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

OSM Proposes to Weaken Stream Protections  Posted: July 19, 2003
The federal Office of Surface Mining has surfaced a proposal in an "Outreach Document" released March 21, 2003, to weaken the protective stream buffer zone regulations in order to eliminate the current requirement that instream water quality and water quality protections must be met for intermittent and perennial streams.

OSM claims a need to revise the stream buffer zone regulations in order to address a "narrow interpretation" of the rule by Federal District Judge Haden that would prevent fill construction in those reaches of a stream, yet when that federal court decision was on appeal to the Fourth Circuit, OSM represented to the Circuit Court of Appeals that the Haden decision had gotten it right on the stream buffer zone rule - that fills should not be built in intermittent and perennial streams - and should be upheld.

Given this effort by the Office of Surface Mining to accommodate construction of fills lower in watersheds by weakening stream buffer zone protections, it is no wonder that coalfield citizen groups react with cynicism to the release of the proposed Environmental Impact Statement, and the representation by the federal agencies that they will improve the regulation of the disposal of spoil and mountaintop removal operations.

The draft Programmatic EIS released for public comment on May 30 documents the damage wrought by years of laissez faire regulatory policy concerning disposal of excess mine spoil and protection of headwater streams. The agencies have the tools, but apparently not the will, to greatly reduce the impact of mining on land and water resources.

The comments developed by KRC and the Citizens Coal Council are attached. The authors of the proposal plan to brief OSM's upper management tomorrow, June 3. To send an e-mail to OSM on this matter, write David Hartos at DHARTOS@OSMRE.GOV and ask that OSM withdraw the outreach proposal and cease further action towards weakening the stream buffer zone rules.

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

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

e-mail fitzKRC@aol.com

June 2, 2003

David Hartos, Physical Scientist

OSM – Appalachian Regional Coordinating Ctr.

3 Parkway Center

Pittsburgh PA 15220

By e-mail: dhartos@osmre.gov

Re: Outreach Document: Excess Spoil / Stream Buffer Zone

Dear David:

Thank you for extending the time through June 2, 2003 in which to respond to the outreach document on a planned rulemaking to "clarify excess spoil / stream buffer zone requirements." I understand that you plan to brief OSM's upper management on the status of the proposal for a rulemaking tomorrow, June 3, 2003. I hope that these comments are timely to your deliberations.

The comments that follow were developed by Tom FitzGerald, Director, Kentucky Resources Council Inc., in association with Carolyn Johnson of the Citizens Coal Council, and are submitted on behalf of the Bull Mountain Land Alliance, Citizens Coal Council, Mountain Watershed Association, Ohio Valley Environmental Coalition, and Kentucky Resources Council, Inc.

Summary

According to the cover letter that accompanied the outreach document, OSM is "considering amending our regulations to ensure the adverse environmental effects stemming from the construction of excess spoil fills are minimized and to clarify our stream buffer zone requirements."

In truth, the proposal to rewrite the stream buffer zone rule, in a transparent effort to accommodate construction of excess spoil fills in intermittent and perennial stream channels, proposes a substantial weakening of the historic interpretation and application of that rule. Utilizing the Bragg v. Robertson litigation as the ostensible basis for revising a regulation with national applicability, the agency claims the need to "clarify" the stream buffer zone rule. What the agency proposes to do is to reverse the primary protective provision of the current rule for the purpose of allowing the mining industry to use Appalachian headwater streams as disposal sites for excess spoil. The agency accomplishes this result by ostensibly eliminating the crucial requirement that mining operations not only meet categorical effluent limitations, but also comply with state and federal water quality standards.

For reasons stated in the comments that follow, OSM should abandon this ill-considered effort to recraft the stream buffer zone rule. The agency's proposal is flawed, as a matter of law and fact, in at least these ways:

* The expenditure of resources on implementation of changes in federal regulation concerning matters that are within the scope of an Environmental Impact Statement that has not yet been finalized and for which no record of decision has been published, is an unlawful and impermissible action in violation of the Council on Environmental Quality regulations, and casts a shadow on the credibility of OSM's involvement in the EIS process;

* The proposal for a rulemaking violates SMCRA by eliminating a requirement that the mining operation comply with state and federal water quality standards; and

* The stated basis for the proposal for a rulemaking is an insufficient one to support reversal of the current rule.

