Extension of the Period for Preparation of the Clean Water Act Section 404(c) Final Determination and Consultation Concerning the Spruce No. 1 Mine, Logan County, WV

On September 24, 2010, the EPA Region III Regional Administrator signed a Recommended Determination, under Section 404(c) of the Clean Water Act, recommending withdrawal of the specification embodied in DA Permit No. 199800436-3 (Section 10: Coal River) of Pigeonroost Branch and Oldhouse Branch as disposal sites for discharges of dredged and/or fill material associated with construction of the Spruce No. 1 Surface Mine in Logan County, West Virginia. The transmission of the Recommended Determination to EPA Headquarters initiated a 60-day period for the Assistant Administrator for the Office of Water to review the recommendation of the Regional Administrator. As part of this review period, EPA has also notified the Department of the Army, the State of West Virginia, Arch Coal, Inc. (the permittee), and the landowners of record as to the Recommended Determination, and has notified these groups that they have 15 days in which to notify the Assistant Administrator for the Office of Water of their intent to take corrective action to prevent the unacceptable adverse impacts to wildlife detailed in the recommendation. In response, attorneys for the permittee have requested a 30-day extension of this consultation period, to November 29, 2010, in order to review the Recommended Determination and associated technical appendices. Provided in 40 CFR 231.8, EPA may, upon showing of good cause, extend the time requirements in the 404(c) regulations. In this case, EPA believes it is appropriate to grant the permittee's request for a 30-day extension to the consultation process. This extension will provide additional time to evaluate any corrective actions proposed by the permittee, or other participants in the consultation process described in 40 CFR 231.6, that would prevent the likely unacceptable adverse effects described in the Recommended Determination. The consultation process will therefore expire on November 29, 2010. As described above, EPA's 404(c) regulations provide that the Assistant Administrator for the Office of Water shall issue a Final Determination within 60 days of receiving the Regional Administrator's Recommended Determination. This 60-day period is scheduled to expire on November 23, 2010. EPA may extend this deadline upon a showing of good cause. EPA believes that good cause exists to extend this deadline in order to complete the Final Determination by February 22, 2011. This extension will permit the Office of Water to more closely evaluate Region III's Recommended Determination and the administrative record, which includes more than 50,000 public comments. It will also enable more careful consideration of any new information that arises during the consultation process undertaken pursuant to 40 CFR 231.6, as described above. Finally, this date is consistent with an order issued by the U.S. District Court for the Southern District of West Virginia on November 2, granting a continued stay in litigation over the Spruce <greek-i>1 permit until February 22, 2011.