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LRH 2010-554

Published July 9, 2014
Expiration date: 8/11/2014

 PUBLIC NOTICE: The purpose of this public notice is to inform you of a proposal for work in which you might be interested. It is also to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest. We hope you will participate in this process.

TO WHOM IT MAY CONCERN: The following application has been submitted for a Department of the Army Permit under the provisions of Section 404 of the Clean Water Act (CWA). This notice serves as the Corps request to the West Virginia Department of Environmental Protection (WVDEP) to act on the Section 401 water quality certification for the following application: 

APPLICANT:     Bandmill Coal Corporation 
                           P.O. Box 1098
                           Holden, West Virginia 25625

LOCATION: The proposed project is located approximately 1.5 miles south of Ethel, Logan County, West Virginia. The project can be found at latitude 37°49’57” and longitude 81°54’35” on the Logan USGS Quadrangle maps. The proposed project would be constructed in unnamed tributaries of Bandmill Hollow. Bandmill Hollow is a tributary of Dingess Run, which flows into the Guyandotte River, a Section 10 navigable water. The project location map is attached to this public notice.

DESCRIPTION OF THE PROPOSED WORK: The applicant proposes to discharge fill material into waters of the United States (U.S.) to facilitate the construction of the Bandmill Hollow Refuse Impoundment. The applicant is requesting authorization to discharge fill material into five (5) unnamed tributaries of Bandmill Hollow in conjunction with the construction of the rock under-drain structure and embankment for a course/fine coal refuse impoundment. Construction of the refuse structure would also result in the impoundment of five (5) unnamed tributaries of Bandmill Hollow (Channel A, Channel A1, Channel A2, Channel B, Channel C). The applicant has applied to the West Virginia Department of Environmental Protection (WVDEP) for the required Surface Mining Control and Reclamation Act (SMCRA) permit (O-5002-10), which is currently pending. 

The work requiring authorization from this office is limited to the discharge of fill material below the ordinary high water elevation of jurisdictional waters of the U.S. This office conducted a field review in June 2011 to determine the extent of waters of the U.S. at the site. It was determined that approximately 7,635 feet of perennial, 506 feet of intermittent, 959 feet of ephemeral stream channel, and 1.25 acre of an abandoned sediment pond exists within the SMCRA authorized boundaries at the site. During the field verification of the applicant’s jurisdictional determination (JD), it was determined that 7,375 feet of an unnamed tributary of Bandmill Hollow (Channel A) and 1.25 acres of the abandoned sediment pond located on an unnamed tributary of Bandmill Hollow (Channel A) were considered non-jurisdictional waters of the U.S. as they were components of an active wastewater treatment facility authorized by a Section 402 NPDES permit (WV1015753) associated with the Bandmill No. 1 Surface Mine (S-5001-94). However, the applicant was made aware that the project would be subject to regulation under Section 404 of the CWA upon removal and/or reclamation of the wastewater treatment system and/or if any portion of the respective stream channels no longer function as a component of an active wastewater treatment facility. The conversion of the wastewater treatment facility to a refuse disposal facility constitutes a change in use therefore, 7,375 feet of an unnamed tributary of Bandmill Hollow (Channel A) that was determined to be non-jurisdictional in June 2011 is now considered jurisdictional waters of the U.S. as they pertain to this proposal. The remaining 1,725 linear feet of one (1) perennial, two (2) intermittent, and two (2) ephemeral stream channels were considered jurisdictional waters of the U.S. during the June 2011 site visit.

A total of 8,350 linear feet (1.40 acres) of perennial, intermittent and ephemeral unnamed tributaries of Bandmill Hollow are proposed to be filled and impounded as a result of the activities described below.

Refuse Fill and Embankment: To construct the under-drain structure associated with the refuse fill/impoundment, the applicant proposes to permanently discharge approximately 438 cubic yards (c.y.) of clean, non-erodible, weathered sandstone below the ordinary high water elevation of approximately 2,725 feet (0.58 acre) into Channel A of Bandmill Hollow. To construct the embankment structure for the refuse fill/impoundment, the applicant proposes to permanently discharge approximately 327 c.y. of course non-erodible durable rock material into 1,110 feet (0.190 acres) of Channel A of Bandmill Hollow. A total of 3,835 feet (0.77 acre) of a perennial segment of Channel A of Bandmill Hollow would be permanently filled with 765 c.y. of durable rock fill to construct the Refuse Fill and Embankment.

