[Senate Hearing 110-298]
[From the U.S. Government Publishing Office]
S. Hrg. 110-298
SURFACE MINING ACT
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
TO
RECEIVE TESTIMONY ON THE SURFACE MINING CONTROL AND RECLAMATION ACT OF
1977: POLICY ISSUES THIRTY YEARS LATER
__________
NOVEMBER 13, 2007
Printed for the use of the
Committee on Energy and Natural Resources
______
U.S. GOVERNMENT PRINTING OFFICE
40-968 WASHINGTON : 2008
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001
COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota LARRY E. CRAIG, Idaho
RON WYDEN, Oregon LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota RICHARD BURR, North Carolina
MARY L. LANDRIEU, Louisiana JIM DeMINT, South Carolina
MARIA CANTWELL, Washington BOB CORKER, Tennessee
KEN SALAZAR, Colorado JOHN BARRASSO, Wyoming
ROBERT MENENDEZ, New Jersey JEFF SESSIONS, Alabama
BLANCHE L. LINCOLN, Arkansas GORDON H. SMITH, Oregon
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
JON TESTER, Montana MEL MARTINEZ, Florida
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
Frank Macchiarola, Republican Staff Director
Judith K. Pensabene, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS
Page
Banig, Bill, Director, Governmental Affairs, United Mine Workers
of America, Fairfax, VA........................................ 40
Bingaman, Hon. Jeff, U.S. Senator From New Mexico................ 1
Conrad, Gregory E., Executive Director, Interstate Mining Compact
Commission, Herndon, VA........................................ 12
Domenici, Hon. Pete V., U.S. Senator From New Mexico............. 3
Prukop, Joanna, Cabinet Secretary, Energy, Minerals and Natural
Resources Department, Santa Fe, NM............................. 8
Quinn, Hal P., Jr., Senior Vice President & General Counsel,
National Mining Association.................................... 33
Rank, Cindy, West Virginia Highlands Conservancy, Rock Cave, WV.. 44
Salazar, Hon. Ken, U.S. Senator From Colorado.................... 2
Trujillo, Arvin, Executive Director, Navajo Nation, Window Rock,
AZ............................................................. 20
Wahlquist, Brent, Director, Office of Surface Mining Reclamation
and Enforcement, Department of the Interior.................... 4
APPENDIXES
Appendix I
Responses to additional questions................................ 55
Appendix II
Additional material submitted for the record..................... 121
----------
TUESDAY, NOVEMBER 13, 2007
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 2:30 p.m. in room
SD-366, Dirksen Senate Office Building, Hon. Jeff Bingaman,
chairman, presiding.
OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW
MEXICO
The Chairman. OK, why don't we go ahead and start the
hearing. Today we're having a hearing on the Surface Mining
Control and Reclamation Act. This is landmark legislation that
was enacted into public law 30 years ago. I think it's
appropriate that 30 years after the enactment of the
legislation, we have a hearing like this to take stock of the
accomplishments achieved under the Act, and to look ahead at
what still needs to be done.
SMCRA was enacted to address the serious public health and
safety and environmental problems associated with coal mining
on private and public lands.
Title V establishes a framework under which States can
develop their own regulatory programs that incorporate minimum
standards required under SMCRA. Twenty-four States have done
this, and Title IV established the Abandoned Mine Land Program
to address the serious problem of mines that have been left
unreclaimed and abandoned. There are 23 States and 3 Indian
tribes that currently administer approved abandoned mine land
programs.
Important work has been undertaken pursuant to the Surface
Mining act since it enactment. I understand that some 240,000
acres of high-priority, coal-related problems have been
reclaimed under the program at a cost of $1.7 billion. This is
a significant accomplishment.
However, there's still work that needs to be done under
this program. The Office of Surface Mining estimates that there
is $3 billion worth of priority one and priority two problems
that threaten public health and safety, and $3.6 billion worth
of general welfare problems that remain unreclaimed.
Overall, the Office of Surface Mining inventory of coal
problems shows more than $11.4 billion worth of unreclaimed
sites.
Throughout coal country, people have been seriously injured
and killed at abandoned mines, often involving pits and
unstable high walls, underground fires and open shafts.
Today, in addition to an update on the work that's being
carried out under SMCRA, I look forward to hearing testimony on
some of the key policy issues pending in the Office of Surface
Mining.
First, the issue of mountaintop mining, also known as
mountaintop removal, a mining practice under which--as the name
suggests--the tops of mountains are literally removed in order
to mine the coal seams that are found underneath. I understand
the Office of Surface Mining has a rulemaking pending that has
implications for this practice. We obviously need to look at
that and its potential impact on the communities affected.
In addition, the Office of Surface Mining is moving forward
with implementing legislation enacted last year as part of the
Tax Relief and Health Care Act of 2006 that authorizes the AML
fund.
Several issues have arisen--one that affects my home State,
our home State--is whether there will be limitations imposed on
the use of certain funds for non-coal reclamation. This has
long been permitted under SMCRA, I'm also interested in hearing
what progress the Office of Surface Mining is making on a
provision that I urged be included in the 2006 legislation to
allow tribes, such as the Navajo Nation to obtain primacy for
administering Title V regulatory programs on tribal lands.
I'm glad that we have representatives from the State of New
Mexico here, and from the Navajo Nation, as well.
I look forward to hearing from the witnesses. Let me defer
to Senator Domenici before we call on the witnesses.
[The prepared statement of Senator Salazar follows:]
Prepared Statement of Hon. Ken Salazar, U.S. Senator From Colorado
I want to thank Chairman Bingaman and Ranking Member Domenici for
holding today's hearing marking the 30th anniversary of the Surface
Mining Control and Reclamation Act.
Colorado's mining heritage has left my state with a legacy of
abandoned non-coal mine sites with no identifiable owner or operator
who is responsible for site cleanup and reclamation. Currently in
Colorado, we have more than 17,000 abandoned mine sites.
In 2006, Congress passed the Tax Relief and Health Care Act to
reauthorize the collection of the Abandoned Mine Land fee, and to make
other modifications to the AML program. This Act provides continuation
of the collection of an AML fee on each ton of coal produced through
2021. Furthermore, the Act ensures the majority of the fees collected
are dispersed to states and tribes without further appropriation.
Colorado has relied on funds from the AML fee to safeguard
approximately 5600 hazardous openings, and reclaim almost 1600 acres of
land. It is important that the AML funding remain available to non-coal
sites to allow this important work to continue.
Fees collected for the AML program also fund medical benefits to
retired mine workers. Through the United Mine Workers of America, coal
miners who worked for companies that no longer exist are provided
access to health care. Over $12 million in health and pension benefits
went to retired mine workers living in Colorado in 2006. Like my
colleagues, I am committed to keeping the promise made to provide these
important benefits to the coal miners who spent their careers in our
country's mines.
Recognizing that the funding from the AML program will not be
adequate to address the abandoned mine sites in Colorado, I have long
been a supporter of Good Samaritan legislation that would provide
incentives to private companies who step forward to reclaim abandoned
mines. I am hopeful that as this committee looks in the upcoming months
to amend the Mining Law of 1872 we will find ways to provide incentives
to private companies to clean up abandoned non-coal mine sites.
Again, thank you Mr. Chairman and Ranking Member Domenici for your
work on these important mining issues.
STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR FROM
NEW MEXICO
Senator Domenici. Mr. Chairman, you've delivered a good
opening statement that hits on all of the points. I would have
had a shorter one, but I'm just going to make it part of the
record and say that the part that I concur with you most, and
am most concerned about is, once again, uranium--uranium mining
is becoming a desire on the part of a number mining companies,
and mining ventures. Clearly the issue that you raised, about
using the resources of this Act for some of the cleanup--we
have to get to that. If not that, we have to learn from New
Mexico what their objections are going to be to uranium mining.
It's very much alive, at this point, in terms of quantity could
serve the Nation very well if we can do it right.
I think I will add, so that it will be on the record, in
the event that occurs, there will be those who will think about
uranium mining as it was 50 years ago, or uranium milling as it
was 50 years ago, 40. That isn't the way it is. Now, it's all
different in terms of the cleanliness, the health in the area--
some of which is going to have to be shown to New Mexicans, so
that they would understand it better.
But, I yield at this point. Thank you very much for calling
this hearing.
[The prepared statement of Senator Domenici follows:]
Prepared Statement of Hon. Pete V. Domenici, U.S. Senator From
New Mexico
Three months ago, we marked the 30th anniversary of the Surface
Mining Control and Reclamation Act.
Originally signed by President Jimmy Carter on August 3rd, 1977,
this law established a top-to-bottom approach for regulation of
domestic coal production. Between then and now, it has required an
impressive balancing act.
Although efforts to implement this law have been contentious
throughout its history, the difficulties encountered are ultimately
outweighed by the successes achieved. This fact is clearly evidenced by
the essential role that the energy feedstock governed by this statute--
coal--continues to play in our energy supply.
Coal provides more than half of our electric power.
At a time when demand for electricity is growing twice as fast as
supply, coal provides an important safeguard against tenuous power
reliability.
At a time when energy prices are volatile and increasing, coal has
remained a stable and affordable commodity.
At a time when our reliance on foreign sources of energy has
increased, coal has provided an important countermeasure to that trend.
These roles will only grow more important in the future. Coal is an
abundant resource that we can produce domestically, and rely upon, for
centuries to come.
We need coal to keep the lights on, to keep energy affordable, and
to support our economic prosperity in the coming years.
Because we need coal, it is essential that we continue to drive our
policies toward deployment of clean coal technologies. Instead of
policies that act as a tax on America's domestic coal industry, we
should provide incentives for investment in technologies that will
allow us to use our most abundant resource in a cleaner, more efficient
way.
The Surface Mining Control and Act Reclamation of 1977, and its
implementation over the years, has recognized America's need for coal.
Twenty-nine billion tons of coal have been mined in the United
States since this law was enacted. This has occurred in conjunction
with reclamation of several hundred thousand acres of mine sites
abandoned in the past, while ensuring that we not create additional
problems for the future.
By striking a balance between domestic resource production and the
protection of our environment, this Act has shown that it is possible
to meet our energy needs with our own energy resources.
I look forward to hearing from the witnesses.
The Chairman. Thank you very much.
We have two panels today, and so why don't I introduce the
first panel, and then ask that each of them summarize their
testimony. We'll put your full statement in the record, of
course, but we'd like you to take about 5 minutes or so and
focus our attention on the main points that you want us to
understand. Then after all four witnesses on the first panel
testify, we'll have some questions of this panel, and then go
to the second panel.
This first panel is made up of Brent Wahlquist, who is the
Director of the Office of Surface Mining, thank you very much
for being here, in the Department of Interior.
Joanna Prukop, who is the Cabinet Secretary for the
Department of Energy, Minerals and Natural Resources in the
State of New Mexico, thank you very much for being here.
Gregory Conrad, who is with the Interstate Mining Compact
Commission, thank you for being here.
Arvin Trujillo is here representing the Navajo Nation.
Thank you very much for being here.
Why don't you just proceed in that order, if you would, and
give us the main points that you think we need to clearly
understand.
STATEMENT OF BRENT WAHLQUIST, DIRECTOR, OFFICE OF SURFACE
MINING RECLAMATION AND ENFORCEMENT, DEPARTMENT OF THE INTERIOR
Mr. Chairman, and members of the committee, thank you for
the opportunity to appear before you today to share the
perspective of the Office of Surface Mining and Reclamation
Enforcement, or OSM, as we look back on 30 years of the Surface
Mining Control and Reclamation Act of 1977. The Act, which
created OSM, was signed into law on August 3, 1977, after 5
years of congressional debate, and two Presidential vetoes.
One of its express purposes is to strike a balance between
the protection of the environment and the Nation's need for
coal as an essential source of energy. This balance between
environmental protection, and energy production is embodied in
our logo, and serves as a guiding principle for OSM.
Another fundamental principle embodied in the Act is the
concept of State primacy. Congress clearly intended that States
would and should be the primary regulators.
State and tribal employees today permit and regulate 97
percent of the Nation's coal production, and use over 90
percent of the Abandoned Mine land Project funds. OSM's task,
then, is to provide the regulatory and policy framework, the
funding, oversight, assistance training and technical tools
needed to maintain stable and effective regulatory and AML
programs of the highest quality.
The first years after the Act's passage were filled with
controversy, contention, litigation and uncertainty. OSM faced
the challenge of striking the proper balance between oversight,
direct enforcement and assistance, in order to promote both
stable, quality State programs, and achieve a high level of
industry compliance.
Through the years, efforts to clarify OSM's oversight role
and provide training and technical support, have largely
eliminated the highly contentious relationship with States and
other interested parties that existed during our first decade.
Since the Act was passed 30 years ago. Domestic coal
production has increased 67 percent, and has gone from third
place in U.S. domestic energy production behind oil and natural
gas, to a solid first place. At the same time, unlike oil or
natural gas, coal is cheaper today than it was 30 years ago.
Coal is now the fuel providing more than half of the Nation's
electricity that is so essential to the economy and our daily
life.
Under our regulatory program, hundreds of thousands of
acres have been successfully mined and reclaimed, in addition,
numerous AML problems have been eliminated during re-mining by
active operations of previously mined areas, substantially
reducing the extent of AML problems that must be addressed
through the AML fund.
Under the AML program, enormous progress has been made in
addressing the 200-year legacy of hazards and environmental
degradation from past coal mining. Over the past 30 years,
there have certainly been some course corrections, by Congress
and by OSM. Most recently, Congress revised and extended the
AML program with the 2006 amendments passed and signed into law
last December. These changes provide a framework for completing
remaining coal-related reclamation, and for the first time,
authorize travel primacy.
While there's still some areas of controversy, such as
those surrounding mountaintop mining, OSM has made enormous
progress in bringing regulatory stability, based upon state
primacy, to the coal fields, in a manner that protects the
public and the environment during mining, and assures that land
is restored to productive uses following mining.
Our emphasis on limiting regulatory changes to areas where
greater clarify is needed, training, technical tools,
technology transfer and assistance have proven highly cost-
effective in lifting the qualify and consistency of State
programs, encouraging high-quality reclamation.
Along the way, we have pioneered partnerships with other
Federal agencies and academic institutions across the coal
fields, to promote emerging technologies and practices.
As we look to the future, we will continue our emphasis on
regulatory stability and clarity, in a manner that promotes the
development and application of sound science and new
technologies, so that the coal so essential to the Nation's
well-being can be produced, while minimizing environmental
impacts.
Thank you for the opportunity to highlight our challenges
and our accomplishments during the past 30 years.
[The prepared statement of Mr. Wahlquist follows:]
Prepared Statement of Brent Wahlquist, Director, Office of Surface
Mining Reclamation and Enforcement, Department of the Interior
Mr. Chairman and Members of the Committee, thank you for the
opportunity to appear before you today to share the perspective of the
Office of Surface Mining Reclamation and Enforcement as we look back on
30 years of the Surface Mining Control and Reclamation Act of 1977.
The Surface Mining Control and Reclamation Act (SMCRA) was signed
into law on August 3, 1977, after 5 years of Congressional debate and
two Presidential vetoes. The Office of Surface Mining Reclamation and
Enforcement (OSM) was created to implement the law. More recently, on
December 20, 2006, SMCRA was amended by the Tax Relief and Health Care
Act of 2006, Public Law 109-432 (2006 Amendments). One of the purposes
of SMCRA is ``to 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.'' This balance between environmental
protection and energy production is embodied in our logo and serves as
a guiding principle in our implementation of SMCRA.
Another fundamental principle embodied in SMCRA is the concept of
State primacy. For express reasons, Congress clearly intended that
States would and should be the primary regulators under SMCRA. Of the
nearly 2,400 government employees directly involved with implementing
the regulatory and restoration programs of SMCRA on a daily basis, less
than 25 percent work for OSM. The rest are State and Tribal employees
who permit and regulate 97 percent of the Nation's coal production and
use 90 percent of the Abandoned Mine Lands (AML) project funds. OSM's
task is to provide the regulatory and policy framework, oversight,
assistance, training and technical tools needed to maintain stable and
effective regulatory and AML programs of the highest quality.
The first years after SMCRA's passage were filled with controversy,
contention, litigation, and uncertainty. OSM faced the challenge of
striking the proper balance between oversight, direct enforcement, and
assistance, in order to promote both quality State programs and achieve
a high level of industry compliance. Through the years, efforts to
clarify OSM's oversight role, increase cooperation with States, develop
a training program, provide technical tools, and promote technology
transfer have largely eliminated the highly contentious relationship
with States and other interested parties that existed during the early
years of SMCRA. We believe that OSM has succeeded in its efforts to
develop and implement a stable regulatory structure that achieves the
desired balance between environmental protection and energy production,
while respecting the role of States as the primary regulators.
Since SMCRA was passed 30 years ago, domestic coal production has
increased by 67 percent and has gone from third place in United States
domestic energy production, behind oil and natural gas, to a solid
first place. At the same time, unlike oil or natural gas, coal is
cheaper today than it was 30 years ago. Coal is now the fuel providing
more than half of the Nation's electricity that is so essential to the
economy and our daily life. Further, 97 percent of that coal production
is regulated by States under primacy programs approved by the
Secretary.
The coal industry has changed over the past 30 years. At the time
SMCRA was passed, coal production occurred mainly in the eastern United
States, and small operators and privately-held companies produced much
of our Nation's coal. Since that time, many of those small operations
have been replaced by larger, publically-held operators. Most of the
increase in coal production has largely occurred in the West, while
total production in the rest of the country has remained relatively
constant.
Under SMCRA's regulatory program, hundreds of thousands of acres
have been successfully mined and reclaimed. In addition, numerous AML
problems, including hundreds of miles of abandoned highwalls and
numerous refuse piles, culm banks, and acid-mine-drainage sources, have
been eliminated during remining of previously mined areas,
substantially reducing the extent of AML problems that must be
addressed through the AML fund.
Under the AML program, enormous progress has been made in
addressing the 200 year legacy of hazards and environmental degradation
from past coal mining. The AML Program has reclaimed almost 240,000
acres of hazardous high-priority coal-related problems. Safety and
environmental hazards have been eliminated on almost 315,000 acres
containing coal or non-coal problems. Since 1977, OSM has provided
$4.06 billion in grants to its partners in 24 States and three Indian
Tribes to clean up dangerous abandoned mine sites. Since 1999, OSM has
funded 161 Watershed Cooperative Agreements with local non-profit
watershed organizations totaling $14.1 million. This funding has been
leveraged with other resources by these organizations to undertake
projects valued at over $45 million. Almost 8,000 emergencies have also
been addressed.
Over the past 30 years, there have certainly been some course
corrections. Congress has passed amendments eliminating the two-acre
exemption, and requiring restoration of water supplies damaged by
underground mines and repair or compensation for homes damaged by
subsidence. Congress has also revised and extended the AML program,
with the latest changes contained in the 2006 Amendments to SMCRA
passed and signed into law last December. These changes provide a
framework for completing remaining coal-related reclamation.
OSM has made changes to the regulations implementing SMCRA in
response to identified needs and to issues that arose during
litigation. For example, OSM has developed the Applicant Violator
System (AVS) and corresponding regulations that block those responsible
for outstanding violations from getting new permits. In support of
State primacy and to lift the quality of regulatory and AML programs,
OSM:
Maintains a highly successful training program addressing
regulatory and AML issues that now utilizes State/Tribal staff
for more than half of its instructors;
Provides, through our Technical Information and Professional
Services (TIPS) program, off-the-shelf technical software at
tremendous savings through license sharing arrangements,
training on that software, and cutting edge technical tools;
Provides technology transfer programs to promote the
utilization of best practices; and
Provides an alternative enforcement framework and supports
State regulators to help compel reclamation by those with
outstanding violations, particularly in bankruptcy cases.
Our AML enhancement regulations have been very successful in
stretching the reach of AML funding by allowing and encouraging the
sale of coal encountered during the abatement of AML problems to help
offset the cost of AML remediation.
Another important shift has been promotion of reforestation as a
post-mining land use. Virtually all of the land that has been surface
mined for coal over the past 30 years in Appalachia was forested before
it was mined. However, the vast majority of that land has not been
returned to forest. Instead, much of it has been reclaimed to hayland/
pasture with smoothly graded (and thus compacted) surfaces and heavy
groundcover unsuitable for growing trees.
Yet, forests moderate temperatures, control runoff, improve water
quality, sequester carbon, and provide enormous biological diversity.
Researchers at several universities have demonstrated that mined land,
if properly reclaimed, can sustain tree survival and growth rates even
greater than average sites on unmined land.
Over the past few years, in partnership with a wide range of State
and Federal agencies, industry groups, environmental organizations,
academic institutions, and individuals, OSM has established the
Appalachian Regional Reforestation Initiative to promote reforestation
through use of a science-based approach. The challenge before us is to
completely change the perception among regulators, mine operators, and
landowners, of what good reclamation looks like, while continuing to
foster further scientific development and understanding of forest
restoration.
This problem demonstrates the value of maintaining collaborative
relationships with the academic institutions across the coal fields,
since the problems related to reforestation were known within the
academic institutions for several years before that knowledge began to
work its way into practices accepted by regulators and industry.
In summary, while there are still some areas of controversy, such
as those surrounding mountaintop mining, OSM has made enormous progress
in bringing regulatory stability, based upon State primacy, to the coal
fields in a manner that protects the public and the environment during
mining and assures that land is restored to productive uses following
mining. Emphasis on limiting regulatory changes to areas where greater
clarity is needed, training, technical tools, technology transfer, and
assistance have proven highly cost effective in lifting the quality and
consistency of State programs and encouraging high quality reclamation.
Along the way, we have pioneered partnerships with other Federal
agencies, affected communities, and academic institutions across the
coal fields to promote emerging technologies and practices. We also
have been working with Tribes in implementing those aspects of the 2006
amendments authorizing Tribal primacy.
According to the Energy Information Administration, coal is
expected to remain the primary fuel source for electricity generation
over the next 20 years and coal production is forecasted to increase to
match demand. Meeting that demand for coal, while protecting people,
land, and water, will require a stable regulatory environment wherein
all parties, including citizens, industry, landowners, and regulators,
can make informed decisions affecting their interests.
As we look to the future, we will continue our emphasis on
regulatory stability and clarity in a manner that promotes the
development and application of sound science and new technologies so
that the coal so essential to the Nation's well being can be produced
while minimizing environmental impacts.
Thank you for this opportunity to highlight our challenges and
accomplishments during the first 30 years of SMCRA.
The Chairman. Thank you very much.
Secretary Prukop, go right ahead.
STATEMENT OF JOANNA PRUKOP, CABINET SECRETARY, ENERGY, MINERALS
AND NATURAL RESOURCES DEPARTMENT, SANTA FE, NM
Ms. Prukop. Thank you very much, Mr. Chairman, and thank
you for inviting the State of New Mexico to testify today. I
will speak today on New Mexico's perspective on the
implementation and future of the Surface Mining Control and
Reclamation Act of 1977, or SMCRA, as we all know it.
New Mexico has had a challenging, but largely positive,
experience under SMCRA. We are a State with significant coal
production, but with a small coal regulatory program. Our State
has a long history of coal and hard rock mining, that has
produced thousands of abandoned, hazardous mines. We seek to
diminish these hazards with limited abandoned mine funds, and
look for ways to maximize and leverage our less-than-adequate
resources to achieve SMCRA's goals.
The biggest lesson from three decades of working with SMCRA
is that success is gained when we apply innovative and flexible
approaches at the State level to new problems. Our chances of
success also improve when the Federal Government supports our
approaches, which has been the case in recent years, I'm happy
to say.
Today, coal production in New Mexico is roughly three times
what it was at the passage of SMCRA. New Mexico has four large
active coal mines, three surface, and one underground mine.
They produce between 25 to 30 million tons of coal per year.
As coal mining expanded in our State, mine reclamation
proceeded, and proved successful, despite our arid climate.
Successes can be seen in the overall numbers and the strategies
that we've implemented in this program. Of some 26,000 acres
disturbed by coal mining in New Mexico during the life of
SMCRA, over 75 percent have already been re-graded, covered
with topsoil, and re-seeded. Over half of the mines permitted
under SMCRA have actually reached full reclamation, and have
been released.
Success is due, in part, to innovative approaches, such as
the geomorphic reclamation strategy adopted by several mines in
our State. This strategy recreates natural drainage patterns in
reclaimed land, and results in long-term stability and erosion
control.
New Mexico's abandoned mine lands program which, as you
know, was funded from fees on coal production, has addressed
some of our most hazardous abandoned mines in the State. Under
SMCRA, New Mexico has safeguarded more than 4,000 mine
openings, and reclaimed more than 700 acres of land that had
been disturbed by mining, but yet we have over 15,000 hazardous
mine openings remaining in New Mexico.
In New Mexico, like other Western States, we face a number
of challenges in the future implementation of SMCRA. One is the
need to improve and expand our communication with the public.
We've had examples of this in recent past. For a new mine,
SMCRA only requires a notice published in the legal section of
a newspaper to inform the public.
Two weeks ago, under the direction of Governor Richardson,
our Mining Commission enacted new rules that significantly
expand the types and number of public notices that are now
required for new mines or major permit revisions for mines.
Another critical issue is the failure of Federal grants to
keep pace with the rising demand for coal production. As coal
production in the West has steadily increased, grants to
Western States for regulatory programs have actually decreased
in inflation-adjusted dollars. Because of these funding cuts,
most Western States are faced with difficult choices, to either
find other funding in their State budgets, or reduce their
programs in the face of growing demand.
Another challenge is the shift in OSM's position on using
SMCRA abandoned mine land funds for abandoned non-coal mines.
Section 409 of SMCRA allows a State to use AML funds to address
high-priority, non-coal mines, and Western States have long-
used AML funds to address significant threats posed by non-coal
mines.
Last December, when Congress reauthorized the AML fee, and
distributed to the States funds that were previously collected
and allocated, but not appropriated, New Mexico now stands to
have an additional $20 million come to our State over the next
7 years. While Section 409 was not amended in any way, OSM has
suddenly shifted course, and now indicates that none of these
new funds can be used for non-coal mine projects.
One result of OSM's position will be to prevent the State
from fully participating with the Navajo Nation on a joint
project to address abandoned uranium mines near the Navajo
Indian reservation. This is an area of concern to Governor
Richardson, and our State legislature.
The impact of uranium mining on the Navajo people received
national attention very recently at a hearing before the House
Oversight and Government Reform Committee 3 weeks ago. For OSM
to reverse course and claim we can not use the new AML funds on
high-priority uranium sites is difficult for us to comprehend,
under the circumstances.
With that, Mr. Chairman, I will conclude my remarks, and
thank you, again for having me here.
[The prepared statement of Ms. Prukop follows:]
Prepared Statement of Joanna Prukop, Cabinet Secretary, Energy,
Minerals and Natural Resources Department, Santa Fe, NM
Good afternoon, Mr. Chairman and Members of the Committee. Thank
you for inviting the State of New Mexico to testify today. I am Joanna
Prukop, Cabinet Secretary for the New Mexico Energy, Minerals and
Natural Resources Department.
Today I will speak about the implementation of the Surface Mining
Control and Reclamation Act of 1977, or SMCRA, and focus on the
experience New Mexico had implementing it. I will also discuss issues
shared by other Western coal mining states and the Western Interstate
Energy Board of the Western Governors Association.
New Mexico brings an important perspective to the discussion on the
past, present and future of SMCRA. As a state with significant coal
production but with a small regulatory program, we look for ways to
utilize our limited resources to achieve SMCRA's goals. Our state has a
long history of both coal and hard rock mining. We struggle with using
our limited abandoned mine funds to effectively protect the public and
the environment from the hazards of coal and non-coal abandoned mines.
And with other Western states, we see that expanding populations and
recreational use are increasing both the exposure to abandoned mine
dangers and the public interest in new mine development.
New Mexico has an extensive mining history. Native Americans mined
turquoise, lead, coal and copper hundreds of years before Europeans
arrived in North America. In the 1820s, the discovery of gold near
Cerrillos triggered a rush decades before the California Gold Rush.
Coal mining expanded in the nineteenth century driven by demand from
the military, the railroads and non-coal mines across the Southwest.
New Mexico enacted its own coal surface mining law in 1972. New
Mexico's version of SMCRA was adopted by its Legislature in 1979.
New Mexico has had a largely positive experience under SMCRA. Prior
to its enactment, coal production in New Mexico had never exceeded 10
million tons in a year. Today, there are four large active mines in New
Mexico, three surface and one underground, producing between 25 and 30
million tons per year. As coal mining expanded, mine reclamation
proceeded and proved successful despite our arid environment. Thanks to
funding for abandoned mine reclamation under SMCRA, threats to public
safety and the environment have been reduced.
The lesson we have learned from three decades of working under
SMCRA is that success is gained when we apply innovative and flexible
approaches to new problems. Our relationship with the Office of Surface
Mining (OSM) has evolved over the years to give the State greater
responsibility, and freedom, to implement SMCRA. Today, our
relationship with OSM works best when they give us the flexibility to
be innovative and provide support for our successful new approaches.
Coal mine reclamation in the arid Southwest faces significant
challenges. Our limited rainfall, which often occurs in torrents,
causes problems with both revegetation success and erosion control. Our
staff has worked with mine operators to develop approaches to overcome
these challenges and achieve reclamation success.
We are especially proud of the geomorphic reclamation strategy
adopted by several mines in New Mexico. This strategy recreates the
natural drainage patterns in the reclaimed land and results in greater
long term stability and erosion resistance. The San Juan and La Plata
Mines have won several national and state awards for their
implementation of this pioneering strategy. Geomorphic reclamation in
New Mexico is so innovative that OSM held a national forum on the topic
one year ago including a tour of these mines. We have also worked on
standards for revegetation success that take into account the
variability in results due to drought years. These standards have now
been incorporated into OSM national rules.
Success can also be seen in the overall numbers. Of 26,146 acres
disturbed by coal mining in New Mexico during the life of SMCRA, over
75% have been regraded to an approved final surface configuration,
covered with topsoil and reseeded. Over 50% of the mines permitted
since the implementation of the New Mexico Coal Program have achieved
final bond release and have been returned to the land owners. New
Mexico has also returned over $40 million dollars of bonds to operators
associated with documentation of successful reclamation.
We have also embraced new technologies that allow for more
effective oversight and communication. We use mobile computing
technology and geographic information system tools to assist field
inspections and more effectively monitor ongoing disturbances and
reclamation at the large mines in New Mexico. We also now require coal
operators to submit permit documents electronically, thereby reducing
paperwork and facilitating both analysis and communication.
These projects are examples of the evolving relationship between
New Mexico and OSM. We consulted with OSM as we embarked on new
approaches, and they provided us flexibility and support by providing
the State with equipment and training. OSM has also promoted some of
our successful approaches to other regulatory authorities, including
sharing knowledge and experience with the Navajo Nation and Hopi Tribe
as they move towards developing their tribal programs.
The states, and several tribes, are primarily responsible for the
implementation of SMCRA Title IV--the Abandoned Mine Land program
(AML). SMCRA includes provisions for the safeguarding of abandoned coal
mines and high priority non-coal mines. Funding from the fees collected
on coal production has helped New Mexico address some of our most
hazardous abandoned mines. In New Mexico, we estimate that there are
over 15,000 unreclaimed mine hazards across the State. Since the
inception of the SMCRA AML program, New Mexico has addressed
approximately 4,000 mine features and reclaimed over 700 acres of mine-
disturbed land.
Our annual AML funding in recent years has been about $1,500,000.
With these funds, New Mexico successfully completed a number of
innovative projects that were recognized by OSM over the past five
years. At Sugarite Canyon near Raton, we used a variety of materials
and techniques to complete a stable reclamation of very steep and
eroding coal mine waste piles that were impacting streams within a
state park In the Cerrillos Hills between Santa Fe and Albuquerque, we
closed dozens of mines along trails in an historic park using
techniques that allowed wildlife access and preserved the historical
integrity of the sites. Both of these projects received awards from
OSM. Last month, we received the highest national award for the Real de
Delores project in the Ortiz Mountains which safeguarded mine openings
within one of the oldest mining districts in America.
We're quite proud of the work we achieved under SMCRA to mitigate
the effects of coal mining in New Mexico.
However, New Mexico and Western states face challenges due to the
growth of population and the expansion of Western coal mining. These
two growth areas can conflict with each other. As population grows and
development expands into previously unsettled areas, concerns develop
when new coal mines are proposed. Our newest residents along with our
oldest have issues over new coal mining. Years of conflict transpired
over the proposed Fence Lake Coal Mine, and our State's Native American
communities have concerns about coal mining impacting sacred areas and
causing environmental impacts.
The lesson learned over the Fence Lake Coal Mine conflict is that
procedures for public participation are insufficient to the
expectations of citizens. SMCRA only requires a notice published in the
legal section of a newspaper for a new mine--even if that mine could
exceed 10,000 acres. Two weeks ago, New Mexico's Coal Surface Mining
Commission enacted new rules that significantly expand the types and
numbers of public notice provided for any new mine or major permit
revision. We now provide for radio announcements, postings in the
community, large newspaper ads, mailings to nearby residents as well as
postings on websites. New Mexico will also hold a public informational
meeting for all new permit applications. We are hopeful that OSM will
support these changes.
Another critical issue for New Mexico and for other Western states
is the failure of federal grants to keep pace with the rising demand
for coal production. A report issued last year by the Western
Interstate Energy Board of the Western Governors Association documented
that, as coal production in the West has steadily grown (and now
exceeds the rest of the country combined), grants to Western states for
SMCRA regulatory programs have actually decreased in inflation-adjusted
dollars. Most Western states have been faced with difficult choices to
either cover coal program costs with other state funds or to reduce
their programs in the face of growing demands.
New Mexico maintains a lean regulatory program with generally one
specialist for each needed area: geology, hydrology, engineering, soil
science and plant science. We have kept costs low through the use of
technology. Over the past five years, our grant funding has decreased
while costs have risen for such things as salaries, benefits, fuel, and
travel. Now we are planning to transfer two full-time employee
positions in the next month because the coal grant can no longer
support them.
Another issue that negatively impacts New Mexico and Western states
is the shift in OSM's position on use of SMCRA AML funds for high
priority abandoned non-coal mines. Section 409 of SMCRA allows the
States to use AML funds to address high priority non-coal mines. Since
the beginning of the AML program, New Mexico, Utah and Colorado have
balanced the need to reclaim abandoned coal mines with the need to
address the significant health and safety threats posed by numerous
non-coal mines. OSM has recognized this need for flexibility and
supported it in the past.
Last December, Congress passed the reauthorization of the AML fee,
which provided that the distribution of funds to States equal the
amount previously allocated under SMCRA but never appropriated. For New
Mexico, this amounts to approximately $20 million in additional AML
funds distributed over the next 7 years. However, while Section 409 was
not changed or amended in any way, OSM has suddenly shifted course and
now indicates to the States that this ``return of state share
balances'' funding cannot be used for non-coal mine projects.
This loss of flexibility comes at a particularly significant time
for New Mexico. After years of discussions, our AML program has reached
an understanding with the Navajo Nation to jointly work on abandoned
uranium mines in areas of questionable jurisdiction near the Navajo
Indian Reservation. The impacts of these uranium mines on the nearby
residents, particularly the Navajo people, are finally receiving the
necessary national attention as evidenced by the hearing before the
House Oversight and Government Reform Committee three weeks ago. With
the new AML money available, we have a unique opportunity to finally
address these sites which have caused great harm to the Navajo
communities. For OSM to suddenly reverse course and deny our ability to
expend these new AML funds on this high priority problem is difficult
to comprehend.
Mr. Chairman and members of the Committee, I thank you for this
opportunity to share New Mexico's perspective on the Surface Mining
Control and Reclamation Act. The first 30 years of SMCRA brought
significant challenges to the States and the federal government. Today,
we can point to many successes under this law. We look forward to the
next 30 years and hope that Congress and the federal government will
continue to provide the States with the flexibility and support
necessary for continued and further success under SMCRA. We appreciate
the opportunity to present this testimony, and look forward to working
with the Committee in the future.
The Chairman. Thank you very much.
Mr. Conrad, go right ahead.
STATEMENT OF GREGORY E. CONRAD, EXECUTIVE DIRECTOR, INTERSTATE
MINING COMPACT COMMISSION, HERNDON, VA
Mr. Conrad. Good afternoon, Mr. Chairman and members of the
committee. I appreciate the invitation to appear before you
today, and to provide a perspective from the States concerning
the Surface Mining Control and Reclamation Act as we reflect on
30 years of its implementation.
The Compact is comprised of 24 States throughout the
country that produce some 90 percent of our Nation's coal, as
well as important non-fuel minerals.
The Surface Mining Act is one of several laws passed during
the environmental decades of the seventies that provided for a
unique blend of Federal and State authority for the
implementation of its provisions. In designing a regulatory
model that would be both effective and efficient, Congress
decided that a State should take the lead in regulating surface
mining and reclamation operations within their borders.
Due to the diversity of terrain, climate and other
conditions related to mining operations, it simply made sense
to rely upon the States to implement programs based upon
national standards. The other part of the equation was
financial. It was anticipated, and indeed, has proven true that
the States would be able to operate their programs at
significantly lower costs than the Federal Government.
We are happy to report today, Mr. Chairman, that the
regulatory regime established by SMCRA is a success, and is
working notably well. The purposes of the Act are being
accomplished in the overall goal of establishing a nationwide
program to protect society and the environment from the adverse
effects of past and present coal mining operations has been
achieved. Drainage and runoff controls are in place to ensure
that downstream waters are not filled with sediment, or
otherwise polluted, blasting operations are controlled to
prevent damage to nearby property, final grading and reshaping
of mine lands are undertaken to ensure that they are stable and
approximate their original contour, topsoil is preserved, and
then replaced to accomplish high levels of productivity, and
mine lands are reclaimed to a variety of beneficial uses, and
then returned to local landowners in equal or better condition
than before mining.
Examples of some of the excellent reclamation that is
occurring under the Act can be seen in our two exhibits, which
highlight various State and national reclamation award winners.
As we look to the future, Mr. Chairman, the States face
several challenges. Perhaps the most critical is adequate
funding for State regulatory programs, as alluded to by Ms.
Prukop. Pursuant to section 705 of SMCRA, OSM is authorized to
make annual grants to the States of up to 50 percent of the
total costs incurred, for the purposes of administering and
enforcing their programs. This percentage is increased for
States regulating on Federal lands.
As you know, Mr. Chairman, these grants are essential to
the effective operation of State regulatory programs. Over the
past several years, the amount for these Title V grants has
been flat lined, as you will note in the graph to my left.
What this does not show is that these grants have been
stagnant for over 12 years. Looking again at the graph, another
disturbing trend is evident, and that is that the gap between
the State's requests and what they are receiving in annual
grants is widening. In the end, this increasing gap is
compounding the problem caused by inflation and uncontrollable
costs, undermines our efforts to realize needed program
improvements and enhancements and jeopardizes our efforts to
minimize the impact of coal extraction operations on people and
the environment.
Should the Federal Government be faced with operating these
programs, the impact on their budget will be significant. For
all of these reasons, we have urged Congress to increase
funding for State Title V grants in OSM's Fiscal Year 2008 to
$67 million, and we are encouraged that both the House and the
Senate are moving in this direction, and hope to see the full
amount approved by Congress.
Let me turn briefly to some of the key successes and future
challenges facing the States. Over the past 20 years, State
programs have improved to the point that implementation is
highly successful. As a result, the overall programmatic
emphasis has shifted from structural and administrative issues,
to specific technical, on-the-ground challenges that are
encountered as reclamation technology and science are advanced.
This is where OSM serves a valuable support mechanism for the
States, particularly their TIPS program, and the Agency's
technical training program, both of which undergird the State's
efforts to operate efficient and effective programs.
On another front, the States have worked cooperatively with
OSM and others to address acid mine drainage issues, and have
made significant strides in advancing reforestation efforts on
reclaimed land, and through a partnership among the States, OSM
and EPA, we have achieved momentum in the re-mining arena,
where thousands of acres of abandoned mine lands have been
restored as part of active mining operations, thereby saving
valuable AML trust fund moneys, and returning the land to
productive use.
Speaking of the AML program, the States were greatly
encouraged by he passage of the 2006 amendments, the SMCRA
which culminated over 12 years of work by the States and others
to reauthorize this vital program. The AML program has been one
of the hallmarks of SMCRA and thus, has accomplished much over
the years.
An overview of these accomplishments and continuing
challenges is contained in a statement for the National
Association of Abandoned Mine Land Programs,* which I would
request be accepted for the record.
---------------------------------------------------------------------------
* See Appendix II.
---------------------------------------------------------------------------
Among the future technical----
The Chairman. We'll include that following your testimony.
Mr. Conrad. Thank you. Among the future technical and
regulatory challenges facing the States are those related to
financial assurance for long-term impacts beyond normal
reclamation, prime farmland productivity requirements, and
underground mine mapping. In each of these instances, and in
others such as subsidence control, blasting and hydrologic
protection, the States are actively engaged in seeking
technical solutions, as well as regulatory program enhancements
that will fully and adequately address concerns associated with
these issues.
Thank you very much.
[The prepared statement of Mr. Conrad follows:]
Prepared Statement of Gregory E. Conrad, Executive Director, Interstate
Mining Compact Commission, Herndon, VA
Good afternoon Mr. Chairman and Members of the Committee. My name
is Greg Conrad and I serve as Executive Director of the Interstate
Mining Compact Commission. The Compact is comprised of 24 states
throughout the country that together produce some 90% of our Nation's
coal, as well as important non-fuel minerals. The Compact's purposes
are to advance the protection and restoration of land, water and other
resources affected by mining through the encouragement of programs in
each of the member states that will achieve comparable results in
protecting, conserving and improving the usefulness of natural
resources and to assist in achieving and maintaining an efficient,
productive and economically viable mining industry. Participation in
the Compact is gained through the enactment of legislation by the
member states authorizing their entry into the Compact and their
respective Governors serve as Commissioners. We appreciate the
opportunity to participate in the Committee's oversight hearing on
``The Surface Mining Control and Reclamation Act of 1977: Policy Issues
Thirty Years Later''.
The Surface Mining Control and Reclamation Act (SMCRA) is one of
several laws passed in the environmental decade of the 1970s that
provided for a unique blend of federal and state authority for
implementation of its provisions. One of the key underpinnings of the
law during its formation was that the primary governmental
responsibility for developing, authorizing, issuing and enforcing
regulations for surface mining and reclamation operations subject to
the Act should rest with the states, due to the diversity of terrain,
climate, biologic, chemical and other physical conditions related to
mining operations. We are here to report on our role and experience as
primary regulatory authorities under SMCRA and to provide our
perspective on the various policy issues that attend the implementation
of this important law.
By almost all accounts, the implementation of SMCRA by the states
has been a resounding success. The anticipated purposes of the Act have
been or are being accomplished and the overall goal of establishing a
nationwide program to protect society and the environment from the
adverse effects of past and present surface coal mining operations has
been achieved. Drainage and runoff controls are in place to ensure that
downstream waters are not filled with sediment or otherwise polluted by
mining activity. Blasting operations are controlled to prevent damage
to nearby buildings and other property. Final grading and reshaping of
mined lands are undertaken to ensure that they are stable and
approximate their original contour. Topsoil is preserved and then
replaced on mined lands to accomplish high levels of productivity.
Mined lands are reclaimed to a variety of beneficial uses within a few
years after the completion of mining. Once reclaimed lands are fully
bond released, they are returned to local landowners in equal or better
condition than before mining began. All of these statutory requirements
are being accomplished while maintaining a viable coal mining industry
that is essential for meeting our Nation's energy needs. Examples of
some of the excellent reclamation that is occurring under the Act can
be seen in our two exhibits, which highlight various state, IMCC and
OSM reclamation award winners.
As we reflect back on the past 30 years since the enactment of the
Surface Mining Control and Reclamation Act (SMCRA), much has changed
and yet some things remain the same. In the early years, we were
focused on the development of a comprehensive federal regulatory
program that would serve as the baseline for SMCRA's implementation.
Many of these initial rules faced legal challenges as being arbitrary,
capricious or inconsistent with law, which took many years to resolve.
A few, like the definition of valid existing rights and the procedural
rules concerning ownership and control that underpin the Applicant/
Violator System, are still unsettled. However, the majority of the
federal rules are in place and working effectively. This is not to say
that we are out of the woods with respect to significant future
rulemakings. Two examples of rules currently before the Office of
Surface Mining, Reclamation and Enforcement (OSM) are stream buffer
zones and mine placement of coal combustion by-products. However, in
general, the regulatory program is more stable and certain than it was
even 10 years ago, which benefits both coal operators and citizens.
One of the key components of SMCRA when first enacted was its
reliance on a unique and challenging arrangement of state and federal
authority to accomplish its intended purposes and objectives. Pursuant
to the state primacy approach embodied in SMCRA, the states serve as
the front-line authorities for implementation of the public protection
and environmental conservation provisions of the Act, with a supporting
oversight role accorded to OSM. It has taken a good portion of the past
thirty years to sort out the components of these often competing roles,
but the result has been a balance of authority that generally works.
During the past ten or so years, the working relationship between
the states and OSM has been particularly productive and non-
contentious. We have moved beyond the second-guessing of state
decisions that predominated the early years of state program
implementation and instead are engaged in more cooperative initiatives
where OSM strives to support the states through technical advice and
training and where the states and OSM work together to solve difficult
policy and legal questions. OSM's oversight program is more focused on
results, looking at on-the-ground reclamation success and off-site
impacts, which better reflect the true measure of whether the purposes
of SMCRA are being met. In fact, over the years, both OSM's oversight
program, as well as several state performance-based regulatory
programs, have received national recognition for their effectiveness
and efficiency.
This is not to say that there are not several challenges ahead of
us as we look to the future. Perhaps the most crucial at this juncture
is adequate funding for state regulatory programs. Pursuant to section
705 of SMCRA, OSM is authorized to make annual grants to the states of
up to 50 percent of the total costs incurred by the states for the
purposes of administering and enforcing their programs. This percentage
is increased for those states that regulate on federal lands. As you
know, Mr. Chairman, these grants are essential to the full and
effective operation of state regulatory programs. For the past several
fiscal years, the amount for state Title V grants has been flat-lined.
(See figure 1)* What this graph does not show is that these grants have
been stagnant for over 12 years. The appropriation for state Title V
grants in FY 1995 was $50.5 million. Essentially, we have attempted to
operate effective, high performance programs with a meager $6 million
increase spread over 12 years. By most standards, this is remarkable,
and clearly a bargain for the federal government. Over this same period
of time, coal production has risen substantially and OSM's own budget
for federal program costs has increased by over $25 million. Given the
fact that it is the states that operate the programs that address the
environmental impacts of coal mining operations, a similar increase
would have been expected. But instead, state regulatory grants have
remained flat-lined.
---------------------------------------------------------------------------
* Graphic has been retained in committee files.
---------------------------------------------------------------------------
For Fiscal Year 2008, in an attempt to reverse this trend, OSM has
proposed a modest increase for state Title V grants. However, it may be
too little too late, especially for some states such as Virginia and
Utah. In Virginia, for instance, coal production and operating costs
have increased, while federal funding for state-based coal regulatory
programs has consistently decreased. The rise in costs associated with
wages, employee benefits, and transportation fuels have risen
approximately 15% over the past four years. Due to the loss of federal
funds, Virginia is unable to fill many staff postings, including that
of the critical field inspector. Without a full staff of reclamation
inspectors, Virginia may not meet federal inspection guidelines.
Virginia is also unable to fill technical support staff positions. This
will limit the assistance the Commonwealth can offer to coal companies
and significantly delay the review and approval process for surface
mining permits. Virginia's situation is symptomatic of what other
states are facing--or will soon face--if the debilitating trend for
Title V grant funding is not reversed.
It must be kept in mind that state coal regulatory program
permitting and inspection workloads are in large part related to coal
mine production. In general, as coal production increases, the need for
additional permitting and operational inspections also increases. State
programs must be adequately funded and staffed to insure that
permitting and inspection duties are both thorough and timely as states
experience the reality of accelerating coal mine production and
expansion activities. As program funding shortfalls continue, states
risk the possibility of delayed production and negative impacts to the
environment. The situation in Colorado exemplifies this reality. From
2002 to 2006, Colorado production increased approximately 10%. Permit
revision activity increased nearly 50% during the same period. This
reality has stressed existing program resources and caused the delay or
elimination of lower priority program functions.
Just as with the federal government, state regulatory programs are
personnel intensive, with salaries and benefits constituting upwards of
80 percent of total program costs. And, just like the federal
government, state personnel costs are increasing. (See figure 2)*
States must have sufficient staff to complete permitting, inspection
and enforcement actions needed to protect citizens of the coalfields.
When funding falls below program needs, states may struggle to keep
active sites free of offsite impacts, reclaim mined areas, and prevent
injuries.
---------------------------------------------------------------------------
* Graphic has been retained in committee files.
---------------------------------------------------------------------------
Looking again at figure 1, another disturbing trend is evident. The
gap between the states' requests, which are based on anticipated
expenditures, and what states are receiving in annual grants, is
widening. The numbers in this chart are taken from OSM budget
justification documents, OSM's website, and estimates provided to OSM
from the states. Please note that these numbers have not been adjusted
for inflation--which means the situation is actually more bleak. There
is no disagreement about the need demonstrated by the states. In fact,
in OSM's own budget justification document, OSM states that: ``the
states have the unique capabilities and knowledge to regulate the lands
within their borders. Providing a 50 percent match of Federal funds to
primacy States in the form of grants results is the highest benefit and
the lowest cost to the Federal government. If a state were to
relinquish primacy, OSM would have to hire sufficient numbers and types
of Federal employees to implement the program. The cost to the Federal
government would be significantly higher.'' (Page 71 of OSM's Budget
Justification)
The enormity of this funding challenge will become increasingly
clear as the federal government is faced with the dilemma of either
securing the necessary funding for state programs or implementing those
programs (or portions thereof) themselves--at significantly higher
costs. In Virginia alone, for instance, the cost of OSM running the
program would likely amount to $8-10 million based on what it currently
costs OSM to run the comparable federal program in Tennessee. For
perspective, in Fiscal Year 2007, Virginia has been offered $3.175
million in federal funding to operate its program (although actual
needs amount to $3.6 million--an overall shortfall of nearly $1 million
when the state match is factored in). If this analysis was expanded to
all of the 24 state programs, the overall impacts to the federal
government would be dramatic. In addition, as anticipated by SMCRA's
framers, the states are closer to the action, are able to account for
local conditions and circumstances and can be more responsive.
In the end, the increasing gap between the states' anticipated
expenditures and actual Federal funding is compounding the problem
caused by inflation and uncontrollable costs, undermines our efforts to
realize needed program improvements and enhancements, and jeopardizes
our efforts to minimize the impact of coal extraction operations on
people and the environment. For all these reasons, we have urged
Congress to increase funding for state Title V regulatory grants in
OSM's FY 2008 budget to $67 million, as fully documented in the states'
estimates for actual program operating costs. A resolution adopted by
IMCC at its recent annual meeting addressing this matter is attached to
our testimony (Attachment No. 1).** At this point, the House has
approved an additional $2 million over the Administration's request of
$60.2 million and the Senate Appropriations Committee has approved a $6
million increase over that request. This is very encouraging and we
trust that in the end, Congress will approve the full $66.2 million for
state Title V grants.
---------------------------------------------------------------------------
** Document has been retained in committee files.
---------------------------------------------------------------------------
It must be kept in mind that where there is inadequate funding to
support state programs, some states will be faced with turning all or
portions of their programs back to OSM (as in the case of Virginia) or,
in other cases, will face potential lawsuits for failing to fulfill
mandatory duties in an effective manner (as has occurred in Kentucky
and West Virginia in the past). Of course, where a state does, in fact,
turn all or part of its Title V program back to OSM (or if OSM forces
this issue based on an OSM determination of ineffective state program
implementation), the state would be ineligible for Title IV funds to
reclaim abandoned mine lands. This would be the height of irony given
the recent reauthorization and revitalization of the AML program.
Speaking of the Title IV AML program, the states were greatly
encouraged by the passage of the 2006 Amendments to SMCRA, which
culminated over 12 years of work by the states and others to
reauthorize this vital program. The AML program has been one of the
hallmarks of SMCRA and has accomplished much over the years, as further
articulated in the statement submitted by the National Association of
Abandoned Mine Land Programs (NAAMLP). With the infusion of new life
and funding, the program holds out great promise for the future. The
states have been working closely with OSM to design rules that will
appropriately implement the provisions of the 2006 amendments and allow
the states to put money into projects that meet the purposes and
objectives of the new law. Among the key issues we have addressed in
our discussions with OSM are the following:
Use of the grant mechanism to distribute payments from the
U.S. Treasury
Funding for minimum program states
Use of unappropriated state share balances for noncoal
reclamation and the acid mine drainage set aside
The effective date of certain payments under the new law
Adjustments to the current grants process
We look forward to pursuing these issues in greater detail with OSM
over the coming months. Should the Committee desire a copy of our more
detailed comments on the draft proposed rules, please let us know.
With regard to funding for state Title IV Abandoned Mine Land (AML)
program grants, recent Congressional action to reauthorize Title IV of
SMCRA has significantly changed the method by which state reclamation
grants are funded. Beginning with FY 2008, state Title IV grants are to
be funded primarily by permanent appropriations. The only programs that
continue to be funded through discretionary appropriations are high-
priority federal reclamation programs, state and federal emergency
programs, and OSM operations. As a result, the states will receive
mandatory funding in FY 2008 of $288.4 million for AML reclamation
work. OSM also proposes to continue its support of the Watershed
Cooperative Agreement program in the amount of $1.6 million, a program
we strongly endorse.
Assuming that permanent appropriations for state AML grants do, in
fact, become a reality (and we trust they will), there are three
remaining discretionary funding priorities for the states: minimum
program funding; federal emergency programs; and Clean Streams funding.
With respect to minimum program states, under the new funding formula
provided to us by OSM, all of the states and tribes will receive
immediate funding increases except for minimum program states. Under
OSM's interpretation of the 2006 Amendments, those programs remain
stagnant for the next two fiscal years at $1.5 million, a level of
funding that greatly inhibits the ability of these states to accomplish
much in the way of substantive AML work. Many of these states have
pending high priority AML projects ``on the shelf'' that cost several
million dollars. The challenge for these states is putting together
enough moneys to address these larger projects given minimum funding.
It is both unfair and inappropriate for these states to have to wait
another two years to receive any funding increases when they are the
states most in need of AML moneys. We have therefore urged Congress to
fund these states at the statutorily authorized level of $3 million in
FY 2008 so as to level the playing field and allow these states to get
on with the critical AML projects that are awaiting funding.
We have also urged Congress to approve continued funding for
emergency programs in those states that have not assumed these
programs. Funding the OSM emergency program should be a top priority
for OSM's discretionary spending. This funding has allowed OSM to
address the unanticipated AML emergencies that inevitably occur each
year in states without state-administered emergency programs. Without
this funding, it will be up to the states to address the emergencies
that occur. In states that have federally-operated emergency programs,
the state AML programs are not structured or staffed to move quickly to
address these dangers and safeguard the coalfield citizens whose lives
and property are threatened by these unforeseen and often debilitating
events. Finally, we have urged Congress to approve continued funding
for the Clean Streams Initiative. OSM has chosen to eliminate funding
for this worthwhile program in FY 2008. We believe this is a mistake.
Significant environmental restoration of impacted streams and rivers
has been accomplished pursuant to this program, to say nothing of the
goodwill that the program has engendered among local communities and
watershed groups. For the small investment of money that is
appropriated for this program each year (approximately $ 3 million),
the return is huge.
Future challenges for the AML program include the perpetual
operation and maintenance costs associated with acid mine drainage
treatment; assuring that maximum flexibility is provided to the states
to determine their respective AML project priorities; and enhancing
opportunities for economic development (including recreation and
tourism) in depressed areas of the coalfields.
As mentioned earlier, one of OSM's primary missions under the
Surface Mining Act is evaluating the states' administration of their
programs, otherwise known as oversight. This process has undergone a
significant metamorphosis, the result of which has been a more credible
and useful program for informing Congress and others about the status
of state program administration. The first attempt at designing a
meaningful oversight program in the mid-1980's was merely an exercise
in data gathering or output measurement. We were concerned then with
numbers of inspections, numbers of permit reviews and numbers of
enforcement actions. OSM also tended to look behind state permitting
decisions to determine whether OSM would have handled them the same way
as the states. This type of ``second guessing'' generated significant
conflict and even resentment between the states and OSM. In addition,
the numbers that were collected into oversight reports told us little
or nothing about whether the objectives of SMCRA were being met (i.e.
what was happening on the ground? how effectively were state programs
actually protecting the environment? how well was the public being
protected and how effectively were citizens being served? how well were
we working together as state and federal governments in implementing
the purposes of SMCRA?).
Following an effort by OSM and the states in the late 1980's to
fashion a more effective state program evaluation process based on a
goal-oriented or results-oriented oversight policy and another review
of the process in the mid-1990's, a performance measurement approach
was adopted, based in large part on the requirements of the Government
Performance and Results Act (GPRA). The new outcome indicators now
focus on the following: the percentage of coal mining sites free of
off-site impacts; the percentage of mined acreage that is reclaimed
(i.e. that meets the bond release requirements for the various phases
of reclamation); and the number of federal, private and tribal land and
surface water acres reclaimed or mitigated from the effects of natural
resource degradation from past coal mining, including stream
restoration, water quality improvement, and correction of conditions
threatening public health or safety. These new measurements are
intended to provide Congress and others with a better picture of how
well SMCRA is working and how well the states are doing in protecting
the public and the environment pursuant to their federally approved
programs. Much of this can also be told in pictures of reclaimed mined
areas like those shown in our exhibits, many of which reflect winners
of IMCC's and OSM's national reclamation awards. Effective program
implementation by the states and compliance by the coal industry are
resulting in the reclamation and restoration of both active and
abandoned sites that meet the objectives of SMCRA and benefit both
people and the environment.
Over the past twenty years, state regulatory programs have improved
to the point that implementation is highly successful. Due to this
success, the overall programmatic emphasis under SMCRA has shifted from
structural and administrative issues to specific technical issues that
are encountered as reclamation technology and science are advanced.
These issues tend to manifest themselves as environmental challenges
unique to particular regions or states, many of which must be resolved
during the permitting process. They may also arise as a result of state
inspections at mining sites. In any event, due to constraints on
existing state resources, states may be unable to undertake the type of
technical analyses that attend these issues. This is where OSM serves a
valuable support mechanism for the states (as anticipated by section
705 of SMCRA) by providing technical assistance. In addition to
meaningful and properly focused assistance, the states also look to
OSM's Technical Innovation and Professional Services (TIPS) program.
This has been one of OSM's most valuable and effective initiatives and
serves as the cornerstone of the states' computer capability,
particularly now that many states are utilizing electronic permitting.
We trust that OSM and Congress will continue their support for TIPS and
for the hardware and software upgrades that are required to assure the
system's integrity and usefulness. TIPS training is also critical.
One of the key successes of SMCRA over the years has been its
training program. Through a combination of both state and federal
agency instructors, OSM's National Technical Training Program (NTTP)
assures that newly hired state and federal employees, especially
inspectors and permit writers, receive adequate and credible training
both on basic elements of program implementation and on cutting-edge
technical and policy subjects. The NTTP has also allowed more seasoned
employees to fine tune their skills and update their knowledge on
important topics. OSM's training program is especially important for
smaller states that do not otherwise have access to such resources. In
addition to NTTP classes, IMCC (working in cooperation with NTTP) has
developed and facilitated a series of benchmarking workshops for both
state and federal agency personnel that has allowed them to improve and
enhance their respective regulatory programs and skills in such areas
as blasting, subsidence, bonding, underground mine mapping, and
permitting related to hydrologic balance. OSM has also sponsored
several interactive forums on a variety of subjects of mutual interest
to the states and we urge the agency to continue this practice, again
with state input. All of these training components will become
increasingly more critical as OSM and the states face a retiring
workforce and the attendant succession planning that follows.
There have been other notable successes in SMCRA's implementation,
in both the regulatory and policy areas. The states have worked
cooperatively with OSM and others to address acid mine drainage issues
through the Acid Drainage Technology Initiative, which focuses on
prediction, prevention, avoidance, remediation and treatment. Again
working cooperatively with OSM, the states have made significant
strides in advancing reforestation efforts on reclaimed lands,
particularly through the Appalachian Regional Reforestation Initiative.
Through a partnership among the states, OSM and the Environmental
Protection Agency (EPA), we have also seen major advances in the
remining arena, where thousands of acres of abandoned mine lands have
been restored as part of active mining operations, thereby saving
valuable AML Trust Fund dollars and returning the land to productive
use. We have also been working with EPA and OSM to revisit the current
effluent limitation for manganese so as to reduce or prevent the
adverse effects and potential hazards arising from some of the
treatment technologies related to control of manganese.
In its 1990 monograph on ``Environmental Regulation of Coal Mining:
SMCRA's Second Decade'', the Environmental Policy Institute identified
and commented on several challenges facing the states and OSM, as
follows:
The issues facing regulators today are more difficult than
they were in 1977. Many of the easier and more blatant problems
have been addressed [such as the two acre exemption] . . . .
The regulatory issues today include the prevention of
hydrologic damage, the control of subsidence and subsidence
damage, the establishment of adequate reclamation bond amounts,
the use of permit-based enforcement, and the improvement of
federal oversight. Also of concern is the massive shortfall in
the federal fund meant to reclaim areas abandoned prior to 1977
without reclamation. [Page3]
Throughout SMCRA's third decade, many of these issues have been
addressed and resolved. Congress has addressed the shortfall of moneys
in the AML Trust Fund with the 2006 Amendments to SMCRA and OSM and the
states are well on their way to implementing those adjustments and
putting more money on the ground to restore AML sites. Federal
oversight (and the attendant state/federal relationship under SMCRA)
has advanced by significant degrees and is no longer the flashpoint
that it once was. Through advances in electronic permitting and the use
of tools available through OSM's TIPS program, state permitting actions
are timely, comprehensive and accurate, thereby insuring more effective
compliance with the law.
That being said, given the nature and scope of today's mining and
reclamation operations and attendant environmental impacts, we continue
to face challenges as regulatory authorities under SMCRA. A few
examples follow:
Bonding--one of the larger challenges concerning the bonding
provisions of SMCRA is with regard to post closure issues.
While SMCRA originally envisioned the bond as a guarantee of
performance during mining, it did not anticipate the challenges
associated with postmining concerns such as long-term treatment
associated with acid mine drainage or long-term impacts from
subsidence. For instance, OSM's current rules on bonding
require that the bond amount be adjusted for potential
subsidence damage repairs. However, nothing is said about how
the bond release procedure will apply in these situations. The
result is that surety companies are reluctant to write bonds
for reclamation because of the long term nature and unknown
extent of the liability. The states have been working with OSM
to address this matter through the use of other financial
assurance mechanisms, such as trust funds. There are also
issues associated with bond release in general. Given that the
procedures attending release are so cumbersome and expensive,
coal operators simply choose not to apply for them. This
further impacts the availability of bond capacity in the market
and results in unnecessary expenses for states related to
continued inspection and enforcement on these essentially
completed reclamation sites.
Prime farmland--the requirements related to proof of
productivity (five year minimum) prior to termination of
jurisdiction and before the land can be returned to the owner
are cumbersome. The mid-continent states are currently
undertaking research through a major Midwestern agronomy/soil
science university to determine proper testing techniques to
ensure soil capabilities are present, in the hope that an
alternative method for demonstrating productivity can be
attained, thus returning land much sooner back to the owner of
record.
AVS--over the past twenty years, the states have worked
diligently with OSM to develop the Applicant/Violator System
(AVS), which assists us in implementing section 510(c) of
SMCRA, particularly the issuance of permits. Early in the
development of AVS, the states focused on designing a system
that would allow them to identify and block violators and other
scofflaws without bogging down the database with useless or
unproductive information. While we have made progress in this
regard, we continue to examine ways to improve and enhance
overall system effectiveness. For example, a critical aspect of
AVS is the rules that define ownership and control; permit and
application information requirements; and the transfer,
assignment or sale of permit rights. These rules have been
under a constant state of flux since their original
promulgation in 1988 and a recent OSM rulemaking attempts to
bring closure to several key issues that remain unresolved or
problematic.
Underground mine mapping--another continuing challenge that
we face concerns accurate and readily available underground
mine maps, which are essential for protecting the public, the
environment and infrastructure from the threats posed by
unknown underground mines. Events such as the Quecreek incident
in Pennsylvania and the Martin County Coal Company impoundment
failure in Kentucky were high profile demonstrations of the
kinds of incidents that can occur when mine maps are inaccurate
or unavailable. IMCC has sponsored a series of national and
regional benchmarking workshops that have focused on the
collection, handling, scanning, georeferencing and validation
of mine maps. While the expertise and technology is available
to tackle this issue and accomplish these tasks, our biggest
challenge is the lack of funding for personnel, hardware,
software upgrades and database development to move the
initiative forward.
In each of these instances, and in others such as subsidence
control, blasting and hydrologic protection, the states are actively
engaged in seeking technical solutions, as well as regulatory program
enhancements, that will fully and adequately address concerns
associated with these issues. As an example, over the past several
years, IMCC has sponsored benchmarking workshops on subsidence impacts,
blasting, financial assurance, electronic permitting and hydrologic
balance, all of which have provided state and federal regulators with
an opportunity to examine these issues in detail with an eye toward
regulatory program improvements. IMCC is currently preparing for its
next workshop on surface and ground water database development and use
as part of the permitting process. The overall goal is to continually
assess and enhance our performance as regulatory authorities in an
effort to achieve ever higher levels of program effectiveness.
Much progress has been made over the past 30 years to accomplish
the purposes and objectives of SMCRA. From our perspective, the basic
organization of OSM is working well. At this point of SMCRA's
implementation, neither the states nor OSM are dealing with the same
types of issues or problems that attended the early years of program
formation and administration. We have moved away from questions of
adequate state program components and state implementation techniques
to more substantive issues associated with technical, on-the-ground
problems or with thorny legal and policy questions associated with
interpretation of our programs. We therefore believe that it is most
relevant for OSM to focus its energies and resources on assisting and
supporting the states through adequate funding for state grants, sound
technical and legal assistance, and opportunities for the states to
actively participate in the agency's excellent training program. The
overall result will be less federal intrusion in the states'
administration of their programs, a concomitant enhancement of the
federal/state partnership, and better on-the-ground performance by the
regulated industry.
We appreciate the opportunity to present this testimony and welcome
the opportunity to work with your Committee, Mr. Chairman, to insure
the effective implementation of SMCRA in the 21st century.
The Chairman. Thank you very much.
Mr. Trujillo, go right ahead, please.
STATEMENT OF ARVIN TRUJILLO, EXECUTIVE DIRECTOR, NAVAJO NATION,
WINDOW ROCK, AZ
Mr. Trujillo. Thank you, Mr. Chairman, members of the
committee. Again, I appreciate the opportunity to come before
you to address issues concerning the Navajo Nation.
You have my statement for the record. I'd like to just
expand quickly on a couple of points for your consideration.
Looking at the AML program, both the AML program and our
primacy efforts are under my Division, which is the Division of
Natural Resources.
The AML program has been very successful--we are a
certified program, meaning we have completed the reclamation
work on the abandoned mine land sites within the reservation,
on trust areas.
We're also now working with OSM and also with the National
Association of AML programs to develop proposed rules in terms
of the allocations of funding, both the trust fund, as well as
the fees--as noted by Secretary Prukop and Mr. Conrad.
Again, as Madame Secretary noted, we too are looking at
funding flexibility within the appropriations. Again, being a
certified tribal program, that has allowed us to earmark
funding for public facility programs within the reservation,
meaning that we've been able to bring additional dollars to
help set up needed infrastructure within the reservation as a
whole.
As far as the AML program's concerned, we continue to ask
that OSM work to finalize the proposed rules, look at funding
flexibility, as well as continue with their efforts to allocate
funding for this coming year from the fees collected.
Our main focus with the Navajo Nation has been our work on
primacy--looking at how we can take over the overall operations
of overseeing mining and reclamation activities within the
Navajo Nation. Three areas of concern to us. One, it is our
understanding that tribes are to follow a process that would
mimic the review process for States. In discussions up to this
point in time, there's been thoughts coming out from OSM
indicating that they would like to develop a proposed rule for
this--we don't think that's necessary.
Second of all, we are requesting that the OSM continue to
help us in developing the application for primacy--both looking
at the expertise that they have as well as helping us defray
costs for that.
Again, from the Nation's side, we're looking at the
development of a Surface Mining and Reclamation code which will
have to be approved by the Navajo Nation Council. We're also
setting up tribal regulations comparable to 30 CFR Subchapter
D, and we're also completing a regulatory program, or proposing
a regulatory program, looking at staffing, budgeting and
detailed descriptions on how regulatory processes will be
developed.
A preliminary draft of the Navajo Nation's Mining and
Reclamation Code has been completed, and now is before OSM for
their review and comment. We ask that this continue, and be
done in a timely fashion. We're also developing regulations
that will be going before the Navajo Nation Council for final
approval.
The last piece is we want to draw OSM into the tribal
program development process. OSM has been the regulatory
authority within Indian lands for the past 30 years. We're
looking to utilize their experience, and we're requesting
information and assistance from them in developing our own
specific program. Again, we're asking that this be done in a
timely manner, and that if possible, timelines be presented to
us.
As noted, there are a number of areas that we're focused
on, on trying to achieve. Right now, our surface mining program
has four individuals and they're doing all of the work, plus
everything else in the Navajo Nation, including inspections,
mining training, et cetera. So, again, we're asking for
assistance through the funding grant, and once the program is
established, continued funding through that. Because, unlike
State programs, the amendments within SMCRA provide 100 percent
funding for tribal programs.
So again, we've been working on this since 1982. We feel we
have the capabilities of meeting these responsibilities. Since
the enactment of SMCRA, over 675 million tons of coal have been
mined from the Navajo Nation. We have 3 active mining
operations, one is ready to close, one has closed, due to the
closure at the Mojave Generating Station.
But again, I thank you for the opportunity to come before
you, and to express our points for the Navajo Nation, Mr.
Chairman.
[The prepared statement of Mr. Trujillo follows:]
Prepared Statement of Arvin Trujillo, Executive Director, Navajo
Nation, Window Rock, AZ
Chairman Bingaman, Senator Domenici, and members of the Senate
Energy and Natural Resources Committee (Committee), good morning. I
appreciate the opportunity to come before the Committee to provide the
Navajo Nation's (Nation) insight on the implementation of the
amendments to the Surface Mining Control and Reclamation Act of 1977
(SMCRA). My name is Arvin Trujillo, and I am the Executive Director of
the Navajo Nation's Division of Natural Resources. I have been in this
position since 1999, first in the cabinet of former President Kelsey
Begaye and now under the leadership of President Joe Shirley, Jr.
This morning I would like to provide information on the Nation's
progress in implementing the SMCRA amendments approved in December
2006, as it pertains to the Abandoned Mined Lands (AML) program and the
Nation's efforts to obtain primacy over mining and reclamation
activities on the Navajo reservation. I would also like to take this
opportunity to thank the leadership of the Committee in their support
of the amendments made to SMCRA under the Health Care and Tax Relief
Act of 2006.
