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LRH 2015-890-TUG

Published Sept. 28, 2016
Expiration date: 10/28/2016

TO WHOM IT MAY CONCERNThe following applicant has submitted an application for a Department of the Army Permit under the provisions of Section 404 of the Clean Water Act for the proposed discharge of dredged and/or fill material into waters of the United States (U.S.).  This notice serves as the United States Army Corps of Engineers’ (Corps) request to the West Virginia Department of Environmental Protection (WVDEP) to act on Section 401 Water Quality Certification (WQC) for the following application.


APPLICANT:            CAM Mining LLC (CAM)

                                    265 Hambley Blvd

                                    Pikeville, KY 41501

LOCATION:  The proposed project (Millseat Refuse Facility 2) would be located at Latitude N 37.588975°, Longitude W 82.071369°, encompassing an intermittent tributary of Millseat Branch of Grapevine Creek of the Tug Fork, off of State Route 49/3, east of Thacker, Mingo County, West Virginia. The project area would be located adjacent to the existing Millseat Refuse Facililty O-5003-92 (permitted by WVDEP in 1997).   See attached Exhibits A through D.

 DESCRIPTION OF THE PROPOSED WORK REQUIRING A SECTION 404 PERMIT:  The applicant proposes to discharge 28.3 cubic yards of fill material (durable, non-toxic and non-acid producing sandstone and shale rock) into a total of 480 linear feet of a stream during installation of a rock underdrain system in preparation for constructing the 53-acre Millseat Refuse Facility 2 project.  No other discharge of fill material into waters of the U.S. would occur as part of the project.  The stream is located updrain of an existing sediment control system.  The information provided characterizes the stream as being dry for a large part of the year, flowing only when a deep mine void fills with water.  The application states the proposed discharge of fill material into the stream is necessary to construct the Millseat Refuse Facility 2, which would provide permanent storage of refuse material generated from the adjacent Tug Fork Preparation Plant and would allow the plant to continue operating for approximately 13 additional years. 

 A copy of the applicant’s Section 404 application, including all supplemental materials (alternative analysis, compensatory mitigation plan, etc.) are available for public review in the Huntington District Office, by appointment. 

 OTHER PROJECT INFORMATION: The proposed Millseat Refuse Facility 2 project is currenly under review by the WVDEP under pending application O-5003-92, Incidental Boundary Revision 5 (IBR-5), pursuant to the Surface Mining Control and Reclamation Act (SMCRA), and under the National Pollution Discharge Elimination System permit WV0060801. 

ALTERNATIVES ANALYSIS:  In evaluating a project area containing waters of the U.S., consideration must be given to avoiding impacts on the waters.  The applicant has submitted the required alternatives analysis, which is currently under review.  The applicant evaluated potential alternatives in order to determine a practicable alternative that would have the least environmental impacts.  Three alternative disposal sites were considered: (a) existing abandoned highwall benches, (b) existing refuse storage facilities, (c) four existing surface mines, (d) or six subwatersheds.  Practicability was evaluated based on distance (within 2 miles of the existing preparation plant), storage capacity, stability, site conditions, and impacts to waters of the U.S.  Based on this evaluation, the applicant selected the proposed location (adjacent to the preparation plant) as the only practicable location (as shown in the attached Exhibits).  The proposed project site has been previously disturbed, has existing roads and sediment control ponds.  The use of the proposed site would avoid the need to construct another in-stream pond, but would result in the permanent discharge of fill material into 480 linear feet of one stream.  A complete copy of the applicant’s alternatives analysis can be reviewed by appointment at the above address.  No Section 404 permit will be issued until this office has determined that practicable upland alternatives are not available to achieve the overall project purpose based on the applicant’s alternatives analysis.

AVOIDANCE AND MINIMIZATION:  If waters of the U.S. cannot be avoided, then impacts to waters of the U.S. must be minimized.  Actions to avoid and minimize adverse effects to waters of the U.S. were incorporated during project development.  The proposed discharge of fill material into waters of the U.S. would be limited to a comparatively low value intermittent stream channel located updrain of existing sediment control ponds.  The underdrain rock to be discharged into the stream channel would consist of durable, non-toxic and non-acid producing sandstone.  The rock underdrain would be wrapped with filter fabric (as illustrated in the attached Exhibit D).  No in-stream sediment/drainage control structures would be constructed. Best management practices, including the use of temporary sediment controls and revegetating disturbed areas, would be used.  Surface drainage from the project site would be monitored and managed pursuant to the Section 402 NPDES permit to ensure water quality standards are met.   

