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

KRC Comments on OSMRE Oversight Improvement Initiative  Posted: January 20, 2010

January 19, 2010

Joseph Pizarchik, Director
Office of Surface Mining Reclamation
and Enforcement
1951 Constitution Avenue NW
Washington, D.C.
Oversight@osmre.gov

Dear Director:

These comments are submitted on behalf of the Kentucky Resources Council, Inc., a nonprofit environmental advocacy organization providing legal and technical assistance to low-income individuals, community organizations, and local governments concerning air, waste, water, mineral development and utility policy issues.

Since 1984, KRC has represented individuals, community groups and local governments regarding a host of mining-related issues.

Introduction

On behalf of the Council membership and the thousands of coalfield citizens that KRC has had the privilege to represent in the past 25 years, I extend our sincere appreciation for the Oversight Initiatives.

The Obama Administration has an historic opportunity to reverse years of efforts by successive hostile Administrations to dismantle the regulatory framework established during the period of 1977-1981, and to fully and fairly implement the 1977 law in a manner more consonant with the intent of Congress.

After a brief period during which the federal law and developing regulatory program were fully implementing Congress’ goals, substantive and procedural regulatory policy choices were made commencing in 1981 which severely compromised both the protections intended to be afforded to the citizens of the coalfields, their property, their water supplies, and the environment, and which hamstrung the agency’s ability to effectively oversee the implementation of the individual state and tribal programs in order to prevent the states from devolving again into a regulatory “race to the bottom”. While there remain a core of inspectors, field office Directors, and other agency personnel who recall the period of 1977 – 1981, it is instructive to reflect on the relationship contemplated by Congress among the states, the Office of Surface Mining Reclamation and Enforcement, and the citizenry of the coalfields.

There is little doubt that Congress understood the necessity for continued federal oversight of state-delegated programs.

In describing the major provisions of the 1977 Senate bill, the Committee on Energy and Natural Resources noted, and italicized for emphasis, this passage:

"The Committee firmly believes that there is no adequate substitute for the Secretary’s oversight role, because of the wide variation in the ability of existing State regulatory authorities to enforce compliance with the interim environmental protection performance standards."

H.R. 95-218, 95th Cong. 1st Sess. At 57.

So too, the Congress understood that once state programs were approved, the continuing oversight by the OSMRE was pivotal to assuring that historic patterns of nonenforcement of state laws and regulations did not persist:

"Efficient enforcement is central to the success for the surface mining control program contemplated by H.R. 2. For a number of predictable reasons – including insufficient funding and the tendency for State agencies to be protective of local industry – State enforcement has in the past, often fallen short of the vigor necessary to assure adequate protection of the environment. The committee believes, however, that the implementation of minimal (sic) Federal standards, the availability of Federal funds, and the assistance of the expertise of the Office of Surface Mining Reclamation and Enforcement in the Department of Interior, will combine to greatly increase the effectiveness of State enforcement programs operating under the Act. While it is confident that the delegation of primary regulatory authority to the States will result in adequate State enforcement, the committee is also of the belief that a limited Federal oversight role as well as increased opportunity for citizens to participate in the enforcement program are necessary to assure that the old patterns of minimal enforcement are not repeated.

Once State programs or Federal programs replace the interim regulatory procedure, section 517 requires that Federal inspections must be made for purposes of …assisting or evaluating the development, administration, or enforcement of any State program."


H.R.Rept. 95-218, 95th Cong., 1st Sess. 129.

Finally, with respect to the role contemplated by Congress for citizens, both the House and Senate Committees had this to say:

"The success or failure of a national coal surface mining regulation program will depend, to a significant extent, on the role played by citizens in the regulatory process. The State or Department of Interior can employ only so many inspectors, only a limited number of inspections can be made on a regular basis and only a limited amount of information can be required in a permit or bond release application or elicited at a hearing. . . . While citizen participation is not, and cannot be, a substitute for governmental authority, citizen involvement in all phases of the regulatory scheme will help insure that the decisions and actions of the regulatory authority are grounded upon full and complete information. In addition, providing citizens access to administrative appellate procedures and the courts is a practical and legitimate method of assuring the regulatory authority’s compliance with the requirements of the Act."

H.R. Rept. No. 95-218, 95th Cong., 1st Sess., 89.