Progress by the Office of Surface Mining Reclamation and
Enforcement (OSM) with the amendments to the AML program is steady, but
the Nation is respectfully requesting that the timelines stay on
schedule with the Proposed Rule. OSM is still in the process of
drafting the final Proposed Rule and the Nation is anticipating these
regulations to be completed by the summer of 2008. The Nation has been
working closely with the National Association of AML Programs (NAAMLP)
in providing feedback to OSM on the development of the Proposed Rule
and the Nation is in support of the western states' position to allow
for funding flexibility for high priority non-coal sites. Navajo AML
has met its obligation of reclaiming abandoned coal sites within the
reservation and we are certified. This provides the Nation the
opportunity to contribute to needed infrastructure development through
its Public Facilities Program, which is a program allowed under current
legislation to certified state and tribal programs. Finally, OSM is in
the process of collecting fees from mining companies for the coming
year and it is anticipated 1 that funds will be distributed to both
state and tribal programs by mid December of this year. The Nation is
requesting that OSM stay with this schedule because the program's
planning for fiscal year 2008 is dependent on appropriations received
from this distribution in December.
The focus of the Navajo Nation's Division of Natural Resources
(Division) and the Minerals Department, which is one of 11 departments
under the Division, is for the Minerals Department to obtain primacy
under SMCRA to oversee the mining and reclamation activities within the
Nation. There are three issues that concern the Nation in developing an
application for review and in how the application will be reviewed to
determine the qualifications of the Nation to take on responsibilities
under SMCRA.
First, it is the understanding of the Nation that tribes will
develop an application that will be reviewed in the same manner that
state applications are reviewed when they apply for primacy under
SMCRA. OSM has stated that they will be developing proposed rules under
which tribes would submit an application for primacy. The Nation does
not think this is necessary. This position has been debated with OSM
since the Nation first began its efforts to develop an application in
January 2007, and the position by OSM adds confusion to the process.
Furthermore, there have been interpretations by OSM staff that tribes
can only apply for partial primacy, but it is the understanding of the
Nation that dependent on the application submitted by an Indian tribe,
a tribe can apply for partial or full primacy of activities including
permitting, inspection, enforcement, and bonding. It is, therefore, the
position of the Nation that proposed rules do not need to be developed
and that a tribe has the opportunity to apply for full or partial
primacy.
Secondly, the Nation is requesting assistance from OSM to develop a
complete application and to provide funding to help defray cost in the
development of the application. The Minerals Department has hired a
consultant to assist in the development of a formal submission, which
would include: 1) the surface mining and reclamation code as adapted by
the Navajo Nation Council; 2) a set of tribal regulations comparable to
30 CFR Subchapter D; and 3) a complete discussion of the proposed
Tribal Regulatory program including staffing, budget, and detailed
descriptions of how the regulatory process will work. OSM has formed a
team to work with the Nation in its efforts to develop a formal
application for primacy. A preliminary draft Navajo Nation Mining and
Reclamation Code (NNMRC) has been prepared and has been sent to OSM for
their initial review. We are requesting OSM to provide the Nation with
a timeline for 2 completion of their review. Once the NNMRC is
completed, this will require the approval of the Navajo Nation Council.
While the NNMRC is being finalized, regulations will need to be
developed and from our discussions with OSM, our approach will be to
develop regulations which will rely on existing regulations within 30
CFR by cross referencing and establishing new regulations where needed
for clarification. Finally, the Nation plans to draw OSM into the
Tribal Program development process. OSM has been the Regulatory
Authority for coal mining operations on Indian Lands for 30 years. We
plan on utilizing their experience and will be requesting information
and assistance from them. Under one of the purposes of SMCRA (Sec. 201
(c) (9), OSM is to ``assist states (tribes) in the development of State
(Tribal) programs.'' This effort will take personnel to accomplish and
the Nation will be requesting an increase in its budget to add to the
four staff members currently in place with the Surface Mining program.
It is requested that OSM complete all reviews of documentation in a
timely manner and it would be preferred that timelines be provided as
to when these reviews will be completed. The Nation is also requesting
OSM to provide assistance and funding to complete the formal submission
for primacy consideration.
Tertiary, once primacy is awarded to the Nation, the program will
need to be funded. Unlike the funding commitments to State programs,
the amendments to SMCRA provides for 100% funding for Tribal programs.
The Nation is not advocating a ``blank check'' for the Nation, but fund
those programs to the need requested. This commitment could also be in
place for current programs. In all cases, the Nation can and will
provide the necessary justification to OSM for the planned budget
amounts submitted to OSM. Senators, this is where the Nation could also
ask for your support in providing adequate funding to OSM to see that
sufficient allocations are provided to both State and Tribal programs.
The Navajo Nation has been working towards this goal since 1982.
The Nation is of the opinion that it has the capability of overseeing
mining operations within its borders. There seems to be reluctance on
OSM's part to move this effort forward in a timely manner. The Nation
is aware that this effort will affect the operations of the local field
office, but I would like to have this process completed by the end of
2008 at the latest. I would also like to emphasize that the proposed
rule for the allocation of funding under AML be completed by the summer
of 2008. Again, I would like to express my gratitude to the Committee's
leadership in supporting the Nation's effort to obtain primacy under
SMCRA.
The Chairman. Thank you very much. Thank you all for your
testimony, and let me just start and we'll do 5-minute round of
questions here.
Mr. Wahlquist, let me start with you. On this whole issue
of mountaintop mining and mountaintop removal as it's referred
to--I guess I'm concerned as I read SMCRA, I tried to review
the statute, and it seems to me to have some pretty specific
requirements with regard to water protection, with regard to
reclaiming of mine land to approximate original contour.
I don't, frankly, understand exactly how that comports
with, or is consistent with this practice of mountaintop
mining, which your Agency seems to be approving on a fairly
regular basis. Could you explain to me how you believe your
actions were consistent with the statute?
Mr. Wahlquist. As we would look at the statute, there's
basically two kinds of operations that would be occurring in
the steep slopes and the ridge top mountains of Central
Appalachia. Those that would receive a variance from
approximate original contour, which are the mountaintop removal
operations--in that context, then, they have an express
variance, and do not need to restore to approximate original
contour. Instead, they are able to leave it flat or gently
sloping land, and as long as they use an approved post-mining
land use.
The other would be no different than any other kind of
surface mine, whether it's New Mexico or Southern West
Virginia, and that is that is nary a mine that, as they mine
through the area, that they must restore approximate original
contour, and restore the land use to an equal or better land
use as what was occurring before.
So, those are the two basic types, they can mine through a
mountaintop or ridge top, the same as they would any other
area, and they must restore to AOC, unless they get an express
variance from approximate original contour, and then they must
have an alternative land use.
The Chairman. Can you give me a better understanding of
what the criteria is you look at to determine whether to issue
a variance? I think I saw somewhere in the background materials
here, that you've issued over 6,000 of these variances?
Mr. Wahlquist. The primary regulators here, again, are the
States, and most of this occurs in Virginia, West Virginia and
Kentucky. The criteria, then, are those that are contained in
the regulations for seeking a variance, and the primary role
for a variance from approximate original contour is whether or
not they have an approved post-mining land use.
The Chairman. Yes, I had thought that there had to be some
showing that there would be no impairment of a water, stream or
something to the effect, in order to get a variance--am I
confused about that?
Mr. Wahlquist. The regulations, if we have implemented
there, clearly contemplate and recognize that they may, that in
mountaintop mining, whether it's done with a AOC variance, or
whether it is restoring approximate original contour, will
create excess soil. So, the disposal of the excess soil is
somewhere out--that is soil that is placed outside of the mine
area. So, in general, in Central Appalachia, then, that is
going to be placed in the head of a hollow, a nearby head of
hollow. The Surface Mining Act has express provisions for
disposal spoil that includes a requirement for under drains in
those areas where there is stream channels.
The Chairman. So you can avoid the problem of covering over
a stream by some kind of under flow, you said?
Mr. Wahlquist. Yes, and in fact it was the 4th Circuit in a
case about 3 or 4 years ago, acknowledged that the Surface
Mining Act clearly contemplates the disposal of excess spoil in
waters of the United States, including intermittent and
perennial streams.
The Chairman. OK. You've got some new regulations out, as I
understand it there's currently a stream buffer zone rule that
calls for 100-foot buffer around perennial and intermittent
streams, unless regulatory authority specifically authorizes
surface mining. That's being changed in the new rule, as I
understand it?
Mr. Wahlquist. We have proposed a rule that would revise
the stream buffer zone, we published that proposal on August
25th. The comment period is still open on that rule, it will
close on November the 23rd. That rule includes two parts--one
would be a revision or clarification of the stream buffer zone
rule, and also a tightening of the requirements related to the
disposal of excess spoil, that would particularly include the
consideration of environmental effects. To assure that the
amount of spoil was no larger than that needed, and that the
fills that were designed no larger than required, it would also
clarify what kinds of operations are subject to the stream
buffer zone.
I would not that the Surface Mining Act itself does not use
the term ``stream buffer zone,'' that's a regulatory creation,
and the intent of this rule, then, is to clarify the
application of that rule.
The Chairman. My time is up.
Senator Domenici.
Senator Domenici. Thank you very much, Senator Bingaman.
I guess I want to get to the bottom of the issue, raised
here by Secretary Prukop, with reference to whether or not New
Mexico can use their money for uranium mining cleanup, or
activities that relate appropriately to the law. She said, if I
heard it right, that there had been a change recently from you
all saying that they no longer could do that, and I wonder why
that is?
Mr. Wahlquist. Section 409, which deals with non-coal
mining expressly authorizes the use of two types of funding.
That is, State share funding, and historic coal funding for use
on non-coal. There's been no change in that, and there's
certainly nothing that we would look at doing anything
differently there.
The 2006 amendments also created a new source of funding,
that is, the payback of the unappropriated State share balance
over the next 7 years that will be coming from the Treasury.
The issue that is now before us, and that we are still dealing
with the Solicitor's Office on, is whether or not that money,
as well, may be used for non-coal.
No decision has been made on that, we do anticipate a
decision will be made in time for the 2008 distribution in mid-
December, and we'll be closing the books on our collections at
the end of November, anticipate making that distribution in
mid-December, and we hope to be able to announce those
decisions as to what we will--in coordination with the
Solicitor's Office--during the week of December 3.
Senator Domenici. We hope so, and we hope that uranium is
included then, when you make that distribution.
Secretary Prukop, is there anything else that needs
clarifying from your standpoint, with reference to the
relationship between your proposed efforts that you're
concerned about, and what they are doing, or not doing?
Ms. Prukop. Mr. Chairman, Senator Domenici, members of the
committee, no, Senator Domenici, I do believe so, I guess we're
just anxious to see what that decision is in December, because
we do not feel there is any fundamental difference in the
language that--actually there's no change in the language in
the Act that caused a change in the decisionmaking within OSM,
on this issue.
Senator Domenici. Thank you. Thank you very much.
Could I ask you, Mr. Trujillo, if the Federal Government
under the Acts we've been referring to here today, continues
with the position that New Mexico can use some of its money for
uranium mining cleanup? I assume that that would be consistent
with what the Navajo Nation would like to happen, is that
correct?
Mr. Trujillo. That's correct, Senator. We're also looking
at how we can act, effectively utilize funding to address non-
coal sources.
Now, one thing that we have to take a look at and work
carefully with New Mexico on, is the allotted land issue. We
have addressed areas, within the trust area, but we don't have
jurisdiction within the allotted lands area. So, that's one
area that we'll have to address, as we go forward.
Senator Domenici. But, I understand that Navajo Nation
leaders, and you as environmental leader, would like to see
some movement toward cleaning up the uranium mining areas,
before you approve of uranium mining in the area, is that
correct?
Mr. Trujillo. That's correct, Senator. Again, we're looking
at how we can effectively begin in cleaning up, and through the
current efforts of Congressman Waxman, as well as Congressman
Udall, we're trying to determine what the Federal agencies will
be doing, and then partnering effectively with them, as well as
with the State of New Mexico, Senator.
Senator Domenici. Yes, Secretary Prukop, I assume your
office is well aware of the activity that is going on in New
Mexico, particularly in the same areas that it was going on
prior to this, when we were the No. 1 uranium producer in the
United States. You are involved with those various permittees,
and those who are expressing interest in pursuing uranium
mining, are you not?
Ms. Prukop. Yes, sir. Mr. Chairman, Senator Domenici,
members of the committee--it is our Mining and Minerals
Division in my Department that permits the exploration permits
for all of the new uranium interests in the State. So, they
have to get past MMD first, as they seek to either re-open old
mines, or move forward with new potential mining interests,
that's correct.
Senator Domenici. All right, just one last one for Mr.
Wahlquist. Has there been any significant difference in the way
the Administration treated the steam buffer zone rule compared
to previous Administrations?
Mr. Wahlquist. In a sense, I guess the answer is both yes
and no. The application of the stream buffer zone rule has not
really changed since it was last passed in 1983, and in the way
that the States have implemented the stream buffer zone rule
has really remained the same since 1983. We certainly had a
litigation over the stream buffer zone rule that came up in
1998. During that time, and in response to that litigation, the
Administration entered into a Memorandum of Understanding in
1999 between OSM, the Corps of Engineers, the Environmental
Protection Agency and the State of West Virginia on how to
address the stream buffer zone rule findings.
Then we ended up with a court case in the Southern District
of West Virginia that concluded that the stream buffer zone was
more stringent than the provisions of that MOU, struck down
that MOU, that was at that point, only about 3 or 4 months old,
and basically concluded that the stream buffer zone rule
prohibited the placement of excess spoil in intermittent or
perennial streams.
That court decision was later overturned on procedural
grounds, the merits of it were never really addressed, and in
the meantime, then, the States have continued to apply the
stream buffer zone rule the same way that they were previously.
Senator Domenici. Thanks very much.
The Chairman. Senator Tester.
Senator Tester. Thank you, Mr. Chairman, and I want to
thank all of the committee members for their testimony today.
Most of my questions will be directed to Brent Wahlquist, so, I
want to thank you, Brent for coming, meeting with me a couple
of months ago, and communicating with my staff regarding the
prior balance funds. I was sorry to miss your testimony, I got
hung up.
But, in your written testimony, you did not specifically
mention--and I just wanted to--hope you would clarify, the
Administration's position on a timetable for returning to the
States the balance of the unappropriated funds in the prior
balance fund.
Mr. Wahlquist. We would anticipate being able--we're to be
providing those funds on an annual basis, we anticipate being
able to provide those funds for 2008 in mid-December. Because
of the way the fees are collected, and the fees from the prior
year are based upon the production for that prior year, we do
not collect all of that, the fees on the production from the
previous quarter, until, into October and November, so we'll be
closing the books at the end of November, and hope to be able
to make those distributions in mid-December.
Senator Tester. OK, and has there been a decision made on
the form of these payments?
Mr. Wahlquist. There has not. We're still in discussions
with the Solicitor's Office, and we anticipate being able to
announce a decision on that the week of December the third.
Senator Tester. OK, and you came out with--or your Agency
came out with--a proposed rule to have these funds be granted
out, in other words, you'd apply for them, and they'd be given
out as grants if----
Mr. Wahlquist. Actually, we have not yet proposed a rule
there, our intent was that we would develop a proposed rule
that would address these issues this fall. However, time got
away from us before we reached resolution, and so we will be
doing that without a formal proposed rule, we'll be doing that
in the context of an informal decision document, once we have
the final input from the Solicitor's Office.
Senator Tester. In regards to the prior balance funds, are
those moneys in the bank, currently? I mean, are they on hand,
do you have them in hand now? They've already been paid?
Mr. Wahlquist. You mean, for the prior year?
Senator Tester. For the prior balance funds, yes.
Mr. Wahlquist. The unappropriated balance, that money
will--even under the statute, that money will remain----
Senator Tester. But you have the money in-hand, is what I'm
asking. I mean, this isn't money we have to go borrow, you've
the money?
Mr. Wahlquist. We have the unappropriate balance, however,
the money we'll be giving back to the States will not be that
money, the money will come from the Treasury.
Senator Tester. Right, that's correct, but the fact is,
that the money has been paid into your Agency for this purpose,
and the money hasn't been spent on something else?
Mr. Wahlquist. We deposit that money in the Treasury, we
manage it there----
Senator Tester. OK.
Mr. Wahlquist [continuing]. That money is interest-bearing,
we manage the investment of that money----
Senator Tester. Right, gotcha.
Mr. Wahlquist [continuing]. It is there earning interest.
Senator Tester. Good deal, that's what we like to hear.
Whose money is it?
Mr. Wahlquist. Whose money is it?
Senator Tester. Mm hm.
Mr. Wahlquist. It's money in the Treasury of the United
States----
Senator Tester. Yes, I know, is it--well, to cut to the
chase--is it the Federal Government's money or the States'
money?
Mr. Wahlquist. The money that is there right now is
allocated into three different accounts. A portion of it is
State shared money, State and Tribal shared money, some of it
is RAMP money, some of it is historic coal money, and some of
it is the Secretary's money.
Senator Tester. OK, as far as the prior balance funds go--
that is, regardless of what account it's in--whose money is it?
Mr. Wahlquist. That money is assumed to be the State and
Tribal share, and so that money will be re-colored as historic
coal money, as you receive your money----
Senator Tester. That's what I need to know.
Mr. Wahlquist [continuing]. Back from the Treasury.
Senator Tester. Thank you very much. I think that if I had
some money, I'd want to keep it in my bank, too.
The real question is, can you tell me how many mines are
going to be reclaimed as long as that money stays in your bank
account, and isn't distributed to the State?
Mr. Wahlquist. If no money comes out, than no reclamation
is going to be done.
Senator Tester. That's correct. OK, so the question is, is
we sent a letter out awhile back, and I know this is a concern
of Senator Barrasso's, because it came up during your
confirmation. So, it's not just Montana. I think Senator
Domenici alluded to it, too, in some of his questions.
Mr. Wahlquist. Yes.
Senator Tester. The question is, is that if the money's
there, and the money's really does belong to the States, and
we've got mined to be reclaimed, and I believe we're in
Montana, I think 600 is a low number--we've got a bunch, and
we've done a lot of work. Why not get this money out, get these
environmental problems fixed with the reclamation? Why are we
hanging onto the money? It doesn't seem right to me.
I come from the State legislature, and the counties would
come up and say, ``You know what? You've got our money, we need
it back,'' and we did our best to get it back to them. I'm at
the Federal level now, and the States are saying the same
thing, and if these aren't good projects to get done, then
maybe we ought to do away with the program. But, if there are
projects that need to be done--and I believe in the 109th
Congress they passed a law that said that money needs to be
distributed out--if I'm incorrect, you can correct me on that--
so, why aren't we doing it?
Mr. Wahlquist. Senator, I want to assure you that we have
no interest in hanging onto the money. It is our interest in
implementing the law as it was passed. We have no programmatic
reason to not hand out the money so that the money can be used
for the purposes for which it was intended.
Senator Tester. So, why aren't we handing out the money?
Mr. Wahlquist. Why aren't we handing out the money?
Senator Tester. Why isn't it being distributed to where
it's supposed to go for mine reclamation?
Mr. Wahlquist. To begin with, we're to do that on an annual
basis, and we're to be doing that based upon the past year's
appropriation. That's why we'll be doing it in December.
Senator Tester. OK. The money's in the bank, there's a
potential that it won't occur in equal installments, there is
that potential.
Mr. Wahlquist. That it won't occur when?
Senator Tester. In equal installments over the next 7
years.
Mr. Wahlquist. No, it will be coming in 7 equal
installments.
Senator Tester. Seven equal installments.
Mr. Wahlquist. But at this point, we need to finalize the
numbers as to exactly what is the unappropriated balance, and
we won't know that number for sure, until early December, as to
exactly what is the unappropriated balance, as of the close of
the production as of September 30, 2007, all of the coal that
was produced prior to September 30, 2007, we need to collect
the rest of the AML fee on that production, then we will be
able to determine exactly what was the unappropriated State
share balance, and then we'll hand that out in 7 equal
payments.
Senator Tester. It sounds fairly complicated, but it's not.
It's not. In the overall scheme of what goes on around here,
what we're dealing with here is not complicated.
Mr. Wahlquist. I would agree with that.
Senator Tester. My recommendation to you would be the same
as it was in the letter, and in fact, I know the State of
Montana has told me, they're OK with 7 equal installments, as
long as there isn't a lot of red tape to try to get that
dollar, so they don't have to hire a bunch of people and build
their bureaucracy to get the money out of this bureaucracy.
So, just my recommendation is, is just from a good
government standpoint, if we're going to clean up these mines,
that money has to get to the local level, the State level--in
this particular case--to get that work done. I would hope that
you would fight like hell in your position to make sure that
that happens soon. Very soon.
The Chairman. Senator Barrasso.
Senator Barrasso. Thank you very much, Mr. Chairman, and
thank all of the members of the panel for your testimony today
as witnesses.
Mr. Chairman, this Act is particularly important to
Wyoming, as our State is responsible for well over a third of
the Nation's coal production. These are good jobs, good
insurance, good retirement programs, and the production of coal
provides an extraordinary amount of income for the State of
Wyoming, for our cities, for our counties, and for the State.
This committee, and in particular, Mr. Wahlquist is well
aware of my continued concerns over the upcoming distribution
of unappropriated AML funds, as required under the Tax Relief
and Health Care Act of 2006.
I continue to be troubled--as does Senator Tester--by
reports that funds due to our States could be distributed in
the form of grants, or through some line of credit scheme,
rather than direct payments as contemplated by the Federal law.
I think Senator Tester had it right with his question when
he said, whose money is it? Clearly, it is the States money.
I am additionally disturbed by the lengthy time it has
taken to obtain a resolution of this matter. We heard that it
would be the end of October, now today, what I think I heard is
someone say, ``Time got away from us.''
Every day that goes by with these issues remaining
unresolved heightens unnecessary bureaucratic tension. There is
fallout from these delays that could and should have been
avoided. When I was in the State legislation, we set up a fund
so that the money could be--very easily, without strings,
without red tape--put in that fund. The fund is still waiting
for the money to come from the Federal Government, and it's
time for the interest to be earned by the States, the money
belongs to the States, it is their money. In Wyoming's case, it
is our money, and the people of Wyoming ask every time I go
home, Mr. Chairman, every weekend, and I was home again this
weekend, ``What's going on with the AML money? When will we
know? We want to make sure that we get our money.'' The State
is concerned, the legislature is concerned, the Governor is
concerned, I am concerned, Senator Enzi and Representative
Cuban are concerned.
I guess the question is, when the law was passed, you
weren't in that position and I was not in this position--what
could this Senate have done differently to make it more clearly
evident to folks that the money belongs to the States? Is there
something we didn't do right in passing that legislation?
Mr. Wahlquist. Certainly the legislation is a complicated
piece of legislation, and in that sense, then, it is taken
considerable time in terms of working with the Solicitor's
Office, and with the Administration, in terms of concluding,
``OK, what does this law really mean?''
It is certainly our intent, though, to implement this law
consistent with what we have been given. We have no inclination
whatsoever to deviate from the law that you passed last
December, or that was passed last December.
Senator Barrasso. Mr. Chairman, I would just add that, it
didn't seem to me when I read that that it was going to be
grants or a line of credit. Can we get some reassurance here,
on both sides of the aisle, that what we're going to do is
actually get direct payments to the States, come the time that
the money is available in the middle of December.
Mr. Wahlquist. I can not give you that assurance today,
that is an issue that we're still addressing with the
Solicitor's Office and the Administration.
Senator Barrasso. I can not tell you strongly enough that
it is the opinion of the members of this panel that the law is
clear, the money belongs to the States, and I for one, as the
Senator from Wyoming, I'm going to continue to fight to make it
clearly understood by everyone in the Administration that the
money belongs to the States.
Mr. Wahlquist. I understand.
Senator Barrasso. Thank you, Mr. Chairman.
The Chairman. Thank you very much.
Let me just ask one additional question, Mr. Wahlquist,
just to try to understand better. This relates, again, to this
mountaintop removal issue. The current rule that you folks
operate under states there's to be a ``100-foot buffer around
any perennial or intermittent stream, unless the regulatory
authority specifically authorizes surface mining activities
upon a finding that the activity will not cause or contribute
to a violation of applicable water quality standards, and will
not adversely affect the water quantity or quality, or other
environmental resources of the stream.'' Don't valley fills
that cover perennial and intermittent streams, by definition,
adversely affect the water quality and quantity, and other
environmental resources of the stream?
Mr. Wahlquist. Certainly, Senator, one of the issues that
we've looked at in the context of the stream buffer zone is the
extent to which that applies to the stream as a whole, or
whether or not it applies to all segments of the stream.
When we entered into a Memorandum of Understanding in 1999,
with EPA and the Corps of Engineers, it was with the
understanding that, basically, what that MOU called for was
that, meeting the 404(b)(1) guidelines of the Corps of
Engineers and EPA, were adequate to meet the standards of the
findings required in that regulation that you just cited.
Certainly that has been consistent with the basic position that
has been applied since that rule was passed, is that the rule
did not preclude the disposal of excess spoil in streams.
A concern that we had with the District Court decision was
that, if we were to read that rule to actually preclude the
disposal of excess spoil in streams, in all cases, that that
would be inconsistent with our statutory authority, and we
cannot have a rule that inconsistent with our underlying
statute.
The Chairman. The underlying statutory authority says what,
now?
Mr. Wahlquist. It says, it clearly contemplates the
disposal of excess spoil in waters of the United States and in
intermittent and perennial streams.
The Chairman. So, you think that your underlying authority
overrides the rule that you've issued?
Mr. Wahlquist. If we've issued a rule that's inconsistent
with our authority, that's basically when--in 1999, in December
1999, as we were considering what to do with the District
Court's decision--why the Solicitor of the Department of
Interior recommended an appeal, as a concern that the District
Court's finding was inconsistent with our statutory authority.
The Chairman. All right.
Senator Domenici, go right ahead.
Senator Domenici. Let me, Mr. Wahlquist, I think I know a
little bit about budgeting and direct spending, and the
accounting process which may put you in a bind.
You see, if that money is in a trust fund, it doesn't
matter who it belongs to, the problem is when you spend it, you
can't understand this, but when you spend it, it costs money to
the Treasury. So, if a trust fund is sitting there, whatever
amount it is, it is taken advantage of in the budget, the
budget includes it, so that it is, in a sense, spent. You come
back to go to the trust fund, and you want your money out, and
you say, ``Well, you're spending it, so you've got to have
something to pay for it.'' That makes it, that means that
you've got to pay for it twice.
It's very important that you have somebody on this that
understands the rules of the budget, so that they don't stick
you at the end of the year, with a budgetary approach that says
it isn't available for distribution, because it's in the
budget, it's already in the big budget, accounted for and used.
That's probably part of the problem you're going through--
I'm just guessing, and I could be wrong, but I have run into it
in a bigger trust fund than this, and the biggest one we have
around is the one, Senator Bingaman--Mr. Chairman--that was
collected from all of the users of the utility companies with
reference to nuclear power, it's now up around--does anybody
here remember? I'm going to say $13 to $20 billion sits there.
We have a problem every year of paying for things like
Yucca Mountain. But we can't use that money. Because, if we use
that money, we take it out--if you take it out, you have to
replenish it in the same act, or else you've affected the
budget by the amount you've taken out.
So, this may be, the big words involved are ``directed
spending'' or an ``entitlement,'' in which event, what I've
described does not happen. So, let's hope that yours is
considered in the past to be a directed spending, and then they
won't have a chance to make you wait for it while it gets
accounted for.
Mr. Wahlquist. It's certainly our understanding that there
are two aspects of this law that call for mandatory spending
that is no longer subject to appropriation. One of those is
the, each year we're to pay out that, which comes in prior year
collections, and then also the payback of the unappropriated
State share balance, in 7 equal payments over the next 7 years.
Senator Domenici. There's language saying it doesn't need
appropriation, there's language to that effect?
Mr. Wahlquist. Yes.
Senator Domenici. Then it's directed spending, and probably
will get done.
Mr. Wahlquist. Yes.
Senator Domenici. Sorry to waste your time, Mr. Chairman.
The Chairman. All right, any additional questions of this
panel? Or, we'll go to panel two.
Senator Tester.
Senator Tester. Just one, and I apologize, Brent, but I
just got to ask--will you make a commitment to this committee
to get these funds, at least the first year distribution done
before this Administration leaves office 13 months from now?
Mr. Wahlquist. Done, sir. Yes. I promise.
Senator Tester. That's on the record.
The Chairman. That's on the official record of the
committee.
All right, thank you all very much for testifying, and why
don't we call forward the second panel.
The second panel is made up of Hal Quinn, who is with the
National Mining Association, Bill Banig who is with the United
Mine Workers of America, and Cindy Rank, who is with the West
Virginia Highlands Conservancy and the West Virginia Headwaters
Waterkeeper, and she's accompanied by Joan Mulhern with
Earthjustice.
OK, why don't we just proceed in the order that I
introduced you, Mr. Quinn first, Mr. Banig, then Ms. Rank, and
Ms. Mulhern if you have comments, as well.
Mr. Quinn, go right ahead.
STATEMENT OF HAL P. QUINN, JR., SENIOR VICE PRESIDENT & GENERAL
COUNSEL, NATIONAL MINING ASSOCIATION
Mr. Quinn. Thank you, Mr. Chairman, and members of the
committee. My name is Hal Quinn, I'm with the National Mining
Association, we appreciate the opportunity to appear here today
and share with you our views on the coal industry's experience
under SMCRA.
I think what you heard earlier this afternoon, in the first
panel, was agreement that SMCRA has been a bold and largely
successful effort to balance our Nation's energy needs with the
demands for environmental stewardship.
In 30 years since SMCRA's enactment, we have supplied over
29 billion tons of coal to fuel our Nation's growth and
prosperity, which is equivalent of about 115 billion barrels of
oil, or 5 times our proven domestic oil reserve.
At the same time, we've been able to restore over 2.2
million acres of land which supplied this coal to productive
uses.
These accomplishments are the first order in energy
production and environmental stewardship, are the product of
the collective efforts of the coal industry, State and Federal
Governments.
As Senator Domenici alluded to earlier, the history of the
implementation of this law has not been totally free of
contention, surely there were more than a few moments in the
past 30 years that would have dissuaded even the most ardent
supporters of the law from declaring success.
For instance, soon after the law's enactment, some
predicted that the law's implementation would be met with
regulatory delays and endless litigation. Certainly, the first
decade at least, or so, following President Carter's signature
would do little to disappoint them.
The first attempt to implement the entire range of
requirements of SMCRA resulted in 150 pages of regulatory text
which was supposed to be fleshing out an already overly
prescriptive 90-page statute. That 150 pages of regulatory text
was accompanied by another 400 pages of explanations of what
those regulations were supposed to mean.
This excessive detail and complexity delayed the
development and approval of State programs, which were to serve
as the foundation for SMCRA's implementation nationwide. True
to predictions, the program became a fertile ground for
litigation, so much so that at least one Federal court used the
following metaphor to describe these epic battles, ``As night
follows day, litigation follows rulemaking under this
statute.''
This regulatory uncertainty was further compounded by the
struggle between the States and the Federal Government in
coming to terms with their respective roles. While SMCRA
designated the States to be the day-to-day regulator, the coal
industry was often confronted with serving, or satisfying, two
regulatory masters, oftentimes not in complete agreement about
how the law should be viewed.
However, persistence and innovation--aided by the lessons
we've learned over the past 30 years--now allows us to report
some impressive results.
As I previously mentioned, we've be able to restore 2.2
million acres of mine lands to productive uses. Uses that
include farmlands with crop yields that exceed their pre-mining
capabilities, land with--capable of grazing more livestock per
acre than before mining, wildlife refugees providing new
habitat for a diverse variety of species, recreational areas to
support fishing, hunting and other leisure activities, and land
that now has terrain that is now better-suited for development.
We've also paid over $8 million in abandoned mine land
taxes that will go to reclaiming mine lands that were not
reclaimed before 1977. We've also been able to restore
thousands of acres of abandoned mine lands at no cost to the
AML fund through re-mining and reclamation of previously
scarred lands.
These accomplishments have all occurred while the coal
industry continues to supply the fuel that generates over 50
percent of the electricity used by Americans. This is the power
that supports 151 million Americans in all activities of their
daily life.
While great progress has been made in the past 30 years,
the program is not entirely free of controversy. The coal
industry today in Central Appalachia has been subject to a
serious legal tax over the past 10 years, that placed coal
mines, the fueling supply and the jobs and the economic
activity they sustain in great jeopardy.
The controversy surrounds what is often referred to as
``mountaintop mining'' and for all practical purposes, that
includes mining in West Virginia, Kentucky, Virginia and
Tennessee. Three prior lawsuits between 1998 and 2005 were
momentarily successful, but the claims were ultimately deemed
to be lacking merit on appeal.
Most recently, several organizations have obtained further
orders that will close four mines, and perhaps a fifth, in West
Virginia, mine that are projected to produce 50 million tons of
coal, and employ over 600 miners and other personnel with some
of the highest wages in the region. The collateral damage from
these latest lawsuits includes a permitting process that has
ground to a halt. Soon, mines will run out of reserves, and
their permits and will have to shut down if permits are not
issued to expand existing capacity.
These battles are over displacing policy interpretations
along the law that have been in place over 30 years, and often
involve disputes over whether these mines can support post-
mining land uses. Appended to my testimony are photographs that
do show examples of a number of the different, and wide variety
of uses that these mountaintop mining operations are put to.
Let me close, if I might, Mr. Chairman, with a couple of
observations about 30 years later on our energy picture today.
Thirty years ago, when President Carter signed SMCRA, our
Nation, at least energy independence was a national imperative.
Our Nation was vulnerably dependent upon foreign sources for
energy.
Today, we appear to be in the same precarious position.
Since SMCRA's enactment, our energy use has jumped 23 percent
but our energy production has increased by only 7 percent.
Meanwhile, energy imports have climbed by over 70 percent.
There's no question that our Nation will require more
energy in the future, just as it did 30 years ago. We will use
energy more efficiently, certainly, through both technological
advances and conservation, but we will still need more energy.
This is a demand that--the meeting of this demand with
reliable, affordable, secure sources will be a challenge, but
certainly a challenge that can be met with the correct policies
to draw upon all of our domestic energy sources, including coal
that now serves a critical role, and should serve a critical
role in our energy future, as well.
Thank you for the opportunity to appear and share our views
with you today.
[The prepared statement of Mr. Quinn follows:]
Prepared Statement of Hal P. Quinn, Jr., Senior Vice President &
General Counsel, National Mining Association
My name is Hal Quinn, senior vice president, legal and regulatory
affairs, and general counsel for the National Mining Association (NMA).
I am appearing on behalf of the NMA to testify about the coal mining
industry's experience under the Surface Mining Control and Reclamation
Act (SMCRA) of 1977.
NMA represents producers of over 80 percent of America's coal--a
reliable, affordable, domestic fuel that is the source of more than 50
percent of the electricity used in America. NMA's members also include
the producers of metals and non-metal minerals, manufacturers of mining
equipment and supplies, transporters of coal and mineral products, and
other firms serving the mining industry.
GENERAL INTRODUCTION
In the 30 years since SMCRA's enactment, the coal industry has
supplied over 29 billion tons of coal to fuel our nation's growth and
prosperity. This is the equivalent of 115 billion barrels of oil and is
five times our proven domestic oil reserve. Over 2.2 million acres of
the lands supplying this coal resource have been restored to a wide
variety of productive uses including farmlands, pastures, wildlife
refuges, parks, recreational areas, wetlands, and commercial
development. These achievements of the first order in energy production
and environmental stewardship are the product of the collective efforts
of the coal industry, and state and federal governments. They
underscore the underlying strength of America's coal resource as the
foundation of our nation's prosperity and energy security.
SMCRA LEGISLATIVE HISTORY
SMCRA was the culmination of a sustained effort throughout the
1970's to enact a comprehensive federal regulatory policy for coal
mining. Unlike environmental legislation directed at the impacts of
many industries upon one natural resource--e.g., Clean Water Act, Clean
Air Act--SMCRA focuses upon one industry and its effect upon various
natural resources. As the legislation proceeded through successive
congressional sessions, the product transformed from a 17-page version
passed by the House of Representatives in 1972 to a 90-page bill
reported by the conference committee and signed by President Carter on
the morning of August 3, 1977.
Throughout the protracted legislative process, one theme emerged to
become the central purpose of the law: strike a balance between our
nation's need for coal as an essential energy source and protection of
the environment. Recall that in the 1970's, this country was in the
throes of economic turmoil related to its vulnerable dependence upon
foreign sources of energy. The oil embargo in October of 1973 focused
attention on domestic energy security and the ability of our domestic
coal resources to meet increasing energy requirements. At the same
time, concerns existed about the potential environmental consequences
of increased coal mining.
The balance SMCRA intends to strike between meeting our energy
needs and environmental protection rests upon several principles.
First, coal is an indispensable and prominent part of our nation's
energy requirements and prosperity. Second, coal mining should serve as
a temporary use of the land. Third, coal mine development and resource
management must be integrated to successfully restore mined lands to
support future uses. And, fourth, given the diversity in terrain and
other physical conditions among our coal mining regions, states are
best positioned to develop and administer programs designed to meet
those objectives.
INDUSTRY'S SMCRA EXPERIENCE
The protracted and contentious legislative history of SMCRA caused
some lawmakers to predict that the law's implementation would meet with
regulatory delays and endless litigation. See H.R. Rep. No. 218, 95th
Cong., 1st Sess. 193 (1977). The early SMCRA experience would not
disappoint them. The first attempt to implement the entire range of
permanent program requirements produced 150 pages of regulatory text to
``flesh-out'' an already prescriptive 90-page statute. An additional
400 pages were required to explain what the regulations meant. Several
years later, a comprehensive review of the rules converted some of the
unyielding design standards to more flexible performance standards and
empowered states to tailor more suitable versions to accommodate
regional differences.
Not surprisingly, SMCRA implementation has proven fertile ground
for litigation. The battles waged over SMCRA implementation have
extended from the most fundamental questions about the jurisdictional
reach of the law to the more arcane, such as the permissible
conservation and husbandry practices to demonstrate successful
reclamation. One court aptly characterized this early regulatory
history with the following metaphor: ``As night follows day, litigation
follows rulemaking under this statute.'' National Wildlife Federation
v. Lujan, 950 F.2d 765, 766 (D.C. Cir. 1991).
Apart from the turmoil accompanying efforts to establish the basic
regulatory framework, the program experienced difficulty in its
transition from the initial phase of shared federal and state
responsibilities to the permanent phase that vested day-to-day
regulatory authority with the states. In the field, the coal industry
expected to see only one regulator, the state, for both permit and
inspection tasks. The states shared a similar expectation since SMCRA
declared that they would assume ``exclusive'' regulatory jurisdiction
upon approval of their laws and regulations, and that the Federal
Office of Surface Mining (OSM) would recede to a secondary role of
overseeing state performance. In practice, the coal industry found
itself positioned between conflicting state and federal applications of
the law. States saw their exclusive role undermined with little
deference or respect accorded to their applications of the law by OSM.
Serving two regulatory masters further compounded the difficulties
coal companies confronted in complying with changing regulations.
Uncertainty becomes especially frustrating to a regulated industry that
operates under a statute that places a premium upon the principles of
planning and sound resource management. The absence of a stable
regulatory framework undermines the planning imperative. Changing
standards and inconsistent application compromise the integrity of any
planned strategy.
CHANGES IN INDUSTRY STRUCTURE
In the midst of this regulatory transition, the coal industry
experienced structural changes as a result of a combination of market
forces and public policy choices. The number, size and location of coal
mines have changed substantially.
Market forces combined with new and changing regulatory
requirements caused a rapid consolidation within the industry. Between
1976 and 1986 the number of producing coal mines dropped by 32 percent
(from 6,161 mines to 4,201 mines) while production increased by almost
the same percent (from 685 million tons to 886 million tons). The trend
in consolidation continues, and the coal industry today produces 40
percent more coal (1.2 billion tons) from 75 percent fewer mines than
it did just before SMCRA's enactment.
Over the past 30 years there has occurred a significant
geographical shift in coal production from the Eastern coalfields to
the Western United States. Coal demand in the United States is driven
by the electric power sector, which consumes 90 percent of annual coal
production. The policy choices arising over the last two decades under
the Clean Air Act substantially influenced the fuel choices made by the
electric power industry. The increasingly more stringent limits on
emissions of sulfur dioxide at power plants made low-sulfur coal in the
Western United States a cost-effective compliance strategy for many
power plants. Favorable geologic conditions and economies of scale off-
set the disadvantages some Western mines confront due to their distance
from markets. As a result, coal produced from mines west of the
Mississippi--which accounted for only 25 percent of the annual
production in 1977--comprises almost 60 percent of production today.
SMCRA SUCCESSES
Both the industry and the SMCRA program have evolved over the past
30 years. Through persistence and innovation and aided in part by
maturation in the administration of the regulatory programs, the
industry has mastered the demands of the law. The investment to date
has been substantial, and we can continue to report impressive returns:
Restoration of 2.2 million acres of land to productive
uses--three times the size of Rhode Island;
Farmland with crop yields that exceed their pre-mining
capabilities;
Pasture lands that support grazing of more livestock per
acre than pre-mining capabilities;
Wildlife refuges providing new habitats for a diverse
variety of species;
Recreational areas to support fishing, hunting and other
leisure activities;
Forest lands;
Sites in steep slope terrain that will support commercial,
residential and economic development in areas where land
suitable for such purposes is limited or unavailable;
Payment of over $8 billion in Abandoned Mine Land (AML)
taxes to restore unreclaimed mined lands abandoned prior to
SMCRA;
Restoration through remining of more abandoned mined lands
than the AML program--at no cost to the AML program; and
Innovations in reclamation technology and practices
including post mining landscape design and land use planning,
water management and treatment technology, and ground control
and subsidence mitigation measures.
These accomplishments have all occurred while the coal industry
continues to supply our nation annually with the fuel that:
Generates over half of all the electricity in America;
Affordably furnishes the power to support over 151 million
Americans in all activities of their daily life;
Reliably provides the power to support employment of almost
127 million Americans; and
Accounts for one-third of our primary energy production--the
largest portion of any energy source.
LINGERING CONTROVERSY
While we would like to report after thirty years that the program
has emerged free of any controversy that is not the case entirely.
Organizations opposed to coal mining in Central Appalachia coal region
have brought a continuous series of legal attacks that have severely
disrupted coal mining in this region.
The controversy surrounds what has been called mountaintop mining--
but for all practical purposes this label includes almost all surface
coal mining in the steep slope terrain of the West Virginia, Kentucky,
Tennessee and Virginia. When coal is surface mined, the rock and dirt
(overburden) that overlies the coal seams is excavated to access the
coal. When rock is broken and moved, the material expands, or swells,
perhaps as much as 15-40%. As a result, the volume of spoil is greater
than the overburden excavated from its original geological location.
Some mines generate more excess spoil than others because they are
designed to leave more gently rolling or flatter land that can be used
for development or other uses after mining is completed and the land
reclaimed. This excess spoil must be stored somewhere permanently and
in the steep slope terrain of Appalachia the only available and safest
place to do so is in the narrow hollows and valleys adjacent to the
mines.
Before SMCRA, conventional mining methods in Appalachia typically
resulted in the placement of excess spoil on the outslopes of mountain
ridges. This practice created unstable slopes of unconsolidated
material prone to erosion, slides and prolonged sedimentation of
streams. In the early 1970s, several emerging steep slope mining
techniques--including the construction of hollow and valley fills--were
hailed by various government agencies as preferred practices for
avoiding these hazards. Because the construction of hollow and valley
fills was found to afford significant environmental advantages,
Congress incorporated them into SMCRA as an industry standard. In many
respects, the location, design and construction techniques for these
fill structures are similar to methods used in highway construction
spoil disposal, rock-fill dam construction and highway embankment
construction.
SMCRA also recognizes that land suitable for development is scarce
in Appalachia and that surface coal mining provides a unique
opportunity to leave land in a condition capable of supporting various
economic or public uses. To address that need, the law provides that
surface mines can be reclaimed without restoring the approximate
original contour in order to accommodate use of the land later for
industrial, commercial, agricultural, residential, recreational or
public purposes. Appended to my testimony are photographs* that provide
examples of how the coal industry has afforded these opportunities in
the mountainous regions of Appalachia.
---------------------------------------------------------------------------
* All graphics have been retained in committee files.
---------------------------------------------------------------------------
But these coal mines, the fuel they supply to generate our
electricity, and the jobs and economic activity they provide all remain
in jeopardy from a continual barrage of litigation questioning
interpretations and policies that have been in place since 1977. For
the fourth time since 1998, organizations have sought court orders to
stop ongoing mining operations and to prevent new mines from opening.
The first three times, they were momentarily successful, but their
preferred interpretations of the law were ultimately found to lack
merit. See Bragg v. West Virginia Coal Association, 248 F. 3d 275 (4th
Cir. 2001); Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317
F. 3d 425 (4th Cir. 2003); Ohio Valley Environmental Coalition v.
Bulen, 429 F. 3d 493 (4th 2005). A Marshall University study found that
if the views advocated in the first lawsuit prevailed, the state of
West Virginia alone would lose over ten thousands jobs, hundreds of
million dollars in wages and $168 million in state and local revenues
annually. Burton, Hicks and Kent, The Fiscal Implications of Judicially
Imposed Surface Mining Restrictions in West Virginia (Feb. 2001).
This time they have obtained a court order that will close four
mines and possibly a fifth one in West Virginia. Together these mines
are projected to produce 50 million tons of coal, employ over 600
miners and other personnel, pay some of the highest wages in the region
and provide over $100 million in coal severance taxes to the state. And
the collateral damage from this latest litigation may well exceed this
direct hit. Since the court's initial order last March, less than a
handful of permits have been issued in this jurisdiction. There are
reportedly about 70 permits pending that have not been issued which are
necessary to sustain existing mines or open new ones. As coal mines
begin to reach their economic and operational limits, they will be
forced to shut down if permits to expand their capacity are not issued
in the next several months. The uncertainty and permitting delays are
causing investments in new mines to be shelved or shifted to other
states.
The interpretational disputes surrounding this litigation have
become an epic in itself. While the focus has largely centered on West
Virginia and surrounding parts of Central Appalachia, the reversal of
longstanding policies advocated in the litigation have implications
beyond that region and, perhaps, the coal industry as well.
LESSONS LEARNED
Tomorrow's successes will depend largely upon whether we learn
anything from our past. There are many lessons from the 30-years of
SMCRA implementation, and we offer several here based upon our
experience.
Design vs. Performance Standards.--Some have observed that the
excessive complexity and detail of the statute, compounded by the zeal
of the federal agency to outdo the legislators with even more detailed
regulatory design standards, defied comprehension by the industry,
states, and even by the legal minds that produced the regulatory
product. Design standards are inherently inflexible and
counterintuitive for national goals whose success will require the
accommodation of diverse physical and geological conditions. A design
standard approach to regulation stymies innovation. By contrast, a
performance-based approach can accommodate new technology and
advancements in mining and reclamation practices and is therefore more
responsive to the diverse conditions found in the mining regions and an
evolving industry. The switch to performance standards in the 1980's
contributed greatly to the mined land reclamation successes we see
today.
State Primacy.--The regulation of land use, a historically local
prerogative, on a national basis is difficult at best, and all but
impossible if local, state and regional differences cannot be accounted
for in the implementation of statutory goals. Each state and region has
different needs and interests when it comes to land use. But SMCRA
recognizes this: indeed, state primacy is the cornerstone of the law
precisely because good ideas and practices in one state for achieving a
national goal may not be good ones in another. State primacy needs to
be supported institutionally and financially to assure continued
success. For the most part, the earlier distrust of state capabilities
has receded and has been replaced by respect and cooperation between
the federal and state agencies. However, fiscal constraints in some
states may jeopardize the continued retention of their programs.
Consideration should be given to altering the law's federal funding
formula, particularly as one considers that some of the increased costs
have arisen from new federal mandates imposed by OSM regulatory
initiatives. State programs are more cost-effective than federal
programs as demonstrated by OSM's experience in administering a federal
program in Tennessee after the state relinquished primacy.
Regulatory Duplication and Efficiency.--SMCRA established a
comprehensive program for regulating the effects of coal mining upon a
wide array of natural resources. Nonetheless, it did not displace all
existing laws that address specific resources, for example the Clean
Air Act or Clean Water Act. In the past, this overlap has caused
confusion and, at times, conflict for the industry in meeting
overlapping program goals. The Clean Water Act is a prominent example
of this overlap. SMCRA contains extensive requirements for hydrologic
analysis, monitoring and protection requirements for coal mines. In
some cases, federal and state agencies have strived to reconcile these
programs and minimize duplication. Nonetheless, more can still be done
to rely upon the regulatory benefits of SMCRA, avoid unnecessary
duplication, achieve regulatory efficiencies and reap the attendant
environmental benefits as envisioned by both the Clean Water Act and
SMCRA.
LOOKING AHEAD
As we reflect today upon SMCRA's 30th anniversary, there appears to
be a remarkable similarity between our country's energy situation in
1977 and today. When President Carter signed SMCRA that summer morning
in the Rose Garden thirty years ago, ``energy independence'' was a
national imperative. It is no less so today, but it now goes by the
name ``energy security.'' Today, we import about 60 percent of our
petroleum needs, a share that the Energy Information Agency (EIA)
projects will grow to 75 percent by 2030. By that time, we will consume
28 percent more oil and 19 percent more natural gas. Yet the United
States has only 3 percent of the world's oil reserves and not much more
of its gas reserves. Since SMCRA's passage, our energy use has jumped
23 percent, but our energy production has increased by only 7 percent.
Meanwhile, energy imports have climbed by 70 percent.
We sometimes forget that the United States is a growing country.
Our population grew by almost 3 million people in 2005 and now exceeds
300 million. Our economic growth has eclipsed most mature economies.
So, there is no question that our nation will require more energy in
the future, just as it did 30 years ago, to sustain our economic
growth. We will use energy more efficiently due to technological
advances, conservation and increased efficiency. But, we will still use
more energy. Not surprisingly, therefore, our need for coal is
projected to increase from 22.9 quads in 2005 to over 34 quads in 2030,
reflecting the 156 gigawatts of new coal-based generating capacity that
are projected to be needed by the end of the EIA forecast period.
Meeting this demand with reliable, affordable and secure sources
will be a challenge, but a challenge that can be met with the correct
policies that enhance the role of all domestic energy sources,
including policies that ensure that our coal resources can continue to
play the critical role in our energy future.
CONCLUSION
Thank you for the opportunity to share with you the mining
industry's experience under SMCRA and to express its views on the
critical role of our domestic coal resources to our nation's energy
security and prosperity.
The Chairman. Thank you very much.
Mr. Banig, go right ahead.
STATEMENT OF BILL BANIG, DIRECTOR, GOVERNMENTAL AFFAIRS, UNITED
MINE WORKERS OF AMERICA, FAIRFAX, VA
Mr. Banig. Chairman Bingaman, members of the committee, I
am Bill Banig, Director of Governmental Affairs for the United
Mine Workers of America. We appreciate the opportunity to
appear before the committee to celebrate the 30th anniversary
of the Surface Mining Control and Reclamation Act of 1977.
When enacting SMCRA, Congress found that surface and
underground coal mining operation affect interstate commerce,
contributes to the economic well-being, security and general
welfare of the Nation, and should be conducted in an
environmentally sound manner. That statement is as true today
as it was in 1977.
Coal mining contributes to our Nation's economy by
providing the fuel for half of our electricity generation. Coal
miners are proud to play a part in supplying our Nation with
domestically produced, cost-effective, reliable energy. We also
live in the communities most affected by coal mining, and
support the intent of Congress that coal mining must be
conducted in an environmentally sound manner.
Throughout our 117-year history, the UMWA has been in the
forefront of bringing social, economic, and environmental
justice to our members in the Nation's coal fields. The UMWA's
goal is to protect the interests of our members on the job, and
when they return home to their families at night. We have
fought for compensation laws and occupational disease laws. We
have led the fight to enact mine health and safety laws. The
UMWA has also been on the forefront of providing health care
and pensions to workers.
Coal miners value the natural resources that God has given
us. In their free time, you will find many of them fishing in
the streams and hunting in the forests throughout the coal
fields. Because of their love of the land, they are strong
defenders of the need for responsible reclamation laws. Perhaps
more than most, they understand the need for responsible
policies that balance our need for energy with our need to
protect the environment. We believe SMCRA has struck the right
balance. We are proud to say that the UMWA has been a steadfast
supporter of SMCRA.
While nearly $6 billion have been appropriated for mine
site reclamation since 1978, there are many more sites still
requiring attention. With the reauthorization of the AML
program last December, Congress extended the program for 15
years. States and tribes will finally start to receive the
resources they need to take care of their reclamation projects.
The reauthorization also provides the long-term financial
solution for health care of thousands of abandoned, retired
coal miners and their dependents.
With the passage of the 1992 Coal Act, interest earned on
the AML principle has been used to help support the health care
needs of abandoned, retired miners. In other words, the AML
program has provided support for both the needs of abandoned
mines, and abandoned, retired miners and their dependents.
I want to thank the members of this committee who played a
vital role in ensuring that the needs of abandoned miners were
not forgotten.
When Congress authorized the use of AML interests to help
finance the cost of health care for retired miners, it was a
logical extension of the original intent of Congress. Congress
joined these two programs together for a reason--they both
represent legacy costs of the coal industry that compelled a
national response.
When Congress created the AML fund, it found that abandoned
mine lands imposed social and economic costs on residents in
nearby and adjoined areas. When Congress enacted the Coal Act,
it also was attempting to avoid unacceptable social and
economic costs associated with a loss of health benefits for
retired miners and widows.
Although some criticized the use AML interest money to help
cover the cost of miners' retired health care, this marriage
proved to be the catalyst for last year's reauthorization of
the AML program, which successfully addressed the varied, and
sometimes conflicting needs of many interested parties.
With all parties working together for the reauthorization
last year, Congress was able to forge a political consensus
that has alluded us for many years. More importantly, the
legislation will mean more funds will be available to address
vital reclamation needs in the coal fields.
In terms of abandoned retiree health care, the
reauthorization has addressed the financial problem that has
plagued the Coal Act.
Mr. Chairman, the UMWA and its members are grateful that
Congress forged a bipartisan consensus to reauthorize the AML
program, and provide a long-term solution to the coal industry
retiree health care crisis. Today, we appreciate having this
opportunity to thank every Member of Congress for remembering
the plight of retired miners and widows.
I come before you to convey a heartfelt thank you from all
of the retirees for the hard work of this committee in keeping
that promise. I will be happy to answer any questions you may
have.
[The prepared statement of Mr. Banig follows:]
Prepared Statement of Bill Banig, Director, Governmental Affairs,
United Mine Workers of America, Fairfax, VA
Chairman Bingaman, members of the Committee, I am Bill Banig,
director of Governmental Affairs for the United Mine Workers of America
(UMWA). The UMWA is a labor union that has represented the interests of
coal miners and other workers and their families in the United States
and Canada for over 117 years. We appreciate the opportunity to appear
before the Committee to celebrate the thirtieth anniversary of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA), an historic
piece of legislation that continues to be of vital importance to coal
mining communities across this nation.
When enacting the Surface Mining Control and Reclamation Act in
1977, Congress found that ``surface and underground coal mining
operations affect interstate commerce, contribute to the economic well-
being, security, and general welfare of the Nation and should be
conducted in an environmentally sound manner.'' That statement is as
true today as it was in 1977. Coal mining contributes significantly to
our national economy by providing the fuel for about half of our
nation's electricity generation. Coal miners are proud to play their
part in supplying our nation with domestically-produced, cost-
effective, reliable energy. We also live in the communities most
affected by coal mining and support the intent of Congress that coal
mining must be conducted in an environmentally sound manner.
Throughout our 117 year history, the UMWA has been in the forefront
of bringing social, economic and environmental justice to our members
and the nation's coal fields. Our members toil in the nation's coal
mines to provide domestically-produced energy that helps fuels our
economy. The UMWA's goal is to protect the interests of our members on
the job and when they return home to their families after a hard days
work. The UMWA has led the fight throughout our history to enact tough
mine health and safety laws to protect miners on the job.
Unfortunately, advancements in health and safety too often happen only
after miners are killed on the job, as we all witnessed again last year
at the Sago Mine in West Virginia where twelve miners died and recently
at the Crandall Canyon mine in Utah where nine miners lost their lives.
We have fought for compensation laws to assist those who are injured
and occupational disease laws to provide for those whose health has
been taken from them. The UMWA has also been in the forefront of
providing health care and pensions to workers, establishing one of the
first industry-wide multi employer benefit plans. Through the historic
1946 Krug-Lewis Agreement--signed in the White House between Secretary
of the Interior Julius Krug and UMWA President John L. Lewis--the UMWA,
the coal industry and the federal government created the UMWA Health
and Retirement Funds. Over the last 60 years the UMWA Funds has
provided pensions and health care to hundreds of thousands of our
nation's coal miners and helped to modernize the delivery of health
care in coal field communities across the nation.
Indeed, years ago the Funds established ten regional offices
throughout the coal fields with the direction to make arrangements with
local doctors and hospitals for the provision of ``the highest standard
of medical service at the lowest possible cost.'' One of the first
programs initiated by the Funds was a rehabilitation program for
severely disabled miners. Under this program over 1,200 severely
disabled miners were rehabilitated. The Funds identified disabled
miners and sent them to the finest rehabilitation centers in the United
States. At those centers, disabled miners received the best treatment
that modern medicine and surgery had to offer, including artificial
limbs and extensive physical therapy to teach them how to walk again.
After a period of physical restoration, the miners received
occupational therapy so they could provide for their families.
The Funds also made great strides in improving overall medical care
in coal mining communities, especially in Appalachia where the greatest
inadequacies existed. Recognizing the need for modern hospital and
clinic facilities, the Funds constructed ten hospitals in Kentucky,
Virginia and West Virginia. The hospitals, known as Miners Memorial
Hospitals, provided intern and residency programs and training for
professional and practical nurses. Thus, because of the Funds, young
doctors were drawn to areas of the country that were sorely lacking in
medical professionals. A 1978 Presidential Coal Commission found that
medical care in the coal field communities had greatly improved, not
only for miners but for the entire community, as a result of the UMWA
Funds. ``Conditions since the Boone Report have changed dramatically,
largely because of the miners and their Union--but also because of the
Federal Government, State, and coal companies.'' The Commission
concluded that ``both union and non-union miners have gained better
health care from the systems developed for the UMWA.''
Coal miners value the natural resources that God has given us. In
their free time, you will find many of them fishing in the streams and
hunting in the forests throughout the coalfields. Because of their love
of the land, they are strong defenders of the need responsible
reclamation laws. Because they work in a vital energy industry, they
also know that the nation needs the product of their labor. Perhaps
more than most, they understand the need for responsible policies that
balance our need for energy with our need to protect the environment.
We believe the 1977 Surface Mining Act struck the right balance and the
authors and supporters of that effort should be proud of their
accomplishments. We are proud to say that the UMWA has been a steadfast
supporter of SMCRA throughout its 30 year history.
While more than $5.7 billion has been appropriated for mine site
reclamation since 1978, there are many more sites still requiring
attention. With the reauthorization of the AML program as part of the
Tax Relief and Health Care Act last December, Congress extended the AML
Fund for 15 years. States and tribes will finally start to receive the
resources they need to take care of the reclamation projects within
their respective jurisdictions. The 2006 AML reauthorization also
provided the long term financial solution for the health care of the
thousands of abandoned retired coal miners and their dependents whose
employers went out of business and ceased fulfilling their contractual
promises to pay for their retirees' health care.
Coal miners especially appreciate the substantial financial support
SMCRA has provided through the Abandoned Mine Land Fund (AML) to
reclaim abandoned coal mines in the coal field communities. Through the
AML Fund, mining communities across this country have received billions
of dollars--monies collected through fees imposed on a per ton basis
for all coal that is mined in the United States--to clean up abandoned
coal mines While the overwhelming majority of these funds have paid for
the reclamation of abandoned mines, with the passage of the 1992 Coal
Act, interest earned on the AML principal since 1995 has been used to
help support the health care needs of abandoned retired coal miners In
other words, the Surface Mining Control and Reclamation Act has
provided essential support for both the needs of abandoned coal mines
and abandoned retired miners and their dependents. I want to thank the
members of this Committee who played a vital role in ensuring that the
needs of abandoned coal miners were not forgotten.
When Congress authorized the use of AML interest to help finance
the cost of health care for retired coal miner, it was a logical
extension of the original intent of Congress when the AML Fund was
established. Congress joined these two programs together for a specific
reason--they both represent legacy costs of the coal industry that
compelled a national response. When Congress created the AML Fund in
1977, it found that abandoned mine lands imposed ``social and economic
costs on residents in nearby and adjoining areas.'' When Congress
enacted the Coal Act in 1992, it also was attempting to avoid
unacceptable social and economic costs associated with the loss of
health benefits for retired coal miners and widows. Moreover, as the
U.S. Government Accountability Office (GAO) found in its 2002 report on
the Coal Act entitled ``Retired Coal Miners' Health Benefit Funds:
Financial Challenges Continue,'' UMWA retirees traded lower pensions
over the years for the promise of their health benefits and engaged in
considerable cost sharing by contributing $210 million of their pension
assets to help finance the CBF.
Although some criticized the use of AML interest money to help
cover the cost of coal miners' retiree health care, this marriage
proved to be the catalyst for last year's reauthorization of the AML
program which successfully addressed the varied--and sometimes
conflicting--needs of the many interested parties. With all parties
with a stake in the SMCRA debate--states and tribes, coal companies,
environmental groups, and UMWA members--working together for the
passage of the Tax Relief and Health Care Act last year, Congress was
able to forge a political consensus that had eluded us for many years,
allowing us to achieve goals that many of us have been pursuing since
the passage of SMCRA in 1977 and the Coal Act in 1992. Not only did
that legislation succeed in securing the long term financial support
for retired coal miners' health care, the legislation also provided
relief to operators by reducing the AML fees by 20%, modified the AML
formulas to provide historic production states that have the most
serious reclamation problems with higher allocations, and mandated that
minimum program states are guaranteed at least $3 million each year for
reclamation efforts. In addition, the legislation took a portion of the
AML fees collected off budget and over a seven year period, all states
and tribes will receive from the General Treasury an amount equivalent
to their unappropriated balances in the AML fund. The end result of the
legislation is that is that it resolved many longstanding disputes that
had blocked AML reform for several years. More importantly, the
legislation will mean more funds will be available to address vital
reclamation needs in the coal fields.
In terms of abandoned retiree health care, the passage of the Tax
Relief and Health Care Act has addressed the financial problems that
have plagued the Coal Act since its passage in 1992. As many are aware,
adverse court decisions and an unanticipated series of bankruptcies in
the coal and steel industries had eroded the original financial
mechanism Congress intended to fund Coal Act health care obligation. As
a result, on three separate occasions Congress had to provide emergency
appropriations, using unused AML interest money, to keep health care
benefits from being cut. With passage of last year's AML
reauthorization, these and many other issues have been resolved.
Mr. Chairman, the UMWA and its members are grateful that Congress
forged a bipartisan consensus to reauthorize the AML Program and
provide a long-term solution to the coal industry retiree health care
financial crisis. We have in previous appearances before the Committee
provided the historic context for the government's unique promise of
health care to coal miners. You know all too well that over their
working lives, these retirees traded lower wages and pensions for the
promise of retiree health care that began in the White House in 1946
when the Krug-Lewis agreement was signed. In 1992, miners willingly
contributed $210 million of their pension money to ensure that the
promise would be kept. Everything that this nation has asked of them--
in war and in peace--they have done. They are part of what has come to
be called the ``Greatest Generation'' and deservedly so. They have
certainly kept their end of the bargain that was struck with President
Truman. In 2006 we were delighted that Congress forged the political
consensus that allowed the federal government to keep its promise once
again.
Today, we appreciate having this opportunity to thank every member
of Congress for remembering the plight of our retired miners and
widows. I come before you to convey a heartfelt thank you from all the
retirees, including the original 112,000 beneficiaries, for the hard
work of this Committee in keeping that promise.
I would be happy to answer any questions you may have.
The Chairman. Thank you very much.
Ms. Rank, why don't you go right ahead.
STATEMENT OF CINDY RANK, WEST VIRGINIA HIGHLANDS CONSERVANCY,
ROCK CAVE, WV; ACCOMPANIED BY JOAN MULHERN, EARTHJUSTICE
Ms. Rank. Good afternoon, Chairman Bingaman, and member of
the committee, I do appreciate the opportunity to come over
here today to talk about what I see as the enforcement, or lack
thereof, of SMCRA.
I'm a citizen volunteer with the West Virginia Highlands
Conservancy, on of the oldest environmental advocacy
organizations in West Virginia, and for the past four decades
has been a leader in citizen efforts to protect West Virginia's
land, water, and human resources from the effects of illegal
and irresponsible coal mining.
I became a member of the Highlands Conservancy nearly 30
years ago, when our own community group was faced with mining
that would have ruined our water with acid mine drainage, the
water that we use for our homes.
Since that time, my association, with the Conservancy as a
member of the Board, President for 6 years, and mining
committee chair since 1994, I've seen many other problems crop
up in many other different sections of the State. Unbelievably,
I've known Director Wahlquist for about 20-some years, and Mr.
Conrad, I've been in meetings with for many years, and I'm
amazed at how differently we look at what's happening in the
coal fields, and how we perceive the enforcement of the Surface
Mine Act.
We all recognize that SMCRA meant to create a balance
between protecting the environment and producing the coal
that's necessary for the country. When OSM first came to town
in West Virginia, indeed it was a powerful voice, intent on
reigning in the abuses of the coal industry.
Then, as enforcement was handed over to the States, funding
and staffing cuts imposed on OSM, and weakening regulatory
changes made--mostly at the urging of industry year after
year--the office has really become, in our opinion, an empty
shell of its former self.
All too often the balance intended under this Act is no
longer in existence. The scales of justice are, once again,
tipped in favor of coal at any cost, over people and the
environment. I say this, not just from the Appalachian
Mountains, but we've also heard this from people in the
Midwest, and in the Indian Territory, and as far north as
Alaska.
OSM's failure of the law has allowed mining operations to
permanently damage streams, forests, and generations-old
communities. Far in excess of the watchdog role that was meant
for us citizens in SMCRA, we unfortunately have to go to great
lengths, and are embroiled in difficult and lengthy
administrative and legal efforts that Mr. Quinn doesn't
necessarily think are helpful, but we think they are necessary
to hold regulatory agencies accountable under the law.
At great personal expense, individual citizens brave enough
to challenge illegal permits are forced into the trenches once
more, confronting angry workers who depend for work on ill-
conceived permits. Just like the bad old days before SMCRA,
neighbor is pitted against neighbor, one family's livelihood,
against another family's home and heritage.
For us in Appalachia today, the situation is particularly
explosive--literally. Not only are thousands of pounds of
explosives used every day to blast apart our mountains, the
communities near these mines are becoming tinder boxes.
Emotions run high as dust, blasting, water pollution and
flooding force people out of their homes and hollows. Those who
stay suffer constant barrage of problems, large and small, and
for those brave enough to challenge illegally granted permits
in the Courts, threats against home and family are now rampant.
In my written testimony, I submitted several different
examples of problems that I think could be resolved better,
with better enforcement by OSM. That includes all of those
things you've heard of today from Mr. Wahlquist and others, but
in a different light. Acid mine drainage continues to flow,
even from mines granted after the passage of SMCRA, our bonding
situation in many States is insufficient to take care of mines
deserted after the passage of SMCRA, excess subsidence from
long-wall mining these days, toxic underground mine pools, when
in acid-producing seams that are beginning to seep out into
people's wells and yards, sludge dams and slurry injection that
have contaminated neighbors water wells--the situation is not
as rosy as we heard--and last, the mother of all atrocities, is
mountaintop removal strip mining.
Mountaintop removal--we have pictures that are showing on
the screen--are also in my testimony, it's become the scourge
of Southern West Virginia and adjacent portions of surrounding
States, where entire mountains are being blown apart to allow
easy access to 6, 10, or more seams of coal that lie within our
steep mountains like frosting in a layer cake.
Every part of the human and natural environment is
suffering as this strip mining on steroids looms over
communities and extends into lightly populated mountain
hollows, forcing small communities to seek safer ground in
unfamiliar cities and towns far from their roots that have
nurtured generations of their families before them.
The very heart and soul of our mountain way of life is
being ripped apart with hardly a whimper out of OSM, except to
adjust one regulation after another to further aid industry in
its destruction of our forests, water and communities that
depend upon those resources.
I see I'm probably over my time, I would just like to say
briefly that headwater streams are destroyed, groundwater
resources are destroyed, land and forest resources are
decimated as these ancient mountains are torn apart, and this
is going to be centuries, if at all, these things are repaired,
or come back.
Contrary to the clear intent and purposes of SMCRA, a whole
host of environmental standards, including approximate original
contour, the stream buffer zone rule, saving topsoil, the
proper use of topsoil substitutes, post-mining land use,
cumulative hydrologic impact assessments, have all been
bastardized in order to allow this destructive mining to
continue.
The industry would have us believe that this is only
impacting maybe 1 or 2 percent of West Virginia, but if you
look at the map on the tripod over there, or the map that's
included with my testimony, you can see that if we look at the
16 or so counties where this kind of mining is concentrated,
that percentage shoots up immediately to closer to 15 percent,
and that's a very large percent of the counties of Boone,
Logan, Mingo and several others in Southern West Virginia.
It took nearly 20 years for OSM to begin to realize the
impact and costly legacy of acid mine drainage that resulted
from careless permitting after the Act, during the eighties and
nineties. If it takes another decade for the Agency to
recognize the long-term cost of mountaintop removal mining, we
may have precious few mountains, and very few streams left to
worry about.
As the late Judge Charles Haden recognized in ruling on our
Brag v. Robertson case in 1999, this is a bell that, once rung,
cannot be un-rung. Many of our human mistakes can be corrected,
even polluted streams can sometimes be corrected and improved
over time. But our mountains will never come back, our
headwater streams and high-mountain springs never returned
again.
I appreciate, again, the opportunity to come over and talk
about it. There's far too much to say in 5 minutes and I'd
appreciate answering any questions, especially a couple of the
legal questions that arose with Mr. Wahlquist, maybe Joan
Mulhern can assist me in setting the record straight on stream
buffer-zone rule, and 1999 rules.
I would hope that this hearing is only the beginning of
what this committee might pursue as oversight of SMCRA over the
next years. I would invite everybody on the committee and the
staff to indeed, come to West Virginia, we'll be happy to
provide the opportunity to fly over the mountaintop removal
area and to visit the communities. I'm sure the coal industry
would be happy to show you the mine sites on top of the mines,
and we'd be happy to show you what's lost in getting to the
post-mining land use that some people think are so good.
Thank you, again.
[The prepared statement of Ms. Rank follows:]
Prepared Statement of Cindy Rank, West Virginia Highlands Conservancy,
Rock Cave, WV; Accompanied by Joan Mulhern, Earthjustice
Good afternoon Chairman Bingaman and members of the Committee.
Thank you for the opportunity to speak with you today. I am Cindy Rank,
a citizen volunteer with the West Virginia Highlands Conservancy (WVHC)
since 1979.
The West Virginia Highlands Conservancy is a nonprofit membership
organization with approximately 1,800 members, most of whom reside in
West Virginia. Officially incorporated in 1967, the Highlands
Conservancy is one of the state's oldest environmental advocacy
organizations and for the past four decades has been a leader in
citizen efforts to protect West Virginia's land, water and human
resources from the effects of illegal and irresponsible coal mining.
