Coal Diver Everything you wanted to know about coal, but were afraid to ask.

This is a text-only version of the document "OSM Leaked Proposed Stream Rule Changes - Ch 2 - 2011". To see the original version of the document click here.
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CHAPTER 2  TABLE OF CONTENTS 
CHAPTER 2  DESCRIPTION OF THE PROPOSED ACTION AND ALTERNATIVES .......................................................................................................... 2-1  2.1  INTRODUCTION ............................................................................................... 2-1  2.2  Sources for Development of the Alternatives ...................................................... 2-1  2.2.1Informal Information Sessions with Industry and Environmental Groups ...................................................................................................... 2-1  2.2.2Interagency Discussions............................................................................... 2-2  2.2.3Advance Notice of Proposed Rulemaking and Supplemental EIS .............. 2-2  2.2.4April 2010 Notice of Intent .......................................................................... 2-2  2.2.5June 2010 Notice of Intent ........................................................................... 2-2  2.2.6Internal Review ............................................................................................ 2-3  2.3  Methodology for Describing the Alternatives ..................................................... 2-3  2.3.1The Cafeteria Approach. .............................................................................. 2-3  2.3.2Expansion and Elimination of Elements ...................................................... 2-3  2.4  Discussion of Element Alternatives Considered.................................................. 2-5  2.4.1Stream Definition. ........................................................................................ 2-5  2.4.2Baseline Data Collection and Analysis. ....................................................... 2-5  2.4.3Definition of Material Damage to the Hydrologic Balance. ........................ 2-6  2.4.4Activities In or Near Streams. ...................................................................... 2-6  2.4.5Mining Through Streams. ............................................................................ 2-7  2.4.6Monitoring During Mining and Reclamation. ............................................. 2-7  2.4.7Corrective Action Thresholds. ..................................................................... 2-7  2.4.8Surface Configuration and Fills. .................................................................. 2-8  2.4.9AOC Exceptions. ......................................................................................... 2-8  2.4.10Revegetation and Topsoil Management..................................................... 2-9  2.4.11Fish and Wildlife Protection and Enhancement......................................... 2-9  2.5  Discussion of Full-Suite Alternatives Considered ............................................. 2-10  2.5.1Full-Suite Alternative #1 -- No Action Alternative ................................... 2-10  2.5.2Full-Suite Alternative 2.............................................................................. 2-13  2.5.3Full-Suite Alternative 3.............................................................................. 2-17  2.5.4Full-Suite Alternative 4.............................................................................. 2-21  2.5.5Full-Suite Alternative 5 – Proposed Action ............................................... 2-25  2.6  Principal Elements considered but not further analyzed.................................... 2-31  2.6.1Performance Bonds and Release. ............................................................... 2-31 

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2.6.2Financial Assurance for Long Term Discharges of Parameters of concern ................................................................................................... 2-32  2.6.3Permit Coordination ................................................................................... 2-33  Alternatives Considered But not further analyzed ............................................. 2-33  2.7  2.7.1Stream Definition ....................................................................................... 2-33  2.7.2Baseline Data Collection and Analysis ...................................................... 2-34  2.7.3Definition of Material Damage to the Hydrologic Balance. ...................... 2-34  2.7.4Activities In or Near Streams ..................................................................... 2-35  2.7.5Mining Through Streams ........................................................................... 2-35  2.7.6Monitoring During Mining and Reclamation ............................................ 2-35  2.7.7Corrective Action Thresholds .................................................................... 2-35  2.7.8Surface Configuration and Fills ................................................................. 2-36  2.7.9Approximate Original Contour (AOC) Exceptions ................................... 2-36  2.7.10Revegetation and Topsoil Management................................................... 2-36  2.7.11Permit Coordination ................................................................................. 2-36  2.7.12Financial Assurance for Long Term Discharges of Pollutants ................ 2-36  2.7.13Performance Bonds and Bond Release .................................................... 2-36  2.7.14Fish and Wildlife Protection and Enhancement....................................... 2-36  APPENDIX A ACRONYMS ........................................................................................................1 

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Chapter 2 Description of the Proposed Action and Alternatives
2.1 INTRODUCTION

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This Chapter describes the alternatives considered and the alternatives selection criteria used for this EIS. As noted in Chapter 1, OSM identified several provisions of its SMCRA regulations for review and possible revision. These provisions do not necessarily depend on or relate to each other directly. As such, the approach taken in this EIS to identify and array the alternatives for analysis is a hybrid that looks at the alternatives within each Principal Element and then across all Principal Elements. This “cafeteria” approach allows OSM an opportunity to consider alternatives within each Element without necessarily linking it to any other alternative within another Element. Once the alternatives within each Element are arrayed from most to least protective (or most to least inclusive), OSM combined the Elements to describe a comprehensive Full-Suite Alternative to take forward for analysis in subsequent chapters of this EIS. This Chapter describes this process more fully. The No Action Alternative, as required by NEPA (40 CFR 1508.25(b)), is also described. This Chapter also describes those alternatives within the various Principal Elements that OSM considered but decided not to include for further analysis because the alternative was not feasible or reasonable or did not meet the Need and Purpose of OSM’s action, as described in Chapter 1 of this EIS.

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2.2

SOURCES FOR DEVELOPMENT OF THE ALTERNATIVES

OSM is considering a wide range of alternatives for this EIS based on input from several sources. Shortly after publication of the 2008 Stream Buffer Zone rule in December 2008, OSM undertook a review of its regulations under SMCRA to determine if those regulations provided a sufficient level of protection for streams that might be adversely affected by surface coal mining activities. Initially, OSM limited the scope of its review to those regulations affecting coal mining operations in the Appalachian region.

2.2.1

Informal Information Sessions with Industry and Environmental Groups

OSM met with industry and environmental groups in informal information sessions, soliciting input on ways to improve its regulatory processes and implementation of its statutory and regulatory responsibilities.

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2.2.2

Interagency Discussions

OSM engaged other federal agencies in an effort to better coordinate their separate and overlapping programs and authorities under the SMCRA and the Clean Water Act. This dialogue resulted in the signing of the June 2009 Memorandum of Understanding by the Department of the Interior, U.S. Army (on behalf of the U.S. Army Corps of Engineers), and the U.S. Environmental Protection Agency. The MOU announced the implementation of an Interagency Action Plan that includes short term actions and longer term efforts to gather public input, assess the effectiveness of current policies, and develop regulatory actions. This interagency dialogue has provided OSM with an opportunity discuss various approaches with the other federal agencies with interest in potential changes to the SMCRA regulations and to incorporate them into the alternatives under consideration.

2.2.3

Advance Notice of Proposed Rulemaking and Supplemental EIS

In November 2009, OSM provided notice of its intention to revise the 2008 Stream Buffer Zone rules to reduce the adverse impacts of Appalachian surface coal mining operations on streams. OSM also indicated it would prepare a supplemental impact statement regarding those changes. This advance notice of proposed rulemaking (ANPR) described various options for revising the Stream Buffer Zone rule and invited the public to comment on those options, to suggest other options, and to identify other provisions of the SMCRA regulations that should be revised to protect the environment and the public from the impacts of Appalachian surface coal mining. OSM received over 32,750 comments, many of which identified other options and approaches, urged wider application of the rule changes beyond the Appalachian region, and expanded the regulatory provisions that should be addressed beyond just the Stream Buffer Zone rule. OSM has incorporated a number of these comments into the alternatives now under consideration.

2.2.4

April 2010 Notice of Intent

Although OSM initially limited its review to the Stream Buffer Zone rule, it has subsequently decided to expand the scope of this rulemaking to encompass other regulations affection streams and to apply these new provisions nationwide, rather than only in the Appalachian region. To that end, in April 2010, OSM published a notice of intent (NOI) to publish a Stream Protection Rule and to prepare a new EIS. The NOI identified 11 principal elements comprising its proposed action and requested public comment. OSM received comments from 25 organizations and individuals, and it has incorporated several of these comments into the current array of alternatives.

2.2.5

June 2010 Notice of Intent

In order to ensure the widest dissemination and input from as many people, organizations, and governmental entities as possible, in June 2010, OSM decided to reopen the scoping process. It announced that it would hold nine public scoping open houses in cities located near 95% of the coal producing regions of the U.S. and would accept comments for an additional 45 days. Almost 400 people attended the nine open houses, and OSM received over 20,500 comments at the open houses, via email and surface mail, and through the www.regulations.gov website. OSM has incorporated concepts from this round of comments into the Alternatives as well.
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2.2.6

Internal Review

Finally, OSM continues its own internal review and has developed and refined alternatives for consideration. These discussions among agency experts from all regions continue to take into account the input received from the previously outlined engagements with other agencies and the public. The Alternatives described in this Chapter, therefore, are those that OSM believes best represent a reasonable range of feasible alternatives that meet the need and purpose of OSM’s proposed action. The public is invited, in commenting on this Draft EIS, to identify any other alternatives that it feels OSM should consider in its analysis.

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2.3

METHODOLOGY FOR DESCRIBING THE ALTERNATIVES
The Cafeteria Approach.

2.3.1

OSM has described, solicited and received comments on, and further refined and expanded on the eleven Principal Elements that make up the Proposed Action and Alternatives outlined in the April and June NOIs. Most of the Elements, while related to stream protection, do not depend on each other for implementation. For example, a regulatory change requiring collection of a suite of baseline data monthly for 24 months has no bearing on whether the regulations also require reforestation or revegetation with native species. Thus, because the Elements comprising the Proposed Action are essentially disjunctive, OSM has first described the various alternatives under consideration by Principal Element. Once described, OSM then selected an alternative from each Element to comprise a Full-Suite Alternative for analysis. This is similar to the selections available at a cafeteria buffet – entrées, vegetables, starches, salads. In each case, alternatives are available – as an entrée, one might select a beef, poultry, or fish; for a vegetable, one might select broccoli, peas, corn, or green beans. None of the selections necessarily demands another. At the end of the buffet, each “plate” has a different array of selections. We have explained in a subsequent section in this Chapter those alternatives that were considered, but not taken forward for further analysis.

2.3.2

Expansion and Elimination of Elements

As a result of interagency discussions, internal review, and consideration of the comments received during the EIS scoping process, OSM has revised the principal elements under consideration in this EIS. In some cases, the original Principal Element has been further refined to clarify options or renamed to be more descriptive. While this expands the areas on which comments are being sought, we believe it will make the choices clearer and the analysis easier to follow and understand. At the same time, OSM has reconsidered the propriety and necessity of including certain elements within the scope of this EIS analysis. Some of the elements included in the Stream Protection Rule are administrative in nature or are risk-reducing activities that are intended to
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guarantee that the financial responsibility for environmental liabilities is attached to the mine operator rather than to the regulatory authority or the public at large. For example, the Permit Coordination element is an example of an administrative activity, and the Performance Bonds and Financial Assurance elements are examples of the risk-reducing activities. These elements, while part of the overall regulatory program, do not have an identifiable impact on the environment, and there are no discernable differences in how these Elements are included as part of the Proposed Action or any Alternative. OSM may still address these elements in its proposed rulemaking, but detailed analysis within this EIS is not required. Therefore they will not be included as specific elements within full-suite alternatives. Nonetheless, the intent of these Elements is further described in Section 2.6. 2.3.2.1 Organization within Each Element.

