United States
Environmental
Protection Agency
EPA Region 3
Philadelphia, PA
EPA9-03-R-00013A
June 2003
Draft Programmatic
Environmental Imoact Statement
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APPENDIX A
IDEAS FOR GOVERNMENT ACTION
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Mountaintop Mining/Valley Fill
Environmental Impact Statement (EIS)
Programmatic Review
Ideas for Government Action
December 1999
Introduction
This document presents — for public review and discussion — a number of ideas for potential
government action to address the environmental impacts of mountaintop mining and valley fills in
the Appalachian coalfields. The ideas include potential actions at both the Federal and State
levels. They represent different ways to address what the agencies preparing the EIS believe are
the major issues. There are far more ideas for government action presented here than can be
analyzed in depth in the EIS. Some ideas are alternatives to others. Public comments will assist
the agencies to select the most valuable ideas for further analysis and to judge whether the most
significant issues within the purpose of the EIS have been identified.
During their program review, the agencies came to some preliminary conclusions about which
issues should receive priority attention in the EIS, and grouped the ideas for government action
according to these issues. Public input is invited on the selection of priority issues, as well as on
the potential actions.
Background. The U.S. Environmental Protection Agency, U.S. Office of Surface Mining, U.S.
Army Corps of Engineers, U.S. Fish and Wildlife Service, and West Virginia Division of
Environmental Protection are cooperating in the preparation of an EIS on mountaintop mining
and valley fill operations in the Appalachian coalfields. The Commonwealths of Kentucky and
Virginia are participating in the EIS process, providing available data regarding operations within
their jurisdictions.
The purpose of the EIS is "to consider developing agency policies, guidance, and
coordinated agency decision-making processes to minimize, to the maximum extent practicable,
the adverse environmental effects to waters of the United States and to fish and wildlife
resources from mountaintop mining operations, and to environmental resources that could be
affected by the size and location of fill material in valley fill sites. " The draft EIS is on schedule
to be released for public comment during the summer of 2000, and the final EIS is slated for
completion by January 2001.
To conform with the National Environmental Policy Act, an EIS must evaluate different
alternatives and recommend the preferred alternative. For this EIS, the alternatives will be made
up of various combinations of possible program changes, such as new or revised regulations,
policies, guidance, permitting processes and inter-agency coordination; recommendations for
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further research and other means to improve information for making decisions; and even changes
to the laws that govern surface coal mining operations. To analyze the relative merit of the
alternatives, potential actions will be categorized according to the significant issues which they
would address.
How the ideas were developed. The ideas for potential government action reflect the agencies'
review of public comments solicited during the initial phase of the EIS scoping process. Ideas
also came from the agencies' review of reports of earlier efforts, such as the West Virginia
Governor's Task Force Report issued last December. Some ideas reflect program improvements
already being developed. Finally, as described in EIS Bulletin 3 (November 1999), ideas were
developed during a series of interagency meetings held this summer to review current programs
and policies ("program review process").
Instructions. The ideas for government action are presented in a table format so that reviewers
who wish to comment can rank each idea. If you wish to indicate your views about the priority of
any idea, please do so by writing a number in the right hand column (1-high; 2-medium; 3-1 ow
priority). There are also blank rows where you can add new ideas (prioritize them too, please) or
reword, edit, or clarify an existing idea. If you would like to download the form and type in your
comments and edits, you may retrieve an Adobe Acrobat version from the EPA Region III web
site at http://www.epa.gov/region3/mtntop.
Please return your completed table as soon as possible, and no later than January 3, 2000,
to:
William Hoffman
3ES30
U.S. Environmental Protection Agency
1650 Arch Street
Philadelphia, PA 19103-2029
You may contact Mr. Hoffman by telephone at (215) 814-2995, and send comments by
fax to (215) 814-2783. You may also e-mail a file with your mark-ups to:
"hoffman.william@epa.gov".
To emphasize, the purpose of this public review and comment opportunity is to assist the
agencies in selecting potential government actions to be analyzed in the EIS. You do not have to
comment on every idea. If you are only interested in certain issues and would like to prioritize
and/or comment only on a portion of the document, we would welcome a partial review as well.
We appreciate your attention and response.
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Priority Issues
The ideas for government action are presented in three categories, according to whether they
should be given priority attention for both Federal and State actions, appear to be most amenable
to State action, or are issues which will be addressed in the EIS, but for which no new
government actions are presented. The preliminary conclusions about which issues fit into each
category are:
1. Category I - Priority attention for new Federal and State actions should be given to
addressing the issues associated with protecting aquatic resources. The ideas for government
action address four aquatic resource protection issues:
Issue 1 - Impacts on Aquatic Resources
A. Preventing stream loss and adverse surface- and groundwater impacts from valley
fills and other mountaintop mining operations;
B. Ability of mined area reclamation practices to restore stream habitat and aquatic
functions impacted by mining;
C. Effectiveness of compensatory mitigation projects to make up for the loss of stream
habitat and aquatic functions;
D. Protecting watersheds from cumulative effects of mountaintop mining/valley fill
activities and other land disturbances.
2. Category II - New actions should be considered particularly at the State level to
address the issues associated with impacts on communities. The report of the West Virginia
Governor's Task Force has already spurred action in West Virginia on concerns in this area.
Protection of terrestrial habitats is the second issue area. The agencies concluded from the
program review that current Federal statutes and regulations generally provide an appropriate and
adequate framework, although this conclusion needs to be confirmed by further study in some
cases. The ideas for government action in this category address the following:
Issue 2 - Impacts on Communities
A. Effects of blasting and other mining activities on homes, water wells and quality of
life;
B. Effects of fugitive dust both as a nuisance and a health risk;
C. Effects from mountaintop mining on flooding of downstream communities;
D. Valley fill stability;
E. Ability for reclaimed mined land to provide an economic and/or social benefit to coal
field communities;
F. Effects of mining on scenery and culturally significant landscapes.
in
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Issue 3 - Terrestrial Impacts
A. Effects of mountaintop mining on plants and wildlife, including unique/endangered
species;
B. Effects of deforestation and reduction/fragmentation of forested areas by
mountaintop mining;
C. Cumulative effects on the environment from mining and other land disturbance;
D. Effects of mountaintop mining on biodiversity and sustainability;
E. Concerns that current mountaintop mining reclamation practices introduce and
increase exotic and invasive plant species.
3. Category III - Socio-economic issues were expressed strongly in the EIS scoping
meetings. Many speakers were concerned about the effects of further restrictions of mountaintop
mining which might be recommended in the EIS on such economic areas as employment,
community businesses whose customers are dependent upon mining employment, equipment
suppliers and other businesses whose clients are mining companies, and State-county tax
revenues. Speakers also requested that the EIS address the effect of further restrictions on
mountaintop mining on energy resources and electricity rates. Some people commented on the
future of Appalachia "after mining" and the need to look for other kinds of economic
development.
The socio-economic issues which might be posed by restrictions on mountaintop mining
will be addressed in the EIS. They will assessed as an integral part of the economic analysis of the
alternatives for government action rather than as a list of possible actions. Development of
economic development actions is beyond the scope of the EIS, and beyond the authorities of the
agencies participating in the EIS. However, the agencies hope that the information developed
during the EIS process will be of value for those with economic development responsibilities.
The EIS will address the relationship of mountaintop coal mining to global climate change
and strategies for prevention and/or mitigation.
On to the list of actions.,
IV
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MOUNTAINTOP MINING EIS PROGRAMMATIC REVIEW
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Page 1 of 18
CATEGORY I - PRIORITY ATTENTION ISSUES
Issue
Subissue
Idea
Idea
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Idea
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Idea
Idea
1 - Impacts on Aquatic Resources
A Preventing stream loss and adverse surface- and groundwater impacts from valley fills and other mountaintop mining
operations.
1. Improve permit decision making by adopting a less-subjective procedure for evaluating whether excess spoil disposal in
valley fills has been minimized relative to the total volume of overburden removed.
2. Clarify requirements for obtaining a Surface Mining Control and Reclamation Act (SMCRA) variance from "approximate
original contour" for commercial forestry in a way that minimizes excess spoil disposal for this post-mining land use.
3. Develop improved water and biological monitoring plans for permit applicants which improve the scientific basis for
both SMCRA and Clean Water Act (CWA) permit decisions as part of the West Virginia (WV) interim permitting process.
Especially improve evaluation of watershed impacts. Evaluate and finalize these plans based on EIS findings.
4. The EIS "Stream" and "Fisheries" technical studies will help the agencies establish the value of headwater streams and
assist in setting thresholds for "more than minimal impact" as well as a baseline for mitigation requirements. If the results
are inconclusive, additional Federal-State biological studies could be carried out in cooperation with mining companies and
advised by academic researchers.
5. Inventories of valley fills, assessments of future mining potential, and data on past mining locations are being developed
in geographic information system (GIS) format as part of the EIS and other state agency efforts. Progress could be stepped
up through public -private cooperation and/or additional funding.
6. As part of interim WV permitting activities, the Federal agencies have joined in pre-application meetings with mining
companies to: 1) clarify all information-gathering requirements necessary for SMCRA, CWA and threatened/endangered
species decisions; 2) improve environmental assessment and protection; and, 3) integrate procedures for making SMCRA
and CWA permit decisions so that all impacts and requirements are considered at the same time early in the process.
Formalize this process.
7. WV interim permitting activities also include encouraging cooperative information-gathering and assessment among
companies with present and proposed mines in the same watershed. Formalize this approach to assist in cumulative impact
assessments.
Priority Ranking
(1-high, 2, 3-low)
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Idea
Idea
Idea
Idea
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Option
Option
Option
Option
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Idea
8. The WV interim permitting approach uses a more-detailed SMCRA analysis of "cumulative hydrologic impact
assessment" (CHIA) by combining surface-water CHIA assessment with CWA-type water quality and aquatic biology
reviews. Adopt this process to improve impact assessment.
9. WVDEP has begun to perform 404(b)(l) Guideline environmental reviews for small valley fills which do not require
individual Corps of Engineers (COE) permits. Adopt this process formally.
10. EPA and the COE are training State personnel who will carry out CWA 404 review functions. Periodic training could
occur following the EIS.
11. To minimize stream area affected by mining, formalize the requirement to place sediment ponds as close as possible to
the toe of valley fills.
12. Stream buffer zone changes
(a) To minimize stream loss, interpret the SMCRA stream buffer zone regulations to restrict fills to ephemeral
(wet weather flow only) portions of headwater streams.
(b) Revise the SMCRA buffer zone rules to meet SMCRA 515(c)(4)(d) mandate ("no damage. ..to natural water
courses") and to clarify the relationship with Clean Water Act requirements (e.g., rely on CWA criteria (such as
404(b)(l) Guidelines) to determine placement and size of fills).
(c) Implement an MOU clarifying compliance with SMCRA buffer zone and CWA requirements related to valley
fills. For example, the MOU could explain how to address key criteria such as "material damage" (SMCRA);
"significant degradation" to aquatic values and "no practicable alternatives to fill" (CWA).
(d) In revising the SMCRA buffer zone rule, develop restrictions to control cumulative impact of present and
future mining operations in a watershed, e.g. : ( 1) prohibit filling more than a percentage of stream valley in a
watershed; (2) encourage placement of fill in existing impaired areas; and, (3) control timing of new mining to
promote recovery in already -disturbed watersheds.
13. Use state water quality standards to limit/prohibit valley fills in specific areas containing special attributes or resources
(e.g., current standards specify brown trout habitat as specially -protected species). The antidegradation policy or
implementation procedures could be used.
14. To reconcile differing COE and EPA definitions of "fill material" discharged into U.S. waters, amend current
regulations and clarify CWA applicability to valley fills and other discharges from mining operations.
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Idea
Idea
Idea
Idea
Idea
Idea
Idea
15. Reissue COE Nationwide 21 permit, which regulates discharges of fill material from surface mining authorized under
SMCRA, to incorporate geographic or other numerical limits on fills which can be authorized by general permit.
16. Environmental decisions for SMCRA and CWA permit evaluations could be improved if methods for identifying
functions and evaluating the functions of headwater stream reaches (such as biological indices) are established.
Recommend evaluation of possible tools for quick delineation of ephemeral, intermittent, and perennial stream
characteristics (e.g., NRCS base flow estimation method, USGS method establishing groundwater table, COE high-water
mark, Charles Norris 5% slope method).
17. Establish scientific criteria: 1) for designating specially -protected areas (such as impact on threatened/endangered
species; stream reaches naturally supporting diverse fish and invertebrate species); 2) on indicators of ecological function,
aquatic diversity, productivity and stability; and, 3) on acceptable levels of loss based on functional value. These criteria
could increase quality of information in permit applications, facilitate permit decisions to protect sensitive aquatic areas, and
assist mining companies in planning.
18. Improve interpretation of environmental information and data by state agencies and mining companies through in-
depth watershed-based analysis of permit applications and cumulative effects using the latest scientific tools, like biological
indices for measuring stream impacts and improvements and enhanced GIS capabilities, and overlay maps of special aquatic
protection areas.
19. More thoroughly identify and assess existing aquatic resources to assist in minimizing impacts of mining and valley
fills through agency /mining company cooperative efforts. The assessment could be institutionalized in State water quality
and fish and wildlife inventories and ongoing monitoring programs. A list of types of watershed attributes where valley fills
would be prohibited could be developed. Also, include an inventory of areas already degraded by mining; characterize
likelihood of recovery and value of resource after recovery.
20. Use mapping and inventories to increase availability of information for improved public participation in permit
decision-making, especially related to cumulative impacts of other mining and fills in watersheds.
21. Conservation agreements, similar to the agreements for the Copper-Bellied Water Snake in western Kentucky and
southern Indiana/Illinois), could be established to enhance the permit process ability to avoid adverse impacts to threatened,
endangered, or candidate species.
New
Idea
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B Ability of mined area reclamation practices to restore stream habitat and aquatic functions impacted by mining.
1. Improve controls governing AOC variances for commercial forestry post-mining land use, such as those under
development by OSM and WVDEP.
2. Improve controls governing riparian zone restoration requirements to aid stream restoration similar to those under
development in the WV interim permitting process.
3. Continue the ongoing technical assessment of aquatic ecosystem restoration methods suited for mined land reclamations
at demonstration sites and maintain a continuous link with professionals engaged in aquatic restoration nationwide.
4. The WV interim permitting effort includes earlier involvement of Federal and state fish & wildlife experts in review of
SMCRA permit applications to identify the best opportunities for restoration of aquatic values in watersheds impacted by
mining. Formalize this process.
5. Requirements for bond releases that eliminate wildlife-sensitive areas such as wetlands and small open water areas could
be altered to encourage protection of wildlife and habitat.
6. Reclamation regulations for fills could be changed to allow for more storage and/or allow different configuration to aid in
minimizing the impacts associated with fills.
7. Performance standards could be developed to promote the creation of aquatic habitat as part of reclamation, so as to
promote restoration of degraded and lost aquatic habitat.
8. A biological component could be added to hydrologic reclamation plan provisions.
9. OSM is evaluating contemporaneous reclamation requirements. The evaluation could include judging the effectiveness
of contemporaneous standards in mitigating aquatic habitat loss. Improved policies could be developed, if necessary.
10. Use a watershed approach to achieve habitat reclamation by involving all companies mining in a watershed and
watershed landowners in assessment of opportunities to restore lost aquatic values habitat.
Priority Ranking
(1-high, 2, 3-low)
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Idea
Idea
11. SMCRA/CWA permit application requirements could include assessment of opportunities to replace any lost aquatic
habitat values due to previous mining and valley filling within the mined watershed.
12. Permit monitoring requirements could be established to evaluate the success of aquatic restoration initiatives as part of
reclamation. This approach could be institutionalized by requiring CHIA/CWA reviews and reclamation and restoration
controls on a watershed basis.
New
Idea
New
Idea
New
Idea
Subissue
Idea
Idea
Idea
Idea
Idea
C Effectiveness of compensatory mitigation projects to make up for the loss of stream habitat and aquatic functions.
1. The interim permitting process in WV includes an effort to augment WVDEP mitigation requirements with Federal
authority under CWA 404. The intent is to require compensatory mitigation for aquatic values because of valley fills or
other mining processes. Formalize this approach.
2. The interim permitting process in WV is developing a State-Federal mitigation agreement that will result in better
identification of stream restoration/compensation requirements during permit application processes. These requirements
will be enforceable through permitting conditions. Institutionalize this approach
3. To respond to potential cumulative effects of multiple small fills, clarify that compensatory mitigation is appropriate for
valley fills affecting smaller than 250 acre watersheds.
4. The interim permitting activities in WV include evaluation of State mitigation fund activities and development of a
Federal-State cooperative program to identify the best aquatic restoration opportunities which could be implemented as part
of compensatory mitigation for unavoidable mining impacts on watersheds (in connection with the State fish and wildlife
strategy). This activity could be formalized in a state-wide inventory of stream restoration projects in need of financing.
5. Evaluate the adequacy of compensatory mitigation measures to minimize unavoidable mining impacts and impose stricter
requirements to assure "no net loss" of aquatic functions from mining operations and valley fills.
Priority Ranking
(1-high, 2, 3-low)
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Idea
Idea
Idea
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Idea
6. Where State mitigation funds apply, a "sliding scale" of compensation could be developed so that costs of mitigation
would be commensurate with the levels of impacts-rather than compensation based on set "values per stream unit
affected."
7. Federal oversight of mitigation could be increased, for instance, by a Memorandum of Understanding among the COE,
EPA, FWS and OSM based on the principles in the Federal National Environmental Policy Act (NEPA) regulations.
8. SMCRA and CWA requirements could be merged to establish financial liability (e.g., bonding or insurance) to assure
mitigation projects are completed successfully.
9. Incentives and credits could be developed to minimize mining and valley fill impacts. State and Federal interagency
teams could be established to explore and develop incentives (credits) used to improve aquatic areas in watersheds degraded
by previous mining activities. Prioritizing streams in need of restoration (as part of the inventory in Idea 4. above) will help
identify good sites for credits.
10. Mitigation credits could be issued only for the enhancement, restoration, or creation of aquatic resources and
discouraged for out-of-kind mitigation, as in the current COE-EPA agreement on mitigation under CWA 404.
11. Additional mitigation credits could be given to operations that: (a) restore an AML-impaired stream; (b) eliminate acid
mine drainage; (c) dispose of excess spoil on pre-existing benches (from previous mining) in lieu of valley fill; or (d) create
threatened and endangered species protection where none existed before, e.g. a mussel preserve. Credits might be given for
ISO 14000-certified companies on the basis of using a wide range of best management practices.
12. Develop innovative mitigation in partnership with other organizations, such as a fish and wildlife foundation, that
shares resources and technical knowledge of federal, state and private entities.
13. An interagency award for excellence could be established for mine operators who create a net gain of high-quality
aquatic habitat.
14. Federal-State interagency teams could be established to evaluate, modify, or develop 'best practices." A specific
example would be to develop land forms that incorporate or create aquatic resources (e.g. lakes or ponds) on mined areas
available for wildlife habitat and forest production.
15. An inventory of AML restoration projects and other stream restoration projects that demonstrate successful aquatic
habitat creation, restoration, or enhancement could be compiled and distributed to assist in designing successful restoration
projects. Periodic technical conferences could be held to review and update this information.
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Idea
Idea
Idea
Idea
Idea
Idea
16. Additional research could be supported by government agencies to document values of headwater streams and options
for restoration/replacement of values.
17. Working in public -private partnerships for mitigation projects which are testing new technology and methods (with
evaluation of results over time) could improve mitigation.
18. The U.S. FWS could train permit holders, federal and state agency staff, and applicants on state-of-the-art techniques to
protect fish and wildlife resources.
19. Guidance could be developed to assist industry and government representatives to implement protective measures, such
as: (a) updated advice for SMCRA permit applicants on how to develop and implement better methods to protect fish,
wildlife biota and habitat; (b) a federal manual for stream delineation similar to the wetland delineation manual; and, (c)
guidance for best management practices to protect ecological resources.
20. A detailed technical "how-to" manual could be developed on stream mitigation, replacement of functions (in-kind), and
stream restoration.
21. A mitigation project monitoring plan could be incorporated into permit inspection schedules.
New
Idea
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D Protecting watersheds from cumulative effects of mountaintop mining/valley fill activities and other land
disturbances.
1. Augmenting CHIA analyses of surface mining permits to include CWA water quality and aquatic biology reviews (Idea
I.A.8.) increases the state's capacity to assess cumulative watershed impacts, including consideration of non-mining impacts
affecting the same watersheds. Formalize this approach.
2. Form watershed planning groups to advise agencies on abandoned mine land reclamation, mining concerns, land use
aspirations, etc.
Priority Ranking
(1-high, 2, 3-low)
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Idea
Idea
Idea
Idea
Idea
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Idea
3. The EIS Landscape Ecology study for assessing cumulative impacts, and associated GIS presentations, could provide a
valuable long-term tool for assessing impacts of all activities to watersheds, assisting area land use analysis and planning, as
well as improving public information.
4. As part of the interim permitting activities in WV, important scientific questions about methodologies to assess
compliance with water quality standards are being clarified (e.g. using dissolved metals instead of total metals for baseline
and compliance monitoring; changing total recoverable to dissolved metals; and the use of "clean sampling and analysis
techniques"). Adopt these techniques and standards.
5. NEPA environmental assessment is being applied to 404 permit applications for large valley fills during the interim
permit processing in WV. Such assessments include information about mining and other land-disturbing activities affecting
the same watersheds. A NEPA compliance guidance document is being produced by the Corps of Engineers, with assistance
from the other agencies, and guidance will be given to applicants at the earliest possible time (pre-SMCRA permit
application) to facilitate coordinated permit reviews for SMCRA, CWA, Fish and Wildlife Coordination Act, and the
Endangered Species Act. Based on the EIS findings, the guidance document could be updated and/or expanded
6. Liaisons have been established from each agency to serve as an "interagency clearinghouse" on permitting decisions.
This type of coordination could be formalized.
7. An interagency team could be established to review and coordinate statutory and regulatory requirements under SMCRA
and CWA to increase efficiency and environmental effectiveness of state programs to protect water resources.
8. State water quality standards could be enhanced by development and adoption of biological criteria.
9. CWA Section 402 permit requirements and monitoring could be revised to incorporate biological criteria and promote
vegetative cover to reduce erosion and sedimentation.
10. Establish a universal stream classification/definition for consistent application by agencies, industry, and the public. Any
definition of perennial stream should take into account effects of drought conditions on year-round flow.
11. The use of biological indices could be considered for measuring stream impacts and improvements over time where
streams are affected by fills; such indices could be included in "probable hydrologic consequence (PHC) and CHIA analyses.
Reference areas of undisturbed aquatic habitat could be used as a baseline to compare with mined areas to determine the
magnitude of impacts and set mitigation requirements.
12. Conduct research to evaluate the control of sediment discharges from mining activities as they combine with the
sediment from activities such as timber harvesting and road building/use.
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Idea
Idea
Idea
Idea
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Idea
13. Develop government-sponsored training for industry on environmental impact assessment, monitoring, remediation,
mitigation, impact avoidance methods, etc.
14. Academic programs sponsored by universities in Appalachia could offer training on headwater stream values and other
aquatic resources. Public-private assistance could be provided to establish regional centers of excellence on improved
watershed assessment tools and indices of aquatic resource health, and on aquatic area enhancement techniques.
15. State GIS capabilities could be enhanced to allow for in-depth watershed-based analysis of permits, environmental
consequences, alternatives, and mitigation scenarios that could then be accessed by all State and Federal agencies, as well as
other stakeholders.
16. Support increased capabilities of State environmental agencies to interpret and analyze information and data, and
increase coordination between State environmental and fish and wildlife agencies.
17. A regional hydrologic database/GIS could be developed to include all baseline hydrologic (chemical, biological,
physical) monitoring data for use in PHC and CHIA or landscape ecology.
18. Building on the Clean Water Action Plan initiatives, an "Appalachian Highlands" stream monitoring/Watershed
Assessment network could be established to integrate Federal, State, applicant, and citizen monitoring in the watersheds
affected by mountaintop mining and valley fills.
19. Mining companies could be encouraged to establish more consistent and effective outreach with citizens and local
communities in watersheds affected by their operations. If done on a watershed basis, all companies with operations in a
watershed could cooperate to foster better understanding of current and proposed mining operations and their effects, for
example, by hosting annual "state of the watershed meetings" involving local officials, citizens and university experts.
20. To improve watershed protection, CWA authorities are developing "total maximum daily load" (TMDL) requirements
for pollutants. These currently apply to polluted streams rather than to mountain headwater areas, but similar water quality
assessments could be established on a preventive basis, for use in assessing and managing mining and non-mining
discharges in the same watershed.
21. A system to submit electronic application data could be developed that would satisfy all State and Federal baseline data
and analysis requirements and allow for public access.
22. Cross training on watershed planning and resource management could be provided for staff of federal and state agencies
and details could be initiated to exchange personnel between agencies.
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Idea
Idea
Idea
Idea
23. Options for improving efficiency could include changing the sequence of permitting to allow consideration of 402
effluent limitations in PHCs; industry preparation of the first draft of CHIA and 404(b)(l) analysis documents as part of the
SMCRA application submission; and an expedited SMCRA permitting process for non-fill mining activities.
24. Guidance could be developed to assist the applicants in collection of biological stream data. A program could be
established to assure the integrity of any self monitoring of mining compliance with environmental safeguards. Quality
assurance and control plans could be developed for acceptance of third-party data and the data could be provided to
stakeholders.
25. The frequency of CWA permit compliance inspections could be increased in order to give the public confidence in the
self-monitoring data.
26. Establish a system for evaluating frequency and impact of sediment overflow (e.g. from sediment retention ponds) to
determine if additional controls are necessary.
New
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CATEGORY II ISSUES
Issue
Subissue
Idea
Idea
Idea
Idea
2 - Impacts on Communities
A Effects of blasting and other mining activities on homes, water wells, and quality of life.
1. OSM is collecting information nationally to catalog blasting citizens complaints. This data will illustrate the diverse
nature of the complaints (e.g. noise, dust, structure damage, water supply diminution, etc ...), spatial relationship between
the adverse effect and blast, the compliance methods used by the company (seismic monitoring, scaled distance etc ...) , and
mitigation measures used, the magnitude and pattern of the blast, and follow-up actions by the regulatory authority. The
EIS will consider relevant information from this study to recommend actions.
2. WVDEP is preparing regulations for implementing the new Office of Blasting as required by WV Senate Bill 681. This
will provide an administrative process for handling nuisance complaints related to blasting.
3. Establish an informal mediation, alternative dispute resolution process, or frequent facilitated discussion sessions to
promote dialogue/mutual trust, and resolve disputes between citizens and mining companies.
4. Increase outreach by regulators and potentially -affected citizens adjacent to proposed or approved mining operations for
the purpose of explaining citizen rights for application review, complaint filing and resolution, and to generally explain
mining process/consequences or answer other questions.
New
Idea
New
Idea
New
Idea
New
Idea
Priority Ranking
(1-high, 2, 3-low)
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Subissue
Idea
Idea
Idea
B Effects of fugitive dust-both as a nuisance and a health risk.
1. Currently, there are limited statutory or regulatory controls for fugitive dust and fumes from blasting. The EIS will make
recommendations based upon the findings of the West Virginia University study related to this issue.
2. Promote better methods (e.g., BMPs) for controlling fugitive dust and blasting fumes.
3. Evaluate the need for additional research of the health impact of fugitive dust and blasting fumes.
New
Idea
New
Idea
New
Idea
Subissue
Idea
Idea
C Effects from mountaintop mining on flooding of downstream communities.
1. OSM has established an internal team to develop revised guidance for the development of PHC and CHIA analysis.
Finalize this effort as soon as possible.
2. An EIS technical study is evaluating peak runoff downstream of mountaintop mining and valley fill sites to determine
whether stream channels could overflow and causing flooding. A recent flooding analysis of Island Creek was conducted,
evaluating the "worst-case" cumulative impacts of multiple mining sites. Consider recommendations for program changes,
if necessary, on the basis of these studies.
New
Idea
New
Idea
Subissue
D Valley fill stability.
Priority Ranking
(1-high, 2, 3-low)
Priority Ranking
(1-high, 2, 3-low)
Priority Ranking
(1-high, 2, 3-low)
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MOUNTAINTOP MINING EIS PROGRAMMATIC REVIEW
Version - December 7, 1999
Page 13 of 18
Idea
1. The EIS includes a technical study documenting past fill failures and evaluating the effectiveness of existing program
requirements to ensure the stability of excess spoil fills. Consider recommendations for program changes, if necessary, on
the basis of these studies.
New
Idea
New
Idea
Subissue
Idea
Idea
Idea
Idea
E Ability for reclaimed mined land to provide an economic and/or social benefit to coal field communities.
1. Develop ways to improve communication and coordination among government regulators, officials charged with
economic development, local government officials, and coal companies, to integrate their plans and develop local
economies.
2. OSM issued draft post-mining land use policy guidance for steep slope variances from the approximate original contour
(AOC) requirement and mountaintop removal. The final policy could promote that reclamation plans for AOC variances
enhance the long-term economic viability of coal field communities (e.g. business ventures, tourism, recreational and other
public facilities).
3. WVDEP is developing rules for "homesteading" reclaimed mine land tracts to low -income eligible people as a residential
post-mining land use. Assess whether comparable Federal standards should be developed or that other states consider
similar approaches.
4. Following the OSM policy on post mining land use, States should consider developing guidance on site criteria necessary
for each category of post-mining land use (infrastructure specifications, site preparation performance standards, crop or
forestry yield targets, normal/typical animal husbandry practices, industrial classification expectations etc.).
New
Idea
New
Idea
Priority Ranking
(1-high, 2, 3-low)
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MOUNTAINTOP MINING EIS PROGRAMMATIC REVIEW
Version - December 7, 1999
Page 14 of 18
Subissue
Idea
Idea
Idea
Idea
F. Effects of mining on scenery and culturally significant landscapes.
1. WVDEP and OSM are piloting the development of policy guidance for use in mining application development and
permit review that would determine the amount of spoil that must be placed in the mined area to achieve the SMCRA
requirement of approximate original contour (AOC). Application of AOC requirements should minimize the impacts to
view sheds especially if the reclaimed land is reforested.
2. Establish procedures for early communication among coal companies, landowners, and the local citizens to discuss final
land form development, land use potential and mining-related impacts/concerns.
3. The EIS includes a cooperative effort with experts to assess the feasibility of reclamation mimicking natural land forms
of the area and incorporating water resources (e.g., ponds or lakes). Encourage application of these concepts to SMCRA
Title V and IV reclamation to promote more natural scenery.
4. Create "land trusts," mitigation "banking" of pristine areas, or other creative mitigation techniques (such as AML
reclamation) to offset active mining approvals.
New
Idea
New
Idea
New
Ideas
Issue
Subissue
Idea
3 - Terrestrial impacts
A Effects of mountaintop mining on plants and wildlife, including unique/endangered species.
1. Use public/private partnerships (like the Appalachian Wildlife or Forestry Council) with local/regional stakeholder
input/participation to identify and protect wildlife assets, create and delineate wildlife refuges, publicize wildlife assets,
promote conservation and wildlife area protection initiatives.
Priority Ranking
(1-high, 2, 3-low)
Priority Ranking
(1-high, 2, 3-low)
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MOUNTAINTOP MINING EIS PROGRAMMATIC REVIEW
Version - December 7, 1999
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Idea
Idea
Idea
Idea
Idea
Idea
2. Support research to identity the success and failings of previous wildlife enhancement reclamation plans (at active and
abandoned mines), to come up with better ways to reclaim mine sites to reintroduce wildlife and native plant species, and to
improve wildlife revegetation schemes based on species trend data information.
3. Support OSM evaluation of the contemporaneous reclamation rule to assure reclamation proceeds as quickly as possible
to restore impacted habitats.
4. Develop and use a process to delineate and characterize terrestrial habitat, areas that support threatened and endangered
species, and other valuable resources.
5. Improve the State fish and wildlife plans for enhancing / preserving ecological stability, and use these plans in
conjunction as a guide for post mining land use decisions.
6. Consider establishing mitigation credit for mining companies who set aside special areas for: 1) breeding habitat, and
other general protection of threatened and/or endangered species (e.g. a mussel preserve) where none previously existed; or
2) establishing a wilderness area.
7. Form a government/stakeholder team to develop guidance to promote consistent, clear definitions of terms (e.g., native
species and land cover, revegetation terminology, etc.) and biological impact thresholds for use in state/Federal programs.
New
Idea
New
Idea
Subissue
Idea
Idea
Idea
B Effects of deforestation and reduction/fragmentation of forested areas bv mountaintop mining.
1. WVDEP is developing specific requirements for restoring mountaintop mine sites to commercial forestry.
2. During the permitting process, consistently address fish and wildlife enhancement considerations when commercial
forestry is proposed as a post mining land use.
3. OSM through policy is clarifying the criteria for approving low-intensity agricultural activities (e.g. hayland) when an
AOC variance is sought by the mining company.
Priority Ranking
(1-high, 2, 3-low)
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MOUNTAINTOP MINING EIS PROGRAMMATIC REVIEW
Version - December 7, 1999
Page 16 of 18
Idea
Idea
Idea
Idea
New
Idea
4. Assist States to incorporate into their respective SMCRA based regulatory programs the land category "commercial
forestry" as an viable post-mining land use for mountaintop removal mines.
5. Evaluate and recommend a process that encourages the re-establishment of riparian zone reforestation in all previous
riparian-forested watersheds, regardless of the type of post-mining land use approved (similar to no net-loss wetland
mitigation).
6. OSM's reforestation initiative promotes the technical transfer of "best practices" regarding the growing of trees and
woody shrubs on reclaimed mined sites. Support the OSM initiative by recommending reclamation practices that enhance
reforestation with species of high-value wood product potential (such as placement of a sufficient thickness of loose-graded
spoil, oxidized layer of overburden, and organic material in an un-compacted bed for seedling/root stock establishment).
7. Evaluate the feasibility of establishing a system for on-site management of organic wastes (e.g., composting "root wads"
and other biomass) to generate on-site dissolved organic carbon to offset mining impacts on headwater streams.
8. Mandate use of BMPs for recycling of non-harvestable forestry products or biomass encountered during the mining
process (e.g., use as a replacement for leaf litter in commercial or forestry post-mining land use instead of burning).
New
Idea
New
Idea
Subissue
Idea
Idea
New
Idea
C Cumulative effects on the environment from mining and other land disturbances
1. Encourage watershed assessment of the terrestrial impacts of all significant land use disturbances (i.e., not limited to
mining). The assessment protocol might include consideration of regional areas, so as to properly assess cumulative
impacts (e.g., evaluate population trends over areas larger than watersheds).
2. Document and quantify the positive impacts of remining on environmental restoration (improvement of water quality,
habitat, ecosystem, safety hazards, etc.).
3. The EIS landscape ecology study will include the development of thresholds that could be considered by States to assess
cumulative terrestrial effects.
Priority Ranking
(1-high, 2, 3-low)
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MOUNTAINTOP MINING EIS PROGRAMMATIC REVIEW
Version - December 7, 1999
Page 17 of 18
New
Idea
New
Idea
Subissue
Idea
Idea
Idea
D Effects of mountaintop mining on biodiversity and sustainability.
1. FWS, in cooperation with State fish and wildlife agencies, could develop guidance, to promote biodiversity, biological
sustainability, and re-introduction of native plants and animals.
2. Conduct research, possibly borrowing from other fields of environmental restoration to develop technologies that would
speed natural succession changes following mining; and methods encouraging long-term management fostering wildlife.
3. Explore options to provide flexibility in SMCRA valley fill configuration requirements to build land forms that will
enhance terrestrial habitat.
New
Idea
New
Idea
Subissue
Idea
Idea
E Concerns that current mountaintop mining reclamation practices introduce and increase exotic and invasive plant
species.
1 State/Federal fish and wildlife agencies could develop policies, procedures, or best management practices to 1) list
"species of concern" that should be avoided in reclamation; 2) foster the re-introduction of native plants and wildlife; and,
3) support biodiversity goals.
2 Provide training and guidance to familiarize state agency staff and applicants' personnel with identification of exotic and
invasive plant species and ways to discourage invasion onto reclaimed mine sites.
New
Idea
Priority Ranking
(1-high, 2, 3-low)
Priority Ranking
(1-high, 2, 3-low)
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MOUNTAINTOP MINING EIS PROGRAMMATIC REVIEW
Version - December 7. 1999
Page 18 of 18
CATEGORY III - OTHER ISSUES TO BE ANALYZED BY
Effects of further restrictions on mining on the competiveness of Appalachian
and coal field communities' businesses and tax revenues
THE EIS
coal, employment
Effects on utility rates from further restrictions on large scale mining
Effects of mining on global climate change
Priority Ranking
(1-high, 2, 3-low)
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APPENDIX B
PROGRAMMATIC REVIEWS OF STATUTES AND
REGULATIONS, STATUTE AND EXECUTIVE ORDER
SUMMARIES, REGULATORY PROCESS FLOWCHARTS, AND
STREAM DEFINITIONS
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Programmatic Review
Deliverable Form
Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Human and Community Session: 4
Issue: How do SMCRA regulatory programs and associated guidance address the issue of
protecting air resources?
Areas to be considered include: Air resources include fugitive dust, global climate change,
Sulfur dioxide, Volatile organic compounds.
Summary of the Effects of Relevant Statues, Regulations and Policies
Section 515(b)(4) of SMCRA provides that"... all surface coal mining and reclamation
operations must stabilize and protect all surface areas ... to effectively control erosion and
attendant air and water pollution." Shortly after the passage of SMCRA, OSM determined that
fugitive dust associated with surface mining activities constituted a public health and safety
problem, and in 1979, promulgated rules requiring operators to control air pollution from all
their mining operations. In 1980, a United States District Court struck down and remanded the
rules for revision, because it determined that SMCRA's legislative history indicates that OSM's
authority to regulate air pollution is limited to activities related to erosion [In re: Permanent
Surface Mining Regulation Litigation. C.A. 79-1144 (D.D.C., May 16, 1980)].
OSM re-promulgated its rules regulating air pollution from surface coal mining and
reclamation operations in 1983. The Federal performance standards at 30 CFR 816.95
require all exposed areas of surface mining operations to be protected and stabilized to
effectively control erosion and air pollution attendant to erosion. This is usually
accomplished through the application of mulch to reclaimed areas after backfilling and
regrading and the watering of unpaved haul roads.
In 1988, the U.S. Court of Appeals reaffirmed the district court's ruling finding that
OSM's role in controlling air pollution is limited to pollution attendant to erosion. The
Appeals Court found that EPA has the authority under the Clean Air Act (CAA) to
regulate fugitive dust from surface mining operations [NWF v. Hodel. C.A. 84-5743
(U.S. Court of Appeals D.C. Circuit, January 29, 1988)].
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Applicable Statutory Provisions
Permit Application Requirements
SMCRA section 508(a)
Each reclamation plan submitted as part of a permit application pursuant to any approved State program or a
Federal program under the provisions of this Act shall include, in the degree of detail necessary to demonstrate
that reclamation required by the State or Federal program can be accomplished, a statement of:
(9) the steps to be taken to comply with applicable air and water quality laws and regulations and
any applicable health and safety standards;
Performance Requirements
SMCRA section 515(b)
General performance standards shall be applicable to all surface coal mining and reclamation operations and shall
require the operation as a minimum to —
(4) stabilize and protect all surface areas including spoil piles affected by the surface coal mining
and reclamation operation to effectively control erosion and attendant air and water pollution;
Applicable Regulations
Permit application requirements
Title 30 Code of Federal Regulations Section 780.15
(a) For all surface mining activities with projected production rates exceeding 1,000,000 tons of coal per
year and located west of the 100th meridian west longitude, the application shall contain an air pollution control plan
which includes the following:
(1) An air quality monitoring program to provide sufficient data to evaluate the effectiveness of the
fugitive dust control practices proposed under Paragraph (a)(2) of this Section to comply with Federal and State air
quality standards; and
(2) A plan for fugitive dust control practices as required under Section 816.95 of this Chapter.
(b) For all other surface mining activities the application shall contain an air pollution control plan which
includes the following:
-------
(1) An air quality monitoring program, if required by the regulatory authority, to provide sufficient
data to evaluate the effectiveness of the fugitive dust control practices under Paragraph (b)(2) of this Section to
comply with applicable Federal and State air quality standards; and
(2) A plan for fugitive dust control practices, as required under Section 816.95 of this Chapter.
Performance Standards
Title 30 Code of Federal Regulations Section 816.95
(a) All exposed surface areas shall be protected and stabilized to effectively control erosion and air
pollution attendant to erosion.
(b) Rills and gullies, which form in areas that have been regraded and topsoiled and which either (1)
Disrupt the approved postmining land use or the reestablishment of the vegetative cover, or (2) Cause or contribute
to a violation of water-quality standards for receiving streams; shall be filled, regraded, or otherwise stabilized;
topsoil shall be replaced; and the areas shall be reseeded or replanted.
Applicable Policies
None
EOF
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APPENDIX B: PROGRAMMATIC REVIEWS
Introduction
This appendix presents a summary of statutory and regulatory controls in place in 1998 (the
beginning of the EIS process) to protect aquatic, terrestrial and community resources. The first part
of this appendix presents agency specific programmatic reviews. These programmatic reviews were
part of the agencies review of their respective program requirements to determine whether adequate
regulatory controls and coordination processes exist among the various programs. The programmatic
reviews are organized by agency, resource and issue statement.
The second part of this appendix presents summaries of the primary federal statutes, regulations and
executive orders governing aspects of MTM/VF activities. This includes summaries of the Surface
Mining Control and Reclamation Act (SMCRA), Clean Water Act (CWA) 402 and CWA 404 ,
Clean Air Act (CAA), Endangered Species Act (ESA), Fish and Wildlife Coordination Act and
Executive Orders for the protection of wetlands and floodplains.
The third part of this appendix presents agency regulatory process flow charts. These flow charts
depict the statutory/regulatory processes of the agencies that have jurisdiction over MTM/VF
operations, with West Virginia as an example of a state with primacy under SMCRA.
The fourth part of this appendix presents various stream definitions that were in place at the
beginning of this EIS process.
This appendix is provided only as a brief informal summary for the convenience of the reader. These
descriptions are not intended as a complete statement of applicable law or to establish the actual
requirements of any regulatory program. This appendix also should not be considered legal advice.
Refer to the statutes and the Federal Register for official program requirements.
Mountaintop Mining / Valley Fill DEIS B-l 2003
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Appendix B
AQUATIC: EPA PROGRAMMATIC REVIEW
Programmatic Reviews
Agency Involved: Environmental Protection Agency
Domain: Aquatic Resources
Issue: What are the short and long-term effects of individual mountaintop mining operations and
associated valley fills on aquatic resources within, adjacent to and downstream of the mined and
filled areas?
Values identified:
(A) Streams, ponds, lakes and rivers:
(1) Quality - (a) chemical, (b) sedimentation and (c) temperature
(2) Quantity - (a) baseline flow alteration; (b) flooding
(3) Biological - (a) aquatic biota and habitat
(B) Groundwater: (1) Quality; and (2) Quantity
(C) Wetlands
Summary of Relevant Statutes, Regulations and Policies
The Federal Water Pollution Control Act, commonly known as the "Clean Water Act" (CWA) is
the basic Federal statute for protecting surface water quality. Although there are no regulatory
provisions in the law relating to groundwater protection, certain provisions can touch upon
groundwater quality and quantity. Wetlands are considered "waters of the U.S." under the law, and
protected by the law's provisions to the same extent as other waters. The law does not regulate
surface water quantity, although impacts associated with surface or groundwater quantity can be
taken into consideration under certain provisions - notably sec. 404, regulating the discharge of
dredged or fill material.
I. General overview
Goal of Act: To restore and maintain the chemical, physical and biological integrity of the Nation's
waters. 33 U.S.C. 125l(a)
There are a number of statutory provisions of the CWA which are relevant to the regulation of
mountaintop mining and associated valley fills, including:
• Research and monitoring, and funding of State water quality programs (Title I)
• Funds for carrying out water pollution control programs under State Revolving Loan Funds,
which could include stream cleanup and restoration activities in areas affected by
mountaintop mining (Title VI)
Mountaintop Mining / Valley Fill DEIS B-2 2003
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Appendix B
AQUATIC: EPA PROGRAMMATIC REVIEW
Establishment and implementation of water quality standards; identification of impaired
waters and development of cleanup requirements (Total Maximum Daily Loads or TMDLs;
and development and implementation of programs to control non-point sources of pollution
(Title III)
Permit and enforcement programs controlling discharges of pollution, including discharges
of fill material (Title IV)
• Definitions, judicial review, citizen suit provisions and other general matters (Title V)
II. Scope of Jurisdiction: What Waters are Covered by the Act?
The CWA applies to "navigable waters," which are defined as "waters of the United States, including
the territorial seas." CWA sec. 502(7) This definition is not limited to waters that are actually
navigable. Rather, Congress intended to give navigable waters the broadest possible constitutional
interpretation, limited only by the boundaries of the Commerce Clause. EPA regulations (40 CFR
Part 122.2) define waters of the U.S. to include:
• interstate waters, including interstate wetlands;
all waters which are currently used, were used in the past, or may be susceptible to use
interstate or foreign commerce...;
territorial seas;
wetlands adjacent to U.S. waters; and
other "isolated" waters (such as intrastate lakes, wetlands, rivers, streams, mudflats, sandflats,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds), having a requisite
connection with interstate commerce.
Waste treatment systems and certain areas that were converted for agricultural use prior to 1985 are
not waters of the U.S. See 40 CFR Part 122.2.
III. What Activities are Regulated by the Clean Water Act?
The Act regulates the "discharge of a pollutant," which is defined as an "addition" of a "pollutant"
from a "point source." CWA sec. 301 (a), 502(12). The Act defines "pollutant" as:
...dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked
or discharged equipment, rock, sand, cellar dirt and industrial, municipal and
agricultural waste discharged into water.... CWA sec. 502(6)
The Act defines "point source" as:
. ..any discernible, confined and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel or other floating craft from which
pollutants are or may be discharged. This term does not include agricultural storm
water discharges and return flows from irrigated agriculture.
Mountaintop Mining / Valley Fill DEIS B-3 2003
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Appendix B
AQUATIC: EPA PROGRAMMATIC REVIEW
The scope of "point source" extends far beyond industrial and municipal discharges, and has been
found to include, for example, channelized stormwater runoff, unintentional overflows from mining
spoil piles, and bulldozers and backhoes dumping fill material into wetlands (waters of the U.S.).
However, there is a specific exemption from point source permitting under sec. 402 for stormwater
runoff from mining operations which is composed "entirely of flows which are from
conveyances.. .used for collecting and conveying precipitation runoff and which are not contaminated
by contact with, or do not come into contact with, any overburden, raw material, intermediate
products, finished product, byproduct, or waste products located on the site of such operations." 33
U.S.C. 1342(1)(2).
A facility "adds" pollutants where it introduces them into the waterbody from the outside world.
Each discharge of pollutants from a point source to waters of the U.S. requires a permit under the
CWA. Permits for the discharge of dredged or fill material are issued under sec. 404 of the CWA by
the Army Corps of Engineers (or an authorized State). All other permits are issued under sec. 402
by EPA (or an authorized State). (Sec. 402 permits are named "National Pollutant Discharge
Elimination System" or NPDES permits.) Absent a permit, the discharge of pollutants from any point
source is unlawful. 33 U.S.C. 1311.
Fact Sheets are included in Appendix B which describe the NPDES Permit Program (Pages B-l 59
through B-161) and the Section 404 Program (Pages B-173 through B-l77) for regulating dredged
and fill material disposal (concentrating on EPA's responsibilities). In the Appalachian Coalfield
region, all of the States have been authorized to administer the NPDES program. No States have
been authorized to administer the sec. 404 permit program.
General NPDES Requirements
Discharges of pollutants through point sources to waters of the United States require permits issued
under the National Pollutant Discharge Elimination System (NPDES) program, authorized by the
Clean Water Act (CWA). While it retains oversight authority, the U.S. Environmental Protection
Agency (EPA) has delegated the permitting and compliance authorities of the NPDES program to
West Virginia, Kentucky, and Virginia, as well as all of the other coal mining states in the eastern
U.S. For the mining industry, NPDES permits are required for all chemical treatment and
sedimentation pond outfalls, including in-stream ponds associated with valley fills. NPDES permits
include effluent limits and requirements for self-monitoring and submitting the results to the NPDES
authorities on discharge monitoring reports (DMRs). NPDES permits are issued for five year periods
and applications for reissuance are required 180 days prior to permit expiration. General permits,
rather than individual permits, may be issued by state NPDES authorities for some mining categories,
if approved by EPA. In its oversight authority, EPA may review, comment on, and, where not in
compliance with NPDES regulations or CWA, object to draft NPDES permits for mining. EPA
Region III routinely receives draft NPDES permits for mining facilities with valley fills and
coordinates its review with Region IIF s CWA Section 404 program. EPA does not normally review
DMRs for mining facilities, except for those specifically classified as maj or permits. However, EPA
Region III periodically visits NPDES program offices in its coal states, including West Virginia and
Virginia, and reviews permitting and compliance actions, including DMRs.
State NPDES Permitting Authorities
Mountaintop Mining / Valley Fill DEIS B-4 2003
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Appendix B
AQUATIC: EPA PROGRAMMATIC REVIEW
NPDES permits for municipalities and most industries are normally handled by the respective state's
water protection agency. However, since mines are required to undergo very comprehensive
application reviews and permitting under the Surface Mining Control and Reclamation Act (SMCRA)
- delegated to West Virginia, Kentucky, and Virginia by the Office of Surface Mining, U.S.
Department of the Interior - some states have elected to provide joint SMCRA/NPDES application
reviews and permitting.
West Virginia
The Office of Mining and Reclamation under the Division of Environmental Protection (DEP)
provides joint reviews of SMCRA and NPDES permit applications, issuance of SMCRA permits, and
the drafting of NPDES permits. The Office of Water Resources, DEP, is the NPDES authority and
issues the NPDES permits after coordinating with the Office of Mining and Reclamation.
Kentucky
The Division of Water under the Department for Environmental Protection provides NPDES reviews
and permitting separately from SMCRA permitting, which is provided by the Department for Surface
Mining.
Virginia
The Division of Mined Land Reclamation under the Department of Mines, Minerals, and Energy is
the authority for both the SMCRA and NPDES mining programs. Joint SMCRA and NPDES
applications are reviewed and joint permits are issued by the Division.
Effluent Limits
Discharges subject to NPDES permits must meet either technology-based limits or more stringent
water-quality based limits, if required to comply with water quality standards of the receiving stream.
Technology-Based Limits
NPDES effluent guideline regulations for the mining industry are established in 40 CFR 434 and
cover iron, manganese, pH, suspended solids, and settleable solids. Specific limits are provided for
active and reclamation phases of underground mining, surface mining, preparation plants, and refuse
disposal. These limits are based on conventional or exemplary treatment levels determined
economically achievable - typically neutralization, precipitation, and settling for metals, and just
settling for sediment runoff. 40 CFR 434 effluent limits for surface mines including mountaintop
mines and valley fills (only if water quality-based limits are not required) are listed below:
pH - 6.0-9.0 range applicable at all times; exception - a slight increase allowed if treating for
manganese
• total iron - 3.0 mg/1 monthly avg.; 6.0 mg/1 daily avg.*
• total manganese - 2.0 mg/1 monthly avg; 4.0 mg/1 daily avg. (applicable where raw
drainage has pH under 6.0 or total iron of 10 mg/1 or more)
• total suspended solids - 30.0 mg/1 monthly avg.; 60.0 mg/1 daily avg.
• alternative storm limits; generally applicable when the discharge is caused or increased by
a precipitation event within a 24 hour period
Mountaintop Mining / Valley Fill DEIS B-5 2003
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Appendix B
AQUATIC: EPA PROGRAMMATIC REVIEW
o 0.5 ml/1 settleable solids limit applicable at all times; replaces total suspended
solids limits
o no iron and manganese limits during this period
o does not apply to refuse fills except during intense storms (1 yr/24 hr or greater)
* (monthly average is defined as the average over any 30 consecutive day period and daily average
is the average over any single day).
For other pollutants which may be of concern and not covered by the guidelines, such as aluminum,
effluent limits may be determined by best professional judgement (BPJ). 40 CFR 434 limits are
applicable until the final SMCRA bond has been released. If pollutant discharges reoccur after bond
release, an NPDES permit is required with limits based on BPJ or water quality, if necessary to
comply with water quality standards.
Water Quality-Based Limits
Where the 40 CFR 434 effluent guideline limits would not comply with water quality standards for
the receiving stream, more stringent limits must be required. There are two common situations where
this would occur. First, where the discharge is from an in-stream sedimentation pond constructed at
the toe of a valley fill at a location where water quality standards are applicable. The effluent limit
should equal the stream water quality standards. Second, where the discharge is large in comparison
to the receiving stream, such as water pumped from an underground mine into a stream during
summer dry periods. An example for determining a water quality-based limit in this example would
be where the mine has a discharge of twice the receiving stream flow. In order to comply with a 1.5
mg/1 iron water quality standard in the stream, the discharge would be limited to about 2.3 mg/1 rather
than the 3.0 mg/1 guideline limit, assuming no iron in the upstream portion and that utilization of the
whole stream capacity would be allowable to meet water quality standards.
Sedimentation ponds are expected to be located as close as feasible to the toes of valley fills and to
each other if in series, in order to minimize adverse stream impacts. Then the outfall of the farthest
pond downstream may be considered the permitted outfall. If, however, a pond is located an
excessive distance downstream from the toe of a valley fill, the stream stretch in between may be
considered applicable to water quality standards and a water quality-based permit may be required
for the discharge directly from the toe of the valley fill.
Compliance
Review of discharge monitoring reports submitted by permittees is the major compliance tool for the
NPDES program, since inspections are not required by NPDES regulations except for maj or permits,
then only yearly. Discharges from active mines are generally required to be sampled at least twice
monthly by permittees and reports submitted quarterly. Compliance actions under CWA for
significant violations can range from administrative orders to civil or criminal penalties depending
on the severity, willfulness, and other factors. Fortunately for the NPDES program, SMCRA
regulations require monthly inspections with quarterly discharge sampling and also require
compliance with the same effluent limits as NPDES permits. Violations of effluent limits found by
SMCRA inspections are also considered as violations of NPDES permits. However, since SMCRA
regulations require non-discretionary compliance actions for all violations, penalties under CWA
usually are not applied unless the violations result in significant water quality impacts, such as fish
kills.
Mountaintop Mining / Valley Fill DEIS B-6 2003
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Appendix B
AQUATIC: EPA PROGRAMMATIC REVIEW
Specific State NPDES Approaches and Issues
Although the preceding general information on NPDES requirements applies to West Virginia,
Kentucky, and Virginia, each of these states has some variations in the permitting of discharges
associated with mountaintop mines and valley fills. These variations along with other pertinent
issues include the following:
Individual vs General Permits
West Virginia - General permits are approved for alkaline surface mines including those with
valley fills which cover ephemeral streams - those which flow only in response wet weather.
Discharges from these fills require 40 CFR 434 technology-based limits only.
• Kentucky - General permits apply to all surface mines, including mountaintop mines,
contour mines and others with valley fills. However, on a case by case basis, water quality-
based effluent limits may be a required condition.
• Virginia - All permits are issued on an individual basis in a combined SMCRA/NPDES
permit document.
Technology-Based Limits
• West Virginia - 40 CFR 434 plus aluminum where close proximity to trout streams.
Kentucky - 40 CFR 434 only.
Virginia - 40 CFR 434 only.
Applicable State Water Quality Standards
West Virginia - Includes total iron (1.5 mg/1 normal; 1.0 mg/1 trout), total manganese
(1.0 mg/1); pH (6.0-9.0 range), aluminum, and other metals, but no suspended solids.
Kentucky - Includes similar standards for iron, manganese, pH, aluminum, other metals,
but no suspended solids.
• Virginia - Includes only pH; no numerical criteria for iron, manganese, aluminum
other metals, or suspended solids.
Water Quality-Based Effluent Limits
West Virginia - Requires iron, manganese, and pH (same as tech-based) water quality
standards for effluent limits for discharges from the outfall of any final in-stream
sedimentation pond below a having a drainage area more than 250 acres. Also, in-stream
ponds with drainage areas between 200 and 250 acre watersheds may be required to have
water quality-based limit depending on environmental factors. Ponds associated with fills in
ephemeral streams do not have water quality-based limits. Discharges in close proximity to
trout waters may have aluminum wq-based limits.
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Kentucky - Requires wq-based limits on a case-by-case basis when there is a specific
concern about protecting downstream aquatic life. Kentucky requires compliance with water
quality standards between the toes of valley fills and in-stream sedimentation ponds if not
very near the valley fill.
• Virginia - Has no numerical water quality standards criteria for metals; no wq-based
limits.
Use ofNPDESForm 2C Application Data on Metals (1 sample/5 yr) for Reissuance
West Virginia - Screens for excessive levels; if found - requires additional sampling. No past
indications of additional metals needing to be limited in permit.
Kentucky - 2C not viewed as pertinent data, since usually a grab sample.
• Virginia - Does not require 2Cinformation from permittee. Instead, the Division conducts
sampling on metals at least once during the 5 year permit life. Uses this more reliable data
to indicate need for either additional sampling, correcting the problem, or placing an
additional limit in the permit (this has not been determined necessary).
Protection of Downstream Trout or Mussels Waters
West Virginia - Aluminum limits required for trout and special attention to compliance with
solids limits for mussels.
• Kentucky - Case by case evaluation where high quality waters are involved.
• Virginia - No special effluent limits but increased attention to compliance. Reduction of
endangered mussels has been a continuing concern in the Clinch and Powell River Basins and
mining in general has been suspect. Continued attention to this situation is expected,
particularly by the U.S. Fish and Wildlife Service, the federal authority for protecting
threatened and endangered species.
Biomonitoring
• West Virginia - Baseline benthic surveys are usually conducted on streams below proposed
valley fills having more than 250 acre drainage areas either by the permit applicant or the
state. This is primarily to provide an assessment of permanent stream loss due to fills and
temporary loss due to in-stream sedimentation ponds. It may also be used to help determine
downstream impacts. In some cases, stream benthic surveys may be required during the life
of the mining operation. Also, toxicity tests are run on pond effluents on a case by case basis,
particularly where manganese discharges and potential over treatment with alkaline reagents
are a concern.
• Kentucky - Stream biomonitoring is not conducted as a part of the permitting process, but
may be provided on a case by case basis after operation where aquatic life impacts are a
concern.
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Virginia - Similar to Kentucky, biomonitoring may be conducted on a case by case basis on
streams below discharges where aquatic life impacts are a concern.
Metals, pH concerns
West Virginia, Kentucky, and Virginia - Most of the mountaintop and other steep slope mining
activities which have valley fills are located in areas where the coal seams and overlying rock strata
are generally alkaline. Acid-base accounting procedures are used to determine if the excess spoil,
after being intermixed, will provide an alkaline discharge. However, iron, manganese, and acid
producing materials can and do occur in isolated seams and overlying shales in some areas. Standard
procedures are to segregate this material off to the side during mining and isolate it in the backfill
during reclamation byplacing it up and off the rock pavement and, where necessary, intermixing it
or overlaying it with alkaline material for neutralization. The goal is to keep any acidic or metal
bearing material from being leached out by infiltration down through the fill or by groundwater
drainage along the rock pavement and also to assure that any leachate that does occur is not acidic.
The material is not allowed to be placed within a valley fill. A concern in West Virginia has been
the presence of manganese in some mines with valley fills where water quality standards apply at the
discharge. Treatment of manganese often requires maintaining pH levels in the 9-10 range in order
to meet the 1.0 mg/1 water quality standard for the stream, and over treatment with alkaline materials
can has caused violations of the 9.0 maximum pH stream standard.
Suspended and Settleable Solids Concerns
West Virginia, Kentucky, and Virginia - Excess solids discharges from sedimentation ponds serving
surface mines in steep slope areas - including mountaintop mines and contour mines - present the
greatest potential water quality and aquatic life concerns in West Virginia, Kentucky, and Virginia.
These ponds include in-stream sedimentation ponds serving valley fills, on-site sedimentation ponds
for general storm runoff, and also on-bench sedimentation ditches which are segmented into a series
of retention cells. In all of these states, sedimentation control ponds have a single design criteria
based on SMCRA regulations to provide adequate settling: 0.125 acre-ft of volume per disturbed acre
draining to the pond (or about 200 cubic yards of pond volume per acre of disturbed area). SMCRA
regulations require clean out of the ponds when 60 percent full of solids in order to provided adequate
detention and settling time. Discharge monitoring reports and inspections generally indicate
compliance with 40 CFR 434 effluent limits for suspended and settleable solids, although the 0.125
acre-ft/acre criteria is not specifically designed to achieve these limits. Sampling by permittees and
inspectors occurs at various periods - during, immediately after, and in between rainfall events.
However, to evaluate the true effectiveness of sediment control facilities, more sampling should be
performed during the critical period - in the middle of a storm event when flows through ponds and
sediment cells are peaking.
IV. Establishment of Limitations for Point Source Discharges
NPDES: There are three types of limitations on discharges: (1) technology-based; (2) water quality
standard-based; and (3) toxic effluent standards (for six pollutants).
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404: Limitations on discharges of dredged or fill material are developed under (1) EPA's 404(b)(l)
Guidelines (which are regulations); (2) water quality standard-based, pursuant to State certification
under sec. 401; and (3) the Army Corps of Engineers 404 permit regulations.
The Fact Sheet on the Section 404 Program noted above outlines requirements of EPA's 404(b)(l)
Guidelines. See also the discussion below on Section 401 State Certification.
Discussed below are the three types of limitations for NPDES permits, which are imposed by
provisions in Title III of the CWA.
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V, Technology-based Limitations on Discharges
One of the principal purposes of the landmark 1972 Clean Water Act was to establish levels of
effluent treatment which would have to be achieved for all discharges — co-called "technology-based
limits" because the effluent quality performance requirements ("effluent limits") are set after
evaluation of the performance of pollution prevention and control technologies for different types of
discharges. Requirements have been established for a number of industrial waste discharges,
including discharges from coal mining, under nationwide EPA regulations called "Effluent Limitation
Guidelines." (See Fact Sheet for Effluent Limitation Guidelines for Coal Mining in Appendix B
pages B-24 through B-27).
All NPDES permits must contain requirements for permittees to meet effluent quality limits based
on performance of control technologies. If an Effluent Guideline has been promulgated for the waste
stream(s) regulated in an NPDES permit, the permit limits must be based on that regulation. Where
discharge streams are not controlled by these EPA nationwide regulations, NPDES permit writers
must establish such limits based on best professional judgment, taking into account the same statutory
factors outlined below under the different technology categories.
Although the effluent limits are established based upon the performance of certain reference
technologies, permittees are not required to use the reference technologies to meet the limitations
(with the exception of a "best management practice" established under 304(e) of the Act).
There are several levels of technology-based requirements, according to type of pollutant and to
whether the permittee is an existing facility or a new discharger:
Best Practicable Technology ("BPT") BPT is the first level of control for all pollutants, and
was to be achieved by July 1, 1977. 33 U.S.C. 1311(b)(l)(A) In considering what is
"practicable," EPA considers a number of factors: (1) the age of the equipment and facilities
involved; (2) the process employed; (3) the engineering aspects of applying various types of
control techniques; (4) process changes; (5) non-water quality environmental impacts,
including energy requirements; and (5) other factors as deemed appropriate. In addition, EPA
may consider the total costs of applying a technology in relation to the effluent reduction
benefits (e.g. incremental cost per quantity of a pollutant removed from the waste stream).
• Best Conventional Pollutant Control Technology ("BCT") BCT is the second level of control
for conventional pollutants: oil and grease, biological oxygen demand, fecal coliform, pH and
total suspended solids. BCT limits for conventional pollutants exceed BPT limits only where
they are "cost-reasonable". The CWA requires EPA to consider, in addition to all the BPT
and BAT factors, "the comparison of the cost and level of reduction of pollutants from the
discharge from publicly owned treatment works (i.e. municipal sewage treatment systems)
from a class or category of industrial sources." 33 U.S.C. 1311(b)(2)(E)
• Best Available Technology Economically Achievable ("BAT" or "BATEA" By March 31.
1989, industrial dischargers were to have achieved effluent limitations based on BAT for all
toxic and "nonconventional" pollutants (i.e., any pollutant that is not specifically defined as
conventional). The Act requires BAT limitations to be set at a level that "will result in
reasonable further progress toward the national goal of eliminating the discharge of all
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pollutants...." 33U.S.C. 1301(b)(2)(A). In establishing BAT, EPA considers the same factors
as apply to BPT (above). Technology must be "available," but innovations may be
considered, including technologies used in another industry. The Agency has broad
discretion to determine what costs are "economically achievable." Generally, EPA evaluates
potential job losses and plant closures across an industry as a whole or secondary impacts
such as balance of trade, State and Federal tax and royalty revenues. Under limited
circumstances, after an effluent limitation is promulgated by regulation, an individual
discharger may apply for a variance from BAT requirements for an existing discharge — but
not for a new discharge.
