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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Environmental Concerns With Mining  Posted: August 19, 2002

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail fitzKRC@aol.com

Environmental Concerns With Mining

Presentation of Tom FitzGerald, Director,

Kentucky Professional Engineers In Mining

15th Annual Seminar

August 16, 2002

I had always pondered whether the old Chinese proverb: "May you live in interesting times" was meant as a blessing or curse. Reflecting on the past year's event, I am still uncertain.

One thing that is certain, however, is that the job of the mining engineer has never been more critical to the successful design, permitting and implementation of a mine and reclamation plan than it has become in the past year and will be in the next few, as the industry reconfigures extraction and spoil management approaches to respond to regulatory and judicial decisions.

Within the next year you can expect:

* clarification of the KFTC decision by the 4th Circuit Court of Appeals concerning the relationship of Section 404 of the Clean Water Act and Section 402 and 401 of that same law regarding the placement of fill material in waters of the United States;

* a decision by the U.S. Court of Appeals for the District of Columbia as to whether Section 522(e) of the federal Surface Mining Control and Reclamation Act applies to prohibit subsidence impacts on protected structures, including homes absent consent of the homeowner, and churches, cemeteries, and other areas;

* new regulations addressing non-coal mining activities, intended to address the major gaps in the 1995 revision of those regulations

* judicial and possibly legislative action clarifying whether the surface mining of coal by a coal company owning or holding rights to an undivided fractional interest in minerals or land and minerals, absent the consent of other undivided interest holders, is lawful or constitutes waste or ouster;

* administrative and judicial decisions concerning the proper interpretation and application of the exemption from the definition of "affected area" for certain roads used for haulage or access;

* a new federal regulation defining the antidegradation implementation methodology for Kentucky's "Tier II" waters; and

* a decision from the Sixth Circuit Court of Appeals on the validity of the rules belatedly published by EPA in response to the Rahall Amendment allowing alternative effluent limitations for certain pollutants from remining operations.

It is unclear where any of these issues will end up, although I have my druthers about how I'd like them to be resolved.

It is a certainty however that the role of the mining engineer in addressing these challenges has never been more important. The question is not only whether you are up to the task, but whether the political and cultural environment within the industry has enough wisdom and commitment to allow the profession to address these challenges.

The coal industry has never been long on introspection. I have been involved with the coal industry dating back to 1972 when I began working for a project of the Episcopal Church in southwest Virginia that was seeking more rigorous controls on strip mining abuses and lobbying for a rigorous bill prohibiting stripmining on steep slopes that was sponsored by a young Congressman from West Virginia named Ken Hechler. Last week I attended the Coal Subcommittee of the Governor's Energy Policy Board where it outlined the "strengths, weaknesses, opportunities and threats" to the industry. Throughout those thirty years, the industry I have observed and known has been incapable of assuming ownership of the reality that extracting coal and upending the earth to do so, handling and disposing of wastes, moving the product from minesite to market, and disposal of combustion wastes, cause harm to the public's resources and the legitimate rights of others that must be accounted for, prevented and minimized.

Instead, it is always someone else's fault environmentalists, Washington, the jealous Northeastern states, the UN, God. The self-image the industry sees is a bunch of good apples with one rotten one, beleaguered and set upon by ignorant citizens fueled by misinformation and a vengeful press.

The truth is that the industry, through its bottom-line, skating on the edge approach to mining, to worker safety, and to social responsibility, has brought its woes on itself, and that the viability of the eastern coal industry in the short-term will rest on the ability of the industry to understand and resolve, not avoid and ignore, several core engineering issues relating to mine planning.

I missed the first coal subcommittee meeting because of a trial, and when I got to the second one, I found that the subcommittee had identified certain strengths to be built on, including higher weight limits on roads for coal haulage, and acceptance by the public of the adverse impacts of mining and haulage. Weaknesses and threats included the public's attitude.

The failure to understand the cause-and-effect link between industry practices and public resistance, such as hauling overweight, and the listing of those problems as strengths, exemplifies the extent of the denial. Anyone with passing familiarity of the lay of the land in the coalfields would have to note the resurgence of vocal communities and coalfield citizens groups, fueled by anger at the scale of abusive practices, including massive end- and side-dumped fills, overweight haulage on minor secondary rural roads, as perhaps the most significant trend in recent years. It is not going to end until the practices themselves are reformed.

