including, at a minimum, bicarbonate, sulfate, and chloride ...... Yes ...... Yes. Major anions (total), including, at a minimum, bicarbonate, sulfate, and chloride ...... Yes ...... No. Major cations (dissolved), including, at a minimum, calcium, magnesium, sodium, and potassium ...... Yes ...... Yes. Major cations (total), including, at a minimum, calcium, magnesium, sodium, and potassium ...... Yes ...... No. Cation-anion balance of dissolved major cations and dissolved major anions ...... Yes ...... Yes. Any cation or anion that constitutes a significant percentage of the total ionic charge balance, but that was Yes ...... Yes. not included in the analyses of major anions and major cations.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00297 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93362 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Parameter Surface water Groundwater

Iron (dissolved) ...... Yes ...... Yes. Iron (total) ...... Yes ...... No. Manganese (dissolved) ...... Yes ...... Yes. Manganese (total) ...... Yes ...... No. Selenium (dissolved) ...... Yes ...... Yes. Selenium (total) ...... Yes ...... No. Any other parameter identified in any applicable National Pollutant Discharge Elimination System permit, if Yes ...... No. known at the time of application for the SMCRA permit. Temperature ...... Yes ...... Yes.

(b) Groundwater information—(1) (C) Each potentially-impacted aquifer other parameters specified by the General requirements. Your permit below the lowest coal seam to be mined. regulatory authority. application must include information (6) Groundwater sampling (iii) You must provide the Palmer sufficient to document seasonal requirements. (i) You must establish Drought Severity Index for the proposed variations in the quality, quantity, and monitoring wells or equivalent permit and adjacent areas for the initial usage of groundwater, including all monitoring points at a sufficient number baseline data collection period under surface discharges, within the proposed of locations within the proposed permit paragraph (b)(6)(ii) of this section. The permit and adjacent areas. and adjacent areas to determine regulatory authority may extend the (2) Underground mine pools. If an groundwater quality, quantity, and minimum data collection period underground mine pool is present movement in each aquifer above or specified in paragraph (b)(6)(ii) of this within the proposed permit or adjacent immediately below the lowest coal seam section whenever data available from areas, you must prepare an assessment to be mined. At a minimum, for each the National Oceanic and Atmospheric of the characteristics of the mine pool, aquifer, you must locate monitoring Administration or similar databases including seasonal changes in quality, points— indicate that the region in which the quantity, and flow patterns, unless you (A) Upgradient and downgradient of proposed operation is located demonstrate, and the regulatory the proposed permit area; experienced severe drought or authority finds, that the mine pool (B) Upgradient and downgradient of abnormally high precipitation during would not be hydrologically connected the area encompassed by the angle of the initial baseline data collection to the proposed operation. The dewatering; and period. determination of the probable (C) Within the proposed permit area (c) Surface-water information.—(1) hydrologic consequences of mining and the area overlying the proposed General requirements. Your permit required under § 784.20 of this part also underground workings. application must include information must include a discussion of the effect (ii)(A) To document seasonal sufficient to document seasonal of the proposed mining operation on variations in groundwater quality and variation in surface-water quality, any underground mine pools within the quantity, you must collect samples and quantity, and usage within the proposed proposed permit and adjacent areas. take the measurements identified in permit and adjacent areas. (3) Monitoring wells. The regulatory paragraph (b)(5) of this section from (2) Surface-water quality descriptions. authority must require the installation each location identified in paragraph Surface-water quality descriptions must of properly-screened monitoring wells (b)(6)(i) of this section at approximately include baseline information on the to document seasonal variations in the equally-spaced monthly intervals for a parameters identified in paragraph (a)(2) quality, quantity, and usage of minimum of 12 consecutive months. of this section and any additional (B) If approved by the regulatory groundwater. parameters that the regulatory authority authority, you may modify the interval (4) Groundwater quality descriptions. determines to be of local importance. or the 12-consecutive-month Groundwater quality descriptions must requirement specified in paragraph (3) Surface-water quantity include baseline information on the (b)(6)(ii)(A) of this section if adverse descriptions. (i) At a minimum, surface- parameters identified in paragraph (a)(2) weather conditions make travel to a water quantity descriptions for of this section and any additional location specified in paragraph (b)(6)(i) perennial and intermittent streams parameters that the regulatory authority of this section hazardous or if the water within the proposed permit and determines to be of local importance. at that location is completely frozen. adjacent areas must include baseline (5) Groundwater quantity (C) In lieu of the frequency specified data documenting— descriptions. At a minimum, in paragraph (b)(6)(ii)(A) of this section, (A) Peak-flow magnitude and groundwater quantity descriptions must the regulatory authority may allow you frequency. include baseline data documenting to collect data quarterly for 2 years. The (B) Actual and anticipated usage. seasonal variations in— regulatory authority may initiate review (C) Seasonal flow variations. (i) The areal extent and saturated of the permit application after collection (D) Seepage-run sampling thickness of all potentially-impacted and analysis of the first four quarterly determinations, if you propose to aquifers; and groundwater samples, but it may not deploy a longwall panel beneath a (ii) Approximate rates of groundwater approve the application until after perennial or intermittent stream or discharge or usage and the elevation of receipt and analysis of the final four employ other types of full-extraction the water table or potentiometric head quarterly groundwater samples. mining methods beneath a perennial or in— (D) You must analyze the samples intermittent stream. You must take the (A) Each water-bearing coal seam to collected in paragraph (b)(6)(ii)(A) of seepage-run measurement during both be mined. this section for the applicable water low-flow and high-flow conditions. The (B) Each aquifer above each coal seam quality parameters identified in seepage-run measurement must extend to be mined. paragraph (a)(2) of this section and any to the full length of the stream that

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00298 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93363

would be affected by the mining the initial baseline data collection (C) The percentage of channel canopy operation. period. coverage. (ii) All flow measurements under (5) Precipitation measurements. (i) (D) A scientific calculation of the paragraph (c)(3)(i) of this section must You must provide records of species diversity of the vegetation. be made using generally-accepted precipitation amounts for the proposed (iv) You must identify all stream professional techniques approved by the permit area, using on-site, self-recording segments within the proposed permit regulatory authority. All techniques devices. and adjacent areas that appear on the must be repeatable and must produce (ii) Precipitation records must be list of impaired surface waters prepared consistent results on successive adequate to generate and calibrate a under section 303(d) of the Clean Water measurements. Visual observations are hydrologic model of the site. The Act, 33 U.S.C. 1313(d). You must not acceptable. regulatory authority will determine identify the parameters responsible for (4) Surface-water sampling whether you must create such a model. the impaired condition and the total requirements. (i) You must establish (iii) At the discretion of the regulatory maximum daily loads associated with monitoring points at a sufficient number authority, you may use precipitation those parameters, when applicable. of locations within the proposed permit data from a single self-recording device (v) For all perennial, intermittent, and and adjacent areas to determine the to provide baseline data for multiple ephemeral streams within the proposed quality and quantity of water in permits located close to each other. permit area and for all perennial and perennial and intermittent streams (6) Stream assessments. (i)(A) You intermittent streams within the adjacent within those areas. At a minimum, you must map and separately identify all area, you must identify the extent of must locate monitoring points— perennial, intermittent, and ephemeral wetlands adjoining the stream and (A) Upgradient and downgradient of streams within the proposed permit area describe the quality of those wetlands. the proposed permit area in each and all perennial and intermittent (vi) Except as provided in paragraph perennial and intermittent stream streams within the adjacent area. (g) of this section, you must provide an (B) The map must show the location within the proposed permit and assessment of the biological condition of the channel head of each stream adjacent areas; and of— identified in paragraph (c)(6)(i)(A) of (A) Each perennial stream within the (B) Upgradient and downgradient of this section whenever the applicable proposed permit area. the area encompassed by the angle of area includes a terminal reach of the (B) Each perennial stream within the dewatering in all potentially affected stream. adjacent area that could be affected by perennial and intermittent streams. (C) The map must show the location the proposed operation. (ii)(A) To document seasonal of transition points from ephemeral to (C) Each intermittent stream within variations in surface-water quality and intermittent and from intermittent to the proposed permit area, if a quantity, you must collect samples and perennial (and vice versa, when scientifically defensible protocol has take the measurements identified in applicable) for each stream identified in been established for assessment of paragraph (c)(3) of this section from paragraph (c)(6)(i)(A) of this section intermittent streams in the state or each location identified in paragraph whenever the applicable area includes region in which the stream is located. (c)(4)(i) of this section at approximately such a transition point. If the U.S. Army (D) Each intermittent stream within equally-spaced monthly intervals for a Corps of Engineers has determined the the adjacent area that could be affected minimum of 12 consecutive months. location of a transition point, your by the proposed operation, if a (B) If approved by the regulatory application must be consistent with that scientifically defensible protocol has authority, you may modify the interval determination. been established for assessment of or the 12-consecutive-month sampling (ii)(A) For all perennial and intermittent streams in the state or requirement specified in paragraph intermittent streams within the region in which the stream is located. (c)(4)(ii)(A) of this section if adverse proposed permit area, you must (vii) When determining the biological weather conditions make travel to a describe the baseline stream pattern, condition of a stream under paragraph location specified in paragraph (c)(4)(i) profile, and dimensions, with (c)(6)(vi) of this section, you must of this section hazardous or if the water measurements of channel slope, adhere to a bioassessment protocol at that location is completely frozen. sinuosity, water depth, alluvial approved by the state or tribal agency (C) You must analyze the samples groundwater depth, depth to bedrock, responsible for preparing the water collected under paragraph (c)(4)(ii)(A) of bankfull depth, bankfull width, width of quality inventory required under section this section for the applicable the flood-prone area, and dominant in- 305(b) of the Clean Water Act, 33 U.S.C. parameters identified in paragraph (a)(2) stream substrate at a scale and 1315(b), or to other scientifically of this section and any other parameters frequency adequate to characterize the defensible bioassessment protocols specified by the regulatory authority. entire length of the stream within the accepted by agencies responsible for (iii) You must provide the Palmer proposed permit area. implementing the Clean Water Act, 33 Drought Severity Index for the proposed (B) You must describe the general U.S.C. 1251 et seq., modified as permit and adjacent areas for the initial stream-channel configuration of necessary to meet the following baseline data collection period under ephemeral streams within the proposed requirements. The protocol must— paragraph (c)(4)(ii) of this section. The permit area. (A) Be based upon the measurement regulatory authority may extend the (iii) For all perennial, intermittent, of an appropriate array of aquatic minimum data collection period and ephemeral streams within the organisms, including, at a minimum, specified in paragraphs (c)(4)(ii) and (iii) proposed permit area, you must benthic macroinvertebrates, identified of this section whenever data available describe the vegetation growing along to the genus level where possible, from the National Oceanic and the banks of each stream, including— otherwise to the lowest practical Atmospheric Administration or similar (A) Identification of any hydrophytic taxonomic level. databases indicate that the region in vegetation located within or adjacent to (B) Result in the calculation of index which the proposed operation is located the stream channel. values for both stream habitat and experienced severe drought or (B) The extent to which streamside aquatic biota based on the reference abnormally high precipitation during vegetation consists of trees and shrubs. condition.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00299 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93364 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(C) Provide index values that of the geology of the proposed permit the coal seam to be mined will not be correspond to the capability of the and adjacent areas down to and removed, you must collect and analyze stream to support its designated aquatic including the deeper of either the samples from test borings or drill cores. life uses under section 303(c) of the stratum immediately below the lowest Your application must include the Clean Water Act, 33 U.S.C. 1313(c). coal seam to be mined or any aquifer following data and analyses: (D) Include a quantitative assessment below the lowest coal seam to be mined (i) Logs showing the lithologic of in-stream and riparian habitat that may be adversely impacted by characteristics, including physical condition. mining. The description must include— properties and thickness, of each (E) Describe the technical elements of (i) The areal and structural geology of stratum that may be impacted, and the the bioassessment protocol, including the proposed permit and adjacent areas. location of any groundwater but not limited to sampling methods, (ii) Other parameters that influence encountered. sampling gear, index period, sample the required reclamation. (ii) Chemical analyses of those strata processing and analysis, and quality (iii) An explanation of how the areal immediately above and below the coal assessment/quality control procedures. and structural geology may affect the seam to be mined to identify whether (viii) Except as provided in paragraph occurrence, availability, movement, and to what extent each stratum (g) of this section, you must describe the quantity, and quality of potentially contains acid-forming materials, toxic- biology of each intermittent stream impacted surface water and forming materials, or alkalinity- within the proposed permit area, and groundwater. producing materials. each intermittent stream within the (iv) The composition of the bed of (iii) Chemical analyses of the coal adjacent area that could be affected by each perennial and intermittent stream seam for acid-forming or toxic-forming the proposed operation, whenever an within the proposed permit and materials, including, but not limited to, assessment of the biological condition of adjacent areas, together with a total sulfur and pyritic sulfur. those streams is not required under prediction of how that bed would (iv) For standard room-and-pillar paragraph (c)(6)(vi) of this section. respond to subsidence of strata mining operations, the thickness and When obtaining the data needed to overlying the proposed underground engineering properties of clays or soft prepare this description, you must— mine workings and how subsidence rock such as clay shale, if any, in the (A) Sample each stream using a would impact streamflow. strata immediately above and below scientifically defensible sampling (2) The description required by each coal seam to be mined. method or protocol established or paragraph (f)(1) of this section must be (5) You must provide any additional endorsed by an agency responsible for based on all of the following— geologic information and analyses that implementing the Clean Water Act, 33 (i) The cross-sections, maps, and the regulatory authority determines to U.S.C. 1251 et seq.; plans required by § 783.24 of this be necessary to protect the hydrologic (B) Identify benthic chapter. balance, to minimize or prevent macroinvertebrates to the genus level (ii) The information obtained under subsidence, or to meet the performance where possible, otherwise to the lowest paragraphs (e)(3) through (5) of this standards of this chapter. practical taxonomic level; and section. (6) You may request the regulatory (C) Describe the technical elements of (iii) Geologic literature and practices. authority to waive the requirements of the sampling protocol, including but not (3) For any portion of the proposed paragraphs (e)(3) and (4) of this section, limited to sampling methods, sampling permit area in which the strata down to in whole or in part. The regulatory gear, index period, sample processing the coal seam to be mined will be authority may grant the waiver request and analysis, and quality assessment/ removed or are already exposed, you only after finding in writing that the quality control procedures. must collect and analyze samples from collection and analysis of that data is (d) Additional information for test borings; drill cores; or fresh, unnecessary because other discharges from previous coal mining unweathered, uncontaminated samples representative information is available operations. If the proposed permit and from rock outcrops, down to and to the regulatory authority in a adjacent areas contain any point-source including the deeper of either the satisfactory form. discharges from previous surface or stratum immediately below the lowest (f) Cumulative impact area underground coal mining operations, coal seam to be mined or any aquifer information. (1) You must obtain the you must sample those discharges below the lowest seam to be mined that hydrologic, geologic, and biological during low-flow conditions of the may be adversely impacted by mining. information necessary to assess the receiving stream on a one-time basis. Your application must include the impacts of both the proposed operation You must analyze the samples for the following data and analyses: and all anticipated mining on surface- surface-water parameters identified in (i) Logs showing the lithologic water and groundwater systems in the paragraph (a)(2) of this section and for characteristics, including physical cumulative impact area, as required by both total and dissolved fractions of the properties and thickness, of each § 784.21 of this part, from the following parameters— stratum, and the location of any appropriate federal or state agencies, to (1) Aluminum. groundwater encountered. the extent that the information is (2) Arsenic. (ii) Chemical analyses identifying available from those agencies. (3) Barium. those strata that may contain acid- (2) If the information identified as (4) Beryllium. forming materials, toxic-forming necessary in paragraph (f)(1) of this (5) Cadmium. materials, or alkalinity-producing section is not available from other (6) Copper. federal or state agencies, you may gather (7) Lead. materials and the extent to which each (8) Mercury. stratum contains those materials. and submit this information to the (9) Nickel. (iii) Chemical analyses of all coal regulatory authority as part of the (10) Silver. seams for acid-forming or toxic-forming permit application. As an alternative to (11) Thallium. materials, including, but not limited to, collecting new information, you may (12) Zinc. total sulfur and pyritic sulfur. submit data and analyses from nearby (e) Geologic information. (1) Your (4) For lands within the permit and mining operations if the site of those application must include a description adjacent areas where the strata above operations is representative of the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00300 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93365

proposed operations in terms of § 784.19(g) of this part, upon the biology (vii) The biology of perennial and topography, hydrology, geology, of perennial and intermittent streams intermittent streams within the geochemistry, and method of mining. under seasonal flow conditions for the proposed permit and adjacent areas, (3) The regulatory authority may not proposed permit and adjacent areas. except as provided in § 784.19(g) of this approve the permit application until the You must base the PHC determination part. information identified as necessary in on an analysis of the baseline (viii) Other characteristics as required paragraph (f)(1) of this section has been hydrologic, geologic, biological, and by the regulatory authority. made available to the regulatory other information required under (6) What impact subsidence resulting authority and the regulatory authority § 784.19 of this part. It must include from the proposed underground mining has used that information to prepare the findings on: activities may have on perennial and cumulative hydrologic impact (1) Whether the operation may cause intermittent streams. assessment required by § 784.21 of this material damage to the hydrologic (7) Whether the underground mine part. balance outside the permit area. workings will flood after mine closure (g) Exception for operations that avoid (2) Whether acid-forming or toxic- and, if so, a statement and explanation streams. Upon your request, the forming materials are present that could of— (i) The highest potentiometric surface regulatory authority may waive the result in the contamination of surface biological information requirements of of the mine pool after closure. water or groundwater, including, but (ii) Whether, where, and when the paragraphs (c)(6)(vi) through (viii) of not limited to, a discharge of toxic mine mine pool is likely to result in a surface this section if you demonstrate, and if drainage after the completion of land discharge, either via gravity or as a the regulatory authority finds in writing, reclamation. result of hydrostatic pressure. that your operation will not— (3) Whether underground mining (iii) The predicted quality of any (1) Mine through or bury a perennial activities conducted after October 24, discharge from the mine pool. or intermittent stream; 1992, may result in contamination, (iv) The predicted impact of the mine (2) Create a point-source discharge to diminution or interruption of a well or pool on the hydrologic balance of the any perennial, intermittent, or spring within the permit or adjacent proposed permit and adjacent areas after ephemeral stream; or areas that was in existence when the the mine pool reaches equilibrium. (3) Modify the base flow of any permit application was submitted and (v) The potential for a mine pool perennial or intermittent stream. that is used for domestic, drinking, or blowout or other hydrologic (h) Coordination with Clean Water residential purposes. disturbances. Act agencies. The regulatory authority (4) Whether the proposed operation (vi) The potential for the mine pool to will make best efforts to— will intercept aquifers in overburden destabilize surface features. (1) Consult in a timely manner with strata or aquifers in underground mine (vii) The potential impact of roof the agencies responsible for issuing voids (mine pools) or create aquifers in collapses on mine pool behavior and permits, authorizations, and spoil placed in the backfilled area and, equilibrium. certifications under the Clean Water if so, what impacts the operation would (b) Supplemental information. You Act; have on those aquifers, both during must provide any supplemental (2) Minimize differences in baseline mining and after reclamation, and the information that the regulatory authority data collection points and parameters; effect of those impacts on the hydrologic determines is needed to fully evaluate and balance. the probable hydrologic consequences (3) Share data to the extent practicable (5) What impact the proposed of the proposed operation and to plan and consistent with each agency’s operation will have on: remedial and reclamation activities. mission, statutory requirements, and (i) Sediment yield and transport from This information may include, but is not implementing regulations. the area to be disturbed. limited to, additional drilling, (i) Corroboration of baseline data. The (ii) The quality of groundwater and geochemical analyses of overburden regulatory authority must either surface water within the proposed materials, aquifer tests, hydrogeologic corroborate a sample of the baseline permit and adjacent areas. At a analyses of the water-bearing strata, information in your application or minimum, unless otherwise specified, analyses of flood flows, or analyses of arrange for a third party to conduct the the finding must address the impacts of other characteristics of water quality or corroboration at your expense. the operation on both groundwater and quantity, including the stability of Corroboration may include, but is not surface water in terms of the parameters underground mine pools that might be limited to, simultaneous sample listed in § 784.19(a)(2) of this part and affected by the proposed operation. collection and analysis, visual any additional water quality parameters (c) Subsequent reviews of PHC observation of sample collection, use of that the regulatory authority determines determinations. (1) The regulatory field measurements, or comparison of to be of local importance. authority must review each application application data with application or (iii) Flooding and precipitation runoff for a permit revision to determine monitoring data from adjacent patterns and characteristics. whether a new or updated PHC operations. (iv) Peak-flow magnitude and determination is needed. (2) The regulatory authority must § 784.20 How must I prepare the frequency for perennial and intermittent determination of the probable hydrologic streams within the proposed permit and require that you prepare a new or consequences of my proposed operation adjacent areas. updated PHC determination if the (PHC determination)? (v) Seasonal variations in streamflow. review under paragraph (c)(1) of this (a) Content of PHC determination. (vi) The availability of groundwater section finds that one is needed. Your permit application must contain a and surface water, including the impact § 784.21 What requirements apply to determination of the probable of any diversion of surface or subsurface preparation, use, and review of the hydrologic consequences of the flows to underground mine workings or cumulative hydrologic impact assessment proposed operation upon the quality any changes in watershed size as a (CHIA)? and quantity of surface water and result of the postmining surface (a) General requirements. (1) The groundwater and, except as provided in configuration. regulatory authority must prepare a

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00301 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93366 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

written assessment of the probable no designated uses, each premining use (G) Other pertinent information and cumulative hydrologic impacts of the of surface water. considerations to identify the proposed operation and all anticipated (B) Premining use of groundwater. parameters for which thresholds are mining upon surface-water and (iii) A description and/or maps of the necessary. groundwater systems in the cumulative local and regional groundwater systems. (ii) In consultation with the Clean impact area. This assessment, which is (iv) To the extent required by Water Act authority, adopt numeric known as the CHIA, must be sufficient § 784.19(c)(6)(vi) of this part, the thresholds as appropriate, taking into to determine, for purposes of permit biological condition of perennial and consideration relevant contaminants for application approval, whether the intermittent streams and, to the extent which there are water quality criteria proposed operation has been designed required by § 784.19(c)(6)(viii) of this under the Clean Water Act, 33 U.S.C. to prevent material damage to the part, the biology of intermittent streams 1251 et seq. The regulatory authority hydrologic balance outside the permit not included within § 784.19(c)(6)(vi) of may not adopt a narrative threshold for area. this part. parameters for which numeric water (2) In preparing the CHIA, the (4) A discussion of any potential quality criteria exist under the Clean regulatory authority must consider concerns identified in the PHC Water Act, 33 U.S.C. 1251 et seq. relevant information on file for other determination required under § 784.20 (iii) Identify the portion of the mining operations located within the of this part and how those concerns cumulative impact area to which each cumulative impact area or in similar have been or will be resolved. threshold applies. Parameters and watersheds. (5) A qualitative and quantitative thresholds may vary from subarea to (3) As provided in § 784.19(f) of this assessment of how all anticipated subarea within the cumulative impact part, the regulatory authority may not surface and underground mining may area when appropriate, based upon differences in watershed characteristics approve a permit application until the impact the quality of surface water and and variations in the geology, hydrologic, geologic, and biological groundwater in the cumulative impact hydrology, and biology of the information needed to prepare the CHIA area, expressed in terms of each baseline has been made available to the cumulative impact area. parameter identified under § 784.19 of (iv) Identify the points within the regulatory authority and the regulatory this part. cumulative impact area at which the authority has used that information to (6) Site-specific numeric or narrative permittee will monitor the impacts of prepare the CHIA. thresholds for material damage to the the operation on surface water and (b) Contents. The CHIA must hydrologic balance outside the permit groundwater outside the permit area include— area. These thresholds must also be and explain how those locations will (1) A map of the cumulative impact included as a condition of the permit. facilitate timely detection of the impacts area. At a minimum, the map must When identifying thresholds to define of the operation on surface water and identify and display— when material damage to the hydrologic groundwater outside the permit area in (i) Any difference in the boundaries of balance outside the permit area would a scientifically defensible manner. The the cumulative impact area for occur in connection with a particular permit applicant must incorporate those groundwater and surface water. permit, the regulatory authority will— monitoring locations into the surface (ii) The locations of all previous, (i) In consultation with the Clean water and groundwater monitoring current, and anticipated surface and Water Act authority, as appropriate, plans submitted under § 784.23 of this underground mining. undertake a comprehensive evaluation part. (iii) The locations of all baseline data that considers the following factors— (7) Evaluation thresholds for critical collection sites within the proposed (A) The baseline data collected under water quality and quantity parameters, permit and adjacent areas under § 784.19 of this part; as determined by the regulatory § 784.19 of this part. (B) The PHC determination prepared authority. After permit issuance, if (iv) Designated uses of surface water under § 784.20 of this part; monitoring results at the locations under section 303(c) of the Clean Water (C) Applicable water quality designated under paragraph (b)(6)(iv) of Act, 33 U.S.C. 1313(c). standards adopted under the authority this section document exceedance of an (2) A description of all previous, of section 303(c) of the Clean Water Act, evaluation threshold, the regulatory existing, and anticipated surface and 33 U.S.C. 1313(c); authority, in consultation with the underground coal mining within the (D) Applicable state or tribal Clean Water Act authority, as cumulative impact area, including, at a standards for surface water or appropriate, must determine the cause minimum, the coal seam or seams groundwater; of the exceedance. If the mining mined or to be mined, the extent of (E) Ambient water quality criteria operation is responsible for the mining, and the reclamation status of developed under section 304(a) of the exceedance and if the adverse trend is each operation. Clean Water Act, 33 U.S.C. 1314(a); likely to continue in the absence of (3) A quantitative and qualitative (F) The biological requirements of any corrective action, the regulatory description of baseline hydrologic species listed as threatened or authority must issue a permit revision information for the proposed permit and endangered under the Endangered order under § 774.10 of this chapter. adjacent areas under § 784.19 of this Species Act of 1973, 16 U.S.C. 1531 et The order must require that the part, including— seq., when those species; designated permittee reassess the adequacy of the (i) The quality and quantity of surface critical habitat for those species; habitat PHC determination prepared under water and groundwater and seasonal occupied by those species, such as § 784.20 of this part and the hydrologic variations therein. nesting, resting, feeding, and breeding reclamation plan approved under (ii) The quality and quantity of water areas; and any areas in which those § 784.20 of this part and develop needed to support, maintain, or attain species are present only for a short time, measures to prevent material damage to each— but that are important to their the hydrologic balance outside the (A) Designated use of surface water persistence, such as migration and permit area. under section 303(c) of the Clean Water dispersal corridors, are present within (8) An assessment of how all Act, 33 U.S.C. or 1313(c), or, if there are the cumulative impact area; and anticipated surface and underground

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00302 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93367

mining may affect groundwater (iv) The proposed operation has been past use of the proposed remedial movement and availability within the designed to protect the quantity and measures in the vicinity of the proposed cumulative impact area. quality of water in any aquifer that mining operation and under similar (9) After consultation with the Clean significantly ensures the prevailing conditions elsewhere. Water Act authority, as appropriate, an hydrologic balance. (iii) Meet applicable water quality evaluation, with references to (c) Subsequent reviews. (1) The laws and regulations. supporting data and analyses, of regulatory authority must review each (iv) Protect existing water users in whether the CHIA will support a finding application for a significant permit accordance with paragraph (b) of this that the operation has been designed to revision to determine whether a new or section and § 817.40 of this chapter. prevent material damage to the updated CHIA is needed. The regulatory (v) Avoid acid or toxic discharges to hydrologic balance outside the permit authority must document the review, surface water and avoid or, if avoidance area. To support this finding, the CHIA including the analysis and conclusions, is not possible, minimize degradation of must include the following together with the rationale for the groundwater. determinations, with appropriate conclusions, in writing. (vi) Prevent, to the extent possible documentation, or an explanation of (2) The regulatory authority must using the best technology currently why the determination is not necessary reevaluate the CHIA at intervals not to available, additional contributions of or appropriate: exceed 3 years to determine whether the suspended solids to streamflow or to (i) Except as provided in §§ 784.22(b) CHIA remains accurate and whether the runoff outside the proposed permit area. and 817.40 of this chapter, the proposed material damage and evaluation (vii) Provide water-treatment facilities operation will not— thresholds in the CHIA and the permit when needed. (A) Cause or contribute to a violation are adequate to ensure that material (viii) Control surface-water runoff in of applicable water quality standards damage to the hydrologic balance accordance with § 784.29 of this part. adopted under the authority of section outside the permit area will not occur. (3) Address the impacts of any 303(c) of the Clean Water Act, 33 U.S.C. This evaluation must include a review transfers of water among active and 1313(c), or other applicable state or of all biological and water monitoring abandoned mines within the proposed tribal water quality standards; data from both this operation and all permit and adjacent areas. (4) Describe the steps that you will (B) Cause or contribute to a violation other coal mining operations within the take during mining and reclamation of applicable state or tribal groundwater cumulative impact area. quality standards; (3) The regulatory authority must through final bond release under (C) Preclude attainment of a prepare a new or updated CHIA if the §§ 800.40 through 800.43 of this chapter premining use of a surface water located review conducted under paragraph to protect and enhance aquatic life and outside the permit area when no water (c)(1) or (2) of this section finds that one related environmental values to the quality standards have been established is needed. extent possible using the best for that surface water; or technology currently available. (D) Preclude attainment of any § 784.22 What information must I include (b) Alternative water source premining use of groundwater located in the hydrologic reclamation plan and what information. (1)(i) If the PHC outside the permit area. information must I provide on alternative determination prepared under § 784.20 (ii) The proposed operation has been water sources? of this part indicates that underground designed to ensure that neither the (a) Hydrologic reclamation plan. Your mining activities conducted after mining operation nor the final permit application must include a plan, October 24, 1992, may result in configuration of the reclaimed area will with maps and descriptions, that contamination, diminution, or result in changes in the size or demonstrates how the proposed interruption of a well or spring that is frequency of peak flows from operation will comply with the in existence at the time the permit precipitation events or thaws that would applicable provisions of this subchapter application is submitted and that is cause an increase in flooding outside and subchapter K of this chapter that used for domestic, drinking, or the permit area, when compared with relate to protection of the hydrologic residential purposes, you must premining conditions. balance. The plan must— demonstrate that alternative water (iii) Perennial and intermittent (1) Be specific to local hydrologic sources are both available and feasible streams located outside the permit area conditions. to develop. The alternative water will continue to have sufficient base (2) Include preventive or remedial sources must be of suitable quality and flow at all times during and after mining measures for any potential adverse sufficient in quantity to support all uses and reclamation to maintain their hydrologic consequences identified in protected under § 817.40 of this chapter. premining flow regime; i.e., perennial the PHC determination prepared under (ii) You must develop a water supply streams located outside the permit area § 784.20 of this part. These measures replacement plan for all uses protected will retain perennial flows and must describe the steps that you will under § 817.40 of this chapter that intermittent streams located outside the take during mining and reclamation includes construction details, costs, and permit area will retain intermittent through final bond release under an implementation schedule. flows both during and after mining and §§ 800.40 through 800.43 of this chapter (2) If you cannot identify an reclamation. Conversion of an to— alternative water source that is both intermittent stream to a perennial (i) Minimize disturbances to the suitable and available, you must modify stream or conversion of an ephemeral hydrologic balance within the proposed your application to prevent the stream to an intermittent or perennial permit and adjacent areas. . proposed operation from contaminating, stream outside the permit area may be (ii) Prevent material damage to the interrupting, or diminishing any water acceptable, provided the conversion hydrologic balance outside the proposed supply protected under § 817.40 of this would be consistent with paragraph permit area. The plan must include chapter. (b)(9)(i) of this section and would not remedial measures for any predicted (3)(i) When a suitable alternative result in a violation of the Endangered diminution of streamflow or loss of water source is available, your operation Species Act of 1973, 16 U.S.C. 1531 et wetlands as a result of subsidence. The plan must require that the alternative seq. application must discuss the results of water supply be developed and installed

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00303 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93368 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

on a permanent basis before your (B) Monitoring wells in any existing (D) Analysis of each sample for all operation advances to the point at underground mine workings that would parameters for which there is an which it could adversely affect an have a direct hydrological connection to evaluation threshold under existing water supply protected under the proposed operation. § 784.21(b)(7) of this part. § 817.40 of this chapter. This (C) At least one monitoring well to be (E) Analysis of each sample for other requirement applies only to those water located in the mine pool after mine parameters of concern, as determined by supplies for which adverse impacts are closure. the regulatory authority, based upon the probable. (D) Monitoring wells or equivalent information and analyses required (ii) Paragraph (b)(3)(i) of this section monitoring points at the locations under §§ 784.19 through 784.21 of this will not apply immediately if you specified in the CHIA under part. demonstrate, and the regulatory § 784.21(b)(6)(vi) of this part. (3) Regulatory authority review and authority finds, that the proposed (iv) Describe how the monitoring data action. (i) Upon completing the operation also would adversely affect will be used to— technical review of the application, the the replacement supply. In that case, (A) Determine the impacts of the regulatory authority may require that your plan must require provision of a operation upon the hydrologic balance. you revise the plan to increase the temporary replacement water supply (B) Determine the impacts of the frequency of monitoring, to require until it is safe to install the permanent operation upon the biology of surface monitoring of additional parameters, or replacement water supply required waters within the permit and adjacent to require monitoring at additional under paragraph (b)(3)(i) of this section. areas. locations, if the additional requirements (C) Prevent material damage to the would contribute to protection of the (4) Your application must describe hydrologic balance outside the permit hydrologic balance. how you will provide both temporary area. (ii) After completing preparation of and permanent replacements for any (v) Describe how the water samples the cumulative hydrologic impact unexpected losses of water supplies will be collected, preserved, stored, assessment required under § 784.21 of protected under § 817.40 of this chapter. transmitted for analysis, and analyzed this part, the regulatory authority must § 784.23 What information must I include in accordance with the sampling, reconsider the adequacy of the in plans for the monitoring of groundwater, analysis, and reporting requirements of monitoring plan and require that you surface water, and the biological condition paragraphs (a) and (b) of § 777.13 of this make any necessary changes. of streams during and after mining? chapter. (4) Exception. If you can demonstrate, (a) Groundwater monitoring plan.— (2) Parameters.—(i) General criteria on the basis of the PHC determination (1) General requirements. Your permit for selection of parameters. The plan prepared under § 784.20 of this part or application must include a groundwater must provide for the monitoring of other available information that a monitoring plan adequate to evaluate parameters for which an evaluation particular aquifer in the proposed the impacts of the mining operation on threshold under § 784.21(b)(7) of this permit and adjacent areas has no groundwater in the proposed permit and part exists. It also must provide for the existing or foreseeable use for adjacent areas and to determine in a monitoring of other parameters that agricultural or other human purposes or timely manner whether corrective could be affected by the proposed for fish and wildlife purposes and does action is needed to prevent the operation to the extent needed to assess not serve as an aquifer that significantly operation from causing material damage the— ensures the hydrologic balance within to the hydrologic balance outside the (A) Accuracy of the findings and the cumulative impact area, the permit area. The plan must— predictions in the PHC determination regulatory authority may waive (i) Identify the locations to be prepared under § 784.20 of this part. monitoring of that aquifer. (B) Suitability of the quality and (b) Surface-water monitoring plan.— monitored, the measurements to be quantity of groundwater for protected (1) General requirements. Your permit taken at each location, and the premining uses of groundwater within application must include a surface- parameters to be analyzed in samples the permit and adjacent areas, subject to water monitoring plan adequate to collected at each location. § 817.40 of this chapter. evaluate the impacts of the mining (ii) Specify the sampling frequency. (C) Suitability of the quality and operation on surface water in the (iii) Establish a sufficient number of quantity of groundwater to support the proposed permit and adjacent areas and appropriate monitoring locations to premining land uses within the permit to determine in a timely manner evaluate the accuracy of the findings in and adjacent areas. whether corrective action is needed to the PHC determination, to identify (ii) Minimum sampling and analysis prevent the operation from causing adverse trends, and to determine, in a requirements. At a minimum, the plan material damage to the hydrologic timely fashion, whether corrective must require collection and analysis of balance outside the permit area. The action is needed to prevent material a sample from each monitoring point plan must— damage to the hydrologic balance every 3 months, with data submitted to (i) Identify the locations to be outside the permit area. At a minimum, the regulatory authority at the same monitored, the measurements to be the plan must include— frequency. The data must include— taken at each location, and the (A) For each aquifer above or (A) Analysis of each sample for the parameters to be analyzed in samples immediately below the coal seam to be groundwater parameters listed in collected at each location. mined, monitoring sites located § 784.19(a)(2) of this part. (ii)(A) Require on-site measurement of upgradient and downgradient of the (B) Water levels in each well used for precipitation amounts at specified proposed operation at a distance monitoring purposes and discharge rates locations within the permit area, using sufficiently close to the underground from each spring or underground self-recording devices. mine workings to detect changes as the opening used for monitoring purposes. (B) Measurement of precipitation mining operation progresses. The plan (C) Analysis of each sample for amounts must continue through Phase II must include a schedule and map for parameters detected by the baseline bond release under § 800.42(c) of this moving these sites as the underground sampling and analysis conducted under chapter or for any longer period workings advance. § 784.19(d) of this part. specified by the regulatory authority.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00304 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93369

(C) At the discretion of the regulatory determination prepared under § 784.20 incorporate any site-specific monitoring authority, you may use precipitation of this part. requirements imposed by the National data from a single self-recording device (C) Needed to assess the adequacy of Pollutant Discharge Elimination System to provide monitoring data for multiple the surface-water runoff control plan permitting authority or the agency permits that are contiguous or nearly prepared under § 784.29 of this part. responsible for administration of section contiguous if a single station would (D) Needed to assess the suitability of 404 of the Clean Water Act, 33 U.S.C. provide adequate and accurate coverage the quality and quantity of surface water 1344, subsequent to submission of the of precipitation events occurring in that in the permit and adjacent areas for all SMCRA permit application. area. designated uses under section 303(c) of (3) Regulatory authority review and (iii) Specify the sampling frequency. the Clean Water Act, 33 U.S.C. 1313(c), action. (i) Upon completing the (iv) Establish a sufficient number of or, if there are no designated uses, all technical review of your application, the appropriate monitoring locations to premining uses of surface water in the regulatory authority may require that evaluate the accuracy of the findings in permit and adjacent areas, subject to you revise the plan to increase the the PHC determination, to identify § 817.40 of this chapter; and frequency of monitoring, to require adverse trends, and to determine, in a (E) Needed to assess the suitability of monitoring of additional parameters, or timely fashion, whether corrective the quality and quantity of surface water to require monitoring at additional action is needed to prevent material in the permit and adjacent areas to locations, if the additional requirements damage to the hydrologic balance support the premining land uses. would contribute to protection of the outside the permit area. At a minimum, (F) For which there is an evaluation hydrologic balance. the plan must include— threshold under § 784.21(b)(7) of this (ii) After completing preparation of (A) Monitoring of point-source part. the cumulative hydrologic impact discharges from the proposed operation. (ii) Minimum sampling and analysis assessment required under § 784.21 of (B) Monitoring locations upgradient requirements for monitoring locations this part, the regulatory authority must and downgradient of the proposed other than point-source discharges. For reconsider the adequacy of the permit area in each perennial and all monitoring locations other than monitoring plan and require that you intermittent stream within the proposed point-source discharges, the plan must make any necessary changes. permit and adjacent areas, with the require collection and analysis of a (c) Biological condition monitoring exception that no upgradient monitoring sample from each monitoring point at plan.—(1) General requirements. Except location is needed for a stream when the least every 3 months, with data as provided in paragraph (d) of this operation will mine through the submitted to the regulatory authority at section, your permit application must headwaters of that stream. the same frequency. The data must include a plan for monitoring the (C) Monitoring locations upgradient include— biological condition of each perennial and downgradient of the proposed (A) Analysis of each sample for the and intermittent stream within the operation at a distance sufficiently close surface-water parameters listed in proposed permit and adjacent areas for to the underground mine workings to § 784.19(a)(2) of this part. which baseline biological condition data detect changes as the mining operation (B) Flow rates at each sampling was collected under § 784.19(c)(6)(vi) of progresses. The plan must include a location. The plan must require use of this part. The plan must be adequate to schedule and map for moving these sites generally-accepted professional flow evaluate the impacts of the mining as the underground workings advance. measurement techniques. Visual operation on the biological condition of (D) Monitoring locations specified in observations are not acceptable. those streams and to determine in a the CHIA under § 784.21(b)(6)(vi) of this (C) Analysis of each sample for timely manner whether corrective part. parameters detected by the baseline action is needed to prevent the (v) Describe how the monitoring data sampling and analysis conducted under operation from causing material damage will be used to— § 784.19(d) of this part. to the hydrologic balance outside the (A) Determine the impacts of the (D) Analysis of each sample for all permit area. operation upon the hydrologic balance. parameters for which there is an (2) Monitoring techniques. The plan (B) Determine the impacts of the evaluation threshold under must— operation upon the biology of surface § 784.21(b)(7) of this part. (i) Require use of a bioassessment waters within the permit and adjacent (E) Analysis of each sample for other protocol that meets the requirements of areas. parameters of concern, as determined by § 784.19(c)(6)(vii) of this part. (C) Prevent material damage to the the regulatory authority, based upon the (ii) Identify monitoring locations in hydrologic balance outside the permit information and analyses required each perennial and intermittent stream area. under §§ 784.19 through 784.21 of this within the proposed permit and (vi) Describe how the water samples part. adjacent areas for which baseline will be collected, preserved, stored, (iii) Minimum requirements for point- biological condition data was collected transmitted for analysis, and analyzed source discharges. For point-source under § 784.19(c)(6)(vi) of this part. in accordance with the sampling, discharges, the plan must— (iii) Establish a sampling frequency analysis, and reporting requirements of (A) Provide for monitoring in that must be no less than annual, but paragraphs (a) and (b) of § 777.13 of this accordance with 40 CFR parts 122, 123, not so frequent as to unnecessarily chapter. and 434 and as required by the National deplete the populations of the species (2) Parameters.—(i) General criteria Pollutant Discharge Elimination System being monitored. for selection of parameters. The plan permitting authority. (iv) Require submission of monitoring must provide for the monitoring of (B) Require measurement of flow data to the regulatory authority on an parameters— rates, using generally-accepted annual basis. (A) For which there are applicable professional flow measurement (3) Regulatory authority review and effluent limitation guidelines under 40 techniques. Visual observations are not action. (i) Upon completing review of CFR part 434. acceptable. your application, the regulatory (B) Needed to assess the accuracy of (iv) Requirements related to the Clean authority may require that you revise the findings and predictions in the PHC Water Act. You must revise the plan to the plan to adjust monitoring locations,

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00305 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93370 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

the frequency of monitoring, and the supporting before any mining, as (E) Result in changes in the size or species to be monitored. identified under § 783.22 of this frequency of peak flows from the (ii) After completing preparation of chapter, regardless of the proposed reclaimed area that would cause an the cumulative hydrologic impact postmining land use. increase in flooding when compared assessment required under § 784.21 of (3) You must explain how the with the conditions that would exist if this part, the regulatory authority must proposed postmining land use is the land were restored to a condition reconsider the adequacy of the consistent with existing state and local capable of supporting the uses that it monitoring plan and require that you land use policies and plans. was capable of supporting before any make any necessary changes. (4) You must include a copy of the mining. (d) Exception for operations that comments concerning the proposed (F) Cause the total volume of flow avoid streams. (1) Upon your request, postmining use that you receive from from the reclaimed area, during every the regulatory authority may waive the the— season of the year, to vary in a way that biological condition monitoring plan (i) Legal or equitable owner of record would preclude attainment of any requirements of paragraph (c) of this of the surface of the proposed permit designated use of a surface water section if you demonstrate, and if the area; and located outside the permit area under regulatory authority finds in writing, (ii) State and local government section 303(c) of the Clean Water Act, that your operation will not— agencies that would have to initiate, 33 U.S.C. 1313(c), or, if there are no (i) Mine through or bury any implement, approve, or authorize the designated uses, any premining use of a perennial or intermittent stream; proposed use of the land following surface water located outside the permit (ii) Create a point-source discharge to reclamation. area. any perennial, intermittent, or (5) You must explain how the (G) Cause a change in the temperature ephemeral stream; or proposed postmining land use will be or chemical composition of the water (iii) Modify the base flow of any achieved and identify any support that would preclude attainment of any perennial or intermittent stream or activities or facilities needed to achieve designated use of a surface water under cause the stream to pool, either as a that use. section 303(c) of the Clean Water Act, result of subsidence or as a result of any (6) If you propose to restore the 33 U.S.C. 1313(c), or, if there are no other mining-related activity. proposed permit area or a portion designated uses, any premining use of a (2) If you meet all the criteria of thereof to a condition capable of surface water located outside the permit paragraph (d)(1) of this section with the supporting a higher or better use or uses area. exception of paragraph (d)(1)(ii) of this rather than to a condition capable of (2) Regulatory authority decision section, you may request, and the supporting the uses that the land could requirements. The regulatory authority regulatory authority may approve, support before any mining, you must may approve your request if it— limiting the biological condition provide the demonstration required (i) Consults with the landowner or the monitoring requirements of paragraph under paragraph (b)(1) of this section. land management agency having (c) of this section to only the stream that (b) What requirements apply to the jurisdiction over the lands to which the will receive the point-source discharge. approval of alternative postmining land use would apply; and (e) Coordination with Clean Water Act uses?—(1) Application requirements. If (ii) Finds in writing that you have agencies. The regulatory authority will you propose to restore the proposed made the demonstration required under make best efforts to— permit area or a portion thereof to a paragraph (b)(1) of this section. (1) Consult in a timely manner with condition capable of supporting a higher Landowner consent alone is an the agencies responsible for issuing or better use or uses, rather than to a insufficient basis for this finding. permits, authorizations, and condition capable of supporting the uses (c) What requirements apply to permit certifications under the Clean Water that the land could support before any revision applications that propose to Act; mining, you must demonstrate that the change the postmining land use? (1) (2) Minimize differences in proposed higher or better use or uses You may propose to change the monitoring locations and reporting meet the following criteria: postmining land use for all or a portion requirements; and (i) There is a reasonable likelihood of the permit area at any time through (3) Share data to the extent practicable that the proposed use or uses will be the permit revision process under and consistent with each agency’s achieved after mining and reclamation, § 774.13 of this chapter. mission, statutory requirements, and as documented by, for example, real (2) If you propose a higher or better implementing regulations. estate and construction contracts, plans postmining land use, the requirements for installation of any necessary of paragraphs (b)(1) and (2) of this § 784.24 What requirements apply to the infrastructure, procurement of any section will apply and the application postmining land use? necessary zoning approvals, landowner must be considered a significant permit (a) What postmining land use commitments, economic forecasts, and revision for purposes of § 774.13(b)(2) of information must my application studies by land use planning agencies. this chapter. contain? (1) You must describe and map (ii) The proposed use or uses do not (d) What restrictions apply to the the proposed use or uses of the land present any actual or probable hazard to retention of mining-related structures? within the proposed permit area public health or safety or any threat of (1) If you propose to retain mining- following reclamation, based on the water diminution or pollution. related structures other than roads and categories of land uses listed in the (iii) The proposed use or uses will impoundments for potential future use definition of land use in § 701.5 of this not— as part of the postmining land use, you chapter. (A) Be impractical or unreasonable. must demonstrate, and the regulatory (2) Except for prime farmland (B) Be inconsistent with applicable authority must find in writing, that the historically used as cropland, you must land use policies or plans. size and characteristics of the structures discuss the utility and capability of the (C) Involve unreasonable delay in are consistent with and proportional to reclaimed land to support the proposed implementation. the needs of the postmining land use. postmining land use and the variety of (D) Cause or contribute to a violation (2) The amount of bond required for uses that the land was capable of of federal, state, tribal or local law. the permit under part 800 of this

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00306 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93371

chapter must include the cost of the end of the revegetation condition, you may propose, and the removing the structure and reclaiming responsibility period specified in regulatory authority may approve, any the land upon which it was located to § 817.115 of this chapter, you must appropriate postmining land use for that a condition capable of supporting the remove the structure and reclaim the land that is both achievable and premining uses. The bond must include land upon which it was located by compatible with land uses in the the cost of restoring the site to its restoring the approximate original surrounding area, provided that approximate original contour in contour in accordance with § 817.102 of restoration of the land to that capability accordance with § 817.102 of this this chapter and revegetating the site in does not require disturbance of land chapter and revegetating the site in accordance with the revegetation plan previously unaffected by mining. accordance with the revegetation plan approved under § 784.12(g) of this part § 784.25 What information must I provide approved under § 784.12(g) of this part for the permit area surrounding the site for siltation structures, impoundments, and for the permit area surrounding the site upon which the structure was refuse piles? upon which the structure was previously located. (a) How do I determine the hazard previously located. (e) What special provisions apply to potential of a proposed impoundment? (3) The reclamation plan submitted previously mined areas? If land that was You must use the following table to under § 784.12 of this part must specify previously mined cannot be reclaimed identify the hazard potential that if a structure is not in use as part to the land use that existed before any classification of each proposed of the approved postmining land use by mining because of the previously mined impoundment that includes a dam:

Hazard potential 1 classification Loss of human life in event of failure Economic, environmental, or lifeline losses in event of failure

Low ...... None expected ...... Low potential; generally limited to property owned by the permittee. Significant ...... None expected ...... Yes. High ...... Loss of one or more lives probable ...... Yes, but not necessary for this classification. 1 Lifeline losses refer to disruption of lifeline facilities, which include, but are not limited to, important public utilities, highways, and railroads.