EPA's slow pace in promulgating effluent limitation regulations, and especially in updating
such regulations, led Congress to add a provision, sec. 304(m) in the 1987 CWA
Amendments requiring EPA to issue biennial "plans" scheduling industrial categories for
promulgation and revision of effluent limits. This requirement applies specifically to the
limits for toxic and nonconventional pollutants.
New Source Performance Standards ("NSPS") These standards reflect the greatest degree of
effluent reduction achievable with the best available demonstrated control technology
(BADT). 33 U.S.C. 1316(a)(l). They apply to all pollutants. Congress expressed its belief
that it would be easier for new sources to reach a given level of pollution control than for
existing sources. Nevertheless, based on all the factors to be considered, BADT may be the
same as BPT, BAT or BCT. A cost-benefit analysis is not required in determining the
reasonableness of achieving NSPS, but an affirmative conclusion that the costs can
reasonably be borne by industry is required.
Typically, a "new source" is a facility that commences construction after promulgation of the
applicable NSPS. If EPA has not promulgated a NSPS applicable to a particular type of
facility, then the facility would be a "new discharger" but not a "new source" - and thus
subject to BPT/BCT/BAT limits but not NSPS. NOTE: NSPS have been promulgated for
the coal mining category; thus, new coal mines are "new sources."
New sources are protected for 10 years from more stringent requirements. Issuance of a new
source NPDES permit by EPA (but not an authorized State) is a "major Federal action"
subject to the National Environmental Policy Act.
Requirements for Indirect Discharges. For industrial discharges to publicly owned treatment
works, EPA promulgates Pretreatment Standards. These may be either for existing sources
(PSES) or for new sources (PSNS). These standards apply to any pollutant that "interferes
with", "passes through" or "otherwise is incompatible with" a municipal sewage treatment
system. 33 U.S.C. 1307(b)(l) and 1306.
Storm Water Discharges. Storm water discharges "associated with industrial activity" are
subject to NPDES permits based on the technology-based requirements identified above. EPA
has promulgated Phase 1 Storm Water Regulations which define this term in detail. 40 CFR
Part 122.
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Coal Remitting Sec. 301(p) establishes special requirements to facilitate coal remining
operations which begin after February 4, 1987, at a site where coal mining was conducted
before August 3, 1977 (the approval date of SMCRA). EPA or a State may issue a permit
which modifies requirements with respect the pH, iron or manganese level of any pre-existing
discharge (i.e. any discharge existing at the time of the permit application) affected by the
remining operation. Such modified requirements shall apply B ATEA using best professional
judgment to set specific numerical effluent limitations. The permit applicant must
demonstrate that the coal remining operation has the potential to improve water quality.
Water quality standards must be met.
VI. Water Quality-based Limitations on Discharges
Where EPA or the States determine that technology-based effluent limits are not sufficient to meet
State water quality standards, additional water quality-based effluent limits and/or other requirements
must be included in NPDES permits. States are also empowered to impose water quality-based
requirements in a variety of Federal permits under sec. 401.
Pursuant to sec. 304(a) of the CWA, EPA conducts scientific investigations and procedures to
establish water quality criteria. These are expressed as numerical values for pollutant concentrations
in surface waters which will protect different water uses. These criteria are guidance for the States
to consider in establishing enforceable water quality standards. The EPA criteria are purely scientific
determinations, while economic considerations may play a role when the States adopt water quality
standards.
Procedures for Establishing Water Quality Standards
Each State (and each Tribe authorized to be treated as a State for this purpose) establishes
water quality standards for pollutants of concern in their waters. 33 U.S.C. 1313(c). Every
three years, States must examine the adequacy of their standards and improve them, if
necessary ("triennial review").
• EPA approves State water quality standards or, in the event EPA disapproves a new or
revised water quality standard or EPA determines that a State needs a new or revised
standard, EPA must promulgate such standard itself. 33 U.S.C. 1313(c)(3) and (4). There
are possible mandatory duties if EPA does not act in a timely fashion, but EPA's policy is to
work with the States to achieve the necessary standards, if at all possible.
Use of Water Quality Standards
• Water quality standards are not directly enforceable under the CWA, but they are key to
implementation of a number of provisions of the law. A number of other Federal statutes
which authorize activities that may result in pollution (such as SMCRA) require that water
quality standards not be violated.
Water quality standards are the basis for water quality-based effluent limitations in NPDES
permits. 33 U.S.C. 131 l(b)(l)(C). They are the basis for identifying "water quality limited
waters" and total maximum daily loads of pollutants (TMDLs - from which wasteload
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allocations may be calculated for individual discharges). 33 U.S.C. 1313(d)(l)(A) and (C).
(See the Fact Sheet on TMDLs in Appendix B page B-28.)
• Water quality standards are guideposts for assessing the quality of rivers and other surface
waters; the results of these assessments are reported periodically in various assessments and
reports required by the CWA, including: the biennial report of the quality of all State waters
(so-called "305(b) Report"); the biennial report of waters not expected to meet water quality
standards after application of required controls ("303(d) List of Impaired Waters"); and the
waters affected by nonpoint sources.
• Water quality standards are the basis for sec. 401 State water quality certifications.
Water Quality-based Effluent Limitations
As noted, NPDES permits must contain not only technology-based controls but also any more
stringent limitations for particular pollutants that are necessary to attain and maintain water
quality standards for those pollutants. Sec. 301(b)(l)(C), 33 U.S.C. 1311(b)(l)(C). 44CFR
Part 122.44
• A water quality-based effluent limitation for a pollutant is derived from the applicable water
quality standard and takes into account the receiving water (e.g. dilution) and the level of
pollutants released from other sources. 44 CFR Part 122.44(d)(l)(vii)(A). It must be
consistent with any available wasteload allocation approved by EPA for that pollutant and
receiving water. 40 CFR Part 122.44(d)(l)(vii)(B).
A water quality-based effluent limitation must be calculated at levels to ensure achievement
of the water quality standards, regardless of the costs which permittees would incur to meet
the limits. Variances or site-specific criteria, adopted in the State water quality standards, and
compliance schedules in permits or enforcement orders may be available to help a permittee
meet its water quality-based effluent limits.
Water quality-based effluent limitations may be expressed in numeric or narrative form.
Effluent Standards for Toxic Pollutants
Sec. 307(a)(2) authorizes EPA to establish limits for individual toxic pollutants where the Agency
finds the technology-based requirements inadequate. EPA has set effluent standards under this
provision for six pollutants: aldrin, DDT, endrin, toxaphene, benzidine and PCBs.
VII. Implementation of NPDES Point Source Program
EPA may allow States and eligible Indian Tribes to administer the NPDES permit program in lieu
of EPA. CWA sec. 402(b). To operate the NPDES program, States must adopt State laws providing
all the authority necessary to enforce and administer Federal requirements. 40 CFR Part 123.
EPA retains oversight authority over State permit programs, and can revoke the State's authority to
run the permit program if it finds the State to be derelict. In practice, EPA goes to considerable
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lengths to assist a State to work out deficiencies in its authorized program and has never revoked a
State program.
EPA can review and veto any individual permit issued by a State if EPA believes the permit is
inconsistent with the Act's requirements. EPA then issues the permit instead of the State. EPA's
refusal to veto a State permit is not reviewable by the courts.
• NOTE: The Fact Sheet on the NPDES Permit Program contains further detailed
information, and includes the procedures for EPA review of State permits. 40 CFR Part
123.44.
NPDES Permit Appeals Appeals of State NPDES permits are governed by State law. Appeals
of EPA-issued individual permits are governed by the evidentiary hearing process in 40 CFR Part
124, Subpart E. Appeals of EPA general permits are challenged by filing a petition for review in the
U.S. Court of Appeals. Alternatively, a discharger may apply for an individual permit.
Effect of Permit A discharge in compliance with a valid permit is in compliance with the Act.
33 U.S.C. 1342(k) and 40 CFR Part 122.5. Timely application for renewal of a permit automatically
extends the existing permit. 5 U.S.C. 558(c). 40 CFR Part 122.6.
VIII. Nonpoint Source Program
Nonpoint source pollution is water pollution that results from land runoff, precipitation, atmospheric
deposition, drainage, seepage, or hydrological modification. A nonpoint source is any source of
water pollution that does not meet the legal definition of "point source" in sec. 502(14) of the CWA.
Nonpoint sources are not subj ect to CWA permit requirements. Rather, they may be regulated by the
States or under other Federal statutes. Two related programs, sec. 319 of the CWA and sec. 6217 of
the Coastal Zone Act Amendments of 1990, require States to develop nonpoint source management
programs. See the Fact Sheet on 319 Nonpoint Source Programs. If the States fail to develop
approvable programs, the Federal government has no authority to establish programs for the States.
Sanctions may include loss of grant money.
IX. Sec. 404 Point Source Program
The Army Corps of Engineers ("Corps") is authorized by sec. 404 to issue permits for the discharge
of dredged or fill material into waters of the U.S. EPA has the following major responsibilities:
issues environmental standards (404(b)O) Guidelines 40 CFR Part 230) that must be applied
by the Corps in its permitting decisions.
• has ultimate authority for determining the scope of CWA jurisdiction, and exemptions under
sec. 404(f) of the Act (although the Corps makes such decisions on a day-to-day basis).
can "veto" under sec. 404(c) any Corps permit that would result in "unacceptable adverse
effect on municipal water supplies, shellfish beds and fishery areas (including spawning and
breeding areas), wildlife, or recreational areas." Specifically, the Administrator "prohibit the
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specif! cation...of any defined area as a disposal site [for dredged or fill material]...."33 U.S.C.
1344(c).
• can approve a State's authority to assume administration of the sec. 404 permit program in
certain waters.
Certain activities that could otherwise constitute discharges are exempt from regulation under CWA
sec. 404(f). These include normal farming, silviculture, and ranching activities such as plowing,
seeding, cultivating, minor drainages, harvesting for the production of food, fiber and forest products,
or upland soil and water conservation practices. 40 CFR Part 232.3. However, such an activity is
not exempt if it is incidental to bringing an area of waters (including wetlands) into a use to which
it was not previously subject, where the flow or circulation of such waters may be impaired or
reduced.
A State may apply to assume authority to issue 404 permits for discharges in the State, except for
activities in waters that are navigable in fact (that authority must remain with the Corps). Sec. 404(h)
criteria must be met by any State seeking to assume the program. See also 40 CFR Part 233. The
requirements for oversight of State 404 programs are analogous to the requirements under NPDES.
Only two States, Michigan and New Jersey, have assumed permitting authority under sec. 404.
The Fact Sheet on the Section 404 Program outlines key provisions of EPA's 404(b)(l) Guidelines.
X. State 401 Certification
Statutory Requirements
Sec. 401 (a)(l) requires" [a]ny applicant for a Federal license or permit to conduct any activity
including, but not limited to, the construction or operation of facilities, which may result in
any discharge into the navigable waters" to obtain a certification from the State where the
discharge originates "that any such discharges will comply with the applicable provisions of
sections 301, 302, 306, and 307" of the CWA." This means that States may, as a minimum,
impose any conditions necessary to meet their water quality standards.
The Federal agency may not issue a permit unless the State has granted or waived
certification. Sec. 402 and 404 CWA permits issued by EPA or the Corps, and SMCRA
permits issued by the Office of Surface Mining, are Federal permits subject to sec. 401
certification.
• All the conditions in the State 401 certification must be included in the Federal license or
permit. 33 U.S.C.1341(d). The Federal agency may not decide for itself which conditions
must be included and which are unlawful.
Reviewability of State 401 Certification
EPA and other Federal agencies are not to review 401 certifications. The legality of certification
conditions must be challenged by the permittee or licensee in a court of appropriate jurisdiction,
usually a State court.
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XT. Oil and Hazardous Substance Liability
Sec. 311 of the CWA prohibits the unpermitted discharge into waters of the U.S. of oil of any kind,
in any form, from onshore or offshore facilities. "Discharge" includes spilling, leaking, pumping,
pouring, emitting, emptying or dumping. This section contains special penalty and liability
provisions. NPDES permits are to contain oil spill prevention plans.
XII. Inspection and Data-Gathering Authorities
Information gathering, inspections, monitoring and entry, are addressed in sec. 308, 33 U.S.C. 1318.
EPA has broad powers to inspect and gather data for rulemaking and enforcement.
Under sec. 308, EPA can require point source owner/operators (including operators of sources which
may or may not be point sources) to establish and maintain records, make reports, install, use and
maintain monitoring equipment or methods, sample effluents, and provide other information as the
Agency may reasonably require.
XIII. Enforcement
Government Enforcement
Under sec. 309, EPA can enforce against any person discharging without a permit, violating
a permit, violating pretreatment standards, violating sludge requirements, or failing to provide
information. EPA can enforce NPDES permit requirements even in States with authorized
NPDES programs. EPA can bring civil or criminal actions in Federal court, or issue
administrative orders to stop a violation and/or assess penalties.
• The CWA is a strict liability statute. However, compliance with a permit is a "shield" against
most enforcement actions.
There are two types of administrative penalty orders: (a) class I — $10,000 per violation not
to exceed $25,000; notice and hearing but not formal; judicial review in district court; and (b)
class II - $10,000 per day not to exceed $125,000.
• As for judicial penalties, sec. 309(d) authorizes courts to assess civil penalties up to $25,000
per day per violation considering: the seriousness of the violation, the economic benefit (if
any) resulting from the violation, any history of such violations, any good faith efforts to
comply with the applicable requirements, the economic impact of the penalty on the violator,
and such other matters as justice may require.
Citizen Enforcement
Under sec. 505, a citizen suit may be brought in district court against:
• any person — including the United States and its agencies — alleged to be in violation of
specific requirements of the Act; or
• the EPA Administrator for failure to perform nondiscretionary duties.
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A Federal citizen suit is authorized where EPA or a State is not "diligently prosecuting" action in
court or seeking administrative penalty. However, State enforcement action precludes a CWA citizen
suit under the diligent prosecution rule, even though the settlement in the State action was less
comprehensive than the remedy sought by plaintiffs in the citizen suit.
The statute requires a 60-day notice of intent to file suit. Citizens are also required to serve a copy
of any complaint and any proposed consent decree on the Administrator and the Attorney General.
Attorney's fees are available "to any prevailing or substantially prevailing party
whenever...appropriate." 33 U.S.C. 1365(d).
XIV. Financial Assistance
The Act authorizes EPA to provide several types of grants to assist States and other entities to carry
out activities associated with restoring surface water quality. Sec. 106 of the CWA authorizes the
basic State program grant, which is awarded on the basis of an allotment formula. See 40 CFR Part
15.1 etseq, 40 CFR Part 35.001 et seq.
Title VI authorizes grants to capitalize State Revolving Loan Funds, and a broad range of water
pollution control activities are eligible for support under SRF programs. NOTE: the SRF program
priorities are affected by annual Appropriations Acts.
Comprehensive Approaches to Elimination or Control of Mine Water Pollution
Sec. 107 authorizes the Administrator,
...in cooperation with the Appalachian Regional Commission and other Federal
agencies, to conduct, make grants for, or to contract for, projects to demonstrate
comprehensive approaches to the elimination or control of acid or other mine water
pollution resulting from active or abandoned mining operations and other
environmental pollution affecting water quality within all or part of a watershed or
river basin, including siltation from surface mining. Such projects shall demonstrate
the engineering and economic feasibility and practicality of various abatement
techniques which will contribute substantially to effective and practical methods of
acid or other mine water pollution elimination or control...and in such projects to
restore affected lands to usefulness for forestry, agriculture, recreation, or other
beneficial purposes.
• Prior to undertaking any demonstration project in the Appalachian region, the ARC must
determine that the project is consistent with the objectives of the Appalachian Regional
Development Act.
Federal participation is conditioned upon the State acquiring any land or interests necessary
for the project, and providing legal and practical protection to the project area against
activities which will cause future acid or other mine water pollution.
• This section, which was added to the law in 1972, had a total authorization of $30,000,000,
to be available until expended.
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EPA provides financial support for State water quality programs. Such financial support is a key
factor in many States' ability to administer such CWA-related responsibilities as water quality
standards establishment and implementation (e.g. State 401 certification), water quality monitoring,
water quality assessment reports, and administration of State NPDES programs.
XV. Research, Investigations, Training and Information
Sec. 104 of the CWA authorizes EPA to carry out a broad program of research, investigations,
training, demonstrations, surveys and studies. This program is to be implemented in cooperation with
other Federal, State and local agencies. The Agency is mandated to encourage and render technical
services to State and local pollution control agencies, and to carry out public investigations of
pollution in cooperation with State water pollution control agencies and other interested parties.
Under sec. 104(a)(5), EPA is required — in cooperation with the States and other Federal agencies —
to "establish, equip, and maintain a water quality surveillance system for the purpose of monitoring
the quality of the navigable waters and ground waters...." A significant limitation was imposed,
however, by a 1969 Bureau of the Budget (now OMB) instruction that the U.S. Geological Survey
would be the only Federal agency authorized to operate fixed (fresh water) fixed monitoring stations.
Therefore, EPA's water quality (including biological) monitoring is limited to special studies. The
State water pollution control agencies are required to operate water quality monitoring networks (as
a condition of receiving sec. 106 program grants). 33 U.S.C. 1256(e).
EPA's research program responds not only to the CWA but also to a number of environmental
statutes, and priorities change from year to year. Whereas water pollution control research was
prominent in the early 1970s, in recent years the Agency's program has been modest and, in
particular, there is very limited funding for water pollution control technology demonstrations.
The Agency is authorized to make research grants to "any State, municipality, or intermunicipal or
interstate agency". The Fact Sheet on notes examples of research grants which have been made
recently to West Virginia.
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Programmatic Review
Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Aquatic Session: 1
Issue: How does SMCRA regulations, policies, guidance consider definitions, measures, and
knowledge needed to protect aquatic resources?
Definitions, measures, and knowledge include: Common usage of terms and interpretation of
aquatic resources; how to measure effects; how to make determinations of impacts and how to
determine if those impacts are significant; how to build consensus on the extent of impacts; what
information do we need to make decisions; how to improve monitoring requirements; and how to
assess impacts over broader areas.
Summary of Effects of Relevant Statutes, Regulations, and Policies
Presented in the following are the terms and definitions pertinent to this aquatic domain are both
defined by SMCRA or the complementary implementing regulations. These terms are used
frequently in all three sessions of the aquatic domain.
Also included below are the statutory or regulatory methodologies prescribed for the analysis of
water quality, and the collection and analysis of pre-permit baseline data for surface water and ground
water, and the minimum standards for monitoring after the mining permit is issued.
In addition, described are permit applicant's responsibility to assess the probable hydrologic
consequence (PHC) of the proposed mining activity, and the requirement to design a hydrologic
reclamation plan that ensures that an adverse hydrologic effect does not occur.
Lastly, the cumulative hydrologic impact assessment (CHIA) regulation is presented. The CHIA is
the SMCRA regulatory agency's assessment of what effect the proposed operation coupled with all
other existing or anticipating mining activities will have on both the quality and quantity of ground
and surface water on a regional basis.
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Applicable Statutory Provisions
Definitions
SMCRA section 701. For the purposes of this Act -
(2) "approximate original contour" means that surface configuration achieved by backfilling
and grading of the mined area so that the reclaimed area, including any terracing or access roads,
closely resembles the general surface configuration of the land prior to mining and blends into and
complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles
eliminated; water impoundments may be permitted where the regulatory authority determines that
they are in compliance with section 515(b)(8) of this Act;
Applicable Regulations
Definitions
Title 30 Code of Federal Regulations Section 701.5
Acid drainage means water with a pH of less than 6.0 and in which total acidity exceeds total
alkalinity, discharged from an active, inactive or abandoned surface coal mine and reclamation
operation or from an area affected by surface coal mining and reclamation operations.
Acid-forming materials means earth materials that contain sulfide minerals or other materials which,
if exposed to air, water, or weathering processes, form acids that may create acid drainage.
Approximate original contour means that surface configuration achieved by backfilling and grading
of the mined areas so that the reclaimed area, including any terracing or access roads, closely
resembles the general surface configuration of the land prior to mining and blends into and
complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles, and coal
refuse piles eliminated. Permanent water impoundments may be permitted where the regulatory
authority has determined that they comply with Sections 816.49, 816.56, and 816.133 or 817.49,
817.56, and 817.133.
Aquifer means a zone, stratum, or group of strata that can store and transmit water in sufficient
quantities for a specific use.
Best technology currently available means equipment, devices, systems, methods, or techniques
which will (a) prevent, to the extent possible, additional contributions of suspended solids to stream
flow or runoff outside the permit area, but in no event result in contributions of suspended solids in
excess of requirements set by applicable State or Federal laws; and (b) minimize, to the extent
possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and
achieve enhancement of those resources where practicable. The term includes equipment, devices,
systems, methods, or techniques which are currently available anywhere as determined by the
Director, even if they are not in routine use. The term includes, but is not limited to, construction
practices, siting requirements, vegetative selection and planting requirements, animal stocking
Mountaintop Mining / Valley Fill DEIS B-21 2003
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requirements, scheduling of activities and design of sedimentation ponds in accordance with Parts
816and 817 of this Chapter. Within the constraints of the permanent program, the regulatory authority
shall have the discretion to determine the best technology currently available on a case-by-case basis,
as authorized by the Act and this Chapter.
Cumulative impact area means the area, including the permit area, within which impacts resulting
from the proposed operation may interact with the impacts of all anticipated mining on surface- and
ground-water systems. Anticipated mining shall include, at a minimum, the entire projected lives
through bond release of: (a) The proposed operation, (b) all existing operations, (c) any operation for
which a permit application has been submitted to the regulatory authority, and (d) all operations
required to meet diligent development requirements for leased Federal coal for which there is actual
mine development information available.
Drinking, domestic or residential water supply means water received from a well or spring and any
appurtenant delivery system that provides water for direct human consumption or household use.
Wells and springs that serve only agricultural, commercial or industrial enterprises are not included
except to the extent the water supply is for direct human consumption or human sanitation, or
domestic use.
Ephemeral stream means a stream which flows only in direct response to precipitation in the
immediate watershed or in response to the melting of a cover of snow and ice, and which has a
channel bottom that is always above the local water table.
Head-of-hollow fill means a fill structure consisting of any material, other than organic material,
placed in the uppermost reaches of a hollow where side slopes of the existing hollow, measured at
the steepest point, are greater than 20°, or the average slope of the profile of the hollow from the toe
of the fill to the top of the fill is greater than 10°. In head-of-hollow fills the top surface of the fill,
when completed, is at approximately the same elevation as the adjacent ridge line, and no significant
area of natural drainage occurs above the fill draining into the fill area.
Hydrologic balance means the relationship between the quality and quantity of water inflow to, water
outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake,
or reservoir. It encompasses the dynamic relationships among precipitation, runoff evaporation, and
changes in ground and surface water storage.
Hydrologic regime means the entire state of water movement in a given area. It is a function of the
climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes
into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns
to the atmosphere as vapor by means of evaporation and transpiration.
Intermittent stream means- (a) A stream or reach of a stream that drains a watershed of at least one
square mile, or (b) A stream or reach of a stream that is below the local water table for at least some
part of the year, and obtains its flow from both surface run off and ground water discharge.
Perennial stream means a stream or part of a stream that flows continuously during all of the calendar
year as a result of ground-water discharge or surface runoff. The term does not include intermittent
stream or ephemeral stream.
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Recharge capacity means the ability of the soils and underlying materials to allow precipitation and
runoff to infiltrate and reach the zone of saturation.
Renewable resource lands means aquifers and areas for the recharge of aquifers and other
underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing
lands.
Replacement of water supply means, with respect to protected water supplies contaminated,
diminished, or interrupted by coal mining operations, provision of water supply on both a temporary
and permanent basis equivalent to premining quantity and quality. Replacement includes provision
of an equivalent water delivery system and payment of operation and maintenance costs in excess
of customary and reasonable delivery costs for premining water supplies, (a) Upon agreement by the
permittee and the water supply owner, the obligation to pay such operation and maintenance costs
may be satisfied by a one-time payment in an amount which covers the present worth of the increased
annual operation and maintenance costs for a period agreed to by the permittee and the water supply
owner, (b) If the affected water supply was not needed for the land use in existence at the time of
loss, contamination, or diminution, and if the supply is not needed to achieve the post mining land
use, replacement requirements maybe satisfied by demonstrating that a suitable alternative water
source is available and could feasible be developed. If the latter approach is selected, written
concurrence must be obtained from the water supply owner.
Sedimentation pond means an impoundment used to remove solids from water in order to meet water
quality standards or effluent limitations before the water leaves the permit area.
Significant imminent environmental harm to land, air or water resources means— (a) An
environmental harm is an adverse impact on land, air, or water resources which resources include,
but are not limited to, plant and animal life, (b) An environmental harm is imminent, if a condition,
practice, or violation exists which— (1) Is causing such harm; or (2) May reasonably be expected to
cause such harm at any time before the end of the reasonable abatement time that would be set under
Section 521(a)(3)of the Act. (c) An environmental harm is significant if that harm is appreciable and
not immediately reparable.
Siltation structure means a sedimentation pond, a series of sedimentation ponds, or other treatment
facilities.
Suspended solids or nonfilterable residue, expressed as milligrams per liter, means organic or
inorganic materials carried or held in suspension in water which are retained by a standard glass fiber
filter in the procedure outlined by the Environmental Protection Agency's regulations for waste water
and analyses (40 CFR 136).
Toxic-forming materials means earth materials or wastes which, if acted upon by air, water,
weathering, or microbiological processes, are likely to produce chemical or physical conditions in
soils or water that are detrimental to biota or uses of water.
Toxic mine drainage means water that is discharged from active or abandoned mines or other areas
affected by coal exploration or surface coal mining and reclamation operations, which contains a
Mountaintop Mining / Valley Fill DEIS B-23 2003
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substance that through chemical action or physical effects is likely to kill, injure, or impair biota
commonly present in the area that might be exposed to it.
Valley fill means a fill structure consisting of any material, other than organic material, that is placed
in a valley where side slopes of the existing valley, measured at the steepest point, are greater than
20°, or where the average slope of the profile of the valley from the toe of the fill to the top of the fill
is greater than 10°.
Water table means the upper surface of a zone of saturation, where the body of ground water is not
confined by an overlying impermeable zone.
Title 30 Code of Federal Regulations Section 761.5 (Pertains to apart areas unsuitable for mining)
Significant recreational, timber, economic, or other values incompatible with surface coal mining
operations means those values to be evaluated for their significance which could be damaged by and
are not capable of existing together with, surface coal mining operations because of the undesirable
effects mining would have on those values, either on the area included in the permit application or
on other affected areas. Those values to be evaluated for their importance include: (a) Recreation,
including hiking, boating, camping, skiing or other related outdoor activities; (b) Timber manager
and silviculture; (c) Agriculture, aquaculture or production of other natural, processed, or
manufactured products which enter commerce; (d) Scenic, historic, archeologic, esthetic, fish,
wildlife, plants, or cultural interests.
[Ed note: In Section 761.5, the definition of "significant recreational, timber, economic, or other
values incompatible with surface coal mining operations" is suspended insofar as the listed values
are evaluated for compatibility solely in terms of reclaimability. (51 FR 41952 (41960),! 1/20/86]
Title 30 Code of Federal Regulations Section 762.5 (Pertains to the lands unsuitable for mining
process)
Fragile lands means areas containing natural, ecologic, scientific, or esthetic resources that could be
significantly damaged by surface coal mining operations. Examples of fragile lands include valuable
habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants,
uncommon geologic formations, paleontological sites, National Natural Landmarks, areas where
mining may result in flooding, environmental corridors containing a concentration of ecologic and
esthetic features, and areas of recreational value due to high environmental quality.
Renewable resource lands means geographic areas which contribute significantly to the long-range
productivity of water supply or of food or fiber products, such lands to include aquifers and aquifer
recharge areas.
Title 30 Code of Federal Regulations Section 780.21 (Hydrologic Information)
(a) Sampling and analysis methodology. All water-quality analyses performed to meet the
requirements of this Section shall be conducted according to the methodology in the 15th edition of
"Standard Methods for the Examination of Water and Wastewater," which is incorporated by
reference, or the methodology in 40 CFR Parts 136 and 434. Water quality sampling performed to
meet the requirements of this Section shall be conducted according to either methodology listed
Mountaintop Mining / Valley Fill DEIS B-24 2003
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above when feasible. "Standard Methods for the Examination of Water and Wastewater" is a joint
publication of the American Public Health Association, the American Water Works Association, and
the Water Pollution Control Federation and is available from the American Public Health
Association, 1015 15th Street, NW., Washington, DC 20036. This document is also available for
inspection at the Office of the Federal Register Information Center, Room 8301, 1100L Street, NW.,
Washington, D.C.; at the Office of the OSM Administrative Record, U. S. Department of the Interior,
Room5315, 1100 L Street, NW., Washington, D.C.; at the OSM Eastern Technical Center, U.S.
Department of the Interior, Building 10, Parkway Center, Pittsburgh, Pa.; and at the OSM Western
Technical Center, U.S. Department of the Interior, Brooks Tower, 1020 15th Street, Denver, Colo.
This incorporation by reference was approved by the Director of the Federal Register on October 26,
1983. This document is incorporated as it exists on the date of the approval, and a notice of any
change in it will be published in the Federal Register.
(b) Baseline information. The application shall include the following baseline hydrologic
information, and any additional information required by the regulatory authority.
(1) Ground-water information. The location and ownership for the permit and adjacent areas
of existing wells, springs, and other ground-water resources, seasonal quality and quantity of
ground water, and usage. Water quality descriptions shall include, at a minimum, total
dissolved solids or specific conductance corrected to 25° C, pH, total iron, and total
manganese. Ground-water quantity descriptions shall include, at a minimum, approximate
rates of discharge or usage and depth to the water in the coal seam, and each water bearing
stratum above and potentially impacted stratum below the coal seam.
(2) Surface-water information. The name, location, ownership, and description of all surface-
water bodies such as streams, lakes, and impoundments, the location of any discharge into
any surface-water body in the proposed permit and adjacent areas, and information on
surface-water quality and quantity sufficient to demonstrate seasonal variation and water
usage. Water quality descriptions shall include, at a minimum, baseline information on total
suspended solids, total dissolved solids or specific conductance corrected to 25° C, pH, total
iron, and total manganese. Baseline acidity and alkalinity information shall be provided if
there is a potential for acid drainage from the proposed mining operation. Water-quantity
descriptions shall include, at a minimum, baseline information on seasonal flow rates.
(3) Supplemental information. If the determination of the probable hydrologic consequences
(PHC) required by Paragraph (f) of this Section indicates that adverse impacts on or off the
proposed permit area may occur to the hydrologic balance, or that acid-forming or toxic-
forming material is present that may result in the contamination of ground-water or surface-
water supplies, then information supplemental to that required under Paragraphs(b)(l) and
(b)(2) of this Section shall be provided to evaluate such probable hydrologic consequences
and to plan remedial and reclamation activities. Such supplemental information may be based
upon drilling, aquifer tests, hydrogeologic analysis of the water-bearing strata, flood flows,
or analysis of other water-quality or quantity characteristics.
(c) Baseline cumulative impact area information. (1) Hydrologic and geologic information for the
cumulative impact area necessary to assess the probable cumulative hydrologic impacts of the
proposed operation and all anticipated mining on surface- and ground-water systems as required by
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Paragraph (g) of this Section shall be provided to the regulatory authority if available from
appropriate Federal or State agencies.
(2) If the information is not available from such agencies, then the applicant may gather and
submit this information to the regulatory authority as part of the permit application.
(3) The permit shall not be approved until the necessary hydrologic and geologic information
is available to the regulatory authority.
(d) Modeling. The use of modeling techniques, interpolation, or statistical techniques may be
included as part of the permit application, but actual surface- and ground-water information may be
required by the regulatory authority for each site even when such techniques are used.
(e) Alternative water-source information. If the PHC determination required by Paragraph (f) of this
Section indicates that the proposed mining operation may proximately result in contamination,
diminution, or interruption of an underground or surface source of water within the proposed permit
or adjacent areas which is used for domestic, agricultural, industrial or other legitimate purpose, then
the application shall contain information on water availability and alternative water sources,
including the suitability of alternative water sources for existing premining uses and approved post
mining land uses.
(f) Probable hydrologic consequences determination. (1) The application shall contain a
determination of the probable hydrologic consequences (PHC) of the proposed operation upon the
quality and quantity of surface and groundwater under seasonal flow conditions for the proposed
permit and adjacent areas.
(2) The PHC determination shall be based on baseline hydrologic, geologic and other
information collected for the permit application and may include data statistically
representative of the site.
(3) The PHC determination shall include findings on:
(i) Whether adverse impacts may occur to the hydrologic balance;
(ii) Whether acid-forming or toxic-forming materials are present that could result in
the contamination of surface or ground water supplies;
(iii) Whether the proposed operation may proximately result in contamination,
diminution or interruption of an underground or surface source of water within the
proposed permit or adjacent areas which is used for domestic, agricultural, industrial
or other legitimate purpose; and
(iv) What impact the proposed operation will have on:
(A) Sediment yields from the disturbed area;
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(B) acidity, total suspended and dissolved solids, and other important water quality
parameters of local impact;
(C) flooding or stream flow alteration;
(D) ground water and surface water availability; and
(E) other characteristics as required by the regulatory authority.
(4) An application for a permit revision shall be reviewed by the regulatory authority to
determine whether a new or updated PHC determination shall be required.
(g) Cumulative hydrologic impact assessment. (1) The regulatory authority shall provide an
assessment of the probable cumulative hydrologic impacts (CHIA)of the proposed operation and all
anticipated mining upon surface- and ground-water systems in the cumulative impact area. The CHIA
shall be sufficient to determine, for purposes of permit approval, whether the proposed operation has
been designed to prevent material damage to the hydrologic balance outside the permit area. The
regulatory authority may allow the applicant to submit data and analyses relevant to the CHIA with
the permit application.
(2) An application for a permit revision shall be reviewed by the regulatory authority to
determine whether a new or updated CHIA shall be required.
(h) Hydrologic reclamation plan. The application shall include a plan, with maps and descriptions,
indicating how the relevant requirements of Part 816 of this Chapter, including Sections 816.41 to
816.43, will be met. The plan shall be specific to the local hydrologic conditions. It shall contain the
steps to be taken during mining and reclamation through bond release to minimize disturbances to
the hydrologic balance within the permit and adjacent areas; to prevent material damage outside the
permit area; to meet applicable Federal and State water quality laws and regulations; and to protect
the rights of present water users. The plan shall include the measures to be taken to: Avoid acid or
toxic drainage; prevent, to the extent possible using the best technology currently available,
additional contributions of suspended solids to stream flow; provide water-treatment facilities when
needed; control drainage; restore approximate premining recharge capacity; and protect or replace
rights of present water users. The plan shall specifically address any potential adverse hydrologic
consequences identified in the PHC determination prepared under Paragraph (f) of this Section and
shall include preventive and remedial measures.
(i) Ground-water monitoring plan. (1) The application shall include aground-water monitoring plan
based upon the PHC determination required under Paragraph (f) of this Section and the analysis of
all baseline hydrologic, geologic, and other information in the permit application. The plan shall
provide for the monitoring of parameters that relate to the suitability of the ground water for current
and approved postmining land uses and to the objectives for protection of the hydrologic balance set
forth in Paragraph (h)of this Section. It shall identify the quantity and quality parameters to be
monitored, sampling frequency, and site locations. It shall describe how the data may be used to
determine the impacts of the operation upon the hydrologic balance. At a minimum, total dissolved
solids or specific conductance corrected to 25°C, pH, total iron, total manganese, and water levels
Mountaintop Mining / Valley Fill DEIS B-27 2003
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shall be monitored and data submitted to the regulatory authority at least every Smonths for each
monitoring location. The regulatory authority may require additional monitoring.
(2) If an applicant can demonstrate by the use of the PHC determination and other available
information that a particular water-bearing stratum in the proposed permit and adj acent areas
is not one which serves as an aquifer which significantly ensures the hydrologic balance
within the cumulative impact area, then monitoring of that stratum may be waived by the
regulatory authority.
(j) Surface-water monitoring plan. (1) The applicant on shall include a surface-water monitoring plan
based upon the PHC determination required under Paragraph (f) of this Section and the analysis of
all baseline hydrologic, geologic, and other information in the permit application. The plan shall
provide for the monitoring of parameters that relate to the suitability of the surface water for current
and approved post mined land uses and to the objectives for protection of the hydrologic balance as
set forth in Paragraph(h) of this Section, as well as the effluent limitations found at 40 CFR Part 434.
(2) The plan shall identify the surface-water quantity and quality parameters to be monitored,
sampling frequency, and site locations. It shall describe how the data may be used to
determine the impacts of the operation upon the hydrologic balance.
(i) At all monitoring locations in the surface-water bodies such as streams, lakes, and
impoundments that are potentially impacted or into which water will be discharged
and at upstream monitoring locations, the total dissolved solids or specific
conductance corrected to 25°C, total suspended solids, pH, total iron, total manganese,
and flow shall be monitored.
(ii) For point-source discharges, monitoring shall be conducted in accordance with 40
CFR Parts 122, 123 and 434 and as required by the National Pollutant Discharge
Elimination System permitting authority.
(3) The monitoring reports shall be submitted to the regulatory authority every 3 months. The
regulatory authority may require additional monitoring.
Title 30 Code of Federal Regulations Section 816.42 (Water Quality Standards and Effluent
Limitations)
Discharges of water from areas disturbed by surface mining activities shall be made in compliance
with all applicable State and Federal water-quality laws and regulations and with the effluent
limitations for coal mining promulgated by the U.S. Environmental Protection Agency set forth in
40 CFR Part 434.
Applicable Policies
See references on Session 2 writeup.
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Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Aquatic Session: 2
Issue: How do SMCRA regulatory programs and associated guidance address the issue of protecting
aquatic resources
Regulatory and Associated Guidance Include: Mitigation, restoration, and reclamation activities;
cumulative impacts of aquatic resources; protection sensitive and threatened aquatic species;
protection of watersheds; protection of groundwater; criteria for determining when to allow the
placement of fill in streams; and minimizing the impacts to headwater streams.
Summary of Effects of Relevant Statutes, Regulations, and Policies
SMCRA and the implementing regulations address the impacts to the quantity and quality of surface
and ground water. The SMCRA program requirements also address the impacts to plant and animals
associated with and dependent on water resources, and private and public water supplies.
The adverse impacts to aquatic resources are addressed through the design of the mining and
reclamation operation by the permit applicant to minimize the effects, review by the SMCRA
regulatory and others during the permit application process, and the mandatory requirement of the
permittee to implement the mining and reclamation plan per the permit design and to comply with
various performance standards.
In addition, aquatic resources if deemed significant are protected by the SMCRA's lands unsuitable
for mining process. Mining may be prohibited by a designation by Congress (eg designating area as
a National Park) or by petitioning the SMCRA authority for designation.
Applicable Statutory Provisions
Permitting Requirements
SMCRA section 507(b) The permit application shall be submitted in a manner satisfactory to the
regulatory authority and shall contain, among other things —
(10) the name of the watershed and location of the surface stream or tributary into which surface and
pit drainage will be discharged;
(11) a determination of the probable hydrologic consequences of the mining and reclamation
operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality
of water in surface and ground water systems including the dissolved and suspended solids under
seasonal flow conditions and the collection of sufficient data for the mine site and surrounding areas
so that an assessment can be made by the regulatory authority of the probable cumulative impacts of
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all anticipated mining in the area upon the hydrology of the area and particularly upon water
availability: Provided, however, That this determination shall not be required until such time as
hydrologic information on the general area prior to mining is made available from an appropriate
Federal or State agency: Provided further, That the permit shall not be approved until such
information is available and is incorporated into the application;
(14) cross-sections, maps or plans of land to be affected, including the actual area to be mined,
prepared by or under the direction of and certified by a qualified registered professional engineer, or
professional geologist, with assistance from experts in related fields such as land surveying and
landscape architecture, showing pertinent elevation and location of test borings or core samplings and
depicting the following information: the nature and depth of the various strata of overburden; the
location of subsurface water, if encountered, and its quality; the nature and thickness of any coal or
rider seam above the coal seam to be mined; the nature of the stratum immediately beneath the coal
seam to be mined; all mineral crop lines and the strike and dip of the coal to be mined, within the area
of land to be affected; existing or previous surface mining limits; the location and extent of known
workings of any underground mines, including mine openings to the surface; the location of aquifers;
the estimated elevation of the water table; the location of spoil, waste, or refuse areas and top-soil
preservation areas; the location of all impoundments for waste or erosion control; any settling or
water treatment facility; constructed or natural drainways and the location of any discharges to any
surface body of water on the area of land to be affected or adj acent thereto; and profiles at appropriate
cross sections of the anticipated final surface configuration that will be achieved pursuant to the
operator's proposed reclamation plan;
Reclamation Plan Requirements
SMCRA section 508(a)
Each reclamation plan submitted as part of a permit application pursuant to any approved State
program or a Federal program under the provisions of this Act shall include, in the degree of detail
necessary to demonstrate that reclamation required by the State or Federal program can be
accomplished, a statement of:
(9) the steps to be taken to comply with applicable air and water quality laws and regulations and any
applicable health and safety standards;
(12) the results of test boring which the applicant has made at the area to be covered by the permit,
or other equivalent information and data in a form satisfactory to the regulatory authority, including
the location of subsurface water, and an analysis of the chemical properties including acid forming
properties of the mineral and overburden: Provided. That information which pertains only to the
analysis of the chemical and physical properties of the coal (excepting information regarding such
mineral or elemental contents which is potentially toxic in the environment) shall be kept confidential
and not made a matter of public record;
(13) a detailed description of the measures to be taken during the mining and reclamation process to
assure the protection of:
(A) the quality of surface and ground water systems, both on- and off-site, from adverse
effects of the mining and reclamation process;
(B) the rights of present users to such water; and
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(C) the quantity of surface and ground water systems, both on-and off-site, from adverse
effects of the mining and reclamation process or to provide alternative sources of
water where such protection of quantity cannot be assured;
(14) such other requirements as the regulatory authority shall prescribe by regulations.
General Performance Standards
SMCRA section 515(b)
General performance standards shall be applicable to all surface coal mining and reclamation
operations and shall require the operation as a minimum to —
(2) restore the land affected to a condition capable of supporting the uses which it was capable of
supporting prior to any mining, or higher or better uses of which there is reasonable likelihood, so
long as such use or uses do not present any actual or probable hazard to public health or safety or
pose any actual or probable threat of water diminution or pollution, and the permit applicants'
declared proposed land use following reclamation is not deemed to be impractical or unreasonable,
inconsistent with applicable land use policies and plans, involves unreasonable delay in
implementation, or is violative of Federal, State, or local law;
(3) except as provided in subsection (c) with respect to all surface coal mining operations backfill,
compact (where advisable to insure stability or to prevent leaching of toxic materials), and grade in
order to restore the approximate original contour of the land with all highwalls, spoil piles, and
depressions eliminated (unless small depressions are needed in order to retain moisture to assist
revegetation or as otherwise authorized pursuantto this Act): Provided, however. That in surface coal
mining which is carried out at the same location over a substantial period of time where the operation
transects the coal deposit, and the thickness of the coal deposits relative to the volume of the
overburden is large and where the operator demonstrates that the overburden and other spoil and
waste materials at a particular point in the permit area or otherwise available from the entire permit
area is insufficient, giving due consideration to volumetric expansion, to restore the approximate
original contour, the operator, at a minimum, shall backfill, grade, and compact (where advisable)
using all available overburden and other spoil and waste materials to attain the lowest practicable
grade but not more than the angle of repose, to provide adequate drainage and to cover all acid-
forming and other toxic materials, in order to achieve an ecologically sound land use compatible with
the surrounding region: And provided further. That in surface coal mining where the volume of
overburden is large relative to the thickness of the coal deposit and where the operator demonstrates
that due to volumetric expansion the amount of overburden and other spoil and waste materials
removed in the course of the mining operation is more than sufficient to restore the approximate
original contour, the operator shall after restoring the approximate contour, backfill, grade, and
compact (where advisable) the excess overburden and other spoil and waste materials to attain the
lowest grade but not more than the angle of repose, and to cover all acid-forming, and other toxic
materials, in order to achieve an ecologically sound land use compatible with the surrounding region
and that such overburden or spoil shall be shaped and graded in such a way as to prevent slides,
erosion, and water pollution and is revegetated in accordance with the requirements of this Act;
(4) stabilize and protect all surface areas including spoil piles affected by the surface coal mining and
reclamation operation to effectively control erosion and attendant air and water pollution;
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(10) minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated
offsite areas and to the quality and quantity of water in surface and ground water systems both during
and after surface coal mining operations and during reclamation by -
(D) avoiding acid or other toxic mine drainage by such measures as, but not limited to -
(i) preventing or removing water from contact with toxic producing deposits;
(ii) treating drainage to reduce toxic content which adversely affects downstream
water upon being released to water courses;
(iii) casing, sealing, or otherwise managing boreholes, shafts, and wells and keep acid
or other toxic drainage from entering ground and surface waters;
(E) (i) conducting surface coal mining operations so as to prevent, to the extent possible
using the best technology currently available, additional contributions of suspended
solids to streamflow, or runoff outside the permit area, but in no event shall
contributions be in excess of requirements set by applicable State or Federal law;
(ii) constructing any siltation structures pursuant to subparagraph (B)(i) of this
subsection prior to commencement of surface coal mining operations, such structures
to be certified by a qualified registered engineer or a qualified registered professional
land surveyor in any State which authorizes land surveyors to prepare and certify such
maps or plans to be constructed as designed and as approved in the reclamation plan;
(C) cleaning out and removing temporary or large settling ponds or other siltation
structures from drainways after disturbed areas are revegetated and stabilized; and
depositing the silt and debris at a site and in a manner approved by the regulatory
authority;
(D) restoring recharge capacity of the mined area to approximate premining conditions;
(E) avoiding channel deepening or enlargement in operations requiring the discharge of
water from mines;
(F) preserving throughout the mining and reclamation process the essential hydrologic
functions of alluvial valley floors in the arid and semiarid areas of the country; and
(G) such other actions as the regulatory authority may prescribe;
(12) refrain from surface coal mining within five hundred feet from active and abandoned
underground mines in order to prevent breakthroughs and to protect health or safety of miners:
Provided. That the regulatory authority shall permit an operator to mine near, through or partially
through an abandoned underground mine or closer to an active underground mine if (A) the nature,
timing, and sequencing of the approximate coincidence of specific surface mine activities with
specific underground mine activities are j ointly approved by the regulatory authorities concerned with
surface mine regulation and the health and safety of underground miners, and (B) such operations
will result in improved resource recovery, abatement of water pollution, or elimination of hazards to
the health and safety of the public;
(14) insure that all debris, acid-forming materials, toxic materials, or materials constituting a fire
hazard are treated or buried and compacted or otherwise disposed of in a manner designed to prevent
contamination of ground or surface waters and that contingency plans are developed to prevent
sustained combustion;
(17) insure that the construction, maintenance, and postmining conditions of access roads into and
across the site of operations will control or prevent erosion and siltation, pollution of water, damage
to fish or wildlife or their habitat, or public or private property;
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(18) refrain from the construction of roads or other access ways up a stream bed or drainage channel
or in such proximity to such channel so as to seriously alter the normal flow of water;
(24) to the extent possible using the best technology currently available, minimize disturbances and
adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve
enhancement of such resources where practicable;
Specific Performance Standards for Mountaintop Removal Mining Operations
SMCRA section 515(c)
(1) Each State program may and each Federal program shall include procedures pursuant to which
the regulatory authority may permit surface mining operations for the purposes set forth in paragraph
(3) of this subsection.
(2) Where an applicant meets the requirements of paragraphs (3) and (4) of this subsection a permit
without regard to the requirement to restore to approximate original contour set forth in subsection
515(b)(3) or 515(d)(2) and (3) of this section may be granted for the surface mining of coal where
the mining operation will remove an entire coal seam or seams running through the upper fraction
of a mountain, ridge, or hill (except as provided in subsection (c)(4)(A) hereof) by removing all of
the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining,
and capable of supporting postmining uses in accord with the requirements of this subsection.
(4) In granting any permit pursuant to this subsection the regulatory authority shall require that -
(A) the toe of the lowest coal seam and the overburden associated with it are retained in
place as a barrier to slides and erosion;
(B) the reclaimed area is stable;
(C) the resulting plateau or rolling contour drains inward from the outslopes except at
specified points;
(D) no damage will be done to natural watercourses;
(E) spoil will be placed on the mountaintop bench as is necessary to achieve the planned
postmining land use: Provided. That all excess spoil material not retained on the
mountaintop shall be placed in accordance with the provisions of subsection (b)(22)
of this section;
(F) insure stability of the spoil retained on the mountaintop and meet the other
requirements of this Act;
Applicable Regulations
Permit Application Requirements Pertaining to Aquatic Resources
Title 30 Code of Federal Regulations Section 779.19 (Vegetation Information)
(a) The permit application shall, if required by the regulatory authority, contain a map that
delineates existing vegetative types and a description of the plant communities within the
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proposed permit area and within any proposed reference area. This description shall include
information adequate to predict the potential for reestablishing vegetation.
(b) When a map or aerial photograph is required, sufficient adjacent areas shall be included
to allow evaluation of vegetation as important habitat for fish and wildlife for those species
offish and wildlife identified under 30CFR 780.16.
Title 30 Code of Federal Regulations Section 779.24 (GeneralMap Requirements)
The permit application shall include maps showing-
(c) The boundaries of all areas proposed to be affected over the estimated total life of the
proposed surface mining activities, with a description of size, sequence, and timing of the
mining of subareas for which it is anticipated that additional permits will be sought;
(g) The location of water supply intakes for current users of surface water flowing into, out
of, and within a hydrologic area defined by the regulatory authority, and those surface waters
which will receive discharges from affected areas in the proposed permit area;
(k) Any land within the proposed permit area which is within the boundaries of any units of
the National System of Trails or the Wild and Scenic Rivers System, including study rivers
designated under Section 5(a) of the Wild and Scenic Rivers Act; and
(1) Other relevant information required by the regulatory authority.
Title 30 Code of Federal Regulations Section 779.25 (Cross sections, Map and Plans)
(a) The application shall include cross sections, maps, and plans showing-
(2) Elevations and locations of monitoring stations used to gather data for water quality and quantity,
fish and wildlife, and air quality, if required, in preparation of the application;
(3) Nature, depth, and thickness of the coal seams to be mined, any coal or rider seams above the
seam to be mined, each stratum of the overburden, and the stratum immediately below the lowest coal
seam to be mined;
(4) All coal crop lines and the strike and dip of the coal to be mined within the proposed permit area;
(5) Location and extent of known workings of active, inactive, or abandoned underground mines,
including mine openings to the surface within the proposed permit and adjacent areas;
(6) Location and extent of subsurface water, if encountered, within the proposed permit or adjacent
areas;
(7) Location of surface water bodies such as streams, lakes, ponds, springs, constructed or natural
drains, and irrigation ditches within the proposed permit and adjacent areas;
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(8) Location and extent of existing or previously surface-mined areas within the proposed permit
area;
(9) Location and dimensions of existing areas of spoil, waste, and noncoal waste disposal, dams,
embankments, other impoundments, and water treatment and air pollution control facilities within
the proposed permit area;
(10) Location, and depth if available, of gas and oil wells within the proposed permit area and water
wells in the permit area and adjacent area;
(b) Cross Sections, maps, and plans included in a permit application as required by this
Section shall be prepared by, or under the direction of, and certified by a qualified, registered,
professional engineer, a professional geologist, or in any State which authorizes land
surveyors to prepare and certify such cross Sections, maps, and plans, a qualified, registered,
professional, land surveyor, with assistance from experts in related fields such as landscape
architecture, and shall be updated as required by the regulatory authority.
Title 30 Code of Federal Regulations Section 780.16 (Fish and Wildlife Information)
(a) Resource Information. Each application shall include fish and wildlife resource
information for the permit area and adjacent area.
(1) The scope and level of detail for such information shall be determined by the regulatory authority
in consultation with State and Federal agencies with responsibilities for fish and wildlife and shall
be sufficient to design the protection and enhancement plan required under paragraph (b) of this
section.
(2) Site-specific resource information necessary to address the respective species or habitats shall be
required when the permit area or adjacent area is likely to include:
(i) Listed or proposed endangered or threatened species of plants or animals or their critical
habitats listed by the Secretary under the Endangered Species Act of 1973, as amended (16
U.S.C. 1531 et seq.), or those species or habitats protected by similar State statutes;
(ii) Habitats of unusually high value for fish and wildlife such as important streams, wetlands,
riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration
routes, or reproduction and wintering areas; or
(iii) Other species or habitats identified through agency consultation as requiring special
protection under State or Federal law.
(b) Protection and enhancement plan. Each application shall include a description of how,
to the extent possible using the best technology currently available, the operator will
minimize disturbances and adverse impacts on fish and wildlife and related environmental
values, including compliance with the Endangered Species Act, during the surface coal
mining and reclamation operations and how enhancement of these resources will be achieved
where practicable. This description shall -
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(1) Be consistent with the requirements of Sec. 816.97 of this chapter;
(2) Apply, at a minimum, to species and habitats identified under paragraph(a) of this section; and
(3) Include -
(i) Protective measures that will be used during the active mining phase of operation. Such
measures may include the establishment of buffer zones, the selective location and special
design of haul roads and power lines, and the monitoring of surface water quality and
quantity; and
(ii) Enhancement measures that will be used during the reclamation and postmining phase of
operation to develop aquatic and terrestrial habitat. Such measures may include restoration
of streams and other wetlands, retention of ponds and impoundments, establishment of
vegetation for wildlife food and cover, and the replacement of perches and nest boxes. Where
the plan does not include enhancement measures, a statement shall be given explaining why
enhancement is not practicable.
(c) Fish and Wildlife Service review. Upon request, the regulator authority shall provide the
resource information required under paragraph (a)of this section and the protection and
enhancement plan required under paragraph (b) of this section to the U.S. Department of the
Interior, Fish and Wildlife Service Regional or Field Office for their review. This information
shall be provided within 10 days of receipt of the request from the Service.
Title 30 Code of Federal Regulations Section 780.18 (Reclamation Plan - General Requirements)
(a) Each application shall contain a plan for reclamation of the lands within the proposed
permit area, showing how the applicant will comply with Section 515 of the Act, Subchapter
K of this Chapter, and the environmental protection performance standards of the regulatory
program. The plan shall include, at a minimum, all information required under Sections
780.18-780.37of this Chapter.
(b) Each plan shall contain the following information for the proposed permit area-
(7) A description of measures to be employed to ensure that all debris, acid-forming and toxic-
forming materials, and materials constituting a fire hazard are disposed of in accordance with
Sections 816.89 and 816.102 of this Chapter and a description of the contingency plans which have
been developed to preclude sustained combustion of such materials;
(8) A description, including appropriate cross Sections and maps, of the measures to be used to seal
or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells,
and other openings within the proposed permit area, in accordance with Sections 816.13-816.15 of
this Chapter; and
(9) A description of steps to be taken to comply with the requirements of the Clean Air Act (42
U.S.C. 7401 etseq.), the Clean Water Act (33 U.S.C. 1251 etseq.), and other applicable air and water
quality laws and regulations and health and safety standards.
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Title 30 Code of Federal Regulations Section 780.21 (Hydrologic Information)
(a) Sampling and analysis methodology. All water-quality analyses performed to meet the
requirements of this Section shall be conducted according to the methodology in the 15th
edition of "Standard Methods for the Examination of Water and Wastewater," which is
incorporated by reference, or the methodology in 40 CFR Parts 136 and 434. Water quality
sampling performed to meet the requirements of this Section shall be conducted according
to either methodology listed above when feasible. "Standard Methods for the Examination
of Water and Wastewater" is a joint publication of the American Public Health Association,
the American Water Works Association, and the Water Pollution Control Federation and is
available from the American Public Health Association, 1015 15th Street, NW., Washington,
DC 20036. This document is also available for inspection at the Office of the Federal Register
Information Center, Room 8301, 1100 L Street, NW., Washington, D.C.; at the Office of the
OSM Administrative Record, U.S. Department of the Interior, Room5315, 1100 L Street,
NW., Washington, D.C.; at the OSM Eastern Technical Center, U.S. Department of the
Interior, Building 10, Parkway Center, Pittsburgh, Pa.; and at the OSM Western Technical
Center, U.S. Department of the Interior, Brooks Tower, 1020 15th Street, Denver, Colo. This
incorporation by reference was approved by the Director of the Federal Register on October
26, 1983. This document is incorporated as it exists on the date of the approval, and a notice
of any change in it will be published in the Federal Register.
(b) Baseline information. The application shall include the following baseline hydrologic
information, and any additional information required by the regulatory authority.
(1) Ground-water information. The location and ownership for the permit and adjacent areas of
existing wells, springs, and other ground-water resources, seasonal quality and quantity of ground
water, and usage. Water quality descriptions shall include, at a minimum, total dissolved solids or
specific conductance corrected to 25° C, pH, total iron, and total manganese. Ground-water quantity
descriptions shall include, at a minimum, approximate rates of discharge or usage and depth to the
water in the coal seam, and each water bearing stratum above and potentially impacted stratum below
the coal seam.
(2) Surface-water information. The name, location, ownership, and description of all surface-water
bodies such as streams, lakes, and impoundments, the location of any discharge into any surface-
water body in the proposed permit and adjacent areas, and information on surface-water quality and
quantity sufficient to demonstrate seasonal variation and water usage. Water quality descriptions shall
include, at a minimum, baseline information on total suspended solids, total dissolved solids or
specific conductance corrected to 25° C, pH, total iron, and total manganese. Baseline acidity and
alkalinity information shall be provided if there is a potential for acid drainage from the proposed
mining operation. Water-quantity descriptions shall include, at a minimum, baseline information on
seasonal flow rates.
(3) Supplemental information. If the determination of the probable hydrologic consequences (PHC)
required by Paragraph (f) of this Section indicates that adverse impacts on or off the proposed permit
area may occur to the hydrologic balance, or that acid-forming or toxic-forming material is present
that may result in the contamination of ground-water or surface-water supplies, then information
supplemental to that required under Paragraphs(b)(l) and (b)(2) of this Section shall be provided to
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evaluate such probable hydrologic consequences and to plan remedial and reclamation activities.
Such supplemental information may be based upon drilling, aquifer tests, hydrogeologic analysis of
the water-bearing strata, flood flows, or analysis of other water-quality or quantity characteristics.
(c) Baseline cumulative impact area information. (1) Hydrologic and geologic information
for the cumulative impact area necessary to assess the probable cumulative hydrologic
impacts of the proposed operation and all anticipated mining on surface- and ground-water
systems as required by Paragraph (g) of this Section shall be provided to the regulatory
authority if available from appropriate Federal or State agencies.
(2) If the information is not available from such agencies, then the applicant may gather and submit
this information to the regulatory authority as part of the permit application.
(3) The permit shall not be approved until the necessary hydrologic and geologic information is
available to the regulatory authority.
(^Modeling. The use of modeling techniques, interpolation, or statistical techniques may be
included as part of the permit application, but actual surface- and ground-water information
may be required by the regulatory authority for each site even when such techniques are used.
(e) Alternative water-source information. If the PHC determination required by Paragraph (f)
of this Section indicates that the proposed mining operation may proximately result in
contamination, diminution, or interruption of an underground or surface source of water
within the proposed permit or adjacent areas which is used for domestic, agricultural,
industrial or other legitimate purpose, then the application shall contain information on water
availability and alternative water sources, including the suitability of alternative water sources
for existing premining uses and approved post mining land uses.
(f) Probable hydrologic consequences determination. (1) The application shall contain a
determination of the probable hydrologic consequences (PHC) of the proposed operation
upon the quality and quantity of surface and groundwater under seasonal flow conditions for
the proposed permit and adjacent areas.
(2) The PHC determination shall be based on baseline hydrologic, geologic and other information
collected for the permit application and may include data statistically representative of the site.
(3) The PHC determination shall include findings on:
(i) Whether adverse impacts may occur to the hydrologic balance;
(ii) Whether acid-forming or toxic-forming materials are present that could result in the
contamination of surface or ground water supplies;
(iii) Whether the proposed operation may proximately result in contamination, diminution or
interruption of an underground or surface source of water within the proposed permit or
adj acent areas which is used for domestic, agricultural, industrial or other legitimate purpose;
and
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(iv) What impact the proposed operation will have on:
(A) Sediment yields from the disturbed area;
(B) acidity, total suspended and dissolved solids, and other important water
quality parameters of local impact;
(C) flooding or stream flow alteration;
(D) ground water and surface water availability; and
(E) other characteristics as required by the regulatory authority.
(4) An application for a permit revision shall be reviewed by the regulatory authority to determine
whether a new or updated PHC determination shall be required.
(g) Cumulative hydrologic impact assessment. (1) The regulatory authority shall provide an
assessment of the probable cumulative hydrologic impacts (CHIA)of the proposed operation
and all anticipated mining upon surface- and ground-water systems in the cumulative impact
area. The CHIA shall be sufficient to determine, for purposes of permit approval, whether the
proposed operation has been designed to prevent material damage to the hydrologic balance
outside the permit area. The regulatory authority may allow the applicant to submit data and
analyses relevant to the CHIA with the permit application.
(2) An application for a permit revision shall be reviewed by the regulatory authority to determine
whether a new or updated CHIA shall be required.
(h) Hydrologic reclamation plan. The application shall include a plan, with maps and
descriptions, indicating how the relevant requirements of Part 816 of this Chapter, including
Sections 816.41 to 816.43, will be met. The plan shall be specific to the local hydrologic
conditions. It shall contain the steps to be taken during mining and reclamation through bond
release to minimize disturbances to the hydrologic balance within the permit and adjacent
areas; to prevent material damage outside the permit area; to meet applicable Federal and
State water quality laws and regulations; and to protect the rights of present water users. The
plan shall include the measures to betaken to: Avoid acid or toxic drainage; prevent, to the
extent possible using the best technology currently available, additional contributions of
suspended solids to stream flow; provide water-treatment facilities when needed; control
drainage; restore approximate premining recharge capacity; and protect or replace rights of
present water users. The plan shall specifically address any potential adverse hydrologic
consequences identified in the PHC determination prepared under Paragraph (f) of this
Section and shall include preventive and remedial measures.
(i) Ground-water monitoring plan. (1) The application shall include aground-water
monitoring plan based upon the PHC determination required under Paragraph (f) of this
Section and the analysis of all baseline hydrologic, geologic, and other information in the
permit application. The plan shall provide for the monitoring of parameters that relate to the
suitability of the ground water for current and approved postmining land uses and to the
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objectives for protection of the hydrologic balance set forth in Paragraph (h)of this Section.
It shall identify the quantity and quality parameters to be monitored, sampling frequency, and
site locations. It shall describe how the data may be used to determine the impacts of the
operation upon the hydrologic balance. At a minimum, total dissolved solids or specific
conductance corrected to 25oC, pH, total iron, total manganese, and water levels shall be
monitored and data submitted to the regulatory authority at least every Smonths for each
monitoring location. The regulatory authority may require additional monitoring.
(2) If an applicant can demonstrate by the use of the PHC determination and other available
information that a particular water-bearing stratum in the proposed permit and adjacent areas is not
one which serves as an aquifer which significantly ensures the hydrologic balance within the
cumulative impact area, then monitoring of that stratum may be waived by the regulatory authority.
(j) Surface-water monitoring plan. (1) The applicant on shall include a surface-water
monitoring plan based upon the PHC determination required under Paragraph (f) of this
Section and the analysis of all baseline hydrologic, geologic, and other information in the
permit application. The plan shall provide for the monitoring of parameters that relate to the
suitability of the surface water for current and approved post mined land uses and to the
obj ectives for protection of the hydrologic balance as set forth in Paragraph(h) of this Section,
as well as the effluent limitations found at 40 CFR Part 434.
(2) The plan shall identify the surface-water quantity and quality parameters to be monitored,
sampling frequency, and site locations. It shall describe how the data may be used to determine the
impacts of the operation upon the hydrologic balance.
(i) At all monitoring locations in the surface-water bodies such as streams, lakes, and
impoundments that are potentially impacted or into which water will be discharged and at
upstream monitoring locations, the total dissolved solids or specific conductance corrected
to 25oC, total suspended solids, pH, total iron, total manganese, and flow shall be monitored.
(ii) For point-source discharges, monitoring shall be conducted in accordance with 40 CFR
Parts 122, 123 and 434 and as required by the National Pollutant Discharge Elimination
System permitting authority.
(3) The monitoring reports shall be submitted to the regulatory authority every 3 months. The
regulatory authority may require additional monitoring.
Title 30 Code of Federal Regulations Section 780.22 (Geologic Information)
(a) General. Each application shall include geologic information in sufficient detail to assist
in determining-
(1) The probable hydrologic consequences of the operation upon the quality and quantity of surface
and ground water in the permit and adj acent areas, including the extent to which surface- and ground-
water monitoring is necessary;
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(2) All potentially acid- or toxic-forming strata down to and including the stratum immediately below
the lowest coal seam to be mined; and
(3) Whether reclamation as required by this Chapter can be accomplished and whether the proposed
operation has been designed to prevent material damage to the hydrologic balance outside the permit
area.