Let's pity the poor engineer for a moment. My first insight into the plight of the civil mining engineer was in a landfill case, in which I had just finished cross-examining an engineer as to the suitability of placing a landfill on top of a conglomeratic sandstone and channel fill deposit that served as the catchment area of the spring-fed water supply of a small town downgradient. As he greeted my expert, a hydrogeologist with whom he was acquainted, and they walked away, I overheard him say "why is it they never ask for my advice; they only ask me to bless their messes?"

The Xerox machine is perhaps the single worst invention in the history of mining engineering. The number of times that you have been asked to develop a mining plan that conservatively addresses natural resources constraints and is sensitive to the concerns of neighbors, is probably equivalent to the number of times anyone has ever called me to tell me they are having a good day.

The failure of the industry to accept limitations and to learn to operate within them, rather than always pushing against the grain in order to cut short-term costs, costs more in the short and long-term.

The lack of adequate characterization of the extent, proximity and condition of underground works relative to new mines and to slurry disposal sites, can have catastrophic consequences and can threaten life and limb.

The lack of adequate consideration of protection of aquatic resources, brought on by an arrogant avoidance of the plain language of federal law borne of years of custom, can shake the industry to its boots.

The propensity of the industry to ride the margin, profiting while the market is high and bankrupting companies when the inevitable bust follows the boom, adversely affects public and worker confidence in the companies and is a direct cause of the difficulties that the industry faces in obtaining bonding and insurance coverage.

The apparent belief by some within the industry that the rules simply aren't written for them, and that they don't need to replace bonds on a timely manner or timely secure permit revisions when they run out of waste disposal capacity, places those that attempt to live within the rules at a market disadvantage and bring the credibility of the laws into question.

In the short and mid-term, eastern coal generally and Kentucky coal specifically will continue to lose market share, as companies who produce in this region maximize the profit from their western holdings, and utilities continue to purchase lowest-cost fuel. Barring mandates to install flue gas desulfurization controls on utility plants, western Kentucky coal fortunes will not dramatically improve. In the longer term, distributed energy will replace much of the electrical load now produced by coal-fired generating plants. You may not have noticed, but the hybrid vehicles now on the road are as never before mobile power plants, producing and storing electrical power by converting friction and petroleum-based fuels to stored energy. The development of fuel cell technology and unplugging of commercial, residential and industrial users has already begun and will accelerate dramatically in the next 10-20 years.

The short-term question is whether, in an effort to lower costs in order to maintain market share, the industry will continue to cut corners on mine safety, reclamation and protection of the public off-site. It is, I am sure, an unpopular thought to many of you, but it may be that the highest and best use of the coal resources in certain cases is in the ground, sequestering carbon, conserving land, air and water resources, allowing for development of alternative economic bases that do not rob from tomorrow to profit some today, and that the investment in the region should be in restoring land and water resources to their productive capability rather than continuing to diminish that capability.

The future is always less than clear, but your talents will be needed as never before if the industry is to resolve these self-inflicted crises. I am not sanguine about the ability of the industry to do so, but those within the industry with wisdom will seek:

* approaches to minimize placement of spoil in or near waters of the United States through better mine sequencing and planning, through disposal on pre-existing benches, through side-fill construction and through constructed, compacted fills;

* approaches to management of coal processing wastes that do not rely on embankment dams made of coarse coal refuse but instead backstow mine wastes into mine voids, dry filter press, and otherwise manage wastes to avoid impoundment failures;

* approaches to underground mine planning to avoid protected areas and to minimize future subsidence;

* approaches to coal transfer from minesite to market to minimize disruption to communities and relieve stress on minor roads;

* approaches to mineral resource development that assure fairness to all holders of interest in property and avoid costly title battles and negative public perception through minor-interest "broad-forming,"

* collection of realistic and adequate biological, hydrologic, and geologic information to avoid impacts from mining and waste disposal on the public and streams.

For the first time in some years, the production-minded companies are asking you how to comply with the changing rules. Their lawyers usually have one answer to hunker down and oppose any changes that alter business as usual.

You are professionals that, like the accountants of the many corporations now under the magnifying lens of the press, are expected to serve as facilitators of compliance by an industry with standards intended for public protection. Like accountants, you are under a constant if unstated pressure to make a project successful, and in some cases, to fudge things in order to achieve the desired goal. Some within the engineering profession succumb to that pressure, many do not. The willingness of state and federal agencies to accept shoddy and minimal work certainly lowers the bar in the profession and encourages minimum compliance rather than conservative design.

My job, and that of coalfield citizens organizations, is to demand that accountability of the industry yours, if you are up to the task, is to seize the opportunity created and to show them the way out - the way to use engineering to meet the triple bottom line if they have the wisdom to take the high road instead of continuing to haul, overweight, on the low road.

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