Permanent program and abandoned mine land reclamation plan submissions: Tennessee,
[Federal Register: March 2, 2007 (Volume 72, Number 41)]
[Rules and Regulations]
[Page 9615-9637]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02mr07-11]
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Part II
Department of the Interior
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 942
Tennessee Federal Regulatory Program; Final Rule
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 942
RIN 1029-AC50
Tennessee Federal Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement (OSM), are finalizing changes to the Tennessee Federal regulatory program regarding performance bonds and revegetation success standards. These revisions provide a mechanism to use our statutory authority to accept financial assurances in the form of trust funds and annuities in Tennessee to fund the treatment of long-term postmining pollutional discharges from surface coal mining operations and thus satisfy performance bond obligations for treatment of those discharges. Our previous regulations also did not facilitate the growth of forests, and we are taking a number of steps to ensure the reestablishment of high quality hardwood forests where the postmining land uses are related to forestry. To minimize competition with woody plants and support healthier tree growth, we are removing the 80% ground cover revegetation success standard for mine sites with postmining land uses of wildlife habitat, undeveloped land, recreation, or forestry; limiting the herbaceous ground cover success standards to those necessary to control erosion and support the forestry-related postmining land use; requiring seed mixes and seeding rates of herbaceous vegetation for those land uses to be specified in the permit; and removing the limitations on the amount of bare areas that can remain after reclamation of mine sites with those land uses.
EFFECTIVE DATE: April 2, 2007.
FOR FURTHER INFORMATION CONTACT: Tim Dieringer, Field Office Director, U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement, Knoxville Field Office, 710 Locust Street, 2nd Floor, Knoxville, Tennessee 37902; Telephone: 865-545-4103; E-mail: tdieringer@osmre.gov.
SUPPLEMENTARY INFORMATION: I. Background on the Tennessee Federal Program II. Background on This Rulemaking III. How and why are we revising the Tennessee Federal program regulations? IV. How did we respond to the comments that we received on the proposed rule? V. Procedural Determinations
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Background on the Tennessee Federal Program
Section 503(a) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act), 30 U.S.C. 1253, permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders under certain conditions. The Secretary of the Interior conditionally approved the Tennessee program on August 10, 1982. However, because of actions that we took pursuant to 30 CFR Part 733 to correct shortcomings in the administration and implementation of the approved Tennessee program on May 16, 1984, the State repealed most of the Tennessee Coal Surface Mining Law of 1980, Tennessee Code Annotated 59- 8-301-59-8-339, and its implementing regulations, effective October 1, 1984. As a result, on October 1, 1984, we withdrew approval of the Tennessee permanent regulatory program and promulgated a Federal program for Tennessee under the authority of section 504(a) of the Act, 30 U.S.C. 1254(a). This program appears in 30 CFR Part 942, where it replaced the disapproved State program. With the promulgation of a Federal regulatory program, we became the regulatory authority under SMCRA in Tennessee. You can find background information on the Tennessee Federal program, including our findings and the disposition of comments, in the October 1, 1984, Federal Register. 49 FR 38874.
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Background on This Rulemaking
We published the proposed rule underlying this final rule on April 6, 2006. 71 FR 17682. On May 3, 2006, we extended the public comment period until June 30, 2006, and provided notice of a requested public hearing that was held on June 1, 2006. 71 FR 25992.
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How and why are we revising the Tennessee Federal program regulations?
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Section 942.800: Bond and Insurance Requirements for Surface Coal Mining and Reclamation Operations
On April 6, 2006, we published proposed revisions to the Tennessee Federal program that provided a mechanism to use our authority to implement trust funds and annuities for funding treatment of long-term postmining pollutional discharges. 71 FR 17682. Those revisions, which we are adopting in slightly revised form in this final rule, reflect our efforts to provide a system suitable for the long-term funding of the treatment of the postmining pollutional discharges that exist in Tennessee and any unanticipated discharges that may occur in the future.