I live in southern Upshur County in Central WV. I became a member
of the Highlands Conservancy nearly 30 years ago when our local
community group, Friends of the Little Kanawha (FOLK) appealed to the
Conservancy for assistance in our fight against strip mining planned
for our area that would have severely degraded our water with acid mine
drainage.
I was president of the Conservancy from 1988 to1994 and continue to
serve on the Board of Directors. Since 1994 I have also chaired the
Conservancy's Mining Committee.
Although my initial concern about mining centered on the
devastating impact of acid mine drainage on the waters that support my
own life, home and community, my years with the Highlands Conservancy
have introduced me to a broader range of problems and additional
concerns. At times focused on specific local problems on behalf of our
members, the Conservancy also addresses more programmatic issues and
deficiencies in the program, through commenting on regulatory
proposals, participating in administrative proceedings, and filing
litigation when necessary.
As a volunteer organization the Conservancy often relies on the
able assistance and generous pro-bono legal work of local, regional and
national groups such as the Appalachian Center for the Economy and the
Environment in Lewisburg, WV, Public Justice and Earthjustice here in
Washington DC. Joan Mulhern from Earthjustice is here with me today to
assist with specific legal and technical questions you may ask.
SMCRA AND OSM
In the opening sections of the Surface Mine Act Congress clearly
recognized that achieving the necessary balance of protecting the
environment while providing for the Nation's need for coal would
require strong guidance and oversight to assure that society would be
protected from the adverse effects of strip mining.
When OSM first came to town in the late 1970's it was that powerful
force . . . intent on reining in the abuses of the coal industry. Then,
as enforcement was handed over to the states, funding and staffing cuts
imposed on OSM, and weakening regulatory changes made--mostly at the
urging of industry year after year--the Office has become an empty
shell of its former self. Despite the good intentions of many dedicated
staff members, OSM currently offers more help to the mining industry
than it does to citizens and communities where coal is mined. All too
often, the ``balance'' intended under the act no longer exists . . . .
The scales of justice are once again tipped in favor of coal at any
cost over people and the environment.
PUBLIC PARTICIPATION
From the outset, public participation was recognized as a key
component of the overall regulatory program. Citizens were to be
watchdogs to keep regulators on their toes and ensure implementation of
state regulatory programs in accordance with the requirements of the
Surface Mining Act by commenting on regulations, fully participating in
the permitting process and other aspects of the program.
However, after years of tweaking, bending and stretching
regulations to the benefit of industry ordinary citizens are now hard
pressed to be the watchdogs envisioned by Congress in 1977. Individuals
can now spend entire lifetimes at great personal and emotional cost
following the regulatory agency's every move, educating themselves and
others, organizing across the mountain ridges, finding and hiring
independent hydrologists, biologists, and other legal and technical
experts at great expense. All this to protect their lives, homes and
communities--protection that SMCRA assured would be provided by OSM.
Only individuals whose health and personal family circumstances can
sustain such inordinate amounts of time and effort can survive.
For us in Appalachia today the situation is explosive--literally .
. . . Not only are thousands of pounds of explosives used DAILY to
blast apart mountains in southern WV, but communities near these mines
are becoming tinderboxes of tension. Emotions run high as dust,
blasting, water pollution, and flooding force people out of their homes
and hollows. Those who stay suffer constant barrage of problems large
and small. And for those brave enough to challenge illegally granted
permits in the courts, threats against home and family are now rampant.
Much of this is due to newer technologies and mammoth mining
machines that have made it possible to cause more destruction both
above and below ground. Much also has to do with the entrenched
political influence of the coal industry and its ability to sway state
and federal regulators to do what benefits industry. For its part, OSM
has seen to the dilution of standards and the weakening of any
enforcement that stands in the way of profit--leaving citizens more or
less to fend for themselves.
OSM's failure to enforce the law has allowed mining operations to
permanently damage streams, forests, and generations old communities.
We find ourselves embroiled in difficult and lengthy administrative and
legal efforts to hold both the state and federal agencies accountable.
We've appealed to the courts time and time again. Individual citizens
brave enough to challenge illegal permits are forced into the trenches
once more--confronting angry neighbors who work in the mines and are
dependent for work on ill-conceived permits. Just like the bad old days
when SMCRA was first enacted, neighbor is pitted against neighbor. One
family's livelihood against another family's home and heritage.
SPECIFIC ISSUES
While my own experience is rooted in the eastern part of the
country--and central Appalachia in particular, citizens in the mid
west, great plains and as far north as Alaska are experiencing the same
disappointment with the agency. Their stories reflect suffering and
similar types of harm due to the lack of enforcement of an imperfect
but useful SMCRA.
After the mighty struggles that finally resulted in the enactment
of SMCRA, lax enforcement of the law has led us back to the beginning.
The same problems that spawned the Surface Mine Act in the first place
have risen from the ashes with a vengeance--just in different, more
modern day clothing . . . and with better PR spin doctors to shine the
most favorable light on some of the most despicable . . . horrendous
crimes against nature.
While it's impossible to address the many programmatic deficiencies
and issues of concern in the short amount of time we have today, I
offer the following brief overview of some major concerns that are
festering with less than adequate attention from OSM and/or its
counterpart state agencies:
Acid Mine Drainage from mines permitted both before and
after SMCRA has left thousands of miles of streams unfit and
unsafe . . .
--Pre-SMCRA sites.--The Abandoned Mine Lands (AML) program and fund
established to reclaim minesites abandoned prior to the
passage of SMCRA has had significant problems these past 30
years and hundreds of mines abandoned prior to 1977 still
sit untended today. It is my sincere hope that the
important (but far from perfect) re-authorization bill
enacted by this Congress at the end of last year will help
to some degree. But for it to work, it is imperative that
the states use the funds wisely and primarily to accomplish
the main goal of reclaiming old abandoned minessites.
--Post-SMCRA sites.--Beginning in 1977 no permits were to be issued
where it was reasonable to assume a perpetual source of
acid would be created, and yet today hundreds of those
mines plague thousands of miles of WV and PA streams with
acid mine drainage.
--SMCRA requires that bonding mechanism be in place to assure that
enough money will be available to reclaim any site that
might be abandoned prior to complete reclamation. Companies
would be required to post individual bonds and/or
contribute to alternative bonding systems set up to achieve
this end. Nonetheless, the bond program in WV was never
sufficient. After nearly 15 years of legal and
administrative challenges by WVHC and others, the state DID
increase the per ton fee companies are required to
contribute to the states ``Special Reclamation Fund'',
which did help address the backlog of reclamation. However,
by all recent estimates the fund will again be broke within
the next few years. Millions of dollars is needed to fix
the fund, and that's not even counting at least 364 active
sites where water treatment is ongoing and will most likely
be needed--by someone--far into the future if not forever.
--Toxic underground mine pools have formed where interconnected
deep mine workings in acid producing coal seams have become
filled with acidic and metal laden water, polluting
groundwater relied on for years by individuals and small
rural and mountain communities at great distances from city
water. . . . Even now a bevy of agencies is thrashing
about for solutions to the nearly million acre ``Pittsburgh
Pool'' that exists in northern WV and southwestern
Pennsylvania. Pressure is now forcing the metal laden water
into wells, yards and streams through cracks and fissures
in the surrounding rock. And still OSM stands by while the
state issues additional permits in northern WV where the
same phenomenon is likely to occur and present extreme
water problems in the year to come.
--Subsidence due to longwall mining is causing permanent damage to
ponds, streams and homes. Today in WV hearing a group of
valiant citizens is challenging the first of two 6,000 acre
longwall mines planned for either side of the Tygart Lake
in the northern part of the state--just south of Greene
County PA where the impacts of this kind of mining have
been felt for
years . . . .
--Blasting regulations insufficient to protect traditional
structures in rural WV and in tribal lands in the west and
citizens are required to go to great lengths to prove
damage and beg and plead for remuneration.
--Sludge ponds and slurry injection created for the disposal of
coal waste from preparation plants threaten the health of
citizens in Mingo County WV and other areas where water
runs black and brown from indoor faucets and children
develop blisters and unidentified rashes after bathing in
that water. Citizens have had to fight and lobby our state
legislature to get even the slightest bit of official
attention and study of the matter.
And, lastly, the mother of all atrocities: Mountaintop removal
strip mining.
MOUNTAINTOP REMOVAL
Mountaintop removal has become the scourge of southern WV and
adjacent portions of KY, and southwestern VA where entire mountains are
being blown apart to allow easy access to 6,10 or more seams of coal
that lie within our steep mountains like frosting in a layer cake.
Every part of the human and natural environment is suffering as
this strip mining on steroids looms over communities and extends into
the lightly populated mountain hollows forcing small communities to
seek safer ground in unfamiliar cities and towns far from their roots
that have nurtured generations of families before them. The very heart
and soul of our mountain way of life is quickly and quietly being
ripped out with hardly a whimper out of OSM except to adjust one
regulation after another to further aid in the destruction of our
forests, water and communities that depend on those resources.
Water is at the heart of it all. Having nowhere to put the deep
layers of earth that separate the coal seams, companies blast apart and
dump the rock into the stream valleys that originate in the high
reaches of the mountain and flow down the hollows between the ridges.
Pockets of groundwater, perched aquifers and hillside springs that many
of us depend on are gone in an instant.
According to a multi agency draft Programmatic Environmental Impact
Statement (PEIS) on Mountaintop Mining/Valley Fills conducted in
response to litigation brought on behalf of the WVHC and several brave
coalfield citizens, these ``valley fills'' have buried or otherwise
damaged over 1,200 miles of irreplaceable headwater streams. These are
not `dry ditches' as some would have you believe, but streams up to 2
miles long that flow year round and serve a unique role in the health
and vitality of downstream reaches. The PEIS predicted that another
1,000 miles of streams would be similarly impacted if no actions were
taken to limit or curtail the practice.
No one has predicted what or where--or even IF--groundwater and
hillside springs might redevelop . . . or how long it might take for
that process to occur. Ancient geologic formations of steep mountains
and narrow valleys are replaced with rubble-filled valleys and rock
molded into mounds a couple hundred feet lower than the mountains they
replace.
Land and forest resources are decimated as these ancient mountains
are turned inside out. Blasting hundreds of feet deep, thousands of
acres at a time mining has caused the loss of hundreds of square miles
of the most productive and diverse temperate hardwood forests in the
world. According to the Mountaintop mining EIS well over 400,000 acres
have already been impacted and the EIS predicted that figure would
increase to 1.4 million acres (that's over 2200 square miles) by the
end of the decade if nothing is done to limit the practice.
Contrary to the clear intent and purpose of SMCRA, a whole host of
environmental standards including Approximate Original Contour, saving
topsoil with the native seed-pools intact, the proper use of topsoil
substitutes, Post Mining Land Use (that provide viable economic
opportunities for communities once the valuable coal reserves are
gone), Cumulative Hydrologic Impact Assessment are all bastardized in
order to allow this destructive mining to continue. And the mountains
of Appalachia are being reduced to a ``field of dreams'' for some
future undetermined generation.
Industry would have us believe that mountaintop removal mining is
doing only minimal damage and that the practice is only impacting about
1 or 2% of the state of West Virginia. While that may be true if you
consider the entire acreage of WV is some 15.5 million acres, if you
look at the 16 or so counties where mountaintop removal mining is
taking place, that number skyrockets to as much as 15% or more. That
can be seen clearly on this map* of the three county area of Boone,
Logan and Mingo counties that we've brought with us today.
---------------------------------------------------------------------------
* Maps have been retained in committee files.
---------------------------------------------------------------------------
As the late Judge Charles Haden recognized, this is bell that once
rung, can't be unrung. Many of our human mistakes can be corrected,
even polluted streams can be restored over long periods of time, but we
will never get our mountains and headwater streams and high mountain
springs back again.
OSM has engaged in a series of actions to gut long-standing
safeguards against the wholesale burial and pollution of streams in
Appalachia by the coal mining industry.
In December 2003, the Office of Surface Mining (OSM)
proposed to weaken its oversight of state mining programs, by
making federal takeovers for state violations of federal law
discretionary rather than automatic. 68 Fed. Reg. 67776.
In October 2005, the Administration released its final
Programmatic Environmental Impact Statement on Mountaintop
Mining/Valley Fills in Appalachia (PEIS), which proposed no
meaningful mining reforms or limitations on valley fills. 70
Fed. Reg. 62102. Despite scientific studies showing significant
harm was already being done . . . and would continue, OSM
chose to streamline the permitting process, totally ignoring
any effort to reduce the harmful impacts.
Now, in with its most recent proposal OSM wants to gut the
Stream Buffer Zone (SBZ) rule, the most important safeguard
under the Surface Mining Control and Reclamation Act (SMCRA)
for protecting streams. Again scientific studies cited in the
draft EIS for the proposed rule change indicate significant
harm is being done. Again, OSM chose to ignore any alternative
that might reduce the size or number of fills and thus reduce
the impact and prevent further significant harm to the waters
of the U.S. The proposed rule would eliminate the standing
prohibition against mining within 100 feet of streams if that
mining will have an adverse effect on water quantity, water
quality, and other environmental resources of the stream. In
its place the proposed rule merely asks that a company do what
it can to ``minimize'' harm to the extent possible. The
proposed rule is a violation of both SMCRA itself and the Clean
Water Act, which SMCRA purports to uphold.
CONCLUDING REMARKS
OSM should withdraw the Stream Buffer Zone rule change and
stop the insanity that is now taking place in central
Appalachia.
OSM needs to maintain strong policy against permitting when
acid mine drainage is anticipated.
OSM must improve its requirements for assessment of
Cumulative Hydrologic Consequences to better ascertain what is
happening to our ground and surface water resources especially
in mining areas where mountaintop removal strip mining and
longwall deep mining is taking place.
Again, thank you for the opportunity to speak today. Joan and I are
willing to answer any questions you might have and will be happy to
provide you with whatever additional information that you might
request. We hope that today's hearing will lead to additional oversight
by the Committee on Energy and Natural Resources, particularly on the
enormous damage being caused in my region by Mountaintop Removal
mining. There are many other citizens and coalfield residents as well
as scientists and mining experts who could provide the Committee with
valuable and compelling information to demonstrate that this practice
must be ended.
LASTLY, let me extend an invitation to every one on this committee
to come to West Virginia and see for yourself the irreversible harm
that is being done as a result of the lax enforcement of the law and
OSM's acquiescence. The West Virginia Highlands Conservancy and our
sister organizations working to end the abuses of Mountaintop Removal
mining will be happy to provide you with the opportunity to flyover the
mountaintop removal areas and to meet and talk with citizens who are
directly and profoundly impacted by the mining.
The Chairman. Thank you very much. Let me just ask a few
questions.
Mr. Quinn, You've heard Director Wahlquist's testimony
about his understanding or interpretation of SMCRA and the way
it applies to this issue of streams and water being interfered
with. Do you agree with his assessment or do you take exception
to any of it?
Mr. Quinn. Let me see if I can be a little clearer, I
think, in answer to the question as the application of the
stream buffer zone rule changed over the years, the answer
would be no. That rule was first promulgated in 1977, has
always applied, has been viewed as a best management practice
for activities that occurred outside of those streams, but were
activities designed and must occur adjacent or in the stream,
it does not apply. Otherwise, you would not be able to mine
through streams and create reserves whether it be in New
Mexico, West Virginia and other places would not be able to be
mined.
It's just like a BMP you'd use in oil, gas and other
places, you would, if your activity doesn't require you to be
in that stream channel, keep back and design a buffer for, so
sediment doesn't flow into it.
But if you're designed to occur, your activity to occur in
that stream, then design it according to the requirements of
the law that talk about minimizing the disturbance downstream
from your activity.
If the interpretation advocated in this litigation about
the stream buffer zone rule were upheld, literally, parts of
SMCRA would be just null and void. The statute talks about
mountaintop mining, it talks about valley fills, it talks about
valley fills being built where, in stream channels. There is no
stream buffer zone rule requirement in SMCRA. There are some
buffer zone requirements in SMCRA, and they're very explicit
around homes and other places, there is no stream buffer zone,
there was one in an early version, but it was never enacted.
So, the point is, is that, I think there's a rule that was
intended to be a reminder of a best management practice for
mining near or by streams, is now being leveraged to
interpretation that would actually bar most mining.
In the studies that Mr. Wahlquist's agency has done, as
well as other studies have indicated that in this particular
area of West Virginia, 90 percent of the reserves would be
rendered unmineable under that interpretation. The economic
impact would be devastating.
The Chairman. Let me ask either Ms. Rank or Ms. Mulhern if
you take exception to that interpretation of the law, there
seems to be a difference of opinion here.
Ms. Rank. I certainly take exception to that. One of the
main goals of the Surface Mine Act was also to uphold the Clean
Water Act. Water is one of our most important resources, and
will be an important resource on into the future. Some of the
environmental regulations that were set forth under SMCRA were
to protect the waters that were going to be so important--that
are important and will be important. To create a stream, or to
interpret the stream buffer zone rule to eliminate the
protection of those waters is in complete violation, as far as
I'm concerned of SMCRA and the Clean Water Act.
Maybe Joan can be a little more reasonable or rational in
her response to that.
The Chairman. Ms. Mulhern, go right ahead.
Ms. Mulhern. Thank you, Mr. Chairman. I'd like to add my
thanks to those of others for your having this hearing today
and especially for your focus on mountaintop removal and the
stream buffer zone rule.
The 1977 Surface Mining Law is replete with provisions that
make it very clear that Congress intended to protect waterways,
not only from gross disturbances, but even from increased
sedimentation. The Surface Mining Agency, OSM, made it very
clear in 1983 when it adopted the stream buffer zone rule, that
it was intended to implement those purposes. It was named the
buffer zone for a reason, it was actually supposed to be a
buffer around intermittent and perennial streams.
The provisions that have been cited, and I can provide the
legal citations to you after the hearing, if you wish--or now,
I have them with me--that are saying that there is some
contemplation that there would be some fills in streams, are
talking about exceptions where there might be some seeps, or
other small water courses underneath some part of a fill, and
the requirement to construct lateral drains where that does
occur, so that the seep doesn't go up into the fill.
But certainly, those provisions can't be used to justify
the wholesale destruction of hundreds of thousands of miles of
perennial and intermittent streams, it clearly wasn't
contemplated, and in fact, even the section of section 515 of
SMCRA where that lateral drain language occurs, is not the
section of SMCRA which the Agency used for its legal authority
for the buffer zone rule, which is another subsection of that
part of the law.
So, I think that these arguments are really legal red
herrings, I think that it's very clear that the agencies are
not only authorized, but actually required to take steps to
protect streams from the kind of destruction that we're seeing
today.
The Chairman. My time is up.
Senator Barrasso.
Senator Barrasso. Thank you, Mr. Chairman.
Ms. Rank, it seems the recommendations that you've
submitted in your testimony all relate more to administrative
actions by the Office of Surface Mining as opposed to specific
legislative changes, did I get that right? You weren't really
proposing a specific change in the law just to----?
Ms. Rank. I was not. I know others may suggest changes, but
I was certainly suggesting that it's been mostly the lack of
enforcement and misinterpretation of these laws that I find
offensive. That especially with the stream buffer zone rule
that's been proposed, the change I find, you know, particularly
egregious, and something that should be looked into in more
depth, if only because the EIS that accompanied this change
really never even looked at how you could enforce the law, and
what that would mean. So that, it's really incomplete on its
face, in terms of leaping from what the EIS said was damage,
to, you know, a different clarification or change in this rule.
Senator Barrasso. For Mr. Banig and Mr. Quinn, I'm going to
read a comment from our former U.S. Senator Hansen, he's now in
his nineties, from Wyoming, and he was involved in this debate
in 1977.
He said, ``I think the protection of our environment, our
land resources, and agricultural way of life, and our water is
of the highest importance. I certainly want to do everything I
can to see whatever is passed here takes full recognition of
these values.''
Mr. Banig, I think you said we did strike the right
balance, that we are using our resources, we are also
protecting our environment as your workers want to make sure
that they work, earn a good living, but also have the resources
for all the activities that--did Senator Hansen get what he
wanted?
Mr. Banig. The mine workers, we feel that he did. You know,
we think that SMCRA has struck the appropriate balance, and you
know, we need to mine coal in an environmentally acceptable
manner, and we recognized that. Again, we live in these
communities, too. We don't home to urban centers after a days'
work, we live in the same communities as the other people in
these areas.
Senator Barrasso. Mr. Quinn, anything you'd like to add on
that?
Mr. Quinn. I think if the Senator would be pleased at what,
the balance has been found today, in terms of the results as I
reported on, and the earlier panel reported on. I will comment
that Senator Hansen was one of the--if I recall correctly--one
of the signatories of the Conference Report on SMCRA, along
with Senator Domenici. If you see him, tell him I think he can
be proud of his accomplishment here in passing SMCRA.
Senator Barrasso. One more question, Mr. Quinn, you know,
this committee is looking at modernizing the Mining Law of
1872. Could you discuss if you have any ideas, perhaps, you
know, what we're learned from SMCRA may help if we move forward
in this, in modernizing the mining law.
Mr. Quinn. I think there's a couple of observations,
Senator. When it's said SMCRA is a model that should be used, I
think there's been a lot of success for the coal industry, but
there's some big distinctions between the coal industry and the
hard rock industry.
There's been reports done, National Academy of Science did
a report as a result of SMCRA. At that point in time, 79
recommended against adopting a similar model for their non-fuel
mineral sector. There's a number of reasons, the mineral
reserves, the geology is considerably different. Unlike coal,
which is uniform horizontally, ore bodies for locatable
minerals are vertical and difficult to find and expensive to
find.
The markets are different. There's a worldwide market for
commodities for most locatable minerals, there's a domestic
market for coal, that allow the coal industry to pass on more
directly, increased costs associated with these mandates and
this law.
Finally, I think there's a different context and different
history when SMCRA was passed. Many of the environmental laws
were in their infancy. There wasn't even any overarching
Federal requirements of any type for surface mining of coal,
not even, for that matter, on Federal lands.
In 2007 what we have is a fairly robust regulatory program
for hard rock mining on Federal lands both on the Forest
Service and the BLM directed specifically at hard rock mining,
and we have a whole host of environmental laws passed since
then, and have matured--Clean Air Act, Clean Water Act, RCRA,
NEPA and many others. I think that at that point in time there
should be real questions about why you need to duplicate and
make things more complex.
I would refer you to another National Academy of Science
study that was conducted 20 years after the one I just referred
to, that looked at this very issue, and concluded that the
existing regulatory framework was very effective. If anything,
it was a little bit over-complex, but it was very effective at
this point in time.
Senator Barrasso. Thank you, Mr. Quinn.
Thank you, Mr. Chairman.
The Chairman. Let me just ask one other line of questions,
Mr. Banig, you talked about the AML amendments that were passed
last year. I take it from your testimony that you believe the
implementation of those provisions is going well, and that
retirees health benefits are being enjoyed as intended, is that
your impression?
Mr. Banig. At this point, yes. I mean, the UMWA funds, just
in October, submitted its request for the funds for Fiscal Year
2008, but all indications are things are working the way that
we intended them to work.
The Chairman. Very good.
That's the extent of my questions, do you have any other
questions?
Thank you all very much, I think it's been useful
testimony, and we'll conclude the hearing with this. Thank you.
[Whereupon, at 4:05 p.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
West Virginia Highlands Conservancy,
Rock Cave, WV.
Senator Bingaman: Thank you for the opportunity to expand on the
very important issue of Mountaintop Removal Mining that we only briefly
touched on during the Energy Committee Hearing November 13th.
Below are my responses to the questions you've forwarded. I would
ask that you pay particular attention to my answer to the final
question about what Congress can do.
I strongly recommend that you hold oversight hearings specifically
focused on this most destructive form of strip mining. I was honored to
be a citizen spokesperson at the November 13th hearing about the
Surface Mine Act (SMCRA), but I assure you hearing from many of my
friends living in the valleys directly below these mining operations
would knock your socks off. I further recommend inviting stream
ecologists, mining and terrestrial experts and other persons with
valuable information and evidence to testify at such hearings.
I also again encourage members and staff of your committee to visit
and fly over areas most impacted by these mining operations to see
first hand the profound devastation that eye-popping visual images can
only barely hint at. I would be happy to assist in making those
arrangements.
Sincerely,
Cindy Rank,
Chair.
Responses to Questions From Senator Bingaman
MOUNTAINTOP MINING
Question 1. What do you view as the key impacts of mountaintop
mining? How does it affect your community?
Answer. Key Impacts:
A) Natural environment/ecosystems. . .
--Loss of nearly 2,000 miles of irreplaceable headwater streams,
streams that, though small, provide unique functions not
present in larger, downstream reaches, functions essential
to the quality and health of those larger streams. These
are also streams that many of us--myself included--depend
on for our water supply.
--Loss of untold numbers of high mountain springs and groundwater
resources that give life to the hills, forests, critters
and humans that have relied on them for generations. No one
knows where, when--or even IF--pockets of groundwater will
be established within the reconstructed `rubble
mountains'--often 200-300 feet lower than before mining.
--Loss of over 1,000 square miles of the most productive and
diverse temperate hardwood forests, a source of sustainable
economic future of the Appalachian region and home to
ecosystems replete with known and as-yet undiscovered
riches.
B) Perhaps most heartbreaking and unforgivable is the damage
to the human element of the environment.
--Loss of homes, wells, clean sources of drinking water,
communities, mountain culture and way of life that has
sustained and nourished generations of Appalachian
residents.
--Loss of personal dignity and respect as neighbor must confront
neighbor and often do battle in court to preserve home,
family cemeteries and generations-old ties to the hills and
hollows that surround and protect them.
--Loss of valuable resources from some of the poorest counties in
the nation as mining the valuable coal reserves continues
to yield great profit for a few while leaving the region
even poorer than before.
My Community
My own personal homestead is not currently impacted by mountaintop
removal mining. By the grace of god and requirements of the Clean Air
Act my community's bitter fight in the early 1980's to protect our
homes and water supplies from being destroyed by acid mine drainage
from mining proposed for our area has been successful in the near term.
However, our good fortune became the misfortune of friends and
neighbors further south as mining moved from our high sulfur coal
reserves to the lower sulfur reserves in southern West Virginia.
Concurrent with that move, weak enforcement of the law, state sponsored
tax breaks and other economic incentives benefited the coal industry in
its development of the destructive mining method known as mountaintop
removal. Technology once reserved for the wide-open spaces of the
western portions of the nation become economically viable in the steep
terrain of Appalachia. Employing the machinery and engineering
techniques of the huge area mines of the west it is now possible for
coal companies to level century old mountains and dump waste rock into
nearby valleys burying or otherwise impacting thousands of miles of
headwater streams. People in small communities and scattered homesteads
are forced to leave their generations old homeplaces. Those who can't
or won't leave are faced with a barrage of constant problems including
damage to homes and wells from blasting, constant dust, diminished
property values, fewer neighbors, schools and churches--a life without
life.
As much as I believe in the governance of law and learned early on
that those laws were meant to protect the dignity and safety of all, I
am deeply troubled to see the frustration and desperation of residents
living in the path of this type of mining. Increased suffering caused
by lax enforcement of SMCRA, the Clean Water Act and other
environmental laws is allowing for an expansion of mountaintop removal
operations that is now leading many to resort to less reasoned and less
reasonable means to protect themselves and their communities. The
anger, mistrust and widespread unrest of the bad old days before SMCRA
is returning.
Question 2. Is it your position that mountaintop mining and valley
fills violate the provisions of SMCRA? If so, which?
Answer. Although allowances for mountaintop removal strip mining
were included in SMCRA after a series of difficult compromises, as
practiced today mountaintop removal looks very little like anything
intended by Congress in 1977. Over the past 30 years, and the last 15
years in particular, the coal industry has been allowed to stretch,
distort and evade legal requirements that define acceptable limits of
environmental impact from this type of mining. The results have been
catastrophic.
Historically the limits set forth in law and regulation were to
determine where and how coal could be mined while at the same time
affording important protection to the environment and communities near
the mines. Today, that precept has been turned upside down. The
technology available to industry and the political pressure industry
brings to bear on regulations and the agencies responsible for
overseeing those regulations are now determining the limits (or lack
thereof) of mining with little regard to environment--man or beast
alike. OSM has become a willing participant in upsetting that important
balance.
The specific portions of SMCRA that are being violated are many,
and would best be addressed in additional oversight hearings to
specifically consider the practice of mountaintop removal. I mention
but a few here.
SMCRA requires Cumulative Hydrologic Impact Assessments, or
adequate analysis of the impacts of mining on the hydrology of an area,
and that the integrity of the ground and surface waters be protected.
OSM is not assuring that either requirement is being met for the region
of southern West Virginia, eastern Kentucky, western Virginia and areas
of eastern Tennessee where mountaintop removal and valley fill strip-
mining is occurring.
One of the fundamental tenets of SMCRA requires that all minesites
be restored to conditions capable of supporting similar or better uses
than the area could support before mining. The postmining condition of
minesites should benefit the nearby communities, and provide for their
future wellbeing once mining was completed and the coal riches gone
forever. With the renewable source of timber gone, herbs and other
medicinal plants scraped aside and buried deep in rubble it's difficult
to imagine what the future holds. What we are left with are thousands
of acres that some call ``moonscapes.'' At best these sites are
``fields of dreams'', left for someone, somewhere, sometime in the
future to figure out how to provide the roads, water and other
infrastructure necessary for any practical use of the previously mined
areas. Only a very small percent (perhaps as much as 3--5% but only
after litigation and publicity has forced even that much compliance
with the law) of the hundreds of square miles of mountaintop mined
areas now have anything that resembles the postmining land uses
required by law.
SMCRA requires that topsoil be saved and replaced in reclaiming the
site, yet topsoil and the fundamental microbial life it supports is
often the first to be dumped over the side of the mountain into the
stream valleys below. ``Topsoil substitutes'' are insufficient to
provide for the restoration of forests or for other productive uses of
the `reclaimed' land.
SMCRA was written to protect the people living around minesites. In
far too many instances, that is just not happening today. Residents of
the area are not being protected, but rather treated as disposable
commodities, past over as sacrificial lambs offered up under the guise
of the greater good and glory of the state and nation in our quest for
greater and greater amounts of energy. Profits from tearing the black
gold out of the hills and hearts of Appalachia go elsewhere, into the
pockets of industry moguls.
And of course, OSM now proposes to change the Stream Buffer Zone
rule that has been in effect since 1983. This is the focus of your next
question, which I answer in some detail.
STREAM BUFFER ZONE RULEMAKING
Question 3. I take it that you do not support the modification to
the stream buffer zone rule as proposed by OSM. Do you think the
proposed regulation violates SMCRA?
Answer. I believe that the proposed regulation violates both SMCRA,
AND the Clean Water Act that SMCRA was meant to support.
At the November 13th oversight hearing before the Energy Committee,
Joan Mulhern, Senior Legislative Counsel for Earthjustice, submitted
wonderfully clear written testimony that focuses for the most part on
this very question. I include them here by reference.
Additionally, the West Virginia Highlands Conservancy joined
several other state, regional and national groups in submitting
comments to the Office of Surface Mining on the proposed rule. I submit
the attached set of comments for the record.
For purposes of my answer here, however, I offer the following
brief, more general. Overview of our position as expressed in those
comments.
First and foremost, we view this proposal to change the Stream
Buffer Zone Rule as another in a series of actions by the current
administration in Washington to gut long-standing safeguards against
the wholesale burial and pollution of streams in Appalachia by the coal
mining industry.
In May 2002, the U.S. Army Corps of Engineers (the Corps)
repealed a 25-year-old prohibition on dumping waste material in
streams. 67 Fed. Reg. 31129.
In December 2003, the Office of Surface Mining (OSM)
proposed to weaken its oversight of state mining programs, by
making federal takeovers for state violations of federal law
discretionary rather than automatic. 68 Fed. Reg. 67776.
In October 2005, the Administration released its final
Programmatic Environmental Impact Statement on Mountaintop
Mining/Valley Fills in Appalachia (PEIS), which proposed no
meaningful mining reforms or limitations on valley fills. 70
Fed. Reg. 62102.
Now, OSM proposes to gut the stream buffer zone (SBZ) rule,
the most important safeguard under the Surface Mining Control
and Reclamation Act (SMCRA) for protecting streams.
Taken together, these actions can only accelerate the pace of
mountaintop removal mining and valley filling, which has already
destroyed nearly 2000 miles of Appalachia's streams and well over 600
square miles of its forests.
While it is true that the Surface Mine Act envisions mountaintop
removal mining, the size and extent of that mining was limited by the
stream buffer zone rule which--if enforced properly--would allow only
the uppermost reaches of any stream to be filled with waste rock from
mining operations.
The proposed rule would eliminate the standing prohibition against
mining within 100 feet of streams if that mining will have an adverse
effect on water quantity, water quality, and other environmental
resources of the stream. In its place, the proposed rule would merely
ask coal operators to ``minimize'' harm to the extent possible.
This is an open invitation to industry to ignore a rule that, as a
practical matter, has been routinely abused and violated, as federal
and state regulators looked the other way.
Clearly, burying one or two miles of stream under millions of tons
of rock violates the intent and letter of this rule. To paraphrase the
late Judge Haden in his 1999 ruling interpreting the existing SBZ rule
in our Bragg v. Robertson litigation, there is no greater harm to these
streams than obliteration. . . . Once a stream is filled with tons of
waste rock, there is no more stream, no more water quality.
In a Fact Sheet offered as background for this rule change, OSM
would have us believe that burying some upper reaches of streams that
fall within the permitted mine area is OK as long as the downstream
reaches beyond the permit boundaries are not harmed. Addressing this
erroneous perception, Judge Haden wrote that ``[n]othing in the
statute, the federal or state buffer zone regulations, or the agency
language promulgating the federal regulations suggests that portions
existing streams may be destroyed so long as (some other portion of)
the stream is saved.'' Bragg v. Robertson.
The attached comments state and support our belief that:
OSM's proposal is not a `clarification', but rather guts the
existing SBZ rule and reverses OSM's prior interpretation of
the existing rule.
OSM's reasons for gutting the SBZ rule are irrational and
inconsistent with congressional intent to protect the
environment, including streams.
OSM's draft Environmental Impact Statement (DEIS) written in
support of this rule change is inadequate because it does not
consider all reasonable alternatives including any that would
restrict the size, number or impact of fills.
EPA cannot legally concur with the proposed rule because it
will cause significant degradation of streams, in violation of
the Clean Water Act.
A 1977 House Report insisted that OSM must obtain concurrence from
EPA any proposed rule in order to guarantee consistency with
environmental requirements of the Clean Air Act and Clean Water Act.
Indeed the proposed rule not only violates the original intent of
SMCRA, but also violates the Clean Water Act because the rule will
allow significant degradation of streams to continue. The DEIS written
to support the proposed rule, as well as other available scientific
evidence, demonstrate that surface coal mining activities are causing
significant degradation of streams in Appalachia and that degradation
is likely to continue under the proposed rule change.
Stream degradation is significant.
Water quality degradation is significant.
Water quantity and community impacts are significant.
Degradation of aquatic diversity is significant.
--Against this background of scientific evidence of significant
degradation to streams the DEIS' analysis of cumulative
effects is pathetically inadequate. I.e. A mere 1/2 page
rationale is offered and two 20 year old EIS from '79 and
'83 are relied upon as further proof of limited impact when
in fact the 2005 Mountaintop Mining/Valley Fill EIS
concluded that fills are 72% larger in the 1990's than they
were in the 1980's and the length of streams buried have
increased 224%!!!
--OSM's DEIS evades its obligation to analyze significant
degradation.
--OSM's deletion of the requirement that activities that disturb
the SBZ must comply with water quality standards is an
illegal attempt to exempt activities from water quality
standards--an attempt to override--not work in concert
with--the requirements of the Clean Water Act. The Existing
SBZ Rule is Consistent with the CWA.
SMCRA GENERALLY
Question 4. What do you view as the key accomplishments under
SMCRA? What do you view as the goals yet to be accomplished?
Answer. Key Accomplishments:
Halting the most blatant abuses of the rip-and-run/shoot-
and-shove era prior to the 1970's by requiring performance
standards intended to limit the impact of mining, to protect
the people and environment while allowing for the development
of coal resources.
Providing for meaningful citizen input in the permitting
process and citizen suits to appeal programmatic deficiencies.
Creation of the Abandoned Mine Land (AML) Fund which, though
not perfect, has helped reclaim land devastated by mining that
took place prior to 1977.
Yet to be Accomplished:
Enforcement of SMCRA.
Strong and forceful oversight and commitment by OSM to truly
balance the interest of the nations need for coal with
protecting the citizens and environment where coal is mined
falls far short of the promise of the 1977 Act and the original
intent of Congress.
Yielding to the incessant pressure from industry to bend
regulations and weaken enforcement, OSM has become a paper tiger and
oversight as envisioned in SMCRA has faded to a mere shadow of its
former self.
I've always believed that laws to protect the environment us would
also protect us, the human part of that environment. I also believe
that was the intent of Congress as it passed the Surface Mine Act in
1977. And yet, those good intentions have been lost in the mire of
obfuscated regulations and emasculated regulatory agencies orchestrated
and created by industry.
how can we in congress help to achieve these goals?
Congress must enter the debate and discussion surrounding the
mining of coal, not just the burning of coal.
Oversight hearings by the Senate Committee on Energy and Natural
Resources are needed to revisit the original and true meaning of SMCRA
and to review the role of OSM at this critical time in our nations
history when talk of ``clean coal'' echoes throughout the halls of
Congress.
There is no such thing as ``clean coal''--with or without carbon
sequestration--as long as mining coal means massive destruction of the
environment and the obliteration of generations old communities.
The fundamental reason for enacting SMCRA in the first place was to
bring equity preserve dignity, culture and way of life in the
coalfields across the country.
Our country is not about the biggest ruling over the smallest, or
the most powerful smiting those who have less power, but about justice
and equality. . . . Guaranteeing the protections afforded by Congress
in passing SMCRA in 1977 means preserving the rights of the
communities, protecting the land and water those communities depend on
and providing for future beneficial use of mined land while allowing
mining within the reasonable limits imposed by SMCRA.
By the 1970's mining practices had overshadowed care and concern
for the environment and the communities. Congress in its wisdom
recognized that limits had to be set and strong oversight was needed.
Congress stepped up to the plate by enacting SMCRA, an imperfect but
useful law.
Now 30 years later, we call upon Congress to step in once again.
As citizens, we seek relief in state administrative and procedural
public hearings only to be rebuffed as environmental extremists. . .
As citizens, we seek and find relief in federal court only to be
met with agency reversals of the very sections of federal law we seek
to uphold. e.g: The Army Corps of Engineers and EPA reversal of the 25
year old ``fill rule'', now the OSM reversal of the Buffer Zone Rule.
Water is the lifeblood of our mountains and the communities that
exist in the hollows of Appalachia. As our streams and springs are
forests are damaged and destroyed, our ability to live is compromised.
We constantly confront the offensive attitude unspoken for decades,
but clearly expressed recently by a representative of a mining
equipment company in West Virginia who said in an interview on WV
Public Radio:
Manhattan is an area of 22 square miles. It has 68 thousand
people per square mile. Boone County [West Virginia] is 500
square miles. It has 50 people per square mile. We, we have an
obligation to the greater good for the people. We export 70
percent of our coal. We have to, we have to provide electricity
and power for this country for our urban brothers and sisters.
We, we have a great responsibility here in West Virginia, and
we can't let that go.
Could just as easily said the same about the entire state of WV. WV
is 24,000 square miles with 1.8 million people. That comes to 75 people
per square mile.
We call upon Congress to help us end this demeaning representation
of our mountain communities as disposable people and once again hold
the federal Office of Surface Mining accountable for full and fair
enforcement of SMCRA and protecting.
In 1977 Congress saw fit to write meaningful protections into
SMCRA. The Congress of 2007 should assure that those protections are
maintained. When OSM fails, as it is now, Congress must make bold steps
to hold them accountable by reaffirming the fundamental meaning SMCRA.
I end my response as I began.
We ask that you hold oversight hearings specifically focused on
this most destructive form of strip mining known as mountaintop
removal. I was honored to be a citizen spokesperson at the November
13th hearing about the Surface Mine Act (SMCRA), but I assure you
hearing from many of my friends living in the valleys directly below
these mining operations would knock your socks off. I further recommend
inviting stream ecologists, mining and terrestrial experts and other
persons with valuable information and evidence to testify at such
hearings.
I also again encourage members and staff of your committee to visit
and fly over areas most impacted by these mining operations to see
first hand the profound devastation that eye-popping visual images can
only barely hint at. I would be happy to assist in making those
arrangements.
Thank you for the opportunity to further expand our conversation
about mountaintop removal mining and the need for congressional
oversight focused on this excessively destructive method of mining.
Attachment
November 20, 2007.
David Hartos,
Office of Surface Mining Reclamation and Enforcement, Appalachian
Region, 3 Parkway Center, Pittsburgh, PA.
Office of Surface Mining Reclamation and Enforcement,
Administrative Record Room 252 SIB, 1951 Constitution Avenue, NW.,
Washington, DC.
Re: Comments on Proposed Rule and Draft EIS on Excess Spoil
Minimization/Stream Buffer Zones, 72 Fed. Reg. 48678, 48890 (August 24,
2007), RIN 1029-AC04, Docket Nos. OSM-2007-0007 and OSM-2007-0008; OSM-
EIS-34.
Dear Mr. Hartos: On behalf of the West Virginia Highlands
Conservancy, Sierra Club, Ohio Valley Environmental Coalition, Coal
River Mountain Watch and Waterkeeper Alliance\1\, we submit these
comments in opposition to the proposed rule.\2\ Earthjustice also joins
in these comments. The proposed rule is another in a series of actions
by the Bush Administration to gut long-standing safeguards against the
wholesale burial and pollution of streams in Appalachia by the coal
mining industry. In May 2002, the U.S. Army Corps of Engineers (the
Corps) repealed a 25-year-old prohibition on dumping waste material in
streams. 67 Fed. Reg. 31129. In October 2005, the Office of Surface
Mining (OSM) weakened its oversight of state mining programs, by making
federal takeovers for state violations of federal law discretionary
rather than automatic. 70 Fed. Reg. 61194. Also in October 2005, the
Administration released its final Programmatic Environmental Impact
Statement on Mountaintop Mining/Valley Fills in Appalachia (PEIS),
which proposed no meaningful mining reforms or limitations on valley
fills. 70 Fed. Reg. 62102. Now, OSM proposes to gut the stream buffer
zone (SBZ) rule, the most important safeguard under the Surface Mining
Control and Reclamation Act (SMCRA) for protecting streams. Taken
together, these actions can only accelerate the pace of mountaintop
removal mining and valley filling, which has already destroyed 1,200
miles of Appalachia's streams and 387,000 acres of its forests.
---------------------------------------------------------------------------
\1\ The members of the Waterkeeper Alliance are the Altamaha
Riverkeeper, Animas Riverkeeper, Assateague Coastkeeper, Black Warrior
Riverkeeper, Black Water/Nottoway Riverkeeper, Cape Fear Coastkeeper,
Casco Baykeeper, Catawba Riverkeeper, Choctawhatchee Riverkeeper,
Colorado Riverkeeper, Cook Inletkeeper, Delaware Riverkeeper, Detroit
Riverkeeper, Emerald Coastkeeper, French Broad Riverkeeper, Grand
Traverse Baykeeper, Great Salt Lakekeeper, Hackensack Riverkeeper,
Housatonic Riverkeeper, Hudson Riverkeeper, Hurricane Creekkeeper,
Inland Empire Waterkeeper, Kansas Riverkeeper, Klamath Riverkeeper,
Lake George Waterkeeper, Lower Mississippi Riverkeeper, Lower Neuse
Riverkeeper, Lower Susquehanna Riverkeeper, Milwaukee Riverkeeper,
Mobile Baykeeper, Nantucket Soundkeeper, New Riverkeeper, NY/NJ
Baykeeper, North Sound Baykeeper, Ogeechee-Canoochee Riverkeeper,
Orange County Coastkeeper, Pamlico-Tar Riverkeeper, Peconic Baykeeper,
Prince William Soundkeeper, Russian Riverkeeper, San Diego Coastkeeper,
Santa Barbara Channelkeeper, Santa Monica Baykeeper, Saranac
Waterkeeper, Savannah Riverkeeper, Severn Riverkeeper, Shenandoah
Riverkeeper, South Riverkeeper, St. Clair Channelkeeper, St. Johns
Riverkeeper, Tualatin Riverkeepers, Upper Chattahoochee Riverkeeper,
Upper Neuse Riverkeeper, Upper St. Lawrence Riverkeeper, Waccamaw
Riverkeeper, Western Lake Erie Waterkeeper, West/Rhode Riverkeeper,
West Virginia Headwaters Waterkeeper, Willamette Riverkeeper and
Youghiogheny Riverkeeper.
\2\ We also incorporate by reference our April 23, 2004 comments on
the prior proposed rule and our January 5, 2004 comments on the MTM/VF
DEIS.
---------------------------------------------------------------------------
The proposed rule would eliminate the standing prohibition against
mining within 100 feet of streams if it will have an adverse effect on
water quantity, water quality, and other environmental resources of the
stream. In its place, the proposed rule would merely ask coal operators
to ``minimize'' harm to the extent possible. This is an open invitation
to industry to ignore a rule that, as a practical matter, has been
routinely abused and violated as federal and state regulators looked
the other way.
For the reasons discussed below we believe that the proposed
changes are unwise, inconsistent with the objectives of SMCRA and the
requirements of the Clean Water Act, and supported by a draft
environmental impact statement (``DEIS'') that is facially inadequate.
We request that OSM withdraw its proposal and instead retain and
enforce the existing requirements regarding the protection of streams.
Our detailed analysis and comments on the proposed changes follow.
I. OSM'S PROPOSED REVISION OF THE SBZ RULE IS ARBITRARY AND CAPRICIOUS
AND VIOLATES SMCRA
A. OSM's Proposal Contradicts Its Prior Interpretation of the Existing
Rule
In the preamble, OSM reviews the history of the 1983 buffer zone
rule and claims that it has consistently ``applied'' that rule to allow
valley fills and other stream incursions. 72 Fed. Reg. at 48892, 48895.
In the DEIS, OSM goes even further and states that ``[n]either OSM nor
the State SMCRA regulatory authorities have interpreted or implemented
the stream buffer zone rule as an absolute prohibition of [sic]
placement of excess spoil material fills or any other surface mining
activity within the stream buffer zone.'' DEIS, pp. 72-73. These
statements are clearly intended to create the impression that the
current proposal is consistent with all past practices and
interpretations, and that there is no shift in agency thinking.
In fact, however, the proposed rule is a reversal of OSM's prior
interpretation of SBZ requirements. When it promulgated the existing
SBZ rule in 1983, OSM chose to protect intermittent and perennial
streams because they were recognized to be especially significant in
establishing the hydrologic balance. OSM stated that the buffer zone
rule was designed ``to protect streams from sedimentation and gross
disturbances of stream channels caused by surface coal mining and
reclamation operations.'' 48 Fed. Reg 30312 (June 30, 1983). OSM
further stated that ``intermittent and perennial streams generally have
environmental-resource values worthy of protection under Section
515(b)(24) of the Act.'' Id. In the MTM/VF PEIS (p. II.C-34), OSM and
the other participating federal agencies admit that one of the
principal purposes of the stream buffer zone regulation is to
``minimize gross disturbances to the prevailing hydrologic balance,
fish and other biologically important plants and animals that may live
in the streams or riparian zones adjacent to the streams.''
In his 1999 ruling interpreting the existing SBZ rule, Judge Haden,
Chief Judge of the District Court for the Southern District of West
Virginia, ruled that ``[n]othing in the statute, the federal or state
buffer zone regulations, or the agency language promulgating the
federal regulations suggests that portions of existing streams may be
destroyed so long as (some other portion of) the stream is saved.''
Bragg v. Robertson, 72 F. Supp.2d 642, 651 (S.D.W.Va. 1999). Further,
Judge Haden stated:
When valley fills are permitted in intermittent and perennial
streams, they destroy those stream segments. The normal flow
and gradient of the stream is now buried under millions of
cubic yards of excess spoil waste material, an extremely
adverse effect. If there are fish, they cannot migrate. If
there is any life form that cannot acclimate to life deep in a
rubble pile, it is eliminated. No effect on related
environmental values is more adverse than obliteration. Under a
valley fill, the water quantity of the stream becomes zero.
Because there is no stream, there is no water quality.
Id. at 661-662. The Court pointed out the obvious: ``Valley fills are
waste disposal projects so enormous that, rather than the stream
assimilating the waste, the waste assimilates the stream.
The Court holds that placement of valley fills in intermittent and
perennial streams violates federal and state water quality standards by
eliminating the buried stream segments for the primary purpose of waste
assimilation.'' Id. at 662. Moreover with valley fills, ``[t]his
concentration of industrial waste is mortal to animal or aquatic life
in the stream segment buried. Existing stream uses are not protected,
but destroyed. These effects are inconsistent with State and federal
water quality standards.'' Id. at 663. It is important to note that,
while Judge Haden's ruling was overturned on jurisdictional grounds,
the substance of his ruling was not addressed by the Court of Appeals.
See Bragg v. West Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001).
In their brief on appeal in Bragg, OSM, EPA and the Corps expressly
agreed with Judge Haden's interpretation of the SBZ rule:
[Judge Haden] correctly found that SMCRA's stream buffer zone rule.
. . prohibits the burial of substantial portions of intermittent and
perennial streams beneath excess mining spoil. The elimination of
substantial intermittent or perennial stream segment [sic] necessarily
causes adverse environmental effects, as it eliminates all aquatic life
that inhabits those stream segments. As the district court rightly
concluded, the elimination of entire stream segments and all the life
they contain plainly causes environmental harm. Accordingly, the
district court correctly granted summary judgment on plaintiffs' buffer
zone claims.
Brief for the Federal Appellants, 4th Cir., No. 99-2683, April 17, 2000
(hereafter ``U.S. Br.''), p. 2, Attachment 1 (emphasis in original).\3\
Additionally, these agencies stated that the District Court correctly
held:
---------------------------------------------------------------------------
\3\ In the 2004 proposal, OSM suggested that the DOJ brief is ``not
consistent with our historic interpretation'' and that OSM never agreed
with it or approved it. 69 Fed. Reg. at 1039-40. That is a bold-faced
lie. DOJ told the Fourth Circuit that ``Attorneys for EPA and OSM are
identified on the cover of the federal appellants' brief as being `of
counsel' to this appeal, and the position taken in the brief for the
federal appellants represents the unified position of the federal
agencies.'' Federal Appellants' Opposition to the Motion of the
Intervenor-Defendants to Strike the Brief of the Federal Appellants and
to Dismiss Appeal No. 99-2683, p. 2, Attachment 2.
[T]hat valley fills in intermittent or perennial streams may
be authorized under the buffer zone rule only if the permitting
agency finds that they will not adversely affect the
environmental resources of the filled stream segments. WVDEP
has acknowledged that it has routinely approved valley fills in
intermittent and perennial streams without making the findings
called for by the buffer zone rule for the stream segment
filled. The district court correctly rejected the arguments
that WVDEP was not required to make the buffer zone findings,
holding that the findings required by the buffer zone rule must
be made for the filled stream segments and not at some point
downstream from the valley fills; and (2) findings made by the
Corps under the CWA section 404(b)(1) guidelines are not a
substitute for the buffer zone findings.
The district court also correctly. . .[held]. . .that the
burial of substantial portions of intermittent or perennial
streams in valley fills causes adverse environmental impact in
the filled stream segments and therefore cannot be authorized
consistent with the buffer zone rule. The uncontested evidence
demonstrates that the burial of substantial portions of
intermittent or perennial causes adverse environmental effects
to the filled stream segments, as such fills eliminate all
aquatic life that inhabited those segments.
Id. at 24-25. OSM, EPA and the Corps further stated that ``valley
fills that disturb intermittent or perennial streams may be approved
only if there is a finding that activity will not adversely affect the
environmental resources of the filled stream segment.'' Id. at 41.
In a May 22, 2000 letter (Attachment 3), Acting OSM Director
Kathrine Henry adopted the same position that ``the stream buffer zone
waiver findings must be made not only for segments downstream of the
fill, but also for each segment of an intermittent or perennial stream
in which excess spoil is placed.'' In its 2004 proposed rule, OSM
admitted that this brief and this Acting Director's letter took the
position that the rule applied to valley fills. 69 Fed. Reg. at 1040.
However, in its 2007 proposed rule, OSM conveniently omits this
material and instead cryptically cross-references it as an ``additional
discussion of litigation and related matters.'' 72 Fed. Reg. at 48896.
Now OSM has completely reversed this position and would totally
exempt valley fills, waste impoundments and other stream incursions
from the rule. Id. at 48907; DEIS, p. S-2. When an agency reverses its
position, its burden of justification increases. In such cases, ``an
agency changing its course by rescinding a rule is obligated to supply
a reasoned analysis for the change beyond that which may be required
when an agency does not act in the first instance.'' Motor Vehicle
Mfrs. Assn. v. State Farm Mut., 463 U.S. 29, 42 (1983). OSM has failed
to rationally justify its complete about-face from the position it took
in the Bragg case. Indeed, OSM has failed to even consider the
alternative of enforcing the rule as written and as OSM interpreted it
in the Bragg case.
B. OSM's Proposal Violates Congressional Intent to Protect the
Environment, Including Streams
The first stated purpose of SMCRA is ``to protect society and the
environment from the adverse effects of surface coal mining
operations.'' 30 U.S.C. Sec. 1202(a). As the House Report on the 1977
bill explained:
A basic tenet underlying this legislation is the principle that
environmental protection and reclamation, at a minimum meeting the
standards in this act, are a coequal objective with that of producing
coal. The continued selection of mining techniques by engineers whose
primary objectives are the most efficient removal of the overburden and
transport of the coal is not sufficient to be fully responsive to the
purposes and intent of the act.
H. Rep. No. 218, 95th Cong., 1st Sess., p. 96 (1977). Congress
recognized the environmental hazards posed by the valley fills
associated with mountaintop removal mining: ``Serious problems are
presented . . . by operations using head-of-the-hollow or valley fill.
For such operations, it is uncertain whether spoil can be placed in an
environmentally sound manner.'' Id. at 157 (quoting Sec. of the
Interior Cecil Andrus), reprinted in 1977 U.S.C.C.A.N. 593, 688. See
also id. at 615 (``[S]ome mountaintop removal operations have caused
serious environmental problems in the Appalachian area. The key cause
of these problems has been the `valley' fill or `head-of-the-hollow'
fill techniques utilized to dispose of excess spoil material.'').
Congress concluded that valley fills ``should be limited to the minimum
and that strong spoil placement standards are needed to insure that
there will be no offsite damages.'' Id. at 688-689 (quoting Sec. of the
Interior Andrus); see also Cong. Rec. 33,314 (Oct. 9, 1973) (statement
of Sen. Jackson) (stating that the disposal of spoil from mountaintop
removal mining may be authorized only if fills satisfy ``very carefully
determined conditions precedent'').
The text of SMCRA establishes the ``strong spoil disposal
standards'' required for surface coal mining, including mountaintop
removal mining. Several environmental performance standards govern the
conditions under which surface mining, including associated spoil
disposal, may be authorized. Pursuant to those standards, surface
mining operations may be authorized only if the permitting authority
finds (1) that the mining operations will ``minimize disturbances and
adverse impacts . . . on fish, wildlife, and related environmental
values''; (2) that ``no damage will be done to natural watercourses'';
(3) that the excess spoil will be placed in an area that ``does not
contain springs, natural water courses or wet weather seeps unless
lateral drains are constructed from the wet areas to the main
underdrains in such a manner that filtration of the water into the
spoil will be prevented''; and (4) that the disposal ``is compatible
with the natural drainage patterns and surroundings.'' 30 U.S.C.
Sec. Sec. 1265(b)(10), (22), (24); Sec. 1265(c)(4)(D).
SMCRA mandates that mining operations must ``minimize the
disturbance to the prevailing hydrologic balance at the mine site and
in associated offsite areas.'' 30 U.S.C. Sec. 1365(b)(10). By
specifying that mining disturbances such as valley fills should
minimize environmental harm ``at the mine site,'' Congress expressed
its intent to protect streams where the disturbances occur, i.e., in
the footprint of proposed valley fills. By specifying that mining
disturbances should minimize environmental harm ``in associated offsite
areas,'' Congress sought to protect affected downstream areas.
Furthermore, applying the buffer zone rule to the filled stream segment
advances the purpose of the rule, which was enacted to ``protect stream
channels'' (44 Fed. Reg. 15176), and also advances the general purpose
of the standards established under SMCRA, which were promulgated ``to
ensure that all surface mining activities are conducted in a manner
which preserves and enhances environmental and other values in
accordance with the Act.'' 30 C.F.R. Sec. 816.2.
OSM repeatedly cites only one of SMCRA's thirteen purposes as the
defining standard for issuing regulations under that statute. DEIS, pp.
20, 24-25; 72 Fed. Reg. at 48897, 48908, 48909-10, 48911. That one
seeks to ``strike a balance between protection of the environment and .
. . the Nation's need for coal as an essential source of energy.'' 30
U.S.C. Sec. 1202(f). OSM ignores two other purposes that seek to
``establish a nationwide program to protect society and the environment
from the adverse effects of surface coal mining operations'' and
``assure that surface coal mining operations are so conducted as to
protect the environment.'' Id., Sec. 1202(a), (d). Thus, OSM skews its
analysis of SMCRA in favor of resource development to the detriment of
the environment.
Furthermore, OSM uses other sections of SMCRA to set up and
demolish a strawman argument. OSM argues that, because Sec.
1265(b)(22)(D) mentions placing spoil where ``natural water courses''
are present, Congress did not intend to create an ``absolute
prohibition'' on placing any mining spoil in streams. 72 Fed. Reg. at
48893-94, 48908. That is true. However, it does not follow from this
proposition that all Congress expected was for OSM to ``minimize'' the
placement of mining spoil in streams. OSM uses the ``minimize'' concept
in Sec. 1265(b)(24) as the regulatory standard for defining the
maximum amount of environmental protection that it is required to
provide. OSM assumes that placing any amount of mining spoil in streams
is acceptable so long as the amount is ``minimized'' ``to the extent
possible.'' OSM then concludes that this ``minimization'' standard
strikes the only ``balance'' that Congress could have intended in
SMCRA, and that no other alternative measures to protect the
environment need be considered.. This ignores Congress' two other
purposes to ``assure'' that the environment is protected from the
``adverse effects of surface coal mining.'' Congress did not rule out
other measures in addition to fill minimization if those measures are
needed to ensure protection of the environment.
C. OSM's Proposal Is Based on a Flawed DEIS
1. The DEIS Fails to Consider All Reasonable Alternatives
In its DEIS, OSM considered only five alternatives in detail: (1)
take no action and retain the existing rules, which OSM interprets to
allow mining in the SBZ; (2) adopt the proposed excess spoil and SBZ
rules, which allows mining in the SBZ; (3) adopt the 2004 SBZ rule,
which also allows mining within the SBZ; (4) change only the excess
spoil rule; and (5) change only the SBZ rule. DEIS, pp. 17-18. Thus,
these alternatives all allow mining in the SBZ without any restrictions
except the minimization of excess spoil. OSM did not consider any
alternatives that restrict mining in the SBZ. OSM did not consider the
alternative of enforcing the SBZ as written and as Judge Haden and OSM
interpreted it in 1999 and 2000. Furthermore, OSM did not consider any
alternatives that would limit the downstream effects of valley fills
(including changes in stream chemistry, temperature, and flow), even
though those effects are known to be significant and adverse.
OSM summarily rejected ten alternatives without any detailed
analysis. These alternatives would restrict valley fills by type of
stream (ephemeral, intermediate or perennial), fill size (area or
volume), watershed size (from 35 to 640 acres), stream length (200 to
2000 linear feet), or the percentage of streams filled in a watershed.
DEIS, pp. 19-26. OSM uses two types of arguments to dismiss these
alternatives: (1) lack of statutory authority; and (2) insufficient
scientific data. Id. Neither argument has merit.
First, OSM erroneously assumed that considering any other
alternatives or adding any other measures to protect the environment
would result in an ``absolute prohibition'' on either stream-filling or
coal mining, and would therefore be contrary to Congressional intent.
DEIS, pp. 20-21. However, it is obvious that limitations on valley
fills are not necessarily an all-or-nothing proposition. Size, area,
length or volume restrictions can be set at intermediate amounts
between nothing and unlimited development. It is also clear that
restricting fill size does not necessarily prohibit all mining. The
size can be restricted based on the amount of watershed, the amount of
stream length, or the type of stream that is buried. Cumulative limits
based on the amount filled in a larger watershed or region are also
possible. An analysis of past NWP 21 authorizations in West Virginia
shows that many mines were able to operate without placing fill in
intermittent or perennial streams, or both. See Stream Loss Table,
below. Thus, stricter environmental measures could still allow
substantial amounts of coal mining to continue.
Second, OSM erroneously assumes that, without more scientific
information, no limits are possible or appropriate. This is the same
argument that was made in the October 2005 PEIS, and OSM references
that document to support its decision. DEIS, pp. 24-26. The primary
argument advanced in the PEIS for rejecting fill alternatives was that
there was insufficient information at that time to draw a ``bright
line'' that works in every situation, and variations between streams
and watersheds made it difficult to apply any ``bright line'' to
differing individual situations. The PEIS stated that ``[s]cientific
data collected for this EIS do not clearly identify a basis (i.e., a
particular stream segment, fill or watershed size applicable in every
situation) for establishing programmatic or absolute restrictions that
could prevent `significant degradation.''' PEIS, p. II.D-8. The PEIS
therefore posited that since one general rule does not apply in every
situation, there is no basis for applying any general rule at all, and
the only alternative is to apply a ``case-by-case'' analysis to every
individual situation. PEIS, pp. II.D-1 to II.D-9. The perfect is the
enemy of the good, as the PEIS sets up each individual restriction like
a straw man and then knocks it down by saying that one problem or
another makes it inapplicable in certain situations. Id.
This rationale is not a sufficient basis for eliminating
alternatives from analysis under NEPA. ``[W]hile inconclusive evidence
may serve as justification for not choosing an alternative, here it
cannot serve as a justification for entirely failing to `rigorously
explore and objectively evaluate all reasonable alternatives.''' The
Fund for Animals v. Norton, 294 F. Supp.2d 92, 110 (D.C. Cir. 2003). In
addition, the historical record demonstrates that OSM's claims of
insufficient statutory authority and insufficient information are
merely a pretext. In fact, OSM refuses to consider more
environmentally-protective alternatives because it made a political
calculation to protect the coal industry at the expense of the
environment.
The 2001 preliminary draft of the PEIS on mountaintop mining/valley
fills, which was drafted by the Clinton Administration, considered
three action alternatives that restricted valley fills to ephemeral or
intermittent streams and retained the SBZ rule. Attachment 4, pp. ES-6,
IV-1. Different versions of these same alternatives were present in
later drafts until June 2002. For example, a March 2002 draft stated:
The most significant distinction between the four
alternatives is how each one addresses Issue 1, ``Direct loss
of streams and stream impairment.'' The question of what
portions of a stream can be legally filled under SMCRA
authority was central to the Bragg v. Robertson lawsuit. The
District Court decision in that case established that the SMCRA
stream buffer zone regulations at 30 CFR 816.57 and 817.57 do
not allow mining activities (including valley fills) within 100
feet of intermittent or perennial streams. The Fourth Circuit
Court of Appeals later vacated the District Court's decision,
but on grounds unrelated to the applicability of the stream
buffer zone rule. Because of the atmosphere of regulatory
uncertainty surrounding this issue, and the importance of
allowable valley fill size to mine viability and environmental
impacts, the agencies developed the EIS alternatives around it.
Each alternative proposes different changes to regulatory
programs that determine the allowable extent of stream loss
through valley filling. The amount of valley filling that is
allowable will affect the amount of mining that can occur,
which in turn will determine the environmental and economic
consequences of selecting a given alternative.
Attachment 5, Att., p. 5 (emphasis added). The Proposed Agenda for
a June 18, 2002 Steering Committee meeting describes the four
alternatives as follows:
Table IV--1. Mountaintop Mining/Valley Fill EIS Alternative Summary
------------------------------------------------------------------------
------------------------------------------------------------------------
Alternative A No changes to the SMCRA and
CWA programs in effect in
1998.
------------------------------------------------------------------------
Alternative B Depending on the outcome of
a detailed, permit-by-
permit baseline data
collection; thorough, site-
specific, significant
adverse impact analyses;
and, consideration of
alternatives for avoidance
and minimization, valley
fills could be allowed in
ephemeral, intermittent,
and perennial stream
segments. Mitigation of
unavoidable impacts would
require in-kind replacement
of aquatic functions and
values within the
watershed.
------------------------------------------------------------------------
Alternative C Valley fills could be
located in ephemeral and
intermittent streams.
Permit-by-permit baseline
data collection and site-
specific alternatives
analyses would be required
(although not necessarily
as rigorous as in
Alternative B) to
demonstrate that avoidance
and minimization were
considered. Mitigation
options for unavoidable
impacts would be somewhat
more varied and thus more
flexible than under
Alternative B.
------------------------------------------------------------------------
Alternative D Valley fills could be
located only in the
ephemeral portion of
streams. Permit-by-permit
baseline data collection
would be more limited than
under Alternative B, and
alternative analyses would
demonstrate that
minimization of downstream
or indirect impacts were
considered. Mitigation
could include compensation
in lieu of in-kind
replacement of lost aquatic
function and value.
------------------------------------------------------------------------
Attachment 6, Proposed Agenda, p. 7. Thus, these alternatives would
have restricted valley fills depending on the type of stream.
When the Bush Administration took office, Deputy Secretary of the
Interior J. Steven Griles directed OSM to ``refocus'' the PEIS to
``focus on centralizing and streamlining coal mine permitting'' and
impact ``minimization.'' 10/5/01 Griles Letter, p. 1, Attachment 7. As
a result, the fill-restricting alternatives were abandoned and replaced
by process alternatives that merely reshuffled the procedural
responsibilities between the various agencies. All of them had the same
or very similar environmental impacts and merely sought to streamline
permit processing. See 1/5/04 WVHC Comments on the PEIS, pp. 3-6. The
final PEIS states that ``[a]ll alternatives ... are based on process
differences and not directly on measures that restrict the area of
mining.'' PEIS, p. IV.G-3. The PEIS further admits that ``[t]he
environmental benefits of the three action alternatives are very
similar.'' Id., p. II.B-13.
The paper trail for the PEIS shows how this happened. On June 18,
2002, members of the Steering Committee on the PEIS met to consider the
scope of alternatives. Attachment 6, Proposed Agenda. EPA and the U.S.
Fish and Wildlife Service (FWS) members of the Steering Committee took
the position that the PEIS had to consider alternatives to reduce
environmental impacts. Id. at 8. They believed that ``the new framework
does not meet the NEPA requirements by providing a contrasting choices
[sic] among several clear and distinct alternatives.'' Id. at 2. As a
result of this meeting, the Steering Committee changed the alternative
framework, but still recommended inclusion of an alternative that
``would represent the suite of actions that would result in the most
environmentally-protective alternative (i.e., restricting fills to the
ephemeral zone...).'' Id. at 11. The Steering Committee approved that
recommendation. 6/19/02 Hoffman e-mail, Attachment 7. These changes
were incorporated into a new alternatives matrix table. 6/26/02
Robinson e-mail, Attachment 9.
However, shortly thereafter, the Steering Committee's decision was
overruled by the Executive Committee. Unnamed higher-level agency
``executives instructed the SC to attempt to construct the alternatives
for the EIS in a framework based largely on coordinated decision making
for SMCRA and CWA--with no alternative restricting fills.'' Attachment
10, 9/23/02 Agenda, p. 1. Minutes of a July 14, 2002 Executive
Committee meeting show that a new three-alternative approach was
adopted. 8/15/02 email, Attachment 11, Attachment: Executive Committee
Discussion. As a result, the prior alternatives restricting valley
fills were stripped from the PEIS. Instead, the new alternative
framework considered only process alternatives.
OSM has now continued this wholesale evisceration of alternatives
by refusing to consider similar fill-restricting alternatives in the
SBZ DEIS. However, the fact that two federal agencies previously
recommended inclusion of those restrictive alternatives demonstrates
that they are serious proposals that deserve and require full analysis
and consideration.
It is also outrageous that OSM does not even consider the
alternative of enforcing the SBZ rule as written and as it was
interpreted by OSM itself in its April 2000 federal court brief and
Acting Director letter. Instead, OSM reinterprets the existing rule in
conformity with the new proposed rule, so that both of them allow
valley fills in intermittent and perennial streams. This eliminates
most of the difference between the two rules, and makes the ``no-
action'' alternative a pale shadow of the proposed rule. The ``no
action'' alternative in the DEIS merely substitutes OSM's past practice
for its legal mandate to protect streams and the environment generally.
A valid ``no action'' alternative would interpret the SBZ as applying
to the footprint of the valley fills, as OSM determined was legally
required in 2000.
OSM has failed to analyze a reasonable range of alternatives. All
of the alternatives would allow mining activities and valley fills to
be placed in any stream without any limitation on the amount of stream
that could be buried and destroyed. OSM must consider some alternatives
that restrict filling of streams. Absent such consideration, the EIS
fails to frame the true range of choices available to the
decisionmaker.
Furthermore, OSM must consider some alternatives that address the
cumulative impacts of stream filling. As OSM acknowledges, those
cumulative impacts involve damaging or destroying over 1,700 miles of
streams in Appalachia. DEIS, p. 117. The DEIS fails to address these
cumulative impacts. Fill minimization, by itself, only results in a
case-by-case analysis of filling for each separate project. It does not
analyze or address cumulative impacts. OSM inexplicably assigns zero
value to the loss of thousands of miles of headwater streams.
OSM's failure to consider a reasonable range of alternatives has a
predictable result: all of the alternatives would have substantially
the same impacts. OSM states that it ``would not anticipate a major
shift in on-the-ground consequences from any of the alternatives.''
DEIS, p. 121. The alternatives ``would cause no discernable changes to
the direct stream impact trend.'' Id., p. 124. This is unremarkable,
since OSM interprets the ``no-action'' alternative and all the other
alternatives to allow continued unlimited filling of the buffer zone.
The absence of significantly different impacts demonstrates the
artificially narrow range of the alternatives that OSM considered. What
is remarkable is that although stream filling in Appalachia is one of
the most, if not the most, environmentally destructive practices in the
United States today, OSM cannot think of a single reasonable
alternative that would result in a ``major shift'' in the effects of
those practices. This inability is based on political considerations,
not facts or analysis.
OSM's primary rationale in 2004 for gutting the SBZ rule and
eliminating any more restrictive alternatives was its claim that it is
``virtually impossible to conduct mining activities within 100 feet of
an intermittent or perennial stream without causing some adverse
effects,'' and that ``SMCRA recognizes that an absolute standard of `no
adverse impacts' is unattainable.'' 69 Fed. Reg. at 1043. Similarly, in
the DEIS, OSM states that if valley fills were restricted to ephemeral
streams, 90.9% of the coal in central Appalachia could not be mined.
DEIS, p. 20. OSM also argues that SMCRA does not prohibit filling
streams with mine waste, and that it not economically feasible to
eliminate such fills. 72 Fed. Reg. at 48891 (``the most economically
feasible disposal areas are the upper reaches of valleys''); id. at
48892 (``maintenance of a buffer is neither feasible nor
appropriate'').