This cafeteria approach allows analysis within each discrete element without the distraction or confusion of the other elements, which do not bear on a particular resolution under that element. OSM has identified a range of alternatives that represents feasible and reasonable options within that element. OSM then arrayed the alternatives from most to least environmentally protective (or most inclusive to least inclusive), selecting the most protective, least protective, and two other alternatives that fell in between to take forward for analysis. Along with the No Action Alternative, these five alternatives represent the range of alternatives being analyzed as part of the full-suite alternatives discussed below. OSM’s proposed action is identified as one of the five alternatives for that element. Although we might include other alternatives within each element, OSM is obligated under NEPA to analyze only a reasonable range of those that are feasible, reasonable, and consistent with the need and purpose of OSM’s proposed action. OSM invites the public to comment on whether the alternatives identified under each elements should be modified. 2.3.2.2 Organization of Elements into Full-Suite Alternatives.

After describing the alternatives within each element, OSM has grouped them into suites of alternatives for purposes of collective analysis. Thus, Alternative 1, the Full-Suite No Action Alternative, includes the n action alternative Element 1, Element 2, Element 3, etc. Alternative 2 includes the most protective alternative from each element; Alternative 3 includes the next most protective alternative from each element and so on. The analysis of impacts in subsequent chapters of this EIS will then focus on the collection of alternative contained in Alternative 1, Alternative 2, etc. Using our cafeteria analogy, the Alternative 1 dinner might include roast beef, green beans, mashed potatoes, and a garden salad, while the Alternative 2 dinner might include broiled chicken, peas, baked potato, and cole slaw. The subsequent “analysis” would consider the entire dinner, as opposed to the individual components. We acknowledge and recognize that opinions may differ as to the composition of each full-suite Alternative. We invite the public to comment on whether a different compilation of element selections within or among the full-suite Alternatives would make more sense or significantly affect the subsequent analysis of environmental impacts.

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2.4

DISCUSSION OF ELEMENT ALTERNATIVES CONSIDERED

OSM described 11 Principal Elements to consider as components of the Proposed Action, the Stream Protection Rule. These Elements were initially published in the April 30, 2010 Notice of Intent to prepare an EIS regarding the rulemaking effort. The Principal Elements and possible alternatives were again presented to the public in the June 18, 2010 publication in the Federal Register of a Notice of Intent. The NOI also reopened the EIS scoping period and announced the availability of various open houses within the coal producing regions of the U.S. Based on comments received during the scoping comment periods and the open houses, the list of Principal Elements was revised to include the following Principal Elements to be considered for the proposed Stream Protection Rule. The alternatives under each Element are summarized here and arrayed in the following order:      Full-Suite Alternative #1 (No Action Alternative) Alternative #2 Alternative #3 Alternative #4 Alternative #5 (Proposed Action

A more detailed description appears in the Full-Suite Alternatives discussion in Section 2.5.

2.4.1

Stream Definition.

This Element of the Proposed Action involves updating the current definitions of perennial, intermittent, and ephemeral streams. The definitions under consideration range from alternatives based on:      The current hydrologic-centric approach; Fluvial geomorphic characteristics; A tiered approach based on hydrologic and biologic considerations; The CWA definition, “waters of the U.S.,” favored by the EPA and USACE; or An approach based on hydrologic, biologic, and physical characteristics of streams.

2.4.2

Baseline Data Collection and Analysis.

This Element proposes adding more extensive and specific permit application requirements concerning baseline data on hydrology, geology, and aquatic biology. The approaches under consideration include:   The current collection of data on a limited suite of chemical and geologic data related to groundwater and surface water sources; Sampling over a 24 month period for a full suite of chemicals; continuous flow measurements; and documentation of sediment, meteorology, stream form and function, and aquatic organisms from all streams;
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Sampling over a 12 month period for a similar suite of chemicals with comparison to a reference stream; Collection of data consistent with CWA protocols, the Stream Protection Rule, and current regulations, as set by the various regulatory authorities; Sampling over a 12 month period for a full suite of chemicals; continuous flow measurements; and documentation of sediment, meteorology, stream form and function, and aquatic organisms from intermittent and perennial streams.

2.4.3

Definition of Material Damage to the Hydrologic Balance.

This Element proposes possible definitions to the term “material damage to the hydrologic balance outside the permit area.” Under SMCRA, the regulatory authority may not approve a permit unless the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area, however, this term is not defined in OSM regulations. Other alternatives under consideration include:      Current regulations do not define material damage. Rather, each regulatory authority is to develop criteria for material damage. OSM considers compliance with water quality standards and effluent limitations as the only fixed criterion. Defining “material damage” as any impairment of a physical, chemical, or biological function of any stream (including ephemeral streams); Defining “material damage” as an unabatable impairment of a stream; Defining “material damage” as a rebuttable presumption based on a percentage of stream miles that are or may be adversely affected; Defining “material damage” as a measurable adverse impact on water quality or quantity in an intermittent or perennial stream.

2.4.4

Activities In or Near Streams.

This Element addresses the circumstances under which an Applicant could engage in mining or mining-related activities in or near a stream. Alternatives include:      A prohibition on mining activities within 100 feet of streams, unless a disturbance is unavoidable or involves placement of a fill in the stream; An absolute prohibition of activities within 100 feet of all streams, including ephemeral streams; Sampling over a 24 month period for a full suite of chemicals; continuous flow measurements; and documentation of sediment, meteorology, stream form and function, and aquatic organisms; Reinstatement of the 1983 SBZ’s prohibition on activities in or within 100 feet of streams, unless the regulatory determines that such an incursion will not violate water quality regulations; A prohibition on mining activities within 100 feet of intermittent and perennial stream, with an allowance for fills under certain circumstances.

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2.4.5

Mining Through Streams.

This Element addresses conditions under which mining through a stream would be allowed. Alternatives under consideration include:      A requirement that all stream diversions and restored stream channels must use natural channel design techniques to restore or approximate pre-mining stream channel characteristics; A prohibition on all fill in or within 100 feet of all streams; Allowance of mining activities near or through streams if CWA standards can be met; Allowance of mining if the stream was impaired or impacted prior to mining activities; Allowance of mining through intermittent or perennial streams if stream form and function can be restored.

2.4.6

Monitoring During Mining and Reclamation.

Under this Element, OSM would address on-going monitoring requirements to identify conditions that could lead to material damage to the hydrologic balance. The sampling protocols build on the Baseline Data Collection and Analysis Element. Alternatives under consideration include:   Monitoring of surface and ground waters for a limited suite of parameters that does not include a biological component; quarterly basis, but can be waived by the regulatory authority; Monitoring of surface and ground waters for a full suite of parameters, consistent with that collected during baseline sampling; quarterly basis until restoration of the stream community is demonstrated, with review midway through permit period and during renewal; no waiver allowed prior to bond release; biological monitoring would comply with CWA protocols, assessed annually and continued until no adverse trends are detected for six months prior to bond release; Similar to 2nd bullet above, except that the suite of parameters is slightly more limited; frequency of monitoring would be set by the regulatory authority; and monitoring would not have to continue until restoration of the stream community had been demonstrated; Similar to 2nd bullet above, except that monitoring would be for parameters related to material damage rather than for the full suite of chemicals, biological components, or other elements; Similar to 2nd bullet above, except that monitoring would not have to continue until restoration of the stream community had been demonstrated.

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2.4.7

Corrective Action Thresholds.

Under this Element, the Stream Protection Rule would required the setting of Corrective Action Thresholds to identify adverse parameters prior to causing material damage to the hydrologic balance. Alternatives under consideration include:  Current regulations do require specific Corrective Action Thresholds, but require only that the permittee take action to correct noncompliance with permit conditions;
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Corrective Action Thresholds would be set based on the impacts of all human activity in a watershed, regardless of whether the impacts are caused by mining operations or are within the mining operator’s control; data would be reviewed quarterly; The regulatory authority would establish interim Corrective Action Thresholds to identify trends before material damage is reached. If interim Corrective Action Thresholds are reached, the mining operator would be required to develop a programmatic or permit specific corrective action plan; data would be reviewed quarterly; Corrective Action Thresholds would be defined in terms of numerical water quality thresholds based on physical, chemical, and biological criteria in each region; The regulatory authority would establish Corrective Action Thresholds based on monitoring data that indicate environmental degradation prior to reach material damage; data would be reviewed quarterly.

2.4.8

Surface Configuration and Fills.

Under this Element, OSM is considering alternatives for addressing surface configuration concerns and options for dealing fill materials. Alternative include:  Current regulations do not specifically address landforming principles, but rather require that disturbed areas be backfilled and restored to AOC, with certain exceptions. Excess spoil should be minimized, with the maximum amount returned to the mined-out area. Placement of excess spoil and coal mine waste in intermittent and perennial streams must be avoided if possible or a range of alternatives identified to minimize impacts to fish, wildlife, and related environmental values; Ban all excess fill placement in all streams, including ephemeral streams; Similar to the 1st bullet above, except that compliance with landforming principles would be required; end dumping and wing dumping would be prohibited; AOC would include +/- 15% or the 50-foot rule; and postmining elevation could exceed pre-mining elevations in order to restore topographic landforms; Regulatory authorities would set fill optimization policies based on topography and other site specific issues; Similar to the 3rd bullet above, except that it would not adopt the AOC 15% or 50-foot rule and postmining elevations could not exceed pre-mining elevations based on restoration of pre-mining topographic landforms. Instead, tolerances for AOC configuration would be defined to allow AOC to be met in certain circumstances where pre-mining elevations would be exceeded. Additionally, regulatory authorities would set fill optimization policies based on topography and other site specific issues.

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2.4.9

AOC Exceptions.

SMCRA describes the process by which the topography is to be restored to the Approximate Original Contour (AOC). In some cases, however, exceptions to AOC requirement may be allowed. The alternatives under this Element describe the approaches under consideration:  Current regulations allow AOC exceptions for mountaintop removal operations, subject to several requirements including no damage to natural water courses. AOC exceptions are also allowed for steep-slope mining operations provided the watershed will be
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improved to pre-mining conditions or conditions that would have existed had the areas been restored to AOC; Ban on all variances from returning the mined areas to AOC; Allow AOC exceptions as is done currently, but place limitations on existing exceptions. For an AOC exception for mountaintop removal operations, the applicant would have to show that mining impacts with an AOC exception would be no greater than if the site was returned to AOC. For steep-slope AOC exception, the applicant would have to show the AOC exception would result in lesser impacts to aquatic ecology in the watershed than if restored to AOC. PMLU requirements would be more stringent, and the regulatory authority would have to make a determination that the PMLU are achievable and feasible and backed by financial assurances; Regulatory authorities would set limitations on exceptions from AOC requirements based on regional regulations and conditions; Same as 3rd bullet above, except that the regulatory would not have to make a specific determination that the PMLU are achievable and feasible. Inclusion in the permit and reclamation plan is sufficient.

2.4.10

Revegetation and Topsoil Management.