We are adopting new Sec. 942.800(c), which we proposed as Sec. 942.800(b)(4), to provide us with a mechanism to use our statutory authority to accept trust funds and annuities as an alternative system as provided for in SMCRA at Section 509(c), 30 U.S.C. 1259(c), by which permittees may satisfy the requirement to provide a performance bond to cover the treatment of postmining pollutional discharges. Final Sec. 942.800(c) reads as follows:
(c) Special consideration for sites with long-term postmining pollutional discharges. With the approval of the Office, the permittee may establish a trust fund, annuity or both to guarantee treatment of long-term postmining pollutional discharges in lieu of posting one of the bond forms listed in Sec. 800.12 of this chapter for that purpose. The trust fund or annuity will be subject to the following conditions:
(1) The Office will determine the amount of the trust fund or annuity, which must be adequate to meet all anticipated treatment needs, including both capital and operational expenses.
(2) The trust fund or annuity must be in a form approved by the Office and contain all terms and conditions required by the Office.
(3) The trust fund or annuity must provide that the United States or the State of Tennessee is irrevocably established as the beneficiary of the trust fund or of the proceeds from the annuity.
(4) The Office will specify the investment objectives of the trust fund or annuity.
(5) Termination of the trust fund or annuity may occur only as specified by the Office upon a determination that no further treatment or other reclamation measures are necessary, that a replacement bond or another financial instrument has been posted, or that the administration of the trust fund or annuity in accordance with its purpose requires termination.
(6) Release of money from the trust fund or annuity may be made only upon written authorization of the Office or according to a schedule established in the agreement accompanying the trust fund or annuity.
(7) A financial institution or company serving as a trustee or issuing an annuity must be one of the following:
(i) A bank or trust company chartered by the Tennessee Department of Financial Institutions;
(ii) A national bank chartered by the Office of the Comptroller of the Currency;
(iii) An operating subsidiary of a national bank chartered by the Office of the Comptroller of the Currency;
(iv) An insurance company licensed or authorized to do business in Tennessee by the Tennessee Department of Commerce and Insurance or designated by the Commissioner of that Department as an eligible surplus lines insurer; or
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(v) Any other financial institution or company with trust powers and with offices located in Tennessee, provided that the institution's or company's activities are examined or regulated by a State or Federal agency.
(8) Trust funds and annuities, as described in this paragraph, must be established in a manner that guarantees that sufficient moneys will be available to pay for treatment of postmining pollutional discharges (including maintenance, renovation, and replacement of treatment and support facilities as needed), the reclamation of the sites upon which treatment facilities are located and areas used in support of those facilities.
(9) When a trust fund or annuity is in place and fully funded, the Office may approve release under Sec. 800.40(c)(3) of this chapter of conventional bonds posted for a permit or permit increment, provided that, apart from the pollutional discharge and associated treatment facilities, the area fully meets all applicable reclamation requirements and the trust fund or annuity is sufficient for treatment of pollutional discharges and reclamation of all areas involved in such treatment. The portion of the permit required for postmining water treatment must remain bonded. However, the trust fund or annuity may serve as that bond.
SMCRA, its implementing regulations, and our policy require that the performance bond be sufficient to cover treatment of those discharges in the event that the permittee fails to do so. Section 509(a) of SMCRA, 30 U.S.C. 1259(a), requires that each permittee post a performance bond conditioned upon faithful performance of all the requirements of the Act and the permit. That section of the Act also specifies that ``[t]he amount of the bond shall be sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority in the event of forfeiture * * *.'' 30 U.S.C. 1259(a). Section 509(e) of the Act provides that ``[t]he amount of the bond or deposit required and the terms of each acceptance of the applicant's bond shall be adjusted by the regulatory authority from time to time as affected land acreages are increased or decreased or where the cost of future reclamation changes.'' 30 U.S.C. 1259(e). The statutory requirements for a ``reclamation plan'' include the measures to be taken to ensure water quality. 30 U.S.C. 1258(a)(13).
Our regulations at 30 CFR Part 800 implement the requirements of section 509 of the Act, 30 U.S.C. 1259. Those regulations, first promulgated in 1979, were revised in 1983 in a manner that clearly implies that performance bonds must be adjusted when unanticipated events, such as postmining pollutional discharges, increase the cost of reclamation (in this case, treatment of the discharges).