The 92.5% figure is based on the Mountaintop EIS Technical Report
in Appendix G of the MTM/VF PEIS. It was based on a study of only ten
mines, and did not consider the altered economics of revised mine
configurations. MTM/VF PEIS, App. G, Cover Sheet, p. 3. It therefore
cannot be extrapolated to all coal mining in central Appalachia. The
more comprehensive economic analyses in the MTM/VF PEIS, based on work
by RTC and Hill & Associates, showed that restricting valley fills to
ephemeral zones would reduce coal production in Appalachia by 20-45%,
and would increase coal prices by only two dollars a ton. Id. at 7;
MTM/VF PEIS, p. IV-I.3.
Even that analysis is an overstatement of the impacts of the
existing rule. We have examined seven recent NWP 21 authorizations
issued by the Corps for surface coal mines in West Virginia. If the
ephemeral/intermittent/perennial stream delineations used by the Corps
to grant those authorizations are valid, they show that mine operators
can place large amounts of mine spoil in valley fills without impacting
perennial streams. See OVEC 4/23/04 Comments on Proposed SBZ Rule,
Attachment 7.
----------------------------------------------------------------------------------------------------------------
Water- Stream loss in linear feet
Mine operator/ Mine Name/ NWP 21 Issuance Date Valley shed -----------------------------------
Fill No. Acres Ephemeral Intermittent Perennial
----------------------------------------------------------------------------------------------------------------
Kingston Resources, Inc./ Horse Creek 4/1/2003 1 56 973 600 0
2 94 2916 500 0
3 36 1035 315 0
4 188 1247 2580 0
----------------------------------------------------------------------------------------------------------------
Horizon Resources, LLC/ Synergy 3/28/2003 1 14 0 0 0
2 13 0 0 0
3 121 700 1850 0
6 160 1837 1500 0
----------------------------------------------------------------------------------------------------------------
Martin Logan Coal Co./ Phoenix No. 3 5/27/2003 2 76 851 0 0
3 134 749 1290 0
4 106 2131 0 0
----------------------------------------------------------------------------------------------------------------
Hobet Mining, Inc./ Westridge 11/24/2003 1 158 n/a 1800 0
2 233 n/a 2000 0
----------------------------------------------------------------------------------------------------------------
Elk Run Coal Co./ West of Stollings 1/5/2004 B 150 310 2655 0
C 154 778 1662 0
D 56 600 0 0
E 124 360 1736 0
----------------------------------------------------------------------------------------------------------------
Independence Coal Co./ Edwight 1/28/2004 East 517 50 4300 0
West 497 0 0 0
----------------------------------------------------------------------------------------------------------------
Hobet Mining, Inc./ Hewitt Creek 2/4/2004 1 <141 1400 900 0
2 <141 1400 0 0
3 <141 650 1300 0
4 <141 1280 0 0
5 <141 850 0 0
6 <141 350 0 0
----------------------------------------------------------------------------------------------------------------
Martin Logan Coal Co./ Phoenix No. 4 Pending 1 180 670 3803 0
2 68 1779 0 0
3 58 1040 0 0
4 139 2240 0 0
5 226 1485 2300 0
6 182 2170 200 0
7 85 470 400 0
����������������������������������������������������������������������������������������������������������������
Cumulative Totals 32 fills 30321 31691 0
----------------------------------------------------------------------------------------------------------------
Thus, none of the 32 fills are in perennial streams, and thirteen
of them are only in ephemeral streams. Furthermore, nearly half of the
stream length filled is in the ephemeral zone. Even though we believe
that filling over 30,000 feet of ephemeral streams causes significant
environmental harm, this data clearly refutes OSM's claim that it is
impossible to mine without filling perennial streams, and also shows
that significant mining can occur without filling intermittent streams.
Since 59% to 80% of valley fills (depending on the state) are less
than 75 acres (MTM/VF PEIS, pp. III.K-41 to K-47), it is likely that
the majority of valley fills could be constructed without impacting
perennial streams. Furthermore, these valley fills were built or
approved before fill minimization requirements were being enforced, and
therefore probably understate the number of fills that could be built
without intersecting intermittent or perennial streams.
Even if the existing SBZ rule may cause a limited loss of central
Appalachia coal, that does not mean that there would be an overall
shortage of coal for the nation. Higher mining costs ``will result in
coal supplies originating from coal basins outside this EIS study area
where compliance can occur.'' MTM/VF PEIS, p. IV-I.1. In other words,
any coal not mined in Appalachia will be replaced by coal mined
elsewhere. So overall there will be adequate coal to meet demand and no
necessary reduction in overall coal production.
In addition, OSM fails to acknowledge in its rulemaking, unlike its
acknowledgment in the MTM/VF PEIS, that ``minimizing fills will to some
degree also affect mining costs.'' MTM/VF PEIS, p. IV-I-3. Indeed, all
SMCRA environmental standards have that effect. Consequently, the fact
that restrictions on mining in the SBZ will increase mining costs and
make some coal unrecoverable is not, in itself, a reason to reject
those restrictions. ``Where mitigation presents significant costs to
the applicant, the economic effect will likely be similar, but possibly
less pronounced, to the results of the absolute fill restriction
studies, inasmuch as mining methods that reduce the amount of excess
spoil (and consequently reduce the size of fills and the amount of
mitigation) will be selected.'' Id., p. IV.I-4. OSM has not summarily
rejected mitigation of fill impacts on the ground that it will reduce
the amount of coal recovered, even though that is likely. Consequently,
it is irrational to summarily eliminate all restrictive alternatives on
that basis.
2. There Is No Evidence that the Preferred Alternative
Would Reduce Environmental Impacts
In the DEIS, OSM claims that the preferred alternative, Alternative
1, would reduce the environmental impacts of the current SBZ rule
because: (1) the new excess spoil minimization rule would reduce the
footprints of the fills; and (2) the minimization analysis would result
in ``less adverse functional impacts.'' DEIS, p. 124. No evidence or
studies are presented to support these conclusions. In fact, the change
to the SBZ rule is likely to increase environmental harm, because most
mining activities that fill streams are being exempted from the rule.
This will encourage greater filling of streams, not less.
3. OSM Has No Rational Basis to Conclude that SBZs Are Not
BCTA
Section 515(b)(24) requires OSM to use the best technology
currently available (BTCA) to minimize disturbances from mining
activities on environmental resources. As OSM admits, the existing SBZ
rule ``manifest[s] an assumption that maintenance of an undisturbed
100-foot buffer around perennial and intermittent streams is the''
BTCA. 72 Fed. Reg. at 48902. OSM is now abandoning that assumption, and
reversing course, on the ground that ``maintenance of a buffer is
neither feasible nor appropriate because the activities inherently
involve placement of fill material in waters of the United States.''
Id. at 48892. Thus, OSM claims that, as a factual and technical matter,
stream buffer zones are impractical or impossible. However, OSM
provides no evidence or studies to support this assertion. In fact, as
we have shown above, the PEIS found that mining can feasibly continue
even if SBZs are maintained. Even if some mining would be reduced, that
is no reason to conclude, as a technical matter, that SBZs are
infeasible.
Furthermore, the overwhelming scientific evidence shows that
riparian buffer zones consisting of native vegetation communities are
the best method for stream protection from disturbances upslope such as
mining or logging. When the forests next to a stream are disturbed or
destroyed, the streams and aquatic life suffer. Studies show that
streams draining grasslands tend to downwaste and are both deeper and
narrower than those adjacent to forest regions. Without their
surrounding forests, stream runoff is faster, there are no significant
litter inputs including woody debris (which help in retention and
microbial uptake), and there is less surface area in stream bottoms for
secondary production. Furthermore, removing the surrounding forest and
changing the vegetation to grass changes the energy base of the natural
headwater stream in the Appalachians.\4\
---------------------------------------------------------------------------
\4\ These facts are supported by the comments submitted on this
proposed rule by aquatic scientists Pat Mulholland, et al.,and by the
following studies: Lowrance, R., R. Todd, J. Fail, Jr., O. Hendrickson,
Jr., and R Leonard. 1984. Riparian forests as nutrient filters in
agricultural watersheds. BioScience 34:374-377; Osborne, L. L. and D.
A. Kovacic. 1993. Riparian vegetated buffer strips in water-quality
restoration and stream management. Freshwater Biology 29:243-258;
Peterjohn, W. T. and D. L. Correll. 1984. Nutrient dynamics in an
agricultural watershed: observations of the role of the riparian
forest. Ecology 65:1466-1475; Meyer, Judy L., David L. Strayer, J.
Bruce Wallace, Sue L. Eggert, Gene S. Helfman, and Norman E. Leonard.
2007. The Contribution of Headwater Streams to Biodiversity in River
Networks. Journal of the American Water Resources Association (JAWRA)
43(1):86-103.
---------------------------------------------------------------------------
4. The DEIS' Analysis of Cumulative Effects Is Pathetically
Inadequate
OSM's analysis of the cumulative impacts of its proposal is
pathetic. It consumes a paltry two paragraphs. DEIS, p. 144-45. OSM
argues in one paragraph that no further analysis is necessary because
the cumulative impacts of surface coal mining were addressed in its
1979 and 1983 EISs on its SMCRA regulations. Id. at 145.
This argument is ludicrous. Those EISs are more than twenty years
old. CEQ guidance provides that an EIS should be supplemented if it is
more than five years old. CEQ, NEPA's Forty Most Asked Questions, No.
32, 46 Fed. Reg. 18026 (March 16, 1981). CEQ regulations require
supplemental environmental analysis when changed circumstances or
significant new information arises after an earlier NEPA evaluation is
made. 40 C.F.R. Sec. Sec. 1502.9(c)(1)(i), (ii). There is no question
that the scope and intensity of mining activities in Appalachia has
changed significantly since 1983. The 2005 PEIS states:
Increased public and government agency concern about MTM/VF
operations emerged in 1997 and 1998. It appeared that the
number of these types of operations had increased in recent
years in Appalachia, and that more and more valley fills were
being proposed/built.
. . . [A] comparison of the fills constructed in the period
1985-1989 with those constructed in 1995-1998 showed that the
average fill increased in size by 72 percent, and the average
length of stream impacted per fill increased by 224 percent.
PEIS, p. I-5. This PEIS is no substitute for a full analysis in the SBZ
EIS. OSM stated in the PEIS that ``[t]he stream buffer zone rule
proposal and other regulatory program changes were envisioned and
sanctioned by the settlement agreement and do not rely on this NEPA
document.'' PEIS, Response to Comments, p. 19.
OSM also argues that its regulations were, and continue to be,
environmentally beneficial because they require mitigation. DEIS, p.
145. However, merely requiring mitigation does not mean it will be
successful or effective. OSM cannot rationally conclude that mitigation
will offset the loss because federal agencies do not fully evaluate the
aquatic functions of streams before they are buried and, therefore, do
not know what to replace. OVEC, 479 F. Supp.2d at 646. Furthermore,
even if the assessment of lost stream functions were sufficient, OSM's
finding that mitigation will replace those functions is irrational
because OSM has no reasoned analysis of the effectiveness of
mitigation. OSM cannot simply assume that mitigation will eliminate
cumulative impacts. OVEC, 479 F. Supp.2d at 659.
In the second paragraph, OSM argues that ``all regions'' in the
U.S. have streams ``that are in poor and slightly impaired
conditions,'' caused mostly by ``natural and man-induced activities,''
that mining impacts involve mostly acid mine drainage, and that
analyses of mines' probable hydrologic consequences (PHC) will ``ensure
that no material damage resulting from changes in water quantity or
quality occur[s].'' DEIS, p. 145. These statements are gross
generalizations that completely ignore the government's own scientific
studies that it spent $5 million to obtain and that formed the basis
for the 2005 MTM/VF PEIS. OSM provides no factual basis for its
assertion that burying over a thousand miles of streams is comparable
to impaired streams in other parts of the country, or to existing acid
mine drainage problems in Appalachia. These statements reveal a
complete ignorance of the biology and importance of headwater streams,
the serious adverse effects of valley fills on downstream water
quality, and the failure of compensatory mitigation to offset the
aquatic functions of lost headwater streams. OSM's analysis of
cumulative impacts is both quantitatively and qualitatively pathetic.
Judge Chambers recent decision in the OVEC case examined the Corps'
analysis of cumulative effects for the four individual permits under
this standard. He found that the Corps' analysis was deficient:
The Corps does not explain how the cumulative destruction of
headwater streams already affected by mining in these water in
these watersheds will not contribute to an adverse impact on
aquatic resources. The Corps fails to ``articulate a
satisfactory explanation,'' including a ``rational
connection,'' between the facts found and the conclusion
reached. [citation omitted] Instead, the Corps recites the data
and declares that the cumulative impacts are not significant.
479 F. Supp.2d at 659. Here, OSM has done even less. It cites no data
whatsoever and declares that no material damage will occur to streams.
Nor it is enough that OSM has provided a quantitative estimate of
the number of valley fills and the number of miles of streams that they
have filled. 72 Fed. Reg. at 48891-92. Quantification of affected areas
is a necessary, but not a sufficient, analysis of cumulative effects
under NEPA. Klamath-Siskiyou Wildlands Center v. Bureau of Land
Management, 387 F.3d 989, 995 (9th Cir. 2004) (``A calculation of the
total number of acres to be harvested in the watershed is a necessary
component of a cumulative effects analysis, but it is not a sufficient
description of the actual environmental effects that can be expected
from logging those acres.'').
II. UNDER THE CLEAN WATER ACT, OSM MUST OBTAIN EPA CONCURRENCE FOR THE
FINAL RULE
SMCRA provides that regulations on environmental protection
standards cannot be approved by OSM unless it has ``obtained the
written concurrence'' of EPA ``with respect to those aspects'' of
federal regulations ``which relate to air or water quality standards
promulgated under the'' Clean Water and Clean Air Acts. 30 U.S.C. Sec.
1251(b). When it enacted this section, Congress was concerned about
direct conflicts between air or water quality standards, and it
believed that the EPA concurrence procedure would be sufficient to
address such conflicts. The 1977 House Report contains a section
entitled ``Relation of H.R. 2 to Other Laws'' that states, in relevant
part:
The committee felt that the requirement for the Secretary of the
Interior to obtain the concurrence of the Administrator of the
Environmental Protection Agency is necessary to insure that any
environmental requirement of this act is consistent with the
environmental programs and authorities of EPA and, in particular, those
programs authorized under the Clean Air Act, as amended, and the
Federal Water Pollution Control Act, as amended. Specifically, the
Secretary must obtain the Administrator's concurrence in the coal
surface mining regulations and requirements under the environmental
protection and State program approval provisions of the bill, as well
as the final approval of any State program. The EPA has been directed
by the Congress to insure the environmental well-being of the country.
EPA has established water quality standards, air quality standards, and
implementation and compliance requirements for the coal mining and
processing industry, and issues permits to the industry to insure
appropriate pollution abatement and environmental protection. The
committee concluded that because of the likeness of EPA's abatement
programs and the procedures, standards, and other requirements of this
bill, it is imperative that maximum coordination be required and that
any risk of duplication or conflict be minimized.
H. Rep. No. 218, 95th Cong., 1st Sess. 142 (1977).
The proposed SBZ clearly implicates the Clean Water Act. OSM has
deleted the ``adverse effect'' test and the requirement to meet water
quality standards in the existing rule. As a result, as we explain
below, the proposed rule will cause increased valley filling, leading
to significant degradation of waters of the United States, in violation
of EPA regulations under the CWA. Yet there is no indication in the
proposed rule that OSM has sought, or intends to seek, EPA's
concurrence. OSM must do so, or else the rule is invalid.
III. EPA CANNOT LEGALLY CONCUR WITH THE PROPOSED RULE BECAUSE IT WILL
CAUSE SIGNIFICANT DEGRADATION OF STREAMS, IN VIOLATION OF THE CWA
EPA cannot legally concur with the proposed rule because it
violates the Clean Water Act. Valley fills are permissible only if they
do not result in ``significant degradation'' to the aquatic ecosystem.
40 C.F.R. Sec. 230.10(c); PEIS, p. II.C-38. By eliminating the adverse
effects test in the existing rule, the proposed SBZ rule would
implicitly allow effects which are adverse and significant, as long as
they are minimized. Even if effects of valley fills are minimized, they
are still likely to be significant. Minimizing harm does not ensure its
insignificance. The proposed SBZ rule does not prevent significant harm
from occurring. Cf. Hazardous Waste Treatment Council v. EPA, 886 F.2d
355, 361 (D.C. Cir. 1989) (RCRA requirement to ``minimize'' threats to
human health and the environment does not require EPA to set treatment
standard at levels where no threat to human health and the environment
exists).
A. The DEIS Itself Finds that Valley Fills Cause Significant
Degradation
The evidence that valley fills cause significant degradation is
clear from the DEIS itself. Headwater streams ``serve a number of
important ecological functions including . . . improving water
quality.'' DEIS, p. 109. Valley fills have already permanently filled
over 700 miles of headwater streams in Appalachia, and are expected to
fill 367 more miles. Id. at 117. When streams are buried by valley
fills, ``those segments no longer exist and all stream functions are
lost.'' Id. This degradation must be deemed significant. There is no
evidence showing that buried streams can be recreated successfully
elsewhere on mined sites. The DEIS states that ``the state of the art
in creating smaller headwater streams has not reached the level of
reproducible success.'' Id. at 111. ``Attempts to reestablish the
functions of headwater streams on the groin ditches on the sides of
fills have achieved little success to date.'' Id. at 117. ``Past
efforts at compensatory mitigation have not achieved a condition of no-
net loss of stream area or functions.'' PEIS, p. III.D-17.
Consequently, this loss is permanent and irreversible.
Valley fills also cause significant harm to downstream water
quality. They increase downstream concentrations of sulfate, total
dissolved solids, total selenium, total calcium, total magnesium,
hardness, total manganese, dissolved manganese, specific conductance,
alkalinity, total potassium, acidity, and nitrite/nitrate. DEIS, p.
118. Sulfate doubled in 13 of 52 basins and quintupled in five basins.
Id. at 119. Valley fills cause water temperatures to be warmer in the
winter and cooler in the summer than for unmined areas. Id. at 120.
B. The Available Scientific Evidence Demonstrates that Surface Coal
Mining Activities Are Causing Significant Degradation of
Streams in Appalachia
Other available scientific evidence demonstrates that coal mining
activities and valley falls are causing significant degradation. In its
comments on the proposed 2002 NWP 21, EPA stated that coal mining and
valley fill operations in Appalachia cause ``significant ecological
damage to the headwater stream systems.'' 10/9/01 EPA Letter,
Enclosure, p. 8, Attachment 12. FWS similarly stated that it ``believes
that surface coal mines often adversely affect large areas of upland
and wetland habitat.'' 7/2/01 FWS Letter, pp. 1-2, Attachment 13. FWS
described the environmental impact of coal mines in Appalachia on
aquatic and terrestrial ecosystems as ``unmitigatable'' and
``unprecedented.'' 9/20/01 FWS Letter, p. 1, Attachment 14. FWS said it
knew ``of no other single type of activity, whether authorized by
individual or general permit, with such significant individual and
cumulative adverse environmental impacts as those currently authorized
by NWP 21.'' Id., p. 2. FWS described the consensus of scientists
working in the field that ``small first order streams form the heart
and soul of the functional stream ecosystem in . . . every watershed
that has been carefully studied. . . . Clearly, any discussion of
destroying even one first order stream is out of order. . . .'' Id., p.
4. ``These experts asserted that stream loss is unacceptable from a
biological standpoint, and that there is no scientific basis on which
to develop an acceptable loss threshold.'' Id., p. 5.
In addition, 43 ``senior aquatic scientists,'' including ``members
of the National Academy of Sciences and its scientific Boards,''
``president[s] of national scientific organizations, and leading
authors on the ecology, water quality, and biota of streams and
rivers,'' stated in their comments on the proposed 2002 NWP 21 that:
The available scientific evidence clearly demonstrates that
the length of headwater streams in the landscape has been
significantly reduced because of the mining and development
activities that have been permitted under this program. . . .
This loss of headwater streams has profoundly altered the
structure and function of stream networks, just as eliminating
fine roots from the root structure of a tree would reduce its
chances of survival.
10/5/01 Univ. of Georgia Comments, p. 1, Attachment 15. These
scientists supported their conclusion by citing and attaching thirty
articles in scientific journals. Id. In addition, in her recent
testimony in OVEC v. Bulen, Civil No. 3:05-784 (S.D.W.Va.), Dr.
Margaret Palmer, plaintiffs' expert on stream restoration, stated that
in terms of conservation priorities, headwater streams are ``at the top
of the list'' of areas that need to be preserved. Bulen Trial
Transcript (hereafter ``Bulen Tr.'') 6:102-03, Attachment 16.
1. Stream degradation is significant. The PEIS demonstrates that
significant degradation of the aquatic and terrestrial ecosystem in
Appalachia has likely occurred, and is continuing to occur. Significant
stream degradation caused by valley fill and mining activities is best
documented for watersheds in West Virginia. In OVEC v. Bulen, Civil No.
3:05-0784 (S.D.W.Va.), expert analysis of GIS data showed that present
and pending surface mining permit operations and valley fills
conservatively cover the following percentages of streams in these
watersheds:
------------------------------------------------------------------------
% first
% of total order
Watershed/Subwatershed streams streams
covered covered
------------------------------------------------------------------------
Upper Guyandotte 7.4 9.5
------------------------------------------------------------------------
Dingess Run 19.9 19.5
------------------------------------------------------------------------
Coal River 12.0 14.5
------------------------------------------------------------------------
Laurel Creek 28.0 37.3
------------------------------------------------------------------------
Upper Kanawha 7.9 10.2
------------------------------------------------------------------------
Cabin Creek-Headwaters 22.9 32.1
------------------------------------------------------------------------
Expert Report of Douglas P. Pflugh, May 16, 2006, Summary, p. 2,
Attachment 17. The Corps reviewed this data and found it to be ``very
reliable.'' Mullins Testimony, Bulen Tr. 3:202, Attachment 16. In the
headwaters of Spruce Fork in West Virginia, surface mine permits and
valley fills cover 35.5% of total stream length and an alarming 44% of
first order stream length. FEIS, Spruce Mine No. 1, p. 2-180 (September
2006), Attachment 18. In OVEC v. Bulen, Civil No. 3:05-0784
(S.D.W.Va.), plaintiffs' expert aquatic ecologist, Dr. Bruce Wallace,
testified in October 2006 that impacts of this magnitude were
``astounding,'' a ``danger signal,'' and meant lost headwater stream
functions in these areas. Wallace Testimony, Bulen Tr. 2:32-34,
Attachment 16. Plaintiffs' stream restoration expert, Dr. Margaret
Palmer, similarly testified that a loss of 29% of the watershed and 18%
of the first order streams in a watershed were ``incredibly
significant.'' Palmer Testimony, Bulen Tr. 2:134, Attachment 16. She
said that this loss was so huge that it was questionable whether the
stream could ever be restored. Id. at 2:135-36.
2. Water quality degradation is significant. In its June 16, 2006
comments on the Draft EIS for the Spruce No. 1 mine, EPA stated
``existing data from Spruce Fork indicates MTM/VF activities have
degraded streams to the point where they are considered impaired using
the West Virginia Stream Condition Index (WVSCI). Considering that
water leaving the mined and filled areas in Spruce Fork is degraded,
additional caution is necessary in future permitting and mitigation
requirements. The Final EIS should consider the strong and
statistically significant relationships found between biological
condition and these water quality parameters as summarized in Table 1
and supporting data. (see Attachment 2).'' FEIS, Spruce No. 1 Mine, p.
2-98, Attachment 18.
In addition, the PEIS stated that valley fills have the following
adverse effects on downstream waters:
Stream chemistry showed increased mineralization and a shift
in macroinvertebrate assemblages from pollution-intolerant to
pollution-tolerant species. Water temperatures from valley fill
sites exhibited lower daily fluctuations and less seasonal
variation than water temperatures from reference sites. . . .
The EPA Water Chemistry Report found elevated concentrations
of sulfate, total and dissolved solids, conductivity, selenium
and several other analytes in stream water at sampling stations
below mined/filled sites.
PEIS, p. IV.B-4. In fact, the EPA Water Chemistry Report found that
conductivity was ``clearly impacted by MTM/VF [mountaintop/valley fill]
mining.'' PEIS, App. D, EPA 2002b, p. 2. ``Conductivity at Filled sites
can be 100 times greater than that at Unmined sites.'' Id. at 45.
``Unmined sites have a consistently low conductivity no matter what the
flow. Filled sites have a broad range of conductivity much higher than
Unmined sites indicating that MTM/VF mining increases specific
conductance in streams.'' Id. at 46. Conductivity is generally five to
nine times greater below valley fills than below unmined sites. Wallace
Testimony, Bulen Tr. 2:34-35, Attachment 16. Sulfates were 41 times
greater; calcium, magnesium and hardnesss were 21 times greater; total
dissolved solids were 16 times greater, and selenium was 7.8 times
greater. Id. at 2:35. These chemical changes have a significant effect
on the aquatic ecosystem. Id. Dr. Wallace called them a ``witches'
brew.'' Id. at 2:37, 95. EPA found that ``[t]he highest values [for
conductivity] are consistently at the Sediment Control Structure (MT-
24) which is on a reclaimed MTM/VF mine.'' PEIS, App. D, EPA 2002b, p.
45. The PEIS also found that mining impacts on the nutrient cycling
function of headwaters streams ``are of great concern.'' PEIS, App. I,
p. 74.
Coal mining and valley fills in WV are also causing significant
degradation of the aquatic environment due to selenium contamination.
OSM's DEIS confines its discussion of selenium to the following four
sentences:
Selenium concentrations from the ``filled'' category sites
were found to exceed AWQC for selenium at most (13 of 15) sites
in this category. No other site categories had violations of
the selenium limit.
In the USEPA (2002a) stream chemistry study in West Virginia,
selenium was found at elevated levels below several streams
where excess spoil fills were constructed. Elevated selenium
concentrations may impact aquatic biota and possibly higher
order organisms that feed on aquatic organisms [EPA 2003,
p.III.D-7].
DEIS, pp. 118, 132. This is grossly inadequate, and omits reference to
newer and more disturbing scientific data.
Subsequent to the issuance of the PEIS, the FWS released a study
that confirms the seriousness of the selenium problem. During the
spring and summer of 2003, FWS conducted a survey of selenium in fish,
water, and sediments in streams in southern West Virginia. In a January
16, 2004 letter to the West Virginia Department of Environmental
Protection (Attachment 19), the Supervisor of FWS' Pennsylvania Field
Office, David Densmore, concludes that:
Selenium was present in all fish samples.
Selenium concentrations in fish in three watersheds exceeded
the toxic effect threshold level for whole fish.
Selenium is bioavailable in West Virginia streams, and
violations of the EPA selenium water quality criterion may
result in selenium concentrations in fish that could adversely
affect fish reproduction.
In some cases, fish tissue concentrations were near levels
believed to pose a risk to fish-eating birds.
Fish tissue from Sugartree Branch and Stanley Fork contained selenium
ranging from 4.13 ppm to 6.85 ppm, which are above Lemly's 4 ppm toxic
effect threshold. July 16, 2004 Letter from Chapman to Mullins re:
Phoenix No. 4 Surface Mine, p. 11, Attachment 20. FWS has also stated
that the total number of fish species was dramatically higher in
unmined streams than in either streams with valley fills and no
selenium or streams with valley fills and detectable selenium. Id.
In November 2005, WVDEP began a fish tissue study of the impacts of
selenium downstream from areas where high selenium coal is being mined.
WVDEP's preliminary findings indicate significant bioaccumulation of
selenium in downstream lakes and streams (April 28, 2006 powerpoint
presentation: DEP Selenium Study, Background and Progress, available at
www.dep.state.wv.us/item.cfm?ssid=11&ss1id=747, Attachment 21):
------------------------------------------------------------------------
Avg. Water Average
Stream Location Column SE Fish Tissue
(ppb) Se (ppm)
------------------------------------------------------------------------
Beech Creek Logan 11.0 10.7
County, WV
------------------------------------------------------------------------
Pond Fork Near Bob 1.8 3.8
White, WV
------------------------------------------------------------------------
White Oak Creek Near Orgas, 15.3 5.7
WV
------------------------------------------------------------------------
Seng Creek Garrison, WV 34.0 8.6
------------------------------------------------------------------------
Hughes Fork Near Dixie, 5.6 10.1
WV
------------------------------------------------------------------------
Upper Mud River Reservoir Lincoln 3.9 33.9
County, WV
------------------------------------------------------------------------
The levels found at these sites greatly exceed levels where toxic
effects in sensitive species begin to occur, which is 4 ppm. See A.
Dennis Lemly, ``Selenium in Aquatic Ecosystems: A Guide for Hazard
Evaluation and Water Quality Criteria,'' Springer 2002, p. 31,
Attachment 22. In fact, the fish tissue selenium level in the Upper Mud
River Reservoir, which is a lake downstream from the Hobet 21 mining
complex, exceeds this threshold by 850%.
In general, ``[t]he most widespread human-caused sources of
selenium mobilization and introduction into aquatic ecosystems in the
U.S. today are the extraction and utilization of coal for generation of
electric power and the irrigation of high-selenium soils for
agricultural production.'' Bryant, G., McPhilliamy, S., and Childers,
H., 2002, A survey of the water quality of streams in the primary
region of mountaintop / valley fill coal mining, October 1999 to
January 2001, in PEIS, App. D, Stream chemistry final report, p. 74.
``[I]n the region MTM/VF mining, the coals can contain an average of 4
ppm of selenium, normal soils can average 0.2 ppm, and the allowable
limits in the streams are 5 ug/L (0.005 ppm). Disturbing coal and soils
during MTM/VF mining could be expected to result in violations of the
stream limit for selenium.'' Id.
FWS states in its comment letter on the Hollow Mountain project,
``The Service believes that it is unlikely that toxic materials can be
isolated indefinitely from weathering and in the long-term there will
likely be leaching of toxic materials.'' July 9, 2004 FWS Letter to
ACOE, p. 3, Attachment 23. Further, it is clear that prevention is key
in controlling selenium contamination of surface water. Dr. A. Dennis
Lemly stated in a January 5, 2004, white paper on selenium issues in
West Virginia:
The lessons from Belews Lake, supported by over two decades
of research findings from many other locations throughout North
America (Lemly 1997b, 1999, 2002b; Skorupa 1998a, Hamilton
2004), underscores the need to take a preventive approach to
selenium pollution rather than attempting to deal with it after
contamination has taken place. With respect to coal mining this
means pre-mine assessment. Failure to adopt this approach can
only worsen the selenium pollution and associated ecological
risks that have emerged in West Virginia.
Attachment 24, p. 2. The risk of significant ecological harm from
selenium contamination in the West Virginia coal fields is real and has
been confirmed not only by the PEIS but also by studies conducted by
the FWS. ``Our results show that selenium present in surface waters in
southern West Virginia is bioavailable, and that violations of the EPA
selenium water quality criterion may result in selenium concentrations
in fish that could adversely affect fish reproduction. In some cases
fish tissue concentrations were near levels believed to pose a risk to
fish-eating birds.'' Id., pp. 2-3. More recently, USGS sampling of fish
tissue in April 2006 from five bluegill fish taken from the upper Mud
River Reservoir near Palermo, WV showed concentrations of 15.1 to 40.1
ug/g in whole body samples and 21.4 to 34.9 ug/g in ovary samples.
Attachment 30.
These scientific studies demonstrate that selenium concentrations
are already occurring from existing valley fills and are causing
significant degradation of water quality. ``If mining, permitting and
mitigation trends stay the same, an additional thousand miles of direct
impacts could occur in the next ten years.'' MTM/VF PEIS, App. I, pp.
66-67. The proposed rule does nothing to address the selenium issue and
would permit more significant degradation to occur, and therefore would
violate the CWA.
3. Water quantity and community impacts are significant. OSM has
also failed to consider the major adverse effects of valley fills on
hydrology. A USGS study found that runoff is 1.75 times greater per
unit surface area from mined than unmined catchments. PEIS, App. H, p.
3. Even worse, EPA has found that ``base flows of streams with valley
fills are 6 to 7 times greater than the base flows of unmined areas.''
PEIS, App. D, 2002 EPA Water Chemistry Study, p. 86. This means not
only that areas downstream from valley fills will experience much
higher flows, but also higher loadings of the excessive and harmful
chemicals mentioned above. These increased flows have real and
devastating impacts on local communities, particularly during more
extreme storm events. In addition, mines cause large amounts of noise,
blasting impacts and community disruption. PEIS, p. IV.H-3 (noise and
vibration caused by mountaintop mining near populated areas generate
``relatively high numbers'' of complaints). The DEIS fails to consider
these hydrological and community effects.
4. Degradation of aquatic diversity is significant. Headwater
streams can be responsible for 90 percent of the biodiversity in an
entire watershed. Palmer Testimony, Bulen Tr. 2:176. Valley fills
reduce biodiversity by favoring pollutant-tolerant macroinvertebrate
species over pollution-intolerant species. The coal industry's own
water quality expert admitted in OVEC v. Bulen that valley fills cause
a dramatic reduction in mayfly taxa in downstream waters, with a shift
to more pollution-tolerant taxa. Kirk Testimony, Bulen Tr. 5:88. Dr.
Donald Cherry, an expert in aquatic ecotoxicology from Virginia Tech
(Bulen Tr. 5:111), testified in OVEC v. Bulen about his research
involving water discharges from valley fills in southern West Virginia.
Bulen Tr. 5:114-16. His study found a shift in the benthic community to
a more tolerant type. Id. at 5:120, 125, 165-66. He agreed that the
created streams would not be the functional equivalent of the streams
buried by valley fills. Id. at 5:145-46. Indeed, he rated the streams
below valley fills as ``terrible'' with scores well below the score for
the reference stream. Id. at 5:152-53. Those streams showed
``significant stress.'' Id. at 5:174. Dr. Wallace stated that there is
a well-established correlation between conductivity levels and the loss
of sensitive benthic organisms. Wallace Testimony, Bulen Tr. 6:31-36.
High conductivity is contributing to major problems with benthic
invertebrates. Id. Some of the worst conditions were found below fill
sites. Id.
The loss of biodiversity from this loss of benthic taxa is
significant. Id. at 6:67-68. Other organisms cannot make up for this
loss of biodiversity because they serve different functions. Palmer
Testimony, Bulen Tr. 6:103-06. Different species are not necessarily
interchangeable. Id. The functions of filled first and second-order
headwater streams cannot be replaced in the larger order streams
downstream. Wallace Testimony, Bulen Tr. 6:41. Those functions include
nutrient retention, water purification, and energy production
functions. Id. at 6:43-47; Palmer Testimony, Bulen Tr. 6:101-02.
The only significant vertebrate animal in headwater streams is the
salamander. Wallace Testimony, Bulen Tr. 1:258. The Central and
Southern Appalachians contain the greatest abundance of species of
salamanders in the world. Id. at 1:242, 6:39. Salamanders are being
buried by valley fills and not replaced downstream. Id. at 6:40; Cherry
testimony, Bulen Tr. 5:166-67. Forest loss associated with mountaintop
mining and valley fills has the potential to adversely impact over 1.2
billion salamanders, or 3.4% of the entire four-state population in
Appalachia. PEIS, App. I, pp. 92-93.
According to the PEIS, from 1992 through 2002, mountaintop removal
mining and associated valley fills in Appalachian have destroyed
380,547 acres of forest (an area almost ten times larger than the
District of Columbia). PEIS, pp. III.D-2, IV.C.1. If current trends
continue, that amount will double by 2012. Accordingly, in its June 16,
2006 comments on Spruce Mine No. 1, EPA stated that, ``[o]f the largely
forested mountaintop mining study area, the Final PEIS estimated that
approximately 761,094 acres have been or may be affected by recent and
future (1992-2012) mountaintop mining. To date, these impacts have not
been successfully mitigated, resulting in the impairment of significant
natural resources at the watershed level.'' FEIS, Spruce Mine No. 1,
pp. 2-64 to 2-65. In addition, the cumulative effects of past, present
and anticipated surface mines in individual watersheds are even
greater. For example, in the Coal River watershed, mining activities
cumulatively impact 12% of that area, or 72,969 out of 570,713 acres.
OVEC v. Bulen, Expert Report of Douglas P. Pflugh, May 16, 2006,
Summary, p. 1, Attachment 17.
This forest destruction is profound and permanent because ``unlike
traditional logging activities associated with management of hardwood
forest, when mining occurs, the tree, stump, root, and growth medium
supporting the forest are disrupted and removed in their entirety.''
PEIS, p. IV.C-1. Mountaintop mining causes ``fundamental changes to the
terrestrial environment,'' and ``significantly affect[s] the landscape
mosaic,'' with post-mining conditions ``drastically different'' from
pre-mining conditions. Id., App. I, pp. v, 23, 93. One recent study has
found that ``[a]t this point in time, reestablishment of forest on
these postmining sites appears questionable. Neither mountaintop
removal sites nor the contour mines support a vegetation composition or
structure that is likely to resemble regional forests.'' Edmonds and
Loucks, ``Woody Establishment Patterns Following Mountaintop Removal in
the Coal River Valley,'' available at www.mcrcc.osmre.gov/PDF/Forums/
Reforestation/Poster/P-1.pdf, Attachment 25.
Mining impacts to habitat of interior forest bird species could
have ``extreme ecological significance.'' PEIS, App. I, p. 90. A study
of cerulean warbler habitat changes due to mountaintop removal mining
stated, ``[p]reference for ridges suggests that MTMVF may have a
greater impact on Cerulean Warbler populations than other sources of
forest fragmentation since ridges are removed in this mining process.
Generally, our data indicate that Cerulean Warblers are negatively
affected by mountaintop mining from loss of forested habitat,
particularly ridgetops, and from degradation of remaining forests (as
evidenced by lower territory density in fragmented forests and lower
territory density closer to mine edges).'' Weakland and Wood,
``Cerulean Warbler (Dendroica Cerulea) Microhabitat and Landscape-level
Habitat Characteristics in Southern West Virginia in Relation to
Mountaintop Mining/Valley Fills,'' Final Project Report, December 2002,
p. 1, Attachment 26. Mining could impact 244 terrestrial species. PEIS,
App. I, pp. 86. The loss of the genetic diversity of these affected
species ``would have a disproportionately large impact on the total
aquatic genetic diversity of the nation.'' Id., App. I, p. 78.
FWS has described the impacts of MTM/VFs on forest loss and
fragmentation in its comments on the Phoenix 4 Mine in West Virginia:
Habitat changes will occur in the study area and these
changes will involve a shift from forest dominated landscape to
a fragmented landscape with considerably more mining lands and
eventually grassland habitat. This shift should lead to a shift
in the floral and faunal components of the ecosystem. For
example, dry grassland species will dominate the once post-mine
and forest harvested sites. This will result in an overall
reduction in the native woody flora as well as a reduction in
the spring herbs and other vegetative components characteristic
to the study area.
Wildlife shifts will include a shift from forest to grassland
species. The abundance of grassland birds will likely increase
while many forest interior, neotropical migrant species will
suffer losses in terms of number. There will likely be an
increase in game species such as whitetail deer and turkey due
to an increase in grasslands and diversification of the
habitats. The herpetofauna will likely undergo a shift from
mesic favoring salamander dominated communities along the
riparian corridors of the small headwater streams and in the
litter of the forest floor to a snake dominated grassland
fauna. Two species, short-tailed shrew (Blarina brevicauda) and
eastern chipmunk (Tamias striatus), were more abundant in
intact forest than fragmented forest.
Populations of forest birds will be detrimentally impacted by
loss and fragmentation of mature forest habitat in the mixed
mesophytic forest region, which has the highest bird diversity
in forested habitats in the eastern Untied States.
Fragmentation-sensitive species such as the cerulean warbler,
Louisiana water thrush (Seiurus motacilla), worm-eating warbler
(Helmitheros vermivorous), black-and-white warbler (Mniotilta
varia), and yellow-throated vireo (Vireo falvifrons) will
likely be negatively impacted as forested habitat is lost and
fragmented from mountaintop/valley fill mining.
The cerulean warbler, with the highest conservation rating
(this species is listed as Action II by Partner-In-Flight
(PFI)--in need of immediate management or policy rangewide) was
found to be positively related to percent slope and percent
canopy from >6-12 m. Based on habitat preference, it is
reasonable to conclude that continued mountaintop/valley fill
mining will negatively impact cerulean warbler abundance in
southwestern West Virginia.
. . . mountaintop/valley fill mining has become a major
method of vast landscape change where golden-winged and
cerulean warblers may disappear with the changing proportion of
mature forest to cleared land. The highest priority bird
species other than the golden-winged warbler (Vermivora
chrysoptera), in this region are forest-breeder (cerulean
warbler, worm-eating warbler, and Louisiana waterthrush) whose
center of global importance is along the Appalachian ridges
most affected by mountain/valley fill mining.
Attachment 20, pp. 4-5. The FWS continues by commenting on a statement
commonly made in mining environmental assessments:
It is stated in the EID that `bird and amphibian species
richness increased significantly on more fragmented stands . .
. and in study plots containing more edge.' This is true but
there is failure to acknowledge that the increased richness is
achieved by adding widespread generalist species that are
taking over most of the landscapes, and the sensitive forest
species are negatively affected. This is a common and
misleading application of fragmentation and edge studies. This
flaw is not that fragmentation will increase diversity; the
flaw is that increased diversity is not necessarily desirable,
especially if it comes at the expense of a sensitive species
such as the cerulean warbler.
Attachment 20, pp. 5-6.
The EPA and FWS scientists who commented on the draft PEIS agreed
that significant degradation is occurring. An EPA scientist stated
that:
EPA's studies and other studies have found that the strongest
and most significant correlations are between biological
condition and conductivity. We do know that the stream segments
downstream of some of the fills are impaired, and we believe
the impairments are due to water chemistry changes, based on
the strong correlations.
12/20/02 Comments by EPA Wheeling Staff, Attachment 27. A FWS scientist
objected to the ``no significant degradation'' statement in that draft
PEIS (p. II.D-9), stating that ``If impaired aquatic life, and selenium
above water quality standards, resulting in streams being placed on the
303(d) list don't constitute significant degradation, what would?'' 4/
21/03 Rider email, attached file: chIVcomments.wpd, p. 2, Attachment
28.
5. OSM's DEIS Evades Its Obligation to Analyze Significant
Degradation. OSM tries to avoid the significant degradation issue by
arguing that the proposed rule would not make the current situation
worse. It claims it ``would not anticipate a major shift in on-the-
ground consequences from any of the alternatives.'' DEIS, p. 121.
Similarly, it states that the alternatives ``would cause no discernable
changes to the direct stream impact trend.'' Id. at 124. OSM repeatedly
states that it ``anticipates that the proposed regulatory language
changes to the stream buffer zone rule would essentially be `impact
neutral.''' Id. at 126-27, 128, 131, 133, 135, 142.
That is not enough to satisfy the ``no significant degradation''
requirement in 40 C.F.R. Sec. 230.10(c). OSM assumes it only has to
assess the change in impacts between the status quo and the proposed
rule. However, OSM must determine whether significant degradation is
already occurring and is likely to continue if activities are
maintained at the current pace.
OSM's proposed rules do not have adequate procedural mechanisms to
ensure that such degradation does not occur. OSM's proposed rules that
summarize the relationship between SMCRA permitting actions and Clean
Water Act requirements merely require the applicant to identify the
authorizations it needs under the CWA and the steps it has taken or
will take to obtain them. 72 Fed. Reg. at 48901. That procedural step
does nothing to ensure that significant degradation is assessed or
avoided. Nor will the parallel processing of CWA Sec. 404 permits
ensure that significant degradation does not occur, since the Corps
takes the position that it need not assess the SMCRA-related impacts of
mining activities on streams. 72 Fed. Reg. at 11115 (``Impacts
associated with surface coal mining and reclamation operations are
appropriately addressed by the Office of Surface Mining or the
appropriate state agency.''). Furthermore, Sec. 402 discharge permits
for mining operation only cover discharges from downstream sediment
ponds and do not address the permanent loss of stream functions from
the filling of headwater streams.
OSM's procedural mechanisms to avoid significant degradation are
also inadequate because OSM is removing the existing requirement for a
finding that the activity ``will not cause or contribute to the
violation of applicable State or Federal water quality standards and
will not adversely affect the water quantity and quality or other
environmental resources of the stream.'' 72 Fed. Reg. at 48902. By
removing this requirement, OSM will allow activities that can cause
such violations or adverse water quality effects without any analysis
of their propensity to do so. OSM also specifically disavows any effort
to ``pass judgment on . . . the adequacy of the steps that the
applicant proposes to take'' to comply with the CWA. Id. OSM would
intentionally blind itself to the potential, indeed the likelihood, of
significant degradation. OSM's ``minimization'' standard is completely
untethered to any analysis or measurement of actual adverse effects.
Indeed, OSM asserts that ``the appropriate standard is minimization of
adverse impacts . . ., not absolute avoidance of all adverse effects.''
Id. at 48902-03 (emphasis in original). See id. at 48906 (SMCRA
establishes a minimization standard rather than an absolute `will not
adversely affect' standard''). ``[S]ome adverse effects . . . are
unavoidable . . .'' Id. at 48903. OSM cannot read the word ``minimize''
as a license to allow some unknown but potentially significant adverse
environmental effects, so long as those effects are minimized.
OSM attempts to finesse CWA requirements by including a catch-all
provision that ``discharges of water from disturbed areas `be made in
compliance with all applicable State and Federal water quality laws and
regulations.''' Id. at 48903. This is merely a generalized requirement
that the project applicant comply with the law. It does nothing to
monitor, assess, measure or determine whether significant degradation
is occurring or will occur. It is therefore wholly inadequate to
satisfy OSM's independent and mandatory duty to ensure that its actions
do not supersede, amend, modify or repeal the CWA. 30 U.S.C. Sec.
1292(a)(3).
OSM's procedures are also insufficient to ensure CWA compliance
because its standard for stream restoration does not meet CWA
standards. Stream channel diversions are subject to Sec. 404 of the
CWA because they cause discharges of fill material into streams. In
order to decide whether discharges will cause or contribute to
significant degradation of the affected streams, the Sec. 404(b)(1)
Guidelines require a determination of ``the nature and degree of effect
that the proposed discharge will have, both individually and
cumulatively, on the structure and function of the aquatic ecosystem
and organisms.'' 40 C.F.R. Sec. 230.11(e) (emphasis added). According
to the Corps' May 7, 2004 guidance on ``Mitigation for Impacts to
Aquatic Resources from Surface Coal Mining,'' ``[t]he Clean Water Act,
and the Corps implementing regulations and policies, requires that
compensatory mitigation projects replace aquatic functions lost as a
result of authorized activities.'' However, OSM has proposed a
performance standard for restoration after stream diversions that does
not require restoration of aquatic functions, and instead focuses only
on stream structure. OSM would only require that restoration:
be designed and constructed using natural channel design
techniques so as to restore or approximate the premining
characteristics of the original stream channel, including the
natural riparian vegetation and the natural hydrological
characteristics of the original stream, to promote the recovery
and enhancement of the aquatic habitat and to minimize adverse
alteration of stream channels on and off the site, including
channel deepening and enlargement, to the extent possible.
72 Fed. Reg. at 48906. Thus, this standard focuses on restoring stream
structure and merely ``promoting'' recovery of aquatic habitat. It does
not require restoration of the lost aquatic functions. As the Court
recently found in OVEC v. U.S. Army Corps of Engineers, 479 F. Supp.2d
607, 635 (S.D. W.Va. 2007), the federal government must make ``a full
assessment of the streams' ecological functions before [it] may
conclude that the structure and function of the resources buried by the
valley fills is offset by the imposed mitigation measures.'' OSM fails
to explain how it would make this assessment or how it would replace
lost aquatic functions. Without such an explanation or assessment, OSM
cannot rationally conclude that its methodology would prevent or avoid
a significant degradation of aquatic functions.
C. The Proposed Rule Will Result in Significant Degradation of the
Stream Segments Between the Toes of the Valley Fills and the
Sediment Pond Embankments, Which Are ``Waters of the United
States''
OSM's proposed rule would only require sedimentation ponds to be
constructed ``as close to the toes of the fill as practicable.'' 72
Fed. Reg. at 48909. This will always leave an unprotected stream
segment between the mining activity (the toe of the fill) and the
downstream outfall of the sedimentation pond. OSM takes the position
that this segment is not a water of the United States and instead falls
under the ``waste treatment system'' exclusion of an EPA regulation.
OSM relies on a March 1, 2006 letter from EPA to support its position.
Id. However, on June 13, 2007, a federal court rejected that EPA letter
and held that the ``waste treatment system'' exclusion is inapplicable
to the stream segments below the valley fills. OVEC v. U.S. Army Corps
of Engineers, 2007 WL 2200686 (S.D. W.Va. 2007). Consequently, OSM has
no legal basis for exempting these segments from the requirement to
obtain a NPDES permit for discharges of pollutants into waters of the
United States. Without such a permit and treatment of the discharges,
these discharges are extremely likely to cause significant degradation.
Indeed, the whole purpose of the downstream sedimentation pond is to
intercept and collect that pollution.
IV. THE EXISTING SBZ RULE IS CONSISTENT WITH THE CWA
OSM has taken the position that applying the plain language of the
existing SBZ to prohibit fills in intermittent and perennial streams
would be inconsistent with existing CWA requirements allowing valley
fills, and would therefore violate section 702 of SMCRA, 30 U.S.C.
Sec. 1292(a)(2), which provides that SMCRA does not supercede, amend
or repeal the CWA. 69 Fed. Reg. at 1044.
EPA's Office of Water expressed concern in December, 2002 that this
argument in the MTM/VF draft PEIS is incorrect, commenting that:
There are fairly sweeping legal conclusions here that the
stream buffer zone rule could not be used to determine
allowable stream segments for filling because doing so would
supercede the CWA, something [C]ongress precluded in SMCRA. The
lawyers need to look at this more closely. I'm uncomfortable
with the breadth of this argument...
1/7/03 Neugeboren e-mail, OGC water law office comments, p. 1,
Attachment 29.
Furthermore, OSM's position is directly inconsistent with the
position that it took in the Bragg litigation. In its brief in the
Fourth Circuit, the United States stated, on behalf of OSM and other
federal agencies:
WVDEP has argued that because SMCRA cannot supersede, amend,
modify, or repeal the CWA, SMCRA cannot be construed to
prohibit any activity that would be allowed by the CWA. That
argument is without merit. ... SMCRA section 702 provides
merely that SMCRA does not alter the existing regulatory
schemes adopted by Congress in the CWA and other environmental
statutes. ...
When Congress has intended that one statute should take
precedence over another statute in the regulation of a
particular activity, it has done so with language very
different and much clearer than SMCRA section 702. ...
While WVDEP has asserted that it would create an
impermissible statutory ``conflict'' to read the buffer zone
rule to establish a stricter standard than that established by
the 404(b)(1) guidelines, such a statutory construction does
not create any such ``conflict'' as that term is understood in
the law. As the Supreme Court has held, two statutes can be
said to conflict only when it is impossible to comply with
both. See Freightliner Corp. v. Myrick, 514 U.S. 280, 287
(1995). No such conflict arises if SMCRA is construed to
prohibit some activities that would be authorized by the CWA,
since it is possible to comply with both statutes by engaging
in only those activities authorized by both statutes.
Where an activity is regulated under the CWA and SMCRA--i.e.,
a surface mining activity that involves the discharge of
pollutants from point sources into U.S. waters--regulation of
the activity is governed by the usual principles that courts
apply to reconcile overlapping statutes. Under those
principles, ``when two statutes are capable of co-existence, it
is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as
effective. `When there are two acts upon the same subject, the
rule is to give effect to both if possible.''' Morton v.
Mancari, 417 U.S. 535, 551 (1974) (quoting United States v.
Borden Co., 308 U.S. 188, 198 (1939)). See also 2A Sutherland
Statutory Construction Sec. 51.05 (4th ed. 1984). An activity
governed by both the CWA and SMCRA must therefore satisfy the
requirements of both statutes.
U.S. Br. 45-49, Attachment 1. Consequently, the existing SBZ rule does
not violate section 702, and there is no need to revise the rule to
address OSM's presumed violation of that section.
XI. OSM'S DELETION OF THE REQUIREMENT THAT ACTIVITIES THAT DISTURB THE
SBZ MUST COMPLY WITH WATER QUALITY STANDARDS IS AN ILLEGAL ATTEMPT TO
EXEMPT ACTIVITIES FROM WATER QUALITY STANDARDS
OSM proposes to delete language in the existing rule that allows a
variance only if surface mining activities ``will not cause or
contribute to the violation of applicable State or Federal water
quality standards.'' 30 C.F.R. Sec. 816.57(a)(1). This change ``is
intended to avoid the possibility that the SBZ rule could be
misinterpreted to supersede the CWA by prohibiting an activity because
of water quality standards that would otherwise be authorized under the
CWA.'' 69 Fed. Reg. at 1043. OSM does not explain how such a conflict
could occur. As we have explained above, OSM rejected the notion of
such a conflict in its appellate brief in Bragg.
OSM's deletion of this language is even more perplexing in light of
its statement in the EA that ``this proposed change would be impact
neutral because, whether or not OSM regulations include this statement,
an applicant or operator would still be subject to applicable Federal
and State water quality requirements and enforcement concerning matters
such as effluent limits, in-stream water quality standards, storm water
run-off, and anti-degradation.'' EA, p. 23 (emphasis added). Thus, OSM
wants to throw away its cake and eat it too. It purports to delete a
requirement, yet advises the regulated community that it still applies.
Regardless of what OSM says, the effect of its proposal is to imply
that although water quality standards still apply, they will not be
violated if valley fills are minimized. Otherwise, there is no reason
to delete the language in the existing rule. As we show below, this
attempted exemption violates the Clean Water Act.
In CWA Sec. Sec. 301 and 404(t), Congress placed clear limitations
on the placement of fill material. Pursuant to those two sections,
Sec. 404 fills must comply with water quality standards. The placement
of waste material that eliminates substantial portions of waters of the
United States necessarily violates those standards, and therefore
violates the clear intent of Congress.
The CWA states in its very first sentence that ``[t]he objective of
this chapter is to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.'' 33 U.S.C. Sec. 1251
(emphasis added). The Conference Committee described this objective as
the ``sole purpose of the Act.'' 118 Cong. Rec. 33700 (1972). The
Senate Report stated that ``this legislation would clearly establish
that no one has the right to pollute and that pollution continues
because of technological limits, not because of any inherent rights to
use the nation's waterways for the purpose of disposing of wastes.'' S.
Rep. No. 414, 92nd Cong., 1st Sess., p. 42 (1971). ``The use of any
river, lake, stream or ocean as a waste treatment system is
unacceptable.'' Id. at 7. This section ``simply mean[s] that streams
and rivers are no longer to be considered part of the waste treatment
process.'' 118 Cong. Rec. 33693-94 (1972) (remarks of Sen. Muskie). The
Conference Committee stated that it ``expects [EPA and the Corps] to
move expeditiously to end the process of dumping dredged spoil in
water'' and to use land-based alternatives, because ``the economic
argument alone is not sufficient to override the environmental
requirements of fresh water lakes and streams.'' Id. at 33699.
To implement these statutory purposes, Congress wrote several
important provisions into the Act. In particular, ``Sec. 301(b)(1)(C)
expressly identifies the achievement of state water quality standards
as one of the Act's central objectives.'' Arkansas v. Oklahoma, 503
U.S. 91, 105-06 (1992). Section 301(b)(1)(C) is designed to ensure
compliance with these standards. PUD No. 1 v. Washington Dept. of
Ecology, 511 U.S. 700, 712-13 & n. 3 (1994). It provides that ``[i]n
order to carry out the objective of this Act there shall be achieved .
. . any . . . limitation . . . necessary to meet water quality
standards . . . established pursuant to any State law . . . or any
other Federal law or regulation . . .'' 33 U.S.C. Sec.
1311(b)(1)(C)(emphasis added).\3\ To carry out this statutory
requirement, EPA's 404(b)(1) Guidelines expressly require Sec. 404
discharges to comply with water quality standards. 40 C.F.R. Sec.
230.10(b)(1) (``No discharge of dredged or fill material shall be
permitted if it: (1) Causes or contributes, after consideration of
disposal site dilution and dispersion, to violations of any applicable
State water quality standard''). Thus, this is a ``Federal . . .
regulation'' that must be ``achieved'' under Sec. 301(b)(1)).
---------------------------------------------------------------------------
\3\ State water quality standards under the CWA must ``protect the
public health or welfare, enhance the quality of water and serve the
purposes of this chapter.'' Id., Sec. 1313(c)(2)(A).
---------------------------------------------------------------------------
Furthermore, Congress added Sec. 404(t) of the CWA in 1977 to
reaffirm that state water quality standards are applicable to Sec. 404
discharges. It provides that:
Nothing in this section shall preclude or deny the right of
any State or interstate agency to control the discharge of
dredged or fill material in any portion of the navigable waters
within the jurisdiction of such State, including any activity
of any Federal agency, and each such agency shall comply with
such State or interstate requirements both substantive and
procedural to control the discharge of dredged or fill material
to the same extent that any person is subject to those
requirements.
33 U.S.C. Sec. 1344(t) (emphasis added). The issuance of a SBZ
variance by OSM or a primacy state is covered by this section.
The legislative history of Sec. 404(t) fully supports this
conclusion. ``[U]nder section 404(t) and the amendments to section 313,
every Federal activity is subject to State and Federal procedural
requirements, including permits, as well as substantive requirements.''
123 Cong. Rec. 39189 (1977) (remarks of Sen. Muskie). The ``basic
thrust of subsection (t)'' is that ``[t]he Corps of Engineers, like any
other Federal agency, in performing maintenance dredging or undertaking
other activities, is to comply with State substantive and procedural
requirements.'' Id. The intent of the 1972 CWA ``was not to exempt the
U.S. Army Corps of Engineers or any other public or private agency from
State water quality standards . . .'' Id.
Valley fills that eliminate waters of the United States solely for
the purpose of waste disposal cannot meet water quality standards.
Water quality standards ``define[] the water quality goals of a water
body, or portion thereof, by designating the use or uses to be made of
the water and by setting criteria necessary to protect the uses.'' 40
C.F.R. Sec. 130.3 (emphasis added). See also 40 C.F.R. Sec. 130.2(d)
(water quality standards ``consist of a designated use or uses for the
waters of the United States and water quality criteria for such waters
based upon such uses'') (emphasis added). EPA's regulations on water
quality standards have provided since 1983 that ``[i]n no case shall a
State adopt waste transport or assimilation as a designated use for any
waters of the United States.'' 40 C.F.R. Sec. 131.10(a) (emphasis
added). EPA has stated that ``[a] basic policy of the standards program
throughout its history has been that the designation of a water body
for the purposes of waste transport or waste assimilation is
unacceptable.'' 48 Fed. Reg. 51400, 51408-09 (Nov. 8, 1983).
Valley fills that bury waters of the United States with millions of
tons of waste cannot achieve this water quality standard. As Judge
Haden has stated, ``valley fills are waste disposal projects so
enormous that, rather than the stream assimilating the waste, the waste
assimilates the stream.'' Bragg, 72 F. Supp. 2d at 662.
This violation of water quality standards is especially clear in
West Virginia. West Virginia has several ``designated uses'' for state
waterbodies. These uses include public water supply, propagation and
maintenance of fish and other aquatic life, and water contact
recreation, among others. See 46 C.S.R. Sec. 1-6. The state water
quality standards clearly state, however, that ``[w]aste assimilation
and transport are not recognized as designated uses.'' 46 C.S.R. Sec.
1-6.1.a. Also notable is that water quality standards do not allow
``[m]aterials in concentrations which are harmful, hazardous, or toxic
to man, animal or aquatic life.'' 46 C.S.R. Sec. 1-3.2.e. Furthermore,
``industrial wastes. . .cause pollution and are objectionable in all
waters of the state.'' 46 C.S.R. Sec. 1-3.1. In addition, no
``industrial wastes'' shall cause or materially contribute to
conditions such as ``distinctly visible. . .settleable solids,''
``deposits. . .on the bottom'' of streams, ``materials in
concentrations which are harmful, hazardous or toxic to. . . aquatic
life,'' adverse alterations of ``the integrity of the waters,'' or
``significant adverse impact to the chemical, physical, hydrologic or
biological components of aquatic ecosystems.'' 46 C.S.R. Sec. 1-3.2.
``Industrial wastes'' are defined as ``any. . .solid or other waste
substance. . .from or incidental to the development, processing or
recovery of any natural resources. . .'' W. Va. Code Sec. 22-11-3(12).
Accordingly, mining spoil is industrial waste pursuant to West Virginia
law. Additionally, the act of filling a stream segment with overburden
not only deposits waste and creates distinctly settleable solids, but
also destroys the stream segment. Placing mining waste in streams,
therefore, violates West Virginia water quality standards by materially
contributing to the adverse conditions set forth in 46 C.S.R. Sec. 1-
3.2. Neither can the fills comply with the antidegradation provisions
of the West Virginia water quality standards.
In short, although compliance with water quality standards is a
``central objective'' and requirement of the CWA, valley fills designed
solely to eliminate waters of the United States and replace them with
waste are incapable of such compliance. Evasion of a statute's core
mandate and purpose is not a reasonable interpretation, and therefore
is not entitled to deference. See, e.g., U.S. Army Engineer Center v.
FLRA, 762 F.2d 409, 414 (4th Cir. 1985) (``[C]ourts must not `rubber
stamp . . . administrative decisions that they deem inconsistent with a
statutory mandate or that frustrate the congressional policy underlying
a statute.''') (citation omitted); Whitman v. American Trucking
Ass'ns., 531 U.S. 457, 481 (2001) (reversing under Chevron step two an
EPA interpretation that ``goes beyond the limits of what is ambiguous
and contradicts what in our view is quite clear''); Natural Resources
Defense Council v. Daley, 209 F.3d 747, 753 (D.C. Cir. 2000) (rejecting
under Chevron step two an agency interpretation that ``diverges from
any realistic meaning'' of the statute).
OSM is trying to use its SMCRA rulemaking power illegally to
override the CWA. SMCRA does not preempt the Clean Water Act. Section
702(a)(3) of SMCRA provides that nothing therein ``shall be construed
as superseding, amending, modifying, or repealing the . . . Clean Water
Act, the State laws enacted pursuant thereto, or other Federal laws
relating to the preservation of water quality.'' 30 U.S.C. '
1292(a)(3). Thus, this savings clause specifically preserves the CWA's
prohibition against waste assimilation. If SMCRA were construed to
authorize waste assimilation in streams, it would not be consistent
with, and would be preempted by, the CWA.
For these reasons, the proposed rule should be withdrawn.
Sincerely,
James M. Hecker,
Public Justice.
Joseph M. Lovett,
Appalachian Center for the Economy
and the Environment.
Counsel for West Virginia Highlands Conservancy,
Sierra Club,
Ohio Valley Environmental Coalition,
Coal River Mountain Watch,
and Waterkeeper Alliance.
Steve Roady,
Earthjustice.
Attachments to WVHC, Sierra Club, Earthjustice, OVEC, CRMW, and
Waterkeeper Alliance Comments on Proposed Rule on Excess Spoil
Minimization/Stream Buffer Zones
1. Brief for the Federal Appellants, 4th Cir., No. 99-2683,
April 17, 2000 (excerpts).
2. Federal Appellants' Opposition to the Motion of the
Intervenor-Defendants to Strike the Brief of the Federal
Appellants and to Dismiss Appeal No. 99-2683, p. 2.
3. Letter dated April 17, 2000 from Kathrine Henry, Acting
Director, OSM and John D. Leshy, Solicitor, U.S. Department of
the Interior, to Michael C. Castle, Director, West Virginia
Division of Environmental Protection.
4. Preliminary Draft EIS on MTM/VF in Appalachia, pp. ES-6,
IV-1.
5. 3/25/02 Email from Cindy Tibbott re: Purpose & need/
alternatives write-ups, with Attachment: I. Purpose and Need
for Action and IV. Alternatives.
6. 6/14/02 Email from Mike Robinson re: Agenda and Handout
for 6/18 SES Issue, with Attachment: Mountaintop Mining/Valley
Fill Environmental Impact Statement, Senior Executive Issue
Resolution Meeting, Interior South Building Room 332, June 18,
2002, Proposed Agenda; Handout for SES/Steering Committee Issue
Resolution Meeting, Refresh on Teleconference Meeting
Decisions, May 21, 2002.
7. 10/5/01 Letter from J. Steven Griles to CEQ, OMB, EPA, COE
re: Mountaintop Mining/Valley Fills Issues.
8. 6/19/02 Email from William Hoffman re: out of office, with
Attachment: Proposed EIS Alternative Framework.
9. 6/26/02 Email from Mike Robinson re: Mock-up of Proposed
new Alternative Framework, with Attachment: Mountaintop Mining/
Valley Fill EIS Alternative Framework (June 26, 2002 v.).
10. Email dated September 20, 2002 from Mike Robinson, OSM,
re: Executive Conference Call Agenda--9/23/02, 9-10 am, with
Attachment: MTM/VF EIS Executive Meeting Agenda, September 23,
2002 Conference Call Letter dated July 12, 1999 from Michael V.
Shingleton, Asst. Chief Coldwater Management, West Virginia
Division of Natural Resources, to Tony Barnett, West Virginia
Division of Environmental Protection.
11. 8/15/02 Email from Gregory Peck re: Executive Committee
Discussion, with Attachment: Alternatives Matrix for Draft MTM/
VF PEIS.
12. October 9, 2001 Letter from EPA to U.S. Army Corps of
Engineers re NWP 21.
13. July 2, 2001 Letter from FWS to U.S. Army Corps of
Engineers re NWP 21.
14. Letter dated September 20, 2001, from Jeffrey K. Towner,
Field Supervisor, West Virginia Field Office, U.S. Fish and
Wildlife Service, to Colonel John D. Rivenburgh, District
Engineer, Huntington District, re: comments on 2002 NWPs.
15. Letter dated October 5, 2001 from The University of
Georgia, Institute of Ecology, to Headquarters, U.S. Army Corps
of Engineers, re: comments on 2002 NWPs.
16. Trial Transcript, OVEC v. Bulen, Civil No. 3:05-784
(S.D.W.Va.), October 2006 (excerpts).
17. Expert Report of Douglas P. Pflugh in OVEC v. Bulen, May
16, 2006, Summary, pp. 1-2.
18. FEIS, Spruce Mine No. 1, pp. 2-98, 2-180 (September
2006).
19. Letter dated January 16, 2004 from David Densmore, U.S.
Fish and Wildlife Service, to Allyn Turner, West Virginia
Department of Environmental Protection, re: Selenium Survey in
southern West Virginia streams.
20. Letter dated July 13, 2004 to Ginger Mullins, Chief,
Regulatory Branch, Huntington District, ACOE. From Thomas R.
Chapman, Field Supervisor, USFWS Elkins, WV, Field Office. Re:
Public Notice 200400604 and EID, Coal Mac, Inc., Phoenix No. 4
Surface Mine.
21. April 28, 2006 powerpoint presentation: DEP Selenium
Study, Background and Progress, available at.
22. A. Dennis Lemly, ``Selenium in Aquatic Ecosystems: A
Guide for Hazard Evaluation and Water Quality Criteria,''
Springer 2002, p. 31.
23. July 9, 2004 FWS Letter to U.S. Army Corps of Engineers
re: Hollow Mountain Project.
24. Report by A. Dennis Lemly, Ph.D, ``Recommendations for
Pre-Mine Assessment of Selenium Hazards Associated with Coal
Mining in West Virginia,'' January 5, 2004.
25. Edmonds and Loucks, ``Woody Establishment Patterns
Following Mountaintop Removal in the Coal River Valley,''
available at .
26. Weakland and Wood, ``Cerulean Warbler (Dendroica Cerulea)
Microhabitat and Landscape-level Habitat Characteristics in
Southern West Virginia in Relation to Mountaintop Mining/Valley
Fills,'' Final Project Report, December 2002, p. 1.
27. Email dated December 23, 2002 from John Forren, EPA
Region 3, re: Comments on Draft EIS for MTM/VF, with
Attachment: Comments on the Draft EIS for MTM/VF Coal Mining
(Dec 2002) from ESD, OEP, Wheeling Staff 12/20/02.
28. 4/21/03 Email from David Rider re: Ch 14 edits, with
Attachment: DEIS, Ch. IV.J., Threatened and Endangered Species,
pp. IV.J-1 to IV.J-2.
29. Email dated January 7, 2003 from Steve Neugeboren, EPA,
re: MTM legal issues, with Attachment: OGC water law office
comments on mountaintop mining EIS 12/26/02.
30. USGS, Water-Data Report 2006, 380930082033101 Upper Mud
River Reservoir near Palermo, WV.
______
National Mining Association,
Washington, DC, December 14, 2007.
Hon. Jeff Bingaman,
Chairman, Senate Energy and Natural Resources Committee, Senate Dirksen
304, Washington, DC.
Dear Mr. Chairman: Thank you for the opportunity to appear before
the Senate Committee on Energy and Natural Resources on November 13,
2007 to provide testimony on ``The Surface Mining Control and
Reclamation Act of 1977: Policy Issues Thirty Years Later.'' This
letter provides NMA's responses to the questions you posed after the
hearing.
Sincerely yours,
Harold P. Quinn, Jr.,
Senior Vice President and General Counsel.
Responses to Questions From Senator Bingaman
mountaintop removal
Question 1a. Please describe this technology. Are there alternative
means of mining this coal?
Answer. ``Mountaintop removal'' is one of several types of surface
mining operations in the mountainous terrain of Central Appalachia. As
a general matter, mountaintop removal is an adaptation of the mine
planning, sequencing and equipment for area mining used in other
regions to the steep slope mountainous terrain of Central Appalachia.
The Surface Mining Control and Reclamation Act (SMCRA), which contains
specific provisions governing mountaintop removal, describes these
operations as those that remove an entire coal seam or seams running
through the upper fraction of a mountain, ridge, or hill. These mines
obtain a variance from SMCRA's requirement to return the land to its
approximate original contour in order to create a more level or a
rolling topography that will support industrial, commercial,
residential, agriculture or public uses after mining. SMCRA Sec.
515(c)(2)-(3).
An assessment of whether economic and technologically feasible
alternatives to mountaintop removal operations are available for mining
coal in mountainous terrain requires an evaluation of many physical,
technological and economic factors including the topography, geology,
surface access, number and thickness of the coal seams, the depth of
the coal seams, capital and operating costs of different methods, and
the forecasted price of the product over the life of the mine.
It should be noted that as it relates to choices among different
surface mining methods, all surface mines in the mountainous terrain
generate excess spoil requiring permanent placement in excess spoil
fill structures commonly referred to as either valley or head-of-hollow
fills. This is true for surface mines that will restore the land to its
approximate original contour and those surface mines that qualify for a
variance in order to create land suitable to support various post
mining land uses in mountainous terrain.
In order to mine the coal by surface mining methods, the rock
strata, or overburden, overlying the coal seams must be broken up into
fragments and excavated. When rock is broken and moved, it expands, or
swells. As a result, the volume of material excavated is greater than
the volume of the overburden in its original location. The amount of
this expansion (referred to as the swell or bulking factor) can range
from 15 percent to 40 percent depending upon the geology. Surface mines
with approximate original contour variances will generate even more
excess spoil to accommodate the preparation of a final surface
configuration suitable to support certain post mining land uses. SMCRA
recognizes that in these situations all of the overburden removed in
the mining process cannot be returned to the mined area, and prescribes
requirements for the design, location and construction of excess spoil
fills. SMCRA Sec. 515(b)(22).