This Element addresses alternatives associated with the restoration of the forested lands vegetation, and soils following mining.    Current regulations require revegetation in accordance with pre-mining land use or an approved PMLU; Reforestation of forest communities to the level of mature trees; establishes a bonding requirements that are triggered when deciduous hardwood are not reestablished; Revegetation with native species consistent with reestablishing the climax native plant community regardless of the PMLU and reforestation of excess spoil fills; salvage original organic material; demonstration that topsoil substitutes are necessary and appropriate; reforest and minimize forest fragmentation if the area was forested before mining or within the five year period prior to mining; Adopts the concept of Reclaimed Desired Plant Community (RDPC), wherein the mining operator selects existing vegetation types around the mine site to represent the varied RDPC. Success of the vegetative growth would be evaluated no sooner than the end of the third growing season, and bond release could occur thereafter; Same as 3rd bullet above, except that reforestation would not be required for areas that had been forested in the five years before the permit application.

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2.4.11

Fish and Wildlife Protection and Enhancement.

This Element will describe ways that these resources are to be protected and enhanced. Alternatives include:  Under current regulations, the mine operator must minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, particularly habitats of unusually high value for fish and wildlife. The mining operator must avoid disturbances, restore, or replace wetlands, riparian vegetation along rivers, streams, ponds, and lakes,
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Enhancement of all required if practicable. Mining activities cannot jeopardize endangered or threatened species, or destroy or adversely modify designated critical habitat. Where fish and wildlife habitat is the PMLU, select plant material based on value to the expected fish and wildlife; OSM would establish additional requirements for the enhancement of fish, wildlife, and related environmental values when mining activities result in impact to any stream, including ephemeral streams. Enhancement activities would be included in the permit and would be required in the same watershed or on the permitted area; Similar to 2nd bullet above, except the enhancement requirements would relate to mining activities that impact intermittent and perennial streams. Enhancement activities could occur in the same watershed, on the permitted area, a different watershed, or a CWA mitigation project off the permit area; Require enhancement only if state or Federal listed species are impacted by the fill or stream impacts; Same as 2nd bullet above, except that enhancement requirements would relate to mining activities that impact intermittent and perennial streams, not ephemeral streams. Enhancement activities would still occur in the same watershed or on the permitted area.

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2.5

DISCUSSION OF FULL-SUITE ALTERNATIVES CONSIDERED

The following Full-Suite Alternatives, with the exception of the No Action Alternative, are potential revisions to regulations with varying degrees of restrictions and requirements. OSM is evaluating these Full-Suite Alternatives as part of this DEIS process to determine the extent to which each Alternative will increase environmental protection within all the coal producing regions of the U.S. and the economic and social costs each Alternative will place on the public and the industry. The chosen Alternative will result in the promulgation of a new Stream Protection Rule.

2.5.1

Full-Suite Alternative #1 -- No Action Alternative

Full-Suite Alternative #1 represents the current state of the SMCRA regulations pertaining to each of the listed Principal Elements. As such, it is identified as the No Action Alternative, which, if adopted, means no changes in the regulations would be made, and these provisions would continue to apply. 2.5.1.1 Stream Definition.

Under the No Action Alternative, the current regulations’ definitions of perennial, intermittent, and ephemeral streams are based on hydrologic characteristics and do not incorporate biological or chemical characteristics (see 30 CFR 701.5). Under the current regulations, a perennial stream is a stream or part of a stream that flows continuously during all of the calendar year as a result of groundwater discharge or surface runoff.
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An intermittent stream is defined as: “(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.” An ephemeral stream is defined as: “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.” 2.5.1.2 Baseline Data Collection and Analysis.

Under the current regulations, the Applicant is required to submit, at a minimum, the following baseline information, and any additional hydrologic or geologic information required by the regulatory authority: Groundwater: Under 30 CFR 780.21, the Applicant is required to submit for existing wells, springs and other groundwater resources on or adjacent to the permit area, the quality and quantity of groundwater and information on usage. Information on water quality must include total dissolved solids or specific conductance, pH, total iron, and total manganese. Groundwater quality information must include approximate rates of discharge or usage, depth to the water in the coal seam, and each water-bearing stratum above the coal seam and each potentially impacted stratum below the coal seam). Surface water: Under 30 CFR 780.21, the Applicant is required to submit information on surface water quality and quantity sufficient to demonstrate seasonal variation and water usage. At a minimum, water quality information must include baseline information on total suspended solids, total dissolved solids or specific conductance, pH, total iron, and total manganese. The regulatory authority may require information on baseline acidity and alkalinity if there is a potential for acid drainage from the proposed mining operation. Water quality information must contain information on seasonal flow rates. Geologic: Under 30 CFR 780.22, the Applicant is required to provide a description of the geology of the proposed permit area 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 that seam that could be adversely impacted by mining. The description must include the areal and structural geology of the permit area and adjacent areas and analyses of samples collected from test borings, drill cores, or samples from rock outcroppings from the permit area. This requirement includes a chemical analyses of the coal seam for acid- or toxic-forming materials, including total sulfur and pyritic sulfur, and alkalinityproducing materials. The regulatory authority may waive analyses for alkalinity-producing materials and pyritic sulfur. Biologic: No specific data collection or analysis for biologic resources is currently required. 2.5.1.3 Definition of Material Damage to the Hydrologic Balance.

Under the current regulations, material damage is not defined. However, the preamble to the rule specifies that each RA should develop criteria for material damage to the hydrologic balance
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outside the permit area and that OSM considers compliance with water quality standards and effluent limitations as the only fixed criteria. 2.5.1.4 Activities In or Near Streams.

Under 30 CFR 780.28 and 30 CFR 816.57mining activities in perennial or intermittent streams or on the surface of land within 100 feet of such streams are prohibited unless authorized by the regulatory authority. In order to obtain approval to conduct mining activities in or near a perennial or intermittent stream, the proposed activity cannot cause or contribute to a violation of applicable federal or state water quality standards developed under the Clean Water Act. In addition, the Applicant must demonstrate to the regulatory authority that avoiding disturbance is not reasonably possible. Mining within the buffer zone must include measures that use best technology currently available (BCTA) for preventing additional contributions of suspended solids to streamflow or runoff outside the permit area and for minimizing adverse impacts on fish, wildlife, and related environmental values to the extent possible. The restrictions on mining activities in or near streams do not apply to the construction of excess spoil fills in a perennial or intermittent stream. 2.5.1.5 Mining Through Streams.

Under the current regulations, all permanent stream channel diversions and restored stream channels must use natural channel design techniques to restore or approximate pre-mining stream channel characteristics. No perennial or intermittent stream may be diverted unless the diversion is designed and located to minimize adverse impacts on fish, wildlife, and related environmental values to the extent possible, using BTCA, and both the design and construction are certified by a qualified registered professional engineer (RPE). 2.5.1.6 Monitoring During Mining and Reclamation.

The current regulations require that surface water and groundwater quality be monitored. Required parameters include those related to the postmining land use and protection of the hydrologic balance. Minimum parameters for groundwater and in-stream monitoring locations are pH, Fe, Mn, and TDS or specific conductance, plus water levels for groundwater or flow for surface water. Parameters required for point source discharges are governed by the National Pollutant Discharge Elimination System (NPDES) permit. Minimum frequency for monitoring is quarterly during mining activities until bond release, unless waived by the RA. The current regulations contain no biological condition monitoring requirements. 2.5.1.7 Corrective Action Thresholds.

The current regulations contain no requirement for specific corrective action thresholds. If the monitoring results, however, demonstrate noncompliance with a permit condition, the permittee must take corrective action. 2.5.1.8 Surface Configuration and Fills.

The current regulations do not expressly address landforming principles for either mine reclamation in general or the construction of excess spoil fills. The regulations state that disturbed areas must be backfilled and regraded to AOC (closely resemble pre-mining surface configuration) with certain exceptions. The mining operation must be designed to minimize the
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creation of excess spoil and to maximize the amount of spoil returned to the mined-out areas. Excess spoil footprints must be minimized, with no excess design capacity allowed. Placement of excess spoils and coal mine waste in perennial or intermittent streams must be avoided to the extent possible. If avoidance is not possible, the applicant must identify and analyze a range of reasonable alternative designs and locations for the fill or waste structure and select the one with the least overall adverse impact on fish, wildlife, and related environmental values. 2.5.1.9 AOC Exceptions.

The current regulations allow for AOC exceptions for mountaintop removal operations for which there a host of requirements, including no damage to natural water courses below the lowest coal seam to be mined. For steep-slope mining operations with a commercial, industrial, residential, or public postmining land use, AOC exceptions are allowed provided the watershed will be improved relative to either pre-mining conditions or the condition that would exist if the site were to be mined and restored to AOC. 2.5.1.10 Revegetation and Topsoil Management. The current regulations require that disturbed areas must be revegetated in accordance with either the pre-mining land use or an approved alternative postmining land use. 2.5.1.11 Fish and Wildlife Protection and Enhancement Under the current regulations, the mine operator must, to the extent possible using BTCA, minimize disturbances and adverse impacts on fish, wildlife, and related environmental values and shall achieve enhancement of such resources where practicable. Surface mining activity must be conducted so as not to jeopardize the continued existence of endangered or threatened species and must not be 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. The mining operator must 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 must also avoid disturbances to, enhance where practicable, or restore, habitats of unusually high value for fish and wildlife. Where fish and wildlife habitat is to be a postmining land use, the plant species to be used on reclaimed areas shall be selected on the basis of the resource value to fish and wildlife expected to occur within the permit area.

2.5.2

Full-Suite Alternative 2

Full-Suite Alternative #2 represents the most protective (or inclusive) alternative under each principal Element. As such, the selection of alternatives under each Element combine to make Full-Suite Alternative #2 the most protective of natural resources, while also increasing the administrative and economic burden on the mining industry. Alternative #2 would result in major changes to the requirements for obtaining a permit and for mining operations under
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SMCRA. This would include major changes to the reporting and water monitoring requirements before and during operations and during reclamation. In addition, this Alternative would ban mining operations through or in all streams (including ephemeral streams) and would prohibit all variances from AOC. Selected provisions of this Alternative could require statutory changes to SMCRA. 2.5.2.1 Stream Definition.

Under Alternative #2, a stream would be defined based on fluvial geomorphic characteristics, using methodologies that incorporate entrenchment ratio, width-to-depth ratio, sinuosity, slope, and channel bed material. Alternative #2 differs from the No Action Alternative in that the definitions would not depend on a hydrologic component, nor would the definitions depend on biological or chemical characteristics that underpin some of the other approaches to defining streams under the other Alternatives; it also does not adopt the CWA definition that is part of Alternative #4. 2.5.2.2 Baseline Data Collection and Analysis.

