Fall Creek Falls, Tennessee, Lands Unsuitable for Surface Coal
Mining and Reclamation Operations; Availability of Record of Decision
and Statement of Reasons
[Federal Register: June 23, 2000 (Volume 65, Number 122)]
[Notices]
[Page 39178-39191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn00-90]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
Fall Creek Falls, Tennessee, Lands Unsuitable for Surface Coal
Mining and Reclamation Operations; Availability of Record of Decision
and Statement of Reasons
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Notice of availability of record of decision and the statement
of reasons on the petition to declare certain lands in Fall Creek
Falls, Tennessee, unsuitable for surface coal mining.
-----------------------------------------------------------------------
SUMMARY: The Secretary of Interior has reached a decision on a petition
to designate certain areas as unsuitable for
[[Page 39179]]
surface coal mining operations in Fall Creek Falls, Bledsoe and Van
Buren Counties, Tennessee
ADDRESSES: Copies of the decision and the statement of reasons for the
decision may be obtained from the Assistant Director, Program Support,
Office of Surface Mining Reclamation and Enforcement (OSM), 1951
Constitution Avenue, HDQ01, Washington, D.C. 20240, or Beverly Brock,
Supervisor, Technical Group, Knoxville Field Office, 530 Gay Street,
SW, Suite 500, Knoxville, Tennessee 37902.
FOR FURTHER INFORMATION CONTACT: Beverly Brock, Office of Surface
Mining Reclamation and Enforcement, Knoxville Field Office, 530 Gay
Street, SW, Suite 500, Knoxville, Tennessee 37902; telephone (865) 545-
4103, extension 146; or e-mail: bbrock@osmre.gov.
SUPPLEMENTARY INFORMATION: The petition was submitted to OSM on July
14, 1995, by Save Our Cumberland Mountains and Tennessee Citizens for
Wilderness Planning to designate 85,588 acres of land lying in the
watershed and viewshed of the Fall Creek Falls State Park and Natural
Area, Bledsoe and Van Buren Counties, Tennessee, as unsuitable for all
types of surface coal mining operations. OSM determined the petition to
be complete on October 5, 1995, and initiated evaluation of the
petition allegations.
The petition was filed in accordance with Section 522 of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA) and the
implementing regulations at 30 CFR 942.764. The petitioners had five
primary allegations: (1) Reclamation is not technologically and
economically feasible; (2) mining the area would affect fragile or
historic lands which could result in significant damage to important
historic, cultural, scientific, or esthetic values; (3) mining the area
would affect renewable resource lands which could result in a
substantial loss or reduction in long-range productivity of water
supply or of food or fiber products; (4) mining would affect natural
hazard lands which could substantially endanger life and property; and
(5) mining the area would be incompatible with existing State or local
and use plans or programs.
Pursuant to 30 CFR 942.764, OSM analyzed the allegations of the
petition and on June 18, 1998, held a public hearing. OSM filed the
final petition evaluation document/environmental impact statement (PED/
EIS) for the Fall Creek Falls petition with the Environmental
Protection Agency (EPA) on February 24, 2000. The EPA subsequently
published the notice of availability on March 3, 2000 (5 FR 11575).
A copy of the decision signed by the Secretary of Interior appears
as an appendix to this notice. Additional copies of the decision are
available at no cost from the offices listed above under ADDRESSES OSM
has sent copies of this document to all interested parties of record.
Prior Federal Register notices on the Fall Creek Falls
unsuitability petition were the notice of intent to prepare an EIS
published in the Federal Register dated November 3, 1995 (60 FR 55815)
and the notice of availability of the draft combined PED/EIS dated May
1, 1998 (63 FR 24192).
Dated: June 13, 2000.
Allen D. Klein,
Director, Appalachian Regional Coordinating Center.
Appendix: Copy of Letter of Decision and Record of Decision and
Statement of Reasons
Letter of Decision
Designation of Certain Lands in the Watershed of Fall Creek Falls
State Park, Tennessee, as Unsuitable for Surface Coal Mining
Operations
Pursuant to Section 522 of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA) [30 U.S.C. 1272], the Office of Surface
Mining (OSM) was petitioned by 49 citizens, Save Our Cumberland
Mountains, and Tennessee Citizens for Wilderness Planning to designate
the watershed and viewshed of Fall Creek Falls State Park and Natural
Area in Van Buren and Bledsoe Counties, Tennessee, as unsuitable for
all types of surface coal mining operations.
In accordance with Section 522(d) of SMCRA [30 U.S.C. 1272(d)] and
Section 102 (2)(C) of the National Environmental Policy Act of 1969
(NEPA) [42 U.S.C. 4332(2))(C)], the OSM's Knoxville Field Office (KFO)
prepared a detailed Petition Evaluation Document/Environmental Impact
Statement (PED/EIS). The PED/EIS analyzed the petitioners' allegations,
the potential coal resources of the petition area, the demand for coal
resources, the impacts of such designation on the environment, and the
economy, and alternative actions available to the decision maker.
I have considered the information in the Fall Creek Falls
administrative record, including but not limited to the petition and
exhibits, information obtained by KFO, analysis of the petitioners'
allegations and the environmental impacts of the alternative actions
contained in the final PED/EIS, written comments received on the draft
and final PED/EIS's and oral comments received at the public hearing.
Based on the analysis of the information contained in the Fall Creek
Falls administrative record and presented in the final PED/EIS, I have
reached the following decision, as set out in the Record of Decision
and Statement of Reasons.
(1) I am exercising my discretion to designate Fall Creek Falls
State Park and Natural Area and the Cane Creek, Falls Creek, and Meadow
Creek watersheds as unsuitable for all types of surface coal mining
operations in accordance with 30 U.S.C. Sec. 1272(a)(3)(A) and (B) and
30 CFR 762.11(b)(1) and (b)(2).
(2) I am exercising my discretion to designate the Piney Creek
watershed as unsuitable for surface coal mining operations; provided,
that a surface coal mining operation may be permitted only in the upper
portions of the watershed if a portion of the proposed operation
includes previously mined areas and the permit applicant demonstrates
that water quality in receiving streams will not be degraded.
(3) I am not designating any lands within the Dry Fork watershed as
unsuitable for surface coal mining operations.
Copies of this decision will be sent to all parties involved in
this proceeding. The decision will become effective on the date of the
signing of the Record of Decision and Statement of Reasons. An appeal
of this decision must be filed within 60 days from the date below in
the United States District Court for the Eastern District of Tennessee,
as required by Section 526(a)(1) of SMCRA [30 U.S.C. Sec. 1276(a)(1)].
Dated: June 17, 2000.
Bruce Babbitt,
Secretary of the Interior.
Petition To Designate Certain Lands Around Fall Creek Falls,
Tennessee as Unsuitable for Surface Coal Mining Operations
Record of Decision and Statement of Reasons
I. Introduction
In response to a petition filed by 49 citizens, Save Our Cumberland
Mountains, and Tennessee Citizens for Wilderness Planning, I have
decided to designate Fall Creek Falls State Park and selected
watersheds within the petition area, in Van Buren and Bledsoe Counties,
Tennessee, as unsuitable for surface coal mining operations, with one
limited exception as discussed below. The following is a discussion of
the reasons supporting my decision.
[[Page 39180]]
II. Legal Backgound
Section 522(c) of the Surface Mining Control and Reclamation Act of
1977 (SMCRA) allows any person having an interest that is or may be
adversely affected to petition to have an area designated unsuitable
for surface coal mining operations. Under Section 504 of SMCRA, the
Secretary of the Interior is responsible for designating lands in
Tennessee as unsuitable. The Secretary of the Interior has delegated to
the Director of the Office of Surface Mining (OSM) the authority to
make a final decision on lands unsuitable petitions except for noncoal
mining [216 DM.1.1].
The SMCRA regulatory program for Tennessee is set out at 30 CFR
Part 942. Under that program, OSM is the regulatory authority for
Tennessee. Specific criteria and procedures for processing a petition
to designate non-Federal lands in Tennessee are incorporated by
reference in 30 CFR 942.762 and 942.764. Those sections incorporate the
criteria set out in 30 CFR Part 762 and the procedures set out in 30
CFR Part 764. OSM has complied with these provisions in reaching its
decision on the Fall Creek Falls petition.
SMCRA provides that the regulatory authority shall designate an
area unsuitable if it determines that reclamation pursuant to the
requirements of SMCRA is not technologically and economically feasible
[Section 522(a)(2)]. The regulatory authority may designate any area
unsuitable if such operations will (1) be incompatible with existing
State or local land use plans or programs [Section 522(a)(3)(A)]; (2)
affect fragile or historic lands in which such operations could result
in significant damage to important historic, cultural, scientific, and
esthetic values and natural systems [Section 522(a)(3)(B)]; (3) affect
renewable resource lands in which such operations could result in a
substantial loss or reduction of long-range productivity of water
supply or of food or fiber products [Section 522(a)(3)(C)]; or (4)
affect natural hazard lands in which such operations could
substantially endanger life and property [Section 522(a)(3)(D)].