Against the backdrop of Congress’ intent that rigorous oversight of approved state programs was warranted, that citizen involvement in all phases of program implementation would be a significant determinant of the success or failure of the Act and should be encouraged, and that effective enforcement by the state regulatory authorities, and in lieu thereof, by the Secretary, KRC comments on the specific planks of the oversight initiative proposed by your agency.

Specific comments follow, referenced by subject area as organized in the OSMRE web document “Making Oversight More Effective – Oversight Improvement Actions.”

Immediate Actions

KRC appreciates the identification of performance bond calculations and AOC as priorities for national review in FY 2010. KRC hopes that in addition to national review areas, program implementation areas that are significant regionally will be evaluated.

Bonding

With respect to bonding, significant problems have arisen among the state in situations where performance bonds are forfeited, and are insufficient to assure completion of the reclamation plan by a third-party. It is rare that reclamation plans are completed – instead the regulatory authority is lucky to have the funds to “make it green and make it stay,” let alone completely eliminate highwalls and assure implementation of a higher and better post mining land use. The process for calculating performance bonds should be revised in order to assure that the bond amount is calculated based on the point of maximum exposure and greatest vulnerability of the public to the possibility of non-performance of reclamation obligations by a mine permittee, rather than on a per-acre basis that fails to appreciate and contemplate the default by a permittee at a point of greatest cost in handling of spoil material.

Alternative bonding systems, in which bond “pools” are utilized to fund some or all of the permittee’s responsibility for reclamation, have significant funding problems in a number of states. A thorough audit of the liabilities and risks associated with state alternative bonding systems approved under Section 509(c) of the Act should be undertaken, and appropriate action taken by OSMRE to assure that those systems are funded adequately, or that individual bonds are required under the approved state programs.

In North Dakota, there is an apparently systemic problem of mining companies not applying for final bond release on mined lands with any type of post-mining agricultural use designation. The reasons for this are several: the loss of the shallow aquifer system to mining makes impossible the demonstration that the hydrologic balance has been restored; the manner of calculation of the bonds and application of bonds to mined areas leaves little incentive to seek final release, since the bond “rolls” from one area to another in the permit resulting in de facto bond releases; and because in many cases, a demonstration of achievement of agricultural productivity would be impossible.

In all states, the regulatory authorities should be required to process bonded areas through either to bond release or forfeiture within an appropriate timeframe, in order to effectuate Congress’ intent that mining would be a temporary use of land.

Approximate Original Contour

The choice of the second national priority for review, approximate original contour, is likewise significant for the states with mining activity in the Appalachian coal fields; but less so for Illinois Basin states (where longwall mining, indiscriminate coal ash co-disposal, prime farmland destruction, subsidence and water loss are more significant concerns) and in the western coal fields, where destruction of aquifers and failure to assure water resource restoration prior to bond release, are more significant concerns). In future years, KRC recommends that OSMRE develop a robust program to identify and address regional priorities for annual review. These priorities will likely be very different in each region of the country.

In conducting the national review on AOC, the agency should begin by rescinding and repudiating the interpretive policy that allowed states to ignore the elevation component of AOC. Restoration of the elevation component of AOC will greatly reduce instream impacts from dumping of mine spoil that should instead be retained on the mine bench.

When Congress enacted the federal Surface Mining Control and Reclamation Act of 1977, it was concerned with the damage done from the dumping of earth and rock from mining benches into headwater streams in Appalachia. It specifically understood that mountaintop removal operations and the dumping of spoil into headwater streams were significant environmental concerns. In language that could have been written yesterday, in viewing the damage from “area” mines in the Appalachian region, Congress noted that

"In recent years, some mountaintop removal operations have caused serious environmental problems in the Appalachian area. The key cause
of these problems has been the “valley” fill or “head-of-hollow” fill techniques utilized to dispose of excess spoil material. . . . in areas that have previously been contour mined, it is quite feasible to keep all of the excess spoil on the mountaintop."

H.R.Rept. 95-218, 95th Cong, 1st Sess. 77.

In order to minimize the damage to land and water resources, and to restore the mined land to productive capability, Congress demanded that the earth and rock (called "spoil") be replaced on the mine bench and that the original contour of the mountain be restored.

An exception to this requirement to restore the approximate original contour was created, allowing the removal of all earth and rock material from over a coal seam (called "mountaintop removal") without having to restore the original contour if specific plans and commitments were demonstrated for development of the land for industrial, commercial, residential, agricultural or public use.