(b) How must I prepare the general high hazard potential under paragraph this section, you must prepare and plan for proposed siltation structures, (a) of this section, the requirements of submit a detailed design plan that meets impoundments, and refuse piles? If you paragraph (b)(4)(i) of this section do not the following requirements: propose to construct a siltation apply— (i) The plan must be prepared by, or structure, impoundment, or refuse pile, (A) In areas with 26.0 inches or less under the direction of, a qualified your application must include a general of average annual precipitation; or registered professional engineer with plan that meets the following (B) To siltation structures. assistance from experts in related fields requirements: (5)(i) The plan must contain an such as geology, land surveying, and (1) The plan must be prepared by, or analysis of the potential for each landscape architecture. The engineer under the direction of, and certified by impoundment to drain into subjacent must certify that the impoundment a qualified registered professional underground mine workings, together design meets the requirements of this engineer, a professional geologist, or, in with an analysis of the impacts of such part, current prudent engineering any state that authorizes land surveyors drainage. practices, and any design criteria (ii) Except for structures that would to prepare and certify such plans, a established by the regulatory authority. meet the criteria in § 77.216(a) of this qualified registered professional land The qualified registered professional title or that would have a significant or surveyor, with assistance from experts engineer must be experienced in the high hazard potential under paragraph in related fields such as landscape design and construction of (a) of this section, the requirements of architecture. impoundments. paragraph (b)(5)(i) of this section do not (2) The plan must contain a (ii) The plan must incorporate any apply— description, map, and cross-sections of (A) In areas with 26.0 inches or less design and construction measures the structure and its location. of average annual precipitation; or identified in the geotechnical (3) The plan must contain the (B) To siltation structures. investigation report prepared under hydrologic and geologic information (6) The plan must include a schedule paragraph (b)(4) of this section as required to assess the hydrologic impact setting forth the dates when any necessary to protect against potential of the structure. detailed design plans for structures that adverse impacts from subsidence (4)(i) The plan must contain a report are not submitted with the general plan resulting from underground mine describing the results of a geotechnical will be submitted to the regulatory workings underlying or adjacent to the investigation of the potential effect on authority. structure. the structure if subsurface strata subside (c) How must I prepare the detailed (iii) The plan must describe the as a result of past, current, or future design plan for proposed siltation operation and maintenance underground mining operations beneath structures, impoundments, and refuse requirements for each structure. or within the proposed permit and piles?—(1) Detailed design plan (iv) The plan must describe the adjacent areas. When necessary, the requirements for high hazard dams, timetable and plans to remove each investigation report also must identify significant hazard dams, and structure, if appropriate. design and construction measures that impounding structures that meet MSHA (2) Detailed design plan requirements would prevent adverse subsidence- criteria. If you propose to construct an for other structures. If you propose to related impacts on the structure. impounding structure that would meet construct an impounding structure that (ii) Except for structures that would the criteria in § 77.216(a) of this title or would not meet the criteria in meet the criteria in § 77.216(a) of this that would have a significant or high § 77.216(a) of this title and that would title or that would have a significant or hazard potential under paragraph (a) of not have a significant or high hazard

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00307 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93372 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

potential under paragraph (a) of this engineering tests to establish (A) Determine the number, location, section, you must prepare and submit a compliance with the minimum static and depth of borings and test pits using detailed design plan that meets the safety factor of 1.3 required in current prudent engineering practice for following requirements: § 816.49(a)(2)(ii) of this chapter. the size of the impoundment and the (i)(A) Except as provided in paragraph (3) Each plan must include stability impounding structure, the quantity of (c)(2)(i)(B) of this section, the plan must analyses of the proposed impoundment material to be impounded, and be prepared by, or under the direction if the structure would meet the criteria subsurface conditions. of, a qualified, registered, professional in § 77.216(a) of this title or would have (B) Consider the character of the engineer, or, in any state that authorizes a significant or high hazard potential overburden and bedrock, the proposed land surveyors to prepare and certify under paragraph (a) of this section. The abutment sites for the impounding such plans, a qualified, registered, stability analyses must address static, structure, and any adverse geotechnical professional, land surveyor. The seismic, and post-earthquake conditions that may affect the engineer or land surveyor must certify (liquefaction) conditions. They must impounding structure. that the impoundment design meets the include, but are not limited to, strength (C) Identify all springs, seepage, and requirements of this part, current parameters, pore pressures, and long- groundwater flow observed or prudent engineering practices, and any term seepage conditions. The plan also anticipated during wet periods in the design criteria established by the must contain a description of each area of the proposed impounding regulatory authority. The qualified engineering design assumption and structure on each plan. registered professional engineer or calculation with a discussion of each (D) Consider the possibility of qualified registered professional land alternative considered in selecting the mudflows, rock-debris falls, or other surveyor must be experienced in the specific analysis and design parameters landslides into the impounding design and construction of and construction methods. structure, impoundment, or impounded impoundments. (f) What additional design material. (B) All coal mine waste structures to requirements apply to coal mine waste (iv) The design must ensure that at which §§ 817.81 through 817.84 of this impoundments, refuse piles, and least 90 percent of the water stored in chapter apply must be certified by a impounding structures constructed of the impoundment during the design qualified, registered, professional coal mine waste? If you propose to place precipitation event will be removed engineer. coal mine waste in a refuse pile or within a 10-day period. (ii) The plan must reflect any design impoundment, or if you plan to use coal and construction requirements for the § 784.26 What information must I provide if mine waste to construct an impounding I plan to return coal processing waste to structure, including any measures structure, you must comply with the identified as necessary in the abandoned underground mine workings? applicable design requirements in (a) As provided in §§ 816.81(h) and geotechnical investigation report paragraphs (f)(1) and (2) of this section. prepared under paragraph (b)(4) of this 817.81(h) of this chapter, you may (1) Design requirements for refuse return coal processing waste from either section. piles. You must design refuse piles to (iii) The plan must describe the surface-mined coal or underground- comply with the requirements of operation and maintenance mined coal to abandoned underground §§ 784.28, 817.81, and 817.83 of this requirements for each structure. mine workings for disposal only if the (iv) The plan must describe the chapter. regulatory authority and the Mine Safety timetable and plans to remove each (2) Design requirements for and Health Administration first approve structure, if appropriate. impounding structures that will the disposal plan. (3) Timing of submittal of detailed impound coal mine waste or that will be (b) Each plan for the return of coal design plans. You must submit the constructed of coal mine waste. (i) You processing waste to abandoned detailed design plans to the regulatory must design impounding structures underground mine workings must authority either as part of the permit constructed of or intended to impound describe the— application or in accordance with the coal mine waste to comply with the coal (1) Source and quality of coal schedule submitted under paragraph mine waste disposal requirements of processing waste to be stowed in the (b)(6) of this section. The regulatory §§ 784.28, 817.81, and 817.84 of this abandoned underground workings. authority must approve, in writing, the chapter and with the impoundment (2) All chemicals used to process the detailed design plan for a structure requirements of paragraphs (a) and (c) of coal, the quantity of those chemicals before you may begin construction of § 817.49 of this chapter. remaining in the coal processing waste, the structure. (ii) The plan for each impounding and the likely impact of those chemicals (d) What additional design structure that meets the criteria of on groundwater and any persons, requirements apply to siltation § 77.216(a) of this title must comply aquatic life, or wildlife using that structures? You must design siltation with the requirements of § 77.216–2 of groundwater. structures in compliance with the this title. (3) Area of the abandoned requirements of § 817.46 of this chapter. (iii) Each plan for an impounding underground workings in which the (e) What additional design structure that will impound coal mine waste is to be placed. requirements apply to permanent and waste or that will be constructed of coal (4) Percent of the abandoned temporary impoundments? (1) You must mine waste must contain the results of underground mine void to be filled. design permanent and temporary a geotechnical investigation to (5) Method of constructing impoundments to comply with the determine the structural competence of underground retaining walls. requirements of § 817.49 of this chapter. the foundation that will support the (6) Influence of the backstowing (2) The regulatory authority may proposed impounding structure and the operation on active underground mine establish, through the regulatory impounded material. An engineer or operations. program approval process, engineering engineering geologist must plan and (7) Surface area to be supported by the design standards that ensure stability supervise the geotechnical investigation. backstowed waste. comparable to a 1.3 minimum static In planning the investigation, the (8) Anticipated occurrence of surface safety factor in lieu of conducting engineer or geologist must— effects following backstowing.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00308 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93373

(9) Source and operation of the configuration of ephemeral stream provide the information and hydraulic transport mediums. channels. demonstrations required by paragraphs (10) Method of dewatering the coal (2) The regulatory authority may (c) through (g) of this section, as processing waste after placement. approve or require a postmining surface applicable, whenever you propose to (11) Extent to which water will be drainage pattern or stream-channel conduct mining activities— retained underground. configuration that differs from the (1) In or through a perennial or (12) Method of treatment of water if pattern or configuration otherwise intermittent stream; or released to surface streams. required under paragraph (b)(1) of this (2) On the surface of lands within 100 (13) Plans for monitoring for section when the regulatory authority feet of a perennial or intermittent chemicals contained in the coal finds that a different pattern or stream. You must measure this distance processing waste. configuration is necessary or horizontally on a line perpendicular to (14) Effect on the hydrologic regime appropriate to— the stream, beginning at the ordinary and biological communities. (i) Ensure stability; high water mark. (15) Measures to be taken to comply (ii) Prevent or minimize downcutting (c) Postmining surface drainage with the requirements of § 816.41 or or widening of reconstructed stream pattern and stream-channel § 817.41 of this chapter for discharges to channels and control meander configuration. (1) If you propose to mine underground mines. migration; through a perennial or intermittent (c) The plan submitted under (iii) Promote enhancement of fish and stream, your application must include a paragraph (b) of this section must wildlife habitat; plan to construct— include a monitoring plan that complies (iv) Accommodate any anticipated (i) A postmining surface drainage with § 784.23 of this part, as applicable. temporary or permanent increase in pattern that is similar to the premining It must describe the objective of each surface runoff as a result of mining and surface drainage pattern, relatively permanent monitoring well to be reclamation; or stable, and in dynamic near- located in the area in which coal (v) Accommodate the construction of equilibrium; and processing waste is placed, the stratum excess spoil fills, coal mine waste refuse (ii) Postmining stream-channel underlying the mined coal, and the piles, or coal mine waste impounding configurations that are relatively stable gradient from the area in which the structures; and similar to the premining waste is placed. (vi) Replace a stream that was configuration of perennial and (d) Paragraphs (a) through (c) of this channelized or otherwise severely intermittent stream channels. section also apply to pneumatic altered prior to submittal of the permit (2) The regulatory authority may backstowing operations, except that the application with a more natural, approve or require a postmining surface regulatory authority may exempt a relatively stable, and ecologically sound drainage pattern or stream-channel proposed pneumatic backstowing drainage pattern or stream-channel configuration that differs from the operation from compliance with the configuration; or pattern or configuration otherwise monitoring requirements of paragraph (vii) Reclaim a previously mined area. required under paragraph (c)(1) of this (c) of this section after finding in writing (c) Streamside vegetative corridors. (1) section when the regulatory authority that you have demonstrated that the If you propose to mine through an finds that a different pattern or proposed operation will not adversely ephemeral stream, your application configuration is necessary or impact surface water, groundwater, or must include a plan to establish a appropriate to— water supplies. vegetative corridor at least 100 feet wide (i) Ensure stability; along each bank of the reconstructed (ii) Prevent or minimize downcutting § 784.27 What additional permitting stream channel, consistent with natural or widening of reconstructed stream requirements apply to proposed activities in channels and control meander or through ephemeral streams? vegetation patterns. (2) The plan submitted under migration; (a) Clean Water Act requirements. If paragraph (c)(1) of this section must be (iii) Promote enhancement of fish and the proposed permit area includes consistent with the requirements of wildlife habitat; waters subject to the jurisdiction of the § 817.56(c) of this chapter for vegetative (iv) Accommodate any anticipated Clean Water Act, 33 U.S.C. 1251 et seq., corridors along ephemeral streams. temporary or permanent increase in the regulatory authority must condition (3) Paragraphs (c)(1) and (2) of this surface runoff as a result of mining and the permit to prohibit initiation of section do not apply to prime farmland reclamation; mining-related activities in or affecting historically used for cropland. (v) Accommodate the construction of those waters before you obtain all excess spoil fills, coal mine waste refuse necessary authorizations, certifications, § 784.28 What additional permitting piles, or coal mine waste impounding and permits under the Clean Water Act, requirements apply to proposed surface structures; 33 U.S.C. 1251 et seq. activities in, through, or adjacent to (vi) Replace a stream that was (b) Postmining surface drainage perennial or intermittent streams? channelized or otherwise severely pattern and stream-channel (a) Clean Water Act requirements. If altered prior to submittal of the permit configuration. (1) If you propose to mine the proposed permit area includes application with a more natural, through an ephemeral stream, your waters subject to the jurisdiction of the relatively stable, and ecologically sound application must include a plan to Clean Water Act, 33 U.S.C. 1251 et seq., drainage pattern or stream-channel construct— the regulatory authority must condition configuration; or (i) A postmining surface drainage the permit to prohibit initiation of (vii) Reclaim a previously mined area. pattern that is similar to the premining mining-related activities in or affecting (d) Streamside vegetative corridors. surface drainage pattern, relatively those waters before you obtain all (1) If you propose to conduct any stable, and in dynamic near- necessary authorizations, certifications, mining activities identified in paragraph equilibrium; and and permits under the Clean Water Act, (b) of this section, your application must (ii) Postmining stream-channel 33 U.S.C. 1251 et seq. include a plan to establish a vegetated configurations that are relatively stable (b) To what activities does this section streamside corridor at least 100 feet and similar to the premining apply? You, the permit applicant, must wide on each side of the stream as part

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00309 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93374 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

of the reclamation process following the (4) The corridor width must be paragraphs (e)(5), (e)(6), and (i) of this completion of mining activities on the measured horizontally on a line section and § 817.57(i) of this chapter, surface of land within that area. perpendicular to the stream, beginning your application must contain the (2) The plan submitted under at the ordinary high water mark. applicable demonstrations set forth in paragraph (d)(1) of this section must be (5) Paragraphs (d)(1) through (2) of the table if you propose to conduct consistent with natural vegetation this section do not apply to prime mining activities in or through a patterns. farmland historically used for cropland. perennial or intermittent stream or on (3) The plan submitted under (e) What demonstrations must I the surface of land within 100 feet of a paragraph (d)(1) of this section must be include in my application if I propose perennial or intermittent stream, as consistent with the streamside to conduct activities in or within 100 specified in paragraph (b) of this vegetative corridor requirements of feet of a perennial or intermittent § 817.57(d) of this chapter. stream? (1) Except as provided in section.

Activity Any activity other than mining through or permanently diverting a stream or Construction of an construction of an excess spoil fill, coal Demonstration excess Mining through or mine waste refuse spoil fill, coal mine permanently divert- pile, or impounding waste ing structure that refuse pile, or im- a stream encroaches upon pounding any part of a stream structure that encroaches upon any part of a stream

(i) The proposed activity would not cause or contribute to a violation of ap- Yes ...... Yes ...... Yes. plicable state or tribal water quality standards, including, but not limited to, standards established under the authority of section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c). (ii) The proposed activity would not cause material damage to the hydro- Yes ...... Yes ...... Yes. logic balance outside the permit area or upset the dynamic near-equi- librium of streams outside the permit area. (iii) The proposed activity would not result in conversion of the affected Yes ...... Yes ...... Not applicable. stream segment from perennial to ephemeral. (iv) The proposed activity would not result in conversion of the affected Yes ...... Yes, except as pro- Not applicable. stream segment from intermittent to ephemeral or from perennial to inter- vided in para- mittent. graphs (e)(2) and (5) of this section. (v) There is no practicable alternative that would avoid mining through or di- Not applicable ...... Yes, except as pro- Yes. verting a perennial or intermittent stream. vided in para- graph (e)(3) of this section. (vi) After evaluating all potential upland locations in the vicinity of the pro- Not applicable ...... Not applicable ...... Yes. posed operation, including abandoned mine lands and unreclaimed bond forfeiture sites, there is no practicable alternative that would avoid place- ment of excess spoil or coal mine waste in a perennial or intermittent stream. (vii) The proposed operation has been designed to minimize the extent to Not applicable ...... Yes, except as pro- Yes. which perennial or intermittent streams will be mined through, diverted, or vided in para- covered by an excess spoil fill, a coal mine waste refuse pile, or a coal graphs (e)(3) mine waste impounding structure. and (5) of this section. (viii) The stream restoration techniques in the proposed reclamation plan Not applicable ...... Yes, except as pro- Not applicable. are adequate to ensure restoration or improvement of the form, hydrologic vided in para- function (including flow regime), dynamic near-equilibrium, streamside graph (e)(5) of vegetation, and ecological function of the stream after you have mined this section. through it, as required by § 817.57 of this chapter. (ix) The proposed operation has been designed to minimize the amount of § 784.35(b) of this § 784.35(b) of this Yes. excess spoil or coal mine waste that the proposed operation will generate. part requires mini- part requires mization of excess minimization of spoil. excess spoil. (x) To the extent possible using the best technology currently available, the Yes ...... Yes ...... Yes. proposed operation has been designed to minimize adverse impacts on fish, wildlife, and related environmental values. (xi) The fish and wildlife enhancement plan prepared under § 784.16 of this Not applicable ...... Not applicable ...... Yes. part includes measures that would fully and permanently offset any long- term adverse impacts on fish, wildlife, and related environmental values within the footprint of each excess spoil fill, coal mine waste refuse pile, and coal mine waste impounding structure.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00310 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93375

Activity Any activity other than mining through or permanently diverting a stream or Construction of an construction of an excess spoil fill, coal Demonstration excess Mining through or mine waste refuse spoil fill, coal mine permanently divert- pile, or impounding waste ing structure that refuse pile, or im- a stream encroaches upon pounding any part of a stream structure that encroaches upon any part of a stream

(xii) Each excess spoil fill, coal mine waste refuse pile, and coal mine waste Not applicable ...... Not applicable ...... Yes. impounding structure has been designed in a manner that will not result in the formation of toxic mine drainage. (xiii) The revegetation plan prepared under § 784.12(g) of this part requires Not applicable ...... Not applicable ...... Yes. reforestation of each completed excess spoil fill if the land is forested at the time of application or if the land would revert to forest under condi- tions of natural succession.

(2)(i) As part of a proposal to mine stream segment must display both of the be reconstructed after the completion of through an intermittent stream, you may following characteristics: mining to restore, approximate, or propose to convert a minimal portion of (A) Prior anthropogenic activity has improve the premining characteristics of the mined-through segment of an resulted in substantial degradation of the original stream channel, to promote intermittent stream to an ephemeral the profile or dimensions of the stream the recovery and enhancement of stream. The regulatory authority may channel; and aquatic habitat and the ecological and approve the proposed conversion only if (B) Degradation of the stream channel hydrologic functions of the stream, and you demonstrate, and the regulatory has resulted in a substantial adverse to minimize adverse alteration of stream authority finds, that the conversion impact on the ecological function of the channels on and off the site, including would not degrade the hydrologic stream. channel deepening or enlargement. function, dynamic near-equilibrium, or (4) Paragraph (e)(1) of this section (ii) Pertinent stream-channel the ecological function of the stream as does not apply to a stream segment that characteristics include, but are not a whole within the mined area, as will be part of a permanent limited to, the baseline stream pattern, determined by comparison with the impoundment approved and profile, dimensions, substrate, habitat, stream assessment conducted under constructed under § 817.49(b) of this and natural vegetation growing in the § 784.19(c)(6) of this part. chapter. riparian zone and along the banks of the (ii) Paragraph (e)(2)(i) of this section (5) Paragraphs (e)(1)(iv) and (vii) of stream. does not apply to the circumstances this section and the requirement for (iii) For temporary stream-channel described in paragraph (e)(5) of this restoration of the hydrologic and diversions that will remain in use for 3 section. ecological functions and the dynamic or more years, the vegetation proposed (3)(i) Paragraphs (e)(1)(v) and (vii) of near-equilibrium of a stream in for planting along the banks of the this section do not apply to a proposal paragraph (e)(1)(viii) of this section do diversion need not include species that to mine through a segment of an not apply to an intermittent stream would not reach maturity until after the intermittent stream when that segment segment if— diversion is removed. meets the criteria of paragraph (e)(3)(ii) (i) The intermittent segment is a (2) You must design the hydraulic of this section, provided you minor interval in what is otherwise a capacity of all temporary and permanent demonstrate, and the regulatory predominantly ephemeral stream; stream-channel diversions to be at least authority finds, that implementation of (ii) You demonstrate, and the equal to the hydraulic capacity of the the proposed mining and reclamation regulatory authority finds, that the unmodified stream channel plan— intermittent segment has no significant immediately upstream of the diversion, (A) Will improve the form of the fish, wildlife, or related environmental but no greater than the hydraulic stream segment; values, as documented by the baseline capacity of the unmodified stream (B) Will improve the hydrologic data collected under § 784.19(c)(6) of channel immediately downstream from function of the stream; this part; and the diversion. (C) Is likely to result in improvement (iii) You demonstrate, and the (3) You must design all temporary and of the biological condition or ecological regulatory authority finds, that permanent stream-channel diversions in function of the stream; conversion of the intermittent stream a manner that ensures that the (D) Will not further degrade the segment will not adversely affect water combination of channel, bank, and hydrologic function, dynamic near- uses. flood-plain configuration is adequate to equilibrium, biological condition, or (f) What design requirements apply to pass safely the peak runoff of a 10-year, ecological function of the stream; and the diversion, restoration, and 6-hour precipitation event for a (E) Will result in establishment of a reconstruction of perennial and temporary diversion and a 100-year, 6- streamside vegetative corridor for the intermittent stream channels? (1)(i) You hour precipitation event for a stream segment in accordance with must design permanent stream-channel permanent diversion. § 817.57(d) of this chapter. diversions, temporary stream-channel (4) You must submit a certification (ii) To qualify for purposes of diversions that will remain in use for 3 from a qualified registered professional paragraph (e)(3)(i) of this section, a or more years, and stream channels to engineer that the designs for all stream-

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00311 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93376 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

channel diversions and all stream best technology currently available for § 784.29 What information must I include channels to be reconstructed after the intermittent streams consists of the in the surface-water runoff control plan? completion of mining meet the design establishment of standards that rely Your application must contain a requirements of this section and any upon restoration of the form, hydrologic surface-water runoff control plan that additional design criteria established by function, and water quality of the includes the following— the regulatory authority. This stream and reestablishment of (a)(1) An explanation of how you will certification may be limited to the streamside vegetation as a surrogate for handle surface-water runoff in a manner location, dimensions, and physical the biological condition of the stream. that will prevent peak discharges from characteristics of the stream channel. the proposed permit area, both during (g) What requirements apply to (B) The regulatory authority must and after mining and reclamation, from establishment of standards for reevaluate the best technology currently exceeding the premining peak discharge restoration of the ecological function of available for intermittent streams under from the same area for the same-size a stream? (1) If you propose to mine paragraph (g)(3)(iv)(A) of this section at precipitation event. You must use the through a perennial or intermittent 5-year intervals. Upon conclusion of appropriate regional Natural Resources stream, the regulatory authority must that evaluation, the regulatory authority Conservation Service synthetic storm establish standards for determining must make any appropriate adjustments distribution or another scientifically when the ecological function of the before processing permit applications defensible method approved by the reconstructed stream has been restored. submitted after the conclusion of that regulatory authority that takes into Your application must incorporate those evaluation. account the time of concentration to standards and explain how you will (4) Standards established under estimate peak discharges. meet them. (2) The explanation in paragraph paragraph (g)(1) of this section must (2) In establishing standards under (a)(1) of this section must consider the ensure that the reconstructed stream or paragraph (g)(1) of this section, the findings in the determination of the regulatory authority must coordinate stream-channel diversion will not— probable hydrologic consequences of with the appropriate agencies (i) Preclude attainment of the mining prepared under § 784.20 of this responsible for administering the Clean designated uses of that stream segment part. Water Act, 33 U.S.C. 1251 et seq., to under section 303(c) of the Clean Water (b) A surface-water runoff monitoring ensure compliance with all Clean Water Act, 33 U.S.C. 1313(c), before mining, and inspection program that will Act requirements. or, if there are no designated uses, the provide sufficient precipitation and (3)(i) The biological component of the premining uses of that stream segment; stormwater discharge data for the standards established under paragraph or proposed permit area to evaluate the (g)(1) of this section must employ the effectiveness of the surface-water runoff (ii) Result in that stream segment not best technology currently available, as control practices under paragraph (a) of specified in paragraphs (g)(3)(ii) through meeting the applicable anti-degradation this section. The surface-water runoff (iv) of this section. requirements under section 303(c) of the monitoring and inspection program (ii) For perennial streams, the best Clean Water Act, 33 U.S.C. 1313(c), as must specify criteria for monitoring, technology currently available includes adopted by a state or authorized tribe or inspection, and reporting consistent an assessment of the biological as promulgated in a federal rulemaking with § 817.34(d) of this chapter. The condition of the stream, as determined under the Clean Water Act. program must contain a monitoring- by an index of biological condition or (h) What finding must the regulatory point density that adequately represents other scientifically-defensible authority make before approving a the drainage pattern across the entire bioassessment protocols consistent with permit application under this section? proposed permit area, with a minimum § 784.19(c)(6)(vii) of this part. Standards The regulatory authority may not of one monitoring point per watershed established under paragraph (g)(1) of approve an application that includes a discharge point. this section for perennial streams— proposal to conduct mining activities in (c) Descriptions maps, and cross- (A) Need not require that a sections of runoff-control structures. A reconstructed stream or stream-channel a perennial or intermittent stream or on the surface of land within 100 feet of a runoff-control structure is any man- diversion have precisely the same made structure designed to control or perennial or intermittent stream unless biological condition or biota as the convey storm water runoff on or across it first makes a specific written finding stream segment did before mining. a minesite. This term encompasses the (B) Must prohibit substantial that you have fully satisfied all entire surface water control system and replacement of pollution-sensitive applicable requirements of paragraphs includes diversion ditches, drainage species with pollution-tolerant species. (c) through (f) of this section. The benches or terraces, drop structures or (C) Must require that populations of finding must be accompanied by a check dams, all types of conveyance organisms used to determine the detailed explanation of the rationale for channels, downdrains, and biological condition of the reconstructed the finding. sedimentation and detention ponds and stream or stream-channel diversion be (i) Programmatic alternative. associated outlets. It does not include self-sustaining within that stream Paragraphs (c) through (h) of this section swales or reconstructed perennial, segment. intermittent, or ephemeral stream (iii) Paragraph (g)(3)(ii) of this section will not apply to a state program approved under subchapter T of this channels. also applies to intermittent streams (d) An explanation of how diversions whenever a scientifically defensible chapter if that program is amended to expressly prohibit all mining activities, will be constructed in compliance with biological index and bioassessment § 817.43 of this chapter. protocol have been established for including the construction of stream- assessment of intermittent streams in channel diversions, that would result in § 784.30 When must I prepare a the state or region in which the stream more than a de minimis disturbance of subsidence control plan and what is located. perennial or intermittent streams or the information must that plan include? (iv)(A) Except as provided in surface of land within 100 feet of a (a) Pre-subsidence survey. Each paragraph (g)(3)(iii) of this section, the perennial or intermittent stream. application must include—

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00312 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93377

(1) A map of the proposed permit and (c) Subsidence control plan. (1) Your and occupied residential dwellings and adjacent areas at a scale no smaller than application must include a subsidence structures related thereto; or the written 1:12,000. The regulatory authority may control plan unless the conditions consent of the owner of the structure or require a larger-scale or more detailed specified in paragraph (b) of this section facility that minimization measures not map. The map must show the location exist. be taken; or, unless the anticipated and type of— (2) The subsidence control plan must damage would constitute a threat to (i) Structures, renewable resource contain the following information: health or safety, a demonstration that lands, wetlands, streams, and water (i) A description of the method of coal the costs of minimizing damage exceed bodies that subsidence may materially removal, such as longwall mining, the anticipated costs of repair. damage or for which the value or room-and-pillar removal or hydraulic (viii) A description of the measures to reasonably foreseeable use may be mining, including the size, sequence be taken in accordance with §§ 817.40 diminished by subsidence; and and timing of the development of and 817.121(c) of this chapter to replace (ii) Drinking, domestic, and underground workings. adversely affected protected water residential water supplies that could be (ii) A map of the underground supplies or to mitigate or remedy any contaminated, diminished, or workings that describes the location and subsidence-related material damage to interrupted by subsidence. extent of the areas in which planned- land, wetlands, streams, water bodies, (2) A narrative indicating whether subsidence mining methods will be and protected structures. subsidence, if it occurred, could cause used and that identifies all areas where (ix) Other information specified by material damage to or diminish the the measures described in paragraphs the regulatory authority as necessary to value or reasonably foreseeable use of (c)(2)(iv), (v), and (vii) of this section demonstrate that the operation will be such structures, renewable resource will be taken to prevent or minimize conducted in accordance with § 817.121 lands, wetlands, streams, or water subsidence and subsidence-related of this chapter. bodies or could contaminate, diminish, damage; and, when applicable, to or interrupt drinking, domestic, or correct subsidence-related material § 784.31 What information must I provide residential water supplies. damage. concerning the protection of publicly (3)(i) A survey of the quantity and (iii) A description of the physical owned parks and historic places? quality of all drinking, domestic, and conditions, such as depth of cover, seam (a) For any publicly owned parks or residential water supplies within the thickness and lithology of overlying any places listed on the National permit area and adjacent area that could strata, that affect the likelihood or extent Register of Historic Places that may be be contaminated, diminished, or of subsidence and subsidence-related adversely affected by the proposed interrupted by subsidence. damage. operation, you must describe the (ii) You, the applicant, must pay for (iv) A description of the monitoring, measures to be used— any technical assessment or engineering if any, needed to determine the (1) To prevent adverse impacts, or evaluation used to determine the commencement and degree of (2) If a person has valid existing premining quantity and quality of subsidence so that, when appropriate, rights, as determined under § 761.16 of drinking, domestic, or residential water other measures can be taken to prevent, this chapter, or if joint agency approval supplies. You may use publicly reduce or correct material damage in is to be obtained under § 761.17(d) of available assessments conducted for accordance with § 817.121(c) of this this chapter, to minimize adverse research purposes by a university or chapter. impacts. government agency, provided those (v) Except for those areas where (b) The regulatory authority may assessments are updated to reflect any planned subsidence is projected to be require the applicant to protect historic changes that have occurred since used, a detailed description of the or archeological properties listed on or completion of the study. subsidence control measures that will eligible for listing on the National (iii) You must provide copies of the be taken to prevent or minimize Register of Historic Places through survey and any technical assessment or subsidence and subsidence-related appropriate mitigation and treatment engineering evaluation to the property damage to the extent technologically measures. Appropriate mitigation and owner and to the regulatory authority. and economically feasible. Those treatment measures may be required to (b) Conditions under which no measures may include, but are not be taken after permit issuance, provided subsidence control plan is needed. You limited to: that the required measures are do not need to submit a subsidence (A) Backstowing of voids; completed before the properties are control plan if the survey conducted (B) Leaving support pillars of coal; affected by any mining operation. and information provided under (C) Leaving areas in which no coal is paragraph (a) of this section show that— removed, including a description of the § 784.33 What information must I provide (1) No structures, drinking, domestic, overlying area to be protected by leaving concerning the relocation or use of public or residential water supplies, renewable coal in place; and roads? resource lands, wetlands, streams, or (D) Taking measures on the surface to Your application must describe, with water bodies exist within the proposed prevent or minimize material damage or appropriate maps and cross-sections, permit and adjacent areas; or diminution in value of the surface. the measures to be used to ensure that (2) There would be no material (vi) A description of the anticipated the interests of the public and damage or diminution in value or effects of planned subsidence, if any, landowners affected are protected if, reasonably foreseeable use of structures, including impacts to wetlands, streams, under § 761.14 of this chapter, you seek lands, or features protected under and water bodies that support the value to have the regulatory authority § 817.121(c) through (e) of this chapter, and reasonably foreseeable uses of approve— and no contamination, diminution, or surface lands. (a) Conducting the proposed surface interruption of water supplies protected (vii) For those areas where planned mining activities within 100 feet of the under § 817.40 of this chapter would subsidence is projected to be used, a right-of-way line of any public road, occur as a result of mine subsidence, description of methods to be employed except where mine access or haul roads provided that the regulatory authority to minimize damage from planned join that right-of-way; or agrees with this conclusion. subsidence to non-commercial buildings (b) Relocating a public road.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00313 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93378 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

§ 784.35 What information must I provide surface excavation if doing so would (h) Geotechnical investigation. You concerning the minimization and disposal result in the creation of excess spoil. must submit the results of a of excess spoil? (c) Preferential use of preexisting geotechnical investigation, with (a) Applicability. This section applies benches for excess spoil disposal. To the supporting calculations and analyses, of to you, the permit applicant, if you extent that your proposed operation will the site of each proposed fill, with the propose to generate excess spoil as part generate excess spoil, you must exception of those sites at which excess of your operation. maximize the placement of excess spoil spoil will be placed only on a (b) Demonstration of minimization of on preexisting benches in the vicinity of preexisting bench under § 817.74 of this excess spoil. (1) You must submit a the proposed permit area in accordance chapter. The information submitted demonstration, with supporting with § 817.74 of this chapter rather than must include— calculations and other documentation, constructing excess spoil fills on (1) Sufficient foundation that the operation has been designed to previously undisturbed land. investigations, as well as any necessary minimize, to the extent possible, the (d) Fill capacity demonstration. You laboratory testing of foundation volume of excess spoil that the must submit a demonstration, with material, to determine the design operation will generate. supporting calculations and other requirements for foundation stability for (2) The demonstration under documentation, that the designed each site. paragraph (b)(1) of this section must maximum cumulative volume of all (2) A description of the character of explain, in quantitative terms, how the proposed excess spoil fills within the the bedrock and any adverse geologic maximum amount of overburden will be permit area is no larger than the conditions in the area of the proposed returned to the mined-out area after capacity needed to accommodate the fill. considering— anticipated cumulative volume of (3) The geographic coordinates and a (i) Applicable regulations concerning excess spoil that the operation will narrative description of all springs, backfilling, compaction, grading, and generate, as calculated under paragraph seepage, mine discharges, and restoration of the approximate original (b) of this section. groundwater flow observed or (e) Requirements related to perennial contour. anticipated during wet periods in the (ii) Safety and stability needs and and intermittent streams. You must area of the proposed fill. requirements. comply with the requirements of (iii) The need for access and haul § 784.28 of this part concerning (4) An analysis of the potential effects roads with their attendant drainage activities in or near perennial or of any underground mine workings structures and safety berms during intermittent streams if you propose to within the proposed permit and mining and reclamation. You may construct an excess spoil fill in or adjacent areas, including the effects of construct roads and their attendant within 100 feet of a perennial or any subsidence that may occur as a drainage structures and safety berms on intermittent stream. The 100-foot result of previous, existing, and future the perimeter of the backfilled area as distance must be measured horizontally underground mining operations. necessary to conduct surface coal on a line perpendicular to the stream, (5) A technical description of the rock mining and reclamation operations, but, beginning at the ordinary high water materials to be used in the construction when the roads are no longer needed to mark. of fills underlain by a rock drainage support heavy equipment traffic, you (f) Location and profile. (1) You must blanket. must reduce the total width of roads and submit maps and cross-section drawings (6) Stability analyses that address their attendant drainage structures and or models showing the location and static and seismic conditions. The berms to be retained as part of the profile of all proposed excess spoil fills. analyses must include, but are not postmining land use to no more than 20 (2) You must locate fills on the most limited to, strength parameters, pore feet unless you demonstrate an essential moderately sloping and naturally stable pressures, and long-term seepage need for a greater width for the areas available. The regulatory authority conditions. The analyses must be postmining land use. will determine which areas area accompanied by a description of all (iv) Needs and requirements available, based upon the alternatives engineering design assumptions and associated with revegetation and the analysis under § 784.28 of this part and calculations and the alternatives proposed postmining land use. other requirements of the Act and this considered in selecting the design (v) Any other relevant regulatory chapter. specifications and methods. requirements, including those (3) Whenever possible and consistent (i) Operation and reclamation plans. pertaining to water quality and with the alternatives analysis and You must submit plans for the protection of fish, wildlife, and related alternative selection requirements of construction, operation, maintenance, environmental values. § 784.28 of this part, you must place fills and reclamation of all excess spoil fills (3) When necessary to avoid or on or above a natural terrace, bench, or in accordance with the requirements of minimize construction of excess spoil berm if that location would provide §§ 817.71 through 817.74 of this fills on undisturbed land, paragraph additional stability and prevent mass chapter. (b)(2)(i) of this section does not prohibit movement. (j) Additional requirements for bench the placement of what would otherwise (g) Design plans. You must submit cuts or rock-toe buttresses. If bench cuts be excess spoil on the mined-out area to detailed design plans, including or rock-toe buttresses are required under heights in excess of the premining appropriate maps and cross-section § 817.71(b)(2) of this chapter, you must elevation, provided that the final surface drawings, for each proposed fill, provide the— configuration is compatible with the prepared in accordance with the (1) Number, location, and depth of surrounding terrain and generally requirements of this section and borings or test pits, which must be resembles landforms found in the §§ 817.71 through 817.74 of this determined according to the size of the surrounding area. chapter. You must design the fill and fill and subsurface conditions. (4) You may not create a permanent appurtenant structures using current (2) Engineering specifications used to impoundment under § 817.49(b) of this prudent engineering practices and any design the bench cuts or rock-toe chapter or place coal combustion additional design criteria established by buttresses. Those specifications must be residues or noncoal materials in the the regulatory authority. based upon the stability analyses

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00314 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93379

required under paragraph (h)(6) of this surveyor, with experience in the design descriptions, maps, plans, and data. The section. and construction of roads, as meeting regulatory authority will use this (k) Design certification. A qualified the requirements of this chapter; information to determine whether you, registered professional engineer current, prudent engineering practices; the applicant, can meet the applicable experienced in the design of earth and and any design criteria established by performance standards for the special rock fills must certify that the design of the regulatory authority. type of mining activity. You must each proposed fill and appurtenant (c) Standard design plans. The respond to obtain a benefit. A federal structures meets the requirements of regulatory authority may establish agency may not conduct or sponsor, and this section. engineering design standards for you are not required to respond to, a primary roads through the regulatory collection of information unless it § 784.37 What information must I provide program approval process, in lieu of concerning access and haul roads? displays a currently valid OMB control engineering tests, to establish number. Send comments regarding (a) Design and other application compliance with the minimum static burden estimates or any other aspect of requirements. (1) You, the applicant, safety factor of 1.3 for all embankments this collection of information, including must submit a map showing the location specified in § 817.151(c) of this chapter. suggestions for reducing the burden, to of all roads that you intend to construct the Office of Surface Mining or use within the proposed permit area, § 784.38 What information must I provide concerning support facilities? Reclamation and Enforcement, together with plans and drawings for Information Collection Clearance You must submit a description, plans, each road to be constructed, used, or Officer, Room 203–SIB, 1951 and drawings for each support facility to maintained within the proposed permit Constitution Avenue NW., Washington, be constructed, used, or maintained area. DC 20240. within the proposed permit area. The (2) You must include appropriate ■ cross-sections, design drawings, and plans and drawings must include a map, 29. Revise § 785.14 to read as follows: specifications for road widths, appropriate cross-sections, design § 785.14 What special provisions apply to gradients, surfacing materials, cuts, fill drawings, and specifications sufficient mountaintop removal mining operations? embankments, culverts, bridges, to demonstrate compliance with (a) Applicability. This section applies drainage ditches, drainage structures, § 817.181 of this chapter for each to you if you conduct or intend to and fords and low-water crossings of facility. conduct mountaintop removal mining, perennial and intermittent streams. as that term is defined in § 701.5 of this (3) You must demonstrate how all § 784.40 May I submit permit application information in increments as mining chapter. proposed roads will comply with the progresses? (b) Application and approval applicable requirements of §§ 784.28, (a) You may request that the requirements. The regulatory authority 817.150, and 817.151 of this chapter. may approve an application for a permit (4) You must identify— regulatory authority approve a schedule for incremental submission of the to conduct mountaintop removal mining (i) Each road that you propose to operations, without regard to the locate in or within 100 feet, measured information required by this part, based on the anticipated progress and impact approximate original contour restoration horizontally on a line perpendicular to requirements of §§ 816.102 and 816.105 the stream, beginning at the ordinary of underground mining activities. (b) Section 783.26(b) of this chapter of this chapter, if it first finds, in high water mark of a perennial or applies to a request submitted under writing, on the basis of a complete intermittent stream. application, that you have met the (ii) Each proposed ford of a perennial paragraph (a) of this section. (c) The monitoring plans submitted following requirements: or intermittent stream that you plan to under § 784.23 of this part may be (1) The proposed postmining land use use as a temporary route during road structured and implemented in a of the lands to be disturbed is an construction. manner consistent with the schedule industrial, commercial, agricultural, (iii) Any plans to alter or relocate a approved under paragraph (b) of this residential, or public facility (including natural stream channel. section. recreational facilities) use. (iv) Each proposed low-water crossing (2) After consultation with the of a perennial or intermittent stream § 784.200 [Reserved] appropriate land-use planning agencies, channel. if any, the regulatory authority deems (5) You must explain why the roads, PART 785—REQUIREMENTS FOR that the proposed postmining land use fords, and stream crossings identified in PERMITS FOR SPECIAL CATEGORIES constitutes an equal or better economic paragraph (a)(4) of this section are OF MINING or public use of the land compared with necessary and how they comply with the premining use. ■ 27. The authority citation for part 785 the applicable requirements of § 784.28 (3) You have demonstrated continues to read as follows: of this part and §§ 817.150 and 817.151 compliance with the requirements for of this chapter. Authority: 30 U.S.C. 1201 et seq. alternative postmining land uses in (6) You must describe the plans to ■ 28. Revise § 785.10 to read as follows: § 780.24(b) of this chapter. remove and reclaim each road that (4) You have presented specific plans would not be retained as part of the § 785.10 Information collection. for the proposed postmining land use postmining land use, and provide a In accordance with 44 U.S.C. 3501 et and appropriate assurances that the use schedule for removal and reclamation. seq., the Office of Management and will be— (b) Primary road certification. The Budget (OMB) has approved the (i) Compatible with adjacent land plans and drawings for each primary information collection requirements of uses. road must be prepared by, or under the part 785 and assigned it control number (ii) Obtainable according to data direction of, and certified by a qualified 1029–0040. Collection of this regarding expected need and market. registered professional engineer, or in information is required by sections510, (iii) Assured of investment in any state that authorizes land surveyors 515, 701 and 711 of SMCRA, which necessary public facilities. to certify the design of primary roads, a requires applicants for special types of (iv) Supported by commitments from qualified registered professional land mining activities to provide pertinent public agencies where appropriate.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00315 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93380 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(v) Practicable with respect to private season of the year, will not vary in a ■ 30. Revise § 785.16 to read as follows: financial capability for completion of way that would adversely affect any— the proposed use. (A) Designated use of a surface water § 785.16 What special provisions apply to proposed variances from approximate (vi) Planned pursuant to a schedule located outside the proposed permit original contour restoration requirements attached to the reclamation plan so as to area under section 303(c) of the Clean for steep-slope mining? Water Act, 33 U.S.C. 1313(c), or, if there integrate the mining operation and (a) Application and approval reclamation with the postmining land are no designated uses, any premining requirements. The regulatory authority use. use of a surface water located outside may issue a permit for non-mountaintop (5) The proposed operation has been the proposed permit area. removal steep-slope surface coal mining (B) Premining use of groundwater designed by a registered engineer in operations that includes a variance from located outside the proposed permit conformance with professional the approximate original contour area. standards established to assure the restoration requirements in §§ 816.102 stability, drainage, and configuration (v) Any other demonstrations that the regulatory authority finds necessary to and 816.105 of this chapter, as necessary for the intended use of the referenced in § 816.107 of this chapter, determine that no damage will occur to site. or § 817.102 of this chapter, as natural watercourses within the (6) The proposed use is consistent referenced in § 817.107 of this chapter, with adjacent land uses and with proposed permit and adjacent areas. (10) The revegetation plan proposed for all or a portion of the permit area. existing state and local land use plans The permit may contain this variance and programs. under § 780.12(g) of this chapter requires that those portions of the only if the regulatory authority finds, in (7) The regulatory authority has writing, that you, the applicant, have provided, in writing, an opportunity of proposed permit area that are forested at the time of application or that would demonstrated compliance with the not more than 60 days to review and following requirements on the basis of revert to forest under conditions of comment on the proposed use to— a complete application: natural succession be revegetated using (i) The governing body of the unit of (1) After reclamation, the lands within general-purpose government in whose native tree and understory species to the the proposed permit area to which the jurisdiction the land is located; and extent that this requirement is not variance would apply will be suitable (ii) Any state or federal agency that inconsistent with attainment of the for an industrial, commercial, the regulatory authority, in its proposed postmining land use. residential, or public (including (11) The proposed operation complies discretion, determines to have an recreational facilities) postmining land with all other requirements of the interest in the proposed use. use. regulatory program. (2) The alternative postmining land (8) You have demonstrated that the (c) Additional requirements for permit use requirements of § 780.24(b) or proposed operation has been designed issuance. (1) The permit must to comply with the requirements of part § 784.24(b) of this chapter have been specifically identify the acreage and met. 824 of this chapter. location of the lands on which (9) You have demonstrated that the (3) After consultation with the mountaintop removal mining operations appropriate land use planning agencies, operation will not damage natural will occur within the permit area. watercourses within the proposed if any, the proposed use is shown to (2) The permit must include a constitute an equal or better economic permit and adjacent areas. You may condition prohibiting the release of any meet this requirement by demonstrating or public use. part of the bond posted for the permit (4) Federal, state, and local that the proposed operation will comply under part 800 of this chapter until with all of the following requirements: government agencies with an interest in substantial implementation of the the proposed land use have an adequate (i) The proposed operation will not approved postmining land use is increase the amount or concentration of period in which to review and comment underway. The condition must provide on the proposed use. parameters of concern in discharges to that the prohibition does not apply to (5) A qualified registered professional groundwater and surface water from the any portion of the bond that is in excess engineer has certified that the operation proposed permit area, when compared of an amount equal to the cost of has been designed in conformance with to the discharges that would occur if the regrading the site to its approximate professional standards established to operation were designed to adhere to original contour and revegetating the assure the stability, drainage, and approximate original contour restoration regraded land in the event that the configuration necessary for the intended requirements. approved postmining land use is not use of the site. (ii) The proposed operation will not implemented. (6) The highwall will be completely result in any greater adverse impact to (3) The regulatory authority must backfilled with spoil material in a the aquatic and terrestrial ecology of the clearly mark the permit issued under manner that results in a static factor of proposed permit and adjacent area than this part as including mountaintop safety of at least 1.3, using standard would occur if the area to be mined was removal mining operations. geotechnical analysis methods. restored to its approximate original (d) Subsequent permit reviews. (1) (7) Only the amount of spoil that is contour. The regulatory authority must review necessary to achieve the postmining (iii) The proposed operation will not each permit issued under this section in land use, ensure the stability of spoil result in changes in the size or accordance with § 774.10(a)(2) of this retained on the bench, and meet all frequency of peak flows from the chapter. other requirements of this chapter will proposed permit area that would cause (2) The regulatory authority may be placed off the mine bench. All spoil an increase in flooding, when compared modify the terms and conditions of a not retained on the bench will be placed to the impacts that would occur if the permit for mountaintop removal mining in accordance with §§ 816.71 and operation were designed to adhere to at any time if it determines that more 816.74 or §§ 817.71 and 817.74 of this approximate original contour restoration stringent measures are necessary to chapter. requirements. insure that the operation is conducted (8) The variance will not result in the (iv) The total volume of flow from the in compliance with the requirements of construction of a fill in a perennial or proposed permit area, during every the regulatory program. intermittent stream.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00316 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93381

(9) The proposed operation will § 778.15 of this chapter and it must accordance with the provisions of this improve the condition of the watershed show an understanding that the section and any necessary more of lands within the proposed permit and variance could not be granted without stringent requirements. adjacent areas when compared either the surface owner’s request. ■ 31. Revise § 785.25 to read as follows: with the condition of the watershed (iii) The permit application must before the proposed operation or with include a copy of the request to which § 785.25 What special provisions apply to the condition that would exist if the site paragraph (a)(10)(i) of this section refers. proposed operations on lands eligible for were mined and restored to the (11) The proposed deviations from the remining? approximate original contour. The premining surface configuration are (a) This section applies to you if you condition of the watershed will be necessary and appropriate to achieve intend to apply for a permit to conduct deemed improved only if you the approved postmining land use. surface coal mining operations on lands demonstrate that the following criteria (12) The revegetation plan proposed eligible for remining, as that term is will be met, relative to one of the under § 780.12(g) or § 784.12(g) of this defined in § 701.5 of this chapter. situations described in the preceding chapter requires the use of native tree (b)(1) Your application must comply sentence: and understory species to revegetate all with all applicable requirements of this (i) The amount or concentration of portions of the permit area that are subchapter. total suspended solids or other forested at the time of application or (2) In addition, to be eligible under parameters of concern in discharges to that would revert to forest under the provisions of § 773.13 of this chapter groundwater or surface water from the conditions of natural succession. This concerning unanticipated events or proposed permit area will be reduced. requirement does not apply to— conditions at remining sites, the (ii) Flood hazards within the (i) Permanent impoundments, roads, application must— watershed containing the proposed and other impervious surfaces to be (i) To the extent possible, if not permit area will be diminished by retained following the completion of otherwise addressed in the permit reduction of the size or frequency of mining and reclamation. application, identify potential peak-flow discharges from precipitation (ii) Those portions of the permit area environmental and safety problems that events or thaws. covered by the variance, but only to the could reasonably be anticipated to occur (iii) The total volume of flow from the extent that compliance with this as a result of prior mining activities proposed permit area, during every requirement would be inconsistent with within the proposed permit area. This season of the year, will not vary in a attainment of the postmining land use. identification must be based on a due way that would adversely affect any— (b) Additional requirements for permit diligence investigation that includes (A) Designated use of a surface water issuance. (1) The regulatory authority visual observations, a record review of located outside the proposed permit must specifically mark any permit past mining operations at or near the area under section 303(c) of the Clean issued under this section as containing site, environmental sampling, and any Water Act, 33 U.S.C. 1313(c), or, if there an approved variance from approximate other relevant available information, are no designated uses, any premining original contour restoration including data from prior mining use of a surface water located outside requirements. activities and remining operations on the proposed permit area; (2) The permit must include a similar sites. (B) Premining use of groundwater condition prohibiting the release of any (ii) With regard to potential located outside the proposed permit part of the bond posted for the permit environmental and safety problems area. under part 800 of this chapter until referred to in paragraph (b)(1)(i) of this (iv) The proposed operation will substantial implementation of the section, describe the measures that will result in a lesser adverse impact on the approved postmining land use is be taken to ensure that the applicable aquatic ecology of the cumulative underway. The condition must provide reclamation requirements of the impact area than would occur if the area that the prohibition does not apply to regulatory program can and will be met. to be mined was restored to its any portion of the bond that is in excess approximate original contour. of an amount equal to the cost of SUBCHAPTER J—PERFORMANCE BOND, (v) The impact on perennial and regrading the site to its approximate FINANCIAL ASSURANCE, AND INSURANCE intermittent streams within the original contour and revegetating the REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS proposed permit and adjacent areas will regraded land in the event that the be less than the impact that would occur approved postmining land use is not ■ 32. Under the authority of 30 U.S.C. if the area to be mined was restored to implemented. 1211(c)(2) and 1251(b), revise the its approximate original contour. The (c) Subsequent permit reviews. (1) The heading for subchapter J to read as set fish and wildlife enhancement measures regulatory authority must review each forth above. proposed and approved under § 780.16 permit incorporating a variance under ■ 33. Revise part 800 to read as follows: or § 784.16 of this chapter may be this section in accordance with considered in making this § 774.10(a)(2) of this chapter. PART 800—PERFORMANCE BOND, determination. (2) The regulatory authority may FINANCIAL ASSURANCE, AND (vi) The appropriate state modify the terms and conditions of a INSURANCE REQUIREMENTS FOR environmental agency has approved the permit incorporating a variance under SURFACE COAL MINING AND plan. this section at any time if it determines RECLAMATION OPERATIONS (10)(i) The owner of the surface of the that more stringent measures are lands within the proposed permit area necessary to ensure that the operations Sec. has knowingly requested, in writing, as are conducted in compliance with the 800.1 Scope and purpose. part of the application, that a variance requirements of the regulatory program. 800.4 Regulatory authority responsibilities. 800.5 Definitions. be granted. (d) Miscellaneous provision. The 800.9 What requirements apply to (ii) The request to which paragraph regulatory authority may grant variances alternative bonding systems? (a)(10)(i) of this section refers must be in accordance with this section only if 800.10 Information collection. made separately from any surface owner it has promulgated specific rules to 800.11 When and how must I file a consent given for the operations under govern the granting of variances in performance bond?