Introduction

The historic state of regulation of the disposal of mine-related wastes, including excess spoil, coal processing wastes and spoil material used for in-stream sediment ponds, in waters of the United States during the past two decades is best characterized as a circle of neglect. Under SMCRA and its implementing regulations, the state regulatory authorities (and OSM in Tennessee) have issued mining permits authorizing disposal of excess spoil, placement of coal wastes and construction of sediment ponds in streams, without adequately evaluating the effect of these activities on water quality and wildlife habitat. The U.S. Army Corps of Engineers has issued nationwide permit authorizations which amount to "drive-by" approval without requiring that the applicant adhere to the 404(b)(1) guidelines' sequential process of avoidance – minimization – mitigation. State water quality agencies have issued discharge permits for discharges from the structures without consideration of the impact of the filling or isolating of stream reaches. Fish and wildlife agencies have for years documented the incremental loss of habitat and species losses in vain.

Grass-roots citizen opposition to the scale and extent of damage attendant to mountaintop removal operations in West Virginia crystallized in litigation maintained against the U.S. Army Corps of Engineers and other agencies. In partial settlement of that case, OSM and several other agencies agreed to prepare an environmental impact statement on mountaintop removal coal mining and associated valley fills in Appalachia. In the May 30, 2003 Federal Register, OSM, the Department of the Army, Corps of Engineers, EPA and U.S. Fish and Wildlife Service, announced the availability of the draft Programmatic Environmental Impact Statement and a 90-day comment period.

Nonetheless, in its haste to enable the coal industry to continue historic practices unimpeded by proper application of existing laws, OSM now proposes to address separately the issue of stream buffer zones in an effort to avoid any further judicial decisions that might force the industry to avoid or minimize placement of such materials in waters of the United States.

The proposal is ill-considered, misdirected, and inconsistent with the language and policy of SMCRA.

I. Any Further Expenditure Of Resources On Implementation

Of Changes In The Stream Buffer Zone Rule Or Excess Spoil Disposal Rules Jeopardizes Both The Rulemakings And The Programmatic EIS

OSM acknowledges that the West Virginia litigation, and the decision of Judge Haden in Bragg v. Robertson, is the impetus for the proposal to make a rule change. OSM admits that it wishes to clarify the SBZ rule in order to facilitate continued disposal of excess spoil in valley fills in the Appalachian coalfields, by avoiding any further "narrow interpretation" that OSM believes might prevent or restrict such practices.

Having thus acknowledged that the proposal to engaging in rulemaking would be directed at facilitating disposal of excess spoil in fills in the Appalachian coalfields, OSM is obligated to withhold any further expenditure of agency funds on the development of the contemplated rule before it finalizes the programmatic EIS addressing that subject.

The agency mischaracterizes the preparation of the programmatic Environmental Impact Statement on mountaintop coal mining and associated valley fills as a "voluntar[y]" agreement, when in reality it was part of a negotiated settlement of disputed claims in a federal lawsuit. The court order approving and requiring implementation of that agreement makes completion of the programmatic EIS an enforceable obligation of the agency. Moreover, irrespective of the allegedly "voluntary" nature of the preparation of the EIS, once OSM embarked on the NEPA process, it became constrained from taking action that would prejudge the outcome or limit the alternatives available at the conclusion of the environmental analysis and public review process.

The Council on Environmental Quality regulations implementing the National Environmental Policy Act of 1969, includes several provisions that prohibit OSM from going forward with this rulemaking effort.

40 CFR 1502.2(f) demands that:

[a]gencies shall not commit resources prejudicing selection

of alternatives before making a final decision (1506.1).

40 CFR 1506.1 further constrains agency action in advance of the issuance of a record of decision on an EIS, providing that:

(a) Until an agency issues a record of decision as provided

in 1505.2 (except as provided in paragraph (c) of this section), no action concerning the proposal shall be taken

which would:

(1) Have an adverse environmental impact; or

(2) Limit the choice of reasonable alternatives.

There is no question but that the proposal to change the stream buffer zone rule in order to eliminate the current language in favor of a rote recitation of the statutory criteria of satisfying BTCA, limits the choice of alternatives for regulation and management of excess spoil that may result from the Programmatic EIS process. There is no serious question but that the proposed change will have an adverse environmental impact as well, since the ostensible purpose is to avoid "narrow interpretations" of the SBZ rule that would preclude disposal of excess spoil in stream reaches.