Under Alternative #2, the regulatory authority would be required to coordinate with CWA implementing agencies and the USACE to harmonize baseline data collection and monitoring requirements to the extent consistent with each agency’s statutory authority and responsibilities. This Alternative differs from the No Action Alternative by establishing minimum water sample data collection intervals, expanding the suite of chemicals subject to analysis, and requiring documentation of biological conditions, sediment load, meteorological data, stream form and function, and aquatic organisms. Other Alternatives include requirements for some, but not all, components or sampling on a less frequent or shorter timeline. Under this Alternative, the applicant would be required to collect and submit the following baseline data prior to submitting an application:  24 monthly, evenly spaced water samples, consisting of full suite sampling for Aluminum, Calcium, Potassium, Iron, Magnesium, Manganese, Sodium, Silicon (these are major cations for most areas), Sulfate, Alkalinity (HCO3 - expressed as bicarbonate), Chloride (for major anions) and Selenium (perhaps other trace elements on EPA's national priority metal list)) from all potentially impacted streams (including ephemeral streams); Documentation of the biological conditions of all streams (including ephemeral streams) across multiple years (at least 2 years to differentiate between wet and dry years) and multiple seasons (at least spring, summer, and fall), including upland habitat; Continuous flow measurement, where practicable; Documentation of sediment load; Meteorological measurements (including temperature data, precipitation amounts, and duration of storm events, not just monthly totals); Documentation of the stream form and function, including more specifically fish, wildlife, soil, and geologic characterization (e.g., Selenium);

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 2.5.2.3

Samples of aquatic organisms to the lowest practicable taxonomic level (at least to the Order level). Definition of Material Damage to the Hydrologic Balance.

SMCRA provides that surface coal mining operations must be designed to prevent material damage to the hydrologic balance outside the permit area. As noted in the No Action Alternative, this term is not defined in OSM’s regulations. Under Alternative #2, “material damage to the hydrologic balance outside the permit area” would be defined as any impairment of a physical, chemical or biological function of any stream (including ephemeral streams) based on state water quality standards (functional assessment approach and definition of impairment to be developed) or impairment of designated uses. Unlike the other Alternatives, this standard would be applied to all streams, including ephemeral streams, substantially increasing the potential impacts to the mining industry. 2.5.2.4 Activities In or Near Streams.

Under Alternative #2, all mining activity would be prohibited in or within 100 feet of all streams (including ephemeral streams). This Alternative differs from the No Action Alternative in that it does not provide any exceptions to the prohibition, and it includes ephemeral streams. While affording the maximum protection for streams, this approach would increase the potential impacts to the mining industry. Other Alternatives would allow some activities within 100 feet of a stream depending on its effect on stream form and function, restoration capability, or practicability of avoidance. 2.5.2.5 Mining Through Streams.

Under Alternative #2, all mining activity including fill construction would be prohibited in or within 100 feet of all streams (including ephemeral streams). This Alternative differs from the No Action Alternative in that it does not provide any exceptions to the prohibition. While affording the maximum protection for streams, this approach would substantially increase the potential impacts to the mining industry. Other Alternatives would allow some activities within 100 feet of a stream depending on its effect on stream form and function, restoration capability, or practicability of avoidance. 2.5.2.6 Monitoring During Mining and Reclamation.

Under Alternative #2, water quality monitoring during mining and reclamation would include the same measurements conducted during the baseline investigations and would be conducted quarterly. Groundwater would be monitored at points designated in the permit. Biological monitoring would be monitored in accordance with EPA Clean Water Act protocols, assessed annually, and would continue until no adverse trends are detected for over six months prior to final bond release. The regulatory authority would review the water quality conditions and compliance with the surface water runoff plan midway through the permit period and during permit renewal cycles. This monitoring and inspection must provide sufficient data to evaluate the effectiveness of the runoff plan, including frequency of monitoring, inspection, maintenance, and reporting. The runoff plan would include an inspection of storm water (rainwater, snowmelt, etc.) control structures following a 10-year storm event and the preparation of a report by a
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certified Professional Engineer, to be submitted to the regulatory authority within 48 hours. The report must address the performance of the hydraulic control structures, material damage, and any remedial measures taken. The regulatory authority and the mining company would review the data to identify trends, and monitoring would not be waived before final bond release. Monitoring would continue until the mining company has shown the full restoration of the stream community. As in the Baseline Data and Analysis element, Alternative #2 expands on the No Action Alternative by expanding the suite of chemicals subject to analysis and requiring documentation of biological conditions. Monitoring cannot be waived by the regulatory authority and would continue until no adverse trends had been detected. Unlike the other Alternatives, Alternative #2 also requires monitoring until the stream community has been fully restored. 2.5.2.7 Corrective Action Thresholds.

Under this Alternative, Correction Action Thresholds would be set based on the impacts of all human activities in the watershed (defined on a basin scale), regardless of whether the impacts are caused by the mining operation or are within the mining operator’s control. The regulatory authority and the mining operator would be required to agree to Corrective Action Threshold criteria designed to prevent material damage to the hydrologic balance outside the permit area. A quarterly review of monitoring data would be required to determine whether Corrective Action Thresholds or material damage are being approached. Unlike the No Action Alternative, Alternative #2 requires establishment of specific Corrective Action Thresholds. Alternative #2 differs from the other Alternatives in that it establishes Corrective Action Thresholds based on an assessment of all activities within the watershed, not just those attributable to mining operations or those within the control of a particular mining operator. 2.5.2.8 Surface Configuration and Fills.

This Alternative would ban excess fill placement in all streams (including ephemeral streams). Alternative #2 differs from the No Action Alternative in that it prohibits the placement of any fill or excess mine waste in any stream (including ephemeral streams), whereas the No Action Alternative would allow placement of excess spoils and mine waste in intermittent and perennial streams if unavoidable. Other Alternatives require minimization of excess fills and provide for regulatory authorities to consider topography and site specific issues in establishing fill optimization policies. 2.5.2.9 AOC Exceptions.

Alternative #2 would prohibit all variances from returning the mined area to its Approximate Original Contour (AOC), including but not limited to, thin overburden, mountaintop removal, and steep slope contour. This Alternative would require a statutory change to SMCRA in order to implement. Alternative #2 differs from the No Action Alternative by prohibiting any variances from AOC regardless of the postmining land use. Other Alternatives allow variances from AOC when
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consistent with achievable postmining land uses, backed by adequate financial assurances, or when impacts to aquatic and biological resources would be less than if AOC was restored. 2.5.2.10 Revegetation and Topsoil Management. This Alternative would require reforestation of forest communities and would ensure full restoration occurs to the level of mature trees by establishing bonding requirements that are triggered when deciduous hardwoods are not reestablished. Unlike the No Action Alternative, Alternative #2 would require reforestation of previously forested lands regardless of the postmining land use. Other Alternatives allow consideration of postmining land uses, native species, topsoil evaluation, and erosion control. 2.5.2.11 Fish and Wildlife Protection and Enhancement. Under Alternative #2, OSM would establish additional requirements for the enhancement of fish, wildlife, and related environmental values when the mining operation results in stream impacts. Enhancement activities, as described in and included as conditions of the permit, must be within the same watershed and on the permitted area. Alternative #2 differs from the No Action Alternative in that enhancement is not tied to practicability, and it specifies that the enhancement must take place within the same watershed and on the permitted area. Other Alternatives would allow enhancement activities to occur outside the watershed or permitted area or limit them only if state or Federal listed species are affected by the mining operations.

2.5.3

Full-Suite Alternative 3

Alternative #3 would result in a major change to the requirements for obtaining a permit and mining under SMCRA. This would include major changes to the reporting and water monitoring requirements during mining operations and during reclamation. In addition, this alternative would allow mining through or in streams with requirements to restore the form and function of the stream or to mitigate stream damage by restoring a similar already degraded stream segment not on the permitted area. This alternative would allow variances from AOC under new conditions. 2.5.3.1 Stream Definition.

This Alternative would base the definitions of ephemeral, intermittent, and perennial streams upon a tiered approach that accounts for:    The presence of sufficient moisture levels to support associated aquatic organisms; The current stream use; and An evaluation of the aquatic community normally associated with ephemeral, intermittent, and perennial streams.

Alternative #3 combines hydrologic considerations with a biological component that is absent from the No Action Alternative and Alternative #2. It is similar to the approach taken by the

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Indiana Department of Natural Resources. Alternative #3 also does not incorporate the CWA definitions of Alternative #4 or incorporate the physical characteristics of Alternative #5. 2.5.3.2 Baseline Data Collection and Analysis.

This Element of Alternative #3 differs from the No Action Alternative in the same general ways as Alternatives #2 and #5. It is similar to that under Alternatives #2 and #5, with the following exceptions:    The sampling period is reduced from 24 months to 12 months, and the suite of sampling does not include Iron, Manganese, and Silicon. It does include TSS and TDS, as well as conductivity. Additionally, sampling would be compared to that of a reference stream. Alternative #3 does not require continuous flow or meteorological measurements, documentation of sediment load, or sampling of aquatic organisms.

Alternative #3 also does not adopt Alternative #4’s deference to the regulatory authority to set sampling standards. 2.5.3.3 Definition of Material Damage to the Hydrologic Balance.

This Element of Alternative #3 also provides a definition of “material damage to the hydrologic balance outside the permit area,” which the current regulations reflected in No Action Alternative do not. Alternative #3 uses the same criteria as Alternatives #2 and #5, except that under Alternative #3 material damage would be limited to those impacts that are unabatable; Alternatives #2 and #5 make no such exception. Alternative #3 does not adopt Alternative #4 rebuttable presumption approach. 2.5.3.4 Activities In or Near Streams.

Under Alternative #3, mining activities would be allowed in or near streams with the option of mitigation by restoring the form and function of a stream segment (or stream reach) on a watershed basis within or outside a permit boundary. Alternative #3 is similar to the No Action Alternative in that some activities are allowed, but the standard is one of restoration of form and function after-the-fact rather than a prohibition on activities unless avoidance is not reasonably possible. Alternative #3 does not adopt Alternative #2’s absolute prohibition on activities within 100 feet of a stream, and it does not adopt Alternative #4’s return to the 1983 SBZ rule as interpreted by OSM. Alternative #5 is more stringent than Alternative #3 due mainly to Alternative #5’s focus on avoidance and minimization before-the-fact. 2.5.3.5 Mining Through Streams.

Under Alternative #3, mining activities near or through streams would be allowed if the applicant can meet the CWA permitting standards (performance-based restrictions). Unlike the No Action Alternative’s focus on limiting stream diversions, Alternative #3 looks at the impact to streams under CWA permitting standards. Alternative #3 does not adopt Alternative #2’s absolute prohibition on activities within 100 feet of a stream, and it does not
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adopt Alternative #4’s allowance of mining through previously impaired or impacted if the stream’s existing form and function can be restored. Alternative #5 emphasizes fish and wildlife protection and enhancement and restoration of stream form and function, backed by a bond to ensure restoration. 2.5.3.6 Monitoring During Mining and Reclamation.

This Element of Alternative #3 differs from the No Action Alternative in the same general ways as Alternatives #2 and #5. It is similar to that under Alternatives #2 and #5, with the following exceptions:    The suite of sampling mirrors the Alternative #3’s Baseline Data and Analysis requirements and does not include Iron, Manganese, and Silicon. It does include TSS and TDS, as well as conductivity. Frequency of monitoring would be defined by the regulatory authority versus quarterly. Monitoring would not have to continue until full restoration of the stream community had been demonstrated.

Alternative #3 is different from Alternative #4 in that it does not limit monitoring only to material damage parameters or exclude regular biological sampling. 2.5.3.7 Corrective Action Thresholds.