In our discussion of determining bond amounts in the March 13, 1979, Federal Register (44 FR 15111), we noted:
The Office recognizes that the regulatory authority cannot reasonably establish the initial bond amount based upon speculative events such as the need to abate ground water pollution, since the operation must be designed initially to prevent such consequences in order to qualify for a permit. However, such unplanned consequences occasionally occur due to improper mining or reclamation, or because an important variable was not evaluated properly. When such consequences are identified prior to the release of all liability and termination of the permit in accordance with Part 807, the permittee's legal obligation to abate them necessarily adds to the cost of reclamation.
Under such circumstances, the regulatory authority would be authorized to impose additional bond liability under that permit, or to retain a larger portion of the total liability than otherwise required in response to an application for release of bond, in order to ensure adequate funding to complete the abatement work required (Sections 805.14(a) and 807.12(d)).
According to this 1979 preamble discussion, regulatory authorities have discretionary authority to increase bonds to reflect the increased costs of reclamation that result from the occurrence of unanticipated events such as postmining pollutional discharges. However, in the preamble to our 1983 revisions to the bonding rules, we indicate that increases in bond amounts under those circumstances are mandatory, not discretionary:
If at any time the cost of future reclamation under the bond changes, the regulatory authority is required to adjust the bond accordingly (Sec. 800.15(a)). Thus, the amount of the bond for any increment must at all times be sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority.
48 FR 32937, July 19, 1983.
Under 30 CFR 780.21(h) and 784.14(g), one component of the reclamation plan is a hydrologic reclamation plan. Among other things, this plan must include the provision of ``water-treatment facilities when needed.'' Consequently, the bond must be adequate to cover the cost of treating long-term pollutional discharges because treatment of those discharges is part of the reclamation plan.
We further affirmed and clarified our position on financial guarantees for long-term postmining pollutional discharges in a March 31, 1997, document entitled, ``Policy Goals and Objectives on Correcting, Preventing and Controlling Acid/Toxic Mine Drainage.'' Objective 2 under the policy goal concerning environmental protection requires that financial responsibility associated with acid mine drainage (AMD) be fully addressed. Specifically, the policy includes the following strategies:
Strategy 2.2--If, subsequent to permit issuance, monitoring identifies acid- or toxic-forming conditions which were not anticipated in the mining and operation plan, the regulatory authority should require the operator to adjust the financial assurance.
Strategy 2.3--Where inspections conducted in response to bond release requests identify surface or subsurface water pollution, bond in an amount adequate to abate the pollution should be held as long as water treatment is required, unless a financial guarantee or some other enforceable contract or mechanism to ensure continued treatment exists.
When responding to commenters on the policy who objected to the requirement that permittees post financial guarantees for treatment of pollutional discharges during and after land reclamation (comment no.16), we stated:
Section 509(a) of the Act requires that each permittee post a performance bond conditioned upon faithful performance of all the requirements of the Act and the permit. Paragraph (b) of this Section of the Act specifies that ``[t]he amount of the bond shall be sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority in the event of forfeiture.'' The hydrologic reclamation plan is part of the reclamation plan to which this section refers. Section 519(c) of SMCRA authorizes release of this bond only when the regulatory authority is satisfied that the reclamation required by the bond has been accomplished, and paragraph (c)(3) specifies that ``no bond shall be fully released until all reclamation requirements of this Act are fully met.'' Furthermore, section 519(b) of the Act provides that whenever a bond release is requested, the regulatory authority must conduct an inspection to evaluate the reclamation work performed, including ``whether pollution of surface or subsurface water is occurring, the probability of continuance of future occurrence of such pollution, and the estimated cost of abating such pollution.'' Therefore, there is no doubt that, under SMCRA, the permittee must provide a financial guarantee to cover treatment of postmining discharges when such discharges develop and require treatment.
On May 30, 2000, our Knoxville, Tennessee Field Office (KFO) issued Field Office Policy Memorandum No. 37 entitled ``Policy for Requiring Bond Adjustments on Permitted Sites Requiring Long-Term Treatment of Pollutional Discharges.'' This policy described the general procedure that the KFO would utilize to require adjustments to performance bonds on sites in Tennessee where unanticipated pollutional discharges are occurring and
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long-term treatment is required. The policy requires that treatment costs be estimated based on an assumption that treatment will be needed for at least 75 years, absent convincing evidence to the contrary. Between June and September of the year in which the policy was issued, the KFO ordered some permittees in Tennessee to submit permit revisions to provide for the installation, operation and maintenance of long-term treatment systems and to adjust performance bonds accordingly.