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00317 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93382 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

800.12 What types of performance bond are bond amount as acreage in the permit payable only to the regulatory authority acceptable? area is revised or when other relevant upon presentation. 800.13 What is the liability period for a conditions change, in accordance with (5) A perfected, first-lien security performance bond? § 800.15 of this part. In addition, the interest in real property in favor of the 800.14 How will the regulatory authority regulatory authority. determine the amount of performance regulatory authority must determine the bond required? amount of financial assurance required (6) Other securities with a rating of 800.15 When must the regulatory authority to ensure long-term treatment of ‘‘A’’ or higher from either Moody’s adjust the bond amount and when may discharges under § 800.18 of this part, Investors Service or Standard and Poor’s I request adjustment of the bond monitor trust performance, and require or an equivalent rating issued by any amount? adjustments of the financial assurance other nationally recognized statistical 800.16 What are the general terms and as necessary. rating organization registered with the conditions of the performance bond? (d) The regulatory authority may Securities and Exchange Commission, 800.17 [Reserved] accept a self-bond if the requirements of endorsed to the order of, and placed in 800.18 What special provisions apply to the possession of, the regulatory financial guarantees for treatment of § 800.23 of this part and any additional long-term discharges? requirements in the regulatory program authority. 800.20 What additional requirements apply are met. However, a state or tribal Financial assurance is a type of to surety bonds? regulatory program need not authorize alternative bonding system that consists 800.21 What additional requirements apply the use of self-bonds. of a trust, an annuity, or a combination to collateral bonds? (e) The regulatory authority must thereof. 800.23 What additional requirements apply release liability under a bond or Self-bond means an indemnity to self-bonds? financial assurance instrument in agreement in a sum certain executed by 800.30 When may I replace a performance the applicant or by the applicant and bond or financial assurance and when accordance with §§ 800.40 through 800.44 of this part. any corporate guarantor and made must I do so? payable to the regulatory authority, with 800.40 How do I apply for release of all or (f) If the conditions specified in part of a performance bond? § 800.50 of this part occur, the or without separate surety. 800.41 How will the regulatory authority regulatory authority must take Surety bond means an indemnity process my application for bond release? appropriate action to cause all or part of agreement in a sum certain payable to 800.42 What are the criteria for bond a bond or financial assurance to be the regulatory authority, executed by the release? forfeited in accordance with procedures permittee as principal, which is 800.43 When and how must the regulatory of that section. supported by the performance guarantee authority provide notification of its of a corporation licensed to do business decision on a bond release application? (g) The regulatory authority must require in the permit that adequate bond as a surety in the state where the 800.44 Who may file an objection to a bond operation is located. release application and how must the and financial assurance coverage be in regulatory authority respond to an effect at all times. Except as provided in § 800.9 What requirements apply to objection? § 800.30(b) of this part, operating alternative bonding systems? 800.50 When and how will a performance without adequate bond or financial (a) Criteria for approval. OSMRE may bond be forfeited? assurance is a violation of these rules 800.60 What liability insurance must I approve an alternative bonding system and the terms and conditions of the as part of a state or federal regulatory carry? permit. 800.70 What special bonding provisions program if the system will achieve the apply to anthracite operations in § 800.5 Definitions. following objectives and purposes of the Pennsylvania? bonding program: Collateral bond means an indemnity Authority: 30 U.S.C. 1201 et seq. (1) The alternative must assure that agreement in a sum certain, executed by the regulatory authority will have § 800.1 Scope and purpose. the permittee as principal, which is available sufficient money to complete supported by the deposit with the This part sets forth the minimum the reclamation plan for any areas regulatory authority of one or more of requirements for filing and maintaining which may be in default at any time, the following: bonds, financial assurances, and except as provided in paragraphs (c) and (1) A cash account, which must be the liability insurance policies for surface (d) of this section. deposit of cash— coal mining and reclamation operations (2) The alternative must provide a under regulatory programs in (i) In one or more federally-insured or substantial economic incentive for the accordance with the Act. equivalently protected accounts, permittee to comply with all payable only to the regulatory authority reclamation provisions. § 800.4 Regulatory authority upon demand; or (b) Relationship to other bonding responsibilities. (ii) Directly with the regulatory regulations. (1) The alternative bonding (a) The regulatory authority must authority. system will apply in lieu of the prescribe and furnish forms for filing (2) Negotiable bonds of the United requirements of §§ 800.12 through performance bonds and financial States, a state, or a municipality, 800.23 of this part, with the exception assurances. endorsed to the order of, and placed in of those provisions of § 800.18 of this (b) The regulatory authority must the possession of, the regulatory part that apply to financial assurances prescribe by regulation terms and authority. established to guarantee long-term conditions for performance bonds, (3) Negotiable certificates of deposit, treatment of discharges, to the extent financial assurances, and liability made payable or assigned to the specified in the regulatory program insurance policies. regulatory authority and placed in its provisions establishing the alternative (c) The regulatory authority must possession or held by a federally- bonding system and the terms of determine the amount of the bond for insured bank. approval under part 732 of this chapter. each area to be bonded, in accordance (4) An irrevocable letter of credit of (2) The alternative bonding system with § 800.14 of this part. The any bank organized or authorized to must include appropriate conforming regulatory authority also must adjust the transact business in the United States, modifications to the bond release

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00318 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93383

provisions of §§ 800.40 through 800.44 (iii) An alternative bonding system, required to respond to, a collection of of this part and the bond forfeiture other than a financial assurance under information unless it displays a provisions of § 800.50 of this part. § 800.18 of this part, that we approved currently valid OMB control number. (c) Partial alternative bonding as part of a regulatory program under Send comments regarding burden systems. An alternative bonding system subchapter T of this chapter before estimates or any other aspect of this may be structured to include only January 19, 2017 must continue to collection of information, including certain phases of mining and provide coverage for long-term suggestions for reducing the burden, to reclamation under § 800.42 of this part, treatment of discharges from operations the Office of Surface Mining provided that the other phases of included within the system if the Reclamation and Enforcement, mining and reclamation are covered by permittee does not make the cash Information Collection Clearance one of the types of bond listed in contribution required by the state Officer, Room 203–SIB, 1951 § 800.12 of this part. program counterpart to paragraph (d)(1) Constitution Avenue NW., Washington, (d) Discharges that require long-term of this section, unless the permittee DC 20240. treatment. (1) Except as provided in posts a separate financial assurance, paragraphs (d)(2) and (3) of this section, collateral bond, or surety bond to cover § 800.11 When and how must I file a a discharge requiring long-term that liability. performance bond? treatment is not eligible for coverage (iv) Paragraphs (d)(2)(i) through (iii) of (a) After approving a permit under an alternative bonding system, this section do not apply to an application submitted under subchapter other than a financial assurance under alternative bonding system that we G of this chapter, the regulatory § 800.18 of this part, unless the approved as part of a regulatory program authority may not issue the permit until permittee contributes cash in an amount under subchapter T of this chapter if the you, the permit applicant, file one of the equal to the present value of all costs system that we approved includes an following: that the regulatory authority estimates exclusion for coverage of discharges that (1) A performance bond or bonds for that the alternative bonding system will require long-term treatment. the entire permit area; incur to treat the discharge for as long (3) An alternative bonding system to (2) A cumulative bond schedule and as the discharge requires active or which paragraphs (d)(1) and (2) of this the performance bond required for full passive treatment, taking into account section apply may elect to provide reclamation of the initial area to be the expenses listed in § 800.18(c)(2)(i) secondary coverage for long-term disturbed; or through (v) of this part. If the alternative treatment of discharges when the (3) An incremental bond schedule and bonding system will receive interest or permittee posts a financial assurance, the performance bond required for the other earnings on the cash contribution, collateral bond, or surety bond to cover first increment in the schedule. the regulatory authority may deduct the anticipated treatment costs in lieu of (b) The bond or bonds that you file present value of those estimated making the cash contribution required under paragraph (a) of this section must earnings from the present value of all by paragraph (d)(1) of this section to be— estimated expenses when calculating retain or obtain primary coverage under (1) In an amount determined under the amount of the required cash the alternative bonding system. The § 800.14 of this part. contribution. regulatory authority must establish (2) On a form prescribed and (2)(i) The regulatory authority must terms and conditions for the secondary furnished by the regulatory authority. amend an alternative bonding system, coverage. (3) Made payable to the regulatory other than a financial assurance under authority. § 800.18 of this part, that we approved § 800.10 Information collection. (4) Conditioned upon the faithful as part of a regulatory program under In accordance with 44 U.S.C. 3501 et performance of all the requirements of subchapter T of this chapter before seq., the Office of Management and the regulatory program and the permit, January 19, 2017 to specify that any Budget (OMB) has approved the including the reclamation plan. permittee responsible for a discharge information collection requirements of (c) If the bond or bonds filed under requiring long-term treatment must this part and assigned it control number paragraph (a) of this section cover only make the cash contribution required 1029–0043. The regulatory authority an identified increment of land within under paragraph (d)(1) of this section if uses information collected under this the permit area upon which you will the permittee elects to retain coverage of part to ensure that bond, insurance, and initiate and conduct surface coal mining discharge treatment under the financial assurance instruments are operations during the initial term of the alternative bonding system. valid and meet all requirements of permit, you must— (ii) An alternative bonding system, section 509 of SMCRA, which requires (1) Identify the initial and successive other than a financial assurance under that persons planning to conduct areas or increments for bonding on the § 800.18 of this part, that we approved surface coal mining operations first post permit application map submitted as part of a regulatory program under a performance bond to guarantee under part 780 or part 784 of this subchapter T of this chapter before fulfillment of all reclamation obligations chapter and specify the bond amount to January 19, 2017 must continue to under the approved permit. The be provided for each area or increment. provide coverage for long-term regulatory authority also uses (2) Ensure that independent treatment of discharges from operations information collected under this part to increments are of sufficient size and included within the system until we ensure compliance with the bond configuration to provide for efficient approve the program amendment to release requirements and procedures of reclamation operations should which paragraph (d)(2)(i) of this section section 519 of SMCRA, the liability reclamation by the regulatory authority refers and the permittee makes the cash insurance requirements of section 507(f) become necessary pursuant to § 800.50 contribution required by the state of SMCRA, and bond forfeiture of this part. program counterpart to paragraph (d)(1) requirements and procedures. Persons (3) File additional bond or bonds with of this section, unless the permittee planning to conduct surface coal mining the regulatory authority to cover each posts a separate financial assurance, operations must respond to obtain a succeeding increment before you collateral bond, or surety bond to cover benefit. A federal agency may not initiate and conduct surface coal mining that liability. conduct or sponsor, and you are not operations on that increment. The bond

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00319 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93384 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

or bonds must comply with paragraph extended liability may be separated (d) The total performance bond (b) of this section. from the original area and bonded initially posted for the entire area under (d) You may not disturb any surface separately with the approval of the one permit may not be less than area or extend any vertical underground regulatory authority, with the following $10,000. mine shaft or other vertical provisos: (e) The permittee’s financial underground mine opening for which a (1) These areas must be limited in responsibility under § 817.121(c) of this performance bond is required before the extent and not constitute a scattered, chapter for repairing or compensating regulatory authority accepts the intermittent, or checkerboard pattern of for material damage resulting from performance bond required for that area failure. subsidence may be satisfied by the or extension. (2) The regulatory authority must liability insurance policy required include any necessary access roads or under § 800.60 of this part. § 800.12 What types of performance bond routes in the area under extended are acceptable? liability. § 800.15 When must the regulatory (a) Except as provided in paragraphs (c) If the regulatory authority authority adjust the performance bond (b) through (d) of this section, the approves a long-term, intensive amount and when may I request adjustment regulatory authority may allow you to agricultural postmining land use, the of the bond amount? post any of the following types of revegetation responsibility period (a) The regulatory authority must performance bond: specified under § 816.115 or § 817.115 adjust the amount of performance bond (1) A surety bond; of this chapter will start on the date of required and, if needed, the terms of the (2) A collateral bond; initial planting for the long-term acceptance when— (3) A self-bond; or agricultural use. (1) The area requiring bond coverage (4) A combination of any of these (d)(1) The bond liability of the increases or decreases. types of performance bond. permittee includes only those actions (2) The unit cost or scope of future (b) An alternative bonding system that the permittee is required to perform reclamation changes as a result of approved under § 800.9 of this part may under the permit and regulatory technological advances, revisions to the accept either more or fewer types of program to complete the reclamation operation or reclamation plans in the performance bond than those listed in plan for the area covered by the bond. permit, or external factors. The paragraph (a) of this section. (2) The performance bond does not regulatory authority may specify (c) To guarantee long-term treatment cover implementation of the approved periodic times or set a schedule for of a discharge under § 800.18 of this postmining land use or uses. The reevaluating and adjusting the bond part, the regulatory authority may permittee is responsible only for amount to fulfill this requirement. accept a— restoring the site to conditions capable (b) The permittee may request at any (1) Financial assurance; of supporting the uses specified in time that the regulatory authority reduce (2) Collateral bond; or § 816.133 or § 817.133 of this chapter. the amount of the performance bond (3) Surety bond. (3) Performance bond liability for (d) The regulatory authority may based upon submission of evidence that prime farmland historically used for accept any type of performance bond the permittee’s method of operation or cropland includes meeting the listed in paragraph (a) of this section, other circumstances will reduce the productivity requirement specified in other than a self-bond, to guarantee estimated unit costs for the regulatory § 800.42(c) of this part. authority to reclaim the bonded area. restoration of the ecological function of (4) Section 800.18 of this part a perennial or intermittent stream under (c) Bond reductions under paragraphs specifies the liability for long-term (a) and (b) of this section are not subject §§ 780.28(e) and (g), 784.28(e) and (g), treatment of discharges. 816.57(g), and 817.57(g) of this chapter. to the bond release requirements and § 800.14 How will the regulatory authority procedures of §§ 800.40 through 800.44 § 800.13 What is the liability period for a determine the amount of performance bond of this part. performance bond? required? (d) The regulatory authority may not (a)(1) Liability under the performance (a) The regulatory authority must use the provisions of this section to bond will be for the duration of the determine the amount of the reduce the amount of the performance surface coal mining and reclamation performance bond required for the bond to reflect changes in the cost of operation and for a period coincident permit or permit increment based upon, reclamation resulting from completion with the period of extended but not limited to— of activities required under the responsibility for successful (1) The requirements of the permit, reclamation plan. Bond reduction for revegetation under § 816.115 or including the reclamation plan. completed reclamation activities must § 817.115 of this chapter or until (2) The probable difficulty of comply with the bond release achievement of the reclamation reclamation, giving consideration to the requirements and procedures of requirements of the regulatory program topography, geology, hydrology, and §§ 800.40 through 800.44 of this part. and the permit, whichever is later. revegetation potential of the permit area. (e) Before making a bond adjustment, (2) With the approval of the regulatory (3) The estimated reclamation costs the regulatory authority must— authority, you may post a performance submitted by the permit applicant. (1) Notify the permittee, the surety, bond to guarantee specific phases of (b) The amount of the performance and any person with a property interest reclamation within the permit area, bond must be sufficient to assure the in collateral who has requested provided that the sum of the phase completion of the reclamation plan if notification under § 800.21(f) of this part bonds posted equals or exceeds the total the work has to be performed by a third of any proposed adjustment to the bond performance bond amount required party under contract with the regulatory amount; and under §§ 800.14 and 800.15 of this part. authority in the event of forfeiture. (2) Provide the permittee an The scope of work to be guaranteed and (c) The amount of financial assurance, opportunity for an informal conference the liability assumed under each phase collateral bond, or surety bond required on the adjustment. bond must be specified in detail. to guarantee long-term treatment of (f) In the event that an approved (b) Isolated and clearly defined discharges must be determined in permit is revised in accordance with portions of the permit area requiring accordance with § 800.18 of this part. subchapter G of this chapter, the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00320 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93385

regulatory authority must review the surface water and discharges to and areas used in support of those bond amount for adequacy and, if groundwater. facilities; and necessary, require adjustment of the (2) This section also applies whenever (v) Administrative costs borne by the bond amount to conform to the permit information available to the regulatory regulatory authority. as revised. This provision may not be authority documents that a discharge of (d) Requirements for financial used to reduce bond amounts on the the nature described in paragraph (a)(1) assurances. (1) The trust or annuity basis of completion of reclamation of this section will develop in the must be established in a manner that activities, in whole or in part. future, provided that the quantity and guarantees that sufficient moneys will (g) The regulatory authority must quality of the future discharge can be be available when needed to pay for— require that the permittee post a determined with reasonable probability. (i) Treatment of discharges in financial assurance, collateral bond, or (3) Paragraphs (a)(1) and (2) of this perpetuity, unless the permittee surety bond in accordance with § 800.18 section apply only to discharges that are demonstrates, and the regulatory of this part whenever it identifies a not anticipated at the time of permit authority finds, based upon available discharge that will require long-term application approval. Those paragraphs evidence, that treatment will be needed treatment. do not authorize approval of a permit for a lesser time, either because the (h) The regulatory authority may not application for a proposed operation discharge will attenuate or because its reduce the bond amount when the that anticipates creating a discharge for quality will improve. The regulatory permittee does not restore the which long-term treatment would be authority may accept arrangements that approximate original contour as required. allow the permittee to build the amount required or when the reclamation plan (4) As provided in § 800.18(g) of this of the trust or annuity over time, does not reflect the level of reclamation part, the regulatory authority must provided— required under the regulatory program. require adjustment of the bond amount (A) The permittee continues to treat whenever it becomes aware of a the discharge during that time; and § 800.16 What are the general terms and (B) The regulatory authority retains all conditions of a performance bond? situation described in paragraph (a)(1) or (2) of this section. performance bonds posted for the (a) The performance bond must be in permit or permit increment until the an amount determined by the regulatory (b) Acceptable bonding mechanisms. (1) Except as provided in paragraph trust or annuity reaches a self-sustaining authority as provided in § 800.14 of this level as determined by the regulatory part. (b)(2) of this section, you, the permittee, must post a financial assurance, a authority. (b) The performance bond must be (ii) Maintenance, renovation, and collateral bond, or a surety bond to payable to the regulatory authority. replacement of treatment and support guarantee treatment or abatement of (c) The performance bond must be facilities as needed. discharges requiring long-term conditioned upon faithful performance (iii) Final reclamation of the sites treatment. of all the requirements of the regulatory upon which treatment facilities are (2) Operations with discharges in program and the approved permit, located and areas used in support of states with an alternative bonding including completion of the reclamation those facilities. plan. system (other than a financial (iv) Administrative costs borne by the (d) The duration of the bond must be assurance) approved under subchapter regulatory authority or trustee to for the time provided in § 800.13 of this T of this chapter must comply with the implement paragraphs (d)(1)(i) through part. requirements of the applicable (iii) of this section. (e) The bond must provide a alternative bonding system. (2) The regulatory authority must mechanism for a bank, surety, or other (c) Calculation of amount of financial require that the investment portfolio responsible financial entity to give assurance or performance bond. (1) If held by the trust or annuity prudently prompt notice to the regulatory you elect to post a financial assurance account for: authority and the permittee of any under paragraph (b)(1) of this section, (i) The expected duration of the action filed alleging the insolvency or the regulatory authority must calculate treatment obligation; bankruptcy of the surety, the bank, or the amount of financial assurance (ii) The need to provide a guarantee other responsible financial entity, or required in the manner provided in of uninterrupted treatment; and alleging any violations that would result paragraph (d) of this section. (iii) Whether any other financial in suspension or revocation of the firm’s (2) If you elect to post a collateral guarantee covers a portion of the charter or license to do business. bond or surety bond under paragraph treatment obligation. If the financial (b)(1) of this section, the bond amount § 800.17 [Reserved] assurance will provide the only must be no less than the present value financial guarantee of treatment, the § 800.18 What special provisions apply to of the funds needed to pay for— regulatory authority must require that financial guarantees for long-term treatment (i) Treatment of the discharge in the trust or annuity hold a low-risk of discharges? perpetuity, unless you demonstrate, and investment portfolio. (a) Applicability. (1) This section the regulatory authority finds, based (3) In determining the required applies to any discharge resulting from upon available evidence, that treatment amount of the trust or annuity, the surface coal mining operations, will be needed for a lesser time, either regulatory authority must base present underground mining activities, or other because the discharge will attenuate or value calculations on a conservative activities or facilities regulated under because its quality will improve; anticipated real rate of return on the this title whenever both the discharge (ii) Treatment of the discharge during proposed investments. The rate of and the need to treat the discharge the time required to forfeit and collect return must be net of management or continue or may reasonably be expected the bond; trustee fees. to continue after the completion of (iii) Maintenance, renovation, and (4)(i) The trust or annuity must be in mining, backfilling, grading, and the replacement of treatment and support a form approved by the regulatory establishment of revegetation. For facilities as needed; authority and contain all terms and purposes of this section, the term (iv) Final reclamation of sites upon conditions required by the regulatory discharge includes both discharges to which treatment facilities are located authority.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00321 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93386 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(ii) When appropriate, the terms and (9) The permittee or the regulatory (1) The financial assurance is both in conditions must include a mechanism authority must procure a new trustee place and fully funded. whereby the regulatory authority may when the trustee’s administration of the (2) The permit or permit increment require the permittee to grant the trustee trust or annuity is unsatisfactory to the fully meets all applicable reclamation the real and personal property rights regulatory authority. requirements, with the exception of the necessary to continue treatment in the (e) Termination of a financial discharge and the presence of associated event that the permittee ceases assurance instrument. Termination of a treatment and support facilities. treatment. These rights include, but are trust or annuity may occur only as (3) The financial assurance will serve not limited to, access to and use of the specified by the regulatory authority as the bond for reclamation of the treatment site and ownership of upon a determination that one of the portion of the permit area required for treatment facilities and equipment. following situations exists— postmining water treatment facilities (5) The trust or annuity must (1) No further treatment or other and access to those facilities. irrevocably establish the regulatory reclamation measures are necessary, in which case paragraph (h) of this section § 800.20 What additional requirements authority as the beneficiary of the trust apply to surety bonds? or of the proceeds from the annuity for will apply. the purpose of treating mine drainage or (2) A satisfactory replacement (a) A surety bond must be executed by other mining-related discharges to financial assurance or bond has been the permittee and a corporate surety protect the environment and users of posted in accordance with paragraph (g) licensed to do business in the state surface water. of this section. where the operation is located. (6) The trust or annuity must provide (3) The terms of the trust or annuity (b) Surety bonds must be that disbursement of money from the establish conditions for termination and noncancellable during their terms, trust or annuity may be made only upon those conditions have been met. except that surety bond coverage for (f) Regulatory authority review and written authorization of the regulatory undisturbed lands may be cancelled adjustment of amount of financial authority or according to a schedule with the prior consent of the regulatory assurance. (1) The regulatory authority established in the agreement authority. Within 30 days after receipt must establish a schedule for reviewing accompanying the trust or annuity. of a notice to cancel bond, the the performance of the trustee, the (7) A financial institution or company regulatory authority will advise the adequacy of the trust or annuity, and the serving as a trustee or issuing an surety whether the bond may be accuracy of the assumptions upon annuity must be one of the following: cancelled on an undisturbed area. which the trust or annuity is based. This (c) The regulatory authority may (i) A national bank chartered by the review must occur on at least an annual decline to accept a surety bond if, in the Office of the Comptroller of the basis. judgment of the regulatory authority, the Currency. (2) The regulatory authority must surety does not have resources sufficient (ii) An operating subsidiary of a require that the permittee provide to cover the default of one or more national bank chartered by the Office of additional resources to the trust or mining companies for which the surety the Comptroller of the Currency. annuity whenever the review conducted has provided bond coverage. (iii) A bank or trust company under paragraph (f)(1) of this section or chartered by the state in which the any other information available to the § 800.21 What additional requirements operation is located. regulatory authority at any time apply to collateral bonds? (iv) An insurance company licensed demonstrates that the financial (a) Collateral bonds, except for letters or authorized to do business in the state assurance is no longer adequate to meet of credit, cash accounts, and real in which the operation is located or the purpose for which it was property, are subject to the following designated by the pertinent regulatory established. conditions: body of that state as an eligible surplus (g) Replacement of financial (1) The regulatory authority must lines insurer. assurance. With the approval of the keep custody of collateral deposited by (v) Any other financial institution or regulatory authority, a financial the applicant or permittee until company authorized to do business in assurance may be replaced in authorized for release or replacement as the state in which the operation is accordance with the provisions of provided in this part. located, provided that— § 800.30(a) of this part. (2) The regulatory authority must (A) The institution’s or company’s (h) Release of liability. Release of value collateral at its current market activities are examined or regulated by reclamation liabilities and obligations value, not at face value. a state or federal agency; and under a financial assurance is subject to (3) The regulatory authority must (B) The institution or company has the applicable bond release provisions require that certificates of deposit be trust powers satisfactory to the of §§ 800.40 through 800.44 of this part. made payable to or assigned to the regulatory authority. (i) Effect of financial assurance on regulatory authority, both in writing and (8) The regulatory authority may release of bond. The permittee may upon the records of the bank or other allow a not-for-profit organization under apply for, and the regulatory authority financial institution issuing the section 501(c)(3) of the Internal Revenue may approve, release of any bonds certificates. If assigned, the regulatory Code to serve as a trustee if— posted for the permit or, if the permittee authority must require the bank or other (i) The organization maintains uses incremental bonding, the permit financial institution issuing the appropriate professional liability increment for which the regulatory certificate to waive all rights of setoff or insurance coverage; and authority has approved a financial liens against the certificate. (ii) The regulatory authority assurance under this section, provided (4) The regulatory authority may not determines that the organization has that the permittee and the regulatory accept an individual certificate of demonstrated the financial and authority comply with the bond release deposit in an amount in excess of the technical capability to manage trusts requirements and procedures in maximum amount insured by the and assume day-to-day operation of the §§ 800.40 through 800.44 of this part. Federal Deposit Insurance Corporation. trust and treatment facility in the event This provision applies only if the (b) Letters of credit are subject to the of a default. following conditions exist— following conditions:

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00322 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93387

(1) The letter may be issued only by insured or equivalently protected the normal operating cycle of the a bank organized or authorized to do accounts made payable upon demand business. business in the United States; to, or deposited directly with, the Fixed assets means plants and (2) Letters of credit must be regulatory authority. The total bond, equipment, but does not include land or irrevocable during their terms. including the cash account, may not be coal in place. (3) The letter of credit must be less than the amount determined under Liabilities means obligations to payable to the regulatory authority upon § 800.14 of this part, as modified by any transfer assets or provide services to demand, in part or in full, upon receipt adjustments under § 800.15 of this part, other entities in the future as a result of from the regulatory authority of a notice less any amounts released under past transactions. of forfeiture issued in accordance with §§ 800.40 through 800.44 of this part. Net worth means total assets minus § 800.50 of this part. (2) Any interest paid on a cash total liabilities and is equivalent to (4) If the permittee has not replaced account will be retained in the account owners’ equity. a letter of credit with another letter of and applied to the bond value of the Parent corporation means a credit or other suitable bond at least 30 account unless the regulatory authority corporation which owns or controls the days before the letter’s expiration date, has approved the payment of interest to applicant. the regulatory authority must draw the permittee. Tangible net worth means net worth upon the letter of credit and use the (3) Certificates of deposit may be minus intangibles such as goodwill and cash received as a replacement bond. substituted for a cash account with the rights to patents or royalties. (c) Real property posted as a collateral approval of the regulatory authority. (b) The regulatory authority may bond must meet the following (4) The regulatory authority may not accept a self-bond from an applicant for conditions: accept an individual cash account in an a permit if all of the following (1) The applicant or permittee must amount in excess of the maximum conditions are met by the applicant or grant the regulatory authority a first amount insured by the Federal Deposit its parent corporation guarantor: mortgage, first deed of trust, or perfected Insurance Corporation. (1) The applicant designates a suitable first-lien security interest in real (e)(1) The regulatory authority must agent to receive service of process in the property with a right to sell or otherwise determine the bond value of all state where the proposed surface coal dispose of the property in the event of collateral posted as assurance under this mining operation is to be conducted. forfeiture under § 800.50 of this part. section. The bond value must reflect (2) The applicant has been in (2) In order for the regulatory legal and liquidation fees, as well as continuous operation as a business authority to evaluate the adequacy of value depreciation, marketability, and entity for a period of not less than 5 the real property offered to satisfy fluctuations that might affect the net years. Continuous operation means that collateral requirements, the applicant or cash available to the regulatory business was conducted over the 5 years permittee must submit a schedule of the authority to complete reclamation. immediately preceding the date of real property to be mortgaged or pledged (2)(i) The regulatory authority may application. to secure the obligations under the evaluate the bond value of collateral at (i) The regulatory authority may allow indemnity agreement. The schedule any time. a joint venture or syndicate with less must include— (ii) The regulatory authority must than 5 years of continuous operation to (i) A description of the property; evaluate the bond value of collateral as (ii) The fair market value as qualify under this requirement, if each part of the permit renewal process. member of the joint venture or syndicate determined by an independent appraisal (iii) The regulatory authority must has been in continuous operation for at conducted by a certified appraiser; and increase or decrease the performance least 5 years immediately preceding the (iii) Proof of possession and title to bond amount required if an evaluation date of application. the real property. conducted under paragraph (e)(2)(i) or (ii) When calculating the period of (3) The property may include land (ii) of this section determines that the continuous operation, the regulatory that is part of the permit area. However, bond value of collateral has increased or authority may exclude past periods of land pledged as collateral for a bond decreased. interruption to the operation of the under this section may not be disturbed (iv) In no case may the bond value of business entity that were beyond the under any permit while it is serving as collateral exceed the market value of the applicant’s control and that do not affect security under this section. collateral. (4) The appraised fair market value (f) Persons who have an interest in the applicant’s likelihood of remaining determined under paragraph (c)(2)(ii) of collateral posted as a bond, and who in business during the proposed surface this section is not the bond value of the desire notification of actions pursuant to coal mining and reclamation operations. real estate. In calculating the bond value the bond, must request such notification (3) The applicant submits financial of real estate, the regulatory authority in writing to the regulatory authority at information in sufficient detail to show must discount the appraised fair market the time that the collateral is offered. that the applicant meets one of the value to account for the administrative following criteria: costs of liquidating real estate, the § 800.23 What additional requirements (i) The applicant has a current rating probability of a forced sale in the event apply to self-bonds? for its most recent bond issuance of ‘‘A’’ of forfeiture, and a contingency reserve (a) Definitions. For the purposes of or higher as issued by either Moody’s for unanticipated costs including, but this section only: Investors Service or Standard and Poor’s not limited to, unpaid real estate taxes, Current assets means cash or other or an equivalent rating from any other liens, property maintenance expenses, assets or resources that are reasonably nationally recognized statistical rating and insurance premiums. expected to be converted to cash or sold organization registered with the (d) Cash accounts are subject to the or consumed within one year or within Securities and Exchange Commission. following conditions: the normal operating cycle of the (ii) The applicant has a tangible net (1) The regulatory authority may business. worth of at least $10 million, a ratio of authorize the permittee to supplement Current liabilities means obligations total liabilities to net worth of 2.5 times the bond through the establishment of a that are reasonably expected to be paid or less, and a ratio of current assets to cash account in one or more federally or liquidated within one year or within current liabilities of 1.2 times or greater.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00323 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93388 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(iii) The applicant’s fixed assets in the regulatory authority may require the under state law, the indemnity United States total at least $20 million, applicant to submit any information agreement, when under forfeiture, will and the applicant has a ratio of total specified in paragraph (b)(3) of this operate as a judgment against those liabilities to net worth of 2.5 times or section in order to determine the parties liable under the indemnity less, and a ratio of current assets to financial capabilities of the applicant. agreement. current liabilities of 1.2 times or greater. (d)(1) For the regulatory authority to (f) A regulatory authority may require (4) The applicant submits— accept an applicant’s self-bond, the total self-bonded applicants and parent and (i) Financial statements for the most amount of the outstanding and proposed non-parent corporate guarantors to recently completed fiscal year self-bonds of the applicant for surface submit an update of the information accompanied by a report prepared by an coal mining and reclamation operations required under paragraphs (b)(3) and (4) independent certified public accountant may not exceed 25 percent of the of this section within 90 days after the in conformity with generally accepted applicant’s tangible net worth in the close of each fiscal year following the accounting principles and containing United States. issuance of the self-bond or corporate the accountant’s audit opinion or review (2) For the regulatory authority to guarantee. opinion of the financial statements with accept a corporate guarantee, the total (g) If at any time during the period no adverse opinion; amount of the parent corporation when a self-bond is posted, the financial (ii) Unaudited financial statements for guarantor’s present and proposed self- conditions of the applicant or the parent completed quarters in the current fiscal bonds and guaranteed self-bonds for or non-parent corporate guarantor year; and surface coal mining and reclamation change so that the criteria of paragraphs (iii) Additional unaudited information operations may not exceed 25 percent of (b)(3) and (d) of this section are not as requested by the regulatory authority. the guarantor’s tangible net worth in the satisfied, the permittee must notify the (c)(1) The regulatory authority may United States. regulatory authority immediately and accept a written guarantee for an (3) For the regulatory authority to post an alternate form of bond in the applicant’s self-bond from a parent accept a non-parent corporate guarantee, same amount as the self-bond within 90 corporation guarantor, if the guarantor the total amount of the non-parent days. Should the permittee fail to post meets the conditions of paragraphs corporate guarantor’s present and an adequate substitute bond, the (b)(1) through (4) of this section as if it proposed self-bonds and guaranteed provisions of § 800.30(b) of this part will were the applicant. This written self-bonds may not exceed 25 percent of apply. guarantee will be referred to as a the guarantor’s tangible net worth in the ‘‘corporate guarantee.’’ The terms of the United States. § 800.30 When may I replace a corporate guarantee must provide for (e) If the regulatory authority accepts performance bond or financial assurance the following: an applicant’s self-bond, the applicant and when must I do so? (i) If the applicant fails to complete must submit an indemnity agreement (a) Replacement upon request of the reclamation plan, the guarantor subject to the following requirements: permittee. (1) The regulatory authority must do so or the guarantor will be (1) The indemnity agreement must be may allow you, the permittee, to replace liable under the indemnity agreement to executed by all persons and parties who existing performance bonds and provide funds to the regulatory are to be bound by it, including the financial assurances with other authority sufficient to complete the parent corporation guarantor. It must performance bonds and financial reclamation plan, but not to exceed the bind each party jointly and severally. assurances that provide equivalent bond amount. (2) Corporations applying for a self- coverage. (ii) The corporate guarantee will bond, and parent and non-parent (2) The regulatory authority may not remain in force unless the guarantor corporations guaranteeing an applicant’s release any existing performance bond sends notice of cancellation by certified self-bond, must submit an indemnity or financial assurance until you have mail to the applicant and to the agreement signed by two corporate submitted, and the regulatory authority regulatory authority at least 90 days in officers who are authorized to bind their has approved, an acceptable advance of the cancellation date, and corporations. A copy of the replacement. the regulatory authority accepts the authorization must be provided to the (b) Replacement by order of the cancellation. regulatory authority along with an regulatory authority. (1) Upon the (iii) The cancellation may be accepted affidavit certifying that the agreement is incapacity of a bank, surety, or other by the regulatory authority if the valid under all applicable federal and responsible financial entity by reason of applicant obtains suitable replacement state laws. In addition, the guarantor bankruptcy, insolvency, or suspension bond before the cancellation date or if must provide a copy of the corporate or revocation of a charter or license, you the lands for which the self-bond, or authorization demonstrating that the will be deemed to be without bond portion thereof, was accepted have not corporation may guarantee the self-bond coverage and you must promptly notify been disturbed. and execute the indemnity agreement. the regulatory authority. (2) The regulatory authority may (3) If the applicant is a partnership, (2) Upon receipt of notification from accept a written guarantee for an joint venture or syndicate, the a bank, surety, or other responsible applicant’s self-bond from any corporate agreement must bind each partner or financial entity under § 800.16(e) of this guarantor, whenever the applicant party who has a beneficial interest, part or from you under paragraph (b)(1) meets the conditions of paragraphs directly or indirectly, in the applicant. of this section, the regulatory authority (b)(1), (2), and (4) of this section, and (4) Pursuant to § 800.50 of this part, must issue an order requiring that you the guarantor meets the conditions of the applicant and the parent or non- submit replacement bond or financial paragraphs (b)(1) through (4) of this parent corporate guarantor will be assurance coverage within a reasonable section. This written guarantee will be required to complete the approved time, not to exceed 90 days. referred to as a ‘‘non-parent corporate reclamation plan for the lands in default (3) If you do not post adequate bond guarantee.’’ The terms of this guarantee or to pay to the regulatory authority an or financial assurance by the end of the must provide for compliance with the amount necessary to complete the time allowed under paragraph (b)(2) of conditions of paragraphs (c)(1)(i) approved reclamation plan, not to this section, the regulatory authority through (iii) of this section. The exceed the bond amount. If permitted must issue a notice of violation

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00324 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93389

requiring that you cease surface coal application may be submitted pursuant analysis of the monitoring data mining operations immediately. The to § 800.44 of this section and the submitted under §§ 816.35 through notice of violation also must require that location at which the application may 816.37 or §§ 817.35 through 817.37 of you either— be reviewed. this chapter before releasing any bond (i) Post adequate bond or financial (4) Copies of letters that you have sent amount. assurance coverage before you may to adjoining property owners, local (ii) The regulatory authority may not resume surface coal mining operations; governmental bodies, planning agencies, approve a bond release application if or sewage and water treatment authorities, the analysis conducted under paragraph (ii) Reclaim the site in accordance and water companies in the locality of (a)(2)(i) of this section and other with the provisions of § 816.132 or the surface coal mining and reclamation relevant information indicate that the § 817.132 of this chapter. operation, notifying them of your operation is causing material damage to intention to seek release of the bond. the hydrologic balance outside the § 800.40 How do I apply for release of all (5) A notarized statement certifying permit area or is likely to do so in the or part of a performance bond? that all applicable reclamation activities future. (a) When may I file an application for have been accomplished in accordance (3) If you are responsible for a bond release? You, the permittee, may with the requirements of the regulatory discharge requiring long-term treatment, file an application with the regulatory program and the approved reclamation regardless of whether the discharge authority for the release of all or part of plan. You must submit a separate emerges either on the permit area or at a performance bond only at times or certification for each application and a point that is hydrologically connected during seasons authorized by the each phase of bond release. to the permit area, you must post a regulatory authority. The times or separate financial assurance, collateral seasons appropriate for the evaluation of § 800.41 How will the regulatory authority bond, or surety bond under § 800.18 of process my application for bond release? certain types of reclamation will be this part to guarantee treatment of the established in either the regulatory (a)(1) Upon receipt of a complete discharge before any portion of the program or your permit. application for bond release, the existing performance bond for the (b) What must I include in my regulatory authority will, within 30 permit area may be released, unless the application for bond release? Each days, or as soon thereafter as weather type and amount of bond remaining application for bond release must conditions permit, conduct an after the release would be adequate to include— inspection of the site and an evaluation meet the requirements of § 800.18 of this (1) An application on a form of the reclamation work performed and part as well as any remaining land prescribed by the regulatory authority. the reclamation work remaining. A reclamation obligations. (2) All other information required by complete application for bond release is (4) If the permit area or increment the regulatory authority, which must one that includes all items required includes mountaintop removal mining include a detailed description of the under § 800.40 of this part. operations under § 785.14 of this results that you have achieved under the (2) The evaluation will consider, chapter or a variance from restoration of approved reclamation plan and an among other factors, the degree of the approximate original contour under analysis of the results of the monitoring difficulty to complete any remaining § 785.16 of this chapter, the amount of conducted under §§ 816.35 through reclamation, whether pollution of bond that may be released is subject to 816.37 or §§ 817.35 through 817.37 of surface and subsurface water is the limitation specified in § 785.14(c)(2) this chapter. occurring, the probability of future of this chapter for mountaintop removal (3) A certified copy of an occurrence of such pollution, and the mining operations or the limitation advertisement that you have placed at estimated cost of abating such pollution. specified in § 785.16(b)(2) of this (b)(1) The regulatory authority will least once a week for four successive chapter for a variance from restoration notify the surface owner, agent, or lessee weeks in a newspaper of general of the approximate original contour. before conducting the inspection and circulation in the locality of the surface (5) The bond amount described in will offer that person an opportunity to coal mining and reclamation operation. § 780.24(d)(2) or § 784.24(d)(2) of this participate with the regulatory authority You must submit the copy within 30 chapter may not be released either until in making the inspection. days after you file the application form (2) The regulatory authority may the structure is in use as part of the under paragraph (b)(1) of this section. arrange with you to allow access to the postmining land use or until the The advertisement must contain— permit area, upon request by any person structure is removed and the site upon (i) Your name. with an interest in bond release, for the which it was located is reclaimed in (ii) The permit number and approval purpose of gathering information accordance with part 816 or part 817 of date. relevant to the proceeding. this chapter. (iii) The number of acres and the (6) The regulatory authority must precise location of the land for which § 800.42 What are the criteria for bond consider the results of the evaluation you are requesting bond release. release? conducted under § 800.41(a)(2) of this (iv) The amount of the performance (a) General requirements. (1) Except part when determining the amount of bond filed and the portion for which as provided in paragraphs (a)(2) through performance bond to release. you seek release. (5) of this section, the regulatory (b) Phase I reclamation. (1) The (v) The type and dates of reclamation authority may release all or part of the regulatory authority may release a work performed. performance bond for the permit area or maximum of 60 percent of the (vi) A brief description of the results an increment thereof if the regulatory performance bond for a bonded area that you have achieved under the authority is satisfied that you have after you complete Phase I reclamation approved reclamation plan. accomplished the required reclamation for that area in accordance with the (vii) The name and address of the for the permit area or increment in approved reclamation plan. Phase I regulatory authority to which written accordance with paragraphs (b) through reclamation consists of backfilling, comments, objections, or requests for (d) of this section. grading, and establishment of drainage public hearings and informal (2)(i) The regulatory authority must control. It includes construction of the conferences on the bond release conduct a scientifically defensible trend postmining drainage pattern and stream-

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00325 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93390 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

channel configuration required by section if the lands to which the release (4) Any person who filed objections in §§ 816.56(b), 816.57(c)(1), 817.56(b), and would apply are contributing suspended writing; and 817.57(c)(1) of this chapter and solids to streamflow or runoff outside (5) Objectors who were a party to the restoration of the form of perennial and the permit area in excess of the hearing proceedings, if any. intermittent streams under §§ 816.57(e) requirements set by subchapter K of this (b) The regulatory authority will and 817.57(e) of this chapter. Soil chapter. provide notification under paragraph (a) replacement is optional for this phase. (4) The regulatory authority may not of this section— (2) The amount of performance bond release any part of the performance (1) Within 60 days after you file the that the regulatory authority retains after bond under paragraph (c)(1) of this application, if there is no public hearing Phase I release must be adequate to section until soil productivity for all under § 800.44 of this part, or ensure that the regulatory authority will prime farmland historically used for (2) Within 30 days after a public have sufficient funds for a third party to cropland on the area to which the hearing has been held under § 800.44 of complete the remaining portion of the release would apply has returned to this part. reclamation plan, including restoration levels of yield equivalent to yields from (c) If the regulatory authority of the hydrologic function and nonmined land of the same soil type in disapproves your application for release ecological function of perennial and the surrounding area under equivalent of the bond or portion thereof, the intermittent streams under § 816.57(f) management practices as determined regulatory authority must notify you, and (g) or § 817.57(f) and (g) of this from the soil survey performed under the surety, and any person with an chapter and completion of any fish and part 823 of this chapter. interest in collateral as provided in wildlife enhancement measures (5) When the regulatory authority has § 800.21(f) of this part, in writing, required in the permit in accordance approved retention of a silt dam as a stating the reasons for disapproval and with § 780.16 or § 784.16 of this chapter, permanent impoundment under recommending corrective actions in the event of forfeiture. § 816.49(b) or § 817.49(b) of this chapter, necessary to secure the release and (c) Phase II reclamation. (1) The the regulatory authority may approve allowing an opportunity for a public regulatory authority may release an Phase II bond release for the area of the hearing. additional amount of performance bond impoundment if the requirements of (d) When any application for total or after you complete Phase II reclamation, § 816.55 or § 817.55 of this chapter have partial bond release is filed with the which consists of— been met and provisions for sound regulatory authority, the regulatory (i) Soil replacement and redistribution future maintenance by the operator or authority must notify the municipality of organic materials (if not the landowner have been made with the in which the surface coal mining accomplished as part of Phase I regulatory authority. operation is located by certified mail at reclamation); (d) Phase III reclamation. (1) The least 30 days prior to the release of all (ii) Restoration of the hydrologic regulatory authority must release the or a portion of the bond. function of perennial and intermittent remaining portion of the performance streams under § 816.57(f) or § 817.57(f) § 800.44 Who may file an objection to a bond upon the completion of Phase III bond release application and how must the of this chapter; and reclamation, which consists of (iii) Successfully establishing regulatory authority respond to an successful completion of all surface coal revegetation on the area in accordance objection? mining and reclamation activities and with the approved reclamation plan, (a)(1) Any person with a valid legal expiration of the revegetation including any streamside vegetative interest that might be adversely affected responsibility period under § 816.115 or corridors required by §§ 816.56(c), by release of the bond, or the § 817.115 of this chapter. responsible officer or head of any 816.57(d), 817.56(c), and 817.57(d) of (2) The regulatory authority may not federal, state, tribal, or local this chapter. The regulatory authority fully release any performance bond governmental agency with jurisdiction must establish standards defining under provisions of this section until all by law or special expertise with respect successful establishment of vegetation applicable reclamation requirements of to any environmental, social, or for Phase II reclamation. the regulatory program and the permit (2) The amount of performance bond economic impact involved in the are fully met. Among other things, those that the regulatory authority retains after operation or which is authorized to requirements include restoration of the Phase II release must be sufficient to develop and enforce environmental ecological function of perennial and cover the cost of having a third party standards with respect to those intermittent streams under § 816.57(g) reestablish revegetation for the operations, has the right to file written or § 817.57(g) of this chapter and revegetation responsibility period under objections to the proposed bond release completion of any fish and wildlife § 816.115 or § 817.115 of this chapter. In with the regulatory authority within 30 enhancement measures required in the addition, it must be adequate to ensure days after the last publication of the permit in accordance with § 780.16 or that the regulatory authority will have notice required by § 800.40(b)(2) of this § 784.16 of this chapter. sufficient funds for a third party to part. complete the remaining portion of the § 800.43 When and how must the (2) If written objections are filed and reclamation plan, including restoration regulatory authority provide notification of a hearing is requested, the regulatory of the ecological function of perennial its decision on a bond release application? authority must inform all interested and intermittent streams under (a) The regulatory authority will parties of the time and place of the § 816.57(g) or § 817.57(g) of this chapter provide written notification of its hearing, and hold a public hearing and completion of any fish and wildlife decision on your bond release within 30 days after receipt of the enhancement measures required in the application to— request for the hearing. The regulatory permit in accordance with § 780.16 or (1) You; authority must advertise the date, time, § 784.16 of this chapter, in the event of (2) The surety (if applicable); and location of the public hearing in a forfeiture. (3) All other persons with an interest newspaper of general circulation in the (3) The regulatory authority may not in bond collateral who have requested locality for two consecutive weeks. release any part of the performance notification under § 800.21(f) of this (3) The public hearing must be held bond under paragraph (c)(1) of this part; in the locality of the surface coal mining

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00326 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93391

operation for which bond release is discharge in a manner consistent with (2) In the event the amount of sought, at the location of the regulatory § 800.18(c) of this part. performance bond forfeited is more than authority office, or at the state capital, (2) Advise the permittee and surety, if the amount necessary to complete at the option of the objector. applicable, of the conditions under reclamation, the regulatory authority (b)(1) For the purpose of the hearing which forfeiture may be avoided. Those must return the unused funds to the under paragraph (a) of this section, the conditions may include, but are not party from whom they were collected. regulatory authority has the authority to limited to— (i) Agreement by the permittee or § 800.60 What liability insurance must I administer oaths, subpoena witnesses or carry? written or printed material, compel the another party to perform reclamation (a) The regulatory authority must attendance of witnesses or the operations in accordance with a compliance schedule that meets the require the applicant to submit as part production of materials, and take of its permit application a certificate evidence including, but not limited to, conditions of the permit, the reclamation plan, and the regulatory issued by an insurance company inspection of the land affected and other authorized to do business in the United surface coal mining operations carried program and a demonstration that the party has the ability to satisfy the States certifying that the applicant has on by the applicant in the general a public liability insurance policy in vicinity. conditions; or (ii) The regulatory authority may force for the surface coal mining and (2) A verbatim record of each public allow a surety to complete the reclamation operations for which the hearing must be made, and a transcript reclamation plan, or the portion of the permit is sought. The policy must must be made available on the motion reclamation plan applicable to the provide for personal-injury and of any party or by order of the regulatory bonded phase or increment if the surety property-damage protection in an authority. can demonstrate an ability to complete amount adequate to compensate any (c) Without prejudice to the right of the reclamation in accordance with the persons injured or property damaged as an objector or the applicant for bond approved reclamation plan. Except a result of the surface coal mining and release, the regulatory authority may where the reclamation work performed reclamation operations, including the hold an informal conference as provided meets the criteria for partial bond use of explosives, and who are entitled in section 513(b) of the Act, 30 U.S.C. release under § 800.42 of this part, no to compensation under the applicable 1263(b), to resolve written objections. surety liability may be released until provisions of state law. Minimum The regulatory authority must make a successful completion of all reclamation insurance coverage for bodily injury and record of the informal conference unless under the terms of the permit, including property damage is $300,000 for each waived by all parties, which must be applicable liability periods of § 800.13 occurrence and $500,000 aggregate. accessible to all parties. The regulatory of this part. (b) The policy must be maintained in authority also must furnish all parties to (b) In the event forfeiture of the bond full force during the life of the permit the informal conference with a written is required by this section, the or any renewal thereof and the liability finding based on the informal regulatory authority shall— period necessary to complete all conference, and the reasons for the (1) Proceed to collect the forfeited reclamation operations under this finding. amount as provided by applicable laws chapter. for the collection of defaulted bonds or (c) The policy must include a rider § 800.50 When and how will a bond be requiring that the insurer notify the forfeited? other debts if actions to avoid forfeiture have not been taken, or if rights of regulatory authority whenever (a) If a permittee or operator refuses appeal, if any, have not been exercised substantive changes are made in the or is unable to conduct reclamation of within a time established by the policy, including any termination or an unabated violation, if the terms of the regulatory authority, or if such appeal, failure to renew. permit are not met, or if the permittee if taken, is unsuccessful. (d) The regulatory authority may or operator defaults on the conditions (2) Use funds collected from bond accept from the applicant, in lieu of a under which the bond was accepted, the forfeiture to complete the reclamation certificate for a public liability regulatory authority must take the plan, or the portion thereof covered by insurance policy, satisfactory evidence following action to forfeit all or part of the bond, on the permit area or from the applicant that it satisfies a bond or bonds for any permit area or increment to which the bond applies. applicable state self-insurance an increment of a permit area: (c) Upon default, the regulatory requirements approved as part of the (1)(i) Send written notification by authority may cause the forfeiture of any regulatory program and the certified mail, return receipt requested, and all bonds deposited to complete requirements of this section. to the permittee and the surety on the reclamation for which the bonds were § 800.70 What special bonding provisions bond, if any, informing them of the posted. Unless specifically limited, as apply to anthracite operations in determination to forfeit all or part of the provided in § 800.11(c) of this part, Pennsylvania? bond, including the reasons for the bond liability will extend to the entire (a) All provisions of this subchapter forfeiture and the amount to be permit area under conditions of apply to bonding and insuring forfeited. forfeiture. anthracite surface coal mining and (ii) If the amount to be forfeited under (d)(1) In the event the estimated reclamation operations in Pennsylvania paragraph (a)(1)(i) of this section is less amount forfeited is insufficient to pay except that— than the total amount of bond posted, for the full cost of reclamation, the (1) The regulatory authority must the amount forfeited must be no less permittee or operator is liable for determine specified bond limits in than the estimated total cost of remaining costs. The regulatory accordance with applicable provisions achieving the reclamation plan authority may complete, or authorize of Pennsylvania statutes, rules and requirements. For a discharge that completion of, reclamation of the regulations adopted thereunder, and requires long-term treatment, the bonded area and may recover from the implementing policies of the regulatory authority must calculate the permittee or operator all costs of Pennsylvania regulatory authority. estimated total cost of achieving the reclamation in excess of the amount (2) The period of liability for reclamation plan requirements for that forfeited. responsibility under each bond must be

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00327 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93392 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

established for those operations in 816.57 What additional performance 816.132 What actions must I take when I accordance with applicable laws of the standards apply to mining activities permanently cease mining operations? Commonwealth of Pennsylvania, rules conducted in or through a perennial or 816.133 What provisions concerning intermittent stream or within 100 feet of postmining land use apply to my and regulations adopted thereunder, a perennial or intermittent stream? operation? and implementing policies of the 816.59 How must I maximize coal recovery? 816.150 What are the general requirements Pennsylvania regulatory authority. 816.61 Use of explosives: General for haul and access roads? (b) Upon amendment of the requirements. 816.151 What additional requirements Pennsylvania permanent regulatory 816.62 Use of explosives: Preblasting apply to primary roads? program with respect to specified bond survey. 816.180 To what extent must I protect 816.64 Use of explosives: Blasting schedule. utility installations? limits and the period of revegetation 816.66 Use of explosives: Blasting signs, 816.181 What requirements apply to responsibility for anthracite surface coal warnings, and access control. support facilities? mining and reclamation operations, any 816.67 Use of explosives: Control of adverse 816.200 [Reserved] person engaging in or seeking to engage effects. Authority: 30 U.S.C. 1201 et seq. in those operations must comply with 816.68 Use of explosives: Records of additional regulations the Secretary may blasting operations. § 816.1 What does this part do? issue as are necessary to meet the 816.71 How must I dispose of excess spoil? 816.72 [Reserved] This part sets forth the minimum purposes of the Act. 816.73 [Reserved] environmental protection performance ■ 34. Lift the suspension of § 816.101, 816.74 What special requirements apply to standards for surface mining activities and revise part 816 to read as follows: the disposal of excess spoil on a under the Act. preexisting bench? § 816.2 What is the objective of this part? PART 816—PERMANENT PROGRAM 816.79 What measures must I take to PERFORMANCE STANDARDS— protect underground mines in the This part is intended to ensure that all SURFACE MINING ACTIVITIES vicinity of my surface mine? surface mining activities are conducted 816.81 How must I dispose of coal mine in an environmentally sound manner in Sec. waste? accordance with the Act. 816.1 What does this part do? 816.83 What special requirements apply to 816.2 What is the objective of this part? coal mine waste refuse piles? § 816.10 Information collection. 816.10 Information collection. 816.84 What special requirements apply to In accordance with 44 U.S.C. 3501 et coal mine waste impounding structures? 816.11 What signs and markers must I post? 816.87 What special requirements apply to seq., the Office of Management and 816.13 What special requirements apply to burning and burned coal mine waste? Budget (OMB) has approved the drilled holes, wells, and exposed 816.89 How must I dispose of noncoal mine information collection requirements of underground openings? wastes? this part and assigned it control number 816.14 [Reserved] 816.95 How must I protect surface areas 816.15 [Reserved] 1029–0047. Collection of this from wind and water erosion? information is required under section 816.22 How must I handle topsoil, subsoil, 816.97 How must I protect and enhance and other plant growth media? 515 of SMCRA, which provides that fish, wildlife, and related environmental permittees conducting surface coal 816.34 How must I protect the hydrologic- values? balance? 816.99 What measures must I take to prevent mining and reclamation operations must 816.35 How must I monitor groundwater? and remediate landslides? meet all applicable performance 816.36 How must I monitor surface water? 816.100 What are the standards for standards of the regulatory program 816.37 How must I monitor the biological conducting reclamation approved under the Act. The regulatory condition of streams? contemporaneously with mining? authority uses the information collected 816.38 How must I handle acid-forming and 816.101 [Reserved] to ensure that surface mining activities toxic-forming materials? 816.102 How must I backfill the mined area 816.39 What must I do with exploratory or are conducted in compliance with the and grade and configure the land requirements of the applicable monitoring wells when I no longer need surface? them? 816.104 What special provisions for regulatory program. Persons intending 816.40 What responsibility do I have to backfilling, grading, and surface to conduct such operations must replace water supplies? configuration apply to sites with thin respond to obtain a benefit. A federal 816.41 Under what conditions may I overburden? agency may not conduct or sponsor, and discharge water and other materials into 816.105 What special provisions for you are not required to respond to, a an underground mine? backfilling, grading, and surface collection of information unless it 816.42 What Clean Water Act requirements configuration apply to sites with thick apply to discharges from my operation? displays a currently valid OMB control overburden? number. Send comments regarding 816.43 How must I construct and maintain 816.106 What special provisions for diversions and other channels to convey backfilling, grading, and surface burden estimates or any other aspect of water? configuration apply to previously mined this collection of information, including 816.45 What sediment control measures must areas with a preexisting highwall? suggestions for reducing the burden, to I implement? 816.107 What special provisions for the Office of Surface Mining 816.46 What requirements apply to siltation backfilling, grading, and surface Reclamation and Enforcement, structures? configuration apply to operations on Information Collection Clearance 816.47 What requirements apply to steep slopes? Officer, Room 203–SIB, 1951 discharge structures for impoundments? 816.111 How must I revegetate areas Constitution Avenue NW., Washington, 816.49 What requirements apply to disturbed by mining activities? impoundments? 816.113 [Reserved] DC 20240. 816.55 How must I rehabilitate 816.114 [Reserved] § 816.11 What signs and markers must I sedimentation ponds, diversions, 816.115 How long am I responsible for post? impoundments, and treatment facilities revegetation after planting? after I no longer need them? 816.116 What requirements apply to (a) General specifications. Signs and 816.56 What additional performance standards for determining revegetation markers required under this part must— standards apply to mining activities success? (1) Be posted and maintained by the conducted in or through an ephemeral 816.131 What actions must I take when I person who conducts the surface mining stream? temporarily cease mining operations? activities;

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00328 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93393