Question 1b. How much acreage has been impacted by mountaintop
removal and valley fill?
Answer. We do not have specific information about acres within
permits for mountaintop removal operations. However, according to a
multi-agency study, surface mines (mountaintop removal and other
surface mines with excess spoil fills) in eastern Kentucky, Tennessee,
Virginia, and southern West Virginia have occurred on approximately
400,000 acres over the last ten years--about 3 percent of the 12
million acres in the study area. Mountaintop Mining/Valley Fills in
Appalachia, Draft Programmatic Environmental Impact Statement (2003).
It is important to note that these lands are reclaimed and restored to
a condition that supports post-mining uses.
Question 1c. How many of the future mine sites in Appalachia will
rely on mountaintop removal and valley fill?
Answer. We cannot forecast how many mines in the future will use
mountaintop removal mining techniques. However, all surface mines and
underground mines in central Appalachia will rely upon valley and other
fill structures to permanently store excess spoil, underground mine
development material and coal processing waste. Several studies have
documented that restrictions placed upon the use of valley or other
fills in connection with surface mining would have devastating economic
consequences and reduce coal production at mines by as much as 90
percent. Sandberg, Doss, et al., ``The Mountaintop EIS Technical
Report'' (2000); Marshall University Center for Business and Economic
Research, ``Coal Production Forecasts and Economic Impact Simulations
in Southern West Virginia'' (2000).
As I explained in my testimony, since SMCRA's enactment 30 years
ago the general trend nationwide has been toward fewer but
substantially larger coal mines. This trend is a product of both market
forces and public policies that demand greater efficiencies in order to
compete.
Question 1d. What are the advantages and disadvantages (economic
and otherwise) of mountaintop removal and valley fill?
Answer. Mountaintop removal operations offer economic,
environmental and public benefits.
Coal can be mined in many instances where underground methods would
not be feasible because of relatively thin seams or unsafe roof
conditions. These operations have a greater coal recovery rate since
they mine sometimes as many as eighteen coal seams. These high resource
recovery rates advance SMCRA's goal for maximum utilization and
conservation of the coal resource while minimizing the potential for
future disturbance of the reclaimed area for coal mining. SMCRA Sec.
515(b)(1).
The use of engineered valley fills avoids the problems associated
with some pre-SMCRA mining that created steep, unconsolidated outslopes
of spoil material prone to slides, erosion and prolonged sedimentation
of streams.
Many mountaintop mining operations occur on lands previously mined
before SMCRA. The mountaintop mining operations eliminate old
highwalls, spoil piles and other conditions left by these abandoned
mines at no cost to the Abandoned Mined Land Fund.
The rugged terrain of this region has often thwarted economic
development opportunities. As Justice Powell observed:
Bituminous coal . . . is found in a region marked by steep
mountain slopes , sharp ridges, massive outcrops of rock, and
narrow valleys--conditions that severely limit alternative uses
of the land. The requirement in [SMCRA] that steep-slope areas
be restored approximately to their original contours seems
particularly unrealistic [and] often would diminish rather than
increase the land's worth.
Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264,
306-307 (1981) (Powell, J., concurring).
Mountaintop mining offers a unique opportunity to leave land
suitable for commercial, residential, recreational, agricultural and
other uses that would otherwise remain unavailable. As part of my
testimony, I provided the committee with photographs depicting the
realization of these opportunities including housing developments,
airports, farms, and wildlife areas.
STREAM BUFFER ZONE RULEMAKING
Question 2. Does the National Mining Association support the
proposed modifications to the stream buffer zone rule? Why or why not?
Answer. NMA supports the Office of Surface Mining's proposal to
clarify the stream buffer zone regulation in order to avoid future
misapprehension about its proper application to a wide range of surface
and underground coal mining activities nationwide. The proposal
clarifies the rule in a manner that is consistent with 30 years of
implementation by every Administration since the rule was first
promulgated by the Office of Surface Mining. Such a clarification is
necessary to avoid misinterpretations and disputes that would disrupt
the production of coal essential to our Nation's energy supply and cost
coal miners and other employees their high-wage jobs and benefits.
Again, NMA appreciates the opportunity provided to appear and
deliver testimony to the committee about the coal industry's experience
over thirty years since SMCRA's enactment.
______
Responses of Bill Banig to Questions From Senator Domenici
As Mr. Wahlquist points out, domestic coal production has increased
by 67% and gone from 3rd place in U.S. energy production to a solid 1st
since SMCRA passed. At the same time, unlike coal or natural gas, coal
is cheaper today than it was 30 years ago.
This impressive contribution to our nation's energy supply has
largely shown up on the electric grid. While this role has expanded
coal production and created good jobs, additional opportunities exist
for this abundant, affordable, and domestic resource.
Question 1. If greenhouse gas emissions are no greater than those
associated with our existing fuel supply, does the UMWA support the
manufacture transportation fuels from our nation's coal reserves?
Answer. The UMWA is a member of the Coal to Liquid Coalition and
does support the manufacture of transportations fuels from our domestic
coal reserves. The U.S. has 250 years supply of recoverable coal
reserves. For energy independence and national security we should rely
on our domestic coal reserves, instead of some of the most unstable
regions of the world for our transportation fuels.
Question 2. America's ability to meet growing energy needs with
domestic resources like coal, wind, nuclear, and natural gas is only as
good as our capacity to train the miners, geologists, engineers, and
other professionals that make those projects a reality. What role do
you believe the federal government should play in preparing the next
generation of Americans to do this work?
Answer. With the turndown in the U.S. domestic coal industry in the
1980's and 1990's, the coal industry missed an entire generation of
coal miners coming into the industry. Today many of our miners are
approaching retirement age. The federal government should provide
resources to help train the next generation of miners. One such program
is the United Mine Workers of America's Career Center (UMWACC). The
UMWACC has developed a training program for potential new miners
entering the mining industry.
Response of Bill Banig to Question From Senator Salazar
Question 1. Given the rising costs of healthcare, the United Mine
Workers are to be commended for working hard to reduce health care
costs. Have you been able to work with other healthcare systems, like
the Veteran's Affairs system to coordinate providing care to miners who
are also veterans?
Answer. The UMWA Funds does not have a direct relationship with the
Veteran's Administration to coordinate benefits, but does have such
relationships with the Department of Health and Human Services' Center
for Medicare and Medicaid Services (CMS) and with the Department of
Labor's Black Lung program. The UMWA Funds was invited this past April
to share its experiences and programs with the Task Force on the Future
of Military Health Care, a task force appointed by the Secretary of
Defense pursuant to the 2007 Defense Authorization Act. A copy of that
presentation, which by request of the Task Force focused on
prescription drug programs, is attached.*
---------------------------------------------------------------------------
* Document has been retained in committee files.
---------------------------------------------------------------------------
______
Responses of Joanna Prukop to Questions From Senator Bingaman
NON-COAL RECLAMATION
I am pleased to hear that overall, the experience for New Mexico
with implementation of SMCRA has been positive. I am concerned,
however, that due to an interpretation of the 2006 AML Amendments, some
funds may now not be available for non-coal reclamation.
Question 1a. What role does the Abandoned Mine Land program under
SMCRA play in New Mexico?
Answer. The SMCRA Abandoned Mine Land program is the core of New
Mexico's efforts to address the hazards associated with abandoned
mines, particularly public safety hazards. The AML program within the
New Mexico Energy, Minerals and Natural Resources Department (EMNRD) is
100% funded through SMCRA. Over the years, various state agencies,
including EMNRD, have received small grants from other sources to
address some abandoned mine issues. But SMCRA funding is the only
regular source of funding.
Question 1b. How important is it that funding be available for non-
coal reclamation?
Answer. The primary threat to public safety from abandoned mines in
New Mexico is at non-coal sites. Almost all of the fatalities and
serious injuries in recent decades have been at abandoned non-coal
mines. The overwhelming majority of abandoned mine hazards in New
Mexico are at non-coal sites (see question # 2 below). As urban growth
continues and recreation use expands, more people are coming into
contact with abandoned mining areas once considered remote.
In recent years, New Mexico has balanced the need to complete work
on abandoned coal mine sites with the need to address high priority
hazards at abandoned non-coal mines. Over the past six years, New
Mexico has spent 55% of its AML construction costs on coal projects and
45% on non-coal projects. Given the predominance of public heath and
safety threats from non-coal sites, we need to maintain the flexibility
to allocate AML funds to address these hazards.
Question 1c. How long has New Mexico used AML funds for non-coal
work?
Answer. New Mexico's AML program began in 1981 and work on the
first non-coal project began in 1983.
NON-COAL RECLAMATION
Question 2a. Does New Mexico have an inventory of abandoned mines
in the state?
Answer. New Mexico did complete an inventory of abandoned coal
mines, but has never completed an inventory of abandoned non-coal
mines. We have information on various mining areas from prior projects
and from other state and federal agencies that have examined various
areas of the state.
Question 2b. If so, how many are there?
Answer. We estimate that there are approximately 15,000 abandoned
mine openings located in about 800 mining sites. We estimate that about
95% of these openings are from non-coal mining.
URANIUM
Your testimony specifically underscores the importance of AML funds
being available for reclamation at abandoned uranium.
Question 3a. What are the types of problems associated with
abandoned uranium mines in New Mexico?
Answer. Abandoned uranium mines present a variety of problems from
dangerous mine openings to unreclaimed mine waste piles exposing the
public to radiological and other contaminants to contamination of
ground and surface water from mining and milling activity. AML funds
would be used primarily in New Mexico to safeguard dangerous mine
openings and reclaim contaminated areas associated with the mines.
Question 3b. Do you have information on how many abandoned uranium
mine sites exist in New Mexico?
Answer. New Mexico is currently inventorying all abandoned and
inactive uranium mines with past production. At this time, we have
found 137 formerly producing uranium mines with no record of
reclamation. We estimate over 400 additional mine hazards at locations
where no production was recorded.
REGULATORY GRANTS
I understand from your testimony and that of Mr. Conrad that an
ongoing problem is the level of funding for grants to the states to
conduct their regulatory programs under title V of SMCRA.
Question 4. Can you please describe for us the work of the state
under title V and the issues associated with this shortfall in funding?
Answer. New Mexico received approval for its Title V program in
1980 and implements all elements of SMCRA. New Mexico permits all
surface coal mining operations not on Indian lands. For each operation,
there are monthly inspections followed by any necessary enforcement.
Staff members conduct reviews of new permit applications, financial
assurance proposals, bond release applications, and permit renewals,
modifications and revisions. Permits are also reviewed at regular
intervals and at annual reports. EMNRD staff are all trained to conduct
inspections as well having particular expertise over various elements
of mine operation and reclamation, including hydrology, geology,
vegetation, soils, engineering and cultural resources. The Title V
program, working with the mine operators, has developed electronic
permits and an integrated data base management system and Geographic
Information System; each system requires an administrator to facilitate
system development and maintenance. EMNRD is also communicating with
the public, federal land managers, Native American tribes and other
agencies on various issues connected with mine operation and
reclamation.
Prior to this year, New Mexico has weathered previous shortfalls in
federal funding by creating efficiencies through the use of technology
and by using other state funding sources to cover costs associated with
the Title V program. This year, however, we are planning to transfer
two positions to other programs due to funding shortages. This will
result in a loss of both personnel to conduct inspections and permit
reviews, and of expertise in evaluating mining operation and
reclamation. The State will be at risk of missing or delaying required
inspections, and delaying enforcement and permitting actions.
BUFFER ZONE RULEMAKING
Question 5a. Does the State of New Mexico support the proposed
changes to the Office of Surface Mining Reclamation and Enforcement's
buffer zone rule (72 Fed. Reg. 48890, August 24, 2007)?
Answer. Because the buffer zone rule has not previously impacted
mine reclamation in New Mexico, the State has not taken a strong
position on this rule change. However, New Mexico does have concerns
with the proposed changes. Generally, we are concerned that the changes
must meet the purpose of SMCRA to ``assure that surface coal mining
operations are so conducted as to protect the environment''.
Specifically, we are concerned that the proposals to use the term
``waters of the U.S.'' and to require alternatives analyses for excess
spoil fills will create great confusion and uncertainty. In particular,
the term ``waters of the U.S.'' could, depending on how you interpret
Supreme Court opinions, greatly expand the use of the buffer zone rule
in New Mexico with little benefit for the environment.
Question 5b. Would you prefer to keep the current rule in place?
Answer. We would prefer the current rule to an amended rule that
creates confusion and uncertainty.
______
Responses of Brent Wahlquist to Questions From Senator Bingaman
Question 1a. Mountaintop Removal--How widespread is mountaintop
removal mining? How many acres have been affected?
Answer. In estimating the extent of mountaintop removal mining, we
must first note that the term mountaintop removal is subject to various
interpretations. ``Mountaintop removal mining'' (MTR) is a specific
type of mining authorized in section 515(c) of the Surface Mining
Control and Reclamation Act (SMCRA), ``where the mining operation will
remove an entire coal seam or seams running through the upper fraction
of a mountain, ridge, or hill....by removing all of the overburden and
creating a level plateau or gently rolling contour...'' [30 USC
1265(c)(2)]. It is a type of mining authorized under SMCRA for which
restoration of the mined area to the approximate original contour (AOC)
is not required. While recognizing the economic necessity to allow MTR
operations in Appalachia, Congress also spelled out conditions to
ensure that the practice would be limited to situations where the
reclamation would result in specific and beneficial postmining land
uses.
Although MTR has a specific meaning under SMCRA, the public tends
to view the practice more broadly to include any steep-slope mining in
mountainous terrain. Further, OSM has adopted a broader term--
``mountaintop mining'' (MTM)--to encompass various mining techniques
involving the construction of valley fills. MTM includes MTR and all
types of mining in steep-slope terrain that result in the construction
of fills, whether or not the mined-out area is reclaimed to AOC. MTM
techniques include contour mining, area mining, and combinations of all
of these methods. Sometimes these different techniques are used on
various portions of the same minesite. Thus, databases segregating
information on MTR acreage from overall permitting information are not
maintained or available from the states or OSM.
With this explanation as a backdrop, we have some data for the
broader category of MTM permits issued over a ten-year period (1992-
2002) in eastern Kentucky, northwest Virginia, southwestern West
Virginia and a small portion of Tennessee. A study, done as part of a
programmatic Environmental Impact Statement completed in 2005 by the
U.S. Environmental Protection Agency, U.S. Army Corps of Engineers,
U.S. Fish and Wildlife Service, OSM, and the State of West Virginia,
reported that approved MTM permits covered approximately 404,000
acres--3.3% of the 12,000,000 total acres in the study area. [For
additional information, see http://www.epa.gov/region3/mtntop/ and
http://www.epa.gov/region3/mtntop/pdf/Appendices/
Appendix%20I%20Cumulative%20Impact%20Study/Dec02%20report%20text/
Report.pdf].
Question 1b. How many valleys are typically affected by one mining
operation? (For example, one of the court cases on this subject
describes a mining operation that was authorized to construct valley
fills in 27 valleys.)
Answer. There is no ``typical'' number of valley fills constructed
per mining operation. The size, number, and location of valley fills
are based on site-specific conditions. However, based on available
information, a mining operation with 27 valley fills would be very
rare.
We queried a database developed as background for a chapter of the
``Mountaintop Mining/Valley Fill'' EIS mentioned above. The data, which
includes over 1100 valley fills permitted from 1985-1998 in West
Virginia, provides an idea of the number of valley fills associated
with MTM operations. In this sample, the majority of permits (80% of
404 permits) issued from 1985-1998 had 1 to 3 valley fills; 15% (60
permits) had 4-6 valley fills; 4% (16 permits) had 7-10 fills; and 1%
(4 permits) had more than 10 fills, the largest number of fills for any
single permit being 24.
From 1999 to 2001, which is the period for the available data that
follows the beginning of MTM litigation, there were 31 permits (76% of
a total of 41 permits issued) with 1-3 fills; 8 permits (20%) with 4-6
fills; and 2 permits (5%) with 7-10 fills. Additional data compiled by
OSM in Kentucky for the past eight years show an average of four valley
fills per MTM permit (662 valley fills in 155 MTM permits issued from
1999 to the present).
Question 2. Mountaintop Removal--SMCRA (including section 515)
imposes specific requirements with respect to water protection and
reclamation to approximate original contour. How do you reconcile these
requirements of SMCRA with mountaintop mining and the authorization of
valley fills that cover streams?
Answer. SMCRA requires OSM to strike a balance between protection
of the environment and the Nation's need for coal as an essential
source of energy. [30 USC 1202(f)]. Congress recognized that mining
activities will cause temporary disruptions to water quality and
quantity on the minesite. OSM regulations, at 30 CFR 816.41(a),
implementing SMCRA section 515(b)(10) [30 USC 1265(b)(10)], require
that coal mining minimize hydrologic impacts onsite and prevent
material damage to the hydrologic balance offsite. Otherwise, mining
would not be feasible.
Excess spoil disposal, including construction of valley fills, is
governed by SMCRA section 515(b)(22), which specifically allows the
placement of excess spoil in areas containing streams, provided proper
underdrains are constructed. In steep-slope areas, it is physically
impossible to return all spoil to the mined area, both because of the
swell factor associated with removal of the overburden and the need to
ensure that backfilled slopes are stable.
Question 3. Mountaintop Removal and Water--The Surface Mining Act
requires that in granting permits, the permitting authority must ensure
that ``no damage will be done to natural watercourses.'' How do you
reconcile these requirements of SMCRA with the authorization of valley
fills that cover streams?
Answer. The SMCRA language [from section 515(c)(4)(D)] quoted in
the question is applicable only to MTR mining, which is only one of the
various types of mining operations that may require valley fills for
the disposal of excess spoil. MTR, by its very nature, generates more
excess spoil than MTM sites restored to AOC. Since December 1977, OSM's
regulations have recognized that excess spoil would be created by MTR,
and have authorized its disposal in valley fills, including those that
might extend into intermittent or perennial streams. At 72 FR 48893,
the preamble to our proposed excess spoil/buffer zone rule explains
this provision as follows:
The regulations implementing this provision clarify that the
prohibition applies only to natural watercourses ``below the
lowest coal seam mined.'' See 30 CFR 824.11(a)(9). However,
section 515(c)(4)(E) of the Act specifies that ``all excess
spoil material not retained on the mountaintop shall be placed
in accordance with the provisions of subsection (b)(22) of this
section.'' By including this proviso, Congress recognized that
not all excess spoil generated by mountaintop removal
operations could be retained on benches or placed within the
mined-out area. And by cross-referencing section 515(b)(22),
Congress authorized placement of excess spoil from mountaintop
removal operations in natural watercourses, provided all
requirements of section 515(b)(22) are met. As discussed in
Part II of this preamble, in the steep-slope terrain of central
Appalachia, excess spoil typically can most feasibly be placed
in valley fills.
OSM is not proposing to amend the regulations implementing section
515(c)(4)(D), and those regulations continue in effect.
Question 4a. Mountaintop Removal and Water--I understand that SMCRA
requires that surface coal mining operations be conducted so as to
prevent, ``to the extent possible using the best technology currently
available'' contributions of suspended solids to streamflow or runoff
outside the permit area. Another provision requires that ``to the
extent possible using the best technology currently available,''
surface and coal mining operations must minimize disturbances and
adverse impacts of the operation on fish, wildlife, and related
environmental values. Is it the position of the Administration that
using valley fills that inundate miles of stream is the ``best
technology currently available''?
Answer. The application of best technology currently available
(BTCA) to the extent possible as mandated by SMCRA does not preclude
placement of excess spoil or refuse impoundments in intermittent or
perennial streams. Excess spoil and coal waste disposal are necessary
aspects of coal mining operations. There is an extensive discussion in
the preamble to OSM's 2007 proposed excess spoil minimization/buffer
zone rule on the application of BTCA and the phrase ``to the extent
possible'' [72 FR 48911-3].
The requirement in SMCRA section 515(b)(10)(i) to prevent
contributions of suspended solids applies to stream flow and runoff
outside the permit area. However, excess spoil disposal occurs within
the permitted area, and thus is not prohibited by section
515(b)(10)(i). SMCRA requires that BTCA related to protection of fish,
wildlife, and related environmental values must minimize disturbances
and adverse impacts to the extent possible. However, SMCRA does not
require that these impacts be prevented. The purposes of SMCRA include
striking a balance between protection of the environment and the
Nation's need for coal as an essential source of energy. [30 USC
1202(f)]. Therefore, the minimization requirement does not extend to
prohibiting fill construction in stream headwaters.
Question 4b. Don't valley fills that cover perennial and
intermittent streams by definition adversely affect water quality and
quantity and other environmental resources of the stream?
Answer. Covering streams with excess spoil or coal mine waste does
not necessarily adversely affect water quality or quantity downstream
of the fill and outside the permit area. In fact, flows from the toe of
an excess spoil fill are often more consistent (less seasonal variation
in quantity) and of higher overall quality than flows preceding
construction of the fill. While fill construction in streams may have
an adverse impact on environmental resources in the segment of stream
that is covered, SMCRA only requires minimization of that impact to the
extent possible. One purpose of our proposed excess spoil rule changes
is to clarify how the requirement for minimization to the extent
possible is to be applied.
Question 4c. How can valley fills that cover such streams be
permitted?
Answer. Valley fills are authorized by SMCRA at section 515(b)(22)
and 30 CFR 816.71-74 and the Clean Water Act 404 program. Beginning
with the interim program regulations first promulgated in December 1977
and the permanent program regulations first promulgated in March 1979,
SMCRA regulations have always authorized ``valley fills'' that cover
water courses, wet weather seeps and springs, so long as appropriate
underdrains are provided. By definition, channel flow from a wet
weather seep is an intermittent stream, and channel flow from a spring
is a perennial stream. The U.S. Court of Appeals for the Fourth Circuit
cited section 515(b)(22) as the basis for its statement that, ``it is
beyond dispute that SMCRA recognizes the possibility of placing excess
spoil material in waters of the United States even though those
materials do not have a beneficial purpose.'' Kentuckians for the
Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003).
At 72 FR 48893, the preamble to OSM's 2007 proposed excess spoil
minimization/ buffer zone rule contains a section that further explains
this matter:
Section 515(b)(22)(D) provides that sites selected for the
disposal of excess spoil must ``not contain springs, natural
water courses or wet weather seeps unless lateral drains are
constructed from the wet areas to the main underdrains in such
a manner that filtration of the water into the spoil pile will
be prevented.'' In adopting this provision, Congress could have
chosen to exclude perennial and intermittent streams (or other
waters) from the scope of ``natural water courses,'' but it did
not do so. In addition, the fact that this provision of the Act
authorizes disposal of excess spoil in areas containing springs
and seeps further suggests that Congress did not intend to
prohibit placement of excess spoil in perennial or intermittent
streams. Springs and seeps constitute groundwater discharges.
To the extent that those discharges provide intermittent or
continuous flow in a channel, they are included within the
scope of our definitions in 30 CFR 701.5 of ``intermittent
stream'' and ``perennial stream,'' respectively. The definition
of ``intermittent stream,'' which is based upon technical
literature, includes any ``stream or reach of a stream that is
below the local water table for at least some part of the year,
and obtains its flow from both surface runoff and ground water
discharge.''
Question 5a. Mountaintop Removal and Approximate Original Contour
Standard--Section 515(b) of SMCRA requires mine sites to be reclaimed
to their ``approximate original contour'' but allows for variances. In
addition, Office of Surface Mining guidance does not require
``elevation'' to be taken into account in creating approximate original
contour. How is mountaintop mining consistent with this approximate
original contour standard in SMCRA?
Answer. Mountaintop mining operations permitted under SMCRA section
515(c) are exempt from approximate original contour (AOC) restoration
requirements. SMCRA section 515(c)(2). Variances from AOC are also
permissible for other types of MTM operations, provided land use and
other standards are attained. For MTM sites where reclamation to AOC is
required, elevation is taken into account as an aspect of contour,
under OSM's guidance. (OSM's Directive INE-26, which guides OSM
inspectors in evaluating AOC restoration and has been in effect for
over 20 years.) Further, beginning almost 10 years ago, OSM worked with
West Virginia and other states to clarify their AOC criteria and
procedures. Mountaintop mining operations that are permitted under
criteria other than section 515(c), and therefore are not exempt from
AOC requirements, must achieve AOC, and must be consistent with the
SMCRA definition:
Approximate original contour means that surface configuration
achieved by backfilling and grading of the mined area so that
the reclaimed area, including any terracing or access roads,
closely resembles the general surface configuration of the land
prior to mining and blends into and complements the drainage
pattern of the surrounding terrain, with all highwalls and
spoil piles eliminated; water impoundments may be permitted
where the regulatory authority determines that they are in
compliance with section 515(b)(8) of this Act;
SMCRA Sec. 701(2).
Question 5b. Isn't restoring elevation implicit in any requirement
for reclaiming to the approximate original contour?
Answer. Approximating the original elevation is implicit in
restoring AOC. As stated in OSM's Directive INE-26 on AOC, ``The
anticipated postmining topography must be determined in the permitting
process with typical cross section or contour maps depicting both the
premining and anticipated postmining slopes with sufficient clarity and
detail to enable a comparison to determine if AOC has been achieved.''
The permitting process includes procedures for public participation
and review of agency decisions should there be disputes over whether
AOC will be achieved through the proposed reclamation plan.
OSM's Directive INE-26 goes on to state, ``AOC is achieved through
a reasonable, but not necessarily exact, rendering of the approved
postmining topography.''
Question 6. Mountaintop Removal and Environmental Impacts of Coal--
In recent years, we have become more aware of the environmental costs
of our reliance on coal for the production of energy--whether this be
impacts on land and water, effects on air quality, and most recently,
contributions to climate change. What can OSM do to reduce the costs of
mountaintop mining and valley fills?
Answer. One purpose of the August 24, 2007, proposed rule is to
reduce the environmental impacts of excess spoil disposal. OSM has also
addressed some of these concerns through cooperative efforts with State
and Federal regulators. Cooperative efforts with the Appalachian
States to address concerns include the following:
Guidance was developed on approximate original contour (AOC)
to ensure the maximum amount of spoil is returned to the mined
area.
Guidance was developed for allowable postmining land uses to
ensure that variances from AOC authorized by the SMCRA are
properly applied.
Inspection techniques for valley fill construction
requirements have been developed to ensure stability of fills.
The Appalachian Regional Reforestation Initiative was
established to encourage returning mine land to productive
hardwood forests and to address forest fragmentation. Proper
forest reclamation sequesters carbon and reduces peak flows
that contribute to flooding.
Work is ongoing with the EPA, U.S. Army Corps of Engineers,
and the Fish and Wildlife Service to share data and collaborate
during reviews required by the Clean Water Act, the Endangered
Species Act, and SMCRA. This coordinated permitting results in
better permit decisions and minimizes environmental impacts.
Question 7a. Mountaintop Removal--According to the statement of
Joan Mulhern of Earthjustice over the past thirty years and especially
during the last 15 years there has been a ``vast expansion'' in
mountaintop removal mining. Her statement references a source that
indicates a significant acceleration in mountaintop removal mining
(9,800 acres permitted during the 1980's verses 12,540 permitted acres
during 2002 alone). Does OSM have any data that would indicate how many
acres were permitted for mountaintop removal mining during the 1980's
as opposed to during the past year?
Answer. OSM has compiled data on MTM operations in Kentucky since
1983. This data covers all operations that were permitted for MTM,
including both acreage for which a return to AOC was required, and non-
AOC mining, such as MTR and AOC variance mining. The data does not
specify how much acreage was permitted for mining by any particular
non-AOC mining technique. Despite these limitations, the data may be
useful as one indication of a trend over time.
Our data indicate that, from 1983 (after Kentucky gained SMCRA
primacy) through 1989, 157 new MTM permits were issued by Kentucky, for
a total of 81,656 acres. Of that total, 98 permits included mining for
which AOC was not required, and the total non-AOC acreage was 39,420.
For the period from 2000 through 2006, 134 new MTM permits were issued
by Kentucky, for a total of 43,091 acres. Of that total, 7 permits
included mining for which AOC was not required, and the total non-AOC
acreage was 1,051.
Question 7b. Is the use of this mining technique accelerating?
Answer. The limited data compiled by OSM for Kentucky indicates
that mountaintop mining is not accelerating. To the contrary, non-AOC
portions of MTM permits accounted for only 2.4% of the acreage
permitted over the last 7 years, compared to 48% between 1983 and 1989.
Question 8a. Mountaintop Removal--Am I correct in understanding
that the programmatic EIS released in 2005 projects that by 2012
mountaintop removal mining will have occurred on over 1.4 million acres
in Appalachia--and over 2000 miles of stream will have been covered by
valley fill?
Answer. The EIS estimated that mountaintop mining (which includes
MTR and other mining methods) could occur on 1,408,372 acres in
Appalachia by 2012. The EIS estimated that existing fills had affected
724 miles of streams in Appalachia. If valley fill construction
continues at the same rate, that construction would affect 724
additional miles of streams in the following 17 years, yielding a total
of 1,448 stream miles impacted by valley fills. [For additional
information, see http://www.epa.gov/region3/mtntop/ and http://
www.epa.gov/region3/mtntop/pdf/Appendices/
Appendix%20I%20Cumulative%20Impact%20Study/Dec02%20report%20text/
Report.pdf].
Question 8b. Is it possible to mitigate or compensate for the loss
of these headwater streams?
Answer. Mitigation and compensation are Clean Water Act (CWA)
measures to offset the impacts from discharge of fill in waters of the
U.S. and fall under the jurisdiction of the Environmental Protection
Agency (EPA) and the U.S. Army Corps of Engineers. We understand that
there are instances at SMCRA mine sites where reclamation and stream
restoration on the mine received credit by the Corps as mitigation for
stream impacts. This offsets additional mitigation that may be required
under the CWA outside the minesite permitted under SMCRA.
Question 9. Mountaintop Removal--Please provide a chart that
indicates how many permits for mountaintop removal have been authorized
by state over each of the past 25 years. Please indicate how much
acreage is involved. Please also provide data on how many valley fills
are associated with these permits by state and how many miles of stream
and headwaters are impacted.
Answer. Most MTM operations are regulated by states, and the types
of data we maintain on them are somewhat limited. We do not possess
data on acreage, the number of valley fills or stream impacts, broken
out by surface mining technique, over the past 25 years. This type of
information is very dynamic in nature because permit revisions
frequently add and delete mining areas, valley fills, etc. The most
comprehensive source of the information that you request exists for
mountaintop mining (not MTR) in the aforementioned multi-agency EIS
completed in 2005. Chapter III.K shows valley fill trends for seventeen
years covering 1985-2002. [For additional information, see http://
www.epa.gov/region3/mtntop/pdf/III--
%20Affected%20Environment%20and%20Consequences%20of%20MTM%20VF.pdf].
Question 10. Mountaintop Removal--Please describe the equipment
that is typically used in mountaintop removal mining. Has this
equipment changed in design, size and efficiency since the enactment of
SMCRA in 1977? If so, please describe.
Answer. The first large dragline came into use in central
Appalachia about 1980, and the use of draglines expanded through the
1990's. These and other changes have increased efficiency and
productivity. The previously cited Mountaintop Mining/Valley Fill EIS
describes this trend in Chapter III.I and III.J.3, as well as in
Appendices G and H--particularly the presentations in Appendix H,
``Mining and Reclamation Technology Symposium,'' held June 23-24, 1999.
[For additional information, see http://www.epa.gov/region3/mtntop/
eis.htm].
Question 11a. Stream Buffer Zone Rulemaking--OSM is in the process
of revising permanent program regulations relating to excess spoil and
stream buffer zones. The agency published proposed rules on this topic
on August 24, 2007 (72 Fed. Reg. 48890). The public comment period will
close later this month. The current OSM regulations impose a
requirement that there be buffer zones around intermittent and
perennial streams to protect against disturbance from coal mining
activities. The proposed rules would eliminate this requirement with
respect to ``valley fills'' associated with mountaintop mining. Will
the new rules facilitate mountaintop mining and valley fills?
Answer. No. The rule would largely reflect current mountaintop
mining practices. It would clarify the stream buffer zone rule to
ensure that implementation is consistent with SMCRA, and also would
tighten environmental restrictions on valley fills.
Question 11b. Do you believe the current regulation is inconsistent
with the statute?
Answer. No. The rule has always been implemented to allow valley
fills and coal refuse impoundments; and this is consistent with SMCRA.
There are differing views on what the current rule means, which is why
we are clarifying just what mining activities can occur in or near
streams and under what conditions. See also the preamble to OSM's March
2007 proposed rule at 72 FR 48893-48898 for a full discussion of the
stream buffer zone rule history and the controversy surrounding its
implementation and interpretation.
Question 11c. Is the current regulation being adequately and fully
enforced?
Answer. Yes.
Question 12. Stream Buffer Zone Rulemaking--The proposed rule
requires that excess spoil be minimized to the extent practicable.
Doesn't OSM already require this?
Answer. No. While the rules may imply that the maximum amount of
spoil should be returned to the mined out area to minimize excess
spoil, the proposed rule language would codify the requirement in a way
that is consistent with recent policies issued by the states. The rule,
if adopted as proposed, will explicitly require environmental resource
data and analysis of alternatives to show that various sizes,
locations, and numbers of fills were considered. This will further
pressure companies to adopt the most environmentally-protective
alternatives in their mining and reclamation plans to minimize the
amount of excess spoil.
Question 13a. Stream Buffer Zone Rule--Please summarize the Federal
District Court holding in Bragg v. Robertson, 72 F. Supp.2d 642
(S.D.W.V. 1999), rev'd, 248 F.3d 275 (4th Cir. 2001). I understand that
the Court of Appeals for the Fourth Circuit reversed the District Court
ruling on procedural grounds (sovereign immunity), leaving Judge
Haden's substantive pronouncements on the SMCRA as the operative
interpretation.
Answer. OSM's 2007 proposed buffer zone rule preamble summarized
court rulings on the stream buffer zone rule. In that preamble, we
noted that the Plaintiffs in Bragg asserted that the stream buffer zone
rule allows mining activities through or within the buffer zone for a
perennial or intermittent stream only if the activities are minor
incursions. They argued that the rule did not allow substantial
segments of the stream to be buried underneath excess spoil fills or
other mining-related structures.
On October 20, 1999, the district court ruled in favor of the
plaintiffs on this point, holding that the stream buffer zone rule
applies to all segments of a stream, including those segments within
the footprint of an excess spoil fill, not just to the stream as a
whole. The court also stated that the construction of fills in
perennial or intermittent streams is inconsistent with the language of
30 CFR 816.57(a)(1), which provides that the regulatory authority may
authorize surface mining activities within a stream buffer zone only
after finding that the proposed activities, ``will not adversely affect
the water quantity and quality or other environmental resources of the
stream.'' See Bragg v. Robertson, 72 F. Supp. 2d 642, 660-663 (S.D. W.
Va., 1999). [72 FR 48895]
Judge Haden suspended his own decision pending appeal. The U.S.
Court of Appeals for the Fourth Circuit reversed the district court on
the grounds of lack of jurisdiction under the Eleventh Amendment to the
Constitution. This means that, as a matter of law, the district court's
statements on the interpretation and applicability of the stream buffer
zone rule have no force or effect. See Bragg v. West Virginia Coal
Association, 248 F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S.
1113 (2002).
Question 13b. Do you agree with the District Court that the current
buffer zone rule applies to all portions of a perennial or intermittent
stream and that the buffer zone rule can be harmonized with other SMCRA
regulations?
Answer. No. We do not agree with the district court's
interpretation of the existing rule. However, we believe that the
stream buffer zone rule can be harmonized with other regulations. If
the proposed excess spoil and buffer zone rules are adopted, they will
more clearly link to other regulatory requirements, consistent with the
underlying authority in SMCRA.
Question 13c. Is the current buffer zone rule being enforced in
accordance with this interpretation?
Answer. No. OSM and the States continue to apply our long-standing
interpretations of stream buffer zone requirements, as discussed in
OSM's proposed rule at 72 FR 48890.
Question 13d. Has the Fourth Circuit's ruling in Kentuckians for
the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003), impacted
the interpretation and application of the buffer zone rule under SMCRA?
If so, in what way and why?
Answer. No. The 4th Circuit ruling in Rivenburgh did not disturb
OSM's current and historical interpretation and implementation of the
rule, and it acknowledged that SMCRA envisioned excess spoil disposal
in streams. The circuit court held that, ``SMCRA does not prohibit the
discharge of surface coal mining excess spoil in waters of the United
States.'' Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317
F.3d 425, 442 (4th Cir. 2003). The court further stated that, ``it is
beyond dispute that SMCRA recognizes the possibility of placing excess
spoil material in waters of the United States even though those
materials do not have a beneficial purpose.'' Id. at 443.
Question 14a. Non-coal Reclamation--Last year, Congress
reauthorized the Abandoned Mine Reclamation Fund. On June 6, 2007, I
wrote to Secretary Kempthorne, along with Senator Domenici and the
Senators from Colorado and Utah, expressing concern over a possible
interpretation that would limit funds that are currently available for
non-coal reclamation in New Mexico. According to Secretary Prukop's
testimony, New Mexico alone has over 15,000 unreclaimed mine hazards
with a vast majority of these being non-coal. I also understand that
all fatalities there in the last few decades have been at non-coal mine
sites. Will you work with us to ensure that AML funds can continue to
be used for non-coal reclamation in western states such as New Mexico?
Answer. Yes, we look forward to working with the Committee to
ensure that AML funds may continue to be used to address serious health
and safety problems at non-coal mine sites. The 2006 Amendments did not
change how money from the AML Fund can be used relative to non-coal AML
problems. Uncertified states and tribes, such as New Mexico, may
continue to spend money from the AML Fund as they have in the past on
non-coal reclamation. In addition, due to the mandatory nature of the
distribution of money from the AML Fund, these states and tribes will
receive an increase in funds that can be used on non-coal reclamation.
Recently, we completed our consultation with the Solicitor's Office
on whether Treasury funds received by uncertified states and tribes
over the next seven years as prior state share balance replacement
funds may be used for non-coal work. We have been advised that, under
the 2006 Amendments to SMCRA, these funds cannot be used to address
non-coal problems.
I am attaching a copy of a December 5, 2007, memorandum* from the
Solicitor responding to my request for an opinion on three specific
issues under the 2006 Amendments, including the issue you raised (see
Issue 2, page 7). I am also attaching a Decision Memorandum* of the
same date containing decisions needed for proper distribution and use
of funds for Fiscal Year 2008. Issue No. 3 on Page 6 addresses the non-
coal issue.
---------------------------------------------------------------------------
* Documents have been retained in committee files.
---------------------------------------------------------------------------
Question 14b. What is the status of OSM's current rulemaking on
implementation of the 2006 Amendments?
Answer. We recognize that the 2006 Amendments became effective when
enacted on December 20, 2006, and we are taking steps to ensure that
they are implemented for the FY 2008 distributions. In addition to
issuing the December Decision Memorandum to guide the distribution and
use of funds in FY 2008, we have provided notice to coal operators of
the reduced rates set forth in the 2006 Amendments. Our Decision
Memorandum also will be the basis for the rule we plan to propose in
early 2008 to align our existing rules with the 2006 Amendments.
Following our review of public comments received on the proposed rule,
we expect to issue a final rule prior to the FY 2009 distribution.
Question 15a. Tribal Primacy--The AML amendments passed last year
include a provision that allows Indian tribes to apply for and receive
primacy to conduct the Title V regulatory program on lands within their
reservations. What is the status of your work in implementing this
provision?
Answer. In accordance with Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, we are consulting with the
Tribes on how best to implement the new tribal primacy provisions and,
in particular, whether rulemaking is warranted. We initially met with
the tribes that have active coal mining operations on tribal lands--the
Crow, Hopi, and Navajo--to discuss their plans for pursuing primacy.
OSM also conducted a regulatory analysis of the tribal primacy
provisions in the amendments as part of determining whether rulemaking
was necessary to implement the new requirement.
Before making a decision on whether to initiate rulemaking, OSM
intends to complete consultations with all potentially affected tribes
. During this consultation, OSM will identify those aspects of
implementing tribal primacy that would benefit from rulemaking, and
will solicit specific tribal comments and suggestions on implementing
the new provisions.
OSM recognizes that the 2006 Amendments already authorize tribal
primacy, and that tribes may now apply for primacy, regardless of
whether we propose a rulemaking. We are prepared to review and make
timely decisions on tribal program submissions and have informed the
tribes that we will not delay any processing of tribal applications
pending the development of rules. If we receive an application for
primacy, we will establish a schedule for expeditious processing of the
application, provide the schedule to the Tribe, and then keep the Tribe
informed of our progress during the application review process.
Question 15b. What is the time line for granting primacy to tribes
such as the Navajo Nation?
Answer. We expect that the schedule and requirements for processing
tribal primacy applications would be similar to those already in place
for State programs. The time line for approving a tribal program is, in
large part, dependent upon the Tribe's schedule for preparing and
submitting a program. Although we have not yet received a formal
primacy application from the Navajo Nation, we are reviewing, at the
Tribe's request, an informal draft tribal law for implementing primacy.
In conducting this informal review, we hope to identify any issues that
may need to be addressed as early as possible in the process to avoid
delays later on when the Tribe prepares to submit a formal application.
Question 16. Tribal Primacy--I understand that OSM is in the
process of a rulemaking to implement the provisions of the 2006
Amendments that provide the ability of tribes to apply for and receive
primacy for purposes of their Title V regulatory program on reservation
lands. Why is a rulemaking necessary when the process already exists
for states to apply for and receive primacy?
Answer. Although we expect our process for reviewing tribal primacy
applications to be similar to the existing process for reviewing State
programs, there are areas that may require rulemaking. The most
significant of these areas include--
Revising OSM's existing rules to comport with the tribal
primacy amendment (e.g., modifying rules regarding OSM as being
the sole regulatory authority on Indian lands);
Clearly stating which lands would be subject to regulation
under a tribal program;
Defining the content of a tribal program submission when a
tribe only desires to regulate in part (States could only
submit programs to regulate ``in whole,'' and OSM's regulations
contain no provision for regulatory programs that regulate in
part); and
Identifying those requirements of a tribal program approval
and administration process that would be different from State
programs.
We are reviewing the 2006 Amendments and our existing regulations
to determine if rulemaking may be beneficial in addressing any of the
differences between State and Tribal primacy. This is also one of the
issues we are discussing as part of our consultations with Tribes.
Question 17. Tribal Primacy--I understand that the Navajo Nation
has requested assistance from OSM in developing a complete application
and defraying application costs. The Navajo Nation would also like a
timeline for OSM review of the application. Could you please provide me
with specific information regarding the assistance that OSM will
provide to the Navajo Nation and a specific timeline for the
application review?
Answer. OSM is currently providing assistance to the Navajo Nation
in developing its tribal regulatory program. We have provided a listing
of policies, procedures, and processes for our regulatory activities on
Indian lands; information on State regulatory programs that have
incorporated our regulations by reference; and information on
litigation resulting from citizen suits.
On October 4, 2007, the Navajo Nation submitted draft Navajo code
provisions to OSM for informal review. On November 6, 2007, OSM stated
its intention to complete the review and transmit the results to the
Navajo Nation by the end of December 2007.
Question 18a. Reclamation and Reforestation--I am interested in
your comments about the promotion of reforestation as a post-mining
land use and the role that such reforestation could have in
sequestering carbon. What is the status of OSM's efforts in this area?
Answer. OSM and the seven Appalachian coalfield states are actively
promoting reforestation at proposed and active mines, previously-
reclaimed post-law sites, and abandoned mines through the Appalachian
Regional Reforestation Initiative (ARRI). The potential sequestration
rates with a reforestation approach are much higher than reclamation
using a grassland approach (see graph below).*
---------------------------------------------------------------------------
* Graph has been retained in committee files.
---------------------------------------------------------------------------
Historically, there has been a strong bias against proper forest
reclamation techniques among regulators, operators, landowners, and
even environmental groups. ARRI is working to eliminate these biases
and to promote forestry as the postmining land use of choice in
Appalachia. Researchers at the University of Kentucky estimate that
restoring forest cover to the approximately 1.5 million acres of post-
SMCRA mine sites could sequester 33 million metric tons of carbon. If
the trees are later harvested for wood products, such as furniture or
building materials, the sequestration rate theoretically would be
higher because the carbon is tied up as long as the products are being
used, and new trees can take the place of the harvested trees in the
field, increasing sequestration cumulatively.
Under SMCRA, for sites being restored to AOC, an operator must
return mined land to the use it was capable of supporting before
mining, or to a higher or better use. Almost all of the land mined in
Appalachia, and much of the land mined in other naturally-forested
areas of the country, was forested before mining. Coal operators have
generally preferred reclaiming land to hayland or pasture rather than
forestland because revegetation success can be achieved more quickly,
which may translate to more rapid bond release.
However, grass-oriented land uses and reclamation techniques are
not conducive to restoring forests. In fact, trees planted in pastures
established on reclaimed areas have very low survival and growth rates.
Grasslands also sequester far less carbon, and the carbon that is
sequestered is much more likely to be returned to the atmosphere as
carbon dioxide than carbon sequestered in trees. Reclamation to a
pasture or hayland postmining land use also leads to forest
fragmentation, increases peak flows that contribute to flooding,
adversely impacts threatened and endangered species, and lacks the
temperature-moderating influence of forests.
Tree survival and growth rates on mined land can far exceed those
on unmined land if reclamation is done properly. However, proper forest
reclamation looks rough, rocky, and has far less ground cover than
areas reclaimed for grazing or hay production. For the first four
years, it just looks ``unfinished''.
Since SMCRA does not dictate the post-mining land use, it is
rightfully a decision made by the land owner and the permittee. Because
the SMCRA regulatory authorities cannot compel reforestation, we are
seeking to promote reclamation with trees by emphasizing the obvious
economic and ecological benefits to landowners, operators, and
regulators.
The ARRI endeavors to change the perception of what high quality
forest reclamation looks like. It also encourages landowners and
operators to reclaim mined lands to forestry-oriented postmining land
uses. More than 300 ARRI partners have signed a ``statement of mutual
intent'' to support adopting reforestation techniques for reclamation.
These partners are working through government, industry and the public;
studying issues related to reforestation; transferring technology
through forums and training; and evaluating the results of the
initiative to further advance ARRI goals.
Question 18b. I see the pictures attached to Mr. Quinn's statement
show areas that have been reclaimed for golf courses, airports, and
housing. How receptive is the industry to reforestation? What about the
states and landowners?
Answer. There are indeed several golf courses, airports,
residential, industrial, and other specific kinds of commercial and
public uses (e.g., shopping plazas, factories, aquaculture operations,
schools, prisons, and recreational facilities) on former MTR sites.
That is in accordance with Congressional intent in authorizing MTR.
However, most MTR sites were reclaimed to agricultural use, as also
authorized by SMCRA [section 515(c)(3)]. West Virginia includes
commercial forestry as an acceptable agricultural post-mining land use.
Question 19. State Regulatory Programs--One of the issues
highlighted by the States is concern about funding for state regulatory
programs. Please provide data that depicts funding for State regulatory
programs for each of the past 15 years.
Answer.
HISTORICAL REGULATORY FUNDING
Fiscal Years 1992-2007
------------------------------------------------------------------------
Fiscal Year Funding
------------------------------------------------------------------------
1992....................................................... 50,221,144
1993....................................................... 51,583,011
1994....................................................... 51,348,988
1995....................................................... 51,531,766
1996....................................................... 50,761,852
1997....................................................... 50,676,000
1998....................................................... 50,176,000
1999....................................................... 51,156,000
2000....................................................... 52,156,000
2001....................................................... 55,574,465
2002....................................................... 56,575,000
2003....................................................... 57,200,762
2004....................................................... 56,863,373
2005....................................................... 56,837,056
2006....................................................... 56,365,347
2007....................................................... 56,365,348
------------------------------------------------------------------------
Question 19b. I assume that this funding includes monies for
inspection and enforcement. How effective are the state programs in the
area of inspection and enforcement? Does OSM evaluate the effectiveness
of the state programs in this area? Please describe.
Answer. Section 517(f) of SMCRA requires that OSM make such
inspections as are necessary to evaluate the administration of approved
state programs. In 2006, OSM conducted 1,458 oversight inspections of
mine sites in primacy states (states with approved regulatory
programs). As a result of those inspections, OSM issued only 9
enforcement actions, all of which pertained to nonpayment of federal
reclamation fees. OSM did not have to take any enforcement actions
related to on-the-ground violations at mine sites in primacy states.
These statistics demonstrate that the states are effectively
administering the inspection and enforcement aspects of their approved
programs.
Question 19c. What steps does OSM take to ensure that state
regulatory programs are being carried out effectively and consistent
with the standards set forth in SMCRA?
Answer. OSM Directive REG-8 establishes detailed substantive and
procedural requirements for the oversight of approved state regulatory
programs. OSM employs a results-oriented oversight strategy that
emphasizes cooperative problem-solving with the primacy states. Among
other things, the oversight strategy involves the identification,
evaluation, and reporting of the offsite impacts of mining operations.
The purpose of identifying off-site impacts is to gauge how
effectively the state is implementing its approved program to protect
citizens, public and private property, and the environment outside the
areas authorized for mining and reclamation activities. The states and
OSM evaluate the severity of offsite impacts, determine the causes of
those impacts, and identify measures intended to reduce the frequency
and severity of offsite impacts from mining operations. During FY 2006,
91.5 percent of all mines inspected by the states were free of offsite
impacts.
With states regulating 97 percent of the Nation's coal production,
and with states and tribes administering 90 percent of AML project
funds, the major task for OSM is to help them succeed by providing the
funding, regulatory and policy framework, oversight, assistance,
training, and technical tools necessary to have stable and high quality
regulatory and AML programs.
Over the past few years, OSM has made substantial progress in
achieving regulatory stability and increasing cooperation with States
and Tribes. We have worked closely with our State and Tribal partners
to identify best practices, promote technology transfer, provide
technical training, encourage the use of sound science, take advantage
of emerging technologies, and provide access to the latest computer
software and hardware technology to help them do their jobs. This focus
on improving state and tribal program capabilities has been highly
cost-effective in lifting the quality of State programs and promoting
stability.
Responses of Brent Wahlquist to Questions From Senator Domenici
Question 1. At your confirmation hearing 4 months ago, you agreed
to work with the Solicitor's on an interpretation of the impact, if
any, that amendments passed last year would have on Section 409
authority to use AML funds for non-coal reclamation. I do not believe
that the authority has changed one bit. In fact, during consideration
of the amendments, OSM repeatedly assured us that New Mexico's use of
these funds would not be affected. SMCRA anticipates, and I support,
the states' ability to prioritize AML funding for sites that pose the
most immediate risk to health and safety. To do otherwise would require
the use of these funds for low priority coal sites while leaving
dangerous non-coal sites unaddressed. This result would be
unacceptable. What is the status of your efforts to finalize an
interpretation of this authority?
Answer. The 2006 Amendments did not change how money from the AML
Fund can be used relative to non-coal AML problems. Uncertified states
and tribes, such as New Mexico, may continue to spend money from the
AML Fund as they have in the past on non-coal reclamation. In addition,
due to the mandatory nature of the distribution of money from the AML
Fund, these states and tribes will receive an increase in funds that
can be used on non-coal reclamation.
Recently, we completed our consultation with the Solicitor's Office
on whether Treasury funds received by uncertified states and tribes
over the next seven years as prior state share balance replacement
funds may be used for non-coal work. We have been advised that, under
the 2006 Amendments to SMCRA, these funds cannot be used to address
non-coal problems.
I am attaching a copy of a December 5, 2007, memorandum from the
Solicitor responding to my request for an opinion on three specific
issues under the 2006 Amendments, including the issue you raised (see
Issue 2, page 7). I am also attaching a Decision Memorandum of the same
date containing decisions needed for proper distribution and use of
funds for Fiscal Year 2008. Issue No. 3 on Page 6 addresses the non-
coal issue.
Our Decision Memorandum also will be the basis for the rule we plan
to propose in early 2008 to align our existing rules with the 2006
Amendments. Following our review of public comments received on the
proposed rule, we expect to issue a final rule prior to the FY 2009
distribution.
Question 2. Also at your confirmation hearing, you shared that OSM
intended an interim final rule by September 30th of this year--it's now
October 13th. What happened?
Answer. We had considered publishing an interim final rule to take
effect in time for the FY 2008 distribution of funds to states and
tribes. However, we later determined that the best course of action for
a timely implementation of the 2006 amendments in FY 2008 was to
prepare the attached Decision Memorandum and, concurrently, develop a
proposed rule, provide the opportunity for public notice and comment,
and then issue a final rule prior to the FY 2009 distribution.
Question 3. Will OSM adhere to the timeline for promulgation of a
final rule by the beginning of fiscal year 2009?
Answer. Yes. We anticipate issuing a final rule by the end of
September 2008.
Question 4. New Mexico's Coal Surface Mining Commission has taken a
more active approach to public notification of proposed mines. What is
the position of OSM on this approach?
Answer. On August 3, 2007, New Mexico's Coal Surface Mining
Commission asked OSM to informally review draft rules to expand its
requirements for public notice of mining permit applications and
revisions beyond those required by the Federal rules. OSM responded on
September 27, 2007, and found that all changes proposed in the draft
rule would be no less effective than the Federal regulations. OSM
supports the New Mexico Coal Surface Mining Commission's efforts toward
expanded public notice and public involvement.
Responses of Brent Wahlquist to Questions From Senator Salazar
Question 1. In Colorado, it is often the non-coal sites rather than
coal sites that pose a greater hazard to public health and safety.
Given that the Tax Relief and Health Care Act of 2006 did not make
changes to Section 4 [Title IV] of SMCRA, why has the Office of Surface
Mining suggested that it would not allow the use of a state's share and
unappropriated funds for non-coal abandoned mine work?
Answer. The 2006 Amendments did not change how money from the AML
Fund can be used relative to non-coal AML problems. Uncertified states
and tribes, such as Colorado, may continue to spend money from the AML
Fund, including funds based on their state share and their historic
coal production, as they have in the past on non-coal. In addition, due
to the mandatory nature of the distribution of money from the AML Fund,
these states and tribes will receive an increase in funds that can be
used on non-coal reclamation.
Recently, we completed our consultation with the Solicitor's Office
on whether Treasury funds received by uncertified states and tribes
over the next seven years as prior state share balance replacement
funds may be used for non-coal work. We have been advised that, under
the 2006 Amendments to SMCRA, these funds cannot be used to address
non-coal problems.
I am attaching a copy of a December 5, 2007, memorandum from the
Solicitor responding to my request for an opinion on three specific
issues under the 2006 Amendments, including the issue you raised (see
Issue 2, page 7). I am also attaching a Decision Memorandum of the same
date containing decisions needed for proper distribution and use of
funds for Fiscal Year 2008. Issue No. 3 on Page 6 addresses the non-
coal issue.
Our Decision Memorandum also will be the basis for the rule we plan
to propose in early 2008 to align our existing rules with the 2006
Amendments. Following our review of public comments received on the
proposed rule, we expect to issue a final rule prior to the FY 2009
distribution.
Question 2. Can you describe the incentives that are available to
promote re-mining of eligible lands in ways that will allow more
reclamation than would otherwise be achieved?
Answer. The coal industry historically avoided remining previously
mined areas due to the potential for increased liability for non-
compliant discharges as well as the potentially higher costs associated
with meeting SMCRA performance standards for backfilling, grading,
revegetation, etc. These difficulties occur because of past mining
exposing acid and toxic-forming minerals; insufficient availability of
soil materials to attain productive revegetation; and insufficient
spoil to cover old highwalls or achieve approximate original contour.
To encourage the industry to remine, Congress previously adopted
two major incentives for remining operations that recognize the
practical limitations of reclaiming previously-disturbed areas. The
1987 Rahall Amendment to the Clean Water Act established more lenient
effluent limitations for remining operations that encounter acid mine
drainage [33 U.S.C. Sec. 1311(p)].
The Energy Policy Act of 1992 amended SMCRA to (1) provide reduced
revegetation responsibility periods for remining operations and (2)
exempt those operations from the permit block sanction of section
510(c) of SMCRA if the violation that would have otherwise required
imposition of that sanction resulted from an unanticipated event or
condition on land eligible for remining. [42 U.S.C. Sec. 2503].
The Tax Relief and Health Care Act of 2006 added new section 415 to
SMCRA, authorizing us to adopt regulations providing additional
incentives, involving the use of amounts in the AML Fund to promote
remining of abandoned mine lands in a manner that leverages AML Fund
money to achieve more reclamation than would otherwise be possible.
Those incentives may include a rebate or waiver of the reclamation fee
and the use of Title IV monies to guarantee performance bonds for the
remining operation. We are in the process of proposing rules to
implement this provision.
Responses of Brent Wahlquist to Questions From Senator Wyden
Question 1. In March 2007, the Office of Surface Mining published
an Advance Notice of Proposed Rulemaking concerning the disposal of
coal combustion waste in mines. In June 2007, OSM received almost 2000
comments voicing concern that the proposed rule completely failed to
protect health and the environment. First, please explain how the
Office of Surface Mining has the requisite expertise to permit the
disposal of toxic waste in mines. This expertise lies uniquely with the
Environmental Protection Agency.
Answer. The U.S. Environmental Protection Agency (EPA) has twice
determined that coal combustion wastes do not warrant regulation as
hazardous wastes under Subtitle C of the Resource Conservation and
Recovery Act (RCRA). See 58 FR 42466, August 9, 1993, and 65 FR 32214,
May 22, 2000. The 2000 determination further found that placement of
these materials in coal mines for beneficial uses other than
minefilling did not warrant regulation under either Subtitle C or D of
RCRA. With respect to minefilling, the EPA determined that placement of
these materials should be regulated by one of the following methods:
Subtitle D of RCRA, which governs the disposal of non-
hazardous solid wastes in landfills;
SMCRA; or
A combination of SMCRA and Subtitle D of RCRA.
The 2006 report from the National Research Council contains the
same recommendation.
OSM and the states administering SMCRA regulatory and abandoned
mine land reclamation programs have the necessary expertise on the
geology, hydrology and other environmental conditions at active and
abandoned coal mining sites to ensure that placement occurs in a manner
that is protective of the environment and the public. OSM and the
primacy states have been regulating placement of these materials in
mines for many years with no known significant adverse impacts to date.
Question 2. Second, the March 2007 Proposed Rulemaking fails to
address the concerns and recommendations of the National Academies of
Science in their 2006 Report, ``Managing Coal Combustion Residues in
Mines.'' Can you please explain why you failed to address those
recommendations and how you intend to correct this failure?
Answer. The notice we published on March 14, 2007 (72 FR 12706) was
the first step in addressing the concerns and recommendations in the
2006 National Research Council (NRC) report. In the NRC report,
agencies were encouraged to actively seek public participation in
decisions involving the disposal of coal combustion wastes in coal
mines. In the March 2007 notice, we sought input from the public
concerning how we should implement the recommendations contained in the
NRC report. We are considering the comments that we received on this
notice as we decide how to draft proposed regulations that will address
the NRC recommendations. In the preamble to the proposed regulations,
we will discuss how the proposed regulations relate to the
recommendations. The public will have the opportunity to comment on the
proposed regulations before we issue a final rule.
Question 3. Lastly, EPA's recent publication of a risk assessment
on the disposal of coal ash has great bearing on the threat to human
health and the environment from the disposal of ash in mines. (Notice
of Data Availability, August 29, 2007, 72 Fed. Reg. 57572) How will OSM
take this critical information into account in its subsequent actions
on this issue?
Answer. The EPA notice of data availability published on August 29,
2007, pertained only to the disposal of coal combustion wastes in
landfills, surface impoundments, and sand and gravel pits. It did not
address the placement of coal combustion byproducts in coal mines.
Since 1999, OSM has been working closely with EPA on all aspects of
placement of these materials in coal mines. We have been meeting
regularly with EPA staff and are continuing to work with EPA in
developing our proposed rules. In fact, EPA's publication of the notice
of data availability was part of the joint, coordinated effort between
EPA and OSM that included our March 2007 notice and that will include
the proposed rule we are currently preparing.
______
Responses of Gregory E. Conrad to Questions From Senator Bingaman
Question 1. State Regulatory Programs--one of the issues you
highlight in your testimony is concern about funding for state
regulatory programs. I assume that this funding includes monies for
inspection and enforcement? How effective are the state programs in the
area of inspection and enforcement?
Answer. The grants that the states receive from the Office of
Surface Mining (OSM) pursuant to Title V of SMCRA are used to fund the
operation of state regulatory programs, including our inspection and
enforcement responsibilities. Perhaps the most reliable indicator of
how effectively the states are implementing this critical program area
is federal oversight by OSM. In its annual oversight reports for each
state, OSM includes information on state inspection activity, state
enforcement activity and the performance of the states in two critical
areas related to inspection and enforcement: off-site impacts and
reclamation results (bond release). An analysis of the most recent
oversight reports published by OSM (and available on their website)
indicates that no significant problems have arisen with regard to
inspection frequency or enforcement actions, and that states are
meeting performance measures established for minimizing off-site
impacts associated with surface coal mining operations and ensuring
successful reclamation on lands affected by surface coal mining
operations. The biggest challenge for state inspection and enforcement
efforts is lack of funding to support this critical program element as
laid out in our testimony.
Question 2. Can you please describe for us the work of the states
under Title V and the issues associated with this shortfall in funding?
Answer. Pursuant to the provisions of Title V, particularly section
503, in order for a state to receive approval of its regulatory program
by OSM, it must demonstrate that it has in place state laws and
regulations (no less stringent than OSM's national standards) that
provide for inspection and enforcement authority, implementation of a
permitting system, authority to issue and hold reclamation bonds and a
process to designate areas as unsuitable for mining. As the exclusive
and primary regulatory authorities under SMCRA, states are responsible
for permitting and bonding all surface coal mining and reclamation
operations within their borders, ensuring that these operations are
inspected frequently, issuing appropriate enforcement actions when
applicable regulations or permit conditions are violated, ruling on
petitions to declare lands unsuitable for mining, and coordinating with
a variety of federal agencies whose jurisdictional authorities
intersect with SMCRA. As noted in our testimony, when states do not
receive sufficient funding from OSM to support their programs, many of
these program elements are strained to the breaking point. State
programs must be adequately funded and staffed to insure that
permitting and inspection duties are both thorough and timely,
especially as states experience the reality of accelerating coal mine
production and expansion activities. When funding falls below program
needs, states may struggle to keep active sites free of offsite
impacts, reclaim mined areas and prevent injuries. In the end, the
increasing gap between the states' anticipated expenditures and actual
federal funding is compounding the problem caused by inflation and
uncontrollable costs, undermines our efforts to realize needed program
improvements and enhancements, and jeopardizes our efforts to minimize
the impact of coal extraction operations on people and the environment.
Question 3. Buffer Zone Rulemaking--Does your organization support
the proposed changes to the Office of Surface Mining Reclamation and
Enforcement's buffer zone rule? Would you prefer to keep the current
rule in place?
Answer. A copy of our comments on OSM's stream buffer zone proposed
rules is attached.
Question 4. OSM Oversight--What role does OSM play in overseeing
the state programs to ensure that the minimum standards of SMCRA are
being implemented? Is this working?
Answer. Pursuant to OSM' policy directive on oversight of state
regulatory programs (REG-8), OSM annually reviews state programs in a
number of different areas including inspection activity, enforcement
actions, permitting activity, number off-site impacts, reclamation
success (bond release), lands unsuitable activity, bond forfeiture
activity, staffing, and use of grant funds. Over the years, this
oversight function has moved from a bean-counting approach to a more
substantive review of key program elements in an effort to demonstrate
whether the purposes and objective of SMCRA are being accomplished. OSM
also conducts joint inspections with the states. The overall result is
an oversight program that makes sense and provides an accurate and
reliable picture of state program implementation.
Question 5. AML Amendments Implementation--From a state
perspective, what do you see as the key issues in implementing the
Abandoned Mine Land amendments passed by Congress last year?
Answer. A detailed delineation of our concerns with OSM's rules for
implementing the AML amendments is attached.
Question 6. Mountaintop Mining--Do you think that mountaintop
mining and related use of valley fills are consistent with the
requirements of SMCRA relating to water, hydrologic balance, and
approximate original contour?
Answer. As required by section 503 of SMCRA, we believe that state
regulatory programs are consistent with those provisions of SMCRA
concerning mountaintop mining and related use of valley fills. The
states do their best to insure that the mining practices authorized by
SMCRA comply with state regulatory requirements for the protection of
water resources, hydrologic balance and approximate original contour.
In this regard, the states most impacted by these types of mining
operations (West Virginia, Kentucky and Virginia) have been in the
forefront of developing enhanced guidance for coal operators with
regard to material balance determinations, spoil management, and
approximate original contour determinations so as to lessen the impacts
of these operations on the environment.
Attachment.--AML Comments
May 21, 2007.
Brent Wahlquist,
Acting Director, Office of Surface Mining, 1951 Constitution Avenue,
N.W., Washington, DC.
Dear Director Wahlquist: This letter represents the comments of the
National Association of Abandoned Mine Land Programs (NAAMLP) and the
Interstate Mining Compact Commission (IMCC) regarding draft rules
(proposed and interim final) developed by the Office of Surface Mining
(OSM) to implement the provisions of the Surface Mining Control and
Reclamation Act (SMCRA) Amendments of 2006 (P.L. 109-432). OSM provided
both the NAAMLP and IMCC with copies of the draft rules in April and
also attended a meeting of both organizations on May 2 and 3 in
Indianapolis to discuss the rules. We appreciate the opportunity to
submit comments on the draft rules as OSM prepares to move forward with
their promulgation later this year.
There are several key sections of the draft rules that we will
address in these comments, as noted below. However there are a few
over-arching issues related to the interpretation of the new law that
we will discuss first, as they set the stage for some of our
recommended changes to the rules. All of these issues grow out of OSM's
``Major Policy Issues'' paper that was also shared with the states in
April.
I. GENERAL OVERVIEW COMMENTS
Use of Grant Mechanism to Distribute Payments from the U.S. Treasury
Pursuant to the 2006 Amendments to SMCRA, two new types of payments
from the U.S. Treasury are established: 1) distribution of the prior
unappropriated state/tribal share balances over a seven year period
(Section 411(h)(1)) and 2) payments in lieu of future state/tribal
shares formerly paid out of the AML Trust Fund pursuant to section
401(g)(1) (Section 411(h)(2)). Section 402(i)(2) requires the Secretary
of the Treasury to transfer to the Secretary of the Interior ``such
sums as are necessary to pay the amount'' described above, but no
specific payment mechanism is prescribed. OSM prefers to distribute
these payments via grants to states and tribes, based on its reading of
the law and on past practice, rather than via direct distribution of
cash from the Treasury. The states and tribes posit that the new law
does not directly address this matter and therefore the Secretary has
the discretion to design a payment mechanism that meets the needs of
the states and tribes. In line with this discretionary authority, the
states and tribes prefer an approach that will provide them with
immediate access to those moneys that are due and owing from the
Treasury. This can be accomplished through a traditional grant process
for those who desire the ``protection'' and guidance that such a
process affords these monetary distributions. However, there is also
flexibility to design either a grant or a direct payment mechanism that
provides more unrestricted and immediate access to these moneys for
states who desire maximum discretion with regard to the use of these
moneys in line with the language in Section 411(h)(1)(D)(i) and (ii).
In the latter circumstance, the state legislatures will exercise their
fiduciary responsibility to insure that the funds are spent legally and
appropriately in accordance with the dictates of the 2006 Amendments
and state contracting law. Federal audits will also provide a measure
of scrutiny and review of project selection and expenditures. There are
also other mechanisms available for tracking and facilitating these
payments, one example being the management of mineral royalties paid to
states under the Mineral Leasing Act and another being a general
statement of work detailing how the money will be spent. The states and
tribes therefore urge OSM to incorporate significant flexibility and
discretion with regard to the types of mechanisms that are available
for distributing and expending Treasury payments for both the prior
unappropriated state/tribal balances and payments in lieu of future
state/tribal share to certified states and tribes.
Funding for Minimum Program States
The 2006 Amendments include several provisions that govern the
award of grant funds by OSM to states. Section 402(g) has three
paragraphs that bear on that topic. Section 402(g)(1) directs that ``50
percent of the reclamation fees collected annually in any State'' be
distributed to that state. Under section 402(g)(5)(A), ``[t]he
Secretary shall allocate 60 percent of the amount in the fund after
making the allocation referred to in paragraph (1)'' for additional
grants to states. And section 402(g)(8) states that ``In making funds
available under this title, the Secretary shall ensure that the grant
awards total not less than $3,000,000 annually to each State and each
Indian tribe. . .'' (emphasis added). This latter provision provides
OSM the justification for insuring annual minimum program grant funding
in excess of the base $3 million level as long as OSM does not
contribute more than $3 million from its own discretionary funds.
Section 401 of the bill also has relevant provisions. Sections
401(f)(1) and (2) direct OSM to distribute grant funds to states
annually, including the amount needed for the adjustment under section
402(g)(8) (i.e., the ``minimum program'' adjustment up to $3.0
million). Section 401(f)(3) has a similar provision:
IN GENERAL.-- . . . for each fiscal year, of the amount to be
distributed to States and Indian tribes pursuant to paragraph
(2), the Secretary shall distribute--
(i) the amounts allocated under paragraph (1) of section
402(g), the amounts allocated under paragraph (5) of section
402(g), and any amount reallocated under section 411(h)(3) in
accordance with section 411(h)(2), for grants to States and
Indian tribes under section 402(g)(5); and
(ii) the amounts allocated under section 402(g) (8).
This again makes it clear that the legislation requires OSM to
provide minimum program states at least $3.0 million annually, under
section 402(g)(8), commencing October 1, 2007.
In its restrictive reading of the bill, OSM depends upon a single
provision in section 401(f)(5)(B) to reduce the amounts of annual
grants to minimum program states from the minimum $3.0 million annual
required grant amount. That provision reads (with emphasis added):
(B) EXCEPTIONS.--Notwithstanding paragraph (3), the amount
distributed under this subsection for the first 4 fiscal years
beginning on and after October 1, 2007, shall be equal to the
following percentage of the amount otherwise required to be
distributed:
(i) 50 percent in fiscal year 2008; (ii) 50 percent
in fiscal year 2009; (iii) 75 percent in fiscal year
2010; (iv) 75 percent in fiscal year 2011.
OSM's reliance on this provision ignores the fact that by its own
terms (i.e. the ``notwithstanding'' phrase), it only overrides the
requirements of section 401(f)(3). Yet other provisions of the bill
independently require the distribution of the minimum amount of $3.0
million. See sections 401(f)(1) and (2) and section 402(g)(8). The
provision cited by OSM does not override the clear requirements of
those other parts of the bill.
The phase-in schedule of section 401(f)(5) only applies to such
additional funds as might otherwise be provided by OSM to the minimum
program states above the guaranteed distributions required elsewhere in
the statute. This means that OSM cannot contribute more than $1.5
million in additional funding to each minimum program state in fiscal
years 2008 and 2009, and not over $2.3 million in additional funding in
each of fiscal years 2010 and 2011, and not over $3.0 million in
additional funding in each subsequent year through fiscal year 2024.
This debate goes much deeper than the interpretations of the two
sections mentioned above. Congressional intent and history in the
passage of P.L. 95-87, the original ``Surface Mining Control and
Reclamation Act of 1977,'' deserves merit in the interpretation debate.