Those permittees then sought administrative review of the KFO's orders. However, on October 2, 2000, the National Mining Association (NMA) filed suit in the United States District Court for the Northern Division of the Eastern District of Tennessee seeking to overturn the policy. NMA v. Babbitt, No. 3:00-CV-549 (E.D. Tenn. filed Oct 2, 2000). The plaintiffs alleged that the KFO's Policy Memorandum No. 37 was unlawfully adopted in violation of the rulemaking requirements of the Administrative Procedure Act, is inconsistent with the permitting and bonding provisions of SMCRA by requiring retroactive revision of permits that have already expired and the posting of performance bond for expired permits, and violates the Due Process Clause of the U.S. Constitution.
The Department of the Interior's Office of Hearings and Appeals then placed the administrative appeals of the KFO's orders to individual permittees in abeyance pending resolution of the Federal district court case. On July 24, 2001, the Federal district court litigation also was placed in abeyance in response to NMA's request that the parties pursue settlement of the case. Settlement negotiations are ongoing.
The Tennessee Federal program regulations at 30 CFR 942.800 incorporate the Federal bonding regulations in 30 CFR Part 800 by reference. In addition, that section of the Tennessee Federal program contains a few Tennessee-specific bonding provisions. As adopted on October 1, 1984, the Tennessee Federal program relies upon a conventional bonding system in which site-specific performance bonds must be filed with the KFO. The KFO determines the amount of the performance bond based upon the approved reclamation plan and adjusts that amount periodically when the cost of future reclamation changes. The bond amount must be sufficient to assure completion of the reclamation plan if we have to perform the work in the event of bond forfeiture.
A system that provides an income stream may be better suited to ensuring the treatment of long-term pollutional discharges, such as AMD, than conventional bonds. Surety bonds, the most common form of conventional bond, are especially ill-suited for this purpose because surety companies normally do not underwrite a bond when there is no expectation of release of liability. Further, a mandate that would require the permittee to immediately post other forms of conventional bonds, such as cash or negotiable bonds, may force insolvency on a permittee that is currently treating pollutional discharges but is unable to provide the large sums required to guarantee treatment through conventional bonding instruments. Insolvency will most likely lead to forfeiture of existing bonds and the proceeds of that forfeiture may not be sufficient to ensure long-term treatment of discharges.
On May 17, 2002, we published an advance notice of proposed rulemaking (ANPR) entitled ``Bonding and Other Financial Assurance Mechanisms for Treatment of Long-Term Pollutional Discharges and Acid/ Toxic Mine Drainage (AMD) Related Issues.'' 67 FR 35070. In that ANPR, we sought comments on, among other things, the form and amount of financial assurance that should be required to guarantee treatment of postmining pollutional discharges. Commenters on the ANPR disagreed as to whether financial assurance should be required, but they largely agreed that, if it was, surety bonds are not the best means--or even an appropriate means--of accomplishing that purpose. For instance, the Surety Association of America stated that surface coal mining operations ``would not be prudently bondable if the scope of the obligation included perpetual treatment of discharge[s].'' According to the Association, ``the problem of acid mine drainage requires a funding vehicle, and a surety bond is not a funding vehicle.''
Through responses to the ANPR and the experience of Pennsylvania (discussed below), we have determined that the best approach to provide an alternative for financial assurances for long-term treatment of pollutional discharges is to allow the permittee to establish a dedicated income-producing account, such as a trust fund or annuity or both, that is held by a third party as trustee for the regulatory authority. The income stream from a fully funded trust fund or annuity will be used to fund treatment of postmining pollutional discharges (including maintenance, renovation, and replacement of treatment and support facilities as needed), the reclamation of the sites upon which treatment facilities are located and areas used in support of those facilities. However, until this rulemaking, our regulations did not provide for a mechanism to accept such accounts in satisfaction of the Tennessee Federal program's bonding requirements. The addition of paragraph (c) to 30 CFR 942.800 now implements our statutory authority and establishes the parameters under which trust funds and annuities must operate.