Yet because state agencies, with the tacit approval of OSMRE, allowed off-loading of significant volumes of spoil and granted bond releases without consideration of elevation restoration, mining operators avoided the rigors of a MTR variance by claiming that they would restore to AOC. Most of the mining operations that are today viewed as mountaintop removal are not technically categorized as such – they are mine plans that use a combination of point removal, area mining and deep contour cuts, and produce similar ecological consequences without the promise of beneficial post-mining uses of real value to the community and environment.

Where the law contemplated that the approximate contour of land be restored both in elevation and configuration, an interpretive policy adopted by OSMRE has allowed state agencies to ignore the elevation requirement, and allowed significant amounts of spoil material to be disposed of in valley fills that should have been replaced on the mined area.

In a 2000 report assessing those sites that had claimed an AOC variance and those that had claimed to have achieved AOC, the Lexington field office of the OSMRE could distinguish one from another.

Where the industry norm was once the hauling and placement of spoil material in compacted fills, spoil material is now routinely disposed of in end or wing-dumped durable rock fills that are located lower in the watershed and are larger in area displaced than needed. These “durable rock” fills are among the largest man-made structures and are created with little knowledge of the long-term stability of the structures.

While some may consider the upper reaches of these stream systems as “dry ditches” the filling of which is without ecological consequence, those with greater understanding of stream biology recognize that these ephemeral and intermittent stream reaches play a critical role in stream system health, providing valuable ecological goods and services (Meyer & Wallace 2001) including the provision of hydrologic retention capacity (the loss of which increases frequency and intensity of downstream flooding and lower base flows); (Dunne & Leopold 1978); retaining sediments, (the loss of which leads to excess sediment transport downstream) (Waters 1995); providing for physical and biological processing of inputs of organic matter from the watershed, that when processed are important food resources for ecosystems downstream, (and the elimination of which can result in reduced inputs of fine particulate food resources for downstream ecosystems, and increased downstream transport of unprocessed nutrients with adverse results on biota and water quality); and providing unique habitats for aquatic biota, (the elimination of which from the landscape increases the vulnerability for extinction of aquatic invertebrate, amphibian, and fish species) (Morse et al 1993).

In 1977, Congress made a clear choice – that the choice of technology would follow, rather than dictate, environmental protection. Rather than utilizing smaller equipment more appropriate to the terrain and to careful management of materials, the industry has systematically replaced the workforce with larger machines, and has violated the spirit and letter of water and mining laws in order to, literally, move heaven and earth in order to maximize profit. Despite claims to the contrary, the industry could internalize the proper environmental costs of “doing business” under SMCRA and still garner a reasonable rate of return.

This Administration has an opportunity for a rededication to the principles of the 1977 mining law "to protect society and the environment from the adverse effects of surface coal mining operations" and to give effect to the mission of the Clean Water Act to "end water pollution". The state and federal regulatory agencies have the necessary tools to demand much more accountability in all forms of surface mine planning and performance with respect to mine planning, reducing the size and number of valley fills. What is missing is the political will, and OSMRE can play a pivotal role in demanding that accountability.

In December, 2009, the Kentucky DNR, the Lexington Field Office of OSMRE, representatives of the Corps of Engineers Louisville District, industry representatives and the Kentucky Resources Council completed negotiations on a Fill Minimization Protocol which provides a replicable, engineering-based standard for assuring that the premining elevation is restored, that all upland locations for disposal excess spoil are evaluated, and that the number and size of fills are minimized. Finalization of the MOU incorporating the protocol for all steep-slope surface contour and area/MTR mines, and for surface areas of underground mines, will go far to reducing the off-loading of spoil into headwater reaches, and to implementing Congress’ goals of contemporaneous reclamation and restoration of the Approximate Original Contour.

Rvision of the excess spoil rules to eliminate end and side-dumped “durable rock” fills and to require compacted, constructed fills where any such fills are authorized, should also be undertaken to help effectuate both the “avoidance” and “minimization” mandates of the 404(b)(1) guidelines, and also to properly implement the SMCRA mandate to minimize impacts on fish and wildlife resources.