The petition in this case proposes that designation of the Fall
Creek Falls petition area be made on the basis of the criteria of
Sections 522(a)(2) and 522(a)(3)(A), (B), (C) and (D). The petition
contains numerous factual allegations and documentation to support the
petitioners' claims that the area should be designated under the
mandatory and discretionary criteria.
III. Events
The petition area encompasses the watersheds of Piney Creek, Falls
Creek, and Meadow Creek, and portions of Cane Creek and Dry Fork
watersheds. The petition area is approximately 85,588 acres, located in
Bledsoe and Van Buren Counties, Tennessee.
The Fall Creek Falls unsuitability petition was submitted to OSM's
Knoxville Field Office (KFO) on July 14, 1995, by 49 citizens and two
organizations, Save Our Cumberland Mountains and Tennessee Citizens for
Wilderness Planning. KFO determined the petition to be complete on
October 5, 1995, and initiated evaluation of the petition allegations.
Because the decision on this petition may have a major effect on
the quality of the human environment, KFO decided to prepare a combined
petition evaluation document (PED) and environmental impact statement
(EIS). A notice of intent to prepare a draft PED/EIS, including a
request for public participation in determining the scope of the issues
to be addressed, was published in the November 3, 1995, Federal
Register (60 FR 55815) and in the November 15, 1995, Tennessee
Administrative Record. It was also mailed to all persons with an
identifiable ownership interest in the petition area and interested
State and Federal agencies. A scoping meeting was held on December 5,
1995, at Fall Creek Falls State Park. Approximately 180 persons
attended the scoping meeting, 25 of whom presented oral comments.
By the close of the scoping comment period, on January 26, 1996,
KFO had received 49 scoping comment letters. In determining the scope
of the PED/EIS, KFO considered all comments contained in the public
record for the petition and the proposed PED/EIS.
KFO announced the availability of the draft PED/EIS and requested
public comments in the May 1, 1998 Federal Register (63 FR 24192) and
in local newspapers. In these notices and newspaper advertisements, KFO
also gave notice of the June 18, 1998, public hearing. KFO provided
three public comment periods on the draft: May 1 to July 30, 1998;
August 21 to September 16, 1998; and January 29 to April 29, 1999.
Approximately 350 persons attended the June 18, 1998 hearing, and
45 persons presented oral comments. During the comment period, 606
letters provided written comments on the draft PED/EIS. All comments
were considered in the final PED/EIS.
The notice of availability of the final PED/EIS was published in
the Federal Register on March 3, 2000 (65 FR 11575 and 11604); in the
Tennessee Administrative Record on March 15, 2000; and in seven local
or major newspapers across the State. Governing regulations at 40 CFR
1506.10(b)(2) require that no decision on the petition be made until 30
days after the PED/EIS is made available to the public. This prescribed
wait period was extended to May 3, 2000 (65 FR 15921, March 24, 2000).
IV. The Petition
The Fall Creek Falls Lands Unsuitable for Mining petition contained
five primary allegations, with numerous factual allegations and
suballegations. The petition is printed in Appendix B of the final PED/
EIS. The five primary allegations in the petition are summarized as
follows: (1) Mining the area would affect fragile or historic lands
which could result in significant damage to important historic,
cultural, scientific, or esthetic values; (2) mining the area would
affect renewable resource lands which could result in a substantial
loss or reduction in long-range productivity of water supply or of food
or fiber products; (3) mining would affect natural hazard lands which
could substantially endanger life and property; (4) mining the area
would be incompatible with existing State or local land use plans or
programs; and (5) reclamation is not technologically and economically
feasible.
V. Decision Alternatives
KFO evaluated several decision alternatives ranging from
designating all lands in the petition area unsuitable for all surface
coal mining operations (the proposed action in the Petition) to not
designating any of the lands in the area as unsuitable for surface coal
mining operations (alternative 1). Other alternatives considered
included not designating any of the lands in the area as unsuitable,
but requiring an environmental impact statement for any surface coal
mining operation proposed in the area (alternative 2), the ``No
Action'' alternative (alternative 4), and various options for
designating only parts of the area as unsuitable for all or certain
types of surface coal mining operations (alternative 3). The options
considered under alternative 3 included designating portions of the
area as unsuitable for certain types of coal mining operations based on
the presence of acid-forming materials or based on mining method
(alternative 3a), designating selected coal resources within the area
as unsuitable for certain
[[Page 39181]]
types of surface coal mining operations (alternative 3b), and
designating selected watersheds within the area as unsuitable for
certain types of surface coal mining operations (alternative 3c, the
preferred alternative). The full text discussion of the petition
decision alternatives and their environmental impacts is found in
Chapter V of the final PED/EIS. The rationale for selection of
alternative 3c as the preferred alternative is discussed at length in
Section VII of this document.
Arguably, the environmentally preferable alternative is the
proposed action, which is to designate all lands within the petition
area as unsuitable for surface coal mining operations. This would
provide the maximum level of environmental protection for the petition
area, because no mining activities could occur within the petition
area, regardless of the likelihood of environmental impacts. However,
as outlined in this Record of Decision and Statement of Reasons, I have
determined that there would be significant benefits from remining in
the headwaters of the Piney Creek watershed, and that remining
operations would be unlikely to affect the natural resources of the
Park. I have also determined that surface coal mining operations in Dry
Fork watershed would be unlikely to have any significant effect on the
Park's surface resources.
I have also considered the purposes set out in SMCRA Section 102. I
have concluded that this decision best balances all of these purposes,
including those set out in Sections 102(a), (d), (f), (h), and (m).
These sections state that ``it is the purpose of this Act to--(a)
establish a nationwide program to protect society and the environment
from the adverse effects of surface coal mining operations; * * * (d)
assure that surface coal mining operations are so conducted as to
protect the environment; * * * (f) assure that the coal supply
essential to the Nation's energy requirements, and to its economic and
social well-being is provided and strike a balance between protection
of the environment and agricultural productivity and the Nation's need
for coal as an essential source of energy; * * * (h) promote the
reclamation of mined areas left without adequate reclamation prior to
the enactment of this Act and which continue, in their unreclaimed
condition, to substantially degrade the quality of the environment,
prevent or damage the beneficial use of land or water resources, or
endanger the health or safety of the public; * * * and (m) wherever
necessary, exercise the full reach of Federal constitutional powers to
insure the protection of the public interest through effective control
of surface coal mining operations.'' Further, this decision best
implements the requirements of Section 522(a), for the reasons set out
below. The preferred alternative provides for designation of the Falls
Creek, Meadow Creek and Cane Creek watersheds, the lower reaches of the
Piney Creek watershed, and the Park as unsuitable for mining. This
alternative provides the environmental protections needed for the
fragile resources of the Fall Creek Falls State Park and for the Park's
land use plans and program.
The preferred alternative allows mining in the headwaters of the
Piney Creek watershed, which has been extensively impacted by
unreclaimed or unregulated surface coal mining operations. A mining
operation would be required to include remining of previously mining-
impacted areas. This alternative would provide significant potential
benefits to Piney Creek watershed through reclamation of mining-
impacted lands, restoration of stream biological communities and over-
all improvements to water quality in the Piney Creek watershed.
Allowing mining in the Dry Fork watershed is not predicted to have any
significant impacts on the Park's fragile surface resources or land use
plans and programs because Dry Fork subsides underground during low
flow six miles before it reaches the Park boundaries and reemerges
approximately six miles north of the Park. Mining in the Dry Fork
watershed also is predicted to have little or no impact on the ground
water systems of Dry Fork and the Park. This is because the waters of
Dry Fork undergo beneficial chemical changes as the creek flows
underground into the karst system. That system neutralizes any acidic
changes that might have occurred from contact with any mining-impacted
waters of the upper reaches of the Dry Fork watershed, where the coal
reserves are located. Thus, allowing mining and remining of the upper
reaches of the Dry Fork watershed would have similar beneficial effects
on the environment as in the upper reaches of the Piney Creek
watershed, i.e., restoration of stream biological communities, over-all
improvements to water quality in the Dry Fork watershed, etc. Thus, the
preferred alternative provides protection to the Park's fragile
resources and land use plans and program and allows restoration of
mine-impacted areas in the upper reaches of the Piney Creek and Dry
Fork watersheds. Approximately 6.58 million tons of coal in the Dry
Fork watershed and 8 million tons in the Piney Creek watershed would be
available for extraction to help meet energy demands with no
significant risk to the Park's resources. Under the preferred
alternative, no mining could occur in the lower portions of the Piney
Creek watershed closer to the Park where risk of impact on the Park is
greater. In the headwaters of the Piney Creek watershed, mining would
be allowed only on a case-by-case basis when the operation includes
areas previously disturbed by mining and the applicant demonstrates the
water quality will not be degraded, and that impacts from previous
mining will be mitigated.
