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

Citizens Coal Council and KRC Oppose Weakening of Stream Buffer Zone Rules  Posted: April 8, 2004

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

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

e-mail fitzKRC@aol.com

April 7, 2004

Office of Surface Mining

Administrative record

Room 101

1951 Constitution Avenue NW

Washington DC 20240

By e-mail: dhartos@osmre.gov and osmrules@osmre.gov

Re: Proposed Rule: Excess Spoil / Stream Buffer Zone

69 Fed. Reg. 1036 (January 7, 2004)

To Whom It May Concern:

These comments are submitted on behalf of the National Citizens’ Coal Law Project, a project of the Kentucky Resources Council, Inc. (KRC), regarding proposed rulemaking to revise the existing regulations concerning disposal of excess spoil, diversions and stream buffer zones. These comments are submitted in response to the publication of a notice on January 7, 2004, requesting comment, (69 Fed. Reg. 1036); as extended until 5 p.m. today by further publication on February 26, 2004. 69 Fed. Reg. 8899 (February 26, 2004). By e-mail dated April 6, 2004, David Hartos, on behalf of OSMRE, rejected a request by KRC for further extension of the comment period beyond April 7.

These comments are also submitted by Citizens Coal Council on behalf of its membership. Citizens Coal Council is a national federation of 48 grassroots groups dedicated to protecting their homes, water, communities and environment from coal mining damage and to winning social and environmental justice in the coal fields.

Citizens Coal Council members live in 21 coal-producing states and the Navajo Nation.

To the extent that the proposed regulatory revisions would weaken protections that

Congress intended to afford the public and the environment under SMCRA, would undercut state law requirements which exceed federal requirements by lowering the bar on protection of streams from incursions into the stream buffer zone, and would violate other provisions of SMCRA, the Administrative Procedure Act, the National Environmental Policy Act or other applicable law, Citizens Coal Council and its membership would be aggrieved by their promulgation in a final rulemaking.

Kentucky Resources Council, Inc., is a non-profit environmental advocacy organization whose membership includes numerous individuals and organizations across the Commonwealth of Kentucky sharing a common interest and concern for environmental responsibility, and conservation of natural resources. Council members include individuals who reside, work, live or recreate in areas affected by surface coal mining operations, and who have been adversely affected and aggrieved within the meaning of the law, by the failure of mining operators to properly manage spoil material in order to minimize damage to waters of the United States and to properly reclaim surface and underground mining operations. As with Citizens Coal Council, to the extent that the proposed regulatory revisions would weaken protections that Congress intended to afford the public and the environment under SMCRA, would undercut state law requirements which exceed federal requirements by lowering the bar on protection of streams from incursions into the stream buffer zone, and would violate other provisions of SMCRA, the Administrative Procedure Act, the National Environmental Policy Act or other applicable law, the Kentucky Resources Council, Inc., and its membership would be aggrieved by their promulgation in a final rulemaking.

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 Citizens Coal Council, and Kentucky Resources Council, Inc.

Summary

On January 7, 2004, OSM announced the proposal to revise the stream buffer zone rules with the representation that the rules would “increase environmental protection in the construction of excess spoil fill” and to reduce the “confusion” that OSM claims has afflicted energy producers, regulators and the public.

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 proposed action, occurring without proper compliance with the environmental documentation requirements of the National Environmental Policy Act, constitutes a prejudicial commitment of resources in advance of proper analysis of the alternatives to the proposed action and the environmental consequences of each alternative.

* 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.

The comment period on the DEIS, subsequently extended, closed on January 21, 2004.

14 days before the end of the comment period, and long before the agency has reviewed the comments, undertaken any additional analysis deemed necessary to respond to the comments, and developed a final EIS and Record of Decision, the agency, in its haste to enable the coal industry to continue historic practices unimpeded by proper application of existing laws, proposed these rules 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. Before addressing the inconsistency of the proposal with the organic statute, however, it is clear that the timing and gravamen of the proposed rule (and before it, the pre-proposed “outreach document”) violate the restrictions placed on federal agencies under the National Environmental Policy Act. For this reason, the agency is requested to withdraw the proposed rule, and this letter constitutes a formal demand to do so. Absent agency action withdrawing the rule, the undersigned reserve the right without further notice to maintain action under NEPA to restrain further action to finalize or implement this rule.

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

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.

OSM has acknowledged 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 stream buffer zone (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 finalization of the proposed rule before it finalizes the programmatic EIS addressing that subject.

The agency’s attempt to justify moving forward with this rulemaking despite the pendency of the DEIS has, like its substantive defense of the gutting of the stream buffer zone rule, rested on a foundation of shifting sands. In the outreach document, the agency attempted to minimize the significance of the pending EIS by mischaracterizing 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 agency, in the proposed rule, attempts a second tack at defending this obvious and offensive effort to defend the destruction of headwater Appalachian streams. In the footnote on p. 1038 of the proposed rule, OSM quotes Paragraph 21 of the Bragg Settlement Agreement as protecting the ability of the agency to “promulgate superseding regulations.”