COMPENSATORY MITIGATION PLAN (CMP): To compensate for the loss of waters of the U.S. associated with the proposed project, the applicant proposes to provide stream mitigation credits associated with the adjacent Section 404 permit 2008-1101 (Grapevine Fork Surface Mine) that the applicant anticipates will be in excess of the amount required under that Section 404 permit (calculated using the Corps’ “West Virginia Stream and Wetland Valuation Metric” (SWVM)).  The SWVM compares baseline data with anticipated or actual post-mitigation data to calculate impact debits and required or achieved mitigation credits.  The applicant calculates the proposed project would result in 322.8 impact debits.  The CMP associated with issued Section 404 permit 2008-1101 (which included on-site and off-site stream restoration and enhancement) projected a net excess of 1,106 mitigation credits (if fully successful).  However, all mitigation work and monitoring in accordance with that CMP has not been completed and the Corps has not determined whether the CMP efforts are fully successful. 

WATER QUALITY CERTIFICATION (WQC): A Section 401 WQC is required for the proposed activity, pursuant to Section 401 of the Clean Water Act. It is the applicant’s responsibility to obtain certification from the WVDEP.

HISTORIC AND CULTURAL RESOURCES:  The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP that would be indirectly or directly affected by the proposed work.  No other related information was provided in the application.  A copy of this Public Notice will be furnished to State Historic Preservation Office for their review.  Comments concerning archaeological sensitivity of the project area should be based on collected data.

ENDANGERED AND THREATENED SPECIES:  The proposed project lies within the natural range of the federally listed endangered Indiana bat (Myotis sodalis) and the threatened northern long-eared bat (Myotis septentrionalis).  The project also lies upstream of the natural range of the federally listed threatened Big Sandy crayfish (Cambarus callainus).

The applicant performed a mist net bat survey dated August 2011, which was evaluated by the WVDEP (pursuant to a programmatic 1996 biological opinion and conference report between the U.S. Fish & Wildlife Service (USFWS) and the U.S. Office of Surface Mining).  By letter dated February 8, 2014, the WVDEP concluded that no federally listed bats were captured and no Indiana bat winter habitat is expected to be impacted by the proposed project.  However, the letter advised that if the project had not started prior to June 1, 2016, new surveys may be required.  On that date, the subject surface mining application remained pending with the WVDEP.  Additional information must be obtained and evaluated concerning the proposed project’s potential to affect federally listed species.  No Section 404 permit will be issued until the Corps has verified that all obligations under Section 7 of the Endangered Species Act have been fulfilled. 

This Public Notice serves as coordination with the USFWS concerning any additional information they may have on whether any listed or proposed to be listed endangered or threatened species may be present in the area which would be affected by the activity, pursuant to Section 7(c) of the Endangered Species Act of 1972 (as amended).

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 the guidelines published by the U.S. Environmental Protection Agency pursuant to Section 404(b)(1) of the Clean Water Act (40 CFR 230). The decision whether to issue a permit will be based on an evaluation of the probable impact, including cumulative impacts, of the proposed discharge of dredged and/or fill material into waters of the U.S. on the public interest.  That decision will reflect the national concern for both protection and utilization of important resources.  The benefit 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.  

 OLICITATION 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. 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 may request, in writing, within the comment period specified in the notice, that a public hearing be held to consider the application.  Requests for public hearings shall state, with particularity, the reasons for holding a public hearing. 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 of an 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 on page one 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

502 Eighth Street

Huntington, West Virginia 25701-2070

ATTN: CELRH-RD-E, Public Notice No. LRH-2015-890-TUG


Please note that submitted comments in response to this public notice become part of our administrative record and, as such, are available to the public under 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 contact Richard Berkes of the Energy Resource Branch at (304) 399-6909.