40 CFR 1506.1(c) does allow an agency to undertake major federal action in the interim before finalization of a programmatic EIS provided that the action is "justified independently of the program," the action "will not prejudice the ultimate decision on the program," and the action" is itself accompanied by an adequate environmental impact statement[.]"

The proposed rewriting of the SBZ rule to eliminate the current obligation to comply with state and federal water quality standards, will in fact prejudge the question of whether SBZ requirements should be maintained, weakened or strengthened in order to protect aquatic resources. The contemplated action is not independently justified: it proposes to eviscerate a rule of national application based on a vacated judicial decision which turned on the specific language of state program regulations at issue.

Finally, OSM proposes to weaken the stream buffer zone rule without first analyzing the matter under NEPA. The changes in the rule will affect not only the disposal of spoil in fills in Appalachia, but also disposal of coal processing wastes, and placement of soil, rock, spoil and other material in embankments for sediment structures across the nation. The proposed changes are not a "clarification" but instead are a new substantive rulemaking for which NEPA compliance is mandated. Both for its premature timing and failure of NEPA compliance with respect to impacts in other regions, the proposal to engage in rulemaking by June, 2003 is patently unlawful. Indeed, the very issuance of the instant rulemaking advisory calls into question whether OSM is considering, in good faith and without prejudice, all reasonable alternatives that might emerge from the final programmatic EIS with respect to regulatory policy.

In order to salvage any remnant of the agency's credibility in this regard, and to avoid further violation of 40 CFR 1505.2 and 40 CFR 1506.1, the proposal to engage in rulemaking on both the excess spoil and stream buffer zone issues should be withdrawn at this time.

2. The stated basis for the rulemaking is an insufficient one

to support such a radical retreat from the current rule.

The purported justification for the proposal to begin rulemaking is an "apparent conflict" between a later-vacated District Court decision interpreting the SBZ rule, and what OSM claims was its true intent in adopting the SBZ.

According to OSM,

The SBZ rule, as interpreted by the Federal District Court (a 1999

decision later vacated on jurisdictional grounds), seems in direct

conflict with OSM's excess spoil rules (and their underlying provision in SMCRA), which expressly authorize the disposal of excess spoil in areas containing springs, natural watercourses and

wet weather seeps so long as underdrains are provided. Therefore, OSM needs to resolve that apparent conflict in a manner consistent

with its underlying statutory authority that the SBZ does not

preclude disposal of excess spoil in areas SMCRA expressly contemplates, while, at the same time, developing excess spoil rules that recognize SMCRA's mandate to minimize, to the extent possible, adverse impacts to fish, wildlife, and related environmental values by minimizing the impact of valley fills on those values.

Later in the "outreach document," OSM explains the basis for the proposed revision of the SBZ rule as seeking to avoid a "narrow interpretation" of the SBZ rule that would "prohibit[] major mining activity – like construction of excess spoil fills – in the SBZ." According to OSM, that "narrow interpretation" accorded the regulation by the District Court "could preclude the regulatory authorities' granting a waiver of SBZ requirements. . . . The District Courts (sic) interpretation could prohibit virtually all mining activities within the SBZ."

In order to fully appreciate the abrupt reversal of agency policy represented by OSM's new proposal for rulemaking, the District Court's analysis, and the posture of OSM and the other federal agencies before that District Court in Bragg v. Robertson must be examined.

OSM claims that the federal District Court decision in Bragg was improperly "narrow" in prohibiting major mining activity in intermittent and perennial streams. Yet before the Fourth Circuit Court of Appeals, attorneys for the Justice Department representing OSM and the other federal agencies represented to the Court that:

[T]he District Court correctly found that SMCRA's stream buffer

zone rule, 30 C.F.R. 816.57, prohibits the burial of substantial

portions of intermittent and perennial streams beneath excess

mining spoil. . . . Accordingly, the district court correctly granted summary judgment on plaintiffs' buffer zone claims. Brief of Federal Appellants at p. 4.

Thus the stated basis of OSM's proposal for rulemaking is fatally inconsistent with the interpretation of the existing regulation that OSM announced to the Court of Appeals just three years ago. No rule of statutory construction requires or even remotely supports the flawed reading of the statute that OSM now trumpets as rulemaking rationale. Read in tandem with the current buffer zone rule, OSM’s rule authorizing approval of fill construction in “areas containing springs, natural watercourses and wet weather seeps” extends only to such areas when they are associated with ephemeral rather than intermittent or perennial streams.