In the 95th Congress, the late Morris K. Udall (considered by many as
the ``father'' of P.L. 95-87) worked tirelessly with government
agencies, industry, and other organizations to make sure this law
became a reality. With regard to the reclamation of abandoned mine
lands, Title IV of P.L. 95-87 has been the guiding light for both OSMRE
and the States/Tribes for almost 30 years. During this time, AML
funding issues have overshadowed Congressman Udall's intent as outlined
in Section 403 of P.L. 95-87 ``Objectives of the Fund.'' Section 403
set specific priorities as to the expenditure of moneys from the AML
fund. The number one priority is ``the protection of public health,
safety, and property from extreme danger of adverse effects of coal
mining practices.'' It is significant that the Surface Mining Control
and Reclamation Act Amendments of 2006 removed the words ``general
welfare'' from the original wording of Section 403(1). In their
infinite wisdom, the 109th Congress wanted to further strengthen
Section 403(1) by placing a special emphasis on public health, safety,
and property.
There are no specific provisions in P.L. 95-87 or the 2006
Amendments that discuss in detail the specific State/Tribe AML funding
formulas that embrace historic coal production, state share (present
coal production), and federal discretionary expenses. However, in the
2006 Amendments Congress did single out states and tribes specifically
in Section 402(g)(8)(A) stating, ``In making funds available under this
title, the Secretary shall ensure that the grant awards total not less
than $3,000,000 annually to each State and each Indian Tribe having an
approved abandoned mine reclamation program pursuant to section 405 and
eligible land and water pursuant to Section 404, so long as an
allocation of funds to the State or tribe is necessary to achieve the
priorities stated in paragraphs (1) and (2) of section 403(a).'' The
fact that Congress has always (and in the 2006 Amendments continues to)
dedicate a section of the law to states and tribes traditionally known
as those with ``Minimum Programs'' solidifies the Congressional intent
that these states and tribes annually receive not less than $3,000,000.
In the late 1980s the Mid-Continent Coal Coalition was formed
because the Minimum Program States and Tribes had several hundreds of
millions of dollars worth of Priority 1 and Priority 2 AML hazards that
posed, and continue to pose, a very high public health and safety risk.
AML funding had fallen to an annual $1 million level that would not
allow the efficient operation of a State/Tribal AML Program. This
Coalition gathered Congressional support through letters, resolutions,
testimony at Congressional committee hearings, etc. As a result, the
budget reconciliation bill passed by the 101st Congress in the fall of
1990 required that the Secretary allocate annually not less than
$2,000,000 to Minimum Program States and Tribes. The passage of this
bill in1990 was definitive proof that Congress supported an increase in
funding for the Minimum Program States and Tribes.
For three years (FY1992, FY 1993, and FY 1994) the Minimum Program
States received $2 million annually. Since that time the Minimum
Program States have been limited to an annual allocation of only $1.5
million. The primary reason given for not allocating the statutorily
mandated annual $2 million was ``budget deficits.'' Then under the
Clinton administration, there was a ``budget surplus,'' but the annual
allocation remained at $1.5 million. For the last 13 years, Minimum
Program States have been critically underfunded in respect to the
number of Priority 1 and Priority 2 AML hazards that need to be
reclaimed. Respective Administration budgets and Congressional budgets
continued to hold the AML Fund ``hostage,'' while unappropriated
balances continued to rise.
In early December 2006, much to the surprise of both OSMRE and
States/Tribes, the 2006 Amendments took AML funding off budget. No
longer would Congress appropriate AML funds on an annual basis. The
pressure was now on OSMRE to develop a method(s) to distribute the AML
funds to States and Tribes. OSMRE began to develop future funding
projections under the new law. Since December 2006, OSMRE has
distributed four different funding charts. With each successive chart,
the funding numbers for the States and Tribes would change. But in all
four of these OSMRE charts, there was one constant--the Minimum Program
States (Alaska, Arkansas, Iowa, Kansas, Maryland, Missouri, and
Oklahoma) would receive no funding increases for FY 2008 and FY 2009.
Not until FY 2012 would Minimum Program States receive an annual $3
million.
In the last OSMRE Funding distribution chart (Chart 4), the
following funding increases are reflected when comparing FY 2007 AML
funding to FY 2008 AML funding, as well as the amount of Priority 1 and
Priority 2 coal hazards in the AML Inventory for each state:
------------------------------------------------------------------------
Funding
Increases Amount of Hazards
------------------------------------------------------------------------
Alabama............................ 96 % $49.1 million
Colorado........................... 175 % $24.9 million
Illinois........................... 45 % $55 million
Indiana............................ 138 % $12.3 million
Kentucky........................... 124 % $338.5 million
New Mexico......................... 187 % $3.2 million
North Dakota....................... 93 % $41.6 million
Ohio............................... 65 % $100 million
Pennsylvania....................... 29 % $1,016.9 billion
Utah............................... 147 % $4.9 million
Virginia........................... 115 % $104.1 million
West Virginia...................... 103 % $790.6 million
Louisiana.......................... 200 % $0.00
Montana............................ 229 % $8.5 million
Texas.............................. 238 % $800,000
Wyoming............................ 269 % $25.8 million
Crow Tribe......................... 260 % $500,000
Hopi Tribe......................... 250 % $0.00
Navajo Nation...................... 215 % $0.00
------------------------------------------------------------------------
It should be noted that the term ``minimum program'' does not refer
to lack of AML hazards that a state or tribe has to address, but rather
with the lack of funding being generated by active coal mines within
the state or tribe for purposes of remediating hazards associated with
past coal mining. For example, Oklahoma has an AML inventory of
priority 1 and 2 sites that will cost between $125 and 130 million to
reclaim using today's cost figures. Kansas has an AML inventory of
priority 1 and 2 sites that will cost over $200 million to remediate.
However, funds generated by current coal mining activities in these two
states generate around $25,000 annually for Kansas and around $100,000
annually for Oklahoma. For perspective, states like Kentucky and West
Virginia receive between $6,800,000 and $8,300,000 annually to perform
remediation of hazardous AML sites. Interestingly (and in some
respects, unfortunately), Oklahoma has an AML inventory of priority 1
and 2 hazards that will cost more to remediate than 14 of the states
and tribes listed above and Kansas has an AML inventory of priority 1
and 2 hazards that will cost more to remediate than 16 of the above-
listed states and tribes. Therefore, even though the ``minimum
program'' states may get minimum funding, they certainly have their
fair share of AML priority 1 and 2 hazards.
From December 2006 through February 2007, OSMRE continued to change
their funding distribution charts, using factors such as historic coal
production, state share fund balances, and present coal production.
During this three month process, each time a new chart was developed
OSMRE failed to put emphasis on the real problem; How much is the
public affected by Priority 1 and Priority 2 AML hazards? Ignoring AML
project sites that are an eminent danger to the health and safety of
the public is not what Congress intended.
OSMRE can find the funds in their FY 2008 budget to fund AML
Minimum Programs. OSMRE is phasing out the Clean Streams Initiative
Program and the Watershed Cooperative Agreements Program. This money
could be used to help fund the Minimum Programs at the annual $3
million level. Furthermore, in its News Release of February 5, 2007,
OSM noted that it has off-budget funds in its FY 2008 budget that could
fully fund AML minimum programs at not less that the $3 million level.
This money was provided to OSM for the purpose of, and should be used
for, fully funding the minimum programs at the $3 million level. The
bottom line is the Minimum Programs have been ignored for too many
years. With the passage of P.L. 109-432, Congress has sent a message to
OSMRE that Minimum Programs should be funded at an annual rate of $3
million, starting with the FY 2008 budget. The sad part of this impasse
is the fact that those living near or visiting these Priority 1 and
Priority 2 AML sites are exposed on a daily basis to the possibility of
death and/or injury.
Congress gave OSMRE the authority to develop the AML funding
distribution numbers for the states and tribes. The NAAMLP and IMCC
urge that during the development of proposed rules and regulations for
the 2006 Surface Mining Control and Reclamation Act Amendments, OSMRE
``look outside the box'' and consider the real reason that Title IV was
enacted almost 30 years ago.
Use of Unappropriated State Share Balances for Noncoal Reclamation and
AMD
Set-Aside
Since the inception of SMCRA in 1977 and the approval of state/
tribal AML programs in the early 1980's, the states and tribes have
been allowed to use their state share distributions under section
402(g)(1) of the AML Trust Fund for high priority noncoal reclamation
projects pursuant to section 409 of SMCRA and to calculate the set-
aside for acid mine drainage (AMD) projects. Under the new amendments,
states and tribes will receive their unappropriated balances in seven
equal payments beginning in FY 2008. In its most recent interpretation
of the 2006 Amendments, OSM has stated that these moneys cannot be used
for noncoal reclamation or for the 30% AMD set-aside. OSM also
initially stated that the historic coal distribution to non-certified
states and tribes would also not be available for noncoal reclamation,
but the agency appears to have relented on this issue and will allow
these moneys to be used for both noncoal reclamation and the 30% AMD
set-aside. With regard to the unappropriated state and tribal share
balances that will be distributed pursuant to Section 411(h)(1) of the
2006 Amendments, the states and tribes assert that these moneys should
also be available for noncoal reclamation under section 409 and for the
30% AMD set-aside. There is nothing in the new law that would preclude
this interpretation. Policy and practice over the past 30 years confirm
it. The unappropriated state and tribal share balances consist of past
moneys collected from coal producers in these states and tribes that
were never distributed due to restricted and under-funded
appropriations. This money has always been ``colored'' as state/tribal
share money, available for expenditure in accordance with the
provisions of SMCRA and now 30 years of experience. The fact that the
money is being paid out of Treasury funds does not change the ``color''
or operation of that money--it has been and will always be state/tribal
share money allocated pursuant to section 402(g)(1) of SMCRA.
OSM's new interpretation of SMCRA based on the 2006 Amendments is
without support in the law when read as a whole. In interpreting the
meaning of section 411, the entire statute must be read in context.
Section 403 (which OSM points to) is modified by Section 409, which
provides for the expenditure of AML funds at any priority 1 or 2 site,
regardless of the commodity that was mined. Section 409(b) indicates
that the 50% state share (from 402(g)(1)) and the historic production
distribution (402(g)(5)) can be used for noncoal reclamation. If
Congress had intended to limit the use of the unappropriated state/
tribal share balances (or historic production distributions) that are
now finally being returned pursuant to section 411(h)(1), it could have
easily done so. However, no changes were made in section 411 to
accomplish this. Nor was Section 409 amended in any way.
OSM's new interpretation is also a dangerous policy choice. OSM
claims that once a state has completed all of its coal projects, it can
then use all of its grant funds for noncoal projects. This will require
that states spend years working on high-cost, low-priority coal
projects that present little threat to public health and safety, while
numerous highly hazardous abandoned noncoal mines remain unattended. In
many western states, the AML programs have employed their AML grants to
protect people and property threatened by noncoal abandoned mines. In
New Mexico, for instance, the state estimates that over 10,000 mine
openings remain. The overwhelming majority of these openings are at
abandoned noncoal mines. All of the fatalities at abandoned mines in
New Mexico over the past few decades have occurred at noncoal mines.
With urban growth pushing into undeveloped areas and recreational uses
increasing, the danger to public health and safety from abandoned
noncoal mines throughout the country is increasing
Much of the above reasoning also holds true for the availability of
the unappropriated balances for purposes of calculating the 30% set-
aside for AMD abatement. Again, this work falls within the clear
purposes of section 403 of SMCRA and thus any type of restriction on
the use of these funds for AMD remediation is inappropriate. Section
403(g)(6)(B)(ii)(I) establishes and defines the use of AMD set-aside
funds. That section states that a qualified hydrologic unit destined
for AML abatement must have land and water that `` . . . include any of
the priorities described in Section 403.'' Obviously, this passage
provides a clear nexus to section 403 of the Act. The 2006 Amendments
at section 411(h)(1)(D)(ii) state that non-certified states must use
amounts provided from Treasury funds in place of the unappropriated
balances for `` . . . purposes described in Section 403.'' Again, a
clear nexus to section 403 is stated. Actually, the references in
sections 402 and 411 to section 403 are identical. Therefore AMD
abatement is a purpose under section 403 and Treasury funds should not
be artificially excluded for use in the set-aside for AMD. Finally, we
should note that each appropriation bill over the past several years
has included language that supports the use of funds made available
under Title IV of SMCRA for the purpose of environmental restoration
related to treatment or abatement of AMD without restriction. Based on
the above, the NAAMLP and IMCC request that OSM reconsider its
interpretation on the use of unappropriated state and tribal share
balances for noncoal reclamation and the AMD set-aside. Adjustments to
the draft rules based on these arguments appear below.
Reduction of the Treasury \1/7\ th payments for the unappropriated
balance by the amount of the export tax lawsuit loss
The relevant citations:
411(h)(1)(A)(i) of P.L. 109-432
In General--Notwithstanding section 401(f)(3)(B), from funds
referred to in section 402(i)(2), the secretary shall make payments to
States or Indian tribes for the amount due for the aggregate
unappropriated amount to the State or Indian tribe under subparagraph
(A) or (B) of section 402(g)(1).
411(h)(1)(B) of P.L. 109 432 (emphasis added)
Amount Due--In this paragraph, the term ``amount due'' means the
unappropriated amount allocated to a State or Indian Tribe before
October 1, 2007 under subparagraph (A) or (B) of section 402(g)(1).
As a part of our discussion on the unappropriated balance, OSM has
stated that should the export tax lawsuit ultimately be lost on appeal,
the loss shall be paid out of the trust fund and the 1/7th payments out
of the Treasury to each State or Tribe shall be reduced by the like
amounts each State or Tribe owed for the lawsuit.
Section 411(h)(1)(B) of P.L. 109-432 states that the amount due
each State or Tribe is the amount allocated to each State or Tribe
(State Share) before October 1, 2007. Unless the export tax lawsuit is
resolved prior to October 1, 2007, then the amount paid out of the
Treasury in 1/7th installments to each State or Tribe for the
unappropriated balance should not be reduced due to the lawsuit.
Although the trust fund would ultimately be reduced by the amount of
the export tax lawsuit loss, the payments out of the Treasury should
remain unchanged since the amount the payments will be based upon will
be established as of October 1, 2007. Further, we do find any language
in P.L. 109-432 that can be interpreted to give OSM the authority to
reduce payments from the Treasury for the unappropriated balance.
Effective Date of In-lieu Payments
There has been some confusion about when in-lieu payments from the
U.S. Treasury begin under the 2006 Amendments. OSM has stated that they
begin in FY 2009, and that payments to certified states and tribes of
their 50% share in FY 2008 are made from the AML Trust Fund. Our
reading of the 2006 Amendments is that the in-lieu payments from the
Treasury begin immediately in FY 2008. The relevant citations are:
Section 401 (f)(3)(B) of P.L. 109-432:
(B) EXCLUSION.--Beginning on October 1, 2007, certified States
shall be ineligible to receive amounts under section 402(g)(1).
Section 411 (h)(1)(B & C) of P.L. 109-432:
(B) AMOUNT DUE.--In this paragraph, the term ``amount due'' means
the unappropriated amount allocated to a State or Indian tribe before
October 1, 2007 under subparagraph (A) or (B) of section 402(g)(1).
(C) SCHEDULE.--Payments under subparagraph (A) shall be made in 7
equal annual installments, beginning with fiscal year 2008.
Section 411 (h)(2)(A) of P.L. 109-432:
(A) IN GENERAL.--Notwithstanding section 401(f)(3)(B), from
funds referred to in section 402(i)(2), the Secretary shall pay
to each certified state or Indian tribe an amount equal to the
sum of the aggregate unappropriated amount allocated on or
after October 12, 2007, to the certified State or Indian tribe
under subparagraph (A) or (B) of section 402(g)(1).
OSM has advanced the following explanation to support its current
declared intention to pay state share funds to the certified states
under section 402 (g)(1) in FY 2008 (emphasis added):
Certified states and tribes will receive distributions under
section 401(f) only in FY 2008 because the bill adds a new
section 401(f)(3)(B), which provides that certified states and
tribes are ineligible to receive their state-share or tribal-
share allocations with respect to fees collected after FY 2007.
However, FY 2008 distributions consist of FY 2007 fee
collections, so certified states and tribes are eligible to
receive 50% of their state or tribal share allocation of fees
collected for that year.
Beginning with FY 2009, certified states and tribes will receive
annual payments from the Treasury in lieu of the amount of fee
collections during the previous year that would otherwise have been
allocated to their state or tribal share accounts in the AML fund in
the absence of new section 401(f)(3)(B) of SMCRA. Section 411(h)(2) of
SMCRA.\1\
---------------------------------------------------------------------------
\1\ Major Provisions of P.L. 109-432: SMCRA Amendments Acot of
2006, page 3. Distributed to NAAMLP members at its business meeting
February 28-March 1, 2007.
---------------------------------------------------------------------------
Section 401(f)(3)(B) of P.L. 109-432 states that beginning October
1, 2007, certified states shall not be paid under 402(g)(1). This
provision is a complete exclusion. It prohibits certified States or
Indian tribes from receiving grants funded by the reclamation fee
effective October 1, 2007. There is no language in this section to
support an interpretation that a certified State or Indian Tribe can
receive after October 1, 2007 grants funded by reclamation fees
collected prior to October 1, 2007.
In order to support the position that the exclusion established by
Section 401(f)(3)(B) does not apply to grants issued in fiscal year
2008 if funded by reclamation fees collected during fiscal year 2007,
OSM staff have explained that the term ``received'' as used in Section
401(f)(3)(B) means ``allocated''. This interpretation is contrary to
the normal and ordinary usage of the term ``received'' and is contrary
to standard principles of statutory construction. Unless the context
clearly indicates otherwise, or the word has been given a specific
definition, words in a statute are to be given their normal meaning.
Relying on this interpretation, OSM has developed a distribution
chart dated February 22, 2007, showing that $41.6 million will be paid
to the certified States or Indian tribes under 402(g)(1) in FY 2008.
This distribution represents FY 2007 fee collections. This approach is
correct for distributions to non-certified states as required by
401(f)(2) and (3). However, Section 401(f)(3)(B) prohibits certified
States or Indian tribes from receiving payments of funds under 401(f)
beginning on October 1, 2007. The fees collected and allocated in FY
2007 are to be included in the amounts due to the states that are
allocated but not appropriated under Section 411(h)(1)(B). These funds
are then paid over seven years, beginning in FY 2008 under
411(h)(1)(C).
The effect of this misinterpretation of Section 401(f)(3)(B) and
411(h)(1)(B) is that $41.6 million would be paid to certified States or
Indian tribes with fee collections instead of Treasury funds as
required by Section 411(h)(1)(A)(i). The funds so paid will then not be
available to be reallocated as historic share funds available for
grants under Section 411(h)(4)(A). Furthermore, the interest that
should be earned annually on this $41.6 million and paid to the
Combined Benefit fund would not be earned and available to be paid.
The draft language in the Proposed and the Interim-final
regulations on this subject is consistent with the statutory language
in P.L. 109-432 and so does not need to be changed. However OSM's
interpretation of P.L. 109-432 is flawed. Based on the above arguments,
the NAAMLP and IMCC urge OSM to revise the proposed AML funding
distribution chart to show that:
(a) no state share funds are distributed to the certified
States or Indian tribes in FY 2008; but,
(b) The $41.6 million should then be included in the
calculation of the amount due to certified States and Indian
tribes under Section 411 (h)(1)(B).
Adjustments to the Grants Process
There is a fair amount of concern by the states and tribes about
how the grants process will work under the 2006 Amendments. With the
increased amount of money that will be flowing to the states, it will
be incumbent on both OSM and the states and tribes to be particularly
sensitive to the impacts on the grants process--especially with regard
to the length of grants, rollovers, tracking of grant amount
(especially by account), recapture, and paperwork reduction. We assert
that the timing is ripe for revisiting the existing simplified grants
process to consider additional streamlining and simplification. There
is some concern that the 2006 Amendments could unnecessarily complicate
the paperwork demands associated with annual grants, especially if we
are required to track various kinds of moneys that are received. It
will be particularly important to clarify that moneys are ``expended''
once they are obligated, encumbered or otherwise committed for
projects. Even with this, deobligation could become a problem if we are
unable to roll grants over from year to year. We understand that OSM
will be considering various adjustments to the Federal Assistance
Manual and to its AML directives and we request an opportunity to
review those revisions once they are available. This may present an
ideal opportunity for further clarifications to address the above
concerns.
Annual Distribution Charts
It will be critical for the states and tribes to receive the annual
distribution charts for AML grants as soon as practicable after the
beginning of each fiscal year (i.e. by no later than November 15) .
This will be particularly true in the first few years as the states and
tribes attempt to forecast how the distribution will impact their
respective programs. In this regard, we have attached a chart that, in
simplified terms, demonstrates our understanding of the gross
distribution formula as presented by OSM to date. It should be noted
that the states and tribes do not agree with this distribution formula,
as indicated by our comments on the proposed and interim rules. In
fact, we have argued in these comments for various adjustments to the
formula and to the use of the distributed funds based on our reading of
the new 2006 AML amendments. Nonetheless, we would appreciate OSM's
comments on our attempt to capture OSM's distribution formula under
their interpretation of the 2006 Amendments and any additional
explanations (flowcharts) that OSM can share with us regarding their
interpretation of the distribution formula under the new law.
Training
It will be very important for the states and tribes to receive the
necessary training to implement the provisions of the new rules, once
they are in place--especially as they impact the grants process. We
urge OSM to keep this in mind as they consider implementation plans for
the future.
Preamble Language
We recognize that one mechanism OSM has available to clarify
certain aspects of the proposed and interim final rules is through the
use of preamble language. We would encourage OSM to do so. One example
is the need to adjust the priority matrix contained in the Federal
Assistance Manual (FAM) to reflect regional differences in land use
patterns. Given that much of SMCRA's history was predicated on land use
patterns and experience with hazards in the Eastern United States,
there are unintentional gaps that fail to recognize the uniqueness of
circumstances in other regions of the country. Whereas residents of
Eastern states, for instance, may have residences or other structures
that were built adjacent to known hazards, residents of Western states
(and non-resident recreational users of Western lands) are exposed to
AML features that consist of largely unknown hazards that are equally,
if not more, dangerous than ``known'' features. Thus, as we consider
what would be defined as an ``extreme danger'', we need to be cognizant
of the fact that unknown hazards in remote or rural areas can be even
more dangerous than known dangers as the unsuspecting public encroaches
on these areas through occasional use or through urban sprawl.
Recognizing the exposure of the populace to the hazards associated with
abandoned mine sites will assist the states, tribes and the federal
government in fully implementing the objectives of the AML program
under SMCRA.
II. PROPOSED REVISIONS TO OSM'S DRAFT PROPOSED AND INTERIM RULES
The NAAMLP and IMCC recommend the following changes to OSM's draft
proposed and interim final rules based on the above commentary.
Section 870.5--Definitions
``Adjacent''--change to read as follows:
Adjacent means adjoining, in proximity to or contiguous with
eligible lands and waters.
Justification: OSM's draft rule implies that a Priority 1 or 2
project must be undertaken in order for a Priority 3 project to be
considered ``adjacent to'' the Priority 1 or 2 problem. This is not
what the law requires. It is not a matter of priority; it is a matter
of proximity. As long as the Priority 3 project is geographically
connected to the Priority 1 or 2 site, the test is satisfied.
Furthermore, OSM's proposed language conflicts with statutory
provisions in sections 403(a)(1)(B)(ii) and (2)(B)(ii) that eligible
lands include those that ``are adjacent to a site that has been or will
be remediated.'' (emphasis added). In its proposed language, OSM is
implying that for a priority 3 feature to be eligible, it has to be
reclaimed in order to access or remediate the priority 1 or 2 feature.
This simply cannot be the case if the priority 1 or 2 feature has
already been reclaimed or may be so in the future, as anticipated by
the 2006 amendments. We recommend use of the common dictionary
definition of ``adjacent''. We also oppose the concept of tying the
definition to a monetary determination. There is nothing in the law to
support this criterion and we believe it would be difficult to
determine and apply. The use of a proximity criterion will also allow
us to take into consideration public rights of way, roads, etc, that
may be present at or near the site. Finally, to define the term
otherwise would be to severely limit the number and types of Priority 3
projects that could be addressed, which is contrary to the intent of
the law.
``In conjunction with''--change to read as follows:
In conjunction with means reclamation of priority 3 features
in phases or through a combination of contracting and
construction with priority 1 and/or 2 features.
Justification: It is important to recognize that Priority 3 work
cannot only be done in conjunction with a Priority 1 or 2 feature
through a combined contracting or construction effort, but in phases of
construction with a Priority 1 or 2 project, especially where the
project is particularly large or the AML program is small (as with the
minimum program states). We recommend deletion of the phrase ``would
have provided significant savings to the AML fund'' for the same reason
we recommend deletion of the last sentence in the definition: these
terms are elusive and difficult to define and quantify. The law does
not specify this type of monetary criterion and it would be challenging
to implement. We assert that it is best to focus on the administrative
aspects of project work, which are easier to define. Finally, to define
the term otherwise would be to severely limit the number and types of
Priority 3 projects that could be addressed, which is contrary to the
intent of the law.
``Qualified Hydrologic Unit''--change to read as follow:
Change the word ``and'' to ``or'' between subparagraphs
(b)(1) and (2), as in the existing regulations.
Justification: We realize that OSM's new definition is consistent
with the statutory language, but actual practice over the past 25 years
has been that hydrologic units are defined as containing lands and
waters that are either eligible OR the subject of bond forfeitures, but
not both. To define the term otherwise would be to severely limit the
scope of this important provision of the law. With the new emphasis on
allowing states to set aside upwards of 30% of their AML funds for the
abatement of acid mine drainage projects, to limit the definition in
this way would emasculate the purposes and intent of the program.
Section 872.11(b)(1)--Abandoned Mine Reclamation Fund
Delete section 872.11(b)(4)(ii)(E).
Justification: Based on the arguments articulated above with
respect to the use of the states' and tribes' unappropriated share
balances, this section should be deleted. There is no basis to restrict
the use of these moneys for noncoal reclamation.
Section 872.13--Other Treasury Funds for Abandoned Mine Reclamation
Programs
Change the reference in the introductory phrase of subparagraphs
(a) and (b) to read: ``872.11(b)(1)(vi) and (b)(2)(vi)''--NOT
``(vii)''.
Change Subparagraph (a) and (b) to read as follows:
``Notwithstanding Sec. 872.11(b)(1)(vi) and (b)(2)(vi), from funds in
the Treasury not otherwise appropriated and transferred to the
Secretary of the Interior pursuant to section 402(i)(2) of the Act,
effective October 1, 2007, OSM shall make payments to States and Indian
tribes . . . .'' Also, in subparagraph (a), change the reference to
``prior balance funds'' to ``prior balance payments''.
Change section 872.13(a)(3) to read as follows: ``States and Indian
tribes may apply for and receive these annual installments in grants,
following the provision of Section 886. Unless a certified State or
Indian tribe specifically requests that OSM disburse funds due the
State or Tribe in whole or in part through a grant or grants, payments
referred to in Section 411(h)(1)(A) (prior balance payments) shall be
made in one lump sum payment to the State or Tribe no later than 90
days after the start of the federal fiscal year in which the payment is
due.''
Change section 872.13(b)(3) as follows: delete the current language
and insert the following: ``Unless a certified State or Indian tribe
specifically requests that funds be disbursed through a grant or grants
following the provisions of section 886, payments referred to in
Section 411(h)(2)(A) (in lieu of payments) shall be made annually in
one lump sum payment to the State or Tribe no later than 90 days after
the end of the federal fiscal year in which the collections are made.''
Change section 872.11(b)(4) by striking the word ``shall'' and
inserting ``may''.
Justification: All of these changes are intended to reflect the
discretionary authority vested in the Secretary to make payments to
states and tribes through either grants or direct payments, depending
on the preference and needs of the respective state or tribe. Section
411(h) uses the term ``payments'' which appears to embrace a wider
degree of flexibility regarding distribution of funds other than just
grants. See also the discussion on this topic above.
Change subparagraph 872.13(a)(5) to read as follows:
(5) States and Indian tribes that are not certified under
section 411(a) of the Act shall use any amounts available under
this paragraph to achieve the priorities described in sections
403(a)(1),(2) and (3) of the Act, for water supply restoration
under sections 403(b)(1) and (2) of the Act, for AMD abatement
under section 402(g)(6) and for noncoal reclamation under
section 409 of the Act.
Justification: The 2006 Amendments at Section 411(h)(1)(D)(ii)
state that the unappropriated prior state and tribal share funds must
be used as described at section 403. In interpreting the meaning of
sections 411 and 403, the entire statute must be read in context. When
doing so, it is clear that section 403 is modified by section 409.
Section 409 provides for expenditure of funds at any priority 1 or 2
site, regardless of commodity mined. Furthermore, section 409(b) states
that the 50% state and tribal share can be used for noncoal reclamation
(referencing section 402(g)). The unappropriated state and tribal
shares are in fact the balance of the 50% shares referenced in section
402(g) that have been held in abeyance over the years. There should be
little ambiguity that this money is available for noncoal reclamation
(as well as for the 30% AMD set-aside). If Congress had intended to
somehow qualify or restrict the use of the unappropriated balances, it
could easily have done so in section 411. However, it failed to do so
and thus we can only assume that the traditional funding mechanism that
has prevailed over the past 30 years remains intact. Such an
interpretation is also consistent with the purposes and objectives of
Title IV of SMCRA, which are to protect citizens from the adverse
impacts of past mining practices--both coal and noncoal.
Add a new subparagraph 872.13(b)(5) as follows: ``Payments referred
to in section 872.13(b)(3) to certified States and Tribes shall be used
with priority given to abandoned coal mine reclamation needs until the
State or Tribe and OSM determine that abandoned coal mine reclamation
is substantially complete. Thereafter, current in lieu payments will be
used for purposes established by the state legislature or tribal
council.''
Justification: The law and draft rules are unclear as to how
certified states and tribes may use current in lieu funds when the
state or tribe has completed abandoned coal mine reclamation. Current
in lieu funds in excess of those required for completion of abandoned
coal mine reclamation should be used for purposes established by the
state legislature or tribal council with priority given to addressing
the impacts of mineral development.
Section 873.12--Future set-aside program criteria
In subparagraph (a), change the last phrase to read as follows: ``
. . . are expended by the State or Indian tribe solely to achieve the
priorities stated in Sections 403(a) and 409 of the Act, 30 U.S.C. 1233
and 1239, after September 30, 1995''.
Justification: This adjustment is needed to clarify that funds set-
aside by the states prior to December 12, 2006 are available for both
coal and noncoal work.
Section 875.15--Reclamation priorities for noncoal program.
Delete Subparagraphs (c)--(f).
Justification: These subparagraphs must be deleted in order to be
consistent with the new provisions in the 2006 Amendments at section
411(h)(1)(D)(i) regarding use of AML funds by certified states and
tribes. Pursuant to this section of the 2006 Amendments, certified
states and tribes are allowed to use their AML funds ``for the purposes
established by the State legislature or tribal council of the Indian
tribe, with priority given for addressing the impacts of mineral
development''. Thus those provisions in OSM's existing regulations that
provide for a concurrence role by the OSM Director are no longer
applicable and should be removed. Furthermore, as we argue above, the
payment mechanism that will attend the distribution of these funds will
likely be different than what has occurred in the past, and therefore
the provisions in subparagraphs (c), (e) and (f) will likely no longer
be applicable.
Section 876--Acid Mine Drainage Treatment and Abatement Program
Section 876.12 Eligibility--add the following: ``or up to 30% of
the funds received pursuant to Section 4121(h)(1) of the Act.''
Justification: this language clarifies that up to 30% of the prior
unappropriated state and tribal share balances distributed form
Treasury funds may be deposited into state and tribal AMD set-aside
funds.
Section 886.12(b)--Coverage and amount of grants.
Change subparagraph (b) to read: ``Grants shall be approved for
reclamation of eligible lands and water in accordance with sections 404
and 411 of the Act and 30 CFR 874.12, 875.12 and 875.14, and in
accordance with the priorities stated in sections 403, 409 and 411 of
the Act . . . .''
Justification: We have added section 409 as part of the priority
reference to be consistent with the above changes regarding noncoal
reclamation and to specifically reference noncoal lands.
Section 886.13 (b)--Grant period
Change subparagraph (b) to read as follows: ``The Director shall
approve a grant period on the basis of the information contained in the
grant application. The grant period should normally be for 3 years, and
may be extended. Grants of funds distributed in Fiscal Years 2008, 2009
and 2010 shall be awarded for 5 years.''
Justification: We understand that OSM will not require specific
projects to be listed in the grant application, so this phrase has been
removed. We also understand that OSM will allow extensions of the
normal 3 year grant period and that those extensions may be for more
than one year, which we believe is appropriate. Finally, we assert that
the 2006 Amendments specifically call for a 5 year grant period for
Fiscal Years 2008--2010 and that this is a mandatory requirement.
One further note: it does not appear that the section 411(h)(1)
Treasury funds are subject to any of the grant period timelines
established by section 402(g)(1)(D). Nor does there appear to be any
authority in the Act to establish timelines for the use of 411 funds.
Thus, an annual distribution payment in the full amount due under
section 411 should be available as an option for grants to each state/
tribe, which in turn could be deposited into a separate state account
and considered state funds and used without restriction for any section
403 priority (including AMD abatement).
Section 886.16(a)--Grant agreements
Change subparagraph (a) to read as follows: ``OSM shall prepare a
grant agreement that includes a general statement of the types of work
to be covered by the grant.''
Justification: We assert that the grant agreement need only contain
a general statement of the types of work to be covered by the grant,
not a listing of specific projects. This change is intended to clarify
that intent.
Section 886.26--Unused Funds
Delete subsections 886.26 (a)(iii) and (iv). Also, delete
subparagraph 886.26(b) and add the following: ``Deobligation
requirements do not apply to certified States and Tribes.''
Justification: No treasury payments should be subject to
deobligation requirements. OSM should work with the states and tribes
to insure that funds do not revert back to the Treasury. With maximum
flexibility in designing payment protocols and with appropriate grant
periods and applicable requirements, there should be no need for
reversion of these payments, especially if OSM and the states/tribes
are working together to closely monitor the situation.
We appreciate the opportunity to submit these comments and trust
that OSM will give them serious consideration as the agency moves
forward with the development of the proposed and interim final rules.
We would welcome the opportunity to meet with OSM to further discuss
the draft rules, should you so desire.
Sincerely,
John Husted,
President, National Association of Abandoned Mine Land Programs.
Gregory E. Conrad,
Executive Director, Interstate Mining Compact Commission.
Attachment.--OSM Overview of AML Funding Per 2006 Amendments
Attachment.--Stream Buffer Zone Comments
November 19, 2007.
Brent Wahlquist,
Director, Office of Surface Mining, Administrative Record, Room 252
SIB, 1951 Constitution Avenue, N.W., Washington, DC.
RE: RIN 1029-AC04
Dear Director Wahlquist: This letter constitutes the comments of
the Interstate Mining Compact Commission (IMCC) on proposed rules by
the Office of Surface Mining Reclamation and Enforcement (OSMRE)
concerning stream buffer zones, excess spoil and coal mine waste. The
rules were published on August 24, 2007 at 72 Fed. Reg. 48890. IMCC is
a multi-state governmental organization that represents the natural
resource and environmental protection interests of its 24 member
states. Many of IMCC's member states serve as primary regulatory
authorities under the Surface Mining Control and Reclamation Act
(SMCRA) and are responsible for the issuance of permits for surface
coal mining operations throughout the U.S.
We understand that OSM's intent under the proposed rules is to
provide greater clarity regarding the interpretation of the stream
buffer zone rules, especially with respect to what the rules require,
consistent with underlying statutory authority. These rules have been
in place for almost 25 years and have survived legal challenges both on
their face and in actual application, as noted in OSMRE's preamble.
What remains unclear is the degree to which application of the existing
rules will result in continued legal challenges to future permitting
actions. OSMRE's proposed rules appear to be aimed at clarifying the
scope of their applicability in an effort to minimize future litigation
and thereby provide greater certainty in the permitting process.
Our analysis of the rules suggests that by expanding the scope of
the rule to include all ``waters of the United States'' instead of just
perennial and intermittent streams, OSM is further complicating the
situation. The term ``waters of the United States'' is fraught with
unresolved issues and jurisdictional difficulties particularly in light
of the Supreme Court's rulings in Solid Waste Agency of Northern Cook
County v. Corps of Engineers (SWANCC), and Rapanos v. Untied States
(Raponos). The guidance provided by the U.S. Army Corps of Engineers
(Corps) on these decisions is still in limbo and legislation and
lawsuits on the issues continue unabated. OSM asks in its preamble
whether this proposed change in the administration of SMCRA regulatory
programs makes sense, and whether the benefits outweigh the problems.
The answer to both questions, from our perspective, is probably not.
With regard to the alternatives analysis that has been proposed for
excess spoil fills and coal mine waste disposal, we envision even less
clarity. The model proposed by OSM in its proposed rules will, in our
opinion, result in unending litigation concerning whether the correct
alternative was selected by the permit applicant and approved by the
state. Rather than reducing uncertainty, the rule has the potential to
perpetuate it. Of greater concern to the states is the impact that
these types of analyses will have on resources. We assert that the time
and effort which will be required by state permitting personnel to
adequately review and rule upon these alternative analyses will be
potentially overwhelming. Given the current fiscal constraints under
which the states are operating, attempting to accommodate the
requirements of the proposed rules could seriously jeopardize these
primacy programs. Finally, the alternative analysis is duplicative of
requirements under the Clean Water Act that are already encompassed by
the SMCRA permitting scheme, as noted in OSM's preamble.
We trust that, as OSM proceeds forward with the rulemaking process,
the agency will seriously consider these two significant concerns from
the state regulatory authorities. OSM will also likely receive comments
from individual states on these and other aspects of the proposed rule,
which we commend to your serious review and consideration. In the end,
we hope that OSM will develop a final rule that addresses these matters
and that clarifies the issues addressed in its preamble. We welcome the
opportunity to work with the agency to accomplish this important
undertaking.
Sincerely,
Gregory E. Conrad,
Executive Director.
______
Responses of Joan Mulhern to Questions From Senator Bingaman
Question 1a. Stream Buffer Zone Rule--Please summarize the Federal
District Court holding in Bragg v. Robertson, 72 F. Supp.2d 642
(S.D.W.V. 1999), rev'd, 248 F.3 275 (4th Cir. 2001). I understand that
the Court of Appeals for the Fourth Circuit reversed the District Court
ruling on procedural grounds (sovereign immunity), leaving Judge
Haden's substantive pronouncements on SMCRA as the operative
interpretation.
Answer. Mr. Chairman, that is correct. The requirements of the
current Stream Buffer Zone rule are clear on their face. There are not
many federal environmental regulations where compliance can be
determined by using a tape measure, but the Stream Buffer Zone is such
a rule. It has been interpreted by West Virginia federal district Judge
Charles Hayden (as well as the Clinton administration) in a manner that
is consistent with its plain language, and that ruling was not
overturned on its merits. The rule states:
(a) No land within 100 feet of a perennial stream or an
intermittent stream shall be disturbed by surface mining
activities, unless the regulatory authority specifically
authorizes surface mining activities closer to, or through,
such a stream. The regulatory authority may authorize such
activities only upon finding that--
--(1) Surface mining activities will not cause or contribute to the
violation of applicable State or Federal water quality
standards, and will not adversely affect the water quantity
and quality or other environmental resources of the stream;
and
--(2) If there will be a temporary or permanent stream-channel
diversion, it will comply with Sec. 816.43.
(b) The area not to be disturbed shall be designated as a
buffer zone, and the operator shall mark it as specified in
Sec. 816.11. 30 C.F.R. Sec. 816.57 (1983) (emphasis added).
When adopting the Stream Buffer Zone rule in 1983, the Office of
Surface Mining (OSM) recognized the importance of protecting mountain
streams consistent with the statute. The agency explained that
``intermittent and perennial streams generally have environmental
resource values worthy of protection under section 515(b)(24),'' and
``surface coal mining operations will be permissible as long as
environmental protection will be afforded to those streams with more
significant environmental values'' (i.e. intermittent and perennial
streams).\1\
---------------------------------------------------------------------------
\1\ 43 Fed. Reg. at 30313 (June 30, 1983).
---------------------------------------------------------------------------
Thus, the 1983 rule was clear, both in the language of the
regulation itself and the accompanying preamble statement that
intermittent and perennial streams needed to be protected pursuant to
the statutes. Surface coal mining activities (including valley fills
and coal waste impoundments) within 100 feet of these valuable
intermittent and perennial streams were not allowed--the streams were
to be protected within a designated a buffer zone--except only to the
extent that incursions into the zone would not adversely affect stream
function, water quality, water quantity, or other environmental values.
In October 1999, Judge Haden, then Chief Judge of the District
Court for the Southern District of West Virginia, ruled that ``[v]alley
fills are waste disposal projects so enormous that, rather than the
stream assimilating the waste, the waste assimilates the stream.''
Bragg v. Robertson, 72 F. Supp.2d 642, 662 (S.D.W.Va. 1999), vacated on
other grounds, Bragg v. West Virginia Coal Ass'n, 248 F.3d 275 (4th
Cir. 2001), cert. denied, 534 U.S. 1113 (2002). Judge Haden further
observed that id. at 662, and went on to note that:
[w]hen valley fills are permitted in intermittent and
perennial streams, they destroy those stream segments. The
normal flow and gradient of the stream is now buried under
millions of cubic yards of excess spoil waste material, an
extremely adverse effect. If there are fish, they cannot
migrate. If there is any life form that cannot acclimate to
life deep in a rubble pile, it is eliminated. No effect on
related environmental values is more adverse than obliteration.
Id. at 661-62 ) (emphasis added).
Not surprisingly, Judge Haden ruled that ``placement of valley
fills in intermittent and perennial streams violates federal and state
water quality standards'' and are impermissible under the Stream Buffer
Zone rule. Id. at 662. While the case was overturned on jurisdictional
grounds, Judge Haden's substantive observations, which the Court of
Appeals did not address, are valid and compelling. See Bragg v. West
Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001).
It is also worth noting that in its brief on appeal in the Bragg
case, the United States Department of Justice, representing OSM, EPA
and the Army Corps of Engineers, essentially conceded that Judge
Haden's interpretation of the law was correct:
[Judge Haden] correctly found that SMCRA's stream buffer zone rule.
. . prohibits the burial of substantial portions of intermittent and
perennial streams beneath excess mining spoil. The elimination of
substantial intermittent or perennial stream segment [sic] necessarily
causes adverse environmental effects, as it eliminates all aquatic life
that inhabits those stream segments. As the district court rightly
concluded, the elimination of entire stream segments and all the life
they contain plainly causes environmental harm. Accordingly, the
district court correctly granted summary judgment on plaintiffs' buffer
zone claims.\2\
---------------------------------------------------------------------------
\2\ Brief for the Federal Appellants, 4th Cir., No. 99-2683, April
17, 2000 (hereafter ``U.S. Br.''), p. 2. In the 2004 proposal to change
the Stream Buffer Zone rule, OSM suggested that the DOJ brief is ``not
consistent with our historic interpretation'' and that OSM never agreed
with it or approved it. 69 Fed. Reg. at 1039-40. That is untrue. DOJ
told the Fourth Circuit that ``Attorneys for EPA and OSM are identified
on the cover of the federal appellants' brief as being `of counsel' to
this appeal, and the position taken in the brief for the federal
appellants represents the unified position of the federal agencies.''
Federal Appellants' Opposition to the Motion of the Intervenor-
Defendants to Strike the Brief of the Federal Appellants and to Dismiss
Appeal No. 99-2683, p. 2, Attachment 2.
---------------------------------------------------------------------------
Additionally, these agencies stated that:
The district court also correctly. . .[held]. . .that the
burial of substantial portions of intermittent or perennial
streams in valley fills causes adverse environmental impact in
the filled stream segments and therefore cannot be authorized
consistent with the buffer zone rule. The uncontested evidence
demonstrates that the burial of substantial portions of
intermittent or perennial streams causes adverse environmental
effects to the filled stream segments, as such fills eliminate
all aquatic life that inhabited those segments.\3\
---------------------------------------------------------------------------
\3\ Id. at 24-25 (emphasis added).
OSM, EPA, and the Corps further stated that ``valley fills that
disturb intermittent or perennial streams may be approved only if there
is a finding that activity will not adversely affect the environmental
resources of the filled stream segment.''\4\
---------------------------------------------------------------------------
\4\ Id. at 41.
---------------------------------------------------------------------------
In a May 22, 2000 letter, Acting OSM Director Kathrine Henry
adopted the same position that ``the stream buffer zone waiver findings
must be made not only for segments downstream of the fill, but also for
each segment of an intermittent or perennial stream in which excess
spoil is placed.'' In its 2004 proposed rule, OSM admitted that this
brief and this Acting Director's letter took the position that the rule
applied to valley fills.\5\
---------------------------------------------------------------------------
\5\ 69 Fed. Reg. at 1040.
---------------------------------------------------------------------------
Now OSM has completely reversed their position and would totally
exempt valley fills, waste impoundments, and other stream incursions
from the rule. And, quite cynically, in its 2007 proposed rule, OSM
conveniently omitted any material indicting that it has reversed
itself. Instead, the agency cryptically cross-referenced its former
brief and other materials as an ``additional discussion of litigation
and related matters.''\6\
---------------------------------------------------------------------------
\6\ 72 Fed. Reg. at 48896.
---------------------------------------------------------------------------
Question 1b. Do you agree with the District Court that the current
buffer zone rule applies to all portions of a perennial or intermittent
stream and that the buffer zone rule can be harmonized with other SMCRA
regulations?
Answer. Yes. In his decision, Judge Haden wrote that ``[n]othing in
the statute, the federal or state buffer zone regulations, or the
agency language promulgating the federal regulations suggests that
portions of existing streams may be destroyed so long as (some other
portion of) the stream is saved.'' Bragg, 72 F. Supp.2d at 651.
As to the second part of the question: it is not at all difficult
to harmonize the Stream Buffer Zone with the other SMCRA regulatory and
statutory provisions. In fact, the difficulty lies in trying to
harmonize the legal and legislative interpretations of those wishing to
repeal the rule. They must explain how Congress could have passed a law
in 1977 to protect coal field residents from the worst abuses of strip
mining, yet would condone environmental abuses that are far worse than
those Congress was trying to rein in 30 years ago.
SMCRA grew from decades of concerns about the environmental effects
of strip mining practices, and was intended to provide new and
significant additional environmental protections for affected local
communities. In the legislation, Congress found that:
[M]any surface mining operations result in disturbances of
surface areas that burden and adversely affect commerce and the
public welfare by destroying or diminishing the utility of land
for commercial, industrial, residential, recreational,
agricultural, and forestry purposes, by causing erosion and
landslides, by contributing to floods, by polluting the water,
by destroying fish and wildlife habitats, by impairing natural
beauty, by damaging the property of citizens, by creating
hazards dangerous to life and property by degrading the quality
of life in local communities, and by counteracting governmental
programs and efforts to conserve soil, water, and other natural
resources.\7\
---------------------------------------------------------------------------
\7\ 30 U.S.C. Sec. 1201(b).
While recognizing the role played by coal in addressing the
nation's energy needs, Congress also found that it was ``urgent'' in
1977 to establish federal standards to ``minimize damage to the
environment.''\8\ The very first stated purpose of SMCRA is to
``establish a nationwide program to protect society and the environment
from the adverse effects of surface coal mining operations.''\9\ The
law that Congress passed was not perfect; some at the time believed the
final law was too great a compromise, especially after Congress failed
to pass earlier legislation to outlaw strip mining altogether.
Nonetheless, SMCRA does place some meaningful restrictions on surface
mining operations and require that certain natural resources, including
streams and other ``watercourses,'' be protected.\10\
---------------------------------------------------------------------------
\8\ 30 U.S.C. Sec. 1201(c) (emphasis added).
\9\ 30 U.S.C. Sec. 1202(a).
\10\ See, e.g., 30 U.S.C. Sec. 1265(c)(3)(D).
---------------------------------------------------------------------------
Recognizing several important environmental objectives, the Act
provides that surface mining operations may be authorized only if the
permitting authority finds:
(1) that the mining operations will ``minimize disturbances
and adverse impacts . . . on fish, wildlife, and related
environmental values'';
(2) that ``no damage will be done to natural watercourses'';
(3) that the excess spoil will be placed in an area that
``does not contain springs, natural water courses or wet
weather seeps unless lateral drains are constructed from the
wet areas to the main underdrains in such a manner that
filtration of the water into the spoil will be prevented''; and
(4) that the disposal ``is compatible with the natural
drainage patterns and surroundings.''\11\
---------------------------------------------------------------------------
\11\ 30 U.S.C. Sec. Sec. 1265(b)(10), (22), (24); Sec.
1265(c)(4)(D).
Moreover, SMCRA mandates that mining operations must ``minimize the
disturbance to the prevailing hydrologic balance at the mine site and
in associated offsite areas.''\12\
---------------------------------------------------------------------------
\12\ 30 U.S.C. Sec. 1365(b)(10). This provision clearly
demonstrates an intent to protect environmental values both within the
footprint of the mine site (including at spoil sites and impoundments)
and at downstream locations.
---------------------------------------------------------------------------
OSM first promulgated the Stream Buffer Zone rule in 1977 in an
interim form. The interim rule established the 100 foot buffer-zone as
well as the variance provision, although the 1977 rule did not specify
under what conditions a permitting authority may grant a variance. In
1979, OSM adopted a permanent Stream Buffer Zone rule that restricted
mining activities within 100 feet of any stream ``with a biological
community,'' and that included variance criteria.\13\ The criteria
included in the 1979 rule required that before a permitting authority
could authorize mining activity within the buffer zone, it must find
``that the original stream channel will be restored'' and that ``during
and after the mining, the water quantity and quality from the stream
section within 100 feet of the surface mining activities shall not be
adversely affected.'' OSM explained in the preamble to the 1979 rule
that the provisions of the rule were ``required to protect streams from
the adverse effects of sedimentation and from gross disturbance of
stream channels.''\14\
---------------------------------------------------------------------------
\13\ 30 C.F.R. Sec. 816.57(a) (1979). The regulation also included
specific provisions for identifying the presence of a biological
community. 30 C.F.R. Sec. 816.57(c) (1979).
\14\ The two types of impacts noted by OSM in its 1979 rule
recognized the affects of both the activities within the footprint of
the mine site (e.g., valley fills) and downstream adverse affects,
respectively ``gross disturbances,'' ``sedimentation.''
---------------------------------------------------------------------------
In 1983, OSM adopted the current version of the Stream Buffer Zone
rule. In so doing, OSM eliminated the reference that was in the 1979
rule to streams with ``a biological community'' and removed the
provision requiring restoration of the original stream channel.
Instead, the 1983 OSM rule identified all perennial and intermittent
streams as worthy of protection under the rule, and added a requirement
that any mining activities authorized within the 100 foot buffer zone
may not cause or contribute to a violation of an applicable water
quality standard and may not ``adversely affect the environmental
resources of the stream.''\15\ So consistent with the language and
intent of SMCRA, the current Stream Buffer Zone rule provides
meaningful protection for the important water resources most likely to
be affected by destructive mining practices like mountaintop removal.
---------------------------------------------------------------------------
\15\ 30 C.F.R. Sec. 816.57(a) (1983).
---------------------------------------------------------------------------
Opponents of the Stream Buffer Zone often point to the language of
the statute that says that excess spoil shall only be placed in an area
that ``does not contain springs, natural water courses or wet weather
seeps unless lateral drains are constructed from the wet areas to the
main underdrains in such a manner that filtration of the water into the
spoil will be prevented.'' Pointing to this single passage, these
opponents essentially say: ``Aha! Congress created conditions for when
excess spoil can be placed in springs or seeps, so that proves Congress
must have meant to allow valley fills to go into intermittent or
perennial streams!''
Such arguments not only ignore other parts of the statute directing
OSM to protect natural water courses (and the entire purpose of the
statute, which is to protect communities and the environment), but it
is not even what the provision says. This cited language is an
exception to the rule about not putting spoil in any wet area; the
statute says if any spoil does get placed in a wet area there must be
drains. This does not mean that Congress thereby meant that the
majority of spoil should be dumped into permanent and seasonally
flowing streams. In other words, the language about using lateral
drains when some spoil gets in some wet areas--like seeps, springs, of
ephemeral watercourse--is perfectly consistent with the view of the law
that the Stream Buffer Zone rule prevents spoil from being dumped into
intermittent and perennial streams.
Question 1c. In your view, has the current buffer zone rule being
enforced in accordance with this interpretation?
Answer. No, it is not. Mountaintop removal mining and valley
filling has already destroyed over 2000 miles of Appalachia's streams;
some estimate that the number of streams destroyed is much higher.
According to the final Programmatic Environmental Impact Statement on
Mountaintop Mining/Valley Fills in Appalachia (PEIS),\16\ there were
5858 valley fills in the study area of West Virginia and Kentucky
permitted between 1985 and 2000. It has been quite some time since the
federal and state agencies responsible for implementing SMCRA and the
Stream Buffer Zone rule have done their jobs consistent with the law.
In fact, it seems that as the mountaintop removal mines have grown in
size and destructiveness, the agencies have imposed fewer environmental
protections for streams and other effected resources.
---------------------------------------------------------------------------
\16\ 70 Fed. Reg. 62102.
---------------------------------------------------------------------------
Question 1d. Has the Fourth Circuit's ruling in Kentuckians for the
Commonwealth v. Riverburgh, 317 F.3d 425 (4th Cir. 2003), impacted the
interpretation and application of the buffer zone rule under SMCRA? If
so, in what way and why?
Answer. The KFTC v. Rivenburgh has not directly impacted the
interpretation of SMCRA's buffer zone rule, although the majority
opinion in the case did briefly discuss the regulation. The KFTC case
is a Clean Water Act case; a citizen group challenged the use of a
Sec. 404 general permit--which are limited by the statute to authorize
only dredge and fill activities with no more than a minimal adverse
effects--to allow valley fills in waters of the United States. The
citizens challenged the Corps' permit decision that allowed Martin Coal
company to place coal mining waste (``excess overburden'') from one of
its mountaintop removal projects into 27 valley fills in Martin County,
Kentucky, burying approximately 7 miles of streams just at that one
site. Specifically, KFTC argued that the Corps' 1977 regulations
defining ``fill material'' did not allow the Corps to permit valley
fills in waters of the U.S. because fill was defined as not including
``waste'' and therefore outside of the Corps' jurisdiction.
In its analysis, the court considered the relationship between the
Clean Water Act and the SMCRA buffer zone rule, and opined that:
[T]he Clean Water Act's relationship to SMCRA does not
provide a clear intent that Sec. 404's definition of ``fill
material'' is limited to a beneficial use. While SMCRA does not
define ``fill material,'' its term ``excess spoil material,''
30 U.S.C. Sec. 1265(b)(22), is defined in the SMCRA
regulations as material placed ``in a location other than the
mined-out area.'' 30 C.F.R. Sec. 701.5 and 816/817.71-.74.
And, regardless of whether the fill has a beneficial primary
purpose, SMCRA does not prohibit the discharge of surface coal
mining excess spoil in waters of the United States. The
district court's reference to SMCRA's provision of a ``buffer
zone,'' see 30 C.F.R. Sec. 816.57, does not address the scope
of the Corps' jurisdiction under the Clean Water Act to
regulate all ``fill material.'' Indeed, it is beyond dispute
that SMCRA recognizes the possibility of placing excess spoil
material in waters of the United States even though those
materials do not have a beneficial purpose. Section
515(b)(22)(D) of SMCRA authorizes mine operators to place
excess spoil material in ``springs, natural water courses or
wet weather seeps'' so long as ``lateral drains are constructed
from the wet areas to the main underdrains in such a manner
that filtration of the water into the spoil pile will be
prevented.'' 30 U.S.C. Sec. 1265(b)(22)(D). In addition, Sec.
515(b)(24) requires surface mine operators to ``minimize
disturbances and adverse impacts of the operation on fish,
wildlife, and related environmental values, and achieve
enhancement of such resources where practicable,'' implying the
placement of fill in the waters of the United States. 30 U.S.C.
Sec. 1265(b)(24). It is apparent that SMCRA anticipates the
possibility that excess spoil material could and would be
placed in waters of the United States, and this fact cannot be
juxtaposed with Sec. 404 of the Clean Water Act to provide a
clear intent to limit the term ``fill material'' to material
deposited for a beneficial primary purpose.\17\
---------------------------------------------------------------------------
\17\ Kentuckians for the Commonwealth v. Riverburgh, 317 F.3d 425
(4th Cir. 2003).
---------------------------------------------------------------------------
While we disagree with the court's reading of the Clean Water Act
and its relationship to SMCRA, the court's discussion of the statute
and the regulation are not inconsistent with our position that SMCRA
requires that stream be protected and the buffer zone around
intermittent and perennial is a proper (indeed, necessary) exercise of
that authority by OSM. As discussed above, just because the statute
contemplates that some spoil may be placed in some wet areas does not
mean Congress intended--or would even allow--perennial and intermittent
streams to be buried by valley fills.
Question 2. Stream Buffer Zone Rule--Is it your legal opinion that
the draft EIS for the proposed revisions to the stream buffer zone rule
(72 Fed. Reg. 48890, August 24, 2007) complies with the National
Environmental Policy Act (NEPA)? Why or why not?
Answer. It is my opinion that the proposed rule change announced in
the Federal Register in August 2007 does not comply with NEPA. The
draft Environmental Impact Statement (DEIS) accompanying the proposed
rule is inadequate on its face because it fails to consider vital
information in the agency's possession about the enormous environmental
devastation caused by mountaintop removal. It also fails completely to
consider any meaningful alternative to changing the buffer rule, and
does not give any serious consideration to enforcing the existing rule
as written as the ``no action'' alternative, instead preferring to
reserve that category for evaluating the OSM's present practice of
completely ignoring the law.
In its DEIS for the proposed rule, OSM considers only five
alternatives in detail: a ``no action'' alternative, in which OSM would
retain the current Stream Buffer Zone rule and continue to interpret it
as allowing disposal of coal mining waste directly into streams and
other mining activities within the Stream Buffer Zone; the proposed
rule, which explicitly allows such activities; and three other
alternatives that are nothing more than partial versions of the
proposed rule. In other words, every alternative considered by OSM
allows substantial disposal of coal mining wastes into streams. OSM
does not consider any more environmentally protective alternatives, the
most obvious of which is to enforce the current Stream Buffer Zone rule
as written.
The National Environmental Policy Act requires that an EIS describe
(1) the ``environmental impact of the proposed action,'' (2) any
``adverse environmental effects which cannot be avoided should the
proposal be implemented,'' (3) any ``alternatives to the proposed
action,'' and (4) any ``irreversible or irretrievable commitment of
resources which would be involved in the proposed action should it be
implemented.''\18\ NEPA implementing regulations make clear that an EIS
must ``present the environmental impacts of the proposal and the
alternatives in comparative form, thus sharply defining the issues and
providing a clear basis for choice among options by the decision maker
and the public,'' and ``rigorously explore and objectively evaluate all
reasonable alternatives.''\19\ For failing to meet these requirements,
the DEIS and proposed rule change are in violation of NEPA.
---------------------------------------------------------------------------
\18\ 42 U.S.C. Sec. 4321. 4332(2)(C).
\19\ 40 C.F.R. Sec. 1502.14 (emphasis added).
---------------------------------------------------------------------------
OSM's proposed replacement of the Stream Buffer Zone rule is
accompanied by a false and misleading description of the current rule
that aims at making it sound consistent with OSM's failure to enforce
the rule as written. But, as noted about, there is a world of
difference between the existing rule as written and the new rewrite.
The plain language of the current Stream Buffer Zone rule prevents OSM
and state agencies from issuing permits for coal mining activities
within 100 feet of streams, unless the permitting agency specifically
confirms that the activities will not violate water quality standards
and will not adversely affect water quantity, quality, or other stream
resources. In comparison, OSM's proposed rule would specifically allow
the dumping of coal mining spoil directly into streams that should be
protected. By attempting to reinterpret the current rule as not
preventing but already allowing such dumping, OSM is trying to create
confusion in order to avoid studying a ``no action'' alternative that
leaves the existing rule in place and contemplates the agency and
states enforcing it.
OSM's refusal to consider more environmentally protective
alternatives based on the agency's judgment about their merit is
inconsistent with well-established NEPA principles. Although, in a NEPA
analysis, an agency judgment that there is ``inconclusive evidence may
serve as justification for not choosing an alternative,'' such an
agency judgment ``cannot serve as a justification for entirely failing
to `rigorously explore and objectively evaluate all reasonable
alternatives.'''\20\
---------------------------------------------------------------------------
\20\ Fund for Animals v. Norton, 294 F. Supp. 2d 92, 110 (D.D.C.
2003) (quoting 40 C.F.R. Sec. 1502.14).
---------------------------------------------------------------------------
The only alternatives that OSM considered would allow valley fills
to be dumped in any stream without any limitation on the length of
stream ,or the types of stream, that could be buried and destroyed. The
only ``limitation'' considered is just a vague, case-by-case
determination that the overall fill be minimized, ``to the extent
practical.''
To comply with NEPA, and to be responsive and fair to the people of
Appalachia, OSM must consider some alternatives that restrict filling
of streams, including at the very least the enforcement of the existing
Stream Buffer Zone rule as written. The failure to consider an
appropriate range of viable alternatives, including alternatives with
materially lighter environmental impacts, renders this NEPA analysis
inadequate.\21\
---------------------------------------------------------------------------
\21\ OSM itself admits that the agency ``would not anticipate a
major shift in on-the-ground consequences from any of the
alternatives,'' essentially conceding that there is no meaningful
distinction between the ``alternatives'' it considered. Id. at 121; see
also id. at 124 (proposed rule ``would cause no discernable changes''
in direct impacts on streams); see also id. at 126-27, 128, 131, 133,
135, 142.
---------------------------------------------------------------------------
Finally, by asserting that the proposed rule would not worsen the
environmental status quo, and by refusing to consider any more
environmentally protective alternatives, OSM also ignores the NEPA
requirement to take a ``hard look'' at the significant adverse impacts
of the proposed rule change, including the cumulative impacts that
would result from allowing the current coal mining spoil disposal
practices to continue unimpeded.
The DEIS does note that mountaintop removal mining resulted in the
destruction of over hundreds of mile of Appalachian streams between
1985 and 2001 and an additional 535 miles between 2001 and 2005. If
this rate of destruction continues, the proposed rule change would
allow more than 1,000 miles of streams to be destroyed each decade into
the future. Scientific evidence within the DEIS further confirms that
these valley fills significantly degrade ecologically valuable
headwater streams. But the DEIS' analysis of these cumulative impacts
is completely non-existent.
By discussing environmental impacts only in the narrow, relative
terms of its myopic range of alternatives, OSM ignores the overwhelming
evidence in the public record that current practices, and specifically
valley fills associated with mountaintop removal mining, have
devastating impacts on streams, forests, and their associated
ecosystems, as well as wildlife and human communities.
Accordingly, OSM's failure to consider any alternatives that are
more environmentally protective than the status quo (of ignoring the
law completely) is a blatant violation of NEPA.
______
[Responses to the following questions were not received at
the time the hearing went to press:]
Question for Arvin Trujillo From Senator Domenici
I support uranium mining as an essential piece of our nation's
clean, nuclear power generation. It will be important to our energy
security and will be done with safer, modern mining and milling
technologies.
The Navajo Nation and the state of New Mexico have engaged in a
productive effort--to deal with what remains a separate issue from
renewed mining--in cleaning up old, abandoned sites with AML funding.
Question 1. How important is the OSM interpretation of Section 409
authority for non-coal reclamation to this effort?
Appendix II
Additional Material Submitted for the Record
----------
Statement of Joan Mulhern, Senior Legislative Counsel, Earthjustice
Chairman Bingaman and Members of the Committee, thank you for
holding this hearing to review the purposes and history of the federal
Surface Mining Control and Reclamation Act (SMCRA), one of the nation's
most important environmental protection laws--and one that is often
overlooked, much to the detriment of the communities and natural
resources of the coal mining regions of the country.
I am Senior Legislative Counsel for Earthjustice, a national non-
profit law firm founded in 1971 as the Sierra Club Legal Defense Fund.
Earthjustice represents, without charge, hundreds of public interest
clients, large and small, in order to reduce water and air pollution,
prevent toxic contamination, safeguard public lands, and preserve
endangered species and other wildlife. Thank you for inviting me to
this hearing today. I am not an expert on SMCRA as a general matter;
most of my work at Earthjustice focuses on Clean Water Act issues. But
I have worked on SMCRA policy and legal issues as they pertain to what
is, today, the most radical and destructive form of coal strip mining,
known as mountaintop removal.
During mountaintop removal mining, hundreds of feet from the tops
of mountains are blown off with explosives and removed in order to
reveal the coal seams below. The former mountaintops, now reduced to
rubble, are pushed over the sides of the mountain to create enormous
waste piles, known as valley fills. These fills bury the headwater and
perennial streams and everything else that was in the valley. Over the
last thirty years, and during the last fifteen years especially, there
has been a vast expansion in this form of strip mining.
Whatever they might have predicted at the time about the likely
successes (or failures) of the law, it is doubtful that the members of
Congress who voted to pass SMCRA thirty years ago could have possibly
imagined the widespread and irreversible destruction that is taking
place today by mountaintop removal coal mining. Much of this damage is
due to the failure of state and federal regulators to enforce key
provisions of the Act and its implementing regulations that were
designed to prevent this extreme form of environmental abuse.
The Surface Mining Control and Reclamation Act of 1977 grew out of
decades of concerns about the environmental effects of strip mining.
When Congress passed the law, it clearly intended to provide new and
significant protections for the environment and citizens of the region.
In the legislation, Congress found that:
[M]any surface mining operations result in disturbances of
surface areas that burden and adversely affect commerce and the
public welfare by destroying or diminishing the utility of land
for commercial, industrial, residential, recreational,
agricultural, and forestry purposes, by causing erosion and
landslides, by contributing to floods, by polluting the water,
by destroying fish and wildlife habitats, by impairing natural
beauty, by damaging the property of citizens, by creating
hazards dangerous to life and property by degrading the quality
of life in local communities, and by counteracting governmental
programs and efforts to conserve soil, water, and other natural
resources.\1\
---------------------------------------------------------------------------
1 30 U.S.C. Sec. 1201(b).
While recognizing the role played by coal in addressing the
nation's energy needs, Congress also found that it was ``urgent'' in
1977 to establish federal standards to ``minimize damage to the
environment.\2\ The very first stated purpose in the law is to
``establish a nationwide program to protect society and the environment
from the adverse effects of surface coal mining operations.''\3\ The
law that Congress passed was not perfect; some at the time believed the
final law was too great a compromise, especially after Congress failed
to pass earlier legislation to outlaw strip mining altogether. But it
did place some meaningful restrictions on surface mining operations and
required certain natural resources, including streams and other
``watercourses'', be protected.\4\
---------------------------------------------------------------------------
\2\ 30 U.S.C. Sec. 1201(c) (emphasis added).
\3\ 30 U.S.C. Sec. 1202(a).
\4\ See, E.g,. 30 U.S.C. Sec. 1265(c)(3)(D).
---------------------------------------------------------------------------
The coal-rich mountains of central Appalachia are home to
generations-old families and communities, and the region contains many
beautiful hollows through which thousands of pristine and ecologically
rich mountain streams flow. Mountaintop removal mining deliberately
lays waste to these natural resources--the streams and the mountains--
and devastates the human and wildlife communities that depend on them.
In less than two decades, mountaintop removal has already transformed
huge expanses of one of the oldest mountain ranges in the world into a
moonscape of barren plateaus and rubble-filled streams.
This damage is occurring--and even accelerating--today, despite the
provisions in SMCRA that Congress enacted to curb this type of extreme
environmental abuse. According to one source, mountaintop removal mines
involved forty-four permits covering 9,800 acres throughout the 1980s,
yet in a nine-month period in 2002 alone, federal and state agencies
issued permits for mountaintop removal mines to flatten and destroy an
area covering 12,540 acres.\5\ Mountaintop removal and other large
scale surface mining operations that already have been authorized by
permitting authorities to destroy nearly 2,000 miles of Appalachian
streams and more than 1,000 square miles of forested mountain terrain.
---------------------------------------------------------------------------
\5\ Burns, Shirley Stewart (2005). ``Bringing Down the Mountains:
the Impact of Mountaintop Removal Surface Coal Mining on Southern West
Virginia Communities, 1970-2004'' Ph.D. dissertation. West Virginia
University. Available at http://kitkat.wvu.edu:8080/files/4047/
Stewart_Burns_Shirley_dissertation.pdf
---------------------------------------------------------------------------
In 1998, the Office of Surface Mining (OSM), the U.S. Environmental
Protection Agency (EPA), the Army Corps of Engineers, U.S. Fish and
Wildlife Service and state of West Virginia began preparing a
programmatic Environmental Impact Statement on mountaintop removal; the
final PEIS was released on 2005.\6\ The PEIS's scientific and technical
studies documented in thousands of pages (and millions of federal
taxpayer dollars) the enormous damage to Appalachia's natural resources
and communities already caused by mountaintop removal mining and valley
fills over the last two decades, including the pollution and
destruction of over 1200 miles of streams.
---------------------------------------------------------------------------
\6\ Programmatic Environmental Impact Statement on Mountaintop
Mining/Valley Fills in Appalachia (PEIS), 70 Fed. Reg. 62102.
---------------------------------------------------------------------------
The PEIS studies also confirmed that, without the adoption of
additional environmental restrictions on this extreme form of strip
mining, over 1000 miles of streams will be added to this toll by 2012,
destroying what many experts believe is one of the most diverse
temperate headwater freshwater regions in the world. According to the
DEIS's Cumulative Impact Study, without more stringent environmental
protections, mountaintop removal coal mining and valley fills will turn
a huge area of this country--over 2200 square miles of a unique,
biologically diverse, forested, stream filled, mountainous region--into
a barren wasteland for the foreseeable future.
The PEIS studies determined that mountaintop removal mining causes
``fundamental changes to the terrestrial environment,'' and
``significantly affect[s] the landscape mosaic,'' with post-mining
conditions ``drastically different'' from pre-mining conditions.
Further, mining impacts on the nutrient cycling function of headwaters
streams ``are of great concern'' and impacts to habitat of interior
forest birds could have ``extreme ecological significance.'' The PEIS
further concluded that mining could impact 244 terrestrial species,
including, for example, 1.2 billion individual salamanders, and that
the loss of the genetic diversity of these affected species ``would
have a disproportionately large impact on the total aquatic genetic
diversity of the nation.'' Finally, the EIS observed that valley fills
are strongly associated with violations of water quality standards for
selenium, a toxic metal that bioaccumulates in aquatic life.
Unfortunately, Mr. Chairman, rather than respond rationally to the
overwhelming information contained in its own scientific studies
documenting the destruction of Appalachia being caused by mountaintop
removal by immediately putting a stop to the practice--or at least
enforcing the legal limitations contained in SMCRA and the Clean Water
Act to curb the worst abuses--the present administration has taken the
exact opposite approach. The federal agencies have been gutting
longstanding laws designed to protect coal field residents and
communities and their surrounding natural resources from the mining
industry's worst excesses, failing to enforce the law in some areas and
outright repealing it in others.
