KRC has reviewed the proposed rules and draft Environmental Impact Statement, and urges OSMRE to withdraw the proposed rule as being inconsistent with the requirements and goals of the 1977 law.
Under the banner of needing to “end the ambiguity in interpretation of the stream buffer zone rules and to ensure that regulatory authorities, mine operators, other governmental entities, landowners, and citizens all can have a common understanding of what the stream buffer zone rules do and do not require,” OSM proposes to categorically exempt from the stream buffer zone protections, all significant mine-related activities that are likely to be located in or near headwater streams – paving the path to mining through streams, placing bridge abutments, culverts and other structures in or near streams, construction of sediment ponds in streams, and construction of excess spoil fills and coal mine waste impoundments in streams.
In place of the existing buffer zone protections, which limit all mine-related activities within 100 feet of perennial and intermittent streams to those instances where the activities will not cause or contribute to the violation of applicable state of federal water quality standards and will not adversely affect water quantity, quality to other environmental resources of the stream, OSM instead proposes to impose a “lite” version of the minimization and avoidance requirements of the Corps of Engineers 404(b)(1) guidelines, creating significant loopholes that will allow coal mine operations to continue to utilize public waters for waste disposal.
KRC believes that any “ambiguity” in interpretation and application of the stream buffer zone for protection of intermittent and perennial streams can be resolved without gutting the rules as OSMRE has proposed. The ambiguity could have been resolved by enforcing the existing rules fully and fairly among the individual states, clarifying that the buffer extends throughout the reach of the stream or waterbody and requires a demonstration that the water quality standards and biological integrity of the waterbodies would be protected.
KRC will submit more detailed comments concerning the areas in which the proposal fails to fulfill the goals and purposes of the 1977 law. To summarize our concerns this evening, the proposed rule falls short of the mark:
* First, by failing to recognize and to remedy the failure of state regulatory authorities to implement and administer the key performance standards for spoil management.
OSMRE prefaces the proposed rule with a discussion intended to underscore the supposed necessity of construction of excess spoil fills in waters of the United States. Yet while it is accurate that excavation associated with surface coal mining and facing up underground coal mines generate a volume of spoil material in excess of that initially present due to material swell, and in some cases in excess of that necessary to return the mined area to the approximate original contour, the harsh truth is that due to lax enforcement of the law by OSM and the states, the intent of Congress that AOC restoration be the rule and variances the exception has been subverted. Where the law clearly contemplates that the approximate contour of land be restored both in elevation and configuration, OSM has allowed the states to ignore the elevation requirement, so that significant amounts of spoil material are being wing- and end-dumped off-site into valley fills that should have been replaced on the mined area.
OSMRE acknowledged, in a series of studies conducted in 1999 evaluating approximate original contour variances and postmining land uses in Kentucky, Virginia and West Virginia, that the permit applications overestimated the anticipated volume of excess spoil that would be produced and that fills were designed and constructed larger than necessary to accommodate the anticipated spoil. Ironically, to the observer, the sites theoretically returned to AOC and those for which a variance has been granted are in many cases indistinguishable due to the failure to enforce elevation requirements associated with AOC restoration.
Proper spoil management begins with proper mine planning focused on restoration of the mined area, not excessive dumping of material into fills in order to facilitate easy movement of large machines on the mine benches. The proposed requirement to consider alternative fill configurations misses the point that the failure to properly enforce AOC requirements results in generation of significant volumes of spoil to be managed that should have been returned to the mined area. The agency should repudiate its unlawful interpretation of AOC as excluding an elevation component in addition to aspect, in order to give meaning to the concept of returning spoil to the mined area to the extent possible.
* Second, the rule differentiates between those activities subject to the buffer zone and those exempted based on the supposition that certain activities “inherently” require placement of excess spoil or waste in waters of the United States. The rule assumes without basis that construction of sediment ponds and construction of excess spoil fills and disposal of coal mine waste must inherently occur in waters of the United States, when the truth is that alternatives for spoil and waste management that would entirely avoid placement of such material in waters of the United States, or would greatly reduce the impact of such disposal, do exist, yet the agency has (and will continue to under these rules) failed to require mine planning and engineering to achieve the minimization of aquatic impacts intended by Congress.
For example, for coal wastes generated through processing of the coal, dry filter press technologies, pneumatic and hydraulic backstowing into properly isolated mine voids, and use of incised ponds rather than embankment structures, have been used in the industry and could easily be implemented as alternatives but are not due to the ease with which coal waste impoundments can be approved and the incremental cost increases of additional handling and processing of the wastes.