Refuse Impoundment: As a result of the construction of the embankment structure for the refuse impoundment, approximately 3,060 feet (0.51 acre) of Channel A of Bandmill Hollow, 506 feet (0.044 acre) of Channels A1 and A2 of Bandmill Hollow, and 959 feet (1.077 acre) of Channels B and Channel C of Bandmill Hollow would be permanently impounded as a result of the construction of the embankment structure. A total of 4,825 feet (1.63 acres) of perennial, intermittent, and ephemeral stream channels would be permanently impounded by coarse and fine rock slurry as a result of the proposal.

Existing Sediment Pond 1: An existing sediment control pond (Sediment Pond No. 1) associated with Surface Mine S-5001-94 (Bandmill No. 1 Surface Mine) would be used for sediment control for the proposed Bandmill Refuse Impoundment. The applicant has indicated that no improvements or revisions would be required for the existing sediment pond. The sediment control pond is located within Bandmill Hollow.

Table 1, which is attached to this public notice, describes the discharges of fill material and impoundment activities within waters of the U.S.

The applicant has indicated the proposed 235-acre Bandmill Hollow Refuse Impoundment has been designed to receive a minimum of 27 million cubic yards of coarse and fine coal refuse material over a period of approximately nine (9) years based on current production rates. As indicated above, waters of the U.S. at the site would be filled with clean, durable, non-toxic rock material and then refuse disposal would be initiated. While the refuse impoundment would be used to store both course and fine rock refuse, fine refuse material would not be disposed within waters of the U.S. The refuse material would be generated from coal removed from the Chilton and Alma formations at several deep and surface mines operated by Alpha Natural Resources and subsidiaries and coal cleaning operations at the Bandmill Preparation Plant (SMCRA Permit No. P-718). Upon completion of the refuse disposal activities, reclamation of the site would occur in accordance with SMCRA regulations. Following final grading of the refuse fill impoundment area, the area would be covered with a minimum of four (4) feet of non-toxic, non-combustible material that would not impede drainage from the under-drain and perimeter ditches. The site would be reclaimed and would have final land use of fish and wildlife/recreational.

A copy of the Section 404 Permit Application, including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.) is available for review in the Huntington District Office, by appointment.

ALTERNATIVE ANALYSIS: The applicant’s stated basic project purpose is the disposal of coarse and fine refuse material. In the majority of cases, the activity of coal refuse disposal does not require siting within a water of the U.S. Because coal refuse coal disposal is not water dependent, the applicant is required to show that there are no other less damaging practicable alternatives available that do not require the discharge of fill material into waters of the U.S., and that would achieve the overall project purpose. No permit would be issued unless the alternatives analysis clearly demonstrates that practicable upland alternatives are not available to achieve the overall project purpose.

To determine the most efficient, logistical, safety, cost-effective and environmentally sound way to dispose of coarse and fine coal refuse generated as a result of the coal-cleaning process, the applicant evaluated four (4) coarse and fine coal refuse coal disposal alternatives for this proposal: construction of a coal refuse impoundment, underground injection of the coal refuse, construction of slurry cells, and construction of a coal refuse fill. The applicant also evaluated thirteen (13) separate watersheds to construct the facility. The applicant also considered a No Action alternative. All of the alternatives, including the watershed locations, were evaluated using a set of criteria developed in accordance with SMCRA criteria and as well as specific criteria for the disposal of coarse and fine refuse materials developed by the mining industry. The applicant’s alternatives analysis is currently under review and is available for public review in the Huntington District Office.