OSM and the other federal agencies repeatedly embraced the District Court decision as correctly interpreting the stream buffer zone rule as (a) applying to the entire stream reach, not merely the segment downstream of the area to be filled; (b) requiring that findings be made by the regulatory authority prior to approving incursions into the SBZ; and (c) "not allow[ing] mining activities, such as valley fills, in intermittent or perennial streams unless there is a finding that the activity will cause no adverse environmental effect in the affected stream segment." Brief of Federal Appellants at 36.

The Outreach Document represents that "OSM never intended the current SBZ regulations to be interpreted [to prohibit mining activities in the SBZ]" and identifies the need to avoid the "narrow interpretation" of the SBZ rule as prohibiting major mining activity – like construction of excess spoil fills – in the SBZ as the impetus for this "clarification".

In reality, OSM and the other Federal Appellants embraced the District Court decision as correctly finding that valley fills cannot be built in intermittent and perennial streams:

Count 3 alleges that the buffer zone rule does not authorize WVDEP to permit the burial of substantial portions of perennial

or intermittent streams. . . . As Bragg acknowledges, the buffer

zone rule "allows minor incursions into intermittent streams

but prohibits valley fills in intermittent and perennial streams

"because such fills bury and destroy substantial portions of

intermittent or perennial streams" . . . While the state and

federal agencies that administer SMCRA ordinarily have a range of

discretion in making the findings required by the buffer zone rule,

the agencies lack discretion to approve mining activities within

stream buffer zones that unquestionably cause adverse environmental effects. Because it is uncontested that the burial of substantial portions of intermittent and perennial

streams causes adverse environmental effects in the filled

segments of the streams, the district court corrected granted summary judgment on Count 3.

Brief of Federal Appellants, p. 43 (Emphasis added).

If OSM now wishes to reverse course and propose a new rule allowing major mining activity within intermittent and perennial streams despite overwhelming evidence of adverse environmental effects, OSM must do so in the full light of day. The agency cannot hide such an abrupt departure from the agency's former interpretation as a mere "clarification." Such an action would amount to major substantive rulemaking for which OSM has, to date, espoused no rational basis.1

3. The proposal for rulemaking would violate SMCRA by

eliminating a requirement that the mining operation comply

with state and federal water quality standards.

The current federal stream buffer zone rule, as amended in 1983, is found at 30 CFR 816 and 817.57, and states in full that:

Hydrologic balance: Stream buffer zones.

(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 or 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 Section 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 Section 816.11.

OSM proposes to amend this SBZ regulation to remove the exemption criteria and replace them with "the requirement that the applicant demonstrate that the mining operation has been designed using the BTCA to minimize adverse impacts to hydrology, fish and wildlife, and related environmental values, and to prevent to the extent possible using BTCA, additional contribution of sediment to stream flow and runoff outside of the permit site." Presumably, if this threshold is met, major mining activity causing adverse environmental effect would be permissible within the stream buffer zone.

The proposal represents a major departure from the current rule, and would violate both SMCRA and the Clean Water Act. Under the current stream buffer zone rule, the operator is required to design the mining activity both to meet technology-based standards and so as to avoid violating water quality standards, as well as avoiding adverse effects on the environmental resources of the stream.

The new proposal would remove the requirement to comply with water quality standards, instead requiring only that "BTCA" be met. The concept of "best technology currently available" is derived from the Clean Water Act, and is one of the bases for setting categorical effluent limitations for various categories of industrial and municipal dischargers. It is not the sole standard for controlling discharges of pollutants, since the application of ambient water quality standards may "trump" the BTCA standards and require more be done to prevent adverse effects on in-stream water quality and biological communities. The current rule recognizes this, and requires that the mine plan be designed to protect water quality, quantity and the environmental resources of the streams:

In determining whether an operator should be granted an

exemption from the buffer-zone requirement, the final rule

requires the regulatory authority to consider whether there

will be an adverse effect on water quality and whether mining

will inhibit the attainment of applicable water-quality standards.

48 Fed. Reg. 30316 (June 30, 1983).

The new proposal, by eliminating reference to attainment of water quality standards, seeks to enable increased incursions into stream buffer zones causing appreciate harm provided that "best technology" is applied to control such impacts. It is a dramatic retreat from a rule that has been in place for 20 years.