(2) Be of a uniform design throughout it during use by installing barricades, whether some or all of those soil the operation; fences, or other protective devices horizons and soil substitute materials (3) Be easily seen and read; approved by the regulatory authority. may or must be blended to achieve an (4) Be made of durable material; and You must periodically inspect these improved plant growth medium. (5) Conform to local ordinances and devices and maintain them in good (iii) Except as provided in the soil codes. operating condition. handling plan approved in the permit (b) Duration of maintenance. You (c) You may retain and transfer a under § 780.12(e) of this chapter, you must maintain signs and markers during drilled hole or groundwater monitoring must complete removal and salvage of the conduct of all activities to which well for use as a water well under the topsoil, subsoil, and organic matter in they pertain. conditions established in § 816.39 of advance of any mining-related surface (c) Mine and permit identification this part. disturbance other than the minor signs. (1) You must display (d) Except as provided in paragraph disturbances identified in paragraph identification signs at each point of (c) of this section, you must (a)(2) of this section. access to the permit area from public permanently close each exploration (2) Unless otherwise specified by the roads. hole, drilled hole, borehole, well, or regulatory authority, you need not (2) The signs must show the name, underground opening that mining remove and salvage topsoil and other business address, and telephone number activities uncover or expose within the soil materials for minor disturbances of the person who conducts the surface permit area, unless the regulatory that— mining activities and the identification authority— (i) Occur at the site of small number of the current SMCRA permit (1) Approves use of the hole, well, or structures, such as power poles, signs, authorizing surface mining activities. opening for water monitoring purposes; monitoring wells, or fence lines; or (3) You must retain and maintain the or (ii) Will not destroy the existing signs until the release of all bonds for (2) Authorizes other management of vegetation and will not cause erosion. the permit area. the hole or well. (b) Handling and storage. (1) You (d) Perimeter markers. You must (e)(1) Except as provided in paragraph must segregate and separately handle clearly mark the perimeter of the permit (c) of this section, you must cap, seal, the materials removed under paragraph area before beginning surface mining backfill, or otherwise properly manage (a) of this section to the extent required activities. each shaft, drift, adit, tunnel, in the soil handling plan approved in (e) Stream buffer zone markers. You exploratory hole, entryway or other the permit pursuant to § 780.12(e). You must clearly mark the boundaries of any opening to the surface from must redistribute those materials buffer to be maintained between surface underground when no longer needed for promptly on regraded areas or stockpile mining activities and a perennial or monitoring or any other use that the them when prompt redistribution is intermittent stream in accordance with regulatory authority approves after impractical. §§ 780.28 and 816.57 of this chapter to finding that the use will not adversely (2) Stockpiled materials must— avoid disturbance by surface mining affect the environment or public health (i) Be selectively placed on a stable activities. and safety. site within the permit area; (f) Topsoil markers. You must clearly (2) Permanent closure measures taken (ii) Be protected from contaminants mark stockpiles of topsoil, subsoil, or under paragraph (e)(1) of this section and unnecessary compaction that would other plant growth media segregated must be— interfere with revegetation; and stored as required in the permit in (i) Consistent with § 75.1771 of this (iii) Be protected from wind and water accordance with § 816.22 of this part. title; erosion through prompt establishment (ii) Designed to prevent access to the and maintenance of an effective, quick- § 816.13 What special requirements apply mine workings by people, livestock, fish growing, non-invasive vegetative cover to drilled holes, wells, and exposed and wildlife, and machinery; and or through other measures approved by underground openings? (iii) Designed to keep acid or toxic the regulatory authority; and (a) Except as provided in paragraph (f) mine drainage from entering (iv) Not be moved until required for of this section, you must case, line, groundwater or surface water. redistribution unless approved by the otherwise manage each exploration (f) The requirements of this section do regulatory authority. hole, drilled hole, borehole, shaft, well, not apply to holes drilled and used for (3) When stockpiling of organic matter or other exposed underground opening blasting for surface mining purposes. and soil materials removed under in a manner approved by the regulatory paragraphs (a) and (f) of this section authority to— § 816.14 [Reserved] would be detrimental to the quality or (1) Prevent acid or other toxic § 816.15 [Reserved] quantity of those materials, you may drainage from entering groundwater and temporarily redistribute those soil surface water. § 816.22 How must I handle topsoil, materials on an approved site within the (2) Minimize disturbance to the subsoil, and other plant growth media? permit area to enhance the current use prevailing hydrologic balance. (a) Removal and salvage. (1)(i) You, of that site until the materials are (3) Ensure the safety of people, the permittee, must remove and salvage needed for later reclamation, provided livestock, fish and wildlife, and all topsoil and other soil materials that— machinery in the permit area and the identified for salvage and use as (i) Temporary redistribution will not adjacent area. postmining plant growth media in the permanently diminish the capability of (b) If the approved permit identifies soil handling plan approved in the the topsoil of the host site; and an exploration hole, drilled hole, permit under § 780.12(e) of this chapter. (ii) The redistributed material will be borehole, well, or other exposed (ii) The soil handling plan approved preserved in a condition more suitable underground opening for use to monitor in the permit under § 780.12(e) of this for redistribution than if it were groundwater or to return coal processing chapter will specify which soil horizons stockpiled. waste or water to underground and underlying strata, or portions (c) Soil substitutes and supplements. workings, you must temporarily seal the thereof, you must separately remove and When the soil handling plan approved hole or opening before use and protect salvage. The plan also will specify in the permit in accordance with

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00329 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93394 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

§ 780.12(e) of this chapter provides for approved under § 780.24(b) of this mechanized tree-planting equipment on the use of substitutes for or supplements chapter. The thickness also may vary sites with a forestry postmining land to the existing topsoil or subsoil, you when variations are necessary or use. must salvage, store, and redistribute the desirable to achieve specific (3)(i) The redistribution requirements overburden materials selected and revegetation goals and ecological of paragraph (f)(2)(i) of this section do approved for that purpose in a manner diversity, as set forth in the revegetation not apply to those portions of the permit consistent with paragraphs (a), (b), and plan developed under § 780.12(g) of this area— (e) of this section. chapter and approved as part of the (A) Upon which row crops will be (d) Site preparation. If necessary to permit. planted as part of the postmining land reduce potential slippage of the (2) You must use a statistically valid use before final bond release under redistributed material or to promote root sampling technique to document that §§ 800.40 through 800.43 of this penetration, you must rip, chisel-plow, soil materials have been redistributed in chapter; deep-till, or otherwise mechanically the locations and depths required by the (B) That will be intensively managed treat backfilled and graded areas either soil handling plan developed under for hay production as part of the before or after redistribution of soil § 780.12(e) of this chapter and approved postmining land use before final bond materials, whichever time is as part of the permit. release under §§ 800.40 through 800.43 agronomically appropriate. (3) The regulatory authority may of this chapter; or (e) Redistribution. (1) You must choose not to require the redistribution (C) Upon which structures, roads, redistribute the materials removed, of topsoil on the embankments of other impervious surfaces, or water salvaged, and, if necessary, stored under permanent impoundments or on the impoundments have been or will be paragraphs (a) through (c) of this section embankments of roads to be retained as constructed as part of the postmining in a manner that— part of the postmining land use if it land use before final bond release under (i) Complies with the soil handling determines that— §§ 800.40 through 800.43 of this plan developed under § 780.12(e) of this (i) Placement of topsoil on those chapter. chapter and approved as part of the embankments is inconsistent with the (ii) When the circumstances described permit. requirement to use the best technology in paragraph (f)(3)(i) of this section (ii) Is consistent with the approved currently available to prevent apply, you must make reasonable efforts postmining land use, the final surface sedimentation, and to redistribute the salvaged organic configuration, and surface water (ii) The embankments will be matter on other portions of the permit drainage systems. otherwise stabilized. area or use woody debris to construct (iii) Minimizes compaction of the (f) Organic matter. (1)(i) You must stream improvement or fish and wildlife topsoil and soil materials in the root salvage duff, other organic litter, and habitat enhancement features consistent zone to the extent possible and vegetative materials such as tree tops with the approved postmining land use. alleviates any excess compaction that and branches, small logs, and root balls. If you demonstrate, and the regulatory may occur. You must limit your use of When practicable and consistent with authority finds, that it is not reasonably measures that result in increased the approved postmining land use, you possible to use all available organic compaction to those situations in which may salvage organic matter and topsoil matter for these purposes, you may bury added compaction is necessary to in a single operation that blends those it in the backfill. ensure stability. materials. (4)(i) You may not burn organic (iv) Protects the materials from wind (ii) Paragraph (f)(1)(i) of this section matter. and water erosion before and after does not apply to organic matter from (ii) You may bury organic matter in seeding and planting to the extent areas identified under § 779.19(b) of this the backfill only as provided in necessary to ensure establishment of a chapter as containing significant paragraphs (f)(1)(ii) and (3)(ii) of this successful vegetative cover and to avoid populations of invasive or noxious non- section. causing or contributing to a violation of native species. You must bury organic applicable state or tribal water quality matter from those areas in the backfill § 816.34 How must I protect the hydrologic standards or effluent limitations, at a sufficient depth to prevent balance? including, but not limited to, water regeneration or proliferation of (a) You, the permittee, must conduct quality standards established under the undesirable species. all surface mining and reclamation authority of section 303(c) of the Clean (2)(i) Except as otherwise provided in activities in a manner that will— Water Act, 33 U.S.C. 1313(c), and paragraphs (f)(2)(ii) and (iii) and (3) of (1) Minimize disturbance of the effluent limitations established in any this section, you must redistribute the hydrologic balance within the permit National Pollutant Discharge organic matter salvaged under and adjacent areas. Elimination System permit issued for paragraph (f)(1) of this section across the (2) Prevent material damage to the the operation under section 402 of the regraded surface or incorporate it into hydrologic balance outside the permit Clean Water Act, 33 U.S.C. 1342, or its the soil to control erosion, promote area. state or tribal counterpart. growth of vegetation, serve as a source (3) Protect streams in accordance with (v) Achieves an approximately of native plant seeds and soil inoculants §§ 780.28 and 816.57 of this chapter. uniform, stable thickness across the to speed restoration of the soil’s (4) Assure the protection or regraded area. The thickness may vary ecological community, and increase the replacement of water supplies to the when consistent with the approved moisture retention capability of the soil. extent required by § 816.40 of this part. postmining land use, the final surface (ii) You may use vegetative debris to (5) Protect existing water rights under configuration, surface water drainage construct stream improvement or fish state law. systems, and the requirement in and wildlife habitat enhancement (6) Support approved postmining land § 816.133 of this part for restoration of features consistent with the approved uses in accordance with the terms and all disturbed areas to conditions that are postmining land use. conditions of the approved permit and capable of supporting the uses they (iii) You may adjust the timing and the performance standards of this part. were capable of supporting before any pattern of redistribution of large woody (7) Comply with the hydrologic mining or higher or better uses debris to accommodate the use of reclamation plan as submitted under

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00330 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93395

§ 780.22 of this chapter and approved in addition to those set forth in this part to (b)(1) You must submit groundwater the permit. prevent material damage to the monitoring data to the regulatory (8) Protect groundwater quality by hydrologic balance outside the permit authority every 3 months, or more using best management practices to area. frequently if prescribed by the handle earth materials and runoff in a (d)(1) You must examine the runoff- regulatory authority. manner that avoids the formation of control structures identified under (2) Monitoring reports must include acid or toxic mine drainage and by § 780.29 of this chapter within 72 hours analytical results from each sample managing excavations and other of cessation of each occurrence of the taken during the reporting period. disturbances to prevent or control following precipitation events: (c) When the analysis of any sample groundwater degradation. The (i) In areas with an average annual indicates noncompliance with the terms regulatory authority will determine the precipitation of more than 26.0 inches, and conditions of the permit, you must meaning of the term ‘‘best management an event of a size equal to or greater promptly notify the regulatory practices’’ on a site-specific basis. At a than that of a storm with a 2-year authority, take any applicable actions minimum, the term includes equipment, recurrence interval. You must use the required under § 773.17(e) of this devices, systems, methods, and appropriate regional Natural Resources chapter, and implement any applicable techniques that the Director determines Conservation Service synthetic storm remedial measures required by the to be best management practices. distribution to determine peak flow for hydrologic reclamation plan approved (9) Protect groundwater quantity by a storm with that recurrence interval. in the permit in accordance with handling earth materials and runoff in a (ii) In areas with an average annual § 780.22 of this chapter. manner that will restore the precipitation of 26.0 inches or less, a (d) You may use the permit revision approximate premining recharge significant event of a size specified by procedures of § 774.13 of this chapter to capacity of the reclaimed area as a the regulatory authority. request that the regulatory authority whole, excluding coal mine waste (2)(i) You must prepare a report, modify the groundwater monitoring disposal areas and excess spoil fills, so which must be certified by a registered requirements, including the parameters as to allow the movement of water into professional engineer, and submit the covered and the sampling frequency. the groundwater system. report to the regulatory authority within The regulatory authority may approve (10) Protect surface-water quality by 30 days of cessation of the applicable your request if you demonstrate, using using best management practices, as precipitation event under paragraph the monitoring data obtained under this described in paragraph (a)(8) of this (d)(1) of this section. The report must section, that— section, to handle earth materials, address the performance of the runoff- (1) Future adverse changes in groundwater discharges, and runoff in a control structures, identify and describe groundwater quantity or quality are manner that— any material damage to the hydrologic unlikely to occur. (i) Prevents postmining discharges of balance outside the permit area that (2) The operation has— acid or toxic mine drainage. occurred, and identify and describe the (i) Minimized disturbance to the (ii) Prevents additional contribution remedial measures taken in response to hydrologic balance in the permit and of suspended solids to streamflow or that damage. adjacent areas. runoff outside the permit area to the (ii) The report prepared under (ii) Prevented material damage to the extent possible, using the best paragraph (d)(2)(i) of this section may hydrologic balance outside the permit technology currently available. include all precipitation events that area. (iii) Otherwise prevents water occur within 30 days of cessation of the (iii) Preserved or restored the pollution. applicable precipitation event under biological condition of perennial and (11) Protect surface-water quality and paragraph (d)(1) of this section. intermittent streams within the permit flow rates by handling earth materials and adjacent areas for which baseline and runoff in accordance with the steps § 816.35 How must I monitor biological condition data was collected outlined in the hydrologic reclamation groundwater? under § 780.19(c)(6)(vi) of this chapter plan and the surface-water runoff (a)(1)(i) You, the permittee, must when groundwater from the permit area control plan approved in the permit in monitor groundwater in the manner provides all or part of the base flow of accordance with §§ 780.22 and 780.29 of specified in the groundwater monitoring those streams. this chapter, respectively. plan approved in the permit in (iv) Maintained or restored the (b)(1) To the maximum extent accordance with § 780.23(a) of this availability and quality of groundwater practicable, you must use mining and chapter. to the extent necessary to support the reclamation practices that minimize (ii) You must adhere to the data approved postmining land uses within water pollution, changes in flow, and collection, analysis, and reporting the permit area. adverse impacts on stream biota rather requirements of paragraphs (a) and (b) of (v) Protected or replaced the water than relying upon water treatment to § 777.13 of this chapter when rights of other users. minimize those impacts. conducting monitoring under this (e) Whenever information available to (2) You must install, use, and section. the regulatory authority indicates that maintain any necessary water-treatment (2) At a minimum, you must conduct additional monitoring is necessary to facilities or water-quality controls if monitoring through mining, protect the hydrologic balance, to detect drainage control, materials handling, reclamation, and the revegetation hydrologic changes, or to meet other stabilization and revegetation of responsibility period under § 816.115 of requirements of the regulatory program, disturbed areas, diversion of runoff, this part for the monitored area. the regulatory authority must issue an mulching, and other reclamation and Monitoring must continue beyond that order under § 774.10(b) of this chapter remedial practices are not adequate to minimum for any additional time requiring that you revise your permit to meet the requirements of this section needed for monitoring results to include the necessary additional and § 816.42 of this part. demonstrate that the criteria of monitoring. (c) The regulatory authority may § 816.35(d)(1) and (2) of this section (f) You must install, maintain, require that you take preventive, have been met, as determined by the operate, and, when no longer needed, remedial, or monitoring measures in regulatory authority. remove all equipment, structures, and

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00331 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93396 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

other devices used in conjunction with (iii) Preserved or restored the permit to include the necessary monitoring groundwater, consistent biological condition of perennial and additional monitoring. with §§ 816.13 and 816.39 of this part. intermittent streams within the permit and adjacent areas for which baseline § 816.38 How must I handle acid-forming and toxic-forming materials? § 816.36 How must I monitor surface biological condition data was collected water? under § 780.19(c)(6)(vi) of this chapter. (a) You, the permittee, must use the best technology currently available to (a)(1)(i) You, the permittee, must (iv) Maintained or restored the handle acid-forming and toxic-forming monitor surface water in the manner availability and quality of surface water materials in a manner that will avoid specified in the surface-water to the extent necessary to support the the creation of acid or toxic mine monitoring plan approved in the permit approved postmining land uses within drainage into surface water and in accordance with § 780.23(b) of this the permit area. groundwater. At a minimum, you must chapter. (v) Not precluded attainment of any (ii) You must adhere to the data comply with the plan approved in the designated use of a surface water under collection, analysis, and reporting permit in accordance with § 780.12(n) of section 303(c) of the Clean Water Act, requirements of paragraphs (a) and (b) of this chapter and adhere to disposal, 33 U.S.C. 1313(c). § 777.13 of this chapter when treatment, and storage practices that are (vi) Protected or replaced the water conducting monitoring under this consistent with other material handling rights of other users. section. and disposal provisions of this chapter. (2) Monitoring must continue through (e) Whenever information available to (b) You may temporarily store acid- mining and during reclamation until the the regulatory authority indicates that forming and toxic-forming materials regulatory authority releases the entire additional monitoring is necessary to only if the regulatory authority bond amount for the monitored area protect the hydrologic balance, to detect specifically approves temporary storage under §§ 800.40 through 800.43 of this hydrologic changes, or to meet other as necessary and finds in writing in the chapter. requirements of the regulatory program, permit that the proposed storage method (b)(1) You must submit surface-water the regulatory authority must issue an will protect surface water and monitoring data to the regulatory order under § 774.10(b) of this chapter groundwater by preventing erosion, the authority every 3 months, or more requiring that you revise your permit to formation of polluted runoff, and the frequently when prescribed by the include the necessary additional infiltration of polluted water into regulatory authority. monitoring. aquifers. The regulatory authority must (2) Monitoring reports must include (f) You must install, maintain, specify a maximum time for temporary analytical results from each sample operate, and, when no longer needed, storage, which may not exceed the taken during the reporting period. remove all equipment, structures, and period until permanent disposal first (3) The reporting requirements of other devices used in conjunction with becomes feasible. In addition, storage paragraph (b) of this section do not monitoring surface water. must not result in any risk of water exempt you from meeting any National pollution, adverse impacts to the § 816.37 How must I monitor the biological biology of perennial or intermittent Pollutant Discharge Elimination System condition of streams? (NPDES) reporting requirements. streams, or other environmental (c) When the analysis of any sample (a)(1)(i) You must monitor the damage. biological condition of perennial and indicates noncompliance with the terms § 816.39 What must I do with exploratory and conditions of the permit, you must intermittent streams in the manner specified in the plan approved in the or monitoring wells when I no longer need promptly notify the regulatory them? authority, take any applicable actions permit in accordance with § 780.23(c) of this chapter. (a) Except as provided in paragraph required under § 773.17(e) of this (b) of this section, you, the permittee, chapter, and implement any applicable (ii) You must adhere to the data collection, analysis, and reporting must permanently seal exploratory or remedial measures required by the monitoring wells in a safe and hydrologic reclamation plan approved requirements of paragraphs (a) and (b) of § 777.13 of this chapter and use a environmentally sound manner in in the permit in accordance with accordance with § 816.13 of this part § 780.22 of this chapter. bioassessment protocol that complies with § 780.19(c)(6)(vii) of this chapter before the regulatory authority may (d) You may use the permit revision approve full release of the bond posted procedures of § 774.13 of this chapter to when conducting monitoring under this section. for the land on which the wells are request that the regulatory authority located under §§ 800.40 through 800.43 modify the surface-water monitoring (2) Monitoring must continue through mining and during reclamation until the of this chapter. requirements (except those required by (b) With the prior approval of the regulatory authority releases the entire the NPDES permitting authority), regulatory authority, you may transfer bond amount for the monitored area including the parameters covered and wells to another party for further use. under §§ 800.40 through 800.43 of this the sampling frequency. The regulatory The conditions of the transfer must chapter. authority may approve your request if comply with state and local laws. You you demonstrate, using the monitoring (b) You must submit biological will remain responsible for the proper data obtained under this section, that— condition monitoring data to the management of the wells until full (1) Future adverse changes in surface- regulatory authority on an annual basis, release of the bond posted for the land water quantity or quality are unlikely to or more frequently if prescribed by the on which the wells are located under occur. regulatory authority. §§ 800.40 through 800.43 of this (2) The operation has— (c) Whenever information available to chapter. (i) Minimized disturbance to the the regulatory authority indicates that hydrologic balance in the permit and additional monitoring is necessary to § 816.40 What responsibility do I have to adjacent areas. meet the requirements of the regulatory replace water supplies? (ii) Prevented material damage to the program, the regulatory authority must (a) Replacement of adversely- hydrologic balance outside the permit issue an order under § 774.10(b) of this impacted water supplies. (1) You, the area. chapter requiring that you revise your permittee, must replace the water

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00332 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93397

supply of an owner of an interest in real grant an extension if you have made a (4) The discharge will not cause or property who obtains all or part of his good-faith effort to meet this deadline, contribute to a violation of applicable or her supply of water for domestic, but have been unable to do so for state or tribal water quality standards for agricultural, industrial, or other reasons beyond your control. groundwater. legitimate use from an underground or (d) Basis for determination of adverse (5) The Mine Safety and Health surface source when the water supply impact. The regulatory authority must Administration has approved the has been adversely impacted by use the baseline hydrologic and geologic discharge. contamination, diminution, or information required under § 780.19 of (6) You have obtained written interruption as a result of your surface this chapter and all other available permission from the owner of the mine mining activities. information to determine whether and into which the discharge is to be made (2) The replacement supply must be to what extent the mining operation and you have provided a copy of that equivalent to the quantity and quality of adversely impacted the damaged water authorization to the regulatory the premining supply. supply. authority. (3) Replacement includes provision of (b) Discharges are limited to the an equivalent water supply delivery § 816.41 Under what conditions may I following materials: system and payment of operation and discharge water and other materials into an (1) Water. maintenance expenses in excess of underground mine? (2) Coal processing waste. customary and reasonable delivery costs (a) You may not discharge any water (3) Fly ash from a coal-fired facility. for the premining water supply. If you or other materials from a surface coal (4) Sludge from an acid-mine-drainage and the water supply owner agree, your mining and reclamation operation into treatment facility. obligation to pay operation and an underground mine unless the (5) Flue-gas desulfurization sludge. (6) Inert materials used for stabilizing maintenance costs may be satisfied by a regulatory authority specifically approves the discharge in writing, based underground mines. one-time payment in an amount that (7) Underground mine development upon a demonstration that— covers the present worth of the waste. increased annual operation and (1) The discharge will be made in a maintenance costs for a period upon manner that— § 816.42 What Clean Water Act which you and the water supply owner (i) Minimizes disturbances to the requirements apply to discharges from my agree. hydrologic balance within the permit operation? (4) If the affected water supply was area; (a) Nothing in this section, nor any not needed for the land use in existence (ii) Prevents material damage to the action taken pursuant to this section, at the time of loss, contamination, or hydrologic balance outside the permit supersedes or modifies— diminution, and if the supply is not area, including the hydrologic balance (1) The authority or jurisdiction of needed to achieve the postmining land of the area in which the underground federal, state, or tribal agencies use, you may satisfy the replacement mine receiving the discharge is located; responsible for administration, requirements by demonstrating that a (iii) Does not adversely impact the implementation, and enforcement of the suitable alternative water source is biology of perennial or intermittent Clean Water Act, 33 U.S.C. 1251 et seq.; available and could feasibly be streams; and or developed, provided you obtain written (iv) Otherwise eliminates public (2) The decisions that those agencies concurrence from the owner of the hazards resulting from surface mining make under the authority of the Clean affected water supply. activities. Water Act, 33 U.S.C. 1251 et seq., (b) Measures to address anticipated (2) The discharge will not cause or including decisions on whether a adverse impacts to protected water contribute to a violation of applicable particular set of facts constitutes a supplies. For anticipated loss of or state or tribal water quality standards or violation of the Clean Water Act. damage to a protected water supply, you effluent limitations, including, but not (b) Discharges of water from surface must adhere to the requirements set limited to, water quality standards mining activities and from areas forth in the permit in accordance with established under the authority of disturbed by surface mining activities § 780.22(b) of this chapter. section 303(c) of the Clean Water Act, must— (c) Measures to address unanticipated 33 U.S.C. 1313(c), and effluent (1) Be made in compliance with all adverse impacts to protected water limitations established in any National applicable water quality laws and supplies. For unanticipated loss of or Pollutant Discharge Elimination System regulations, including the effluent damage to a protected water supply, you permit issued for the operation under limitations established in the National must— section 402 of the Clean Water Act, 33 Pollutant Discharge Elimination System (1) Provide an emergency temporary U.S.C. 1342, or its state or tribal permit for the operation under section water supply within 24 hours of counterpart. 402 of the Clean Water Act, 33 U.S.C. notification of the loss. The temporary (3)(i) The discharge will be at a 1342, or its state or tribal counterpart. supply must be adequate in quantity known rate and of a quality that will The regulatory authority must notify the and quality to meet normal household meet the effluent limitations for pH and appropriate Clean Water Act authority needs. total suspended solids in 40 CFR part whenever it takes action to enforce a (2) Develop and submit a plan for a 434. permit condition required by § 773.17(i) permanent replacement supply to the (ii) The regulatory authority may of this chapter with respect to an regulatory authority within 30 days of approve discharges of water that exceed effluent limitation in a National receiving notice that an unanticipated the effluent limitations for pH and total Pollutant Discharge Elimination System loss of or damage to a protected water suspended solids in 40 CFR part 434 if permit. The regulatory authority must supply has occurred. the available evidence indicates that initiate coordination with the Clean (3) Provide a permanent replacement there is no direct hydrologic connection Water Act authority before taking water supply within 2 years of the date between the underground mine and enforcement action if coordination is of receiving notice of an unanticipated other waters and that those exceedances needed to determine whether a violation loss of or damage to a protected water will not be inconsistent with paragraph of the National Pollutant Discharge supply. The regulatory authority may (a)(1) of this section. Elimination System permit exists.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00333 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93398 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(2) Not cause or contribute to a § 816.43 How must I construct and on whether they will be in existence for violation of applicable water quality maintain diversions? less or more than 3 years. standards established under the (a) Classification. The term diversion (ii) Permanent stream diversions authority of section 303(c) of the Clean applies to the following categories of remain in their locations following Water Act, 33 U.S.C. 1313(c), or other channels that convey surface water mining and reclamation. applicable state or tribal water quality flow: (3) Conveyances and channels within standards. (1) Diversion Ditches. Diversion the disturbed area. All other (c) Discharges of overburden, coal ditches are channels constructed to conveyances and channels that are mine waste, and other materials into convey surface water runoff or other constructed within the disturbed area to waters subject to the jurisdiction of the flows from areas not disturbed by transport surface water are also Clean Water Act, 33 U.S.C. 1251 et seq., mining activities away from or around diversions. During mining, these must be made in compliance with disturbed areas. Diversion ditches may channels or conveyances must deliver section 404 of the Clean Water Act, 33 be temporary or permanent. all captured surface water flow to U.S.C. 1344, and its implementing (i) You must remove a temporary siltation structures. regulations. diversion ditch as soon as it is no longer (i) You must remove temporary (d) The regulatory authority will needed. You must restore the land conveyances or channels when they are coordinate an investigation with the disturbed by the removal process in no longer needed for their intended appropriate Clean Water Act authority accordance with the approved permit purpose. whenever information available to the and § 816.55 of this part. Before (ii) When approved in the permit, you regulatory authority indicates that removing a temporary diversion ditch, may retain conveyances or channels that mining activities may be causing or you must modify or remove downstream support or enhance the approved contributing to a violation of the water water treatment facilities previously postmining land use. quality standards to which paragraph protected by the ditch to prevent (b) Design criteria. When the permit (b)(2) of this section refers, or to a overtopping or failure of the facilities. requires the use of siltation structures violation of section 404 of the Clean You must continue to maintain water for sediment control, you must Water Act, 33 U.S.C. 1344, and its treatment facilities until they are no construct diversions designed to the implementing regulations. If, after longer needed. standards of this section to convey coordination with the appropriate Clean (ii) You may retain a diversion ditch runoff from the disturbed area to the Water Act authority, it is determined as a permanent structure if you siltation structures unless the that mining activities are causing or demonstrate and the regulatory topography will naturally direct all contributing to a Clean Water Act authority finds that retention of that surface runoff or other flows to a violation, the regulatory authority must, diversion ditch would— siltation structure. in addition to any action taken by the (A) Be environmentally beneficial; (1) You must design all diversions (B) Meet the requirements of the appropriate Clean Water Act authority, to— reclamation plan approved under independently take enforcement or (i) Ensure the safety of the public. § 780.12 of this chapter; and other appropriate action to correct the (C) Be consistent with the surface (ii) Minimize adverse impacts to the cause of the violation. drainage pattern restoration hydrologic balance, including the (e) You must construct water requirements of §§ 816.56 and 816.57 of biology of perennial and intermittent treatment facilities for discharges from this part. streams, within the permit and adjacent the operation as soon as the need for (iii) When approved in the permit, areas. those facilities becomes evident. you may divert the following flows (iii) Prevent material damage to the (f)(1) You must remove precipitates away from the disturbed area by means hydrologic balance outside the permit and otherwise maintain all water of temporary or permanent diversion area. treatment facilities requiring the use of ditches without treatment: (2) You must design, locate, construct, settling ponds or lagoons as necessary to (A) Any surface runoff or other flows maintain, and use each diversion and its maintain the functionality of those from mined areas abandoned before appurtenant structures to— facilities. May 3, 1978. (i) Be stable. (2) You must dispose of all (B) Any surface runoff or other flows (ii) Provide and maintain the capacity precipitates removed from facilities from undisturbed areas. to safely pass the peak flow of surface under paragraph (f)(1) of this section (C) Any surface runoff or other flows runoff from a 2-year, 6-hour either in an approved solid waste from reclaimed areas for which the precipitation event for a temporary landfill or within the permit area in criteria of § 816.46 of this part for diversion and a 10-year, 6-hour accordance with a plan approved by the siltation structure removal have been precipitation event for a permanent regulatory authority. met. diversion. Flow capacity for stream (g) You must operate and maintain (2) Stream diversions. Stream diversions includes both the in-channel water treatment facilities until the diversions are temporary or permanent capacity and the flood-prone area regulatory authority authorizes removal relocations of perennial or intermittent overbank capacity. Flow capacity for based upon monitoring data streams. Diversions of perennial and diversion ditches and conveyances or demonstrating that influent to the intermittent streams must comply with channels includes only in-channel facilities meets all applicable effluent the applicable requirements of this capacity, with adequate freeboard to limitations without treatment and that section, § 780.28 of this chapter, and prevent out-of-channel flow. You must discharges would not cause or § 816.57 of this part. use the appropriate regional Natural contribute to a violation of applicable (i) You must remove temporary Resources Conservation Service water quality standards established stream diversions after the original synthetic storm distribution to under the authority of section 303(c) of stream channel is reconstructed after determine peak flows. the Clean Water Act, 33 U.S.C. 1313(c), mining. As set forth in § 780.28(f) of this (iii) Prevent, to the extent possible or other applicable state or tribal water chapter, different requirements apply to using the best technology currently quality standards if left untreated. temporary stream diversions depending available, additional contributions of

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00334 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93399

suspended solids to streamflow or § 816.46 What requirements apply to (B) Provide adequate detention time runoff outside the permit area. siltation structures? to allow the effluent from the ponds to (iv) Comply with all applicable (a) Scope. For the purpose of this meet applicable effluent limitations. federal, state, tribal, and local laws and section only, the phrase ‘‘disturb the (C) Contain or treat the 10-year, 24- regulations. land surface’’ does not include those hour precipitation event (‘‘design (c) Application to § 816.41. You may areas— event’’) unless a lesser design event is not divert surface runoff or other flows (1) In which the only surface mining approved by the regulatory authority into underground mines without activities consist of diversions, siltation based on terrain, climate, other site- approval of the regulatory authority structures, or roads that are designed, specific conditions, and a under § 816.41 of this part. constructed, and maintained in demonstration that the effluent accordance with this part; and limitations referenced in § 816.42 of this (d) Additional requirements. The (2) For which you do not plan to part will be met. regulatory authority may specify otherwise disturb the land surface (D) Provide a nonclogging dewatering additional design criteria for diversions upgradient of the diversion, siltation device adequate to maintain the to meet the requirements of this section. structure, or road. detention time required under § 816.45 What sediment control measures (b) General requirements. (1) When paragraph (c)(1)(ii)(B) of this section. must I implement? siltation structures will be used to (E) Minimize short circuiting to the extent possible. (a) You must design, construct, and achieve the requirements of § 816.45 of (F) Provide periodic sediment maintain appropriate sediment control this part, you must construct those removal sufficient to maintain adequate measures, using the best technology structures before beginning any surface volume for the design event. currently available to— mining activities that will disturb the land surface. (G) Ensure against excessive (1) Prevent, to the extent possible, (2) Upon completion of construction settlement. additional contributions of sediment to of a siltation structure, a qualified (H) Be free of sod, large roots, frozen streamflow or to runoff outside the registered professional engineer, or, in soil, and acid-forming or toxic-forming permit area. any state that authorizes land surveyors materials. (2) Meet the applicable effluent to prepare and certify plans in (I) Be compacted properly. limitations referenced in § 816.42(a) of accordance with § 780.25(a) of this (2) Spillways. A sedimentation pond this part. chapter, a qualified registered must include either a combination of (3) Minimize erosion to the extent professional land surveyor, must certify principal and emergency spillways or a possible. that the structure has been constructed single spillway configured as specified (b) Sediment control measures as designed and as approved in the in § 816.49(a)(9) of this part. (d) Other treatment facilities. (1) You include practices carried out within the reclamation plan in the permit. must design other treatment facilities to disturbed area. Sediment control (3) Any siltation structure that treat the 10-year, 24-hour precipitation measures consist of the use of proper impounds water must be designed, event unless the regulatory authority mining and reclamation methods and constructed and maintained in approves a lesser design event based sediment control practices, singly or in accordance with § 816.49 of this upon terrain, climate, other site-specific combination. Sediment control methods chapter. conditions, and a demonstration that the include but are not limited to— (4) You must maintain siltation effluent limitations referenced in structures until removal is authorized (1) Disturbing the smallest practicable § 816.42 of this part will be met. by the regulatory authority and the area at any one time during the mining (2) You must design other treatment disturbed area has been stabilized and operation through progressive facilities in accordance with the revegetated. backfilling, grading, and prompt applicable requirements of paragraph (c) (5)(i) When a siltation structure is revegetation. of this section. (2) Shaping and stabilizing the removed, you must regrade the land (e) Exemptions. The regulatory backfilled material to promote a upon which the structure was located authority may grant an exemption from reduction in the rate and volume of and revegetate the land in accordance the requirements of this section if— runoff. with the reclamation plan and (1) The disturbed drainage area within (3) Retaining sediment within §§ 816.111 and 816.116 of this chapter. the total disturbed area is small; and disturbed areas. (ii) Paragraph (b)(5)(i) of this section (2) You demonstrate that neither does not apply to sedimentation ponds siltation structures nor alternate (4) Diverting surface runoff from approved by the regulatory authority for undisturbed areas away from disturbed sediment control measures are retention as permanent impoundments necessary for drainage from the areas. under § 816.49(b) of this part if the (5) Using protected channels or pipes disturbed drainage area to comply with maintenance requirements of § 816.42 of this part. to convey surface runoff from § 800.42(c)(5) of this chapter are met. undisturbed areas through disturbed (c) Sedimentation ponds. (1) When § 816.47 What requirements apply to areas so as not to cause additional used, sedimentation ponds must— discharge structures for impoundments? erosion. (i) Be located as near as possible to You must control discharges from (6) Using straw dikes, riprap, check the disturbed area and outside perennial sedimentation ponds, permanent and dams, mulches, vegetative sediment or intermittent stream channels unless temporary impoundments, coal mine filters, dugout ponds, and other approved by the regulatory authority in waste impounding structures, and measures that reduce overland flow the permit in accordance with §§ 780.28 diversions by energy dissipators, riprap velocity, reduce runoff volume, or trap and 816.57(c) of this chapter. channels, and other devices when sediment. (ii) Be designed, constructed, and necessary to reduce erosion, to control (7) Treating surface runoff collected in maintained to— meander migration, to prevent sedimentation ponds with flocculants or (A) Provide adequate sediment storage deepening or enlargement of stream other chemicals. volume. channels, or to minimize disturbance of

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00335 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93400 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

the hydrologic balance. You must title or that includes a dam with a (3) Freeboard. (i) Impoundments must design discharge structures according to significant or high hazard potential have adequate freeboard to resist standard engineering design procedures. classification under § 780.25(a) of this overtopping by waves that occur in chapter must have a minimum static conjunction with the typical increase in § 816.49 What requirements apply to safety factor of 1.5 for a normal pool water elevation at the downwind edge impoundments? with steady state seepage saturation of any body of water, waves resulting (a) Requirements that apply to both conditions and a seismic safety factor of from sudden influxes of surface runoff permanent and temporary at least 1.2. from precipitation events, or waves impoundments.— (ii) Impoundments not included in resulting from any combination of these (1) MSHA requirements. An paragraph (a)(2)(i) of this section, except events or other events. impoundment meeting the criteria of for a coal mine waste impounding (ii) An impoundment that includes a § 77.216(a) of this title must comply structure, must have a minimum static dam with a significant or high hazard with the requirements of § 77.216 of this safety factor of 1.3 for a normal pool potential classification under § 780.25(a) title and this section. with steady state seepage saturation of this chapter must comply with the (2) Stability. (i) An impoundment that conditions or meet the requirements of freeboard hydrograph criteria in the meets the criteria of § 77.216(a) of this § 780.25(e)(2) of this chapter. following table:

MINIMUM AUXILIARY SPILLWAY HYDROLOGIC CRITERIA

Design precipitation event for— Hazard potential classification of embankment Auxiliary spillway hydrograph Freeboard hydrograph

1 2 Significant ...... P100 + 0.12(PMP ¥P100) P100 + 0.40(PMP¥P100). High ...... P100 + 0.26(PMP¥P100) PMP.

1 P100 = Precipitation event for 100-year return interval. 2 PMP = Probable Maximum Precipitation event.

(4) Foundation. (i) Foundations and designed and constructed to safely pass (8) Highwalls. The vertical portion of abutments for an impounding structure the applicable design precipitation any highwall remnant within the must be stable during all phases of event specified in paragraph (a)(7)(ii) of impoundment must be located far construction and operation and must be this section, except as set forth in enough below the low-water line along designed based on adequate and paragraph (c)(2) of this section. the full extent of the highwall to provide accurate information on the foundation (i) The regulatory authority may adequate safety and access for the and abutment conditions. approve a single open-channel spillway proposed water users. (ii) You must conduct foundation and that is: (9) Inspections. Except as provided in abutment investigations, as well as any (A) Of nonerodible construction and paragraph (a)(9)(iv) of this section, a necessary laboratory testing of designed to carry sustained flows; or qualified registered professional foundation material, to determine the (B) Earth- or grass-lined and designed engineer or other qualified professional design requirements for foundation to carry short-term, infrequent flows at specialist under the direction of a stability and control of underseepage for non-erosive velocities where sustained professional engineer must inspect each an impoundment that includes a dam flows are not expected. impoundment as provided in paragraph with a significant or high hazard (a)(9)(i) of this section. The professional (ii) Except as specified in paragraph potential classification under § 780.25(a) engineer or specialist must be (c)(2) of this section, the required design of this chapter. experienced in the construction of precipitation event for an impoundment (iii) You must remove all vegetative impoundments. and organic materials from the meeting the spillway requirements of (i) Inspections must be made regularly foundation area and excavate and paragraph (a)(7) of this section is: during construction, upon completion prepare the foundation area to resist (A) For an impoundment that of construction, and at least yearly until failure. You must install cutoff trenches includes a dam with a significant or removal of the structure or release of the if necessary to ensure stability. high hazard potential classification performance bond. (5) Protection of impoundment slopes. under § 780.25(a) of this chapter, the (ii) After each inspection required by You must take measures to protect design precipitation event specified in paragraph (a)(9)(i) of this section, the impoundment slopes from surface the auxiliary spillway hydrograph qualified registered professional erosion and the adverse impacts of a column in the table in paragraph engineer, or qualified registered sudden drawdown. (a)(3)(ii) of this section, or any greater professional land surveyor as specified (6) Protection of embankment faces. event specified by the regulatory in paragraph (a)(9)(iv) of this section, Faces of embankments and surrounding authority. must promptly provide to the regulatory areas shall be vegetated, except that (B) For an impoundment meeting the authority a certified report that the faces where water is impounded may be criteria of § 77.216(a) of this title, the impoundment has been constructed riprapped or otherwise stabilized in 100-year, 6-hour event, or any greater and/or maintained as designed and in accordance with accepted design event specified by the regulatory accordance with the approved plan and practices. authority. this chapter. The report must include a (7) Spillways. An impoundment must (C) For an impoundment not included discussion of any appearance of include either a combination of in paragraphs (a)(7)(ii)(A) and (B) of this instability, any structural weakness or principal and emergency spillways or a section, the 25-year, 6-hour event, or other hazardous condition, the depth single spillway configured as specified any greater event specified by the and elevation of any impounded waters, in paragraph (a)(7)(i) of this section, regulatory authority. the existing storage capacity, any

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00336 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93401

existing or required monitoring (2) The quality of impounded water section must be located where failure procedures and instrumentation, and will be suitable on a permanent basis for would not be expected to cause loss of any other aspects of the structure its intended use and, after reclamation, life or serious property damage, unless affecting stability. discharges from the impoundment will the impoundment meets one of the (iii) You must retain a copy of the not cause or contribute to a violation of following exceptions: report at or near the minesite. applicable state or tribal water quality (i) An impoundment that meets the (iv) In any state that authorizes land standards or effluent limitations, criteria of § 77.216(a) of this title, or that surveyors to prepare and certify plans in including, but not limited to, water is classified as having a significant or accordance with § 780.25(b)(1) of this quality standards established under the high hazard potential under § 780.25(a) chapter, a qualified registered authority of section 303(c) of the Clean of this chapter, and is designed to professional land surveyor may inspect Water Act, 33 U.S.C. 1313(c), and control the precipitation of the probable any temporary or permanent effluent limitations established in the maximum precipitation of a 6-hour impoundment that does not meet the National Pollutant Discharge event, or any greater event specified by criteria of § 77.216(a) of this title, or that Elimination System permit for the the regulatory authority. is not classified as having a significant operation under section 402 of the Clean (ii) An impoundment not included in or high hazard potential under Water Act, 33 U.S.C. 1342, or its state paragraph (c)(3)(i) of this section that is § 780.25(a) of this chapter, and certify or tribal counterpart. designed to control the precipitation of and submit the report required by (3) The water level will be sufficiently the 100-year, 6-hour event, or any paragraph (a)(9)(ii) of this section, stable and be capable of supporting the greater event specified by the regulatory except that a qualified registered intended use. authority. professional engineer must certify all (4) Final grading will provide for § 816.55 What must I do with coal mine waste impounding structures adequate safety and access for proposed covered by § 816.84 of this chapter. The sedimentation ponds, diversions, water users. impoundments, and treatment facilities professional land surveyor must be (5) The impoundment will not result after I no longer need them? experienced in the construction of in diminution of the quality or quantity impoundments. (a) Before seeking final bond release of surface water or groundwater used by under § 800.42(d) of this chapter, you (10) Examinations. (i) Impoundments surrounding landowners for that meet the criteria of § 77.216 of this must— agricultural, industrial, recreational, or (1) Remove all temporary structures title, or that are classified as having a domestic uses. significant or high hazard potential and reclaim the land upon which those (6) The impoundment will be suitable structures were located in accordance under § 780.25(a) of this chapter, must for the approved postmining land use. be examined in accordance with with the approved permit; and (7) Approval of the impoundment will (2) Ensure that all sedimentation § 77.216–3 of this title. not result in retention of spoil piles or (ii) Impoundments that are not subject ponds, diversions, and impoundments ridges that are inconsistent with the approved for retention after final bond to § 77.216 of this title, or that are not definition of approximate original classified as having a significant or high release have been maintained properly contour. and meet all applicable requirements of hazard potential under § 780.25(a) of (8) Approval of the impoundment will the approved permit and this chapter for this chapter, must be examined at least not result in the creation of an excess retention as permanent structures. You quarterly. A qualified person designated spoil fill elsewhere within the permit must renovate the structures if by the operator must examine area. impoundments for the appearance of (9) The impoundment has been necessary to meet the requirements for structural weakness and other designed with dimensions, features, and retention. (b) [Reserved] hazardous conditions. other characteristics that will enhance (11) Emergency procedures. If any fish and wildlife habitat to the extent § 816.56 What additional performance examination or inspection discloses that that doing so is not inconsistent with standards apply to mining activities a potential hazard exists, the person the intended use. conducted in or through an ephemeral who examined the impoundment must (c) Requirements that apply only to stream? promptly inform the regulatory temporary impoundments that rely (a) Compliance with federal, state, authority of the finding and of the primarily upon storage. (1) In lieu of and tribal water quality laws and emergency procedures formulated for meeting the requirements in paragraph regulations. (1) You may conduct public protection and remedial action. (a)(7)(i) of this section, the regulatory surface mining activities in or affecting The regulatory authority must be authority may approve an impoundment waters subject to the jurisdiction of the notified immediately if adequate that relies primarily on storage to Clean Water Act, 33 U.S.C. 1251 et seq., procedures cannot be formulated or control the runoff from the design only if you first obtain all necessary implemented. The regulatory authority precipitation event when you authorizations, certifications, and then must notify the appropriate demonstrate, and a qualified registered permits under that law. agencies that other emergency professional engineer or qualified (2) Surface mining activities must procedures are required to protect the registered professional land surveyor in comply with all applicable state and public. accordance with § 780.25(b) of this tribal laws and regulations concerning (b) Requirements that apply only to chapter certifies, that the impoundment surface water and groundwater. permanent impoundments. A will safely control the design (b) Postmining surface drainage permanent impoundment of water may precipitation event. pattern and stream-channel be created if authorized by the (2) You must use current prudent configuration. If you mine through an regulatory authority in the approved engineering practices to safely remove ephemeral stream, you must construct a permit based upon the following the water from an impoundment postmining surface drainage pattern and demonstration: constructed in accordance with stream-channel configurations that are (1) The size and configuration of the paragraph (c)(1) of this section. consistent with the surface drainage impoundment will be adequate for its (3) An impoundment constructed in pattern and stream-channel intended purposes. accordance with paragraph (c)(1) of this configurations approved in the permit

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00337 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93402 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

in accordance with § 780.27 of this postmining land use that is through a perennial or intermittent chapter. implemented before final bond release stream, you must establish a vegetative (c) Establishment of streamside under §§ 800.40 through 800.43 of this corridor at least 100 feet wide along vegetative corridors. (1) If you mine chapter. each bank of the reconstructed stream through an ephemeral stream, you must channel. The corridor must be establish a vegetative corridor at least § 816.57 What additional performance consistent with natural vegetation standards apply to mining activities 100 feet wide along each bank of the conducted in or through a perennial or patterns. reconstructed stream channel. The 100- intermittent stream or on the surface of land (ii) You must establish a vegetative foot distance must be measured within 100 feet of a perennial or intermittent corridor on any land that you disturb horizontally on a line perpendicular to stream? within 100 feet of a perennial or the stream, beginning at the ordinary (a) Compliance with federal, state, intermittent stream. The corridor must high water mark. The corridor must be and tribal water quality laws and be consistent with natural vegetation consistent with natural vegetation regulations. (1) You may conduct patterns. patterns. surface mining activities in or affecting (iii) If you divert a perennial or (2) When planting the streamside waters subject to the jurisdiction of the intermittent stream, you must establish vegetative corridors required by Clean Water Act, 33 U.S.C. 1251 et seq., a vegetative corridor at least 100 feet paragraph (c)(1) of this section, you only if you first obtain all necessary wide along each bank of the stream- must— authorizations, certifications, and channel diversion, with the exception of (i) Use appropriate native species permits under that law. temporary diversions that will be in adapted to the area, unless an agency (2) Surface mining activities must place less than 3 years. The corridor responsible for implementing section comply with all applicable state and must be consistent with natural 404 of the Clean Water Act, 33 U.S.C. tribal laws and regulations concerning vegetation patterns. 1344, requires the use of non-native surface water and groundwater. (iv) The 100-foot distance mentioned species. (b) Prohibition on mining in or within in paragraphs (d)(1)(i) through (iii) of (ii) Ensure that the species planted are 100 feet of a perennial or intermittent this section must be measured consistent with the revegetation plan stream. You may not conduct surface horizontally on a line perpendicular to approved in the permit. mining activities in or through a the stream, beginning at the ordinary (iii) Include appropriate native perennial or intermittent stream, or that high water mark. hydrophytic vegetation, vegetation would disturb the surface of land within (2) When planting the streamside typical of floodplains, or hydrophilic 100 feet of a perennial or intermittent vegetative corridors required by vegetation characteristic of riparian stream, unless the regulatory authority paragraph (d)(1) of this section, you areas and wetlands to the extent that the authorizes you to do so in the permit must— corridor contains suitable habitat for after making the findings required under (i) Use appropriate native species those species and the stream and the § 780.28 of this chapter. The 100-foot adapted to the area, unless an agency geomorphology of the area are capable distance must be measured horizontally responsible for implementing section of supporting vegetation of that nature. on a line perpendicular to the stream, 404 of the Clean Water Act, 33 U.S.C. (iv) Use native trees and shrubs when beginning at the ordinary high water 1344, requires the use of non-native planting areas within the streamside mark. species. corridor that were forested at the time (c) Postmining surface drainage (ii) Ensure that the species planted are of application or that would revert to pattern and stream-channel consistent with the revegetation plan forest under conditions of natural configuration. (1) If you mine through or approved in the permit. succession. permanently divert a perennial or (iii) Include appropriate native (3) Paragraphs (c)(1) and (2) of this intermittent stream, you must construct hydrophytic vegetation, vegetation section do not require planting of a postmining surface drainage pattern typical of floodplains, or hydrophilic hydrophytic or hydrophilic species and stream-channel configurations that vegetation characteristic of riparian within those portions of streamside are consistent with the surface drainage areas and wetlands to the extent that the corridors where the stream, soils, or pattern and stream-channel corridor contains suitable habitat for climate are incapable of providing the configurations approved in the permit those species and the stream and the moisture or other growing conditions in accordance with § 780.28 of this geomorphology of the area are capable needed to support and sustain chapter. of supporting vegetation of that nature. hydrophytic or hydrophilic species. In (2) Upon completion of construction (iv) Use native trees and shrubs when those situations, you must plant the of a stream-channel diversion for a planting areas within the streamside corridor with appropriate native species perennial or intermittent stream, or corridor that were forested at the time that are consistent with the baseline reconstruction of a stream channel after of application or that would revert to information concerning natural mining through a perennial or forest under conditions of natural streamside vegetation included in the intermittent stream, you must obtain a succession. permit application under § 779.19 of certification from a qualified registered (3) Paragraphs (d)(1) and (2) of this this chapter, unless otherwise directed professional engineer that the stream- section do not require planting of by an agency responsible for channel diversion or reconstructed hydrophytic or hydrophilic species implementing section 404 of the Clean stream channel has been constructed in within those portions of streamside Water Act, 33 U.S.C. 1344. accordance with the design approved in corridors where the stream, soils, or (4) Paragraphs (c)(1) through (3) of the permit and that it meets all climate are incapable of providing the this section do not apply to— engineering-related requirements of this moisture or other growing conditions (i) Prime farmland historically used section. This certification may be needed to support and sustain for cropland; or limited to the location, dimensions, and hydrophytic or hydrophilic species. In (ii) Situations in which establishment physical characteristics of the stream those situations, you must plant the of a streamside vegetative corridor channel. corridor with appropriate native species comprised of native species would be (d) Establishment of streamside that are consistent with the baseline incompatible with an approved vegetative corridors. (1)(i) If you mine information concerning natural

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00338 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93403

streamside vegetation included in the (2) If approved in the permit, the that reaffecting the land in the future permit application under § 779.19 of prohibition in paragraph (h)(1) of this through surface coal mining operations this chapter, unless otherwise directed section will not apply to excess spoil is minimized. by an agency responsible for fills, coal mine waste refuse piles, or implementing section 404 of the Clean coal mine waste impounding structures § 816.61 Use of explosives: General requirements. Water Act, 33 U.S.C. 1344. in steep-slope areas when you (4) Paragraphs (d)(1) through (3) of demonstrate, and the regulatory (a) Compliance with other laws and this section do not apply to— authority finds in writing, that use of a regulations. You must comply with all (i) Prime farmland historically used perennial or intermittent stream applicable state and federal laws and for cropland; or segment as a waste treatment system for regulations governing the use of (ii) Situations in which establishment sediment control or construction of a explosives. (b) Compliance with blasting of a streamside vegetative corridor sedimentation pond or other siltation schedule. Blasts that use more than 5 comprised of native species would be structure in a perennial or an pounds of explosive or blasting agent incompatible with an approved intermittent stream would have less must be conducted according to the postmining land use that is overall adverse impact on fish, wildlife, schedule required by § 816.64 of this implemented before final bond release and related environmental values than part. under §§ 800.40 through 800.43 of this construction of diversions and (c) Requirements for blasters. (1) No chapter. sedimentation ponds or other siltation later than 12 months after the blaster (e) Restoration of form. If you mine structures on slopes above the stream. certification program for a state required through or permanently divert a (3) When the circumstances described by part 850 of this chapter has been perennial or intermittent stream, you in paragraph (h)(2) of this section exist, approved under the procedures of must demonstrate successful restoration the following requirements apply: subchapter C of this chapter, all blasting or reconstruction of the form of the (i) You must minimize the length of operations in that state must be stream channel in accordance with the stream used as a waste treatment system conducted under the direction of a design approved in the permit before to the extent possible and, when certified blaster. Before that time, all you qualify for Phase I bond release practicable, maintain an undisturbed blasting operations in that state must be under § 800.42(b)(1) of this chapter. buffer along that stream segment in conducted by competent, experienced (f) Restoration of hydrologic function. accordance with paragraph (b) of this section. persons who understand the hazards If you mine through or permanently involved. divert a perennial or intermittent (ii) You must place the sedimentation pond or other siltation structure as close (2) Certificates of blaster certification stream, you must demonstrate must be carried by blasters or be on file restoration of the hydrologic function of to the toe of the excess spoil fill, coal mine waste refuse pile, or coal mine at the permit area during blasting the reconstructed stream segment before operations. you qualify for Phase II bond release waste impounding structure as possible. (iii) Following the completion of (3) A blaster and at least one other under § 800.42(b)(2) of this chapter. person shall be present at the firing of Restoration of the hydrologic function construction and revegetation of the fill or coal mine waste structure, you a blast. includes, but is not limited to, (4) Any blaster who is responsible for restoration of the flow regime, except as must— (A) Remove and properly dispose of conducting blasting operations at a otherwise approved in the permit under blasting site must: § 780.28(e)(2) of this chapter. accumulated sediment in the siltation structure and any stream segment (i) Be familiar with the blasting plan (g) Restoration of ecological function. between the inlet of the siltation and site-specific performance standards; If you mine through or permanently structure and the toe of the excess spoil and divert a perennial or intermittent fill or coal mine waste structure; (ii) Give direction and on-the-job stream, the reconstructed stream or (B) Remove the sedimentation pond training to persons who are not certified stream-channel diversion must meet the or other siltation structure; and and who are assigned to the blasting criteria approved in the permit for (C) Restore the stream segment in crew or who assist in the use of determining restoration of ecological accordance with paragraphs (e) through explosives. function, as established by the (g) of this section. (d) Blast design. (1) You must submit regulatory authority under § 780.28(g) of (i) Programmatic alternative. an anticipated blast design if blasting this chapter, before you qualify for final Paragraphs (b) through (h) of this operations will be conducted within— bond release under §§ 800.40 through section will not apply to a state program (i) 1,000 feet of any building used as 800.43 of this chapter. approved under subchapter T of this a dwelling, public building, school, (h) Prohibition on placement of chapter if that program is amended to church, or community or institutional siltation structures in perennial or expressly prohibit all surface mining building outside the permit area; or intermittent streams. (1)(i) Except as activities, including the construction of (ii) 500 feet of an active or abandoned provided in paragraph (h)(2) of this stream-channel diversions, that would underground mine. section, you may not construct a result in more than a de minimis (2) You must submit the blast design siltation structure in a perennial or disturbance of land in or within 100 feet required by paragraph (d)(1) of this intermittent stream or use perennial or of a perennial or intermittent stream. section either as part of the permit intermittent streams as waste treatment application or, if approved by the systems to convey surface runoff from § 816.59 How must I maximize coal regulatory authority, at a later date the disturbed area to a sedimentation recovery? before blasting begins. Regulatory pond. You must conduct surface mining authority approval of the blast design is (ii) Paragraph (h)(1)(i) of this section activities so as to maximize the not required, but, as provided in does not prohibit the construction of a utilization and conservation of the coal, paragraph (d)(5) of this section, the siltation structure in a stream channel while using the best appropriate regulatory authority may require immediately downstream of a stream technology currently available to changes to the design. segment that is mined through. maintain environmental integrity, so (3) The blast design must contain—

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00339 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93404 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(i) Sketches of the drill patterns, delay planned initiation of blasting before the (5) Type and patterns of audible blast periods, and decking. initiation of blasting. warning and all-clear signals to be used (ii) The type and amount of before and after blasting. explosives to be used. § 816.64 Use of explosives: Blasting (iii) Critical dimensions. schedule. § 816.66 Use of explosives: Blasting signs, (iv) The location and general (a) General requirements. (1) You warnings, and access control. description of structures to be protected. must conduct blasting operations at (a) Blasting signs. Blasting signs must (v) A discussion of design factors to times approved by the regulatory meet the specifications of § 816.11 of be used to protect the public and meet authority and announced in the blasting this part. the applicable airblast, flyrock, and schedule. The regulatory authority may (1) You must place conspicuous signs ground-vibration standards in § 816.67 limit the area covered, the timing, and reading ‘‘Blasting Area’’ along the edge of this part. the sequence of blasting if those of any blasting area that comes within (4) A certified blaster must prepare limitations are necessary and reasonable 100 feet of any public road right-of-way and sign the blast design. to protect public health and safety or and at the point where any other road (5) The regulatory authority may welfare. provides access to the blasting area. require changes to the design submitted. (2) You must conduct all blasting (2) You must place conspicuous signs § 816.62 Use of explosives: Preblasting between sunrise and sunset, unless the reading ‘‘Warning! Explosives in Use’’ at survey. regulatory authority approves night-time all entrances to the permit area from (a) At least 30 days before initiation blasting based upon a showing that the public roads or highways. The signs of blasting, you must notify, in writing, public will be protected from adverse must clearly list and describe the all residents or owners of dwellings or noise and other impacts. The regulatory meaning of the audible blast warning and all-clear signals that are in use and other structures located within 1⁄2 mile authority may specify more restrictive of the permit area how to request a time periods for blasting. explain the marking of blasting areas preblasting survey. (3)(i) You may conduct unscheduled and charged holes awaiting firing within (b)(1) A resident or owner of a blasts only where public or operator the permit area. dwelling or structure within 1⁄2 mile of health and safety so require and for (b) Warnings. You must give blast any part of the permit area may request emergency blasting actions. warning and all-clear signals of different a preblasting survey. This request must (ii) When you conduct an character or pattern that are audible be made, in writing, directly to you or unscheduled blast, you must use within a range of 1⁄2 mile from the point to the regulatory authority. If the request audible signals to notify residents of the blast. You must notify each is made to the regulatory authority, the within 1⁄2 mile of the blasting site. person within the permit area and each regulatory authority will promptly (iii) You must document the reason person who resides or regularly works notify you. for the unscheduled blast in accordance within 1⁄2 mile of the permit area of the (2) You must promptly conduct a with § 816.68(c)(16) of this part. meaning of the signals in the blasting preblasting survey of the dwelling or (b) Blasting schedule publication and schedule. structure and promptly prepare a distribution. (1) You must publish the (c) Access control. You must control written report of the survey. blasting schedule in a newspaper of access within the blasting area to (3) You must conduct an updated general circulation in the locality of the prevent presence of livestock or survey of any subsequent additions, blasting site at least 10 days, but not unauthorized persons during blasting modifications, or renovations to the more than 30 days, before beginning a and until your authorized representative dwelling or structure, if requested by blasting program. has reasonably determined that— the resident or owner. (2) You must distribute copies of the (1) No unusual hazards, such as (c) You must determine the condition schedule to local governments and imminent slides or undetonated of the dwelling or structure and public utilities and to each local charges, exist; and document any preblasting damage and (2) Access to and travel within the residence within 1⁄2 mile of the other physical factors that could proposed blasting site described in the blasting area can be safely resumed. reasonably be affected by the blasting. schedule. Structures such as pipelines, cables, § 816.67 Use of explosives: Control of (3) You must republish and adverse effects. transmission lines, and cisterns, wells, redistribute the schedule at least every (a) General requirements. You must and other water systems warrant special 12 months and revise and republish the attention; however, the assessment of conduct blasting in a manner that schedule at least 10 days, but not more prevents— these structures may be limited to than 30 days, before blasting whenever surface conditions and other readily (1) Injury to persons; the area covered by the schedule (2) Damage to public or private available data. changes or actual times for blasting (d)(1) The person who conducted the property outside the permit area; significantly differ from the prior survey must sign the written report of (3) Adverse impacts on any announcement. the survey. underground mine; or (2) You must promptly provide copies (c) Blasting schedule contents. The (4) Change in the course, channel, or of the report to the regulatory authority blasting schedule must contain, at a availability of surface water or and to the person requesting the survey. minimum, the— groundwater outside the permit area. (3) If the person requesting the survey (1) Name, address, and telephone (b) Airblast.—(1) Limits. (i) Airblast disagrees with the contents or number of the operator; must not exceed the maximum limits recommendations of the survey, he or (2) Identification of the specific areas listed below at the location of any she may submit a detailed description of in which blasting will take place; dwelling, public building, school, the specific areas of disagreement to (3) Dates and times when explosives church, or community or institutional both you and the regulatory authority. are to be detonated; building outside the permit area, except (e) You must complete any surveys (4) Methods to be used to control as provided in paragraph (e) of this requested more than 10 days before the access to the blasting area; and section.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00340 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93405

Lower frequency limit of measuring system in Hertz (Hz), plus or minus 3 decibels Maximum level in decibels (dB)

0.1 Hz or lower—flat response 1 ...... 134 peak. 2 Hz or lower—flat response ...... 133 peak. 6 Hz or lower—flat response ...... 129 peak. C-weighted—slow response 1 ...... 105 peak dBC. 1 Only when approved by the regulatory authority.

