2010-8303. Guidance on Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

The Environmental Protection Agency (EPA) is soliciting public comment on the issues addressed in two EPA guidance memoranda released on April 1, 2010, titled Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order. Effective immediately, these memoranda—one labeled “Summary Guidance” and one labeled “Detailed Guidance”—seek to clarify EPA's roles and expectations, in coordinating with its Federal and state partners, with regard to environmental review of Appalachian surface coal mining operations under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order (E.O. 12898).

DATES:

Comments must be received on or before December 1, 2010.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2010-0315, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for reviewing comments.
• E-mail: [e-mail].
• Mail: U.S. Environmental Protection Agency; EPA Docket Center (EPA/DC) Water Docket, MC 2822T; 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
• On Site: EPA Docket Center, 1301 Constitution Ave., NW., EPA West, Room 3334, Washington, DC 20460.

For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Office of Water Docket/EPA/DC, 1301 Constitution Ave., NW., EPA West, Room 3334, Washington, DC 20460. This Docket Facility is open from 8:30 a.m. until 4:30 p.m., EST, Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the Office of Water is [phone].

FOR FURTHER INFORMATION CONTACT:

Timothy Landers, U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460; [phone]; [e-mail].

SUPPLEMENTARY INFORMATION:

EPA's draft guidance on Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order clarifies how EPA is applying its existing legal authorities in its review of Appalachian surface coal mining operations. The guidance memoranda are available at http://www.epa.gov/​owow/​wetlands/​guidance/​mining.html. As such, these memoranda do not represent a regulation, and are not subject to the formal provisions of the Administrative Procedure Act. However, EPA recognizes the importance of this guidance to its Federal and state partners, to the regulated community, and to the public, and therefore seeks public comment on the issues addressed in the two documents and on the guidance's implementation through this Federal Register notice. This public comment opportunity will be available until December 1, 2010.

EPA has committed to determining whether any changes are required to the interim guidance by April 1, 2011 and issuing revised final guidance if necessary. EPA's evaluation of comments on this guidance will also be informed by the result of the SAB reviews of EPA's draft science reports, as discussed further below.

EPA is committed to ensuring that its decisions are based on the best available science. To further this commitment, the guidance incorporates independently reviewed scientific information on the impacts of Appalachian surface coal mining on the aquatic environment. In addition to the existing peer-reviewed science outlined in the memoranda, EPA also references two draft reports produced by EPA's Office of Research and Development. The first draft report, The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the Central Appalachian Coalfields, assesses the state of the science on the environmental impacts of mountaintop mines and valley fills on streams in the Central Appalachian Coalfields. The second draft report, A Field-based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams, adapts the standard U.S. EPA methodology for deriving ambient water quality criteria to field data, and derives benchmarks for dissolved salts as measured by conductivity in Central Appalachian streams using data from West Virginia and Kentucky. These scientific reports, publicly released on April 1 and described in a separate Federal Register notice also published today, are available for public comment for 60 days. The drafts can be accessed at http://www.epa.gov/​ncea and are available for public comment through EPA Docket ID No. EPA-HQ-ORD-2009-0934. As outlined in that notice, comments provided on the two draft scientific reports will be forwarded to an expert panel convened by EPA's Science Advisory Board (SAB) in advance of the SAB's independent peer review of these reports during the summer of 2010.

For purposes of this Federal Register notice, EPA in particular seeks comment on the following elements of its guidance memoranda, as well as on the implementation of this guidance between now and December 1, 2010:

• Whether the guidance achieves its objective of providing further clarity and improved protection for the environment and human health through EPA's review of draft or proposed permits under Section 402 of the Clean Water Act and permit applications under Section 404 of the Clean Water Act for Appalachian surface coal mining operations.
• Whether additional scientific information is available to inform EPA's authorities under the Clean Water Act, National Environmental Policy Act, and Environmental Justice Executive Order (E.O. 12898).
• Whether EPA's implementation of its guidance in reviewing state Section 402 permits and permit applications under Section 404 of the Clean Water Act has been effective in achieving the goals of providing additional clarity and enhanced environmental and human health protection.
• Whether there are additional examples of best practices in terms of mine design, site and materials management, or water treatment systems, consistent with the objectives of improved environmental protection, greater clarity, and the best-available science, that should be considered.
• Whether additional relevant and appropriate data, studies, knowledge of studies, or informal observations should be considered as part of EPA's application of best-available science and its authorities under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order (E.O. 12898), to Appalachian surface coal mining.

The record will remain open for comment on the guidance until December 1, 2010. All public comments will be fully considered along with the results of the SAB review in reaching a decision on whether changes are required to the current guidance by April 1, 2011.

Dated: April 6, 2010.

Peter S. Silva,

Assistant Administrator for Water.

Dated: April 6, 2010.

Cynthia Giles,

Assistant Administrator for Enforcement and Compliance Assurance.