(b) Geologic information shall include, at a minimum, the following:
(1) A description of the geology of the proposed permit and adjacent areas down to and including the
deeper of either the stratum immediately below the lowest coal seam to be mined or any aquifer
below the lowest coal seam to be mined which may be adversely impacted by mining. The
description shall include the areal and structural geology of the permit and adjacent areas and other
parameters which influence the required reclamation, and the occurrence, availability, movement,
quantity, and quality of potentially impacted surface and ground waters. It shall be based on—
(i) The cross Sections, maps, and plans required by Section 779.25 of this Chapter;
(ii) The information obtained under Paragraphs (b)(2) and (c) of this Section; and
(iii) Geologic literature and practices.
(2) Analyses of samples collected from test borings; drill cores; or fresh, unweathered,
uncontaminated samples from rock outcrops from the permit area, down to and including the deeper
of either the stratum immediately below the lowest coal seam to be mined or any aquifer below the
lowest seam to be mined which may be adversely impacted by mining. The analyses shall result in
the following:
(i) Logs showing the lithologic characteristics including physical properties and
thickness of each stratum and location of ground water where occurring;
(ii) Chemical analyses identifying those strata that may contain acid- or toxic-forming or
alkalinity-producing materials and to determine their content, except that the
regulatory authority may find that the analysis for alkalinity-producing materials is
unnecessary; and
(iii) Chemical analyses of the coal seam for acid- or toxic-forming materials, including the
total sulfur and pyritic sulfur, except that the regulatory authority may find that the
analysis of pyritic sulfur content is unnecessary.
(c) If determined to be necessary to protect the hydrologic balance or to meet the performance
standards of this Chapter, the regulatory authority may require the collection, analysis, and
description of geologic information in addition to that required by Paragraph (b) of this
Section.
(d) An applicant may request the regulatory authority to waive in whole or in part the
requirements of Paragraph (b)(2) of this Section. The waiver maybe granted only if the
regulatory authority finds in writing that the collection and analysis of such data are
unnecessary because other equivalent information is available to the regulatory authority in
a satisfactory form.
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Title 30 Code of Federal Regulations Section 780.29 (Diversions)
Each application shall contain descriptions, including maps and cross Sections, of stream-channel
diversions and other diversions to be constructed within the proposed permit area to achieve
compliance with Section 816.43 of this Chapter.
Title 30 Code of Federal Regulations Section 780.37 (Road System)
(a) Plans and drawings. Each applicant for a surface coal mining and reclamation permit shall
submit plans and drawings for each road, as defined in Sec. 701.5 of this chapter, to be
constructed, used, or maintained with in the proposed permit area. The plans and drawings
shall -
(1) Include a map, appropriate cross sections, design drawings and specifications for road widths,
gradients, surfacing materials, cuts, fill embankments, culverts, bridges, drainage ditches, low-water
crossings, and drainage structures;
(2) Contain the drawings and specifications of each proposed road that is located in the channel of
an intermittent or perennial stream, as necessary for approval of the road by the regulatory authority
in accordance with Sec. 816.150(d)(l) of this chapter;
(3) Contain the drawings and specifications for each proposed ford of perennial or intermittent
streams that is used as a temporary route, as necessary for approval of the ford by the regulatory
authority in accordance with Sec. 816.151(c)(2) of this chapter;
(4) Contain a description of measures to be taken to obtain approval of the regulatory authority for
alteration or relocation of a natural stream channel under Sec. 816.151(d)(5) of this chapter;
(5) Contain the drawings and specifications for each low-water crossing of perennial or intermittent
stream channels so that the regulatory authority can maximize the protection of the stream in
accordance with Sec. 816.151(d)(6) of this chapter; and
(6) Describe the plans to remove and reclaim each road that would not be retained under an approved
post mining land use, and the schedule for this removal and reclamation.
(b) Primary road certification. The plans and drawings for each primary road shall be
prepared by, or under the direction of, and certified by a qualified registered professional
engineer, or in any State which authorizes land surveyors to certify the design of primary
roads a qualified registered professional land surveyor, with experience in the design and
construction of roads, as meeting the requirements of this chapter; current, prudent
engineering practices; and any design criteria established by the regulatory authority.
Permanent Program Performance Standards Pertinent to Aquatic Resources
Title 30 Code of Federal Regulations Section 810.2 (General Objectives)
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The objective of this Subchapter is to ensure that coal exploration and surface coal mining and
reclamation operations are conducted in a manner that is compatible with the environmental, social,
and esthetic needs of the Nation. Accordingly, the performance standards and design requirements
in this Subchapter will provide for-
(a) Protection of the health, safety, and general welfare of mine workers and the public;
(b) Maximum use and conservation of the solid fuel resource being recovered so that
reaffecting the land through future surface coal mining operations can be minimized;
(c) Prompt reclamation of all affected areas to conditions that are capable of supporting the
premining land uses or higher or better land uses;
(d) Reclamation of land affected by surface coal mining operations as contemporaneously as
practicable with mining operations;
(e) Minimizing, to the extent possible using the best technology currently available,
disturbances and adverse impacts on fish, wildlife, and other related environmental values,
and enhancement of such resources where practicable;
(f) Revegetation which achieves a prompt vegetative cover and recovery of productivity
levels compatible with approved land uses;
(g) Minimum disturbance to the prevailing hydrologic balance at the mine site and in
associated offsite areas, and to the quality and quantity of water in surface- and ground-water
systems;
(h) Protection of fragile and historic lands where surface coal mining operations could result
in significant damage to important historic, cultural, scientific, or esthetic values and natural
systems;
(i) Confinement of surface coal mining and reclamation operations including, but not
limited to, the location of spoil disposal areas to lands within the permit area; and
(j) Striking a balance between protection of the environment and agricultural
productivity and the Nation's need for coal as an essential source of energy.
(k) Protection of endangered and threatened species and their critical habitats as determined
by the Endangered Species Act of 1973 (16 USC 1531, et seq.).
Title 30 Code of Federal Regulations Section 816.41 (Hydrologic Protection)
(a) General. All surface mining and reclamation activities shall be conducted to minimize
disturbance of the hydrologic balance within the permit and adjacent areas, to prevent
material damage to the hydrologic balance outside the permit area, to assure the protection
or replacement of water rights, and to support approved post mining land uses in accordance
with the terms and conditions of the approved permit and the performance standards of this
part. The regulatory authority may require additional preventative, remedial, or monitoring
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measures to assure that material damage to the hydrologic balance outside the permit area is
prevented. Mining and reclamation practices that minimize water pollution and changes in
flow shall be used in preference to water treatment.
(b) Ground-water protection. In order to protect the hydrologic balance, surface mining
activities shall be conducted according to the plan approved under Section 780.21(h) of this
Chapter and the following:
(1) Ground-water quality shall be protected by handling earth materials and runoff in a manner that
minimizes acidic, toxic, or other harmful infiltration to ground-water systems and by managing
excavations and other disturbances to prevent or control the discharge of pollutants into the ground
water.
(2) Ground-water quantity shall be protected by handling earth materials and runoff in a manner that
will restore the approximate premining recharge capacity of the reclaimed area as a whole, excluding
coal mine waste disposal areas and fills, so as to allow the movement of water to the ground-water
system.
(c) Ground-water monitoring. (1) Ground-water monitoring shall be conducted according to
the ground-water monitoring plan approved under Section780.21(i) of this Chapter. The
regulatory authority may require additional monitoring when necessary.
(2) Ground-water monitoring data shall submitted every 3 months to the regulatory authority or more
frequently as prescribed by the regulatory authority. Monitoring reports shall include analytical
results from each sample taken during the reporting period. When the analysis of any ground-water
sample indicates noncompliance with the permit conditions, then the operator shall promptly notify
the regulatory authority and immediately take the actions provided for in Sections 773.17(e) and
780.2 l(h) of this Chapter.
(3) Ground-water monitoring shall proceed through mining and continue during reclamation until
bond release. Consistent with the procedures of Section 744.13 of this Chapter, the regulatory
authority may modify the monitoring requirements, including the parameters covered and the
sampling frquency, if the operator demonstrates, using the monitoring data obtained under this
Paragraph, that—
(i) The operation has minimized disturbance to the hydrologic balance in the permit
and adjacent areas and prevented material damage to the hydrologic balance outside
the permit area; water quantity and quality are suitable to support approved post
mining land uses; and the water rights of other users have been protected or replaced;
or
(ii) Monitoring is no longer necessary to achieve the purposes set forth in the
monitoring plan approved under Section 780.21(i) of this Chapter.
(4) Equipment, structures, and other devices used in conjunction with monitoring the quality and
quantity of ground water onsite and offsite shall be properly installed, maintained, and operated and
shall be removed by the operator when no longer needed.
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(d) Surface-water protection. In order to protect the hydrologic balance, surface mining
activities shall be conducted according to the plan approved under Section 780.21(h) of this
Chapter, and the following:
(1) Surface-water quality shall be protected by handling earth materials, ground-water discharges,
and runoff in a manner that minimizes the formation of acidic or toxic drainage; prevents, to the
extent possible using the best technology currently available, additional contribution of suspended
solids to stream flow outside the permit area; and otherwise prevents water pollution. If drainage
control, restabilization and revegetation of disturbed areas, diversion of runoff, mulching, or other
reclamation and remedial practices are not adequate to meet the requirements of this Section and
Section 816.42, the operator shall use and maintain the necessary water-treatment facilities or water
quality controls.
(2) Surface-water quality and flow rates shall be protected by handling earth materials and runoff in
accordance with the steps outlined in the plan approved under Section 780.21 (h) of this Chapter.
(e) Surface-water monitoring. (1) Surface-water monitoring shall be conducted according to
the surface-water monitoring plan approved under Section 780.21(j) of this Chapter. The
regulatory authority may require additional monitoring when necessary.
(2) Surface-water monitoring data shall be submitted every 3 months to the regulatory authority or
more frequently as prescribed by the regulatory authority. Monitoring reports shall include analytical
results from each sample taken during the reporting period. When the analysis of any surface-water
sample indicates noncompliance with the permit conditions, the operator shall promptly notify the
regulatory authority and immediately take the actions provided for in Sections 773.17(e) and
780.21(h) of this Chapter. The reporting requirements of this Paragraph do not exempt the operator
from meeting any National Pollutant Discharge Elimination System (NPDES) reporting requirements.
(3) Surface-water monitoring shall proceed through mining and continue during reclamation until
bond release. Consistent with Section 774.13 of this Chapter, the regulatory authority may modify
the monitoring requirements, except those required by the NPDES permitting authority, including
the parameters covered and sampling frequency if the operator demonstrates, using the monitoring
data obtained under this Paragraph, that—
(i) The operation has minimized disturbance to the hydrologic balance in the permit
and adjacent areas and prevented material damage to the hydrologic balance outside
the permit area; water quantity and quality are suitable to support approved post
mining land uses; and the water rights of other users have been protected or replaced;
or
(ii) Monitoring is no longer necessary to achieve the purposes set forth in the
monitoring plan approved under Section 780.21(j) of this Chapter. (4) Equipment,
structures, and other devices used in conjunction with monitoring the quality and
quantity of surface water onsite and offsite shall be properly installed, maintained, and
operated and shall be removed by the operator when no longer needed.
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(f) Acid- and toxic-forming materials. (1) Drainage from acid- and toxic-forming materials
into surface water and ground water shall be avoided by—
(i) Identifying and burying and/or treating, when necessary, materials which may
adversely affect water quality, or be detrimental to vegetation or to public health
safety if not buried and/or treated, and
(ii) Storing materials in a manner that will protect surface water and ground water by
preventing erosion, the formation of polluted runoff, and the infiltration of polluted
water. Storage shall be limited to the period until burial and/or treatment first become
feasible, and so long as storage will not result in any risk of water pollution or other
environmental damage.
(2) Storage, burial or treatment practices shall be consistent with other material handling disposal
provisions of this Chapter.
(g) Transfer of wells. Before final release of bond, exploratory or monitoring wells shall be
sealed in a safe and environmentally sound manner in accordance with Sections 816.13-
816.15. With the prior approval of the regulatory authority, wells may be transferred to
another party for further use. At a minimum, the conditions of such transfer shall comply with
State and local law and the permittee shall remain responsible for the proper management of
the well until bond release in accordance with Sections 816.13-816.15.
(h) Water rights and replacement. Any person who conducts surface mining activities shall
replace the water supply of an owner of interest in real property who obtains all or part of his
or her supply of water for domestic, agricultural, industrial, or other legitimate use from an
underground or surface source, where the water supply has been adversely impacted by
contamination, diminution, or interruption proximately resulting from the surface mining
activities. Baseline hydrologic information required in Sections 780.21 and 780.22 of this
Chapter shall be used to determine the extent of the impact of mining upon ground water and
surface water, (i) Discharges into an underground mine.
(1) Discharges into an underground mine are prohibited, unless specifically approved by the
regulatory authority after a demonstration that the discharge will-
(i) Minimize disturbance to the hydrologic balance on the permit area, prevent
material damage outside the permit area and otherwise eliminate public hazards
resulting from surface mining activities;
(ii) Not result in a violation of applicable water quality standards or effluent
limitations;
(iii) Be at a known rate and quality which shall meet the effluent limitations of
Section 816.42 for pH and total suspended solids, except that the pH and total
suspended-solids limitations may be exceeded, if approved by the regulatory
authority; and
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(iv) Meet with the approval of the Mine Safety and Health Administration.
(2) Discharges shall be limited to the following:
(i) Water;
(ii) Coal processing waste;
(iii) Fly ash from a coal-fired facility;
(iv) Sludge from an acid-mine-drainage treatment facility;
(v) Flue-gas desulfurization sludge;
(vi) Inert materials used for stabilizing underground mines; and
(vii) Underground mine development wastes.
Title 30 Code of Federal Regulations Section 816.42 (Water Quality Standards and Effluent
Limitations)
Discharges of water from areas disturbed by surface mining activities shall be made in compliance
with all applicable State and Federal water-quality laws and regulations and with the effluent
limitations for coal mining promulgated by the U.S. Environmental Protection Agency set forth in
40 CFR Part 434.
Title 30 Code of Federal Regulations Section 816.43 (Diversions)
(a) General requirements. (1) With the approval of the regulatory authority, any flow from
mined areas abandoned before May 3, 1978, and any flow from undisturbed areas or
reclaimed areas, after meeting the criteria of Section 816.46 for siltation structure removal,
may be diverted from disturbed areas by means of temporary or permanent diversions. All
diversions shall be designed to minimize adverse impacts to the hydrologic balance within
the permit and adjacent areas, to prevent material damage outside the permit area and to
assure the safety of the public. Diversions shall not be used to divert water into underground
mines without approval of the regulatory authority under Section 816.41(i).
(2) The diversion and its appurtenant structures shall be designed, located, constructed, maintained
and used to—
(i) Be stable;
(ii) Provide protection against flooding and resultant damage to life and property;
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(iii) Prevent, to the extent possible using the best technology currently available,
additional contributions of suspended solids to stream flow outside the permit area;
and
(iv) Comply with all applicable local, State, and Federal laws and regulations.
(3) Temporary diversions shall be removed promptly when no longer needed to achieve the purpose
for which they were authorized. The land disturbed by the removal process shall be restored in
accordance with this part. Before diversions are removed, downstream water-treatment facilities
previously protected by the diversion shall be modified or removed, as necessary, to prevent
overtopping or failure of the facilities. This requirement shall not relieve the operator from
maintaining water-treatment facilities as otherwise required. A permanent diversion or a stream
channel reclaimed after the removal of a temporary diversion shall be designed and constructed so
as to restore or approximate the premining characteristics of the original stream channel including
the natural riparian vegetation to promote the recovery and the enhancement of the aquatic habitat.
(4) The regulatory authority may specify design criteria for diversions tomeet the requirements of this
Section.
(b) Diversion of perennial and intermittent streams. (1) Diversion of perennial and
intermittent streams within the permit area may be approved by the regulatory authority after
making the finding relating to stream buffer zones that the diversion will not adversely affect
the water quantity and quality and related environmental resources of the stream.
(2) The design capacity of channels for temporary and permanent stream channel diversions shall be
at least equal to the capacity of the unmodified stream channel immediately upstream and
downstream from the diversion.
(3) The requirements of Paragraph (a)(2)(ii) of this Section shall be met when the temporary and
permanent diversions for perennial and intermittent streams are designed so that the combination of
channel, bank and flood-plain configuration is adequate to pass safely the peak runoff of a 10-year,
6-hour precipitation event for a temporary diversion and a 100-year, 6-hour precipitation event for
a permanent diversion.
(4) The design and construction of all stream channel diversions of perennial and intermittent streams
shall be certified by a qualified registered professional engineer as meeting the performance standards
of this part and any design criteria set by the regulatory authority.
(c) Diversion of miscellaneous flows. (1) Miscellaneous flows, which consist of all flows
except for perennial and intermittent streams, may be diverted away from disturbed areas if
required or approved by the regulatory authority. Miscellaneous flows shall include ground-
water discharges and ephemeral streams.
(2) The design, location, construction, maintenance, and removal of diversions of miscellaneous
flows shall meet all of the performance standards set forth in Paragraph (a) of this Section: (3) The
requirements of Paragraph (a)(2)(ii) of this Section shall be met when the temporary and permanent
diversions for miscellaneous flows are designed so that the combination of channel, bank and flood-
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plain configuration is adequate to pass safely the peak runoff of a 2-year, 6-hour precipitation event
for a temporary diversion and a 10-year, 6-hour precipitation event for a permanent diversion.
Title 30 Code of Federal Regulations Section 816.46 (Sediment Control Structures)
(a) Appropriate sediment control measures shall be designed, constructed, and maintained
using the best technology currently available to:
(1) Prevent, to the extent possible, additional contributions of sediment to stream flow or to runoff
outside the permit area,
(2) Meet the more stringent of applicable State or Federal effluent limitations,
(3) Minimize erosion to the extent possible.
(b) Sediment control measures include practices carried out within and adjacent to the
disturbed area. The sedimentation storage capacity of practices in and downstream from the
disturbed area shall reflect the degree to which successful mining and reclamation techniques
are applied to reduce erosion and control sediment. Sediment control measures consist of the
utilization of proper mining and reclamation methods and sediment control practices, singly
or in combination. Sediment control methods include but are not limited to—
(1) Disturbing the smallest practicable area at any one time during the mining operation through
progressive backfilling, grading, and prompt revegetation as required in Section 816.11 l(b);
(2) Stabilizing the backfill material to promote a reduction in the rate and volume of runoff, in
accordance with the requirements of Section 816.102;
(3) Retaining sediment within disturbed areas;
(4) Diverting runoff away from disturbed areas;
(5) Diverting runoff using protected channels or pipes through disturbed areas so as not to cause
additional erosion;
(6) Using straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and
other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment; and
(7) Treating with chemicals.
Title 30 Code of Federal Regulations Section 816.45 (Siltation Structures)
(a) For the purpose of this section only, disturbed areas shall not include those areas-
(l)In which the only surface mining activities include diversion ditches, siltation structures, or roads
that are designed constructed and maintained in accordance with this part; and
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(2) For which the upstream area is not otherwise disturbed by the operator.
(b) General requirements. (1) Additional contributions of suspended solids sediment to
stream flow or runoff outside the permit area shall be prevented to the extent possible using
the best technology currently available. [Ed. note: Paragraph (b)(2) of Section 816.46 is
suspended. (51 FR 41952(41960), 11/20/86)]
(2) All surface drainage from the disturbed area shall be passed through a siltation structure before
leaving the permit area, except as provided in Paragraph (b)(5) or (e) of this Section.
(3) Siltation structures for an area shall be constructed before beginning any surface mining activities
in that area, and upon construction shall be certified by a qualified registered professional engineer,
or in any State which authorizes land surveyors to prepare and certify plans in accordance with Sec.
780.25(a) of this chapter a qualified registered professional land surveyor, to be constructed as
designed and as approved in the reclamation plan.
(4) Any siltation structure which impounds water shall be designed, constructed and maintained in
accordance with Section 816.49 of this Chapter.
(5) Siltation structures shall be maintained until removal is authorized by the regulatory authority and
the disturbed area has been stabilized and revegetated. In no case shall the structure be removed
sooner than 2 years after the last augmented seeding.
(6) When siltation structure is removed, the land on which the siltation structure was located shall
be regraded and revegetated in accordance with the reclamation plan and Sections 816.111-816.116
of this Chapter. Sedimentation ponds approved by the regulatory authority for retention as permanent
impoundments maybe exempted from this requirement.
(c) Sedimentation ponds. (1) When used, sedimentation ponds shall—
(i) Be used individually or in series;
(ii) Be located as near as possible to the disturbed area and out of perennial streams
unless approved by the regulatory authority, and
(iii) Be designed, constructed, and maintained to~
(A) Provide adequate sediment storage volume;
(B) Provide adequate detention time to allow the effluent from the ponds
to meet State and Federal effluent limitations;
(C) Contain or treat the 10-year, 24-hour precipitation event ("design
event") unless a lesser design event is approved by the regulatory
authority based on terrain, climate, other site-specific conditions and
on a demonstration by the operator that the effluent limitations of
Section 816.42will be met;
(D) Provide a nonclogging dewatering device adequate to maintain the
detention time required under Paragraph (c)(l)(iii)(B) of this Section;
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(E) Minimize, to the extent possible, short circuiting;
(F) Provide periodic sediment removal sufficient to maintain adequate
volume for the design event;
(G) Ensure against excessive settlement;
(H) Be free of sod, large roots, frozen soil, and acid- or toxic-forming
coal-processing waste; and
(I) Be compacted properly.
(2) Spillways. A sedimentation pond shall include either a combination of principal and emergency
spillways or single spillway configured as specified in Sec. 816.49(a)(9).
(d) Other treatment facilities. (1) Other treatment facilities shall be designed to treat the 10-
year, 24-hour precipitation event unless a lesser design event is approved by the regulatory
authority based on terrain, climate, other site-specific conditions and a demonstration by the
operator that the effluent limitations of Section 816.42 will be met.
(2) Other treatment facilities shall be designed in accordance with the applicable requirements of
Paragraph(c) of this Section.
(e) Exemptions. Exemptions to the requirements of this Section may be granted if—
(1) The disturbed drainage area within the total disturbed area is small; and
(2) The operator demonstrates that siltation structures and alternate sediment control measures are
not necessary for drainage from the disturbed area to meet the effluent limitations under Section
816.42 and the applicable State and Federal water quality standards for the receiving waters.
Title 30 Code of Federal Regulations Section 816.47 (Discharge Structures)
Discharge from sedimentation ponds, permanent and temporary impoundments, coal processing
waste dams and embankments, and diversions shall be controlled, by energy dissipators, riprap
channels, and other devices, where necessary, to reduce erosion, to prevent deepening or enlargement
of stream channels, and to minimize disturbance of the hydrologic balance. Discharge structures shall
be designed according to standard engineering-design procedures.
Title 30 Code of Federal Regulations Section 816.57 (Stream Buffer Zones)
(a) No land within 100 feet of a perennial stream or an intermittent stream shall be disturbed
by surface mining activities, unless the regulatory authority specifically authorizes surface
mining activities closer to, or through, such a stream. The regulatory authority may authorize
such activities only upon finding that—
(1) Surface mining activities will not cause or contribute to the violation of applicable State or
Federal water quality standards, and will not adversely affect the water quantity and quality or other
environmental resources of the stream; and
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(2) If there will be a temporary or permanent stream-channel diversion, it will comply with Section
816.43.
(b) The area not to be disturbed shall be designated as a buffer zone, and the operator shall
mark it as specified in Section 816.11.
Title 30 Code of Federal Regulations Section 816.71 (General Requirements Excess Spoil Disposal)
(a) General. Excess spoil shall be placed in designated disposal areas within the permit area,
in a controlled manner to- (1) Minimize the adverse effects of leachate and surface water
runoff from the fill on surface and ground waters;
(4) No permanent impoundments are allowed on the completed fill. Small depressions may be
allowed by the regulatory authority if the year needed to retain moisture, minimize erosion, create
and enhance wildlife habitat, or assist revegetation; and if they are not incompatible with the stability
of the fill.
(5) Excess spoil that is acid- or toxic-forming or combustible shall be adequately covered with
nonacid, nontoxic and noncombustible material, or treated, to control the impact on surface and
ground water in accordance with Section 816.41, to prevent sustained combustion, and to minimize
adverse effects on plant growth and the approved post mining land use.
(f) Drainage control. (1) If the disposal area contains springs, natural or manmade water
courses, or wet weather seeps, the fill design shall include diversions and underdrains as
necessary to control erosion, prevent water infiltration into the fill, and ensure stability.
(2) Diversions shall comply with the requirements of Section 816.43.
(3) Underdrains shall consist of durable rock or pipe, be designed and constructed
using current, prudent engineering practices and meet any design criteria
established by the regulatory authority. The underdrain system shall be
designed to carry the anticipated seepage of water due to rainfall away from
the excess spoil fill and from seeps and springs in the foundation of the
disposal area and shall be protected from piping and contamination by an
adequate filter. Rock underdrains shall be constructed of durable, nonacid-
,nontoxic-forming rock (e.g., natural sand and gravel, sandstone, limestone,
or other durable rock) that does not slake in water or degrade to soil material,
and which is free of coal, clay or other nondurable material. Perforated pipe
underdrains shall be corrosion resistant and shall have characteristics
consistent with the long-term life of the fill.
(g) Surface area stabilization. Slope protection shall be provided to minimize surface erosion
at the site. All disturbed areas, including diversion channels that are not riprapped or
otherwise protected, shall be revegetated upon completion of construction.
Title 30 Code of Federal Regulations Section 816.72 (Valley Fills / Head of Hollow Fills)
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Valley fills and head-of-hollow fills shall meet the requirements of Section 816.71 and the additional
requirements of this Section.
(a) Drainage control. (1) The top surface of the completed fill shall be graded such that the
final slope after settlement will be toward properly designed drainage channels. Uncontrolled
surface drainage may not be directed over the outslope of the fill.
(2) Runoff from areas above the fill and runoff from the surface of the fill shall be diverted into
stabilized diversion channels designed to meet the requirements of Section 816.43 and, in addition,
to safely pass the runoff from a 100-year, 6-hour precipitation event.
(b) Rock-core chimney drains. A rock-core chimney drain may be used in ahead-of-hollow
fill, instead of the underdrain and surface diversion system normally required, as long as the
fill is not located in an area containing intermittent or perennial streams. A rock-core chimney
drain may be used in a valley fill if the fill does not exceed 250,000 cubic yards of material
and upstream drainage is diverted around the fill. The alternative rock-core chimney drain
system shall be incorporated into the design and construction of the fill as follows.
(1) The fill shall have, along the vertical projection of the main buried stream channel or rill, a
vertical core of durable rock at least 16 feet thick which shall extend from the toe of the fill to the
head of the fill, and from the base of the fill to the surface of the fill. A system of lateral rock under
drains shall connect this rock core to each area of potential drainage for seepage in the disposal area.
The under drain system and rock core shall be designed to carry the anticipated seepage of water due
to rainfall away from the excess spoil fill and from seeps and springs in the foundation of the disposal
area. Rocks used in the rock core and under drains shall meet the requirements of Section 816.71(f).
(2) A filter system to ensure the proper long-term functioning of the rock core shall be designed and
constructed using current, prudent engineering practices.
(3) Grading may drain surface water away from the outslope of the fill and toward the rock core. In
no case, however, may intermittent or perennial streams be diverted into the rock core. The maximum
slope of the top of the fill shall be 33h: Iv (3 percent). A drainage pocket may be maintained at the
head of the fill during and after construction, to intercept surface runoff and discharge the runoff
through or over the rock drain, if stability of the fill is not impaired. In no case shall this pocket or
sump have a potential capacity for impounding more than 10,000 cubic feet of water. Terraces on the
fill shall be graded with a 3 to 5 percent grade toward the fill and a 1 percent slope toward the rock
core.
Title 30 Code of Federal Regulations Section 816.73 (Durable Rock Fills)
The regulatory authority may approve the alternative method of disposal of excess durable rock spoil
by gravity placement in single or multiple lifts, provided the following conditions are met:
(a) Except as provided in this Section, the requirements of Section 816.71are met.
(b) The excess spoil consists of at least 80 percent, by volume, durable, nonacid- and
nontoxic-forming rock (e.g., sandstone or limestone) that does not slake in water and will not
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degrade to soil material. Where used, noncemented clay shale, clay spoil, soil or other
nondurable excess spoil materials shall be mixed with excess durable rock spoil in a
controlled manner such that no more than 20 percent of the fill volume, as determined by tests
performed by a registered engineer and approved by the regulatory authority, is not durable
rock.
(c) A qualified registered professional engineer certifies that the design will ensure the
stability of the fill and meet all other applicable requirements.
(d) The fill is designed to attain a minimum long-term static safety factor of 1.5, and an
earthquake safety factor of 1.1.
(e) The under drain system may be constructed simultaneously with excess spoil placement
by the natural segregation of dumped materials, provided the resulting under drain system is
capable of carrying anticipated seepage of water due to rainfall away from the excess spoil
fill and from seeps and springs in the foundation of the disposal area and the other
requirements for drainage control are met.
(f) Surface water runoff from areas adjacent to and above the fill is not allowed to flow onto
the fill and is diverted into stabilized diversion channels designed to meet the requirements
of Section 816.43 and to safely pass the runoff from a 100-year, 6-hour precipitation event.
Title 30 Code of Federal Regulations Section 816.95 (Stabilization of Surface Areas)
(a) All exposed surface areas shall be protected and stabilized to effectively control erosion
and air pollution attendant to erosion.
(b) Rills and gullies, which form in areas that have been regraded and topsoiled and which
either:
(1) Disrupt the approved post mining land use or the reestablishment of the vegetative cover, or
(2) Cause or contribute to a violation of water-quality standards for receiving streams; shall be filled,
regraded, or otherwise stabilized; topsoil shall be replaced; and the areas shall be reseeded or
replanted.
Title 30 Code of Federal Regulations Section 816.97 (Protection of Fish, Wildlife, and Related
Values)
(a) The operator shall, to the extent possible using the best technology currently available,
minimize disturbances and adverse impacts on fish, wildlife, and related environmental values
and shall achieve enhancement of such resources where practicable.
(b) Endangered and threatened species. No surface mining activity shall be conducted which
is likely to jeopardize the continued existence of endangered or threatened species listed by
the Secretary or which is likely to result in the destruction or adverse modification of
designated critical habitats of such species in violation of the Endangered Species Act of
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1973, as amended(16 U.S.C. 1531 et seq.). The operator shall promptly report to the
regulatory authority any State- or federally-listed endangered or threatened species within the
permit area of which the operator becomes aware. Upon notification, the regulatory authority
shall consult with appropriate State and Federal fish and wildlife agencies and, after
consultation, shall identify whether, and under what conditions, the operator may proceed.
(d) Nothing in this Chapter shall authorize the taking of an endangered or threatened species
or a bald or golden eagle, its nest, or any of its eggs in violation of the Endangered Species
Act of 1973, as amended, 16 U.S.C. 1531 et seq., or the Bald Eagle Protection Act, as
amended, 16 U.S.C. 668 et seq.
(e) Each operator shall, to the extent possible using the best technology currently available—
(2) Locate and operate haul and access roads so as to avoid or minimize impacts on important fish
and wildlife species or other species protected by State or Federal law;
(f) Wetlands and habitats of unusually high value for fish and wildlife. The operator
conducting surface mining activities shall avoid disturbances to, enhance where practicable,
restore, or replace, wetlands, and riparian vegetation along rivers and streams and bordering
ponds and lakes. Surface mining activities shall avoid disturbances to, enhance where
practicable, or restore, habitats of unusually high value for fish and wildlife.
(g) Where fish and wildlife habitat is to be a post mining land use, the plant species to be used
on reclaimed areas shall be selected on the basis of the following criteria:
(1) Their proven nutritional value for fish or wildlife.
(2) Their use as cover for fish or wildlife.
(3) Their ability to support and enhance fish or wildlife habitat after the release of performance
bonds. The selected plants shall be grouped and distributed in a manner which optimizes edge effect,
cover, and other benefits to fish and wildlife.
Title 30 Code of Federal Regulations Section 816.102 (Backfilling and Grading - General
Requirements)
(a) Disturbed areas shall be backfilled and graded to—
(1) Achieve the approximate original contour, except as provided in Paragraph (k) of this Section;
(2) Eliminate all highwalls, spoil piles, and depressions, except as provided in Paragraph (h) (small
depressions) and in Paragraph (k)(3)(iii) (previously mined highwalls) of this Section;
(3) Achieve a post mining slope that does not exceed either the angle of repose or such lesser slope
as is necessary to achieve a minimum long-term static safety factor of 1.3 and to prevent slides;
(4) Minimize erosion and water pollution both on and off the site; and (5) Support the approved post
mining land use.
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(b) Spoil, except excess spoil disposed of in accordance with Sections 816.71-816.74, shall
be returned to the mined-out area.
(c) Spoil and waste materials shall be compacted where advisable to ensure stability or to
prevent leaching of toxic materials.
(f) Exposed coal seams, acid- and toxic-forming materials, and combustible materials
exposed, used, or produced during mining shall be adequately covered with nontoxic and
noncombustible material, or treated, to control the impact on surface and ground water in
accordance with Section 816.41, to prevent sustained combustion, and to minimize adverse
effects on plant growth and the approved post mining land use.
Applicable Policies
1. OSM Directive TSR-3, "Sediment Control Using the Best Technology Currently Available"
2. OSM Directive TSR-6, "Drainage Control on Valley and Durable Rock Fills"
3. OSM Directive TSR-9, "Construction Certification of Siltation Structures
4. OSM Internet Publication "OSM's Role in Protecting Water During Coal Mining (This document
is available on the internet at "www.osmre.gov/h20start.htm")
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Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Aquatic Session: 3
Issue: How to address procedural and permitting requirements for protecting aquatic resources as
they implement their programs.
Areas to be considered include: Coordination of permitting and reclamation activities; and how to
streamline the process. This session would also cover issues like staffing, training, and enforcement.
Summary of Effects of Relevant Statutes, Regulations, and Policies
Presented in the following are the procedural aspects of protecting aquatic resources, particularly
those statutes and regulations that mandate coordination among SMCRA and non-SMCRA agencies
and those that afford public input into the mining decisions. Also presented are those
statutes/regulations that require affirmative finding by the regulatory authority during permitting
process that aquatic resources will be protected.
Applicable Statutory Provisions
Consideration of Other Relevant Laws
SMCRA section 508(a)
Each reclamation plan submitted as part of a permit application pursuant to any approved State
program or a Federal program under the provisions of this Act shall include, in the degree of detail
necessary to demonstrate that reclamation required by the State or Federal program can be
accomplished, a statement of:
(9) the steps to be taken to comply with applicable air and water quality laws and regulations and any
applicable health and safety standards;
SMCRA section 702
(a) Nothing in this Act shall be construed as superseding, amending, modifying, or repealing
the Mining and Minerals Policy Act of 1970 (30 U.S.C. 2la), the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-47), or any of the following Acts or with any rule or
regulation promulgated thereunder, including, but not limited to -
(1) The Federal Metal and Nonmetallic Mine Safety Act (30 U.S.C. 721-740).
(2) The Federal Coal Mine Health and Safety Act of 1969 (83 Stat. 742).
(3) The Federal Water Pollution Control Act (79 Stat. 903), as amended (33
U.S.C. 1151-1175), the State laws enacted pursuant thereto, or other Federal
laws relating to preservation of water quality.
(4) The Clean Air Act, as amended (42 U.S.C. 1857 et seq.).
(5) The Solid Waste Disposal Act (42 U.S.C. 3251-3259).
(6) The Refuse Act of 1899 (33 U.S.C. 407).
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(7) The Fish and Wildlife Coordination Act of 1934 (16 U.S.C. 661-666c).
(8) The Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.).
(b) Nothing in this Act shall affect in any way the authority of the Secretary or the heads of
other Federal agencies under other provisions of law to include in any lease, license, permit,
contract, or other instrument such conditions as may be appropriate to regulate surface coal
mining and reclamation operations on land under their jurisdiction.
(c) To the greatest extent practicable each Federal agency shall cooperate with the Secretary
and the States in carrying out the provisions of this Act.
(d) Approval of the State programs, pursuant to section 503(b), promulgation of Federal
programs, pursuant to section 504, and implementation of the Federal lands programs,
pursuant to section 523 of this Act, shall not constitute a major action within the meaning of
section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332).
Adoption of regulations under section 501(b) shall constitute a major action within the
meaning of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
4332).
Affirmative Findings by the Regulatory Authority
SMCRA section 510(b)
No permit or revision application shall be approved unless the application affirmatively demonstrates
and the regulatory authority finds in writing on the basis of the information set forth in the application
or from information otherwise available which will be documented in the approval, and made
available to the applicant, that -
(3) the assessment of the probable cumulative impact of all anticipated mining in the area on the
hydrologic balance specified in section 507(b) has been made by the regulatory authority and the
proposed operation thereof has been designed to prevent material damage to hydrologic balance
outside permit area;
Consideration of Suggestions from the Public and Other Agencies
SMCRA section 513
(a) At the time of submission of an application for a surface coal mining and reclamation
permit, or revision of an existing permit, pursuant to the provisions of this Act or an approved
State program, the applicant shall submit to the regulatory authority a copy of his
advertisement of the ownership, precise location, and boundaries of the land to be affected.
At the time of submission such advertisement shall be placed by the applicant in a local
newspaper of general circulation in the locality of the proposed surface mine at least once a
week for four consecutive weeks. The regulatory authority shall notify various local
governmental bodies, planning agencies, and sewage and water treatment authorities, of water
companies in the locality in which the proposed surface mining will take place, notifying
them of the operator's intention to surface mine a particularly described tract of land and
indicating the application's permit number and where a copy of the proposed mining and
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reclamation plan may be inspected. These local bodies, agencies, authorities, or companies
may submit written comments within a reasonable period established by the regulatory
authority on the mining applications with respect to the effect of the proposed operation on
the environment which are within their area of responsibility. Such comments shall
immediately be transmitted to the applicant by the regulatory authority and shall be made
available to the public at the same locations as are the mining applications.
(b) Any person having an interest which is or may be adversely affected or the officer or head
of any Federal, State, or local governmental agency or authority shall have the right to file
written objections to the proposed initial or revised application for a permit for surface coal
mining and reclamation operation with the regulatory authority within thirty days after the
last publication of the above notice. Such objections shall immediately be transmitted to the
applicant by the regulatory authority and shall be made available to the public. If written
objections are filed and an informal conference requested, the regulatory authority shall then
hold an informal conference in the locality of the proposed mining, if requested within a
reasonable time of the receipt of such objections or request. The date, time and location of
such informal conference shall be advertised by the regulatory authority in a newspaper of
general circulation in the locality at least two weeks prior to the scheduled conference date.
The regulatory authority may arrange with the applicant upon request by any party to the
administrative proceeding access to the proposed mining area for the purpose of gathering
information relevant to the proceeding. An electronic or stenographic record shall be made
of the conference proceeding, unless waived by all parties. Such record shall be maintained
and shall be accessible to the parties until final release of the applicant's performance bond.
In the event all parties requesting the informal conference stipulate agreement prior to the
requested informal conference and withdraw their request, such informal conference need not
be held.
Coordination of Regulation and Inspection Activities
SMCRA section 713
(a) The President shall, to the extent appropriate, and in keeping with the particular
enforcement requirements of each Act referred to herein, insure the coordination of regulatory
and inspection activities among the departments, agencies, and instrumentalities to which
such activities are assigned by this Act, by the Clean Air Act, by the Water Pollution Control
Act, by the Department of Energy Organization Act, and by existing or subsequently enacted
Federal mine safety and health laws, except that no such coordination shall be required with
respect to mine safety and health inspections, advance notice of which is or may be prohibited
by existing or subsequently enacted Federal mine safety and health laws.
(b) The President may execute the coordination required by this section by means of an
Executive order, or by any other mechanism he determines to be appropriate.
Designating Areas Unsuitable for Surface Coal Mining
SMCRA section 522
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(a)(l) To be eligible to assume primary regulatory authority pursuant to section 503, each State shall
establish a planning process enabling objective decisions based upon competent and scientifically
sound data and information as to which, if any, land areas of a State are unsuitable for all or certain
types of surface coal mining operations pursuant to the standards set forth in paragraphs (2) and (3)
of this subsection but such designation shall not prevent the mineral exploration pursuant to the Act
of any area so designated.
(2) Upon petition pursuant to subsection (c) of this section, the State regulatory authority shall
designate an area as unsuitable for all or certain types of surface coal mining operations if the State
regulatory authority determines that reclamation pursuant to the requirements of this Act is not
technologically and economically feasible.
(3) Upon petition pursuant to subsection (c) of this section, a surface area may be designated
unsuitable for certain types of surface coal mining operations if such operations will -
(B) affect fragile or historic lands in which such operations could result in
significant damage to important historic, cultural, scientific, and esthetic
values and natural systems; or
(C) affect renewable resource lands in which such operations could result in a
substantial loss or reduction of long-range productivity of water supply or of
food or fiber products, and such lands to include aquifers and aquifer recharge
areas; or
(D) affect natural hazard lands in which such operations could substantially
endanger life and property, such lands to include areas subject to frequent
flooding and areas of unstable geology.
(4) To comply with this section, a State must demonstrate it has developed or is developing a process
which includes -
(A) a State agency responsible for surface coal mining lands review;
(B) a data base and an inventory system which will permit proper evaluation of
the capacity of different land areas of the State to support and permit
reclamation of surface coal mining operations;
(C) a method or methods for implementing land use planning decisions
concerning surface coal mining operations; and
(D) proper notice, opportunities for public participation, including a public
hearing prior to making any designation or redesignation, pursuant to this
section.
(5) Determinations of the unsuitability of land for surface coal mining, as provided for in this section,
shall be integrated as closely as possible with present and future land use planning and regulation
processes at the Federal, State, and local levels.
(6) The requirements of this section shall not apply to lands on which surface coal mining operations
are being conducted on the date of enactment of this Act or under a permit issued pursuant to this
Act, or where substantial legal and financial commitments in such operation were in existence prior
to January 4, 1977.
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(b) The Secretary shall conduct a review of the Federal lands to determine, pursuant to the
standards set forth in paragraphs (2) and (3) of subsection (a) of this section, whether there
are areas on Federal lands which are unsuitable for all or certain types of surface coal mining
operations: Provided, however. That the Secretary may permit surface coal mining on Federal
lands prior to the completion of this review. When the Secretary determines an area on
Federal lands to be unsuitable for all or certain types of surface coal mining operations, he
shall withdraw such area or condition any mineral leasing or mineral entries in a manner so
as to limit surface coal mining operations on such area. Where a Federal program has been
implemented in a State pursuant to section 504, the Secretary shall implement a process for
designation of areas unsuitable for surface coal mining for non-Federal lands within such
State and such process shall incorporate the standards and procedures of this section. Prior
to designating Federal lands unsuitable for such mining, the Secretary shall consult with the
appropriate State and local agencies.
(c) Any person having an interest which is or may be adversely affected shall have the right
to petition the regulatory authority to have an area designated as unsuitable for surface coal
mining operations, or to have such a designation terminated. Such a petition shall contain
allegations of facts with supporting evidence which would tend to establish the allegations.
Within ten months after receipt of the petition the regulatory authority shall hold a public
hearing in the locality of the affected area, after appropriate notice and publication of the date,
time, and location of such hearing. After a person having an interest which is or may be
adversely affected has filed a petition and before the hearing, as required by this subsection,
any person may intervene by filing allegations of facts with supporting evidence which would
tend to establish the allegations. Within sixty days after such hearing, the regulatory authority
shall issue and furnish to the petitioner and any other party to the hearing, a written decision
regarding the petition, and the reasons therefore. In the event that all the petitioners stipulate
agreement prior to the requested hearing, and withdraw their request, such hearing need not
be held.
(d) Prior to designating any land areas as unsuitable for surface coal mining operations, the
regulatory authority shall prepare a detailed statement on (i) the potential coal resources of
the area, (ii) the demand for coal resources, and (iii) the impact of such designation on the
environment, the economy, and the supply of coal.
(e) After the enactment of this Act and subject to valid existing rights no surface coal mining
operations except those which exist on the date of enactment of this Act shall be permitted
(1) on any lands within the boundaries of units of the National Park System, the National Wildlife
Refuge Systems, the National System of Trails, the National Wilderness Preservation System, the
Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and
Scenic Rivers Act and National Recreation Areas designated by Act of Congress;
Protection of Water Rights and Supplies
SMCRA section 717
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(a) Nothing in this Act shall be construed as affecting in any way the right of any person to
enforce or protect, under applicable law, his interest in water resources affected by a surface
coal mining operation.
(b) The operator of a surface coal mine shall replace the water supply of an owner of interest
in real property who obtains all or part of his supply of water for domestic, agricultural,
industrial, or other legitimate use from an underground or surface source where such supply
has been affected by contamination, diminution, or interruption proximately resulting from
such surface coal mine operation.
Applicable Regulations
Areas Where Mining is Limited or Prohibited
Title 30 Code of Federal Regulations Section 761.11
You may not conduct surface coal mining operations on the following lands unless you either
have valid existing rights, as determined under Sec. 761.16, or qualify for the exception for
existing operations under Sec. 761.12: (a) Any lands within the boundaries of: (1) The National
Park System; (2) The National Wildlife Refuge System; (3) The National System of Trails; (4)
The National Wilderness Preservation System; (5) The Wild and Scenic Rivers System, including
study rivers designated under section 5(a) of the Wild and Scenic Rivers Act, 16 U.S.C. 1276(a),
or study rivers or study river corridors established in any guidelines issued under that Act; or (6)
National Recreation Areas designated by Act of Congress.
Criteria for Designating Lands Unsuitable for Mining
Title 30 Code of Federal Regulations Section 762.11
(a) Upon petition an area shall be designated as unsuitable for all or certain types of
surface coal mining operations, if the regulatory authority determines that reclamation is
not technologically and economically feasible under the Act, this Chapter, or an approved
State program.
(b) Upon petition an area may be (but is not required to be) designated as unsuitable for
certain types of surface coal mining operations, if the operations will— (1) Be
incompatible with existing State or local land use plans or programs; (2) Affect fragile or
historic lands in which the operations could result in significant damage to important
historic, cultural, scientific, or esthetic values or natural systems; (3) Affect renewable
resource lands in which the operations could result in a substantial loss or reduction of
long-range productivity of water supply or of food or fiber products (refer to the
definitions in the session 1 writeup)
Regulatory Coordination with the Requirements under Other Laws
Title 30 Code of Federal Regulations Section 773.5
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Each regulatory program shall, to avoid duplication, provide for the coordination of review and
issuance of permits for surface coal mining and reclamation operations with applicable
requirements of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.); the
Fish and Wildlife Coordination Act, as amended (16 U.S.C. 661 et seq.); the Migratory Bird
Treaty Act of 1918, as amended (16 U.S.C. 703 et seq.); The National Historic Preservation Act
of 1966, as amended (16 U.S.C. 470 et seq.); the Bald Eagle Protection Act, as amended (16
U.S.C. 668a); for Federal programs only, the Archeological and Historic Preservation Act of
1974 (16 U.S.C. 469 et seq.); and the Archaeological Resources Protection Act of 1979 (16
U.S.C. 470aa et seq) where Federal and Indian lands covered by that Act are involved.
Opportunity for Public and Agency Participation in the Permitting Process
Title 30 Code of Federal Regulations Section 773.6(3)
(3) Upon receipt of an administratively complete application for a permit, a significant revision to
a permit under Section 774.13, or a renewal of a permit under Section 774.15, the regulatory
authority shall issue written notification indicating the applicant's intention to mine the described
tract of land, the application number or other identifier, the location where the copy of the
application may be inspected, and the location where comments on the application may be
submitted. The notification shall be sent to-
(i) Local governmental agencies with jurisdiction over or an interest in the area of
the proposed surface coal mining and reclamation operation, including but not
limited to planning agencies, sewage and water treatment authorities, water
companies; and
(ii) All Federal or State governmental agencies with authority to issue permits and
licenses applicable to the proposed surface coal mining and reclamation operation
and which are part of the permit coordinating process developed in accordance
with Section 503(a)(6) or 504(h) of the Act, or Section 773.12; or those agencies
with an interest in the proposed operation, including the U.S. Department of
Agriculture Soil Conservation Service district office, the local U.S. Army Corps of
Engineers district engineer, the National Park Service, State and Federal fish and
wildlife agencies, and the historic preservation officer.
Comments and Objections on Permit Application
Title 30 Code of Federal Regulations Section 773.13(b)
(1) Within a reasonable time established by the regulatory authority, written comments or
objections on an application for a permit, significant revision to a permit under Section 774.13, or
renewal of a permit under Section 774.15 may be submitted to the regulatory authority by public
entities notified under Paragraph (a)(3) of this Section with respect to the effects of the proposed
mining operations on the environment within their areas of responsibility.
(2) Written objections to an application for a permit, significant revision to a permit under Section
774.13, or renewal of a permit under Section 774.15may be submitted to the regulatory authority
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by any person having an interest which is or may be adversely affected by the decision on the
application, or by an officer or head of any Federal, State, or local government agency or
authority, within 30 days after the last publication of the newspaper notice required by Paragraph
(a) of this Section.
(3) The regulatory authority shall, upon receipt of such written comments or object! ons-
(i) Transmit a copy of the comments or objections to the applicants; and
(ii) File a copy for public inspection at the same public office where the
application is filed.
Informal Conferences
Title 30 Code of Federal Regulations Section 773.6(c)
(1) Any person having an interest which is or may be adversely affected by the decision on the
application, or an officer ora head of a Federal, State, or local government agency, may request in
writing that the regulatory authority hold an informal conference on the application for a permit,
significant revision to a permit under Section 774.13, or renewal of a permit under Section
774.15. The request shall-
(i) Briefly summarize the issues to be raised by the requestor at the conference:
(ii) State whether the requestor desires to have the conference conducted in the
locality of the proposed operation; and
(iii) Be filed with the regulatory authority no later than 30 days after the last
publication of the newspaper advertisement required under Paragraph(a) of this
Section.
(2) Except as provided in Paragraph (c)(3) of this Section, if an informal conference is requested
in accordance with Paragraph (c)(l) of this Section, the regulatory authority shall hold an
informal conference within a reasonable time following the receipt of the request. The informal
conference shall be conducted as follows:
(i) If requested under Paragraph (c)(l)(ii) of this Section, it shall beheld in the
locality of the proposed surface coal mining and reclamation operation.
(ii) The date, time, and location of the informal conference shall be sent to the
applicant and other parties to the conference and advertised by the regulatory
authority in a newspaper of general circulation in the locality of the proposed
surface coal mining and reclamation operation at least 2 weeks before the
scheduled conference.
(iii) If requested in writing by a conference requestor at a reasonable time before
the conference, the regulatory authority may arrange with the applicant to grant
parties to the conference access to the proposed permit area and, to the extent that
the applicant has the right to grant access to it, to the adjacent area prior to the
established date of the conference for the purpose of gathering information
relevant to the conference.
Written Findings by the Regulatory Authority
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Title 30 Code of Federal Regulations Section 773.15
No permit application or application for a significant revision of a permit shall be approved
unless the application affirmatively demonstrates and the regulatory authority finds, in writing, on
the basis of information set forth in the application or from information otherwise available that is
documented in the approval, the following:
(1) The application is complete and accurate and the applicant has complied with all requirements
of the Act and the regulatory program.
(2) The applicant has demonstrated that reclamation as required by the Act and the regulatory
program can be accomplished under the reclamation plan contained in the permit application.
(3) The proposed permit area is—
(i) Not within an area under study or administrative proceedings under a petition,
filed pursuant to Parts 764 and 769 of this Chapter, to have an area designated as
unsuitable for surface coal mining operations, unless the applicant demonstrates
that before January 4, 1977, he had made substantial legal and financial
commitments in relation to the operation covered by the permit application; or
(ii) Not within an area designated as unsuitable for mining pursuant to Parts 762,
764, and 769 of this Chapter or subject to the prohibitions or limitations of Section
761.11 of this Chapter.
(5) The regulatory authority has made an assessment of the probable cumulative impacts of all
anticipated coal mining on the hydrologic balance in the cumulative impact area and has
determined that the proposed operation has been designed to prevent material damage to the
hydrologic balance outside the permit area.
(10) The operation would not affect the continued existence of endangered or threatened species
or result in destruction or adverse modification of their critical habitats, as determined under the
Endangered Species Act of!973 (16 U.S.C. 1531 et seq.).
(12) For a proposed remining operation where the applicant intends to reclaim in accordance with
the requirements of Sees. 816.106 or 817.106 of this chapter, the site of the operation is a
previously mined area as defined in Sec. 701.5 of this chapter.
(13) For permits to be issued under Sec. 785.25 of this chapter, the permit application must
contain:
(i) Lands eligible for remining;
(ii) An identification of the potential environmental and safety problems related to
prior mining activity which could reasonably be anticipated to occur at the site;
and
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(iii) Mitigation plans to sufficiently address these potential environmental and
safety problems so that reclamation as required by the applicable requirements of
the regulatory program can be accomplished.
Reporting of Technical Data
Title 30 Code of Federal Regulations Section 777.13
(a) All technical data submitted in the application shall be accompanied by the names of
persons or organizations that collected and analyzed the data, dates of the collection and
analysis of the data, and descriptions of the methodology used to collect and analyze the
data.
(b) Technical analyses shall be planned by or under the direction of a professional
qualified in the subject to be analyzed.
Coordination with the US Fish and Wildlife Service
Title 30 Code of Federal Regulations Section 780.16 (Fish and Wildlife Information)
(a) Resource Information. Each application shall include fish and wildlife resource
information for the permit area and adjacent area.
(1) The scope and level of detail for such information shall be determined by the regulatory
authority in consultation with State and Federal agencies with responsibilities for fish and wildlife
and shall be sufficient to design the protection and enhancement plan required under paragraph
(b) of this section.
(2) Site-specific resource information necessary to address the respective species or habitats shall
be required when the permit area or adjacent area is likely to include:
(i) Listed or proposed endangered or threatened species of plants or animals or
their critical habitats listed by the Secretary under the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.), or those species or habitats protected
by similar State statutes;
(ii) Habitats of unusually high value for fish and wildlife such as important
streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special
shelter or protection, migration routes, or reproduction and wintering areas; or
(iii) Other species or habitats identified through agency consultation as requiring
special protection under State or Federal law.
(b) Protection and enhancement plan. Each application shall include a description of how,
to the extent possible using the best technology currently available, the operator will
minimize disturbances and adverse impacts on fish and wildlife and related environmental
values, including compliance with the Endangered Species Act, during the surface coal
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mining and reclamation operations and how enhancement of these resources will be
achieved where practicable. This description shall -
(1) Be consistent with the requirements of Sec. 816.97 of this chapter;
(2) Apply, at a minimum, to species and habitats identified under paragraph(a) of this section; and
(3) Include -
(i) Protective measures that will be used during the active mining phase of
operation. Such measures may include the establishment of buffer zones, the
selective location and special design of haul roads and power lines, and the
monitoring of surface water quality and quantity; and
(ii) Enhancement measures that will be used during the reclamation and
postmining phase of operation to develop aquatic and terrestrial habitat. Such
measures may include restoration of streams and other wetlands, retention of
ponds and impoundments, establishment of vegetation for wildlife food and cover,
and the replacement of perches and nest boxes. Where the plan does not include
enhancement measures, a statement shall be given explaining why enhancement is
not practicable.
(c) Fish and Wildlife Service review. Upon request, the regulator authority shall provide
the resource information required under paragraph (a)of this section and the protection
and enhancement plan required under paragraph (b) of this section to the U.S. Department
of the Interior, Fish and Wildlife Service Regional or Field Office for their review. This
information shall be provided within 10 days of receipt of the request from the Service.
Title 30 Code of Federal Regulations Section 816.97 (Protection of Fish, Wildlife, andRelated
Values)
(a) The operator shall, to the extent possible using the best technology currently available,
minimize disturbances and adverse impacts on fish, wildlife, and related environmental
values and shall achieve enhancement of such resources where practicable.
(b) Endangered and threatened species. No surface mining activity shall be conducted
which is likely to jeopardize the continued existence of endangered or threatened species
listed by the Secretary or which is likely to result in the destruction or adverse
modification of designated critical habitats of such species in violation of the Endangered
Species Act of 1973, as amended(16 U.S.C. 1531 et seq.). The operator shall promptly
report to the regulatory authority any State- or federally-listed endangered or threatened
species within the permit area of which the operator becomes aware. Upon notification,
the regulatory authority shall consult with appropriate State and Federal fish and wildlife
agencies and, after consultation, shall identify whether, and under what conditions, the
operator may proceed.
Applicable Policies
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TERRESTRIAL: EPA PROGRAMMATIC REVIEW
Please refer to the Session 2.
Agency Involved: Environmental Protection Agency
Domain: Terrestrial Issues
Issue: What are the short and long-term effects of individual mountaintop mining operations and
associated valley fills on forests and other ecological resources within and adjacent to the mined
and filled areas?
Values identified: (1) Forest health, (2) Connectivity, (3) Function, and (4) Species composition
Summary of Effects of Relevant Statutes, Regulations and Policies
Section 404(b)(l) Guidelines constitute the substantive environmental criteria used in evaluating
proposals to discharge dredged or fill materials (such as valley fills) in waters of the U.S. under
Section 404 of the Clean Water Act. The Corps of Engineers and EPA develop and interpret
environmental criteria used in evaluating applications. EPA reviews and comments on individual
permit applications, and has authority to veto proposed dredged material or fill disposal sites
under Section 404(c).
Under part 230.10 of the guidelines, no discharge of dredged or fill material shall be permitted
which will cause or contribute to significant degradation of the waters of the United States.
Significant degradation includes biological, physical, and chemical processes connected to
wildlife dependent on aquatic ecosystems. Under part 230.11 factual determinations, broad
ecosystem functions are discussed that are to be included in determination of potential short-term
and long-term effects of proposed discharge of dredged or fill material. These provisions could
potentially be used to protect ecological resources.
Applicable Statutory Provisions
Clean Water Act Section 404: Permits for Dredged and Fill Material
(a) Discharge into navigable waters at specified disposal sites.
The Secretary [of the Army] may issue permits, after notice and opportunity for public hearings
for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
(b) Specification for disposal sites.
Subject to subsection (c) of this section, each such disposal site shall be specified for each such
permit by the Secretary:
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(1) through the application of guidelines developed by the Administrator, in
conjunction with the Secretary, which guidelines shall be based upon criteria
comparable to the criteria applicable to the territorial seas, the contiguous zone,
and the ocean under section 403(c), and
(2) in any case where such guidelines under clause (1) alone would prohibit the
specification of a site, through the application additionally of the economic impact
of the site on navigation and anchorage.
C) Denial or restriction of use of defined areas as disposal sites.
The Administrator is authorized to prohibit. . . any defined area as a disposal site, and he is
authorized to deny or restrict the use of any defined area ... as a disposal site, whenever he
determines, . . . that the discharge of such materials into such area will have an unacceptable
adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning
and breeding areas), wildlife, or recreational areas. Before making such determination, the
Administrator shall consult with the Secretary. ..
(e) General permits on State, regional, or nationwide basis
(1) ... the Secretary may . . . issue general permits on a State, regional, or nationwide
basis for any category of activities involving discharges of dredged or fill material if the
Secretary determines that the activities in such category are similar in nature, will cause
only minimal adverse environmental effects when performed separately, and will have
only minimal cumulative adverse effects on the environment. Any general permit issued
under this subsection shall
(A) be based on the guidelines described in subsection (b)(l) of this section, and . . .
(2) No general permit issued . . . shall be for a period of more than five years after the
date of its issuance . . . and such general permit may be revoked or modified by the
Secretary if, after opportunity for public hearing, the Secretary determines that the
activities authorized by such general permit have an adverse impact on the environment or
such activities are more appropriately authorized by individual permits.
Relevant Regulations
Part 230, Section 404(b)(l) Guidelines for Specification of Disposal Sites for Dredged or Fill
Material
230.1 Purpose and policy.
(a) The purpose of these Guidelines is to restore and maintain the chemical, physical, and
biological integrity of waters of the United States through the control of discharges of
dredged or fill material.
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TERRESTRIAL: EPA PROGRAMMATIC REVIEW
(b) Congress has expressed a number of policies in the Clean Water Act. These Guidelines
are intended to be consistent with and to implement those policies.
(c) Fundamental to these Guidelines is the precept that dredged or fill material should not be
discharged into the aquatic ecosystem, unless it can be demonstrated that such a discharge
will not have an unacceptable adverse impact either individually or in combination with
known and/or probable impacts of other activities affecting the ecosystems of concern.
230.10 Restrictions on discharge.
Note: Because other laws may apply to particular discharges and because the Corps of Engineers
or State 404 agency may have additional procedural and substantive requirements, a discharge
complying with the requirement of these Guidelines will not automatically receive a permit.
Although all requirements in section 230.10 must be met, the compliance evaluation procedures
will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems
posed by specific dredged or fill material discharge activities.
(C) Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be
permitted which will cause or contribute to significant degradation of the waters of the United
States. Findings of significant degradation related to the proposed discharge shall be based upon
appropriate factual determinations, evaluations, and tests required by subparts B and G, after
consideration of subparts C through F, with special emphasis on the persistence and permanence
of the effects outlined in those subparts. Under these Guidelines, effects contributing to
significant degradation considered individually or collectively, include:
(2) Significantly adverse effects of the discharge of pollutants on life stages of
aquatic life and other wildlife dependent on aquatic ecosystems, including the
transfer, concentration, and spread of pollutants or their byproducts outside of the
disposal site through biological, physical, and chemical processes;
230.11 Factual determinations.
The permitting authority shall determine in writing the potential short-term or long-term effects of
a proposed discharge of dredged or fill material on the physical, chemical, and biological
components of the aquatic environment in light of subparts C through F. Such factual
determinations shall be used in section 230.12 in making findings of compliance or
non-compliance with the restrictions on discharge in section 230.10. The evaluation and testing
procedures described in section 230.60 and section 230.61 of subpart G shall be used as necessary
to make, and shall be described in, such determination. The determinations of effects of each
proposed discharge shall include the following:
(E) Aquatic ecosystem and organism determinations. Determine the nature and degree of
effect that the proposed discharge will have, both individually and cumulatively, on the
structure and function of the aquatic ecosystem and organisms. Consideration shall
be given to the effect at the proposed disposal site of potential changes in substrate
characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation,
fluctuation, and salinity, on the recolonization and existence of indigenous aquatic
Mountaintop Mining / Valley Fill DEIS B-70 2003
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TERRESTRIAL: EPA PROGRAMMATIC REVIEW
organisms or communities. Possible loss of environmental values (section 230.31), and
actions to minimize impacts (subpart H) shall be examined. Tests as described in section
230.61 (Evaluation and Testing), may be required to provide information on the effect of
the discharge material on communities or populations of organisms expected to be
exposed to it.
(E) Determination of cumulative effects on the aquatic ecosystem.
(1) Cumulative impacts are the changes in an aquatic ecosystem that are attributable to
the collective effect of a number of individual discharges of dredged or fill
material. Although the impact of a particular discharge may constitute a minor
change in itself, the cumulative effect of numerous such piecemeal changes can
result in a major impairment of the water resources and interfere with the
productivity and water quality of existing aquatic ecosystems.
(2) Cumulative effects attributable to the discharge of dredged or fill material in
waters of the United States should be predicted to the extent reasonable and
practical. The permitting authority shall collect information and solicit information
from other sources about the cumulative impacts on the aquatic ecosystem. This
information shall be documented and considered during the decision-making
process concerning the evaluation of individual permit applications, the issuance
of a General permit, and monitoring and enforcement of existing permits.
(H) Determination of secondary effects on the aquatic ecosystem.
(1) Secondary effects are effects on an aquatic ecosystem that are associated with a
discharge of dredged or fill materials, but do not result from the actual placement of the
dredged or fill material. Information about secondary effects on aquatic ecosystems shall
be considered prior to the time final section 404 action is taken by permitting authorities.
(2) Some examples of secondary effects on an aquatic ecosystem are fluctuating water
levels in an impoundment and downstream associated with the operation of a dam, septic
tank leaching and surface runoff from residential or commercial developments on fill, and
leachate and runoff from a sanitary landfill located in waters of the U.S. Activities to be
conducted on fast land created by the discharge of dredged or fill material in waters of the
United States may have secondary impacts within those waters which should be
considered in evaluating the impact of creating those fast lands.
Mountaintop Mining / Valley Fill DEIS B-71 2003
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APPENDIX B
TERRESTRIAL: EPA PROGRAMMATIC REVIEW
Agency Involved: Environmental Protection Agency
Domain: Terrestrial issues
Issue: What are the short and long-term effects of individual mountaintop mining operations and
associated valley fills on the terrestrial habitats and wildlife populations (with emphasis on
migratory birds and mammals) within and adjacent to the mined and filled areas?