(ii) If necessary to prevent damage, (2) Beyond the area of control of this section, or by the regulatory the regulatory authority must specify required under § 816.66(c) of this part; authority under paragraph (d)(5) of this lower maximum allowable airblast or section. levels than those of paragraph (b)(1)(i) of (3) Beyond the permit boundary. (iii) All structures in the vicinity of this section for use in the vicinity of a (d) Ground vibration.—(1) General the blasting area not listed in paragraph specific blasting operation. requirements. (i) In all blasting (d)(2)(i) of this section, such as water (2) Monitoring. (i) You must conduct operations, except as otherwise towers, pipelines and other utilities, periodic monitoring to ensure authorized in paragraph (e) of this tunnels, dams, impoundments, and compliance with the airblast standards. section, the maximum ground vibration underground mines, must be protected The regulatory authority may require must not exceed the values approved in from damage by establishment of a airblast measurement of any or all blasts maximum allowable limit on the ground and may specify the locations at which the blasting plan required under vibration, submitted by the operator in measurements are taken. § 780.15 of this chapter. the blasting plan and approved by the (ii) The measuring systems must have (ii) The maximum ground vibration an upper-end flat-frequency response of for protected structures listed in regulatory authority. at least 200 Hz. paragraph (d)(2)(i) of this section must (2) Maximum peak particle velocity. (c) Flyrock. Flyrock travelling in the be established in accordance with either (i) The maximum ground vibration must air or along the ground must not be cast the maximum peak-particle-velocity not exceed the following limits at the from the blasting site— limits of paragraph (d)(2) of this section, location of any dwelling, public (1) More than one-half the distance to the scaled-distance equation of building, school, church, or community the nearest dwelling or other occupied paragraph (d)(3) of this section, the or institutional building outside the structure; blasting-level chart of paragraph (d)(4) permit area:

Maximum allow- Scaled-distance able peak particle factor to be ap- Distance (D), from the blasting site, in feet velocity for ground plied without seis- vibration, in mic monitoring inches/second 1 (Ds) 2

0 to 300 ...... 1.25 50 301 to 5,000 ...... 1.00 55 5,001 and beyond ...... 0.75 65 1 Ground vibration must be measured as the particle velocity. Particle velocity must be recorded in three mutually perpendicular directions. The maximum allowable peak particle velocity applies to each of the three measurements. 2 Applicable to the scaled-distance equation of paragraph (d)(3)(i) of this section.

(ii) You must provide a seismographic factor. The regulatory authority may determined such that the particle record for each blast. initially approve the scaled-distance velocity of the predicted ground (3) Scaled-distance equation. (i) You equation using the values for the scaled- vibration will not exceed the prescribed may use the scaled-distance equation, distance factor listed in paragraph maximum allowable peak particle W=(D/Ds)2, to determine the allowable (d)(2)(i) of this section. velocity of paragraph (d)(2)(i) of this charge weight of explosives to be (ii) The regulatory authority may section at a 95-percent confidence level. detonated in any 8-millisecond period, authorize development of a modified without seismic monitoring, where scaled-distance factor upon receipt of a (4) Blasting-level chart. (i) You may W=the maximum weight of explosives, written request by the operator, use the ground-vibration limits in in pounds; D=the distance, in feet, from supported by seismographic records of Figure 1 to determine the maximum the blasting site to the nearest protected blasting at the minesite. The modified allowable ground vibration. structure; and Ds=the scaled-distance scale-distance factor must be

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00341 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93406 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(ii) If the Figure 1 limits are used, you § 816.68 Use of explosives: Records of (11) The maximum weight of must provide a seismographic record blasting operations explosives detonated in an 8- including both particle velocity and (a) You must retain a record of all millisecond period. vibration-frequency levels for each blast. blasts for at least 3 years. (12) Initiation system. The regulatory authority must approve (b) Upon request, you must make (13) Type and length of stemming. the method for the analysis of the copies of these records available to the (14) Mats or other protections used. (15) Seismographic and airblast predominant frequency contained in the regulatory authority and to the public records, if required, which must blasting records before application of for inspection. include— this alternative blasting criterion. (c) The records must contain the following data: (i) Type of instrument, sensitivity, (5) The regulatory authority must (1) Name of the operator conducting and calibration signal or certification of reduce the maximum allowable ground the blast. annual calibration; vibration beyond the limits otherwise (2) Location, date, and time of the (ii) Exact location of instrument and provided by this section, if determined blast. the date, time, and distance from the necessary to provide damage protection. (3) Name, signature, and certification blast; (iii) Name of the person and firm (6) The regulatory authority may number of the blaster conducting the taking the reading; blast. require that you conduct seismic (iv) Name of the person and firm (4) Identification, direction, and monitoring of any or all blasts or may analyzing the seismographic record; and specify the location at which the distance, in feet, from the nearest blast (v) The vibration and/or airblast level measurements are taken and the degree hole to the nearest dwelling, public recorded. of detail necessary in the measurement. building, school, church, community or (16) Reasons and conditions for each institutional building outside the permit unscheduled blast. (e) The maximum airblast and area, except those described in ground-vibration standards of § 816.67(e) of this part. § 816.71 How must I dispose of excess paragraphs (b) and (d) of this section do (5) Weather conditions, including spoil? not apply at the following locations: those which may cause possible adverse (a) General requirements. You, the (1) At structures owned by the blasting effects. permittee or operator, must permittee and not leased to another (6) Type of material blasted. mechanically transport and place excess person. (7) Sketches of the blast pattern, spoil in designated disposal areas, (2) At structures owned by the including number of holes, burden, including approved valley fills and permittee and leased to another person, spacing, decks, and delay pattern. other types of approved fills, within the (8) Diameter and depth of holes. permit area in a controlled manner in if a written waiver by the lessee is (9) Types of explosives used. compliance with the requirements of submitted to the regulatory authority (10) Total weight of explosives used this section. In general, you must place before blasting. per hole. excess spoil in a manner that will—

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00342 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 ER20DE16.000 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93407

(1) Minimize the adverse effects of foundation and abutments of the fill determine the peak flow from surface leachate and surface water runoff from must be stable under all conditions of runoff from this event. the fill on groundwater and surface construction. (2) You must grade the top surface of water, including aquatic life, within the (2) Special requirement for steep- a completed fill such that the final slope permit and adjacent areas. slope conditions. Where the slope in the after settlement will be toward properly (2) Ensure mass stability and prevent disposal area exceeds 2.8h:1v (36 designed drainage channels. You may mass movement during and after percent), or any lesser slope designated not direct uncontrolled surface runoff construction. by the regulatory authority based on over the outslope of the fill. (3) Ensure that the final surface local conditions, you must construct (f) Control of water within the configuration of the fill is suitable for bench cuts (excavations into stable footprint of the fill.—(1) General revegetation and the approved bedrock) or rock-toe buttresses to ensure requirements. If the disposal area postmining land use or uses and is fill stability. contains springs, natural or manmade compatible with the natural drainage (c) Compliance with permit. You must water courses, or wet weather seeps, pattern and surroundings. construct the fill in accordance with the you must design and construct (4) Minimize disturbances to, and design and plans approved in the permit underdrains and temporary diversions adverse impacts on, fish, wildlife, and in accordance with § 780.35 of this as necessary to control erosion, prevent related environmental values to the chapter. water infiltration into the fill, and extent possible, using the best (d) Requirements for handling of ensure stability. technology currently available. (5) Ensure that the fill will not change organic matter and soil materials. You (2) Temporary diversions. Temporary the size or frequency of peak flows from must remove all vegetation, other diversions must comply with the precipitation events or thaws in a way organic matter, and soil materials from requirements of § 816.43 of this part. that would result in an increase in the disposal area prior to placement of (3) Underdrains. (i) You must flooding when compared with the the excess spoil. You must store, construct underdrains that are impacts of premining peak flows. redistribute, or otherwise use those comprised of hard rock that is resistant (6) Ensure that the fill will not cause materials in accordance with § 816.22 of to weathering. or contribute to a violation of applicable this part. You may use soil substitutes (ii) You must design and construct state or tribal groundwater standards or and supplements if approved in the underdrains using current, prudent preclude any premining use of permit in accordance with § 780.12(e) of engineering practices and any design groundwater. this chapter. criteria established by the regulatory (7) Ensure that the fill will not cause (e) Surface runoff control authority. or contribute to a violation of applicable requirements. (1) You must direct (iii) In constructing rock underdrains, state or tribal water quality standards for surface runoff from areas above the fill you may use only hard rock that is surface water located downstream of the and runoff from the surface of the fill resistant to weathering, such as well- toe of the fill, including, but not limited into stabilized channels designed to— cemented sandstone and massive to, water quality standards established (i) Meet the requirements of § 816.43 limestone, and that is not acid-forming under the authority of section 303(c) of of this part; and or toxic-forming. The underdrain must the Clean Water Act, 33 U.S.C. 1313(c). (ii) Safely pass the runoff from the be free of soil and fine-grained, clastic (b) Stability requirements—(1) Static 100-year, 6-hour precipitation event. rocks such as siltstone, shale, mudstone, safety factor. You must design and You must use the appropriate regional and claystone. All rock used to construct the fill to attain a minimum Natural Resources Conservation Service construct underdrains must meet the long-term static safety factor of 1.5. The synthetic storm distribution to criteria in the following table:

Test ASTM standard AASHTO standard Acceptable results

Los Angeles Abrasion ...... C 131 or C 535 ...... T 96 ...... Loss of no more than 50 percent of test sample by weight. Sulfate Soundness ...... C 88 or C 5240 ...... T 104 ...... Sodium sulfate test: Loss of no more than 12 percent of test sample by weight. Magnesium sulfate test: Loss of no more than 18 percent of test sample by weight.

(iv) The underdrain system must be demonstrated to be suitable for the deep ensure mass stability and to prevent designed and constructed to carry the burial conditions commonly associated mass movement during and after maximum anticipated infiltration of with excess spoil fill underdrains. construction; and graded so that surface water due to precipitation, snowmelt, (vi) The underdrain system must be and subsurface drainage is compatible and water from seeps and springs in the protected from material piping, with the natural surroundings. foundation of the disposal area away clogging, and contamination by an (2) You may not use any excess spoil from the excess spoil fill. adequate filter system designed and transport and placement technique that (v) To provide a safety factor against constructed using current, prudent involves end-dumping, wing-dumping, future changes in local surface-water engineering practices to ensure the long- cast-blasting, gravity placement, or term functioning of the underdrain and groundwater hydrology, perforated casting spoil downslope. pipe may be embedded within the rock system. underdrain to enhance the underdrain (g) Placement of excess spoil. (1) (3) Acid-forming, toxic-forming, and capacity to carry water in excess of the Using mechanized equipment, you must combustible materials. (i) You must anticipated maximum infiltration away transport and place excess spoil in a handle acid-forming and toxic-forming from the excess spoil fill. The pipe must controlled manner in horizontal lifts not materials in accordance with § 816.38 of be manufactured of materials that are exceeding 4 feet in thickness; this part and in a manner that will not susceptible to corrosion and must be concurrently compacted as necessary to minimize adverse effects on plant

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00343 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93408 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

growth and the approved postmining You must revegetate all disturbed areas, those conditions exists, you must land use. including diversion channels that are submit an application for a permit (ii) You must cover combustible not riprapped or otherwise protected, revision that includes appropriate materials with noncombustible upon completion of construction. remedial design specifications. materials in a manner that will prevent (k) Inspections and examinations. (1) (iv) The report prepared under sustained combustion and minimize A qualified registered professional paragraph (k)(3)(i) of this section must adverse effects on plant growth and the engineer, or other qualified professional contain— approved postmining land use. specialist under the direction of the (A) A review and summary of all (h) Final configuration. (1) The final professional engineer, must inspect the complete inspections conducted during configuration of the fill must be suitable fill at least quarterly during the quarter under paragraph (k)(1) of for the approved postmining land use, construction, with additional complete this section. compatible with the natural drainage inspections conducted during critical (B) A review and summary of all pattern and the surrounding terrain, construction periods. The professional examinations conducted during the and, to the extent practicable, consistent engineer or specialist must be quarter under paragraph (k)(2) of this with natural landforms. experienced in the construction of earth section, including the logs maintained (2) You may construct terraces on the and rock fills. Critical construction under paragraph (k)(2)(ii) of this section. outslope of the fill if required for periods include, at a minimum— (C) The photographs taken under stability, to control erosion, to conserve (i) Foundation preparation, including paragraph (k)(2)(i) of this section. soil moisture, or to facilitate the the removal of all organic matter and (v) Each certified report prepared approved postmining land use. The soil materials. under paragraph (k)(3) of this section for grade of the outslope between terrace (ii) Placement of underdrains and a quarter in which construction benches may not be steeper than 2h: 1v protective filter systems. activities include placement of (50 percent). (iii) Installation of final surface underdrains and protective filter (3)(i) You must configure the top drainage systems. systems must include color photographs (2) An engineer or specialist meeting surface of the fill to create a topography taken during and after construction, but the qualifications of paragraph (k)(1) of that includes ridgelines and valleys before underdrains are covered with this section also must— with varied hillslope configurations excess spoil. If the underdrain system is when practicable, compatible with (i) Conduct daily examinations during placement and compaction of fill constructed in phases, each phase must stability and postmining land use be certified separately. The photographs considerations, and generally consistent materials or, when more than one lift is completed per day, upon completion of must be taken in adequate size and with the topography of the area before number with enough terrain or other any mining. each 4-foot lift. As an alternative, the engineer or specialist may conduct physical features of the site shown to (ii) The final surface elevation of the provide a relative scale to the fill may exceed the elevation of the examinations on a weekly basis if a mine representative takes photographs photographs and to specifically and surrounding terrain when necessary to clearly identify the site. minimize placement of excess spoil in on a daily basis to document the lift thickness and elevation with visual (4) You must retain a copy of each perennial and intermittent streams, certified report prepared under provided the final configuration reference features. The certified report required by paragraph (k)(3) of this paragraph (k)(3) of this section at or near complies with the requirements of the mine site. paragraphs (a)(3) and (h)(1) of this section must include this photographic documentation. (l) Coal mine waste. You may dispose section. of coal mine waste in excess spoil fills (iii) The geomorphic reclamation (ii) Maintain a log recording the only if approved by the regulatory requirements of paragraph (h)(3)(i) of examinations conducted under authority and only if— this section do not apply in situations paragraph (k)(2)(i) of this section for (1) You demonstrate, and the in which they would result in burial of each 4-foot lift in each fill. The log must regulatory authority finds in writing, a greater length of perennial or include a description of the specific that the disposal of coal mine waste in intermittent streams than traditional fill work locations, excess spoil placement the excess spoil fill will not— design and construction techniques. methods, compaction adequacy, lift (i) Impoundments and depressions. thickness, suitability of fill material, (i) Cause or contribute to a violation No permanent impoundments are special handling of acid-forming and of applicable state or tribal water quality allowed on the completed fill. You may toxic-forming materials, deviations from standards or effluent limitations, construct small depressions if they— the approved permit, and remedial including, but not limited to, water (1) Are needed to retain moisture, measures taken. quality standards established under the minimize erosion, create or enhance (3)(i) The qualified registered authority of section 303(c) of the Clean wildlife habitat, or assist revegetation; professional engineer to which Water Act, 33 U.S.C. 1313(c), and (2) Are not incompatible with the paragraph (k)(1) of this section refers effluent limitations established in any stability of the fill; must provide a certified report to the National Pollutant Discharge (3) Are consistent with the hydrologic regulatory authority on a quarterly basis. Elimination System permit issued for reclamation plan approved in the permit (ii) In each report prepared under the operation under section 402 of the in accordance with § 780.22 of this paragraph (k)(3)(i) of this section, the Clean Water Act, 33 U.S.C. 1342, or its chapter; engineer must certify that the fill has state or tribal counterpart; (4) Will not result in elevated levels been constructed and maintained as (ii) Cause or contribute to a violation of parameters of concern in discharges designed and in accordance with the of applicable state or tribal water quality from the fill; and approved plan and this chapter. standards for groundwater; or (5) Are approved by the regulatory (iii) The report prepared under (iii) Result in material damage to the authority. paragraph (k)(3)(i) of this section must hydrologic balance outside the permit (j) Surface area stabilization. You identify and discuss any evidence of area. must provide slope protection to instability, structural weakness, or other (2) The waste is placed in accordance minimize surface erosion at the site. hazardous conditions. If one of more of with §§ 816.81 and 816.83 of this part.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00344 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93409

(3) The waste is nontoxic-forming, (2) Any spoil deposited on any fill groundwater and surface water, nonacid-forming, and non-combustible. portion of the bench must be treated as including aquatic life, within the permit (4) The waste is of the proper an excess spoil fill under § 816.71 of and adjacent areas to the extent characteristics to be consistent with the this part. possible, using the best technology design stability of the fill. (e) You must grade the spoil placed currently available. (m) Underground disposal. You may on the preexisting bench to— (2) Ensure mass stability and prevent dispose of excess spoil in underground (1) Achieve a stable slope that does mass movement during and after mine workings only in accordance with not exceed the angle of repose. construction. a plan approved by the regulatory (2) Eliminate the preexisting highwall (3) Ensure that the final disposal authority and the Mine Safety and to the maximum extent technically facility is suitable for revegetation, Health Administration under § 784.26 of practical, using all reasonably available compatible with the natural this chapter. spoil, as that term is defined in § 701.5 surroundings, and consistent with the of this chapter. approved postmining land use. § 816.72 [Reserved] (3) Minimize erosion and water (4) Not create a public hazard. (5) Prevent combustion. § 816.73 [Reserved] pollution both on and off the site. (f) All disturbed areas, including (6) Ensure that the disposal facility § 816.74 What special requirements apply diversion channels that are not will not change the size or frequency of to the disposal of excess spoil on a riprapped or otherwise protected, must peak flows from precipitation events or preexisting bench? be revegetated upon completion of thaws in a way that would result in an (a) General requirements. The construction. increase in flooding when compared regulatory authority may approve the (g) You may not construct permanent with the impacts of premining peak disposal of excess spoil through impoundments on preexisting benches flows. placement on a preexisting bench on a on which excess spoil is placed under (7) Ensure that the disposal facility previously mined area or a bond this section. will not cause or contribute to a forfeiture site if— (h) The final configuration of the fill violation of applicable state or tribal (1) The proposed permit area includes on the preexisting bench must— groundwater standards or preclude any the portion of the preexisting bench on (1) Be compatible with natural premining use of groundwater. (8) Ensure that the disposal facility which the spoil will be placed; drainage patterns and the surrounding will not cause or contribute to a (2) The proposed operation will area. violation of applicable state or tribal comply with the applicable (2) Support the approved postmining water quality standards for surface requirements of § 816.102 of this part; land use. water located downstream of the toe of and § 816.79 What measures must I take to the fill, including, but not limited to, (3) The requirements of this section protect underground mines in the vicinity of water quality standards established are met. my surface mine? under the authority of section 303(c) of (b) Requirements for removal and No surface mining activities may be the Clean Water Act, 33 U.S.C. 1313(c). disposition of vegetation, other organic conducted closer than 500 feet to any (9) Ensure that the disposal facility matter, and soil materials. You must point of either an active or abandoned will not discharge acid or toxic mine remove all vegetation, other organic underground mine, except to the extent drainage. matter, topsoil, and subsoil from the that— (c) Coal mine waste from outside the disposal area prior to placement of the (a) The activities result in improved permit area. You may dispose of coal excess spoil and store, redistribute, or resource recovery, abatement of water mine waste materials from activities otherwise use those materials in pollution, or elimination of hazards to located outside the permit area within accordance with § 816.22 of this part. the health and safety of the public; and the permit area only if approved by the You may use soil substitutes and (b) The nature, timing, and sequence regulatory authority. Approval must be supplements if approved in the permit of the activities that propose to mine based upon a showing that disposal will in accordance with § 780.12(e) of this closer than 500 feet to an active be in accordance with the standards of chapter. underground mine are jointly approved this section. (c)(1) The fill must be designed and by the regulatory authority, the Mine (d) Design and construction constructed using current, prudent Safety and Health Administration, and requirements. (1)(i) You must design engineering practices. the state agency, if any, responsible for and construct coal mine waste disposal (2) The design must be certified by a the safety of underground mine workers. facilities using current, prudent registered professional engineer. engineering practices and any design or (3) If the disposal area contains § 816.81 How must I dispose of coal mine construction criteria established by the springs, natural or manmade water waste? regulatory authority. courses, or wet weather seeps, the fill (a) General requirements. If you, the (ii) A qualified registered professional design must include underdrains and permittee, intend to dispose of coal engineer, experienced in the design and temporary diversions as necessary to mine waste in an area other than the construction of similar earth and waste control erosion, prevent water mine workings or excavations, you must structures, must certify the design of the infiltration into the fill, and ensure place the waste in new or existing disposal facility. The engineer must stability. Underdrains must comply disposal areas within a permit area in specifically certify that any existing and with the requirements of § 816.71(f)(3) accordance with this section and, as planned underground mine workings in of this part. applicable, §§ 816.83 and 816.84 of this the vicinity of the disposal facility will (d)(1) The spoil must be placed on the part. not adversely impact the stability of the solid portion of the bench in a (b) Basic performance standards. You structure. controlled manner and concurrently must haul or convey and place the coal (iii) You must construct the disposal compacted as necessary to attain a long- mine waste in a controlled manner to— facility in accordance with the design term static safety factor of 1.3 for all (1) Minimize the adverse effects of and plans submitted under § 780.25 of portions of the fill. leachate and surface-water runoff on this chapter and approved in the permit.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00345 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93410 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

A qualified registered professional springs, natural or manmade water impound coal mine waste must meet the engineer experienced in the design and courses, or wet weather seeps, you must requirements of § 816.81 of this part. construction of similar earth and waste design and construct the refuse pile (b) You may not use coal mine waste structures must certify that the facility with diversions and underdrains as to construct impounding structures has been constructed in accordance necessary to control erosion, prevent unless you demonstrate, and the with the requirements of this paragraph. water infiltration into the disposal regulatory authority finds in writing, (2) You must design and construct the facility, and ensure stability. that the stability of such a structure disposal facility to attain a minimum (2) You may not direct or divert conforms to the requirements of this long-term static safety factor of 1.5. The uncontrolled surface runoff over the part and that the use of coal mine waste foundation and abutments must be outslope of the refuse pile. will not have a detrimental effect on stable under all conditions of (3) You must direct runoff from areas downstream water quality or the construction. above the refuse pile and runoff from environment as a result of acid drainage (e) Foundation investigations. You the surface of the refuse pile into or toxic seepage through the must perform sufficient foundation and stabilized channels designed to meet the impounding structure. You must abutment investigations, as well as any requirements of § 816.43 of this part and discuss the stability of the structure and necessary laboratory testing of to safely pass the runoff from the 100- the prevention and potential impact of foundation material, to determine the year, 6-hour precipitation event. You acid drainage or toxic seepage through design requirements for foundation must use the appropriate regional the impounding structure in detail in stability and control of underseepage. Natural Resources Conservation Service the design plan submitted to the The analyses of the foundation synthetic storm distribution to regulatory authority in accordance with conditions must take into consideration determine the peak flow from surface § 780.25 of this chapter. the effect of any underground mine runoff from this event. (c)(1) You must design, construct, and workings located in the permit and (4) Runoff diverted from undisturbed maintain each impounding structure adjacent areas upon the stability of the areas need not be commingled with constructed of coal mine waste or disposal facility. runoff from the surface of the refuse intended to impound coal mine waste in (f) Soil handling requirements. You pile. accordance with paragraphs (a) and (c) must remove all vegetation, other (5) Underdrains must comply with the of § 816.49 of this part. organic matter, and soil materials from requirements of § 816.71(f) of this part. (2) You may not retain these the disposal area prior to placement of (c) Surface area stabilization. You structures permanently as part of the the coal mine waste. You must store, must provide slope protection to approved postmining land use. redistribute, or otherwise use those minimize surface erosion at the site. (3) Each impounding structure materials in accordance with § 816.22 of You must revegetate all disturbed areas, constructed of coal mine waste or this part. You may use soil substitutes including diversion channels that are intended to impound coal mine waste and supplements if approved in the not riprapped or otherwise protected, that meets the criteria of § 77.216(a) of permit in accordance with § 780.12(e) of upon completion of construction. this title must have sufficient spillway this chapter. (d) Final configuration and cover. (1) capacity to safely pass, adequate storage (g) Emergency procedures. (1) If any The final configuration of the refuse pile capacity to safely contain, or a examination or inspection discloses that must be suitable for the approved combination of storage capacity and a potential hazard exists, you must postmining land use. Terraces may be spillway capacity to safely control, the inform the regulatory authority constructed on the outslope of the probable maximum precipitation of a 6- promptly of the finding and of the refuse pile if required for stability, hour precipitation event or greater event emergency procedures formulated for erosion control, conservation of soil as specified by the regulatory authority. public protection and remedial action. moisture, or facilitation of the approved (d) You must design spillways and (2) If adequate procedures cannot be postmining land use. The grade of the outlet works to provide adequate formulated or implemented, you must outslope between terrace benches may protection against erosion and notify the regulatory authority not be steeper than 2h:1v (50 percent). corrosion. Inlets must be protected immediately. The regulatory authority (2) No permanent impoundments or against blockage. then must notify the appropriate depressions are allowed on the (e) You must direct surface runoff agencies that other emergency completed refuse pile. from areas above the disposal facility procedures are required to protect the (3) Following final grading of the and runoff from the surface of the public. refuse pile, you must cover the coal (h) Underground disposal. You may mine waste with a minimum of 4 feet of facility that may cause instability or dispose of coal mine waste in the best available, nontoxic, and erosion of the impounding structure underground mine workings only in noncombustible material in a manner into stabilized channels designed and accordance with a plan approved by the that does not impede drainage from the constructed to meet the requirements of regulatory authority and the Mine Safety underdrains. The regulatory authority § 816.43 of this part and to safely pass and Health Administration under may allow less than 4 feet of cover the runoff from a 100-year, 6-hour § 784.26 of this chapter. material based on physical and precipitation event. You must use the chemical analyses showing that the appropriate regional Natural Resources § 816.83 What special requirements apply revegetation requirements of §§ 816.111 Conservation Service synthetic storm to coal mine waste refuse piles? and 816.116 of this part will be met. distribution to determine the peak flow (a) General requirements. Refuse piles (e) Inspections. You must comply from surface runoff from this event. must meet the applicable requirements with the inspection and examination (f) For an impounding structure of § 816.81 of this part, the additional requirements of § 816.71(k) of this part. constructed of or impounding coal mine requirements of this section, and the waste, you must remove at least 90 requirements of §§ 77.214 and 77.215 of § 816.84 What special requirements apply percent of the water stored during the this title. to coal mine waste impounding structures? design precipitation event within the (b) Surface runoff and drainage (a) Impounding structures constructed 10-day period following the design control. (1) If the disposal area contains of coal mine waste or intended to precipitation event.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00346 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93411

§ 816.87 What special requirements apply may an excavation for a noncoal mine chapter authorizes the taking of a to burning and burned coal mine waste? waste disposal site be located within 8 species listed as threatened or (a) You must extinguish coal mine feet of any coal outcrop or coal storage endangered under the Endangered waste fires in accordance with a plan area. Species Act of 1973, 16 U.S.C. 1531 et approved by the regulatory authority seq., or the destruction or adverse and the Mine Safety and Health § 816.95 How must I protect surface areas modification of designated critical from wind and water erosion? Administration. The plan must contain, habitat unless the U.S. Fish and Wildlife at a minimum, provisions to ensure that (a) You must protect and stabilize all Service or the National Marine Fisheries only those persons authorized by the exposed surface areas to effectively Service, as applicable, authorizes the operator, and who have an control erosion and air pollution taking of a threatened or endangered understanding of the procedures to be attendant to erosion. species or the destruction or adverse used, are involved in the extinguishing (b)(1) You must fill, regrade, or modification of designated critical operations. otherwise stabilize rills and gullies that habitat under 16 U.S.C. 1536(b)(4) or (b) You may not remove burning or form in areas that have been regraded 1539(a)(1)(B). burned coal mine waste from a and upon which soil or soil substitute (ii) You must promptly report to the permitted coal mine waste disposal area materials have been redistributed. This regulatory authority the presence of any without a removal plan approved by the requirement applies only to rills and previously unreported species listed as regulatory authority. Consideration gullies that— threatened or endangered, or any must be given to potential hazards to (i) Disrupt the approved postmining previously unreported species proposed persons working or living in the vicinity land use or reestablishment of the for listing as threatened or endangered, of the structure. vegetative cover; under the Endangered Species Act of (ii) Cause or contribute to a violation 1973, 16 U.S.C. 1531 et seq., within the § 816.89 How must I dispose of noncoal of applicable state or tribal water quality permit or adjacent areas. This mine wastes? standards or effluent limitations, requirement applies regardless of (a)(1) You must place and store including, but not limited to, water whether the species was listed before or noncoal mine wastes including, but not quality standards established under the after permit issuance. limited to, grease, lubricants, paints, authority of section 303(c) of the Clean (iii)(A) Upon receipt of a notification flammable liquids, garbage, abandoned Water Act, 33 U.S.C. 1313(c), and under paragraph (b)(2)(ii) of this section, mining machinery, lumber, and other effluent limitations established in any the regulatory authority will contact and combustible materials generated during National Pollutant Discharge coordinate with the appropriate state, mining activities, in a controlled Elimination System permit issued for tribal, and federal fish and wildlife manner in a designated portion of the the operation under section 402 of the agencies. permit area. Clean Water Act, 33 U.S.C. 1342, or its (B) The regulatory authority, in (2) Placement and storage of noncoal state or tribal counterpart; coordination with the appropriate state, wastes must ensure that leachate and (iii) Cause or contribute to a violation tribal, and federal fish and wildlife surface runoff do not degrade surface of applicable state or tribal water quality agencies, will identify whether, and water or groundwater, that fires are standards for groundwater; or under what conditions, you may prevented, and that the area remains (iv) Result in material damage to the proceed. When necessary to ensure stable and suitable for reclamation and hydrologic balance outside the permit compliance with the Endangered revegetation compatible with the natural area. Species Act of 1973, 16 U.S.C. 1531 et surroundings. (2) You must reapply soil materials to seq., the regulatory authority will issue (b)(1) Final disposal of noncoal mine the filled or regraded rills and gullies an order under § 774.10(b) of this wastes must be in a designated disposal when necessary to reestablish a chapter requiring that you revise the site within the permit area or in a state- vegetative cover. You must then replant permit. approved solid waste disposal area. those areas. (iv) You must comply with any (2) Disposal sites within the permit species-specific protection measures area must meet the following § 816.97 How must I protect and enhance required by the regulatory authority in requirements: fish, wildlife, and related environmental coordination with the U.S. Fish and (i) The site must be designed and values? Wildlife Service or the National Marine constructed to ensure that leachate and (a) General requirements. You, the Fisheries Service, as applicable. drainage from the noncoal mine waste permittee, must, to the extent possible (2) Requirements related to state and area does not degrade surface water or using the best technology currently tribal endangered species laws. (i) You groundwater. available, minimize disturbances and must promptly report to the regulatory (ii) Wastes must be routinely adverse impacts on fish, wildlife, and authority any previously unreported compacted and covered to prevent related environmental values and state-listed or tribally-listed threatened combustion and wind-borne waste. achieve enhancement of those resources or endangered species within the permit (iii) When the disposal of noncoal where practicable, as described in detail or adjacent areas whenever you become wastes is completed, the site must be in the fish and wildlife protection and aware of its presence. This requirement covered with a minimum of 2 feet of enhancement plan approved in the applies regardless of whether the soil, slopes must be stabilized, and the permit in accordance with § 780.16 of species was listed before or after permit site must be revegetated in accordance this chapter. issuance. with §§ 816.111 through 816.116 of this (b) Requirements related to federal, (ii)(A) Upon receipt of a notification part. state, and tribal endangered species under paragraph (b)(2)(i) of this section, (iv) The disposal site must be laws.—(1) Requirements related to the the regulatory authority will contact and operated in accordance with all local, Endangered Species Act of 1973. (i) You coordinate with the appropriate state or state and federal requirements. may not conduct any surface mining tribal fish and wildlife agencies. (c) At no time may any noncoal mine activity that is in violation of the (B) The regulatory authority, in waste be deposited in a coal mine waste Endangered Species Act of 1973, 16 coordination with the appropriate state refuse pile or impounding structure, nor U.S.C. 1531 et seq. Nothing in this or tribal fish and wildlife agencies, will

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00347 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93412 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

identify whether, and under what practicable, enhance them. If avoidance commercial species with plantings of conditions, you may proceed. When is not possible, you must restore or native trees and shrubs of high value to necessary, the regulatory authority will replace wetlands that you disturb and, wildlife. issue an order under § 774.10(b) of this where practicable, enhance them. (j) Vegetation requirements for other chapter requiring that you revise the (2) Nothing in paragraph (e)(1) of this postmining land uses. Where permit. section authorizes destruction or residential, public service, commercial, (c) Bald and golden eagles. (1) You degradation of wetlands in violation of industrial, or intensive recreational uses may not conduct any surface mining section 404 of the Clean Water Act, 33 are the postmining land use, you must activity in a manner that would result U.S.C. 1344. establish— in the unlawful taking of a bald or (f) Habitat of unusually high value for (1) Greenbelts comprised of non- golden eagle, its nest, or any of its eggs. fish and wildlife. To the extent possible, invasive native plants that provide food (2) You must promptly report to the using the best technology currently or cover for wildlife, unless greenbelts regulatory authority any golden or bald available, you must avoid disturbances would be inconsistent with the eagle nest within the permit area of to and, where practicable, enhance approved postmining land use plan for which you become aware. riparian and other native vegetation that site. (3) Upon notification, the regulatory along rivers and streams, lentic (2)(i) A vegetated buffer at least 100 authority will contact and coordinate vegetation bordering ponds and lakes, feet wide along each bank of all with the U.S. Fish and Wildlife Service and habitat of unusually high value for perennial and intermittent streams and, when appropriate, the state or fish and wildlife, as described in within the permit area. The width of the tribal fish and wildlife agency to § 779.20(c)(3) of this chapter. If buffer must be measured horizontally on identify whether, and under what avoidance of these features is not a line perpendicular to the stream, conditions, you may proceed. possible, you must restore or replace beginning at the ordinary high water (4) Nothing in this chapter authorizes those features and, where practicable, mark. The buffer must be planted with the taking of a bald or golden eagle, its enhance them. species native to the area, including nest, or any of its eggs in violation of the (g) Vegetation requirements for fish species adapted to and suitable for Bald and Golden Eagle Protection Act, and wildlife habitat postmining land planting in any floodplains or other 16 U.S.C. 668–668d. use. Where fish and wildlife habitat is riparian habitat located within the (d) Miscellaneous protective measures a postmining land use, you must select buffer. The species planted must consist for other species of fish and wildlife. To and arrange the plant species to be used of native tree and understory species if the extent possible, using the best for revegetation to maximize the the land was forested at the time of technology currently available, you benefits to fish and wildlife. Plant application or if it would revert to forest must— species must be native to the area and under conditions of natural succession. (1) Ensure that electric power must be selected on the basis of the (ii) Paragraph (j)(2)(i) of this section transmission lines and other following criteria: does not apply to situations in which a transmission facilities used for, or (1) Their proven nutritional value for vegetated buffer comprised of native incidental to, surface mining activities fish or wildlife. species would be incompatible with an on the permit area are designed and (2) Their value as cover for fish or approved postmining land use that is constructed to minimize electrocution wildlife. implemented before final bond release hazards to raptors and other avian (3) Their ability to support and under §§ 800.40 through 800.43 of this species with large wingspans. enhance fish or wildlife habitat after the chapter. (2) Locate, construct, operate, and release of performance bonds. (k) Planting arrangement maintain haul and access roads and (4) Their ability to sustain natural requirements. You must design and sedimentation control structures in a succession by allowing the arrange plantings in a manner that manner that avoids or minimizes establishment and spread of plant optimizes benefits to wildlife to the impacts on important fish and wildlife species across ecological gradients. You extent practicable and consistent with species or other species protected by may not use invasive plant species that the postmining land use. state or federal law. are known to inhibit natural succession. (3) Design fences, overland conveyors, (h) Vegetation requirements for § 816.99 What measures must I take to and other potential barriers to permit cropland postmining land use. Where prevent and remediate landslides? passage for large mammals, except cropland is the postmining land use, (a) You, the permittee or operator, where the regulatory authority and where appropriate for wildlife- must provide an undisturbed natural determines that such requirements are management and crop-management barrier beginning at the elevation of the unnecessary. practices, you must intersperse the crop lowest coal seam to be mined and (4) Fence, cover, or use other fields with trees, hedges, or fence rows extending from the outslope for the appropriate methods to exclude wildlife to break up large blocks of monoculture distance that the regulatory authority from ponds that contain hazardous and to diversify habitat types for birds determines is needed to assure stability. concentrations of toxic or toxic-forming and other animals. The barrier must be retained in place to materials. (i) Vegetation requirements for prevent slides. (5) Reclaim and reforest lands that forestry postmining land uses. Where (b)(1) You must notify the regulatory were forested at the time of application forestry, whether managed or authority by the fastest available means and lands that would revert to forest unmanaged, is the postmining land use, whenever a landslide occurs that has under conditions of natural succession you must plant native tree and the potential to adversely affect public in a manner that enhances recovery of understory species to the extent that property, health, safety, or the the native forest ecosystem as doing so is not inconsistent with the environment. expeditiously as practicable. type of forestry to be practiced as part (2) You must comply with any (e) Wetlands. (1) To the extent of the postmining land use. In all cases, remedial measures that the regulatory possible, using the best technology regardless of the type of forestry to be authority requires in response to the currently available, you must avoid practiced as part of the postmining land notification provided in paragraph (b)(1) disturbances to wetlands and, where use, you must intersperse plantings of of this section.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00348 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93413

§ 816.100 What are the standards for ensure stability, or control erosion on acceptable if they meet the requirements conducting reclamation final-graded slopes; or of paragraph (a)(3)(iv)(A) of this section. contemporaneously with mining? (ii) Specialized grading, foundation (C) The retained segment does not You must reclaim all land disturbed conditions, or roads are required for the create an increased safety hazard by surface mining activities as approved postmining land use, in which compared to the features that existed contemporaneously as practicable with case the final grading may include a before any mining. the mining operations, except when the terrace of adequate width to ensure the (D) The exposure of water-bearing mining operations are conducted in safety, stability, and erosion control strata, if any, in the retained segment accordance with a variance for necessary to implement the postmining does not adversely impact the concurrent surface and underground land use. hydrologic balance. mining activities under § 785.18 of this (3) Eliminate all highwalls, spoil (4) Achieve a postmining slope that chapter. Reclamation activities include, piles, impoundments, and depressions, does not exceed either the angle of but are not limited to, backfilling, except in the following situations: repose or such lesser slope as is grading, soil replacement, revegetation, (i) You may construct or retain small necessary to achieve a minimum long- and stream restoration. depressions if— term static safety factor of 1.3 and to (A) They are needed to retain prevent slides. § 816.101 [Reserved] moisture, minimize erosion, create or (5) Minimize erosion and water § 816.102 How must I backfill the mined enhance wildlife habitat, or assist pollution, both on and off the site. area and grade and configure the land revegetation; (6) Support the approved postmining surface? (B) They are consistent with the land use. (a) You, the permittee or operator, hydrologic reclamation plan approved (b) You must return all spoil to the must backfill all mined areas and grade in the permit in accordance with mined-out area. This requirement does all disturbed areas in compliance with § 780.22 of this chapter; and not apply to— the plan approved in the permit in (C) You demonstrate that they will not (1) Excess spoil disposed of in accordance with § 780.12(d) of this result in elevated levels of parameters of accordance with § 816.71 or § 816.74 of chapter to— concern in discharges from the this part. (1) Restore the approximate original backfilled and graded area. (2) Mountaintop removal mining contour as the final surface (ii) The regulatory authority may operations approved under § 785.14 of configuration, except in the following approve the retention of permanent this chapter. situations: impoundments if— (3) Spoil placed outside the mined- (i) Mountaintop removal mining (A) They meet the requirements of out area in non-steep slope areas to operations approved under § 785.14 of §§ 816.49 and 816.55 of this part; restore the approximate original contour this chapter. (B) They are suitable for the approved by blending the spoil into the (ii) Sites for which the regulatory postmining land use; surrounding terrain, provided that you authority has approved a variance under (C) You demonstrate compliance with comply with the following § 785.16 of this chapter. the future maintenance provisions of requirements: (iii) Operations to which the thin § 800.42(c)(5) of this chapter; and (i) You must remove all vegetation overburden standards of § 816.104 of (D) You have obtained all necessary and other organic matter from the area this part apply. approvals and authorizations under outside the mined-out area before spoil (iv) Operations to which the thick section 404 of the Clean Water Act, 33 placement begins. You may not burn overburden standards of § 816.105 of U.S.C. 1344, when the impoundment is these materials; you must store, this part apply. located in waters subject to the redistribute, use, or bury them in the (v) Remining operations on previously jurisdiction of the Clean Water Act, 33 manner specified in § 816.22(f) of this mined areas, but only to the extent U.S.C. 1251 et seq. part. specified in § 816.106(b) of this part. (iii) You may retain highwalls on (ii) You must remove, segregate, store, (vi) Excess spoil fills constructed in previously mined areas to the extent and redistribute topsoil on the area accordance with § 816.71 or § 816.74 of provided in § 816.106(b) of this part. outside the mined-out area in this part. (iv) You may retain modified highwall accordance with § 816.22 of this part. (vii) Refuse piles constructed in segments to the extent necessary to (c) You must compact spoil and waste accordance with § 816.83 of this part. replace similar natural landforms materials when necessary to ensure (viii) Permanent impoundments that removed by the mining operation. The stability or to prevent the formation of meet the requirements of paragraph regulatory program must establish the acid or toxic mine drainage, but, to the (a)(3)(ii) of this section and conditions under which these highwall extent possible, you must avoid § 780.35(b)(4) of this chapter. segments may be retained and the compacting spoil, soil, and other (ix) The placement, in accordance modifications that must be made to the materials placed in what will be the root with § 780.35(b)(3) of this chapter, of highwall to ensure that— zone of the species planted under the what would otherwise be excess spoil (A) The retained segment resembles revegetation plan approved in the on the mined-out area to heights in similar landforms that existed before permit in accordance with § 780.12(g) of excess of the premining elevation when any mining and restores the ecological this chapter. necessary to avoid or minimize niches that those landforms provided. (d)(1) You must cover all exposed coal construction of excess spoil fills on Nothing in this paragraph authorizes the seams with material that is undisturbed land. retention of modified highwall segments noncombustible, nonacid-forming, and (2) Minimize the creation of uniform in excess of the number, length, and nontoxic-forming. slopes and cut-and-fill terraces. The height needed to replace similar (2) You must handle and dispose of regulatory authority may approve cut- landforms that existed before any all other combustible materials exposed, and-fill terraces only if— mining. used, or produced during mining in (i) They are compatible with the (B) The retained segment is stable. accordance with § 816.89 of this part in approved postmining land use and are Features that result in the creation of a manner that will prevent sustained needed to conserve soil moisture, talus slopes for wildlife habitat are combustion, as approved in the permit

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00349 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93414 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

in accordance with § 780.12(j) of this (3) Ensure that the final surface requirements of §§ 816.102 through chapter. configuration blends into and 816.107 of this part, except as provided (3) You must handle all other acid- complements the drainage pattern of the in this section. forming and toxic-forming materials— surrounding terrain to the extent (b) The highwall elimination (i) In compliance with the plan possible. requirements of § 816.102(a) of this part approved in the permit in accordance do not apply to remining operations for with § 780.12(n) of this chapter; § 816.105 What special provisions for which you demonstrate in writing, to backfilling, grading, and surface (ii) In compliance with § 816.38 of configuration apply to sites with thick the regulatory authority’s satisfaction, this part; overburden? that the volume of all reasonably available spoil is insufficient to (iii) In compliance with the (a) Applicability. This section applies completely backfill the reaffected or hydrologic reclamation plan approved only where the thickness of all enlarged highwall. Instead, for those in the permit in accordance with overburden strata multiplied by the operations, you must eliminate the § 780.22(a) of this chapter; and swell factor for those strata plus the highwall to the maximum extent (iv) In a manner that will minimize thickness of any waste materials to be technically practical in accordance with adverse effects on plant growth and the returned to the mined-out area exceeds approved postmining land use. the following criteria: the combined thickness of the (1) You must use all spoil generated (e) You must dispose of any coal mine overburden strata and the coal seam or waste placed in the mined-out area in by the remining operation and any other seams in place to the extent that there reasonably available spoil to backfill the accordance with §§ 816.81 and 816.83 of is more material than can be used to this part, except that a long-term static area. You must include reasonably restore the approximate original available spoil in the immediate vicinity safety factor of 1.3 will apply instead of contour. Specifically, the amount of the 1.5 factor specified in § 816.81(d)(2) of the remining operation within the material to be returned to the mined-out permit area. of this part. area is so large that it is not possible to (f) You must prepare final-graded (2) You must grade the backfilled area achieve a surface configuration that surfaces in a manner that minimizes to a slope that is compatible with the closely resembles the surface erosion and provides a surface for approved postmining land use and that configuration of the mined land prior to replacement of soil materials that will provides adequate drainage and long- any mining. minimize slippage. term stability. (b) Performance standards. Where (3) Any highwall remnant must be § 816.104 What special provisions for thick overburden as described in stable and not pose a hazard to the backfilling, grading, and surface paragraph (a) of this section occurs public health and safety or to the configuration apply to sites with thin within the permit area, you must environment. You must demonstrate, to overburden? backfill all mined areas and grade all the satisfaction of the regulatory (a) Applicability. This section applies disturbed areas in accordance with the authority, that the highwall remnant is only where the thickness of all plan approved in the permit under stable. overburden strata multiplied by the § 780.12(d) of this chapter. At a (4) You must not disturb spoil placed swell factor for those strata plus the minimum, you must— on the outslope during previous mining thickness of any waste materials to be (1) Backfill the mined-out area to the operations if disturbance would cause returned to the mined-out area is less approximate original contour and then instability of the remaining spoil or than the combined thickness of the place the remaining spoil and waste otherwise increase the hazard to the overburden and coal seam or seams materials on top of the backfilled area to public health and safety or to the prior to removing the coal to the extent the extent possible, as determined in environment. that there is insufficient material to accordance with the excess spoil restore the approximate original minimization requirements of § 816.107 What special provisions for backfilling, grading, and surface contour. Specifically, there is § 780.35(b) of this chapter. (2) Grade the backfilled area to the configuration apply to operations on steep insufficient material to achieve a surface slopes? configuration that— lowest practicable grade that is (a) Surface mining activities on steep (1) Closely resembles the surface ecologically sound, consistent with the slopes must comply with this section configuration of the mined area prior to postmining land use, and compatible and the requirements of §§ 816.102 any mining; and with the surrounding region. No slope through 816.106 of this part, except (2) Blends into and complements the may exceed the angle of repose. (3) Comply with the requirements of where— drainage pattern of the surrounding (1) Mining is conducted on flat or terrain. paragraphs (a)(2) through (f) of § 816.102 of this part. gently rolling terrain with an occasional (b) Performance standards. Where steep slope through which the mining thin overburden as described in (4) Dispose of any excess spoil in accordance with § 816.71 or § 816.74 of proceeds and leaves a plain or paragraph (a) of this section occurs predominantly flat area; or within the permit area, you must this part. (5) Ensure that the final surface (2) Operations are conducted in backfill all mined areas and grade all accordance with part 824 of this disturbed areas in accordance with the configuration blends into and complements the drainage pattern of the chapter. plan approved in the permit under (b) You may not place the following § 780.12(d) of this chapter. At a surrounding terrain to the extent possible. materials on the downslope: minimum, you must— (1) Spoil. (1) Use all spoil and waste materials § 816.106 What special provisions for (2) Waste materials of any type. available from the entire permit area to backfilling, grading, and surface (3) Debris, including debris from attain the lowest practicable grade that configuration apply to previously mined clearing and grubbing, except for woody does not exceed the angle of repose. areas with a preexisting highwall? materials used to enhance fish and (2) Comply with the requirements of (a) Remining operations on previously wildlife habitat. paragraphs (a)(2) through (f) of § 816.102 mined areas that contain a preexisting (4) Abandoned or disabled of this part. highwall must comply with the equipment.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00350 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93415