Under Alternative #3, the regulatory authority would establish criteria and interim Corrective Action Thresholds to identify trends before material damage is reached. As the interim Corrective Action Thresholds are reached, the mining operator would be required to develop a corrective action plan, either on a programmatic or permit specific basis. Alternative #3 also requires quarterly review of monitoring data to determine whether material damage thresholds are being approached. Unlike the No Action Alternative, Alternative #3 sets Corrective Action Thresholds. It differs from Alternative #2’s all encompassing, watershed approach and assesses impacts based on the mining operations or activities with the control of a particular mining operator as in Alternative #5. Alternative #3 is more refined than Alternative #4’s regional approach. 2.5.3.8   Surface Configuration and Fills.

Alternative #3 would: Require the minimization of excess material fills by maximizing the amount of spoil returned to the mined-out area and minimizing excess spoil footprints; Require the use of construction techniques such as: controlled placement in lifts and “material classification and material handling” techniques to isolate potential pollutant forming materials. Reclamation would closely resemble general pre-mining land configuration as documented by topographic measurements (slope, aspect, relief) and features (fluvial processes: streams, wetlands, hills, cliffs); Require the use of landforming. Landforming would be defined as a design and grading technique that attempts to replicate the appearance and function of the natural terrain by constructing slopes, drainage ways, and other landforms that blend in with the natural
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   

surroundings in an environmentally compatible fashion while meeting any relevant stability requirements; Require digital terrain model of pre-mining landforms in permit application; Prohibit uncontrolled placement of excess spoil material, such as end dumping or wing dumping; Define approximate original contour (AOC) to include the restoration of landforms including slope, aspect and elevation (e.g. +/- 15% or "50-foot rule"); and Allow postmining elevations to exceed pre-mining elevations when necessary to restore pre-mining topographic landforms.

Unlike Alternative #2’s ban on placement of fills in streams, Alternative #3 (like the No Action Alternative and Alternatives #4 and #5) allows excess spoils to be placed in streams under limited circumstances. Although not specifically mentioned in the No Action Alternative, construction techniques, landforming principles, and topographic considerations would guide surface configuration under Alternative #3, #4, and #5. 2.5.3.9 AOC Exceptions.

Under Alternative #3, the permittee would be required to restore AOC in accordance with SMCRA; however, this alternative would place limitations upon existing exceptions to the current AOC requirement. First, to be excepted from the AOC requirement for mountaintop removal mining, the applicant would have to demonstrate that the mining impacts with a variance from AOC would be no greater than if the mining area was returned to AOC. In addition, the applicant would have to show that mining would not increase parameters of concern; impact peak flow and total volume of flow during any season of the year; affect existing approved designated uses of surface water under the Clean Water Act; or adversely affect groundwater. In order to obtain an AOC variance for steep slope mining, the applicant would have to show that the variance would result in lesser impacts to aquatic ecology within the watershed of the permitted area than if restored to AOC and that impacts in streams with a biologic community would be less than if reclaimed to AOC. In addition, in order to obtain a variance from AOC requirements, the applicant would be subject to more stringent requirements for its postmining land use (PMLU). Finally, the applicant’s reclamation plan would be required to include final elevations and configurations, and the applicant must explain why deviations from pre-mining configuration are necessary and appropriate. The regulatory authority must determine, based on an appropriate demonstration by the applicant, that the PMLU are achievable and feasible. The regulatory authority must also require additional financial assurances where variances in AOC are granted to ensure PMLU are actually completed. Like the No Action Alternative, Alternative #3 allows AOC exceptions, but it imposes additional requirements and criteria to ensure protection of streams, aquatic ecology, and biologic communities. In this regard, it differs substantially from Alternative #2’s prohibition of all AOC exceptions. Alternative #5 is similar to Alternative #3, but does not include the financial
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assurance requirement for PMLU. Alternative #3 does not adopt Alternative #4’s deference to regulatory authorities based on regional regulations and conditions. 2.5.3.10 Revegetation and Topsoil Management. Alternative #3 would require that all reclaimed lands be revegetated with native species consistent with the goal of reestablishing the climax native plant community, regardless of the postmining land use, unless the postmining land use is actually implemented before the end of the revegetation responsibility period. All excess spoil fills would be required to be reforested. Original organic material would be required to be salvaged and redistributed to control erosion, promote growth of vegetation, serve as a source of native plant seeds and organisms, and increase the moisture retention capability of the soil. The applicant would have to develop detailed requirements for site preparation, erosion control, planting, and seeding. In cases where the applicant chooses to specify topsoil substitutes, a demonstration that topsoil substitutes are necessary and appropriate would be required. Applicants would have to set forth a plan to minimize forest fragmentation if the area was forested before mining or was forested within the five years prior to mining, and the mining company would have to reforest areas that were forested in the five years before the filing of the permit application. Alternative #3 expands Alternative #2’s reforestation requirement to include revegetation requirements that emphasize native species and original organic material. Alternative #3 also takes into account the forested nature of the area during the five years preceding the mining permit application, something Alternative #5 does not require. Alternative #4 would emphasize revegetation with reclaimed desired plant communities. 2.5.3.11 Fish and Wildlife Protection and Enhancement. This Element under Alternative #3 is similar to that under Alternative #2, except that OSM would establish additional requirements for enhancement of fish, wildlife, and related environmental values when the mining operation, including the placement of fills, results in impacts to intermittent and perennial streams. Ephemeral streams would not be included. Enhancement activities, as described in and included as conditions of the permit, could be within the same watershed and on the permitted area, or could be in a different watershed, or a part of a CWA mitigation project off the permit area. Alternative #5 limits enhancement so the same watershed and on the permitted area. Alternative #4 differs in that the requirements would only apply if state or Federal listed species are affected by the mining operations.

2.5.4

Full-Suite Alternative 4

Alternative #4 would result in a comprehensive change to the requirements for obtaining a permit under SMCRA and in some major changes to the reporting and monitoring requirements during operations and reclamation. In addition, this Alternative would reinstate the 1983 SBZ rule as interpreted by OSM. This Alternative would leave fill minimization and AOC variance rules to the regulatory authorities and would employ the concept of a Reclaimed Desired Plant Community (RDPC) in its revegetation and topsoil management provisions.
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2.5.4.1

Stream Definition.

Alternative #4 adopts the “waters of the United States” definition, as used by the USACE in its Clean Water Act section 404 program. This Alternative would define the term “waters of the United States” consistent with its definition in 40 CFR 230.3(s) and use that term as a basis for determining which streams are protected under SMCRA, rather than using perennial, intermittent, or ephemeral stream definitions. 40 CFR 230.3(s) is part of the set of Clean Water Act regulations that make up the 404(b)(1) guidelines for implementing section 404(b)(1) of the Clean Water Act. Section 404(b) of the Clean Water Act requires that any permit issued for the discharge of dredged or fill material into navigable waters must specify a specific disposal site for the material in the permit through the application of guidelines developed under section 404(b)(1). The definition of “waters of the United States” in 40 CFR 230.3(s) states as follows: The term “waters of the United States” means: (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use degradation or destruction of which could affect interstate or foreign commerce including any such waters: (i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (iii) Which are used or could be used for industrial purposes by industries in interstate commerce; Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (4) All impoundments of waters otherwise defined as waters of the United States under this definition; (5) Tributaries of waters identified in paragraphs (s)(1) through (4) of this section; (6) The territorial sea;

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(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This definition is different than any other Alternative in that it would include some wetlands and other water bodies not traditionally characterized as streams. However, it would not include ephemeral streams. 2.5.4.2 Baseline Data Collection and Analysis.

Alternative #4 would require the regulatory authority to develop baseline data collection and analysis criteria consistent with CWA protocols, the SPR, and current regulations. Standards would take into consideration chemical and biological characteristics, physical flow, and stream form and function. Because the criteria would be established by the various regulatory authorities, variations in data collection frequency, data collected, chemical analyzed, etc. could occur. Alternatives #2, #3, and #5 provide minimum criteria applicable to all regulatory authorities. 2.5.4.3 Definition of Material Damage to the Hydrologic Balance.

Alternative #4 would define material damage as a rebuttable presumption that material damage occurs when a defined percentage of the stream miles are, or will be, permanently impacted in any watershed. As noted previously, current regulations under the No Action Alternative do not define material damage. Subject to some variation, Alternatives #2, #3, and #5 generally define material damage as any impairment of a physical, chemical, or biological function of a stream based on state water quality standards or impairment of designated uses. 2.5.4.4 Activities In or Near Streams.

Alternative #4 would reinstate the 1983 stream buffer zone (SBZ) rule’s prohibition on mining activities in perennial or intermittent streams or on the surface of land within 100 feet of such streams, unless the regulatory authority authorizes such activities and develops a written finding that the SBZ incursion will not cause or contribute to a violation of water quality regulations. OSM has interpreted the 1983 SBZ as not applying to the fill footprint. Alternatives #3, #4, and #5, like the No Action Alternative, allow some activities within 100 feet of a stream, subject to avoidance and minimization criteria. 2.5.4.5 Mining Through Streams.

Alternative #4 would allow mining in an otherwise prohibited stream if the stream was impaired or impacted prior to mining and if the existing stream form and function could be restored. Impacted or impaired would be determined pursuant to CWA section 303d. Unlike the No Action Alternative’s focus on limiting stream diversions, Alternative #4 allows mining through streams that were impaired prior the commencement of mining activities. Alternative #4 does not consider CWA permitting standards, as in Alternative #3, nor does it adopt Alternative #2’s absolute prohibition on activities within 100 feet of a stream. Unlike
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Alternative #5’s emphasis on fish and wildlife protection and enhancement and restoration of stream form and function, Alternative #4 would only require restoration to the stream’s existing impacted or impaired condition after mining. 2.5.4.6 Monitoring During Mining and Reclamation.

Under Alternative #4, monitoring requirements would be similar to those under Alternatives #2, #3, and #5, except a mining company would only monitor for parameters related to material damage rather than a suite of chemicals, and there would be no requirement to perform regular biological sampling. 2.5.4.7 Corrective Action Thresholds.

Alternative #4 would define Corrective Action Thresholds in terms of numerical water quality thresholds based on physical, chemical, and biological criteria in each region. This alternative would provide that there would be no Corrective Action Thresholds for ephemeral streams. Although Alternative #4 establishes Corrective Action Thresholds, unlike the No Action Alternative, it reliance on regional standards is less precise than the watershed or mining operation specific approach advocated in Alternatives #2, #3, and #5. 2.5.4.8 Surface Configuration and Fills.

Under Alternative #4, fill optimization policies would be left to the various regulatory authorities to set based on varying topography and other site specific issues. Because the criteria would be established by the various regulatory authorities, variations in fill optimization policies could occur. Alternatives #3 and #5 provide minimum criteria applicable to all regulatory authorities, while Alternative #2 would prohibit all fills in streams. 2.5.4.9 AOC Exceptions.