The analyses in the PED/EIS predict that should there be a failure
of a mining operation in the headwaters of Piney Creek, degraded stream
conditions are likely to dissipate before reaching Park boundaries,
causing no significant impact on the Park's water quality. Thus, the
preferred alternative protects the fragile resources of the Park,
minimizes the likelihood of conflict with the State's land use plans
for the Park, and provides for restoration and reclamation of the
mining-impacted lands and waters of the watersheds.
VI. Findings
The petitioners presented five primary allegations which mirror the
five designation criteria of SMCRA Sections 552(a)(2) and (a)(3) and 30
CFR 762.11(a) and (b)(1) through (b)(4).
The petitioners also presented numerous allegations of fact and
sub-allegations of fact in support of the five primary allegations. The
intervenors presented allegations in rebuttal to the petitioners' five
primary allegations, the allegations of fact, and the sub-allegations
of fact. A summary of the petitioners' and the intervenors' allegations
follows, along with my findings relative to each allegation. The
primary allegations are presented in the order in which they appear in
the petition. These findings are based upon all the information
contained in the public record for this petition.
A. Primary Allegation No. 1--Fragile or Historic Lands
1. Petition allegation--The petition area should be designated
unsuitable for surface coal mining operations because mining the area
would affect fragile or historic lands in which such operations could
result in significant damage to important historic, cultural,
scientific, or esthetic values or natural systems.
a. The petitioners allege that mining within the petition area
would affect the hydrologic balance of the watersheds which drain into
the Fall Creek Falls
[[Page 39182]]
State Park and affect the Park's unique hydrologic resources. They
further allege that the primary reason the Park was set aside was
because of its waters and water-formed features and that the watershed
areas outside of the Park are critical to the existence of the Park.
The petitioners also allege that streams, aquatic life and the falls
are at risk when mining occurs in the Sewanee coal seam.
The intervenors allege that the petition area does not meet the
regulatory definition of ``fragile lands'' and that the petition does
not provide any supportive evidence that mining in accordance with
SMCRA would significantly affect the alleged factors identified or
cause any identified significant damage to these values.
b. The petitioners allege that changes in water chemistry, changes
in pH, increases in siltation, and changes in stream flow would result
in significant damage to the wildlife which depend on the streams as
habitat and/or sources of drinking water. The petitioners state that
Cane Creek, which is the principal watercourse through Fall Creek Falls
State Park, has been designated an environmentally sensitive stream by
the Tennessee Department of Environment and Conservation (TDEC) and,
therefore, the petition area qualifies as fragile lands.
The intervenors allege that the designation of a specified portion
of Cane Creek as an environmentally sensitive stream by the State does
not equate to the surrounding host landscape as fragile lands.
c. The petitioners allege that the presence of endangered species
qualifies the petition area as fragile lands.
The intervenors allege that the presence of threatened and
endangered species in the petition area does not qualify the area as
fragile lands.
d. The petitioners allege that Cane Creek, downstream of the Park
boundary, is a stocked trout stream and cite a letter written by the
Fish and Wildlife Service stating that Cane Creek is considered the
best stocked trout stream on the Cumberland Plateau. Further, the
petitioners allege that untreated water discharging from surface coal
mining operations would seriously degrade the water quality of Cane
Creek and would be toxic to stream biota in the vicinity of the outfall
and for an unknown distance downstream.
The intervenors allege that: (a) Trout stocking activities occur
approximately 13 miles downstream from the petition area proper, (b)
historic water quality data collected from Cane Creek does not support
the allegation of water degradation as stemming from past surface coal
mining operations, and (c) advanced mining and reclamation technologies
are being implemented to significantly minimize and/or prevent off-site
damage to receiving steams. The intervenors also allege that trout
stocking in Cane Creek below the Park does not qualify the petition
area as fragile lands.
e. The petitioners allege that the presence of caves and cave-
inhabiting species makes the petition area a fragile land. The
petitioners further allege that mining-induced degradation of Cane
Creek could also adversely affect the aquatic life in the caves located
in the Cane Creek gorge as well as the Indiana bat, a Federally-listed
endangered species, that inhabits caves in the area. The petitioners
also allege that underground mining usually results in subsidence,
either planned or unplanned, and that subsidence could alter the flow
of the groundwater, resulting in the dewatering of streams and,
consequently, diverting flows from the caves.
The intervenors allege that the presence of caves, cave-inhabiting
species, and the occurrence of endangered cave species does not qualify
the petition area as fragile lands.
f. The petitioners allege that the presence of rare floral species
in the petition area qualifies the area as fragile lands. The
petitioners further allege that off-site effects of surface coal mining
operations within the petition area could have a severe adverse impact
on a number of rare floral species.
The intervenors allege that the presence of threatened and
endangered species in the petition area does not qualify the area as
fragile lands.
g. The petitioners allege that surface coal mining operations would
access areas that are currently remote and thereby cause adverse
effects on habitats and wildlife from foot and vehicle travel,
pollution, and other factors relating to more human contact in the
area. The petitioners also allege that surface coal mining operations
in the Cane Creek watershed could have a direct and negative impact on
TWRA's long-term plans to use the area as turkey and otter habitat.
The intervenors allege that, for the most part, the entire petition
area proper is already ``honey-combed'' with multiple access avenues
and that access requirements stemming from any future mine development
can utilize the majority of existing roads, power lines, water lines,
etc., without causing any further significant disturbances to the area.
The intervenors further allege that SMCRA provides flexibility to
develop reclaimed areas that are suited to turkey and otter habitats.
h. The petitioners allege that esthetics are essential to the
Park's land use plans and that surface coal mining operations outside
the Park are incompatible with the Fall Creek Falls Strategic
Management Plan. They allege that surface coal mining operations in the
petition area would adversely alter the views from Park overlooks and
adversely affect the visitor's experience.
The intervenors allege that the existing tree line, undulating
topography, and the buffer zone around the Park itself provide a
natural shield for the overlook areas referenced by the petitioners,
and that surface coal mining operations in the petition area could not
be seen from the natural overlooks in the Park.
i. The petitioners allege that surface coal mining operations would
have an adverse impact on historic lands (i.e., the Trail of Tears) in
which such operations could result in significant damage to important
historic lands. The petitioners also allege that there are burial
mounds and cemeteries within the Park and the petition area that
require the special protections of designation.
The intervenors allege that the presence of the Trail of Tears
within the petition area does not qualify the area as fragile
(historic) lands because: (1) The location of the Trail of Tears
comprises an extremely small portion, less than three percent, of the
petition area and is located in the southern portion of the area; and
(2) the Trail of Tears does not meet the definition of fragile lands
because a majority of the Trail parallels or overlies existing roadways
in the petition area.
j. The petitioners allege that Park visitors use various sections
of Cane Creek for swimming and church baptisms and that mining impacts
on water quantity and quality would adversely affect the cultural
values of these areas.
The intervenors allege that Cane Creek water quality is expected to
at least maintain status quo despite future mining initiatives.
k. The petitioners allege that noise and dust would affect Park
visitation, local residents, and users of the Trail of Tears.
The intervenors allege that the petitioners' comments are not
supported by fact and only reflect biased opinions in favor of selected
individual beliefs.
l. The petitioners allege that the Park is a ``fragile land'' as
defined in 30 CFR 762.5 and the watersheds of the Park are the
``essence'' of the term fragile lands. Therefore, the petitioners
assert that the
[[Page 39183]]
entire petition area which makes up the watershed of the Park should be
designated under the ``fragile'' criterion.
The intervenors allege that a designation of the entire watershed
of the Park as ``fragile lands'' is not supported by fact.
2. Findings--Fragile and historic lands. Based on the record, and
for the reasons set out below, I find that surface coal mining
operations in the Park or in certain watersheds outside the Park would
affect the fragile lands of the Park and certain other fragile lands in
the petition area, and could result in significant damage to important
petition area natural systems and cultural and esthetic values.
a. Fragile Lands in the Petition Area
Park fragile lands. I find that the Park is fragile land
because it has important natural, ecologic, and esthetic resources that
could be significantly damaged by surface coal mining operations.
The natural and ecologic resources of the Park include the
following:
The Park provides valuable habitat for threatened and
endangered species of fish and wildlife as described in Chapter II,
Section H of the PED/EIS.
Cane Creek inside the Park has numerous occurrences of
stream-dependent threatened and endangered species and esthetic
resources of high scenic value, forming an environmental corridor
within the Park which has a concentration of ecologic and esthetic
features as indicated in Chapter V.B.22 of the PED/EIS.
The Park is a valuable habitat for rare floral species as
described in Chapter II, Section H of the PED/EIS.
The esthetic resources of the Park include Fall Creek Falls, Cane
Creek Falls, Cane Creek Cascades, Piney Falls, and various viewsheds
and gorges throughout the Park.
The Park is an area of high recreational and cultural value due to
high environmental quality, and is used for recreational, educational
and religious activities.
Fragile lands in the petition area outside the Park. I
find that certain watersheds in the petition area outside the Park are
fragile lands because of the existence of natural systems within these
watersheds consisting of streams with high water quality and water
quantity (Cane, Meadow, and Falls Creek watersheds, and the lower
reaches of the Piney Creek watershed).