(c) You may not disturb land above (d) You must stabilize all areas upon responsibility period, except the first the highwall unless the regulatory which you have redistributed soil or soil year. authority finds that disturbance will substitute materials. You must use one (ii) On all other areas, the parameters facilitate compliance with the or a combination of the following must equal or exceed the applicable environmental protection standards of methods, unless the regulatory authority success standard during the growing this subchapter and the disturbance is determines that neither method is season of the last year of the limited to that necessary to facilitate necessary to stabilize the surface and responsibility period. compliance. control erosion— (2) Two full years for lands eligible for (d) You must handle woody materials (1) Establishing a temporary remining included in a permit approved in accordance with § 816.22(f) of this vegetative cover consisting of under § 785.25 of this chapter. The part. noncompetitive and non-invasive lands must equal or exceed the species, either native or domesticated or § 816.111 How must I revegetate areas applicable ground cover standard disturbed by mining activities? a combination thereof. during the growing season of the last (2) Applying a suitable mulch free of year of the responsibility period. (a) You, the permittee, must establish weed and noxious plant seeds. a diverse, effective, permanent (e) You must plant all disturbed areas (c) Areas of 26.0 inches or less vegetative cover on regraded areas and with the species needed to establish a average annual precipitation. In areas of on all other disturbed areas except— permanent vegetative cover during the 26.0 inches or less average annual (1) Water areas approved as a first normal period for favorable precipitation, the period of postmining land use or in support of the planting conditions after redistribution responsibility will continue for a period postmining land use. of the topsoil or other plant-growth of not less than: (2) The surfaces of roads approved for medium. The normal period for (1) Ten full years, except as provided retention to support the postmining in paragraph (c)(2) of this section. land use. favorable planting conditions is the (3) Rock piles, water areas, and other generally accepted local planting time (i) The vegetation parameters for non-vegetative features created to for the type of plant materials approved grazing land, pasture land, or cropland restore or enhance wildlife habitat in the permit as part of the revegetation must equal or exceed the approved under the fish and wildlife protection plan under § 780.12(g) of this chapter. success standard during the growing season of any two years after year six of and enhancement plan approved in the § 816.113 [Reserved] permit in accordance with § 780.16 of the responsibility period. this chapter. § 816.114 [Reserved] (ii) On all other areas, the parameters (4) Any other impervious surface, must equal or exceed the applicable § 816.115 How long am I responsible for success standard during the growing such as a building or a parking lot, revegetation after planting? approved as part of or in support of the season of the last year of the postmining land use. This provision (a) General provisions. (1) The period responsibility period. applies only to structures and facilities of extended responsibility for successful (2) Five full years for lands eligible for constructed before expiration of the revegetation will begin after the last year remining included in a permit approved revegetation responsibility period. of augmented seeding, fertilizing, under § 785.25 of this chapter. The (b) The reestablished vegetative cover irrigation, or other work, excluding lands must equal or exceed the must— husbandry practices that are approved applicable ground cover standard (1) Comply with the revegetation plan by the regulatory authority in during the growing seasons of the last approved in the permit in accordance accordance with paragraph (d) of this two consecutive years of the with § 780.12(g) of this chapter. section. responsibility period. (2) The initial planting of small areas (2) Be consistent with the approved (d) Normal husbandry practices. (1) postmining land use and, except as that are regraded and planted as a result of the removal of sediment control The regulatory authority may approve provided in the revegetation plan selective husbandry practices, excluding approved in the permit in accordance structures and associated structures and augmented seeding, fertilization, or with § 780.12(g) of this chapter, the facilities, including ancillary roads used irrigation, provided it obtains prior native plant communities described in to access those structures, need not be approval from OSMRE in accordance § 779.19 of this chapter. considered an augmented seeding (3) Be at least equal in extent of cover necessitating an extended or separate with § 732.17 of this chapter that the to the natural vegetation of the area. revegetation responsibility period. This practices are normal husbandry (4) Be capable of stabilizing the soil paragraph also applies to areas upon practices, without extending the period surface and, in the long term, preventing which accumulated sediment and of responsibility for revegetation success erosion in excess of what would have materials resulting from removal of and bond liability, if those practices can occurred naturally had the site not been sedimentation pond embankments are be expected to continue as part of the disturbed. spread. postmining land use or if (5) Not inhibit the establishment of (b) Areas of more than 26.0 inches of discontinuance of the practices after the trees and shrubs when the revegetation average annual precipitation. In areas of liability period expires will not reduce plan approved in the permit requires the more than 26.0 inches of annual average the probability of permanent use of woody plants. precipitation, the period of revegetation success. (c) Volunteer plants of species that are responsibility will continue for a period (2) Approved practices must be desirable components of the plant of not less than— normal husbandry practices within the communities described in the permit (1) Five full years, except as provided region for unmined lands having land application under § 779.19 of this in paragraph (b)(2) of this section. uses similar to the approved postmining chapter and that are not inconsistent (i) The vegetation parameters for land use of the disturbed area, including with the postmining land use may be grazing land, pasture land, or cropland such practices as disease, pest, and considered in determining whether the must equal or exceed the approved vermin control; and any pruning, requirements of §§ 816.111 and 816.116 success standard during the growing reseeding, and transplanting specifically have been met. season of any 2 years of the necessitated by such actions.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00351 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93416 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

§ 816.116 What requirements apply to forestry and wildlife programs. need only meet a vegetative ground standards for determining revegetation Coordination and approval may occur cover standard, unless the regulatory success? on either a program-wide basis or a authority specifies otherwise. At a (a) The regulatory authority must permit-specific basis. minimum, the cover on the revegetated select standards for revegetation success (f)(1) Only those species of trees and previously mined area must not be less and statistically valid sampling shrubs approved in the permit as part of than the ground cover existing before techniques for measuring revegetation the revegetation plan under § 780.12(g) redisturbance and must be adequate to success. The standards and techniques of this chapter or volunteer trees and control erosion. must be made available to the public in shrubs of species that meet the (i) Special provision for prime written form. requirements of § 816.111(c) of this part farmland. For prime farmland (b) The standards for success applied may be counted in determining whether historically used for cropland, the to a specific permit must reflect the stocking standards have been met. revegetation success standard revegetation plan requirements of (2)(i) At the time of final bond release provisions of § 823.15 of this chapter § 780.12(g) of this chapter. They must be under §§ 800.40 through 800.43 of this apply in lieu of the requirements of based upon the following data— chapter, at least 80 percent of the trees paragraphs (b) through (h) of this (1) The plant community and and shrubs used to determine success section. vegetation information required under must have been in place for 60 percent § 779.19 of this chapter. of the applicable minimum period of § 816.131 What actions must I take when I (2) The soil type and productivity responsibility under § 816.115 of this temporarily cease mining operations? information required under § 779.21 of part. (a)(1) Each person who temporarily this chapter. (ii) Trees and shrubs counted in ceases to conduct surface mining (3) The land use capability and determining revegetation success must activities at a particular site must productivity information required under be healthy and have been in place for effectively secure surface facilities in § 779.22 of this chapter. not less than two growing seasons. Any areas in which there are no current (4) The postmining land use approved replanting must be done by means of operations, but where operations are to under § 780.24 of this chapter, but only transplants to allow for proper be resumed under an approved permit. to the extent that the approved accounting of plant stocking. postmining land use will be (iii)(A) For purposes of paragraph (2) Temporary cessation does not implemented before final bond release (f)(2)(ii) of this section, volunteer trees relieve a person of his or her obligation under §§ 800.40 through 800.43 of this and shrubs of species that meet the to comply with any provisions of the chapter. Otherwise, the site must be requirements of § 816.111(c) of this part approved permit. revegetated in a manner that will restore may be deemed equivalent to planted (b)(1) You must submit a notice of native plant communities and the specimens two years of age or older. intent to temporarily cease operations to revegetation success standards for the (B) Suckers on shrubby vegetation can the regulatory authority before ceasing site must reflect that requirement. be counted as volunteer plants when it mining and reclamation operations for (c) Except for the areas identified in is evident that the shrub community is 30 or more days, or as soon as you know § 816.111(a) of this part, standards for vigorous and expanding. that a temporary cessation will extend success must include— (iv) The requirements of paragraphs beyond 30 days. (1) Species diversity. (f)(2)(i) and (ii) of this section will be (2) The notice of temporary cessation (2) Areal distribution of species. deemed met when records of woody must include a statement of the— (3) Ground cover, except for land vegetation planted show that— (i) Exact number of surface acres actually used for cropland after the (A) No woody plants were planted disturbed within the permit area prior to completion of regrading and during the last two growing seasons of temporary cessation; redistribution of soil materials. the responsibility period; and (4) Production, for land used for (B) If any replanting of woody plants (ii) Extent and kind of reclamation cropland, pasture, or grazing land either took place earlier during the accomplished before temporary before permit issuance or after the responsibility period, the total number cessation; and completion of regrading and planted during the last 60 percent of (iii) Backfilling, regrading, redistribution of soil materials. that period is less than 20 percent of the revegetation, environmental monitoring, (5) Stocking, for areas revegetated total number of woody plants required and water treatment activities that will with woody plants. to meet the stocking standard. continue during temporary cessation. (d) The ground cover, production, or (3) Vegetative ground cover on areas § 816.132 What actions must I take when I stocking of the revegetated area will be planted with trees or shrubs must be of permanently cease mining operations? considered equal to the approved a nature that allows for natural success standard for those parameters establishment and succession of native (a) Persons who permanently cease when the measured values are not less plants, including trees and shrubs. surface mining activities at a particular than 90 percent of the success standard, (g) Special provision for areas that are site must close, backfill, or otherwise using a 90-percent statistical confidence to be developed within the revegetation permanently reclaim all disturbed areas interval (i.e., a one-sided test with a 0.10 responsibility period. Portions of the in accordance with this chapter and the alpha error). permit area that are to be developed for permit approved by the regulatory (e) For all areas revegetated with industrial, commercial, or residential authority. woody plants, regardless of the use within the revegetation (b) All equipment, structures, postmining land use, the regulatory responsibility period need not meet underground openings, or other authority must specify minimum production or stocking standards. For facilities must be removed and the stocking and planting arrangements on those areas, the vegetative ground cover affected land reclaimed, unless the the basis of local and regional must not be less than that required to regulatory authority approves retention conditions and after coordination with control erosion. of those features because they are and approval by the state agencies (h) Special provision for previously suitable for the postmining land use or responsible for the administration of mined areas. Previously mined areas environmental monitoring.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00352 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93417

§ 816.133 What provisions concerning Wilderness Preservation System, the and revegetating disturbed surfaces in postmining land use apply to my operation? Wild and Scenic Rivers System, accordance with §§ 816.111, 816.115, You, the permittee, must restore all including designated study rivers, and and 816.116 of this chapter. disturbed areas in a timely manner to National Recreation Areas designated by conditions that are capable of Act of Congress. § 816.151 What additional requirements apply to primary roads? supporting— (7) Use nonacid- and nontoxic- (a) The uses they were capable of forming substances in road surfacing. (a) Primary roads must meet the supporting before any mining, as (c) Design and construction limits and requirements of § 816.150 of this part described under § 779.22 of this chapter; establishment of design criteria. To and the additional requirements of this or ensure environmental protection section. (b) Higher or better uses approved appropriate for their planned duration (b) Certification. The construction or under § 780.24(b) of this chapter. and use, including consideration of the reconstruction of primary roads must be type and size of equipment used, the certified in a report to the regulatory § 816.150 What are the general design and construction or authority by a qualified registered requirements for haul and access roads? reconstruction of roads must include professional engineer, or in any state (a) Road classification system. (1) appropriate limits for grade, width, that authorizes land surveyors to certify Each road meeting the definition of that surface materials, surface drainage the construction or reconstruction of term in § 701.5 of this chapter must be control, culvert placement, and culvert primary roads, a qualified registered classified as either a primary road or an size, in accordance with current, professional land surveyor with ancillary road. prudent engineering practices, and any experience in the design and (2) A primary road is any road that necessary design criteria established by construction of roads. The report must is— the regulatory authority. indicate that the primary road has been (i) Used for transporting coal or spoil; (d) Location. (1) No part of any road constructed or reconstructed as (ii) Frequently used for access or other may be located in the channel of an designed and in accordance with the purposes for a period in excess of 6 intermittent or perennial stream unless approved plan. months; or specifically approved by the regulatory (c) Safety factor. Each primary road (iii) To be retained for an approved authority in accordance with § 780.28 of embankment must have a minimum postmining land use. this chapter and § 816.57 of this part. static factor of 1.3 or meet the (3) An ancillary road is any road not (2) Roads must be located to minimize requirements established under classified as a primary road. downstream sedimentation and § 780.37(c) of this chapter. (b) Performance standards. Each road flooding. (d) Location. (1) To minimize erosion, must be located, designed, constructed, (e) Maintenance. (1) A road must be a primary road must be located, insofar reconstructed, used, maintained, and maintained to meet the performance as is practicable, on the most stable reclaimed so as to— standards of this part and any additional available surface. (1) Control or prevent erosion, criteria specified by the regulatory (2) Fords of perennial or intermittent siltation, and air pollution attendant to authority. streams are prohibited unless they are erosion, including road dust and dust (2) A road damaged by a catastrophic specifically approved by the regulatory occurring on other exposed surfaces, by event, such as a flood or earthquake, authority as temporary routes during measures such as vegetating, watering, must be repaired as soon as is periods of road construction. using chemical or other dust practicable after the damage has (e) Drainage control. In accordance suppressants, or otherwise stabilizing occurred. with the approved plan— all exposed surfaces in accordance with (f) Reclamation. A road not to be (1) Each primary road must be current, prudent engineering practices. retained as part of an approved constructed, or reconstructed, and (2) Control or prevent damage to fish, postmining land use must be reclaimed maintained to have adequate drainage wildlife, or their habitat and related in accordance with the approved control, using structures such as, but not environmental values. reclamation plan as soon as practicable limited to, bridges, ditches, cross drains, (3) Control or prevent additional after it is no longer needed for mining and ditch relief drains. The drainage contributions of suspended solids to and reclamation operations. control system must be designed to streamflow or runoff outside the permit Reclamation must include— safely pass the peak runoff from the 10- area; (1) Closing the road to traffic. year, 6-hour precipitation event, or any (4) Neither cause nor contribute, (2) Removing all bridges and culverts greater event specified by the regulatory directly or indirectly, to a violation of unless approved as part of the authority. applicable state or tribal water quality postmining land use. (2) Drainage pipes and culverts must standards for surface water and (3) Removing or otherwise disposing be installed as designed, and groundwater, including, but not limited of road-surfacing materials that are maintained in a free and operating to, surface water quality standards incompatible with the postmining land condition and to prevent or control established under the authority of use and revegetation requirements. erosion at inlets and outlets. section 303(c) of the Clean Water Act, (4) Reshaping the slopes of road cuts (3) Drainage ditches must be 33 U.S.C. 1313(c). and fills as necessary to be compatible constructed and maintained to prevent (5) Refrain from seriously altering the with the postmining land use and to uncontrolled drainage over the road normal flow of water in streambeds or complement the natural drainage surface and embankment. drainage channels. pattern of the surrounding terrain. (4) Culverts must be installed and (6) Prevent or control damage to (5) Protecting the natural drainage maintained to sustain the vertical soil public or private property, including the patterns by installing dikes or cross- pressure, the passive resistance of the prevention or mitigation of adverse drains as necessary to control surface foundation, and the weight of vehicles effects on lands within the boundaries runoff and erosion. using the road. of units of the National Park System, the (6) Scarifying or ripping the roadbed, (5) Natural stream channels must not National Wildlife Refuge System, the replacing topsoil or substitute material be altered or relocated without the prior National System of Trails, the National in accordance with § 816.22 of this part, approval of the regulatory authority in

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00353 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93418 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

accordance with § 780.28 of this chapter PART 817—PERMANENT PROGRAM 817.72 [Reserved] and § 816.57 of this part. PERFORMANCE STANDARDS— 817.73 [Reserved] UNDERGROUND MINING ACTIVITIES 817.74 What special requirements apply to (6) Except as provided in paragraph disposal of excess spoil on a preexisting (d)(2) of this section, structures for Sec. bench? perennial or intermittent stream channel 817.1 What does this part do? 817.81 How must I dispose of coal mine crossings must be made using bridges, 817.2 What is the objective of this part? waste? culverts, low-water crossings, or other 817.10 Information collection. 817.83 What special requirements apply to structures designed, constructed, and 817.11 What signs and markers must I post? coal mine waste refuse piles? maintained using current prudent 817.13 What special requirements apply to 817.84 What special requirements apply to engineering practices. The regulatory drilled holes, wells, and exposed coal mine waste impounding structures? authority must ensure that low-water underground openings? 817.87 What special requirements apply to crossings are designed, constructed, and 817.14 [Reserved] burning and burned coal mine waste? 817.15 [Reserved] 817.89 How must I dispose of noncoal maintained to prevent erosion of the 817.22 How must I handle topsoil, subsoil, structure or streambed and additional mine wastes? and other plant growth media? 817.95 How must I protect surface areas contributions of suspended solids to 817.34 How must I protect the hydrologic- from wind and water erosion? streamflow. balance? 817.97 How must I protect and enhance (f) Surfacing. Primary roads must be 817.35 How must I monitor groundwater? fish, wildlife, and related environmental 817.36 How must I monitor surface water? values? surfaced with material approved by the 817.37 How must I monitor the biological 817.99 What measures must I take to regulatory authority as being sufficiently condition of streams? prevent and remediate landslides? durable for the anticipated volume of 817.38 How must I handle acid-forming 817.100 What are the standards for traffic and the weight and speed of and toxic-forming materials? vehicles using the road. 817.39 What must I do with exploratory or conducting reclamation monitoring wells when I no longer need contemporaneously with mining? § 816.180 To what extent must I protect them? 817.102 How must I backfill surface utility installations? 817.40 What responsibility do I have to excavations and grade and configure the replace water supplies? land surface? You must conduct all surface coal 817.41 Under what conditions may I 817.106 What special provisions for mining operations in a manner that discharge water and other materials into backfilling, grading, and surface minimizes damage, destruction, or an underground mine? configuration apply to previously mined disruption of services provided by oil, 817.42 What Clean Water Act requirements areas with a preexisting highwall? gas, and water wells; oil, gas, and coal- apply to discharges from my operation? 817.107 What special provisions for slurry pipelines; railroads; electric and 817.43 How must I construct and maintain backfilling, grading, and surface telephone lines; and water and sewage diversions and other channels to convey configuration apply to operations on lines that pass over, under, or through water? steep slopes? 817.44 What restrictions apply to gravity 817.111 How must I revegetate areas the permit area, unless otherwise discharges from underground mines? disturbed by mining activities? approved by the owner of those 817.45 What sediment control measures 817.113 [Reserved] facilities and the regulatory authority. must I implement? 817.114 [Reserved] 817.46 What requirements apply to 817.115 How long am I responsible for § 816.181 What requirements apply to siltation structures? support facilities? revegetation after planting? 817.47 What requirements apply to 817.116 What requirements apply to (a) You must operate each support discharge structures for impoundments? standards for determining revegetation facility in accordance with the permit 817.49 What requirements apply to success? issued for the mine or coal preparation impoundments? 817.121 What measures must I take to 817.55 How must I rehabilitate prevent, control, or correct damage plant to which the facility is incident or sedimentation ponds, diversions, from which its operation results. resulting from subsidence? impoundments, and treatment facilities 817.122 How and when must I provide (b) In addition to the other provisions after I no longer need them? notice of planned underground mining? of this part, you must locate, maintain, 817.56 What additional performance 817.131 What actions must I take when I and use support facilities in a manner standards apply to mining activities temporarily cease mining operations? that— conducted in or through an ephemeral 817.132 What actions must I take when I stream? permanently cease mining operations? (1) Prevents or controls erosion and 817.57 What additional performance 817.133 What provisions concerning siltation, water pollution, and damage to standards apply to mining activities postmining land use apply to my conducted in or through a perennial or public or private property; and operation? intermittent stream or on the surface of (2) To the extent possible using the 817.150 What are the general requirements land within 100 feet of a perennial or best technology currently available— intermittent stream? for haul and access roads? (i) Minimizes damage to fish, wildlife, 817.59 How must I maximize coal 817.151 What additional requirements apply to primary roads? and related environmental values; and recovery? 817.61 Use of explosives: General 817.180 To what extent must I protect (ii) Minimizes additional requirements. utility installations? contributions of suspended solids to 817.62 Use of explosives: Preblasting 817.181 What requirements apply to streamflow or runoff outside the permit survey. support facilities? area. Any such contributions may not be 817.64 Use of explosives: General 817.200 [Reserved] in excess of limitations of state or performance standards. Authority: 30 U.S.C. 1201 et seq. federal law. 817.66 Use of explosives: Blasting signs, warnings, and access control. § 817.1 What does this part do? § 816.200 [Reserved] 817.67 Use of explosives: Control of adverse effects. This part sets forth the minimum ■ 35. Lift the suspension of 817.68 Use of explosives: Records of environmental protection performance § 817.121(c)(4)(i) through (iv), and blasting operations. standards for underground mining revise part 817 to read as follows: 817.71 How must I dispose of excess spoil? activities under the Act.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00354 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93419

§ 817.2 What is the objective of this part? underground mining activities and the permanently close each exploration This part is intended to ensure that all identification number of the current hole, drilled hole, borehole, well, or underground mining activities are SMCRA permit authorizing underground opening that mining conducted in an environmentally sound underground mining activities. activities uncover or expose within the manner in accordance with the Act. (3) You must retain and maintain the permit area, unless the regulatory signs until the release of all bonds for authority— § 817.10 Information collection. the permit area. (1) Approves use of the hole, well, or In accordance with 44 U.S.C. 3501 et (d) Perimeter markers. You must opening for water monitoring purposes; seq., the Office of Management and clearly mark the perimeter of all areas or Budget (OMB) has approved the to be disturbed by surface operations or (2) Authorizes other management of information collection requirements of facilities before beginning mining the hole or well. this part and assigned it control number activities on the surface of land within (f)(1) Except as provided in paragraph 1029–0047. Collection of this the permit area. (d) of this section, you must cap, seal, information is required under section (e) Stream buffer zone markers. You backfill, or otherwise properly manage 516 of SMCRA, which provides that must clearly mark the boundaries of any each shaft, drift, adit, tunnel, permittees conducting underground buffer to be maintained between surface exploratory hole, entryway or other activities and a perennial or intermittent coal mining operations must meet all opening to the surface when no longer stream in accordance with §§ 784.28 applicable performance standards of the needed for monitoring or any other use and 817.57 of this chapter to avoid regulatory program approved under the that the regulatory authority approves disturbance by surface operations and Act. The regulatory authority uses the after finding that the use would not information collected to ensure that facilities. (f) Topsoil markers. You must clearly adversely affect the environment or underground mining activities are public health and safety. conducted in compliance with the mark stockpiles of topsoil, subsoil, or other plant growth media segregated (2) Permanent closure measures taken requirements of the applicable under paragraph (f)(1) of this section regulatory program. Persons intending and stored as required in the permit in accordance with § 817.22 of this part. must be— to conduct such operations must (i) Consistent with § 75.1771 of this respond to obtain a benefit. A federal § 817.13 What special requirements apply title; agency may not conduct or sponsor, and to drilled holes, wells, and exposed (ii) Designed to prevent access to the you are not required to respond to, a underground openings? mine workings by people, livestock, fish collection of information unless it (a) Except as provided in paragraph (f) and wildlife, and machinery; and displays a currently valid OMB control of this section, you must case, line, (iii) Designed to keep acid or toxic number. Send comments regarding otherwise manage each exploration mine drainage from entering burden estimates or any other aspect of hole, drilled hole, borehole, shaft, well, groundwater or surface water. this collection of information, including or other exposed underground opening (g) The requirements of this section suggestions for reducing the burden, to in a manner approved by the regulatory do not apply to holes drilled and used the Office of Surface Mining authority to— for blasting as part of surface operations. Reclamation and Enforcement, (1) Prevent acid or other toxic Information Collection Clearance drainage from entering groundwater and § 817.14 [Reserved] Officer, Room 203–SIB, 1951 surface water. Constitution Avenue NW., Washington, (2) Minimize disturbance to the § 817.15 [Reserved] DC 20240. prevailing hydrologic balance. § 817.22 How must I handle topsoil, (3) Ensure the safety of people, subsoil, and other plant growth media? § 817.11 What signs and markers must I livestock, fish and wildlife, and post? machinery in the permit area and the (a) Removal and salvage. (1)(i) You, (a) General specifications. Signs and adjacent area. the permittee, must remove and salvage markers required under this part must— (b) You must prevent access to each all topsoil and other soil materials (1) Be posted and maintained by the temporarily inactive mine entry by identified for salvage and use as person who conducts the underground constructing fences and barricades or postmining plant growth media in the mining activities; other covering devices and posting signs soil handling plan approved in the (2) Be of a uniform design throughout that identify the hazardous nature of the permit under § 784.12(e) of this chapter. the operation; opening. You must periodically inspect (ii) The soil handling plan approved (3) Be easily seen and read; and maintain these fences and in the permit under § 784.12(e) of this (4) Be made of durable material; and barricades in good operating condition. chapter will specify which soil horizons (5) Conform to local ordinances and (c) You must temporarily seal each and underlying strata, or portions codes. exploration hole, drilled hole, borehole, thereof, you must separately remove and (b) Duration of maintenance. You shaft, well, or other exposed salvage. The plan also will specify must maintain signs and markers during underground opening that the approved whether some or all of those soil the conduct of all activities to which permit identifies for use to monitor horizons and soil substitute materials they pertain. groundwater or to return underground may or must be blended to achieve an (c) Mine and permit identification development waste, coal processing improved plant growth medium. signs. (1) You must display waste, or water to underground (iii) Except as provided in the soil identification signs at each point of workings until you are ready to actually handling plan approved in the permit access from public roads to areas of use the hole or opening for that purpose. under § 784.12(e) of this chapter, you surface operations and facilities on (d) You may retain a drilled hole or must complete removal and salvage of permit areas for underground mining groundwater monitoring well for use as topsoil, subsoil, and organic matter in activities. a water well under the conditions advance of any mining-related surface (2) The signs must show the name, established in § 817.39 of this part. disturbance other than the minor business address, and telephone number (e) Except as provided in paragraph disturbances identified in paragraph of the person who conducts the (d) of this section, you must (a)(2) of this section.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00355 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93420 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(2) Unless otherwise specified by the treat backfilled and graded areas either soil handling plan developed under regulatory authority, you need not before or after redistribution of soil § 784.12(e) of this chapter and approved remove and salvage topsoil and other materials, whichever time is as part of the permit. soil materials for minor disturbances agronomically appropriate. (3) The regulatory authority may that— (e) Redistribution. (1) You must choose not to require the redistribution (i) Occur at the site of small redistribute the materials removed, of topsoil on the embankments of structures, such as power poles, signs, salvaged, and, if necessary, stored under permanent impoundments or on the monitoring wells, or fence lines; or paragraphs (a) through (c) of this section embankments of roads to be retained as (ii) Will not destroy the existing in a manner that— part of the postmining land use if it vegetation and will not cause erosion. (i) Complies with the soil handling determines that— (b) Handling and storage. (1) You plan developed under § 784.12(e) of this (i) Placement of topsoil on those must segregate and separately handle chapter and approved as part of the embankments is inconsistent with the the materials removed under paragraph permit. requirement to use the best technology (a) of this section to the extent required (ii) Is consistent with the approved currently available to prevent in the soil handling plan approved in postmining land use, the final surface sedimentation, and the permit pursuant to § 784.12(e). You configuration, and surface water (ii) The embankments will be must redistribute those materials drainage systems. otherwise stabilized. (iii) Minimizes compaction of the promptly on regraded areas or stockpile (f) Organic matter. (1)(i) You must topsoil and soil materials in the root them when prompt redistribution is salvage duff, other organic litter, and zone to the extent possible and impractical. vegetative materials such as tree tops (2) Stockpiled materials must— alleviates any excess compaction that may occur. You must limit your use of and branches, small logs, and root balls. (i) Be selectively placed on a stable When practicable and consistent with site within the permit area; measures that result in increased compaction to those situations in which the approved postmining land use, you (ii) Be protected from contaminants may salvage organic matter and topsoil and unnecessary compaction that would added compaction is necessary to ensure stability. in a single operation that blends those interfere with revegetation; materials. (iii) Be protected from wind and water (iv) Protects the materials from wind (ii) Paragraph (f)(1)(i) of this section erosion through prompt establishment and water erosion before and after does not apply to organic matter from and maintenance of an effective, quick- seeding and planting to the extent areas identified under § 783.19(b) of this growing, non-invasive vegetative cover necessary to ensure establishment of a chapter as containing significant or through other measures approved by successful vegetative cover and to avoid populations of invasive or noxious non- the regulatory authority; and causing or contributing to a violation of (iv) Not be moved until required for applicable state or tribal water quality native species. You must bury organic redistribution unless approved by the standards or effluent limitations, matter from those areas in the backfill regulatory authority. including, but not limited to, water at a sufficient depth to prevent (3) When stockpiling of organic matter quality standards established under the regeneration or proliferation of and soil materials removed under authority of section 303(c) of the Clean undesirable species. paragraphs (a) and (f) of this section Water Act, 33 U.S.C. 1313(c), and (2)(i) Except as otherwise provided in would be detrimental to the quality or effluent limitations established in any paragraphs (f)(2)(ii) and (iii) and (3) of quantity of those materials, you may National Pollutant Discharge this section, you must redistribute the temporarily redistribute those soil Elimination System permit issued for organic matter salvaged under materials on an approved site within the the operation under section 402 of the paragraph (f)(1) of this section across the permit area to enhance the current use Clean Water Act, 33 U.S.C. 1342, or its regraded surface or incorporate it into of that site until the materials are state or tribal counterpart. the soil to control erosion, promote needed for later reclamation, provided (v) Achieves an approximately growth of vegetation, serve as a source that— uniform, stable thickness across the of native plant seeds and soil inoculants (i) Temporary redistribution will not regraded area. The thickness may vary to speed restoration of the soil’s permanently diminish the capability of when consistent with the approved ecological community, and increase the the topsoil of the host site; and postmining land use, the final surface moisture retention capability of the soil. (ii) The redistributed material will be configuration, surface water drainage (ii) You may use vegetative debris to preserved in a condition more suitable systems, and the requirement in construct stream improvement or fish for redistribution than if it were § 817.133 of this part for restoration of and wildlife habitat enhancement stockpiled. all disturbed areas to conditions that are features consistent with the approved (c) Soil substitutes and supplements. capable of supporting the uses they postmining land use. When the soil handling plan approved were capable of supporting before any (iii) You may adjust the timing and in the permit in accordance with mining or higher or better uses pattern of redistribution of large woody § 784.12(e) of this chapter provides for approved under § 784.24(b) of this debris to accommodate the use of the use of substitutes for or supplements chapter. The thickness also may vary mechanized tree-planting equipment on to the existing topsoil or subsoil, you when variations are necessary or sites with a forestry postmining land must salvage, store, and redistribute the desirable to achieve specific use. overburden materials selected and revegetation goals and ecological (3)(i) The redistribution requirements approved for that purpose in a manner diversity, as set forth in the revegetation of paragraph (f)(2)(i) of this section do consistent with paragraphs (a), (b), and plan developed under § 784.12(g) of this not apply to those portions of the permit (e) of this section. chapter and approved as part of the area— (d) Site preparation. If necessary to permit. (A) Upon which row crops will be reduce potential slippage of the (2) You must use a statistically valid planted as part of the postmining land redistributed material or to promote root sampling technique to document that use before final bond release under penetration, you must rip, chisel-plow, soil materials have been redistributed in §§ 800.40 through 800.43 of this deep-till, or otherwise mechanically the locations and depths required by the chapter;

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00356 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93421

(B) That will be intensively managed acid or toxic mine drainage and by Conservation Service synthetic storm for hay production as part of the managing excavations and other distribution to determine peak flow for postmining land use before final bond disturbances to prevent or control a storm with that recurrence interval. release under §§ 800.40 through 800.43 groundwater degradation. The (ii) In areas with an average annual of this chapter; or regulatory authority will determine the precipitation of 26.0 inches or less, a (C) Upon which structures, roads, meaning of the term ‘‘best management significant event of a size specified by other impervious surfaces, or water practices’’ on a site-specific basis. At a the regulatory authority. impoundments have been or will be minimum, the term includes equipment, (2)(i) You must prepare a report, constructed as part of the postmining devices, systems, methods, and which must be certified by a registered land use before final bond release under techniques that the Director determines professional engineer, and submit the §§ 800.40 through 800.43 of this to be best management practices. report to the regulatory authority within chapter. (9) Protect surface-water quality by 30 days of cessation of the applicable (ii) When the circumstances described using best management practices, as precipitation event under paragraph in paragraph (f)(3)(i) of this section described in paragraph (a)(8) of this (d)(1) of this section. The report must apply, you must make reasonable efforts section, to handle earth materials, address the performance of the runoff- to redistribute the salvaged organic groundwater discharges, and runoff in a control structures, identify and describe matter on other portions of the permit manner that— any material damage to the hydrologic area or use woody debris to construct (i) Prevents postmining discharges of balance outside the permit area that stream improvement or fish and wildlife acid or toxic mine drainage. occurred, and identify and describe the habitat enhancement features consistent (ii) Prevents additional contribution remedial measures taken in response to with the approved postmining land use. of suspended solids to streamflow or that damage. If you demonstrate, and the regulatory runoff outside the permit area to the (ii) The report prepared under authority finds, that it is not reasonably extent possible, using the best paragraph (d)(2)(i) of this section may possible to use all available organic technology currently available. include all precipitation events that matter for these purposes, you may bury (iii) Otherwise prevents water occur within 30 days of cessation of the it in the backfill. pollution. applicable precipitation event under (4)(i) You may not burn organic (10) Protect surface-water quality and paragraph (d)(1) of this section. matter. flow rates by handling earth materials (ii) You may bury organic matter in and runoff in accordance with the steps § 817.35 How must I monitor groundwater? the backfill only as provided in outlined in the hydrologic reclamation paragraphs (f)(1)(ii) and (3)(ii) of this plan and the surface-water runoff (a)(1)(i) You, the permittee, must section. control plan approved in the permit in monitor groundwater in the manner accordance with §§ 784.22 and 780.29 of specified in the groundwater monitoring § 817.34 How must I protect the hydrologic this chapter, respectively. plan approved in the permit in balance? (b)(1) To the maximum extent accordance with § 784.23(a) of this (a) You, the permittee, must conduct practicable, you must use mining and chapter. all underground mining and reclamation practices that minimize (ii) You must adhere to the data reclamation activities in a manner that water pollution, changes in flow, and collection, analysis, and reporting will— adverse impacts on stream biota rather requirements of paragraphs (a) and (b) of (1) Minimize disturbance of the than relying upon water treatment to § 777.13 of this chapter when hydrologic balance within the permit minimize those impacts. conducting monitoring under this and adjacent areas. (2) You must install, use, and section. (2) Prevent material damage to the maintain any necessary water-treatment (2) At a minimum, you must conduct hydrologic balance outside the permit facilities or water-quality controls if monitoring through mining, area. Material damage resulting from drainage control, materials handling, reclamation, and the revegetation subsidence may not constitute material stabilization and revegetation of responsibility period under § 817.115 of damage to the hydrologic balance disturbed areas, diversion of runoff, this part for the monitored area. outside the permit area if that damage mulching, and other reclamation and Monitoring must continue beyond that is repaired or corrected under § 817.40 remedial practices are not adequate to minimum for any additional time or § 817.121(c) of this part. meet the requirements of this section needed for monitoring results to (3) Protect streams in accordance with and § 817.42 of this part. demonstrate that the criteria of §§ 784.28 and 817.57 of this chapter. (c) The regulatory authority may § 817.35(d)(1) and (2) of this section (4) Assure the replacement of water require that you take preventive, have been met, as determined by the supplies to the extent required by remedial, or monitoring measures in regulatory authority. § 817.40 of this part. addition to those set forth in this part to (b)(1) You must submit groundwater (5) Protect existing water rights under prevent material damage to the monitoring data to the regulatory state law. hydrologic balance outside the permit authority every 3 months, or more (6) Support approved postmining land area. frequently if prescribed by the uses in accordance with the terms and (d)(1) You must examine the runoff- regulatory authority. conditions of the approved permit and control structures identified under (2) Monitoring reports must include the performance standards of this part. § 784.29 of this chapter within 72 hours analytical results from each sample (7) Comply with the hydrologic of cessation of each occurrence of the taken during the reporting period. reclamation plan as submitted under following precipitation events: (c) When the analysis of any sample § 784.22 of this chapter and approved in (i) In areas with an average annual indicates noncompliance with the terms the permit. precipitation of more than 26.0 inches, and conditions of the permit, you must (8) Protect groundwater quality by an event of a size equal to or greater promptly notify the regulatory using best management practices to than that of a storm with a 2-year authority, take any applicable actions handle earth materials and runoff in a recurrence interval. You must use the required under § 773.17(e) of this manner that avoids the formation of appropriate regional Natural Resources chapter, and implement any applicable

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00357 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93422 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

remedial measures required by the § 777.13 of this chapter when (vi) Protected or replaced the water hydrologic reclamation plan approved conducting monitoring under this rights of other users. in the permit in accordance with section. (e) Whenever information available to § 784.22 of this chapter. (2) Monitoring must continue through the regulatory authority indicates that (d) You may use the permit revision mining and during reclamation until the additional monitoring is necessary to procedures of § 774.13 of this chapter to regulatory authority releases the entire protect the hydrologic balance, to detect request that the regulatory authority bond amount for the monitored area hydrologic changes, or to meet other modify the groundwater monitoring under §§ 800.40 through 800.43 of this requirements of the regulatory program, requirements, including the parameters chapter. the regulatory authority must issue an covered and the sampling frequency. (b)(1) You must submit surface-water order under § 774.10(b) of this chapter The regulatory authority may approve monitoring data to the regulatory requiring that you revise your permit to your request if you demonstrate, using authority every 3 months, or more include the necessary additional the monitoring data obtained under this frequently when prescribed by the monitoring. section, that— regulatory authority. (f) You must install, maintain, (1) Future adverse changes in (2) Monitoring reports must include operate, and, when no longer needed, groundwater quantity or quality are analytical results from each sample remove all equipment, structures, and unlikely to occur. taken during the reporting period. other devices used in conjunction with (2) The operation has— (3) The reporting requirements of monitoring surface water. (i) Minimized disturbance to the paragraph (b) of this section do not hydrologic balance in the permit and exempt you from meeting any National § 817.37 How must I monitor the biological adjacent areas. Pollutant Discharge Elimination System condition of streams? (ii) Prevented material damage to the (NPDES) reporting requirements. (a)(1)(i) You must monitor the hydrologic balance outside the permit (c) When the analysis of any sample biological condition of perennial and area. indicates noncompliance with the terms intermittent streams in the manner (iii) Preserved or restored the and conditions of the permit, you must specified in the plan approved in the biological condition of perennial and promptly notify the regulatory permit in accordance with § 784.23(c) of intermittent streams within the permit authority, take any applicable actions this chapter. and adjacent areas for which baseline required under § 773.17(e) of this (ii) You must adhere to the data biological condition data was collected chapter, and implement any applicable collection, analysis, and reporting under § 784.19(c)(6)(vi) of this chapter remedial measures required by the requirements of paragraphs (a) and (b) of when groundwater from the permit area hydrologic reclamation plan approved § 777.13 of this chapter and use a provides all or part of the base flow of in the permit in accordance with bioassessment protocol that complies those streams. § 784.22 of this chapter. with § 784.19(c)(6)(vii) of this chapter (iv) Maintained or restored the (d) You may use the permit revision when conducting monitoring under this availability and quality of groundwater procedures of § 774.13 of this chapter to section. to the extent necessary to support the request that the regulatory authority (2) Monitoring must continue through approved postmining land uses within modify the surface-water monitoring mining and during reclamation until the the permit area. requirements (except those required by regulatory authority releases the entire (v) Protected or replaced the water the NPDES permitting authority), bond amount for the monitored area rights of other users. including the parameters covered and under §§ 800.40 through 800.43 of this (e) Whenever information available to the sampling frequency. The regulatory chapter. the regulatory authority indicates that authority may approve your request if (b) You must submit biological additional monitoring is necessary to you demonstrate, using the monitoring condition monitoring data to the protect the hydrologic balance, to detect data obtained under this section, that— regulatory authority on an annual basis, hydrologic changes, or to meet other (1) Future adverse changes in surface- or more frequently if prescribed by the requirements of the regulatory program, water quantity or quality are unlikely to regulatory authority. the regulatory authority must issue an occur. (d) Whenever information available to order under § 774.10(b) of this chapter (2) The operation has— the regulatory authority indicates that requiring that you revise your permit to (i) Minimized disturbance to the additional monitoring is necessary to include the necessary additional hydrologic balance in the permit and meet the requirements of the regulatory monitoring. adjacent areas. program, the regulatory authority must (f) You must install, maintain, (ii) Prevented material damage to the issue an order under § 774.10(b) of this operate, and, when no longer needed, hydrologic balance outside the permit chapter requiring that you revise your remove all equipment, structures, and area. permit to include the necessary other devices used in conjunction with (iii) Preserved or restored the additional monitoring. monitoring groundwater, consistent biological condition of perennial and § 817.38 How must I handle acid-forming with §§ 817.13 and 817.39 of this part. intermittent streams within the permit and adjacent areas for which baseline and toxic-forming materials? § 817.36 How must I monitor surface biological condition data was collected (a) You, the permittee, must use the water? under § 784.19(c)(6)(vi) of this chapter. best technology currently available to (a)(1)(i) You, the permittee, must (iv) Maintained or restored the handle acid-forming and toxic-forming monitor surface water in the manner availability and quality of surface water materials and underground specified in the surface-water to the extent necessary to support the development waste in a manner that monitoring plan approved in the permit approved postmining land uses within will avoid the creation of acid or toxic in accordance with § 784.23(b) of this the permit area. mine drainage into surface water and chapter. (v) Not precluded attainment of any groundwater. At a minimum, you must (ii) You must adhere to the data designated use of surface water under comply with the plan approved in the collection, analysis, and reporting section 303(c) of the Clean Water Act, permit in accordance with § 784.12(n) of requirements of paragraphs (a) and (b) of 33 U.S.C. 1313(c). this chapter and adhere to disposal,

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00358 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93423

treatment, and storage practices that are system and payment of operation and § 817.41 Under what conditions may I consistent with other material handling maintenance expenses in excess of discharge water and other materials into an and disposal provisions of this chapter. customary and reasonable delivery costs underground mine? (b) You may temporarily store acid- for the premining water supply. If you (a) You may not discharge any water forming and toxic-forming materials and the water supply owner agree, your or other materials from your operation only if the regulatory authority obligation to pay operation and into an underground mine unless the specifically approves temporary storage maintenance costs may be satisfied by a regulatory authority specifically as necessary and finds in writing in the one-time payment in an amount that approves the discharge in writing, based permit that the proposed storage method covers the present worth of the upon a demonstration that— will protect surface water and increased annual operation and (1) The discharge will be made in a groundwater by preventing erosion, the maintenance costs for a period upon manner that— (i) Minimizes disturbances to the formation of polluted runoff, and the which you and the water supply owner hydrologic balance within the permit infiltration of polluted water into agree. aquifers. The regulatory authority must area; specify a maximum time for temporary (4) If the affected water supply was (ii) Prevents material damage to the storage, which may not exceed the not needed for the land use in existence hydrologic balance outside the permit period until permanent disposal first at the time of loss, contamination, or area, including the hydrologic balance becomes feasible. In addition, storage diminution, you may satisfy the of the area in which the underground must not result in any risk of water replacement requirements by mine receiving the discharge is located; pollution, adverse impacts to the demonstrating that a suitable alternative (iii) Does not adversely impact the biology of perennial or intermittent water source is available and could biology of perennial or intermittent streams, or other environmental feasibly be developed, provided you streams; and damage. obtain written concurrence from the (iv) Otherwise eliminates public owner of the affected water supply. hazards resulting from surface mining § 817.39 What must I do with exploratory activities. or monitoring wells when I no longer need (b) Measures to address anticipated (2) The discharge will not cause or them? adverse impacts to protected water contribute to a violation of applicable (a) Except as provided in paragraph supplies. For anticipated loss of or state or tribal water quality standards or (b) of this section, you, the permittee, damage to a protected water supply, you effluent limitations, including, but not must permanently seal exploratory or must adhere to the requirements set limited to, water quality standards monitoring wells in a safe and forth in the permit in accordance with established under the authority of environmentally sound manner in § 784.22(b) of this chapter. section 303(c) of the Clean Water Act, accordance with § 817.13 of this part (c) Measures to address unanticipated 33 U.S.C. 1313(c), and effluent before the regulatory authority may adverse impacts to protected water limitations established in any National approve full release of the bond posted supplies. For unanticipated loss of or Pollutant Discharge Elimination System for the land on which the wells are damage to a protected water supply, you permit issued for the operation under located under §§ 800.40 through 800.43 must— section 402 of the Clean Water Act, 33 of this chapter. U.S.C. 1342, or its state or tribal (b) With the prior approval of the (1) Provide an emergency temporary water supply within 24 hours of counterpart. regulatory authority, you may transfer (3)(i) The discharge will be at a wells to another party for further use. notification of the loss. The temporary known rate and of a quality that will The conditions of the transfer must supply must be adequate in quantity meet the effluent limitations for pH and comply with state and local laws. You and quality to meet normal household total suspended solids in 40 CFR part will remain responsible for the proper needs. 434. management of the wells until full (2) Develop and submit a plan for a (ii) The regulatory authority may release of the bond posted for the land permanent replacement supply to the approve discharges of water that exceed on which the wells are located under regulatory authority within 30 days of the effluent limitations for pH and total §§ 800.40 through 800.43 of this receiving notice that an unanticipated suspended solids in 40 CFR part 434 if chapter. loss of or damage to a protected water the available evidence indicates that § 817.40 What responsibility do I have to supply has occurred. there is no direct hydrologic connection replace water supplies? (3) Provide a permanent replacement between the underground mine and (a) Replacement of adversely- water supply within 2 years of the date other waters and that those exceedances impacted water supplies. (1) You, the of receiving notice of an unanticipated will not be inconsistent with paragraph permittee, must promptly replace any loss of or damage to a protected water (a)(1) of this section. drinking, domestic or residential water supply. The regulatory authority may (4) The discharge will not cause or supply that is contaminated, diminished grant an extension if you have made a contribute to a violation of applicable or interrupted as a result of good-faith effort to meet this deadline, state or tribal water quality standards for underground mining activities that you but have been unable to do so for groundwater. (5) The Mine Safety and Health conducted after October 24, 1992, if the reasons beyond your control. affected well or spring was in existence Administration has approved the before the date the regulatory authority (d) Basis for determination of adverse discharge. received the permit application for the impact. The regulatory authority must (6) You have obtained written activities causing the loss, use the baseline hydrologic and geologic permission from the owner of the mine contamination or interruption. information required under § 784.19 of into which the discharge is to be made (2) The replacement supply must be this chapter and all other available and you have provided a copy of that equivalent to the quantity and quality of information to determine whether and authorization to the regulatory the premining supply. to what extent the mining operation authority. (3) Replacement includes provision of adversely impacted the damaged water (b) Discharges are limited to the an equivalent water supply delivery supply. following materials:

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00359 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93424 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

(1) Water. (d) The regulatory authority will needed. You must restore the land (2) Coal processing waste. coordinate an investigation with the disturbed by the removal process in (3) Fly ash from a coal-fired facility. appropriate Clean Water Act authority accordance with the approved permit (4) Sludge from an acid-mine-drainage whenever information available to the and § 817.55 of this part. Before treatment facility. regulatory authority indicates that removing a temporary diversion ditch, (5) Flue-gas desulfurization sludge. mining activities may be causing or you must modify or remove downstream (6) Inert materials used for stabilizing contributing to a violation of the water water treatment facilities previously underground mines. quality standards to which paragraph protected by the ditch to prevent (7) Underground mine development (b)(2) of this section refers, or to a overtopping or failure of the facilities. waste. violation of section 404 of the Clean You must continue to maintain water § 817.42 What Clean Water Act Water Act, 33 U.S.C. 1344, and its treatment facilities until they are no requirements apply to discharges from my implementing regulations. If, after longer needed. operation? coordination with the appropriate Clean (ii) You may retain a diversion ditch (a) Nothing in this section, nor any Water Act authority, it is determined as a permanent structure if you action taken pursuant to this section, that mining activities are causing or demonstrate and the regulatory supersedes or modifies— contributing to a Clean Water Act authority finds that retention of that (1) The authority or jurisdiction of violation, the regulatory authority must, diversion ditch would— federal, state, or tribal agencies in addition to any action taken by the (A) Be environmentally beneficial; responsible for administration, appropriate Clean Water Act authority, (B) Meet the requirements of the implementation, and enforcement of the independently take enforcement or reclamation plan approved under Clean Water Act, 33 U.S.C. 1251 et seq.; other appropriate action to correct the § 784.12 of this chapter; and or cause of the violation. (C) Be consistent with the surface (2) The decisions that those agencies (e) You must construct water drainage pattern restoration make under the authority of the Clean treatment facilities for discharges from requirements of §§ 817.56 and 817.57 of Water Act, 33 U.S.C. 1251 et seq., the operation as soon as the need for this part. including decisions on whether a those facilities becomes evident. (iii) When approved in the permit, particular set of facts constitutes a (f)(1) You must remove precipitates you may divert the following flows violation of the Clean Water Act. and otherwise maintain all water away from the disturbed area by means (b) Discharges of water from treatment facilities requiring the use of of temporary or permanent diversion underground mining activities and from settling ponds or lagoons as necessary to ditches without treatment: areas disturbed by underground mining maintain the functionality of those (A) Any surface runoff or other flows activities must— facilities. (1) Be made in compliance with all from mined areas abandoned before (2) You must dispose of all May 3, 1978. applicable water quality laws and precipitates removed from facilities regulations, including the effluent (B) Any surface runoff or other flows under paragraph (f)(1) of this section from undisturbed areas. limitations established in the National either in an approved solid waste Pollutant Discharge Elimination System (C) Any surface runoff or other flows landfill or within the permit area in from reclaimed areas for which the permit for the operation under section accordance with a plan approved by the 402 of the Clean Water Act, 33 U.S.C. criteria of § 817.46 of this part for regulatory authority. siltation structure removal have been 1342, or its state or tribal counterpart. (g) You must operate and maintain met. The regulatory authority must notify the water treatment facilities until the (2) Stream diversions. Stream appropriate Clean Water Act authority regulatory authority authorizes removal diversions are temporary or permanent whenever it takes action to enforce a based upon monitoring data relocations of perennial or intermittent permit condition required by § 773.17(i) demonstrating that influent to the streams. Diversions of perennial and of this chapter with respect to an facilities meets all applicable effluent intermittent streams must comply with effluent limitation in a National limitations without treatment and that the applicable requirements of this Pollutant Discharge Elimination System discharges would not cause or section, § 784.28 of this chapter, and permit. The regulatory authority must contribute to a violation of applicable § 817.57 of this part. initiate coordination with the Clean water quality standards established (i) You must remove temporary Water Act authority before taking under the authority of section 303(c) of stream diversions after the original enforcement action if coordination is the Clean Water Act, 33 U.S.C. 1313(c), stream channel is reconstructed after needed to determine whether a violation or other applicable state or tribal water mining. As set forth in § 784.28(f) of this of the National Pollutant Discharge quality standards if left untreated. Elimination System permit exists. chapter, different requirements apply to (2) Not cause or contribute to a § 817.43 How must I construct and temporary stream diversions depending violation of applicable water quality maintain diversions? on whether they will be in existence for standards established under the (a) Classification. The term diversion less or more than 3 years. authority of section 303(c) of the Clean applies to the following categories of (ii) Permanent stream diversions Water Act, 33 U.S.C. 1313(c), or other channels that convey surface water remain in their locations following applicable state or tribal water quality flow: mining and reclamation. standards. (1) Diversion Ditches. Diversion (3) Conveyances and channels within (c) Discharges of overburden, coal ditches are channels constructed to the disturbed area. All other mine waste, and other materials into convey surface water runoff or other conveyances and channels that are waters subject to the jurisdiction of the flows from areas not disturbed by constructed within the disturbed area to Clean Water Act, 33 U.S.C. 1251 et seq., mining activities away from or around transport surface water are also must be made in compliance with disturbed areas. Diversion ditches may diversions. During mining, these section 404 of the Clean Water Act, 33 be temporary or permanent. channels or conveyances must deliver U.S.C. 1344, and its implementing (i) You must remove a temporary all captured surface water flow to regulations. diversion ditch as soon as it is no longer siltation structures.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00360 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93425