Inspections, State Permit Reviews and Reg-8

It is not a mattetr of hyperbole to suggest that Reg-8 has been the most significant factor interfering with effective oversight of approved state programs. Historically, OSM’s oversight policy both conducted random, stratified and independent inspections to determine compliance of approved operations with various performance standards and reviewed on a rotating basis the state implementation of various permitting and planning requirements. Reg-8 focused the attention of the agency solely on whether inspections conducted by the agency detect demonstrated “off-site” damage.

The flaws with this approach are legion.

Initially, given that failures in mine planning or in conducting of operations and handling of acid or toxic-producing material may cause damage that may not be immediately manifest, detectable or attributable to a particular mining operation where numerous such operations occur in a watershed, a strategy focused solely on detection of “off-site impacts” provides a poor measure of state program performance.

Second, after-the-fact identification of those instances of damage that are more immediately observable is no surrogate for proper review of whether the states are properly conducting permit reviews.

One example should suffice. No state regulatory agency is currently implementing the requirement that the agency conduct a Cumulative Hydrologic Impact Assessment, and fully 32 years after the Act was passed, states like Kentucky are grappling (under a Notice of Intent to Sue) to determine what data collection is needed to enable a proper CHIA, how “material damage” is to be measured and avoided, etc. Had OSMRE continued the former policy of reviewing the states’ implementation of permit program components (such as PHC and CHIA requirements), perhaps it would not have taken 32 years to get to this point.

Finally, absent proper evaluation of state implementation, administration and enforcement of permitting and performance standards requirements, it is problematic to determine whether the environmental damage is the result of agency nonperformance or permittee noncompliance.

Lack of OSMRE staff makes difficult the comprehensive oversight of state and tribal program implementation intended by Congress. Lack of state program funding and lack of OSMRE assurance that states maintain sufficient staff to properly implement delegated program obligations, undercuts effective implementation of approved state programs.

KRC supports the development by each Field Office of an effective outreach plan that provides the public with opportunities to discuss the oversight process, including recommendations for additional review topics for the evaluation year and suggestions for improvements.

KRC appreciates the commitment to revising Reg-8 in order to improve the oversight process by establishing a methodology for determining the number and type of oversight inspections to be conducted on a state-by-state basis. Sufficient stratified random inspections in order to assure that state inspection and enforcement is adequate, and where permit reviews indicate weaknesses in state permit review, focused methods of selecting sites to be inspected are acceptable.

KRC concurs that the OSMRE oversight policy should be focused on determining whether the states are complying with their obligation under 30 CFR Part 732 to effectively implementing, administering, maintaining, and enforcing approved state regulatory programs.

Reinstatement of INE-35

The Council appreciates the commitment to reinstate Directive INE-35, but suggests that certain changes need to be made in order to conform the directive to the intent of Congress and the letter of the law. INE-35 defines “appropriate action” to mean “enforcement or other action authorized under a State program to cause a violation to be corrected.” Under the mandatory enforcement requirements of the Act, no federal or state regulatory authority has discretion to withhold an enforcement order upon detection of a violation. The only appropriate action for a violation of SMCRA is enforcement of the law, which is clear from the mandatory language of §521(a)(3). 30 U.S.C. §1271(a)(3), and from the legislative history of the Act. This was also OSM’s original interpretation of the law, and the ten-day notice regulations should be revised to reinstate the contemporaneous interpretation of the statute.

INE-35 also provides that a State response to a ten-day notice shall be considered appropriate action or good cause unless the State has acted in a manner that is “arbitrary and capricious or an abuse of discretion.” As with the definition of “appropriate action”, this language suggests that the state has the discretion in deciding how to respond to a violation of SMCRA. While the definition of “arbitrary, capricious and an abuse of discretion” includes State action that is “inconsistent with applicable law,” the use of a discretionary standard for evaluating State conduct is bound to lead to confusion, and replaces the appropriate inquiry (which is whether a violation actually exists) with an inquiry that is unduly deferential to the state and inconsistent with the mandatory obligation to cite all existing violations.

Finally, INE-35 excuses the state from taking enforcement action to correct a violation of law where it lacks jurisdiction to do so. In such a case, the directive suggests that OSM should take appropriate action to be sure the State program is corrected. While this may be appropriate, it does not excuse OSM from taking immediate enforcement action to correct the violation that the State is unable to take. This should be made clear in the policy.

OSM has proposed a new policy guidance for placing a condition on state regulatory program grants to require correction of issues if a state is not timely addressing and remedying problems identified during oversight.