Alternative #4 would provide for limits on variances and exceptions from AOC requirements, as established by regulatory authorities based on regional regulations and conditions. Because the criteria for AOC variances and exceptions would be established by the various regulatory authorities, variations in those policies could occur. The No Action Alterantive and Alternatives #3 and #5 provide minimum criteria applicable to all regulatory authorities, while Alternative #2 would prohibit all AOC exceptions. 2.5.4.10 Revegetation and Topsoil Management. Alternative #4 employs the concept of Reclaimed Desired Plant Community (RDPC). The mining company would select existing vegetation types around the mine site to represent the varied RDPCs. The mining company could use test plots, demonstration areas, or areas concurrently reclaimed within the mine site or within similar representative areas from adjacent mines to serve as the RDPCs as long as they meet the postmining land use.

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For areas where existing vegetative types adjacent to the mine area are severely disturbed or where test plots or demonstration areas are not reasonable alternatives, RDPCs may be selected using appropriate ecological or range site descriptions or other technical sources. The success of the vegetative growth on a reclaimed site may be evaluated for release no sooner than during the third growing season after earthwork, planting, and irrigation (if used) have been completed. Final bond release may be considered at that time. Alternative #4 takes a similar approach as Alternatives #2, #3, and #5 by requiring reforestation and revegetation of areas affected by mining operations. 2.5.4.11 Fish and Wildlife Protection and Enhancement.

Alternative #4 provides that any new requirements for enhancement plans for fish and wildlife would only apply if state or Federal listed species are impacted by the fill or other stream impacts. This Element under Alternative #4 differs from the other Alternatives in that the requirements would only apply if state or Federal listed species are affected by the mining operations. It does not otherwise require enhancement of fish, wildlife, and related environmental values when the mining operation, including the placement of fills, results in impacts to intermittent and perennial streams.

2.5.5

Full-Suite Alternative 5 – Proposed Action

Full-Suite Alternative #5 represents OSM’s Proposed Action. The Proposed Action adopts Elements that comprise Alternatives #2 and #3, some with modifications that are unique to the Proposed Action. The Proposed Action would result in a comprehensive change to the requirements for obtaining a permit under SMCRA and in some major changes to the reporting and monitoring requirements during operations and reclamation. In addition, this Alternative would place limitations on mining or mining activities in or near intermittent and perennial streams and add requirements for fill minimization. Variances for restoring the Approximate Original Contour (AOC) of the mining area would be limited, and additional reclamation and reforestation requirements would be specified. 2.5.5.1 Stream Definition.

Under Alternative #5, the current definitions of perennial, intermittent, and ephemeral streams would be expanded to consider biological, hydrological, and physical characteristics. In addition, the portion of the definition for intermittent stream that excludes stream segments with contributing watersheds of less than 1 square mile criterion would be eliminated. Alternative #5 differs from the No Action Alternative by adding biological and physical characteristics to the definitions, in addition to the No Action Alternative’s hydrologic considerations. Alternative #5 would also remove the 1 square mile criterion that is included in the No Action Alternative’s definition of intermittent stream. This Proposed Action does not follow Alternative #2’s reliance on fluvial geomorphic characteristics, Alternative #3’s tiered approach, or Alternative #4’s reliance on the CWA definitions.
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2.5.5.2

Baseline Data Collection and Analysis.

This Element under Alternative #5 is the same as that under Alternative #2, except that Alternative #5 requires sampling over a 12 month period, while Alternative #2 would require sampling over a 24 month period. Additionally, Alternative #5 provides for collection of samples only from intermittent and perennial streams, while Alternative #2 would require collection of samples from all streams. This Alternative #5 differs from the No Action Alternative by establishing minimum water sample data collection intervals, expanding the suite of chemicals subject to analysis, and requiring documentation of biological conditions, sediment load, meteorological data, stream form and function, and aquatic organisms. Alternatives #3 and #4 include requirements for some, but not all, components or deference to the regulatory authority to set standards. 2.5.5.3 Definition of Material Damage to the Hydrologic Balance.

Under Alternative #5, material damage would be defined as a measurable adverse impact on water quality and quantity resulting in degraded biological conditions in the intermittent and perennial stream network within the watershed. The CWA allows states to designate uses of their waters based on the quality of the resource. Material damage would occur when the mining operation has affected the quality or quantity of the water so that the water body could no longer be used for its designated use. This Element under Alternative #5 is similar to that under Alternative #2 in that it looks at the adverse impacts on water quality, water quantity, and designated uses. It does not limit consideration of impacts only to those that are unabatable, as under Alternative #3, or create a rebuttable presumption based on stream miles affected, as under Alternative #4. 2.5.5.4 Activities In or Near Streams.

Alternative #5 would prohibit mining activities in intermittent and perennial streams and within 100 feet of intermittent and perennial streams, but would allow excess spoil fills and other mining activities to occur under certain circumstances. In order for mining activities to be permitted, the applicant would have to show the regulatory authority that the proposed mining activity would not limit the pre-mining uses or have an adverse effect on the pre-mining ecological functions of the intermittent and perennial stream. This means, in part, that mining operations would ensure that intermittent and perennial streams continue to have necessary amounts of base flow to remain as intermittent and perennial streams. The Applicant would also have to show that the mining activity would not significantly reduce biological conditions in the intermittent and perennial stream or result in material damage to the hydrologic balance outside the permit area. Alternative #5 also addresses requirements to obtain approval to construct an excess spoil fill or coal mine waste disposal facility in or near an intermittent or perennial stream. To do this, the applicant must demonstrate that there is no reasonable alternative to constructing the facility in or near an intermittent and perennial stream after considering all alternatives. If these conditions are met, a surface runoff management plan must be developed and the establishment of a 300foot forested (or other native species) buffer zone for intermittent and perennial streams on and off the permit area must be developed as part of the reclamation plan.
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Like the No Action Alternative and Alternatives #3 and #4, Alternative #5 allows limited mining activity within 100 feet of streams, but only under limited conditions and with a showing of continued form and function as intermittent or perennial streams. Alternative #5 sets aside Alternative #2’s ban on activities within 100 feet of a stream. 2.5.5.5 Mining Through Streams.

Under Alternative #5, mining through intermittent and perennial streams would be prohibited unless the restoration of stream form and function could be demonstrated. This alternative would include expanded fish and wildlife protection and enhancement requirements for all operations and would require bonding for stream restoration. Alternative #5 allows mining through streams if form and function can be restored. It does not rely on CWA permitting standards under Alternative #3 and does not accept the impaired condition of the stream under Alternative #4 as the standard for measuring form and function. Alternative #5 sets aside Alternative #2’s ban on activities within 100 feet of a stream. 2.5.5.6 Monitoring During Mining and Reclamation.

Alternative #5 adopts the same standards for monitoring under Alternative #2, except that it would not require monitoring to continue until the permittee demonstrated restoration of the stream community. As in the Baseline Data and Analysis element, Alternative #5 expands on the No Action Alternative by expanding the suite of chemicals subject to analysis and requiring documentation of biological conditions. Monitoring cannot be waived by the regulatory authority and would continue until no adverse trends had been detected. Alternative #5 would monitor for a broader range of chemicals than Alternative #3, and would not limit monitoring to material damage parameters as under Alternative #4. 2.5.5.7 Corrective Action Thresholds.

Under Alternative #5, the regulatory authority would set Corrective Action Thresholds that would indicate, based on monitoring, the degree of degradation in the environment that would trigger corrective actions. A corrective action plan would be developed either on a programmatic or permit specific basis. A quarterly review of monitoring data would be required to determine whether material damage thresholds are being approached. Unlike the No Action Alternative, Alternative #5 sets Corrective Action Thresholds. It differs from Alternative #2’s all encompassing, watershed approach and assesses impacts based on the mining operations or activities within the control of a particular mining operator as in Alternative #3. Alternative #5 is more refined than Alternative #4’s regional approach. 2.5.5.8 Surface Configuration and Fills.

Alternative #5 would place a greater emphasis on minimizing the amount of excess spoil disposed of in valley fills and add requirements regulating the placement of excess spoil and in restoring pre-mining topography. The specific requirements are the same as those identified under Alternative #3, except that Alternative #5 would not define AOC to include the restoration of landforms including slope, aspect and elevation (e.g. +/- 15% or "50-foot rule"). In addition,
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tolerances for AOC configuration would be defined to allow AOC to be met in certain circumstances where the pre-mining elevations would be exceeded. States would be required to develop fill optimization policies consistent with the requirements above that take into account each state’s unique topographic and site specific characteristics. Unlike Alternative #2’s ban on placement of fills in streams, Alternative #5 (like the No Action Alternative and Alternatives #3 and #4) allows excess spoils to be placed in streams under limited circumstances. Although not specifically mentioned in the No Action Alternative, construction techniques, landforming principles, and topographic considerations would guide surface configuration under Alternative #3, #4, and #5. 2.5.5.9 AOC Exceptions.

This Element under Alternative #5 is the same as that under Alternative #3, except that it does not require a specific determination that PMLU are achievable and feasible. Like the No Action Alternative, Alternative #5 allows AOC exceptions, but it imposes additional requirements and criteria to ensure protection of streams, aquatic ecology, and biologic communities. In this regard, it differs substantially from Alternative #2’s prohibition of all AOC exceptions. Alternative #5 is similar to Alternative #3, but does not include the financial assurance requirement for PMLU. Alternative #5 does not adopt Alternative #4’s deference to regulatory authorities based on regional regulations and conditions. 2.5.5.10 Revegetation and Topsoil Management. This Element under Alternative #5 is the same as that under Alternative #3, except Alternative #5 does not require reforestation of areas that had been forested in the five years before the permit application. Alternative #5 expands Alternative #2’s reforestation requirement to include revegetation requirements that emphasize native species and original organic material. Alternative #3 is the same as Alternative #5 but would also takes into account the forested nature of the area during the five years preceding the mining permit application. Alternative #4 would emphasize revegetation with reclaimed desired plant communities. 2.5.5.11 Fish and Wildlife Protection and Enhancement. This Element under Alternative #5 is the same as that under Alternative #2, except that ephemeral streams would not be included. Enhancement activities, as described in and included as conditions of the permit, must be within the same watershed and on the permitted area and would not extend beyond the watershed or permit areas, as allowed under Alternative #3. Alternative #5 also does not adopt Alternative #4 reliance on the presence of state or federal listed species as a trigger for enhancement requirements.

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Chapter 2 – Description of the Proposed Action and Alternatives Table 2-1. Full-Suite Alternatives
Alternatives Stream Definition Baseline Data and Analysis Material Damage Definition
Current regulations do not define material damage. Rather, each regulatory authority is to develop criteria for material damage to the hydrologic balance outside the permit area. t OSM considers compliance with waterquality standards and effluent limitations as the only fixed criterion.