For spoil disposal, thousands of miles of unreclaimed mine benches exist in the Appalachian coalfields that could be utilized for disposal of excess spoil, thus avoiding the necessity of any adverse effect on waters of the United States. Yet the newly-crafted requirement in proposed 780.35 and 784.19 to demonstrate minimization speaks only to minimizing the excess spoil that will be generated, and the analysis of alternatives does not require consideration of alternatives that would avoid waters of the United States such as upland disposal, side-valley fills, placement on previously-mined areas, and other non-fill disposal methods. While attempting to incorporate a “lite” version of the 404(b)(1) guidelines, OSMRE misses the concept of avoidance and too-narrowly interprets the idea of minimization.
For spoil disposal, OSMRE also fails to acknowledge the role that it has played in the creation of fills that are larger and more numerous than required to properly dispose of excess spoil. Where Congress clearly intended that spoil placed in fills be transported and placed in a controlled manner and concurrently compacted, OSMRE has enabled and facilitated the destruction of headwater streams by allowing end- and side-dumped fills. In order to accommodate larger equipment and area-mine type plans for the eastern Appalachian coalfields, OSMRE departed from the historic requirement that spoil be hauled and placed in compacted fills, instead approving so-called durable rock fills where spoil material is dumped from the mine bench, resulting in fills that are located lower in the watersheds and are larger in stream area displaced than could be accomplished by compacted, constructed fills. If OSM is serious about wanting to minimize the footprint of excess spoil fills on headwater streams, then revisit and eliminate the durable rock fill rule and require, as Congress intended, that any fills be controlled, concurrently compacted, constructed fills.
For sediment controls, the use of bench structures, off-stream sediment ponds, and other controls on the movement and transport of soils from disturbed areas, as well as mine plan and design intended to minimize the amount of disturbed area and to effect contemporaneous stabilization and reclamation of disturbed areas, can minimize or avoid use of instream ponds. Yet the agency has historically failed to require that the permit applicant demonstrate that in-stream sediment ponds are necessary or unavoidable in order to meet applicable water quality and effluent limitations, and that sediment controls with less impact on headwater streams are infeasible.
Third, the proposed capacity demonstration requiring that the permit applicant match the total volume of proposed fills to proposed spoil generation, fails to address the root problem with fill design. 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 fill design needed to support the disposal of excess material. Requiring the matching of projected spoil volume and fill capacity doesn’t address the real problems, which are unrealistic and intentionally overstated spoil generation assumptions.
Fourth, the replacement of intermittent and perennial stream protections with “waters of the United States” requires a case-by-case delineation of streams and wetlands, yet the agency merely recommends rather than demanding that a delineation of the jurisdictional reach of the Clean Water Act be made in each circumstance by the Corps of Engineers.
In closing, the proposed rule has the effect of accommodating the continued appropriation of public waters by coal mining operations for instream sediment ponds, coal waste dams and excess spoil fills by:
(1) eliminating the requirement that such impacts be avoided and a buffer zone be maintained unless state and federal water quality standards can be met and protection of biological resources instream assured; and
(2) insulating those mining operations from challenges to the use of Nationwide Permit 21, by incorporating into OSMRE’s permitting process a weakened version of the stepwise avoidance – minimization – mitigation sequencing required by the Section 404(b)(1) guidelines.
OSMRE should withdraw the proposal and instead focus its efforts on:
* proper implementation of spoil management requirements, including restoration of approximate original contours for mined areas;
* demanding more realistic calculations of excess spoil,
* prohibiting end- side- or wing-dumping of spoil, and requiring instead that material be hauled or conveyed in a manner that results in fills that are configured, designed and located to minimize the size and number of fills, and minimize their impact on streams;
* requiring that sediment structures be located off-stream or as close to the toe of any fill as possible rather than at the stream mouth, as has become common practice, and require that all diversion channels and other conveyances of stormwater be under permit;
* requiring that state programs conform their counterpart stream buffer zone regulations to assure that the buffer zone requirements attach throughout the stream reach rather than merely below the toe of any proposed fills, as Kentucky’s rule provides.
* requiring a true alternatives analysis with emphasis on avoidance of impacts through better mine planning prior to approval of any instream disturbance, comparable in scope for any instream activity to that required by the 404(b)(1) guidelines.