The lack of timeliness of state correction of program deficiencies is the stuff of legend, and should be corrected in a much more timely manner. Absent state corrections, implementation of a federal program for those areas of deficiency should be considered.

Proposed Rulemakings

In addition to the proposals to revise the bonding regulations, KRC recommends that the OSMRE commence rulemakings in these areas in order to reclaim Congress’ intent that the 1977 Act “effect the internalization of mining and reclamation costs, which are now being borne by society in the form of ravaged land, polluted water, and other adverse effects, of coal surface mining.” S.Rept. 95-128, 95th Cong., 1st Sess. at 53.

State Regulation Review Criteria

In contravention of the expressed intent of the Conference Committee to what would become the 1977 Act, OSMRE revised the review and approval criteria for state program regulation to allow state regulations to be “as effective as” rather than the more rigorous “consistent with” standard that had formally applied. In so doing, the agency undercut a core principle of the Act – that “the Federal law and regulations are minimum standards which may be exceeded by the states.” H. Rept. No. 95-493, 95th Cong. 1st Sess. at 102.

The conferees:

"Agreed to clarify the language of the bill dealing with the consistency of state laws and regulations with the Federal laws and Secretary’s regulations. They adopted the principle of the Senate amendment that an approved State program requires (1) a State law consistent with the Federal law and (2) state rules and regulations consistent with the Secretary’s regulations."

Id. at p. 102.

Reinstatement of the former standard of consistency, and a review of the state regulatory programs approved under the more lax standard, will help insure that the “minimum uniform requirements for all coal surface mining operations on both federal and state lands” are properly adopted and enforced by the individual states.

“Material Damage To The Hydrologic Balance”

Congress directed that “material damage to the hydrologic balance outside the permit area” be prevented, and that disruption to the hydrologic balance in the mined area be minimized. Unfortunately, the OSM has interpreted that phrase to allow state regulatory authorities to define the term or implement an approved program in a manner that allows the issuance of mining permits to proposed operations even though information in the permit application or otherwise available to the regulatory authority indicates that effluent or groundwater migration from the proposed operation would likely cause or contribute to a violation of one or more applicable water quality standards in a stream, river, or lake downgradient from the proposed operation. OSM should further define the term to reiterate the statement of basis and purpose for the agency’s hydrologic protection regulations, which expressly assured the public that violations of water quality standards, in addition to effluent limitations, were minimum criteria for measuring “material damage to the hydrologic balance outside the permit area;” See 48 Fed. Reg. 43,956 (Sept. 26, 1983); and to disclaim OSM’s litigation position in Ohio River Valley Environmental Coalition, Inc. v. Kempthorne, 473 F.3d 94 (4th Cir. 2006).

The reason for doing so is straightforward. One of SMCRA’s central purposes is to supplement the Clean Water Act by preventing violation of applicable water quality standards as the result of surface coal mining and reclamation operations wherever possible and authorizing prompt and effective enforcement action to address such violations where they occur.

Ownership and Control

Legislative amendment is likely needed to revise the definition of “permit applicant or applicant” to override the decision in National Min. Ass'n v. U.S. Dept. of the Interior, 105 F.3d 691 (C.A.D.C., 1997), which narrowly interpreted the existing definition of the term to exclude “any person who owns and controls the applicant.” The historical abuse of corporate business forms by unscrupulous individuals and companies has left a legacy of scarred land and damaged water resources. Companies owning or controlling permit applicants who were linked to unabated violations at other mine sites had been blocked by OSM under its regulations, but in an industry challenge to that practice, the court ruled that the language of the Act did not allow the agency to go “upstream” to block new permits based on owners or controllers of the new applicant. That interpretation allows persons who own or control the coal mined or to be mined at a surface coal mining operation to avoid liability for violation of SMCRA’s requirements simply by creating or persuading intermediate legal entities to serve as permittees under the Act. Reform is needed so that every person who holds an interest in the coal mined at a surface coal mining and reclamation operation ultimately responsible for correcting any violation of SMCRA that occurs as the result of such operations.

The agency should, as an immediate measure while awaiting the Congressional action just recommended, agree to withdraw the Bush Administration’s revised ownership or control regulations currently under challenge in the U.S. District Court for the District of Columbia. Those regulations replaced the Clinton Administration’s rules on the subject with an industry-approved softening of the regulatory scheme. The Bush Administration adopted its regulations after withdrawing the Clinton rules in the face of an industry challenge to the earlier rulemaking. Not only is turn-about fair play in this instance, it is vital to effectuating the intent of the Congress that enacted SMCRA.