AVOIDANCE AND MINIMIZATION: The applicant indicated the proposed project cannot be located in an area that would avoid all discharges of fill material into waters of the U.S. As indicated in their alternative watershed location analysis, all of the sites evaluated contain waters of the U.S. The site that was selected as the preferred alternative contains streams that have been previously affected by surface mining activities. Further, the site selected as the preferred site has previously been affected by surface mining and Channel A of Bandmill Hollow was utilized as an in-stream active wastewater treatment facility authorized by a Section 402 NPDES permit (WV1015753) associated with the Bandmill No. 1 Surface Mine (S-5001-94). The proposed refuse impoundment would over-bond approximately 116 acres of S-5001-94 of the 235 acre project area. As indicated above, the proposed refuse impoundment would also utilize an existing sediment pond associated within S-5001-94. While discharges of fill material into waters of the U.S. would not be avoided, the applicant has avoided sites that contain waters of the U.S. which have not been directly affected by mining activities. After the completion of the refuse disposal operations the area would be returned to a post-mining land use of fish and wildlife/recreation.

COMPENSATORY MITIGATION PLAN (CMP): The applicant has submitted a CMP to compensate for unavoidable discharges of fill material into waters of the U.S. after avoidance and minimization of the discharges were considered. The applicant proposes to re-establish 9,431 feet of intermittent stream channel at twenty-four (24) existing sediment pond structures associated with seven (7) SMCRA authorized surface mines which are operated by the applicant. All of the surface mines are in Phase II release by the West Virginia Department of Environmental Protection (WVDEP) Division of Mining and Reclamation. The surface mines are located in various watersheds across Logan County. A map showing the location of the proposed mitigation site is attached to this public notice.
The applicant prepared the CMP using current functional assessment data and used the West Virginia Stream and Wetland Valuation Metric (SWVM) to assess and correlate the baseline conditions of the proposed areas impacted by the discharge of fill material into waters of the U.S. with the proposed compensatory mitigation. Physical, chemical and biological parameters were considered by the applicant to demonstrate the CMP mitigates for the discharge of fill material into waters of the U.S. As part of our evaluation, the Corps will review the applicant’s SWVM sheets for accuracy.

The applicant’s CMP is currently under review, and is available for public review. The proposed CMP is open to comment and is subject to change based on comments received. After review of all the submitted information the Corps will make a determination of appropriate mitigation, in the event a decision is made to issue a permit.

WATER QUALITY CERTIFICATION: An individual Section 401 Water Quality Certification (WQC) is required for this project. The applicant has indicated the required WQC is pending with the WVDEP.

HISTORIC AND CULTURAL RESOURCES: This project must be reviewed to determine any potential effects to properties that may be eligible for or listed in the National Register of Historic Places (NRHP), in accordance with Section 106 of the National Historic Preservation Act. Based on a review of the NRHP, there appears to be no cultural or historic sites located within the project area. The applicant has indicated they have contacted the West Virginia Division of Culture and History (WVDCH) regarding the presence of archaeological or architectural resources that may be listed or eligible for listing in the NRHP, however; no written response has been provided to this office. A copy of this public notice will be sent to the WVDCH their review. Additional comments concerning archeological sensitivity of a project area would be based upon collected data.

ENDANGERED/THREATENED SPECIES REVIEW: This public notice will serve as coordination with the U.S. Fish and Wildlife Service (USFWS) concerning threatened or endangered species, pursuant to Section 7 of the Endangered Species Act (ESA) of 1972 (as amended). The project is located within the known range of the federally listed Indiana bat (Myotis sodalis), Virginia big-eared bat (Corynorhinus townsendii veiginianus), the Eastern cougar (Felis concolor cougar) and the potentially eligible northern long-eared bat (Myotis septentrionalis). The applicant conducted a mist survey for the Indiana bat and the Virginia big-eared bat in the summer of 2006. That survey expired in 2012. The applicant has indicated they conducted a follow-up survey in the summer of 2013 but the results of the survey have not yet been provided to this office. This project will be reviewed by the WVDEP pursuant to the 1996 Biological Opinion and Conference Report between the U.S. Office of Surface Mining and the USFWS and all Section 7 ESA requirements will be met.

PUBLIC INTEREST REVIEW AND CUMULATIVE EFFECTS: This application will be reviewed in accordance with 33 CFR 320 332, the Regulatory Program of the Corps, and other pertinent laws, regulations, and executive orders. Our evaluation will also follow guidelines published by the U.S. Environmental Protection Agency pursuant to Section 404(b)(1) of the Clean Water Act. The decision whether to issue a permit will be based on an evaluation of the probable impacts including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefits that reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors that may be relevant to the proposal will be considered including the cumulative effects thereof; of those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.