B. Whether surface coal mining operations will affect fragile
lands. I find that surface coal mining operations in the Park or in
certain watersheds outside the Park, would affect the fragile lands of
the petition area, because of the inherent environmental impacts of
surface coal mining operations, as addressed in Chapter V, Section F of
the final PED/EIS. These impacts could potentially damage natural
systems and cultural and esthetic values within and outside the Park
during the mining and reclamation phases of surface coal mining
operations. I find that SMCRA does provide significant environmental
protection from inherent impacts through its permitting requirements
and performance standards. Nonetheless, although these impacts might be
relatively unlikely to cause significant damage, if such damage did
occur the risk to park resources would be unacceptable.
Among those inherent impact which may occur in a surface coal
mining operation in compliance with SMCRA are:
Removal of wildlife habitat within the mining area,
Alterations of the soil and geologic structure,
Elevated levels of total dissolved solids in surface and
ground water,
Noise, dust, and vibration, and
Increased sedimentation to the receiving stream from
construction of drainage control structures and roads.
In addition, surface coal mining operations in the Park and certain
other parts of the petition area could have other impacts on fragile
lands, as discussed below.
c. Damage to important natural systems and cultural and esthetic
values of fragile lands. I find that surface coal mining operations in
the Park and in certain watersheds of the petition area outside the
Park would affect these fragile lands and could result in significant
damage to the important natural systems, cultural values and esthetic
values of these fragile lands, as described below.
i. Potential Damage to Park Systems and Values
Important natural systems. Surface coal mining operations
in the Park or in certain parts of the petition area outside the Park
could cause significant damage to important natural systems of the
Park, including:
Threatened and endangered species of fish and wildlife and
their habitats in the park.
The environmental corridor along Cane Creek inside the
Park, and its ecological and esthetic features.
The rare floral species and their habitats in the Park.
Important esthetic values. Surface coal mining operations
in the Park or in the petition area outside the Park could result in
significant damage to the important esthetic values of the Park's
esthetic resources, including Fall Creek Falls, Cane Creek Falls, Cane
Creek Cascades, Piney Falls, and various overlooks, viewsheds, and
gorges. Significant damage to these important esthetic resources could
adversely affect the Park visitors' experience.
Important cultural values. Surface coal mining operations
in the Park or in the petition area outside the Park could cause
significant damage to the important cultural values of the Park,
including recreational, educational and religious activities.
ii. Potential Damage to Important Natural Systems Outside the Park--
Streams
The streams of certain watersheds in the petition area outside the
Park (Cane, Meadow, and Falls Creek watersheds, and the lower reaches
of the Piney Creek watershed) are important natural systems because
they are the primary water sources for the unique waters and water-
formed features of the Park and its stream-dependent ecologic
resources. Surface coal mining operations in these watersheds could
cause significant long-term damage to these waters and features and
dependent ecologic resources.
iii. Other Findings--Primary Allegation 1
Threatened and endangered species outside the Park. I find
that the record does not demonstrate that the petition area outside the
Park is a fragile land because of the existence of threatened and
endangered species of fish and wildlife. Few occurrences of these
threatened and endangered species have been identified in the petition
area outside the Park, and those occurrences are scattered throughout
the watersheds. Only one occurrence has been identified in a location
of known recoverable coal reserves. Rare floral threatened and
endangered species have been identified in areas of known coal reserves
at only two locations in the petition area outside the Park. These two
locations are in the upper Piney Creek watershed. However, the presence
of rare floral species at these two locations in the upper Piney Creek
watershed outside the Park is not sufficient to classify either the
entire petition area outside the Park or the Piney Creek watershed
where they are located as an important ecologic system of the petition
area and as a fragile land. This is in part because SMCRA includes
protection measures which should, in this case, provide any necessary
protections for the species at these two locations. Other rare floral
[[Page 39184]]
threatened and endangered species are scattered throughout the
remaining four watersheds, with few occurrences in the areas in which
they have been identified. These few occurrences are not in areas of
known recoverable coal reserves. Concerning the caves and cave habitats
for threatened and endangered species, I find that the presence of
caves and potential cave habitats for threatened and endangered species
in the petition area outside the Park does not justify a determination
that they are an important natural system. While these caves may be a
potentially valuable habitat for cave-inhabiting species, there are no
identified occurrences of cave-inhabiting threatened and endangered
species in the petition area. Therefore, I find that the recorded does
not justify a determination that the presence of caves and potential
cave habitats in the petition area is sufficient to classify the
petition area as an important ecologic system or as fragile lands.
Trout fishery. I find that neither the Park nor the
petition area outside the Park is fragile land because of the existence
of a trout fisher, located on a section of Cane Creek that is outside
the petition area and the Park.
Esthetic values outside the Park. I find that the record
does not identify esthetic values in the petition area lands outside
the Park that justify considering them fragile lands. The petition area
outside the Park does not possess either overlooks, gorges and falls
like those in Fall Creek Falls State Park, or other significant
esthetic values that support designation under the fragile lands
criterion.
Cultural values outside the Park.
I find that the record does not demonstrate that the petition area
outside the Park is fragile land because of cultural values. Cultural
activities in the petition area outside the Park are limited, because
the area consists of private land holdings. Typical activities are
hunting, fishing, camping, swimming, seed gathering, berrying, etc., by
local residents living in the area. There are no developed recreational
resources in the petition area outside the Park, and recreation is not
a primary land use in any of the watersheds outside the Park. Although
the cultural activities referenced above are no doubt important to
those living in and near the petition area outside the Park, these
activities are not unique to these areas, they do not have uncommon
importance in the region, and they are not due to high environmental
quality of the lands. Thus, the record does not identify important
cultural values in the petition area outside the Park that would
support designation under the fragile lands criterion.
Terrestrial wildlife. I find that the record does not show
the presence of terrestrial wildlife that would justify considering the
Park or the petition area outside the Park to be fragile land. I find
that the existence in the petition area of habitats for wild turkey and
otters does not support considering the petition area to be fragile
lands, for the following reasons. The wild turkey is not a threatened
or endangered species. Nor has the Park been designated a valuable or a
critical habitat for turkeys. The State of Tennessee's wild turkey
stocking program is very successful in the Park, and the turkey
population is now expanding into the petition area. The turkey stocking
by the State is for hunting. Concerning otters, I find that otters are
on the State's threatened and endangered list. However, the record
shows there have been no occurrences of otters in the Park or in the
petition area outside the Park. Further, the record documents no other
valuable habitats for other terrestrial wildlife, and indicates that
impacts on other terrestrial wildlife from potential surface coal
mining operations in the petition area would be minor for the following
reasons. Mobile species typically seek food and shelter elsewhere
during active mining. Although less mobile species would suffer losses
during the land clearing phase of an operation, the contemporaneous
reclamation requirements of SMCRA would mitigate impacts on terrestrial
wildlife.
Environmentally sensitive stream. I find that the
designation of a portion of Cane Creek, and most recently a portion of
Dry Fork, as tier II (environmentally sensitive) streams is a State
designation relevant only to the quality of discharge allowed to enter
these streams. Although some of the criteria evaluated by the State in
making its stream evaluations are similar to those considered in the
``unsuitability'' review process, any designation of a resource as
``fragile land'' must be based on whether surface coal mining
operations could affect important historic, cultural, scientific or
esthetic values or natural systems (regardless of any stream
classification for other purposes) and could cause significant damage.
As indicated above, I have determined that Cane Creek within the Park
and in the petition area outside the Park is an important natural
system which may be affected by surface coal mining operations, and
that such operations could cause significant damage to this system. As
indicated below, mining in the Dry Fork watershed is not predicted to
affect important natural systems or esthetic and cultural values in the
petition area. The record does not demonstrate that surface coal mining
operations in the Dry Fork watershed would affect the fragile lands of
the Park or could cause significant damage to important values or
systems. The record also does not demonstrate that surface coal mining
operations in the Dry Fork watershed would be incompatible with the
State's land use plans and programs. Therefore, the designation of
these streams as ``environmentally sensitive'' is not germane to the
determination of whether Cane Creek or Dry Fork, either in the Park or
in the petition area outside the Park, should be considered as
``fragile land''.
Resources and values in Dry Fork. I find that the record
does not justify designation of Dry Fork under the criterion for
fragile and historic lands.
The cave system through which Dry Fork flows may provide valuable
habitat for cave-inhabiting species which are considered to be
important ecological resources. However, water quality and quantity
changes originating in the coal resource areas of the petition area
would have little effect in the cave areas of the petition area and the
Park because of the beneficial chemical changes that take place when
the water enters the cave system. Also, as the areas of major coal
reserves in this watershed are several miles from the identified cave
habitats, I find that there is little likelihood that surface
activities associated with surface coal mining operations, such as
blasting and clearing vegetative cover, would have a significant
adverse impact on the habitat of cave species in the petition area.