Surface Effects of Underground Mining and Section 522(e)

In 1999, the Interior Department published a regulation that codified its reversal of the agency’s prior interpretation that Section 522 of the federal Act prohibited surface impacts from underground coal mines in certain key areas, including national parks, wildlife refuges, wilderness areas, state parks, occupied dwellings, public buildings, schools, churches, cemeteries and roads. According to the Environmental Impact Statement developed by OSM concerning the reversal of agency position, the decision put at risk 29,600 homes and more than 15,000 acres of protected parks and open space lands. Citizen groups successfully challenged the 1999 rule in District Court, but that decision was overturned by the U.S. Court of Appeals for the D.C. Circuit in 2003.

In Citizens Coal Council v. Norton, 330 F.3d 478 (D.C. Cir. 2003), the Court of Appeals deferred to OSM’s “strained” interpretation of SMCRA as excluding underground mine impacts from the buffer zone protections of the unsuitability provisions of law. The OSM reinterpretation allowed subsidence to occur in protected areas, near homes, cemeteries, and protected buildings, and reversed a position long held by the agency that those areas were protected.

A regulatory change would clarify that the agency’s initial interpretation was correct, that surface impacts of underground mining were intended to be precluded in such protected areas, and would provide protection to those thousands of homeowners who now face undermining of their property, and will similarly protect public buildings from subsidence damage.

Disposal of Coal Combustion Waste

Management of coal combustion wastes is a significant issue, given the presence in fly and bottom ash associated with coal combustion of levels of metals and organics often in excess of drinking water levels. Co-disposal of such wastes in mined areas increases the potential for migration of such constituents into groundwater. Proper regulations mandating proper characterization and responsible management of coal combustion wastes by the Environmental Protection Agency should be a priority, and OSM should refrain from promulgating regulations to encourage or allow indiscriminate or uncontrolled backstowing of such wastes on mined areas.

Timber Removal In Advance Of Mining

Anticipatory destruction of forested habitat in advance of obtaining mine permits in order to avoid obligations to protect riparian habitat is a significant issue, yet OSM does not exert jurisdiction over clearing of forested habitat where done under contract in advance of other site preparation. By clearing lands prior to filing permit applications, permittees avoid consideration of threatened and endangered species.

By including the removal of timber within those activities defined as “surface coal mining operations” the agency would have authority to prevent timber removal conducted as a preclude to mining from occurring absent prior approval, and could end the abusive practice of coal companies or coal owners contracting the removal of timber from areas that will be mined in order to avoid either conducting sensitive species surveys or providing protections for such known terrestrial or aquatic species or their habitat.

Constructed v. End-Dumped Fills

Excess spoil fills are associated with all forms of surface mining in mountainous terrain, as well as surface face ups of underground mines. Where the 1979 regulations required haulage and placement of the rock and soil in compacted, constructed, engineered fills, in order to accommodate larger earth-moving equipment and to lower material handling costs, OSM weakened the rules to allow end-dumping and wing-dumping of excessive amounts of mine “spoil” - the soil and rock removed from above coal seams, into headwater streams. Much more could be done regarding mine planning to require the maximum safe retention of the soil and rock on the mined area and the use of excess material to reclaim abandoned mines, with the goal of reducing the size and number of fills in valleys. So-called “durable rock” or “end-dumped” fills should be disallowed by restoring the requirement for compacted, constructed fills.

Finalization of Guidance To States On Proper Implementation of CHIA Obligation

The cumulative impact of fills on watersheds can be lessened further through the proper implementation of the cumulative hydrologic impact analysis (CHIA) provision of SMCRA. The CHIA requirement, which obligates the agency to consider a proposed mining operation in the context of all current and anticipated mining in that watershed, is not properly implemented in many sates, and OSM has failed to demand consistency and high quality analysis. CHIA was intended as a backstop against cumulative incremental degradation from numerous mining operations.

Clarifying the Insurance Obligation

There are numerous situations where the permittee lacks resources to address damages caused by the mining operation, and the insurer declines coverage because of the existence of high deductibles. Clarification is needed that if an insurer writes a policy that contains deductibles, public protection would be assured by requiring posting of a cash bond or CD for any deductible amount.