The project lies within the Dingess Run 12-digit hydrologic unit code (050701010508) watershed. The Corps is assessing the potential cumulative effects that the proposed stream impacts from the discharge of fill material into waters of the U.S. may have on public interest factors when considered with other activities in that watershed. The assessment includes use of the Corps analytic tool, Cumulative Effects Analysis Prototype for LRD Regulatory Districts. The tool uses available State and Federal data for each 12-digit hydrologic unit code watershed to analyze past and present activities that may currently be affecting streams.

SOLICITATION OF COMMENTS: The Corps is soliciting comments from the public; Federal, state, and local agencies and officials; Indian Tribes; and other interested parties in order to consider and evaluate the impacts of this proposed activity. Interested parties are invited to state any objections they may have to the proposed work. For accuracy and completeness of the administrative record, all data in support of or in opposition to the proposed work should be submitted in writing setting forth sufficient detail to furnish a clear understanding of the reasons for support or opposition. Any person who has an interest that may be adversely affected by the issuance of a permit may request a public hearing. The request must be submitted in writing to the District Engineer on or before the expiration date of this notice and must clearly set forth the interest which may be adversely affected and the manner in which the interest may be adversely affected by the activity. Any comments received will be considered by the Corps to determine whether to issue, modify, condition or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are used in the preparation ofn Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity. Written statements on these factors received in this office on or before the expiration date of this public notice will become a part of the record and will be considered in the final determination. A permit will be granted unless its issuance is found to be contrary to the public interest.

CLOSE OF COMMENT PERIOD: All comments pertaining to this Public Notice must reach this office on or before the close of the comment period listed at the beginning of this Public Notice. If no comments are received by that date, it will be considered that there are no objections. Comments and requests for additional information should be submitted to:

U. S. Army Corps of Engineers
ATTN: CELRH-RD-E Public Notice: LRH-2010-554-GUY
502 Eighth Street
Huntington, West Virginia 25701-2070

Please note that names and addresses of those who submit comments in response to this public notice become part of our administrative record, and, as such, are available to the public under the
provisions of the Freedom of Information Act. Thank you for your interest in our nation's water resources. If you have any questions concerning this public notice, please call Kimberly Courts-Brown of the Energy Resource Branch at (304) 399-6906.

Discharges of Fill Material into and Impoundment of Water of the U.S. (Impacts) 

Bandmill Hollow Refuse Impoundment (O-5002-10)

LRH-2010-554-GUY

 

Stream Name

Flow Regime

Proposed Structure/Mining Activity

Extent of Impacts

(Linear Feet/Acreage)

Total Fill Volume below OHW (cubic yards)

Duration of Impact

UNT Bandmill Hollow

(Channel A)

Perennial

Underdrain Structure for

Refuse Fill

2,725’

(0.581 acre)

438.4 c.y.

Permanent

UNT Bandmill Hollow (Channel A)

Perennial

Embankment Structure for Refuse Fill

1,100’

 (0.190 acre)

110.1 c.y.

Permanent

UNT Bandmill Hollow

(Channel A)

Perennial

Coarse and Fine Refuse Impoundment Area

3,060’.551 acre)

327.0 c.y.

Permanent

UNT Bandmill Hollow (Channel A1)

Intermittent

Coarse and Fine Refuse Impoundment Area

250’

(0.016 acre)

7.52 c.y.

Permanent

UNT Bandmill Hollow

(Channel A2)

Intermittent

Coarse and Fine Refuse Impoundment Area

256’

(0.028 acre)

19.8 c.y.

Permanent

UNT Bandmill Hollow

(Channel B)

Ephemeral

Coarse and Fine Refuse

Impoundment Area

228’

(0.013 acre)

5.78 c.y.

 

Permanent

UNT Bandmill Hollow

(Channel C)

Ephemeral

Coarse and Fine Refuse Impoundment Area

731’

(0.064 acre)

40.97 c.y.

Permanent

Total Discharges/Impoundment

of Waters of U.S.

8,350’

1.402 acres

949.37 cubic yards