There is no evidence in the record that the Dry Fork area contains
uncommon geologic formations or paleontologic sites. Nor does it
contain any National Natural Landmarks or areas meeting the definition
of historic lands based on 30 CFR 762.5. Nor is there any evidence on
the record relative to it being an environmental corridor containing a
concentration of ecologic and esthetic features or an area of
recreational value due to high environmental quality.
The Dry Fork watershed is the second largest watershed in the
petition area but it does not provide any surface water to the Park
except during an extremely heavy precipitation event. Dry Fork subsides
and flows through the cave systems after it enters Dry Fork Gorge. Dry
Fork then resurfaces outside the Park and petition area directly into
Cane Creek. As a result of Dry Fork flowing underground beneath the
Park, the stream does not have a significant
[[Page 39185]]
impact on the important natural systems and esthetic and cultural
values of the Park. Therefore, I find that surface coal mining
operations in Dry Fork watershed would not affect fragile lands in the
Park.
d. Factors in evaluating the risk of significant damage. I find
that the risks and uncertainties associated with surface coal mining
operations conducted in the Park and in certain watersheds outside the
Park could result in adverse impacts causing damage to the fragile
lands of the Park and those watersheds. When evaluating the risk of
damage to the Park from a surface coal mining operation, I considered
the probability that a surface coal mining operation will cause damage
and the impacts that could result. I find that the record demonstrates
that there are a number of uncertainties in evaluating the impacts of
surface coal mining operations in such a large petition area, as
follows.
Recoverable coal reserve locations. I find that complete
information is not available on the location and character of
recoverable coal reserves, and therefore the nature and degree of risks
from surface coal mining operations cannot be calculated with
certainty. The PED/EIS analysis of recoverable coal resource
information was based on the limited available information. the PED/EIS
was unable to determine if all coal reserves had been identified. Thus,
additional coal resources may be present within the Park and petition
area outside the Park, and any such additional coal resources could
result in additional uncertainties or risks to the Park. The PED/EIS
could not determine any such additional uncertainties or risks, and
thus did not calculate with certainty the level of risk to the Park or
other protected resources under this designation criterion.
Location fo acid- and toxic-forming materials. The
occurrence of potentially acid- and toxic-forming material associated
with the coal seams of the petition area is generally uncertain,
nonuniform and discontinuous throughout the petition area. Thus, the
PED/EIS could not predict with certainty the locations of such
materials, or the levels of risks to the Park resources under the
designation criteria.
Long-term success of AMD predictive and preventive
techniques. Since the passage of SMCRA in 1977, approximately 205
permits have been issued in the southern coal fields of Tennessee. The
majority of these sites have been successfully reclaimed. Eight mines
or approximately 3.9 percent of the sites permitted have been
identified as perpetual acid mine drainage (AMD) producers requiring
long-term treatment. Four of these permits were issued during the
Interim Program when minimal environmental controls were in place. The
remaining four were issued between 1984 and 1992, when regulatory
authorities were making significant changes to enhance prediction and
prevention techniques for potential AMD production. Regulatory
authorities, including OSM, are now using improved prediction and
prevention techniques, and OSM now requires more and better base-line
data from operators as a basis for analyses. Since 1992, KFO has issued
nine permits in the southern coal fields, seven of which have developed
acid/toxic drainage. The permittee(s) contend that these sites will not
produce toxic drainage once reclamation is complete. These seven sites
may or may not be long-term producers of AMD. Thus, uncertainties exist
even with those more recent permits where enhanced prediction
techniques were used; and several more years of experience with these
methodologies will be required to verify long-term efficacy in the
petition area.
Water quality impacts of non-acid or non-toxic materials.
Some water quality alterations can result from surface coal mining
operations in parts of the petition area that do not have acid or toxic
materials. Alterations can include significant increases in alkalinity,
total dissolved solids, pH, resuspension of iron from previously
weathered overburdens or spoils, and generation of manganese. These
alterations are associated with large-scale disruptions of strata
interacting with ground and surface waters. Available information is
not sufficient to predict whether any particular alterations could
kill, injure, or impair biota in the areas of discharges, or how far
downstream the impacts would be. However, SMCRA does provide permitting
requirements and performance standards which should significantly
mitigate such impacts.
Operator error. The success of a toxic material handling
plan (TMHP) is contingent on successful implementation of several
steps, including: (1) Adequate sampling of the overburden, (2) accurate
analysis of the overburden materials, (3) adequate design for handling
the acid- or toxic-material, and (4) effective implementation of the
TMHP. At any point in these steps, operator error can occur and
potentially result in the formation of AMD, which could significantly
impact the water resources of the receiving stream.
Although some of the impacts listed above may have low
probabilities of occurring, as discussed in Chapter V of the PED/EIS, I
find that, if they did occur, the impacts on the Park would be
significant and possibly severe.
e. Historic lands--Trail of Tears. I find that the existence of
segments of the Trail of Tears within the petition area outside the
Park does not make either the Park or the petition area outside the
Park a historic land. I find that there are no identified areas that
have been certified by the National Park Service, nor does the record
demonstrate that there are any areas that retain enough historic
character to warrant the additional protection provided by designation
either in the Park or in the petition area outside the Park. I also
find that there are no readily identifiable burial mounts or Native
American artifacts in the Park or in the petition area outside the
Park. If burial mounds or Native American artifacts were identified in
the vicinity of a surface coal mining operation, there are a series of
statutes and rules (Federal and State) that would provide special
protections for their preservation.
f. Fragile and historic lands--Summary. In summary, I find that the
Park is fragile land because of the existence of its important natural
systems, its ecologic resources (threatened and endangered species and
their habitats), its cultural values and its esthetic values. I find
that Cane, Meadow, and Falls Creek watersheds, and the lower reaches of
the Piney Creek watershed in the petition area outside the Park are
also fragile lands because these streams of high water quality and
water quantity are the primary water sources for the waters and water-
formed features of the Park and its stream-dependent ecologic
resources. I find that surface coal mining operations in the Park or
these portions of the petition area outside the Park will affect these
fragile lands.
I find that surface coal mining operations in the Park or these
portions of the petition area outside the Park pose an unacceptable
risk of causing significant damage to the important natural systems and
cultural and esthetic values of the fragile lands in the Park and the
petition area outside the Park. Although some risks may have low
probabilities of occurring, if they did occur the impacts on these
fragile lands could be significant and long-term.
I find that the water quality and quantity of the streams entering
the Park from the Cane Creek, Meadow Creek, and Falls Creek watersheds
collectively, have a significant influence on the
[[Page 39186]]
Park's natural systems, its ecologic resources, and its cultural and
esthetic values. I find that the water quality and quantity in the Dry
Fork watershed have no effect on the Park's surface resources except
during high flow periods, because the water subsides underground prior
to entering the Park and re-emerges north of the Park's boundaries.
I also find that surface coal mining operations in the Crane Creek,
Meadow Creek, and Falls Creek watersheds, and the lower reaches of the
Piney Creek watershed, could potentially impact the water quality and/
or quantity of these streams which are essential to the continued
existence of the unique waters and water-formed features of the Park,
the natural values of the stream biota in the Park, the threatened and
endangered species of the Park, and the esthetic values of the Park.
I find that the fragile lands of the Park would be a risk if an
operator failed to mitigate unanticipated acid or toxic mine drainage
from a surface coal mining operation within the Park or within one of
these watersheds outside the Park, and then abandoned the site without
an adequate performance bond to threat the acid or toxic mine drainage.
Although this may be a relatively unlikely occurrence, due to the
preventive and mitigative requirements of SMCRA, it is an unacceptable
risk because of the potential impact that untreated acid or toxic mine
drainage could have on the important natural systems of the petition
area outside the Park and the important natural systems and esthetic
and cultural values of the park. Park resources influenced by the Cane
Creek, Meadow Creek, and Falls Creek watersheds and the lower reaches
of the Piney Creek watershed, could potentially be damaged. The degree
of damage would depend on the character, intensity, and duration of the
untreated acid or toxic mine drainage.
In addition, the limited drill hole data available to OSM and the
variability in the occurrence of acid/toxic-forming material in the
watersheds increases the risk that a permitted surface coal mining
operation might produce significant amounts of acid/toxic material. And
even with state-of-the-art-predictive and preventive techniques, a
permittee may misapply the mining operations or reclamation plan, and
create AMD. That AMD could impact the important natural systems and
cultural and esthetic values of the Park as referenced above.
B. Primary Allegation No. 2--Renewable Resource Lands
1. Petition allegation--The petition area should be designated
unsuitable for surface coal mining operations because mining the area
would affect renewable resource lands in which the operations could
result in a substantial loss or reduction in long-range productivity of
water supply or of food or fiber products.
a. The petitioners allege that ground water in the petition area is
unpredictable and that the inconsistent quality and quantity of ground
water are natural hazards.
The intervenors allege that conducting surface coal mining
operations in the petition area will not result in a substantial loss
or reduction in long-range productivity of water supply. The
intervenors also state that the ground waster resources in the petition
area are predictable and manageable. The intervenors state that a site-
specific determination must be made on current information.
b. The petitioners allege that pollution from surface coal mining
operations could make Cane Creek unpotable to hikers because
contaminants entering the stream from surface coal mining operations
would result in unacceptable degradation, making it potentially
unusable as a drinking water supply.
