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Spruce No. 1 Mine 404(c) Frequent Questions

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Spruce No. 1 Mine

Questions & Answers About the Final Determination (PDF) (3 pp, 102K, About PDF)

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General Questions About 404(c)

Q:  What is the Clean Water Act 404(c) process?

A:  The Clean Water Act (CWA) 404(c) process is started with an initiation letter to the Army Corps of Engineers, followed by Region III's proposed determination, opportunity for public comment and a public hearing, Region III's recommended determination to EPA Headquarters, and a final determination by the Administrator (delegated to Assistant Administrator for Water).  A final CWA Section 404(c) action takes, on average, 1 year to complete.

The initiation letter (15-Day letter) is transmitted by the Regional Administrator  or his designee notifying the U.S. Army Corps of Engineers, the property owner, and the project proponent of the Regional Administrator's intent to issue a public notice of a proposed CWA Section 404(c) determination.  This letter provides the recipients with an opportunity to demonstrate that no unacceptable adverse effects could result or to notify the EPA of corrective action which would be taken to prevent unacceptable adverse effects.

If the recipients of the initiation letter do not demonstrate to the satisfaction of the Regional Administrator that no unacceptable adverse effects will occur, the Regional Administrator will prepare to publish notice of a proposed determination to restrict or prohibit the site, allowing opportunity for a public hearing.

Based on the record developed during the public comment period, the Regional Administrator or his designee must either withdraw the proposed determination or prepare a recommended determination to restrict or prohibit the site because unacceptable adverse effects are likely to result.  If, however, the regional decision is to withdraw the proposed determination, the Administrator has the option of reviewing such action.

Should a recommended determination be forwarded, the Administrator will evaluate the recommendation and record affirming, modifying or rescinding the recommendation of the Regional Administrator or his designee.  For purposes of judicial review, a final determination constitutes final agency action under CWA Section 404(c).

Q:  What is a proposed determination?

A:  The Regional Administrator issues a proposed determination when it has not been demonstrated during the consultation period provided for by the 404(c) initiation letter that no unacceptable adverse effect will occur or that corrective action will be taken to prevent unacceptable adverse impacts.  The proposed determination begins the process of determining whether unacceptable adverse effects will likely occur as a result of the proposed project and serves as the mechanism for soliciting public comments on the 404(c) action.  A public hearing is typically held during the comment period established by the proposed determination. .  At this stage of the 404(c) process, EPA has reason to believe that an unacceptable adverse effect could result from the project.  The proposed determination provides an opportunity for EPA to obtain sufficient information either to determine that unacceptable adverse effects will not occur and withdraw the proposed determination, or to support a finding that the project is likely to result in unacceptable adverse effects and proceed with a recommended determination.

Q:  What is a final determination?

A:  The final determination represents the last step of EPA's Section 404(c) process.  EPA Headquarters reviews the recommended determination and the Region's administrative record, and offers the Assistant Secretary of the Army (Civil Works) and project sponsor a final opportunity to demonstrate that no unacceptable adverse effect will occur or that corrective action will be taken to prevent unacceptable adverse impacts.  EPA's Administrator (delegated to the Assistant Administrator for Water) then makes a final determination affirming, modifying, or rescinding the recommended determination.  If the Assistant Administrator for Water concludes, based on its review, that the discharge of dredged or fill material in connection with the project will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas, the final determination can prohibit, restrict, or deny the specification of the subject waters of the United States (including wetlands) as a disposal site for the discharge of dredged or fill material.

Q:  What is the outcome of a 404(c) action?

A:  The Clean Water Act gives EPA the ultimate responsibility to ensure that discharges of dredged or fill material in waters of the United States do not have unacceptable adverse environmental effects.  Consideration of requirements in the CWA Section 404(b)(1) Guidelines and other relevant factors by the Corps of Engineers normally assures that regulated activities will not lead to unacceptable harm to aquatic resources.  If, however, EPA has reason to believe that unacceptable harm will occur to these resources, EPA may take action, including the initiation of a 404(c).  EPA's statutory role is not to duplicate the Corps' exercise of its own responsibilities.  EPA is, however, required to exercise independent judgment, based on the record, when deciding under CWA Section 404(c) whether adverse effects to waters of the United States will occur and whether or not these effects are acceptable.  The ultimate outcome is a decision that protects the functions and values of the Nation's waters.  Should it be determined by the EPA Administrator that a proposed project be vetoed, the project can not proceed in its current design.

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Questions About Spruce No. 1 Mine Public Hearing

Q: When and where was the Public Hearing for the Spruce No. 1 Surface Mine Proposed Determination?

A: EPA Region 3 held a public hearing at 7 p.m. on May 18, 2010 at the Charleston Civic Center (South Hall) in Charleston, West Virginia.

Q: What was the purpose of the Public Hearing?

A: EPA held the public hearing to obtain public testimony or comment on EPA's proposed 404(c) action on the Spruce No. 1 Mine project.

Q:  How could I have submitted my comments if I didn't comment at the Public Hearing?

A:  You could have submitted your comments, identified by Docket ID No EPA-R03-OW-2009-0985, by one of the following methods by June 4, 2010. Note that the comment period was extended by 3 days since regulations.gov was out of service from May 29, 12:00 am to May 31, 11:59 pm EDT for maintenance.

  1. Federal eRulemaking Portal (recommended method of comment submission): http://www.regulations.gov.
  2. E-mail: ow-docket@epamail.epa.gov. We asked that the docket number, EPA-R03-OW-2009-0985, be put in the subject line of the message.
  3. Mail:
    ‘‘EPA-R03-OW-2009-0985, Spruce No. 1 Surface Mine’’ 
    U.S. Environmental Protection Agency
    EPA Docket Center Water Docket, Mail Code 28221T
    1200 Pennsylvania Avenue, NW
    Washington, DC 20460
  4. Hand Delivery or Courier:
    Director, Office of Environmental Programs
    Environmental Assessment and Innovation Division (3EA30)
    U.S. Environmental Protection Agency, Region 3
    1650 Arch Street
    Philadelphia, PA 19103

    Such deliveries were only accepted during the Regional Office’s normal hours of operation, Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

Q: Did EPA respond to questions during the hearing?

A: EPA did not respond to questions/comments during the hearing.

Q: How did EPA use the comments made?

A:EPA carefully considered all of the information (over 50,000 comments) in preparing the Recommended and Final Determinations. EPA's response to comments is in Appendix 6 (PDF) (309 pp, 2.9MB, About PDF) to the Final Determination.

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