In May 2002, the U.S. Army Corps of Engineers (Corps), aided and
abetted by the U.S. Environmental Protection Agency (EPA), repealed a
25-year-old Clean Water Act regulation that prohibited dumping waste
material in streams.\7\ In October 2005, the OSM weakened its oversight
of state mining programs by making federal takeovers for state
violations of federal law discretionary rather than automatic.\8\ Also
in October 2005, the administration released it's the final
Programmatic Environmental Impact Statement on Mountaintop Mining/
Valley Fills in Appalachia (PEIS), in which--despite the fact that the
millions of dollars of scientific studies that accompanied the PEIS
found that the harm being done to Appalachia by mountaintop removal
coal mining is extremely destructive, widespread, and largely
irreversible, as noted above--the agencies proposed no meaningful
mining reforms or limitations on valley fills,.\9\
---------------------------------------------------------------------------
\7\ 67 Fed. Reg. 31129.
\8\ 70 Fed. Reg. 61194.
\9\ 70 Fed. Reg. 62102.
---------------------------------------------------------------------------
The latest in this serial rollback of longstanding law is currently
pending at the OSM. On August 24, 2007, the Bush administration
proposed repealing a longstanding stream protection regulation under
SMCRA in order to allow the coal mining industry engage in more
unregulated ``mountaintop removal'' mining and additional burial of
streams.\10\
---------------------------------------------------------------------------
\10\ Proposed Rule and Draft EIS on Excess Spoil Minimization/
Stream Buffer Zones, 72 Fed. Reg. 48678, 48890 (August 24, 2007).
---------------------------------------------------------------------------
The Stream Buffer Zone Rule prohibits coal mining activities from
disturbing areas within a 100-foot ``buffer'' around intermittent and
perennial streams. This regulation, finalized in 1983 by the Reagan
administration, is one of the most important components of current
SMCRA law--and the most important for protecting streams. The Buffer
Zone rule prevents the OSM and state agencies from issuing permits for
coal mining activities that would disturb areas within 100 feet of
streams, unless the permitting agency specifically confirms that the
activities will not violate water quality standards and will not
adversely affect water quantity, quality, or other stream
resources.\11\ This regulation is needed to implement the provisions of
SMCRA that require the protection of watercourses from mining damage.
---------------------------------------------------------------------------
\11\ 30 CFR Sec. 816.57.
---------------------------------------------------------------------------
In its place, the proposed rule would allow coal operators to dump
mining waste, including the waste rubble from mountaintop removal as
well as coal slurry, into streams, burying them forever. In return, the
new rule merely asks coal operators to ``minimize'' harm to the extent
possible, already a requirement of the Clean Water Act as well as of
many state mining programs. This is an open invitation to industry to
ignore an important surface mining rule that, as a practical matter,
has been routinely abused and violated as federal and state regulators
looked the other way. Now the chronic failure of the Department of the
Interior and its Office of Surface Mining to discharge its duty to
enforce existing law is being used by the agency as one of several
excuses to repeal the Stream Buffer Zone rule altogether.
While the OSM states that the new proposed rule is a clarification
of the 1983 rule, in fact it is just the opposite. The new proposed
rule would allow the dumping of massive amounts of waste directly into
streams--including mountaintop removal valley fills and enormous sludge
impoundments. In other words, the Bush administration's proposal
essentially repeals the existing regulation and would allow coal
companies to permanently bury more Appalachian streams beneath hundreds
of millions of tons of mining waste. This proposal takes the ``buffer''
right out of the ``Stream Buffer Zone'' and allows coal companies to
dump waste directly into streams.
OSM's proposal not only guts the existing Stream Buffer Zone rule,
it reverses OSM's prior interpretation of the existing rule. In the
preamble, OSM reviews the history of the 1983 rule and claims that it
has consistently ``applied'' that rule to allow valley fills and other
stream incursions.\12\ This statement and others like it made by OSM
are clearly intended to create the impression that the current proposal
is consistent with all past practices and interpretations, and that
there is no shift in agency thinking.
---------------------------------------------------------------------------
\12\ 72 Fed. Reg. at 48892, 48895.
---------------------------------------------------------------------------
In fact, however, the proposed rule is a reversal of OSM's prior
interpretation of Stream Buffer Zone requirements. When it promulgated
the existing rule in 1983, OSM chose to protect intermittent and
perennial streams because they were recognized to be especially
significant in establishing the hydrologic balance. OSM stated that the
buffer zone rule was designed ``to protect streams from sedimentation
and gross disturbances of stream channels caused by surface coal mining
and reclamation operations.''\13\ OSM further stated that
``intermittent and perennial streams generally have environmental-
resource values worthy of protection under Section 515(b)(24) of the
Act.''\14\
---------------------------------------------------------------------------
\13\ 48 Fed. Reg. 30312 (June 30, 1983).
\14\ Id.
---------------------------------------------------------------------------
In 1999, Judge Haden, then Chief Judge of the District Court for
the Southern District of West Virginia, had the opportunity to
interpret the existing Stream Buffer Zone rule and said that
``[n]othing in the statute, the federal or state buffer zone
regulations, or the agency language promulgating the federal
regulations suggests that portions of existing streams may be destroyed
so long as (some other portion of) the stream is saved.''\15\ Judge
Haden also discussed the history of the Stream Buffer Zone rule and
OSM's original concern that broad safeguards for streams were needed to
comply with SMCRA. He quoted OSM's consideration of public comments
from when it first promulgated the Stream Buffer Zone rule in 1979,
where the agency stated that:
---------------------------------------------------------------------------
\15\ Bragg v. Robertson, 72 F. Supp.2d 642, 651 (S.D.W.Va 1999).
Judge Haden's ruling was overturned on jurisdictional grounds, but the
substance of his ruling was not addressed by the Court of Appeals. See
Brag v. West Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001).
Surface mining is impossible without destruction of a number
of minor natural drainages, including some ephemeral streams as
defined in section 701.5. The Office, therefore, believes it is
permissible to surface mine coal so long as a reasonable level
of environmental protection is afforded . . .
[ ] Several other commenters felt only perennial streams
should require buffer zones. This would reduce operator cost
and increase coal production from deposits underlying
nonperennial streams. The Office believes that this alternative
is illegal, however, because there are significant fish and
wildlife resources in streams other than perennial streams that
need protection under section 515(b)(24) of [SMCRA].\16\
---------------------------------------------------------------------------
\16\ 44 Fed. Reg. at 15177 (1979) (emphasis added).
Thus, OSM concluded that destruction of streams below natural
drainways was illegal, even though some surface mining and coal
production might be affected.
Judge Haden continued his analysis of the existing Stream Buffer
Zone rule, stating:
When valley fills are permitted in intermittent and perennial
streams, they destroy those stream segments. The normal flow
and gradient of the stream is now buried under millions of
cubic yards of excess spoil waste material, an extremely
adverse effect. If there are fish, they cannot migrate. If
there is any life form that cannot acclimate to life deep in a
rubble pile, it is eliminated. No effect on related
environmental values is more adverse than obliteration. Under a
valley fill, the water quantity of the stream becomes zero.
Because there is no stream, there is no water quality.\17\
---------------------------------------------------------------------------
\17\ Bragg at 661-662.
In their brief on appeal in Bragg, OSM, EPA and the Corps expressly
agreed with Judge Haden's interpretation of the Stream Buffer Zone
---------------------------------------------------------------------------
rule:
[Judge Haden] correctly found that SMCRA's stream buffer zone
rule . . . prohibits the burial of substantial portions of
intermittent and perennial streams beneath excess mining spoil.
The elimination of substantial intermittent or perennial stream
segments necessarily causes adverse environmental effects, as
it eliminates all aquatic life that inhabits those stream
segments. As the district court rightly concluded, the
elimination of entire stream segments and all the life they
contain plainly causes environmental harm. Accordingly, the
district court correctly granted summary judgment on
plaintiffs' buffer zone claims.\18\
---------------------------------------------------------------------------
\18\ Brief for the Federal Appellants, 4th Cir., No. 99-2683, April
17, 2000 (heareafter ``U.S. Br.''),p.2(emphasis in original). In the
2004 proosal to repeal the Stream Buffer, OSM suggested that the brief
of the United States government in the Bragg case is ``not consistent
with our historic interpretation'' and that OSM never agreed with it or
approved it. 69 Fed. Reg. at 1039-40. That is not true. The Department
of Justice told the Fourth Circuit that ``Attorneys for EPA and OSM are
identified on the cover of the federal appellants' brief as being `of
counsel' to this appeal, and the position taken in the brief for the
federal appellants represents the unified position of the federal
agencies.'' Federal Appellants' Opposition to the Motion of the
Intervenor-Defendants to Strike the Brief of the Federal Appellants and
to Dismiss Appeal No. 99-2683,p.2.
Additionally, these agencies stated that the District Court
---------------------------------------------------------------------------
correctly held:
[T]hat valley fills in intermittent or perennial streams may
be authorized under the buffer zone rule only if the permitting
agency finds that they will not adversely affect the
environmental resources of the filled stream segments. WVDEP
has acknowledged that it has routinely approved valley fills in
intermittent and perennial streams without making the findings
called for by the buffer zone rule for the stream segment
filled. The district court correctly rejected the arguments
that WVDEP was not required to make the buffer zone findings,
holding that the findings required by the buffer zone rule must
be made for the filled stream segments and not at some point
downstream from the valley fills . . .
The district court also correctly . . . [held] . . . that the
burial of substantial portions of intermittent or perennial
streams in valley fills causes adverse environmental impact in
the filled stream segments and therefore cannot be authorized
consistent with the buffer zone rule. The uncontested evidence
demonstrates that the burial of substantial portions of
intermittent or perennial causes adverse environmental effects
to the filled stream segments, as such fills eliminate all
aquatic life that inhabited those segments.\19\
---------------------------------------------------------------------------
\19\ Id. at 24-25 (emphasis added).
If further evidence is needed that the OSM previous did take the
position the Stream Buffer rule applied to valley fills, in a May 22,
2000 letter, Acting OSM Director Kathrine Henry adopted the same
position that ``the stream buffer zone waiver findings must be made not
only for segments downstream of the fill, but also for each segment of
an intermittent or perennial stream in which excess spoil is placed.''
Now OSM has completely reversed this position and would totally
exempt valley fills, waste impoundments and other stream incursions
from the rule.\20\ OSM has failed to rationally justify its complete
about-face from the position it took in the Bragg case. Indeed, OSM has
failed to even consider the alternative of enforcing the rule as
written and as OSM interpreted it in the Bragg case.
---------------------------------------------------------------------------
\20\ 72 Fed. Reg. at 48907; DEIS, p.S-2.
---------------------------------------------------------------------------
The Office of Surface Mining first proposed repealing the Stream
Buffer Zone in January 2004. At that time, Earthjustice and many other
national and regional groups objected and, along with asking that the
proposal be withdrawn, stated that the agency was required by law to
prepare an Environmental Impact Statement (EIS) before proposing to
change a major federal rule. Somewhat surprisingly, OSM agreed and the
following summer, in 2005, took public comment on what it needed to
study. One point made loudly and consistently by many who submitted
comments at that time was that the OSM must consider, as one
alternative, enforcing the Stream Buffer Zone as written--as a
``buffer'' around intermittent and perennial streams, protecting them
from damage from coal mining activities, including waste disposal.
As noted above, the proposed repeal of the Buffer Zone that was
published in the Federal Register in August of this year was
accompanied by a draft Environmental Impact Statement (DEIS).
Outrageously, OSM did not select enforcing the existing law as one of
the alternatives given full consideration in the new draft EIS.
Instead, OSM reinterprets the existing rule in conformity with the new
proposed rule, so that both of them allow valley fills in intermittent
and perennial streams. This eliminates most of the difference between
the two rules, and makes the ``no-action'' alternative a pale shadow of
the proposed rule. The ``no action'' alternative in the DEIS merely
substitutes OSM's past practice of ignoring the Stream Buffer Zone for
its legal mandate to protect streams and the environment generally.
A true ``no action'' alternative would interpret the Stream Buffer
Zone as applying to valley fills, as OSM determined was legally
required in 2000, and evaluate what it would actually mean for the
region and its stream resources if the agency enforced the law.
OSM summarily rejected further consideration of one alternative
that does sound like the existing rule--one that would restrict valley
fills by type of stream (ephemeral, intermediate or perennial)--and
several other options that would have placed some actual limits on
valley fills and other coal waste disposal activities. These included
acreage or volume limits on fill size, limits on the size of the
watershed or length of stream that could be buried, and a limit on the
percentage of streams in a watershed that could be filled. These
alternatives were cast aside by OSM without any detailed analysis
because, the agency claims, it either lacks of statutory authority or
the scientific data to pursue any of those options. Neither argument
has merit.
The only alternatives OSM considered all would allow valley fills
to be dumped in any stream without any limitation on the amount of
stream or types of stream that could be buried and destroyed, just a
vague, case-by-case determination that the overall fill be minimized,
``to the extent practical.'' To comply with the National Environmental
Policy Act--as well as SMCRA--and to be responsive and fair to the
people of Appalachia, OSM must consider some alternatives that restrict
filling of streams, including at the very least the enforcement of the
existing regulation.
Furthermore, OSM must consider some alternatives that address the
cumulative impacts of stream filling. As OSM acknowledges, those
cumulative impacts involve damaging or destroying over 1,700 miles of
streams in Appalachia.\21\ The DEIS fails to address these cumulative
impacts. Fill minimization, by itself, only results in a case-by-case
analysis of filling for each separate project; it does not analyze or
address cumulative impacts. OSM inexplicably assigns zero value to the
loss of thousands of miles of headwater streams.
---------------------------------------------------------------------------
\21\ DEIS,p. 117.
---------------------------------------------------------------------------
Already, nearly 2000 miles of mountain streams in Appalachia have
been contaminated or destroyed by mountaintop removal and the disposal
of mining waste, wiping out these streams and causing pollution as well
as flooding and destruction in the surrounding communities. According
to the new draft Environmental Impact Study released with the proposed
buffer zone rule, this administration's failure to enforce the buffer
zone law led to an additional 535 miles of stream impacts nationwide
during between 2001 and 2005. If this pace of destruction remains
steady, the repeal of the buffer zone rule would permit more than 1,000
miles of streams to be destroyed each decade into the future.
The evidence that valley fills cause significant degradation to
valuable headwater streams is clearly confirmed in the new DEIS itself.
Headwater streams ``serve a number of important ecological functions
including . . . improving water quality.''\22\ When streams are buried
by valley fills, ``those segments no longer exist and all stream
functions are lost.''\23\ This degradation must be deemed significant,
especially because there is no evidence showing that buried streams can
be recreated successfully elsewhere on mined sites. The DEIS states
that ``the state of the art in creating smaller headwater streams has
not reached the level of reproducible success''\24\ and ``[a]ttempts to
reestablish the functions of headwater streams on the groin ditches on
the sides of fills have achieved little success to date.''\25\
Consequently, these stream losses must be considered permanent and
irreversible.
---------------------------------------------------------------------------
\22\ DEIS, p.109.
\23\ Id. at 117.
\24\ Id. at 111.
\25\ Id. at 117.
---------------------------------------------------------------------------
Significant stream degradation caused by valley fill and mining
activities has been best documented for watersheds in West Virginia.
Recent expert analysis of GIS data presented in the case of OVEC v.
Bulen,\26\ showed that present and pending surface mining permit
operations and valley fills conservatively cover the following
percentages of streams in these watersheds:\27\
---------------------------------------------------------------------------
\26\ Civil No. 3:05-0784 (S.D.W.Va.).
\27\ Expert Report of Douglas P. Pflugh, May 16,2006, Summary,p.2.
------------------------------------------------------------------------
% first
% of total order
Watershed/Subwatershed streams streams
covered covered
------------------------------------------------------------------------
Upper Guyandotte 7.4 9.5
------------------------------------------------------------------------
Dingess Run 19.9 19.5
------------------------------------------------------------------------
Coal River 12.0 14.5
------------------------------------------------------------------------
Laurel Creek 28.0 37.3
------------------------------------------------------------------------
Upper Kanawha 7.9 10.2
------------------------------------------------------------------------
Cabin Creek-Headwaters 22.9 32.1
------------------------------------------------------------------------
I have attached to my statement two maps* prepared by the GIS
expert, Douglas Pflugh, showing the locations of the mountaintop
removal and other strip mines permitted in these watersheds. The
plaintiffs' expert aquatic ecologist, Dr. Bruce Wallace, testified in
the Bulen case in October 2006 that impacts of this magnitude were
``astounding,'' a ``danger signal,'' and meant lost headwater stream
functions in these areas.\28\ Plaintiffs' stream restoration expert,
Dr. Margaret Palmer, similarly testified that a loss of 29% of the
watershed and 18% of the first order streams in a watershed were
``incredibly significant'' and so huge that it was questionable whether
the stream\29\ could ever be restored.
---------------------------------------------------------------------------
* Maps have been retained in committee files.
\28\ Wallace Testimony, Bulen Tr. 2:32-34.
\29\ Palmer Testimony, Bulen Tr. 2:134 and 2:135-36.
---------------------------------------------------------------------------
In conclusion, Mr. Chairman and Members of the Committee,
Earthjustice respectfully asks that you look into OSM's proposal to
effectively repeal the Stream Buffer Zone rule. Their proposal would
overturn any balance left in SMCRA between coal production and
environmental protection, making unfettered production and cheap coal
the only values recognized by the federal government. It is as if the
OSM is turning back the clock 30 years to when there was no federal
program. The OSM proposal completely undermines Congress's intent that
the law be interpreted to ``protect society and the environment from
the adverse effects of surface coal mining operations.''
I know that many individuals and organizations in Appalachia and
around the country hope that you will join with those of us who are
calling on the OSM to withdraw this proposed rule. At the very minimum,
OSM should be directed to reopen the DEIS on the proposed rule change
to fully study the option of retaining the 1983 version of the rule,
and enforcing it as written to keep all mining disturbances, especially
waste disposal in valley fill and slurry pools, 100 feet away from
flowing streams.
Mr. Chairman, another thing Earthjustice would request is for the
Committee to have an oversight hearing specifically on mountaintop
removal mining and the irreversible damage being done in the
Appalachian region. While I greatly appreciate the opportunity to
provide the Committee written testimony today, and appear along with
Cindy Rank from the West Virginia Highlands Conservancy who is one of
the most knowledgeable and dedicated citizen advocates on this issue,
there are many other citizens and residents of the coal fields, as well
as stream scientists, mining experts, and others who could provide much
valuable evidence to the Committee about the outrageous harm being
perpetrated in Appalachia by mountaintop removal.
Thank you again, Mr. Chairman, for the opportunity to present you
and the Committee with information about this important issue.
______
Citizens Coal Council,
Washington, PA, December 17, 2007.
Senator Bingaman,
Chairman, U.S. Senate, Energy and Natural Resources Committee, Dirksen
Senate Building, Washington, DC.
Dear Senator Bingaman: On behalf of Citizens Coal Council, a
national federation of grassroots groups and individuals living in
directly impacted coalfield communities across the United States and
the Center for Coalfield Justice from Washington, Pennsylvania, we want
to thank you for holding hearings on SMCRA and the Office of Surface
Mining on November 13, 2007. I am writing to request more hearings--to
be held in geographically dispersed coalfield states--so that Senators
and their staff can actually witness the environmental and health
impacts of coal mining and hear directly from coalfield citizens about
provisions in SMCRA that need strengthening, provisions that have been
weakened, and first hand testimony on OSM's lax enforcement of SMCRA.
Citizens fought hard to include public participation provisions in
SMCRA, in particular, public hearings to challenge mining permits and
the like. Over the years federal and state mine regulators have found
ways to thwart effective public participation by giving short notice,
publicizing new permit applications in news media far from the
communities where the mining would occur, scheduling hearings during
the day when many people have to work, and indirectly limiting the
number of people who can speak at ``public'' hearings. Although we
appreciate the fact that hearings were held by the Energy and Natural
Resources committee, there was very little public notice of the
hearings and therefore lost opportunity for citizens to give testimony.
This only adds to the frustration that people feel when they are not
being heard.
The mine operators have had 30 years to weaken citizen and
environmental protections in SMCRA. The most recent is the unfolding
attempt by OSM to legalize the dumping of mine spoils in streams and
valleys (known as valley fills) through the proposed Stream Buffer zone
rulemaking.
President Bush signed the reauthorization of the AML mine clean up
program about a year ago. And today, the states still do not know the
amount of funds that will be allocated to them or when the funds will
be available for cleaning up dangerous abandoned mines. OSM has
violated the legal mandate to allocate and release these much needed
funds.
These short comings are only the tip of the iceberg. So please give
citizens a fair and equal opportunity to show the Energy and Natural
Resources committee members what is really happening to our coalfield
communities and the environment from lax mining regulations.
Sincerely,
Richard Stout,
Chair.
Rebekah Weigel,
Organizer.
______
Dine Citizens Against Ruining our Environment,
Fruitland, NM, November 10, 2007.
Hon. Jeff Bingaman,
Washington, DC.
Dear Senator Bingaman: We are aware that on Tuesday, November 13,
2007, the Senate Energy and Natural Resources Committee which you,
Honorable Bingaman, serve as Committee Chair, will be holding a hearing
on the thirty year anniversary of the Surface Mining Control and
Reclamation Act (SMCRA). This Committee has direct oversight over the
Office of Surface Mining (OSM) and per a recent discussion with the
Staff Assistant of the Energy and Natural Resources Committee, the
Director of OSM, Brent Wahlquist, will be testifying before the
Committee. It is of the utmost importance that, in this hearing, the
OSM agency examines the risks and impacts of a national minefill rule
before it proposes a draft rule.
As Navajo residents of a community that is sandwiched in between
the two mine fills that collectively comprise the largest Coal
Combustion Waste (CCW) mine dump in America (more than 100 million tons
dumped in the San Juan and Navajo Mines since the mid 1970s), we are
exposed to unregulated toxic CCW. On a daily basis, we are exposed to
notoriously poisonous metalloid, arsenic, because of unlined surface
impoundments of CCW which causes fugitive coal ash to become airborne,
causing plumes of toxic dust over our community. This poses significant
concern for us, downwind Navajo communities, who must deal with
underfunded Navajo healthcare and the legacy of pollution in Northwest
New Mexico.
According to a risk assessment entitled, ``Human and Ecological
Risk Assessment of Coal Combustion Wastes'' (dated August 6, 2007),
which was done as part of the Notice of Data Availability published by
the United States Environmental Protection Agency (EPA) in the Federal
Register on August 29, 2007, page 49714, the EPA estimates that the
risk of getting cancer from arsenic exposure to people living around
unlined surface impoundments is as high as nine individuals out of
1,000 exposed; in other words, nearly a one in a hundred people is at
risk for cancer. This is 1,000 times higher than the acceptable cancer
risk according to the EPA. This is an unacceptable level of cancer
risks thus, environmental regulations are supposed to prevent CCW
exposure to innocent bystanders living around polluting facilities.
Given that CCW is generated by coal-fired power plants and is not
directly related to mining, OSM is not the right agency to develop this
draft rule. SMCRA is a law that established requirements to make sure
that surface coal mining operations (strip mining) stop harming
adjacent environments (including water supplies) and that the lands
mined for coal are reclaimed for uses equal to or better than pre-
mining uses. OSM was established by SMCRA. The framers of this law in
Congress, however, did not envision that SMCRA would be used to allow
active coal mines to become open dumps industrial wastes like CCW. Thus
OSM has never had the expertise to regulate waste disposal. That job
was intended to be the responsibility of the US EPA, under the Resource
Conservation and Recovery Act (RCRA), the federal law regulating solid
wastes. US EPA does have the expertise to regulate waste disposal as
that is one of the primary reasons it was created and charged with
enforcing RCRA. The US EPA, not OSM, should be developing the
regulation for the dumping of CCW in coal mines.
Therefore, a critical question to ask the Director of OSM, Brent
Wahlquist, during the Committee hearing should be: What analysis is OSM
doing to assure that the safeguards that it is going to propose in a
national minefill regulation will be adequate to protect people and
their environment from unacceptable risk? Given the very high risk
posed to people and the environment living around CCW surface
impoundments and landfills, that US EPA has just divulged in its Risk
Assessment of CCW, what analysis is OSM doing to make sure that its
proposed safeguards will minimize that risk to people living around
minefills?
In the Navajo communities of Northwest New Mexico, we urge the US
EPA to develop proper regulation of CCW dumping so that our health will
not be compromised. We respectfully submit this letter for the
Hearing's record.
Sincerely,
Sarah Jane White.
Lucy A. Willie.
Dailan J. Long.
______
Sierra Club,
Illinois Chapter,
Chicago, IL, December 16, 2007.
Regarding: November 13th Committee Hearing on SMCRA: Surface Mining
Control Act Policy Issues 30 Years Later
Dear Members of the Senate Energy and Natural Resources Committee:
Thank you for the opportunity to comment on the Surface Mining Control
Act in your review of this essential legislation. In the thirty years
since the enactment of SMCRA, a significant legacy of coal mining
regulation outcomes is available for assessment. I would like to
request your consideration of the urgent need to update SMCRA to
include current scientific knowledge and demonstrated impacts of mining
and the results of SMCRA regulations on land and water resources, and
on the human communities in mining areas.
Since SMCRA was written, it is essential to recognized that the
mining industry has shifted from room and pillar mining to longwall
mining, and other techniques, such as mountaintop removal. SMCRA must
be updated with regulations that truly work as the law intended, in
light of changes in the mining industry.
Longwall mining, which removes about 80% of the coal over large
sections of land, is a huge threat to high quality agricultural lands
in Illinois. I urge your every effort to investigating and regulating
longwall mining in areas where there is only 0 to 4% grade in the land
surface.
Our nation's sustainable resources, including highly productive
agricultural lands and the mountains holding forests that serve an
essential role supplying oxygen and sustainable resources, are being
impaired for the short-term gain of coal extraction. SMCRA is failing
to protect the American public in many ways.
I ask you to personally visit the communities next to mountaintop
removal mines in Appalachia and to see the sunken farm fields in
Illinois where longwall mining subsidence has left impaired lands. In
many places, coal mining is robbing citizens of their quality of life
and is leaving huge environmental and societal costs in its wake.
No amount of regulations will protect America's water resources,
agricultural lands, and other resources when the agency entrusted with
enforcing regulations does not function as it was intended. I raise up
to you concerns regarding a legacy of lax enforcement of existing
mining regulations and significant failures on behalf of the Office of
Surface Mining in its responsibility to protect the American public and
our nation's natural resources. I ask that an assessment be done of OSM
to study how this agency has enforced existing laws regarding mining
and reclamation. Please hold additional oversight hearings to truly
investigate the Office of Surface Mining and how it has followed SMCRA
regulations. Critical failures in SMCRA enforcement can be found from
the coalfields of Appalachia to the Illinois Basin to Wyoming. Citizens
have been left to contend with loss of water resources or polluted
water resources, impaired lands, and serious health effects from coal
waste residue and other mining remains.
I live in Illinois and I emphasize to you our current, overwhelming
concerns regarding longwall mining. When SMCRA was written, longwall
mining and its subsidence impacts were not adequately considered or
covered. Very little longwall mining was being done thirty years ago.
Now in Illinois, it is the predominant method of coal extraction.
Longwall mines have moved from the rolling lands of southern Illinois
into the highly productive and considerably flat agricultural lands to
the north.
I urge you to consider that hundreds of thousands of acres of prime
ag lands in Illinois are at threat from ground subsidence from longwall
mining. These impacts affect the productivity and sustainability of
these lands for generations to come. America must wake up to the true
costs of coal. Alternatives exist for more sustainable energy sources
than coal, if our nation has the will to employ them. Great energy
savings could be made if there was a national effort to make our energy
use more efficient. Steps can and should be taken now to weigh the full
impacts of longwall mining on our essential agricultural lands and
water resources, because SMCRA fails to address longwall mining
subsidence concerns.
Lax enforcement of SMCRA regulations also impacts citizens via
their state agencies entrusted to enforce state mining regulations. I
ask your Committee to investigate how SMCRA regulations regarding the
declaration of Lands Unsuitable to Mine Petition (LUMP) are handled. I
raise to your attention the example in my state of years of efforts to
have 643.5 acres at Banner, Illinois, protected under the SMCRA LUMP
regulations. This land is located directly between two state
conservation areas which are both globally recognized important
migrating bird habit. Not only did the Illinois Office of Mines and
Minerals declare every issue in our LUMP without merit, they have
proceeded to approve a strip mine permit for mining in this acreage,
which is also in the Illinois River floodplain and has a host of other
environmental risks associated. Illinois Office of Mines and Minerals
has approved this strip mine, which will be 300 feet (which is the
SMCRA regulation) from the Rice Lake State Fish and Wildlife Area,
which has nesting eagles, state threatened and endangered species, and
is part of the hydrological system that will be affected by the strip
mine. While SMCRA regulations are being followed, they are totally
inadequate to protect the highly valuable and sensitive natural
resources that are at stake at Banner, Illinois. State mining agencies
use SMCRA regulations to avoid taking in the full impacts of what
mining will affect. The 300 foot buffer regulation in SMCRA, as far as
protecting adjacent parklands, is inadequate.
As another example of issues in Illinois, I would like you to know
what has happended in Macoupin County. Flat lakes of stagnant water
cover acres where prime ag land was once farmed. This is over four
years after these lands were longwall mined. In my visits to Macoupin
County, I have seen that longwall mining has not only affected farm
fields, it has affected the rural quality of life. County roads are
buckled with the earthquake type subsidence effects from longwall
mining, and remain impassible and unrepaired years after the mining was
done. Local traffic, schoolbuses, emergency vehicles, and other
transportation had to use different routes. Homes on farm property
owned by the coal company were vacated. Subsidence damage to houses and
farm buildings could be seen from public roads, and numerous subsidence
damaged homes were mysteriously burned down. Loss of streams, springs,
and other water resources because of longwall mining is a major concern
for livestock farmers and residents. I ask for your every effort to
stop the current expansion of longwall mining in highly productive
agricultural lands. Just as there are locations that are suitable for
coal mining, there are locations that should not be considered suitable
for mining. Flat and nearly flat quality agricultural lands should be
protected from longwall mining for their long term importance for crop
production. Please update SMCRA with specific regulations pertaining to
longwall mining that truly protect prime ag lands and water resources.
In your review of SMCRA, it is essential that an economic
assessment be made of what the real costs of coal mining are to
governmental entities and public taxpayers in terms of lost or polluted
water resources, impacts on public health and well-being, and the
greater long-term issues of what kinds of mining allows sustainable use
of lands for future generations, and what coal mining leaves
incapacitated land.
Thank you for your consideration.
Sincerely,
Joyce Blumenshine,
Mining Issues Committee Chair.
______
Statement of Loretta E. Pineda, President, National Association of
Abandoned Mine Land Programs
I am submitting this statement on behalf of the National
Association of Abandoned Mined Land Programs. (NAAMLP). The NAAMLP is a
tax-exempt organization consisting of 30 states and Indian tribes with
a history of coal mining and coal mine related hazards. These states
and tribes are responsible for 99.5% of the Nation's coal production.
Most of the states and tribes within the NAAMLP administer abandoned
mine land (AML) reclamation programs funded and overseen by the Office
of Surface Mining (OSM) pursuant to Title IV of SMCRA, P.L. 95-87.
Since the enactment of the SMCRA by Congress in 1977, the AML
program has reclaimed thousands of dangerous sites left by abandoned
coal mines, resulting in increased safety for millions of Americans.
Specifically, more than 285,000 acres of abandoned coal mine sites have
been reclaimed through $3.5 billion in grants to states and tribes
under the AML program. This means hazards associated with more than
27,000 open mine portals and shafts, 2.9 million feet of dangerous
highwalls, and 16,000 acres of dangerous piles and embankments have
been eliminated and the land reclaimed. Despite these impressive
accomplishments, $3 billion priority 1 and 2 problems threaten public
health and safety and remain unreclaimed. These hazardous sites require
safeguarding by the states and tribes through their AML programs.
The Association was extremely pleased with the passage of the 2006
Amendments to SMCRA. The 15-year extension coupled with increased
funding will provide the states and tribes with the ability to carry
out the remaining AML reclamation work. Time will only tell if all of
the AML problems can be totally corrected in 15 years but it is the
intention of the states and tribes to focus on the protection of the
public health and safety while ensuring restoration in the coalfields
of America. The Association would also like to thank the Congress for
reauthorization of the AML Program and for taking AML funding to states
and tribes ``off-budget''. With the funding off-budget, this will
finally allow the states and tribes to make staffing decisions and in
turn begin planning for long range design and reclamation activities.
Included with our statement is a copy of an AML booklet* called
``Safeguarding, Reclaiming, Restoring'' for your review. The booklet
was developed by the Association and OSM to highlight the various AML
problems across the United States that have protected the public's
health and safety.
---------------------------------------------------------------------------
* Booklet has been retained in committee files.
---------------------------------------------------------------------------
I would like to commend OSM for their efforts to work with the
states and tribes in the rulemaking process for the implementation of
the 2006 Amendments to SMCRA. OSM has spent considerable time and
effort meeting and responding to questions and concerns from the
Association regarding rule development. Although much has been done to
address problems identified by the states and tribes, there are still
significant shortcomings that need to be addressed. The following items
still have not been resolved. Thus the states and tribes have serious
concerns about how effective the 2006 Amendments to SMCRA will be
implemented:
1. Funding for Minimum Program States.
--The Minimum Program States are Alaska, Arkansas,
Iowa, Kansas, Maryland, Missouri, and Oklahoma.
--For the last 13 years, Minimum Program States have
been critically underfunded in respect to the number of
Priority 1 and Priority 2 AML hazards that need to be
reclaimed.
--For three years (FY1992, FY 1993, and FY 1994) the
Minimum Program States received $2 million annually.
Since that time the Minimum Program States have been
limited to an annual allocation of only $1.5 million.
The primary reason given for not allocating the
statutorily mandated annual $2 million was ``budget
deficits.''
--Under the 2006 Amendments to SMCRA all states and
tribes will receive increases in AML funding beginning
in FY 2008 (29% to 269% increases), while Minimum
Program states will receive no increases for FY 2008
and FY 2009.
--The NAAMLP has passed a resolution supporting the
annual $3 million to Minimum Programs states beginning
in FY 2008. However, OSM has been reluctant to support
that position.
2. Use of Grant Mechanism to Distribute Payments from the U.S.
Treasury for both the prior unappropriated state/tribal
balances and payments in lieu of future state and tribal share
to certified states and tribes.
--The states and tribes would like the option of
receiving the treasury payment by the current grant
process or by direct payment from the Treasury similar
to mineral royalties paid to states under the Mineral
Leasing Act.
--The states and tribes want flexibility and discretion
with regard to the types of mechanisms that are
available for distributing and expending Treasury
payments.
3. Use of Unappropriated State Share Balances for Noncoal
Reclamation and AMD Set-Aside.
--Since the inception of SMCRA in 1977 and the approval
of state/tribal AML programs in the early 1980's, the
states and tribes have been allowed to use their state
share distributions under section 402(g)(1) of the AML
Trust Fund for high priority noncoal reclamation
projects pursuant to section 409 of SMCRA and to
calculate the set-aside for acid mine drainage (AMD)
projects.
--In its most recent interpretation of the 2006
Amendments, OSM has stated that these moneys cannot be
used for noncoal reclamation or for the 30% AMD set-
aside.
--Pursuant to Section 411(h)(1) of the 2006 Amendments,
the states and tribes assert that these moneys should
also be available for noncoal reclamation under section
409 and for the 30% AMD set-aside. There is nothing in
the new law that would preclude this interpretation.
Policy and practice over the past 30 years confirm it.
These three items represent some of the unresolved issues between
OSM and the States and Tribes regarding the 2006 Amendments to SMCRA.
These issues are very important and we request that this Committee urge
OSM to address these problems as we believe they will lay the
foundation for a successful implementation of the AML Program for the
next 15 years. Upon request, the Association can provide this committee
a copy of a letter to OSM dated May 21, 2007 which provides significant
detail and rationale behind our concerns over these listed topics and
other important issues. We can also provide a copy of the response
letter from OSM dated June 14, 2007.
The following quotes and excerpts are from some of the Association
members that I believe are representative of many of the member's views
and are intended to address the effectiveness of Title IV SMCRA:
Kentucky: ``The Kentucky AML program has reclaimed over 2100 acres
of dangerous landslides and closed more than 2300 hazardous mine
openings. These actions have safeguarded thousands of Kentuckians from
the hazards posed by abandoned coal mines. Perhaps most importantly the
KY AML program has installed almost 1,000 miles of water distribution
lines and provided fresh water hookups to over 11,700 Kentucky
residences to replace drinking water supplies adversely impacted by
past mining. The Kentucky Division of Abandoned Mine Lands has
reorganized to add resources needed to design and construct the
additional reclamation projects that increased funding generated by the
2006 amendments will bring. Projects previously placed on a ``wait''
list due to funding challenges are being reviewed and scheduled for
reclamation. And, for the first time, Kentucky has established an acid
mine drainage set-aside account to address the environmental problems
associated with acid drainage from past coal mining.''
Montana: ``From the Montana perspective the Abandoned Mine
Reclamation Program under Title IV of SMCRA has been a huge success.
Montana's AML program was approved in 1980 and the program has had a
high approval rating ever since. Montana's program is a success from
the aspect of protecting human health and safety, protecting the
environment, and from the perspective of creating jobs and putting
people to work. Acceptance of the AML program has run high because AML
results in on-the-ground accomplishments that are immediately visually
apparent.
From the program management perspective Montana's AML program is a
success because of the manner in which the abandoned mined lands
program is managed by the Office of Surface Mining. Montana's
experience with OSM oversight in the AML program is one of
collaborative assistance that focuses on accomplishing the goals of
AML. OSM provides the oversight and assistance necessary to keep the
AML program on track without creating unnecessary or confusing
paperwork or reports.
OSM provides important training in the areas of computer software
and modeling geographic information systems, and data systems. This
focused training gets staff trained using software packages that would
not be available through State computer systems. In addition, OSM
sponsors training through their National Technical Training Program in
subjects such as subsidence control, mine fire abatement, mine
hydrology and project management that are not available through other
outlets. This specialized training is just not available from other
sources and without it Montana AML would not have the necessary problem
solving tools.''North Dakota; ``Overall, I believe the AML program has
been very successful in identifying abandoned mine sites and
eliminating safety hazards associated with many of them. As you know,
much more AML work remains to be done in most states and re-
authorization of the program will allow most of this remaining work to
be completed over the next 15 years. However, for the minimum program
states, one of the failures has been the lack of full funding for the
minimum program states over the past 15 years. SMCRA amendments in 1992
set the minimum program funding level at 2 million dollars per year,
but Congress typically appropriated only enough funds for 1.5 million
per year. If the other 0.5 million dollars had been appropriated each
year, the backlog of AML work in these states would be much less and
hazards would have been eliminated sooner and at lower costs. Since
there is nothing that can be done about past actions, we shouldn't
dwell too much on that and move forward instead. With re-authorization
now in place, it's time for OSM to ensure that funding for minimum
program states is at the 3 million dollars per year authorized in that
legislation. The increased funding to that level for the minimum
program states needs to begin in FY 2008.''
In closing it is important to remember that the AML program is
first and foremost designed to protect public health and safety. The
majority of state and tribal AML projects specifically correct AML
features that threaten someone's personal safety or welfare. While
state and tribal AML programs do complete significant projects that
benefit the environment, the primary focus has been on eliminating
health and safety hazards first.
Thank you for the opportunity to submit this statement.
______
Statement of Ronald E. Yarbrough, Professor Emeritus, Earth Sciences,
Southern Illinois University, Edwardsville, IL
I wish to thank the Natural Resources Committee for a review of a
30 year old act-SMCRA and the chance to pass on to our elected leaders
a personal view of the coal industry and regulators, which I have
worked for and have worked against in legal proceedings and
publications. I am now 69 and am Professor Emeritus, Earth Sciences,
Southern IL University, Edwardsville. I am also retired from the U.S.
Army Corps of Engineers, St. Louis District where I worked part and
full time for 17 years. I also worked for the former U.S. Bureau of
Mines, Twin-Cities Lab, researching subsidence. My consulting work,
over the last 40 years has been focused on coal mine subsidence and
environmental problem solving.
The following items are most important to me and are why SMCRA
needs to be updated to follow the changes and mistakes made by the coal
industry. The writer has been confronted with some of these problems in
my consulting career.
1). The underground coal industry has moved from room and
pillar mining (50%+-extraction to protect the surface estate)
to longwall mining (80% extraction with controlled subsidence,
usually about 80% of seam height). An 84 in. seam would yield
about 5.5 feet of subsidence. To legally subside the surface
estate the company needs a ``right to subside'' contract with
the surface owner. This relationship of mineral estate and
surface estate owners was established in English Common Law in
the 1500s. In IL, some of the county boards sold old coal
mining rights to new companies and also sold the subsidence
rights with NO input from the surface estate owner. This type
of contract sale must be stopped. CALM (Citizens Against
Longwall Mining--they are not against room and pillar mining)
in Montgomery County, IL--largely farmers--are presently
seeking a declaratory judgment in Federal Court against the
coal companies for assuming that they have subsidence rights
without a contract with the surface estate owner As one can
ascertain, the rich coal companies can wear out the pocketbooks
of the farmers in court and their prime farmland will be
destroyed by longwall mining, which will be an economic
disaster to the farmers, the local economy and America.
Congress must not allow the ``energy frenzy'' to overcome our
agricultural economy.
2). Subsidence over room and pillar mines is a rare
occurrence and about a million acres of IL is undermined.
Seventy-three percent of IL is underlain by coal deposits. It
has been estimated that about fifty percent of the coal is
recoverable, assuming economics and technology under present
day conditions. Most of the surface mineable coal is mined out
and underground mining will be the primary method of extraction
and the companies wish to have higher extraction--longwall
mining, thus, more profit. Occasional subsidence does occur
over room and pillar mining, but if in a field, the sags can be
easily repaired. If a structure is damaged, PA, IL, KY, OH and
IN have a Mine Subsidence Insurance Fund which will repair the
home or barn. A major problem today with the coal companies is
that they are denying that the round ponds (sags) in the middle
of fields are due to subsidence. The State regulators are
sometimes helpful, but, since some feel that they work for the
coal companies-not the people, they like to brush off
investigations and the farmer has to sue to get compensation.
The Office of Surface Mining (OSM) was very helpful with three
cases I have worked on in KY.
3). IL also has some of the most productive farmland in the
world. Much of the glaciated areas of the State are only 0 to
4% slopes or flat. The farmers who broke the prairie in the
1800s found out that the level areas did not have good
drainage. They installed field tile (there is enough field tile
in IL to reach to the moon and back) and dug ditches to improve
their crop yields. There are millions of dollars invested in
the drainage systems in the State. Then, along comes longwall
mining. The method involves 100% extraction in a panel that may
be 3 miles long and 1000+-feet wide that creates a ``bathtub''
effect on the surface because room and pillar areas, which
function as air and material passageways, parallel the panel
and on the ends of the panel there are ``room and pillar
mains'' which do not subside to the same extent as the panel.
The Surface Mining Act states: ``affected land shall be
restored to a condition capable of supporting the uses which it
was capable of supporting prior to any mining, or higher or
better uses of which there is reasonable likelihood''. This has
been achieved in a surface mine, for which the law was written,
but is impossible with a longwall panel. In the Mt. Vernon Hill
Country in Southern IL there have been many successful longwall
panels because the land is rolling with slopes between 5 to
15%. Good floodplain land has been undermined and this level
land is now largely elongated lakes. But subjacent to our level
prime farmland the ``bathtubs'' on the landscape cannot be
restored to a condition capable of supporting the yields of the
fields prior to mining. Longwall Mining should be banned under
prime farm land that has zero to four percent slopes because it
cannot be reclaimed to its original production*.
*NOTE-The Dept. of Agriculture measures slope in their modern
SOIL SURVEYS OF THE COUNTIES IN U.S.A.
4). Rural families usually depend upon groundwater for their
water supply for home and animals. The IL. State Geological
Survey has conducted studies concerning the effect of longwall
mining and bedrock aquifers. They have shown that there is
draining of the bedrock aquifer for a year of so but the
aquifer normally will recover. Those farmers or rural
residents, who depend on shallow wells, usually in glacial
derived sandy materials, sometime loose their water supplies
for many years. The coal companies who conduct longwall mining
in areas of 5%+ slopes and shallow aquifers should conduct
studies to determine the effect on aquifers and in both shallow
and deep aquifers should be ready to supply resident's adequate
water without a law suit. The new SMCRA should make it very
clear that the companies have that responsibility.
5). An example of a mining company in IL and longwall mining
and landuse--There have been many complaints by the public
about the regulatory agencies, OSM and State Departments that
enforce SMCRA, are not doing their jobs. The professional
people that I have worked with for many years in both agencies
are doing their jobs to enforce the 1977 law--the problem is
the law is not written to consider longwall mining and the
agencies must have a law which has teeth to stop the coal
companies from deliberately changing the surface landscape. A
good example is a permit which was issued in 2006 by the IL
Dept. of Natural Resources. A permit was issued to Steelhead
Development Co. LLC, which changed its name to Williamson
Development Co., LLC who is affiliated with Cline Resource and
Development, LLC whose main offices are in Canada and are
largely owned by German and Japanese Companies who are also
affiliated with Natural Resource Partners, LP, NRP of Houston--
owners unknown. The permit was for 540 acres of land, which
they purchased, with 434.25 acres of farm land. The reclamation
plan calls for the ``bathtub lands'' to be converted to
wildlife habitat with no cropland, 19.26 acres of water and
forest land.
So short term taxes versus long term loss to the county. By
the way, Williamson Co. does not need any more wildlife land.
The writer is also very suspicious of all of the chain of
limited liability corporations, some foreign, who will be like
some of the old strip mining companies, who were put out of
business by the 1977 law. For some companies the old way to
operate strip mines was rape, ruin and run and I am concerned
that is what the foreign longwall companies (with local
offices) are planning to do. The USA will be treated like a
third world country supplying raw materials. The writer is not
an attorney--who would a landowner or the states or Federal
Government sue in the LLC chain?
6). Disposal of coal waste is a major problem in all coal
fields. On the level surfaces of the Midwest slurry (fine
material carried to the waste pile by pipeline) and gob (which
is transported by truck) contain many hazardous materials. The
Bevill amendment to the Clean Water and Clean Air Acts states
that coal cannot be considered a hazardous material. Coal waste
contains most heavy metals, materials that change into
dangerous gases and high amounts of sulfur compounds which are
released into the neighborhood around the waste piles. There is
an excellent example in Clinton Co., on level prime farmland,
of two waste piles that are 40 to 60 feet high and contain
about 30+ million tons of waste. The piles were built on top of
an unusual large shallow aquifer and Monterey Coal Co. (owned
by Exxon-Mobile) knowingly poisoned the aquifer. Neither IEPA
nor IDNR had laws that allowed them to modify the construction
methods of the company. In a meeting (I was an expert witness
against Exxxon), after the old waste pile had poisoned the
aquifer and the coal company was looking to obtain a permit for
a new pile--a employee of IL. Dept. of Natural Resources asked
``are you not going to put a liner under the new pile since we
all know that the old pile leaks''.-the coal company
representative said nothing. IDNR and IEPA did not have any
authority to stop the permit being issued. Now, the mine is
closed and they operate pumps to remove the poison, direct the
poison into settlement basins and place it a pipe line to the
Kaskaskia River, a source of drinking water. The noxious
materials will not be leached out of the pile for 500+ years.
The company was allowed to place only 2 feet of dirt on top
rather than the required 4 feet--why? no one knows, yet the
regulators let them get away with it. Unless poor little Exxon
could not afford to follow the reclamation law. Who will clean
up this mess in the future--the taxpayers of IL and America?
The writer recommends that hearings should be held so the
decision makers can design a new SMCRA that will be similar to
the law for sanitary landfills to stop the pollution from coal
waste.
7). Management of a revised SMCRA--recommended changes. As
the writer stated, the profession people, who do the work, are
limited by the current law to protect the property of the
people in their state. One of the major problems is the fact
that ``the fox is watching the chicken house''. The $0.15 tax
on underground mined coal and the $0.35 tax on surface mined
coal go to the regulators, OSM and the respective state
regulatory agencies. The more coal is mined the more dollars
the politically appointed managers in the states have to spend.
Of course, these managers tell the professionals what to do,
they are the boss. It is the writer's opinion, that Congress
should review this fact and write into the new law a means to
modify this management system and replace it with an
independent group that answers to Congress and the people-not
to the paying coal companies. Also, the other environmental
portions of the present law are not strong enough. Congress has
the National Environmental Policy Act which works very well
because it MANDATES planning, scoping and public input. Getting
a public hearing on a mining permit is like getting a tooth
pulled, the agencies are very reluctant to face an angry
public. As a geologist and former regulator, I feel sorry for
them as all they have to work with is the 1977 law in which
underground mining and waste disposal were not emphasized.
The writer would be very willing to work with a congressional aide
as the House moves forward with the modification of the Surface Mining
Act.
______
Statement of Julia Bonds, Rock Creek, WV
I would like to thank Senator Bingaman for holding this hearing,
The good citizens of Appalachia and of all coal mining communities
would like to invite you to our communities to witness the destruction,
the illegal and immoral activities that OSMRE is allowing the coal
industry to get by with. We need your help. Please come and investigate
our complaints.
OSMRE and this administration continue to deny the citizens of
Appalachia sufficient time to examine rule changes. OSMRE makes it
extremely hard for citizens to find out about permits. Citizens in the
nearby communities should be notified the minute a permit that affects
them is applied for. During the Stream Buffer Zone rule change, we the
citizens asked OSMRE for an extension and for hearings in November. We
were denied without reason. I ask again WHY??? OSMRE is constantly
making changes in regulations that make it easy for the coal industry
to pollute, poison and blast our homes and communities.
The Bush administration and OSMRE are treating the good people of
Appalachia like second-class citizens. The OSMRE denied the citizens of
Virginia the right to even have a hearing, there by disenfranchising
this county's citizens. This administration is a fascist regime and
OSMRE is a gatekeeper for that regime. History will show their evil and
shameful acts upon innocent people. Please do not be part of that
shame.
OSMRE does not enforce the SMCRA laws.
OSMRE is allowing coal companies to devastate communities near coal
mining operations. Loss of life and homes from flooding, loss of both
well water and stream water sources, loss of renewable resources, and
loss of quality of life are all consequences of irresponsible mining by
outlaw coal companies and OSMRE is allowing this to happen by not
enforcing the law. Our water is being poisoned and no one will help us.
The coal industry is blasting our homes and mountains with millions of
pounds of explosives a day. The coal dust, rock dust and silica dust
comes down into the valleys and settles in our homes and our lungs.
OSM must honestly assess the cumulative impacts of mountaintop
removal. OSM says the impacts are insignificant but ignores the
cumulative impacts of mountaintop removal and other mining in central
Appalachia, like longwall mining.
According to the administrations own studies on mountaintop removal
coal mining, the immediate and long-term environmental impacts of this
form of coal mining are severe and irreversible. The jobs are temporary
and the damage is permanent. Lapses in the enforcement of the buffer
zone rule have allowed almost 2000 miles of streams to be buried or
degraded by mining waste.
The Bush administration released a draft Environmental Impact
Statement (EIS) on August 24 to go along with the proposed rule change.
That study was supposed to examine the environmental effects of
alternatives to repealing the buffer zone rule, which prohibits valley
fills and sludge ponds from burying and destroying streams. Yet,
incredibly, the EIS did not even study the option of enforcing the
buffer zone rule as currently written.
This fact alone proves the administration never considered
enforcing the law, but only wants to repeal it, regardless of the facts
about the harm that will result.
Using the administration's own figures, more than 1000 miles of
streams will be destroyed every decade into the future, poisoning an
entire region.
OSMRE is proof that the ``fox is guarding the henhouse''.
OSMRE is not even enforcing or fulfilling provisions of the AML law
signed last year.
Recently the Rahall overhaul and change to the 1872 Hard Rock
Mining Law included language that would allow the use of OSM personnel
to enforce this law. This means more responsibilities for a regulatory
agency that is NOT enforcing the laws now in coal mining communities.
OSMRE could also be given responsibilities of collecting the taxes
generated by this law, again, this is even more responsibilities for a
lax agency.
This could be perceived as leaders and lawmakers of this great
country desires OSMRE to fail in it's job to protect the citizens
living in the United States of America, or just fail to protect the
citizens that live near coal mining operations.
We are asking that our Congress help us.
______
Statement of Linda Lindsey, Paonia, CO
Thank you for the opportunity to submit comments to the Senate
Energy and Natural Resources Committee with regard to SMCRA. SMCRA was
intended to protect people and the environment from the deleterious
effects of coal mining, but it has not bee well enforced and abuse is
rampant. I could cite many instances where there has been mining under
houses, dams, streams, etc. with horrible results that have not been
addressed. There is urgent need for Senate oversight hearings to assist
citizens in the coalfields to address the problems created by lax
enforcement, to hold OSM accountable to its responsibility to protect
our hard working citizens and our natural environment.
______
Statement of Mary A. Bates, Hillsboro, IL
OSM has abdicated it responsibility to regulate SMCRA and protect
the citizens and landowners from the ravages and greed of the mining
companies. Underground mines have destroyed thousands of acres of prime
farmland in the Midwest. Mountaintop removal and the stream buffer zone
rule must be better regulated to stop the destruction and protect the
natural resources.
In Illinois the Monterey Mine #1 has destroyed homes and families
were displaced after being badgered and harassed to sell their land to
Exxon Mobile owner of Monterey Mine #1. Planned subsidence from
longwall mining has destroyed roads and prime farmland and now the mine
is being closed without reclamation because it's not technologically
and economically feasible.
Exxon's Monterey Mine #2 was closed several years ago but the Pearl
Sand Aquifer was contaminated with leachate from the coal waste because
it was poorly designed from the beginning in late 1970's. There was no
rule to install an impermeable liner under the coal waste then or now.
OSM deferred to the state agency, IDNR, which made decisions in favor
of the mining company and against the citizens welfare. Even today, 30
years later, contaminates drain into the Kaskaskia River everyday
without warning signs posted anywhere near the output.
The citizens private wells are contaminated with arsenic as well as
a multitude of other contaminates because they migrated off the permit
area. Exxon was fined a million dollars and required to put surrounding
landowners on municipal water supply. The mining activity still
continues to pump water out of the aquifer and into the River. The soil
cap on the GOB pile is less than SMCRA requirements and coal dust blows
into surrounding homes. Many citizens are sick and have died from
cancer for lack of information about what was in their drinking water
and the air they breath.
The legislators deny responsibility, the mine denies
responsibility,OSM has denied responsibility to protect the citizens of
Albers and Germantown. USDA ruled the pumping was an ongoing mining
activity even though the mine is closed . . . the Illinois Department
of Natural Resources allows the pumping to go on designating it
``passive reclamation''. According to IDNR's own engineers the pumping
must go on for 500 YEARS. IDNR denied hearing and comment periods
saying it was irrelevant and statically insignificant. The citizens
have no voice and continue to suffer.
This same scenario is about to play out again in Montgomery County
with Hillsboro Energy LLC proposing to longwall mine and planned
subsidence to thousands of acres if prime farmland. The flat (0-4%
slope) cannot be drained and will become a swampland. Reclamation is
possible on hilly terrain but not technologically or economically
feasible on flat farmland.
It's not too late to revise SMCRA to stop the destruction of
205,000 acres of prime farmland in Montgomery County. We must have
citizen input as originally written into SMCRA of 1977. There must also
be enforcement of existing rules and OSM must the lead as intended.
Most Illinois landowners sold their mineral rights in the early
1900 to 1920 assuming room and pillar mining method would be used.
Longwall mining method with planned subsidence was not used in 1977
when SMCRA was written and only added as an afterthought. Revision of
the SMCRA rules must include protection for surface landowners from the
longwall mining method and destructive planned subsidence. Protections
for mountaintop removal and destruction natural resources must be
included in a SMCRA revision.
______
Statement of Vicki Hedrick, Carlinville, IL
This email is in response to the need for revising SMCRA in light
of the laxity with which mining regulations are enforced. Now it has
come to my attention that there is a proposal to allow dumping of
debris from mountaintop removal into associated valleys resulting in
the damming of streams and rivers. This latter occurrence, if it were
approved, would result in the loss of fresh drinking water for many
U.S. citizens living in affected areas not to mention the destruction
of habitat for many species of wildlife from birds (losing their
mountaintop breeding habitats and food sources) to fishes, reptiles,
amphibians, and mammals that rely on streams and rivers.
I fear that not enforcing the protection of streams through a
buffer zone would also carry here into the midwest where many of our
streams and rivers, including the Kaskaskia River (a major Mississippi
feeder river) are already contaminated from mining waste. Some of this
contamination results from continued leaking of leachate (arsenic,
e.g.) into the ground water from abandon mines but also from leakage of
those contaminants from gob piles and borrow pits of active mines.
In addition to leachate, longwall mining has become the method of
choice in Illinois and other midwestern states. Longwall, of course,
extracts a higher percentage of the coal seam. Removing that coal seam
results in the subsidence of ground above the seam when mining is
completed. Much farmland in Illinois (at a time when biofuels are being
promoted) has been lost to subsidence. Since it may not be economically
feasible for the mining company to restore the land (as the company is
supposed to according to mining regulations), as determined by the
mining company, this land may never again be productive since it will
hold water late into the spring and summer, at least. Any homes, barns,
and other structures are damaged and may not be repaired.
SMCRA was formulated at a time when longwall mining was not the
method of choice and so, therefore, too many loopholes exist which
allow the mining companies to abbrogate their responsibility to
landowners. Therefore, SMCRA should be revised and strengthened. In
addition, stream buffers must be protected (and frankly, it would be
best if, in states where this is an issue, mountaintop removal must be
abolished!), private citizens must have recourse against the mining
companies.
______
Schmid & Company Inc.,
Consulting Ecologists,
Media, PA, December 17, 2007.
Hon. Jeff Bingaman,
Chairman, Senate Energy and Natural Resources Committee, Senate Office
Building, Washington, DC.
Re: Comments on OSM Administration of SMCRA
Dear Senator Bingaman: This letter is to provide comments to the
Senate Energy and Natural Resources Committee as a follow-up to the
Committee hearing on 13 November 2007 regarding SMCRA policy issues.
Specifically, these comments relate to the recent Draft EIS\1\ and
proposed rule change\2\ regarding the ``Stream Buffer Rule''. I am
deeply concerned that OSM is not effectively administering the
environmental protections intended by SMCRA, and that as a result,
additional Congressional oversight may be necessary.
---------------------------------------------------------------------------
\1\ Draft Environmental Impact Statement (DEIS) on Excess Spoil
Minimization--Stream Buffer Zones, Proposed Rule (OSM-EIS-34), prepared
by the Office of Surface Mining Reclamation and Enforcement, dated
April 2007.
\2\ ``Excess Spoil, Coal Mine Waste, and Buffers for Waters of the
United States'' (regarding 30 CFR Parts 780, 784, 816, and 817), as
published in the Federal Register on 24 August 2007 (Volume 72, No.
164, pages 48890-48926.
---------------------------------------------------------------------------
These comments are provided as a public service and not on behalf
of any client. They are based on my professional experience during more
than 25 years as a private-sector consulting ecologist, during which
time I have worked closely with federal and state regulatory programs
relating to mining, wetlands, and water quality.
COMMENT 1.--The basic premise of the Draft EIS and the proposed
rule, that excess spoil fills, refuse piles, coal mine waste
impoundments, and sedimentation ponds can routinely be authorized in
and within 100 feet of perennial or intermittent streams in accordance
with SMCRA and its implementing regulations, is fundamentally false.
Just because OSM and State regulatory authorities may have historically
applied the stream buffer zone rules at 30 CFR 816.57 and 817.57 in a
flawed manner, does not make it a correct application of the rules.
Indeed, it seems perfectly clear that routinely allowing these mining
activities in streams was never intended. As noted on page III-70 of
the DEIS, the preamble to the 1979 rules states that ``[b]uffer zones
are required to protect streams from adverse effects of sedimentation
and from gross disturbance of stream channels''. Excess spoil fills,
refuse piles, coal mine waste impoundments, or sedimentation ponds, if
constructed within streams, clearly will and do cause gross disturbance
of the stream channels and degrade water quality.
Furthermore, the 1983 revisions of Sec. 816.57 (and Sec. 817.57)
clearly state that ``no land within 100 feet of a perennial or an
intermittent stream shall be disturbed by surface (underground) mining
activities''. Although those sections of the regulations do anticipate
limited exceptions to the near-prohibition on mining activities within
the buffer zone, even those excepted activities may not ``adversely
affect the water quantity and quality or other environmental resources
of the stream''. In essence, only if the mining activity can be
performed without adversely affecting the stream can it be authorized
within the buffer. This is very clear and straightforward language, and
I see no opportunity for misinterpretation.
If an excess spoil fill, a refuse pile, a coal mine waste
impoundment, or a sedimentation pond is placed within a perennial or
intermittent stream, it most certainly will adversely affect the water
quantity, water quality, and/or other environmental resources of the
stream. Replacing a section of a natural stream (which includes not
only the physical structure of that stream but also the ecological
functions and benefits that stream provides) with a spoil fill, a
refuse pile, a waste impoundment, or a sedimentation pond will
permanently and adversely change the stream, because those activities
will result in the loss of that section of the stream, and there can be
no more adverse effect on that section of stream than the entire loss
of the stream section itself.
COMMENT 2.--The administration of the 100-foot buffer zone rule,
which should be a very simple concept to implement, has become an
elaborate attempt by OSM to rationalize exemptions and variances for
activities that clearly were never intended to be allowed. The central
focus of the DEIS, as with the past implementation of the rule, has
been diverted from protecting and preserving natural watercourses to
rationalizing and justifying how the destruction of whole sections of
streams does not represent an adverse impact. The same weasel words and
phrases keep being repeated in a deceptive attempt to appear to be
providing environmental protection:
operations must be designed to minimize the creation of
excess spoil to the extent possible
excess spoil fill must be no larger than needed to
accommodate the anticipated volume of excess spoil generated
steps to be taken to avoid adverse environmental impacts, or
if avoidance is not possible, to minimize those impacts
operations must be conducted in a manner that minimizes
disturbances to, and adverse impacts on, fish, wildlife, and
related environmental values to the extent possible, using the
best technology currently available.
I have dealt with federal and state regulations for many decades
and I can recognize hollow directives such as these that may sound
protective, but in fact represent giant loopholes. If an applicant
agrees to ``minimize disturbances to the extent possible'', in reality
he will do as he always has done and claim that nothing more protective
is possible (typically because it will raise costs and lower profits).
A claim to use the ``best technology currently available'' also is a
charade: while advances in technology for mining coal are continually
being developed and applied, there have been no comparable
technological advances in the methods to protect streams and other
environmental resources (because there is no incentive to do so), and
so the ``best available technology'' may be wholly inadequate for
stream protection and use of better techniques may be viewed by the
applicant as not possible. This is unacceptable.
COMMENT 3.--The best protection a stream can receive is to prevent
mining within 100 feet of it. This fact is acknowledged on page II-19
of the DEIS: ``... in general, stream buffer zones continue to be the
best technology currently available for implementation of SMCRA
Sections 515(b)(10)(B)(i) and (24)''. It is not necessary to have an
absolute prohibition on all mining activities within the entire 100-
foot buffer. Mining activities in any part of the 100-foot buffer,
however, should be allowed only on a case by case basis and only in the
most extraordinary circumstances; they certainly should not be allowed
routinely. Most mining activities when conducted in the stream itself
(especially excess spoil fills, refuse piles, coal mine waste
impoundments, or sedimentation ponds) cause irreversible adverse
impacts that cannot be mitigated adequately, and so they should not be
allowed in the first place.
COMMENT 4.--OSM proposes to include a requirement that applicants
submit an alternatives analysis and an environmental evaluation of each
alternative proposed to allow certain mining-related activities in
waters of the United States. This alternatives analysis proposal is
fatally flawed by the inclusion of the loophole that allows the
applicant to select an alternative other than the one with the least
overall environmental impact if he can ``demonstrate why implementation
of that [least impact] alternative is not possible''. This proposed
``requirement'' is just another spurious attempt to justify allowing
mining activities that are not appropriate in or near streams. There
are many different methods of mining coal. The method used should be
the most compatible with the land being mined. If the topography is so
steep that mountaintop removal cannot be done without filling in
streams, then another mining method should be used. An applicant may
produce reams and reams of documents describing how it has tried to
avoid and minimize adverse impacts to a stream, and measures it will
propose to implement to try to mitigate the impacts, but at the end of
the day, if a stream or some section of it is allowed to be used as an
excess spoil pile, or for some other mining-related activity, then it
will not be available for fishing, hiking, or other recreation, it will
not support aquatic life or riparian habitat, it will not store
floodwaters, and it will not be able to provide the other ecological
functions and benefits it provided previously.
COMMENT 5.--The attempt by OSM to justify impacts to streams under
SMCRA by relying on Clean Water Act (CWA) protections associated with
Nationwide Permits (NPs) authorized by the Corps of Engineers (Sections
780.28 and 784.28) is disingenuous. This is nothing more than circular
regulatory logic which goes like this: if the proposed work in streams
and wetlands already is authorized by a CWA Nationwide Permit, then it
should automatically be authorized under SMCRA. That might make sense
if the Nationwide Permit authorizations entailed a comprehensive review
of the proposed work, but they do not; in fact: a) Nationwide Permits
are not carefully reviewed by the Corps in any manner even approaching
the review that is required under Individual Permits, b) there are no
acreage limitations on impacts associated with the referenced
Nationwide Permits (NP 21, NP 49, and NP 50), and c) the Nationwide
Permits themselves are considered valid if the proposed work either has
been approved or is ``being processed'' by OSM (the circular logic
again). OSM rules should require independent review of any and all
mining activities that will affect wetlands or other waters of the
United States, even if those activities undergo separate Clean Water
Act approval.
COMMENT 6.--The OSM proposal to expand the protections of the
stream buffer rule to all waters of the US, and not just to perennial
and intermittent streams, would be laudable if it were not so
ludicrous. The so-called ``protection'' that OSM proposes to expand is
the watered-down version which allows major mine-related activities
(excess spoil fills, refuse piles, coal mine waste impoundments, and
sedimentation ponds) to occur within those waters. If OSM is going to
lock the henhouse, it hardly can be called ``protection'' if it locks
the fox inside too. If, however, OSM would propose to retain the same
standards of protection as the existing rule ostensibly provides, I
would applaud its expanding those protections to all waters of the US,
including lakes, ponds, and wetlands.
COMMENT 7.--OSM proposes to replace the phrase ``adversely affect''
with the phrase ``significantly degrade'' in the conditions under which
a variance to the 100 foot buffer could be authorized. This change
should not be made. The phrase ``significantly degrade'' is less
restrictive than the existing phrase ``adversely affect''. To change it
would unnecessarily weaken the stream protection currently afforded
under the existing rule. OSM should keep the buffer rule language as it
is, and allow no mine-related activities within the buffer except in
extraordinary cases where no adverse impact will result.
COMMENT 8.--The alternatives OSM proposed and reviewed are
fundamentally flawed because they fail to include the most reasonable
alternative, which is to protect streams by enforcing the 100 foot
buffer zone under the existing regulation. This seems to be an obvious
alternative for consideration, and it is outrageous that it was not
included.
COMMENT 9.--OSM says that if mining is not allowed within streams
and within the 100 foot buffer zone it would result in a significant
detrimental effect on US coal production, which OSM says would be
contrary to one of the stated purposes of SMCRA. However, three of the
other stated purposes of SMCRA, all of which are listed before the one
quoted which refers to ``the Nation's need for coal'', are as follows:
(a) establish a nationwide program to protect society and the
environment from the adverse effects of surface coal mining
operations;
(b) assure that the rights of surface landowners and other
persons with a legal interest in the land or appurtenances
thereto are fully protected from such operations; . . .
(d) assure that surface coal mining operations are so
conducted as to protect the environment. [30 U.S.C. 1202 Sec.
102; emphasis added]
Environmental protection obviously is meant to be a primary
consideration under SMCRA. There are many methods of coal mining, and
coal is mined in many parts of the country. Local conditions should
dictate which method is used in a given situation. If a particular
mining method is such that it cannot be conducted in a specific
location without causing adverse environmental effects, then it should
not be allowed in that location. This does not mean that mining in that
location is prohibited, only that another method of extracting the coal
should be used, one that will not damage the stream corridors and other
environmental resources. Under the current rule, variances can be
authorized, but only where the proposed work can be done within the
buffer in a manner that ``will not adversely affect the water quantity
and quality or other environmental resources of the stream''.
COMMENT 10.--The existing 100-foot stream buffer rule should be
uniformly applied and enforced in connection with underground coal
mining as well as surface mining. Certain types of underground mining,
longwall mining in particular, cause significant adverse impacts to
streams, wetlands, and other surface water resources when the
overburden subsides into the mine void. Subsidence is an intrinsic and
predictable aspect of longwall mining. Consequently, underground mining
activities should be made to comply with the stream buffer rule and
should be allowed to occur within the buffer only in exceptional
circumstances (e.g., where room and pillar mining is proposed and no
subsidence can be anticipated).
COMMENT 11.--The rules should not be weakened to accommodate mining
activities that cannot meet the standards. SMCRA became law 30 years
ago largely in response to the environmental devastation being
inflicted on the Appalachian coalfields by unregulated strip mining. A
major element of the law and its implementing regulations was the
inclusion of detailed environmental performance standards. The
currently-proposed changes to the 100 foot buffer zone requirement will
result in a return to the type of environmental impacts in Appalachia
that SMCRA sought to correct. That should not be allowed to happen. As
mentioned above, if a particular mining method is such that it cannot
be conducted in certain locations without causing adverse environmental
effects, then it should not be allowed in those locations. Instead of
weakening the rules to accommodate certain coal mining methods, the
method of mining must be changed to conform with local conditions and
comply with the environmental standards.
COMMENT 12.--OSM should not abandon its regulatory and oversight
roles in favor of becoming an advocate for private industry.
Environmental standards and regulations too often are viewed (at least
by the regulated community) as unwarranted infringements on the right
to operate a business and make a profit. The debate typically is framed
as a strict choice between economics and the environment. The
environmental protection rules are seen as imposing unreasonable costs
on a business or industry. What is unreasonable, however, is the
expectation that any business should be allowed to destroy mountains
and streams, and when it happens, to avoid fixing or paying for the
damages caused. In that sense, environmental regulations are a means to
level the overall playing field, to ensure that all relevant costs and
considerations are factored into the approval process. In their
absence, the cost of environmental destruction is not reflected in the
price of coal, rendering less destructive alternative sources of energy
uncompetitive. So long as the regulations are fairly and consistently
applied and enforced, it then becomes a free-market decision for the
business owner to modify the proposed mining operation to comply with
the requirements, or to use a different method of mining that complies.
Good old American innovation and ingenuity is still alive and well in
this country, and I know that coal can be mined without destroying
streams. OSM should not presume otherwise.
In conclusion, I strongly believe that OSM must retain and enforce
the existing 100-foot stream buffer regulatory requirement whereby no
mining activity is allowed within 100 feet of perennial or intermittent
streams except in specific, extraordinary situations where it can be
conclusively demonstrated that there will be no adverse environmental
impact on the stream. I call upon the Senate Energy and Natural
Resources Committee to hold additional hearings and to provide a higher
degree of oversight of OSM's administration of SMCRA. Thank you for the
opportunity to provide these comments.