The intervenors allege that the petitioners have not provided
documentation which suggests or demonstrates that surface coal mining
operations will result in a substantial loss or reduction of long-range
productivity of water supply. The intervenors also allege that
historical water quality from Cane Creek, based on USGS records, show
that water quality has not been affected in the watershed despite
significant previous surface coal mining operations.
c. The petitioners allege that the petition area is used for
hunting, fishing, and farming, all of which could be adversely affected
by changes in water quality or quantity due to surface coal mining
operations. The petitioners also assert that the area is used by local
residents for the gathering of berries, seeds for horticultural
projects, etc., which could be adversely affected by surface coal
mining operations.
The intervenors allege that surface coal mining operations in the
petition area will not result in a substantial loss or reduction in
long-range productivity of food or fiber products.
2. Findings--Renewable resource lands. I find that there are
renewable resource lands in the petition area outside the Park. Also, I
find that the record demonstrates that surface coal mining operations
could affect renewable resource lands. However, for the following
reasons, I find that the record does not demonstrate that surface coal
mining operations could result in a substantial loss or reduction of
long-range productivity of water supply or of food or fiber products.
a. Food and fiber productivity. I find that there are lands in the
petition area outside the Park that contribute significantly to the
long-range productivity of food and fiber products. Therefore, I find
that these lands are renewable resource lands. However, I find that the
record does not demonstrate that water quality impacts of surface coal
mining operations on these renewable resource lands would result in a
substantial loss or reduction of long-range productivity of food or
fiber products. I find that there have been significant impacts to
water quality in Dry Fork and in Piney Creek as a result of pre-SMCRA
mining activities. However, silvicultural property owners have stated
that fiber production in this area has not been affected by any mining
impacts to the water. Similarly, the record does not demonstrate that
agriculture has been affected by the pre-SMCRA mining that occurred in
the petition area. Both silviculture and agriculture in the petition
area rely on precipitation as a water source, rather than ground or
surface water. Therefore, there is little likelihood that production of
food or fiber products would be significantly damaged by water quality
impacts of surface coal mining operations.
b. Water supply productivity. I find that the record does not
demonstrate that the petition area is renewable resource land because
of ground water, as ground water in the petition area does not
contribute significantly to the long-range productivity of water
supply. Water supplies in the petition area are provided by public
utilities with water sources outside the petition area. There are a few
well users scattered throughout the petition area, but those well users
would have access to public utility water in the event their wells no
longer produced water acceptably. Likewise, hikers and campers
occasionally use Cane Creek in the Park as a water source, but the
incidental or occasional use of a stream as a water supply, does not
demonstrate that the area contributes significantly to long-range
productivity of the water supply.
C. Primary Allegation No. 3--Natural Hazard Lands
1, Petition allegation--The area should be designated unsuitable
for surface coal mining operations because mining would affect natural
hazard lands in which such operations could substantially endanger life
and property.
[[Page 39187]]
The petitioners allege that mining can increase flooding. They
allege that a greater than 100-year flood has occurred at Cane Creek in
the petition area and that construction activities changed the flood-
flow characteristics. They allege that these events demonstrate that
the petition area is prone to flooding, and that mining could increase
the danger to life, property, and the environment.
The intervenors allege that flooding is not a significant issue in
the petition area. Skyline references the flood hazard mapping of Van
Buren County prepared by the Department of Housing and Urban
Development (HUD). Skyline emphasizes that HUD mapping does not show
flood hazard areas along streams where surface coal mining operations
would most likely occur in the petition area.
2. Findings--Natural hazard lands. I find that there are natural
hazard lands in the petition area as evidenced by the flood prone areas
shown in the flood hazard maps of HUD for the Cane Creek watershed.
Also, I find that the record demonstrates that surface coal mining
operations could affect natural hazard lands, as evidenced by the
analysis in the PED/EIS that surface coal mining operations could cause
a five percent increase in previously identified flood levels. However,
I find that the record does not demonstrate that surface coal mining
operations could substantially endanger life and property from
flooding, for the following reasons. The HUD flood hazard maps and
other available information do not indicate that any structures would
be substantially endangered by flooding in the Cane Creek watershed
during a 100-year event as a result of surface coal mining operations.
All identified structures in the other watersheds are located
significant distances from the respective creeks. The record does not
indicate any other respect in which life and property on natural hazard
lands could be substantially endangered by flooding because of surface
coal mining operations.
D. Primary Allegation No. 4--Incompatibility With Land Use Plans
1. Petition allegation--The petition area should be designated
unsuitable for surface coal mining operations because mining the area
would be incompatible with existing State or local land use plans or
programs.
a. The petitioners allege that the petition area forms the
watershed of the Park. State regulations provide for the establishment
of buffer areas to protect Natural Resource Areas, including Natural
Areas. The Strategic Management Plan for the Park indicates that State
plans include the purchase of land both upstream and downstream of the
Park ``to provide adequate protection of Park resources and to give
defensible boundaries.'' Petitioners allege that allowing mining in the
watershed would directly under-cut the ability of the State to create
or maintain a buffer area or to make decisions about appropriate
activities or land for Park protection.
The intervenors allege that SMCRA requirements, including the 300
foot buffer zone [under Section 522(e)(5)] around the Park, provide
adequate protection to the special features in the Park. The
intervenors further state that under the Park's original land
acquisition agreement, sufficient land acreage was incorporated to
provide a natural, built-in ``buffering'' capacity for its scenic
landscape and waterfalls. The intervenors conclude that the combined
acreage of the Park's natural ``buffer'' and the 300 foot buffer zone
prohibition to mining around the Park's entire boundary is sufficient
to ensure protection of its natural resources. Therefore, mining in the
watershed would not directly undercut the State's ability to create or
maintain a buffer area.
b. The Petitioners allege that coal truck traffic would affect
tourist traffic to the Park.
The intervenors allege that the petitioners provide no proof that
coal trucks cause damage to the roads and thus constitute a conflict
with land use plans. The intervenors further allege that coal haulage
offers an opportunity for jobs which fits into the land use plan and
that taxes (local, State, and Federal) provide important resources for
maintenance of the road systems in the land use plans of the petition
area.
c. The Petitioners allege that mining would affect the Trail of
Tears National Historic Trail.
The intervenors allege that the presence of the Trail of Tears
within the petition area does not qualify the area as fragile lands
because: (1) The location of the Trail of Tears comprises an extremely
small portion, less than 3 percent of the petition area, and is located
in the southern portion of the area; and (2) the Trail of Tears does
not meet the definition of fragile land because a majority of the Trail
parallels or overlies existing roadways in the petition area.
d. The petitioners allege that the Park is a prime tourist
attraction in the State of Tennessee and that the State has made
significant investments in the Park to construct facilities to make
Fall Creek a resort park.
The intervenors allege that the petitioners' assertion that mining
in the area could damage the Park's attractiveness and economic
viability is merely an opinion and is not supported by facts.
Therefore, there is no support for the allegation that mining is
incompatible with existing State or local land use plans or programs.
e. The Petitioners allege that feature-length films have been made
in and out of the petition area, and that mining would cause this
industry not to return.
The intervenors made no response to this allegation.
2. Findings--Incompatibility with land use plans. I find that
surface coal mining operations in the Park or in certain portions of
the petition area outside the Park would be incompatible with State or
local land use plans and programs, for the following reasons.
The existing land use plans and programs do not call for surface
coal mining operations in the Park. The impacts of fugitive dust and
noise from surface coal mining operations in or near the Park on the
recreational values of the Park would impair the recreational use of
Park land. The visual impacts of surface coal mining operations in the
Park or in certain parts of the petition area near the Park could have
a negative impact on Park visitation, thus affecting the economic
viability of the Park and the surrounding area. The natural systems,
ecologic resources, cultural resources, and esthetic values of the park
could be moderately to significantly impacted by surface coal mining
operations in the Park and in the petition area outside the Park as
described in the mining scenarios in Chapter V of the PED/EIS.
These impacts would be in direct conflict with the mission of Fall
Creek Falls State Park: To preserve and protect the Park and Natural
Area's unique resources--most importantly its water and water-formed
features, and to provide visitors with well managed and maintained stay
use and day use facilities. This mission is the basis for the Park's
current land use plans and programs. In order to enhance these
programs, the State has invested significant amounts of State funds in
the Park to preserve its natural resources and to make it more
attractive to Park visitors. In turn, the Park has generated revenue
for the State and the surrounding counties because of its high
visitation rates and its attractiveness as a feature film location.
