LRL-2021-00265

This notice announces an application submitted for a Department of the Army (DA) Permit, subject to Section 404 of the Clean Water Act:

APPLICANT:                         Robert Ray

                                                River View Coal, LLC

                                                1146 Monarch Street

                                                Lexington, KY 40513

AGENT:                                  Debbie Collinsworth

                                                EcoSource Inc.

                                                426 North Broadway 

                                                Georgetown, KY 40324

LOCATION:                           Unnamed tributaries to Sibley Creek in Union County, Kentucky

                                                Latitude: 37.744°

                                                Longitude: -87.956°

                                                7.5 Minute Quad: Morganfield, KY  

PURPOSE:                              Expansion of refuse storage capacity for an existing coal preparation and underground mining operation.

DESCRIPTION OF WORK:  River View Coal LLC is proposing to expand the existing refuse disposal facility (original DNR permit 913-9003) located at the surface support facility for the existing River View Underground Mine. This expansion would construct an additional disposal area immediately southwest of the existing disposal facility and provide an additional 70 million cubic yards of refuse storage. Additional drainage control structures would be constructed along the southwestern boundary of the proposed mining permit. Additional topsoil storage is also proposed. The sequence of construction activity would initially be the construction of all the diversion ditches and sediment control structures. All reusable topsoil material would be removed from the footprint of the refuse impoundment and placed in the proposed topsoil storage area. Coarse refuse would be placed in 1-foot compacted lifts until the stage 1 lift is completed. A slurry line would be installed to begin slurry placement within the stage 1 embankment. Subsequent lifts would be built in the same manner until the final elevation is reached. After this final stage is completed, course refuse would top off the slurry, topsoil would be placed to a depth of 4’, and vegetation would be sown. After the refuse impoundment reaches capacity, dewatering would occur, and topsoil would be placed to cap off the slurry fines. The final crest elevation of the impoundment would be 610’ Above Mean Sea Level. Estimated start time for the construction of the first lift is 2026 with the final phase completed in 2038. The anticipated storage volumes are: total coarse refuse - 28,614,662 cubic yards, and total fine refuse - 38,515,502 cubic yards. This Amendment is currently under review by the Kentucky Division of Mine Permits (DNR 913-9003 Amendment 6) and the U.S. Mine Safety and Health Administration.

Unavoidable impacts to 9,490 linear feet (0.863 acre) of jurisdictional streams would result from the development of the site.  Impacts include filling of twenty ephemeral streams totaling 4,295 linear feet (0.153 acre) and two intermittent streams totaling 5,195 linear feet (0.71 acre).

AVOIDANCE, MINIMIZATION, AND MITIGATION MEASURES: 

The initial expansion of the refuse area in the original mining application was based upon a combination of economic and environmental factors. Economically, the reasons involved in construction of the existing refuse impoundment related to obtaining coal from the controlled coal reserve; retaining the utilities and surface facilities close together, minimizing site costs; reuse and rehabilitation of existing structures including the barge loadout and overland conveyor; and the avoidance of public highways on the north and west sides of the expansion area. Environmentally, the reasons involved in construction of the existing refuse impoundment related to re-impacting previously mined areas; rehabilitation of previously impacted areas versus affecting unimpacted lands; not expanding northward into the 100-year floodplain of the Ohio River; and avoiding impacts to larger streams (such as Lost Creek) by expanding in a southerly direction. The previous primary method of avoidance was the consolidation of the surface preparation, storage, and transportation needs in one area. The preparation, storage, and barge loadout facilities were a part of the original Island Creek Coal operation. Instead of constructing new facilities, rehabilitation was used to cut expenses and to prevent unnecessary land impacts. However, adequate refuse storage area was not available, and the refuse impoundment was later expanded in a westward direction. Since additional storage is needed, a southwestward expansion is proposed. This expansion would require the removal of KY state route 666. Retaining the refuse storage in close proximity to the existing facilities allows the applicant to continue to capitalize on the efficiency of having most of the essential surface facilities confined to the present area. Some new roads, pipelines, conveyors, and sediment ponds would be required. The newly proposed expansion does not lie within the 100-year floodplain of the Ohio River.

The chosen option of expanding to the southwest would directly impact 9,490 linear feet of streams.   These streams within the impact area have all been assessed to be of poor quality for the bioregion. The applicant proposes to mitigate the intermittent streams and ephemeral streams using differing sources of compensation. The intermittent streams would be mitigated through an appropriate payment into the Kentucky Department of Fish and Wildlife Fee In-Lieu Stream Mitigation Program.  Ephemeral stream impacts would be mitigated through out-of-kind wetland preservation with an existing mitigation site located in Webster County, Kentucky. Historically, this site was named the Rold Property which was initially permitted for wetland impacts related to Hopkins County Coal LLC - Corps ID No. 199700508. The Rold Property consists of 556 acres that were planted with approved woody species during the period 1998-2001. The applicant is donating the Rold Property to the Kentucky Department of Fish and Wildlife Resources for incorporation into the state’s Wildlife Management Areas.  As a result of this donation, preservation credits would be generated from the Rold Property. The Adjusted Mitigation Units generated from the Rold Property was calculated based upon a 10:1 ratio for preservation:

thus, the 556 acres x 0.1 = 55.6 AMUs generated.  The applicant proposed to utilize 11.4 AMUs of the generated total to compensate for proposed ephemeral stream losses.