Yours truly,
Stephen P. Kunz,
Senior Ecologist.
______
Statement of Scott Gollwitzer, In-house Counsel, Appalachian Voices,
Asheville, NC
Thank you for the opportunity to submit comments on the
implementation of the Surface Mining Control and Reclamation Act
(``SMCRA'') by the Office of Surface Mining, Reclamation and
Enforcement (``OSMRE''). As part of its duties under SMCRA, OSMRE is
required to comply with the National Environmental Policy Act
(``NEPA''). The following comments\1\ are intended to highlight recent
attempts by OSMRE to implement SMCRA while evading its obligations
under NEPA.
---------------------------------------------------------------------------
\1\ Excerpted from our comments on the proposed Stream Buffer Zone
rule changes.
---------------------------------------------------------------------------
I. INTRODUCTION
Because more than half of America's electricity is generated from
coal, we rely on the people, communities and environments wherever it
is mined, processed, burned and discarded. Accordingly, we have a
reciprocal moral obligation to reduce or eliminate coal's catastrophic
impacts. Congress codified this ethical obligation in, inter alia, the
National Environmental Policy Act (``NEPA''). Regrettably, OSMRE has
abandoned its duties under NEPA in, inter alia, its recent efforts to
weaken existing stream buffer zone protection regulations.
II. THE OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT'S
MANDATORY DUTIES UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT
The National Environmental Policy Act (``NEPA''), 42 U.S.C.
Sec. Sec. 4321-4370d (2007), is a broad national charter designed to
ensure that federal agencies, including the Office of Surface Mining
Reclamation and Enforcement (``OSMRE''),\2\ do not relinquish their
responsibilities to the public and the environment without first
performing an extremely careful, comprehensive evaluation of federal
actions affecting the quality of the human environment. See 42 U.S.C.
Sec. 4332 (2007). NEPA serves two equally important functions.
``First, it `places upon [OSMRE] the obligation to consider every
significant aspect of the environmental impact of a proposed action,' .
. . Second, it ensures that [OSMRE] will inform the public that it has
indeed considered environmental concerns in its decisionmaking
process.'' Baltimore Gas & Elec. Co. v. Natural Resources Defense
Council, Inc., 462 U.S. 87, 97 (1983). (internal and end citations
omitted).
---------------------------------------------------------------------------
\2\ Just as it has abrogated its ethical obligation to reduce or
eliminate coal's catastrophic environmental and social impacts, OSMRE,
as evidenced by its self-truncated acronym (``OSM''), ignores its
duties to ensure reclamation and enforcement under the Surface Mining
Control and Reclamation Act (``SMCRA''). Because Appalachian Voices
firmly believes that reclamation and enforcement are equally important
functions of SMCRA and OSMRE, we use the acronym OSMRE. See 30 U.S.C.
Sec. 1211(a) (2007) (``There is established in the Department of the
Interior the Office of Surface Mining Reclamation and Enforcement'')
(emphasis added).
---------------------------------------------------------------------------
The Court of Appeals for the District of Columbia recently
summarized NEPA's procedural duties: ``[t]he purpose of NEPA is to
integrate environmental review into the agency decisionmaking process
to ensure that `environmental values and consequences have been
considered during the planning stage of agency actions.''' City of
Dania Beach v. FAA, 485 F.3d 1181, 1185 (D.C. Cir. 2007) (quoting
Andrus v. Sierra Club, 442 U.S. 347, 350-51, 99 S. Ct. 2335, 60 L. Ed.
2d 943 (1979)). As explained by the Supreme Court, NEPA was intended to
``reduce or eliminate environmental damage,'' Dep't of Transp. v.
Public Citizen, 541 U.S. 752, 756; 124 S. Ct. 2204; 159 L.Ed.2d 60
(2004), by requiring all federal agencies, including OSMRE, to ``take a
`hard look' at the environmental consequences [of their actions].''
Baltimore Gas & Elec. Co., 462 U.S. at 97. Whenever OSMRE decides to
prepare an environmental impact statement, NEPA requires OSMRE to
evaluate, inter alia, a reasonable range of meaningful alternatives to
the proposed course of action. See 42 U.S.C. Sec. 4332(A)(iii) (2007);
see also, 40 C.F.R. Sec. 1502.14 (2007).
III. OSMRE'S DRAFT ENVIRONMENTAL IMPACT STATEMENT DOES NOT COMPLY WITH
NEPA
A. OSMRE's Failure to Identify and Evaluate a Reasonable Range of
Alternatives is Arbitrary, Capricious, an Abuse of Discretion
and Otherwise not in Accordance with Law
Distilled to its essence, the draft environmental impact statement
(``DEIS'') amounts to nothing more than a post hoc justification for
OSMRE's proposed excess spoil and coal waste disposal regulations and a
simple choice between adopting the proposed stream buffer zone
(``SBZ'') regulations or those proposed in the January 7, 2004 Federal
Register. See DEIS at II-17-18.
Because Alternatives 3 and 4 are merely subparts of Alternative 1,
their implementation and environmental effects will be no different
than those associated with Alternative 1. See e.g., DEIS at IV-121
(``OSM[RE] would not anticipate a major shift in onthe-ground
consequences from any of the alternatives.'') (emphasis added). As
such, these options can, indeed must, be jettisoned as bona fide
alternatives because they provide no basis for ``sharply defining the
issues and providing a clear basis for choice among options.'' 40
C.F.R. Sec. 1502.14 (2007) (emphasis added). When stripped of these
bogus alternatives, the DEIS is little more than a confusing amalgam of
three separate, yet very distinct, proposed actions. Specifically,
whether: (1) to adopt the excess spoil regulations as proposed; (2) to
adopt the coal waste disposal regulations as proposed; and (3) to adopt
the proposed stream buffer zone regulations or those proposed in the
January 7, 2004 Federal Register. Each of these distinct proposed
actions is based on a cursory comparison of different, though legally
inadequate, alternatives.
For instance, in considering both the proposed excess spoil and
coal waste disposal regulations, the DEIS establishes a simplistic
choice betwixt either adopting the proposed regulations (Alternative 1)
or adhering to the existing regulations (No Action Alternative). OSMRE
was recently excoriated for engaging in this type of either/or decision
making under NEPA. See Save Our Cumberland Mountains, 453 F.3d 334, 345
(6th Cir. 2006) (NEPA ``prevents [OSMRE] from effectively reducing the
discussion of environmentally sound alternatives to a binary choice . .
.'') (citing Davis v. Mineta, 302 F.3d 1104, 1122 (10th Cir. 2002)
(``[O]nly two alternatives were studied in detail: the no build
alternative, and the preferred alternative. [The agency] acted
arbitrarily and capriciously in approving an [environmental assessment]
that does not provide an adequate discussion of [p]roject
alternatives.''); Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174
(10th Cir. 1999) (``[T]he National Environmental Policy Act and Council
on Environmental Quality Regulations require [an agency] to study in
detail all `reasonable' alternatives [in an environmental impact
statement] . . . [Courts] have interpreted this requirement to preclude
agencies from defining the objectives of their actions in terms so
unreasonably narrow they can be accomplished by only one
alternative.''); Simmons v. United States Army Corps of Eng'rs, 120
F.3d 664, 666-67 (7th Cir. 1997) (``One obvious way for an agency to
slip past the strictures of [the National Environmental Policy Act] is
to contrive a purpose so slender as to define competing `reasonable
alternatives' out of consideration (and even out of existence). The
federal courts cannot condone an agency's frustration of Congressional
will. If the agency constricts the definition of the project's purpose
and thereby excludes what truly are reasonable alternatives, the
[environmental impact statement] cannot fulfill its role.'')).
Assuming arguendo, that such dichotomous choices were valid under
NEPA, OSMRE has created false dichotomies insofar as the agency has
absolutely no intention of retaining the existing regulations. See DEIA
at I-1 (explaining that the purpose of the DEIS is to end the
``ambiguity'' and ``controversy'' regarding the existing regulations
governing excess spoil and stream buffer zones).\3\ OSMRE's choice of
alternatives regarding the proposed stream buffer zone regulations is,
likewise, fatally flawed.
---------------------------------------------------------------------------
\3\ It is also noteworthy that OSMRE excluded the ``No Action
Alternative'' from the enumerated set of alternatives in the DEIS. See
DEIS at II-17-26.
---------------------------------------------------------------------------
OSMRE establishes a false trichotomy by presenting two so-called
alternatives to the proposed SBZ regulations--either the ``No Action
Alternative'' or Alternative 2. Again, the Sixth Circuit Court of
Appeals has chastised OSMRE for engaging in this type of tomfoolery.
See Save Our Cumberland Mountains v. Kempthorne, 453 F.3d at 344. While
three alternatives may satisfy NEPA's requirement for identifying and
evaluating a reasonable range of alternatives, see 40 C.F.R. Sec.
1502.14(a), OSMRE has whittled its SBZ decisionmaking down to a choice
between Alternative 1 and Alternative 2 because OSMRE has no intention
of retaining the existing SBZ regulations. See, DEIS at II-17 (the ``No
Action Alternative''). As explained supra, NEPA prohibits this type of
dichotomous decisionmaking. See Save Our Cumberland Mountains, 453 F.3d
at 345 (``the National Environmental Policy Act prevents federal
agencies from effectively reducing the discussion of environmentally
sound alternatives to a binary choice . . .'') (citations omitted).
In sum, the DEIS presents, in the most convoluted manner: (1) the
rationale for approving the proposed excess spoil and coal waste
disposal regulations; and (2) a binary choice between adopting the
proposed SBZ regulations or those contained in the January 7, 2004
Federal Register. OSMRE's poorly veiled attempt to shirk its NEPA
duties by obfuscating the nature of the proposed actions and the range
of alternatives is contrary to both the letter and spirit of NEPA's
requirement to consider alternatives that ``reduce or eliminate
environmental damage,'' Public Citizen, 541 U.S. at 756, by identifying
and evaluating ``alternatives that are more environmentally
considerate'' than the proposed action. Save Our Cumberland Mountains,
453 F.3d at 344 (emphasis added).
B. OSMRE's Decision to Exclude Certain Alternatives From Detailed
Consideration is Arbitrary, Capricious, an Abuse of Discretion
and Otherwise not in Accordance With Law
NEPA requires all federal agencies, including OSMRE, to evaluate a
reasonable range of ``environmentally sound alternatives,'' Save Our
Cumberland Mountains, 453 F.3d at 344 (emphasis added), and ``for
alternatives which were eliminated from detailed study, [OSMRE shall]
briefly discuss the reasons for their having been eliminated.'' 40
C.F.R. Sec. 1502.14(a). OSMRE's decision to exclude a number of
reasonable alternatives is arbitrary, capricious, an abuse of
discretion and otherwise not in accordance with law. This is especially
so where, as here, the DEIS evaluated an unreasonable range of
alternatives. See Section IV.A. supra. As noted earlier, NEPA requires
OSMRE to identify and evaluate ``alternatives that are more
environmentally considerate'' than the proposed action. Save Our
Cumberland Mountains, 453 F.3d at 344. Accordingly, OSMRE should have
further evaluated, inter alia, Alternatives 5-16 because many appear to
be more environmentally considerate than the proposed regulations. See
Comments of Mulholland et al., October 1, 2007.
Making matters worse is the fact that OSMRE admits that it has
failed to consider any alternatives that are more environmentally
considerate than the existing or the proposed regulations. See DEIS at
IV-121 (``OSM[RE] would not anticipate a major shift in on-the-ground
consequences from any of the alternatives.''). OSMRE's choice of
alternatives regarding the proposed rule changes is especially
arbitrary and capricious in light of Congress' directive that OSMRE
shall require mine operators to ``minimize disturbances and adverse
impacts of the operation on fish, wildlife, and related environmental
values, and achieve enhancement of such resources where practicable.''
30 U.S.C. Sec. 1265(b)(24) (2007) (emphasis added). OSMRE's refusal to
consider, in detail, any alternatives that would enhance fish, wildlife
and related environmental values (i.e. ``alternatives that are more
environmentally considerate,'' Save Our Cumberland Mountains, 453 F.3d
at 344) is arbitrary, capricious, an abuse of discretion and otherwise
not in accordance with law.
C. OSMRE's Failure to Adequately Identify and Evaluate Mitigation
Measures is Arbitrary, Capricious, an Abuse of Discretion and
Otherwise not in Accordance with Law
NEPA requires all federal agencies, including OSMRE, to identify
and evaluate measures that will mitigate the environmental impacts of
proposed actions and alternatives. See Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 351-52 (1989) (citing 42 U.S.C. Sec.
4332(C)(ii)). Yet, the DEIS fails to adequately identify and seriously
evaluate the efficacy of such measures. Instead, OSMRE simply makes
quick conclusory statements about the potential effects of mitigation
measures. For instance, in discussing environmental impacts relative to
hydrology, OSMRE states that
[a]lthough impacts to the hydrologic balance are unavoidable,
the permitting process is designed to prevent most impacts that
cannot be mitigated or that would materially damage a
significant surface- or ground water resource outside the
permit area. See the discussion of the applicable regulation in
section III.2.C.
DEIS at IV-122. A quick review of OSMRE's discussion of the
``applicable regulation in section III.2.C.'' reveals that OSMRE did
not engage in any meaningful evaluation of mitigation measures.
Instead, OSMRE simply regurgitates the regulations--noting how baseline
data and monitoring is established. OSMRE's failure to adequately
identify and evaluate mitigation measures is arbitrary, capricious, an
abuse of discretion and not otherwise in accordance with law.
D. OSMRE's failure to Include an Expert in Aquatic Science is
Arbitrary, Capricious, an Abuse of Discretion and Otherwise not
in Accordance with Law
NEPA requires that an EIS be prepared using an interdisciplinary
approach in which ``[t]he disciplines of the preparers shall be
appropriate to the scope of issues identified in the scoping process.''
40 C.F.R. Sec. 1502.6 (2007) (emphasis added). Despite the fact that
the proposed rule changes would have significant impacts on aquatic
species and systems, none of the ten preparers are experts in any
specific field of aquatic science. See DEIS at VII-157. OSMRE's failure
to include, as part of its interdisciplinary team, an expert in aquatic
science (i.e. stream ecologist or aquatic ecologist) is not in
accordance with law.
E. OSMRE's Failure to Insure the Scientific Integrity of the Analyses
is Arbitrary, Capricious, an Abuse of Discretion and Otherwise
not in Accordance with Law
The Council on Environmental Quality (``CEQ'') created to
promulgate NEPA's implementing regulations requires OSMRE to insure,
inter alia, the scientific integrity of the analyses and discussions in
an EIS. See 40 C.F.R. Sec. 1502.24 (2007). Because the scientific
integrity of the DEIS and proposed rule changes has been condemned by
thousands of scientists, see Comments of Mulholland et al., Rassam et
al., and Wrenn et al., the DEIS is fatally flawed.
V. CONCLUSION
``NEPA's instruction that all federal agencies comply with the
impact statement requirement--and with all the other requirements of
Sec. 102--`to the fullest extent possible,' 42 U.S.C. Sec. 4332, is
neither accidental nor hyperbolic. Rather, the phrase is a deliberate
command that the duty NEPA imposes upon the agencies to consider
environmental factors not be shunted aside in the bureaucratic
shuffle.'' Flint Ridge Development Co. v. Scenic Rivers Ass'n of
Oklahoma, 426 U.S. 776, 787 (1976). OSMRE's DEIS is the most recent
example of the agency making a mockery of this Congressional directive.
We therefore respectfully request this committee to conduct a
number of oversight hearings--particularly in the coalfields--regarding
OSMRE's implementation of SMCRA and NEPA.
______
Statement of Ellen Pfister, Shepherd, MT
I had occasion to write most of these remarks earlier this summer,
but since then I have had some further thoughts on the topic of your
hearing. Most of my remarks deal with specific instances that I have
seen or been a part of in the last thirty years; however, implementing
policies without thinking about what it does on the ground is a futile
process. SMCRA was intended to improve real conditions, not virtual
ones.
Over the last thirty years the biggest failures of SMCRA have been
in the implementation and enforcement of its water protection
provisions and the failure to foresee the changes that could occur in
the scope and effects of certain methods of coal mining. Lack of
enforcement of SMCRA has been a chronic failure from the citizen's
point of view. It has seemed that the regulators have identified much
more closely with industry than with the third party to this law, the
citizens who live in the coal fields.
I would like to suggest that if changes are to be made to SMCRA
that it be broadened to cover all surface effects of all kinds of coal
mining, regardless of definition of method, and that enforcement be
removed from OSMRE and passed to the Justice Department which has law
enforcement experience. The kinds of people hired by OSMRE generally do
not have the firmness which is required for law enforcement. They
prefer to be ``administrators''. Eventually this law has to be
enforced.
I understand that OSMRE is proposing a new mission for itself that
it begin to facilitate the coal industry technically , i. e., that it
develop new techniques for the industry. OSMRE does have the capability
of encouraging experimental techniques in reclamation, a capability it
has studiously ignored in dealing with reclamation of water resources
within mined area. I have to ask how deeply would OSMRE be involved in
guaranteeing reclamation to a permittee if the permittee used an OSMRE
technique which failed to be successful when implemented by the
permittee?
How much advice industry has wanted from the state regulators has
varied over time in Montana. In the beginning the Montana law had quite
specific standards for many things such as the construction of sediment
ponds. Over time most of that has been eliminated in favor of
performance standards. (See section 515 of SMCRA for those). The
companies supposedly have been following their permits, which
supposedly incorporate the performance standards. You have received a
document from the Western Organization of Resource Councils and the
Natural Resources Defense Fund called ``Undermined Promise.'' The
researchers found that Montana had the lowest rate of final bond
release of just about any place. Part of it has to do with the attitude
of the largest producer in Montana, which tried to get a Page 2 law
approved that said that if the company went through the process that
bond release would be guaranteed. The point of the reclamation law was
to guarantee bond release. OSMRE did not accept that interpretation,
but the Montana legislature swallowed it hook, line, and sinker. There
were many other changes that it did accept, but to make its permit
comply with the new law, the permittee would have had to come in and
amend its permit. Rather than do that, the permittee submitted its bond
release permit ``as built.'' Montana could not accept the bond release
proposal, because the permittee had not done what it had committed to
do even under its permit. This particular permittee thought that the
prior law, which had basically one standard for reclamation
revegetation, was too hard to meet, and so got the Montana law changed.
Even after the Montana law was changed to largely suit this one
company, it did not want to comply with the new law.
The other thing that is slowing bond release in the West is the
lack of water reclamation to the standards of SMCRA. Because in most
cases in the West, the companies depopulate the area, the mine permits
are viewed as a cozy arrangement between the mine and the regulators,
water is not viewed as particularly important until bond release at the
end. Montana has a 4th stage of bond release which is supposed to deal
with water, but unless the water in the mined area is dealt with at the
beginning, there is very little that can be done for underground water
at the end.
I heard an employee of the Wyoming Department of Environmental
Quality speak at the annual meeting of the Powder River Resource
Council, and she did not mention the reclamation of water once in her
speech. It seemed to me that her sole emphasis on reclamation was
revegetation. However, I met a couple there who live west of the Black
Thunder Mine south of Gillette, and they are suing over water loss
caused by the mine. Where has the Wyoming Department of Environmental
Quality been that parties adjacent to the mine are losing water and
being forced to sue?
Now that the companies are beginning to get interested in getting
their bond money back, they proposed a law which mandates (``shall'')
that the Montana Department of Environmental Quality shall tell the
permittee exactly why the proposed area failed to get bond release. The
interesting thing about this is that the big 2003 amendments passed to
Montana's reclamation law removed the requirement that Montana
inspectors tell the operators during their routine inspections over the
years where the operators were going wrong. I think the attitude was
that the operators were big boys and did not need to hear from any
weasel headed inspectors. ``We know how to do it.'' Somebody is trying
to hang the Montana DEQ inspectors at the end of the process.
If OSMRE gets into the coal mining technical facilitation business,
it could get hung in the same way or face serious liability problems.
If OSMRE would enforce the performance standards of SMCRA, it could
handle the problems posed by mountain top removal and water loss and
diminution of quantity and quality in the coal fields. If OSMRE
enforced the law by not granting permits which cannot meet the
performance standards of the law, it would spur innovation on the part
of industry, because industry wants to mine every scrap of coal
possible. (See the Bob Murray mine tragedy in Utah this year.) The
innovation should primarily come from industry, not OSMRE. OSMRE is not
the Bureau of Mines, much as it would like to be.
There have been some court decisions over the years that have not
been helpful. The decision which limited the surface effects of
longwall mining to the face up area only, flies in the face of what
actually happens with surface damage for longwall. All surface damage
should be covered by federal law and standards.
The land use revegetation standards in SMCRE are being interpreted
very broadly when requiring native vegetation to support the postmining
land use. It has been routine to accept grassland as a replacement for
forests in the East, and at least in Montana, when most of the
premining land use has been wildlife/grazing use, it will now allow
grassland monocultures with a few rocks thrown around for ``wildlife
enhancement features''. The mixed prairies will be lost. Some mines
were doing a good job of recreating mixed prairies, but the ones who
were not, whined and cried and went to the legislature and got the law
changed, and OSMRE saw no problem with it. The problem will only be
seen in the future is many more mines open and much more coal is mined,
creating much larger acreages of grassland monocultures.
SMCRA is a good law as far as it goes. It has resulted in the
regrading of a great many spoils areas and revegetation of those areas
with varying degrees of success. There has been little success in
reforesting those areas which were previously hardwood forests. Most of
the mountain top removal areas are denuded of trees. The western
prairies have vegetation ranging all the way from weed patches to some
pretty good looking mixed grasslands. The spoils are being regraded to
approximate original contour to a greater or lesser extent.
The three biggest failures in SMCRA are the failure to include the
reclamation of the surface effects of longwall mining beyond the mine
adit areas, the failure to anticipate the expansion of mountain top
removal and the failure to reclaim underground water resources. The
first two are omissions from the law, and the third is a failure to
adequately enforce the law. The first two problems could be remedied by
extending SMCRA to the surface effects of all coal mines. A fourth area
that SMCRA does not deal with is granting a permit to a speculative
venture. I hope that what I have dealt with for the last 18 years is
not common on a nationwide basis.
MY PERSONAL INVOLVEMENT WITH MINE PERMITTING
Like many others who were involved in SMCRA's passage, I was naive
enough to believe the law would be enforced, and that I could go about
my life. Coal entered my life again at Christmas l988, when two boys
from Pikeville, Kentucky, came around wanting to start a coal mine that
would affect the north end of our place. Then a bigger fish, Burlington
Resources, came around with the idea of a longwall mine and a proposal
to trade Federal coal for some of their land. It would be a large block
of coal and would support a 3 Million ton a year mine. I knew
Burlington Resources would never mine a lump of coal on their own.
Their ambition was to be gentlemen royalty collectors. The permitting
process began, and regardless of how speculative the mine plan is, a
landowner or party adjacent to a mine cannot afford to ignore it. The
permitting process grinds on regardless of the economic feasibility of
a project. This speculative mine has occupied my time and the Montana
Coal Program's time for 18 years with no sign of economic success for
the mine.
Burlington Resources put the permit on the market as soon as it was
issued in l992 and finally found John Bauges, Jr. of Tennessee in l995.
He began mining then, but in l998, the permit was permanently revoked
and the bond forfeited. Two years later the state of Montana had barely
begun to clean up Baugues' mess, when John Baugues showed up again,
striking a deal with the State of Montana to reduce his fines by about
2/3 and requesting that the State of Montana resurrect the permanently
revoked permit . OSMRE was brought in to rule on whether a permanently
revoked permit could be resurrected. OSMRE ruled that there was one
precedent for doing so from West Virginia; however, no permit number or
mine name or location was ever cited. No one that I met from West
Virginia had ever heard of it. OSMRE enabled the resurrection of a mine
that is a pure speculation.
Once the permit was resurrected in 2000, Baugues et al came back
with a bigger and better plan to mine 12 million tons a year, which
would take out the whole coal reserve in our area in 30 years and leave
the entire heart of the Bull Mountain recharge area with deeply damaged
water. In addition to the mine, the Baugues consortium proposed a 700
MW merchant power plant, which has now morphed into a 300 MW power
plant and a 22,000 barrel a day coal to liquid fuels plant, which in
turn needs an additional 150 million tons of strippable coal to be even
remotely feasible.
The Bull Mountain Mine shut down again in March 2007, as it was
being sued in foreclosure by bond holders, North Carolina and Florida
churches and retirees, who were promised 11% return on their investment
bonds. While Baugues et al were defaulting on their bonds, they were
running around our country trying to buy ranches, some of which they
lost their earnest money on, not being able to make the final payment.
Baugues is resorting to the Western type of coal mine acquisition
and operation, which is to buy out the locals and depopulate the
country. If the people are gone, there is no one to see or to tell how
badly the mines reclaim the mined lands. The only parties to the
reclamation contract are the mine company and the regulating agency.
Most of the Western mines are far from town, and the miners live in
town, so nobody cares as long as mine money rolls into town. The
effects on agriculture are secondary.
In January 2007, Montana DEQ finally approved the permit amendment
to the Bull Mountain Mine which takes in the North end of our place.
They claim our high springs will not be damaged. Our springs are in the
vicinity of 500 feet above the coal. Aside from the property owned by
the coal company, our ranch will be the second property to be damaged
when the second panel begins operation. I am not optimistic about the
future of our water; ``no damage'' does not jibe with what I have seen
in other areas of the country. The primary authority relied upon by the
state is a consultant paid by the permittee in l992, who would have a
vested interest in making his customer happy, and who cited no specific
instances in western longwall mining similar to the geologic conditions
in the Bull Mountains.
Since the mine was first permitted in l992, it has never operated
on the schedule shown on the permit. They are months and years behind
schedule. The mine will eventually take out a subdivision in the area.
Those homeowners are just trying to ignore the problem of what and when
will something happen to their property. The town of Roundup no longer
holds its breath with anticipation when the mine makes an announcement,
and credit is cash only for the mine. The permit is the only thing that
holds this speculation together.
LONGWALL MINING
Most of the longwall mines in the West are under public lands; the
people are gone. The effects are between the bureaucrats and the mining
companies. The effects are hidden. Since the Bureau of Mines was
closed, there are no studies being done on the effects of longwall and
the companies aren't talking. The only studies I could find were
scientists putting their sensors down well holes in the east, and
bewailing the fact that after the longwall machine passed, they
couldn't get anymore readings on where the water went. They had no
money to pursue the information, and probably no way to access legally
the land that was mined. That is a failure in SMCRA. The entire area in
an underground permit should be included in SMCRA, because the affects
of longwall coal removal go to the surface miles away from the adits
and processing plants. Unless there is a jurisdiction through
government action, there is no way for follow-up studies to be done are
areas of water damage in longwall area and no one with the resources to
find the lost water.
Since l989 when longwall came to the Bull Mountains, I have tried
to find out what has happened in longwall areas across the country. The
water buffalo is the indicator species for the health of water in
longwall areas. Where has the original water gone that was once in
wells and springs? No one seems to know, and the landowners are
powerless to force a search. I cannot think that water stored for home
use in water buffaloes is healthy for families.
I met a dairyman in Western Pennsylvania, whose farm dated back to
l795 who was ultimately forced out of dairying because the water hauled
to his cows was chlorinated, and they could not thrive on it. I have
been visiting by e-mail with a farmer in Southeastern Ohio whose land
lies about 500 feet over the coal seam being longwalled, who lost
springs going back to the late 1700's and old wells. It took about 3
weeks for the water to fail after undermining. The coal company has
been very slow to deal with the promises it made him prior to
undermining. He has had trouble with water haulers after undermining,
plus his historic farm buildings were severely damaged. Floyd Simpson
has a website www.countrymilefarm.com with a diary of the damage that
occurred when he was undermined in late 2003. He does not know where
his water went. He knows he does not have the water he had.
Southwestern Pennsylvania has been devastated by longwall mining;
it is a land of leaning chimneys, damaged homes, and water buffaloes.
Interstate highways as well as county roads have been undermined. I
have seen half a county road slipped 40 feet down the hill from where
it had been, thanks to subsidence.
30 YEARS OF SMCRA FROM A CITIZEN'S POINT OF VIEW
Underground coal mining, whether room and pillar or longwall or any
other kind of underground extraction, should be included within the
purview of SMCRA because when the strippable coal is gone the coal
industry will turn to other methods for coal recovery. The surface
damages and damage to water will not abate with a change in the method
of mining. The surface affects of underground mining should be clearly
included.
In its vision of the future, SMCRA failed to grasp the damages that
large scale longwall mining can do and failed to grasp the potential
for explosion in size of mountain top removal, and in the West surface
mining mines the water aquifer. All of them are extremely damaging to
water regimes. All of them damage the surface in different ways.
Mountain top removal is like beheading a person, and longwall mining
and surface mining are like dying of liver or pancreatic cancer. One
death is much more spectacular and visual, but one is just as dead from
cancer.
OSM has permitted the States to approve permits that I believe
violate mandates within SMCRA itself, such as the standard for
reclamation to follow behind mining as contemporaneously as possible.
Permits that allow a mine to wait 20 years before beginning regrading
and other reclamation procedures certainly have no element of
contemporaneous reclamation. SMCRA is bent to the mine operator's
complete convenience. Certain pits that are left open for years on the
chance that the mine may need that coal to blend fall short of
contemporaneous reclamation as well.
The rule seems to be that the permit will be enforced even if the
permit does not comply with SMCRA, as long as the permit is complete by
dealing with every section of the state regulations. Granting the
permit gives an easy out on enforcement of the standards of SMCRA to
the permittee and the agencies, and the agencies are loathe to admit
that a permit may have been improvidently granted.
As a subject and participant in the permitting process in Montana,
I have come to the conclusion that it can be summed up as ``Promise her
anything, but give her Arpege.'' Any remediation in the permit can be
revoked if the permittee cries economic hardship. As a subject of the
process, I really do not know what the final remediation will look
like. I suspect the permittee's economic hardship will trump my
economic hardship. The permit is supposed to be a promise of
reclamation and repair by the State to its citizens, because the State
approved the reclamation plan and accepted the promise from the
permittee. I have grave doubts as to how binding that promise is on the
permittee.
Permits that allow acid mine drainage are still being issued. I do
not find that a failure in the law, but in the enforcement and
administration of the law. Acid mine drainage from Eastern mines seems
to be the norm. Save Our Cumberland Mountains fought for 10 years to
finally get Fall Creek Falls State Park in Tennessee declared unfit for
mining due to the certainty that mining in that water shed would cause
acid mine drainage over the falls. I doubt if many permits have been
denied on the grounds that mining would cause acid mine drainage.
Although SMCRA allows the designation of areas unsuitable for mining,
very areas have that designation, and it is difficult to get.
Save Our Cumberland Mountains did a study in l989 on acid mine
drainage on reclaimed sites in Tennessee and found a lot of it. My
naivete included being so trusting that SMCRA would end acid mine
drainage from current mining. I have watched over the years as OSMRE
tried different things to mitigate the improvidently granted mine
permits that were discharging acid mine drainage. There was the
Appalachian Clean Streams Initiative that tried to dip into USDA funds
to help out, as well as waylay any other money that could be found.
There was AMD and ART, which was an attempt to show how acid mine
drainage treatment areas could be turned into a community enhancement.
That, too, used funds other than funds from the party who caused the
damage in the first place. OSM has participated in the whine that
somebody else's money should fix the damage. OSMRE has not had the guts
to face down the companies to make them internalize the costs of their
actions, and fix the damage that is occurring on permitted mine sites.
One change that has occurred since the passage of SMCRA in l977 is
that the size of Eastern mines, particularly longwall and mountaintop
removal, is increasing and beginning to approach the size of some
Western mines. The Eighty-four Mine at Washington PA was permitted to
undermine 22,000 suburban acres initially. The Mountaintop removal
mines are up to 5000 acres and above. The Mountain Top Removal mines
are depopulating the towns and settlements that are unlucky enough to
reside below them.
The Western mines depopulate areas as well. The practice has been
to buy out the rancher and give them an option to buy back at some time
in the future. If the mine is on public lands, the public is excluded
from the mining area. Both East and West are depopulating coal bearing
areas. If one becomes a tenant of the company when he had previously
been a landowner, he is no longer independent or in a position to speak
his own mind. The company regards the permit as being between the
company and the agency and no one else should have anything to say.
WATER DAMAGE
The water in the western mines is regarded as fair game for damage
and diminution. There have been no attempts to insulate the water that
may come into a pit from contact with the spoils materials.
Experimental practices have been suggested from outside the agencies
and industry, but those practices would take planning at the permit
issuance stage. That has not been done in the past, and it doesn't look
like it will be done in the future. Some of the Western mines are dry
in the pit, but others have quite a lot of water that pours into the
pit. The flushing that does occur within the pit is unpredictable and
uncontrolled. Now, to add insult to injury, OSMRE is in the process of
considering a new regulation that will allow the dumping of fly ash in
the strip pits. I do not believe that SMCRA encourages the dumping of
industrial wastes in the surface mining pits. Colstrip, Montana,
electric generating plants offer a good preview of what can happen. The
fly ash pond at Colstrip was constructed about 1974 to a depth of
eighty feet, but only the top 40 feet were lined with impermeable
material. Water began leaking from the bottom of the fly ash pond
shortly after use began contaminating the wells on the Cluver Ranch
downstream. Thirty years later, the pollution has advanced downstream
to contaminate the wells on the McRae Ranch. The ranch wells were
drilled deeper to get away from the pollution, but there is nothing to
keep the pollution from reaching the deeper water as well. The company
has been pumping the surface water from the toe of the pond back into
the pond, but the water keeps travelling underground. I do not think
OSMRE has the will to enforce anything that might approach safe storage
of fly ash underground in a wet mine, and I know the State of Montana
does not.
Recently the Rosebud Mine at Colstrip cut into an area called Lee
Coulee, which was a new mining area. They hit a tremendous vein of
water which they pumped on down the coulee, ruining 90 acres of hay
land. It drained the springs above the mine cut. They are no more. Don
Bailey's hay ground is ruined, and the water is gone. He had to sue the
mine to recover his damages. The Rosebud mine also had a twenty mile
highwall open for a number of years--10 miles on the north side of the
hill, and 10 miles on the south side of the hill, and the mine is
moving in a direction which has the potential to create even longer
highwalls. The mine was keeping the mine road at the base of the
highwall open to have a loop road on which to haul coal.
The State of North Dakota issued a permit to turn Kenney and Gwen
Thompson's farm land into a dump for an adjacent mine that was mining
on the farm. The farm couple didn't know about it until diesel fuel
turned up in the well at their house. OSMRE was no help to them. They
eventually sold to mine due to the farmer's ill health. Miners at the
mine told the couple about all the hazardous waste the mine dumped in
the mine pit on Thompson's land.
Now there is a lawsuit filed in Denver over dumping fly ash in the
Navajo Mine in New Mexico and leaving it open blowing ash in the wind.
OSMRE is responsible for mining on Indian lands. First, they are
allowing dumping fly ash in the mine pit, and second, they are not even
covering it in a prompt manner, even if SMCRA authorized dumping fly
ash in a mine. I saw fly ash being dumped in that mine in a flyover in
l992. There is a lot more there now.
When we were in the permitting stage of the initial Bull Mountain
Mine, we were told by state agency personnel that water replacement
would be ``opportunistic''. I have been told of cases where the mines
have buried a spring that could have been developed with a little
care--so much for opportunistic development.
The Jacobs Ranch Mine in Wyoming is finally putting in for bond
release on the areas against the Rochelle Hills, which were mined when
the mine began, because water is finally beginning to infiltrate the
mine areas from the undisturbed areas toward the hills. As it advances
west the mine is also dewatering the coal in advance of its mining area
to get the coalbed methane out before it removes the coal. How long
will it be before that area will have any underground water after
mining? The combination of surface mining and coalbed methane
development may result in an area devoid of any water for a very long
time.
Water loss in the East is typically dealt with by either a water
buffalo or connecting people to a pipeline from somewhere else. I have
always wondered what will happen when the ``somewhere else'' is also
damaged by coal mining, and that water disappears as well.
THE CITIZEN: REGULATION AND THE LAW: STATE AND FEDERAL
To the ordinary person, of the 4 sets of documents that can govern
coal mine reclamation, SMCRA is the plainest to read and understand.
The language is generally set in terms of ``shall'' and ``will'', which
most people understand, whether they like it or not. Going back about
the last 25 years at least, OSM has been in the business of putting out
regulations to bend ``shall'' and ``will'' into something else, if
possible. I can't think of a regulation that could put a stronger
interpretation on the law that has been approved, but thank God, I
don't know all the regulation changes that have been proposed.
Neither the States nor OSMRE have done anything on citizen
education about their rights under SMCRA or the standards of
reclamation established by SMCRA on other than an ad hoc basis. There
is no easy reading document for a citizen to read. SMCRA is the
plainest of the materials available.
The federal regulations are long and a lawyer's joy. Then when the
state laws and regulations are added on top of that, which is the case
when a state assumes primacy. The amount of material to digest becomes
nearly overwhelming. Montana's education for citizens was to give them
a copy of their regulations, but that seems to have gone by the wayside
in recent years. Now it seems to be what the last person one saw told
him.
A case in point is Montana, where the Montana law has gone from a
law which said ``shall'' and ``will'' to one which says ``must ``,
``may'', and ``should'' to favor the newly fashionable tenses in legal
writing. ``Shall'' and ``Will'' are clearly defined in court cases and
English classes. Montana is attempting to conceal the mandatory affect
of SMCRA, and OSMRE has gone right along with them, although the law
under which OSMRE operates has a language of command and immediate
compliance. Essentially OSMRE inspection personnel are constables on
patrol, and if a State has primacy their inspectors have the same
mandate. Montana is trying to obscure that mandate and to remove the
sense of immediacy of enforcement under the law changes of 2003 and
2005. OSMRE tried to obscure the sense of immediacy with its Reg. 8.
In addition, it takes years for OSMRE to approve or disapprove
changes to Montana's law and regulations. In the mean time, Montana
goes ahead and enforces its legislatively passed law and implementing
regulations, regardless of whether they comply with SMCRA. I wonder
what happens when Montana approves actions under its law while waiting
for OSMRE to rule, and later it is found that the approved action was
not in compliance with SMCRA. OSMRE must be suffering its own funding
short falls to be so slow in processing regulatory packages. It takes
so long, that if one has commented on a package by the time the ruling
comes out, one has almost forgotten about it. If the non-compliant
action is ensconced in the permit, will Montana enforce that rather
than an action which would comply with SMCRA?
REGULATION AND MONEY: STATE AND FEDERAL RELATIONSHIP
OSMRE was the victim of the Clinton balanced budget. The first
people cut were the inspectors, and the first of those to go were women
and minorities. The cuts have not slowed down under subsequent
administrations. It is no wonder that now, as OSMRE personnel ages out,
OSMRE is running into a shortfall of qualified people to move up.
The inspectors are the face of OSM and the States that protect the
citizens from the affects of coal mining. OSMRE has tried to withdraw
itself from direct enforcement and contact with possible on the ground
enforcement. SMCRA was well-drawn with two enforcement agencies, state
and federal, because it is all too easy to co-opt one or the other. It
is a little harder to co-opt both, although I am now beginning to
wonder. OSMRE has further tried to reduce its presence by refusing to
consider offsite impacts from mining unless the States report the
offsite damage in state statistics. The Western Area Office of OSMRE is
not even listed as tenant in the Denver office building in which it is
located on the 33rd floor. Not only has OSMRE tried to withdraw from
direct enforcement by way of Regulation 8, in the West, but it has
tried to physically hide.
SMCRA intended that the regulating agency keep a presence in the
coalfields and that the permits be available for inspection in the coal
fields. Montana is just barely in compliance with SMCRA on that point
with the Billings Office open with only a generalist and a secretary.
The Generalist employee is also an inspector. All the other inspectors
in Helena are also specialists in other fields, and every specialist is
an inspector. The question is whether academic specialists also have
the temperament to make the kinds of decisions that an inspector must
make. Billings is about 90 miles from the closest big surface mine. The
rest are hundreds of miles further. Helena is 250 miles from Billings.
Inspecting from Helena will be difficult, and I think the amount of
travel time will render the coal program less effective.
The Montana Coal Program has been losing employees, and the money
to hire replacement employees has been declining, especially from
Federal sources. The Federal Government was obligated to fund the
Western States to the extent that the coal in the State belonged to the
United States. The Interstate Energy Board says that the Federal
Government is getting a deal on saving money with the States accepting
primacy, because the State pay levels are so much lower. Yet the
Federal Government still keeps cutting real dollars.
Montana has been saving money by paying wages for people with
advanced degrees that are significantly below what they could earn in
industry. Either the people who chose to work for Montana are dedicated
to something other than top dollar, or they are short on competence, or
they have reached a certain age in industry where industry no longer
wants to hire them. I do know that the State has been a revolving door
for hydrologists of all types. They get a little experience from the
State to show on their resume', and then move on. The Montana Coal
Program has been defunded and short-changed on personnel, and it is no
wonder it is teetering on the brink of someone calling a 731 on it. The
legislature got scared this spring and found $250,000 additional
temporary funding, but now it may be that only part of the money will
be available for another full time employee. The rest is to possibly be
spent on consultants due to a ``gentlemen's agreement''.
If there is not better funding forthcoming, it is possible that the
United States will have to pick up the tab for regulating the damage
that will come from its appetite for coal. Funding less today will cost
you more tomorrow.
I saw the Black Thunder Mine south of Gillette, Wyoming, at 10:00
AM, December 21, 2006. The day was beautiful, sunny and clear. The mine
buildings were sitting in a cloud of coal dust higher than the biggest
buildings on the mine site, and the dust looked like the mouth of hell
had opened and was discharging thick black particulate matter. I
wondered where EPA was and where OSMRE was. If that happens often
there, people will be filing black lung claims. It was an amazing level
of dust pollution.
BOND RELEASE
There are discussions about the low level of bond release in the
West. I think there are several reasons. The first is the way the
permit mine plans were approved by the agencies. Decker and Spring
Creek in Montana were allowed to mine for years before treating any
appreciable acreages for regrading, let alone revegetation. I believe
the permits which allowed that were granted in violation of SMCRA's
standard that reclamation be as contemporaneous as possible. Twenty
years does not meet that standard. The State of Montana should not have
allowed it, and OSMRE should have held them responsible. Perhaps fining
both agencies for dereliction of duty might prevent it in the future. I
know a fine is not possible, but it might have a purgative effect on a
non-compliant agency.
The second reason is that some companies have it in their minds
that they do not want to comply with the revegetation standards.
Westmoreland has been head butting Montana over that for some years
now. Westmoreland was behind the massive changes in the 2003 Montana
law, just as another mine in the State showed that it was possible to
meet Montana's then standard for revegetation. The difference was the
company attitude as it stemmed from company management. The mine which
did a good job was a Rio Tinto mine, and its company managers had
decided it was cheaper to comply with environmental laws than to
constantly be hauled into court. The attitude of the managers was
reflected on the ground.
Revegetation is possible in most of the northern high plains, given
the right company attitudes, but water resource reclamation is the
third reason why final bond release is low. Water resource reclamation
has had the lowest priority in the permitting and reclamation process.
There are promises in the permits to replace individual water
resources, but whether and how those promises have been followed
through on, I don't know. Replacing individual resources depends on
having a resource that can be found and depended upon to be potable at
the very least. I don't know how the states are going to meet the
standard of not degrading and diminishing the water resource in the
mine area. Leaving the mine area to time and fate to clean up water
quality and quantity is not satisfactory to those of us who live in the
coal fields. There is no research in the area, and the regulators are
accepting time and fate. Until the water is reclaimed, there should not
be bond release. The States and OSMRE are coupled in ignoring this
problem. If the States and OSMRE accept anymore permits or permit
amendments that ignore reclamation of the total water resource, a fine
would be in order again. The waste of water from Lee Coulee is an act
of extravagance like lighting cigars with thousand dollar bills.
Montana has been doing what is called rolling bond release. Stage
IV is the final stage indicating that the water resource has been
reclaimed, and the State retains a small amount of bond money until
Stage IV release. 9/11 raised the costs of bonds across many industries
including coal. The stage IV bond money is now mounting up, and there
are fears that if large amounts of acreage are suddenly up for bond
release, there will be great pressure on the State to release,
regardless of quality of reclamation, because if something should cause
a bond forfeiture, there would not be enough money left to fix the
problem.
Self bonding is allowed in some states. The State of Colorado
allowed the Mid-Continent Mine to self bond with a limestone plant as
collateral. The sole market for the limestone plant was Mid-Continent
mine. Korea cancelled its marketing agreement with Mid-Continent. The
mine closed. The bond was forfeited, the limestone plant now a
worthless property that had lost its market. Meanwhile, the family that
owned Mid-Continent had invested in Colorado mountain real estate.
OSMRE had the authority to pursue that money, but did not with any
vigor. The taxpayers have picked up the tab for what reclamation has
been done on the Forest Service land where Mid-Continent operated.
CONGRESS' RESPONSIBILITY FOR THE ENFORCEMENT OF SMCRA
Some of the agency actions are in effect, actions in contempt of
Congress, as evidenced by Congress' intention expressed in SMCRA. I do
not believe there is anything especially wrong with SMCRA, with the
exception of not covering longwall mining and not coping well with
mountain top removal, but I do believe that as an agency OSMRE has long
been lacking intent to enforce SMCRA as it should be enforced. The
agency has been a great hand to not want to take action on something,
unless it is immediately hazardous to human life. That is a judgment
call, and the agency is not prescient. The process to pass SMCRA began
with the disaster at Buffalo Creek, WVA. Fortunately, a similar tragedy
for human life has not happened again, but how much luck was involved
with the Kentucky River flood through Louisa, KY or the water break out
at the AEP mine in Ohio? There are a number of sludge ponds throughout
the East that are known by the agency to be unstable, but they remain
unremediated, and the locations are not known to the public. Is OSMRE
prescient as to which one will break first? Where are the states and
OSMRE on this? Both are negligent and trying to hide out from that
unpleasant policeman's task.
Congress could pass more laws and see them twisted and ignored. It
is better to seek enforcement of the law you have. When the agency
charged with enforcing laws you have passed, attempts to withdraw from
enforcement and hide from the public who believed in the law you have
passed, the agency causes the public to hold the law in contempt,
whether that part of the public is industry or the citizens. You should
be angry that SMCRA is being administered in that fashion. You need to
do closer oversight on OSMRE, whether by more hearings held both here
and in the field, as well as improved reporting from OSMRE. You also
have the power to issue contempt citations, and I believe that you
should seriously consider doing so. If you cannot get OSMRE to respect
and enforce the law which it is paid to administer, then perhaps you
should consider housecleaning in the agency.
I would reiterate again that unless OSMRE can bring itself to
adequately enforce SMCRA and refrain from going off on wild goose
chases to facilitate industry interests, that Congress should seriously
consider moving enforcement of SMCRA to the Justice Department.
CITIZEN ACTION
Citizens can file complaints in writing under SMCRA, but there are
informal ways to make one's voice heard. The regulators see industry
people on a regular basis. They develop a familiarity with each other.
They drink beer together in the hotel bar, if they are at an away
meeting. If there is a regulatory office in a reasonably convenient
location, citizens should stop by when they don't have a complaint. If
there is a basis of familiarity, perhaps relations would be a little
better. Such visits also help inform the citizens about conditions
within their regulatory agency.
In Montana, it would be nice if more of the state regulatory agency
were closer to the mines. Because of the travel distances involved,
most of the contact between the Montana state agency and citizens near
the Eastern Montana mines consists of more formal meetings, and because
of the turnover of regulatory personnel in sensitive areas, frequently
the sacrificial agency lamb at such meetings is the newest and most
inexperienced of Montana personnel.
The Casper Field Office of OSMRE, which regulates the highest
producing coal area in the United States, has the most area to cover,
and probably the fewest inspectors. Distance operates against a citizen
getting a clear idea of how that office operates. It is 379 miles from
Casper to Billings, 629 miles from Casper to Helena, and God knows how
far to North Dakota. For quite a while last year, the Casper Office
operated without a field office director. The Field Office Director
from Albuquerque filled in. I would say that is hardly effective
administration. Getting acquainted with the regulators will not solve
all the problems relating to SMCRA enforcement, but it is a small step
that citizens can take.
______
Statement of Vernon Haltom, Co-director, Coal River Mountain Watch,
Whitesville, WV
On behalf of Coal River Mountain Watch, I wish to thank Senator
Bingaman for holding this hearing and accepting comments from those of
us most directly impacted by the Surface Mining Control and Reclamation
Act (SMCRA).
The mission of Coal River Mountain Watch is to stop the destruction
of our communities and the environment by mountaintop removal mining,
to improve the quality of life in our communities and to help rebuild
sustainable communities. We envision just and caring communities in
which residents are aware of and involved in solving community issues
and in which public officials and agencies fulfill their responsibility
to provide sustainable forms of economic development and a healthy,
safe environment.
We invite you to our region to view the horrible destruction to our
communities and environment that the Office of Surface Mining,
Reclamation, and Enforcement (OSMRE) is allowing, promoting, and
enabling. The coal industry is destroying our water, forests,
mountains, homes, and economies. Come see for yourself, as so many
others have, the devastation, and do not rely on coal industry
propaganda or tours of their handful of manicured show sites. We need
you to take our problems seriously, which OSMRE has failed to do, and
investigate our complaints.
OSMRE and this administration continue to deny the citizens of
Appalachia sufficient time to examine rule changes. OSMRE makes it
extremely hard for citizens to find out about permits. Citizens in the
nearby communities should be notified the minute a permit that affects
them is applied for. During the Stream Buffer Zone rule change, we the
citizens asked OSMRE for an extension and for hearings in November. We
were denied without reason. OSMRE denied the citizens of Virginia the
right to even have a hearing.
OSMRE does not enforce the SMCRA laws. Rather than vigorous
enforcement, OSMRE makes it easy for the coal industry to pollute,
poison and blast our homes and communities.
OSMRE is allowing coal companies to devastate communities near coal
mining operations. Loss of life and homes from flooding, loss of both
well water and stream water sources, loss of renewable resources, and
loss of quality of life are all consequences of irresponsible mining by
outlaw coal companies and OSMRE is allowing this to happen by not
enforcing the law. Our water is being poisoned and no one will help us.
The coal industry is blasting our homes and mountains with millions of
pounds of explosives a day. The coal dust, rock dust and silica dust
comes down into the valleys and settles in our homes and our lungs.
OSMRE must honestly assess the cumulative impacts of mountaintop
removal. OSMRE says the impacts are insignificant but ignores the
cumulative impacts of mountaintop removal and other mining in central
Appalachia, like longwall mining.
According to the administrations own studies on mountaintop removal
coal mining, the immediate and long-term environmental impacts of this
form of coal mining are severe and irreversible. The jobs are temporary
and the damage is permanent. Lapses in the enforcement of the buffer
zone rule have allowed almost 2000 miles of streams to be buried or
degraded by mining waste.
The Bush administration released a draft Environmental Impact
Statement (EIS) on August 24 to go along with the proposed rule change.
That study was supposed to examine the environmental effects of
alternatives to repealing the buffer zone rule, which prohibits valley
fills and sludge ponds from burying and destroying streams. Yet,
incredibly, the EIS did not even study the option of enforcing the
buffer zone rule as currently written.
This fact alone proves the administration never considered
enforcing the law, but only wants to repeal it, regardless of the facts
about the harm that will result.
In several instances, the Environmental Impact Statement describes
the permanent destruction to the land and water sources, with no
substantial economic benefit to the communities. One example, from Ohio
Valley Environmental Coalition and West Virginia Highlands Conservancy
comments on the Draft EIS. The DEIS states:
The information in Table III.B-2 is corroborated by the
experience of reclamation personnel and is reflected in West
Virginia's recently proposed commercial forestry regulations.
In estimating the likely quality of reclamation to be obtained
under these regulations, we must recognize the fact that the
current regulations (which have been in place since May 16,
1983) require that selected overburden substitutes for soil be
``equal to, or more suitable for sustaining vegetation than the
existing topsoil, and the resulting soil medium is the best
available in the permit area to support revegetation.'' Also,
soil materials are to be redistributed in a manner that
prevents excessive compaction of the materials. Be this as it
may, the reality of reclamation in Appalachia is that selective
overburden handling is rarely practiced beyond that required to
keep highly toxic material out of the rooting zone; excessive
compaction is commonplace... Production of soils that will
support commercial forestry as part of mountaintop mining
requires selective overburden handling and replacement
procedures on a scale that has never been carried out in
Appalachia.
DEIS III.B-15 (citation omitted) (emphases added).
Using the administration's own figures, more than 1000 miles of
streams will be destroyed every decade into the future, poisoning an
entire region.
It appears that under the Hard Rock Mining Law overhaul, OSMRE will
be tasked with additional enforcement duties, further diluting their
effectiveness. Placing additional enforcement duties in the hands of an
agency that is presently not enforcing laws under its existing mandates
is a recipe for disaster.
It appears that OSMRE has no intention of improving protections for
mountain communities threatened by mountaintop removal, but instead
intends to weaken existing regulations. By proposing to effectively
repeal the Stream Buffer Zone, OSMRE has shown itself to be a tool of
the coal industry. Even the hallowed halls of Congress are not immune
to the industry's machinations, as we have seen in recent months the
beginning of efforts to repeal laws that have only now begun to be
enforced through lawsuits by groups such as ours.
Coal River Mountain Watch asks that Congress recognize the threats
posed to our communities and environment, improve our safety by
remediating OSMRE's failings in enforcement, and end mountaintop
removal by passing strong legislation such as the Clean Water
Protection Act.
Thank you for your concern. We pray for your bold and righteous
action.
______
Joint Statement of Johanna H. Wald, Senior Attorney, Natural Resources
Defense Council, and Donley Darnell, Chair, Western Organization of
Resource Councils
Thank you for holding a hearing in honor of the 30th anniversary of
the Surface Mining Control and Reclamation Act (SMCRA). Signed into law
in August, 1977, this important legislation was enacted in recognition
of the legacy of environmental harm that strip mining had already left
in the East and the extensive damage that could result from the then-
planned large scale expansion of coal mining in the West.
In anticipation of this important anniversary, the Natural
Resources Defense Council (NRDC) and the Western Organization of
Resource Councils (WORC) undertook an assessment of the degree to which
two fundamental objectives of SMCRA--timely and effective reclamation
of mined land, and thorough inspection and enforcement of the Act and
its implementing regulations by responsible federal and state
agencies--had been achieved over the last ten years on the ground in
the five principal western coal mining states--Colorado, Montana, New
Mexico, North Dakota and Wyoming. We have attached the report which
resulted and respectfully request that it be submitted for the record
of your hearing.
As documented in the attached report,* data published over the past
ten years by the Office of Surface Mining Reclamation and Enforcement
(OSM), the federal agency charged with ensuring and overseeing the on-
the-ground implementation of SMCRA, reveal clearly that these key
objectives are not being achieved. Given the predicted growth in US
coal production, most of which will take place in the West, it is
imperative that action be taken soon to realize SMCRA's promise.
---------------------------------------------------------------------------
* Report has been retained in committee files.
---------------------------------------------------------------------------
Despite the passage of three decades, SMCRA's goal of protecting
society and the natural environment of the United States from the
ravages of coal mining has not been achieved in key respects. For
example, OSM's own data show that both the amount and rate of
reclamation occurring in the West are shockingly low:
During the ten year period covered by our report, less than
23,000 acres were fully reclaimed by OSM's longstanding
definition. Four hundred thousand acres were disturbed by
mining over this same period.
Montana has the worst reclamation record of the five states
assessed. Wyoming, the nation's leading producer of coal,
nearly all of which is strip-mined, had the second worst
record.
Data from OSM and the states also reveal that the kind of strong
and effective enforcement regime at both the state and federal levels
that is essential to the success of SMCRA's regulatory program is not
in place at this time:
State regulatory agencies have failed to conduct the number
of mine inspections required by SMCRA during the past ten
years. According to the available data, 80 percent of the time,
the states failed to conduct the required number of complete
inspections, partial inspections, or both.
Wyoming, with the largest number of permitted acreage, had
the highest number of missed inspections.
Regulatory staff numbers at OSM and the state agencies have
declined as has federal funding just as the number of permitted
acres and amount of coal mined have increased.
Our report, as indicated, addresses only two key issues related to
SMCRA's implementation. It does not address other important issues in
the region or in other coal states and regions. The report presents
recommendations to address the specific problems that it documents.
Policy makers at the state and federal levels, including Congress, and
concerned citizens need to develop a comprehensive list of
recommendations for improvements in the way coal mines operate for the
way SMCRA is being implemented to achieve the law's promise.
Thank you again for holding this hearing. We also thank you for
considering our report and recommendations and for including in the
record of your hearing.
______
Statement of Robert L. Johnson, Collinsville, IL
The federal Office of Surface Mining (OSM) has abdicated its
responsibility to enforce Surface Mining Control and Reclamation Act
(SMCRA) rules. And OSM's Office of the Solicitor recently stated that
OSM does not have the authority to correct errant decisions made by
State mining agencies (OSM Solicitor, July 12, 2006).
And State mining agencies are the bastion of people connected to
the mine companies. State agencies therefore are biased toward
sacrificing private and public land for the production of coal.
And, despite the hoopla over SMCRA provisions for public
participation and rights to appeal and sue over agency decisions, those
provisions are regrettably nothing but a facade. State mining agencies
and the mining companies work closely to limit the presentation and
content of Public Hearings and to prevent objective appeals of
decisions.
Public appeals are sent before Administrative Hearing Officers that
are trained and paid for by the State's mining agency whose decision is
being appealed; sort of like a defendant in court paying the judge
hearing his case.
On a site-specific basis, the local public has virtually no
technical or legal persons to which they can turn. In a practical
sense, all those with the technical and legal skills to help them are
aligned with the mining industry. The cost of appeals, of tens, if not
hundreds of thousands of dollars, are beyond the resources of the
public adversely affected by individual mine operations. And whatever
resources the public has available to launch effective appeals or
lawsuits is countered by coal companies willing to spend ten times
whatever the public has.
Hearing Officers facing evidence in appeals that overwhelming favor
the public, distract the hearing into a myriad of procedural details to
the degree that the issue of the appeal is never heard.
Both Hearing Officers and judges routinely defer to the finding of
the State's agency decision, the decision that is being challenged.
Since OSM has abdicated its responsibility to enforce rules, there is
no unbiased, unprejudiced forum for the public to turn, and the
decisions being made State mining agencies become almost the force of
law.
RECLAMATION OF MONTEREY MINE NO. 2, GERMANTOWN, ILLINOIS
Monterey Mine 2, owned and operated by ExxonMobil, was designed in
the 1980's. Its water supply was from the Pearl Sand Aquifer located
about ten feet below the mine's coal waste landfill, the Refuse
Disposal Areas. There is no liner beneath this landfill containing
30million cubic yards of coal waste. A hydrologic study showed that
coal wastes would not leach into the Aquifer.
Immediately upon commencing mining operations, the groundwater was
found to be contaminated with leaching coal waste. ``Monitoring,
investigation, and management of groundwater at the No. 2 Mine have
been integrated with the mine operations since 1980.'' (Groundwater
Management Plan, Monterey Coal Company, May 8, 2002.).
The mine closed in 1996 (several months before the original miners
were to achieve their 20year pension). Due to the groundwater
contamination, a new Reclamation Plan was necessary. The State mining
agency brought in the Illinois Environmental Protection Agency (IEPA)
to oversee a Groundwater Management Plan. That Plan consisted of
placing a impermeable cap over the coal waste landfill. The mine
objected, wanting to save $10,000,000 by putting a permeable cover over
the waste, allowing the coal contaminants to continue to leach into
Aquifer. For reasons still unknown, IEPA agreed.
Both nearby residents and farmers have complained for years that
their water supply from the Aquifer was being contaminated and
threatened with contamination by mine operations. Some residents have
had to connect to a newly installed water supply system, partially paid
for by the mine. These residents now must pay for water, where once
they had their own. Other residents still rely upon the Aquifer being
contaminated by the mine. Farmers and ranchers continue to use the
threatened and actually contaminated Aquifer.
The Reclamation Plan, which incorporates the Groundwater Management
Plan, is based on the premise that extraction wells restrict coal waste
contamination to within the permit boundary. The Groundwater Management
Plan, prepared by the mine's engineers states that there is no off-site
groundwater data on which to the base the Plans. IEPA once collected 17
off-site groundwater samples. The Plan refers to this data: ``It is
noted that the IEPA did not provide the location of these sampling
points; therefore, only limited interpretation of this data was
possible by Monterey.'' Recently, the location of the 17 wells sampled
by IEPA was provided to the public. The natural groundwater flow at the
site is southwest; only 1 of the 17 wells monitored by IEPA was
southwest of the mine.
The entire Reclamation Plan is premised on there being no off-site
groundwater contamination and, therefore, the Plan is entirely based
upon a single downgradient water sample whose data cannot be correlated
to it. How does this comply with SMCRA rule that requires permits to
``affirmatively demonstrate'' that mining activities ''prevent'' off-
site contamination?
According the Groundwater Management Plan/Reclamation Plan, the
groundwater contamination at this mine will stabilize in maybe
100years. The groundwater model contained in the Plans shows that the
coal waste will continue to threatened off-site groundwater resources
for more that 500years. The Plan relies upon the mine to maintain the
``monitoring, investigation, and management of groundwater at the No. 2
Mine, integrated with the mine operations since 1980,'' a system of
pumps to treat 500,000gallons a day of contaminated groundwater before
it is discharged into the Kaskaskia River, a potable water supply. Both
environmental protection rules and SMCRA rules have provisions that
prohibit groundwater resources from being threatened by mine
activities. Does anyone, including State agencies or OSM, really
believe the mine intends to operate and maintain the pumps and
treatment of 500,000gallons/day for 500years? Nevertheless, the State
approved the Plans.
Furthermore, SMCRA rules require, ``Mining and reclamation
practices that minimize water pollution and changes in flow shall be
used in preference to water treatment.'' With no impermeable cap over
the wastes, water pollution is not minimized by mine operations. With
the newly installed slurry wall, the groundwater flow is to the
northwest and southeast, the flow having already been thoroughly
disrupted by the extraction pumps. And the Plan relies entirely upon a
large-scale water treatment system. Nevertheless, the State approved
the Plan.
The Public Hearing for the Reclamation Plan lasted 27minutes
(transcript available). About fifteen minutes of that time consisted of
mine representatives telling local residents what a ``good neighbor''
the mine was to them. About four minutes of that time was spent
explaining the $30,000,000 Plan that would affect the community for the
next 500years. And the remaining time was spent with the mine and State
mining agency refusing to answer any of the questions posed by the
residents. This is the Public Participation envisioned by SMCRA?
Residents appealed the Plan. Mine lawyers delayed the proceeding
for months. The State mining agency decided to train a Hearing Officer
especially for the occasion. Hearing prep lasted 6months.
Unsurprisingly, the Hearing Officer, paid for by the State mining
agency, eventually found in favor of the State mining agency. This is
the fair and unbiased appeal process envisioned by SMCRA?
Post-mining land use of the site is pastureland but, according to
the Reclamation Plan, ``this area will not be grazed by livestock or
specifically cut and cured for livestock feed.'' This is because the
land after reclamation is still not stable enough for safe and
economically viable commercial, agricultural, or recreational use. In
effect the post-mining land use is designated as ``pastureland that
cannot be used as pastureland.'' This is the restoration of mine sites
envisioned by SMCRA?
The appeal of the Reclamation Plan is now under federal appeal
process and has languished there since September 2006, almost a year
now. This is the timely appeal process envisioned by SMCRA?
In the spring of 2006, a local farmer filed a groundwater
contamination complaint with IEPA. His well has high concentrations of
coal waste parameters. IEPA dismissed the complaint, stating that the
coal waste contamination must have come from some other source than the
30million cubic yards of coal waste present immediately upgradient of
the farmer's well. IEPA refused to identify what other possible source
there might be.
IEPA then collected off-site groundwater samples just beyond the
mine permit boundary. The wells had high concentrations of coal waste
parameters. Additional wells were installed and another sampling event
conducted. The well samples had high concentrations of coal waste
parameters. In December 2006, the mine was directed to prepare an off-
site investigation program and provide a solution to the problem. The
public through the Freedom of Information Act recently requested that
information.
In 2004, the mine installed a permanent 3mile pipeline to continue
its discharge of diluted contaminated groundwater into the River.
Because the ``monitoring, investigation, and management of groundwater
at the No. 2 Mine, integrated with the mine operations since 1980, the
pipeline was a continuing mining operation and the attendant permit
boundary revision, needed to implement the pipeline operations,
required, under SMCRA, a Public Hearing. The State mining agency so
stated in letter to residents in August 2005. The Public Comment period
ended August 31, 2005. By November 2005, no Public Hearing had been
scheduled.
When residents inquired when the Public Hearing would be held, the
State mining agency replied that the lawyers for the mine had sent a
letter ``indicating that a public hearing was not required'' under
SMCRA. The State mining agency sent the mine lawyers' letter to OSM who
sent it to the Office of the Solicitor for review. According to OSM,
the ``Office of the Solicitor effectively advised that the operation of
the refuse area, including construction and operation of the pipeline,
is an on-going aspect of the overall surface coal mining operation, and
is subject to the requirements of SMCRA section 522(e),'' thus a Public
Hearing was required. Furthermore, the Solicitor stated that it had
reviewed the mine lawyers' arguments and found those arguments,
``unpersuasive.''
Nevertheless, in December 2006, after 16months during which nothing
about the pipeline had changed, the State mining agency unilaterally
changed its decision and decided it would not conduct a Public Hearing.
The final decision has no mention of its August 2005 decision or of the
findings of the federal Solicitor.
Under SMCRA, once a mine site is reclaimed typically in 3-5years,
active reclamation ceases and the land is available for economic
redevelopment. But at this mine, the operators characterized the
operation and maintenance of extraction pumps ultimately discharging
500,000gallons/day into the Kaskaskia River watershed, a system that
has been already operating for 30years and must continue for centuries,
as being ``incidental to reclamation activity.'' So has a 3-5year
reclamation of the mine site under SMCRA been somehow warped to mean,
as characterized by the Solicitor, ``coal mining operations'' lasting
100-500+ years?
In January 2007, the public appealed the State mining agency's
final decision. Despite scores of documents that provided a
preponderance of evidence that the pipeline was a continuing mining
operation, the Hearing Officer, trained and paid by the State mining
agency and whose principle legal expertise is employment law, recently
found in favor of the State mining agency. In his decision, the Hearing
Officer effectively denied the public's right to a formal hearing on
the matter.
All this is the much-exalted right under SMCRA for public
participation and appeal? Many provisions of SMCRA need to be updated,
but perhaps more importantly, current provisions needed to be fully and
properly implemented and enforced.
There are many provisions of SMCRA that need to be updated. But
updated the law is an useless effort if the law is not enforced.
SMCRA explicitly states that coal waste impoundments must be
removed, see attachment.
Yet huge coal waste impoundments are not only being left when the
mine closes but are being proposed as permanent structures in mining
permits and being accepted by regulatory agencies.
Monterey Mine 2, near Gremantown, Illinois, closed in 1996. It left
behind a 400acre 30million yard coal waste impoundment, which,
according to the approved reclamation plan, will continue to
contaminate the Pearl Sand Aquifer for 500years. The impoundment is
constructed with ``High Hazard Dams'' as regulated by Illinois
regulations. Such a permanent waste impoundment is in noncompliance
with SMCRA but there it is, an ongoing mining operation that no one
cares about, see request to Senator Obama attached.
The proposed Deer Run Mine near Hillsboro, Illinois will include
large waste impoundment, again millions of cubic yards of waste. But
the permit application does not propose removing the waste, but rather
suggests a permanent waste impoundment in noncompliance with SMCRA. In
order to confuse the public, the mine calls the waste impoundment a
``gob pile'' for which there is no definition under SMCRA.
For elements for SMCRA that do require updating, the most critical
are to institute provisions that regulate LAND subsidence due to
longwall mining. While the mine supposedly is required to repair
damages to structures, subsidence to prime farmland is limited to that
which is ``technologically and economically feasible.'' How does one
repair literally thousands upon thousands of acres of prime farmland?
It can't be done so under current SMCRA provisions, the more damage
that a mine does with longwall mining techniques, the more likely the
damage cannot be technologically and economically repaired, so the mine
can just walk away.
The nation seems to be moving in the direction of growing its
energy needs: does it make any sense to have SMCRA provisions which
allows the destruction of land needed to grow that energy?
Attachment
PREAMBLE to Final Rule: Discussion ``Such structures may not be
retained permanently as part of the approved postmining land use.''
FEDERAL REGISTER: 48 FR 44006 (September 26, 1983)
DEPARTMENT OF THE INTERIOR
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)
30 CFR Parts 701, 816, and 817
Surface Coal Mining and Reclamation Operations; Permanent
Regulatory Program; Coal Mine Waste
ACTION: Final rule.
DISCUSSION
SECTION 816.84(b)
This provision also explicitly recognizes that impounding
structures constructed of or impounding coal mine waste may not
be retained permanently as part of the approved postmining land
use.
RULE:
SEC. 817.84 COAL MINE WASTE: IMPOUNDING STRUCTURES.
(b) (1) Each impounding structure constructed of coal mine waste or
intended to impound coal mine waste shall be designed, constructed and
maintained in accordance with Sec. 817.49 (a) and (c). Such structures
may not be retained permanently as part of the approved postmining land
use.
Attachment.--Letter to Senator Barack Obama
RE: FEDERAL NON-RESPONSE TO FOIA REQUEST SURFACE MINING CONSERVATION
AND RECLAMATION ACT REQUIREMENTS.
Dear Senator Obama: Thanking for your recent response to my May 31,
2007 request for assistance in getting a public document from the
United State Department of the Interior, Office of the Solicitor,
through the federal Freedom of Information Act.
In summary, on October 27, 2005, The Illinois Department of Natural
Resources, Office of Mines and Minerals, (IDNR) requested the federal
Office of Surface Mining for a statement of whether a pipeline at
Monterey Mine No. 2 was a ``continuing mining operation.'' That request
was forwarded to the Knoxville Office of the Office of the Solicitor,
see attachment. In a response that was eventually forwarded back to
IDNR, the Washington Office of the Solicitor stated, ``the Field Office
of the Solicitor effectively advised that the operation of the refuse
area, including construction and operation of the pipeline, is an
ongoing aspect of the overall surface mining operation, and is subject
to the requirements of SMCRA section 522(e).''
Since November 2006, I have sent FOIA requests to various
governmental agencies for a copy of the document, including the Justice
Department, see enclosure. For the most part, these requests have
simply been ignored. On March 1, 2007, the Office of the Solicitor
stated to me, ``we hope that you will delay filing a lawsuit''
regarding this matter. The requested document readily exists in the
federal Offices of the Solicitor, both in Knoxville and in Washington,
why should I need to file a lawsuit? Meanwhile, the pipeline continues
to operate outside the requirements of SMCRA section 522(e).
It is one simple document. All it would take to resolve this matter
is for someone with authority, someone that has concern on whether
applicable provisions of SMCRA are being enforced, to contact the Field
Office of the Solicitor in Knoxville (865-545-4294), and tell them to
make a copy of the document and mail it to:
Robert L. Johnson, PE
8 Cypress Point Dr.
Collinsville, IL 62234