Bankruptcy Law And SMCRA Obligations

Regulatory or statutory clarification is needed that bankruptcy courts, cannot allow coal companies to “reorganize” and to shed reclamation responsibility. Language is needed that would make reclamation obligations under permits, regulations and enforcement orders non-dischargeable, unless the obligations were fully satisfied or a successor permittee fully assumed and bonded the liability to assure reclamation would be achieved.

Blasting

Perhaps the most problematic performance standards under the Act are the blasting regulations. Sate regulatory authorities discount physical evidence of blasting damage and fail to utilize pre-blast surveys in a manner that assures that blasting damage is identified and repaired, instead relying on formulae that do not accurately reflect the impact of the blasting and which are insufficient to protect housing that is not constructed by standard methods nor on standard foundations.

Roads

Congress defined surface coal mining operations to include all roads used or constructed for coal haulage and access. OSMRE has failed to fulfill a commitment to define when existing public roads used by coal companies will be considered as part of the “affected area” that must be permitted. The result has been a hodgepodge of state approaches to the issue, and a tendency by coal companies, to appropriate dead end residential roads (typically neither built to spec nor to handle such weights but instead paved over a dirt or gravel base) as their haul roads, instead of constructing dedicated haulage through constructed haul roads, tramways or beltlines. A new rulemaking is necessary to define those cases (such as federal highways and interstates) where coal haulage has a de minimis impact, and those where the coal haulage and access should be required to be under permit, or should be prohibited due to public health and safety impacts.

Defining “Contemporaneous Reclamation”

The removal of time and distance limitations has eviscerated the concept of contemporaneous reclamation, allowing areas to remain disturbed and unreclaimed for extended periods of time, in contravention of Congress’ intent that the time between initial disturbance and successful revegetation be minimized.

Requiring Demonstration of Reclamation and Restoration of Water Resources

In many cases both in the eastern and western coalfields, the seam(s) mined are aquicludes and in some cases aquifers, so that the mining causes demonstrable damage to or eliminates the aquifer, often with negative off-site impacts to the hydrologic balance. Bond releases, which typically focus on reclamation success as measured solely by vegetative cover, should not be granted absent an affirmative demonstration that material impacts to the hydrologic balance outside the permit area have been remedied, and that the pre-mining recharge and discharge have been restored during reclamation.

Clean Water Act: Rahall Amendment Undercut By EPA Action

In 1987, after agreement was reached between the environmental community and coal association representatives on carefully negotiated language providing an alternative permit-by-permit mechanism for establishing site-specific effluent limitations for selected parameters, Congressman Rahall of West Virginia introduced Section 301(p) of the Clean Water Act. The so-called “Rahall” amendment authorized EPA to approved NPDES permits containing alternative numerical limitations on iron, manganese and pH in order to encourage operators to incorporate previously mined and unreclaimed areas into their mine permits and to improve on the baseline situation. The permit-by-permit best professional judgment-based limitations for iron, manganese and pH, would reflect the feasible level of interim treatment for those pollutants, on the assumption that by including the area within a Title V mining permit, reclamation would eliminate the pre-existing problem.

Prior to the Rahall Amendment, diverted polluted runoff from those sites was not required to be treated, but encountered stormwater contaminated with pollution from such sites was required to be treated to the categorical effluent limitations applicable to all mining operations.

Fifteen years after the fact, the Environmental Protection Agency finalized remining rules which eviscerated the intent of the Rahall Amendment, by requiring that any encountered pre-existing discharges be treated to the more stringent standards and that diverted discharges (formerly not required to be treated at all) be treated to the alternative levels.

When challenged in the 6th Circuit Court of Appeals, the agency represented and the Court mistakenly assumed that the Rahall permit-specific approach would remain an option. EPA confirmed in late 2006 that that was not the case, and that a permit writer would not be required to apply the more rigorous limits to any pre-existing discharged encountered by remining operations.

OSM, in conjunction with EPA, should revisit the rulemaking and reinstate the Rahall Amendment as Congress intended.

In closing, KRC appreciates the extension of the comment period, and the commitment of the Obama Administration to restore effective regulatory program oversight and to improve citizen access to information. We look forward to implementation of these initiatives, to the reclamation of the goals and principles of the 1977 Act, and to fulfillment of the promise made to coalfield citizens in 1977 that has been honored in the breach these many years.

Cordially,

Tom FitzGerald
Director

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