By adding paragraph (c), we are building on the experience of Pennsylvania, which has successfully implemented similar provisions. Pennsylvania amended its Surface Mining Conservation and Reclamation Act to include the authority to accept trust funds and annuities to fund treatment of postmining discharges. Pennsylvania's statutes allow the complete release of any conventional bonds remaining after land reclamation has been fully completed and the revegetation responsibility period has expired for a site with a pollutional discharge if provisions have been made for sound future treatment of that discharge. 52 Pa. Cons. Stat. Ann. 1396.4(g)(3). Pennsylvania's provisions state that sound future treatment must consist of another approved financial instrument, such as a trust fund, that will fully secure the long-term treatment obligation and is applicable to the area associated with that treatment. 52 Pa. Cons. Stat. Ann. 1396.4(d.2). This rule is not intended to mirror the provisions of the Pennsylvania program, but rather to adapt the concepts behind Pennsylvania's program for use in the Tennessee Federal program.
When Pennsylvania submitted the amendment to its program authorizing the use of trust funds and annuities, it characterized those financial instruments as collateral bonds, and we approved them as such. 70 FR 25472, amended at 70 FR 52916. However, the Federal regulations at 30 CFR 800.11(e) provide another option for approving trust funds and annuities. Those regulations implement the provision in section 509(c) of SMCRA, 30 U.S.C. 1259(c), authorizing OSM and the States to establish an ``alternative system that will achieve the objectives and purposes of the bonding program pursuant to this section.'' The regulations at 30 CFR 800.11(e) require that those alternative systems (1) ``assure that the regulatory authority will have available sufficient money to complete the reclamation plan for any areas which may be in default at any time;'' and (2) ``provide a substantial economic incentive for the permittee to comply with all reclamation provisions.'' As we noted in the proposed rule, establishment of a
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trust fund or annuity would satisfy the first criterion, while the permittee's provision of the moneys needed to establish a trust fund or annuity and the express terms of the trust would satisfy the second criterion. 71 FR 17684.
In this rulemaking, we are providing for the use of trust funds and annuities in Tennessee as an alternative bonding system (ABS), as provided for in section 509(c) of the Act. As an ABS, trust funds and annuities are not subject to the provisions of 30 CFR 800.12, 800.20, 800.21, and 800.23 because those provisions pertain only to various types of conventional bonds. Except as otherwise provided in this rule, trust funds and annuities will generally be subject to the other provisions of 30 CFR Part 800. Specific information on the portions of 30 CFR Part 800 that apply to individual trust funds and annuities will be set forth in a formal written trust fund or annuity agreement made between the KFO and the permittee responsible for treating the discharge.
We will allow permittees a reasonable time to fully fund trust funds and annuities rather than requiring a lump-sum deposit as would be required for collateral bonds. We will use the provisions of 30 CFR 800.15(a) on a site-specific basis to establish a schedule for periodic review to ensure that trusts and annuities contain sufficient funds for treatment of the discharge, and maintenance and reclamation of associated facilities.
A permittee with postmining pollutional discharges that establishes a trust fund or annuity to guarantee funding for treatment will be able to secure release of conventional bonds on the portion of their permit that does not support the treatment of the discharge. However, the trust fund or annuity must be fully funded before the permittee qualifies for release of the conventional bond. A fully funded trust fund or annuity would be available to fund treatment and reclamation activities in the event of a permittee's bankruptcy or dissolution.
In implementing this rule, we will first determine whether a postmining pollutional discharge requiring long-term treatment exists. If so, and if the permittee elects to use a trust fund or annuity to satisfy the financial assurance (performance bond) obligation for discharge treatment, we, in consultation with the permittee, will develop a formal written agreement that sets forth the details of the trust fund or annuity. While we will consult in good faith with the permittee on the terms of the trust fund or annuity, including the selection of the trustee, the investment mix making up the trust fund or annuity, and the amount and duration of the trust agreement or annuity, we retain the final authority and responsibility to establish bond amounts, terms, and conditions, as provided by 30 CFR 800.16 and this rule. In determining the amount needed to fully fund the trust fund or annuity, we will consider the quality and quantity of the discharge, anticipated future changes in discharge quantity and quality, treatment options, support facilities needed, treatment facility maintenance, renovation, and replacement intervals, current and projected investment performance, and any other factors necessary to ensure ongoing treatment and reclamation of the discharge. We will use this rule, existing OSM policies, and computer software designed to estimate treatment and associated costs to calculate the amount of funding required to fulfill treatment obligations.