Accepting at face value the assertion that the Settlement Agreement did not bar adoption of revised stream buffer zone regulations, it certainly did not excuse NEPA compliance. The proposed rule is either a component of the larger issue of management of spoil and protection of streams from mining impacts, in which case further action must be deferred until the rule can be repromulgated after completion of the EIS on mountaintop removal and spoil fills, or it is a stand-alone issue for which an EIS should be prepared prior to finalization of the rule. To the extent that the agency has not begun the EIS process on this proposed rule, including in that assessment the full range of reasonable alternatives for management of spoil and processing wastes generated by mining operations, and the effects of each alternative, the agency is courting further litigation since the NEPA process must inform and guide the final agency rulemaking action.

As to the first analytical proposition, if the change in the stream buffer zone rule change is viewed as being (as is acknowledged by the agency) driven by and intertwined with the other issues under assessment in the pending EIS, then the agency risks litigation over the failure to defer implementation of an alternative pending completion of environmental assessment of the alternatives. 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 requiring protection of water quality in favor of a rote recitation of the statutory criteria of satisfying best technology currently available (BTCA), and the reinstatement of the 100-foot language allowing the regulatory authority to ignore direct water quality and habitat impacts for areas affected by and 99-feet below mining areas, 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, meaning that the intent is to enlarge and facilitate the disposal of spoil in such areas.

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, has no independent justification outside of the scope of the comprehensive EIS, which is assessing various regulatory policy options relative to excess spoil placement. The SBZ rule 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. For those stream reaches filled and damaged in the interim, the prejudice is obvious and irretrievable.

Alternatively viewed, if OSM’s rush to weaken the stream buffer zone rule prior to and apart from the comprehensive EIS on mountaintop mining and excess spoil disposal is viewed as a separate rulemaking activity, it must be accompanied by separate and sufficient documentation under NEPA. The changes in the rule are broad and significant in their scope, since the gutting of the stream buffer zone 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 proposed rule is patently unlawful. Indeed, the very issuance of the instant rulemaking casts a long shadow over the entire comprehensive EIS, calling 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 proposed 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 outreach document which forms part of the administrative record of this rulemaking,

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

The rulemaking fails to provide a reasoned basis for rejecting the representations of the agency before the federal court and to the states concerning the protections afforded by the stream buffer rule and the necessity to consider the effect of mining and spoil disposal activities on the entire stream reach and all portions of the stream. Neither does the rulemaking record provide a basis for reinstating the 100-foot provision, removed in 1983, that allows a regulatory authority to ignore the impact of additional contributions of suspended solids within the stream section directly affected by the mining activities and for 99 feet below that activity.

Expediency is not a reasoned basis for reversing long-standing agency policy that numerical and water quality standards under the Clean Water Act apply throughout streams and must be evaluated in the management of spoil and placement of wastes.

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 a requirement that the operator

* prevent additional contributions of suspended solids to the stream section within 100 feet downstream of the surface mining activities, and outside of the area affected by surface mining activities; and

* minimize disturbances and adverse impacts on fish, wildlife, and other related environmental values of the stream.

These obligations are further tempered by limiting the responsibility with respect both to suspended solids and minimization of disturbances and adverse impacts, to the “extent possible, using the best technology currently available.”

The proposal represents a major departure from the current rule, and violates both the Clean Water Act and SMCRA in numerous aspects:

a. The proposed rule eviscerates the applicability of Section 401 of the Clean Water Act and allows activities that will cause water quality standards violations, in contravention of SMCRA. SMCRA was intended to complement existing Clean Water Act obligations and to overlay on such obligations a permitting, performance standard and mandatory enforcement framework to give meaning to the requirements to apply both technology-based categorical effluent limitations and water quality standards. The concept of "best technology currently available" is derived from the Clean Water Act, and is but 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 where application of categorical standards is insufficient to prevent adverse effects on in-stream water quality and biological communities, including habitat. 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 proposal referenced 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.

b. The proposed rule is irrational and unworkable.

The agency proposes to replace a requirement that the operator minimize damage to the hydrologic balance and minimize additional of suspended solids on and off the minesite, with a provision requiring only that the additional contribution of suspended solids be minimized to the extent BTCA allows, “within 100 feet downstream of the surface mining activities, and outside of the area affected by surface mining activities[.]”

The rule creates considerable confusion and ambiguity, including these concerns:

* Does the phrase “within 100 feet downstream of the surface mining activities” mean that the permittee must prevent additional suspended solids contributions within the first 100 feet beyond the boundary of the surface mining activities? Or is the intent to require only that the permittee demonstrate minimization of the suspended solids within the area downstream beyond 100 feet from the area defined as “surface mining activities.”

There is no basis provided in the record for the 100-foot distance, particularly if the 100 foot zone is intended as a categorical 100-foot sacrifice zone in which suspended solids need not be managed.

* Why is the subset of surface coal mining and reclamation operations defined as “surface mining activities” rather than the broader term covering all disturbances, utilized?

* How is the “area affected by surface mining activities” to be defined? Is it intended to encompass all streams receiving drainage from mined areas? As written, it could be argued that so long as there is a discernable effect (pH change, elevated iron, manganese, change in habitat, flow, temperature, or other alteration resulting from mining) in the stream, then proposed (1) would not apply, since it is limited to areas “outside of the area affected by surface mining activities.” The proposal, by reinserting arbitrary distance provisions, removing water quality protections, and leaving undefined the key phrases employed, create a morass of phrases that leave no clear guidance to the applicant as to whether and where solids contributions must be controlled and minimized.

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 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,

Carolyn Johnson, Coordinator

Citizens Coal Council (National)

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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