Division of Mining & Reclamation

1. Division of Mining & Reclamation Thomas Clarke Director

2. New Regulatory Direction • June 11, 2009 MOU • EPA • Army Corps of Engineers • Interior Department

3. 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

4. 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

5. June 11 MOU – Longer Term Actions • Stream Buffer Zone Rulemaking • AOC Rulemaking or Guidance

6. Actions Under the June 11 MOU • November, 2009 – OSM announces • More effective oversight initiatives • Stream Protection Measures rulemaking

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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?

14. 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

15. 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

16. 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

17. 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)

18. 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

19. Stream Protection Concepts • Definition of AOC • +/- 15% of pre-mining elevation • Digital terrain model of pre-mining landforms • Documentation

20. 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)

21. 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

22. 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