Activities In or Mining Through Near Streams Streams
A prohibition on mining activities within 100 feet of streams, unless a disturbance is unavoidable or involves placement of a fill in the stream A requirement that all stream diversions and restored stream channels must use natural channel design techniques to restore or approximate pre-mining stream channel characteristics

Monitoring During Mining and Reclamation
Monitoring of surface and ground waters for a limited suite of parameters that does not include a biological component; quarterly basis, but can be waived by the regulatory authority

Corrective Action Thresholds
Current regulations do require specific Corrective Action Thresholds, but require only that the permittee take action to correct noncompliance with permit conditions

Surface Configuration and Fills
Current regulations do not specifically address landforming principles, but rather require that disturbed areas be backfilled and restored to AOC, with certain exceptions. Excess spoil should be minimized, with the maximum amount returned to the mined-out area. Placement of excess spoil and coal mine waste in intermittent and perennial streams must be avoided if possible or a range of alternatives identified to minimize impacts to fish, wildlife, and related environmental values

AOC Exceptions
Current regulations allow AOC exceptions for mountaintop removal operations, subject to several requirements including no damage to natural water courses. AOC exceptions are also allowed for steep-slope mining operations provided the watershed will be improved to pre-mining conditions or conditions that would have existed had the areas been restored to AOC

Revegetation and Topsoil Management
Current regulations require revegetation in accordance with pre-mining land use or an approved PMLU

Fish and Wildlife Protection and Enhancement
Under current regulations, the mine operator must minimize disturbances and adverse impacts on fish, wildlife, and related environmental values, particularly habitats of unusually high value for fish and wildlife. The mining operator must avoid disturbances, restore, or replace wetlands, riparian vegetation along rivers, streams, ponds, and lakes, Enhancement of all required if practicable. Mining activities cannot jeopardize endangered or threatened species, or destroy or adversely modify designated critical habitat. Where fish and wildlife habitat is the PMLU, select plant material based on value to the expected fish and wildlife

1
No Action

The current hydrologic- The current collection centric approach of data on a limited suite of chemical and geologic data related to groundwater and surface water sources•

2 3 4 5
Proposed Action

Based on fluvial geomorphic characteristics

Sampling over a 24 month period for a full suite of chemicals; continuous flow measurements; and documentation of sediment, meteorology, stream form and function, and aquatic organisms from all streams

Defining “material damage” as any impairment of a physical, chemical, or biological function of any stream (including ephemeral streams)

An absolute prohibition A prohibition on all fill in or of activities within 100 within 100 feet of all streams feet of all streams, including ephemeral streams

Monitoring of surface and ground waters for a full suite of parameters, consistent with that collected during baseline sampling; quarterly basis until restoration of the stream community is demonstrated, with review midway through permit period and during renewal; no waiver allowed prior to bond release; biological monitoring would comply with CWA protocols, assessed annually and continued until no adverse trends are detected for six months prior to bond release Similar to Alternative 2, except that the suite of parameters is slightly more limited; frequency of monitoring would be set by the regulatory authority; and monitoring would not have to continue until restoration of the stream community had been demonstrated

Ban all excess fill placement in all Ban on all variances from returning the Corrective Action Thresholds would be set based on the impacts streams, including ephemeral streams mined areas to AOC of all human activity in a watershed, regardless of whether the impacts are caused by mining operations or are within the mining operator’s control; data would be reviewed quarterly

Reforestation of forest communities to the level of mature trees; establishes a bonding requirements that are triggered when deciduous hardwood are not reestablished

OSM would establish additional requirements for the enhancement of fish, wildlife, and related environmental values when mining activities result in impact to any stream, including ephemeral streams. Enhancement activities would be included in the permit and would be required in the same watershed or on the permitted area

A tiered approach based on hydrologic and biologic considerations

Sampling over a 12 month period for a similar suite of chemicals with comparison to a reference stream

Defining “material damage” as an unabatable impairment of a stream

Sampling over a 24 month period for a full suite of chemicals; continuous flow measurements; and documentation of sediment, meteorology, stream form and function, and aquatic organisms

Allowance of mining activities near or through streams if CWA standards can be met

The regulatory authority would establish interim Corrective Action Thresholds to identify trends before material damage is reached. If interim Corrective Action Thresholds are reached, the mining operator would be required to develop a programmatic or permit specific corrective action plan; data would be reviewed quarterly

Similar to the Alternative 1, except that compliance with landforming principles would be required; end dumping and wing dumping would be prohibited; AOC would include +/- 15% or the 50foot rule; and postmining elevation could exceed pre-mining elevations in order to restore topographic landforms

Allow AOC exceptions as is done currently, but place limitations on existing exceptions. For an AOC exception for mountaintop removal operations, the applicant would have to show that mining impacts with an AOC exception would be no greater than if the site was returned to AOC. For steep-slope AOC exception, the applicant would have to show the AOC exception would result in lesser impacts to aquatic ecology in the watershed than if restored to AOC. PMLU requirements would be more stringent, and the regulatory authority would have to make a determination that the PMLU are achievable and feasible and backed by financial assurances

Revegetation with native species consistent with reestablishing the climax native plant community regardless of the PMLU and reforestation of excess spoil fills; salvage original organic material; demonstration that topsoil substitutes are necessary and appropriate; reforest and minimize forest fragmentation if the area was forested before mining or within the five year period prior to mining

Similar to 2nd bullet above, except the enhancement requirements would relate to mining activities that impact intermittent and perennial streams. Enhancement activities could occur in the same watershed, on the permitted area, a different watershed, or a CWA mitigation project off the permit area

The CWA definition, “waters of the U.S.,” favored by the EPA and USACE

Collection of data consistent with CWA protocols, the Stream Protection Rule, and current regulations, as set by the various regulatory authorities

Defining “material damage” as a rebuttable presumption based on a percentage of stream miles that are or may be adversely affected

Reinstatement of the 1983 SBZ’s prohibition on activities in or within 100 feet of streams, unless the regulatory determines that such an incursion will not violate water quality regulations

Allowance of mining if the stream was impaired or impacted prior to mining activities

Similar to Alternative 2, except that monitoring would be for parameters related to material damage rather than for the full suite of chemicals, biological components, or other elements

Corrective Action Thresholds would be defined in terms of numerical water quality thresholds based on physical, chemical, and biological criteria in each region

Regulatory authorities would set fill optimization policies based on topography and other site specific issues

Adopts the concept of Reclaimed Require enhancement only if state or Regulatory authorities would set limitations on exceptions from AOC requirements based Desired Plant Community (RDPC), Federal listed species are impacted by the fill or stream impacts wherein the mining operator on regional regulations and conditions selects existing vegetation types around the mine site to represent the varied RDPC. Success of the vegetative growth would be evaluated no sooner than the end of the third growing season, and bond release could occur thereafter Same as Alternative 3, except that the regulatory would not have to make a specific determination that the PMLU are achievable and feasible. Inclusion in the permit and reclamation plan is sufficient Same as Alternative 3, except that reforestation would not be required for areas that had been forested in the five years before the permit application Same as 2nd bullet above, except that enhancement requirements would relate to mining activities that impact intermittent and perennial streams, not ephemeral streams. Enhancement activities would still occur in the same watershed or on the permitted area

An approach based on hydrologic, biologic, and physical characteristics of streams

Sampling over a 12 month period for a full suite of chemicals; continuous flow measurements; and documentation of sediment, meteorology, stream form and function, and aquatic organisms from intermittent and perennial streams

Defining “material damage” as a measurable adverse impact on water quality or quantity in an intermittent or perennial stream

A prohibition on mining activities within 100 feet of intermittent and perennial stream, with an allowance for fills under certain circumstances

Allowance of mining through intermittent or perennial streams if stream form and function can be restored

Similar to Alternative 2, except that monitoring would not have to continue until restoration of the stream community had been demonstrated

The regulatory authority would establish Corrective Action Thresholds based on monitoring data that indicate environmental degradation prior to reach material damage; data would be reviewed quarterl

Similar to the Alternative 3, except that it would not adopt the AOC 15% or 50foot rule and postmining elevations could not exceed pre-mining elevations based on restoration of premining topographic landforms. Instead, tolerances for AOC configuration would be defined to allow AOC to be met in certain circumstances where pre-mining elevations would be exceeded. Additionally, regulatory authorities would set fill optimization policies based on topography and other site specific issues

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Chapter 2 – Description of the Proposed Action and Alternatives

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2.6

PRINCIPAL ELEMENTS CONSIDERED BUT NOT FURTHER ANALYZED

As noted in Section 2.3.2, some of the Elements considered within the proposed rulemaking are primarily administrative or risk-reducing in nature. These Elements do not have an identifiable impact on the environment, and there are no discernable differences in how these Elements would be included as part of the Proposed Action or any other Full-Suite Alternative. The selected approach for each of the Elements does not depend on selection of a particular FullSuite Alternative. The Elements summarized below have been eliminated from further analysis in this EIS. Nonetheless, OSM invites the public to comment on the approaches outlined below and suggest others for consideration.

2.6.1

Performance Bonds and Release.

The objective and effects of any options associated with this Element are primarily directed at risk reduction such that the financial responsibility for environmental liabilities attaches to the mine operator rather than to the regulatory authority or the public at large. Reclamation bonds are financial instruments that pledge assets or are guarantees of a permittee’s reclamation performance. Bonds must be pledged or payable to OSM or the regulatory authority. The bonding requirements within SMCRA are intended to ensure that there are sufficient funds to cover the costs of reclaiming the permitted site in the event that the mining company goes out of business or the operator does not follow through with reclamation requirements for any other reason. In those situations, the regulatory authority would be allowed to use bond funds to reclaim the site. Bond requirements are calculated by the regulatory authority and posted by the operator before the mining permit is issued. The bond posted by the operator would be released after reclamation and other requirements have been carried out by the operator, and the reclamation effort has been deemed successful. OSM is considering a prohibition on the use of alternative bonding systems (ABS) and selfbonding to guarantee long term treatment of post-mining discharges of pollutants to receiving streams. Further, this approach would prohibit the use of ABS and self-bonding to guarantee the restoration or return of streams that have received drainage from mine sites until those streams have been properly reconstructed and their biological and chemical functions returned to what they were before mining. Self-bonding in this context means a coal company ensuring performance by means of its own financial strength. In other words, it would financially guarantee its own performance. This approach would further provide that a coal operator would not receive a release of its reclamation bond if that mine site had a water discharge of a parameter of concern that required long-term treatment. The prohibition on release of the bonds would last until the coal operator had posted a separate financial guarantee in the form of a trust fund or annuity to fund any needed long-term treatment. The face amount of the bonds to be posted by a coal company must expressly include the predicted cost of restoring stream form and function (as described above) with no release of any part of that surety bond until form and function are restored. Finally, a coal operator must demonstrate that no adverse trends are detected before a Phase III (or a final) bond release may be approved. The only exception to this
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requirement of demonstrating that no adverse trends are detected would be for those areas of the United States considered arid or semiarid. In addition, OSM is considering these variations on the above structure:  A verification of known material damage to the hydrologic balance outside the permit area would be required before a Phase III bond release;  At each phase of bond release, the regulatory authority would be required to evaluate monitoring data to verify that no material damage to the hydrologic balance outside the permit area has occurred or is likely to occur;  The regulatory authority would be required to establish criteria to determine what successful establishment of revegetation means for purposes of Phase II bond release.  Grandfather in existing ABS;  Restrictions on the types of financial instruments in which a trust fund or annuity could invest.