We anticipate that a fully funded trust or annuity may include provisions for payments to the permittee as a mechanism to cover the cost of water treatment, especially for those permittees no longer generating income from the mining of coal. Payments from the income stream of a fully funded trust fund or annuity will not be considered a bond release or a bond forfeiture. This rule establishes an ABS authorizing the establishment of a trust or annuity that produces an income stream that can be transferred to a permittee or other entity to pay for the treatment costs provided for in Sec. 942.800(c)(8). The trust fund or annuity will also include other provisions that provide for the continuation of treatment in the event that the permittee fails to meet its treatment obligations.
This rule does not alter our existing responsibilities or those of permittees or any other Federal or State agency relating to postmining pollutional discharges. Existing treatment requirements and obligations, as well as permitting and enforcement responsibilities, are not affected by this rule.
Because of the adoption of this rule, we will not be pursuing a national rulemaking regarding the use of trust funds and annuities in response to the ANPR that we published in 2002. The successful implementation of trusts and annuities in the Pennsylvania program and our explicit addition of trust funds and annuities as an ABS in Tennessee with this rulemaking demonstrate that adequate authority for the use of trust funds and annuities is already available under SMCRA and its implementing regulations. Therefore, a national rule is not needed.
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Sections 942.816(f)(3) and (4) and 942.817(e)(3) and (4): Revegetation Success Requirements for Forestry-Related Postmining Land Uses
On April 6, 2006, we proposed revisions to the Tennessee Federal program regulations regarding ground-cover revegetation success standards for reclaimed lands with postmining land uses of wildlife habitat, undeveloped land, recreation, or forestry. In this final rule, we are adopting the revisions as proposed, with one technical correction and minor editorial modifications to reflect plain language principles. The technical correction replaces the term ``mining and reclamation plan'' in the proposed rule with ``reclamation plan'' to be consistent with terminology used elsewhere throughout the Federal regulations.
The revisions modify 30 CFR 942.816(f)(3) and 942.817(e)(3) by eliminating the 80% vegetative ground cover revegetation success standard for reclaimed lands with postmining land uses of wildlife habitat, undeveloped land, recreation, or forestry. The regulations will be changed to state that herbaceous ground cover should be limited to that necessary to control erosion and support the postmining land use and that the permit will specify the ground cover seed mixes and seeding rates to be used. Final Sec. Sec. 942.816(f)(3) and 942.817(e)(3) read as follows:
(3) For areas developed for wildlife habitat, undeveloped land, recreation, or forestry, the stocking of woody plants must be at least equal to the rates specified in the approved reclamation plan. To minimize competition with woody plants, herbaceous ground cover should be limited to that necessary to control erosion and support the postmining land use. Seed mixes and seeding rates will be specified in the permit.
Section 515(b)(19) of SMCRA, 30 U.S.C. 1265(b)(19), requires establishment of a diverse, effective, and permanent vegetative cover, at least equal to the premining cover, that is capable of self- regeneration and plant succession. The Federal regulations at 30 CFR 816.116 (for surface mining activities) and 817.117 (for underground mining activities) provide national requirements and parameters for revegetation success standards. Sections 816.116(b)(3) and 817.116(b)(3) establish requirements pertinent to revegetation success standards for areas to be developed for postmining land uses of fish and wildlife habitat, recreation, undeveloped land, or forest products. Those regulations provide that
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``success of vegetation shall be determined on the basis of tree and shrub stocking and vegetative ground cover.''
At the time that we promulgated the Federal program for Tennessee, the national rules at Sec. Sec. 816.116(a)(1) and 817.116(a)(1) required the regulatory authority to select the standards for revegetation success and include them in the regulatory program. 49 FR 38874. Therefore, we included specific standards in the Tennessee Federal program at Sec. Sec. 942.816(f)(3) and 942.817(e)(3) for areas with postmining land uses of wildlife habitat, recreation, or forest products. Those regulations required a minimum 80% ground cover on mined lands reclaimed for those postmining land uses. In the preamble discussion of those rules, we noted that a minimum level of 80% vegetative coverage was necessary to control erosion on the steep terrain that is common to eastern Tennessee. 49 FR 38888.
