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