The outreach document references Sections 515(b)(10) and (b)(24) as the authority for the existing rule, ignoring that the 1983 rule was authorized also in Sections 102, 201, 501, 503, 504, 506, 507, 508, 510 and 517 of the Act. 48 Fed. Reg. 30312 (June 30, 1983). OSM, even in the height of the first Reagan Administration, retained and embraced the stream buffer zone rule in order to protect streams from sediment pollution and to protect fish and biological habitats. Id. The replacement of the prior test of requiring the 100-foot buffer from streams with a biological community, was grounded not on an intent to depart from protection of those in-stream resources, but instead on the difficulty in practical application of the prior rule. 48 Fed. Reg. 30313 (June 30, 1983).

The current standard of protecting in-stream water quality and quantity and meeting applicable state or federal water quality standards is an essential regulation for achieving SMCRA’s mandate to conduct surface coal mining operations in a manner that prevents material damage to the hydrologic balance outside the permit area.

The current regulation provides an enforceable, replicable standard against which the adequacy of a mining and reclamation plan can be measured. It requires that the mining applicant design the operation not to accommodate the use of larger equipment for expediency, but instead that the choice of technology and the mining plan accommodate the need to protect the resource. Elimination of reference to the water quality standards in favor of a "BTCA" standard will weaken in-stream protection, and create potential conflict between SMCRA and the Clean Water Act, by authorizing in-stream activities based solely on technological considerations without consideration of ambient resource and quality protection.

For these reasons, the commenters urge the agency to terminate further rulemaking preparation activity on stream buffer zones and excess spoil. The stream buffer zone rule is a rule of national application, and yet it appears that the rule is to be dramatically altered without proper environmental analysis of the nationwide impacts of the change.

4. Better Oversight, Not New Rules, Are Needed Concerning

Management and Disposal of Excess Spoil

The agency is correct in one observation, which is that little attention has been paid by the regulatory authorities to minimizing the volume of excess spoil disposed of off-site, and to minimizing the size and impact of valley and head-of-hollow fills. Existing regulations, properly enforced and administered, require maximization of replacement of spoil material on the mined area, and minimization of the footprint of excess spoil fills. What is needed is better oversight of the implementation of these provisions in order to effectuate Congressional intent.

What has been lost over the past twenty years of implementation of SMCRA is the understanding that Congress disfavored disposal of spoil in valley fills, expressing concern with the long-term stability of such structures, and created the requirement to restore the mined area to its approximate original contour in order to require retention of the material on the mined area rather than disposal in valley fills.

With respect to mountaintop operations, Congress spoke specifically to the appropriate standard for determining when spoil is “excess” and is appropriate for off-site disposal in a fill or on a previously mined bench area:

Mountaintop mining is that type of steep slope operation

which removes the entire upper strata of the mountain on which the operation is being conducted. This type of mining approach has been increasing in popularity over the past several years as the economics of mining have changed allowing greater or larger stripping ratios[]. Mountaintop mining also produces a massive amount of spoil to be handled and stabilized in a very difficult environment of steep slopes and high rainfall. Some

approaches have been developed which keep virtually all of the spoil on he mountaintop and most recently have been described in the December1976, issue of Coal Age. Retention of spoil on the mountaintop bench has advantages over placement of such spoil in valleys and hollows.However, such placement off the mountaintop does offer the possibility of improved land uses through the creation of significantly expanded areas of flat land. H.R. 2 provides some specific standards with respect to the disposal of surplus spoil off the mine bench . . .

H.R. Rept. No. 95-218, supra at 101. (Emphasis added).

The House Committee discussion is instructive both in expressing a clear Congressional preference for on-bench retention of spoil rather than off-site disposal in fills, and also that creation of such fills as a disposal method would be appropriate in cases where an AOC variance was granted and mountaintop removal permitted under Section 515(c)(2) only where the material was “surplus” or the fill would be used to expand available land for the identified post mining land use. Off-site disposal of spoil material was intended only where “surplus” to the planned post-mining land use.

What is missing in the implementation of the law is that permittees are not held to any rigorous standard for spoil management on or off the minesite other than demonstrating stability of the final configuration.