(i) You must remove temporary § 817.44 What restrictions apply to gravity reduction in the rate and volume of conveyances or channels when they are discharges from underground mines? runoff. no longer needed for their intended (a)(1) You must locate and manage (3) Retaining sediment within purpose. surface entries and accesses to disturbed areas. (ii) When approved in the permit, you underground workings to prevent or (4) Diverting surface runoff from may retain conveyances or channels that control gravity discharge of water from undisturbed areas away from disturbed support or enhance the approved the mine. areas. postmining land use. (2) The regulatory authority may (5) Using protected channels or pipes (b) Design criteria. When the permit approve gravity discharges of water to convey surface runoff from requires the use of siltation structures from an underground mine, other than undisturbed areas through disturbed for sediment control, you must a drift mine subject to paragraph (b) of areas so as not to cause additional construct diversions designed to the this section, if you— erosion. standards of this section to convey (i) Demonstrate that the untreated or (6) Using straw dikes, riprap, check runoff from the disturbed area to the treated discharge will comply with the dams, mulches, vegetative sediment siltation structures unless the performance standards of this part and filters, dugout ponds, and other topography will naturally direct all any additional National Pollutant measures that reduce overland flow surface runoff or other flows to a Discharge Elimination System permit velocity, reduce runoff volume, or trap siltation structure. requirements under the Clean Water sediment. (1) You must design all diversions Act. (7) Treating surface runoff collected in to— (ii) Design the discharge control sedimentation ponds with flocculants or (i) Ensure the safety of the public. structure to prevent a mine pool other chemicals. (ii) Minimize adverse impacts to the blowout. (3) You must construct and maintain § 817.46 What requirements apply to hydrologic balance, including the siltation structures? the discharge control structure in biology of perennial and intermittent (a) Scope. For the purpose of this streams, within the permit and adjacent accordance with the design approved by the regulatory authority and any other section only, the phrase ‘‘disturb the areas. land surface’’ does not include those (iii) Prevent material damage to the conditions imposed by the regulatory authority. areas— hydrologic balance outside the permit (1) In which the only underground area. (b) Notwithstanding anything to the contrary in paragraph (a) of this section, mining activities conducted on the land (2) You must design, locate, construct, surface consist of diversions, siltation maintain, and use each diversion and its you must locate the surface entries and accesses of drift mines first used after structures, or roads that are designed, appurtenant structures to— constructed, and maintained in (i) Be stable. the implementation of a state, federal, or federal lands program under this accordance with this part; and (ii) Provide and maintain the capacity (2) For which you do not plan to to safely pass the peak flow of surface chapter and located in acid-producing or iron-producing coal seams in such a otherwise disturb the land surface runoff from a 2-year, 6-hour upgradient of the diversion, siltation precipitation event for a temporary manner as to prevent any gravity discharge from the mine. structure, or road. diversion and a 10-year, 6-hour (b) General requirements. (1) When precipitation event for a permanent § 817.45 What sediment control measures siltation structures will be used to diversion. Flow capacity for stream must I implement? achieve the requirements of § 817.45 of diversions includes both the in-channel (a) You must design, construct, and this part, you must construct those capacity and the flood-prone area maintain appropriate sediment control structures before beginning any overbank capacity. Flow capacity for measures, using the best technology underground mining activities that will diversion ditches and conveyances or currently available to— disturb the land surface. channels includes only in-channel (1) Prevent, to the extent possible, (2) Upon completion of construction capacity, with adequate freeboard to additional contributions of sediment to of a siltation structure, a qualified prevent out-of-channel flow. You must streamflow or to runoff outside the registered professional engineer, or, in use the appropriate regional Natural permit area. any state that authorizes land surveyors Resources Conservation Service (2) Meet the applicable effluent to prepare and certify plans in synthetic storm distribution to limitations referenced in § 817.42(a) of accordance with § 784.25(a) of this determine peak flows. this part. chapter, a qualified registered (iii) Prevent, to the extent possible (3) Minimize erosion to the extent professional land surveyor, must certify using the best technology currently possible. that the structure has been constructed available, additional contributions of (b) Sediment control measures as designed and as approved in the suspended solids to streamflow or include practices carried out within the reclamation plan in the permit. runoff outside the permit area. disturbed area. Sediment control (3) Any siltation structure that (iv) Comply with all applicable measures consist of the use of proper impounds water must be designed, federal, state, tribal, and local laws and mining and reclamation methods and constructed and maintained in regulations. sediment control practices, singly or in accordance with § 817.49 of this (c) Application to § 817.41. You may combination. Sediment control methods chapter. not divert surface runoff or other flows include but are not limited to— (4) You must maintain siltation into underground mines without (1) Disturbing the smallest practicable structures until removal is authorized approval of the regulatory authority area at any one time during the mining by the regulatory authority and the under § 817.41 of this part. operation through progressive disturbed area has been stabilized and (d) Additional requirements. The backfilling, grading, and prompt revegetated. regulatory authority may specify revegetation. (5)(i) When a siltation structure is additional design criteria for diversions (2) Shaping and stabilizing the removed, you must regrade the land to meet the requirements of this section. backfilled material to promote a upon which the structure was located

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00361 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93426 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

and revegetate the land in accordance (I) Be compacted properly. § 817.49 What requirements apply to with the reclamation plan and (2) Spillways. A sedimentation pond impoundments? §§ 817.111 and 817.116 of this chapter. must include either a combination of (a) Requirements that apply to both (ii) Paragraph (b)(5)(i) of this section principal and emergency spillways or a permanent and temporary does not apply to sedimentation ponds single spillway configured as specified impoundments.— approved by the regulatory authority for in § 817.49(a)(9) of this part. (1) MSHA requirements. An retention as permanent impoundments (d) Other treatment facilities. (1) You impoundment meeting the criteria of under § 817.49(b) of this part if the must design other treatment facilities to maintenance requirements of § 77.216(a) of this title must comply treat the 10-year, 24-hour precipitation § 800.42(c)(5) of this chapter are met. with the requirements of § 77.216 of this event unless the regulatory authority (c) Sedimentation ponds. (1) When title and this section. approves a lesser design event based used, sedimentation ponds must— (2) Stability. (i) An impoundment that (i) Be located as near as possible to upon terrain, climate, other site-specific meets the criteria of § 77.216(a) of this the disturbed area and outside perennial conditions, and a demonstration that the or intermittent stream channels unless effluent limitations referenced in title or that includes a dam with a approved by the regulatory authority in § 817.42 of this part will be met. significant or high hazard potential the permit in accordance with §§ 784.28 (2) You must design other treatment classification under § 784.25(a) of this and 817.57(c) of this chapter. facilities in accordance with the chapter must have a minimum static (ii) Be designed, constructed, and applicable requirements of paragraph (c) safety factor of 1.5 for a normal pool maintained to— of this section. with steady state seepage saturation (A) Provide adequate sediment storage (e) Exemptions. The regulatory conditions and a seismic safety factor of volume. authority may grant an exemption from at least 1.2. (B) Provide adequate detention time the requirements of this section if— (ii) Impoundments not included in to allow the effluent from the ponds to (1) The disturbed drainage area within paragraph (a)(2)(i) of this section, except meet applicable effluent limitations. the total disturbed area is small; and for a coal mine waste impounding (C) Contain or treat the 10-year, 24- structure, must have a minimum static hour precipitation event (‘‘design (2) You demonstrate that neither safety factor of 1.3 for a normal pool event’’) unless a lesser design event is siltation structures nor alternate approved by the regulatory authority sediment control measures are with steady state seepage saturation based on terrain, climate, other site- necessary for drainage from the conditions or meet the requirements of specific conditions, and a disturbed drainage area to comply with § 784.25(e)(2) of this chapter. demonstration that the effluent § 817.42 of this part. (3) Freeboard. (i) Impoundments must limitations referenced in § 817.42 of this § 817.47 What requirements apply to have adequate freeboard to resist part will be met. discharge structures for impoundments? overtopping by waves that occur in (D) Provide a nonclogging dewatering conjunction with the typical increase in You must control discharges from device adequate to maintain the water elevation at the downwind edge sedimentation ponds, permanent and detention time required under of any body of water, waves resulting temporary impoundments, coal mine paragraph (c)(1)(ii)(B) of this section. from sudden influxes of surface runoff waste impounding structures, and (E) Minimize short circuiting to the from precipitation events, or waves extent possible. diversions by energy dissipators, riprap channels, and other devices when resulting from any combination of these (F) Provide periodic sediment events or other events. removal sufficient to maintain adequate necessary to reduce erosion, to prevent volume for the design event. deepening or enlargement of stream (ii) An impoundment that includes a (G) Ensure against excessive channels, to control meander migration, dam with a significant or high hazard settlement. or to minimize disturbance of the potential classification under § 784.25(a) (H) Be free of sod, large roots, frozen hydrologic balance. You must design of this chapter must comply with the soil, and acid-forming or toxic-forming discharge structures according to freeboard hydrograph criteria in the materials. standard engineering design procedures. following table:

MINIMUM AUXILIARY SPILLWAY HYDROLOGIC CRITERIA

Design precipitation event for— Hazard potential classification of embankment Auxiliary spillway hydrograph Freeboard hydrograph

1 2 Significant ...... P100 + 0.12(PMP ¥P100) ...... P100 + 0.40(PMP¥P100) High ...... P100 + 0.26(PMP¥P100) ...... PMP

1 P100 = Precipitation event for 100-year return interval. 2 PMP = Probable Maximum Precipitation event.

(4) Foundation. (i) Foundations and necessary laboratory testing of (iii) You must remove all vegetative abutments for an impounding structure foundation material, to determine the and organic materials from the must be stable during all phases of design requirements for foundation foundation area and excavate and construction and operation and must be stability and control of underseepage for prepare the foundation area to resist designed based on adequate and an impoundment that includes a dam failure. You must install cutoff trenches accurate information on the foundation with a significant or high hazard if necessary to ensure stability. and abutment conditions. potential classification under § 784.25(a) (5) Protection of impoundment slopes. (ii) You must conduct foundation and of this chapter. You must take measures to protect abutment investigations, as well as any impoundment slopes from surface

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00362 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93427

erosion and the adverse impacts of a experienced in the construction of a potential hazard exists, the person sudden drawdown. impoundments. who examined the impoundment must (6) Protection of embankment faces. (i) Inspections must be made regularly promptly inform the regulatory Faces of embankments and surrounding during construction, upon completion authority of the finding and of the areas shall be vegetated, except that of construction, and at least yearly until emergency procedures formulated for faces where water is impounded may be removal of the structure or release of the public protection and remedial action. riprapped or otherwise stabilized in performance bond. The regulatory authority must be accordance with accepted design (ii) After each inspection required by notified immediately if adequate practices. paragraph (a)(9)(i) of this section, the procedures cannot be formulated or (7) Spillways. An impoundment must qualified registered professional implemented. The regulatory authority include either a combination of engineer, or qualified registered then must notify the appropriate principal and emergency spillways or a professional land surveyor as specified agencies that other emergency single spillway configured as specified in paragraph (a)(9)(iv) of this section, procedures are required to protect the in paragraph (a)(7)(i) of this section, must promptly provide to the regulatory public. designed and constructed to safely pass authority a certified report that the (b) Requirements that apply only to the applicable design precipitation impoundment has been constructed permanent impoundments. A event specified in paragraph (a)(7)(ii) of and/or maintained as designed and in permanent impoundment of water may this section, except as set forth in accordance with the approved plan and be created if authorized by the paragraph (c)(2) of this section. this chapter. The report must include a regulatory authority in the approved (i) The regulatory authority may discussion of any appearance of permit based upon the following approve a single open-channel spillway instability, any structural weakness or demonstration: that is: other hazardous condition, the depth (1) The size and configuration of the (A) Of nonerodible construction and and elevation of any impounded waters, impoundment will be adequate for its designed to carry sustained flows; or the existing storage capacity, any intended purposes. (B) Earth- or grass-lined and designed existing or required monitoring (2) The quality of impounded water to carry short-term, infrequent flows at procedures and instrumentation, and will be suitable on a permanent basis for any other aspects of the structure non-erosive velocities where sustained its intended use and, after reclamation, affecting stability. flows are not expected. discharges from the impoundment will (ii) Except as specified in paragraph (iii) You must retain a copy of the not cause or contribute to a violation of (c)(2) of this section, the required design report at or near the minesite. applicable state or tribal water quality precipitation event for an impoundment (iv) In any state that authorizes land standards or effluent limitations, meeting the spillway requirements of surveyors to prepare and certify plans in including, but not limited to, water paragraph (a)(7) of this section is: accordance with § 784.25(b)(1) of this (A) For an impoundment that chapter, a qualified registered quality standards established under the includes a dam with a significant or professional land surveyor may inspect authority of section 303(c) of the Clean high hazard potential classification any temporary or permanent Water Act, 33 U.S.C. 1313(c), and under § 784.25(a) of this chapter, the impoundment that does not meet the effluent limitations established in the design precipitation event specified in criteria of § 77.216(a) of this title, or that National Pollutant Discharge the auxiliary spillway hydrograph is not classified as having a significant Elimination System permit for the column in the table in paragraph or high hazard potential under operation under section 402 of the Clean (a)(3)(ii) of this section, or any greater § 784.25(a) of this chapter, and certify Water Act, 33 U.S.C. 1342, or its state event specified by the regulatory and submit the report required by or tribal counterpart. authority. paragraph (a)(9)(ii) of this section, (3) The water level will be sufficiently (B) For an impoundment meeting the except that a qualified registered stable and be capable of supporting the criteria of § 77.216(a) of this title, the professional engineer must certify all intended use. 100-year, 6-hour event, or any greater coal mine waste impounding structures (4) Final grading will provide for event specified by the regulatory covered by § 817.84 of this chapter. The adequate safety and access for proposed authority. professional land surveyor must be water users. (C) For an impoundment not included experienced in the construction of (5) The impoundment will not result in paragraphs (a)(7)(ii) (A) and (B) of impoundments. in diminution of the quality or quantity this section, the 25-year, 6-hour event, (10) Examinations. (i) Impoundments of surface water or groundwater used by or any greater event specified by the that meet the criteria of § 77.216 of this surrounding landowners for regulatory authority. title, or that are classified as having a agricultural, industrial, recreational, or (8) Highwalls. The vertical portion of significant or high hazard potential domestic uses. any highwall remnant within the under § 784.25(a) of this chapter, must (6) The impoundment will be suitable impoundment must be located far be examined in accordance with for the approved postmining land use. enough below the low-water line along § 77.216–3 of this title. (7) Approval of the impoundment will the full extent of the highwall to provide (ii) Impoundments that are not subject not result in retention of spoil piles or adequate safety and access for the to § 77.216 of this title, or that are not ridges that are inconsistent with the proposed water users. classified as having a significant or high definition of approximate original (9) Inspections. Except as provided in hazard potential under § 784.25(a) of contour. paragraph (a)(9)(iv) of this section, a this chapter, must be examined at least (8) Approval of the impoundment will qualified registered professional quarterly. A qualified person designated not result in the creation of an excess engineer or other qualified professional by the operator must examine spoil fill elsewhere within the permit specialist under the direction of a impoundments for the appearance of area. professional engineer must inspect each structural weakness and other (9) The impoundment has been impoundment as provided in paragraph hazardous conditions. designed with dimensions, features, and (a)(9)(i) of this section. The professional (11) Emergency procedures. If any other characteristics that will enhance engineer or specialist must be examination or inspection discloses that fish and wildlife habitat to the extent

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00363 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93428 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

that doing so is not inconsistent with § 817.56 What additional performance (3) Paragraphs (c)(1) and (2) of this the intended use. standards apply to mining activities section do not require planting of (c) Requirements that apply only to conducted in or through an ephemeral hydrophytic or hydrophilic species stream? temporary impoundments that rely within those portions of streamside primarily upon storage. (1) In lieu of (a) Compliance with federal, state, corridors where the stream, soils, or meeting the requirements in paragraph and tribal water quality laws and climate are incapable of providing the (a)(7)(i) of this section, the regulatory regulations. (1) You may conduct moisture or other growing conditions authority may approve an impoundment mining activities in or affecting waters needed to support and sustain that relies primarily on storage to subject to the jurisdiction of the Clean hydrophytic or hydrophilic species. In control the runoff from the design Water Act, 33 U.S.C. 1251 et seq., only those situations, you must plant the precipitation event when you if you first obtain all necessary corridor with appropriate native species demonstrate, and a qualified registered authorizations, certifications, and that are consistent with the baseline professional engineer or qualified permits under that law. information concerning natural registered professional land surveyor in (2) Mining activities must comply streamside vegetation included in the accordance with § 784.25(b) of this with all applicable state and tribal laws permit application under § 783.19 of chapter certifies, that the impoundment and regulations concerning surface this chapter, unless otherwise directed will safely control the design water and groundwater. by an agency responsible for precipitation event. (b) Postmining surface drainage implementing section 404 of the Clean (2) You must use current prudent pattern and stream-channel Water Act, 33 U.S.C. 1344. engineering practices to safely remove configuration. If you mine through an (4) Paragraphs (c)(1) through (3) of the water from an impoundment ephemeral stream, you must construct a this section do not apply to— constructed in accordance with postmining surface drainage pattern and (i) Prime farmland historically used paragraph (c)(1) of this section. stream-channel configurations that are for cropland; or (3) An impoundment constructed in consistent with the surface drainage (ii) Situations in which establishment accordance with paragraph (c)(1) of this pattern and stream-channel of a streamside vegetative corridor section must be located where failure configurations approved in the permit comprised of native species would be would not be expected to cause loss of in accordance with § 784.27 of this incompatible with an approved life or serious property damage, unless chapter. postmining land use that is the impoundment meets one of the (c) Establishment of streamside implemented before final bond release following exceptions: vegetative corridors. (1) If you mine under §§ 800.40 through 800.43 of this (i) An impoundment that meets the through an ephemeral stream, you must chapter. establish a vegetative corridor at least criteria of § 77.216(a) of this title, or that § 817.57 What additional performance is classified as having a significant or 100 feet wide along each bank of the standards apply to mining activities high hazard potential under § 784.25(a) reconstructed stream channel. The 100- conducted in or through a perennial or of this chapter, and is designed to foot distance must be measured intermittent stream or on the surface of land control the precipitation of the probable horizontally on a line perpendicular to within 100 feet of a perennial or intermittent maximum precipitation of a 6-hour the stream, beginning at the ordinary stream? event, or any greater event specified by high water mark. The corridor must be (a) Compliance with federal, state, the regulatory authority. consistent with natural vegetation and tribal water quality laws and (ii) An impoundment not included in patterns. regulations. (1) You may conduct paragraph (c)(3)(i) of this section that is (2) When planting the streamside mining activities in or affecting waters designed to control the precipitation of vegetative corridors required by subject to the jurisdiction of the Clean the 100-year, 6-hour event, or any paragraph (c)(1) of this section, you Water Act, 33 U.S.C. 1251 et seq., only greater event specified by the regulatory must— if you first obtain all necessary authority. (i) Use appropriate native species authorizations, certifications, and adapted to the area, unless an agency permits under that law. § 817.55 What must I do with responsible for implementing section (2) Mining activities must comply sedimentation ponds, diversions, 404 of the Clean Water Act, 33 U.S.C. with all applicable state and tribal laws impoundments, and treatment facilities 1344, requires the use of non-native and regulations concerning surface after I no longer need them? species. water and groundwater. (a) Before seeking final bond release (ii) Ensure that the species planted are (b) Prohibition on mining in or within under § 800.42(d) of this chapter, you consistent with the revegetation plan 100 feet of a perennial or intermittent must— approved in the permit. stream. You may not conduct mining (1) Remove all temporary structures (iii) Include appropriate native activities in or through a perennial or and reclaim the land upon which those hydrophytic vegetation, vegetation intermittent stream, or that would structures were located in accordance typical of floodplains, or hydrophilic disturb the surface of land within 100 with the approved permit; and vegetation characteristic of riparian feet of a perennial or intermittent (2) Ensure that all sedimentation areas and wetlands to the extent that the stream, unless the regulatory authority ponds, diversions, and impoundments corridor contains suitable habitat for authorizes you to do so in the permit approved for retention after final bond those species and the stream and the after making the findings required under release have been maintained properly geomorphology of the area are capable § 784.28 of this chapter. The 100-foot and meet all applicable requirements of of supporting vegetation of that nature. distance must be measured horizontally the approved permit and this chapter for (iv) Use native trees and shrubs when on a line perpendicular to the stream, retention as permanent structures. You planting areas within the streamside beginning at the ordinary high water must renovate the structures if corridor that were forested at the time mark. necessary to meet the requirements for of application or that would revert to (c) Postmining surface drainage retention. forest under conditions of natural pattern and stream-channel (b) [Reserved] succession. configuration. (1) If you mine through or

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00364 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93429

permanently divert a perennial or (iii) Include appropriate native (g) Restoration of ecological function. intermittent stream, you must construct hydrophytic vegetation, vegetation If you mine through or permanently a postmining surface drainage pattern typical of floodplains, or hydrophilic divert a perennial or intermittent and stream-channel configurations that vegetation characteristic of riparian stream, the reconstructed stream or are consistent with the surface drainage areas and wetlands to the extent that the stream-channel diversion must meet the pattern and stream-channel corridor contains suitable habitat for criteria approved in the permit for configurations approved in the permit those species and the stream and the determining restoration of ecological in accordance with § 784.28 of this geomorphology of the area are capable function, as established by the chapter. of supporting vegetation of that nature. regulatory authority under § 784.28(g) of (2) Upon completion of construction (iv) Use native trees and shrubs when this chapter, before you qualify for final of a stream-channel diversion for a planting areas within the streamside bond release under §§ 800.40 through perennial or intermittent stream, or corridor that were forested at the time 800.43 of this chapter. reconstruction of a stream channel after of application or that would revert to (h) Prohibition on placement of mining through a perennial or forest under conditions of natural siltation structures in perennial or intermittent stream, you must obtain a succession. intermittent streams. (1)(i) Except as certification from a qualified registered (3) Paragraphs (d)(1) and (2) of this provided in paragraph (h)(2) of this professional engineer that the stream- section do not require planting of section, you may not construct a channel diversion or reconstructed hydrophytic or hydrophilic species siltation structure in a perennial or stream channel has been constructed in within those portions of streamside intermittent stream or use perennial or accordance with the design approved in corridors where the stream, soils, or intermittent streams as waste treatment the permit and that it meets all climate are incapable of providing the systems to convey surface runoff from engineering-related requirements of this moisture or other growing conditions the disturbed area to a sedimentation section. This certification may be needed to support and sustain pond. limited to the location, dimensions, and hydrophytic or hydrophilic species. In (ii) Paragraph (h)(1)(i) of this section physical characteristics of the stream those situations, you must plant the does not prohibit the construction of a channel. corridor with appropriate native species siltation structure in a stream channel (d) Establishment of streamside that are consistent with the baseline immediately downstream of a stream vegetative corridors. (1)(i) If you mine information concerning natural segment that is mined through. (2) If approved in the permit, the through a perennial or intermittent streamside vegetation included in the prohibition in paragraph (h)(1) of this stream, you must establish a vegetative permit application under § 783.19 of section will not apply to excess spoil corridor at least 100 feet wide along this chapter, unless otherwise directed fills, coal mine waste refuse piles, or each bank of the reconstructed stream by an agency responsible for coal mine waste impounding structures channel. The corridor must be implementing section 404 of the Clean in steep-slope areas when you consistent with natural vegetation Water Act, 33 U.S.C. 1344. demonstrate, and the regulatory patterns. (4) Paragraphs (d)(1) through (3) of (ii) You must establish a vegetative authority finds in writing, that use of a this section do not apply to— corridor on any land that you disturb perennial or intermittent stream (i) Prime farmland historically used within 100 feet of a perennial or segment as a waste treatment system for for cropland; or intermittent stream. The corridor must sediment control or construction of a (ii) Situations in which establishment be consistent with natural vegetation sedimentation pond or other siltation of a streamside vegetative corridor patterns. structure in a perennial or an (iii) If you divert a perennial or comprised of native species would be intermittent stream would have less intermittent stream, you must establish incompatible with an approved overall adverse impact on fish, wildlife, a vegetative corridor at least 100 feet postmining land use that is and related environmental values than wide along each bank of the stream- implemented before final bond release construction of diversions and channel diversion, with the exception of under §§ 800.40 through 800.43 of this sedimentation ponds or other siltation temporary diversions that will be in chapter. structures on slopes above the stream. place less than 3 years. The corridor (e) Restoration of form. If you mine (3) When the circumstances described must be consistent with natural through or permanently divert a in paragraph (h)(2) of this section exist, vegetation patterns. perennial or intermittent stream, you the following requirements apply: (iv) The 100-foot distance mentioned must demonstrate successful restoration (i) You must minimize the length of in paragraphs (d)(1)(i) through (iii) of or reconstruction of the form of the stream used as a waste treatment system this section must be measured stream channel in accordance with the to the extent possible and, when horizontally on a line perpendicular to design approved in the permit before practicable, maintain an undisturbed the stream, beginning at the ordinary you qualify for Phase I bond release buffer along that stream segment in high water mark. under § 800.42(b)(1) of this chapter. accordance with paragraph (b) of this (2) When planting the streamside (f) Restoration of hydrologic function. section. vegetative corridors required by If you mine through or permanently (ii) You must place the sedimentation paragraph (d)(1) of this section, you divert a perennial or intermittent pond or other siltation structure as close must— stream, you must demonstrate to the toe of the excess spoil fill, coal (i) Use appropriate native species restoration of the hydrologic function of mine waste refuse pile, or coal mine adapted to the area, unless an agency the reconstructed stream before you waste impounding structure as possible. responsible for implementing section qualify for Phase II bond release under (iii) Following the completion of 404 of the Clean Water Act, 33 U.S.C. § 800.42(b)(2) of this chapter. construction and revegetation of the fill 1344, requires the use of non-native Restoration of the hydrologic function or coal mine waste structure, you species. includes, but is not limited to, must— (ii) Ensure that the species planted are restoration of the flow regime, except as (A) Remove and properly dispose of consistent with the revegetation plan otherwise approved in the permit under accumulated sediment in the siltation approved in the permit. § 784.28(e)(2) of this chapter. structure and any stream segment

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00365 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93430 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

between the inlet of the siltation (ii) Give direction and on-the-job (c) You must determine the condition structure and the toe of the excess spoil training to persons who are not certified of the dwelling or structure and fill or coal mine waste structure; and who are assigned to the blasting document any preblasting damage and (B) Remove the sedimentation pond crew or who assist in the use of other physical factors that could or other siltation structure; and explosives. reasonably be affected by the blasting. (C) Restore the stream segment in (d) Blast design. (1) You must submit Structures such as pipelines, cables, accordance with paragraphs (e) through an anticipated blast design if blasting transmission lines, and cisterns, wells, (g) of this section. operations will be conducted within— and other water systems warrant special (i) Programmatic alternative. (i) 1,000 feet of any building used as attention; however, the assessment of Paragraphs (b) through (h) of this a dwelling, public building, school, these structures may be limited to section will not apply to a state program church, or community or institutional surface conditions and other readily approved under subchapter T of this building outside the permit area; or available data. chapter if that program is amended to (ii) 500 feet of an active or abandoned (d)(1) The person who conducted the expressly prohibit all surface mining underground mine. survey must sign the written report of activities, including the construction of (2) You must submit the blast design the survey. stream-channel diversions, that would required by paragraph (d)(1) of this (2) You must promptly provide copies result in more than a de minimis section either as part of the permit of the report to the regulatory authority disturbance of land in or within 100 feet application or, if approved by the and to the person requesting the survey. of a perennial or intermittent stream. regulatory authority, at a later date (3) If the person requesting the survey before blasting begins. Regulatory disagrees with the contents or § 817.59 How must I maximize coal authority approval of the blast design is recommendations of the survey, he or recovery? not required, but, as provided in she may submit a detailed description of You must conduct underground paragraph (d)(5) of this section, the the specific areas of disagreement to mining activities so as to maximize the regulatory authority may require both you and the regulatory authority. utilization and conservation of the coal, changes to the design. (e) You must complete any surveys while using the best appropriate (3) The blast design must contain— requested more than 10 days before the technology currently available to (i) Sketches of the drill patterns, delay planned initiation of blasting before the maintain environmental integrity, so periods, and decking. initiation of blasting. that reaffecting the land in the future (ii) The type and amount of § 817.64 Use of explosives: General through surface coal mining operations explosives to be used. performance standards. is minimized. (iii) Critical dimensions. (a)(1) You must notify, in writing, (iv) The location and general § 817.61 Use of explosives: General residents within 1⁄2 mile of the blasting requirements. description of structures to be protected. site and local governments of the (v) A discussion of design factors to (a) Applicability. Sections 817.61 proposed times and locations of blasting be used to protect the public and meet operations. through 817.68 apply to surface blasting the applicable airblast, flyrock, and activities incident to underground coal (2) You may provide this notice ground-vibration standards in § 817.67 weekly, but in no case less than 24 mining, including, but not limited to, of this part. initial rounds of slopes and shafts. hours before blasting will occur. (4) A certified blaster must prepare (b) You must conduct all blasting (b) Compliance with other laws and and sign the blast design. regulations. You must comply with all between sunrise and sunset, unless the (5) The regulatory authority may regulatory authority approves night-time applicable state and federal laws and require changes to the design submitted. regulations governing the use of blasting based upon a showing that the explosives. § 817.62 Use of explosives: Preblasting public will be protected from adverse (c) Requirements for blasters. (1) No survey. noise and other impacts. The regulatory later than 12 months after the blaster (a) At least 30 days before initiation authority may specify more restrictive certification program for a state required of blasting, you must notify, in writing, time periods for blasting. (c)(1) You may conduct unscheduled by part 850 of this chapter has been all residents or owners of dwellings or blasts only where public or operator approved under the procedures of other structures located within 1⁄2 mile health and safety so require and for subchapter C of this chapter, all blasting of the permit area how to request a emergency blasting actions. operations in that state must be preblasting survey. (2) When you conduct an conducted under the direction of a (b)(1) A resident or owner of a unscheduled blast, you must use certified blaster. Before that time, all dwelling or structure within 1⁄2 mile of audible signals to notify residents blasting operations in that state must be any part of the permit area may request within 1⁄2 mile of the blasting site. conducted by competent, experienced a preblasting survey. This request must (3) You must document the reason for persons who understand the hazards be made, in writing, directly to you or the unscheduled blast in accordance involved. to the regulatory authority. If the request with § 817.68(c)(16) of this part. (2) Certificates of blaster certification is made to the regulatory authority, the must be carried by blasters or be on file regulatory authority will promptly § 817.66 Use of explosives: Blasting signs, at the permit area during blasting notify you. warnings, and access control. operations. (2) You must promptly conduct a (a) Blasting signs. Blasting signs must (3) A blaster and at least one other preblasting survey of the dwelling or meet the specifications of § 817.11 of person shall be present at the firing of structure and promptly prepare a this part. a blast. written report of the survey. (1) You must place conspicuous signs (4) Any blaster who is responsible for (3) You must conduct an updated reading ‘‘Blasting Area’’ along the edge conducting blasting operations at a survey of any subsequent additions, of any blasting area that comes within blasting site must: modifications, or renovations to the 100 feet of any public road right-of-way (i) Be familiar with the site-specific dwelling or structure, if requested by and at the point where any other road performance standards; and the resident or owner. provides access to the blasting area.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00366 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93431

(2) You must place conspicuous signs (b) Airblast.—(1) Limits. (i) Airblast (2) Beyond the area of control reading ‘‘Warning! Explosives in Use’’ at must not exceed the maximum limits required under § 817.66(c) of this part; all entrances to the permit area from listed below at the location of any or public roads or highways. The signs dwelling, public building, school, (3) Beyond the permit boundary. must clearly list and describe the church, or community or institutional meaning of the audible blast warning building outside the permit area, except (d) Ground vibration.—(1) General and all-clear signals that are in use and as provided in paragraph (e) of this requirements. (i) In all blasting explain the marking of blasting areas section. operations, except as otherwise and charged holes awaiting firing within authorized in paragraph (e) of this the permit area. Lower frequency limit of Maximum section, the maximum ground vibration (b) Warnings. You must give blast measuring system in Hertz level in must not exceed the values approved in (Hz), plus or minus decibels warning and all-clear signals of different 3 decibels (dB) the blasting plan required under character or pattern that are audible § 784.15 of this chapter. 1 within a range of ⁄2 mile from the point 0.1 Hz or lower—flat re- 134 peak. (ii) The maximum ground vibration of the blast. You must notify each 1 sponse . for protected structures listed in person within the permit area and each 2 Hz or lower—flat response 133 peak. paragraph (d)(2)(i) of this section must person who resides or regularly works 6 Hz or lower—flat response 129 peak. 1 be established in accordance with either within 1⁄2 mile of the permit area of the C-weighted—slow response 105 peak meaning of the signals in the blasting dBC. the maximum peak-particle-velocity limits of paragraph (d)(2) of this section, notification required in § 817.64(a) of 1 Only when approved by the regulatory this part. authority. the scaled-distance equation of (c) Access control. You must control paragraph (d)(3) of this section, the access within the blasting area to (ii) If necessary to prevent damage, blasting-level chart of paragraph (d)(4) prevent presence of livestock or the regulatory authority must specify of this section, or by the regulatory unauthorized persons during blasting lower maximum allowable airblast authority under paragraph (d)(5) of this and until your authorized representative levels than those of paragraph (b)(1)(i) of section. has reasonably determined that— this section for use in the vicinity of a (iii) All structures in the vicinity of (1) No unusual hazards, such as specific blasting operation. the blasting area not listed in paragraph imminent slides or undetonated (2) Monitoring. (i) You must conduct (d)(2)(i) of this section, such as water charges, exist; and periodic monitoring to ensure towers, pipelines and other utilities, (2) Access to and travel within the compliance with the airblast standards. blasting area can be safely resumed. tunnels, dams, impoundments, and The regulatory authority may require underground mines, must be protected § 817.67 Use of explosives: Control of airblast measurement of any or all blasts from damage by establishment of a adverse effects. and may specify the locations at which maximum allowable limit on the ground (a) General requirements. You must measurements are taken. vibration, submitted by the operator in conduct blasting in a manner that (ii) The measuring systems must have the blasting plan and approved by the prevents— an upper-end flat-frequency response of regulatory authority. (1) Injury to persons; at least 200 Hz. (2) Damage to public or private (2) Maximum peak particle velocity. (c) Flyrock. Flyrock travelling in the property outside the permit area; (i) The maximum ground vibration must (3) Adverse impacts on any air or along the ground must not be cast not exceed the following limits at the underground mine; or from the blasting site— location of any dwelling, public (4) Change in the course, channel, or (1) More than one-half the distance to building, school, church, or community availability of surface water or the nearest dwelling or other occupied or institutional building outside the groundwater outside the permit area. structure; permit area:

Maximum allowable peak particle velocity for Scaled-distance factor to Distance (D), from the blasting site, in feet ground vibration, in be applied without seismic monitoring (Ds) 2 inches/second 1

0 to 300 ...... 1.25 50 301 to 5,000 ...... 1.00 55 5,001 and beyond ...... 0.75 65 1 Ground vibration must be measured as the particle velocity. Particle velocity must be recorded in three mutually perpendicular directions. The maximum allowable peak particle velocity applies to each of the three measurements. 2 Applicable to the scaled-distance equation of paragraph (d)(3)(i) of this section.

(ii) You must provide a seismographic structure; and Ds = the scaled-distance blasting at the minesite. The modified record for each blast. factor. The regulatory authority may scale-distance factor must be (3) Scaled-distance equation. (i) You initially approve the scaled-distance determined such that the particle may use the scaled-distance equation, W equation using the values for the scaled- velocity of the predicted ground = (D/Ds) 2, to determine the allowable distance factor listed in paragraph vibration will not exceed the prescribed charge weight of explosives to be (d)(2)(i) of this section. maximum allowable peak particle detonated in any 8-millisecond period, (ii) The regulatory authority may velocity of paragraph (d)(2)(i) of this without seismic monitoring, where W = authorize development of a modified section at a 95-percent confidence level. the maximum weight of explosives, in scaled-distance factor upon receipt of a pounds; D = the distance, in feet, from written request by the operator, (4) Blasting-level chart. (i) You may the blasting site to the nearest protected supported by seismographic records of use the ground-vibration limits in

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00367 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93432 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

Figure 1 to determine the maximum allowable ground vibration.

(ii) If the Figure 1 limits are used, you if a written waiver by the lessee is (5) Weather conditions, including must provide a seismographic record submitted to the regulatory authority those which may cause possible adverse including both particle velocity and before blasting. blasting effects. vibration-frequency levels for each blast. (6) Type of material blasted. The regulatory authority must approve § 817.68 Use of explosives: Records of blasting operations. (7) Sketches of the blast pattern, the method for the analysis of the including number of holes, burden, predominant frequency contained in the (a) You must retain a record of all spacing, decks, and delay pattern. blasting records before application of blasts for at least 3 years. (8) Diameter and depth of holes. this alternative blasting criterion. (b) Upon request, you must make (9) Types of explosives used. (5) The regulatory authority must copies of these records available to the (10) Total weight of explosives used reduce the maximum allowable ground regulatory authority and to the public per hole. vibration beyond the limits otherwise for inspection. (11) The maximum weight of provided by this section, if determined (c) The records must contain the explosives detonated in an 8- necessary to provide damage protection. following data: millisecond period. (6) The regulatory authority may (1) Name of the operator conducting (12) Initiation system. require that you conduct seismic the blast. monitoring of any or all blasts or may (13) Type and length of stemming. (2) Location, date, and time of the specify the location at which the (14) Mats or other protections used. blast. measurements are taken and the degree (15) Seismographic and airblast of detail necessary in the measurement. (3) Name, signature, and certification records, if required, which must (e) The maximum airblast and number of the blaster conducting the include— ground-vibration standards of blast. (i) Type of instrument, sensitivity, paragraphs (b) and (d) of this section do (4) Identification, direction, and and calibration signal or certification of not apply at the following locations: distance, in feet, from the nearest blast annual calibration; (1) At structures owned by the hole to the nearest dwelling, public (ii) Exact location of instrument and permittee and not leased to another building, school, church, community or the date, time, and distance from the person. institutional building outside the permit blast; (2) At structures owned by the area, except those described in (iii) Name of the person and firm permittee and leased to another person, § 817.67(e) of this part. taking the reading;

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00368 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 ER20DE16.001 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93433

(iv) Name of the person and firm (7) Ensure that the fill will not cause (ii) Safely pass the runoff from a 100- analyzing the seismographic record; and or contribute to a violation of applicable year, 6-hour precipitation event. You (v) The vibration and/or airblast level state or tribal water quality standards for must use the appropriate regional recorded. surface water located downstream of the Natural Resources Conservation Service (16) Reasons and conditions for each toe of the fill, including, but not limited synthetic storm distribution to unscheduled blast. to, water quality standards established determine the peak flow from surface § 817.71 How must I dispose of excess under the authority of section 303(c) of runoff from this event. spoil? the Clean Water Act, 33 U.S.C. 1313(c). (2) You must grade the top surface of (b) Stability requirements.—(1) Static (a) General requirements. You, the a completed fill such that the final slope safety factor. You must design and permittee or operator, must after settlement will be toward properly mechanically transport and place excess construct the fill to attain a minimum designed drainage channels. You may spoil in designated disposal areas, long-term static safety factor of 1.5. The not direct uncontrolled surface runoff including approved valley fills and foundation and abutments of the fill over the outslope of the fill. must be stable under all conditions of other types of approved fills, within the (f) Control of water within the permit area in a controlled manner in construction. (2) Special requirement for steep- footprint of the fill.—(1) General compliance with the requirements of slope conditions. Where the slope in the requirements. If the disposal area this section. In general, you must place contains springs, natural or manmade excess spoil in a manner that will— disposal area exceeds 2.8h:1v (36 percent), or any lesser slope designated water courses, or wet weather seeps, (1) Minimize the adverse effects of you must design and construct leachate and surface water runoff from by the regulatory authority based on local conditions, you must construct underdrains and temporary diversions the fill on groundwater and surface as necessary to control erosion, prevent water, including aquatic life, within the bench cuts (excavations into stable bedrock) or rock-toe buttresses to ensure water infiltration into the fill, and permit and adjacent areas. ensure stability. (2) Ensure mass stability and prevent fill stability. mass movement during and after (c) Compliance with permit. You must (2) Temporary diversions. Temporary construction. construct the fill in accordance with the diversions must comply with the (3) Ensure that the final surface design and plans approved in the permit requirements of § 817.43 of this part. configuration of the fill is suitable for in accordance with § 784.35 of this (3) Underdrains. (i) You must revegetation and the approved chapter. construct underdrains that are postmining land use or uses and is (d) Requirements for handling of comprised of hard rock that is resistant compatible with the natural drainage organic matter and soil materials. You to weathering. must remove all vegetation, other pattern and surroundings. (ii) You must design and construct (4) Minimize disturbances to, and organic matter, and soil materials from underdrains using current, prudent adverse impacts on, fish, wildlife, and the disposal area prior to placement of engineering practices and any design related environmental values to the the excess spoil. You must store, criteria established by the regulatory extent possible, using the best redistribute, or otherwise use those authority. technology currently available. materials in accordance with § 817.22 of (5) Ensure that the fill will not change this part. You may use soil substitutes (iii) In constructing rock underdrains, the size or frequency of peak flows from and supplements if approved in the you may use only hard rock that is precipitation events or thaws in a way permit in accordance with § 784.12(e) of resistant to weathering, such as well- that would result in an increase in this chapter. cemented sandstone and massive flooding when compared with the (e) Surface runoff control limestone, and that is not acid-forming impacts of premining peak flows. requirements. (1) You must direct or toxic-forming. The underdrain must (6) Ensure that the fill will not cause surface runoff from areas above the fill be free of soil and fine-grained, clastic or contribute to a violation of applicable and runoff from the surface of the fill rocks such as siltstone, shale, mudstone, state or tribal groundwater standards or into stabilized channels designed to— and claystone. All rock used to preclude any premining use of (i) Meet the requirements of § 817.43 construct underdrains must meet the groundwater. of this part; and criteria in the following table:

AASHTO Test ASTM standard standard Acceptable results

Los Angeles Abrasion C 131 or C 535 T 96 Loss of no more than 50 percent of test sample by weight. Sulfate Soundness ..... C 88 or C 5240 T 104 Sodium sulfate test: Loss of no more than 12 percent of test sample by weight. Magnesium sulfate test: Loss of no more than 18 percent of test sample by weight.

(iv) The underdrain system must be capacity to carry water in excess of the constructed using current, prudent designed and constructed to carry the anticipated maximum infiltration away engineering practices to ensure the long- maximum anticipated infiltration of from the excess spoil fill. The pipe must term functioning of the underdrain water due to precipitation, snowmelt, be manufactured of materials that are system. and water from seeps and springs in the not susceptible to corrosion and must be (g) Placement of excess spoil. (1) foundation of the disposal area away demonstrated to be suitable for the deep Using mechanized equipment, you must from the excess spoil fill. burial conditions commonly associated transport and place excess spoil in a (v) To provide a safety factor against with excess spoil fill underdrains. controlled manner in horizontal lifts not future changes in local surface-water (vi) The underdrain system must be exceeding 4 feet in thickness; and groundwater hydrology, perforated protected from material piping, concurrently compacted as necessary to pipe may be embedded within the rock clogging, and contamination by an ensure mass stability and to prevent underdrain to enhance the underdrain adequate filter system designed and mass movement during and after

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00369 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93434 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

construction; and graded so that surface (2) Are not incompatible with the paragraph (k)(1) of this section refers and subsurface drainage is compatible stability of the fill; must provide a certified report to the with the natural surroundings. (3) Are consistent with the hydrologic regulatory authority on a quarterly basis. (2) You may not use any excess spoil reclamation plan approved in the permit (ii) In each report prepared under transport and placement technique that in accordance with § 784.22 of this paragraph (k)(3)(i) of this section, the involves end-dumping, wing-dumping, chapter; engineer must certify that the fill has cast-blasting, gravity placement, or (4) Will not result in elevated levels been constructed and maintained as casting spoil downslope. of parameters of concern in discharges designed and in accordance with the (3) Acid-forming, toxic-forming, and from the fill; and approved plan and this chapter. combustible materials. (i) You must (5) Are approved by the regulatory (iii) The report prepared under handle acid-forming and toxic-forming authority. paragraph (k)(3)(i) of this section must materials in accordance with § 817.38 of (j) Surface area stabilization. You identify and discuss any evidence of this part and in a manner that will must provide slope protection to instability, structural weakness, or other minimize adverse effects on plant minimize surface erosion at the site. hazardous conditions. If one of more of growth and the approved postmining You must revegetate all disturbed areas, those conditions exists, you must land use. including diversion channels that are submit an application for a permit (ii) You must cover combustible not riprapped or otherwise protected, revision that includes appropriate materials with noncombustible upon completion of construction. remedial design specifications. materials in a manner that will prevent (k) Inspections and examinations. (1) (iv) The report prepared under sustained combustion and minimize A qualified registered professional paragraph (k)(3)(i) of this section must adverse effects on plant growth and the engineer, or other qualified professional contain— approved postmining land use. specialist under the direction of the (A) A review and summary of all (h) Final configuration. (1) The final professional engineer, must inspect the complete inspections conducted during configuration of the fill must be suitable fill at least quarterly during the quarter under paragraph (k)(1) of for the approved postmining land use, construction, with additional complete this section. compatible with the natural drainage inspections conducted during critical (B) A review and summary of all pattern and the surrounding terrain, construction periods. The professional examinations conducted during the and, to the extent practicable, consistent engineer or specialist must be quarter under paragraph (k)(2) of this with natural landforms. experienced in the construction of earth section, including the logs maintained (2) You may construct terraces on the and rock fills. Critical construction under paragraph (k)(2)(ii) of this section. outslope of the fill if required for periods include, at a minimum— (C) The photographs taken under stability, to control erosion, to conserve (i) Foundation preparation, including paragraph (k)(2)(i) of this section. soil moisture, or to facilitate the the removal of all organic matter and (iv) Each certified report prepared approved postmining land use. The soil materials. under paragraph (k)(3) of this section for grade of the outslope between terrace (ii) Placement of underdrains and a quarter in which construction benches may not be steeper than 2h: 1v protective filter systems. activities include placement of (50 percent). (iii) Installation of final surface underdrains and protective filter (3)(i) You must configure the top drainage systems. systems must include color photographs surface of the fill to create a topography (2) An engineer or specialist meeting taken during and after construction, but that includes ridgelines and valleys the qualifications of paragraph (k)(1) of before underdrains are covered with with varied hillslope configurations this section also must— excess spoil. If the underdrain system is when practicable, compatible with (i) Conduct daily examinations during constructed in phases, each phase must stability and postmining land use placement and compaction of fill be certified separately. The photographs considerations, and generally consistent materials or, when more than one lift is must be taken in adequate size and with the topography that existed before completed per day, upon completion of number with enough terrain or other any mining. each 4-foot lift. As an alternative, the physical features of the site shown to (ii) The final surface elevation of the engineer or specialist may conduct provide a relative scale to the fill may exceed the elevation of the examinations on a weekly basis if a photographs and to specifically and surrounding terrain when necessary to mine representative takes photographs clearly identify the site. minimize placement of excess spoil in on a daily basis to document the lift (4) You must retain a copy of each perennial and intermittent streams, thickness and elevation with visual certified report prepared under provided the final configuration reference features. The certified report paragraph (k)(3) of this section at or near complies with the requirements of required by paragraph (k)(3) of this the mine site. paragraphs (a)(3) and (h)(1) of this section must include this photographic (l) Coal mine waste. You may dispose section. documentation. of coal mine waste in excess spoil fills (iii) The geomorphic reclamation (ii) Maintain a log recording the only if approved by the regulatory requirements of paragraph (h)(3)(i) of examinations conducted under authority and only if— this section do not apply in situations paragraph (k)(2)(i) of this section for (1) You demonstrate, and the in which they would result in burial of each 4-foot lift in each fill. The log must regulatory authority finds in writing, a greater length of perennial or include a description of the specific that the disposal of coal mine waste in intermittent streams than traditional fill work locations, excess spoil placement the excess spoil fill will not— design and construction techniques. methods, compaction adequacy, lift (i) Cause or contribute to a violation (i) Impoundments and depressions. thickness, suitability of fill material, of applicable state or tribal water quality No permanent impoundments are special handling of acid-forming and standards or effluent limitations, allowed on the completed fill. You may toxic-forming materials, deviations from including, but not limited to, water construct small depressions if they— the approved permit, and remedial quality standards established under the (1) Are needed to retain moisture, measures taken. authority of section 303(c) of the Clean minimize erosion, create or enhance (3)(i) The qualified registered Water Act, 33 U.S.C. 1313(c), and wildlife habitat, or assist revegetation; professional engineer to which effluent limitations established in any

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00370 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93435

National Pollutant Discharge temporary diversions as necessary to compatible with the natural Elimination System permit issued for control erosion, prevent water surroundings, and consistent with the the operation under section 402 of the infiltration into the fill, and ensure approved postmining land use. Clean Water Act, 33 U.S.C. 1342, or its stability. Underdrains must comply (4) Not create a public hazard. state or tribal counterpart; with the requirements of § 817.71(f)(3) (5) Prevent combustion. (ii) Cause or contribute to a violation of this part. (6) Ensure that the disposal facility of applicable state or tribal water quality (d)(1) The spoil must be placed on the will not change the size or frequency of standards for groundwater; or solid portion of the bench in a peak flows from precipitation events or (iii) Result in material damage to the controlled manner and concurrently thaws in a way that would result in an hydrologic balance outside the permit compacted as necessary to attain a long- increase in flooding when compared area. term static safety factor of 1.3 for all with the impacts of premining peak (2) The waste is placed in accordance portions of the fill. flows. with §§ 817.81 and 817.83 of this part. (2) Any spoil deposited on any fill (7) Ensure that the disposal facility (3) The waste is nontoxic-forming, portion of the bench must be treated as will not cause or contribute to a nonacid-forming, and non-combustible. an excess spoil fill under § 817.71 of violation of applicable state or tribal (4) The waste is of the proper this part. groundwater standards or preclude any characteristics to be consistent with the (e) You must grade the spoil placed premining use of groundwater. design stability of the fill. on the preexisting bench to— (8) Ensure that the disposal facility (m) Underground disposal. You may (1) Achieve a stable slope that does will not cause or contribute to a dispose of excess spoil in underground not exceed the angle of repose. violation of applicable state or tribal mine workings only in accordance with (2) Eliminate the preexisting highwall water quality standards for surface a plan approved by the regulatory to the maximum extent technically water located downstream of the toe of authority and the Mine Safety and practical, using all reasonably available the fill, including, but not limited to, Health Administration under § 784.26 of spoil, as that term is defined in § 701.5 water quality standards established this chapter. of this chapter. under the authority of section 303(c) of (3) Minimize erosion and water the Clean Water Act, 33 U.S.C. 1313(c). § 817.72 [Reserved] pollution both on and off the site. (9) Ensure that the disposal facility (f) All disturbed areas, including § 817.73 [Reserved] will not discharge acid or toxic mine diversion channels that are not drainage. § 817.74 What special requirements apply riprapped or otherwise protected, must (c) Coal mine waste from outside the to disposal of excess spoil on a preexisting be revegetated upon completion of permit area. You may dispose of coal bench? construction. mine waste materials from activities (a) General requirements. The (g) You may not construct permanent located outside the permit area within regulatory authority may approve the impoundments on preexisting benches the permit area only if approved by the disposal of excess spoil through on which excess spoil is placed under regulatory authority. Approval must be placement on a preexisting bench on a this section. based upon a showing that disposal will previously mined area or a bond (h) The final configuration of the fill be in accordance with the standards of forfeiture site if— on the preexisting bench must— this section. (1) The proposed permit area includes (1) Be compatible with natural (d) Design and construction the portion of the preexisting bench on drainage patterns and the surrounding requirements. (1)(i) You must design which the spoil will be placed; area. and construct coal mine waste disposal (2) Support the approved postmining (2) The proposed operation will facilities using current, prudent land use. comply with the applicable engineering practices and any design requirements of § 817.102 of this part; § 817.81 How must I dispose of coal mine and construction criteria established by and waste? the regulatory authority. (3) The requirements of this section (a) General requirements. If you, the (ii) A qualified registered professional are met. permittee, intend to dispose of coal engineer, experienced in the design and (b) Requirements for removal and mine waste in an area other than the construction of similar earth and waste disposition of vegetation, other organic mine workings or excavations, you must structures, must certify the design of the matter, and soil materials. You must place the waste in new or existing disposal facility. The engineer must remove all vegetation, other organic disposal areas within a permit area in specifically certify that any existing and matter, topsoil, and subsoil from the accordance with this section and, as planned underground mine workings in disposal area prior to placement of the applicable, §§ 817.83 and 817.84 of this the vicinity of the disposal facility will excess spoil and store, redistribute, or part. not adversely impact the stability of the otherwise use those materials in (b) Basic performance standards. You structure. accordance with § 817.22 of this part. must haul or convey and place the coal (iii) You must construct the disposal You may use soil substitutes and mine waste in a controlled manner to— facility in accordance with the design supplements if approved in the permit (1) Minimize the adverse effects of and plans submitted under § 784.25 of in accordance with § 784.12(e) of this leachate and surface-water runoff on this chapter and approved in the permit. chapter. groundwater and surface water, A qualified registered professional (c)(1) The fill must be designed and including aquatic life, within the permit engineer experienced in the design and constructed using current, prudent and adjacent areas to the extent construction of similar earth and waste engineering practices. possible, using the best technology structures must certify that the facility (2) The design must be certified by a currently available. has been constructed in accordance registered professional engineer. (2) Ensure mass stability and prevent with the requirements of this paragraph. (3) If the disposal area contains mass movement during and after (2) You must design and construct the springs, natural or manmade water construction. disposal facility to attain a minimum courses, or wet weather seeps, the fill (3) Ensure that the final disposal long-term static safety factor of 1.5. The design must include underdrains and facility is suitable for revegetation, foundation and abutments must be