Values identified: (1) large mammals, (2) birds, (3) Small mammals, reptiles, insects, and
amphibians, and (4) endangered and threatened species
Summary of Effects of Relevant Statutes, Regulations and Policies
Section 404(b)(l) Guidelines constitute the substantive environmental criteria used in evaluating
proposals to discharge dredged or fill material (such as valley fills) in waters of the U.S. under
Section 404 of the Clean Water Act. The Corps of Engineers and EPA develop and interpret
environmental criteria used in evaluating applications. EPA reviews and comments on individual
permit applications, and has authority to veto permit decisions under Section 404(c).
Under part 230.10 of the guidelines, no discharge of dredged or fill material shall be permitted
which will cause or contribute to significant degradation of the waters of the United States.
Significant degradation includes effects to wildlife, and loss offish and wildlife habitat.
Part 230.30 covers threatened and endangered species. Part 230.32 covers other wildlife and
important requirements for wildlife survival. These provisions could potentially be used to
protect terrestrial habitats and wildlife populations.
Applicable Statutory Provisions
Clean Water Act, Section 404: Permits for Dredged or Fill Material
(a) Discharge into navigable waters at specified disposal sites.
The Secretary [of the Army] may issue permits, after notice and opportunity for public hearings
for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
(b) Specification for disposal sites.
Subject to subsection (c) of this section, each such disposal site shall be specified for each such
permit by the Secretary:
(1) through the application of guidelines developed by the Administrator, in conjunction
with the Secretary, which guidelines shall be based upon criteria comparable to the criteria
applicable to the territorial seas, the contiguous zone, and the ocean under section 403(c),
and
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APPENDIX B
TERRESTRIAL: EPA PROGRAMMATIC REVIEW
(2) in any case where such guidelines under clause (1) alone would prohibit the
specification of a site, through the application additionally of the economic impact of the
site on navigation and anchorage.
C) Denial or restriction of use of defined areas as disposal sites.
The Administrator is authorized to prohibit. . . any defined area as a disposal site, and he is
authorized to deny or restrict the use of any defined area ... as a disposal site, whenever he
determines, . . . that the discharge of such materials into such area will have an unacceptable
adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning
and breeding areas), wildlife, or recreational areas. Before making such determination, the
Administrator shall consult with the Secretary. . .
(e) General permits on State, regional, or nationwide basis
(1) ... the Secretary may . . . issue general permits on a State, regional, or nationwide
basis for any category of activities involving discharges of dredged or fill material if the
Secretary determines that the activities in such category are similar in nature, will cause
only minimal adverse environmental effects when performed separately, and will have
only minimal cumulative adverse effects on the environment. Any general permit issued
under this subsection shall
(A) be based on the guidelines described in subsection (b)(l) of this section, and . . .
(2) No general permit issued . . . shall be for a period of more than five years after the
date of its issuance . . . and such general permit may be revoked or modified by the
Secretary if, after opportunity for public hearing, the Secretary determines that the
activities authorized by such general permit have an adverse impact on the environment or
such activities are more appropriately authorized by individual permits.
Part 230 Section 404(b)(l) Guidelines for Specification of Disposal Sites for Dredged or Fill
Material
230.1 Purpose and policy.
(a) The purpose of these Guidelines is to restore and maintain the chemical, physical, and
biological integrity of waters of the United States through the control of discharges of
dredged or fill material.
(b) Congress has expressed a number of policies in the Clean Water Act. These Guidelines
are intended to be consistent with and to implement those policies.
(c) Fundamental to these Guidelines is the precept that dredged or fill material should not
be discharged into the aquatic ecosystem, unless it can be demonstrated that such a
discharge will not have an unacceptable adverse impact either individually or in
combination with known and/or probable impacts of other activities affecting the
ecosystems of concern.
Mountaintop Mining / Valley Fill DEIS B-73 2003
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TERRESTRIAL: EPA PROGRAMMATIC REVIEW
230.10 Restrictions on discharge.
Note: Because other laws may apply to particular discharges and because the Corps of
Engineers or State 404 agency may have additional procedural and substantive requirements, a
discharge complying with the requirement of these Guidelines will not automatically receive a
permit.
Although all requirements in section 230.10 must be met, the compliance evaluation procedures
will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems
posed by specific dredged or fill material discharge activities.
C) Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be
permitted which will cause or contribute to significant degradation of the waters of the United
States. Findings of significant degradation related to the proposed discharge shall be based upon
appropriate factual determinations, evaluations, and tests required by subparts B and G, after
consideration of subparts C through F, with special emphasis on the persistence and permanence
of the effects outlined in those subparts. Under these Guidelines, effects contributing to
significant degradation considered individually or collectively, include:
(1) Significantly adverse effects of the discharge of pollutants on human health or welfare,
including but not limited to effects on municipal water supplies, plankton, fish, shellfish,
wildlife, and special aquatic sites.
(2) Significantly adverse effects of the discharge of pollutants on life stages of aquatic life
and other wildlife dependent on aquatic ecosystems, including the transfer,
concentration, and spread of pollutants or their byproducts outside of the disposal site
through biological, physical, and chemical processes;
(3) Significantly adverse effects of the discharge of pollutants on aquatic ecosystem
diversity, productivity, and stability. Such effects may include, but are not limited to, loss
offish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients,
purify water, or reduce wave energy; or
230.30 Threatened and endangered species.
(a) An endangered species is a plant or animal in danger of extinction throughout all or a
significant portion of its range. A threatened species is one in danger of becoming an endangered
species in the foreseeable future throughout all or a significant portion of its range. Listings of
threatened and endangered species as well as critical habitats are maintained by some individual
States and by the U.S. Fish and Wildlife Service of the Department of the Interior (codified
annually at 50 CFR 17.11). The Department of Commerce has authority over some threatened and
endangered marine mammals, fish and reptiles.
(b) Possible loss of values: The major potential impacts on threatened or endangered species from
the discharge of dredged or fill material include:
(1) Covering or otherwise directly killing species;
Mountaintop Mining / Valley Fill DEIS B-74 2003
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TERRESTRIAL: EPA PROGRAMMATIC REVIEW
(2) The impairment or destruction of habitat to which these species are limited. Elements
of the aquatic habitat which are particularly crucial to the continued survival of some
threatened or endangered species include adequate good quality water, spawning and
maturation areas, nesting areas, protective cover, adequate and reliable food supply, and
resting areas for migratory species. Each of these elements can be adversely affected by
changes in either the normal water conditions for clarity, chemical content, nutrient
balance, dissolved oxygen, pH, temperature, salinity, current patterns, circulation and
fluctuation, or the physical removal of habitat; and
(3) Facilitating incompatible activities.
(c) Where consultation with the Secretary of the Interior occurs under section 7 of the Endangered
Species Act, the conclusions of the Secretary concerning the impact(s) of the discharge on
threatened and endangered species and their habitat shall be considered final.
230.32 Other Wildlife.
(a) Wildlife associated with aquatic ecosystems are resident and transient mammals, birds,
reptiles, and amphibians.
(b) Possible loss of values: The discharge of dredged or fill material can result in the loss or
change of breeding and nesting areas, escape cover, travel corridors, and preferred food sources
for resident and transient wildlife species associated with the aquatic ecosystem. These adverse
impacts upon wildlife habitat may result from changes in water levels, water flow and circulation,
salinity, chemical content, and substrate characteristics and elevation. Increased water turbidity
can adversely affect wildlife species which rely upon sight to feed, and disrupt the respiration and
feeding of certain aquatic wildlife and food chain organisms. The availability of contaminants
from the discharge of dredged or fill material may lead to the bioaccumulation of such
contaminants in wildlife. Changes in such physical and chemical factors of the environment may
favor the introduction of undesirable plant and animal species at the expense of resident species
and communities. In some aquatic environments lowering plant and animal species diversity may
disrupt the normal functions of the ecosystem and lead to reductions in overall biological
productivity.
Mountaintop Mining / Valley Fill DEIS B-75 2003
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APPENDIX B
TERRESTRIAL: EPA PROGRAMMATIC REVIEW
Agency Involved: Environmental Protection Agency
Domain: Terrestrial Issues
Issue: What are the short and long-term effects of individual mountaintop mining operations and
associated valley fills on the visual landscape (geomorphology) within and adjacent to the mined
and filled areas?
Values identified: (1) Scenic or Significant Land Forms, and Overall Geomorphological Features
Summary of Effects of Relevant Statutes, Regulations and Policies
Section 404(b)(l) Guidelines constitute the substantive environmental criteria used in
evaluating proposals to discharge dredged or fill material (including valley fills) into waters of the
U.S. regulated under Section 404 of the Clean Water Act. The Corps of Engineers, as the
permitting authority, and EPA develop and interpret environmental criteria used in evaluating
applications. EPA reviews and comments on individual permit applications, and has authority to
veto proposed sites for disposal of dredged or fill material under Section 404(c).
Under part 230.10 of the guidelines, no discharge of dredged or fill material shall be
permitted which will cause or contribute to significant degradation of the waters of the United
States. Under the guidelines, effects contributing to significant degradation include those
discharges of pollutants that adversely effect aesthetic values. It is possible that aesthetic values
could include visual resources.
Applicable Statutory Provisions
Clean Water Act, Section 404: Permits for Dredged and Fill Material
(a) Discharge into navigable waters at specified disposal sites.
The Secretary [of the Army] may issue permits, after notice and opportunity for public hearings
for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
(b) Specification for disposal sites.
Subject to subsection (c) of this section, each such disposal site shall be specified for each such
permit by the Secretary:
(1) through the application of guidelines developed by the Administrator, in conjunction
with the Secretary, which guidelines shall be based upon criteria comparable to the criteria
applicable to the territorial seas, the contiguous zone, and the ocean under section 403(c),
and
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APPENDIX B
TERRESTRIAL: EPA PROGRAMMATIC REVIEW
(2) in any case where such guidelines under clause (1) alone would prohibit the
specification of a site, through the application additionally of the economic impact of the
site on navigation and anchorage.
(c) Denial or restriction of use of defined areas as disposal sites.
The Administrator is authorized to prohibit. . . any defined area as a disposal site, and he is
authorized to deny or restrict the use of any defined area ... as a disposal site, whenever he
determines, . . . that the discharge of such materials into such area will have an unacceptable
adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning
and breeding areas), wildlife, or recreational areas. Before making such determination, the
Administrator shall consult with the Secretary. . .
(e) General permits on State, regional, or nationwide basis
(1) ... the Secretary may . . . issue general permits on a State, regional, or nationwide
basis for any category of activities involving discharges of dredged or fill material if the
Secretary determines that the activities in such category are similar in nature, will cause
only minimal adverse environmental effects when performed separately, and will have
only minimal cumulative adverse effects on the environment. Any general permit issued
under this subsection shall
(A) be based on the guidelines described in subsection (b)(l) of this section, and . . .
(2) No general permit issued . . . shall be for a period of more than five years after the
date of its issuance . . . and such general permit may be revoked or modified by the
Secretary if, after opportunity for public hearing, the Secretary determines that the
activities authorized by such general permit have an adverse impact on the environment or
such activities are more appropriately authorized by individual permits.
Relevant Regulations
Part 230_section 404(b)(l) Guidelines for Specification of Disposal Sites for Dredged or Fill
Material
230.1 Purpose and policy.
(a) The purpose of these Guidelines is to restore and maintain the chemical, physical, and
biological integrity of waters of the United States through the control of discharges of
dredged or fill material.
(b) Congress has expressed a number of policies in the Clean Water Act. These Guidelines
are intended to be consistent with and to implement those policies.
(c) Fundamental to these Guidelines is the precept that dredged or fill material should not
be discharged into the aquatic ecosystem, unless it can be demonstrated that such a
discharge will not have an unacceptable adverse impact either individually or in
Mountaintop Mining / Valley Fill DEIS B-77 2003
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APPENDIX B
TERRESTRIAL: EPA PROGRAMMATIC REVIEW
combination with known and/or probable impacts of other activities affecting the
ecosystems of concern.
230.10 Restrictions on discharge.
Note: Because other laws may apply to particular discharges and because the Corps of
Engineers or State 404 agency may have additional procedural and substantive requirements, a
discharge complying with the requirement of these Guidelines will not automatically receive a
permit.
Although all requirements in section 230.10 must be met, the compliance evaluation procedures
will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems
posed by specific dredged or fill material discharge activities.
(c) Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be
permitted which will cause or contribute to significant degradation of the waters of the United
States. Findings of significant degradation related to the proposed discharge shall be based upon
appropriate factual determinations, evaluations, and tests required by subparts B and G, after
consideration of subparts C through F, with special emphasis on the persistence and permanence
of the effects outlined in those subparts. Under these Guidelines, effects contributing to
significant degradation considered individually or collectively, include:
(3) Significantly adverse effects of the discharge of pollutants on aquatic ecosystem
diversity, productivity, and stability. Such effects may include, but are not limited to, loss
offish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients,
purify water, or reduce wave energy; or
(4) Significantly adverse effects of discharge of pollutants on recreational, aesthetic, and
economic values.
Mountaintop Mining / Valley Fill DEIS B-78 2003
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APPENDIX B
TERRESTRIAL: OSM PROGRAMMATIC REVIEW
Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Terrestrial
Issue: How can our regulations, policies, guidance mitigate disturbance to forests and other
ecological resources?
Value(s) Identified: Ecological resources include forest health, connectivity, function, and
natural species diversity.
Summary of Effects of Relevant Statutes, Regulations, and Policies
SMCRA provides for the protection of forests by comprehensive and detailed permitting
requirements and performance standards.
Applicable Statutory Provisions
General Provisions
SMCRA section 101. The Congress finds and declares that
(c) many surface mining operations result in disturbances of surface areas that burden and
adversely affect commerce and the public welfare by destroying or diminishing the utility
of land for commercial, industrial, residential, recreational, agricultural, and forestry
purposes,, . . . ;
(d) the expansion of coal mining to meet the Nation's energy needs makes even more
urgent the establishment of appropriate standards to minimize damage to the environment
and to productivity of the soil and to protect the health and safety of the public;
(e) surface mining and reclamation technology are now developed so that effective and
reasonable regulation of surface coal mining operations by the States and by the Federal
Government in accordance with the requirements of this Act is an appropriate and
necessary means to minimize so far as practicable the adverse social, economic, and
environmental effects of such mining operations;
Mountaintop Mining / Valley Fill DEIS B-79 2003
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APPENDIX B
TERRESTRIAL: OSM PROGRAMMATIC REVIEW
Reclamation Plan Requirements
SMCRA section 508(a)
Each reclamation plan submitted as part of a permit application pursuant to any approved State
program or a Federal program under the provisions of this Act shall include, in the degree of
detail necessary to demonstrate that reclamation required by the State or Federal program can be
accomplished, a statement of:
(1) the identification of the lands subject to surface coal mining operations over the
estimated life of those operations and the size, sequence, and timing of the
subareas for which it is anticipated that individual permits for mining will be
sought;
(2) the condition of the land to be covered by the permit prior to any mining
including:
(A) the uses existing at the time of the application, and if the land has a
history of previous mining, the uses which preceded any mining; and
(B) the capability of the land prior to any mining to support a variety of
uses giving consideration to soil and foundation characteristics,
topography, and vegetative cover, and, if applicable, a soil survey prepared
pursuant to section 507(b)(16); and
(C) the productivity of the land prior to mining, including appropriate
classification as prime farm lands, as well as the average yield of food,
fiber, forage, or wood products from such lands obtained under high levels
of management;
(3) the use which is proposed to be made of the land following reclamation,
including a discussion of the utility and capacity of the reclaimed land to support a
variety of alternative uses and the relationship of such use to existing land use
policies and plans, and the comments of any owner of the surface, State and local
governments or agencies thereof which would have to initiate, implement, approve
or authorize the proposed use of the land following reclamation;
(4) a detailed description of how the proposed post mining land use is to be
achieved and the necessary support activities which may be needed to achieve the
proposed land use;
(5) the engineering techniques proposed to be used in mining and reclamation and
a description of the major equipment; a plan for the control of surface water
drainage and of water accumulation; a plan, where appropriate, for backfilling, soil
stabilization, and compacting, grading, and appropriate revegetation; a plan for soil
reconstruction, replacement, and stabilization, pursuant to the performance
standards in section 515(b)(7)(A), (B), (C), and (D), for those food, forage, and
forest lands identified in sections 515(b)(7); an estimate of the cost per acre of the
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APPENDIX B
TERRESTRIAL: OSM PROGRAMMATIC REVIEW
reclamation, including a statement as to how the permittee plans to comply with
each of the requirements set out in section 515;
(6) the consideration which has been given to maximize the utilization and
conservation of the solid fuel resource being recovered so that reaffecting the land
in the future can be minimized;
(7) a detailed estimated timetable for the accomplishment of each major step in the
reclamation plan;
Performance Standards
SMCRA section 515(b)
General performance standards shall be applicable to all surface coal mining and reclamation
operations and shall require the operation as a minimum to —
(1) conduct surface coal mining operations so as to maximize the utilization and
conservation of the solid fuel resource being recovered so that reaffecting the land
in the future through surface coal mining can be minimized;
(2) restore the land affected to a condition capable of supporting the uses which it
was capable of supporting prior to any mining, or higher or better uses of which
there is reasonable likelihood, so long as such use or uses do not present any actual
or probable hazard to public health or safety or pose any actual or probable threat
of water diminution or pollution, and the permit applicants' declared proposed land
use following reclamation is not deemed to be impractical or unreasonable,
inconsistent with applicable land use policies and plans, involves unreasonable
delay in implementation, or violates Federal, State, or local law;
(5) remove the topsoil from the land in a separate layer, replace it on the backfill
area, or if not utilized immediately, segregate it in a separate pile from other spoil
and when the topsoil is not replaced on a backfill area within a time short enough
to avoid deterioration of the topsoil, maintain a successful cover by quick growing
plant or other means thereafter so that the topsoil is preserved from wind and water
erosion, remains free of any contamination by other acid or toxic material, and is
in a usable condition for sustaining vegetation when restored during reclamation,
except if topsoil is of insufficient quantity or of poor quality for sustaining
vegetation, or if other strata can be shown to be more suitable for vegetation
requirements, then the operator shall remove, segregate, and preserve in a like
manner such other strata which is best able to support vegetation;
(6) restore the topsoil or the best available subsoil which is best able to support
vegetation;
Mountaintop Mining / Valley Fill DEIS B-81 2003
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APPENDIX B
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Applicable Regulations
Definitions
Title 30 Code of Federal Regulations Section 701.5
Land use means specific uses or management-related activities, rather than the vegetation or
cover of the land. Land uses may be identified in combination when joint or seasonal uses occur
and may include land used for support facilities that are an integral part of the use. Changes of
land use from one of the following categories to another shall be considered as a change to an
alternative land use which is subject to approval by the regulatory authority.
(a) Cropland. Land used for the production of adapted crops for harvest, alone or in
rotation with grasses and legumes, that include row crops, small grain crops, hay crops,
nursery crops, orchard crops, and other similar crops.
(b) Pastureland or land occasionally cut for hay. Land used primarily for the long-term
production of adapted, domesticated forage plants to be grazed by livestock or
occasionally cut and cured for livestock feed.
(c) Grazingland. Land used for grasslands and forest lands where the indigenous
vegetation is actively managed for grazing, browsing, or occasional hay production.
(d) Forestry. Land used or managed for the long-term production of wood, wood fiber, or
wood-derived products.
(e) Residential. Land used for single- and multiple-family housing, mobile home parks, or
other residential lodgings.
(f) Industrial/Commercial. Land used for— (1) Extraction or transformation of materials
for fabrication of products, wholesaling of products, or long-term storage of products.
This includes all heavy and light manufacturing facilities. (2) Retail or trade of goods or
services, including hotels, motels, stores, restaurants, and other commercial
establishments.
(g) Recreation. Land used for public or private leisure-time activities, including developed
recreation facilities such as parks, camps, and amusement areas, as well as areas for less
intensive uses such as hiking, canoeing, and other undeveloped recreational uses.
(h) Fish and wildlife habitat. Land dedicated wholly or partially to the production,
protection, or management of species offish or wildlife.
(i) Developed water resources. Land used for storing water for beneficial uses, such as
stock ponds, irrigation, fire protection, flood control, and water supply.
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(j) Undeveloped land or no current use or land management. Land that is undeveloped or,
if previously developed, land that has been allowed to return naturally to an undeveloped
state or has been allowed to return to forest through natural succession.
Reference area means a land unit maintained under appropriate management for the purpose of
measuring vegetation ground cover, productivity, and plant species diversity that are produced
naturally or by crop production methods approved by the regulatory authority Reference areas
must be representative of geology, soil, slope, and vegetation in the permit area.
Title 30 Code of Federal Regulations Section 761.5
Significant forest cover means an existing plant community consisting predominantly of trees and
other woody vegetation.
Application Information - Vegetation
Title 30 Code of Federal Regulations Section 779.19
(a) The permit application shall, if required by the regulatory authority, contain a map that
delineates existing vegetative types and a description of the plant communities within the
proposed permit area and within any proposed reference area. This description shall
include information adequate to predict the potential for reestablishing vegetation.
(b) When a map or aerial photograph is required, sufficient adjacent areas shall be
included to allow evaluation of vegetation as important habitat for fish and wildlife for
those species offish and wildlife identified under 30CFR 780.16.
Maps: General requirements
Title 30 Code of Federal Regulations Section 779.24
The permit application shall include maps showing . . . (f) The location and boundaries of any
proposed reference areas for determining the success of revegetation;
Fish and Wildlife Information Protection and Enhancement Plan
Title 30 Code of Federal Regulations Section 780.16(b)
Each application shall include a description of how, to the extent possible using the best
technology currently available, the operator will minimize disturbances and adverse impacts on
fish and wildlife and related environmental values, including compliance with the Endangered
Species Act, during the surface coal mining and reclamation operations and how enhancement of
these resources will be achieved where practicable. This description shall -
(1) Be consistent with the requirements of Sec. 816.97 of this chapter;
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(2) Apply, at a minimum, to species and habitats identified under paragraph(a) of this
section; and
(3) Include — (i) Protective measures that will be used during the active mining phase of
operation. Such measures may include the establishment of buffer zones, the selective
location and special design of haul roads and power lines, and the monitoring of surface
water quality and quantity; and (ii) Enhancement measures that will be used during the
reclamation and post mining phase of operation to develop aquatic and terrestrial habitat.
Such measures may include restoration of streams and other wetlands, retention of ponds
and impoundments, establishment of vegetation for wildlife food and cover, and the
replacement of perches and nest boxes. Where the plan does not include enhancement
measures, a statement shall be given explaining why enhancement is not practicable.
Reclamation plan: General requirements
Title 30 Code of Federal Regulations Section 780.18(b)
Each plan shall contain the following information for the proposed permit area-
(1) A detailed timetable for the completion of each major step in the reclamation plan;
(2) A detailed estimate of the cost of reclamation of the proposed operations required to be
covered by a performance bond under Subchapter J of this Chapter, with supporting
calculations for the estimates;
(3) A plan for backfilling, soil stabilization, compacting, and grading, with contour maps
or cross Sections that show anticipated final surface configuration of the proposed permit
area, in accordance with Sections816.102-816.107 of this Chapter;
(4) A plan for removal, storage, and redistribution of topsoil, subsoil, and other material to
meet the requirements of Section 816.22 of this Chapter. A demonstration of the
suitability of topsoil substitutes or supplements under Section 816.22(b) of this Chapter
shall be based upon analysis of the thickness of soil horizons, total depth, texture, percent
coarse fragments, pH, and areal extent of the different kinds of soils. The regulatory
authority may require other chemical and physical analyses, field-site trials, or greenhouse
tests if determined to be necessary or desirable to demonstrate the suitability of the topsoil
substitutes or supplements.
(5) A plan for revegetation as required in Sections 816.111-816.116 of the Chapter,
including, but not limited to, descriptions of the— (i) Schedule of revegetation; (ii) Species
and amounts per acre of seeds and seedlings to be used; (iii) Methods to be used in
planting and seeding; (iv) Mulching techniques; (v) Irrigation, if appropriate, and pest and
disease control measures, if any; and (vi) Measures proposed to be used to determine the
success of revegetation as required in Section 816.116 of this Chapter, (vii) A soil testing
plan for evaluation of the results of topsoil handling and reclamation procedures related to
revegetation.
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TERRESTRIAL: OSM PROGRAMMATIC REVIEW
Performance Bonds
Title 30 Code of Federal Regulations Section 800.13(a)(l)
Performance bond liability shall be for the duration of the surface coal mining and reclamation
operation and for a period which is coincident with the operator's period of extended
responsibility for successful revegetation provided in Section 816.116 or 817.116 of this Chapter
or until achievement of the reclamation requirements of the Act, regulatory programs, and permit,
whichever is later.
Performance Standards - General
Title 30 Code of Federal Regulations Section 810.2
The objective of this Subchapter is to ensure that coal exploration and surface coal mining and
reclamation operations are conducted in a manner that is compatible with the environmental,
social, and esthetic needs of the Nation. Accordingly, the performance standards and design
requirements in this Subchapter will provide for-
(a) Protection of the health, safety, and general welfare of mine workers and the public;
(b) Maximum use and conservation of the solid fuel resource being recovered so that
reaffecting the land through future surface coal mining operations can be minimized;
(c) Prompt reclamation of all affected areas to conditions that are capable of supporting
the premining land uses or higher or better land uses;
(d) Reclamation of land affected by surface coal mining operations as contemporaneously
as practicable with mining operations;
(e) Minimizing, to the extent possible using the best technology currently available,
disturbances and adverse impacts on fish, wildlife, and other related environmental values,
and enhancement of such resources where practicable;
(f) Revegetation which achieves a prompt vegetative cover and recovery of productivity
levels compatible with approved land uses;
Performance Standards - Topsoil and Subsoil
Title 30 Code of Federal Regulations Section 816.22
(a) Removal.
(l)(i) All topsoil shall be removed as a separate layer from the area to be disturbed, and
segregated, (ii) Where the topsoil is of insufficient quantity or poor quality for sustaining
vegetation, the materials approved by the regulatory authority in accordance with
Paragraph (b) of this Section shall be removed as a separate layer from the area to be
disturbed, and segregated.
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(2) If topsoil is less than 6 inches thick, the operator may remove the topsoil and the
unconsolidated materials immediately below the topsoil and treat the mixture as topsoil.
(3) The regulatory authority may choose not to require the removal of topsoil for minor
disturbances which— (i) Occur at the site of small structures, such as power poles, signs,
or fence lines; or (ii) Will not destroy the existing vegetation and will not cause erosion.
(4) Timing. All material to be removed under this Section shall be removed after the
vegetative cover that would interfere with its salvage is cleared from the area to be
disturbed, but before any drilling, blasting, mining, or other surface disturbance takes
place.
(b) Substitutes and supplements.
Selected overburden materials may be substituted for, or used as a supplement to topsoil if the
operator demonstrates to the regulatory authority that the resulting soil medium is equal to, or
more suitable for sustaining vegetation than, the existing topsoil, and the resulting soil medium is
the best available in the permit area to support revegetation.
(c) Storage.
(1) Materials removed under Paragraph (a) of this Section shall be segregated and
stockpiled when it is impractical to redistribute such materials promptly on regraded areas.
(2) Stockpiled materials shall— (i) Be selectively placed on a stable site within the permit
area; (ii) Be protected from contaminants and unnecessary compaction that would
interfere with revegetation; (iii) Be protected from wind and water erosion through prompt
establishment and maintenance of an effective, quick growing vegetative cover or through
other measures approved by the regulatory authority; and (iv) Not be moved until required
for redistribution unless approved by the regulatory authority.
(3) Where long-term surface disturbances will result from facilities such as support
facilities and preparation plants and where stockpiling of materials removed under
Paragraph (a)(l) of this Section would be detrimental to the quality or quantity of those
materials, the regulatory authority may approve the temporary distribution of the soil
materials so removed to an approved site within the permit area to enhance the current use
of that site until needed for later reclamation, provided that— (i) Such action will not
permanently diminish the capability of the topsoil of the host site; and (ii) The material
will be retained in a condition more suitable for redistribution than if stockpiled.
(d) Redistribution.
(1) Topsoil materials removed under Paragraph (a) of this Section shall be redistributed in
a manner that— (i) Achieves an approximately uniform, stable thickness consistent with
the approved post mining land use, contours, and surface-water drainage systems; (ii)
Prevents excess compaction of the materials; and (iii) Protects the materials from wind
and water erosion before and after seeding and planting.
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(2) Before redistribution of the material removed under Paragraph (a) of this Section, the
regraded land shall be treated if necessary to reduce potential slippage of the redistributed
material and to promote root penetration. If no harm will be caused to the redistributed
material and reestablished vegetation, such treatment may be conducted after such
material is replaced.
(3) The regulatory authority may choose not to require the redistribution of topsoil or
topsoil substitutes on the approved post mining embankments of permanent
impoundments or of roads if it determines that— (i) Placement of topsoil or topsoil
substitutes on such embankments is inconsistent with the requirement to use the best
technology currently available to prevent sedimentation, and (ii) Such embankments will
be otherwise stabilized.
(4) Nutrients and soil amendments. Nutrients and soil amendments shall be applied to the
initially redistributed material when necessary to establish the vegetative cover.
(e) Subsoil segregation. The regulatory authority may require that the B horizon, C horizon, or
other underlying strata, or portions thereof, be removed and segregated, stockpiled, and
redistributed as subsoil in accordance with the requirements of Paragraphs (c) and (d) of this
Section if it finds that such subsoil layers are necessary to comply with the revegetation
requirements of Sections 816.111, 816.113, 816.114, and 816.116 of this Chapter.
Title 30 Code of Federal Regulations Section 816.41(f)(l)
Drainage from acid- and toxic-forming materials into surface water and ground water shall be
avoided by— (i) Identifying and burying and/or treating, when necessary, materials which may
adversely affect water quality, or be detrimental to vegetation or to public health safety if not
buried and/or treated,
Title 30 Code of Federal Regulations Section 816.45
(a) Appropriate sediment control measures shall be designed, constructed, and maintained using
the best technology currently available to:
(1) Prevent, to the extent possible, additional contributions of sediment to stream flow or
to runoff outside the permit area,
(2) Meet the more stringent of applicable State or Federal effluent limitations, (3)
Minimize erosion to the extent possible.
(b) Sediment control measures include practices carried out within and adjacent to the disturbed
area. The sedimentation storage capacity of practices in and downstream from the disturbed area
shall reflect the degree to which successful mining and reclamation techniques are applied to
reduce erosion and control sediment. Sediment control measures consist of the utilization of
proper mining and reclamation methods and sediment control practices, singly or in combination.
Sediment control methods include but are not limited to-
Mountaintop Mining / Valley Fill DEIS B-87 2003
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TERRESTRIAL: OSM PROGRAMMATIC REVIEW
(1) Disturbing the smallest practicable area at any one time during the mining operation
through progressive backfilling, grading, and prompt revegetation as required in Section
Title 30 Code of Federal Regulations Section 816.71(a)
General. Excess spoil shall be placed in designated disposal areas within the permit area, in a
controlled manner to ... (3) Ensure that the final fill is suitable for reclamation and revegetation
compatible with the natural surroundings and the approved post mining land use.
Title 30 Code of Federal Regulations Section 816.100
Reclamation efforts, including but not limited to backfilling, grading, topsoil replacement, and
revegetation, on all land that is disturbed by surface mining activities shall occur as
contemporaneously as practicable with mining operations, except when such mining operations
are conducted in accordance with a variance for concurrent surface and underground mining
activities issued under Section 785.18 of this Chapter.
Title 30 Code of Federal Regulations Section 816.111
(a) The permittee shall establish on regraded areas and on all other disturbed areas except water
areas and surface areas of roads that are approved as part of the post mining land use, a vegetative
cover that is in accordance with the approved permit and reclamation plan and that is
(1) Diverse, effective, and permanent;
(2) Comprised of species native to the area, or of introduced species where desirable and
necessary to achieve the approved post mining land use and approved by the regulatory
authority;
(3) At least equal in extent of cover to the natural vegetation of the area; and
(4) Capable of stabilizing the soil surface from erosion.
(b) The reestablished plant species shall-
(1) Be compatible with the approved post mining land use;
(2) Have the same seasonal characteristics of growth as the original vegetation;
(3) Be capable of self-regeneration and plant succession;
(4) Be compatible with the plant and animal species of the area; and
(5) Meet the requirements of applicable State and Federal seed, poisonous and noxious
plant, and introduced species laws or regulations.
Mountaintop Mining / Valley Fill DEIS B-88 2003
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(c) The regulatory authority may grant exception to the requirements of Paragraphs (b)(2) and
(b)(3) of this Section when the species are necessary to achieve a quick-growing, temporary,
stabilizing cover, and measures to establish permanent vegetation are included in the approved
permit and reclamation plan.
(d) When the regulatory authority approves a cropland post mining land use, the regulatory
authority may grant exception to the requirements of Paragraphs(a)(l), (a)(3), (b)(2), and (b)(3) of
this Section. The requirements of Part 823 of this Chapter apply to areas identified as prime
farmland.
Title 30 Code of Federal Regulations Section 816.113
Disturbed areas shall be planted during the first normal period for favorable planting conditions
after replacement of the plant-growth medium. The normal period for favorable planting is that
planting time generally accepted locally for the type of plant materials selected.
Title 30 Code of Federal Regulations Section 816.114
Suitable mulch and other soil stabilizing practices shall be used on all areas that have been
regraded and covered by topsoil or topsoil substitutes. The regulatory authority may waive this
requirement if seasonal, soil, or slope factors result in a condition where mulch and other soil
stabilizing practices are not necessary to control erosion and to promptly establish an effective
vegetative cover.
Title 30 Code of Federal Regulations Section 816.116
(a) Success of revegetation shall be judged on the effectiveness of the vegetation for the approved
post mining land use, the extent of cover compared to the cover occurring in natural vegetation of
the area, and the general requirements of Section 816.111.
(1) Standards for success and statistically valid sampling techniques for measuring success
shall be selected by the regulatory authority and included in an approved regulatory
program.
(2) Standards for success shall include criteria representative of unmined lands in the area
being reclaimed to evaluate the appropriate vegetation parameters of ground cover,
production, or stocking. Ground cover, production, or stocking shall be considered equal
to the approved success standard when they are not less than 90 percent of the success
standard. The sampling techniques for measuring success shall use a 90-percent statistical
confidence interval (i.e., one-sided test with a 0.10 alpha error).
(b) Standards for success shall be applied in accordance with the approved post mining land use
and, at a minimum, the following conditions:
(1) For areas developed for use as grazing land or pasture land, the groundcover and
production of living plants on the revegetated area shall be at least equal to that of a
reference area or such other success standards approved by the regulatory authority.
Mountaintop Mining / Valley Fill DEIS B-89 2003
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TERRESTRIAL: OSM PROGRAMMATIC REVIEW
(2) For areas developed for use as cropland, crop production on the revegetated area shall
be at least equal to that of a reference area or such other success standards approved by the
regulatory authority.
(3) For areas to be developed for fish and wildlife habitat, recreation, shelter belts, or
forest products, success of vegetation shall be determined on the basis of tree and shrub
stocking and vegetative ground cover. Such parameters are described as follows:
(i) Minimum stocking and planting arrangements shall be specified by the
regulatory authority on the basis of local and regional conditions and after
consultation with and approval by the State agencies responsible for the
administration of forestry and wildlife programs. Consultation and approval may
occur on either a programwide or a permit-specific basis.
(ii) Trees and shrubs that will be used in determining the success of stocking and
the adequacy of the plant arrangement shall have utility for the approved post
mining land use. Trees and shrubs counted in determining such success shall be
healthy and have been in place for not less than two growing seasons. At the time
of bond release, at least 80 percent of the trees andshrubs used to determine such
success shall have been in place for 60 percent of the applicable minimum period
of responsibility.
(iii) Vegetative ground cover shall not be less than that required to achieve the
approved post mining land use.
(4) For areas to be developed for industrial, commercial, or residential use less than 2
years after regrading is completed, the vegetative groundcover shall not be less than that
required to control erosion.
(5) For areas previously disturbed by mining that were not reclaimed to the requirements
of this Subchapter and that are remined or otherwise redisturbed by surface coal mining
operations, as a minimum, the vegetative ground cover shall be not less than the ground
cover existing before redisturbance and shall be adequate to control erosion.
(c)(l) The period of extended responsibility for successful revegetation shall begin after the last
year of augmented seeding, fertilizing, irrigation, or other work, excluding husbandry practices
that are approved by the regulatory authority in accordance with Paragraph (c)(4) of this Section.
(2) In areas of more than 26.0 inches of annual average precipitation, the period of
responsibility shall continue for a period of not less than: (i) Five full years, except as
provided in paragraph (c)(2)(ii) of this section. The vegetation parameters identified in
paragraph (b) of this section for grazing land, pasture land, or cropland shall equal or
exceed the approved success standard during the growing season of any 2 years of the
responsibility period, except the first year. Areas approved for the other uses identified in
paragraph (b) of this section shall equal or exceed the applicable success standard during
the growing season of the last year of the responsibility period, (ii) Two full years for
lands eligible for remining included in permits issued before September 30, 2004, or any
renewals thereof. To the extent that the success standards are established by paragraph
Mountaintop Mining /Valley Fill DEIS B-90 2003
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(b)(5) of this section, the lands shall equal or exceed the standards during the growing
season of the last year of the responsibility period.
(3) In areas of 26.0 inches or less average annual precipitation, the period of responsibility
shall continue for a period of not less than:
(i) Ten full years, except as provided in paragraph (c)(3) (ii) below. Vegetation
parameters identified in paragraph (b) of this section shall equal or exceed the
approved success standard for at least the last two consecutive years of the
responsibility period.
(ii) Five full years for lands eligible for remining included in permits issued before
September 30, 2004, or any renewals thereof. To the extent that the success
standards are established by paragraph (b)(5) of this section, the lands shall equal
or exceed the standards during the growing seasons of the last two consecutive
years of the responsibility period.
(4) The regulatory authority may approve selective husbandry practices, excluding
augmented seeding, fertilization, or irrigation, provided it obtains prior approval from the
Director in accordance with Sec. 732.17 of this chapter that the practices are normal
husbandry practices, without extending the period of responsibility for revegetation
success and bond liability, if such practices can be expected to continue as part of the post
mining land use or if discontinuance of the practices after the liability period expires will
not reduce the probability of permanent revegetation success. Approved practices shall be
normal husbandry practices within the region for unmined lands having land uses similar
to the approved post mining land use of the disturbed area, including such practices as
disease, pest, and vermin control; and any pruning, reseeding, and transplanting
specifically necessitated by such actions.
Mountaintop Mining / Valley Fill DEIS B-91 2003
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TERRESTRIAL: OSM PROGRAMMATIC REVIEW
Title 30 Code of Federal Regulations Section 816.200
The following interpretations or rules promulgated in Part 816 of this Chapter have been adopted
by the Office of Surface Mining Reclamation and Enforcement. . . (c) Interpretation of Section
816.22(e) Topsoil removal
(1) Results of physical and chemical analyses of overburden and topsoil to demonstrate
that the resulting soil medium is equal to or more suitable for sustaining revegetation than
the available topsoil, provided that trials, and tests are certified by an approved laboratory
in accordance with Section 816.22(e)(l)(ii), may be obtained from any one or a
combination of the following sources: (i) U. S. Department of Agriculture Soil
Conservation Service published data based on established soil series; (ii) U. S.
Department of Agriculture Soil Conservation Service Technical Guides; (iii) State
agriculture agency, university, Tennessee Valley Authority, Bureau of Land Management
or U. S. Department of Agriculture Forest Service published data based on soil series
properties and behavior, or (iv) Results of physical and chemical analyses, field site trials,
or greenhouse tests of the topsoil and overburden materials (soil series) from the permit
area.
(2) If the operator demonstrates through soil survey or other data that the topsoil and
unconsolidated material are insufficient and substitute materials will be used, only the
substitute materials must be analyzed in accordance with Section 816.22(e)(l)(i).
Applicable Policies
None
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AQUATIC: OSM PROGRAMMATIC REVIEW
Programmatic Review
Deliverable Form
Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Terrestrial
Issue: How can our regulations, policies, guidance minimize the impact to and enhance the
protection of terrestrial biota affected by mountaintop mining operations and valley fills?
Value(s) Identified: Terrestrial biota include large mammals, birds, small mammals, reptiles,
insects, and amphibians and their respective habitat; and unique native plants. Special
consideration should be should be given to threatened and endangered species.
Summary of Effects of Relevant Statutes, Regulations, and Policies
Terrestrial biota are protected in four principles ways under SMCRA. The habitat for unique or
threatened and endangered species may be protected from mining by prohibiting or limiting
mining in a given area. This may be accomplished by delineating certain areas as a National
Wildlife Refuge, a National Wilderness Preservation Area, or other such protected areas or by
designating the lands unsuitable for mining via the SMCRA petitioning process.
SMCRA compels coordination among the SMCRA regulatory agency and State and Federal fish
and wildlife agencies during the permit review process and coordination among the agencies to
avoid duplication and comply with various laws applicable to the protection of terrestrial biota..
It also establishes detailed permit application requirements and performance standards to
minimize the adverse effects of mining on terrestrial biota..
Applicable Statutory Provisions
General Provisions
SMCRA section 101. The Congress finds and declares that
(c) many surface mining operations result in disturbances of surface areas that burden and
adversely affect commerce and the public welfare by ... destroying fish and wildlife
habitats,
(d) the expansion of coal mining to meet the Nation's energy needs makes even more
urgent the establishment of appropriate standards to minimize damage to the environment
and to productivity of the soil and to protect the health and safety of the public;
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(e) surface mining and reclamation technology are now developed so that effective and
reasonable regulation of surface coal mining operations by the States and by the Federal
Government in accordance with the requirements of this Act is an appropriate and
necessary means to minimize so far as practicable the adverse social, economic, and
environmental effects of such mining operations;
Mining Permit Decision
SMCRA section 510 (b)
No permit or revision application shall be approved unless the application affirmatively
demonstrates and the regulatory authority finds in writing on the basis of the information
set forth in the application or from information otherwise available which will be
documented in the approval, and made available to the applicant, that
(4) the area proposed to be mined is not included within an area designated unsuitable for
surface coal mining pursuant to section 522 of this Act or is not within an area under study
for such designation in an administrative proceeding commenced pursuant to section
522(a)(4)(D) or section 522(c) (unless in such an area as to which an administrative
proceeding has commenced pursuant to section 522(a)(4)(D) of this Act, the operator
making the permit application demonstrates that, prior to January 1, 1977, he has made
substantial legal and financial commitments in relation to the operation for which he is
applying for a permit);
Lands Unsuitable for Mining
SMCRA section 522
(a)... (3)Upon petition pursuant to subsection (c) of this section, a surface area may be
designated unsuitable for certain types of surface coal mining operations if such
operations will -
(A) be incompatible with existing State or local land use plans or programs; or
(B) affect fragile or historic lands in which such operations could result in
significant damage to important historic, cultural, scientific, and esthetic values
and natural systems;
(e) After the enactment of this Act and subject to valid existing rights no surface coal
mining operations except those which exist on the date of enactment of this Act shall be
permitted -(1) on any lands within the boundaries of units of the National Park System, the
National Wildlife Refuge Systems, the National System of Trails, the National Wilderness
Preservation System, the Wild and Scenic Rivers System, including study rivers
designated under section 5(a) of the Wild and Scenic Rivers Act and National Recreation
Areas designated by Act of Congress;
Environmental Protection Performance Standards
SMCRA section 515(b)
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General performance standards shall be applicable to all surface coal mining and reclamation
operations and shall require the operation as a minimum to. . . (17) insure that the construction,
maintenance, and post mining conditions of access roads into and across the site of operations
will control or prevent erosion and siltation, pollution of water, damage to fish or wildlife or their
habitat, or public or private property;
(24) to the extent possible using the best technology currently available, minimize disturbances
and adverse impacts of the operation on fish, wildlife, and related environmental values, and
achieve enhancement of such resources where practicable;
SMCRA Effect on Other Federal Laws
SMCRA section 702
(a) Nothing in this Act shall be construed as superseding, amending, modifying, or repealing the
Mining and Minerals Policy Act of 1970 (30 U.S.C. 21a), the National Environmental Policy Act
of 1969 (42 U.S.C. 4321-47), or any of the following Acts or with any rule or regulation
promulgated thereunder, including, but not limited to ...
(1) The Federal Metal and Nonmetallic Mine Safety Act (30 U.S.C. 721-740).
(2) The Federal Coal Mine Health and Safety Act of 1969 (83 Stat. 742).
(3) The Federal Water Pollution Control Act (79 Stat. 903), as amended (33 U.S.C.
1151-1175), the State laws enacted pursuant thereto, or other Federal laws relating
to preservation of water quality.
(4) The Clean Air Act, as amended (42 U.S.C. 1857 et seq.).
(5) The Solid Waste Disposal Act (42 U.S.C. 3251-3259).
(6) The Refuse Act of 1899 (33 U.S.C. 407).
(7) The Fish and Wildlife Coordination Act of 1934 (16 U.S.C. 661-666c).
Applicable Regulations
Definitions
Title 30 Code of Federal Regulations Section 700.5
Person having an interest which is or may be adversely affected or person with a valid legal
interest shall include any person— (a) Who uses any resource of economic, recreational, esthetic,
or environmental value that may be adversely affected by coal exploration or surface coal mining
and reclamation operations or any related action of the Secretary or the State regulatory authority;
or (b) Whose property is or may be adversely affected by coal exploration or surface coal mining
and reclamation operations or any related action of the Secretary or the State regulatory authority.
Title 30 Code of Federal Regulations Section 701.5
Best technology currently available means equipment, devices, systems, methods, or techniques
which will (a) prevent, to the extent possible, additional contributions of suspended solids to
stream flow or runoff outside the permit area, but in no event result in contributions of suspended
solids in excess of requirements set by applicable State or Federal laws; and (b)minimize, to the
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extent possible, disturbances and adverse impacts on fish, wildlife and related environmental
values, and achieve enhancement of those resources where practicable. The term includes
equipment, devices, systems, methods, or techniques which are currently available anywhere as
determined by the Director, even if they are not in routine use. The term includes, but is not
limited to, construction practices, siting requirements, vegetative selection and planting
requirements, animal stocking requirements, scheduling of activities and design of sedimentation
ponds in accordance with Parts 816and 817 of this Chapter. Within the constraints of the
permanent program, the regulatory authority shall have the discretion to determine the best
technology currently available on a case-by-case basis, as authorized by the Act and this Chapter.
Land use means specific uses or management-related activities, rather than the vegetation or
cover of the land. Land uses may be identified in combination when joint or seasonal uses occur
and may include land used for support facilities that are an integral part of the use. Changes of
land use from one of the following categories to another shall be considered as a change to an
alternative land use which is subject to approval by the regulatory authority. . . (h) Fish and
wildlife habitat. Land dedicated wholly or partially to the production, protection, or management
of species offish or wildlife.
Title 30 Code of Federal Regulations Section 761.5
Significant recreational timber, economic, or other values incompatible with surface coal mining
operations means those values to be evaluated for their significance which could be damaged by
and are not capable of existing together with, surface coal mining operations because of the
undesirable effects mining would have on those values, either on the area included in the permit
application or on other affected areas. Those values to be evaluated for their importance include: .
. . Scenic, historic, archeologic, esthetic, fish, wildlife, plants, or cultural interests.
Title 30 Code of Federal Regulations Section 762.5
Fragile lands means areas containing natural, ecologic, scientific, or esthetic resources that could
be significantly damaged by surface coal mining operations. Examples of fragile lands include
valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of
animals or plants, uncommon geologic formations, paleontological sites, National Natural
Landmarks, areas where mining may result in flooding, environmental corridors containing a
concentration of ecologic and esthetic features, and areas of recreational value due to high
environmental quality.
Areas Where Mining Is Prohibited or Limited
Title 30 Code of Federal Regulations Section 761.11
You may not conduct surface coal mining operations on the following lands unless you either
have valid existing rights, as determined under Sec. 761.16, or qualify for the exception for
existing operations under Sec. 761.12: (a) Any lands within the boundaries of: (1) The National
Park System; (2) The National Wildlife Refuge System; (3) The National System of Trails; (4)
The National Wilderness Preservation System; (5) The Wild and Scenic Rivers System, including
study rivers designated under section 5(a) of the Wild and Scenic Rivers Act, 16 U.S.C. 1276(a),
or study rivers or study river corridors established in any guidelines issued under that Act; or (6)
National Recreation Areas designated by Act of Congress.
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Permit Review and Coordination
Title 30 Code of Federal Regulations Section 780.16 (c)
Fish and Wildlife Service review. Upon request, the regulatory authority shall provide the
resource information required under paragraph (a) of this section and the protection and
enhancement plan required under paragraph (b) of this section to the U.S. Department of the
Interior, Fish and Wildlife Service Regional or Field Office for their review. This information
shall be provided within 10 days of receipt of the request from the Service.
Designating Lands Unsuitable for Mining
Title 30 Code of Federal Regulations Section 762.11(a)
Upon petition an area shall be designated as unsuitable for all or certain types of surface coal
mining operations, if the regulatory authority determines that reclamation is not technologically
and economically feasible under the Act, this Chapter, or an approved State program, (b) Upon
petition an area may be (but is not required to be) designated as unsuitable for certain types of
surface coal mining operations, if the operations will— (1) Be incompatible with existing State or
local land use plans or programs; (2) Affect fragile or historic lands in which the operations could
result in significant damage to important historic, cultural, scientific, or esthetic values or natural
systems;
Data Base and Inventory Maintenance
Title 30 Code of Federal Regulations Section 764.21
(a) The regulatory authority shall develop a data base and inventory system which will
permit evaluation of whether reclamation is feasible in areas covered by petitions.
(b) The regulatory authority shall include in the system information relevant to the criteria
in Section 762.11 of this Chapter, including, but not limited to, information received from
the U.S. Fish and Wildlife Service, the State Historic Preservation Officer, and the agency
administering Section 127of the Clean Air Act, as amended (42 U.S.C. 7470 et seq.).
Regulatory Coordination with Requirements under Other Laws
Title 30 Code of Federal Regulations Section 773.12
Each regulatory program shall, to avoid duplication, provide for the coordination of review and
issuance of permits for surface coal mining and reclamation operations with applicable
requirements of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.); the
Fish and Wildlife Coordination Act, as amended (16 U.S.C. 661 et seq.); the Migratory Bird
Treaty Act of 1918, as amended (16 U.S.C. 703 et seq.); The National Historic Preservation Act
of 1966, as amended (16 U.S.C. 470 et seq.); the Bald Eagle Protection Act, as amended (16
U.S.C. 668a); for Federal programs only, the Archeological and Historic Preservation Act of 1974
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(16 U.S.C. 469 et seq.);and the Archaeological Resources Protection Act of 1979 (16 U.S.C.
470aa et seq) where Federal and Indian lands covered by that Act are involved.
Application Requirements
Title 30 Code of Federal Regulations Section 779.19
(a) The permit application shall, if required by the regulatory authority, contain a map that
delineates existing vegetative types and a description of the plant communities within the
proposed permit area and within any proposed reference area. This description shall
include information adequate to predict the potential for reestablishing vegetation, (b)
When a map or aerial photograph is required, sufficient adjacent areas shall be included to
allow evaluation of vegetation as important habitat for fish and wildlife for those species
offish and wildlife identified under 30CFR 780.16.
Title 30 Code of Federal Regulations Section 779.25(a)(2)
Elevations and locations of monitoring stations used to gather data for water quality and quantity,
fish and wildlife, and air quality, if required ,in preparation of the application;
Title 30 Code of Federal Regulations Section 780.16
(a) Resource Information
Each application shall include fish and wildlife resource information for the permit area and
adjacent area.
(1) The scope and level of detail for such information shall be determined by the
regulatory authority in consultation with State and Federal agencies with responsibilities
for fish and wildlife and shall be sufficient to design the protection and enhancement plan
required under paragraph (b) of this section.
(2) Site-specific resource information necessary to address the respective species or
habitats shall be required when the permit area or adjacent area is likely to include: (i)
Listed or proposed endangered or threatened species of plants or animals or their critical
habitats listed by the Secretary under the Endangered Species Act of 1973, as amended
(16 U.S.C. 1531 et seq.), or those species or habitats protected by similar State statutes;
(ii) Habitats of unusually high value for fish and wildlife such as important streams,
wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or
protection, migration routes, or reproduction and wintering areas; or (iii) Other species or
habitats identified through agency consultation as requiring special protection under State
or Federal law.
(b) Protection and enhancement plan.
Each application shall include a description of how, to the extent possible using the best
technology currently available, the operator will minimize disturbances and adverse impacts on
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fish and wildlife and related environmental values, including compliance with the Endangered
Species Act, during the surface coal mining and reclamation operations and how enhancement of
these resources will be achieved where practicable. This description shall -
(1) Be consistent with the requirements of Sec. 816.97 of this chapter;
(2) Apply, at a minimum, to species and habitats identified under paragraph (a) of this
section; and
(3) Include — (i) Protective measures that will be used during the active mining phase of
operation. Such measures may include the establishment of buffer zones, the selective location
and special design of haul roads and power lines, and the monitoring of surface water quality and
quantity; and (ii) Enhancement measures that will be used during the reclamation and post mining
phase of operation to develop aquatic and terrestrial habitat. Such measures may include
restoration of streams and other wetlands, retention of ponds and impoundments, establishment of
vegetation for wildlife food and cover, and the replacement of perches and nest boxes. Where the
plan does not include enhancement measures, a statement shall be given explaining why
enhancement is not practicable.
Reclamation plan: Operation Plan.
Title 30 Code of Federal Regulations Section 780.14
Each application shall contain maps and plans as follows: (a)... (9) Each facility to be used to
protect and enhance fish and wildlife and related environmental values;
Performance Standards- General
Title 30 Code of Federal Regulations Section 810.2
The objective of this Subchapter is to ensure that coal exploration and surface coal mining and
reclamation operations are conducted in a manner that is compatible with the environmental,
social, and esthetic needs of the Nation. Accordingly, the performance standards and design
requirements in this Subchapter will provide for— . . . (e) Minimizing, to the extent possible
using the best technology currently available, disturbances and adverse impacts on fish, wildlife,
and other related environmental values, and enhancement of such resources where practicable;
Performance Standards-protection of Fish, Wildlife, and Related Environmental Values
Title 30 Code of Federal Regulations Section 816.97
(a) The operator shall, to the extent possible using the best technology currently available,
minimize disturbances and adverse impacts on fish, wildlife, and related environmental
values and shall achieve enhancement of such resources where practicable.
(b) Endangered and threatened species. No surface mining activity shall be conducted
which is likely to jeopardize the continued existence of endangered or threatened species
listed by the Secretary or which is likely to result in the destruction or adverse
modification of designated critical habitats of such species in violation of the Endangered
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Species Act of 1973, as amended(16 U.S.C. 1531 et seq.). The operator shall promptly
report to the regulatory authority any State- or federally-listed endangered or threatened
species within the permit area of which the operator becomes aware. Upon notification,
the regulatory authority shall consult with appropriate State and Federal fish and wildlife
agencies and, after consultation, shall identify whether, and under what conditions, the
operator may proceed.
(c) Bald and golden eagles. No surface mining activity shall be conducted in a manner
which would result in the unlawful taking of a bald or golden eagle, its nest, or any of its
eggs. The operator shall promptly report to the regulatory authority any golden or bald
eagle nest within the permit area of which the operator becomes aware. Upon notification,
the regulatory authority shall consult with the U.S. Fish and Wildlife Service and also,
where appropriate, the State fish and wildlife agency and, after consultation, shall identify
whether, and under what conditions, the operator may proceed.
(d) Nothing in this Chapter shall authorize the taking of an endangered or threatened
species or a bald or golden eagle, its nest, or any of its eggs in violation of the Endangered
Species Act of 1973, as amended, 16 U.S.C. 1531 et seq., or the Bald Eagle Protection
Act, as amended, 16 U.S.C. 668 et seq.
(e) Each operator shall, to the extent possible using the best technology currently
available— (1) Ensure that electric power lines and other transmission facilities used for,
or incidental to, surface mining activities on the permit area are designed and constructed
to minimize electrocution hazards to raptors, except where the regulatory authority
determines that such requirements are unnecessary; (2) Locate and operate haul and access
roads so as to avoid or minimize impacts on important fish and wildlife species or other
species protected by State or Federal law; (3) Design fences, overland conveyors, and
other potential barriers to permit passage for large mammals, except where the regulatory
authority determines that such requirements are unnecessary; and (4) Fence, cover, or use
other appropriate methods to exclude wildlife from ponds which contain hazardous
concentrations of toxic-forming materials.
(f) Wetlands and habitats of unusually high value for fish and wildlife. The operator
conducting surface mining activities shall avoid disturbances to, enhance where
practicable, restore, or replace, wetlands, and riparian vegetation along rivers and streams
and bordering ponds and lakes. Surface mining activities shall avoid disturbances to,
enhance where practicable, or restore, habitats of unusually high value for fish and
wildlife.
(g) Where fish and wildlife habitat is to be a post mining land use, the plant species to be
used on reclaimed areas shall be selected on the basis of the following criteria: (1) Their
proven nutritional value for fish or wildlife. (2) Their use as cover for fish or wildlife. (3)
Their ability to support and enhance fish or wildlife habitat after the release of
performance bonds. The selected plants shall be grouped and distributed in a manner
which optimizes edge effect, cover, and other benefits to fish and wildlife.
(h) Where cropland is to be the post mining land use, and where appropriate for wildlife-
and crop-management practices, the operator shall intersperse the fields with trees,
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hedges, or fence rows throughout the harvested area to break up large blocks of
monoculture and to diversify habitat types for birds and other animals.
(i) Where residential, public service, or industrial uses are to be the post mining land use,
and where consistent with the approved post mining land use, the operator shall
intersperse reclaimed lands with green belts utilizing species of grass, shrubs, and trees
useful as food and cover for wildlife.
Performance Standards-Revegetation
Title 30 Code of Federal Regulations Section 816.116(b)
Standards for success shall be applied in accordance with the approved post mining land use and,
at a minimum, the following conditions: ... (3) For areas to be developed for fish and wildlife
habitat, recreation, shelter belts, or forest products, success of vegetation shall be determined on
the basis of tree and shrub stocking and vegetative ground cover. Such parameters are described
as follows: (i) Minimum stocking and planting arrangements shall be specified by the regulatory
authority on the basis of local and regional conditions and after consultation with and approval by
the State agencies responsible for the administration of forestry and wildlife programs.
Consultation and approval may occur on either a program wide or a permit-specific basis, (ii)
Trees and shrubs that will be used in determining the success of stocking and the adequacy of the
plant arrangement shall have utility for the approved post mining land use. Trees and shrubs
counted in determining such success shall be healthy and have been in place for not less than two
growing seasons. At the time of bond release, at least 80 percent of the trees and shrubs used to
determine such success shall have been in place for 60 percent of the applicable minimum period
of responsibility, (iii) Vegetative ground cover shall not be less than that required to achieve the
approved post mining land use.
Performance Standards-Roads
Title 30 Code of Federal Regulations Section 816.150 (b)
Each road shall be located, designed, constructed, reconstructed, used, maintained, and reclaimed
so as to: ... (3) Control or prevent additional contributions of suspended solids to stream flow or
runoff outside the permit area; ... (6) Prevent or control damage to public or private property,
including the prevention or mitigation of adverse effects on lands within the boundaries of units
of the National Park System, the National Wildlife Refuge System, the National System of Trails,
the National Wilderness Preservation System, the Wild and Scenic Rivers System, including
designated study rivers, and National Recreation Areas designated by Act of Congress;
Performance Standards-Support Facilities
Title 30 Code of Federal Regulations Section Sec. 816.181
(a) Support facilities shall be operated in accordance with a permit issued for the mine or
coal preparation operation to which it is incident or from which its operation results.
(b) In addition to the other provisions of this part, support facilities shall be located,
maintained, and used in a manner that— (1) Prevents or controls erosion and siltation, water
pollution, and damage to public or private property; and (2) To the extent possible using the best
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technology currently available— (i) Minimizes damage to fish, wildlife, and related environmental
values;
Applicable Policies
None
Programmatic Review
Deliverable Form
Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Terrestrial
Issue: Mountaintop mining operations and valley fills affect the visual landscape
(geomorphology). How can our regulations, policies, guidance lessen this impact?
Value(s) Identified: Scenic or culturally important and unique vistas and the overall
geomorphological features of the premining area.
Summary of Effects of Relevant Statutes, Regulations, and Policies
Scenic and culturally important and unique vistas may be considered fragile lands and can be
protected by designating the lands associated with the vistas as unsuitable for mining. The public
has the right to request that fragile lands be protected by petitioning the SMCRA regulatory
authority.
Regarding the overall geomorphological features of the premining area, with certain exceptions,
the mined land must be reclaimed to its approximate original contour (AOC). Both the permit
application requirements and the performance standards address the issue of regrading the AOC.
OSM's May 26, 1987, policy clarifies the agency's interpretation of AOC but give considerable
deference to the judgement of SMCRA regulatory authority on what constitutes AOC.
Applicable Statutory Provisions
General Provisions
SMCRA section 101. The Congress finds and declares that
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(c) many surface mining operations result in disturbances of surface areas that burden and
adversely affect commerce and the public welfare by destroying or diminishing the utility
of land for commercial, industrial, residential, recreational, agricultural, and forestry
purposes, ... by impairing natural beauty, . . . ;
(d) the expansion of coal mining to meet the Nation's energy needs makes even more
urgent the establishment of appropriate standards to minimize damage to the environment
and to productivity of the soil and to protect the health and safety of the public;
(e) surface mining and reclamation technology are now developed so that effective and
reasonable regulation of surface coal mining operations by the States and by the Federal
Government in accordance with the requirements of this Act is an appropriate and
necessary means to minimize so far as practicable the adverse social, economic, and
environmental effects of such mining operations;
Mining Permit Decision
SMCRA section 510 (b)
No permit or revision application shall be approved unless the application affirmatively
demonstrates and the regulatory authority finds in writing on the basis of the information set forth
in the application or from information otherwise available which will be documented in the
approval, and made available to the applicant, that
(4) the area proposed to be mined is not included within an area designated unsuitable for
surface coal mining pursuant to section 522 of this Act or is not within an area under study
for such designation in an administrative proceeding commenced pursuant to section
522(a)(4)(D) or section 522(c) (unless in such an area as to which an administrative
proceeding has commenced pursuant to section 522(a)(4)(D) of this Act, the operator
making the permit application demonstrates that, prior to January 1, 1977, he has made
substantial legal and financial commitments in relation to the operation for which he is
applying for a permit);
Lands Unsuitable for Mining
SMCRA section 522(a)(3)
Upon petition pursuant to subsection (c) of this section, a surface area may be
designated unsuitable for certain types of surface coal mining operations if such
operations will -
(A) be incompatible with existing State or local land use plans or programs;
or
(B) affect fragile or historic lands in which such operations could result in
significant damage to important historic, cultural, scientific, and esthetic
values and natural systems;
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Definitions
SMCRA section 701(2)
Approximate original contour means that surface configuration achieved by backfilling and
grading of the mined area so that the reclaimed area, including any terracing or access roads,
closely resembles the general surface configuration of the land prior to mining and blends into
and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil
piles eliminated; water impoundments may be permitted where the regulatory authority
determines that they are in compliance with section 515(b)(8) of this Act;
Environmental Protection Performance Standards
SMCRA section 515(b)
General performance standards shall be applicable to all surface coal mining and reclamation
operations and shall require the operation as a minimum to (3) grade in order to restore the
approximate original contour of the land with all highwalls, spoil piles, and depressions
eliminated (unless small depressions are needed in order to retain moisture to assist revegetation
or as otherwise authorized pursuant to this Act): Provided, however. That in surface coal mining
which is carried out at the same location over a substantial period of time where the operation
transects the coal deposit, and the thickness of the coal deposits relative to the volume of the
overburden is large and where the operator demonstrates that the overburden and other spoil and
waste materials at a particular point in the permit area or otherwise available from the entire
permit area is insufficient, giving due consideration to volumetric expansion, to restore the
approximate original contour, the operator, at a minimum, shall backfill, grade, and compact
(where advisable) using all available overburden and other spoil and waste materials to attain the
lowest practicable grade but not more than the angle of repose, to provide adequate drainage and
to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land
use compatible with the surrounding region: And provided further. That in surface coal mining
where the volume of overburden is large relative to the thickness of the coal deposit and where
the operator demonstrates that due to volumetric expansion the amount of overburden and other
spoil and waste materials removed in the course of the mining operation is more than sufficient to
restore the approximate original contour, the operator shall after restoring the approximate
contour, backfill, grade, and compact (where advisable) the excess overburden and other spoil and
waste materials to attain the lowest grade but not more than the angle of repose, and to cover all
acid-forming, and other toxic materials, in order to achieve an ecologically sound land use
compatible with the surrounding region and that such overburden or spoil shall be shaped and
graded in such a way as to prevent slides, erosion, and water pollution and is revegetated in
accordance with the requirements of this Act;
Permit Application Requirements
SMCRA section 507(b)
The permit application shall be submitted in a manner satisfactory to the regulatory authority and
shall contain, among other things (14) cross-sections, maps or plans of land to be affected,
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including the actual area to be mined, prepared by or under the direction of and certified by a
qualified registered professional engineer, or professional geologist, with assistance from experts
in related fields such as land surveying and landscape architecture, showing profiles at
appropriate cross sections of the anticipated final surface configuration that will be achieved
pursuant to the operator's proposed reclamation plan;
Reclamation Plan Requirements
SMCRA section 508(a)
Each reclamation plan submitted as part of a permit application pursuant to any
approved State program or a Federal program under the provisions of this Act shall include, in the
degree of detail necessary to demonstrate that reclamation required by the State or Federal
program can be accomplished, a statement of * * * (5) the engineering techniques
proposed to be used in mining and reclamation and a description of the major equipment; * *
* a plan, where appropriate, for backfilling, soil stabilization, and compacting, grading, and
appropriate revegetation;
Applicable Regulations
Definitions
Title 30 Code of Federal Regulations Section 700.5
Person having an interest which is or may be adversely affected or person with a valid legal
interest shall include any person— (a) Who uses any resource of economic, recreational, esthetic,
or environmental value that may be adversely affected by coal exploration or surface coal mining
and reclamation operations or any related action of the Secretary or the State regulatory authority;
or (b) Whose property is or may be adversely affected by coal exploration or surface coal mining
and reclamation operations or any related action of the Secretary or the State regulatory authority.
