Division of Mining & Reclamation

Thomas Clarke Director

New Regulatory Direction

 June 11, 2009 MOU  EPA  Army Corps of Engineers  Interior Department

EPA & NPDES Permit Review

 AL Translators  Rationale Pages  Narrative Standard Permit Guidance   Precipitation Induced Outlets Substantially Complete Outlets  Aquatic Ecosystem Protection Plans (AEPPs)  Permitting Efficiency   Internal Training/Communication Training for Applicants

June 11 MOU - DOI Short Term Actions

 Clarify the Stream Buffer Zone Rule  Re-Evaluate/Strengthen Oversight of State programs  Take action to be able to correct defects in state-issued permits

June 11 MOU – Longer Term Actions

 Stream Buffer Zone Rulemaking  AOC Rulemaking or Guidance

Actions Under the June 11 MOU

 November, 2009 – OSM announces  More effective oversight initiatives  Stream Protection Measures rulemaking

More Effective Oversight/Permit Defects  11/15/2010 Director’s Memo  11/16/2010 OK Informal Review Decision  Finalized 1/31/2011  REG 8  REG 23  INE 35

INE 35 – Permit Defects

 Ten Day Notice Policy – 30 CFR 842.11

 TDNs are issued where there is reason to believe a violation exists  A Permit Defect is now considered to be a type of violation – can be any  Procedural deficiency in a state-issued permit  Substantive deficiency in a state-issued permit

INE 35 – Permit Defects

 Examples of permit defects include:   Failure to follow procedural requirements Failure to make any required written finding  Lack of information, tests, or plans required by the state program to support a finding or action taken  Approval of designs, mining, or reclamation practices that are inconsistent with the state program  Error in the analysis of technical or other information or plans

INE 35 – Permit Defects

 TDN Process  Citizens’ complaint or other information gives OSM reason to believe a violation exists   State responds within 10 days, unless extended If OSM judges State response to be inappropriate, OSM is to conduct a federal inspection  A federal violation can be issued if a “violation” is found in the federal inspection

INE 35 – Permit Defects

 What previous practices are changed?

 A violation is something on the ground, performance standards, permit conditions, etc.

 Complaints to OSM are not another way to challenge a permit decision, instead of using State appeals processes  OSM will take oversight of individual permit decisions, as opposed to broader programatic permitting issues

INE 35 – Permit Defects

 Potential Ramifications  A problem in State permit files results in a federal violation for a mine operator, with direction to submit a permit revision as a remedial measure  OSM is willing to use Part 733 program takeover process on an individual permit specific basis   No more exclusive state regulatory jurisdiction “Concurrent” federal jurisdiction over permitting  TDN process and federal second-guessing can be invoked at the same time as a State permit appeal

INE 35 – Permit Defects

    No Deadline for OSM to Invoke the TDN and 733 Processes After Permit Issuance OSM Could Use this in the Same Manner as EPA Uses the Section 404(c) Veto For CWA Section 404 Permits Does OSM have its Eyes on the Spruce Surface Mining Permit?

After OSM Finishes the New Stream Protection Rule, Will Every Permit Have “Defects” to be Remedied Through TDNs and Part 733?

Stream Protection Process - EIS

 No opportunity to comment – Ch. 1  Limited time to comment Ch. 2 – 4  Comments not heeded  Quality criticized by all  State cooperating agencies disenchanted  Draft rules have already been written  Preferred alternative causes severe impacts in Appalachia, may be contrary to SMCRA

Stream Protection Concepts

 Material Damage   A federal definition Will include biological aspects  Quantification methods to be used for MD/CHIA assessments   Corrective action thresholds to identify trends and require action before MD reached Codification of OSM AMD Policy

Stream Protection Concepts

 Mining Through Streams  Demonstration that mining through streams can not be avoided   Restoration of both form and function Bonding of stream restoration projects   Sequencing of mine throughs - form/function must be restored before next mine through occurs Public comment re-opened if restoration fails and operator desires to continue

Stream Protection Concepts

 Stream Buffer Zone  Mining prohibited within 100 ft of streams unless applicant demonstrates activity will not preclude stream use and cause MD   Fill placement: Comparable to 2008 Rule Enhancement measures for fish/wildlife habitat  Minor structures exempted (culverts, crossings, etc)

Stream Protection Concepts

 Prohibition of any activity that would  Alter the character of a stream with a biological community by dewatering it  Cause adverse impacts to the stream’s biological community  Operators must ensure base flow and recharge capacity to keep perennial segments perennial and intermittent segments intermittent

Stream Protection Concepts

 Definition of AOC   +/- 15% of pre-mining elevation Digital terrain model of pre-mining landforms  Documentation

Stream Protection Concepts

 Excess Spoil - Fill minimization plans to include iterative calculations  max volume returned to mined area    min volume in fill raise backfill above original elevation while maintaining stability safety factors buried stream length minimized  No change in peak flow demonstration (SWROA)

Stream Protection Concepts

 Excess Spoil  Construction in compacted lifts; i.e. durable rock fills eliminated   Flat decks no longer allowed Use BTCAs to keep water out of fill and out of ponds  Construction of aquatards within fill or backfill

Stream Protection Concepts

 Reforestation  If forest is pre-mining land use, 80% must be a forestry-related postmining land use   Incorporate principles of FRA Excess Spoil Fills will be forested  Salvage and redistribute duff, other organic litter, and vegetative material