However, for the reasons given below, I find that the record does
not support the following allegations raised by the petitioners with
respect to incompatibility of surface coal mining
[[Page 39188]]
operations with State or local land use plans or programs: (1) Mining
of the area would undercut the ability of the State to maintain a
buffer zone around the Park. [I find the State has been successful in
acquiring additional lands around the Park to enhance its protection of
the Park resources, although the petition area outside the Park has
been significantly affected by various land uses such as agriculture,
silviculture and, to a limited degree, by mining. There has been no
mining in the petition area outside the Park since 1984]. (2) Coal
trucks damaging roads is inconsistent with land use plans. [I find that
there is or can be sufficient road maintenance by the State and local
government to address impacts on roads from coal trucks in surface coal
mining operations.] (3) Mining near the Trail of Tears is inconsistent
with land use plans. [I find that since there are no certified segments
of the Trail of Tears in the petition area, mining near the Trail of
Tears would not be inconsistent with local land use plans or programs.]
Similarly, surface coal mining operations in the Dry Fork watershed
would not be incompatible with the existing land use plans or programs
for the Park. The largest block of coal reserves in Dry Fork is located
in the headwater areas of the watershed. This part of the watershed is
adjacent to the northern portion of the Park where visitation is
prohibited. Any surface coal mining operations in this area would be
outside the viewshed of Park visitors and would go undetected by
tourists entering and leaving the Park because of its distance from
either the northern or southern entrances of the Park. Therefore,
because of the lack of demonstrated likely significant damage to Park
natural systems and esthetic and cultural values, or impact on Park
visitation, the record does not demonstrate that surface coal mining
operations in this watershed would be incompatible with existing State
or local land use plans or programs.
E. Primary Allegations No. 5--Feasibility of Reclamation
1. Petition allegation--The petition area must be designated
unsuitable for surface coal mining operations because reclamation is
not technologically and economically feasible.
a. The petitioners allege that reclamation of the petition area is
not technologically and economically feasible because mining the
Sewanee coal seam consistently leads to acid and toxic drainage despite
the efforts of OSM and the most diligent mining companies to avoid such
degradation.
The intervenors allege that the Sewanee coal seam in and of itself
is not toxic. They contend that the coal seam and its related
overburden has variable acid-producing potential and that potential
does not automatically equate to toxicity. They further contend that
such materials only become acid-producing under prolonged exposure to
atmospheric oxidizing conditions and other processes. They further
allege that mining at the Skyline Coal Company site has demonstrated
that the Sewanee coal seam and its overburden materials can be handled
properly to avoid or significantly minimize the production of undesired
acid conditions. They also contend that the violation history provided
by the petitioners misrepresents the facts and is often inaccurate.
b. The petitioners allege that the methods used by the coal
industry and OSM do not accurately predict acid or toxic mine drainage,
and that there is no foolproof method for handling acid-forming
materials. Therefore, the petitioners allege that any mining in the
watershed would place the streams in the Park at risk of acid mine
drainage and would conflict with OSM regulations and objectives to
prevent such occurrences.
The intervenors allege that reclamation associated with the mining
of the Sewanee coal seam is technologically and economically feasible
as demonstrated by the operations at its Big Brush Creek Mine. Skyline
states that the company has been successful in mining the Sewanee coal
seam without creating toxic mine drainage as alleged by the
petitioners. The lack of an adequate technological understanding of the
geochemical make-up of the overburden associated with the Sewanee coal
seam and the subsequent deficit of technological know-how in the proper
handling of the spoil material had led to past mining operations
causing undesirable acid mine drainage. Intervenors assert that this is
not the case with more recent technological breakthroughs and
experiences gained in working with the coal seam. With improved acid-
base accounting techniques that take into account siderite-masking, the
acid-producing potential of the overburden can be properly
characterized in advance of mining. Skyline asserts that, with an
accurate acid-base bank, the combination of mining and reclamation
technologies has been implemented by Skyline at its Big Brush Creek
Mine to avoid and/or significantly minimize the generation of acidic
conditions. Skyline further states that the company has successfully
mined and reclaimed the disturbed areas economically and at a profit.
c. The petitioners allege that reclamation is not technologically
and economically feasible within the petition area because even fully
regulated mining results in unavoidable impacts.
The intervenors allege that these types of risks and events pose
minimal risks to the Fall Creek Falls State Park. They reference storm
events well over the 10-year, 24-hour interval which have occurred
within the petition area without having unalterable, long-term impacts
to the Park.
They also contend that the environmental protection performance
standards can and will provide the necessary protection for the Park
and the petition area.
2. Findings--Feasibility of reclamation. I find that the record
does not clearly demonstrate that reclamation of surface coal mining
operations in the petition area is technologically and economically
infeasible, as required for designation under the mandatory criterion.
I find that the presence of the Sewanee coal seam in the petition area
does not clearly demonstrate that reclamation is technologically and
economically infeasible. Although the Sewanee coal seam may contain
acid-and toxic-forming materials, I find that this does not support a
determination that reclamation of those surface coal mining operations
involving coal extraction from the Sewanee coal seam is infeasible. The
history of mining in the southern coal fields where the Sewanee coal
seam dominates demonstrates that the majority of sites have been
successfully reclaimed. Only 8 permits out of 205 permits issued since
1977 when SMCRA was enacted are confirmed AMD producers. Four of these
permits were issued between 1977 and 1982 when minimal environmental
controls were in place. The remaining 4 were issued between 1984 and
1992, when Tennessee and other states were developing ways to enhance
their predictive techniques in order to accurately identify potential
AMD producers. Since 1992, enhanced methodologies have been utilized on
most permits. These predictive and preventive methodologies continue to
evolve and improve. However, uncertainties exist with some of the more
recent permits where water quality problems have developed. Several
more years of experience will be required to determine the overall
success of the newer methodologies for AMD prediction and prevention
that were incorporated into these permits, because the success or
failure of these newer
[[Page 39189]]
methodologies cannot be verified until these sites are in reclamation.
Nonetheless, I have determined that the record does not clearly
demonstrate that reclamation is technologically or economically
infeasible, as required for designation under the mandatory criterion.
However, as discussed above, the record does demonstrate that
surface coal mining operations would pose an unacceptable risk to the
fragile lands of the Park, and that such risks are incompatible with
Park land use plans and programs. Because the adverse impacts could be
significant, the risk to the Park is unacceptable.
VII. Decision on Petition--Designation
A. Areas Designated and Basis for Designation
I am designating the Park and the Cane Creek, Meadow Creek, and
Falls Creek watersheds as unsuitable for surface coal mining
operations, including surface activities in connection with underground
mining operations. I am designating the Piney Creek watershed
unsuitable for surface coal mining operations, subject to a proviso
that remining may be permitted in the upper reaches, as described
below. The selection of the preferred alternative assures that all
reasonable and practical means to avoid or minimize environmental harm
have been adopted.
I have determined that designation is appropriate under the
following discretionary criteria.
That surface coal mining operations would affect fragile
lands in which the operations could result in significant damage to
important esthetic values and natural systems in accordance with SMCRA
Section 522(a)(3)(B); and
That surface coal mining operations would be incompatible
with existing Park land use plans or programs in accordance with SMCRA
Section 522(a)(3)(A).
In summary, my decision to designate portions of the petition areas
as unsuitable for mining operations is based on (1) the inherent risks
of surface coal mining operations to fragile lands and (2) the
uncertainties associated with predicting and preventing impacts of
surface coal mining operations in such a large area as that of the
petition area. These risks and uncertainties could result in
significant adverse and irreversible impacts to the Park's esthetic and
cultural values, its natural systems, and its ecologic resources, and
with both its short-term and long-term land use plans and programs.
I have determined that, if surface coal mining operations were to
occur on these lands, such operations would pose a significant and
unacceptable risk to the unique ecological resources, esthetic and
cultural values, and natural systems of Tennessee's most prestigious
park and to the natural systems of the Cane Creek, Falls Creek, Meadow
Creek, and lower reaches of the Piney Creek watersheds. I have also
determined that such risks and uncertainties are incompatible with the
Park's land use plans and programs.
These decisions are based on consideration of the PED/EIS, and of
the entire administrative record before me [including all comments
received during the period prescribed by regulation before a decision
can be made on the final PED/EIS]. That information includes the
petition; the draft and final petition evaluation documents/
environmental impact statements (PED/EIS); information provided by the
petitioners; comments in the form of oral testimony at the public
hearing; and written submissions received during the public comment
periods which ended April 29, 1999, and the prescribed wait period
which ended on May 3, 2000, from Federal agencies, State agencies,
local agencies, and members of the public and industry. The public
record also includes information from meetings with the petitioners,
land owners, lease holders, and intervenors, and comments received
during the prescribed period after publication of the final PED/EIS.