Title 30 Code of Federal Regulations Section 701.5
Approximate original contour means that surface configuration achieved by backfilling and
grading of the mined areas so that the reclaimed area, including any terracing or access roads,
closely resembles the general surface configuration of the land prior to mining and blends into
and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles,
and coal refuse piles eliminated. Permanent water impoundments may be permitted where the
regulatory authority has determined that they comply with Sections 816.49, 816.56, and 816.133
or 817.49, 817.56, and 817.133.
Excess spoil means spoil material disposed of in a location other than the mined-out area;
Provided, That spoil material used to achieve the approximate original contour or to blend the
mined-out area with the surrounding terrain in accordance with Sections 816.102(d) and
817.102(d) of this Chapter in non-steep slope areas shall not be considered excess spoil.
Title 30 Code of Federal Regulations Section 762.5
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Fragile lands means areas containing natural, ecologic, scientific, or esthetic resources that could
be significantly damaged by surface coal mining operations. Examples of fragile lands include
valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of
animals or plants, uncommon geologic formations, paleontological sites, National Natural
Landmarks, areas where mining may result in flooding, environmental corridors containing a
concentration of ecologic and esthetic features, and areas of recreational value due to high
environmental quality.
Designating Lands Unsuitable for Mining
Title 30 Code of Federal Regulations Section. 762.1 l(a)
Upon petition an area shall be designated as unsuitable for all or certain types of surface coal
mining operations, if the regulatory authority determines that reclamation is not technologically
and economically feasible under the Act, this Chapter, or an approved State program, (b) Upon
petition an area may be (but is not required to be) designated as unsuitable for certain types of
surface coal mining operations, if the operations will- (1) Be incompatible with existing State or
local land use plans or programs; (2) Affect fragile or historic lands in which the operations could
result in significant damage to important historic, cultural, scientific, or esthetic values or natural
systems;
Reclamation plan: General requirements.
Title 30 Code of Federal Regulations Section 780.18(b)
Each plan shall contain the following information for the proposed permit area. (3) A plan for
backfilling, soil stabilization, compacting, and grading, with contour maps or cross sections that
show anticipated final surface configuration of the proposed permit area, in accordance with
Sections 816.102-816.107 of this Chapter;
Performance Standards - Backfilling and Grading: General
Title 30 Code of Federal Regulations Section 816.102
(a) Disturbed areas shall be backfilled and graded to— (1) Achieve the approximate
original contour, except as provided in Paragraph (k) of this Section; (2) Eliminate all
highwalls, spoil piles, and depressions, except as provided in Paragraph (h) (small
depressions) and in Paragraph (k)(3)(iii) (previously mined highwalls) of this Section; (3)
Achieve a post mining slope that does not exceed either the angle of repose or such lesser
slope as is necessary to achieve a minimum long-term static safety factor of 1.3 and to
prevent slides; (4) Minimize erosion and water pollution both on and off the site; and (5)
Support the approved post mining land use.
(b) Spoil, except excess spoil disposed of in accordance with Sections 816.71-816.74,
shall be returned to the mined-out area, (c) Spoil and waste materials shall be compacted
where advisable to ensure stability or to prevent leaching of toxic materials, (d) Spoil may
be placed on the area outside the mined-out area in non-steep slope areas to restore the
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approximate original contour by blending the spoil into the surrounding terrain if the
following requirements are met:
Applicable Policies
OSM Directive INE-26 "Approximate Original Contour dated May 26, 1987
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HUMAN & COMMUNITY: EPA PROGRAMMATIC REVIEW
Agency Involved: Environmental Protection Agency, States
Domain: Human and Community
Issue: Mountaintop mining operations and valley fills can affect community resources and quality
of life. Can our regulations, policies, guidance be used to minimize this impact? Community
resources could include social institutions (educational, religious, recreational, military, etc.), and
local public services (water and sewer service, telephone, electric, etc.).
Value(s) Identified: Drinking water/ wells
Summary of Effects of Relevant Statutes, Regulations and Polices
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
provides EPA with authority to assess, investigate and cleanup environmental threats resulting
from mining activities (42 USC Section 9601 et seq.) Section 107(C)(4) of the CERCLA
provides for the recovery of damages for injury to, destruction of, or loss of natural resources,
including the reasonable costs of assessing such injury, destruction, or loss. Natural resources
includes drinking water supplies. Under 107(f)(l), injury to ground water is a basis for a state to
bring Natural Resource Damage Assessment claims against an entity.
It is possible that these provisions could be used to address damage to well water from mining
activities. The damage would most likely be from hazardous materials (metals released by acid
mine drainage) that emanate from the fill material. While this legal tool is available, EPA has, as
a matter of policy, relied on SMCRA to deal with such matters.
Applicable Statutory Provisions
Section 107(a)(4)(C) : [liable for] "damages for injury to, destruction of, or loss of natural
resources, including the reasonable costs of assessing such injury, destruction, or loss resulting
from such a release;"
107(f)(l) "Natural resources liability. In the case of an injury to, destruction of, or loss of natural
resources under paragraph (C) of subsection (a) of this section liability shall be to the United
States Government and to any State for natural resources within the State
or belonging to, manage by, controlled by, or appertaining to such State and to any Indian tribe
for natural resources belonging to, managed by, controlled by, or appertaining to such Tribe or
held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources
are subject to a trust restriction on alienation: Provided however, that no liability to the United
States or State or Indian tribe shall be imposed under subparagraph (C) of subsection (a) of this
section, where the party sought to be charged has demonstrated that the damages to natural
resources complained of were specifically identified as a irreversible and irretrievable
commitment of natural resources in an environmental impact statement, or other comparable
environment analysis, and the decision to grant a permit or license authorizes such commitment
Mountaintop Mining / Valley Fill DEIS B-108 2003
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Appendix B
HUMAN & COMMUNITY: EPA PROGRAMMATIC REVIEW
of natural resources, and the facility or project was otherwise operating within the terms of its
permit or license, so long as, in the case of damages to an Indian tribe occurring pursuant to a
Federal permit or license, the issuance of that permit or license was not inconsistent with
fiduciary duty of the United States with respect to such Indian tribe. The President, or the
authorized representative of any State, shall act on behalf of the public as trustee of such natural
resources to recover for such damages. Sums recovered by the United States Government as
trustee under this subsection shall be retained by the trustee, without further appropriation, for use
only to restore, replace, or acquire the equivalent of such natural resources. Sums recovered by a
State as trustee under this subsection shall be available for use only to restore, replace, or acquire
the equivalent of such natural resources by the State. The measure of damages in any action
under subparagraph (C) of subsection (a) of this section shall not be limited by the sums which
can be used to restore or replace such resources. There shall be no double recovery under this
chapter for natural resource damages, including the costs of damage assessment or restoration,
rehabilitation, or acquisition for the same release and natural resource. There shall be no recovery
under the authority of subparagraph (C) of subsection (a) of this section where such damages and
the release of a hazardous substance from which such damages resulted have occurred wholly
before December 11, 1980.
CERCLA 42 USC Section 9601.
The term "natural resources" means land, fish, wildlife, biota, air, water, ground water, drinking
water supplies, and other such resources belonging to, managed by, held in trust by, appertaining
to, or otherwise controlled by the United States (including the resources of the fishery
conservation zone established by the Magnuson-Stevens Fishery Conservation and Management
Act (16 U.S.C. 1801 et seq.)), any State or local government, any foreign government, any Indian
tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian
tribe.
Mountaintop Mining /Valley Fill DEIS B-109 2003
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Appendix B
HUMAN & COMMUNITY: ALL AGENCIES PROGRAMMATIC REVIEW
Programmatic Review
Deliverable Form
Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Human and Community Session: 4
Issue: How do SMCRA regulatory programs and associated guidance address the issue of
protecting air resources?
Areas to be considered include: Air resources include fugitive dust, global climate change,
Sulfur dioxide, Volatile organic compounds.
Summary of the Effects of Relevant Statues, Regulations and Policies
Section 515(b)(4) of SMCRA provides that "... all surface coal mining and reclamation
operations must stabilize and protect all surface areas ... to effectively control erosion and
attendant air and water pollution." Shortly after the passage of SMCRA, OSM determined that
fugitive dust associated with surface mining activities constituted a public health and safety
problem, and in 1979, promulgated rules requiring operators to control air pollution from all their
mining operations. In 1980, a United States District Court struck down and remanded the rules
for revision, because it determined that SMCRA's legislative history indicates that OSM's
authority to regulate air pollution is limited to activities related to erosion [In re: Permanent
Surface Mining Regulation Litigation. C.A. 79-1144 (D.D.C., May 16, 1980)].
OSM re-promulgated its rules regulating air pollution from surface coal mining and
reclamation operations in 1983. The Federal performance standards at 30 CFR 816.95
require all exposed areas of surface mining operations to be protected and stabilized to
effectively control erosion and air pollution attendant to erosion. This is usually
accomplished through the application of mulch to reclaimed areas after backfilling and
regrading and the watering of unpaved haul roads.
In 1988, the U.S. Court of Appeals reaffirmed the district court's ruling finding that
OSM's role in controlling air pollution is limited to pollution attendant to erosion. The
Appeals Court found that EPA has the authority under the Clean Air Act (CAA) to
regulate fugitive dust from surface mining operations [NWF v. Hodel C.A. 84-5743 (U.S.
Court of Appeals D.C. Circuit, January 29, 1988)].
Mountaintop Mining / Valley Fill DEIS B-110 2003
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Appendix B
HUMAN & COMMUNITY: ALL AGENCIES PROGRAMMATIC REVIEW
Applicable Statutory Provisions
Permit Application Requirements
SMCRA section 508(a)
Each reclamation plan submitted as part of a permit application pursuant to any approved State program or a
Federal program under the provisions of this Act shall include, in the degree of detail necessary to demonstrate that
reclamation required by the State or Federal program can be accomplished, a statement of:
(9) the steps to be taken to comply with applicable air and water quality laws and regulations and
any applicable health and safety standards;
Performance Requirements
SMCRA section 515(b)
General performance standards shall be applicable to all surface coal mining and reclamation operations and shall
require the operation as a minimum to —
* * *
(4) stabilize and protect all surface areas including spoil piles affected by the surface coal mining
and reclamation operation to effectively control erosion and attendant air and water pollution;
Applicable Regulations
Permit application requirements
Title 30 Code of Federal Regulations Section 780.15
(a) For all surface mining activities with projected production rates exceeding 1,000,000 tons of coal per year
and located west of the 100th meridian west longitude, the application shall contain an air pollution control plan
which includes the following:
(1) An air quality monitoring program to provide sufficient data to evaluate the effectiveness of the
fugitive dust control practices proposed under Paragraph (a)(2) of this Section to comply with Federal and State air
quality standards; and
(2) A plan for fugitive dust control practices as required under Section 816.95 of this Chapter.
(b) For all other surface mining activities the application shall contain an air pollution control plan which
includes the following:
Mountaintop Mining / Valley Fill DEIS B -111 2003
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Appendix B
HUMAN & COMMUNITY: ALL AGENCIES PROGRAMMATIC REVIEW
(1) An air quality monitoring program, if required by the regulatory authority, to provide sufficient
data to evaluate the effectiveness of the fugitive dust control practices under Paragraph (b)(2) of this Section to
comply with applicable Federal and State air quality standards; and
(2) A plan for fugitive dust control practices, as required under Section 816.95 of this Chapter.
Performance Standards
Title 30 Code of Federal Regulations Section 816.95
(a) All exposed surface areas shall be protected and stabilized to effectively control erosion and air pollution
attendant to erosion.
(b) Rills and gullies, which form in areas that have been regraded and topsoiled and which either (1) Disrupt
the approved postmining land use or the reestablishment of the vegetative cover, or (2) Cause or contribute to a
violation of water-quality standards for receiving streams; shall be filled, regraded, or otherwise stabilized; topsoil
shall be replaced; and the areas shall be reseeded or replanted.
Applicable Policies
None
Agency Involved: All
Relevant Provision: Executive Order on Federal Actions to Address Environmental Justice in
Minority Populations and Low Income Populations
Domain: Human and Community
Issue: Mountaintop mining operations and valley fills can affect community resources and quality
of life. Can our regulations, policies, guidance be used to avoid or minimize this impact?
Community resources include social institutions (educational, religious, recreational, military,
etc.), and local public services (water and sewer service, telephone, electric, etc.).
Values Identified: Community Resources, Quality of Life
Summary of Effects of Relevant Statues, Regulations, and Policies
The Executive Order on Federal Actions to Address Environmental Justice in Minority
Populations and Low Income Populations aims Federal attention on environmental and human
health conditions in minority and low-income communities. The Order intends to promote
nondiscrimination in Federal programs affecting human health and the environment and to
provide low-income and minority communities access to public information and an opportunity
Mountaintop Mining / Valley Fill DEIS B-112 2003
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HUMAN & COMMUNITY: EPA PROGRAMMATIC REVIEW
for public participation. The Executive Memorandum accompanying the Order emphasizes the
importance of preventing minority and low-income communities from being subject to
disproportionately high and adverse environmental effects.
Under NEPA, each Federal Agency must analyze the environmental effects, including human
health, economic, and social effects of Federal actions, on minority and low-income communities.
Mitigation measures, outlined or analyzed in environmental assessments, environmental impact
statements, or records of decision, should address significant and adverse environmental effects of
proposed Federal actions on minority and low-income communities. Through the review of
proposed actions of other Federal Agencies, EPA under section 309 of the Clean Air Act will
ensure that the involved agency has fully analyzed environmental effects on minority and low-
income communities, including human health, social, and economic effects.
Federal Agencies shall include diverse segments of the population in research, data collection,
and analysis to determine whether their programs, policies, and activities have disproportionately
high and adverse effects on minority or low-income populations. Federal Agencies will collect,
maintain, and analyze information on subsistence consumption offish and wildlife whenever
practicable and appropriate.
Agency Involved: U.S. Environmental Protection Agency
Relevant Provision: Section 309 of the Clean Air Act
Policies and Procedures for the Review of Federal Actions Impacting the
Environment (October 3, 1984)
Domain: Human and Community
Issue: Mountaintop mining operations and valley fills can affect community resources and quality
of life. Can our regulations, policies, guidance be used to avoid or minimize this impact?
Community resources include social institutions (educational, religious, recreational, military,
etc.), and local public services (water and sewer service, telephone, electric, etc.).
Values Identified: Community Resources, Quality of Life
Summary of Effects of Relevant Statues, Regulations, and Policies
Under Section 309 of the Clean Air Act, EPA has responsibility to review and comment on the
environmental impact of any legislation, regulation, or major action proposed by federal agencies.
If EPA determines that the legislation, regulation, or action is unsatisfactory from the standpoint
of public, health or welfare or environmental quality, EPA publishes the determination and refers
the matter to the Council on Environmental Quality.
The Policy and Procedures for the Review of Federal Actions Impacting the Environment
establishes how EPA carries out its responsibilities to review. EPA may review and comment on
Environmental Assessments. EPA must review all Environmental Impact Statements. As part of
its review, EPA rates the environmental impacts of the proposed action. EPA also rates the
Mountaintop Mining / Valley Fill DEIS B-113 2003
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HUMAN & COMMUNITY: EPA PROGRAMMATIC REVIEW
adequacy of the environmental impact statement with regards to the sufficiency of the
information.
General Provisions
Policies and Procedures for the Review of Federal Actions
Impacting the Environment
1640 1984 Edition ( 10/3/1984)
2. STATUTORY AUTHORITIES
B. Section 309 of the Clean Air Act, as amended, requires EPA to review and comment in writing
on the environmental impact of any matter relating to...(l) legislation proposed by a Federal
department or agency; (2) newly authorized Federal projects for construction and any major
Federal action, or actions, other than a project for construction, (3) proposed regulations...In the
event that the proposed legislation, action, or regulations determined to be unsatisfactory from the
standpoint of public health, welfare, or environmental quality, the determination will be published
and the matter referred to CEQ.
3. POLICY.
A. EPA will carry out the environmental review process in conjunction with EPA's other
authorities to:
(1) Participate in interagency coordination early in the planning process to identify
significant environmental issues;
(2) Conduct follow-up coordination on actions where EPA has identified significant
environmental impacts to ensure a full understanding of the issues and to ensure
implementation of appropriate corrective actions; and
(3) Identify environmentally unsatisfactory proposals and consult with other agencies,
including the CEQ, to achieve timely resolution of the major issues and problems.
B. EPA will assist other Federal agencies in:
(1) Achieving the goals set forth in the NEPA;
(2) Meeting the objectives and complying with the requirements of the laws and
regulations administered by EPA; and
(3) Developing concise, well-reasoned decision documents that identify project impacts, a
range of project alternatives, and mitigation measures that avoid or minimize adverse
effects.
CHAPTER 4 - REVIEW OF DRAFT ENVIRONMENTAL IMPACT STATEMENTS
Mountaintop Mining / Valley Fill DEIS B -114 2003
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Appendix B
HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
2. DRAFT EIS REVIEW MANAGEMENT
B. CATEGORIZATION AND AGENCY NOTIFICATION SYSTEM FOR DEIS'S
(1) After completing the review of the DEIS, the principal reviewer will categorize or rate
the EIS according to the attached alpha numeric system. The rating will generally be based on the
Agency's preferred alternative. Reviewer may rate individual alternatives.
(2) Reviewer will also rate the adequacy of the DEIS.
Mountaintop Mining / Valley Fill DEIS B -115 2003
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Appendix B
HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
Programmatic Review
Deliverable Form
Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Human and Community
Issue: Mountaintop mining operations and valley fills can affect community resources and
quality of life. Can our regulations, policies, guidance be used to minimize this impact?
Community resources could include social institutions (educational, religious, recreational,
military, etc.), and local public services (water and sewer service, telephone, electric, etc.).
Value(s) Identified: Community Resources, Quality of Life
Summary of Effects of Relevant Statutes, Regulations, and Policies
Congress as stated in SMCRA recognized that coal mining contributes to the Nation's energy
requirements but they also recognized that the disturbances from surface coal mining burdens and
adverse affects commerce and public welfare by destroying or diminishing the utility of the land,
personal property, natural beauty, and the quality of life of communities. Congress stated that
surface mining and technology are developed to the point that effective and reasonable regulation
of surface coal mining operations in accordance with the requirements of SMCRA is an
appropriate and necessary means to minimize the adverse social, economic, and environmental
effects.
SMCRA established a special reclamation fund based on the fees levied on the tonnage of coal
mined from active mines. This fund is used to reclaim abandoned mines, waste banks, coal mine
processing and processes left in an unreclaimed condition. High priority is given to projects
having an adverse upon a local community.
SMCRA and the Federal regulatory program prohibits mining within 300 feet of an occupied
dwelling, a public road, parks, public buildings, schools, churches etc .... The Federal program
also places restrictions on where and how blasting occurs to protect such structures.
Finally, in terms of regrading the mined land to the approximate original contour, a variance may
be granted on "steep slope" and mountaintop mining operations if resulting land has a potential to
be a higher and better use; therefore benefitting the quality of life of a community.
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Appendix B
HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
Applicable Statutory Provisions
General Provisions
SMCRA section 101. The Congress finds and declares that...
(c) many surface mining operations result in disturbances of surface areas that burden and
adversely affect commerce and the public welfare by destroying or diminishing the utility
of land for commercial, industrial, residential, recreational, agricultural, and forestry
purposes, ... by impairing natural beauty, by damaging the property of citizens, by
creating hazards dangerous to life and property by degrading the quality of life in local
communities, . . . ;
(d) the expansion of coal mining to meet the Nation's energy needs makes even more
urgent the establishment of appropriate standards to minimize damage to the environment
and to productivity of the soil and to protect the health and safety of the public;
(e) surface mining and reclamation technology are now developed so that effective and
reasonable regulation of surface coal mining operations by the States and by the Federal
Government in accordance with the requirements of this Act is an appropriate and
necessary means to minimize so far as practicable the adverse social, economic, and
environmental effects of such mining operations;
(h) there are a substantial number of acres of land throughout major regions of the United
States disturbed by surface and underground coal on which little or no reclamation was
conducted, and the impacts from these unreclaimed lands impose social and economic
costs on residents in nearby and adjoining areas as well as continuing to impair
environmental quality;
SMCRA section 102. It is the purpose of this Act to -
(a) establish a nationwide program to protect society and the environment from the
adverse effects of surface coal mining operations;
(b) assure that the rights of surface landowners and other persons with a legal interest in
the land or appurtenances thereto are fully protected from such operations;
(f) assure that the coal supply essential to the Nation's energy requirements, and to its
economic and social well-being is provided and strike a balance between protection of the
environment and agricultural productivity and the Nation's need for coal as an essential
source of energy;
(h) promote the reclamation of mined areas left without adequate reclamation prior to the
enactment of this Act and which continue, in their unreclaimed condition, to substantially
degrade the quality of the environment, prevent or damage the beneficial use of land or
water resources, or endanger the health or safety of the public;
Mountaintop Mining / Valley Fill DEIS B-117 2003
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Appendix B
HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
Expenditures from the Special Reclamation Fund
SMCRA section 403 (a)
Expenditure of moneys from the fund on lands and water eligible pursuant to section 404 for the
purposes of this title, except as provided for under section 411, shall reflect the following
priorities in the order stated:
(1) the protection of public health, safety, general welfare, and property from extreme
danger of adverse effects of coal mining practices;
(2) the protection of public health, safety, and general welfare from adverse effects of coal
mining practices;
(3) the restoration of land and water resources and the environment previously degraded
by adverse effects of coal mining practices including measures for the conservation and
development of soil, water (excluding channelization), woodland, fish and wildlife,
recreation resources, and agricultural productivity;
(4) the protection, repair, replacement, construction, or enhancement of public facilities
such as utilities, roads, recreation, and conservation facilities adversely affected by coal
mining practices; and
(5) the development of publicly owned land adversely affected by coal mining practices
including land acquired as provided in this title for recreation and historic purposes,
conservation, and reclamation purposes and open space benefits.
Prohibition to Mining
SMCRA section 522 (e)
After the enactment of this Act and subject to valid existing rights no surface coal mining
operations except those which exist on the date of enactment of this Act shall be permitted ... (5)
within three hundred feet from any occupied dwelling, unless waived by the owner thereof, nor
within three hundred feet of any public building, school, church, community, or institutional
building, public park, or within one hundred feet of a cemetery.
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Appendix B
HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
Applicable Regulations
Definitions
Title 30 Code of Federal Regulations Section 761.5
Community or institutional building means any structure, other than a public building or an
occupied dwelling, which is used primarily for meetings, gatherings, or functions of local civic
organizations or other community groups; functions as an educational, cultural, historic, religious,
scientific, correctional, mental-health, or physical-health care facility; or is used for public
services, including, but not limited to, water supply, power generation, or sewage treatment.
Occupied dwelling means any building that is currently being used on a regular or temporary
basis for human habitation.
Public building means any structure that is owned or leased, and principally used by a
governmental agency for public business or meetings.
Public park means an area or portion of an area dedicated or designated by any Federal, State, or
local agency primarily for public recreational use, whether or not such use is limited to certain
times or days, including any land leased, reserved, or held open to the public because of that use.
Public road means a road— (a) Which has been designated as a public road pursuant to the laws of
the jurisdiction in which it is located; (b) Which is maintained with public funds in a manner
similar to other public roads of the same classification within the jurisdiction; (c) For which there
is substantial (more than incidental) public use; and (d) Which meets road construction standards
for other public roads of the same classification in the local jurisdiction.
Publicly-owned park means a public park that is owned by a Federal, State, or local governmental
entity.
Areas Prohibited from Mining
Title 30 Code of Federal Regulations Section 761.11
You may not conduct surface coal mining operations on the following lands unless you either
have valid existing rights, as determined under Sec. 761.16, or qualify for the exception for
existing operations under Sec. 761.12: (e) Within 300 feet, measured horizontally, of any
occupied dwelling. This prohibition does not apply when: (1) The owner of the dwelling has
provided a written waiver consenting to surface coal mining operations within the protected zone,
as provided in Sec. 761.15; or (2) The part of the operation to be located closer than 300 feet to
the dwelling is an access or haul road that connects with an existing public road on the side of the
public road opposite the dwelling, (f) Within 300 feet, measured horizontally, of any public
building, school, church, community or institutional building, or public park, (g) Within 100 feet,
Mountaintop Mining / Valley Fill DEIS B -119 2003
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HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
measured horizontally, of a cemetery. This prohibition does not apply if the cemetery is relocated
in accordance with all applicable laws and regulations.
Mountaintop Removal Mining - Post Mining Land Use
Title 30 Code of Federal Regulations Section 785.14 (c)
The regulatory authority may issue a permit for mountaintop removal mining, without regard to
the requirements of Sections 816.102, 816.104,816.105, and 816.107 of this Chapter to restore the
lands disturbed by such mining to their approximate original contour, if it first finds, in writing,
on the basis of a complete application, that the following requirements are met:
(1) The proposed post mining land use of the lands to be affected will be an industrial,
commercial, agricultural, residential, or public facility (including recreational facilities)
use and, if-
(i) After consultation with the appropriate land-use planning agencies, if any, the
proposed land use is deemed by the regulatory authority to constitute an equal or
better economic or public use of the affected land compared with the pre-mining
use;
(ii) The applicant demonstrates compliance with the requirements for acceptable
alternative post mining land uses of Paragraphs (a)-(c) of Section 816.133 of this
Chapter;
(iii) The applicant has presented specific plans for the proposed post mining land
use and appropriate assurances that such use will be —
(A) Compatible with adjacent land uses;
(B) Obtainable according to data regarding expected need and market;
(C) Assured of investment in necessary public facilities;
(D) Supported by commitments from public agencies where appropriate;
(E) Practicable with respect to private financial capability for completion of
the proposed use;
(F) Planned pursuant to a schedule attached to the reclamation plan so as to
integrate the mining operation and reclamation with the post mining land
use;
Steep Slope Mining - Approximate Original Contour Variance
Title 30 Code of Federal Regulations Section 785.16
(a) The regulatory authority may issue a permit for non-mountaintop removal, steep slope, surface
coal mining and reclamation operations which includes a variance from the requirements to
restore the disturbed areas to their approximate original contour that are contained in Sees.
816.102,816.104, 816.105, and 816.107, or 817.102 and 817.107 of this chapter. The permit may
contain such a variance only if the regulatory authority finds, in writing, that the applicant has
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demonstrated, on the basis of a complete application, that the following requirements are met: (1)
After reclamation, the lands to be affected by the variance within the permit area will be suitable
for an industrial, commercial, residential, or public post mining land use (including recreational
facilities).
Protections from Blasting
Title 30 Code of Federal Regulations Section 816.61 (d)(l)
An anticipated blast design shall be submitted if blasting operations will be conducted within— (i)
1,000 feet of any building used as a dwelling, public building, school, church, or community or
institutional building outside the permit area;
Title 30 Code of Federal Regulations Section 816.67
(b)(l)(ii) Airblast shall not exceed the maximum limits listed below at the location of any
dwelling, public building, school, church, or community or institutional building outside the
permit area, except as provided in Paragraph (e) of this Section.
Lower frequency limit Maximum level,
of measuring system, in dB
in Hz (+/- 3 dB)
0.1 Hz or lower—flat responsel 134 peak.
2 Hz or lower—flat response 133 peak.
6 Hz or lower—flat response 129 peak.
C-weighted—slow response nl 105 peak dBC.
1 Only when approved by the regulatory authority.
(ii) If necessary to prevent damage, the regulatory authority shall specify lower maximum
allowable airblast levels than those of Paragraph (b)(l)(i) of this Section for use in the vicinity of
a specific blasting operation.
(d)(2)(i) The maximum ground vibration shall not exceed the following limits at the location of
any dwelling, public building, school, church, or community or institutional building outside the
permit area:
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HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
Distance (D)
from the blasting
site, in feet
0 to 300
301 to 5,000
5,001 and beyond
Maximum
allowable
peak
particle
velocity
(V max) for
ground
vibration,
in inches/ second 1
1.25
1.00
0.75
Scaled-
distance
factor to be
applied
without
seismic
monitoring!
(Ds)
50
55
65
1 Ground vibration shall be measured as the particle velocity. Particle velocity shall be
recorded in three mutually perpendicular directions. The maximum allowable peak particle
velocity shall apply to each of the three measurements.
2 Applicable to the scaled-distance equation of Paragraph (d)(3)(i) of this Section.
Title 30 Code of Federal Regulations Section 816.68 (d)
Identification, direction, and distance, in feet, from the nearest blast hole to the nearest dwelling,
public building, school, church, community or institutional building outside the permit area,
except those described in Section 816.67(e).
Approximate Original Contour Variances
Title 30 Code of Federal Regulations Section 816.133 (d)
Approximate original contour: Criteria for variance. Surface coal mining operations that meet the
requirements of this Paragraph may be conducted under a variance from the requirement to
restore disturbed areas to their approximate original contour, if the following requirements are
satisfied ... (9) The surface landowner of the permit area has knowingly requested, in writing,
that a variance be granted, so as to render the land, after reclamation, suitable for an industrial,
commercial, residential, or public use (including recreational facilities).
Applicable Policies
None
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Programmatic Review
Deliverable Form
Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Human and Community
Issue: How can our regulations, policies, guidance be used to address the economic resources
that are affected by mountaintop mining operations and valley fills?
Value(s) Identified: Employment, income, property values, tax or special reclamation fee
revenue
Summary of Effects of Relevant Statutes, Regulations, and Policies
Congress recognized that coal mining contributes to the Nation's energy requirements. They also
recognized that the disturbances from surface coal mining burdens and adverse affects commerce
and public welfare by destroying or diminishing the utility of the land. They stated that surface
mining and technology are developed to the point that effective and reasonable regulation of
surface coal mining operations in accordance with the requirements of SMCRA is an appropriate
and necessary means to minimize the adverse social, economic, and environmental effects.
SMCRA established a special reclamation fund based on the fees levied on the tonnage of coal
mined from active mines. This fund is used to reclaim abandoned mines, waste banks, coal mine
processing and processes left in an unreclaimed condition. High priority is given to projects
having an adverse economic impact upon a local community. Funds can also be used for mine
drainage abatement projects.
SMCRA also restricts coal mining on Federal lands if there is incompatibility recreational,
timber, economic, or other values.
Finally, in terms of regrading the mined land to the approximate original contour, a variance may
be granted on "steep slope" and mountaintop mining operations if after consultation with the land
use planning agencies the resulting land has a potential use that is equal or better economically or
facilitates a public use.
Applicable Statutory Provisions
General Provisions
SMCRA section 101. The Congress finds and declares that -
(b) coal mining operations presently contribute significantly to the Nation's energy
requirements; surface coal mining constitutes one method of extraction of the resource;
the overwhelming percentage of the Nation's coal reserves can only be extracted by
underground mining methods, and it is, therefore, essential to the national interest to
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insure the existence of an expanding and economically healthy underground coal mining
industry;
(c) many surface mining operations result in disturbances of surface areas that burden and
adversely affect commerce and the public welfare by destroying or diminishing the utility
of land for commercial, industrial, residential, recreational, agricultural, and forestry
purposes, ... by damaging the property of citizens, by creating hazards dangerous to life
and property by degrading the quality of life in local communities, . . . ;
(e) surface mining and reclamation technology are now developed so that effective and
reasonable regulation of surface coal mining operations by the States and by the Federal
Government in accordance with the requirements of this Act is an appropriate and
necessary means to minimize so far as practicable the adverse social, economic, and
environmental effects of such mining operations;
(g) surface mining and reclamation standards are essential in order to insure that
competition in interstate commerce among sellers of coal produced in different States will
not be used to undermine the ability of the several States to improve and maintain
adequate standards on coal mining operations within their borders;
(h) there are a substantial number of acres of land throughout major regions of the United
States disturbed by surface and underground coal on which little or no reclamation was
conducted, and the impacts from these unreclaimed lands impose social and economic
costs on residents in nearby and adjoining areas as well as continuing to impair
environmental quality;
(j) surface and underground coal mining operations affect interstate commerce, contribute
to the economic well-being, security, and general welfare of the Nation and should be
conducted in an environmentally sound manner . . . ; and
SMCRA section 102. It is the purpose of this Act to
(a) establish a nationwide program to protect society and the environment from the
adverse effects of surface coal mining operations;
(b) assure that the rights of surface landowners and other persons with a legal interest in
the land or appurtenances thereto are fully protected from such operations;
(f) assure that the coal supply essential to the Nation's energy requirements, and to its
economic and social well-being is provided and strike a balance between protection of the
environment and agricultural productivity and the Nation's need for coal as an essential
source of energy;
(h) promote the reclamation of mined areas left without adequate reclamation prior to the
enactment of this Act and which continue, in their unreclaimed condition, to substantially
degrade the quality of the environment, prevent or damage the beneficial use of land or
water resources, or endanger the health or safety of the public;
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Special Reclamation Fund
SMCRA section 402
(a) All operators of coal mining operations subject to the provisions of this Act shall pay
to the Secretary of the Interior, for deposit in the fund, a reclamation fee of 35 cents per
ton of coal produced by surface coal mining and 15 cents per ton of coal produced by
underground mining or 10 per centum of the value of the coal at the mine, as determined
by the Secretary, whichever is less, except that the reclamation fee for lignite coal shall be
at a rate of 2 per centum of the value of the coal at the mine, or 10 cents per ton,
whichever is less.
(g) (1) Except as provided in subsection (h), moneys deposited into the fund shall be
allocated by the Secretary to accomplish the purposes of this title as follows:
(A) 50 percent of the reclamation fees collected annually in any State (other than
fees collected with respect to Indian lands) shall be allocated annually by the
Secretary to the State, subject to such State having each of the following:
(i) An approved abandoned mine reclamation program pursuant to section 405.
(ii) Lands and waters which are eligible pursuant to section 404 (in the case of a
State not certified under section 41 l(a)) or pursuant to section 41 l(b) (in the case
of a State certified under section 41 l(a)).
(B) 50 percent of the reclamation fees collected annually with respect to Indian
lands shall be allocated annually by the Secretary to the Indian tribe having
jurisdiction over such lands, subject to such tribe having each of the following:
(i) an approved abandoned mine reclamation program pursuant to section 405.
(ii) Lands and waters which are eligible pursuant to section 404 (in the case
of an Indian tribe not certified under section 41 l(a)) or pursuant to section
41 l(b) (in the case of a tribe certified under section 41 l(a)).
(C) The funds allocated by the Secretary under this paragraph to States and Indian
tribes shall only be used for annual reclamation project construction and program
administration grants.
(D) To the extent not expended within 3 years after the date of any grant award
under this paragraph, such grant shall be available for expenditure by the Secretary
in any area under paragraph (2), (3), (4), or (5).
(2) 20 percent of the amounts available in the fund in any fiscal year which are not
allocated under paragraph (1) in that fiscal year (including that interest accruing as
provided in section 401(e) and including funds available for reallocation pursuant to
paragraph (1)(D)), shall be allocated to the Secretary only for the purpose of making the
annual transfer to the Secretary of Agriculture under section 401(c)(2).
(3) Amounts available in the fund which are not allocated to States and Indian tribes under
paragraph (1) or allocated under paragraphs (2) and (5) are authorized to be expended by
the Secretary for any of the following:
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(A) For the purpose of section 507(c), either directly or through grants to the
States, subject to the limitation contained in section 401(c)(l 1)
(B) For the purpose of section 410 (relating to emergencies).
(C) For the purpose of meeting the objectives of the fund set forth in section
403(a) for eligible lands and waters pursuant to section 404 in States and on Indian
lands where the State or Indian tribe does not have an approved abandoned mine
reclamation program pursuant to section 405.
(D) For the administration of this title by the Secretary.
(4)(A) Amounts available in the fund which are not allocated under paragraphs (1), (2),
and (5) or expended under paragraph (3) in any fiscal year are authorized to be expended
by the Secretary under this paragraph for the reclamation or drainage abatement of lands
and waters within unreclaimed sites which are mined for coal or which were affected by
such mining, waste banks, coal processing or other coal mining processes and left in an
inadequate reclamation status.
(B) Funds made available under this paragraph may be used for reclamation or
drainage abatement at a site referred to in subparagraph (A) if the Secretary makes
either of the following findings:
(i) A finding that the surface coal mining operation occurred during the
period beginning on August 4, 1977, and ending on or before the date on
which the Secretary approved a State program pursuant to section 503 for a
State in which the site is located, and that any funds for reclamation or
abatement which are available pursuant to a bond or other form of financial
guarantee or from any other source are not sufficient to provide for
adequate reclamation or abatement at the site.
(ii) A finding that the surface coal mining operation occurred during the
period beginning on August 4, 1977, and ending on or before the date of
enactment of this paragraph, and that the surety of such mining operator
became insolvent during such period, and as of the date of enactment of
this paragraph, funds immediately available from proceedings relating to
such insolvency, or from any financial guarantee or other source are not
sufficient to provide for adequate reclamation or abatement at the site.
(C) In determining which sites to reclaim pursuant to this paragraph, the Secretary
shall follow the priorities stated in paragraphs (1) and (2) of section 403(a). The
Secretary shall ensure that priority is given to those sites which are in the
immediate vicinity of a residential area or which have an adverse economic impact
upon a local community.
(D) Amounts collected from the assessment of civil penalties under section 518 are
authorized to be appropriated to carry out this paragraph.
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(E) Any State may expend grants made available under paragraphs (1) and (5) for
reclamation and abatement of any site referred to in subparagraph (A) if the State,
with the concurrence of the Secretary, makes either of the findings referred to in
clause (i) or (ii) of subparagraph (B) and if the State determines that the
reclamation priority of the site is the same or more urgent than the reclamation
priority for eligible lands and waters pursuant to section 404 under the priorities
stated in paragraphs (1) and (2) of section 403(a).
(F) For the purposes of the certification referred to in section 41 l(a), sites referred
to in subparagraph (A) of this paragraph shall be considered as having the same
priorities as those stated in section 403(a) for eligible lands and waters pursuant to
section 404. All sites referred to in subparagraph (A) of this paragraph within any
State shall be reclaimed prior to such State making the certification referred to in
section 411(a).
(5) The Secretary shall allocate 40 percent of the amount in the fund after making the
allocation referred to in paragraph (1) for making additional annual grants to States and
Indian tribes which are not certified under section 41 l(a) to supplement grants received by
such States and Indian tribes pursuant to paragraph (1)(C) until the priorities stated in
paragraphs (1) and (2) of section 403(a) have been achieved by such State or Indian tribe.
The allocation of such funds for the purpose of making such expenditures shall be through
a formula based on the amount of coal historically produced in the State or from the
Indian lands concerned prior to August 3, 1977. Funds allocated or expended by the
Secretary under paragraphs (2), (3), or (4) of this subsection for any State or Indian tribe
shall not be deducted against any allocation of funds to the State or Indian tribe under
paragraph (1) or under this paragraph.
(6) Any State may receive and retain, without regard to the 3-year limitation referred to in
paragraph (1)(D), up to 10 percent of the total of the grants made annually to such State
under paragraphs (1) and (5) if such amounts are deposited into either-
(A) a special trust fund established under State law pursuant to which such
amounts (together with all interest earned on such amounts) are expended by the
State solely to achieve the priorities stated in section 403(a) after September 30,
1995, or
(B) an acid mine drainage abatement and treatment fund established under State
law as provided in paragraph (7).
(7)(A) Any State may establish under State law an acid mine drainage abatement and
treatment fund from which amounts (together with all interest earned on such amounts)
are expended by the State to implement, in consultation with the Soil Conservation
Service, acid mine drainage abatement and treatment plans approved by the Secretary.
Such plans shall provide for the comprehensive abatement of the causes and treatment of
the effects of acid mine drainage within qualified hydrologic units affected by coal mining
practices.
(B) The plan shall include, but shall not be limited to, each of the following:
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(i) An identification of the qualified hydrologic unit.
(ii) The extent to which acid mine drainage is affecting the water quality
and biological resources within the hydrologic unit.
(iii) An identification of the sources of acid mine drainage within the
hydrologic unit.
(iv) An identification of individual projects and the measures proposed to
be undertaken to abate and treat the causes or effects of acid mine drainage
within the hydrologic unit.
(v) The cost of undertaking the proposed abatement and treatment
measures.
(vi) An identification of existing and proposed sources of funding for such
measures.
(vii) An analysis of the cost-effectiveness and environmental benefits of
abatement and treatment measures.
(C) The Secretary may approve any plan under this paragraph only after
determining that such plan meets the requirements of this paragraph. In conducting
an analysis of the items referred to in clauses (iv), (v), and (vii) the Director of the
Office of Surface Mining shall obtain the comments of the Director of the United
States Bureau of Mines. In approving plans under this paragraph, the Secretary
shall give a priority to those plans which will be implemented in coordination with
measures undertaken by the Secretary of Agriculture under section 406.
(D) For purposes of this paragraph, the term 'qualified hydrologic unit' means a
hydrologic unit-
(i) in which the water quality has been significantly affected by acid mine
drainage from coal mining practices in a manner which adversely impacts
biological resources; and
(ii) which contains lands and waters which are-
(I) eligible pursuant to section 404 and include any of the priorities
stated in paragraph (1), (2), or (3) of section 403(a); and
(II) proposed to be the subject of the expenditures by the State
(from amounts available from the forfeiture of bonds required under
section 509 or from other State sources) to mitigate acid mine
drainage.
(8) Of the funds available for expenditure under this subsection in any fiscal year, the
Secretary shall allocate annually not less than $2,000,000 for expenditure in each State,
and for each Indian tribe, having an approved abandoned mine reclamation program
pursuant to section 405 and eligible lands and waters pursuant to section 404 so long as an
allocation of funds to such State or such tribe is necessary to achieve the priorities stated
in paragraphs (1) and (2) of section 403(a).
Note: Subsection 402(g) amended September 13, 1982, May 7, 1987 and November 5, 1990 and
May 18, 1992 and October 24, 1992.
(h)(l) In the case of any fiscal year beginning on or after October 1, 1995, with respect to
which fees are required to be paid under this section, the Secretary shall, as of the
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beginning of such fiscal year and before any allocation under subsection (g), make the
transfer provided in paragraph (2).
(2) The Secretary shall transfer from the fund to the United Mine Workers of America
Combined Benefit Fund established under section 9702 of the Internal Revenue Code of
1986 for any fiscal year an amount equal to the sum of—
(A) the amount of the interest which the Secretary estimates will be earned
and paid to the Fund during the fiscal year, plus
(B) the amount by which the amount described in subparagraph (A) is less
than $70,000,000.
(3)(A) The aggregate amount which may be transferred under paragraph (2) for any fiscal
year shall not exceed the amount of expenditures which the trustees of the Combined Fund
estimate will be debited against the unassigned beneficiaries premium account under
section 9704(e) of the Internal Revenue Code of 1986 for the fiscal year of the Combined
Fund in which the transfer is made.
(B) The aggregate amount which may be transferred under paragraph
(2)(B) for all fiscal years shall not exceed an amount equivalent to all
interest earned and paid to the fund after September 30, 1992, and before
October 1, 1995.
(4) If, for any fiscal year, the amount transferred is more or less than the amount required
to be transferred, the Secretary shall appropriately adjust the amount transferred for the
next fiscal year.
Note: Subsection 402(h) added October 24, 1992.
Environmental Protection Performance Standards
[30 U.S.C. 1265]
SMCRA section 515(c)
(1) Each State program may and each Federal program shall include procedures pursuant to which
the regulatory authority may permit surface mining operations for the purposes set forth in
paragraph (3) of this subsection.
(2) Where an applicant meets the requirements of paragraphs (3) and (4) of this subsection a
permit without regard to the requirement to restore to approximate original contour set forth in
subsection 515(b)(3) or 515(d)(2) and (3) of this section may be granted for the surface mining of
coal where the mining operation will remove an entire coal seam or seams running through the
upper fraction of a mountain, ridge, or hill (except as provided in subsection (c)(4)(A) hereof) by
removing all of the overburden and creating a level plateau or a gently rolling contour with no
highwalls remaining, and capable of supporting post mining uses in accord with the requirements
of this subsection.
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(3) In cases where an industrial, commercial, agricultural, residential or public facility (including
recreational facilities) use is proposed or the post mining use of the affected land, the regulatory
authority may grant a permit for a surface mining operation of the nature described in subsection
(c)(2) where -
(A) after consultation with the appropriate land use planning agencies, if any, the
proposed post mining land use is deemed to constitute an equal or better economic or
public use of the affected land, as compared with pre-mining use;
(B) the applicant presents specific plans for the proposed post mining land use and
appropriate assurances that such use will be -
(i) compatible with adjacent land uses;
(ii) obtainable according to data regarding expected need and market;
(iii) assured of investment in necessary public facilities;
(iv) supported by commitments from public agencies where appropriate;
(v) practicable with respect to private financial capability for completion of the
proposed use;
(vi) planned pursuant to a schedule attached to the reclamation plan so as to
integrate the mining operation and reclamation with the post mining land use; and
(vii) designed by a registered engineer in conformance with professional standards
established to assure the stability, drainage, and configuration necessary for the
intended use of the site;
(C) the proposed use would be consistent with adjacent land uses, and existing State and
local land use plans and programs;
(d) The following performance standards shall be applicable to steep-slope surface coal
mining and shall be in addition to those general performance standards required by this
section: Provided, however. That the provisions of this subsection (d) shall not apply to
those situations in which an operator is mining on flat or gently rolling terrain, on which
an occasional steep slope is encountered through which the mining operation is to
proceed, leaving a plain or predominantly flat area or where an operator is in compliance
with provisions of subsection (c) hereof:
(4) For the purposes of this subsection (d), the term "steep slope" is any slope
above twenty degrees or such lesser slope as may be defined by the regulatory
authority after consideration of soil, climate, and other characteristics of a region
or State.
(2) Where an applicant meets the requirements of paragraphs (3) and (4) of this
subsection a variance from the requirement to restore to approximate original
contour set forth in subsection 515(d)(2) of this section may be granted for the
surface mining of coal where the owner of the surface knowingly requests in
writing, as a part of the permit application that such a variance be granted so as to
render the land, after reclamation, suitable for an industrial, commercial,
residential, or public use (including recreational facilities) in accord with the
further provisions of (3) and (4) of this subsection.
(3) (A) After consultation with the appropriate land use planning agencies, if any,
the potential use of the affected land is deemed to constitute an equal or better
economic or public use;
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(f) Any person with a valid legal interest which might be adversely affected by release of
the bond or the responsible officer or head of any Federal, State, or local governmental
agency which has jurisdiction by law or special expertise with respect to any
environmental, social, or economic impact involved in the operation, or is authorized to
develop and enforce environmental standards with respect to such operations shall have
the right to file written objections to the proposed release from bond to the regulatory
authority within thirty days after the last publication of the above notice. If written
objections are filed, and a hearing requested, the regulatory authority shall inform all the
interested parties, of the time and place of the hearing, and hold a public hearing in the
locality of the surface coal mining operation proposed for bond release within thirty days
of the request for such hearing. The date, time, and location of such public hearings shall
be advertised by the regulatory authority in a newspaper of general circulation in the
locality for two consecutive weeks, and shall hold a public hearing in the locality of the
surface coal mining operation proposed for bond release or at the State capital at the
option of the objector, within thirty days of the request for such hearing.
Applicable Regulations
Definitions
Title 30 Code of Federal Regulations Section 700.4(b)
Person having an interest which is or may be adversely affected or person with a valid legal
interest shall include any person— (a) Who uses any resource of economic, recreational, esthetic,
or environmental value that may be adversely affected by coal exploration or surface coal mining
and reclamation operations or any related action of the Secretary or the State regulatory authority;
or (b) Whose property is or may be adversely affected by coal exploration or surface coal mining
and reclamation operations or any related action of the Secretary or the State regulatory authority.
Higher or better uses means post mining land uses that have a higher economic value or non-
monetary benefit to the landowner or the community than the pre-mining land uses.
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Title 30 Code of Federal Regulations Section 761.5
Significant recreational, timber, economic, or other values incompatible with surface coal mining
operations means those values to be evaluated for their significance which could be damaged by
and are not capable of existing together with, surface coal mining operations because of the
undesirable effects mining would have on those values, either on the area included in the permit
application or on other affected areas. Those values to be evaluated for their importance include:
... (d) Scenic, historic, archeologic, esthetic, ... or cultural interests.
Title 30 Code of Federal Regulations Section 761.11
You may not conduct surface coal mining operations on the following lands unless you either
have valid existing rights, as determined under Sec. 761.16, or qualify for the exception for
existing operations under Sec. 761.12: (a) Any lands within the boundaries of: (1) The National
Park System; (2) The National Wildlife Refuge System; (3) The National System of Trails; (4)
The National Wilderness Preservation System; (5) The Wild and Scenic Rivers System, including
study rivers designated under section 5(a) of the Wild and Scenic Rivers Act, 16 U.S.C. 1276(a),
or study rivers or study river corridors established in any guidelines issued under that Act; or (6)
National Recreation Areas designated by Act of Congress, (b) Any Federal lands within a
national forest. This prohibition does not apply if the Secretary finds that there are no significant
recreational, timber, economic, or other values that may be incompatible with surface coal mining
operations, and: (1) Any surface operations and impacts will be incident to an underground coal
mine.
Coordination with Appropriate Agencies
Title 30 Code of Federal Regulations Section 816.133 (d)
Approximate original contour: Criteria for variance. Surface coal mining operations that meet the
requirements of this Paragraph may be conducted under a variance from the requirement to
restore disturbed areas to their approximate original contour, if the following requirements are
satisfied: (1) The regulatory authority grants the variance under a permit issued in accordance
with Section 785.16 of this Chapter. (2) The alternative post mining land use requirements of
Paragraph (c) of this Section are met. (3) All applicable requirements of the Act and the
regulatory program, other than the requirement to restore disturbed areas to their approximate
original contour, are met. (4) After consultation with the appropriate land use planning agencies,
if any, the potential use is shown to constitute an equal or better economic or public use.
Title 30 Code of Federal Regulations Section 785.14
Mountaintop removal mining (a) This Section applies to any person who conducts or intends to
conduct surface mining activities by mountaintop removal mining.
(b) Mountaintop removal mining means surface mining activities where the mining operation
removes an entire coal seam or seams running through the upper fraction of a mountain, ridge, or
hill, except as provided for in Section 824.1 l(a)(6) of this Chapter, by removing substantially all
of the overburden off the bench and creating a level plateau or a gently rolling contour, with no
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highwalls remaining, and capable of supporting post mining land uses in accordance with the
requirements of this Section.
(c) The regulatory authority may issue a permit for mountaintop removal mining, without regard
to the requirements of Sections 816.102, 816.104, 816.105, and 816.107 of this Chapter to restore
the lands disturbed by such mining to their approximate original contour, if it first finds, in
writing, on the basis of a complete application, that the following requirements are met: (1) The
proposed post mining land use of the lands to be affected will be an industrial, commercial,
agricultural, residential, or public facility (including recreational facilities) use and, if— (i) After
consultation with the appropriate land-use planning agencies, if any, the proposed land use is
deemed by the regulatory authority to constitute an equal or better economic or public use of the
affected land compared with the pre-mining use;
Title 30 Code of Federal Regulations Section 800.40 (f)
Any person with a valid legal interest which might be adversely affected by release of the bond,
or the responsible officer or head of any Federal, State, or local governmental agency which has
jurisdiction by law or special expertise with respect to any environmental, social, or economic
impact involved in the operation or which is authorized to develop and enforce environmental
standards with respect to such operations, shall have the right to file written objections to the
proposed release from bond with the regulatory authority within 30 days after the last publication
of the notice required by Paragraph 800.40(a)(2) of this Section. If written objections are filed and
a hearing is requested, the regulatory authority shall inform all the interested parties of the time
and place of the hearing, and shall hold a public hearing within 30 days after receipt of the request
for the hearing. The date, time, and location of the public hearing shall be advertised by the
regulatory authority in a newspaper of general circulation in the locality for 2 consecutive weeks.
The public hearing shall be held in the locality of the surface coal mining operation from which
bond release is sought, at the location of the regulatory authority office, or at the State capital, at
the option of the objector.
Applicable Policies
None
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Programmatic Review
Deliverable Form
Agency Involved: Office of Surface Mining Reclamation and Enforcement
Domain: Human and Community
Issue: How are historical and cultural resources affected by mountaintop mining operations and
valley fills?
Value(s) Identified: Historical and Cultural Values
Summary of Effects of Relevant Statutes, Regulations, and Policies
Historical and cultural values, especially those sites that are listed or eligible for listing on the
State or National Register of Historical Places or National Historic Landmarks, are protected by
the Federal SMCRA program in five principal ways: (1) The ability to designate important
cultural and historic lands unsuitable for mining; (2) Coordination with the State Historic
Preservation Officer and Federal, State, or local agencies with jurisdiction of a park or place
during the permit review application process; (3) Affirmative findings by the SMCRA regulatory
agency prior to permit approval that the effect of the proposed permitting action on cultural and
historic sites has been taken in account by conditioning the permit, adjusting the mining plan
reclamation plan, or determining that no impacts will occur; (4) Permitting requirements to
describe and identify cultural, historic and archeological resources by actively soliciting
information from cultural and historic experts and/or conducting field investigations and other
analyses; and (5) Performance standards to ensure that surface coal mining and reclamation
operations are conducted to mitigate the adverse effects to important historic and cultural
features.
Applicable Statutory Provisions
Designating Historical and Cultural Lands Unsuitable for Mining
SMCRA section 522 (a)
(1) To be eligible to assume primary regulatory authority pursuant to section 503, each
State shall establish a planning process enabling objective decisions based upon
competent and scientifically sound data and information as to which, if any, land areas of
a State are unsuitable for all or certain types of surface coal mining operations pursuant to
the standards set forth in paragraphs (2) and (3) of this subsection but such designation
shall not prevent the mineral exploration pursuant to the Act of any area so designated.
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(2) Upon petition pursuant to subsection (c) of this section, the State regulatory authority
shall designate an area as unsuitable for all or certain types of surface coal mining
operations if the State regulatory authority determines that reclamation pursuant to the
requirements of this Act is not technologically and economically feasible.
(3) Upon petition pursuant to subsection (c) of this section, a surface area may be
designated unsuitable for certain types of surface coal mining operations if such
operations will . . .
(B) affect fragile or historic lands in which such operations could result in
significant damage to important historic, cultural, scientific, and esthetic values
and natural systems; . . .
SMCRA section 522 (c)
(c) Any person having an interest which is or may be adversely affected shall have the
right to petition the regulatory authority to have an area designated as unsuitable for
surface coal mining operations, or to have such a designation terminated. Such a petition
shall contain allegations of facts with supporting evidence which would tend to establish
the allegations. Within ten months after receipt of the petition the regulatory authority
shall hold a public hearing in the locality of the affected area, after appropriate notice and
publication of the date, time, and location of such hearing. After a person having an
interest which is or may be adversely affected has filed a petition and before the hearing,
as required by this subsection, any person may intervene by filing allegations of facts with
supporting evidence which would tend to establish the allegations. Within sixty days after
such hearing, the regulatory authority shall issue and furnish to the petitioner and any
other party to the hearing, a written decision regarding the petition, and the reasons
therefore. In the event that all the petitioners stipulate agreement prior to the requested
hearing, and withdraw their request, such hearing need not be held.
(e) After the enactment of this Act and subject to valid existing rights no surface coal mining
operations except those which exist on the date of enactment of this Act shall be permitted -
(1) on any lands within the boundaries of units of the National Park System, the National
Wildlife Refuge Systems, the National System of Trails, the National Wilderness
Preservation System, the Wild and Scenic Rivers System, including study rivers
designated under section 5(a) of the Wild and Scenic Rivers Act and National Recreation
Areas designated by Act of Congress; . . .
(3) which will adversely affect any publicly owned park or places included in the National
Register of Historic Sites unless approved jointly by the regulatory authority and the
Federal, State, or local agency with jurisdiction over the park or the historic site;
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Applicable Regulations
Coordination with Appropriate Agencies
Title 30 Code of Federal Regulations Section 700.4(b)
The Director is responsible for consulting with Federal land-managing agencies and Federal
agencies with responsibility for natural and historic resources on Federal lands on actions which
may have an effect on their responsibilities.
Title 30 Code of Federal Regulations Section 773.13(a)(3)
Upon receipt of an administratively complete application for a permit, a significant revision to a
permit under Section 774.13, or a renewal of a permit under Section 774.15, the regulatory
authority shall issue written notification indicating the applicant's intention to mine the described
tract of land, the application number or other identifier, the location where the copy of the
application may be inspected, and the location where comments on the application may be
submitted. The notification shall be sent to ... (ii) All Federal or State governmental agencies
with authority to issue permits and licenses applicable to the proposed surface coal mining and
reclamation operation and which are part of the permit coordinating process developed in
accordance with Section 503(a)(6) or 504(h) of the Act, or Section 773.12; or those agencies with
an interest in the proposed operation, including ... the historic preservation officer.
Title 30 Code of Federal Regulations Section 773.12
Each regulatory program shall, to avoid duplication, provide for the coordination of review and
issuance of permits for surface coal mining and reclamation operations with applicable
requirements of... The National Historic Preservation Act of 1966, as amended (16 U.S.C. 470
et seq.); ... the Archeological and Historic Preservation Act of 1974 (16 U.S.C. 469 et seq.);and
the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq) where Federal and
Indian lands covered by that Act are involved.
Requirements of State Programs to Protect Cultural and Historic Values
Title 30 Code of Federal Regulations Section 731.14
The program shall demonstrate that the State has the capability of carrying out the provisions of
the Act and this Chapter and achieving their purposes by providing a complete description of the
system for implementing, administering, and enforcing a State program including, at a minimum .
(g) Narrative descriptions, flow charts, and other appropriate documents of the proposed systems
for ...
(17) Consulting with State, Federal, and local agencies having responsibility for historic, cultural,
and archeological resources, and for making decisions regarding such resources.
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Appendix B
HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
Amendments to State Programs Pertaining to Cultural and Historic Values
Title 30 Code of Federal Regulations Section 732.17(h)
The following procedures, . . . shall apply to State program amendments. . . (4) All State program
amendments which may have an effect on historic properties shall be provided to the State
Historic Preservation Officer and to the Advisory Council on Historic Preservation for comment.
Application of Other Federal Laws under a Federal or State SMCRA Program
Title 30 Code of Federal Regulations Section 736.22 (a)
In promulgating or revising any Federal program for a State, the Director shall ... (2) Include any
provisions that are necessary to implement. . . the National Historic and Preservation Act of
1966 (16 U.S.C. 470), the Archaeological and Historic Preservation Act of 1974 (16 U.S.C.
469a), and other relevant Federal laws imposing duties upon the Secretary.
Cultural and Historical Lands Unsuitable for Mining
Title 30 Code of Federal Regulations Section 761.5
Community or institutional building means any structure, other than a public building or an
occupied dwelling, which is used primarily for meetings, gatherings, or functions of local civic
organizations or other community groups; functions as an educational, cultural, historic, religious,
scientific, correctional, mental-health, or physical-health care facility; or is used for public
services, including, but not limited to, water supply, power generation, or sewage treatment.
Significant recreational, timber, economic, or other values incompatible with surface coal mining
operations means those values to be evaluated for their significance which could be damaged by
and are not capable of existing together with, surface coal mining operations because of the
undesirable effects mining would have on those values, either on the area included in the permit
application or on other affected areas. Those values to be evaluated for their importance include:
... (d) Scenic, historic, archeologic, esthetic, ... or cultural interests.
Title 30 Code of Federal Regulations Section 762.5
Historic lands means areas containing historic, cultural, or scientific resources. Examples of
historic lands include archeological sites, properties listed on or eligible for listing on a State or
National Register of Historic Places, National Historic Landmarks, properties having religious or
cultural significance to Native Americans or religious groups, and properties for which historic
designation is pending.
Title 30 Code of Federal Regulations Section 762.11(b)
Upon petition an area may be (but is not required to be) designated as unsuitable for certain types
of surface coal mining operations, if the operations will ... (2) Affect fragile or historic lands in
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HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
which the operations could result in significant damage to important historic, cultural, scientific,
or esthetic values or natural systems;
Title 30 Code of Federal Regulations Section 764.21
(a) The regulatory authority shall develop a data base and inventory system which will permit
evaluation of whether reclamation is feasible in areas covered by petitions.
(b) The regulatory authority shall include in the system information relevant to the criteria in
Section 762.11 of this Chapter, including, but not limited to ... the State Historic Preservation
Officer, . .
Written Findings by Regulatory Agency
Title 30 Code of Federal Regulations Section 773.15 (c)
Written findings for permit application approval. No permit application or application for a
significant revision of a permit shall be approved unless the application affirmatively
demonstrates and the regulatory authority finds, in writing, on the basis of information set forth in
the application or from information otherwise available that is documented in the approval, the
following ... (11) The regulatory authority has taken into account the effect of the proposed
permitting action on properties listed on and eligible for listing on the National Register of
Historic Places. This finding may be supported in part by inclusion of appropriate permit
conditions or changes in the operation plan protecting historic resources, or a documented
decision that the regulatory authority has determined that no additional protection measures are
necessary.
Permitting Requirements under a Federal Program
Title 30 Code of Federal Regulations Section 740.13 (b)(3)
Each permit application package shall include . . . (iii) Where OSM is the regulatory authority or
where the proposed operations are on lands containing leased Federal coal, the following
supplemental information to ensure compliance with Federal laws and regulations other than the
Act...
(C) A statement, including maps and ownership data as appropriate, of any cultural or historical
sites listed on the National Register of Historic Places within the affected area of the proposed
surface coal mining and reclamation operation.
(D) A statement of the classes of properties of potential significance within the disturbed area,
and a plan for the identification and treatment, in accordance with 36 CFR Part 800, of properties
significant and listed or eligible for listing on the National Register of Historic Places within the
disturbed area of the proposed surface coal mining and reclamation operation.
General Permit Requirements
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Appendix B
HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
Title 30 Code of Federal Regulations Section 779.12 (b)
Each application shall describe and identify ... (1) The nature of cultural, historic and
archeological resources listed or eligible for listing on the National Register of Historic Places
and known archeological sites within the proposed permit and adjacent areas. The description
shall be based on all available information, including, but not limited to, information from the
State Historic Preservation Officer and from local archeological, historical, and cultural
preservation agencies. (2) The regulatory authority may require the applicant to identify and
evaluate important historic and archeological resources that may be eligible for listing on the
National Register of Historic Places, through (i) Collection of additional information, (ii) Conduct
of field investigations, or (iii) Other appropriate analyses.
Title 30 Code of Federal Regulations Section 779.24
The permit application shall include maps showing . . . (i) The boundaries of any public park and
locations of any cultural or historical resources listed or eligible for listing in the National
Register of Historic Places and known archeological sites within the permit and adjacent areas; (j)
Each cemetery that is located in or within 100 feet of the proposed permit area.
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Appendix B
HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
Title 30 Code of Federal Regulations Section 780.31
(a) For any publicly owned parks or any places listed on the National Register of Historic Places
that may be adversely affected by the proposed operation, each plan shall describe the measures
to be used (1) To prevent adverse impacts, or (2) If valid existing rights exist or joint agency
approval is to be obtained under Sec. 761.17(d) of this chapter, to minimize adverse impacts.
(b) The regulatory authority may require the applicant to protect historic or archeological
properties listed on or eligible for listing on the National Register of Historic Places through
appropriate mitigation and treatment measures. Appropriate mitigation and treatment measures
may be required to be taken after permit issuance provided that the required measures are
completed before the properties are affected by any mining operation.