2.6.2

Financial Assurance for Long Term Discharges of Parameters of concern

The objective and effects of any options associated with this Element are also primarily directed at risk reduction such that the financial responsibility for environmental liabilities attaches to the mine operator rather than to the regulatory authority or the public at large. Although coal mining operations are required to be designed to prevent the long term discharge of parameters of concern, unanticipated discharges occasionally arise during the conduct of the operation. Surety financial instruments (i.e., bonding) are problematic to both the regulatory authority and operator because of inherent limitations when obtaining payment under the instruments in bond forfeiture. In order to remedy this situation, OSM is considering regulatory revisions to address the applicability and enforceability of the 1997 OSM policy statement commonly known as the “Acid Mine Drainage Policy” or AMD Policy. The revisions would adopt by regulation a requirement to post financial assurance (e.g., trust funds) adequate to treat any long term pollutant discharge that develops or continues after mining and reclamation are otherwise completed. In conjunction with these revisions, OSM is considering these variations:     The regulations would make clear that this requirement extends to all discharges of parameters of concern, not just AMD, and would include total dissolved solids and those for which no numerical effluent limitations may currently exist, such as selenium; Alternatively, those provisions would apply to those parameters of concern with EPA Best Available Technology (BAT) standards; Require that only trust funds and annuities be used to guarantee long term treatment of postmining discharges of parameters of concern with or without EPA BAT standards; Require that the trust funds meet extensive structural and administrative requirements, but there would be no express restrictions on the type of financial instruments in which the funds may be invested; Prohibit Alternative Bonding Systems (ABS), as explained under the Performance Bonds and Bond Release section, from being used to cover this responsibility;.
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

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

Add an additional requirement establishing a preference for use of the trust funds for source abatement rather than water treatment, including abatement measures taken off the original permit area.

2.6.3

Permit Coordination

Coal mining operations that impact streams require permits from both the SMCRA regulatory authorities and Federal or state agencies that implement the Clean Water Act. While the requirements of the regulatory programs have similar goals, differences in requirements (such as processes and timeframes for permitting) may result in duplication of government efforts; delays in commencement of mining; public confusion over how to participate meaningfully in the process(es) and what requirements apply; and differences in permit requirements. The overall goal of Permit Coordination is to improve the communication between SMCRA and CWA permitting agencies in order to provide greater efficiency and effectiveness of government efforts. OSM is considering various approaches, including:  Requiring OSM to coordinate with state and federal agencies that regulate coal mining activities by creating an interagency council (OSM, USFWS, EPA, USACE, regulatory authorities) to review all mining permits; standardize data collection, management, and sharing among regulatory agencies; specify interagency review timeframes; and provide for enhanced coordination among OSM, EPA, and USACE consistent with the June 2009 MOU;  Requiring regulatory authorities to coordinate with EPA and USACE to harmonize baseline data collection and monitoring requirements to the extent consistent with each agency’s statutory authority and responsibilities;

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2.7

ALTERNATIVES CONSIDERED BUT NOT FURTHER ANALYZED

As described in Section 2.2, OSM received thousands of comments and suggestions on how to approach this rulemaking. Many comments were variations on concepts already under consideration or fairly embraced within the range of alternatives arrayed under the Principal Elements, such that the environmental impacts would be analyzed as under one of the existing Alternatives. Other comments and suggestions did not meet the NEPA threshold standard of feasibility or reasonableness, or fit within OSM’s stated Need and Purpose for this proposed action. Still other comments and suggestions were contrary to OSM’s statutory mission as reflected in SMCRA. In these instances, OSM has decided not to analyze further those comments and suggestions in this EIS. We have grouped them below by Principal Elements and explained our rationale in not taking them forward for further analysis. Nonetheless, OSM invites the public to comment on whether it was appropriate to exclude these alternatives from further consideration.

2.7.1

Stream Definition
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All alternatives considered for this element are carried forward and will be analyzed further.

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2.7.2


Baseline Data Collection and Analysis

Under this alternative, OSM would consider a robust sampling procedure to collect adequate data to characterize mining permit areas and determine whether impacts would occur to surface and ground waters. OSM would establish protocols for including cumulative impacts in the CHIA.

This language comprises a comment rather than a suggested alternative.  OSM would require maximum data collection practicable in order to fully describe the watershed over a realistic hydrologic cycle. Sampling in Alabama would likely extend over 36 to 48 months with sampling every 48 to 72 hours over the whole period. Sampling would be conducted upstream and downstream; identify biological communities and identify state and federal threatened and endangered species.

Many elements of this comment are integrated into the alternatives under consideration. Sampling locations for 3-4 years every 3 days would be cost prohibitive to applicants and provide more data than is necessary to document baseline conditions.  OSM would establish and enforce national technical standards that must be met for persons involved in data collection and review.

OSM is not in a position to establish or enforce national licensing standards for data collection. Regulatory authorities should ensure data collection and analysis protocols are followed.  An alternative considered provided that where proposed operations would introduce contaminants or potential sources of contamination to the permit area that are unrelated to geologic materials at the site—for example, explosives, fuels, coal combustion wastes, or coal processing chemicals—those pollutants also would be treated as “of concern,” and the permit applicant would provide baseline information on each contaminant, including background concentrations, whenever that substance or contaminant naturally occurs in, or has previously been introduced into, the surrounding environment.

This alternative is not carried forward as it is outside the Need and Purpose outlined in Chapter 1.

2.7.3


Definition of Material Damage to the Hydrologic Balance.

Under this alternative, background conditions of currently damaged streams would not be considered to represent material damage to the hydrologic balance.

This alternative is not carried forward because it is inconsistent with the Need and Purpose of the Proposed Action, specifically protection and rehabilitation of streams.

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2.7.4


Activities In or Near Streams

An alternative considered is to implement the 1983 SBZ Rule because it would protect streams and states clearly that waste cannot be dumped in a stream. Any other alternatives must be as protective and fully explained in the EIS.

A variation of this comment has been incorporated into Full-Suite Alternative 5, although OSM disagrees that the 1983 SBZ categorically prohibits mining activities in or near streams.  An alternative considered is to modify the strict interpretation of the 1983 SBZ to reduce the 100 foot buffer zone to the areas including the floodplain or floodway boundary.

A variation of this comment has been incorporated into Full-Suite Alternative 5, although it does not specifically mention an exception for the floodplains or floodway boundary.  One alternative for this element would prohibit mining activities within the floodplain or floodway.

OSM does not believe that prohibiting mining activities in an entire floodplain or floodway is necessary to protect streams.

2.7.5

Mining Through Streams

All alternatives considered for this element are carried forward and will be analyzed further.

2.7.6


Monitoring During Mining and Reclamation

An alternative considered would require continuous sampling at outfall discharge points. Continued sampling would be required until it is demonstrated that there is no longer a potential for material damage, or ten years, whichever is longer.

Full-Suite Alternative #2 provides for continuous flow measurement, but does not require continuous sampling as this would require excessive testing, and an unnecessary burden and delay on the coal mining industry.  Compliance points are typically located at the permit boundary. IDNR questions whether access to areas outside the permit boundary will have the requisite right of entry for either the permittee or SRA. (IDNR).

This language comprises a comment rather than a suggested alternative and should therefore be addressed in Chapter 4.

2.7.7

Corrective Action Thresholds

All alternatives considered for this element are carried forward and will be analyzed further.

For Official Use Only - Deliberative Process Material
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2.7.8

Surface Configuration and Fills

All alternatives considered for this element are carried forward and will be analyzed further.

2.7.9

Approximate Original Contour (AOC) Exceptions

All alternatives considered for this element are carried forward and will be analyzed further.

2.7.10


Revegetation and Topsoil Management

An alternative considered is to require that forest fragmentation in Appalachia is minimized.

Minimization of forest fragmentation is included in the Alternatives being considered, but is not limited to the Appalachian region. Any proposal for regional application of a standard was rejected since it did not comply with the Need and Purpose of the Proposed Action, which was to create a rule that was national in scope.

2.7.11


Permit Coordination

An alternative that was considered would give individual states the permitting responsibility because the state is legally accountable for the permit compliance.

Authorized states already have permitting responsibilities, and no changes to the regulations are being proposed that would change that.

2.7.12

Financial Assurance for Long Term Discharges of Pollutants

All alternatives considered for this element are carried forward and will be analyzed further.

2.7.13

Performance Bonds and Bond Release

All alternatives considered for this element are carried forward and will be analyzed further.

2.7.14

Fish and Wildlife Protection and Enhancement

All alternatives considered for this element are carried forward and will be analyzed further.

For Official Use Only - Deliberative Process Material
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Acronyms

Appendix A Acronyms
ACA ACW AKCA AMA AMD ANPR AOC AP ARA AWF BHP Boucher BWRk CEQ CHIA CMA CWA DMC DEIS EIS FACES-FL FC FCC FEIS GBCC HEDC HACC Hodges IAP ICA ICC ICG ILM-FL IMC Alabama Coal Association Alpha Coal West, Inc. Alaska Coal Association Alaska Miners Association Acid Mine Drainage Advance Notice of Proposed Rulemaking Approximate Original Contour Associated Press Alabama Rivers Alliance Appalachian Wildlife Federation bhpbilliton Congressman Rick Boucher, 9th District, Virginia Black Warrior Riverkeeper Council on Environmental Quality Cumulative Hydrologic Impact Analyses Colorado Mining Association Clean Water Act Dana Mining Company Draft Environmental Impact Statement Environmental Impact Statement Federation for American Coal, Energy, and Security (FACES) Form Letter City of Fairfield, Fairfield, TX Fairfield Chamber of Commerce, Fairfield, TX Final Environmental Impact Statement Greater Bluefield Chamber of Commerce, Bluefield, WV Henderson Economic Development Corporation, Henderson, TX Henderson Area Chamber of Commerce, Henderson, TX County Judge, Henderson, TX Interagency Action Plan Illinois Coal Association Indiana Coal Council International Coal Group, Inc. I Love Mountains.org Form Letter Interwest Mining Company IDNR KCA KDOW KFTC KRC KWA LC LUM MEC MC MC-FL MOU NMA NMA-FL NOI NPR OCA OSM PAC PC PCA PMLU PRBRC RISD SBZ SC-FL#1 SC-FL#2 SC-WV SELC SMCRA SRA TDEC TMA TMRA TWF Indiana Department of Natural Resources Kentucky Coal Association Kentucky Department of Water Kentuckians for the Commonwealth Kentucky Resources Council Kentucky Waterways Alliance Limestone County, TX Luminant Murray Energy Corporation Mincorp, Inc. (Severstal) AMFIRE Mining Company et. al Form Letter Memorandum of Understanding National Mining Association National Mining Association Form Letter Notice of Intent National Public Radio Ohio Coal Association Office of Surface Mining Reclamation and Enforcement Pennsylvania Anthracite Council Private Citizens Pennsylvania Coal Association Postmining Land Use Powder River Basin Resource Council Rockdale Independent School District Stream Buffer Zone Sierra Club Sponsored Form Letter #1 Sierra Club Sponsored Form Letter #2 Sierra Club – West Virginia Chapter Southern Environmental Law Center Surface Mining Control and Reclamation Act State Regulatory Authority Tennessee Department of Environment and Conservation Tennessee Mining Association Texas Mining and Reclamation Association Tennessee Wildlife Federation

A-1

Acronyms
USACE UCM USFWS VMA WBR WMA WVCA U.S. Army Corps of Engineers Usibelli Coal Mine U.S. Fish and Wildlife Service Virginia Mining Association Western Business Roundtable Wyoming Mining Association West Virginia Coal Association

A-2