In addition, we adopted Sec. Sec. 942.816(f)(4) and 942.817(e)(4) which prohibit bare areas larger than one-sixteenth of an acre in size and that total more than 10% of the area seeded. We adopted these provisions because we believed that they were necessary to prevent the release of bonds on lands that meet the overall requirements of 80% or 90% ground cover, but still have localized areas that are not yet stabilized with respect to soil erosion. 49 FR 38888.
We have learned much more about reestablishing vegetation, particularly trees, on mined land in the years since we adopted those standards. Permittees generally prefer pasture or grazing land as postmining land uses because they do not require the extra work and expense of planting trees and ensuring successful tree establishment. Thus, the reclamation of mine sites has typically resulted in dense grasslands with few trees. Many trees that were planted had low survival rates and required replanting, while those that survived often did not reach their optimal growth potential, which further discouraged operators from considering a land use that required planting trees.
We recognize the importance and benefits of promoting the reestablishment of forests, especially native hardwood forests, on mined land. Consequently, we have determined that changes to our regulations are necessary to promote and enable the establishment of diverse, vigorous forests on reclaimed mine sites. The conventional method of mine reclamation typically includes using bulldozers to grade and track-in spoil, creating smooth slopes. This method results in a compacted soil surface that not only inhibits root growth of seedlings and planted stock, but also restricts infiltration of precipitation and increases runoff. To prevent erosion from runoff, operators seed the regraded areas with aggressive, quick-growing herbaceous ground covers. This method of reclamation is very effective in producing dense hayland and pastureland. However, it is very detrimental to establishing forested land on mine sites for three reasons. First, the dense herbaceous ground covers used to control erosion compete with newly planted trees and tree seedlings for soil nutrients, water, and sunlight. Second, soil compaction inhibits root growth as well as water infiltration. Third, the dense ground cover provides habitat for rodents and other animals that damage tree seedlings and young trees.
In summarizing research into ground cover and its effects on establishment of trees on mined lands, Jim King and Jeff Skousen of West Virginia University noted in 2003:
The negative effects of overly abundant and aggressive ground cover on the survival and growth of trees planted on reclaimed mine lands has long been known. Trees planted into introduced, aggressive forages [especially tall fescue and sericea lespedeza] often are overtopped by the grass or legume and are unable to break free (Burger and Torbert, 1992; Torbert et al., 1995). The seedlings are pinned to the ground and have little chance for survival. If it is known that trees are to be planted, a tree-compatible ground cover should be seeded that will be less competitive with trees. Tree- compatible ground cover should be slow growing, sprawling or low growing, not allopathic, and non-competitive with trees (Burger and Torbert, 1992). Plass (1968) reported that after four growing seasons the height growth of sweetgum and sycamore planted into an established stand of tall fescue on spoil banks was significantly retarded. Andersen et al. (1989) found that survival and height growth for red oak and black walnut was significantly greater on sites where ground cover was chemically controlled.\1\
\1\ Tree Survival on a Mountaintop Surface Mine in West Virginia King, J., J. Skousen, West Virginia University Morgantown, American Society of Mining and Reclamation, 2003.
Researchers affiliated with the Virginia Polytechnic Institute and
State University also found that:
The use of tree-compatible ground covers during reclamation can allow seedlings to survive at rates exceeding the 70% that is necessary to achieve regulatory compliance without the expense of follow-up herbicide treatment. Furthermore, our experience indicates that sowing tree-compatible ground covers at reduced rates often allows invasion by woody vegetation from adjacent forests. The results of this study suggest that sowing ground cover at reduced rates achieving 50 to 70% cover, instead of 90% currently required by Virginia's regulations, would also greatly improve the likelihood of hardwood reforestation success.\2\
\2\ Herbaceous Ground Cover Effects on Native Hardwoods Planted on Mined Land Burger, J.A., D.O. Mitchem, C.E. Zipper, R. Williams, Virginia Polytechnic Institute and State University, American Society of Mining and Reclamation, 2005.
Researchers from the University of Maine determined that even a
small amount of herbaceous ground cover can inhibit tree growth:
Additional research has found that herbaceous vegetation (grasses and broadleaves) in small amounts (
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