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Appendix B
HUMAN & COMMUNITY: OSM PROGRAMMATIC REVIEW
Performance Standards
Title 30 Code of Federal Regulations Section 810.2
The objective of this Subchapter is to ensure that coal exploration and surface coal mining and
reclamation operations are conducted in a manner that is compatible with the environmental,
social, and esthetic needs of the Nation. Accordingly, the performance standards and design
requirements in this Subchapter will provide for ... (h) Protection of fragile and historic lands
where surface coal mining operations could result in significant damage to important historic,
cultural, scientific, or esthetic values and natural systems;
Applicable Policies
OSM Directive No. TSR-7 dated December 18, 1987 and entitled "Protecting Historic Properties"
is attached.
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Appendix B
Surface Mining Control and Reclamation Act (SMCRA)
Title V of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87, 30 USC 1201 et
seq.) produced the first comprehensive Federal program intended:
• To set a national standard and define a detailed program for mining coal and
reclaiming mined land
• To prohibit mining from areas where reclamation is not feasible
• To balance the agricultural productivity of land against coal resources and ensure
adequate agricultural production following mining
• To allow the public to participate in decisions when the environment might be
affected by coal mining
To achieve reclamation of previously mined and abandoned lands.
SMCRA encourages State administration of the Title V program under the supervision of the U.S.
Department of Interior, Office of Surface Mining. SMCRA regulates all surface mines, together
with those underground mines that will disturb more than two acres of surface lands, including
haul roads. SMCRA also regulates freestanding coal preparation plants located outside the permit
areas of active mines, and substantial coal exploration activities.
The purpose of SMCRA, as specified in the Act is as follows:
(a) establish a nationwide program to protect society and the environment from the adverse
effects of surface coal mining operations;
(b) assure that the rights of surface landowners and other persons with a legal interest in the
land or appurtenances thereto are fully protected from such operations;
(c) assure that surface coal mining operations are so conducted as to protect the environment;
(d) assure that adequate procedures are undertaken to reclaim surface areas as
contemporaneously as possible with the surface coal mining operations;
(e) assure that the coal supply essential to the nation's energy requirements, and to its
economic and social well-being is provided and strike a balance between protection of the
environment and agricultural productivity and the nation's need for coal as an essential
source of energy;
(f) assist the States in developing and implementing a program to achieve the purposes of this
Act;
(g) promote the reclamation of mined areas left without adequate reclamation prior to the
enactment of this Act and which continue, in their unreclaimed condition, to substantially
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Appendix B
degrade the quality of the environment, prevent or damage the beneficial use of land or
water resources, or endanger the health or safety of the public;
(h) assure that appropriate procedures are provided for the public participation in the
development, revision, and enforcement of regulations, standards, reclamation plans, or
programs established by the Secretary or any State under this Act;
(i) provide a means for development of the data and analyses necessary to establish effective
and reasonable regulation of surface mining operations for other minerals;
(j) encourage the full utilization of coal resources through the development and application of
underground extraction technologies;
(k) stimulate, sponsor, provide for and/or supplement present programs for the conduct of
research investigations, experiments, and demonstrations, in the exploration, extraction,
processing, development, and production of minerals and the training of mineral engineers
and scientists in the field of mining, minerals resources, and technology, and the
establishment of an appropriate research and training center in various States; and
(1) wherever necessary, exercise the full reach of Federal constitutional powers to insure the
protection of the public interest through effective control of surface coal mining
operations.
Federal regulations that implement SMCRA establish both minimum performance standards
describing how coal must be mined and reclamation activities that are required to protect the
environment and public health. The permanent program performance standards under SMCRA
address many environmental issues similar to those addressed under a NEPA review.
USOSM, with input from USEPA, has developed performance standards for surface mining
operations that include standards for signs and markers to identify the various working areas of
the mine, permit area boundaries, and buffer zones. Other operational standards discuss nearly
every aspect of coal mining that is generally applicable to the industry. These standards include
coal recovery, disposal of non-coal wastes, and use of explosives in coal mining, to name a few.
They are codified in Title 30 CFR, Chapter VII, Parts 700 through 899.
Protection of Surface Water and Groundwater Resources
Surface water and groundwater resource protection is mandated by pre-mining study
requirements together with performance standards promulgated under several topics, especially
Hydrologic Balance. The performance standards address surface water and groundwater
diversions, sedimentation ponds, and other surface and subsurface discharge structures. Dams
and embankments of coal wastes are regulated, as are the casing and sealing of wells and other
underground openings. The standards also define water rights of neighboring groundwater users.
SMCRA requires replacement of domestic, agricultural, or industrial water supplies that have
been affected by contamination, diminution, or interruption resulting from surface mining
activities.
Protection of Aquatic and Terrestrial Ecosystems
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Appendix B
Aquatic ecosystems are afforded protection under SMCRA through protection of natural
watercourses, Section 515(c)(4)(D). The Hydrologic system is protected in Section 515(b)(2)
interpreted in regulations 30 CFR 715.17. Also, Section 515(6)(24) requires that the best
available control technology be used to minimize disturbances to aquatic biota, and through the
prohibition of mining on lands where reclamation is not feasible. This includes fragile lands,
lands containing non-renewable resources, and lands containing natural hazards. Terrestrial
ecosystems are protected under Section 515(6)(24), which requires that the best available
technology be used to minimize disturbance. Critical habitats of organisms that have been
Federally classified as threatened or endangered are further protected by the Act in a requirement
that these critical habitats be reported to the SMCRA regulatory agency so that review procedures
established under the Endangered Species Act can be followed.
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Appendix B
Hydro!ogic Balance
All surface mining and reclamation activities are to be conducted to minimize disturbance of the
hydrologic balance within the permit and adjacent areas, to prevent material damage to the
hydrologic balance outside the permit area, to ensure the protection or replacement of water
rights, and to support approved postmining land uses. The performance standards require the
operator to plan and carry out specific measures to ensure that the hydrologic balance is not
adversely affected.
Generally, protection of the hydrologic balance is achieved by requiring the operator to handle
surface runoff in a manner that minimizes the exposure of water to soils, and especially to acid-
and toxic-forming materials. These measures include channeling surface flow around the mine
site with diversion ditches, and passing all drainage within the disturbed area through sediment
control structures. To protect the groundwater, the operator is required to manage excavations
and other disturbances so as to prevent or control discharge of pollutants into the groundwater.
To avoid drainage from acid- or toxic-producing materials, the operator is required to identify the
strata that contain such materials, either bury the material or treat it, and during active operations
to store or stockpile the materials in a manner that inhibits their contact with surface or
groundwater.
Several Federal regulations protect the hydrologic system during the conduct of surface mining
and subsequent reclamation. Protection of the hydrologic balance is covered by 30 CFR
816.41 (a), which requires that all surface mining and reclamation activities "be conducted to
minimize disturbance to the hydrologic balance" in the permit and adjacent areas, and that
material damage to the hydrologic balance outside the permit area be prevented.
Protection of the pre-mining groundwater resource is covered by 30 CFR 816.41(b), which
requires the handling of earth materials in a manner that minimizes infiltration of contaminants
into the groundwater system, and restores approximate pre-mining recharge capacity. (The
hydrologic reclamation plan in 30 CFR 780.21(h) describes how the permittee proposes to mine
and reclaim so as to meet these requirements.)
Surface water is protected under 30 CFR 816.41(d) which requires proper handling of earth
materials, groundwater discharges and surface runoff so as to minimize the formation of
acid/toxic drainage and additional contributions of suspended solids to streams.
Protection of the hydrologic system from acid/toxic materials is further addressed by 30 CFR
816.41(f) which requires specific storage, burial or treatment practices to avoid drainage into the
groundwater or surface water from acid/toxic materials.
The rights of potentially affected water users are protected by 30 CFR 816.41(h) which requires
replacement of a water supply that has been impacted, i.e. contaminated, diminished, or
interrupted, by surface mining activities. Replacement of domestic water supplies damaged by
underground mining operations conducted after October 21, 1992 is required by 30 CFR
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Appendix B
The quality of water leaving permitted areas is governed by 30 CFR 816.42 which incorporates
the point-source effluent limitations of the Environmental Protection Agency by reference to 40
CFR Part 434.
Protection of water quality through construction and maintenance of temporary and permanent
diversions of streams away from disturbed areas is addressed in 30 CFR 816.43. To divert the
overland flow around the disturbed area, the operator constructs diversion ditches that are stable,
able to afford protection against flooding, and designed to prevent contributions of suspended
solids to the surface-water system. Control of on-site surface flow is accomplished by passing all
drainage through a sediment pond. The sediment pond is designed to allow suspended solids to
settle out, and if needed, water treatment is performed before the water leaves the disturbed area.
These structures are designed according the criteria set forth at 30 CFR 816/817.49 which
establishes the requirements for design certification, structure stability, the freeboard, foundation
stability, spillways and the frequency of inspections that are to be conducted by a qualified
registered professional engineer.
Sediment is also controlled by use of proper mining techniques that limit the amount of sediment
generated during the mining operation. These methods include disturbing the smallest area
possible, reclaiming disturbed areas as soon as possible after the coal is removed, stabilizing all
backfill material so that the volume and rate of runoff is controlled, and diverting runoff around
exposed areas. Sediment transport from disturbed areas is also controlled by using straw bales,
rip rap, check dams, mulches, and vegetation on site (30 CFR 816.45).
To ensure that water quality and quantity are not adversely affected during the course of the
mining operation, and that water discharges from the disturbed areas are in compliance with all
applicable State and Federal water quality laws, a monitoring program is required for both ground
and surface water. During the permitting process the operator must submit a monitoring plan as
part of the permit to be approved by the regulatory authority. Each plan is to specify monitoring
sites, parameters that will be measured, and the frequency of measurement. Hydrologic data
collected during mining operations will be submitted to the regulatory authority at least every
three months and continue until final bond release. If during the course of mining operations, the
monitoring reports indicate that a water quality parameter has exceeded the acceptable level, the
operator must contact the regulatory authority and initiate action to correct the problem (30 CFR
816.451).
Further protection of the hydrologic balance is provided by prohibition of mining operations
being conducted within 100 feet of a perennial or intermittent stream as set forth at 30 CFR
816/817.57. This provision is to keep mining operations from adversely affecting a stream by
maintaining a buffer zone between the stream and the mining operation.
Sediment ponds, unless they are designed, constructed, and approved as permanent structures,
must be removed prior to final bond release. Prior to their being removed and the area reclaimed,
any water discharges from the structure must meet State or Federal EPA effluent limitations (30
CFR 816.46).
Fish and Wildlife
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Appendix B
Coal mining operation? are required to be planned, designed and operated to minimize impacts to
fish and wildlife and their habitats. As part of the permitting process, applicants are required to
submit a plan demonstrating that the proposed mining operation will be conducted in a manner
which minimizes impacts to species existing within the proposed permit area and their habitats.
The operator must comply with performance standards designed to protect fish and wildlife and
their habitats as set forth at 30 CFR 816/817.97. These include the provisions summarized below.
To ensure protection of endangered or threatened species that exist within the permit area, no
mining activity may be undertaken which is likely to jeopardize the existence of these species or
their habitats. If during the course of mining the operator becomes aware of such species at the
site, he shall contact the regulatory authority. The regulatory authority, in consultation with the
State and Federal fish and wildlife agencies, will determine whether, and under what conditions,
the operator may proceed.
If the permit area includes wetlands or other habitats of unusually high value for fish and wildlife,
the operator shall avoid disturbing these areas and if practicable enhance, or replace or restore
these areas.
Power lines and other transmission facilities must be designed and constructed to minimize
electrocution hazards to raptors. Haul and access roads must be located and operated to avoid or
minimize impacts on important fish and wildlife resources. Fences, overland conveyances and
other barriers must be designed to allow large mammals passage through the permit area. If
concentrations of toxic-forming materials occur in a pond, the pond must be fenced or covered so
that wildlife do not have access to the facility. If the postmining land use is fish and wildlife
habitat, the vegetation used on the site must have nutritional value for wildlife, provide cover and
continue to support and enhance the habitat after the performance bonds are released.
Topsails and Subsoils
Protection of the soils within an area to be disturbed by surface mining is achieved through design
and operation of the mine in compliance with the performance standards for soils handling at 30
CFR 816/817.22. To ensure that the soils are available for redistribution on completion of coal
extraction, soils must be salvaged before mining and protected during the course of mining.
Before any surface disturbance occurs, the mining area is cleared of all vegetative material. The
topsoil, if it is of sufficient quality to sustain vegetation and is at least six inches thick, is removed
from the site separate from any subsoil material. The topsoil is stockpiled in a designated topsoil
storage area that is protected from contaminants and unnecessary compaction. To prevent
erosion, the stockpile is temporarily revegetated and located so that winds and surface drainage
do not blow or wash it away. The regulatory authority may require subsoils to be removed and
stockpiled, if necessary to achieve revegetation. When mining is completed, but before topsoil is
distributed on the mined area, the soil is tested to determine if any additional nutrients or soil
amendments are needed to ensure an adequate growing medium. The soils are then redistributed
over the mined area so that a uniform thickness is achieved, and prepared for seeding or planting.
Selected overburden materials (subsoils) may be substituted for topsoil if the operator can
demonstrate through testing that the resulting soil medium is equal to or more suitable for
sustaining vegetation that the existing topsoil.
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Appendix B
Protection of Specific Land Uses
SMCRA prohibits new surface mine operations within 300 feet of any public park or within
National Parks, National Wildlife Refuges, the National System of Trails, Wilderness Areas, Wild
and Scenic Rivers, and National Recreation Areas. It also requires that all new coal mining
operations that may affect a public park first be approved by the agency with jurisdiction over the
park. Surface mining activities may be excluded from Federal lands in National Forests, if the
Secretary of Agriculture finds that multiple uses of the National Forest would be impaired by the
proposed mining. The public notice provisions of the SMCRA provide opportunity for owners of
private recreational facilities to comment on coal mine permit applications that may affect the
operations of such facilities.
No new coal mines can be permitted that may affect publicly owned places that are listed on the
National Register of Historic Places, unless such mining is approved by the State Historic
Preservation Officer. The regulatory authority's discretionary power to prohibit mining includes
those areas where mining may affect historic lands of cultural, historic, scientific, or aesthetic
value.
SMCRA sets special performance standards for mining on prime farmlands. Prime farmland is
defined as land with suitable resource characteristics (as determined by USDA-SCS) that also has
been used as cropland for at least five of the ten years before its proposed use for mining
purposes. The SMCRA standards require that soil removal, stockpiling, replacement, reclamation,
and revegetation methods return mined prime farmland to a level of productivity equal to that
which it had before disturbance.
Within the discretionary provisions for designating areas as unsuitable for mining, the regulatory
authority can prohibit surface mining that would affect lands subject to hazards, including areas
subject to frequent flooding. The regulatory authority also may prohibit mining activities in areas
with unstable geologic characteristics, and it may impose special standards for such areas related
to woody material disposal, topsoil handling, downslope spoil disposal, head-of-hollow and
valley fills, and pre-existing underground mines. The regulatory authority may designate an area
as unsuitable for mining based on the incompatibility of mining activities with existing land use
plans of local governments. The general performance standards of the Act also set forth
requirements for mining roads and require that post-mining land uses on mined sites be
compatible with adjacent land use policies and plans.
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Appendix B
Noise and Vibration
The USOSM performance standards require that noise and vibration from blasting operations be
controlled to minimize the danger of adverse effects from airblast and vibration to humans and
structures. The Act requires pre-blast surveys, resident notification of blasting schedules, limits
on air blasts, explosives handling rules (including requirements for blasters-in-charge), and
recordkeeping requirements.
Explosives
Most mining operations use explosives to remove overburden from above the coal seam.
Operators are required to comply with all State and Federal laws that regulate the use of
explosives, as well as complying with performance standards at 30 CFR 816/817.61-.68. These
standards are designed to minimize any adverse impacts related to blasting, such as ground
vibration, airblast levels, or flyrock causing personal injury or property damage.
As part of the permit application, operators are required to submit a blasting plan that details
where blasting will occur, what type and amount of explosives to be used, and how frequently
they will be detonated. When mining begins, and at least thirty days prior to any blasting, the
operator must notify in writing, all residents or owners of structures located within one-half mile
of the permit area that they may request a pre-blasting survey. The operator conducts a pre-
blasting survey of the structure to determine its condition, documenting any existing damage to
the structure, and any other structures present such as pipelines, cables, transmission lines,
cisterns, power lines, and wells. The operator will then prepare a written report signed by the
person who conducted the survey. Copies of the report shall be promptly provided to the person
requesting the survey and to the regulatory authority. If the property owner disagrees with any of
the specifics in the report, the points of disagreement are forwarded to the operator and to the
regulatory authority.
To ensure that the public is adequately notified of when blasting will occur at a mine site, the
operator obtains approval of a blasting schedule from the regulatory authority during the
permitting process. The schedule includes the name, address, and telephone number of the
operator, the specific areas in which blasting will occur, the dates and time periods when blasting
will occur, the methods to control access to the blasting area, and the type and patterns of audible
warning and all-clear signals to be used before and after blasting. This schedule is approved by
the regulatory authority, and unless night operations are approved, blasting will be conducted
between sunrise and sunset. The approved schedule is circulated to local government agencies,
public utilities and to anyone residing within one-half mile of the permit area. In addition, for
surface mining operations the schedule is to be published in a local newspaper at least ten days,
but not more than thirty days, before blasting begins.
Community Integrity and Quality of Life
SMCRA prohibits new mining operations within 40 feet of any roadway, or within 100 feet of a
public road right-of-way (except where a mine haul road enters or adjoins the right-of-way)
without public notice. The public has opportunity to comment and ensure that it is adequately
protected from the potentially adverse effects of additional traffic and right-of-way acquisition.
SMCRA also prohibits outright any surface mining operations within 300 feet of an occupied
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Appendix B
dwelling without the owner's consent; within 300 feet, of any public, institutional, or community
building, church, or school; or within 100 feet of a cemetery.
SMCRA includes a general public notice provision to facilitate public involvement in the permit
evaluation process before a permit is issued. Public comments may lead the regulatory authority
to revise, condition, or deny permit applications.
Postmining Land Use
Before the permit is approved by the regulatory authority, the operator must submit a postmining
land use plan that states what the land use will be after mining is completed. This land use plan
must have the approval of the landowner and must comply with the performance standards at 30
CFR 816/817.133. These standards require the operator to restore the land in a timely manner to
conditions capable of supporting a use at least equal to what the land use was before any mining.
Upon approval of the postmining land use by the regulatory authority, the mining and reclamation
operations will be designed and carried out to ensure that final reclamation will result in
conditions capable of supporting the approved postmining land use. If, during the course of the
mining operations, the regulatory authority determines that reclamation is not proceeding in
accordance with the approved postmining land use plan, the operator will be required to alter the
mining operation to achieve the postmining land use. Although 30 CFR 816/817.133 contains
provisions for changing the postmining land use, it is assumed that neither the regulatory
authority nor the land management agency or landowner would agree to a change from the
premining land use in 522(e) areas.
Excess Spoil
Overburden that is removed to expose the coal seam and which is unnecessary for reclaiming the
mine site is considered excess spoil. Regulations at 30 CFR 816/817.71 set forth the standards for
handling and placing this material into approved designated spoil disposal areas within the permit
area. Placement of excess spoil is performed in a controlled manner to minimize the adverse
effects of leachate and surface-water runoff, ensure site stability, and ensure that the final disposal
area is suitable for reclamation and supports the approved postmining land use. Selection of the
disposal area must be approved by the regulatory authority.
The final configuration of the fill must be compatible with the postmining land use, with a final
slope between the terraces not exceeding fifty percent. If the excess disposal area is to be located
where waterways are present, a drainage system must be installed. This prevents surface water
and groundwater from saturating the fill, leading to instability and danger of landslides.
To ensure that all design standards are complied with, the fill is inspected by a qualified person
under the direction of a professional engineer on a quarterly basis and during the critical
construction phases. These critical phases include the foundation preparation, placement of the
drainage system, and final grading and revegetation.
The requirements for the disposal of excess spoil vary slightly between surface and underground
mining operations. 30 CFR 817.71 authorizes small amounts of spoil resulting from face-up
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Appendix B
operations for underground coal mine development to be used as terraces at underground mine
entries for the support of mine buildings and equipment.
Coal Mine Waste Disposal
Mined coal may be processed at the mine site, resulting in waste material being separated from
the coal. This waste material can be buried at the mine site if the regulatory authority approved a
coal waste disposal area complying with 30 CFR 816/817.81. The disposal area is approved in
the permitting process if the operator demonstrates that construction of the waste fill will not
adversely affect the surface and groundwater regimes, that it will be stable, is suitable for
reclamation and revegetation, is compatible with the postmining land use, does not create a public
hazard, and is designed to prevent combustion of the materials being buried. The fill must be
designed by a qualified registered professional engineer.
If the proposed disposal area contains springs or streams, the excess spoil fill will be constructed
with under drains and surface water diversions that either carry the surface drainage under the fill
or around it. This drainage system reduces contact of coal waste material with surface or
groundwater that may result in fill instability or production of acid or toxic water. Coal waste
material is transported to the site and placed in the manner that was approved in the permit
application. Placement may be in terraces, so the material can be compacted to ensure stability
and to provide for control of surface drainage on the fill. Once placed in the fill, waste material
will be covered with at least four feet of the best available, non-toxic and non-combustible
material. The fill will then be revegetated.
During construction of the fill, a qualified professional engineer will inspect the site at least
quarterly and at each critical construction phase. Critical construction phases include foundation
preparation, installation of drainage systems, and final grading and revegetation of the fill.
Backfilling and Grading
As the mining operation proceeds, areas where coal has been removed are to be reclaimed in a
contemporaneous manner, or according to a schedule approved by the regulatory authority as
stated at 30 CFR 816/817.100. The first phase of this reclamation is backfilling and grading the
mined area, to be carried out in accordance with the requirements at 30 CFR 816/817.102-.107.
The spoil material that was removed to expose the coal seam is returned to the area, unless it was
placed in an excess spoil fill. The spoil is compacted to ensure stability and to prevent leaching
of any toxic materials that may be present. The spoil is graded so the approximate original
contour is achieved, with the elimination of all highwalls, spoil piles and depressions. If acid-
and toxic-forming materials are present, these materials will be covered with non-toxic and non-
combustible material, or treated, to prevent impacts to the surface and groundwater regimes.
Upon completion of the backfilling, the site is graded, topsoil is spread, and the site is seeded and
mulched. The regulations at 30 CFR 816.99 and 816.107 are designed to ensure that backfilling
operations prevent landslides in steep slope areas.
Revegetation
Successful mine site reclamation also requires successful revegetation. To ensure that
revegetation is successful, the operator must comply with the performance standards at 30 CFR
Mountaintop Mining / Valley Fill DEIS B-151 2003
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Appendix B
816/817.111-116. The operator is required to establish a vegetative cover on all areas that were
disturbed during the mining operation.
The permanent vegetative cover that was approved in the permitting process must support the
approved postmining land use and be diverse, effective and permanent; comprised of species
native to the area (or of introduced species where necessary to achieve the postmining land use);
be at least equal in extent of cover to the natural vegetation in the area; and be capable of
stabilizing the land surface from erosion. The reestablished plant species shall be compatible
with the approved postmining land use; have the same seasonal characteristics of growth as the
original vegetation; be capable of regeneration and plant succession; and be compatible with
plants and animals in the area. Revegetation of the site must be performed during the first normal
planting season after the site has been backfilled and topsoil replaced. Once seeding and/or
planting of the area has occurred, the area will either be mulched or some other approved soil
stabilizing practice used to prevent erosion, unless the regulatory authority determines that
erosion will not be a problem.
Prior to bond release on the site, success of revegetation will be measured by the regulatory
authority. Success will be judged on its effectiveness for the approved postmining land use, and
extent of cover compared to the cover in natural vegetation of the area, and the requirements in
the paragraph above. Statistically valid sampling tests must be used. Ground cover, production
or tree and shrub stocking shall be no less than 90 percent of the approved success standard. For
fish and wildlife habitat, recreation or forest products, success is based on tree and shrub
plantings as well as ground cover. Trees and shrubs must be healthy and in place for not less than
two growing seasons. If the area is determined not to have achieved revegetation success, the
operator is required to take whatever action the regulatory authority deems appropriate to
augment the revegetation in order to achieve successful revegetation.
Operators have a period of extended responsibility for successful revegetation. This period
begins after the last year of augmented seeding, fertilization or irrigation. In areas with more than
26 inches of annual average precipitation, the period of responsibility lasts no less than five full
years. Where annual average precipitation is less than 26 inches, the period of responsibility lasts
no less than 10 full years. The purpose is to achieve a reasonable degree of certainty that the
plantings have taken hold and can remain viable without further human tending.
Subsidence
USOSM regulations at 30 CFR 817.121(a) require mine operators to adopt measures consistent
with known technology which prevent subsidence from causing material damage to the extent
technologically and economically feasible, maximize mine stability and maintain the value and
reasonably foreseeable use of the surface lands; or adopt mining technology which provides for
planned subsidence in a predictable and controlled manner. Under section 817.121(d) of the
above rule USOSM and the State regulatory authorities may limit the percentage of coal
extraction underneath public buildings and facilities, churches, schools and hospitals,
impoundments with more than 20 acre-feet storage capacity or under any aquifer that serves as a
significant water source for any public water supply system. Also, the regulatory authorities may
suspend mining activities under urban areas, cities, towns and communities and adjacent to major
impoundments and perennial streams, if subsidence causing material damage can result in
imminent danger situations to inhabitants of the urbanized areas, cities, towns and communities.
Mountaintop Mining / Valley Fill DEIS B-152 2003
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Appendix B
Regulations implementing provisions of The Energy Policy Act of 1992, require all underground
coal mining operations conducted after October 24, 1992, to promptly repair or compensate for
material damage to non-commercial buildings and occupied residential dwellings and related
structures as a result of subsidence due to underground coal mining operations, and to replace
drinking, domestic, and residential water supplies which have been adversely affected by
underground coal mining operations. The regulations also require repair of damage to include
rehabilitation, restoration, or replacement of the identified structures, or compensation to the
owners in the full amount of the diminution in value resulting from the subsidence. A pre-
subsidence survey is required to document the condition of non-commercial buildings and
occupied residential dwellings and related structures subject to subsidence-related damage caused
by underground mining activities.
Roads
Access to coal mining operations requires the construction and maintenance of access and haul
roads from a public road to the mine site. To ensure that such roads are designed, constructed,
maintained and used to minimize damage to the public health and safety and to the natural
environment, the operator must comply with performance standards set forth at 30 CFR
816/817.150-. 151. The performance standards which apply to any access or haul road depend on
whether the road is primary or ancillary. Primary roads are used for coal or spoil haulage, used
for site access for more than six months, or will be retained for the postmining land use.
Ancillary roads are those roads that are not defined as primary.
Any road that is constructed or used as access to a mine site must meet performance standards
that control or prevent: erosion and dust, damage to fish and wildlife and their habitats,
contribution of suspended solids to stream flow or runoff outside the permit area. Roads must not
cause or contribute to violation of Federal or State water quality standards, must refrain from
seriously altering the normal flow of water in stream beds or drainage channels, and non-acid-
and non-toxic-forming substances must be used in road surfacing. Additionally, all roads will be
designed and constructed in accordance with current engineering practices and not located in the
channel of an intermittent or perennial stream. Upon completion of mining activities, the roads
will be removed (if not needed for the approved postmining land use) and the area reclaimed to
support the postmining land use.
If a road is classified as a primary road, the operator must meet the performance standards cited
above, plus the standards at 30 CFR 816/817.151. These standards require that a qualified
registered professional engineer certify that the road has been constructed as designed and is in
accordance with the approved permit. Primary roads must have a minimum static safety factor of
1.3 on the embankment and be located on the most stable available surface. To prevent adverse
impacts to the environment associated with surface runoff, the primary roads must meet drainage
control criteria that include the construction and maintenance of ditches, culverts, and cross
drains.
Special Performance Standards
The general performance standards summarized above are nationwide minimum standards for
controlling the surface effects of coal mining. To address the special considerations of certain
geographical areas or coal mining methods, USOSM has developed a set of special performance
Mountaintop Mining / Valley Fill DEIS B-153 2003
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Appendix B
standards. These standards address auger mining, raining in alluvial valley floors, mining on
prime farmlands, mountaintop removal, bituminous coal mining in Wyoming, steep slope mining,
concurrent surface and underground mining, anthracite mining in Pennsylvania, regulations for
underground mining, independent coal processing plants and support facilities, and in-situ coal
utilization.
State SMCRA Programs
SMCRA contains provisions for enforcement of the environmental performance standards by a
state if the state can demonstrate that it can satisfactorily fulfill this function. In order to obtain
primacy from USOSM, the state must submit an application to USOSM indicating that the state
program has a basis in state law and a set of procedures and regulations that are adequate to
enforce the Federal standards. The states proposed laws and regulations must be no less stringent
than the Federal model and may be more stringent. USOSM can either accept and approve the
state program or it can adopt and implement its own program for the state. USOSM retains
regulatory control of coal mining on Federal and Indian lands. If the state is granted primacy,
USOSM monitors the state's enforcement of the program on a regular basis and evaluates the
states administration of the program at least annually. Should the state not meet USOSM's
requirements in carrying out the program, USOSM can enforce its own program within the state.
Kentucky has primacy; USOSM monitors the state's enforcement of the program on a regular
basis and evaluates the states administration of the program at least annually. The Kentucky
Revised Statutes Chapter 350 or 405 Kentucky administrative regulations Chapters 7 through 24.
Tennessee does not have primacy; USOSM has not delegated SMCRA authorities. The Tennessee
Division of Water, Mining Section implements the state surface mining permit program under
TDEC Rule 0400-3-1 et seq.TDEC Division of Surface Mining and TCA § 59-8-201 et seq.
Tennessee Mineral Surface Mining Law of 1972.
Virginia has primacy, USOSM monitors the state's enforcement of the program on a regular basis
and evaluates the state's administration of the program at least annually. The Virginia Department
of Mines implements the state surface mining permit program under the Virginia Coal Surface
Mining Control and Reclamation Act of 1979 (Va.Code §45.1-226) and Agency 25 Chapters.
West Virginia has primacy; USOSM monitors the state's enforcement of the program on a regular
basis and evaluates the state's administration of the program at least annually. The West Virginia
Surface Mining Reclamation Act (W.Va.Code §§22-3) and Regulations (Title 38 Series 2) were
changed in 1997. These changes have not yet received approval from the United States Office of
Surface Mining.
Mountaintop Mining /Valley Fill DEIS B-154 2003
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Appendix B
CWA
NPDES PERMIT PROGRAM
Clean Water Act Section 402
The NPDES is a program to control and eliminate water pollution from point sources (pipes or
outfalls) through a permit pursuant to Section 402(a)(l) of the Clean Water Act. States may be
authorized or "delegated" by EPA to implement the NPDES permit program.
Types of Point Sources: Industrial and Municipal
• Industrial Point Sources:
commercial, mining, and manufacturing facilities;
classified as "major" or "minor" through a rating system based on discharge flow,
pollutant loading. Mining point sources may be determined majors on a case-by-
case basis.
EPA has the authority to review, comment, or object to draft NPDES permits for
all major, and for minors of certain industrial categories such as coal mining.
• Municipal Point Sources:
domestic wastewater discharges from Sewage Treatment Facilities
classified as "major" if the discharge flow is greater than 1 million gallons per day.
Contents of NPDES Permit:
• Effluent Limits
• Standard requirements such as monitoring and reporting (40 CFR 122)
• Specific conditions for the type of facility
Types of Effluent Limits:
• Technology-based Limits for Industrial facilities: effluent limitations based on
industry-wide treatment technology. The minimum level treatment for toxic and non-
conventional pollutants is Best Available Treatment Economically Achievable (BAT).
Special standards are set for "new sources" (NSPS). The NPDES permit regulations list
specific effluent guideline limits for most industry categories, including coal mining. For
coal mining, BAT normally consists of neutralization, precipitation of metals, and
sedimentation. Specific effluent limits expressed in concentrations are required for pH,
iron, manganese, and suspended solids.
• Technology-based Limits for Municipal facilities: effluent limitations based on "secondary
treatment" (40 CFR 133):
• Water Quality-Based Limits: effluent limitations designed to protect aquatic life and
human health. Limits are calculated using a simple mass balance equation or more
complex models. For calculating water quality-based effluent limits the following
information is needed: flow of the stream, discharge flow, concentration of the pollutants
in the discharge, and the concentration of the pollutant in a stream which will protect
aquatic life and human health.
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Appendix B
CWA
DISCHARGE OF DREDGED OR FILL MATERIAL
• Effluent limits in the NPDES permit are the more stringent of BAT or Water Quality -
Based Limits
Types of Pollutants Categories:
• Conventional Pollutants: BOD, TSS, fecal coliform, pH, and oil and grease
• Toxic Pollutants: organics and metals
• Nonconventional Pollutants: nitrogen and phosphorus
Permit Processing:
• Permit applications must be submitted 180 days before commencement of discharge or for
renewal. Two forms are required. Form 1 lists activities covered, identifying information,
location, a list of other environmental permits, a topographical map of the facility, a brief
description of the nature of the business. Form 2 requires detailed information about the
discharge.
• EPA must review applications for completeness and notify and applicant of completeness
or deficiencies. (States are not required to do this, but many do.)
• Public comment is required. All interested parties may comment on the draft permit and
may request a hearing. Hearing request must be in writing and state the issues to be raised
at the hearing.
Permit Monitoring and Reporting:
• Facilities are normally required to analyze the concentration of pollutants in its discharge,
the discharge flow, and report the results to the NPDES authority on a form (Discharge
Monitoring Report -DMR). For municipalities and some industry categories, the results
are expressed in concentrations; others are expressed in loadings.
• The NPDES permit describes frequency of the monitoring, the sample location, and the
test methods.
• Computer database maintains records of all the reports on the discharge.
Mountaintop Mining / Valley Fill DEIS B-156 2003
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Appendix B
CWA
FACT SHEET ON THE 404 PROGRAM REGULATING DISCHARGE OF DREDGED OR FILL MATERIAL
Clean Water Act Section 404
The Army Corps of Engineers ("Corps") is authorized by sec. 404 of the CWA to issue permits
for the discharge of dredged or fill material in waters of the U.S. Coal mining operations often
result in the discharge of fill material into U.S. waters, notably "valley fills" associated with steep
slope mining.
Under circumstances explained in sec. 404(e), the Corps may issue general permits for discharges
determined to have a minimal effect. Such a general permit is currently in effect for discharges of
fill material from coal mining operations regulated under SMCRA.
EPA's main responsibilities under sec. 404: EPA has several duties under sec. 404, the most
significant of which is to issue the environmental standards which the Corps must apply in
making permit decisions. These standards, the "404(b)(l) Guidelines", are found in 40 CFR Part
230 and are summarized below. Under part 230.10, no discharge of dredged or fill material can
be permitted if it will cause or contribute to "significant degradation" of the waters of the U.S.
EPA also has the ultimate authority for determining the scope of CWA jurisdiction, although the
Corps makes such decisions on a daily basis.
EPA reviews and comments on individual permit applications, and has the authority under 404(c)
to effectively limit or veto a permit, by restricting "the specification...of any defined area as a
disposal site" for dredged or fill material.
States may apply for authority to issue 404 permits for discharges in the State's waters which are
not "navigable in fact". EPA is responsible for approving a State's authority, following criteria in
sec. 404(h), and conducts oversight of approved programs. The Corps retains authority for
activities in waters which are navigable in fact.
Applicable Statutory Provisions
CLEAN WATER ACT, SECTION 404: PERMITS FOR DREDGED AND FILL MATERIAL
(a) Discharge into navigable waters at specified disposal sites.
The Secretary [of the Army] may issue permits, after notice and opportunity for public
hearings for the discharge of dredged or fill material into the navigable waters at specified
disposal sites. . . .
(b) Specification for disposal sites.
Subject to subsection (c) of this section, each such disposal site shall be specified
for each such permit by the Secretary:
(1) through the application of guidelines developed by the Administrator, in
conjunction with the Secretary, which guidelines shall be based upon criteria
comparable to the criteria applicable to the territorial seas, the contiguous zone,
and the ocean under section 403(c), and
(2) in any case where such guidelines under clause (1) alone would prohibit the
specification of a site, through the application additionally of the economic impact
of the site on navigation and anchorage.
(c) Denial or restriction of use of defined areas as disposal sites.
Mountaintop Mining / Valley Fill DEIS B-157 2003
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Appendix B
CWA
FACT SHEET ON THE 404 PROGRAM REGULATING DISCHARGE OF DREDGED OR FILL MATERIAL
The Administrator is authorized to prohibit...any defined area as a disposal site,
and he is authorized to deny or restrict the use of any defined area...as a disposal site,
whenever he determines,...that the discharge of such materials into such area will have an
unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas
(including spawning and breeding areas), wildlife, or recreational areas. Before making
such determination, the Administrator shall consult with the Secretary....
(e) General permits on State, regional, or nationwide basis
(1) ...the Secretary may...issue general permits on a State, regional, or nationwide
basis for any category of activities involving discharges of dredged or fill material
if the Secretary determines that the activities in such category are similar in nature,
will cause only minimal adverse environmental effects when performed separately,
and will have only minimal cumulative adverse effects on the environment. Any
general permit issued under this subsection shall
(A) be based on the guidelines described in subsection (b)(l) of this section,
and...
(2) No general permit issued...shall be for a period of more than five years after
the date of its issuance. ..and such general permit may be revoked or modified by
the Secretary if, after opportunity for public hearing, the Secretary determines that
the activities authorized by such general permit have an adverse impact on the
environment or such activities are more appropriately authorized by individual
permits.
EPA Regulations
PART 230_SECTION 404(b)(l) GUIDELINES FOR SPECIFICATION OF DISPOSAL SITES
FOR DREDGED OR FILL MATERIAL
The Guidelines contain eight subparts, as follows:
Subpart A - provisions of general applicability
Subpart B - four conditions which must be satisfied
Subpart C - describes how a discharge may affect components of a site
Subparts D-F - characteristics and values of particular aquatic ecosystems
Subpart G - physical, chemical and biological evaluations and test
procedures
Subpart H - means to prevent or minimize adverse effects
Subpart I - advanced identification of disposal areas
Mountaintop Mining / Valley Fill DEIS B-158 2003
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Appendix B
CWA
FACT SHEET ON THE 404 PROGRAM REGULATING DISCHARGE OF DREDGED OR FILL MATERIAL
Extracts from the Guidelines
230.1 Purpose and policy.
(a) The purpose of these Guidelines is to restore and maintain the chemical, physical, and
biological integrity of waters of the United States through the control of discharges of
dredged or fill material.
(b) Congress has expressed a number of policies in the Clean Water Act. These Guidelines
are intended to be consistent with and to implement those policies.
(c) Fundamental to these Guidelines is the precept that dredged or fill material should not
be discharged into the aquatic ecosystem, unless it can be demonstrated that such a
discharge will not have an unacceptable adverse impact either individually or in
combination with known and/or probable impacts of other activities affecting the
ecosystems of concern, [emphasis added]
230.6 Adaptability
(a) The manner in which these Guidelines are used depends on the physical,
biological and chemical nature of the proposed extraction site, the material to be
discharged, and the candidate disposal site....
(b) The Guidelines user...must recognize the different levels of effort that should
be associated with varying degrees of impact and require or prepare commensurate
documentation. The level of documentation should reflect the significance and
complexity of the discharge activity.
230.10 Restrictions on discharge.
Note: Because other laws may apply to particular discharges and because the Corps or
State 404 agency may have additional procedural and substantive requirements, a discharge
complying with the requirement of these Guidelines will not automatically receive a permit.
(a) Except as provided under section 404(b)(2), no discharge of dredged or fill
material shall be permitted if there is a practicable alternative to the proposed
discharge which would have less adverse impact on the aquatic environment, so
long as the alternative does not have other significant adverse environmental
consequences.
(2) An alternative is practicable if it is available and capable of being done after
taking into consideration cost, existing technology, and logistics in light of overall
project purposes. If it is otherwise a practicable alternative, an area not presently
owned by the applicant which could reasonably be obtained...or managed in order
to fulfill the basic purpose of the proposed activity may be considered.
(b) No discharge of dredged or fill material shall be permitted if it:
(1) Causes or contributes, after consideration of..dilution and dispersion, to
violations of any applicable State water quality standard;
(3) Jeopardizes the continued existence of species listed as endangered or
threatened under the Endangered Species Act of 1973,...
Mountaintop Mining /Valley Fill DEIS B-159 2003
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Appendix B
CWA
FACT SHEET ON THE 404 PROGRAM REGULATING DISCHARGE OF DREDGED OR FILL MATERIAL
(c) Except as provided under section 404(b)(2), no discharge of dredged or fill
material shall be permitted which will cause or contribute to significant
degradation of the waters of the United States. Findings of significant degradation
related to the proposed discharge shall be based upon appropriate factual
determinations, evaluations, and tests required by subparts B and G, after
consideration of subparts C through F, with special emphasis on the persistence
and permanence of the effects outlined in those subparts... [e]ffects contributing to
significant degradation considered individually or collectively, include:
(1) Significantly adverse effects of the discharge of pollutants on human health or
welfare, including...effects on municipal water supplies, plankton, fish, shellfish,
wildlife, and special aquatic sites.
(2) Significantly adverse effects of the discharge of pollutants on life stages of
aquatic life and other wildlife dependant on aquatic ecosystems...
(3) Significantly adverse effects of the discharge of pollutants on aquatic ecosystem
diversity, productivity, and stability. Such effects may include, but are not limited to, loss
offish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients,
purify water, or reduce wave energy; or
(4) Significantly adverse effects of discharge of pollutants on recreational, aesthetic, and
economic values.
(d) Except as provided under section 404(b)(2), no discharge...shall be permitted
unless and appropriate and practicable steps have been taken which will minimize
potential adverse impacts of the discharge on the aquatic ecosystem. Subpart H
identifies such possible steps.
Guidance and Interpretation
There is considerable body of guidance and interpretative material for the sec. 404 program,
including: (1) Corps Regulatory Guidance Letters; (2) EPA Policy Memoranda; and (3) Interagency
Memoranda of Understanding or Agreement. A good reference compilation of documents is Strand,
Margaret N., Wetlands Deskbook, 2nd Edition, 1997, Environmental Law Institute, 1616 P Street,
N.W. Washington, D.C. 20036 (4) Army Corps of Engineers Standard Operating Procedures for the
Regulatory Program.
A particularly useful guidance document is the February 1990 Memorandum of Agreement between
EPA and the Corps concerning "The Determination of Mitigation Under the Clean Water Act Section
404(b)(l) Guidelines." Highlights of the document are:
• Reference to the broad, multi-part definition of mitigation in the Council on Environmental
Quality regulations at 40 CFR 1508.20, to include: avoiding impacts, minimizing impacts,
rectifying impacts, reducing impacts over time, and compensating for impacts. The MOU
simplifies this list by combining mitigation types into three general types: avoidance,
minimization and compensatory mitigation.
• Statement of policy that "[t]he determination of what level of mitigation constitutes
'appropriate' mitigation is based solely on the values and functions of the aquatic resource
that will be impacted."
• Clarification that the Corps will apply the three general types of mitigation in sequence: first
avoidance, then minimization, and finally, compensation for impacts to aquatic resource
values which cannot be avoided and minimized.
Mountaintop Mining /Valley Fill DEIS B-160 2003
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Appendix B
CWA
FACT SHEET ON THE 404 PROGRAM REGULATING DISCHARGE OF DREDGED OR FILL MATERIAL
Reference that measures to accomplish these steps can only be identified through resource
assessments tailored to the site and performed by qualified professionals. Monitoring is an
important aspect of mitigation.
Provision for one for one functional replacement, at a minimum, for all aquatic resources,
including wetlands.
Provision that mitigation requirements will be enforceable conditions of 404 permits.
Mountaintop Mining / Valley Fill DEIS B-161 2003
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Appendix B
CAA
Clean Air Act (CAA)
The Clean Air Act is intended to foster the protection and enhancement of the nation's air quality, and
to safeguard public health and welfare and the productive capacity of the population. The Act is
divided into three titles.
• Title I Air Pollution Prevention and Control deals with control of pollution from stationary
sources;
• Title II Emission Standards for Moving Sources deals with control of pollution from mobile
sources;
• Title III addresses general and administrative matters;
• Title IV Acid Deposition Control addresses acid rain problems;
• Title V Permits establishes an operating permit program for states to administer
• Title VI Stratospheric Ozone Protection establishes requirements to address stratospheric
ozone problems
The Clean Air Act requires EPA to promulgate national ambient air quality standards (NAAQS) for
certain pollutants to protect the public health (primary NAAQS) and protect the public welfare
(secondary NAAQS). NAAQS have been promulgated for criteria pollutants (currently particulate
matter, sulfur dioxide, carbon monoxide, ozone, nitrogen dioxide, and lead) to protect public health
and welfare.
Each State is required to adopt a plan, called a State Implementation Plan (SIP), that limits emissions
from air pollution sources to the degree necessary to achieve and maintain the NAAQS. The SIP
provides emission limitations, schedules and timetables for compliance by stationary sources. The
Act focuses on "major" stationary sources or major modifications of existing sources. Major sources
are defined as sources that emit, or have the potential to emit, more than a prescribed amount of a
designated pollutant. Section 110 of the Act requires each State to submit to EPA for approval a
"State Implementation PI an" for "implementation, maintenance, and enforcement" of these standards
in each air quality control region (or portion thereof) within the State. Each plan must include
source-specific emission limitations, and such other measures necessary to insure attainment and
maintenance of primary or secondary standards.
States are also required to adopt measures to prevent significant deterioration of air quality (PSD) in
"clean air areas." When a SIP is approved by the Administrator, it is enforceable by both the Federal
and State governments.
In addition to the SIP regulatory scheme, the Act establishes other major regulatory programs for
stationary sources. The New Source Performance Standards (NSPS) program establishes stringent
emissions limitations for "new" sources in designated industrial categories regardless of the State in
which the source is located or the air quality associated with the area.
The National Emissions Standards for Hazardous Air Pollutants (NESHAP), regulates emissions of
pollutants for which no NAAQS is applicable but that cause increases in mortality or serious
illnesses. The NESHAP program can be delegated to any qualifying State (CAA, Section 112).
EPA has designated all areas of the country as either "attainment" or "non-attainment" for each of
the criteria pollutants. SIPs must assure attainment of NAAQS by prescribed dates. SIPs must meet
Mountaintop Mining / Valley Fill DEIS B-162 2003
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Appendix B
CAA
Federal requirements, but each State may choose its own mix of emission controls for sources to meet
theNAAQS.
Air Quality Data and Trends
Information regarding air quality data and trends in the study area was electronically retrieved from
the EPA's online Aerometric Information Retrieval System (AIRS). The AIRS database is a
compilation air quality data collected from state and local environmental agencies who operate
monitoring sites throughout the nation. These monitoring sites utilize sensitive equipment to measure
the concentration of criteria air pollutants, which include carbon monoxide (CO), sulfur dioxide
(SO2), ozone (O3), nitrogen dioxide (NO2), and particulate Matter (PM10). The criteria air pollutants
associated with mining activity include particulates, sulfur oxides (Sox), nitrous oxides (NOX), and
carbon monoxide (CO) (Marcus 1997).
Although the new standards for PM2 5 (particulate matter smaller than 2.5 microns in diameter) were
established by the EPA in July 1997, monitoring will not be completed until between 2001 and 2004,
non-attainment areas will be designated between 2002 and 2005, and planning and control
requirements will be developed between 2005 and 2008. Attainment in non-attainment areas is
targeted between 2012 and 2015.
There are 42 monitoring stations located in the study area. Except for O3 levels, monitoring stations
in the study area reported good air quality for all criteria air pollutants. Stations monitoring O3
concentrations in Boyd and Greenup Counties (KY) reported multiple years where levels exceeded
EPA air quality standards. In addition, Pike County, KY, reported two days in 1994 where O3 levels
exceeded EPA air quality standards.
According to the EPA's online "Green Book" [http://www.epa. gov/oar/oaqps/greenbk/] a portion of
Boyd County, KY, is the only non-attainment area in the study area. This non-attainment portion of
Boyd County exceeds the NAAQS levels for SO2. In Boyd County, the sources of SO2 are petroleum
refining facilities, that comprise approximately 61 percent of all total emissions; blast furnaces and
steel mills (32 percent); and industrial inorganic chemical facilities (7 percent).
Mountaintop Mining / Valley Fill DEIS B-163 2003
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Appendix B
Endangered Species Act
This Act requires all Federal Agencies to ensure that actions they authorize, fund, or carry out are not
likely to jeopardize the continued existence of endangered or threatened species or adversely modify
or destroy the critical habitats of such species. Federal agencies are prohibited under the Endangered
Species Act of 1973 (16 USC 1531 et seq.) from jeopardizing species in danger of extinction or
threatened with endangerment and from adversely modifying habitats essential to their survival. If
listed species or their habitat may be affected, formal consultation with USFWS under Section 7 of
the Endangered Species Act is required. If the consultation reveals that the action will affect a listed
species or habitat adversely, acceptable mitigative measures must be undertaken or the proposed
permit will not be issued.
Fish and Wildlife Coordination Act
The FWCA recognizes the vital importance of wildlife resources to the U.S.; provides that wildlife
conservation shall receive equal consideration and will be coordinated with other water resource
development programs; establishes fish and wildlife conservation as a coequal purpose or objective
of federally funded or permitted water resource development proposals or projects. Activities to
which the FWCA was intended to apply include the discharge of pollutants, and actions dependent
upon or resulting in the diversion, control, or modification of a stream or other body of water.
Action agencies are required to consult with the FWS and State conservation agency. Action
agencies are required to give full consideration to the reports and recommendations of FWS/State,
and shall incorporate into the project plan such justifiable means and measures for wildlife purposes
needed to obtain maximum overall project benefits. However, final decision on wildlife mitigative
measures rests with the action agency.
Mountaintop Mining / Valley Fill DEIS B-164 2003
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Appendix B
Executive Orders
Undeveloped floodplains are protected by Executive Order 11988 as implemented by the guidelines
of the Water Resources Council (43 FR 29:6030-6055, February 10, 1978). Under these guidelines,
an application for a Federal permit that proposes the structural modification or control (such as
channelization) of a stream or other body of water is subject to review by the US Fish and Wildlife
Service and the US Army Corps of Engineers as mandated by the Fish and Wildlife Coordination Act
(16 USC 661 et seq.) and Section 10 of the River and Harbor Act of 1899. These agency reviewers
and the general public may identify additional Federal authorization or specific mitigative measures
that are necessary to ensure an adequate permit review and a sufficient level of environmental
protection.
EPA, under the provisions of Executive Order 11988, must avoid wherever possible the long- and
short-term impacts associated with the occupancy and modification of floodplains and avoid direct
and indirect support of floodplain development wherever there is a practicable alternative. The
Agency also must incorporate floodplain management goals into its regulatory decision making
processes. To the greatest extent possible EPA must:
Reduce the hazard and risk of flood loss, and wherever it is possible, to avoid direct
or indirect adverse impact on floodplains.
Where there is no practical alternative to locating in a floodplain, minimize the impact
of floods on human safety, health, and welfare, as well as the natural environment.
• Restore and preserve natural and beneficial values served by floodplains.
Identify floodplains that require restoration and preservation, recommend
management programs necessary to protect these floodplains, and include such
considerations in on-going planning programs.
• Provide the public with early and continuing information concerning floodplain
management and with opportunities for participating in decision making including the
evaluation of tradeoffs among competing alternatives.
Executive Order 11990, entitled "Protection of Wetlands", requires EPA to avoid, to the extent
possible, the adverse impacts associated with the destruction or loss of wetlands and to avoid support
of new Federal construction in wetlands if a practicable alternative exists. The EPA Statement of
Procedures on Floodplain Management and Wetlands Protection (January 5,1979) requires that EPA
determine whether proposed permit actions also will occur in or will affect wetlands. If so, the
responsible official must prepare a wetlands assessment, that will be part of the overall environmental
assessment or environmental impact statement. The responsible official is either to avoid adverse
impacts or minimize them if no practicable alternative to the action exists. In addition, Section 404
of CWA requires USAGE permit approval for activities that would result in the placement of fill in
wetlands.
Mountaintop Mining / Valley Fill DEIS B-165 2003
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Appendix B
Agency Regulatory Process Flow Charts
The following presents the statutory/regulatory processes of the agencies that have jurisdiction over
MTM/VF operations. These processes include:
WVDEP SMCRA Process
CWA Section 402 NPDES Permit Process
• CWA Section 404 Permit Process
• USFWS Endangered Species Act Process
Each of these processes is outlined below and illustrated in a subsequent process flow diagram. They
generally indicate agencies' responsibilities and the applicants' requirements as of January 2003.
(A) WVDEP SMCRA Process for Applications with Fills Requiring 404 Permits
The following numbers correspond to the numbers on the flowchart.
(A) In developing their permit application package, the applicant is required to submit a "Lands
Inquiry" to WVDNR (Figure 1. WV SMCRA Process for Applicants with Fills Requiring 404
Permits). The inquiry contains information on proposed mining sufficient for the agency to
initiate their comment processes on such potential issues as endangered species. Also the
applicant is required to notify, and obtain a response from, the USFWS concerning
endangered species that could be affected by their operation. The USFWS response must be
included in the application for it to be considered administratively complete.
(B) Anyone considering the preparation and submittal of a proposed coal mine application is
encouraged to request a preapplication meeting with WVDEP. By design, this meeting is
intended to provide an opportunity for applicant and regulator to identify and discuss
potential issues of concern and to define additional data which the applicant must collect to
facilitate the permit decision process.
(C) Typically, a SMCRA and NPDES 402 application are submitted concurrently.
(D) When initially received, the SMCRA application undergoes an "Administrative
Completeness" review. This is a cursory review (not a technical review) of the application
designed to make sure that the applicant has responded to each item or section of the
application. If it is determined that the applicant has omitted a response to an item or section
of the application, a letter is sent to the applicant requesting that the omitted response(s) be
provided.
(E) When the omitted response(s) is provided, the application is determined to be administratively
complete and a surface mine application (SMA) number is issued. The SMA number is
issued for one year. As long as the applicant continues to pursue the proposed application in
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4 1 • TJ
.rYJJJJCIlUlA D
to establish the actual requirements of any regulatory program. This appendix also should
not be considered legal advice. Refer to the statutes and the Federal Register for official
^g one-year period may be extended as necessary until a permit decision is made.
If the SMA number is allowed to expire, an applicant must resubmit the permit application.
Mountaintop Mining / Valley Fill DEIS B-167 2003
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Appendix B
Figure 1. WV SMCRA Process for Applications with Fills Requiring 404 Permits
Applicant submits "land
inquiry" to WVDNR
To Step 1 in NPDES 402 Process
SMCRA/NPDES Application
Submitted
(10)
Regional offic
decision reco
prepare decis
3 makes permit
mmendation &
on documents
Yes
(12)
1
SMCRA Perm it
Issued/Denied
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When the SMA number is issued, the applicant is notified that they may initiate the
advertising of their public notice of proposed coal mining activities in the local newspaper.
The applicant has the option of choosing to time the publication of the public notice so as to
facilitate a joint SCMRA/CWA Section 402 public review and hearing, or proceed with
separate publications and/or hearings. The public is notified of how, when, and where to
respond if they have interests or concerns relevant to the proposed mining. The public may
submit comments and/or request that a public hearing be held concerning the proposed mine.
If a public hearing is requested on the SMCRA application it is scheduled and public notice
is given as to the date and location of the public hearing. Written and oral comments may be
submitted during the informal conference. During the advertisement and public comment
period, a copy of the SMCRA application is made available for public review at the
courthouse of the county in which the mine is proposed.
At or about the same time the applicant is notified to begin their public notice, WVDEP sends
a notification of proposed mining to other potentially affected agencies including such
agencies as: municipal government (if in city limits), local public works, County Clerk,
Regional Planning Commission, WV Soil Conservation District, WVDEP Office of Air
Quality, Division of Culture and History (State Historic Preservation Officer (SHPO)}, WV
Division of Natural Resources (WVDNR), COE, USFWS, OSM, USEPA, and others if
applicable.
(F) At, or about, the time the technical review of the application is initiated a site visit is
scheduled. WVDEP schedules a site visit so that the assigned review staff can become
familiar with the area proposed to be affected by the mining activities.
(G) A technical review of the application is initiated at or about the time the site visit is
scheduled. The purpose of this review is to assure that the proposed mine application is
planned in accordance with applicable requirements. Comments received from the public or
any other agency are considered during the technical review process.
(H) If the proposed application is found to be technically deficient, a letter is sent to the applicant
requesting the deficiencies be addressed.
(I) When all deficiencies are adequately addressed, the appropriate WVDEP Regional office
makes a recommendation to WVDEP Headquarters to approve the application. If the permit
application remains deficient, the recommendation would be to deny it. Permit decision
findings are prepared by the regional office in support of their recommendation. A
cumulative hydrologic impact analysis (CHIA) is included in the findings package. The
CHIA is designed to predict the cumulative hydrologic impacts associated with the proposed
mine and other known mining (present or future) on both the surface and groundwater
regimes. For the regional office to recommend a proposed mine permit be issued, the CHIA
must indicate that the cumulative hydrologic balance will not be adversely affected.
(J) WVDEP Headquarters evaluates the recommendation, including a review of the findings and
comments received during the public review process. If the review of the recommendation,
the findings, and the comments indicate that everything is in order, WVDEP will issue the
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Appendix B
permit. If the review identifies remaining problems with the application, the applicant is
notified of the problem(s) and provided an opportunity to resolve the identified issue(s).
(K) If potential issues are successfully addressed, the SCMRA permit may be issued. If not, the
permit may then be denied.
(L) If WVDEP proposes to issue a permit and that permit continues to be a candidate for a CWA
404 General Permit (GP) or Individual permit (IP), WVDEP will issue the SCMRA permit
and the applicant will apply to the COE and the appropriate 404 process may begin.
b. CWA Section 402 National Pollutant Discharge Elimination System Permit (NPDES) Process
(1) Typically, concurrent applications are received for both a WVDEP SCMRA permit, NPDES
402 permit, and State 401 Certification (Figure 2. NPDES/402 Process). When received,
WVDEP initiates a technical review of the NPDES application.
(2) If the application is determined to be technically deficient, a deficiency letter is prepared and
sent to the applicant. If the technical deficiencies are not or cannot be successfully resolved,
the 402/NPDES permit is denied.
(3) This step only applied to applications submitted prior to 1 July, 2002. As of 1 July, 2002 the
state 401 certification became a separate application and is no longer addressed in the 402
permit process.If the application is technically adequate or the applicant successfully resolves
identified deficiencies, a stream compensatory mitigation agreement may be executed or
signed by the applicant and WVDEP1 if required. The type of compensatory mitigation
agreement required of an applicant is determined by the extent of resource involved. Where
the applicant proposes to impact streams the following guidelines are used. If more than 250
acres of watershed (measured from the toe of the fill) or more than 1A mile of stream length
is impacted by the proposed action, a specific compensatory mitigation agreement is required.
If less than 250 acres and less than 1A mile of stream is impacted, the mitigation agreement
is typically "best management practices"(BMPs).
Stream compensatory mitigation agreement is technically a part of the CWA Section 401 certification, but is shown
in the 402 process only because the WVDEP has found it most efficient to resolve the compensation issue at this
time prior to 7/1/02.
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Appendix B
Figure 2. WV NPDES/402 Process
(1)
Review of NPDES application
information
From Step (3) SMCRA Process
/ Additional information \^ / NPDES application
requested & received
technically adequate
To Joint Public Notice
{SMCRA (6)}
agreement executed
Optional Joint Process
NPDES Only Process
(If EPA Comments)
EPA &DEP discuss
alternatives
application required
NPDES Pub C
Affected agency
NPDES Public
Comment/
Hearing Process
USFWS ESA
Process
Application remains
From Joint Public Notice (6)
From Joint Public Comment/Hearing Process
Application conditioned
to be adequate
WVDEP recommends
NPDES permit issued
* If less than 250 acres of watershed from toe of basin and less than 1/2 acre stream impacted, compensatory mitigation
agreement has traditionally been BMP's. If more than 250 acres of watershed or more than 1/2 acre of stream impacted a
compensatory mitigation agreement is required. Note: Technically, compensatory mitigation agreement is a part of the 401
certification process, but is shown in the 402 process only because the state has found it most efficient to resolve the
compensation issue at this time.
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(4) When the application is technically correct and the compensatory mitigation agreement
executed (prior to 7/1/02), a draft NPDES permit is prepared by the regional office and sent
to WVDEP headquarters and the applicant. At or about the time the public notice for the draft
NPDES permit is prepared the applicant sends a notification of the draft NPDES permit to
the other potentially affected agencies: USFWS, COE, WVDNR, and others. The preparation
of the draft permit initiates two actions or processes (public/agency and USEPA notification)
which occur on concurrent paths:
(a) The first concurrent action to be described involves public/agency participation:
• With the preparation of the draft permit, the applicant places a public notice in the
local newspaper notifying the public that WVDEP has prepared a draft permit and the
draft permits available for review and comment. The applicant may choose to time
the publication of the public notice so as to facilitate a joint SCMRA/CWA Section
402 public review and/or hearing. The public is advised where comments are to be
submitted and how a public hearing on the draft permit may be requested. If a public
hearing is requested on the NPDES permit, WVDEP evaluates the request and
determines if holding a public hearing is appropriate. If a decision is made to hold a
public hearing, WVDEP publishes a notice of the date and location of the hearing.
The hearing is held and comments received either by mail or during the hearing are
evaluated by WVDEP.
At or about the time the public notice for the draft NPDES permit is prepared the
applicant notifies affected agencies of the draft permit. The agencies are sent a
notification with a copy of the legal advertisement and given 30 days from the date
of receipt to provide comments.
• If the evaluation of comments on the draft NPDES permit leads WVDEP to the
conclusion that the permit does not adequately address all comments and concerns,
WVDEP determines if the draft permit can be conditioned to adequately address the
comments and concerns. If so, the draft permit is conditioned and upon completion
of the requirements of the concurrent part of the process, the NPDES permit may be
issued. If the draft permit cannot be conditioned to address the comments or
concerns, WVDEP may request the applicant provide additional information (i.e.,
revisions) for the NPDES application to resolve the issue(s). If the information is
requested and provided, the application reenters the technical review process
previously identified. If the information provided is adequate, the process continues.
If the NPDES application cannot or is not revised to resolve the issue(s), the
application is denied.
(b) The second process involves notification of USEPA by WVDEP, and initiates USEPA's
involvement in the 402 NPDES process:
• WVDEP determines if USEPA notification is required. If it is not, then the permit
may be issued upon successful completion of the public involvement process
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described above. If USEPA is required to be notified, then WVDEP provides a copy
of the NPDES application and draft permit to USEPA.
(v) Upon notification of draft NPDES permit, USEPA has 3 0 days to review the draft permit and
provide a "general objection" to the draft permit. If a "general objection" is not received
within 30 days, the draft permit may be issued upon completion of the public involvement
process. If a "general objection" is received, USEPA then has 60 days in which to submit a
"specific objection". If a "specific objection" is not submitted within 60 days, the draft
permit may be issued upon completion of the public involvement process. If a "specific
objection" is received within 60 days, WVDEP has 90 days in which to satisfy or resolve the
USEPA obj ection(s). If the WVDEP satisfies USEPA obj ections and the public participation
process has been successfully completed, WVDEP recommends that the West Virginia Office
of Water Resources issue an NPDES permit. If the objections are not successfully satisfied,
USEPA may assume 402/ NPDES responsibility for the application.
c. CWA Section 401 (State Water Quality Certification) Process
(1) WV Legislative Rule Title 47, Series 5A requiring a separate application for their State
Water Quality Certification (401 Certification) went into effect 1 July, 2002. Prior to that
time the 401 certification was processed with the NPDES (402) permit. The 401
Certification is required to be submitted concurrently with a SMCRA permit application
filling wasters of the US. If the application is for filling of ephemeral waters only, then it
has been pre-certified and will not require an application or advertisement. Applications
for certification of NWP 404 permits are described below. The COE usually receives
applications for individual 404 permits prior to the SMCRA or 401 Certification
applications being submitted to WVDEP, but once submitted the review process is
generally the same.
(2) If the application is determined to be technically deficient (inadequate or missing
information on stream delineation or minimization, inadequate or no mitigation plan), a
deficiency letter is prepared and sent to the applicant. If the technical deficiencies are not
or cannot be successfully resolved, the 401 Certification is denied.
(3) If the application is technically adequate or the applicant successfully resolves identified
deficiencies, a stream compensatory mitigation agreement may be executed or signed by
the applicant and WVDEP (if required). The type of compensatory mitigation agreement
required of an applicant is determined by the extent of resource involved. Where the
applicant proposes to impact streams the following guidelines are used. If more than 250
acres of watershed (measured from the toe of the farthest downstream disturbance; i.e. the
pond ) or more than /^ mile of stream length is impacted by the proposed action, a specific
compensatory mitigation agreement is required. If less than 250 acres and less than /^
mile of stream is impacted, a general mitigation agreement is executed requiring "best
management practices"(BMPs). Additional mitigation may also be required by the COE
for the CWA 404 permit.
Mountaintop Mining / Valley Fill DEIS B-173 2003
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Appendix B
(4) When the application is technically correct, the compensatory mitigation agreement
executed (if required), and the SMCRA permit is issued, the applicant applies to the COE
for their CWA 404 permit. The COE provides a PCN that states the type of 404 permit
being considered.