1. With respect to spoil disposal in mountaintop mining operations, the permittees are not being required to demonstrate that the filled area is necessary to support the post-mining landform configuration needed for the specified use. Off-site disposal of spoil material has become routine rather than the exception to the rule of on-bench retention of spoil. Few fills associated with either contour or mountaintop removal operations are either intended or configured to provide a stable surface at the top elevation of the reclaimed landscape in order to augment land available for and necessary for the post mining land use. Instead, it is the convenience of the permittee and the elevation of the coal seam rather than the post-mining land use that dictates the land elevation and configuration, and all spoil lying above the coal seam is deemed potentially “excess” except that needed to meet revegetation standards. The intent of Congress that mountaintop removal mining only occur in the context of a well-planned post mining land use of industrial, commercial, agricultural, residential or public facility use, and that the post-mining land use design and needs would determine the landform as part of an integrated plan that was compatible and consistent with adjacent land uses and assured of commitments to completion, is mocked.

2. The failure of OSM to require that the state regulatory authorities enforce the AOC requirement as both a contour and an elevation requirement also results in a failure to maximize replacement of spoil on the mined area. The final configuration of the mine plan should be held to the standard of maximizing replacement of spoil on the mined area up to the limits of safety.

3. The failure of the regulatory agencies to require operators to minimize the size, stream impacts and number of fills has resulted in extensive and unnecessary damage.

In order to avoid the necessity of revising permits, mine engineers routinely overstate the amount of spoil to be generated and oversize the design of fills needed to support the disposal of excess material. Utilizing side or "wing" dumping for underdrain and fill material placement, rather than construction of compacted-lift fills, the linear amount of instream disturbance is often far greater than necessary and the final configuration of the fills smaller and lower in the watershed than necessary.

The solutions to the current situation are within the existing authority of the regulatory agencies. Unfortunately, OSM's oversight policy has prevented effective oversight of the critical role of permitting and mine planning in minimizing damage from spoil disposal. Now that the uncontroverted evidence reflects clearly the bitter harvest of poor mine planning and design for convenience rather than environmental protection, OSM must hold state regulatory agencies accountable in the management and disposal of spoil.

Regulatory authorities:

a. must hold applicants to more realistic calculations of excess spoil, prohibit side- or wing-dumping, and require that material be hauled or conveyed in a manner that results in more compact fill designs. Sediment structures should be required to be as close to the toe of the fill as possible rather than at the stream mouth, as has become common practice.

b. fill compaction, configuration and design, such as side valley fills, can significantly minimize the size and number of fills, and minimize the impact of fills on streams.

c. clear guidance on restoration of contour elevation as an integral component of AOC for all operations, should be issued.

Conclusion

The proposal to eliminate consideration of attainment of water quality standards and protection of instream water quality and quantity, in favor of a purely technology-based standard, is a substantial retreat from the current law and threatens to undercut the momentum towards reducing the impact of mining on headwater streams that resulted from the West Virginia litigation.

OSM proposes to reduce the standard for protection of streams to a purely technology-based test, violating the central principle of SMCRA – that environmental protection would not be dictated by the trend towards bigger machinery in order to maximize profits for the coal industry, but rather that the choice of mining methods and technology must accommodate the purposes of the mining law.

Congress spoke clearly in 1977, yet that guiding principle seems to have been forgotten by the agency:

A basic tenet underlying this legislation is the principle that the

environmental protection and reclamation, at a minimum meeting the standards of 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.

House Rept. No. 95-218, supra, at 97. (Emphasis added).

The goals of the mining law with respect to “assur[ing] that the rights of surface landowners . . . are fully protected” and that “surface coal mining operations are so conducted as to protect the environment” and that reclamation is conducted “as contemporaneously as possible” must be upheld in the conduct of all mining operations. Weakening stream buffer zone rules by replacing the obligation to protect instream water quality with a "best technology" standard, in an effort to accommodate more fills in streams, fails to comport with Congressional intent that the choice of technology should follow, and not dictate, the level of environmental protection.

Respectfully submitted,

Vivian Stockman

Diane Bady

Ohio Valley Environmental Coalition (OH, WV, KY)

Carolyn Johnson, Coordinator

Citizens Coal Council (National)

Beverly Braverman

Mountain Watershed Association (PA)

Jeanne Charter, Secretary

Bull Mountain Land Alliance (MT)

Tom FitzGerald

Kentucky Resources Council, Inc. (KY)

1 Additionally, as to the alleged conflict between OSM's excess spoil rules and the District Court interpretation of the stream buffer zone rule, the Federal Appellants in Bragg explained that the two regulations were harmonized under the District court's interpretation, thus removing any "need" to clarify or modify either rule in order to restore consistency.

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