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00371 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93436 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

stable under all conditions of (3) You must direct runoff from areas downstream water quality or the construction. above the refuse pile and runoff from environment as a result of acid drainage (e) Foundation investigations. (1) You the surface of the refuse pile into or toxic seepage through the must perform sufficient foundation and stabilized channels designed to meet the impounding structure. You must abutment investigations, as well as any requirements of § 817.43 of this part and discuss the stability of the structure and necessary laboratory testing of to safely pass the runoff from the 100- the prevention and potential impact of foundation material, to determine the year, 6-hour precipitation event. You acid drainage or toxic seepage through design requirements for foundation must use the appropriate regional the impounding structure in detail in stability and control of underseepage. Natural Resources Conservation Service the design plan submitted to the The analyses of the foundation synthetic storm distribution to regulatory authority in accordance with conditions must take into consideration determine the peak flow from surface § 784.25 of this chapter. the effect of any underground mine runoff from this event. (c)(1) You must design, construct, and workings located in the permit and (4) Runoff diverted from undisturbed maintain each impounding structure adjacent areas upon the stability of the areas need not be commingled with constructed of coal mine waste or disposal facility. runoff from the surface of the refuse intended to impound coal mine waste in (f) Soil handling requirements. You pile. accordance with paragraphs (a) and (c) must remove all vegetation, organic (5) Underdrains must comply with the of § 817.49 of this part. matter, and soil materials from the requirements of § 817.71(f) of this part. (2) You may not retain these disposal area prior to placement of the (c) Surface area stabilization. You structures permanently as part of the coal mine waste. You must store, must provide slope protection to approved postmining land use. redistribute, or otherwise use those minimize surface erosion at the site. (3) Each impounding structure materials in accordance with § 817.22 of You must revegetate all disturbed areas, constructed of coal mine waste or this part. You may use soil substitutes including diversion channels that are intended to impound coal mine waste and supplements if approved in the not riprapped or otherwise protected, that meets the criteria of § 77.216(a) of permit in accordance with § 784.12(e) of upon completion of construction. this title must have sufficient spillway this chapter. (d) Final configuration and cover. (1) capacity to safely pass, adequate storage (g) Emergency procedures. (1) If any The final configuration of the refuse pile capacity to safely contain, or a examination or inspection discloses that must be suitable for the approved combination of storage capacity and a potential hazard exists, you must postmining land use. Terraces may be spillway capacity to safely control, the inform the regulatory authority constructed on the outslope of the probable maximum precipitation of a 6- promptly of the finding and of the refuse pile if required for stability, hour precipitation event, or greater emergency procedures formulated for erosion control, conservation of soil event as specified by the regulatory public protection and remedial action. moisture, or facilitation of the approved authority. postmining land use. The grade of the (d) You must design spillways and (2) If adequate procedures cannot be outslope between terrace benches may outlet works to provide adequate formulated or implemented, you must not be steeper than 2h:1v (50 percent). protection against erosion and notify the regulatory authority (2) No permanent impoundments or corrosion. Inlets must be protected immediately. The regulatory authority depressions are allowed on the against blockage. then must notify the appropriate completed refuse pile. (e) You must direct surface runoff agencies that other emergency (3) Following final grading of the from areas above the disposal facility procedures are required to protect the refuse pile, you must cover the coal and runoff from the surface of the public. mine waste with a minimum of 4 feet of facility that may cause instability or (h) Underground disposal. You may the best available, nontoxic, and erosion of the impounding structure dispose of coal mine waste in noncombustible material in a manner into stabilized channels designed and underground mine workings only in that does not impede drainage from the constructed to meet the requirements of accordance with a plan approved by the underdrains. The regulatory authority § 817.43 of this part and to safely pass regulatory authority and the Mine Safety may allow less than 4 feet of cover the runoff from a 100-year, 6-hour and Health Administration under material based on physical and precipitation event. You must use the § 784.26 of this chapter. chemical analyses showing that the appropriate regional Natural Resources § 817.83 What special requirements apply revegetation requirements of §§ 817.111 Conservation Service synthetic storm to coal mine waste refuse piles? and 817.116 of this part will be met. distribution to determine the peak flow (e) Inspections. You must comply (a) General requirements. Refuse piles from surface runoff from this event. with the inspection and examination (f) For an impounding structure must meet the requirements of § 817.81 requirements of § 817.71(k) of this part. constructed of or impounding coal mine of this part, the additional requirements waste, you must remove at least 90 of this section, and the requirements of § 817.84 What special requirements apply percent of the water stored during the §§ 77.214 and 77.215 of this title. to coal mine waste impounding structures? design precipitation event within the (b) Surface runoff and drainage (a) Impounding structures constructed 10-day period following the design control. (1) If the disposal area contains of coal mine waste or intended to precipitation event. springs, natural or manmade water impound coal mine waste must meet the courses, or wet weather seeps, you must requirements of § 817.81 of this part. § 817.87 What special requirements apply design and construct the refuse pile (b) You may not use coal mine waste to burning and burned coal mine waste? with diversions and underdrains as to construct impounding structures (a) You must extinguish coal mine necessary to control erosion, prevent unless you demonstrate, and the waste fires in accordance with a plan water infiltration into the disposal regulatory authority finds in writing, approved by the regulatory authority facility, and ensure stability. that the stability of such a structure and the Mine Safety and Health (2) You may not direct or divert conforms to the requirements of this Administration. The plan must contain, uncontrolled surface runoff over the part and that the use of coal mine waste at a minimum, provisions to ensure that outslope of the refuse pile. will not have a detrimental effect on only those persons authorized by the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00372 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93437

operator, and who have an control erosion and air pollution taking of a threatened or endangered understanding of the procedures to be attendant to erosion. species or the destruction or adverse used, are involved in the extinguishing (b)(1) You must fill, regrade, or modification of designated critical operations. otherwise stabilize rills and gullies that habitat under 16 U.S.C. 1536(b)(4) or (b) You may not remove burning or form in areas that have been regraded 1539(a)(1)(B). burned coal mine waste from a and upon which soil or soil substitute (ii) You must promptly report to the permitted coal mine waste disposal area materials have been redistributed. This regulatory authority the presence of any without a removal plan approved by the requirement applies only to rills and previously unreported species listed as regulatory authority. Consideration gullies that— threatened or endangered, or any must be given to potential hazards to (i) Disrupt the approved postmining previously unreported species proposed persons working or living in the vicinity land use or reestablishment of the for listing as threatened or endangered, of the structure. vegetative cover; under the Endangered Species Act of (ii) Cause or contribute to a violation 1973, 16 U.S.C. 1531 et seq., within the § 817.89 How must I dispose of noncoal of applicable state or tribal water quality permit or adjacent areas. This mine wastes? standards or effluent limitations, requirement applies regardless of (a)(1) You must place and store including, but not limited to, water whether the species was listed before or noncoal mine wastes, including, but not quality standards established under the after permit issuance. limited to, grease, lubricants, paints, authority of section 303(c) of the Clean (iii) (A) Upon receipt of a notification flammable liquids, garbage, abandoned Water Act, 33 U.S.C. 1313(c), and under paragraph (b)(2)(ii) of this section, mining machinery, lumber, and other effluent limitations established in any the regulatory authority will contact and combustible materials generated during National Pollutant Discharge coordinate with the appropriate state, mining activities, in a controlled Elimination System permit issued for tribal, and federal fish and wildlife manner in a designated portion of the the operation under section 402 of the agencies. permit area. Clean Water Act, 33 U.S.C. 1342, or its (B) The regulatory authority, in (2) Placement and storage of noncoal state or tribal counterpart; coordination with the appropriate state, wastes must ensure that leachate and (iii) Cause or contribute to a violation tribal, and federal fish and wildlife surface runoff do not degrade surface of applicable state or tribal water quality agencies, will identify whether, and water or groundwater, that fires are standards for groundwater; or under what conditions, you may prevented, and that the area remains (iv) Result in material damage to the proceed. When necessary to ensure stable and suitable for reclamation and hydrologic balance outside the permit compliance with the Endangered revegetation compatible with the natural area. Species Act of 1973, 16 U.S.C. 1531 et surroundings. (2) You must reapply soil materials to seq., the regulatory authority will issue (b)(1) Final disposal of noncoal mine the filled or regraded rills and gullies an order under § 774.10(b) of this wastes must be in a designated disposal when necessary to reestablish a chapter requiring that you revise the site within the permit area or in a state- vegetative cover. You must then replant permit. approved solid waste disposal area. those areas. (iv) You must comply with any (2) Disposal sites within the permit species-specific protection measures area must meet the following § 817.97 How must I protect and enhance required by the regulatory authority in requirements: fish, wildlife, and related environmental coordination with the U.S. Fish and values? (i) The site must be designed and Wildlife Service or the National Marine constructed to ensure that leachate and (a) General requirements. You, the Fisheries Service, as applicable. drainage from the noncoal mine waste permittee, must, to the extent possible (2) Requirements related to state or area does not degrade surface water or using the best technology currently tribal endangered species laws. (i) You groundwater. available, minimize disturbances and must promptly report to the regulatory (ii) Wastes must be routinely adverse impacts on fish, wildlife, and authority any previously unreported compacted and covered to prevent related environmental values and state-listed or tribally-listed threatened combustion and wind-borne waste. achieve enhancement of those resources or endangered species within the permit (iii) When the disposal of noncoal where practicable, as described in detail or adjacent areas whenever you become wastes is completed, the site must be in the fish and wildlife protection and aware of its presence. This requirement covered with a minimum of 2 feet of enhancement plan approved in the applies regardless of whether the soil, slopes must be stabilized, and the permit in accordance with § 784.16 of species was listed before or after permit site must be revegetated in accordance this chapter. issuance. with §§ 817.111 through 817.116 of this (b) Requirements related to federal, (ii) (A) Upon receipt of a notification part. state, and tribal endangered species under paragraph (b)(2)(i) of this section, (iv) The disposal site must be laws.—(1) Requirements related to the the regulatory authority will contact and operated in accordance with all local, Endangered Species Act of 1973. (i) You coordinate with the appropriate state or state and federal requirements. may not conduct any surface mining tribal fish and wildlife agencies. (c) At no time may any noncoal mine activity that is in violation of the (B) The regulatory authority, in waste be deposited in a coal mine waste Endangered Species Act of 1973, 16 coordination with the appropriate state refuse pile or impounding structure, nor U.S.C. 1531 et seq. Nothing in this or tribal fish and wildlife agencies, will may an excavation for a noncoal mine chapter authorizes the taking of a identify whether, and under what waste disposal site be located within 8 species listed as threatened or conditions, you may proceed. When feet of any coal outcrop or coal storage endangered under the Endangered necessary, the regulatory authority will area. Species Act of 1973, 16 U.S.C. 1531 et issue an order under § 774.10(b) of this seq., or the destruction or adverse chapter requiring that you revise the § 817.95 How must I protect surface areas modification of designated critical permit. from wind and water erosion? habitat unless the U.S. Fish and Wildlife (c) Bald and golden eagles. (1) You (a) You must protect and stabilize all Service or the National Marine Fisheries may not conduct any underground exposed surface areas to effectively Service, as applicable, authorizes the mining activity in a manner that would

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00373 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93438 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

result in the unlawful taking of a bald section 404 of the Clean Water Act, 33 are the postmining land use, you must or golden eagle, its nest, or any of its U.S.C. 1344. establish— eggs. (f) Habitat of unusually high value for (1) Greenbelts comprised of non- (2) You must promptly report to the fish and wildlife. To the extent possible, invasive native plants that provide food regulatory authority any golden or bald using the best technology currently or cover for wildlife, unless greenbelts eagle nest within the permit area of available, you must avoid disturbances would be inconsistent with the which you become aware. to and, where practicable, enhance approved postmining land use plan for (3) Upon notification, the regulatory riparian and other native vegetation that site. authority will contact and coordinate along rivers and streams, lentic (2)(i) A vegetated buffer at least 100 with the U.S. Fish and Wildlife Service vegetation bordering ponds and lakes, feet wide along each bank of all and, when appropriate, the state or and habitat of unusually high value for perennial and intermittent streams tribal fish and wildlife agency to fish and wildlife, as described in within the permit area. The width of the identify whether, and under what § 783.20(c)(3) of this chapter. If buffer must be measured horizontally on conditions, you may proceed. avoidance of these features is not a line perpendicular to the stream, (4) Nothing in this chapter authorizes possible, you must restore or replace beginning at the ordinary high water the taking of a bald or golden eagle, its those features and, where practicable, mark. The buffer must be planted with nest, or any of its eggs in violation of the enhance them. species native to the area, including Bald and Golden Eagle Protection Act, (g) Vegetation requirements for fish species adapted to and suitable for 16 U.S.C. 668–668d. and wildlife habitat postmining land planting in any floodplains or other (d) Miscellaneous protective measures use. Where fish and wildlife habitat is riparian habitat located within the for other species of fish and wildlife. To a postmining land use, you must select buffer. The species planted must consist the extent possible, using the best and arrange the plant species to be used of native tree and understory species if the land was forested at the time of technology currently available, you for revegetation to maximize the application or if it would revert to forest must— benefits to fish and wildlife. Plant under conditions of natural succession. (1) Ensure that electric power species must be native to the area and must be selected on the basis of the (ii) Paragraph (i)(2)(i) of this section transmission lines and other does not apply to situations in which a transmission facilities used for, or following criteria: (1) Their proven nutritional value for vegetated buffer comprised of native incidental to, surface mining activities species would be incompatible with an on the permit area are designed and fish or wildlife. (2) Their value as cover for fish or approved postmining land use that is constructed to minimize electrocution wildlife. implemented before final bond release hazards to raptors and other avian (3) Their ability to support and under §§ 800.40 through 800.43 of this species with large wingspans. enhance fish or wildlife habitat after the chapter. (2) Locate, construct, operate, and release of performance bonds. (k) Planting arrangement maintain haul and access roads and (4) Their ability to sustain natural requirements. You must design and sedimentation control structures in a succession by allowing the arrange plantings in a manner that manner that avoids or minimizes establishment and spread of plant optimizes benefits to wildlife to the impacts on important fish and wildlife species across ecological gradients. You extent practicable and consistent with species or other species protected by may not use invasive plant species that the postmining land use. state or federal law. are known to inhibit natural succession. (3) Design fences, overland conveyors, (h) Vegetation requirements for § 817.99 What measures must I take to prevent and remediate landslides? and other potential barriers to permit cropland postmining land use. Where passage for large mammals, except cropland is the postmining land use, (a) You must notify the regulatory where the regulatory authority and where appropriate for wildlife- authority by the fastest available means determines that such requirements are management and crop-management whenever a landslide occurs that has unnecessary. practices, you must intersperse the crop the potential to adversely affect public property, health, safety, or the (4) Fence, cover, or use other fields with trees, hedges, or fence rows environment. appropriate methods to exclude wildlife to break up large blocks of monoculture (b) You must comply with any from ponds that contain hazardous and to diversify habitat types for birds concentrations of toxic or toxic-forming remedial measures that the regulatory and other animals. authority requires in response to the materials. (i) Vegetation requirements for notification provided in paragraph (a) of (5) Reclaim and reforest lands that forestry postmining land uses. Where this section. were forested at the time of application forestry, whether managed or and lands that would revert to forest unmanaged, is the postmining land use, § 817.100 What are the standards for under conditions of natural succession you must plant native tree and conducting reclamation in a manner that enhances recovery of understory species to the extent that contemporaneously with mining? the native forest ecosystem as doing so is not inconsistent with the (a) You must reclaim all areas expeditiously as practicable. type of forestry to be practiced as part disturbed by surface impacts incident to (e) Wetlands. (1) To the extent of the postmining land use. In all cases, an underground coal mine as possible, using the best technology regardless of the type of forestry to be contemporaneously as practicable with currently available, you must avoid practiced as part of the postmining land the mining operations, except when the disturbances to wetlands and, where use, you must intersperse plantings of mining operations are conducted in practicable, enhance them. If avoidance commercial species with plantings of accordance with a variance for is not possible, you must restore or native trees and shrubs of high value to concurrent surface and underground replace wetlands that you disturb and, wildlife. mining activities under § 785.18 of this where practicable, enhance them. (j) Vegetation requirements for other chapter. Reclamation activities include, (2) Nothing in paragraph (e)(1) of this postmining land uses. Where but are not limited to, backfilling, section authorizes destruction or residential, public service, commercial, grading, soil replacement, revegetation, degradation of wetlands in violation of industrial, or intensive recreational uses and stream restoration.

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00374 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93439

(b) The regulatory authority may (F) The regulatory authority segments may be retained and the establish schedules that define determines that disturbance of the modifications that must be made to the contemporaneous reclamation. existing spoil or underground highwall to ensure that— development waste would increase (A) The retained segment resembles § 817.102 How must I backfill surface environmental harm or adversely affect similar landforms that existed before excavations and grade and configure the any mining and restores the ecological land surface? the health or safety of the public. (G) The spoil is not needed to niches that those landforms provided. (a) You, the permittee or operator, eliminate the highwall or to meet other Nothing in this paragraph authorizes the must backfill all surface excavations and regulatory program requirements. retention of modified highwall segments grade all disturbed areas in compliance (2) Minimize the creation of uniform in excess of the number, length, and with the plan approved in the permit in slopes and cut-and-fill terraces. The height needed to replace similar accordance with § 784.12(d) of this regulatory authority may approve cut- landforms that existed before any chapter to— and-fill terraces only if— mining. (1) Restore the approximate original (i) They are compatible with the (B) The retained segment is stable. contour as the final surface approved postmining land use and are Features that result in the creation of configuration, except in the following needed to conserve soil moisture, talus slopes for wildlife habitat are situations: ensure stability, or control erosion on acceptable if they meet the requirements (i) Sites for which the regulatory final-graded slopes; or of paragraph (a)(3)(iv)(A) of this section. authority has approved a variance under (ii) Specialized grading, foundation (C) The retained segment does not § 785.16 of this chapter. conditions, or roads are required for the create an increased safety hazard (ii) Remining operations on approved postmining land use, in which compared to the features that existed previously mined areas, but only to the case the final grading may include a before any mining. extent specified in § 817.106(b) of this terrace of adequate width to ensure the (D) The exposure of water-bearing part. safety, stability, and erosion control strata, if any, in the retained segment (iii) Excess spoil fills constructed in necessary to implement the postmining does not adversely impact the accordance with § 817.71 or § 817.74 of land use. hydrologic balance. this part. (3) Eliminate all highwalls, spoil (v) You may retain settled and (iv) Refuse piles constructed in piles, impoundments, and depressions, revegetated spoil storage sites under the accordance with § 817.83 of this part. except in the following situations: conditions specified in paragraph (v) Permanent impoundments that (i) You may construct or retain small (a)(1)(vii) of this section. meet the requirements of paragraph depressions if— (4) Achieve a postmining slope that (a)(3)(ii) of this section and (A) They are needed to retain does not exceed either the angle of § 784.35(b)(4) of this chapter. moisture, minimize erosion, create or repose or such lesser slope as is (vi) The placement, in accordance enhance wildlife habitat, or assist necessary to achieve a minimum long- with § 784.35(b)(3) of this chapter, of revegetation; term static safety factor of 1.3 and to what would otherwise be excess spoil (B) They are consistent with the prevent slides. on the mined-out area to heights in hydrologic reclamation plan approved (5) Minimize erosion and water excess of the premining elevation when in the permit in accordance with pollution, both on and off the site. necessary to avoid or minimize § 784.22 of this chapter; and (6) Support the approved postmining construction of excess spoil fills on (C) You demonstrate that they will not land use. undisturbed land. result in elevated levels of parameters of (b) You must return all spoil to the (vii) Regrading of settled and concern in discharges from the surface excavations from which the revegetated spoil storage sites at the backfilled and graded area. spoil was removed. This requirement conclusion of underground mining (ii) The regulatory authority may does not apply to— activities, provided the following approve the retention of permanent (1) Excess spoil disposed of in conditions are met: impoundments if— accordance with § 817.71 or § 817.74 of (A) The settled and revegetated (A) They meet the requirements of this part. storage sites are composed of spoil or §§ 817.49 and 817.55 of this part; (2) Spoil placed outside surface non-acid-forming or non-toxic-forming (B) They are suitable for the approved excavations in non-steep slope areas to underground development waste. postmining land use; and restore the approximate original contour (B) The spoil or underground (C) You demonstrate compliance with by blending the spoil into the development waste is not located so as the future maintenance provisions of surrounding terrain, provided that you to be detrimental to the environment, § 800.42(c)(5) of this chapter. comply with the following the health and safety of the public, or (D) You have obtained all necessary requirements: the approved postmining land use. approvals and authorizations under (i) You must remove all vegetation (C) You demonstrate, through section 404 of the Clean Water Act, 33 and other organic matter from the area standard geotechnical analysis, that the U.S.C. 1344, when the impoundment is upon which you intend to place spoil spoil or underground development located in waters subject to the for blending purposes. You may not waste has a 1.3 static safety factor for jurisdiction of the Clean Water Act, 33 burn these materials; you must store, material placed on a solid bench and a U.S.C. 1251 et seq. redistribute, use, or bury them in the 1.5 static safety factor for material not (iii) You may retain highwalls on manner specified in § 817.22(f) of this placed on a solid bench. previously mined areas to the extent part. (D) The surface of the spoil or provided in § 817.106(b) of this part. (ii) You must remove, segregate, store, underground development waste is (iv) You may retain modified highwall and redistribute topsoil, in accordance revegetated in accordance with segments to the extent necessary to with § 817.22 of this part, from the area §§ 817.111 and 817.116 of this part. replace similar natural landforms upon which you intend to place spoil (E) Surface runoff is controlled in removed by the mining operation. The for blending purposes. accordance with § 784.29 of this chapter regulatory program must establish the (3) Settled and revegetated spoil and §§ 817.43 and 817.45 of this part. conditions under which these highwall storage sites under the conditions

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00375 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93440 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

specified in paragraph (a)(1)(vii) of this completely backfill the reaffected or (1) Water areas approved as a section. enlarged highwall. Instead, for those postmining land use or in support of the (c) You must compact spoil and waste operations, you must eliminate the postmining land use. materials when necessary to ensure highwall to the maximum extent (2) The surfaces of roads approved for stability or to prevent the formation of technically practical in accordance with retention to support the postmining acid or toxic mine drainage, but, to the the following criteria: land use. extent possible, you must avoid (1) You must use all spoil generated (3) Rock piles, water areas, and other compacting spoil, soil, and other by the remining operation and any other non-vegetative features created to materials placed in what will be the root reasonably available spoil to backfill the restore or enhance wildlife habitat zone of the species planted under the area. You must include reasonably under the fish and wildlife protection revegetation plan approved in the available spoil in the immediate vicinity and enhancement plan approved in the permit in accordance with § 784.12(g) of of the remining operation within the permit in accordance with § 784.16 of this chapter. permit area. this chapter. (d)(1) You must cover all exposed coal (2) You must grade the backfilled area (4) Any other impervious surface, seams with material that is to a slope that is compatible with the such as a building or a parking lot, noncombustible, nonacid-forming, and approved postmining land use and that approved as part of or in support of the nontoxic-forming. provides adequate drainage and long- postmining land use. This provision (2) You must handle and dispose of term stability. applies only to structures and facilities all other combustible materials exposed, (3) Any highwall remnant must be constructed before expiration of the used, or produced during mining in stable and not pose a hazard to the revegetation responsibility period. accordance with § 817.89 of this part in public health and safety or to the (b) The reestablished vegetative cover a manner that will prevent sustained environment. You must demonstrate, to must— combustion, as approved in the permit the satisfaction of the regulatory (1) Comply with the revegetation plan in accordance with § 784.12(j) of this authority, that the highwall remnant is approved in the permit in accordance chapter. stable. with § 784.12(g) of this chapter. (3) You must handle all other acid- (4) You must not disturb spoil placed (2) Be consistent with the approved forming and toxic-forming materials— on the outslope during previous mining postmining land use and, except as (i) In compliance with the plan operations if disturbance would cause provided in the revegetation plan approved in the permit in accordance instability of the remaining spoil or approved in the permit in accordance with § 784.12(n) of this chapter; otherwise increase the hazard to the with § 784.12(g) of this chapter, the (ii) In compliance with § 817.38 of public health and safety or to the native plant communities described in this part; environment. § 783.19 of this chapter. (iii) In compliance with the (3) Be at least equal in extent of cover hydrologic reclamation plan approved § 817.107 What special provisions for to the natural vegetation of the area. in the permit in accordance with backfilling, grading, and surface (4) Be capable of stabilizing the soil § 784.22(a) of this chapter; and configuration apply to operations on steep surface and, in the long term, preventing slopes? (iv) In a manner that will minimize erosion in excess of what would have adverse effects on plant growth and the (a) Underground mining activities on occurred naturally had the site not been approved postmining land use. steep slopes must comply with this disturbed. (e) You must dispose of any coal mine section and the requirements of (5) Not inhibit the establishment of waste placed in the surface excavation §§ 817.102 through 817.106 of this part. trees and shrubs when the revegetation in accordance with §§ 817.81 and (b) You may not place the following plan approved in the permit requires the 817.83 of this part, except that a long- materials on the downslope: use of woody plants. term static safety factor of 1.3 will apply (1) Spoil. (c) Volunteer plants of species that are instead of the 1.5 factor specified in (2) Waste materials of any type. desirable components of the plant § 817.81(d)(2) of this part. (3) Debris, including debris from communities described in the permit (f) You must prepare final-graded clearing and grubbing, except for woody application under § 783.19 of this surfaces in a manner that minimizes materials used to enhance fish and chapter and that are not inconsistent erosion and provides a surface for wildlife habitat. with the postmining land use may be replacement of soil materials that will (4) Abandoned or disabled considered in determining whether the minimize slippage. equipment. requirements of §§ 817.111 and 817.116 (c) You may not disturb land above have been met. § 817.106 What special provisions for the highwall unless the regulatory (d) You must stabilize all areas upon backfilling, grading, and surface authority finds that disturbance will which you have redistributed soil or soil configuration apply to previously mined facilitate compliance with the substitute materials. You must use one areas with a preexisting highwall? environmental protection standards of or a combination of the following (a) Remining operations on previously this subchapter and the disturbance is methods, unless the regulatory authority mined areas that contain a preexisting limited to that necessary to facilitate determines that neither method is highwall must comply with the compliance. necessary to stabilize the surface and requirements of §§ 817.102 through (d) You must handle woody materials control erosion— 817.107 of this part, except as provided in accordance with § 817.22(f) of this (1) Establishing a temporary in this section. part. vegetative cover consisting of (b) The highwall elimination noncompetitive and non-invasive requirements of § 817.102(a) of this part § 817.111 How must I revegetate areas species, either native or domesticated or do not apply to remining operations for disturbed by mining activities? a combination thereof. which you demonstrate in writing, to (a) You, the permittee, must establish (2) Applying suitable mulch free of the regulatory authority’s satisfaction, a diverse, effective, permanent weed and noxious plant seeds. that the volume of all reasonably vegetative cover on regraded areas and (e) You must plant all disturbed areas available spoil is insufficient to on all other disturbed areas except— with the species needed to establish a

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00376 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93441

permanent vegetative cover during the precipitation, the period of (2) The soil type and productivity first normal period for favorable responsibility will continue for a period information required under § 783.21 of planting conditions after redistribution of not less than: this chapter. of the topsoil or other plant-growth (1) Ten full years, except as provided (3) The land use capability and medium. The normal period for in paragraph (c)(2) of this section. productivity information required under favorable planting conditions is the (i) The vegetation parameters for § 783.22 of this chapter. generally accepted local planting time grazing land, pasture land, or cropland (4) The postmining land use approved for the type of plant materials approved must equal or exceed the approved under § 784.24 of this chapter, but only in the permit as part of the revegetation success standard during the growing to the extent that the approved plan under § 784.12(g) of this chapter. season of any two years after year six of postmining land use will be the responsibility period. implemented before final bond release § 817.113 [Reserved] (ii) On all other areas, the parameters under §§ 800.40 through 800.43 of this § 817.114 [Reserved] must equal or exceed the applicable chapter. Otherwise, the site must be success standard during the growing revegetated in a manner that will restore § 817.115 How long am I responsible for season of the last year of the native plant communities and the revegetation after planting? responsibility period. revegetation success standards for the (a) General provisions. (1) The period (2) Five full years for lands eligible for site must reflect that requirement. of extended responsibility for successful remining included in a permit approved (c) Except for the areas identified in revegetation will begin after the last year under § 785.25 of this chapter. The § 817.111(a) of this part, standards for of augmented seeding, fertilizing, lands must equal or exceed the success must include— irrigation, or other work, excluding applicable ground cover standard (1) Species diversity. husbandry practices that are approved during the growing seasons of the last (2) Areal distribution of species. by the regulatory authority in two consecutive years of the (3) Ground cover, except for land accordance with paragraph (d) of this responsibility period. actually used for cropland after the section. (d) Normal husbandry practices. (1) completion of regrading and (2) The initial planting of small areas The regulatory authority may approve redistribution of soil materials. that are regraded and planted as a result selective husbandry practices, excluding (4) Production, for land used for of the removal of sediment control augmented seeding, fertilization, or cropland, pasture, or grazing land either structures and associated structures and irrigation, provided it obtains prior before permit issuance or after the facilities, including ancillary roads used approval from OSMRE in accordance completion of regrading and to access those structures, need not be with § 732.17 of this chapter that the redistribution of soil materials. considered an augmented seeding practices are normal husbandry (5) Stocking, for areas revegetated necessitating an extended or separate practices, without extending the period with woody plants. revegetation responsibility period. This of responsibility for revegetation success (d) The ground cover, production, or paragraph also applies to areas upon and bond liability, if those practices can stocking of the revegetated area will be which accumulated sediment and be expected to continue as part of the considered equal to the approved materials resulting from removal of postmining land use or if success standard for those parameters sedimentation pond embankments are discontinuance of the practices after the when the measured values are not less spread. liability period expires will not reduce than 90 percent of the success standard, (b) Areas of more than 26.0 inches of the probability of permanent using a 90-percent statistical confidence average annual precipitation. In areas of revegetation success. interval (i.e., a one-sided test with a 0.10 more than 26.0 inches of annual average (2) Approved practices must be alpha error). precipitation, the period of normal husbandry practices within the (e) For all areas revegetated with responsibility will continue for a period region for unmined lands having land woody plants, regardless of the of not less than— uses similar to the approved postmining postmining land use), the regulatory (1) Five full years, except as provided land use of the disturbed area, including authority must specify minimum in paragraph (b)(2) of this section. such practices as disease, pest, and stocking and planting arrangements on (i) The vegetation parameters for vermin control; and any pruning, the basis of local and regional grazing land, pasture land, or cropland reseeding, and transplanting specifically conditions and after coordination with must equal or exceed the approved necessitated by such actions. and approval by the state agencies success standard during the growing responsible for the administration of season of any 2 years of the § 817.116 What requirements apply to forestry and wildlife programs. responsibility period, except the first standards for determining revegetation Coordination and approval may occur year. success? on either a program-wide basis or a (ii) On all other areas, the parameters (a) The regulatory authority must permit-specific basis. must equal or exceed the applicable select standards for revegetation success (f)(1) Only those species of trees and success standard during the growing and statistically valid sampling shrubs approved in the permit as part of season of the last year of the techniques for measuring revegetation the revegetation plan under § 784.12(g) responsibility period. success. The standards and techniques of this chapter or volunteer trees and (2) Two full years for lands eligible for must be made available to the public in shrubs of species that meet the remining included in a permit approved written form. requirements of § 817.111(c) of this part under § 785.25 of this chapter. The (b) The standards for success applied may be counted in determining whether lands must equal or exceed the to a specific permit must reflect the stocking standards have been met. applicable ground cover standard revegetation plan requirements of (2)(i) At the time of final bond release during the growing season of the last § 784.12(g) of this chapter. They must be under §§ 800.40 through 800.43 of this year of the responsibility period. based upon the following data— chapter, at least 80 percent of the trees (c) Areas of 26.0 inches or less (1) The plant community and and shrubs used to determine success average annual precipitation. In areas of vegetation information required under must have been in place for 60 percent 26.0 inches or less average annual § 783.19 of this chapter. of the applicable minimum period of

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00377 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93442 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

responsibility under § 817.115 of this § 817.121 What measures must I take to promptly repair, or compensate the part. prevent, control, or correct damage owner for, material damage resulting (ii) Trees and shrubs counted in resulting from subsidence? from subsidence caused to any non- determining revegetation success must (a) Measures to prevent or minimize commercial building or occupied be healthy and have been in place for damage. (1) You, the permittee or residential dwelling or structure related not less than two growing seasons. Any operator, must either— thereto that existed at the time of replanting must be done by means of (i) Adopt measures consistent with mining. transplants to allow for proper known technology that prevent (2) If you select the repair option, you accounting of plant stocking. subsidence from causing material must fully rehabilitate, restore, or damage to the extent technologically (iii)(A) For purposes of paragraph replace the damaged structure. and economically feasible, maximize (f)(2)(ii) of this section, volunteer trees (3) If you select the compensation mine stability, and maintain the value and shrubs of species that meet the option, you must compensate the owner and reasonably foreseeable use of requirements of § 817.111(c) of this part of the damaged structure for the full surface lands; or may be deemed equivalent to planted amount of the decrease in value (ii) Adopt mining technology that specimens two years of age or older. resulting from the subsidence-related provides for planned subsidence in a (B) Suckers on shrubby vegetation can damage. You may provide predictable and controlled manner. compensation by the purchase, before be counted as volunteer plants when it (2) If you employ mining technology is evident the shrub community is mining, of a non-cancellable, premium- that provides for planned subsidence in prepaid insurance policy. vigorous and expanding. a predictable and controlled manner (4) The requirements of paragraph (d) (iv) The requirements of paragraphs under paragraph (a)(1)(ii) of this section, of this section apply only to subsidence- (f)(2)(i) and (ii) of this section will be you must take necessary and prudent related damage caused by underground deemed met when records of woody measures, consistent with the mining mining activities conducted after vegetation planted show that— method employed, to minimize material October 24, 1992. (A) No woody plants were planted damage to the extent technologically (e) Repair or compensation for during the last two growing seasons of and economically feasible to non- damage to other structures. To the the responsibility period; and, commercial buildings and occupied extent required under applicable residential dwellings and structures (B) If any replanting of woody plants provisions of state law, you must correct related thereto unless— took place earlier during the material damage resulting from (i) You have obtained the written responsibility period, the total number subsidence caused to any structures or consent of the owners of those planted during the last 60 percent of facilities not protected by paragraph (d) structures; or that period is less than 20 percent of the of this section by either repairing the total number of woody plants required (ii) The costs of those measures would exceed the anticipated costs of repair. damage or compensating the owner of to meet the stocking standard. the structures or facilities for the full (3) Vegetative ground cover on areas This exception does not apply if the anticipated damage would constitute a amount of the decrease in value planted with trees or shrubs must be of resulting from the subsidence. Repair of a nature that allows for natural threat to health or safety. (3) Nothing in this part prohibits the damage includes rehabilitation, establishment and succession of native restoration, or replacement of damaged plants, including trees and shrubs. standard method of room-and-pillar mining. structures or facilities. Compensation (g) Special provision for areas that are (b) You must comply with all may be accomplished by the purchase developed within the revegetation provisions of the subsidence control before mining of a non-cancellable, responsibility period. Portions of the plan prepared pursuant to § 784.30 of premium-prepaid insurance policy. permit area that are developed for this chapter and approved in the permit. (f) Information to be considered in industrial, commercial, or residential (c) Repair of damage to surface lands determination of causation. The use within the revegetation and waters. (1) To the extent regulatory authority must consider all responsibility period need not meet technologically and economically relevant and reasonably available production or stocking standards. For feasible, you must correct any information in determining whether those areas, the vegetative ground cover subsidence-related material damage to damage to protected structures was must not be less than that required to surface lands, wetlands, streams, or caused by subsidence from underground control erosion. water bodies by restoring the land and mining. (h) Special provision for previously water features to a condition capable of (g) Adjustment of bond amount for mined areas. Previously mined areas maintaining the value and reasonably subsidence damage. (1) When need only meet a vegetative ground foreseeable uses that the land was subsidence-related material damage to cover standard, unless the regulatory capable of supporting before the land (including wetlands, streams, and authority specifies otherwise. At a subsidence-related damage occurred. water bodies), structures or facilities minimum, the cover on the revegetated (2) When correction of subsidence- protected under paragraphs (c) through previously mined area must not be less related material damage to wetlands or (e) of this section occurs, or when than the ground cover existing before a perennial or intermittent stream is contamination, diminution, or redisturbance and must be adequate to technologically and economically interruption to a water supply protected control erosion. infeasible, you must implement fish and under § 817.40 of this part occurs, the (i) Special provision for prime wildlife enhancement measures, as regulatory authority must require the farmland. For prime farmland approved by the regulatory authority in permittee to post additional historically used for cropland, the a permit revision, to offset the material performance bond until the repair, revegetation success standard damage. compensation, or replacement is provisions of § 823.15 of this chapter (d) Repair or compensation for completed. apply in lieu of the requirements of damage to non-commercial buildings, (2)(i) For structures protected under paragraphs (b) through (h) of this occupied residential dwellings and paragraphs (d) and (e) of this section, section. related structures. (1) You must the amount of additional bond required

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00378 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93443

under paragraph (g)(1) of this section damage to surface lands or waters is not The regulatory authority may hold the must equal the— technologically or economically information submitted with the detailed (A) Estimated cost of the repairs if the feasible. In that situation, you must plan as confidential, in accordance with repair option is selected. complete the enhancement measures § 773.6(d) of this chapter, upon your (B) Decrease in value if the required under paragraph (c)(2) of this request. compensation option is selected. section. (ii) For water supplies protected (h) Prohibitions and limitations on § 817.122 How and when must I provide under § 817.40 of this part, the amount underground mining. (1) You may not notice of planned underground mining? of additional bond required under conduct underground mining activities (a) At least 6 months prior to mining, paragraph (g)(1) of this section must beneath or adjacent to— or within that period if approved by the equal the estimated cost to replace the (i) Public buildings and facilities. regulatory authority, you, the protected water supply, unless the (ii) Churches, schools, and hospitals. underground mine operator, must mail conditions described in § 817.40(a)(4) of (iii) Impoundments with a storage a notification to all owners and this part apply. capacity of 20 acre-feet or more or occupants of surface property and (iii) For surface lands and waters to bodies of water with a volume of 20 structures above the planned which paragraph (c) of this section acre-feet or more. underground workings. applies, the amount of additional bond (2) The prohibitions of paragraph (b) The notification must include, at required under paragraph (g)(1) of this (h)(1) of this section do not apply if the a minimum— section must equal the estimated cost of subsidence control plan demonstrates (1) Identification of specific areas in restoring the land and waters to a that subsidence will not cause material which mining will take place; condition capable of maintaining the damage to, or reduce the reasonably (2) Dates that specific areas will be value and reasonably foreseeable uses foreseeable use of, the features or undermined; and that they were capable of supporting facilities listed in paragraphs (h)(1)(i) (3) The location or locations where before the material damage from through (iii) of this section. the subsidence control plan may be subsidence occurred. (3) The regulatory authority may limit examined. the percentage of coal extracted under (3)(i) The requirements of paragraph § 817.131 What actions must I take when I (g)(1) of this section do not apply if or adjacent to the features and facilities temporarily cease mining operations? repair, compensation, or replacement is listed in paragraphs (h)(1)(i) through (iii) of this section if it determines that (a)(1) Each person who temporarily completed within 90 days of the ceases to conduct underground mining occurrence of damage. The regulatory the limitation is necessary to minimize the potential for material damage to activities at a particular site must authority may extend the 90-day time effectively support and maintain all frame, provided that the total time those features or facilities or to any aquifer or body of water that serves as surface access openings to underground allowed does not exceed one year, if you operations and secure surface facilities demonstrate, and the regulatory a significant water source for any public water supply system. in areas in which there are no current authority finds in writing, that repair of operations, but where operations are to subsidence-related material damage to (i) If subsidence causes material damage to any of the features or be resumed under an approved permit. lands, waters, or protected structures or (2) Temporary cessation does not replacement of an adversely impacted facilities listed in paragraphs (h)(1)(i) through (iii) of this section, the relieve a person of his or her obligation protected water supply within 90 days to comply with any provisions of the would be unreasonable because— regulatory authority may suspend mining under or adjacent to those approved permit. (A) Subsidence is not complete; (b)(1) You must submit a notice of features or facilities until the subsidence (B) All probable subsidence-related intent to temporarily cease operations to control plan is modified to ensure material damage to lands, waters, or the regulatory authority before ceasing prevention of further material damage to protected structures has not yet mining and reclamation operations for occurred; or those features or facilities. (j) The regulatory authority must 30 or more days, or as soon as you know (C) All reasonably anticipated changes that a temporary cessation will extend that may affect an adversely impacted suspend underground mining activities under urbanized areas, cities, towns, beyond 30 days. protected water supply have not yet (2) The notice of temporary cessation and communities, and adjacent to occurred. must include a statement of the— (ii)(A) If you have not completed industrial or commercial buildings, (i) Exact number of surface acres correction or repair of subsidence- major impoundments, or perennial disturbed within the permit area prior to related material damage to surface lands streams, if it finds that the mining temporary cessation; or waters or replaced adversely activities pose an imminent danger to (ii) Extent and kind of reclamation impacted protected water supplies inhabitants of the urbanized areas, accomplished before temporary within 2 years following the occurrence cities, towns, or communities. cessation; and of that damage, the regulatory authority (k) You must submit a detailed plan (iii) Backfilling, regrading, must initiate bond forfeiture of the underground workings of your revegetation, environmental monitoring, proceedings under § 800.50 of this mine in accordance with a schedule underground opening closures, and chapter and use the funds collected to approved by the regulatory authority. water treatment activities that will repair the surface lands and waters or The detailed plan must include maps continue during temporary cessation. replace the protected water supplies. and descriptions, as appropriate, of (B) Paragraph (g)(3)(ii)(A) of this significant features of the underground § 817.132 What actions must I take when I section does not apply if— mine, including the size, configuration, permanently cease mining operations? (1) The landowner refuses to allow and approximate location of pillars and (a) Persons who permanently cease access to conduct the corrective entries, extraction ratios, measures conducting underground mining measures; or taken to prevent or minimize activities at a particular site must close, (2) You demonstrate, and the subsidence and related damage, areas of backfill, or otherwise permanently regulatory authority finds, that full extraction, and other information reclaim all disturbed areas in correction or repair of the material required by the regulatory authority. accordance with this chapter and the

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00379 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 93444 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations

permit approved by the regulatory (5) Refrain from seriously altering the with the postmining land use and to authority. normal flow of water in streambeds or complement the natural drainage (b) All underground openings, surface drainage channels. pattern of the surrounding terrain. equipment, surface structures, or other (6) Prevent or control damage to (5) Protecting the natural drainage surface facilities must be removed and public or private property, including the patterns by installing dikes or cross- the affected land reclaimed, unless the prevention or mitigation of adverse drains as necessary to control surface regulatory authority approves retention effects on lands within the boundaries runoff and erosion. of those features because they are of units of the National Park System, the (6) Scarifying or ripping the roadbed, suitable for the postmining land use or National Wildlife Refuge System, the replacing topsoil or substitute material environmental monitoring. National System of Trails, the National in accordance with § 817.22 of this part, Wilderness Preservation System, the and revegetating disturbed surfaces in § 817.133 What provisions concerning Wild and Scenic Rivers System, accordance with §§ 817.111, 817.115, postmining land use apply to my operation? including designated study rivers, and and 817.116 of this chapter. You, the permittee, must restore all National Recreation Areas designated by disturbed areas in a timely manner to Act of Congress. § 817.151 What additional requirements apply to primary roads? conditions that are capable of (7) Use nonacid- and nontoxic- supporting— forming substances in road surfacing. (a) Primary roads must meet the (a) The uses they were capable of (c) Design and construction limits and requirements of § 817.150 of this part supporting before any mining; as establishment of design criteria. To and the additional requirements of this described under § 783.22 of this chapter; ensure environmental protection section. or appropriate for their planned duration (b) Certification. The construction or (b) Higher or better uses approved and use, including consideration of the reconstruction of primary roads must be under § 784.24(b) of this chapter. type and size of equipment used, the certified in a report to the regulatory authority by a qualified registered § 817.150 What are the general design and construction or requirements for haul and access roads? reconstruction of roads must include professional engineer, or in any state that authorizes land surveyors to certify (a) Road classification system. (1) appropriate limits for grade, width, the construction or reconstruction of Each road meeting the definition of that surface materials, surface drainage primary roads, a qualified registered term in § 701.5 of this chapter must be control, culvert placement, and culvert professional land surveyor, with classified as either a primary road or an size, in accordance with current, experience in the design and ancillary road. prudent engineering practices, and any (2) A primary road is any road that necessary design criteria established by construction of roads. The report must is— the regulatory authority. indicate that the primary road has been (i) Used for transporting coal or spoil; (d) Location. (1) No part of any road constructed or reconstructed as (ii) Frequently used for access or other may be located in the channel of an designed and in accordance with the purposes for a period in excess of 6 intermittent or perennial stream unless approved plan. months; or specifically approved by the regulatory (c) Safety factor. Each primary road (iii) To be retained for an approved authority in accordance with § 784.28 of embankment must have a minimum postmining land use. this chapter and § 817.57 of this part. static factor of 1.3 or meet the (3) An ancillary road is any road not (2) Roads must be located to minimize requirements established under classified as a primary road. downstream sedimentation and § 784.37(c) of this chapter. (b) Performance standards. Each road flooding. (d) Location. (1) To minimize erosion, must be located, designed, constructed, (e) Maintenance. (1) A road must be a primary road must be located, insofar reconstructed, used, maintained, and maintained to meet the performance as is practicable, on the most stable reclaimed so as to— standards of this part and any additional available surface. (1) Control or prevent erosion, criteria specified by the regulatory (2) Fords of perennial or intermittent siltation, and air pollution attendant to authority; streams are prohibited unless they are erosion, including road dust and dust (2) A road damaged by a catastrophic specifically approved by the regulatory occurring on other exposed surfaces, by event, such as a flood or earthquake, authority as temporary routes during measures such as vegetating, watering, must be repaired as soon as is periods of road construction. using chemical or other dust practicable after the damage has (e) Drainage control. In accordance suppressants, or otherwise stabilizing occurred. with the approved plan— all exposed surfaces in accordance with (f) Reclamation. A road not to be (1) Each primary road must be current, prudent engineering practices. retained as part of an approved constructed (or reconstructed) and (2) Control or prevent damage to fish, postmining land use must be reclaimed maintained to have adequate drainage wildlife, or their habitat and related in accordance with the approved control, using structures such as, but not environmental values. reclamation plan as soon as practicable limited to bridges, ditches, cross drains, (3) Control or prevent additional after it is no longer needed for mining and ditch relief drains. The drainage contributions of suspended solids to and reclamation operations. control system must be designed to streamflow or runoff outside the permit Reclamation must include— safely pass the peak runoff from the 10- area. (1) Closing the road to traffic. year, 6-hour precipitation event, or any (4) Neither cause nor contribute, (2) Removing all bridges and culverts greater event specified by the regulatory directly or indirectly, to a violation of unless approved as part of the authority. applicable state or tribal water quality postmining land use. (2) Drainage pipes and culverts must standards for surface water and (3) Removing or otherwise disposing be installed as designed, and groundwater, including, but not limited of road-surfacing materials that are maintained in a free and operating to, surface water quality standards incompatible with the postmining land condition and to prevent or control established under the authority of use and revegetation requirements. erosion at inlets and outlets. section 303(c) of the Clean Water Act, (4) Reshaping the slopes of road cuts (3) Drainage ditches must be 33 U.S.C. 1313(c). and fills as necessary to be compatible constructed and maintained to prevent

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00380 Fmt 4701 Sfmt 4700 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations 93445

uncontrolled drainage over the road (i) Minimizes damage to fish, wildlife, section if the regulatory program surface and embankment. and related environmental values; and establishes standards for and requires (4) Culverts must be installed and (ii) Minimizes additional construction of a barrier comprised of maintained to sustain the vertical soil contributions of suspended solids to alternative materials that will provide pressure, the passive resistance of the streamflow or runoff outside the permit equivalent stability. foundation, and the weight of vehicles area. Any such contributions may not be (3) The final graded slopes must be using the road. in excess of limitations of state or less than 1v:5h, so as to create a level (5) Natural stream channels must not federal law. plateau or gently rolling configuration. be altered or relocated without the prior § 817.200 [Reserved] The outslopes of the plateau may not approval of the regulatory authority in exceed 1v:2h except where engineering accordance with § 784.28 of this chapter PART 824—SPECIAL PERMANENT data substantiate, and the regulatory and § 817.57 of this part. PROGRAM PERFORMANCE authority finds in writing and includes (6) Except as provided in paragraph STANDARDS—MOUNTAINTOP in the permit under § 785.14 of this (d)(2) of this section, structures for REMOVAL MINING OPERATIONS chapter that an alternative configuration perennial or intermittent stream channel will achieve a minimum static safety crossings must be made using bridges, ■ 36. Revise the authority citation for factor of 1.5. culverts, low-water crossings, or other part 824 to read as follows: (4) You must grade the plateau or structures designed, constructed, and Authority: 30 U.S.C. 1201 et seq. gently rolling contour to drain inward maintained using current prudent from the outslope, except at specified ■ 37. Revise the heading for part 824 to engineering practices. The regulatory points where it drains over the outslope read as set forth above. authority must ensure that low-water in stable and protected channels. ■ 38. Revise § 824.11 to read as follows: crossings are designed, constructed, and (5) You must place sufficient spoil on maintained to prevent erosion of the § 824.11 What special performance the mountaintop bench to achieve the structure or streambed and additional standards apply to mountaintop removal approved postmining land use. You contributions of suspended solids to mining operations? must place all spoil material not streamflow. (a) Applicability. This section applies retained on the mountaintop bench in (f) Surfacing. Primary roads must be to all operations for which the accordance with the excess spoil surfaced with material approved by the regulatory authority has approved a disposal requirements of § 816.71 or regulatory authority as being sufficiently permit under § 785.14 of this chapter. § 816.74 of this chapter. durable for the anticipated volume of (b) Performance standards. (1) You, traffic and the weight and speed of (6) You must prevent damage to the permittee, must comply with all vehicles using the road. natural watercourses in accordance with applicable requirements of this the finding made by the regulatory § 817.180 To what extent must I protect subchapter and the regulatory program, authority under § 785.14 of this chapter. utility installations? other than the approximate original You must conduct all underground contour restoration requirements of PART 827—SPECIAL PERMANENT coal mining operations in a manner that § 816.102(a)(1) of this chapter and the PROGRAM PERFORMANCE minimizes damage, destruction, or thick overburden requirements of STANDARDS—COAL PREPARATION disruption of services provided by oil, § 816.105 of this chapter. PLANTS NOT LOCATED WITHIN THE gas, and water wells; oil, gas, and coal- (2)(i) You must retain an outcrop PERMIT AREA OF A MINE slurry pipelines; railroads; electric and barrier, consisting of the toe of the ■ telephone lines; and water and sewage lowest coal seam and its associated 39. The authority citation for part 827 lines that pass over, under, or through overburden, of sufficient width to continues to read as follows: the permit area, unless otherwise prevent slides and erosion. You must Authority: 30 U.S.C. 1201 et seq. approved by the owner of those construct drains through the barrier to ■ 40. Revise § 827.12 to read as follows: facilities and the regulatory authority. the extent necessary to prevent saturation of the backfill. § 827.12 What performance standards § 817.181 What requirements apply to (ii) The outcrop barrier requirement in apply to coal preparation plants? support facilities? paragraph (b)(2)(i) of this section does (a) You must operate each support not apply if the proposed mine site was Except as provided in § 827.13 of this facility in accordance with the permit mined prior to May 3, 1978, and the toe part, construction, operation, issued for the mine or coal preparation of the lowest coal seam has already been maintenance, modification, reclamation, plant to which the facility is incident or removed. and removal activities at coal from which its operation results. (iii) You may remove a coal barrier preparation plants must comply with (b) In addition to the other provisions adjacent to a head-of-hollow fill after the following provisions of part 816 of of this part, you must locate, maintain, the elevation of the fill attains the this chapter: §§ 816.11, 816.22, 816.34 and use support facilities in a manner elevation of the coal barrier if the head- through 816.57, 816.71, 816.74, 816.79, that— of-hollow fill provides the stability 816.81 through 816.97, 816.100, (1) Prevents or controls erosion and otherwise ensured by the retention of a 816.102, 816.104, 816.106, 816.111 siltation, water pollution, and damage to coal barrier. through 816.116, 816.131 through public or private property; and (iv) The regulatory authority may 816.133, 816.150, 816.151, and 816.181. (2) To the extent possible using the allow removal of the outcrop barrier [FR Doc. 2016–29958 Filed 12–19–16; 8:45 am] best technology currently available— required by paragraph (b)(2)(i) of this BILLING CODE 4310–05–P

VerDate Sep<11>2014 00:19 Dec 20, 2016 Jkt 214001 PO 00000 Frm 00381 Fmt 4701 Sfmt 9990 E:\FR\FM\20DER4.SGM 20DER4 srobinson on DSK5SPTVN1PROD with RULES4