(5) The applicant is required to advertise in a newspaper of general circulation in the county
the operation is located. The ad must run one time and allow a thirty (30) day comment
period. Applicant must address any deficiencies identified by WVDEP resulting from the
public comments received.
(6) If the application remains technically adequate or the applicant successfully resolves
identified deficiencies, and the 404 permit is issued by the COE, the 401 certification is
issued. Upon issuance of the 401 certification the affected agencies are notified (USFWS,
COE, WVDNR, and others) and given a fifteen (15) day comment period.
(7) If the application remains technically adequate, or any identified deficiencies successfully
resolved, the 401 certification is complete.
d. CWA Section 404 Permit Process
Under the Baseline or presettlement condition, valley fills were permitted under CWA
Nationwide Permit 21 or 26: Surface Coal Mining Activities (Figure 3. Pre-settlement 404
General Permit Process)2 3 provided the permittee notified the District COE Engineer. The
notification was required to include an OSM or state approved mitigation plan. The COE, at the
discretion of the District Engineer, could require a bond to ensure success of the mitigation. For
discharges in special aquatic sites, including wetlands, the notification needed to include a
delineation of affected special aquatic sites.
USCOE has prepared an Environmental Assessment and has issued a Finding of No Significant Impact for
each NWP to meet NEPA and CWA Section 404(b)(l) requirements.
Section 401 Water Quality Certification has been issued on a programmatic basis for NWPs. No additional
applications are required.
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PQ
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a;
a
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Appendix B
The following, in part, are selected general conditions that must be followed for authorization by
a NWP to be valid:
(1) Notification.
(a) Timing: Where required by the terms of the NWP, the prospective permittee must
notify the District Engineer with a Preconstruction Notification (PCN) as early as
possible and shall not begin the activity:
Until notified by the District Engineer that the activity may proceed under
the NWP with any special conditions imposed by the District or Division
Engineer; or
• If notified in writing by the District or Division Engineer that an individual
permit is required; or
Unless 45 days have passed from the District Engineer's receipt of the
complete notification and the prospective permittee has not received
written notice from the District or Division Engineer. Subsequently, the
permittee's right to proceed under the NWP may be nodified, suspended, or
revoked only in accordance with the procedure set forth in 33 CFR
330.5(d)(2). This automatic 45 day permit authorization does not apply to
NWP 21.
• For NWP 21 (Surface Coal Mining Activities), the PCN must include an
Office of Surface Mining (OSM) or state-approved mitigation plan, if
applicable. To be authorized by this NWP, the District Engineer must
determine that the activity complies with the terms and conditions of the
NWP and that the adverse environmental effects are minimal both
individually and cumulatively and must notify the project sponsor of this
determination in writing.
(b) Contents of Notification: The notification must be in writing and include the
following information: (1) Name, address and telephone numbers of the
prospective permittee; (2)Location of the proposed project; 3) Brief description of
the proposed project; the project's purpose; direct and indirect adverse
environmental effects the project would cause; any other NWP(s), Regional
General Permit(s), or Individual Permit(s) used or intended to be used to authorize
any part of the proposed project or any related activity. Sketches should be
provided when necessary to show that the activity complies with the terms of the
NWP (Sketches usually clarify the project and when provided result in a quicker
decision.); 4) For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40, 41, 42, and 43, the PCN
must also include a delineation of affected special aquatic sites, including
wetlands, vegetated shallows (e.g., submerged aquatic vegetation, seagrass beds),
and riffle and pool complexes (see paragraph 13(f));
(c) Form of Notification:The standard Individual Permit application form (Form ENG
4345) may be used as the notification but must clearly indicate that it is a PCN and
Mountaintop Mining / Valley Fill DEIS B-176 2003
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Appendix B
must include all of the information required in (b) (1)-(18) of General Condition
13. A letter containing the requisite information may also be used.
(2) District Engineer's Decisionin reviewing the PCN for the proposed activity, the District
Engineer will determine whether the activity authorized by the NWP will result in more
than minimal individual or cumulative adverse environmental effects or may be contrary
to the public interest. The prospective permittee may submit a proposed mitigation plan
with the PCN to expedite the process. The District Engineer will consider any proposed
compensatory mitigation the applicant has included in the proposal in determining
whether the net adverse environmental effects to the aquatic environment of the proposed
work are minimal. If the District Engineer determines that the activity complies with the
terms and conditions of the NWP and that the adverse effects on the aquatic environment
are minimal, after considering mitigation, the District Engineer will notify the permittee
and include any conditions the District Engineer deems necessary. The District Engineer
must approve any compensatory mitigation proposal before the permittee commences
work. If the prospective permittee is required to submit a compensatory mitigation
proposal with the PCN, the proposal may be either conceptual or detailed. If the
prospective permittee elects to submit a compensatory mitigation plan with the PCN, the
District Engineer will expeditiously review the proposed compensatory mitigation plan.
The District Engineer must review the plan within 45 days of receiving a complete PCN
and determine whether the conceptual or specific proposed mitigation would ensure no
more than minimal adverse effects on the aquatic environment. If the net adverse effects
of the project on the aquatic environment (after consideration of the compensatory
mitigation proposal) are determined by the District Engineer to be minimal, the District
Engineer will provide a timely written response to the applicant. The response will state
that the project can proceed under the terms and conditions of the NWP.
If the District Engineer determines that the adverse effects of the proposed work are more
than minimal, then the District Engineer will notify the applicant either: (1) That the
project does not qualify for authorization under the NWP and instruct the applicant on the
procedures to seek authorization under an Individual Permit; (2) that the project is
authorized under the NWP subject to the applicant's submission of a mitigation proposal
that would reduce the adverse effects on the aquatic environment to the minimal level; or
(3) that the project is authorized under the NWP with specific modifications or conditions.
Where the District Engineer determines that mitigation is required to ensure no more than
minimal adverse effects occur to the aquatic environment, the activity will be authorized
within the 45-day PCN period. The authorization will include the necessary conceptual or
specific mitigation or a requirement that the applicant submit a mitigation proposal that
would reduce the adverse effects on the aquatic environment to the minimal level. When
conceptual mitigation is included, or a mitigation plan is required under item (2) above, no
work in waters of the US will occur until the District Engineer has approved a specific
mitigation plan.
(3) Agency Coordination: The District Engineer will consider any comments from Federal
and state agencies concerning the proposed activity's compliance with the terms and
conditions of the NWPs and the need for mitigation to reduce the project's adverse
environmental effects to a minimal level. For activities requiring notification to the
District Engineer that result in the loss of greater than 1/2-acre of waters of the US, the
Mountaintop Mining / Valley Fill DEIS B-177 2003
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Appendix B
District Engineer will provide immediately (e.g., via facsimile transmission, overnight
mail, or other expeditious manner) a copy to the appropriate Federal or state offices
(USFWS, state natural resource or water quality agency, EPA, State Historic Preservation
Officer (SHPO), and, if appropriate, the NMFS). With the exception of NWP 37, these
agencies will then have 10 calendar days from the date the material is transmitted to
telephone or fax the District Engineer notice that they intend to provide substantive,
site-specific comments. If so contacted by an agency, the District Engineer will wait an
additional 15 calendar days before making a decision on the notification. The District
Engineer will fully consider agency comments received within the specified time frame,
but will provide no response to the resource agency, except as provided below. The
District Engineer will indicate in the administrative record associated with each
notification that the resource agencies' concerns were considered. As required by section
305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act, the
District Engineer will provide a response to NMFS within 30 days of receipt of any
Essential Fish Habitat conservation recommendations. Applicants are encouraged to
provide the Corps multiple copies of notifications to expedite agency notification.
(4) Wetlands Delineations:Wetland delineations must be prepared in accordance with the
current method required by the Corps (For NWP 29 see paragraph (b)(9)(iii) for parcels
less than (1/4-acre in size). The permittee may ask the Corps to delineate the special
aquatic site. There may be some delay if the Corps does the delineation. Furthermore, the
45-day period will not start until the wetland delineation has been completed and
submitted to the Corps, where appropriate.
(5) Compliance Certification. Every permittee who has received NWP verification from the
Corps will submit a signed certification regarding the completed work and any required
mitigation. The certification will be forwarded by the Corps with the authorization letter
and will include:
(a) A statement that the authorized work was done in accordance with the Corps
authorization, including any general or specific conditions;
(b) A statement that any required mitigation was completed in accordance with the permit
conditions; and
(c) The signature of the permittee certifying the completion of the work and mitigation.
(6) Mitigation:The District Engineer will consider the factors discussed below when
determining the acceptability of appropriate and practicable mitigation necessary to offset
adverse effects on the aquatic environment that are more than minimal.
(a) The project must be designed and constructed to avoid and minimize adverse
effects to waters of the US to the maximum extent practicable at the project site
(i.e., on site).
(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing or
compensating) will be required to the extent necessary to ensure that the adverse
effects to the aquatic environment are minimal.
(c) Compensatory mitigation at a minimum one-for-one ratio will be required for
all wetland impacts requiring a PCN, unless the District Engineer determines in
writing that some other form of mitigation would be more environmentally
appropriate and provides a project-specific waiver of this requirement. Consistent
with National policy, the District Engineer will establish a preference for
Mountaintop Mining / Valley Fill DEIS B-178 2003
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Appendix B
restoration of wetlands as compensatory mitigation, with preservation used only in
exceptional circumstances.
(d) Compensatory mitigation (i.e., replacement or substitution of aquatic resources
for those impacted) will not be used to increase the acreage losses allowed by the
acreage limits of some of the NWPs. For example, 1/4-acre of wetlands cannot be
created to change a 3/4-acre loss of wetlands to a 1/2-acre loss associated with
NWP 39 verification. However, 1/2-acre of created wetlands can be used to reduce
the impacts of a 1/2-acre loss of wetlands to the minimum impact level in order to
meet the minimal impact requirement associated with NWPs.
(e) To be practicable, the mitigation must be available and capable of being done
considering costs, existing technology, and logistics in light of the overall project
purposes. Examples of mitigation that may be appropriate and practicable include,
but are not limited to: reducing the size of the project; establishing and maintaining
wetland or upland vegetated buffers to protect open waters such as streams; and
replacing losses of aquatic resource functions and values by creating, restoring,
enhancing, or preserving similar functions and values, preferably in the same
watershed.
(f) Compensatory mitigation plans for projects in or near streams or other open
waters will normally include a requirement for the establishment, maintenance,
and legal protection (e.g., easements, deed restrictions) of vegetated buffers to
open waters. In many cases, vegetated buffers will be the only compensatory
mitigation required. Vegetated buffers should consist of native species. The width
of the vegetated buffers required will address documented water quality or aquatic
habitat loss concerns. Normally, the vegetated buffer will be 25 to 50 feet wide on
each side of the stream, but the District Engineers may require slightly wider
vegetated buffers to address documented water quality or habitat loss concerns.
Where both wetlands and open waters exist on the project site, the Corps will
determine the appropriate compensatory mitigation (e.g., stream buffers or
wetlands compensation) based on what is best for the aquatic environment on a
watershed basis. In cases where vegetated buffers are determined to be the most
appropriate form of compensatory mitigation, the District Engineer may waive or
reduce the requirement to provide wetland compensatory mitigation for wetland
impacts.
(g) Compensatory mitigation proposals submitted with the "notification" may be
either conceptual or detailed. If conceptual plans are approved under the
verification, then the Corps will condition the verification to require detailed plans
be submitted and approved by the Corps prior to construction of the authorized
activity in waters of the U.S.
(h) Permittees may propose the use of mitigation banks, in-lieu fee arrangements
or separate activity-specific compensatory mitigation. In all cases that require
compensatory mitigation, the mitigation provisions will specify the party
responsible for accomplishing and/or complying with the mitigation plan.
(7) Use of Multiple Nationwide Permits. The use of more than one NWP for a single and
complete project is prohibited, except when the acreage loss of waters of the US
authorized by the NWPs does not exceed the acreage limit of the NWP with the highest
specified acreage limit (e.g. if a road crossing over tidal waters is constructed under NWP
Mountaintop Mining /Valley Fill DEIS B-179 2003
-------
4 1 • TJ
.rYJJJJCIlUlA D
to establish the actual requirements of any regulatory program. This appendix also should
14, with associated bank stabilization authorized by NWP 13, the maximum acreage loss
11 rof wafers of the US for the total project cannot exceed 1/3-acre).
Mountaintop Mining / Valley Fill DEIS B-180 2003
-------
Appendix B
e. U.S. Fish and Wildlife Service Endangered Species Act Process
(1) The ESA Section 7 consultation process between federal agencies and the USFWS may be
triggered by a COE CWA Section 404 permit application and/or by a SCMRA applicant
proposed mine notification (Figure 4. U.S. Fish and Wildlife Service Endangered Species
Act Consultant Process).
(2) The federal agency evaluates the proposed action and determines whether it may affect
federally listed threatened or endangered species (T&E) or designated critical habitat may
be affected. If no species/critical habitat may be affected, no consultation is required.
(3) In order to assist the federal agency in determining whether a species or critical habitat
may be affected, the USFWS can provide a species list and information regarding the
species/critical habitat. The USFWS may recommend studies or surveys as appropriate.
(4) If the T&E species or critical habitat may be affected and the proposal is a major
construction activity or has similar physical impacts, the action agency or designated non-
federal representative must prepare a biological assessment (BA). The BA is intended to
assess the likelihood of whether the proposed project is likely to adversely affect any T&E
species or critical habitat. The BA must be submitted within 180 days to USFWS unless a
time extension is agreed to by the federal agency and USFWS.
(5) Upon receipt, USFWS has 30 days to review the BA; thirty day extensions may occur in
the review process based on complexity of the BA or workload responsibilities of
USFWS).
(6) If the conclusion of the BA is that adverse effects to a species and critical habitat are not
likely to occur and the USFWS concurs in writing with that conclusion, the informal
consultation process is concluded.
Mountaintop Mining / Valley Fill DEIS B-181 2003
-------
IV. Alternatives
Figure 4. US Fish & Wildlife Service Endangered Species Act Consultation Process
Source: TJSOSM 1999
(1)
Endangered
species/critical
habitat may be
affected
(4)
Action agency or non-
federal government
representative
prepares/submits
biological assessment
to USFWS (to be
completed in 180 days)
(7)
From SMCRA/402
Processes
and
401-404 Processes
BA determines
whether proposal is likely to
adversely affect species/
critical
habitat
(11)
(12)
USFWS issues Jeopardy Biological Opinion
with reasonable & prudent alternatives, as
well as possible incidental take statement
&/or possible conservation recommendations
End of Consultation—
• with modified proposed action;
• action agency denies permit; or
• action agency applies for exemption
(10)
(11)
(12)
USFWS issues No Jeopardy
Biological Opinion
with possible incidental
take statement
&/or possible conservation
recommendations
f End of consultation with \
possible modified
V proposed action I
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Appendix B
(7) If the BA concludes that adverse effects to T&E species/critical habitat are likely, or the
USFWS disagrees with a BA indicating that impacts are not likely, the action agency must
request initiation of the formal consultation process. The Agency can also modify the
proposal to avoid the finding of likely to adverse effects. The formal consultation process
takes 135 days-90 days to consult and 45 days to prepare the biological opinion.
(8) If the USFWS believes the proposed action will jeopardize the continued existence of the
T&E species or adversely modify critical habitat, a "jeopardy" opinion is prepared.
(9) USFWS must then recommend reasonable and prudent alternatives to the proposed action,
if available, which reduce the impacts to T&E/critical habitat to a level that would not
jeopardize the T&E/critical habitat.
(10) If the USFWS believes the proposed action will not jeopardize the continued existence of
the T&E/or adversely modify critical habitat, a "no jeopardy" opinion is prepared.
(11) Whether USFWS issues a jeopardy or no jeopardy opinion, if the USFWS anticipates that
there may be "incidental take"(harm or killing) of listed animal species, the USFWS will
specify reasonable and prudent measures to minimize the take in exchange for authorizing
the otherwise prohibited take. Any terms and conditions associated with the incidental
take statement are not discretionary and as such must be made a part of any permit issued.
(L) The USFWS may also specify discretionary conservation recommendations at the end of
the biological opinion that would promote the recovery of the species.
While consultations are required when the proposed action may affect a listed species or critical
habitat, a conference is required only when the proposed action is likely to jeopardize the
continued existence of a proposed species or destroy or adversely modify proposed critical
habitat. Conferencing can be done on an informal or formal basis. No specific regulatory time
frames exist for conferencing but the policy of the USFWS is to follow the same time frames for
formal consultation. In a similar process as consultation, a conference report, in the case of
informal conference, and a conference opinion for formal conference are prepared. The findings
of the conference report or opinion are advisory in nature, however, as soon as the listing
becomes effective, the prohibition against jeopardy or adverse modification applies to the action.
e. SCMRA Requirements for the Protection of Endangered Species
(A) Permits for exploration removing more than 250 tons of coal, or occurring on lands
designated for surface coal mining operations require a description of any
endangered or threatened species (listed species). The regulatory authority must
also find in writing that the exploration and reclamation activities will not
jeopardize the continued existence of a listed species or result in the destruction or
adverse modification of critical habitat of those species.
(B) Performance standards for coal exploration prohibit disturbance of critical habitat
of listed species.
Mountaintop Mining / Valley Fill DEIS B-183 2003
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Appendix B
(C) To avoid duplication, each regulatory program is required to provide for the
coordination of review and issuance of permits with applicable requirements of the
Endangered Species Act.
(D) Each permit application is required to include site specific information when the
site or adjacent area is likely to include listed or proposed species. The level of
detail of the information must be determined by the regulatory authority in
consultation with the federal agencies with responsibility for listed species. The
permit is required to include a description of how the operator will minimize
disturbance and adverse impacts to listed species. The Service can request the
regulatory authority to supply the information described in the previous two
sentences.
(E) Regulatory authorities are required to provide written notification to federal fish
and wildlife agencies whenever the State or OSM receives an application for a new
permit, significant revision of a permit, or permit renewal.
(F) Regulatory authorities are required, as a condition of a permit approval, to make a
written finding that the proposed operation would not affect the continued
existence of listed species or result in destruction or adverse modification of their
critical habitat.
(G) Permit revisions require the regulatory authority to make the same findings as for
permit approval. Permit renewals require that the regulatory authority disapprove
a permit renewal if it finds in writing that the existing permit is not in compliance
with applicable requirements.
(H) Since the taking of a listed species is prohibited and mining activities that are
likely to jeopardize the continued existence of listed species are also prohibited,
the mining operator must promptly notify the regulatory authority of the presence
of a protected species within the permit area. The regulatory authority must
consult with appropriate federal fish and wildlife agencies to determine whether
and under what condition the operation may proceed.
Mountaintop Mining / Valley Fill DEIS B-184 2003
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Appendix B
The following presents various stream definitions that were in place at the beginning of this EIS process.
State/agency
Definitions specific to surface coal mining
Other definitions (if any)
OSM
"Perennial stream means a stream or part of a stream that flows
continuously during all of the calendar year as a result of ground-water
discharge or surface runoff. The term does not include 'intermittent
stream' or 'ephemeral stream'. "
"Intermittent stream means -
(a) A stream or reach of a stream that drains a watershed of at least
one square mile, or
(b) A stream or reach of a stream that is below the local water table
for at least some part of the year, and obtains its flow from both surface
runoff and ground water discharge."
"Ephemeral stream means a stream which flows only in direct response
to precipitation in the immediate watershed or in response to the
melting of a cover of snow and ice, and which has a channel bottom that
is always above the water table."
N/A
WV
"'Intermittent Stream' means: (a) a stream or reach of a stream that
drains a watershed of at least one square mile; or (b) a stream or reach
of a stream that is below the local water table for at least some part of
the year, and obtains its flow from both surface runoff and ground
water discharge." CSR 38-2-2.69, 2.69.a., and 2.69.b.
'"Perennial Stream' means a stream or portion of a stream that flows
continuously." CSR 38-2-2.86.
"Wet weather streams' are streams that flow only in direct response
to precipitation or whose channels are at all times above the water
table." CSR 46-1-1-2.9. (WQS regulations)
'"Intermittent streams' are streams which have no flow during
sustained periods of no precipitation and which do not support
aquatic life whose life history requires residence in flowing waters for
a continuous period of at least six (6) months." CSR 46-1-1-2.9. (WQS
regulations)
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Appendix B
State/agency
Definitions specific to surface coal mining
Other definitions (if any)
MD
'"Ephemeral stream' means a stream which flows only in direct
response to precipitation in the immediate watershed or in response to
the melting of a cover of snow and ice, and which has a channel bottom
that is always above the local water table." COMAR 26.20.01.02(30)
'"Intermittent stream' means: (a) a stream or reach of a stream that
drains a watershed of at least 1 square mile; or (b) a stream or reach of
stream that is below the local water table for at least some part of the
year, and obtains its flow from both surface runoff and ground water
discharge." COMAR 25.20.01.02(47)
'"Perennial stream' means a stream or part of a stream that flows
continuously during all of the calendar year as a result of ground water
discharge or surface runoff." COMAR 26.20.01.02(63)
'"Intermittent stream' means a nontidal body of flowing water for
which the computed design stream flow is zero." COMAR
26.08.01.8(42) (WQS regulations).
PA
"Ephemeral stream — A water conveyance which lacks substrates
associated with flowing waters and flows only in direct response to
precipitation in the immediate watershed or in response to melting
snowpack and which is always above the local water table." 25 Pa.
Code §87.1
"Intermittent stream — A body of water flowing in a channel or bed
composed primarily of substrates associated with flowing water, which,
during periods of the year, is below the local water table and obtains its
flow from both surface runoff and groundwater discharges." 25 Pa.
Code §87.1
"Perennial stream — A body of water flowing in a channel or bed
composed primarily of substrates associated with flowing waters and is
capable, in the absence of pollution or other manmade stream
disturbances, of supporting a benthic macroinvertebrate community
which is composed of two or more recognizable taxonomic groups of
organisms which are large enough to be seen by the unaided eye and
can be retained by a United States Standard No. 30 sieve (28 meshs per
inch, 0.595 mm openings) and live at least part of their life cycles within
or upon available substrates in a body of water or water transport
system." 25 Pa. Code § 87.1
The definitions in the "noncoal mining" regs (25 Pa. Code § 77.1) are
the same.
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B-180
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Appendix B
State/agency
Definitions specific to surface coal mining
Other definitions (if any)
VA
'"Ephemeral stream' means a stream which flows only in direct
response to precipitation in the immediate watershed or in response to
the melting of a cover of snow and ice, and which has a channel bottom
that is always above the local water table." 4 VAC 25-130-700.5
'"Intermittent stream' means: (a) A stream or section of a stream that
drains a watershed of at least one square mile, or (b) A stream or
section of a stream that is below the local water table for at least some
part of the year, and obtains its flow from both surface runoff and
ground water discharge." 4 VAC 25-130-700.5
"'Perennial stream' means a stream or part of a stream that flows
continuously during all of the calendar year as a result of ground-water
discharge or surface runoff. The term does not include 'intermittent
stream' or 'ephemeral stream.'" 4 VAC 25-130-700.5
'"Intermittent or perennial stream' means a stream or part of a
stream that flows continuously during all (perennial) or for at last one
month (intermittent) of the calendar year as a result of ground water
discharge or surface runoff." 4 VAC 25-30-20 (regs governing mining
minerals other than coal)
KY
"'Intermittent or perennial stream' means a watercourse or part of a
watercourse that flows continuously during all (perennial) or for at least
one (1) month (intermittent) of the calendar year as a result of
groundwater discharge or surface run-off. The term does not include
an ephemeral stream which is one that flows for less than one (1) month
of a calendar year and only in direct response to precipitation in the
immediate watershed and whose channel bottom is always above the
local water table." 405 KAR 1:010(29)
Kentucky's general water quality standards regs do not define
"ephemeral," "intermittent," or "perennial" streams. [Per Eva Long,
EPA Region IV] Kentucky defines regulated "surface waters of the
Commonwealth" as either blue-line streams on a USGS topo map
(non-field confirmed) or a discrete conveyance with a defined channel
(field confirmed). Statistical recurrence of low flow does not enter
into the definition of a stream.
"Surface waters" means those waters "having well-defined bands and
beds, either constantly or intermittently flowing; lakes and impounded
waters; marshes and wetlands; and any subterranean waters flowing
in well-defined channels and having a demonstrable hydrologic
connection with the surface. Effluent ditches and lagoons used for
waste treatment which are situated on property owned, leased, or
under valid easement by a permitted discharger are not considered to
be surface waters of the Commonwealth." 401 KAR 5:002(257)
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B-181
2003
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Appendix B
State/agency
Definitions specific to surface coal mining
Other definitions (if any)
TN
OSM administers the SMCRA program in TN, and uses its own
definitions.
[Per Lydia Mayo, EPA Region IV] TN regulations at 1200-4-3-.04(4)
define wet weather conveyances as: "... (conveyances that are
man-made or natural watercourses, including natural watercourses
that have been modified by channelization, that flow only in direct
response to precipitation runoff in their immediate locality and whose
channels are above the groundwater table and which do not support
fish or aquatic life and are not suitable for drinking water
supplies)...shall be protective of humans and wildlife that may come in
contact with them and shall not degrade or adversely affect the quality
of downstream waters. Applicable water quality standards will be
maintained downstream of wet weather conveyances." [Per Robbie
Baker, TDEP] The TN regulations do not use the terms "perennial,"
"intermittent," or "ephemeral." The terms "intermittent" and
"ephemeral," as well as "de minimis" stream are sometimes used in
general permits, including those related to mining, but are not defined.
The State is developing proposed regs that may define these terms and
debating whether to use a flow-based def. or a def. based on ecoregion,
physiogreographic region, or watershed size. As template for state-
issued general permits and def. of "de minimis" stream, current
thinking is that a "de minimis" stream would have a drainage area of
20 acres.
American
Geological
Institute
Perennial: "a stream or reach of stream that flows continuously
throughout the year and whose upper surface generally stands lower
than the water table in the region adjoining the stream." Jackson,
Julia A., 1977, Glossary of Geology, American Geological Institute,
Alexandria, VA, p. 769.
U.S. Department
of the Army
Perennial: "a stream that flows continuously all year (including wet
and dry years) and has a minimum flow of 40 liters per minute." U.S.
Army Material Command, 1975, "Glossary of Environmental Terms,"
AMC Pamphlet 706-119, Environmental Series Part Five, p. 200
Mountaintop Mining / Valley Fill DEIS
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APPENDIX C
REGIONAL SETTING
SUPPORTING INFORMATION
-------
APPENDIX C
TABLE OF CONTENTS
Climate C-l
Supplemental Geology Information for the MTM/VF EIS Study Area C-6
1. Environment of Deposition C-6
2. Post-Depositional Deformation C-9
3. Toxic Overburden and Acid Mine Drainage Formation C-9
4. Coal-Bearing Geologic Formations in the Study Area C-10
a. Kentucky C-l 1
b. Tennessee C-15
c. Virginia C-17
d. West Virginia C-22
Groundwater Characterization C-26
Kentucky Groundwater C-32
Tennessee Groundwater C-39
Virginia Groundwater C-42
West Virginia Groundwater C-44
Mountaintop Mining / Valley Fill EIS C- -/
-------
APPENDIX C
LIST OF TABLES
Table C-l Monthly Temperature and Rainfall Data for
the Kentucky Portion of the Study Area C-2
Table C-2 Monthly Temperature and Rainfall Data for
the Tennessee Portion of the Study Area C-3
Table C-3 Monthly Temperature and Rainfall Data for
the West Virginia Portion of the Study Area C-4
Table C-4 Monthly Temperature and Rainfall Data for
the Virginia Portion of the Study Area C-5
Table C-5 Geologic Time Scale C-8
Table C-6 Strati graphic Correlation Chart of the Appalachian Plateau Province C-l 2
Table C-7 Correlation Chart of Major Coal Beds and Coal Zones and Other
Key Beds of the Pennsylvanian of Eastern Kentucky (Modified from
Rice and Others, 1979) C-14
Table C-8 Eastern Tennessee Coal Beds C-17
Table C-9 Southwestern Virginia Coalbeds C-21
Table C-10 Unified Stratigraphic Columns - West Virginia (Lotz 1970, USBM 1977) . . C-24
Table C-ll Principal Aquifers of the Appalachian Plateau Province C-27
Table C-l2 General Groundwater Composition of the Eastern
Kentucky Coalbasin (Kiesler, 1983) C-34
Table C-l3 General Groundwater Composition for
Northern and Central Kentucky Coalbasin (Quinones, 1981) C-36
Table C-14 General Groundwater Composition for Southern Kentucky
Coalbasin (Leist, 1982) C-38
Table C-l 5 General Groundwater Composition for Northern Tennessee Coalbasin C-40
Table C-l6 General Groundwater Composition for Northern Tennessee
Coalbasin (Hollyday, 1983) C-41
Table C-17 General Groundwater Composition of Virginia
Coalfields (Hufschmidt, 1981) C-45
Table C-l8 Specific Capacity Data for Selected Wells in Central/Southcentral
West Virginia C-47
Table C-l9 Comparative Groundwater Quality Data for Southwestern
West Virginia (Ehlke, 1982) C-51
APPENDIX C
LIST OF FIGURES
Figure C-l Features of Primary and Secondary Permeability C-28
Figure C-2 Stress-Relief Fracturing and Development of Secondary Permeability C-31
Figure C-3 General Ground-Water Composition of Virginia Coal Fields C-43
Mountaintop Mining / Valley Fill EIS
C-ii
-------
APPENDIX C: REGIONAL SETTING SUPPORTING
INFORMATION
Climate
The climate within the study area is temperate and is favorable for many types of plants and animals.
Generally, summers are warm and humid with winters moderately cold. Valleys can have lower
temperatures than the surrounding hills when cooler heavier air drains to areas of lower elevations.
Precipitation is fairly well distributed throughout the year. Seasonal temperatures, rainfall, snowfall,
wind, and humidity differ from West Virginia, Kentucky, Tennessee and Virginia. Monthly
temperature and precipitation data for each state within the study area are shown in Tables C-l
through C-4.
Mountaintop Mining Valley Fill in Appalachia EIS U - J
-------
Appendix C
Table C-l
Monthly Temperature and Rainfall Data for
the Kentucky Portion of the Study Area
Month
January
February
March
April
May
June
July
August
September
October
November
December
Approximate Range of
Daily Maximum
Temperature (°F)
42-50
46-51
56-61
68-71
77-80
80-86
85-90
84-89
79-83
69-73
57-63
47-50
Approximate Range of
Daily Minimum
Temperature (°F)
21-26
22-29
30-36
40-44
49-53
59-61
62-66
60-65
53-58
40-53
30-36
25-30
Approximate Monthly
Rainfall (inches)
4-5
4
5
4
4
4
5
3-4
3-4
2
3-4
3-4
Mountaintop Mining Valley Fill in Appalachia EIS
C-2
-------
Appendix C
Table C-2
Monthly Temperature and Rainfall Data for
the Tennessee Portion of the Study Area
Month
January
February
March
April
May
June
July
August
September
October
November
December
Approximate Range of
Daily Maximum
Temperature (°F)
45-49
48-52
56-63
68-73
75-80
82-86
85-88
84-88
79-83
68-74
56-62
47-62
Approximate Range of
Daily Minimum
Temperature (°F)
25-29
27-30
34-37
44-46
51-54
58-62
62-66
61-65
55-59
44-47
34-36
28-31
Approximate Monthly
Rainfall (inches)
5
4-5
6
4-5
4-5
4-5
5
3-4
4
o
J
4
5-6
Mountaintop Mining Valley Fill in Appalachia EIS
C-3
-------
Appendix C
Table C-3
Monthly Temperature and Rainfall Data for
the West Virginia Portion of the Study Area
Month
January
February
March
April
May
June
July
August
September
October
November
December
Approximate Range of
Daily Maximum
Temperature (°F)
38-44
41-47
52-57
64-70
72-77
77-83
80-86
80-85
75-80
64-69
53-57
42-47
Approximate Range of
Daily Minimum
Temperature (°F)
18-25
18-26
26-34
36-44
46-51
52-59
56-64
56-63
50-56
38-44
29-35
20-28
Approximate Monthly
Rainfall (inches)
3-4
3
3-5
3-4
4
3-5
5-6
4-5
3-4
o
J
3
3-4
Mountaintop Mining Valley Fill in Appalachia EIS
C-4
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Appendix C
Table C-4
Monthly Temperature and Rainfall Data for
the Virginia Portion of the Study Area
Month
January
February
March
April
May
June
July
August
September
October
November
December
Approximate Range of
Daily Maximum
Temperature (°F)
37-44
40-49
50-59
59-69
68-77
75-84
78-87
77-86
71-81
61-70
51-60
41-49
Approximate Range of
Daily Minimum
Temperature (°F)
17-22
19-25
28-34
35-42
44-50
52-58
56-63
55-62
48-56
36-43
29-35
21-27
Approximate Monthly
Rainfall (inches)
3-4
3-4
4-5
3-4
4-5
4
5
3-4
3-4
2-3
3-4
3-4
Snowfall
The average amount of snowfall within the study area ranges from 7 to 50 inches, differing from
West Virginia, Kentucky, Tennessee and Virginia. Information of a few select counties within the
study area is provided for example purposes.
Nicholas County West Virginia has cold and snowy winters with an average yearly snowfall of
approximately 50 inches. On average, approximately 34 days per year have at least one inch of snow
on the ground. The average yearly snowfall in Braxton County, West Virginia, is approximately
29 inches. On the average, 15 days of the year have at least one inch of snow on the ground. The
number of such days varies greatly from year to year. In Kanawah and Wyoming Counties, West
Virginia, the average yearly snowfall is about 30 inches.
There is somewhat less snowfall in the Tennessee portion of the study area, than in the West
Virginia portion. In Bledsoe, Fentress, Pickett, Anderson, and Cumberland Counties, average
snowfall ranges from 7 to 20 inches per year.
Elliot, Bell, Harlan, Pike, Carter, Knox, Whitley, McCreary, Wayne, Jackson, Owsley, Powell, and
Wolfe Counties, Kentucky. The average yearly snowfall is approximately 15 inches, but the ground
is seldom covered with snow for more than a few days because of intermittent thaws. There is more
Mountaintop Mining Valley Fill in Appalachia EIS
C-5
-------
Appendix C
than one inch of snow on the ground for approximately 4-8 days per year. During a normal year not
more than six snowfalls are more than one inch deep.
The average annual snowfall in Bledsoe County, Tennessee, is 7 inches. It is seldom that more than
one inch of snow is on the ground for a whole day.
Rainfall
Heavy rains, that occur at any time of the year, and severe thunderstorms in summer sometimes
cause flash flooding, particularly in narrow valleys.
Approximate monthly rainfall averages for the Kentucky, Tennessee, and West Virginia portions
of the study area can be seen in Tables C-l through C-4. An approximate average of 43 to 50 inches
of rain falls on the Kentucky portion of the study each year. Anywhere from 2 to 5 inches of rain
can be expected in any given month of the year with the wettest month being July and the driest
month being October. On average, approximately 90 to 97 days throughout the year will have 0.10
inches or more of precipitation in the Kentucky portion of the study area.
Approximately 52 to 55 inches of rain falls on the Tennessee portion of the study area in the average
year. Anywhere from 3 to 6 inches of rain per month can be expected in this area with the wettest
months being March and December and the driest month being October. Approximately 84 to 95
days throughout the year will experience greater than 0.10 inches of precipitation.
In the West Virginia portion of the study area, approximately 3 8 to 50 inches of rain occurs per year.
Monthly rainfalls of 3 to 6 inches can also be expected in this area throughout the year. The wettest
month tends to be July while the driest months are usually February, October, and November.
Approximately 86 to 101 days throughout the year will experience greater that 0.10 inches of rain
in the West Virginia portion of the study area.
In the Virginia portion of the study area, approximately 41 to 50 inches of rain occurs per year that
is similar to the rest of the study area. Anywhere from 2 to 5 inches of rain can be expected in any
given month of the year with the wettest months being March, May, and July and the driest month
being October.
Supplemental Geology Information for the MTM/VF EIS Study Area
This appendix is provided for general reference on geologic considerations within the study area.
Topics include environment of deposition, post-depositional deformation, chemical nature of
overburden and potential for acid mine drainage formation, and detailed descriptions of coal-bearing
rock units in Kentucky, Tennessee, Virginia, and West Virginia.
1. Environment of Deposition
Coal seams were formed by the accumulation and burial of plant material to form peat, which the
pressure of overlying sediments eventually converted into coal. The physical and chemical
properties of the coal and associated sedimentary rocks are related directly to the depositional
Mountaintop Mining Valley Fill in Appalachia EIS U -O
-------
Appendix C
environment in which the peat beds accumulated, and to the structural stresses exerted on the peat
beds during and after their deposition and burial.
The Appalachian Basin of the eastern United States was a site of sediment accumulation for most
of the Paleozoic era, approximately 570 to 225 million years ago, during which two significant
mountain-building events occurred along the eastern margin of the continent. The latter of these
events, known as the Appalachian orogeny, occurred from about 320 to 220 million years ago,
during the Pennsylvanian through mid-Triassic periods. The coal-bearing or carboniferous rocks
of the Appalachian coalfields accumulated from sediments shed off these mountains from
approximately 300 to 250 million years ago, primarily during the Pennsylvanian period. Table C-5
depicts these periods in relation to the geologic time scale.
Sediments eroded from the ancestral Appalachian mountains were transported by streams and rivers
to the Appalachian Basin, where a large inland sea existed at the time. Numerous swamps, river
deltas, tidal deltas, and back barrier marshes existed in the coastal area of the ancient inland sea. The
thickness and lateral extent of the swamps were partially dependent on the topographic surface on
which the swamp developed (Home et al. 1978). The extent and duration of each swamp determined
the regional extent and thickness of individual coal seams. Discrete depositional events lasting
millions of years, coupled with local and regional uplift, folding, and erosion, produced numerous
discontinuous seams. Influxes of coarse-grained clastic sediments, forming shaly partings and
impure coals, are commonly found in the Basin coal seams. Stream channel migration within the
shifting fluvial and deltaic drainage systems eroded part of the swamp deposits. Other ancient stream
channels were filled with fine to coarse-grained clastic sediments. These ancient areas of erosion
and deposition in the swamp are represented by local thinning and lateral interruption of the seams.
Differential compaction and slumping of the newly-deposited clastic sediments also formed
irregularities in the underlying swamp deposits.
Mountaintop Mining Valley Fill in Appalachia EIS U - /
-------
Appendix C
Table C-5 Geologic Time Scale
ERA
CENOZOIC
O
0
N
O
t/3
W
S
PALEOZOIC
Period
Quaternary
Tertiary
Cretaceous
Jurassic
Triassic
Permian
Pennsylvanian
Mississippian
Devonian
Silurian
Ordovician
Cambrian
EPOCH
Recent
Pleistocene
Pliocene
Miocene
Oligocene
Eocene
Pal eocene
Duration in Millions
of Years (Approx.)
3.2
17.5
15.0
16.0
11.5
71
54-59
30-35
55
40
25
50
35-45
60-70
70
Millions of Years
Ago (Approx.)
1.8
5.0
22.5
37.5
53.5
65
136
190-195
225
280
320
345
395
430-440
500
570
Precambrian
The thickness, continuity, lateral extent, and quality of the coal seams in the study area relates
directly to the deposit!onal environment of each swamp and the deposit!onal environment of the
sediments that accumulated on top of the peat that was transformed into coal (Home et al. 1978).
The heating and compaction produced by the depth and duration of burial of the swamp deposits
also affect the quality of the coal seam and overlying material.
The acid-forming, iron disulfide minerals known as pyrite and marcasite, and various trace elements,
occur chiefly in depositonal environments that are associated with slowly subsiding delta plains and
back bays. Low concentrations of the acid forming iron disulfide minerals and trace elements occur
in areas where sporadic but rapid subsidence of the coal-producing lower and upper delta plain, and
back bay depositional environments.
Mountaintop Mining Valley Fill in Appalachia EIS
C-8
-------
Appendix C
2. Post-Depositional Deformation
The Appalachian orogeny lasted into the Triassic period, with mountain building and deformation
continuing as the North American and African continents were driven together by tectonic forces.
During the latter stages of the orogeny, the eastern portion of the Appalachian Basin was strongly
deformed into tight fold structures, which later erosion would carve into the Valley and Ridge
Province. At the Allegheny Front, the amplitude of folding abruptly diminishes, much as wrinkles
in a tablecloth pushed by hand. Forces from the continental collision did propagate beyond the
Allegheny Front to form low-amplitude anticlines and synclines with fold axes oriented in a general
northeast to southwest direction.
With regards to coal mining, this deformational event divided the Appalachian coalfields between
the steeply-dipping strata of the Valley and Ridge Province and the shallowly-dipping Appalachian
Plateau Province. Regional metamorphism in the eastern part of the Valley and Ridge Province
converted the coal deposits into anthracite, and the steep dips of the strata favored underground
mining methods. Erosion of higher strata also removed the coal seams from many areas in this
province where they had originally been deposited, generally limiting the extent of mining activities
to several remnant deposits in large anticlines. West of the Allegheny Front, the coal was not
metamorphosed, and the lesser degree of uplift from folding allowed much of the original coal to
remain after erosion. The shallower dip of the low amplitude folds better permits use of surface
mining methods and is also more efficient for underground methods. The combination of the two
factors has allowed development of widespread surface and underground coal mining in the
Appalachian Plateau Province. Fracturing of overburden rocks from folding stresses may also lower
in this area, providing better roof support control in underground mining applications.
3. Toxic Overburden and Acid Mine Drainage Formation
Pyrite is a sulfide mineral formed in the reducing environments commonly associated with
Bituminous coal fields. Coal mine drainage is produced by the oxidation of pyrite in an aqueous
environment that dissociates the iron and sulfur found in the pyrite (FeS2). Pyrite is found in several
forms with end members consisting of globular framboidal to euhedral crystalline. A direct
relationship exists between surface area and reactivity of the various forms of pyrite, with larger
surface are (i.e. smaller particles) being more reactive (Caruccio, 1970). As such framboidal forms
of pyrite tend to have greater surface area therefore possesses greater theoretical reactivity than other
forms of pyrite.
The oxidation of the pyrite in the coal seam and overburden begins with the removal of the coal,
exposing the pyrite to oxygen. Rose and Cravotta (Brady et al, 1999) summarized the stages of
pyrite oxidation by the following stoichiometric reaction (1):
FeS2 (s) + 3.75 O2 + 3.5 H2O = Fe(OH)3(s) + 2 SO42 + 4 H+ + heat (1)
In the above reaction, the reactants are shown on the left side of the equation as solid pyrite, water
and oxygen while the products are located on the right side listed as ferric hydroxide, sulfate,
hydrogen ions and heat.
Mountaintop Mining Valley Fill in Appalachia EIS U -"
-------
Appendix C
Alkaline mine drainage can be produced when acidic mine pools come in contact with alkaline
overburden and/or alkaline recharge migrates into the mine void. This water can contain significant
quantities of carbonate or bicarbonate that have dissolved along the flow path. The initial reaction
(2) between calcite, in limestone, and acidic water is:
CaCO3 + 2H+ = Ca2+ + H2CO3(aq) (2)
As further neutralization continues, the reaction (3), for pH values above 6.3 can be given as
(Cravotta et al, 1990):
FeS2 + 4CaCO3 + 3.75 O2 + 3.5 H2O = Fe(OH)3 + 2 SO42 + 4 Ca2+ + 4 HCO3 (3)
This reaction will produce alkaline mine drainage with circumneutral pH, alkalinity greater than
acidity, high sulfate and calcium concentrations and iron hydroxide as a precipitate. Rose and
Cravotta also point out that carbonate dissolution and production of alkalinity are independent of
saturation conditions, significant reaction rates can occur under saturated and unsaturated conditions.
Toxic overburden also may contain elements that are poisonous to plants and animals, acid
producing, or both. Excessive amounts of sodium, salt, sulfur, copper, nickel and other trace
elements in the water or the soil derived from mined overburden have a detrimental effect on plants
and may hinder revegetation (Torrey 1978). Arsenic, boron, and selenium are other elements that
may be present in overburden. Acidic material or material with the potential of becoming acidic
upon oxidation (pH 4.0 or less; chiefly the minerals =pyrite or marcasite) has the capability to cause
water pollution by chemical reaction resulting in increased concentrations of dissolved iron and
other metals at low pH.
As a general rule, the southern coal seams and associated overburden contain less sulfur
concentrations than northern coal seams, most notably from mid West Virginia northward. Southern
coal measures also have a dearth of alkaline (carbonate) material resulting in low buffering
capacities of the overburden. In these areas, threshold OB A values are vitally important because
small amounts of pyrite can lead to formation of AMD due to the paucity of alkaline material. In
these instances, alkaline addition into the backfill is a common reclamation practice.
Acid mine drainage is a potential problem anywhere in the Appalachian Basin because alkaline
overburden with high buffering capacity is scarce and discontinuous, and unweathered zones in the
massive sandstones overlying the coal seams are frequently pyritic with a high potential for acid
production. In the northern coalfield, mining practices as well as local variability of the thickness
and lateral extent of limestone-rich materials affect mine drainage quality. The variability in acid
drainage problems may be compounded when more than one coal seam is mined or the coal seam
splits into two or more benches locally.
4. Coal-Bearing Geologic Formations in the Study Area
The following narrative sections present information on the coal-bearing geologic formations for
each of the four states within the study area. Refer to Table C-6 for a stratigraphic correlation chart
that provides both a geologic timescale and correlations of units across state boundaries.
Mountaintop Mining Valley Fill in Appalachia EIS
-------
Appendix C
a. Kentucky
One to four coal seams are present in with the northern coal basin area of Kentucky and increase to
as many as 15 seams within the southern part of the basin. The coal seams are thin and
discontinuous for the most part, with only one to three coals being extensively mined. (Kiesler,
1983,Leist, 1982, and Quinones, 1981). Refer to Table C-7 for a list of coal beds found within the
Kentucky coal basin.
Upper Mississippian Rock Units
The Upper Mississippian rock units of along the northwestern edge of the Kentucky coalfields
include the Newman Limestone of the Pennington Group to the northeast. To the southwest the
coalfields are also bordered by Pennington Group rocks but include the Bangor, Kidder, and
Monteagle Limestones. Along the southeastern boundary of the coalfields the Upper Mississippian
rocks also include the Newman limestone, two shale units, the Fort Payne Chert, and the Berea
Sandstone. Upper Mississippian rock units along the southeastern coalfield boundaries are exposed
along the Pine Mountain Overthrust Belt (Noger, 1988).
Mountaintop Mining Valley Fill in Appalachia EIS
-------
Appendix C
Table C-6
Stratigraphic Correlation Chart of the Appalachian Plateau Province *
Geologic System
Quaternary
Permian
Upper
Pennsylvanian
Middle
Pennsylvanian
Lower to Middle
Pennsylvanian
Lower
Pennsylvanian
Upper
Mississippian
Upper to Middle
Mississippian
West Virginia
Recent Valley
Alluvium
Dunkard Group
Monongahela Group
Conemaugh Fm.
Allegheny
Group
Pottsville Group
Formerly Kanawha
New River
Pocahontas
Formations
Mauch Chunk Group
Greenbrier Limestone
Virginia
Recent Valley
Alluvium
Harlan Formation
Wise Fm.
Gladeville SS
Norton Fm.
Lee Fm.
Pennington Fm.
Greenbrier
Limestone
Kentucky
Recent Valley
Alluvium
Monongahela Group
Conemaugh Fm.
Breathitt Formation
Lee Formation
Pennington Fm.
Newman Limestone
Tennessee
Recent Valley
Alluvium
Cross Mt. Fm.
Vowell Mt. Fm.
Redoak Mt. Fm.
Graves Gap Fm.
Indian Bluff Fm.
Slatestone
Formation
Crooked Fork
Group
Crab Orchard
Mountains Group
Gizzard Group
Pennington Fm
Newman Limestone
*Developed from USGS HA 730-L and HA 730-K, Harlow (1993), Cardwell (1968), and Rader (1993).
Pennsylvanian Lee Formation
The Lee formation is characterized by massive orthquartizite sandstone beds with lenses of
conglomerate; sandstone comprises up to 80 percent of the formation. The formation in Eastern
Kentucky is divided into the upper Corbin Sandstone Member and lower Rockcastle Sandstone
Member. Sandstone beds can intertongue or grade into shale beds which range from 20-40 feet
Interbeds of carbonaceous shale, siltstone, coal (included in the formation) are most common in
upper part of the formation. Lower members in places intertongue with Upper Mississippian rocks
(Leist, 1982). The Lee Formation, typically outcrops in deeply eroded stream valleys and along
structural highs of the Eastern Kentucky coal basin.
The Lee Formation, along with under- and overlying beds, has a gentle southeasterly dip and
thickens to the southeast towards the Cumberland Mountain Overthrust block (Quinones, 1981). The
Lee Formation is mostly exposed along the northwestern boundary of the KY coal basin and ranges
in thickness from about 500 feet in northeastern KY to about 1,500 feet in along the southern
margins of the KY coalfields (Kiesler, 1983, Leist, 1982, and Quinones, 1981). Thin outcrop
Mountaintop Mining Valley Fill in Appalachia EIS
C-12
-------
Appendix C
patterns also occur along the southeast margin of the KY coalfields along the Cumberland Mountain
Overthrust block (Noger, 1988).
Pennsylvanian Breathitt Formation
Within the eastern Kentucky coal basin, the Breathitt Formation rocks are divided into upper,
middle, and lower members and have the most extensive surface coverage of any formation in the
basin, approaching approximately 75 percent. The Breathitt Group rocks are comprised of siltstone,
sandstone, shale, coal, underclay, ironstone, but very little limestone aside from the Magoffin
Member limestone and calcareous shale, which is widespread within the middle portion of the
formation. Sandstone units usually range in thickness from 30 to 120 feet and are less competent
than the sandstones of the underlying Lee Group. The unit reaches its maximum thickness along
the southeastern edge of the coal basin, achieving thickness of about 3000 feet. Basal portions of
the Breathitt Formation intertongue with the underlying Lee Formation (Kiesler, 1983, Leist, 1982,
Quinones, 1981, and Noger, 1988).
The Breathitt Group rocks contain the majority of the mineable coals within the Basin, and number
upwards of 21 to 30 coals (refer to Table C-7) depending upon the location within the Eastern
Kentucky Coal Basin. Thicknesses and extents of coal units are variable. Unit thickness ranges
from 6 to 100 inches. The thickest beds tend to be elongate in a northeasterly direction within the
basin.
Pennsylvania Conemaugh Group
In northeastern Kentucky, the Conemaugh Group includes shale, siltstone, variegated sandstone, and
a few thin coals (Kiesler, 1983). Included in ascending order are the Brush Creek Coal (Princess
No. 10), Brush Creek Limestone, and Ames Limestone. The Conemaugh Group ranges in thickness
from 430-460 feet (Noger, 1988).
Pennsylvania Monongahela Group
The Monongahela Group is comprised of shale and sandstone and is described as being at least 140
feet thick in northeastern Kentucky (Noger, 1988). No reference to the presence of any coals is
made within the Kentucky Geologic Map (Noger, 1988).
Pennsylvania Conemaugh/Monongahela Groups Undifferentiated
W.E. Price, et.al. (1962) describe the undifferentiated Conemaugh/Monongahela Group as
containing variegated siltstones and claystones with massive sandstones in the lower part. Also
included are a few thin coals and limestones (Price, 1962). Price (1962) describes three sandstone
members in ascending order: the Mahoning Member (maximum 100 feet thick), the Buffalo
Member ( average 45 feet), and the Morgantown Member (average 50 feet thick).
Mountaintop Mining Valley Fill in Appalachia EIS U-J J
-------
Table C-7
Correlation Chart of Major Coal Beds and Coal Zones and Other
Key Beds of the Pennsylvanian of Eastern Kentucky (Modified from Rice and Others, 1979)
J^orth ol Fine Mountain FauIT
TVnrth Fast South
cS
Conemaugh
and Monongahe
Formations
Lee and Breathitt Formations
Upper part of Breathitt Formation
Middle part of Breathitt Formation
Lee Formation and lower part of Breathitt Formations
Ames Limestone Member
Brush Creek Limestone Member
Brush Creek coal bed
Upper Freeport coal bed
Princess No. 8 coal bed
Princess No. 7 coal bed
Princess No. 6 coal bed
Obryan (Vanport)
Limestone Member1
Flint Ridge Flint of Morse (1931)
Princess No. 5 (Skyline) coal zone
Princess No. 4 coal bed
Princess No. 3 (Mudseam) coal bed
Magoffin Member
Taylor coal bed
Hamlin coal zone
Fire Clay Rider coal bed
Fire Clay coal bed
Little Fire Clay coal bed
Whitesburg coal bed
Kendrick Shale Member
Cannel City coal bed
Tom Cooper (Van Lear) coal bed
Grassy coal bed
Bruin coal bed
Betsie Shale Member
Zachariah coal bed
Corbin Sandstone Member of
Lee Formation
Mine Fork coal bed
Warm Fork coal bed
Olive Hill Clay bed of Crider (1913)
Removed
by
erosion
Richardson coal zone
Broad coal zone
Hindman coal bed
Peach Orchard coal zone
Hazard coal zone
Haddix coal zone
Magoffin Member
Taylor (Sharp) coal bed
Hamlin coal zone
Fire Clay-
coal zone
Kendrick Shale Member
Amburgy coal zone
Elkins Fork Shale of Morse (1931)
Upper ElkhornNo. 3 coal bed
Alma coal zone
Lower Elkhorn coal bed
Powellton coal zone
Betsie Shale Member
Clintwood (Matewan) coal bed
Cedar coal bed
Little Cedar coal bed
Splash Dam coal bed
Lower Banner coal bed
.
(undivided)
Removed
by
erosion
Knob coal zone
Broas coal zone
Stoney Fork Member
Hazard No. 9 coal zone
Francis coal zone
Big Wheel coal bed
Braden Mountain Coal Bed
Red Ash coal bed
Magoffin Member
Copland (Sharp) coal bed
Beech Grove coal bed
Hatfield coal bed
Big Mary coal bed
Windrock coal bed
Upper Pioneer coal bed
Lower Pioneer coal bed
Jordan coal bed
Elk Gap coal bed
Lick Fork coal bed
Jelico coal zone
Blue Gem coal bed
Little Blue Gem coal bed
Betsie Shale Member
Lily (Manchester, River Gem, or
Swamp Angel) coal bed
Corbin Sandstone Member of Lee
Formation
Gray Hawk coal bed
Beattyville coal bed
Barren Fork coal bed
Member of Lee Formation
Beaver Creek coal bed
Stearns No. 1 !/z coal bed
Stearns No. 1 coal bed
Livingston Conglomerate Member of
Lee Formation
Along and South of
Fine Mountain Fault
Remove
by
erosion
High Splint Coal Bed
Red Springs coal bed
Low Splint coal bed
Magoffin Member
Limestone coal bed
Pardee coal bed
Hignite (Smith) coal bed
Wallins Creek coal bed
Kendrick Shale Member
Poplar Lick (Creech) coal bed
Darby coal bed
Kellioka (Taggart marker) coal bed
Collier coal bed
Harlan (Mingo) coal zone
Path Fork (Rich Mountain) coal bed
Betsie Shale Member
Hance (Bennetts Fork) coal bed
Mason (Murray) coal bed
Splitseam coal bed
Clear Fork (Rex) coal bed
Naese coal bed
Tunnel coal bed
!
1
'3
Lower part
Breathitt Formation
Lee Formation
Revised stratigraphic nomenclature (Rice and others, in press)
Mountaintop Mining Valley Fill in Appalachia EIS
C-14
-------
Appendix C
b. Tennessee
The geologic formations of Upper Mississippian and Pennsylvanian age in Tennessee are described
in ascending order in the sections that follow. Table C-8 depicts Eastern Tennessee coalbeds.
Upper Mississippian Rocks
Throughout the Eastern Tennessee coalfields, the Upper Mississippian Pennington Formation
separates the Pennsylvanian-aged coals and associated rocks from the underlying Mississippian aged
carbonates and related rocks. The Pennington Formation is a transitional unit and ranges in
thickness from 100 to 700 feet from west to east. The formation is composed of shale (highly
variegated and distinctive to the east), fine-grained sandstone, and conglomerates which grade
downwards to limestones/carbonates, and has a persistent dolomite at its base. The Pennington
Formation underlies most all the Cumberland Plateau and outcrops along its western and eastern
margins (Gaydos, 1982 and Hardeman, 1966).
Pennsylvanian Rocks
The Pennsylvanian-aged rocks cap the extensive uplands of the Cumberland Plateau and contain the
coals of the Eastern Coal Province of Tennessee. Within the northern portion of the coal province,
or coalfields, these rocks range in thickness from 600 to 3,000 feet from east to west (Gaydos, 1982).
Within the southern portion of the province, Pennsylvania-aged rocks range in thickness from
approximately 200 to 1,000 feet from west to east (Hollyday, 1983 and May, 1983). The rocks are
comprised of cyclical sequences of shale and conglomerate with lesser amounts of siltstone and coal
to the west and cyclical sequences of sandstone, siltstone, shale, coal, underclay, and conglomerate
to the east. Older Pennsylvanian rocks underlie the near surface to the west, while younger rocks
underlie the near surface to the east, due to the predominant dip and thickening of rock units towards
the east. The following narrative summarizes the major Pennsylvanian-aged rock units of the
Cumberland Plateau coalfields.
Lower Pennsylvanian Gizzard Group
Shale, siltstone, sandstone, and conglomerate comprise the Gizzard Group. This unit extends from
the base of the overlying Sewanee Conglomerate to the top of the Pennington Formation. Thickness
ranges from 0 to 520 feet (Hardeman, 1966). The Warren Point sandstone is a significant unit in this
group averaging 100 feet in thickness (Brahana, 1986). This unit exists at ground surface primarily
in the extreme southern portion of the coalfield (Hardeman, 1966).
Lower Pennsylvanian Crab Orchard Mountain Group
This group of associated rocks is comprised of primarily conglomerate, sandstone, siltstone, shale,
and coal. The unit extends from the Rockcastle Conglomerate to the base of the Sewanee
Conglomerate. Thickness ranges from 200 to 950 feet (Hardeman, 1966). In ascending order, it
includes the Sewanee, Lantana, and Morgan Springs coals (Hardeman, 1966 and Hollyday, 1983).
Three major sandstone units occur in the group which, in ascending order, include the Sewanee,
Newton, and Rockcastle (Brahana, 1986). This unit exists at the ground surface over extensive
portions of the southern to central coalfields.
Mountaintop Mining Valley Fill in Appalachia EIS U--/J
-------
Appendix C
Middle Pennsylvanian Crooked Fork Group
The Crooked Fork Group consists primarily of shale, sandstone, conglomerate, siltstone, and coal
and extends from the Poplar Creek Coal down to the top of the Rockcastle Conglomerate. Group
thickness ranges from 320 to 455 feet (Hardeman, 1966). This unit has a somewhat limited coverage
at ground surface and is present within the north-central and northern portions of the basin
(Hardeman, 1966). Major coals include, in ascending order, the Rex, Hooper, and Poplar Creek
(Hardeman, 1966). Sandstone units in this group and those overlying are generally much thinner
and less laterally persistent versus those in the underlying units discussed above.
Middle Pennsylvanian Formations
These units occur only within the northeastern portion of the plateau coalfields and overlie the
preceding formations. Six formations comprise the Middle Pennsylvanian in the Tennessee
coalfields and include the following in ascending order (Hardeman, 1966):
Slatestone Formation - Shale, sandstone, siltstone, and several important coals including the Jellico
and Poplar Creek - 500 to 720 feet thick.
Indian Bluff Formation Shale, sandstone, siltstone and thin coals; includes the Pioneer Sandstone
at top - 150 to 475 feet thick.
Graves Gap Formation Shale, sandstone, siltstone, and coal; includes the Windrock coal - 275 to
385 feet.
Redoak Mountain Formation Shale, sandstone, siltstone, and several important coals including the
Pewee coal - 340 to 420 feet.
Vowell Mountain Formation - Shale, sandstone, siltstone, and coal; includes the Frozen Head
Sandstone Member - 230 to 375 feet.
Cross Mountain Formation - Shale interbedded with sandstone, siltstone, and thin coal beds -
maximum thickness is 550 feet.
Coal units within the Eastern Coal Province of Tennessee are difficult to correlate regionally (May,
1983). The important coals in northern Tennessee are the Upper Pennsylvanian Pewee, Big Mary,
and Jellico coals of Upper Pennsylvanian age, the Coal Creek of Upper Pennsylvanian age, and the
Sewanee of Lower Middle Pennsylvanian age (Gaydos, 1982). In the west-central portion of the
coalfields, the important coals include the Richland and overlying Sewanee coals found within the
Crab Orchard Mt. Group of Lower Pennsylvanian age (May, 1981 and Hardeman, 1966).
The primary coals within the east-central portion of the basin are the Big Mary, Rock Springs, and
Coal Creek coals, whose position within the Pennsylvanian sequence is not specified (Gaydos,
1982). Possibly these coals have been renamed. Within the southern section of the coalfields, the
major coals include (in ascending order) the Bon Air within the Lower Pennsylvanian Gizzard
Group, the Richland, Sewanee, Lantana, and Morgan Springs located within the Lower to Middle
Pennsylvania Crab Orchard Mt. Formation (Hollyday, 1983).
Mountaintop Mining Valley Fill in Appalachia EIS U--/O
-------
Appendix C
Table C-8
Eastern Tennessee Coal Beds
Geologic System
e
e
3 ^
1 |
'3
>
s- £"
Is
-J 0.
Formation/Group
Cross Mountain Formation
Vowell Mountain Formation
Redoak Mountain Formation
Graves Gap Formation
Indian Bluff Formation
Slatestone Formation
Crooked Fork Group
Crab Orchard
Mountain Group
Gizzard Group
Coal Bed*
(thin coals)
(various coals)
Pewee
Windrock
(thin coals)
Jellico
Poplar Creek
Hooper
Rex
Morgan Springs
(underlies Rockcastle
Conglomerate)
Lantana
(overlies Newton Sandstone)
Sewanee
Richland
(overlies the Sewanee
Conglomerate)
Wilder
Bon Air
(underlies Warren Point
Sandstone)
White Oak
Sale Creek
(Taken from USGS Water-Resources Investigations Open File Report 82-679 (1983), Figure 2.2-2 and Geologic Map
of Tennessee, Tennessee Department of Conservation, Division of Geology, 1966, East-Central Sheet)
* This list is not necessarily a complete list; it is based upon listed references.
c. Virginia
The geologic formations of Upper Mississippian and Pennsylvanian age in Virginia are described
in ascending order in the sections that follow. The nomenclature used for these units can be found
in Table C-9.
Upper Mississippian Rocks
The Upper Mississippian Rocks within the Southwestern Virginia coalfields consist primarily of the
Pennington Group. This group consists of shale, sandstone, mudstone, conglomerate, siltstone, and
minor limestone and coal. The shale, siltstone, and mudstone occur in variegated colors of gray,
black, and red (Harlow, 1993). The top of the Pennington Group intertongues in places with the
overlying Pennsylvanian Lee Formation. The Pennington ranges in thickness from 235 feet in the
southwest to 2,355 feet to the northeast in Tazewell County.
Pennsylvanian Rocks
The Pennsylvanian-aged rocks of the southwestern Virginia coalfields in ascending order include
the Lee and Norton Formations, the Gladeville Sandstone, and the Wise Formation over the
Mountaintop Mining Valley Fill in Appalachia EIS
C-17
-------
Appendix C
majority of the coalfields except the northeastern corner (eastern Buchanan and western Tazewell
Counties) where the laterally-equivalent Pocahontas, New River, and Kanawha Formations overlie
Upper Mississippian rocks. The Upper Mississippian and overlying Pennsylvanian rock units of the
Southwestern Virginia coalfields are summarized in ascending order below.
Lower Pennsylvanian Lee Formation
The Lee Formation consists of quartzarenite, conglomerate, sandstone, shale, siltstone, and coal.
The Lee Formation ranges in thickness from zero feet in Buchanan County to 1680 feet in Lee
County (Rader, 1993). The Lee Formation is dominated by three quartz-rich sandstone members
that form steep cliffs and ridges (Harlow, 1993). In ascending order these members include the
Middlesboro Member and the Bee Rock Sandstone. The Middlesboro Member overlies Upper
Mississippian rocks and is composed of two tongues of clean, light gray quartzose sandstone that
thin to the southeast. The lower tongue has a maximum thickness of 400 feet, the upper tongue
being thinner at approximately 125 feet (Harlow, 1993). The Bee Rock Sandstone Member is a 100-
ft thick unit of quarztose, conglomeratic sandstone (Harlow, 1993). Per Harlow (1993) the base of
the Norton Formation is defined as the top of the uppermost quartzarenite rock unit of the Lee
Formation and from northwest to southeast this boundary is displaced downward as the quartzarenite
bodies pinch out, such that the boundary then becomes the top of the Naese Sandstone Member, the
Bee Rock Sandstone Member, and finally the upper or lower part of the Middlesboro Member.