It is noted that this proposed mitigation plan is open to comment and subject to change.  The Corps will make a determination of appropriate mitigation, upon review of all submitted information.

REVIEW PROCEDURES:  A DA Permit cannot be issued if any legally required Federal, State, or local authorization or certification is denied.  A DA permit, if otherwise warranted, will not be issued until a State of Kentucky Water Quality Certification or waiver is on file at this office.  In order to comply with Section 401 of the Clean Water Act, the applicant must apply for State certification from the Kentucky Energy and Environment Cabinet Division of Water (KDOW).

Copies of this notice are sent to the appropriate Federal and State Fish and Wildlife Agencies.  Their views and comments are solicited in accordance with the Fish and Wildlife Coordination Act of 1956.  The Endangered Species Act (ESA, 87 Stat. 884, as amended; 16 U.S.C. 1531 et seq.) requires federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) pursuant to Section 7(a) 2 of the ESA on all actions that may affect a species listed (or proposed for listing) under the ESA as threatened or endangered, or any designated critical habitat.  A copy of this notice is being furnished to the USFWS for their review.  Per this notification, we request comments from the USFWS concerning potential impact to threatened and/or endangered species that may occur within the project area.  After receipt of comments, the USACE will evaluate the potential impacts to proposed and/or listed species and their designated critical habitat and initiate consultation with USFWS, if required.

Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider this application.  A request for a public hearing must state the specific interest which might be damaged by issuance of the DA Permit.

The National Register of Historic Places has been examined, and it has been determined that there are no properties currently listed on the Register which have been directly affected by the work.  If we are made aware, as a result of comments received in response to this notice, or by other means, of specific archaeological, scientific, pre­historical, or historical sites or structures which might be affected by the proposed work, the District Engineer will immediately take the appropriate action necessary pursuant to the National Historic Preserva­tion Act of 1966 - Public Law 89-665 as amended (including Public Law 96-515).

The decision whether to issue a permit will be based on an evaluation of the probable impact of the proposed activity on the public interest.  That decision will reflect the national concern for both protection and utiliza­tion of important resources.  The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably fore­seeable detriments.  All factors which may be relevant to the proposal will be considered; among those are conservation, economics, aesthetic values, general environmental concerns, historic values, fish and wildlife values, flood damage prevention, land use, navigation, recreation, water supply, water quality, energy needs, safety, food production, and in general, the needs and welfare of the public.   In addition, the evaluation of the impact of the activity on the public interest will include application of the guidelines (40 CFR Part 230) promulgated by the Administrator, United States Environmental Protection Agency, under authority of Section 404(b) of the CWA.

The Corps of Engineers is soliciting comments from the public; Federal, State, and local agencies and officials; Indian tribes; and other interested parties in order to consider and evaluate the impacts of this proposed activity.  It is presumed that all interested parties and agencies will wish to respond; therefore, a lack of response will be interpreted as meaning that there is no objection to the proposed project.  Any comments received will be considered by the Corps of Engineers to determine whether to issue, modify, condition or deny a permit for this proposal.  To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above.  Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act.  Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.

Written statements received in this office on or before the closing date will become a part of the official record and will be considered in the determination on this permit request.  Any objections which are received during this period will be forwarded to the applicant for possible resolution before the determination is made whether to issue or deny the requested DA Permit.  A permit will be granted unless its issuance is found to be contrary to the public interest.

Information pertaining to this application is available for public examination during normal business hours upon prior request.  Drawings are available on Louisville District's Internet site at http://www.lrl.usace.army.mil/Missions/Regulatory/Public-Notices/.  All comments regarding this proposal should be addressed to Mr. Matt Dennis, CELRL-RDS at the address noted above and should refer to the Public Notice Number LRL-2021-00265. 

If you desire to submit your comments by email, you must comply with the following:

    a) In the subject line of your email, type in ONLY the Public Notice ID No. LRL-2021-00265-mad.

                                      Example:

                                                            Subject:  LRL-2021-00265-mad

    b) Provide your physical mailing address and telephone number.

    c) Send your email to: lrl.regulatorypubliccomment@usace.army.mil

    d) If you are sending attachments greater than 10 Mb in size with your email, you must send a hard copy (CD or paper) to the Corps’ physical address as well.