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Final Environmental Impact Statement (EIS)

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Final Environmental Impact Statement (EIS) THIS PAGE IS INTENTIALLY BLANK Final Environmental Impact Statement Excess Spoil Minimization - Stream Buffer Zones OSM-EIS-34 Proposed Revisions to the Permanent Program Regulations Implementing the Surface Mining Control and Reclamation Act of 1977 Concerning the Creation and Disposal of Excess Spoil and Coal Mine Waste and Stream Buffer Zones Prepared by the U.S. Department of the Interior Office of Surface Mining Reclamation and Enforcement September 2008 / JCZ...,;e .~#' Brent Wah l qui~rectOr THIS PAGE IS INTENTIALLY BLANK COVER SHEET ACTION: The Office of Surface Mining Reclamation and Enforcement is considering revising the Federal regulations implementing the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act), 30 U.S.C. 1201-1328, that pertain to stream buffer zones, excess spoil generation and disposal, and coal mine waste disposal. TYPE OF STATEMENT: Environmental impact statement: OSM-EIS-34. LEAD AGENCY: The Office of Surface Mining Reclamation and Enforcement (OSM), U.S. Department of the Interior FOR FURTHER INFORMATION, PLEASE CONTACT: David Hartos, EIS Team Leader Office of Surface Mining Reclamation and Enforcement U.S. Department of the Interior 3 Parkway Center Pittsburgh, PA 15220 Telephone: (412) 937-2909 ABSTRACT: OSM is considering revising the Federal regulations implementing the SMCRA that pertain to stream buffer zones, excess spoil generation and disposal, and coal mine waste disposal. Alternatives for those revisions, including not revising the regulations, are analyzed in this environmental impact statement (EIS). Both the initial and permanent regulatory programs under SMCRA have always included a regulation that incorporated the concept of a 100-foot buffer zone around intermittent and perennial streams. That regulation, which is known as the stream buffer zone rule, went through three iterations between 1977 and 1983. The last of those iterations was intended in part to make it easier to determine when and to which streams the rule applied. There is considerable controversy over the proper interpretation of OSM’s existing rules concerning the stream buffer zone at 30 CFR 816.57 and 817.57. Some interpretations appear to be at odds with the underlying provisions of SMCRA. Because of these conflicting interpretations, there is a need to clarify what buffer zone requirements apply to surface coal mining and reclamation operations under SMCRA. Therefore, one purpose of this Federal action is to eliminate the uncertainty as to the requirements for a stream buffer zone, consistent with underlying statutory authority. There is also a related controversy over the environmental impacts of fills, refuse piles, slurry impoundments, and other structures associated with the disposal of excess spoil and coal mine waste, largely because these structures may involve the filling of substantial portions of headwater stream valleys, especially in central Appalachia. This controversy has highlighted the need to ensure that the adverse impacts of the disposal of excess spoil and coal mine waste on fish, wildlife, and related environmental values are effectively minimized. Thus, another purpose of this Federal action is to ensure that excess spoil fills, refuse piles, and slurry impoundments are designed, located, and constructed to prevent additional contributions of suspended solids to stream flow or runoff outside the permit area, and to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, as required by SMCRA. OSM’s evaluation of these concerns also identified a similar need with respect to coal mine waste disposal facilities (refuse piles and impoundments). Therefore, yet another purpose of this Federal action is to develop similar measures to ensure that coal mine waste disposal facilities and impoundments are located, designed, and constructed to meet the requirements of SMCRA for preventing additional contributions of suspended solids to stream flow or runoff outside the permit area and minimizing disturbances and adverse impacts on fish, wildlife, and related environmental values. After briefly considering a range of seventeen alternatives, including an alternative of not making changes to the applicable regulations or policies (i.e., the “no action alternative”), OSM focused this environmental analysis on four reasonable alternatives plus the “no action” alternative in this final EIS. The four alternatives that the final EIS examines in detail are described below Alternative 1 is OSM’s preferred alternative and is the most environmentally protective alternative. Excess spoil This alternative would revise 30 CFR 780.35 and 784.19 to require that a permit application in which the applicant proposes to generate excess spoil include a demonstration, to the satisfaction of the regulatory authority, that the operation is designed to minimize, to the extent possible, the volume of excess spoil that the operation will generate, thus ensuring that spoil is returned to the mined-out area to the extent possible, taking into consideration applicable regulations concerning restoration of the approximate original contour, safety, stability, and environmental protection and the needs of the proposed postmining land use. The revised regulations would also require a demonstration, prepared to the satisfaction of the regulatory authority that the designed maximum cumulative volume of all proposed excess spoil fills within the permit area is no larger than the capacity needed to accommodate the anticipated cumulative volume of excess spoil that the operation will generate, as approved by the regulatory authority. The revised regulations also would provide that the applicant must design the operation to avoid placement of excess spoil in or within 100 feet of a perennial or intermittent stream to the extent possible. The purpose of this provision is to minimize adverse impacts on fish, wildlife, and related environmental values. If avoidance is not possible, the applicant would have to explain, to the satisfaction of the regulatory authority, why an alternative that does not involve placement of excess spoil in or within 100 feet of a perennial or intermittent stream is not reasonably possible. In addition, the applicant would have to identify a reasonable range of alternatives that vary with respect to the number, size, location, and configuration of proposed fills. The applicant would have to identify only those alternatives that are reasonably possible and that are likely to differ in terms of impacts on fish, wildlife, and related environmental values. An alternative would be reasonably possible if it conforms to the safety, engineering, design, and construction requirements of the regulatory program and is capable of being done after consideration of cost, logistics, and available technology. The fact that one alternative may cost somewhat more than a different alternative would not necessarily warrant exclusion of the more costly alternative from consideration. However, an alternative generally could be considered unreasonable if its cost was substantially greater than the costs normally associated with this type of project. In addition, to be considered reasonable, a potential alternative would have to be consistent with the coal recovery provisions of 30 CFR 816.59 and 817.59, which provide that mining activities must be conducted so as to maximize the utilization and conservation of the coal, while utilizing the best appropriate technology currently available to maintain environmental integrity, so that reaffecting the land in the future through surface coal mining operations is minimized. The applicant would have to analyze the impacts of each of the identified alternatives on fish, wildlife, and related environmental values, taking into consideration both terrestrial and aquatic ecosystems. For every alternative that would involve placement of excess spoil in a perennial or intermittent stream, the analysis is required to include an evaluation of impacts on the physical, chemical, and biological characteristics of the stream downstream of the proposed fill, including seasonal variations in temperature and volume, changes in stream turbidity or sedimentation, the degree to which the excess spoil may introduce or increase contaminants, and the effects on aquatic organisms, and the effects on wildlife that is dependent upon the stream. If the applicant prepared an analysis of alternatives for the proposed fill under 40 CFR 230.10 to meet Clean Water Act requirements, the applicant could initially submit a copy of that analysis with the application in lieu of complying with the analytical requirements detailed in the preceding sentence. The regulatory authority would determine whether and to what extent the analysis prepared for Clean Water Act purposes satisfies the analytical requirements under this alternative. The applicant would be required to select the alternative with the least overall adverse environmental impact on fish, wildlife, and related environmental values, including adverse impacts on water quality and aquatic ecosystems. Finally, under the preferred alternative, we would revise the performance standards concerning excess spoil at 30 CFR 816.71 and 817.71 by adding a requirement that the permittee construct the fill in accordance with the design and plans approved in the permit. We also would add a provision requiring the permittee to place excess spoil in a location and manner that would minimize disturbances and adverse impacts on
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