Refer to Table V.A.2-5 below for coal beds known to occur in the Lee Formation and overlying
formations.
Pocahontas Formation
The Pocahontas Formation is laterally equivalent to the Lee Formation and underlies the New Ricer
Formation in the northeastern coalfield area (Rader, 1993). The unit thins to the northwest and is
fine- to medium-grained micaceous, feldspathic sandstone interbedded with siltstone, coal, and
underclay (Harlow, 1993). Sandstone comprises 70 percent of the formation (Rader, 1993). The
deep coal seams of the Pocahontas Formation are generally thicker than the coal of the overlying
Norton and Wise formations (Harlow, 1993). The Pocahontas Formation is also known for its thick,
low-sulfur coal seams (Harlow, 1993). The unit ranges in thickness from zero to 970 feet achieving
maximum thickness in Tazewell County (Rader, 1993).
Lower Pennsylvanian Norton Formation
The Norton Formation lies just below ground surface over most of Dickenson and Buchanan
Counties. The Norton Formation overlies the Lee Formation and underlies the Wise Formation and
Gladeville Sandstone within the southwestern Virginia Coal field region. The unit consists of
siltstone and shale, and some sandstone, coal, and underclay. The siltstone and shale are gray to
dark gray and thinly laminated and the sandstone is fine to medium grained and weakly cemented.
To the northwest the average thickness ranges from 750-800 feet; to the southeast the formation is
up to 1,300 feet thick (Harlow, 1993). Per the Virginia Geologic Map (1993), the formation
thickens from northwest to southeast across the coalfields from 500 to 2,480 feet.
Per Harlow, the base of the Norton Formation is defined as the top of the uppermost quartzarenite
of the Lee Formation. From northwest to southeast across the coalfield, this lower boundary is
Mountaintop Mining Valley Fill in Appalachia EIS U-JO
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Appendix C
displaced downward as the Lee Formation quartzarenite bodies pinch out such that the lower
boundary transitions from the top of the Naese Sandstone Member, the Bee Rock Sandstone
Member, the upper part of the Middlesboro Member to the lower part of the Middlesboro Member
(Harlow, 1993). The Norton Formation contains nine mineable coal seams, eight of which were
evaluated for hydraulic conductivity by G.E. Harlow and include the Kennedy, Bearwallow, Big
Fork, Lower Banner, Upper Banner, Splashdam, Hagy, and the Norton (Harlow, 1993).
Lower Pennsylvanian New River Formation
The New River Formation of Lower Pennsylvanian age is a coal-bearing sequence of sandstone,
siltstone, and shale. Lithologically similar to the Pocahontas Formation except for the presence of
coarse-grained quartzarenite and conglomerate sandstone that grades laterally into the Middlesboro
Member of the Lee Formation. The New River Formation conformably overlies the Pocahontas
Formation and is known for numerous thick, low-sulfur coal seams. These seams thin to the
northwest across the basin where the New River and Pocahontas intertongue with the Lee
Formation. Some of the coal seams included within the formation are the Lower Seaboard, Upper
Seaboard, Castle, Tiller, and Jawbone (Harlow, 1993). Formation thickness is estimated to range
from 1,380 to 1,925 feet from southwest to northeast.
Lower Pennsylvanian Gladeville Sandstone and Wise Formation
The Gladeville is a resistant quartzose sandstone and conglomerate that conformably overlies the
Norton Formation. In southern sections of Wise and Dickenson Counties it forms numerous ridges
and low plateaus. The Gladeville thins and eventually is absent to the north and northeast (Harlow,
1993). This unit ranges in thickness from zero up to 65 feet (Rader, 1993). The Wise Formation
is composed of composed of siltstone, sandstone, shale, limestone, coal, underclay, and two
distinctive calcareous shale units. The formation includes several thick sandstone units, including
the Clover Fork, Marcum Hollow, and Reynolds sandstone members. It conformably overlies the
Gladeville Sandstone and reaches a thickness of 2,300 ft to the northwest, where it is capped by the
Harlan Sandstone. The formation contains up to 18 coal seams including, in ascending order, the
Dorchester, Lyons, Blair, Clintwood, Imboden, Kelly, Upper St. Charles, Wilson, Taggart Marker,
and Low Splint (Harlow, 1993). Additional coals include the High Splint at the top of the formation
and the Williamson (Rader, 1993).
Lower Pennsylvanian Kanawha Formation
The Kanawha Formation consists primarily of sandstone, siltstone, shale, coal, and underclay. The
upper sandstone beds are locally congolomeratic, lenticular, and thickly to massively bedded. The
base of formation is conformable and placed at the bottom of the Kennedy Coal that overlies the
McClure Sandstone member of the New River Formation. The Kanawha is equivalent to the Wise
Formation and upper part of the Norton Formation and is approximately 550+ feet thick. The upper
part of the formation is eroded within the Virginia coalfields.
Mountaintop Mining Valley Fill in Appalachia EIS
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Appendix C
Lower to Middle Pennsylvanian Harlem Formation
The Harlan Formation consists of sandstone, siltstone, shale, and coal. The sandstone is moderately
resistant and comprises approximately 48 percent of the formation. The formations contain 22
discontinuous coal beds, and the base is defined as the top of High Splint Coal. The formation is
up to 650 feet in thickness (Rader, 1993).
Mountaintop Mining Valley Fill in Appalachia EIS U -2 0
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Appendix C
Table C-9
Southwestern Virginia Coalbeds
Geologic
System
Lower to
Middle Penn.
Lower Pennsylvanian
Upper
Miss.
Formation/
Group
Harlan
Formation
Wise Formation
and
Gladeville
Sandstone
Norton Fm.
Norton Fm.
Lee Fm.
Coal Bed Name
22 discontinuous
coals
High Splint (top)
Low Splint
Taggart Marker
Wilson
Upper St. Charles
Kelly
Imboden
Clintwood
Blair
Lyons
[Williams-pos.?]
[Philips-pos.?]
[Numerous others]
Dorchester (base)
Norton
Hagy
Splashdam
Upper Banner
Lower Banner
Big Fork
Bearwallow
Kennedy
coal - up to 6
seams including:
Raven
Jawbone
Tiller
[Coal present but
no specific data
located]
Kennedy (base)
Jawbone
Tiller
Castle
Upper Seaboard
Lower Seaboard
Coal present in
seams thicker
than those of
Norton and Wise
Fm.
Formation/
Group
Kanawha Fm.
(top part eroded)
New River Fm.
Pocahontas Fm.
Pennington Group
Source: Rader, 1993 andHarlow, 1993.
Mountaintop Mining Valley Fill in Appalachia EIS
C-21
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Appendix C
d. West Virginia
The geologic formations of Upper Mississippian and Pennsylvanian age in West Virginia are
described in ascending order in the section that follows. Table C-l 0 summarizes the significant coal
beds found within the Appalachian Plateau coalfields of southern West Virginia. Within the
following narrative, the older formation name usage for the Lower Pennsylvanian-aged rocks in
West Virginia is used here (Pocahontas, New River, and Kanawha Formations in ascending order)
rather than Pottsville Group terminology which is the current usage as shown in Table C-6.
Upper Mississippian
The pre-Pottsville rocks include the Upper Mississippian-age shales and sandstones of the Mauch
Chunk Group. These strata include by definition no coal beds. The Mauch Chunk Group is of
hydrogeologic interest as a source of domestic and agricultural water supplies (Friel et al. 1967).
Pocahontas Formation
The coalbeds of the Pocahontas Formation are interbedded with sandstones, shales, siltstones, and
underclays. The sandstones are light gray, very fine to coarse grained, thin-bedded to massive, and
crossbedded. They consist of 50 to 65 percent quartz with large proportions of white-weathering
feldspar, mica flakes, and dark mineral grains. The shales are medium to dark gray, thinly laminated,
and carbonaceous. Horizontally laminated or crossbedded, medium light gray siltstones and
medium-gray clayey to silty underclays occur in thin beds throughout the Pocahontas Formation
(Hadley 1968; Cardwell 1975).
New River Formation
The lithology of the New River Formation is nearly identical to that of the underlying Pocahontas
Formation (Englund 1968; Cardwell etal. 1968). Sandstones of the New River Formation are locally
thicker, more massive, and more conglomeratic or quartzose than those of the Pocahontas
Formation. The sandstones are moderately resistant and overly broad upland areas in central and
eastern Raleigh County (Hadley 1978).
Kanawha Formation
The light gray, very fine to medium-grained, crossbedded, sub-gray wacke sandstones weather faster
than the sandstones of the underlying New River Formation. Kanawha Formation sandstones consist
of 50 to 65 percent quartz with feldspar, mica, rock fragments, and opaque mineral grains. The beds
of shale and siltstone are medium to dark gray, laminated, and locally calcareous. Large argillaceous
(impure) limestone deposits occur in ellipsoidal concretions or thin discontinuous calcareous
(carbonate-rich) beds with marine fossils locally present (Englund 1968).
Allegheny Formation
The Allegheny Formation consists of cyclical sequences of sandstone, siltstone, shale, limestone,
coal, and underclay. (Englund 1968; Cardwell 1975).
Mountaintop Mining Valley Fill in Appalachia EIS U -22
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Appendix C
Conemaugh Group
These strata comprise mostly non-marine cycles of red and gray shale, siltstone, sandstone, and thin
beds of limestone and coal. The Conemaugh Group extends from the top of the Upper Freeport Coal
to the base of the Pittsburgh Coal. Outcrops of the Conemaugh Group generally are limited to
ridgetops and isolated peaks or small plateau areas.
Monongahela Group
The Monongahela Group is composed of non-marine red and gray shale, siltstone, sandstone,
limestone, and coal. The Monongahela Group extends from the base of the Pittsburgh Coal to the
top of the Waynesburg Coal. The thickness of the Monongahela Group in the Basin ranges from less
than 100 feet to more than 400 feet.
Dunkard Group
Outcrops of these rocks are limited to the crests of ridges. The Dunkard Group extends from the top
of the Waynesburg Coal upward to the bottom of the Upper Proctor Sandstone. The maximum
thickness of the Group in West Virginia is nearly 1,200 feet. The Dunkard Group consists of cyclic
sequences of non-marine red and gray shale, siltstone, sandstone, limestone, and coal.
Mountaintop Mining Valley Fill in Appalachia EIS U-z J
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Appendix C
Table C-10
Unified Stratigraphic Columns - West Virginia (Lotz 1970, USBM 1977)
Age
PERMIAN
PENNSYLVANIAN
Rock Unit
Dunkard Group
Monongahela Group
Conemaugh Group
Conemaugh Group
Name
Nineveh
Hosteller
Fish Creek
Dunkard
Jollylown
Hundred
Washington "A"
Washington
Little Washington
Waynesburg "B"
Waynesburg "A"
Waynesburg
Little Waynesburg
Unionlown
Lower Unionlown
Sewickley
Redstone
Pittsburgh
Morganlown
Little Pittsburgh
Second Little Pittsburgh
Franklin Rider
Little Clarksburg
Normanlown
Lower Hoffman
Upper Clary sville
Lower Clarysville
Wellersburg Rider
Wellersburg
Barton Rider
Elk Lick
Wesl Milford
Federal Hill
Local Names
Fairview, Ml. Morris
Maplelown, Tyron, Tyson
Pomeroy
Big Vein, Pittsburgh No. 8
Raymond, Raymond Cily, Sally
Malone
Dirly Nine-fool, Franklin
Barton, Four-fool
Mountaintop Mining Valley Fill in Appalachia EIS
C-24
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Appendix C
Table C-10
Unified Stratigraphic Columns - West Virginia (Lotz 1970, USBM 1977)
Age
PENNSYLVANIAN
Rock Unit
Allegheny Group
Kanawha Group
Name
Duquesne
Harlem
Upper Bakerstown
Bakerstown
Brush Creek
Mahoning
Upper Freeport
Lower Freeport
Upper Kittanning Rider
Upper Kittanning
Middle Kittanning
Lower Kittanning
Clarion
Lionesta
Upper Mercer
Stockton-Lewiston
Coalburg
Little Coalburg
Buffalo Creek
Winifrede
Lower Winifrede
Chilton (A)
Chilton Rider
Chilton
Little Chilton
Hernshaw
Dingess
Williamson Rider
Williamson
Cedar Grove
Local Names
Crinoidal, Friendsville
Thomas
Forked Seam
Six-foot
Davis, Split-six
"D" Block, Roger
North Coalburg
No. 5 Block, Tioga
Little No. 5 Block
Stockton "A"
Belmont, Lewiston, Lower Mercer,
Stockton
Black Bank, Dorothy, Quakertown
Island Creek, Marpleton, Red Jacket,
Thacker
Mountaintop Mining Valley Fill in Appalachia EIS
C-25
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Appendix C
Groundwater Characterization
Surface coal mining can directly impact groundwater resources by altering the physical structure of
aquifers overlying the coal seams being mined, replacing rock units of varying hydrologic properties
with backfill spoil of a fairly heterogeneous nature. Placement of fills in hollows and valleys may
change groundwater flow regimes as well by creating a groundwater storage medium where one did
not previously exist. Recharge rates, groundwater elevations, and discharge patterns may all change
within and around a mine site as a result. From a water quality standpoint, surface coal mining may
expose acid-forming minerals in coal and overburden to accelerated reaction with air and water,
resulting in acid mine drainage formation or elevated metals concentrations that may migrate into
the groundwater system. Underground mining may have a lesser effect on overlying aquifers
depending on its depth and overburden characteristics, but can still result in dewatering or changes
in groundwater flow patterns, and is similarly susceptible to generation of acid mine drainage.
To provide background information to evaluate the potential effects of mining on groundwater
quality and quantity, the following section describes the general characteristics of groundwater
occurrence, quantity, quality, and related information for the Appalachian Plateau Physiographic
Province. The Plateau Province contains the coalfields of Kentucky, Tennessee, Virginia, and West
Virginia. Following a general discussion of groundwater within the overall Plateau Province, more
specific information is provided for coalfield areas within each state where mountaintop mining may
take place. Please refer to Table C-l 1, "Principal Aquifers of the Appalachian Plateau Province"
which list the principal aquifers for each state and the correlating units across state boundaries.
Due to the large degree of lithologic variability of the bedrock within the coalfields, the USGS has
utilized the geologic unit classification (e.g., group or formation name) as the basis for identifying
the primary aquifers within the Plateau and associated coalfields within each state. As will be
discussed below, most of the significant groundwater flow within the principal aquifers occurs
within the fractured sandstone units within these formations or groups.
General Plateau Groundwater Occurrence and Quantity
Pennsylvanian-aged sandstone units are the most productive/widespread aquifers within
Pennsylvanian-aged coal measures (USGS HA 730-K). Secondary porosity via rock fracturing is
the primary means of movement of groundwater within the sandstone units since intergranular
permeability is low (USGS HA 730-L); (refer to Figure C-l). Most fractures are shallow in depth,
a few tens to a few hundreds of feet below ground surface, and decrease in number and openness
with depth (USGS HA 730-L). Pennsylvanian-aged coals can also store and transmit water within
their joint systems (USGS HA 730-L).
Harlow and LeCain (1993) found in studies completed in the coalfields of southwestern Virginia that
the permeability of coal seams is greater than that for other rock types. At depths of less than 100
feet, though, Harlow and LeCain (1993) found that groundwater transmissivities (gal/day/ft or
ft2/day) were similar for coal seams, sandstone, and lithologic contacts. At depths of 200 feet only
coal seams had consistently measurable permeability. Harlow and LeCain (1993) found that the
mean depth to standing water below land surface measured from 43 uncased coreholes was 221 feet
for hilltop locations, 109 feet for hillslopes, and 39 feet in valleys. Their studies indicate that
groundwater flow is minimal below 300 feet depth due to increased overburden pressures and thus
Mountaintop Mining Valley Fill in Appalachia EIS U -2 O
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Appendix C
groundwater circulation is typically restricted to modest depths with discharge to valleys resulting
either in stream flow or underflow beneath streams (Harlow and LeCain, 1993).
Table C-ll
Principal Aquifers of the Appalachian Plateau Province *
Geologic System
Quaternary
Permian
Upper
Pennsylvanian
Middle
Pennsylvanian
Lower to Middle
Pennsylvanian
Lower
Pennsylvanian
Upper
Mississippian
Upper to Middle
Mississippian
West Virginia
Recent Valley
Alluvium
Dunkard Group
Monongahela Group
Conemaugh Fm.
Allegheny
Group
Pottsville Group
Formerly Kanawha
New River
Pocahontas
Formations
Mauch Chunk Group
Greenbrier Limestone
Virginia
Recent Valley
Alluvium
Harlan Formation
Wise Fm.
Gladeville SS
Norton Fm.
Lee Fm.
Pennington Fm.
Greenbrier
Limestone
Kentucky
Recent Valley
Alluvium
Monongahela Group
Conemaugh Fm.
Breathitt Formation
Lee Formation
Pennington Fm.
Newman Limestone
Tennessee
Recent Valley
Alluvium
Cross Mt. Fm.
Vowell Mt. Fm.
Redoak Mt. Fm.
Graves Gap Fm.
Indian Bluff Fm.
Slatestone
Formation
Crooked Fork Group
Crab Orchard
Mountains Group
Gizzard Group
Pennington Fm
Newman Limestone
Shaded area indicates a hydrologic confining unit.
*Developed from USGS HA 730-L and HA 730-K, Harlow (1993), Cardwell (1968), and Rader (1993).
Mountaintop Mining Valley Fill in Appalachia EIS
C-27
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Appendix C
Figure C-l Features of Primary and Secondary Permeability.
Intergranular Pore Space
(Primary Permeability)
Water Level
Open Fractures
(Secondary Permeability)
(Source: Wyrick and Borchers 1981)
Mountaintop Mining Valley Fill inAppalachiaEIS
C-28
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Appendix C
Underlying Mississippian-aged limestones are more productive where they lie closer to the ground
surface along the eastern and western fringes of the Appalachian coal basins, but within the central
portions of the coal basin, in general, they lie quite deep below the Pennsylvanian- aged sandstones.
Separating Pennsylvanian-aged sandstone from the main Mississippian limestone sequence are the
Upper Mississippian Pennington/Mauch Chunck shales, which act as a relatively confining unit
overlying the Mississippian limestones (Cardwell, 1968 and USGS HA 730-L).
Yields of the Pennsylvanian-aged sandstones range from 5-500 gpm; yield varies due to changes in
lithology, thickness, and degree of development of secondary fracture zones (USGS HA 730-K and
-L). Middle and Lower Pennsylvania Formations contain more sandstone units versus Upper
Pennsylvanian units (USGS HA 730-K). Some sandstone units are regionally extensive and have
well developed fracture systems and higher groundwater yields.
Groundwater recharge to bedrock aquifers within the Plateau Region is lower compared to the
Valley and Ridge Province due to steeper slopes, thinner regolith (weathered rock/soil), and faster
runoff characteristics of the Plateau Region (HA 730-L). Recharge occurs mainly at hilltops and
side slopes and moves in a stepwise fashion vertically through fractures and then laterally through
sandstone/coal beds, which are underlain by less permeable layers such as underclays or shales
(USGS HA 730-L and -K).
Saline water may be near the ground surface within the Plateau region valley bottoms due to an
upcoming effect caused by groundwater discharge in these areas Stoner, et al, 1987, Minns, 1995).
In some areas of the Appalachian Plateau, regional movement of groundwater may not occur as
models suggest due to the predominance of local and intermediate flow systems (USGS HA 730-L).
Circulation of groundwater in the dissected Plateau behaves as hydrologic islands; the islands being
separated by valley discharge zones or streams (USGS HA 730-L). Water moves down tributary
valleys toward major rivers, partly as surface water flowing into and down the stream channel and
partly as water discharging into the streams through alluvial deposits or permeable valley bottom
bedrock aquifers (USGS HA 730-L). Springs commonly represent lateral flow intersections with
valley sidewalls. This discharge from springs is generally from unconfined conditions. Water that
leaks across low-permeability units can be present within permeable beds within synclinal troughs
and confined flow and can become artesian flow when tapped by wells in valley bottom(USGS HA
730-L).
Saline water may exist at relatively shallow depths beneath larger stream valleys in the Appalachian
region as models by Stoner, et al (1987) and Minns (1995) indicate.. Brine water sources may be
from deeper rock units and may move up along deep fractures (USGS HA 730-L). It is likely that
relatively flat-lying, confining units that impede vertical mixing of fresh and saline water, along with
the lack of intense fracturing of rocks, as can be found within the Valley and Ridge Province, also
limit mixing of fresh and saline groundwater within the Plateau region (USGS HA 730-L).
Although the sandstone bedrock units of the coal basins can, in some cases, be traced over many
miles, the distribution of local aquifers within these formations depends mostly on the distribution
of fractures and their permeability (USGS HA 730-L). Groundwater recharge tends to be
concentrated along valley sidewalls (near vertical and horizontal tensile fractures related to valley
slumping) and valley bottoms where near horizontal fractures, parallel to bedding, are present due
to relief of compressional stresses via erosion over long time periods (USGS HA 730-L). Valley
Mountaintop Mining Valley Fill in Appalachia EIS U -2 "
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Appendix C
sidewall and bottom fractures are usually interconnected; fracturing tends to decrease toward ridge
centers due to greater overburden pressure, and thus wells at ridge top settings will have lower yields
(USGS HA 730-L). In general, well yields are directly proportional to the number of interconnected
fractures (USGHA730-L). Figure C-2, developed by Wyrick and Borchers( 1981), provides a good
representation of fracture patterns thought to occur within the Plateau bedrock and which exert a
significant control on groundwater movement.
Underground mining can disturb the localized flow system by creating artificial drains, new
fractures, and increased permeability, and can lower the groundwater table and/or change flow
directions (USGS HA 730-L). Vertical fractures can connect deep mine areas with nearby wells,
and existing deep mines may create "regional-like" flow patterns (USGS HA-730-L).
General Plateau Groundwater Quality
Within the plateau region, most fresh groundwater is of generally good quality, although some
excessive levels of iron, chloride, and sulfate are known (USGS HA 730-K+L). Deeper
groundwater is more mineralized than shallow waters due to greater residence time within the
bedrock; saline water may be present within a few hundred feet of larger valley bottoms (HA-730-
L+K). Water can be impacted by oil/gas development, brine solutions, waste disposal, and mining.
Most of the sedimentary rock minerals do not readily dissolve into groundwater, and thus dissolved
solids of Plateau aquifers in undisturbed state have relatively low dissolved solids content, averaging
about 230 mg/L (HA-730-L). Average hardness is about 95 mg/L (moderately hard; sandstone
derived groundwater being softer versus shale derived groundwater), median pH is 7.3, and iron has
a median concentration of 0.1 mg/L, with a high of 38 mg/L (HA-730-L). Plateau coalfield
groundwater is of the sodium-bicarbonate or calcium-sodium bicarbonate (HA-730-L+K) type.
Brine waters have dissolved solids concentrations of greater than 1000 mg/L and are found from 100
- 300 feet below larger valley bottoms although fresh water circulation may occur at very deep
levels along deeply fractured or faulted zones (HA-730-L).
In surface mines, groundwater quality can be impacted by coal mining, with the greatest impact to
uppermost aquifers and lessening impacts with depth (USGS HA 730-K). The basic chemical
makeup of groundwater can change from a calcium bicarbonate type to a calcium sulfate type, along
with increases in hardness, specific conductance, sulfate concentrations, and a decrease in pH. The
chemical composition of coal and overburden also can have an impact on reclamation water quality
(USGS 730-K and -L).
Total fresh groundwater withdrawals from consolidated sedimentary-rock aquifers in the
Appalachian Plateau and Central Lowland Province is estimated at 282 mgd in 1985; 47 percent
estimated for domestic/commercial uses and 41 percent for industrial, primarily mining related (HA-
730-L). In the eastern Tennessee and Kentucky coal basins, surface water use greatly exceeds
groundwater usage, exceeding 120 mgd for surface water to < 20 mgd for groundwater (USGS HA
730-K). Nevertheless, groundwater is still an important source of water for domestic, stock, small
public, and industrial supplies (USGS HA 730-K).
Mountaintop Mining Valley Fill in Appalachia EIS U - J I/
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Appendix C
Figure C-2 Stress-Relief Fracturing and Development of Secondary Permeability.
Compressions Stress
Resultant Stress
Land Surface
Colluvium
Tensile Fractures
Compression Fractures
Alluvium
Bedding: Planes
Fractures Due ro Arching
Generalized geologic section showing features of stress-relief fracturing
Block diagram of generalized geologic section showing features of stress-relief fracturing
(Source: Wyrick and Borchers 1981)
Mountaintop Mining Valley Fill inAppalachiaEIS
C-31
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Appendix C
Kentucky Groundwater
Groundwater Occurrence and Quantity
Table C-l 1 presents the significant aquifers of the Plateau Province, which includes the coalfield
provinces. As discussed earlier, groundwater flow within the aquifers is primarily within and
through fractured/jointed sandstone bodies and also along bedding plane contacts. Within the
Conemaugh, Breathitt and Lee Formations, multiple sandstone aquifers are present (Kiesler, 1983).
Shale and coal yield some water, but less than the sandstone units.
In eastern Kentucky fresh groundwater yields for sandstones within the Breathitt and Conemaugh
Formations range from 1 to 200 gpm, and those within the Lee Formation range from 1 to 300 gpm
(Kiesler, 1983). Depths to water are usually less than 50 feet under valleys and about 300 feet under
ridges (Kiesler, 1983). Wells less than 200 feet in depth usually yield 1-50 gpm and frequently are
inadequate for domestic supply (Kiesler, 1983). Reportedly, wells greater that 300 feet in depth
below perennial streams in the Lee Formation yield 300 gpm, and in the Breathitt Formation below
200 feet yield 200 gpm (Kiesler, 1983). These wells are possibly encountering upward-moving
groundwater flow paths.
In the north and central portion of the coal province, yields of the Breathitt Formation are reported
as ranging from <1 gpm up to 325 gpm; the Lee Formation from <1 gpm up to 140 gpm (Quinones,
1981). Groundwater yields obtained from sandstone beds at depths greater than 300 feet are
probably from intergranular pore spaces due to likely sealing of fracture openings by overburden
pressures (Quinones, 1981). Within the southern portion of Kentucky's Eastern Coal Province,
groundwater yields of the Breathitt Formation are reported as ranging from 1 -25 gpm and 1 -250 gpm
for the Lee Formation (Leist, 1982).
Groundwater Quality
Throughout the Plateau area of eastern Kentucky, groundwater quality is considered to be generally
suitable (Kiesler, 1983, Quinones, 1981, and Leist, 1982). In eastern Kentucky groundwater ranges
from soft to hard, with iron being the most objectionable constituent; ranging from 100-157,000
ug/L (Kiesler, 1983). Saline water (>1000 mg/L total dissolved solids) is usually found at 100 feet
below principal valley bottoms, but also first encountered at depths of 300 feet (Kiesler, 1983).
Saline or brine waters are common in oil/gas areas due to brine migration up wells with improperly
installed well casings (Kiesler, 1983). Brines with more than 35,000 mg/1 are known to occur at
depth (Kiesler, 1983). Table C-12 below summarizes 1980 water quality data for the Lee and
Breathitt Formation aquifers in eastern Kentucky (Kiesler, 1983).
Groundwater within the northern and central section of Kentucky's Eastern Coal Province is also
considered to be generally suitable with iron again the most objectionable constituent ranging from
0.01 to 800 mg/L (Quinones, 1981). The source of this iron is likely related to coal mining activity
(Quinones, 1981). Hardness ranges from 4 to 866 mg/L, and groundwater can be one of three types:
calcium-magnesium bicarbonate, sodium bicarbonate, or sodium sulfate none of which is unique to
the Breathitt or Lee Formations (Quinones, 1981). Table C-13 below provides a summary of
groundwater quality for the Breathitt and Lee Formations (Quinones, 1981).
Mountaintop Mining Valley Fill in Appalachia EIS \^-j2
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Appendix C
Within the southern portion of the eastern coalfields, groundwater quality is similar to the rest of the
coalfield area except for apparently lower dissolved iron contents in the groundwater, ranging from
0.003 to 25 mg/L (Leist, 1982). Hardness ranges from 5-790 mg/L as reported in Table C-14 below
(Leist, 1982). Saline or brine (>35,000 mg/L total dissolved solids) water are reported to occur at
less than 100 feet below the deepest valley bottoms (Leist, 1982).
Mountaintop Mining Valley Fill in Appalachia EIS
-------
Appendix C
Table C-12
General Groundwater Composition of the Eastern Kentucky Coalbasin (Kiesler, 1983)
Constituent (mg/L)
CONEMAUGH-BREATHITT
FORMATIONS
Iron (Fe)
Calcium (Ca)
Magnesium (Mg)
Sodium (Na)
Potassium (K)
Bicarbonate (HCO3)
Sulfate (SO4)
Chloride (Cl")
Specific conductance
(Microhms per centimeter at 25°C)
Hardness as calcium carbonate (CaCO3)
pH (Units)
Range
0.01 - 157
2.4 - 248
0.5 - 177
1.5 - 742
0.5 - 22
0 - 537
0.1 - 2,749
1 - 2,450
60 - 7,620
3 - 2,190
2.6 - 8.8
Median
1.0
27
7.5
29
2.4
153
13
11
378
96
7.1
Number of
Samples
100
118
117
121
116
102
185
238
183
185
167
Constituent
LEE FORMATION
Iron (Fe)
Calcium (Ca)
Magnesium (Mg)
Sodium (Na)
Potassium (K)
Bicarbonate (HCO3)
Sulfate (SO4)
Chloride (Cl")
Specific conductance
(Microhms per centimeter at 25°C)
Hardness as calcium carbonate (CaCO3)
pH (Units)
Range
0.01 - 16
1.3 - 150
0.40 - 57
1.4 - 400
0.8 - 9.2
10 - 388
0 - 610
1.0 - 849
39 - 2,970
5 - 580
5.5 - 9.0
Median
0.82
22
6.5
27
1.9
226
12
9.4
310
85
7.0
Number of
Samples
25
155
155
153
153
25
174
177
175
174
173
Mountaintop Mining Valley Fill in Appalachia EIS
C-34
-------
Appendix C
Table C-12
General Groundwater Composition of the Eastern Kentucky Coalbasin (Kiesler, 1983)
Constituent
MISSISSIPPIAN-DEVONIAN ROCKS
Iron (Fe)
Calcium (Ca)
Magnesium (Mg)
Sodium (Na)
Potassium (K)
Bicarbonate (HCO3)
Sulfate (SO4)
Chloride (Cl)
Specific conductance
(Microhms per centimeter at 25°C)
Hardness as calcium carbonate (CaCO3)
pH (Units)
Range
.
0.4 - 68
0.10 - 38
2.8 - 310
0.1 - 2.1
-
1.6 - 120
2.2 - 210
270 - 1,470
1 - 320
6.7 - 8.1
Median
-
46
8.9
16
1.0
-
28
8.3
330
145
7.7
Number of
Samples
0
18
18
18
18
0
18
18
18
18
18
Mountaintop Mining Valley Fill in Appalachia EIS
C-35
-------
Appendix C
Table C-13
General Groundwater Composition for
Northern and Central Kentucky Coalbasin (Quinones, 1981)
Constituent
BREATHITT FORMATION
Iron (Fe)
Calcium (Ca)
Magnesium (Mg)
Sodium (Na)
Potassium (K)
Bicarbonate (HCO3)
Sulfate (SO4)
Chloride (Cl)
Specific conductance
(Microhms per centimeter at 25°C)
Hardness as calcium carbonate (CaCO3)
pH (Units)
Range
0.01 - 890
1.4 - 124
.9 - 41
.6 - 318
1.0 - 9.4
0.0 - 620
0.0 - 1,100
.8 - 1,200
22 - 4,530
4 - 886
3.5 - 9.7
Median
0.73
32
10
83
3
138
22
10
388
96
6.9
Number of
Samples
188
29
29
26
25
189
189
240
189
189
183
LEE FORMATION
Iron (Fe)
Calcium (Ca)
Magnesium (Mg)
Sodium (Na)
Potassium (K)
Bicarbonate (HCO3)
Sulfate (SO4)
Chloride (Cl)
Specific conductance
Hardness as Calcium Carbonate (CaCO3)
pH
0.01 - 6.4
3.6 - 52
2 - 24
2.3 - 317
1.1 - 28
14 - 512
0.0 - 65
.5 - 2,050
40 - 1,620
7 - 256
6.0 - 8.9
0.23
5.5
1.4
247
2.2
267
4.0
44
809
27
7.5
40
28
28
27
27
50
51
74
50
51
46
Mountaintop Mining Valley Fill in Appalachia EIS
C-36
-------
Appendix C
Table C-13
General Groundwater Composition for
Northern and Central Kentucky Coalbasin (Quinones, 1981)
Constituent
PRE-PENNSYLVANIAN ROCKS
Iron (Fe)
Calcium (Ca)
Magnesium (Mg)
Sodium (Na)
Potassium (K)
Bicarbonate (HCO3)
Sulfate (SO4)
Chloride (Cl)
Specific conductance
Hardness as Calcium Carbonate (CaCO3)
pH
Range
0.01 - 14
13 - 14
1.0 - 1.2
.8 - 1.0
.07 - 1.2
9 - 442
1.4 - 260
1.0 - 134
52 - 55
32 - 272
6.0 - 7.5
Median
0.4
-
-
-
-
122
7.0
5
-
82
7.1
Number of
Samples
10
2
2
2
2
10
11
11
2
9
6
Mountaintop Mining Valley Fill in Appalachia EIS
C-37
-------
Appendix C
Table C-14
General Groundwater Composition for Southern Kentucky Coalbasin (Leist, 1982)
Constituent (mg/L)
BREATHITT FORMATION
Iron (Fe)
Calcium (Ca)
Magnesium (Mg)
Sodium (Na)
Potassium (K)
Bicarbonate (HCO3)
Sulfate (SO4)
Chloride (Cl)
Specific conductance
(Microhms per centimeter at 25°C)
Hardness as calcium carbonate (CaCO3)
pH (Units)
Dissolved solids
LEE FORMATION
Iron (Fe)
Calcium (Ca)
Magnesium (Mg)
Sodium (Na)
Potassium (K)
Bicarbonate (HCO3)
Sulfate (SO4)
Chloride (Cl)
Specific conductance
(Microhms per centimeter at 25°C)
Hardness as calcium carbonate (CaCO3)
pH (Units)
Dissolved solids
Range
0.02 - 25
2.3 - 86
0.5 - 38
1.2 - 312
0.3 - 6.4
0 - 455
0 - 237
0.5 - 220
17 - 1,410
5 - 540
3.8 - 9.7
16 798
0.003 - 9.7
1 - 201
0.30 - 70
0.4 - 1,520
0.5 - 19
5 - 315
0 - 240
0 - 2,630
15 - 8,240
5 - 790
5.7 - 8.4
19 4,860
Median
1.0
26
6.4
22
2.2
127
9.7
4
215
82
6.9
199
0.79
13
2.5
1.8
4.6
61
6.5
3
137
44
6.8
77
Number of
Samples
98
15
15
15
14
99
98
120
98
99
95
11
49
36
41
38
38
61
64
89
63
63
59
36
Mountaintop Mining Valley Fill in Appalachia EIS
C-38
-------
Appendix C
Tennessee Groundwater
Groundwater Occurrence and Quantity
Within the northern Tennessee coal basin, well yields in the Pennsylvanian aquifers range from <5
to>300gpm, with 62 percent of 376 wells having yields ranging from 10to25 gpm(Gaydos, 1982).
As in other areas of the Plateau, groundwater occurs primarily within fractures and joints of
sandstone units of Pennsylvanian-aged rocks. Variation in yields and transmissivities is due to the
difference in the size and the irregular nature of the fracture system in Pennsylvanian units. Most
of all wells are less than 400 feet in depth and most of all domestic wells are less than 200 feet in
depth (Gaydos, 1982). Transmissivities of wells range from 5 - 13,000 ft2/day, with 68 percent of
all wells ranging from 11 - 240 ft2/day (Gaydos, 1982).
Within the central portion of the Eastern Tennessee Coal Basin, well yields for wells completed in
Pennsylvanian aquifers range from 5-150 gpm. Transmissivities estimated from specific capacity
data for 16 wells and range from 20-2,000 ft2/day, 68 percent of which range from 30-500 ft2/day
(Gaydos, 1982). This wide range is primarily due to variation in size and extent of the fracturing
in the sandstones of the Pennsylvanian rock units (Gaydos, 1982).
In the southern section of the coal basin, groundwater flow, as for other areas in the Appalachian
Plateau's coal basins, is primarily through fractured/jointed sandstone bodies which have
intergranular permeability (Hollyday, 1983). Most water zones are within 100 feet of ground
surface (Hollyday, 1983). For more than 400 wells, measured yields ranged from <5 gpm to about
300 gpm, with 68 percent of the wells being less than 20 gpm (Hollyday, 1983). Estimated
transmissivities for 6 wells range from 20-75 ft2/day, with 68 percent of the wells ranging from 30-
700 ft2/day (Hollyday, 1983).
Groundwater Quality
Within the northern areas of the coal basin, iron and chloride levels are relatively high in
groundwaters, with chlorine being more common at depth due to brine water contaminating
overlying fresh groundwater (Gaydos, 1982). Pennsylvanian aquifers within this area generally need
minimal treatment for use and are moderately mineralized, slightly acidic, and soft to moderately
hard (Gaydos, 1982). Table C-15 below provides some general water quality data for
undifferentiated Pennsylvanian rocks in the northern section of the coal basin (Gaydos, 1982).
Within the central portion of Tennessee's Eastern Coal Field, groundwater is of suitable quality,
generally soft to moderately hard, and is of a calcium bicarbonate, sodium bicarbonate, or calcium
sulfate type (Gaydos, 1982). Dissolved solids are relatively low, with some sandstone aquifers
reporting low pH and high manganese concentrations (Gaydos, 1982). Excessive iron levels are a
major problem in Cumberland County.
Within the southern portion of the coalfields, groundwater is again considered to be of generally
good quality, ranging from soft to moderately hard (Hollyday, 1983). Groundwater, as in other areas
of the coal basin, is either a calcium bicarbonate, sodium bicarbonate, or calcium sulfate type with
dissolved solids concentrations low, and locally high concentrations of iron and manganese. Table
C-16 below, obtained from Hollyday (1983), provides some water quality data for wells completed
Mountaintop Mining Valley Fill in Appalachia EIS C - J "
-------
Appendix C
with the Pennsylvanian-aged aquifers. Data collected from wells at sites 7, 14, 15, 17, 23-25, 28,
31-33, and 35 are for Plateau aquifer units.
Table C-15
General Groundwater Composition for Northern Tennessee Coalbasin
AQUIFER
Pennsylvanian
rocks
(undifferentiated)
Mississippian
rocks
(undifferentiated)
Ordovician
rocks
(undifferentiated)
Aquifer
Type
Fractured
sandstone and
conglomerate
Carbonate
rocks
Limestone
Hardness
(milligrams
per liter)
40-120
100-300
200-400
Iron
(micrograms
per liter)
400-6,000
100-1,000
100-2,000
Sulfate
(milligrams
per liter)
5-60
1-100
5-50
Chloride
(milligrams
per liter)
5-50
1-20
2-50
Dissolved
Solids
(milligrams
per liter)
250-400
150-400
250-500
pH
(Units)
6.4-7.2
6.8-7.8
6.8-8.0
(Numerical ranges represent typical values and do not include unusually high or low values)
Mountaintop Mining Valley Fill in Appalachia EIS
C-40
-------
Appendix C
Table C-16
General Groundwater Composition for Northern Tennessee Coalbasin (Hollyday, 1983)
Site
Number
1
2
3
4
5
6
7
8
9
10
11
12
14
15
16
17
18
19
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
Year
Sampled
1960
1960
1965
1963
1970
1960
1958
1958
1963
1958
1946
1946
1976
1976
1958
1958
1977
1975
1974
1974
1954
1954
1954
1977
1977
1977
1954
1977
1977
1954
1977
1977
1977
Specific
Conductance
(fimho/cm)
128
668
262
41
227
166
55
275
300
365
-
-
30
138
289
78
200
205
140
189
135
201
180
290
180
180
-
580
250
202
225
250
280
Dissolved
solids,
residue
at 180°C
(mg/L)
106
517
-
40
156
117
39
160
212
213
124
7,280
43
128
163
60
126
.
-
-
77
110
102
144
118
97
62
-
144
124
115
-
160
pH
(units)
6.7
7.4
7.9
6.5
7.6
7.2
6.0
7.4
7.6
7.6
-
-
5.2
6.4
7.7
6.7
7.4
7.2
7.4
7.4
6.8
7.2
6.9
7.5
7.9
7.1
6.6
7.5
7.5
6.8
7.4
7.6
7.8
Dissolved
Iron
(Mg/L)
-
30
-
-
-
10
1,300
490
-
20
-
-
2.400
960
120
11,000
10
.
-
-
-
-
-
10
40
290
-
50
30
-
0
10
0
Dissolved
Manganese
(Mg/L)
-
-
-
-
10
-
-
-
-
_
-
-
270
1.200
-
1,000
0
.
-
-
-
-
-
10
0
90
0
10
310
-
0
10
10
Dissolved
sulfate
(mg/L)
4.0
215.
.4
.0
.0
.4
3.4
18
4.4
6.2
5.8
206
1.5
.8
4.8
1.7
10
1.5
-
1.9
14
10
3.0
2.3
3.0
1.7
3.0
22
5.2
17
7.3
3.5
3.1
Hardness
as CaCO3
(mg/L)
-
370
140
8
-
84
16
140
150
190
-
-
6
75
150
12
91
100
68
-
54
98
90
130
97
61
34
250
84
68
100
120
120
Range 30-668 39-7,280 5.2-7.9 0-11,000 0-1,200 .0-215 6-370
Median 202 124 7.4 35 10 3.5 98
No. of Samples 30 27 31 18 14 32 28
Mountaintop Mining Valley Fill in Appalachia EIS
C-41
-------
Appendix C
Virginia Groundwater
Groundwater Occurrence and Quantity
Figure C-3 General Ground-Water Composition of Virginia Coal Fields.
GROUND-WATER COMPOSITION
EXPLANATION (°°
Ca
CATIONS ANIGNS
PERCENT OF TOTAL MILLIEQUIVALCMTS PER LITER
Within the Appalachian Plateau coalfields of Virginia, groundwater occurs primarily within and is
obtained from fractured sandstone bedrock. Groundwater moves and is stored primarily along
bedding planes and within jointing and fracture systems within the rocks and is the major source of
water for many domestic, commercial, and public supplies (Hufschmidt, 1981). Per Hufschmidt
(1981), well yields range from 5 to 200 gallons per minute, with most less than 30 gallons per
minute, and vary depending upon the type of rock and the number and size of openings penetrated
by the well within the rock unit.
Groundwater Quality
Per Hufschmidt (1981), groundwater quality is highly variable but generally suitable for most uses
within the coalfield province of Virginia. Groundwater from Pennsylvanian-aged sandstone is
characteristically of the calcium magnesium sulfate type with hardness varying considerably
(Hufschmidt, 1981). As for other areas within the Allegheny Plateau coalfields, water quality within
the Virginia coalfields can be impacted by many factors including rock type, duration of water
contact with bedrock, and external sources of contamination. Within the Virginia coalfields,
dissolved solids concentrations are generally low, but locally high concentrations of iron, sulfate,
and hardness can occur and, in some areas, high levels of chloride and nitrate suggest contamination
by septic systems (Hufschmidt, 1981). Per Hufschmidt (1981) wells constructed deeper than 200 to
300 feet below land surface and located near major rivers may encounter slightly to moderately
saline water. Figure C-3 depicts general groundwater composition of Virginia coal fields.
Mountaintop Mining Valley Fill in Appalachia EIS
C-42
-------
Appendix C
(Source: USGS 1981)
Mountaintop Mining Valley Fill in Appalachia EIS
-------
Appendix C
West Virginia Groundwater
Groundwater Occurrence and Quantity
As for other regions of the plateau, sandstone units within West Virginia coal basin geologic
formations and groups are the most productive aquifers within the coal basins of the Appalachian
Plateau (see Table C-l 1). Yields from sandstones for these units throughout the Plateau region of
West Virginia range from 5 to 400 gpm ( USGS HA 730-L). Groundwater movement is largely by
secondary permeability via bedrock fractures, joint systems, and bedding planes, and groundwater
yields can be highly variable depending whether or not these features are encountered (Ehlke, 1982).
Within the majority of the West Virginia's Plateau coalfields, i.e., mostly central/ south-central West
Virginia, alluvial deposits along the larger rivers serve as productive sources of groundwater due
in part to their adequate thicknesses (Ehlke, 1982).
Table V.C. 1 .-7 (Ehlke, 1982, 5.0.1) provides specific data for 53 wells in the central/south-central
region of West Virginia, i.e. the Plateau region. These data show groundwater well yields,
expressed in terms of specific capacity range, from <0.1 to 100 gal/min per foot of water-level
drawdown within the well (Ehlke, 1982). Wells that encountered very few fractures, joints, or
bedding plane partings usually have a specific capacity of equal or less than 1.0 gal/min per foot
of well drawdown.
Within the southwestern portion of the Plateau fractured sandstone also provides the most significant
source of groundwater, while alluvium is less productive compared to the central/south-central areas
of the Plateau's coal basins due to its thinner nature (Ehlke, 1982). In the southwestern Plateau
region of West Virginia, average yields from wells in valleys is reported to be 27 gal/min., and 9
gal./min. for wells within upland areas (Ehlke, 1982). Overall yields for all wells within the
Plateau's Pennsylvanian sandstone and Quaternary alluvial aquifers ranges from 0.5 to 340 gal./min.
(Ehlke, 1982). As discussed in the groundwater introductory section above, some groundwater
occurring within the alluvium is flow-through contributed by discharges into the alluvium from the
underlying fractured bedrock.
Groundwater Quality
Table C-l8 (Ehlke, 1982) below provides comparative water quality data for southwestern West
Virginia wells placed in alluvium and Upper and Lower Pennsylvanian aquifer units, in addition to
summary water quality data for Upper and Lower Pennsylvanian aquifers unaffected by saltwater
intrusion and mining, and for wells affected by these two activities. Also included are some typical
chemical analyses for three wells not affected by mining or saltwater intrusion and located within
Upper and Lower Pennsylvanian and alluvial aquifers (Ehlke, 1982). Wells 1401 and 5401 are
located in Cabell County, and well 2701 is located in northern Logan County (Ehlke, 1982).
These data reveal that groundwater quality appears to be best in alluvial aquifers, at least in
southwestern West Virginia. These aquifers have the lowest specific conductivity, pH, alkalinity,
hardness, and chloride, iron, and manganese concentrations (Ehlke, 1982). Well sample data from
Upper Pennsylvania aquifers have the highest values. Upper Pennsylvanian rock units are more
soluble versus the other units and also contain more limestone than either, resulting in higher values
for specific conductance, alkalinity, calcium, carbonate hardness, and dissolved solids (Ehlke, 1982).
A concern in areas of deep mines, such as southwestern West Virginia, is that groundwater leaking
from deep mines can impact other groundwater zones, increasing sulfate and noncarbonate hardness
and also increasing dissolved solids in streams following discharge from the mines (Ehlke, 1982).
Mountaintop Mining Valley Fill in Appalachia EIS (^,-44
-------
Appendix C
Table C-17
General Groundwater Composition of Virginia Coalfields
(Hufschmidt, 1981)
Well
Number
1
2
o
J
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
Latitude
383449
383656
38 40 25
38 40 43
3841 33
38 20 46
382739
38 27 47
383050
3831 01
3821 01
3821 01
3821 43
3822 11
3826 19
3751 00
3751 02
3752 19
37 52 56
375321
380832
3809 15
38 1244
38 1343
38 1423
38 1529
38 1844
38 1201
38 1337
38 1733
38 1858
3821 01
3824 10
37 48 06
37 53 40
37 55 25
37 57 20
37 59 24
38 04 28
Longitude
80 42 34
80 54 41
80 48 22
80 35 27
80 48 55
81 0947
8051 51
8051 41
8046 17
80 46 59
81 3856
81 3805
81 3856
81 3428
81 33 14
81 4827
81 4828
81 50 18
81 4804
81 4923
81 5651
81 5652
81 53 56
81 5330
81 52 10
81 4841
81 5231
81 4429
81 45 50
81 46 49
81 52 29
81 53 13
81 52 14
81 35 38
81 40 20
81 40 51
81 52 55
81 44 17
81 36 29
County
Braxton
Braxton
Braxton
Braxton
Braxton
Clay
Clay
Clay
Nicholas
Nicholas
Kanawha
Kanawha
Kanawha
Kanawha
Kanawha
Logan
Logan
Logan
Logan
Logan
Lincoln
Lincoln
Lincoln
Lincoln
Lincoln
Lincoln
Lincoln
Kanawha
Kanawha
Kanawha
Kanawha
Kanawha
Kanawha
Boone
Boone
Boone
Boone
Boone
Boone
Specific Capacity
(gal/min)
10.0
.83
8.0
3.0
2.0
2.5
25.
100.
.33
2.33
1.71
2.0
52.
25.
.07
.14
.20
.006
4.8
11.2
.012
.06
.18
.10
.04
.14
.04
.36
.04
.24
.82
.12
.12
2.0
.20
.04
.12
.24
.28
Mountaintop Mining Valley Fill in Appalachia EIS
C-45
-------
Appendix C
Table C-17
(Continued)
40
41
42
43
44
45
46
47
48
49
50
51
52
53
38 06 04
380736
380830
38 07 57
37 43 43
3746 14
3749 15
3751 34
37 52 30
375621
3757 10
37 54 57
375905
375239
81 34 12
81 35 14
81 51 22
81 48 54
81 16 52
81 1830
81 28 27
81 25 02
81 30 48
81 21 13
8031 15
80 40 53
80 42 59
80 47 58
Boone
Boone
Boone
Boone
Raleigh
Raleigh
Raleigh
Raleigh
Raleigh
Raleigh
Raleigh
Greenbrier
Greenbrier
Favette
.32
.26
.40
.04
8.4
.62
4.8
5.0
1.0
.12
2.2
2.0
1.0
5.4
Mountaintop Mining Valley Fill in Appalachia EIS
C-46
-------
Appendix C
Table C-18
Specific Capacity Data for Selected Wells in Central/Southcentral West Virginia
(Source: Ehlke 1982)
Alluvium
Upper
Pennsylvania
Lower
Pennsylvania
Max
Min
Mean
Max
Min
Mean
Max
Min
Mean
Comparison of Water Analyses from Wells Unaffected by Mining or Salt Water.
Specific
Conductance
(u,mhos/cm)
710
100
224
1,000
100
499
930
45
269
pH
(units)
7.3
5.5 *
6.6
8.9
6.2 *
7.2
8.3
4.5 *
7.0
Alkalinity
(mg/L)
246
12
57
435
0
229
435
9
94
Chloride
(mg/L)
29
0
8.7
120
1.0
19
180
0.8
14
Sulfate
(mg/L)
110
11
38
100
0.1
21
88
0
34
Hardness
as CaCO3
(mg/L)
200
26
77
300
3
109
230
3
68
Hardness
non-
Carbonate
(mg/L)
110
0
23
53
0
3.7
75
0
6.5
Dissolved
Solids
(sum)
(mg/L)
433
55
136
646
119
318
588
21
152
Dissolved
Iron
(Hg/L)
170
0
100
32,000
0
1,686
16,000
10
3,266
Dissolved
Manganese
(Hg/L)
60
0
19
3,900
0
274
8,900
0
232
No.
of
Wells
14
94
191
*Median Value
Mountaintop Mining / Valley Fill EIS
C-47
-------
Appendix C
Table C-18
Specific Capacity Data for Selected Wells in Central/Southcentral West Virginia
(Source: Ehlke 1982)
Alluvium
Upper
Pennsylvania
Lower
Pennsylvania
Max
Min
Mean
Max
Min
Mean
Max
Min
Mean
Comparison of Water Analyses from Wells Unaffected by Mining or Salt Water.
Specific
Conductance
(u,mhos/cm)
710
100
224
1,000
100
499
930
45
269
pH
(units)
7.3
5.5 *
6.6
8.9
6.2 *
7.2
8.3
4.5 *
7.0
Alkalinity
(mg/L)
246
12
57
435
0
229
435
9
94
Chloride
(mg/L)
29
0
8.7
120
1.0
19
180
0.8
14
Sulfate
(mg/L)
110
11
38
100
0.1
21
88
0
34
Hardness
as CaCO3
(mg/L)
200
26
77
300
3
109
230
3
68
Hardness
non-
Carbonate
(mg/L)
110
0
23
53
0
3.7
75
0
6.5
Dissolved
Solids
(sum)
(mg/L)
433
55
136
646
119
318
588
21
152
Dissolved
Iron
(Hg/L)
170
0
100
32,000
0
1,686
16,000
10
3,266
Dissolved
Manganese
(Hg/L)
60
0
19
3,900
0
274
8,900
0
232
No.
of
Wells
14
94
191
*Median Value
Mountaintop Mining / Valley Fill EIS
C-47
-------
Appendix C
Table C-18
Specific Capacity Data for Selected Wells in Central/Southcentral West Virginia
(Source: Ehlke 1982)
Alluvium
Upper
Pennsylvania
Lower
Pennsylvania
Max
Min
Mean
Max
Min
Mean
Max
Min
Mean
Comparison of Water Analyses from Wells Unaffected by Mining or Salt Water.
Specific
Conductance
(u,mhos/cm)
710
100
224
1,000
100
499
930
45
269
pH
(units)
7.3
5.5 *
6.6
8.9
6.2 *
7.2
8.3
4.5 *
7.0
Alkalinity
(mg/L)
246
12
57
435
0
229
435
9
94
Chloride
(mg/L)
29
0
8.7
120
1.0
19
180
0.8
14
Sulfate
(mg/L)
110
11
38
100
0.1
21
88
0
34
Hardness
as CaCO3
(mg/L)
200
26
77
300
3
109
230
3
68
Hardness
non-
Carbonate
(mg/L)
110
0
23
53
0
3.7
75
0
6.5
Dissolved
Solids
(sum)
(mg/L)
433
55
136
646
119
318
588
21
152
Dissolved
Iron
(Hg/L)
170
0
100
32,000
0
1,686
16,000
10
3,266
Dissolved
Manganese
(Hg/L)
60
0
19
3,900
0
274
8,900
0
232
No.
of
Wells
14
94
191
*Median Value
Mountaintop Mining / Valley Fill EIS
C-47
-------
Appendix C
Table C-18
Specific Capacity Data for Selected Wells in Central/Southcentral West Virginia
(Source: Ehlke 1982)
Alluvium
Upper
Pennsylvania
Lower
Pennsylvania
Max
Min
Mean
Max
Min
Mean
Max
Min
Mean
Comparison of Water Analyses from Wells Unaffected by Mining or Salt Water.
Specific
Conductance
(u,mhos/cm)
710
100
224
1,000
100
499
930
45
269
pH
(units)
7.3
5.5 *
6.6
8.9
6.2 *
7.2
8.3
4.5 *
7.0
Alkalinity
(mg/L)
246
12
57
435
0
229
435
9
94
Chloride
(mg/L)
29
0
8.7
120
1.0
19
180
0.8
14
Sulfate
(mg/L)
110
11
38
100
0.1
21
88
0
34
Hardness
as CaCO3
(mg/L)
200
26
77
300
3
109
230
3
68
Hardness
non-
Carbonate
(mg/L)
110
0
23
53
0
3.7
75
0
6.5
Dissolved
Solids
(sum)
(mg/L)
433
55
136
646
119
318
588
21
152
Dissolved
Iron
(Hg/L)
170
0
100
32,000
0
1,686
16,000
10
3,266
Dissolved
Manganese
(Hg/L)
60
0
19
3,900
0
274
8,900
0
232
No.
of
Wells
14
94
191
*Median Value
Mountaintop Mining / Valley Fill EIS
C-47
-------
Appendix C
Table C-18
Specific Capacity Data for Selected Wells in Central/Southcentral West Virginia
(Source: Ehlke 1982)
Alluvium
Upper
Pennsylvania
Lower
Pennsylvania
Max
Min
Mean
Max
Min
Mean
Max
Min
Mean
Comparison of Water Analyses from Wells Unaffected by Mining or Salt Water.
Specific
Conductance
(u,mhos/cm)
710
100
224
1,000
100
499
930
45
269
pH
(units)
7.3
5.5 *
6.6
8.9
6.2 *
7.2
8.3
4.5 *
7.0
Alkalinity
(mg/L)
246
12
57
435
0
229
435
9
94
Chloride
(mg/L)
29
0
8.7
120
1.0
19
180
0.8
14
Sulfate
(mg/L)
110
11
38
100
0.1
21
88
0
34
Hardness
as CaCO3
(mg/L)
200
26
77
300
3
109
230
3
68
Hardness
non-
Carbonate
(mg/L)
110
0
23
53
0
3.7
75
0
6.5
Dissolved
Solids
(sum)
(mg/L)
433
55
136
646
119
318
588
21
152
Dissolved
Iron
(Hg/L)
170
0
100
32,000
0
1,686
16,000
10
3,266
Dissolved
Manganese
(Hg/L)
60
0
19
3,900
0
274
8,900
0
232
No.
of
Wells
14
94
191
*Median Value
Mountaintop Mining / Valley Fill EIS
C-47
-------
Appendix C
Table C-18
Specific Capacity Data for Selected Wells in Central/Southcentral West Virginia
(Source: Ehlke 1982)
Alluvium
Upper
Pennsylvania
Lower
Pennsylvania
Max
Min
Mean
Max
Min
Mean
Max
Min
Mean
Comparison of Water Analyses from Wells Unaffected by Mining or Salt Water.
Specific
Conductance
(u,mhos/cm)
710
100
224
1,000
100
499
930
45
269
pH
(units)
7.3
5.5 *
6.6
8.9
6.2 *
7.2
8.3
4.5 *
7.0
Alkalinity
(mg/L)
246
12
57
435
0
229
435
9
94
Chloride
(mg/L)
29
0
8.7
120
1.0
19
180
0.8
14
Sulfate
(mg/L)
110
11
38
100
0.1
21
88
0
34
Hardness
as CaCO3
(mg/L)
200
26
77
300
3
109
230
3
68
Hardness
non-
Carbonate
(mg/L)
110
0
23
53
0
3.7
75
0
6.5
Dissolved
Solids
(sum)
(mg/L)
433
55
136
646
119
318
588
21
152
Dissolved
Iron
(Hg/L)
170
0
100
32,000
0
1,686
16,000
10
3,266
Dissolved
Manganese
(Hg/L)
60
0
19
3,900
0
274
8,900
0
232
No.
of
Wells
14
94
191
*Median Value
Mountaintop Mining / Valley Fill EIS
C-47
-------
Appendix C
Table C-18
Specific Capacity Data for Selected Wells in Central/Southcentral West Virginia
(Source: Ehlke 1982)
Alluvium
Upper
Pennsylvania
Lower
Pennsylvania
Max
Min
Mean
Max
Min
Mean
Max
Min
Mean
Comparison of Water Analyses from Wells Unaffected by Mining or Salt Water.
Specific
Conductance
(u,mhos/cm)
710
100
224
1,000
100
499
930
45
269
pH
(units)
7.3
5.5 *
6.6
8.9
6.2 *
7.2
8.3
4.5 *
7.0
Alkalinity
(mg/L)
246
12
57
435
0
229
435
9
94
Chloride
(mg/L)
29
0
8.7
120
1.0
19
180
0.8
14
Sulfate
(mg/L)
110
11
38
100
0.1
21
88
0
34
Hardness
as CaCO3
(mg/L)
200
26
77
300
3
109
230
3
68
Hardness
non-
Carbonate
(mg/L)
110
0
23
53
0
3.7
75
0
6.5
Dissolved
Solids
(sum)
(mg/L)
433
55
136
646
119
318
588
21
152
Dissolved
Iron
(Hg/L)
170
0
100
32,000
0
1,686
16,000
10
3,266
Dissolved
Manganese
(Hg/L)
60
0
19
3,900
0
274
8,900
0
232
No.
of
Wells
14
94
191
*Median Value
Mountaintop Mining / Valley Fill EIS
C-47
-------
Appendix C
Table C-18
(Continued)
Wells
unaffected by
mining or salt
water
*Median Value
Max
Min
Mean
Max
Min
Mean
Max
Min
Mean
Summary of Water Analyses from Wells in the Upper Pennsylvania System.
Specific
Conductance
(u,mhos/cm)
1,000
1,750
5,500
100
300
850
499
1,000
2.150
pH
(units)
8.9
7.4
8.4
6.2
6.1
7.2
7 2*
7.2*
7.9*
Alkalinity
(mg/L)
435
328
361
0
68
0
229
207
235
Chloride
(mg/L)
120
78
2,200
1.0
0.8
100
19.2
19
643
Sulfate
(mg/L)
100
870
28
0.1
60
0.4
20.9
353
11
Hardness
as CaCO3
(mg/L)
300
950
1,900
o
J
130
6
109
496
397
Hardness
non-
Carbonate
(mg/L)
53
670
1,900
0
57
0
3.7
290
313
Dissolved
Solids
(sum)
(mg/L)
646
1,520
3,420
119
200
529
318
746
1.300
Dissolved
Iron
(Hg/L)
32,000
7,100
77,000
0
20
30
1,690
1,400
13.360
Dissolved
Manganese
(Hg/L)
3,900
640
1,400
0
10
0
274
196
280
No.
of
Wells
94
7
7
94
7
7
94
7
7
Mountaintop Mining / Valley Fill EIS
C-48
-------
Appendix C
Table C-18
(Continued)
Wells
unaffected by
mining or salt
water
* Median
value
Max
Min
Mean
Max
Min
Mean
Max
Min
Mean
Summary of Water analyses from wells in the Lower Pennsylvania System (Pottsville).
Specific
Conductance
(u,mhos/cm)
930
2000
3500
45
70
650
269
482
1.250
PH
(units)
8.3
8.0
7.6
4.5
4.1
6.7
7.0*
6.6*
7.2*
Alkalinity
(mg/L)
435
130
254
9
0
123
94
32
174
Chloride
(mg/L)
180
250
1,000
0.8
1.0
140
14
19
304
Sulfate
(mg/L)
88
1,200
3.1
0
0.4
0
34
172
1.2
Hardness
as CaCO3
(mg/L)
230
1,300
210
3
24
32
68
183
100
Hardness
non-
Carbonate
(mg/L)
75
1,300
38
0
13
0
6.5
150
3.8
Dissolved
Solids
(sum)
mg/L)
588
1,790
1,930
21
42
385
152
324
696
Dissolved
Iron
(Hg/L)
16,000
180,000
9,800
10
0
60
3,270
16,500
2.587
Dissolved
Manganese
(Hg/L)
9,900
9,900
650
0
0
10
232
4,230
196
No. of
Wells
191
38
10
191
38
10
191
38
10
Mountaintop Mining / Valley Fill EIS
C-49
-------
Appendix C
Table C-18
(Continued)
"Typical" chemical analyses from wells not affected by mining or salt-water intrusion in the three major geologic units.
Geologic
Unit
Well
No.
Alluvium
382635082041401
UPPER
PENNSYLVANIAN
382310082135401
LOWER
PENNSYLVANIAN
380200081572701
Date
Sampled
03-24-76
04-21-76
05-04-77
Temp.
(0°)
14.0
16.0
16.0
Specific
Conductance
(umhos/cm)
235
500
230
PH
(units)
6.6
7.1
7.1
Alkalinity
(mg/L)
36
203
78
Ca
(mg/L)
25
49
25
Mg
(mg/L)
6.6
11
5.0
Na
(mg/L)
8.5
43
8.0
ci-
(mg/L)
12
6.8
2.3
S04
(mg/L)
29
53
15
Hard-
ness as
CaCO3
(mg/L)
90
170
83
Hard-
ness
non-
Carbonate
(mg/L)
54
0
5
Dis-
solved
solids
(mg/L)
115
307
122
Dis-
solved
Iron
(Hg/L)
30
2,500
2,600
Dis-
solved
Manga-
nese
(Hg/L)
10
520
220
Mountaintop Mining / Valley Fill EIS
C-50
-------
Appendix C
Table C-19
Comparative Groundwater Quality Data for
Southwestern West Virginia (Ehlke, 1982)
Geohydrologic
Unit
10
11
12
Hardness
88
148
80
Dissolved
Solids
204
424
141
Bicarbonate
107
288
72
Chloride
27
65
9
Sulfate
38
40
39
Notes:
Unit 10 = Allegheny and Pottsville Group Aquifers Combined
Unit 11= Monongahela Group and Conemaugh Formation Aquifers Combined
Unit 12 = Alluvial Aquifers
Average hardness and concentration of dissolved solids, bicarbonate, chloride, and sulfate in
mg/L of groundwater in the Guyandotte River basin.
Taken from Schwietering, J.F., "Brief Description of Ground-Water Conditions and Aquifers in West Virginia", Table 4, published by WV Dept.
of Natural Resources Open-File Report OF 8102, January, 1981.
Mountaintop Mining / Valley Fill EIS
C-51
------- |