1. Designation of Park. In the event that the State, as the mineral
owner of lands within the Fall Creek Falls State Park successfully
asserted valid existing rights (VER) in accordance with 30 CFR 761.11,
the State would be able to engage in surface coal mining operations and
SMCRA Section 522(e), regarding protection of publicly owned parks
would not prohibit these operations. Therefore, I am exercising my
discretion to designate Fall Creek Falls State Park as unsuitable for
mining in accordance with 30 CFR 762.11(b)(1) and (b)(2) along with
Cane Creek, Falls Creek and Meadow Creek watersheds. Although the State
has indicated that it has no intent to mine the Park coal reserves,
such a statement is not legally binding. And theoretically, there may
be circumstances in which the prohibitions of Section 522(e) would not
protect all Park lands. Thus, in the vent that VER was demonstrated for
surface coal mining operations on Park lands, the State would be able
to engage in surface coal mining operations, and SMCRA Section 522(e),
regarding protection of publicly owned parks, would not prohibit these
operations. I also recognize that it may be theoretically possible that
some portion of the Park's boundaries could be modified so as to remove
areas from the Park. The conveyance from the United States to Tennessee
of the core area of the Park required that the conveyed lands be used
exclusively for public park, recreational and conservation purposes.
The United States retained a revisionary interest if the State failed
to comply with this limitation for more than 3 years. The Department
has never addressed whether allowing coal mining on the conveyed lands
would violate this condition. Because it might be possible that surface
coal mining operations or some aspect of surface coal mining operations
could be allowed, or that the mining could be completed in 3 years or
less, I am exercising my discretion to designate the Fall Creek Falls
State Park as unsuitable for surface coal mining operations.
2. Designation of Piney Creek watershed allowing remining of upper
reaches. I am designating the upper portions of the Piney Creek
watershed unsuitable for surface coal mining operations; provided, that
a surface coal mining operation may be permitted if a portion of the
operation includes previously mined areas and the permit applicant
demonstrates that water quality in receiving streams will not be
degraded. I have determined that, because of where it enters the Park,
Piney Creek has limited influence on the continued preservation of the
Park's resources. However, Piney Creek does influence the esthetic
values associated with Piney Falls within the Park and does contribute
to some degree, to the continued existence of the unique natural values
of the Park. Therefore, for the reasons outlined above, designation is
appropriate. However, I believe permitting remining in the upper
reaches of this watershed can be appropriate, for the following
reasons.
Although there are inherent and unavoidable impacts as well as
unanticipated events that may occur during surface coal mining and
reclamation operations, I have determined that potential remining of
the headwaters of the Piney Creek watershed, which would include the
reclamation of pre-SMCRA mined lands, could provide benefits that
outweigh the risks.
Most of the upper portions of the Piney Creek watershed contain
pre-SMCRA abandoned mine sites. Allowing surface coal mining operations
only in those areas in which the water quality could improve as a
result of
[[Page 39190]]
remining operations would potentially benefit the Park as a fragile
land. Due to the distance of any potential surface coal mining
operations from the Park borders or the Park entrances, there would be
no incompatibility with State or local land use plans or programs if
remining operations were allowed in the headwaters of the Piney Creek
watershed.
The water quality in these headwater reaches has been significantly
impacted by the pre-SMCRA mining. Currently, Piney Creek proper and
other headwater tributaries flow through pre-SMCRA mine pits and are
impacted by acid mine drainage and by increased concentrations of total
dissolved solids which result in mineralization to the waters of the
receiving stream. Thus, remining of these abandoned mine lands has the
potential to improve water quality and therefore, have a beneficial
effect on resources both within and outside the Park. The remining
could reclaim the pre-SMCRA mine pits and reconstruct the headwatere
streams, including riparian habitat. Also, the previously mined and
unreclaimed land would be returned to a productive use.
By allowing only remining of previously mined areas in the upper
reaches of the Piney Creek watershed, I am minimizing any risk to Park
resources. Water quality improves in the lower reaches of Piney Creek
as it enters the Park, and should not be compromised by the possibility
of a mining failure in the lower reaches. Such failure could
potentially impact the Park's natural systems and cultural and esthetic
values, and be incompatible with the Park's land use plans and
programs.
B. Area Not Designated--Dry Fork Watershed
I am not designating the Dry Fork watershed as unsuitable for
surface coal mining operations. I am not designating any lands within
the Dry Fork watershed as unsuitable for surface coal mining operations
for the following reasons. Dry Fork watershed does not contain the
natural, ecologic, scientific or esthetic resources that would make it
a fragile land in accordance with 30 CFR 762.5. It is not a valuable
habitat for fish or wildlife or for threatened and endangered species
of animals or plants as demonstrated by the few documented occurrences
within the watershed. Surface coal mining operations conducted in Dry
Fork watershed would not affect fragile lands or be incompatible with
existing State or local land use plans or programs.
C. Other Criteria
For the reasons discussed above, I have decided that the record
does not demonstrate that designation is appropriate for any part or
all of the petition area under the criteria of SMCRA Section 522(a)(2)
or (3)(C)(D).
VII. Effects of Decision and Future Action
In accordance with 30 CFR 736.15, OSM is responsible for approving
or denying applications for proposed surface coal mining operations in
Tennessee, including the Fall Creek Falls petition area. In accordance
with these regulations, OSM also administers and maintains an
enforcement program to assure compliance with SMCRA laws, regulations,
policies, and procedures. Thus, OSM's permitting and enforcement
programs mitigate any environmental impacts that might be associated
with the selection of the preferred alternative. OSM would also require
compliance with the restrictions placed on surface coal mining
operations in the headwaters of the Piney Creek watershed and would
preclude surface coal mining operations in those portions of the
petition area designated as unsuitable for surface coal mining
operations.
Under this decision, OSM would not accept and process applications
for proposed surface coal mining operations in the Park, in the Cane
Creek, Meadow Creek and Falls Creek watersheds, and in the lower
reaches of Piney Creek watershed within the Fall Creek Falls petition
area outside the Park, except as provided in SMCRA Section 522(a)(6).
That provision states that:
The requirements of this section shall not apply to lands on which
surface coal mining operations are being conducted on the date of
enactment of this Act or under a permit issued pursuant to this Act,
or where substantial legal and financial commitments in such
operation were in existence prior to January 4, 1977.
Concerning the upper reaches of the Piney Creek watershed within
the Fall Creek Falls petition area, OSM would accept and process
applications for proposed surface coal mining operations where the
proposed mining plan includes areas disturbed by pre-SMCRA coal mining,
and the applicant demonstrates that water quality in the receiving
streams will not be degraded, and that impacts from the previous mining
will be mitigated by the proposed surface coal mining operation. All
other surface coal mining operations would be prohibited.
OSM's December 17, 1999, final rule on the applicability of Section
522(e) of SMCRA to subsidence concluded that SMCRA's definition of
``surface coal mining operations'' at Section 701(28) does not apply to
subsidence. The rulemaking preamble discusses OSM's conclusions as to
why the definition includes surface activities in connection with a
surface coal mine; and surface activities in connection with surface
operations and surface impacts incident to an underground mine; and
areas affected by such activities. In brief, under this interpretation
subsidence is not a surface activity in connection with an underground
mine and is not an area affected by such surface activity, and
therefore, is not a surface coal mining operation subject to the
prohibitions of Section 522(e). OSM expects to act consistent with this
interpretation in determining which aspects of an underground coal mine
are prohibited under Section 522 as surface coal mining operations.
Consistent with this interpretation, I anticipate that OSM will
interpret the definition of surface coal mining operations at SMCRA
Section 701(28) to mean: Surface activities in connection with a
surface coal mine and surface activities in connection with surface
operations and surface impacts incident to an underground coal mine,
and areas affected by such surface activities. Under this
interpretation, designation would prohibit only surface activities and
areas affected by surface activities as discussed above. Because
subsidence is not a surface activity, and is not an area affected by
such surface activity, subsidence would not be considered a ``surface
coal mining operation.'' Thus, subsidence and other aspects of
underground coal mining that are not surface activities or areas
affected by surface activities would not be prohibited on any land
designated unsuitable for surface coal mining operations pursuant to
this petition.
OSM would accept and process applications for surface coal mining
operations in the Dry Fork watershed of the Fall Creek Falls petition
area outside the Park in accordance with OSM's conclusion that this
watershed has no effect on the Park's surface resources.
A petitioner may seek termination of this designation with respect
to Cane Creek, Falls Creek, Meadow Creek and Piney Creek watersheds, by
providing new allegations of fact that support such a termination.
IX. Notification
Pursuant to 30 CFR 942.764.19 and 40 CFR 1506.6, this ``Record of
Decision and Statement of Reasons'' is being sent simultaneously by
certified mail to the petitioners and intervenors and by
[[Page 39191]]
regular mail to every other party to the petition process, including
affected Indian tribe(s), Federal and State agencies, commenters who
submitted substantive comments, and all others who have requested it.
Notification of the availability of the document will be published in
four local or regional newspapers, the Tennessee Administrative Record,
and the Federal Register, and will be sent by regular mail to
landowners in the petition area and to commenters who submitted general
comments. The document will also be placed on OSM's web page. My
decision becomes final upon the date of signing this statement. Any
appeal from this decision must be filed within 60 days from this date
in the United States District Court for the Eastern District of
Tennessee, as required by Section 526(a)(1) of SMCRA.
Dated: June 17, 2000.
Bruce Babbitt,
Secretary of the Interior.
[FR Doc. 00-15898 Filed 6-22-00; 8:45 am]
BILLING CODE 4310-05-M
![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}