KRC Comments On Scoping For Stream Protection Rule
Posted: August 17, 2010
July 30, 2010
Office of Surface Mining Reclamation
1951 Constitution Avenue NW
These comments are submitted on behalf of the Kentucky Resources Council, Inc. (KRC), 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.
These comments are submitted in response to the new notice of intent published on June 18, 2010 at 75 Federal Register 34666, announcing the intent of the Office of Surface Mining Reclamation and Enforcement (OSMRE) to prepare an Environmental Impact Statement to analyze the effects of potential rule revisions in order to improve protection of streams from surface coal mining operations,
In broad terms, KRC strongly supports the proposed actions to revise various components of the regulatory program in order to improve protections of streams from the impacts of surface coal mining operations. The success or failure of this initiative, however, will depend on several factors, including well-reasoned choices in policy, consistency with the underlying mandates of Congress, a recognition that the regulated industry has vigorously fought against internalizing the full ecological, social and other costs of doing business and will exploit any ambiguity in the resulting rules in order to shed those costs and to maximize profitability of mining operations, assurance that the revisions will be fully and fairly enforced and implemented among the states and tribal nations through effective oversight, and enhanced public participation at critical junctures in the permit review process. KRC addresses each proposed component of the OSMRE proposed action below, after briefly discussing the legal requirements under the National Environmental Policy Act (NEPA) for preparation of an Environmental Impact Statement.
Where, as here, the agency has determined that an Environmental Impact Statement will be prepared, the agency is obligated to engage in an ?early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action[,] termed scoping by the Council on Environmental Quality. 40 CFR 1501.7.
By regulation, in order to determine the scope of the EIS the agency must consider 3 types of actions, 3 types of alternatives, and 3 types of impacts[:] connected, similar and cumulative actions; no action, other courses of action and mitigation; and direct, indirect and cumulative impacts. 40 CFR 1508.25.
KRC supports development of an EIS in order to evaluate proposed improvements in the mine permitting process, and in substantive protections for streams and the hydrologic balance. KRC is concerned, however, that the Notice of Intent published on April 30 does not satisfy the requirements of 40 CFR 1501.7; specifically the requirement that the notice describe the proposed action and possible alternatives. 40 CFR 1508.22(a) (Emphasis added).
KRC had voiced concern with the previous Notice of Intent because it did not, as required by NEPA, describe briefly alternatives to the proposed agency action in order to satisfy the requirement of an adequate notice of intent under the CEQ regulations. KRC raised this concern not to slow the pace of long-overdue reform in these areas, but out of cautious concern that the regulated industry would have challenged the adequacy of the NOI at some later date in order to delay implementation of reforms.
KRC recommended that a new NOI be published containing a brief description of possible alternatives, to include a no action alternative, other reasonable courses of action, and mitigation measures not in the proposed action. 40 CFR 1508.25(b). We appreciate that OSM did so, and in so doing brought this process into conformity with the requirements of NEPA and the CEQ regulations.
Improving Hydrologic, Geologic And Biological Data Collection
KRC strongly supports improvements in the collection of baseline and during-mining hydrologic, geologic and biological data, and encourages the agency to incorporate these considerations into the proposed rulemaking:
1. Data collected must be provided and stored in a format that can be easily retrieved, searched, and analyzed.
Since the enactment of SMCRA, there have been countless sets of data on water quality, flow, groundwater yield and quality, as well as geologic data, little of which has been stored in a manner that allows ready agency and public access to the datasets. The proposed rule must require that the data be provided by the permit applicant and permittee, and stored by the agency, in a manner that can be retrieved and which is available to the agency, to other agencies, and to the public.
2. Data collection should be driven by PHC and CHIA obligations
The collection of data on hydrology and geology was intended by Congress to inform decisions on permit issuance or denial, and development of permit conditions. Additionally, the data was to used by the regulatory authority to determine whether the cumulative impact of multiple mining operations within a watershed, or multiple operations in related watersheds, would cause or contribute to material damage to the hydrologic balance.
In truth, in Kentucky as well as other states, the cumulative hydrologic impact assessment obligation has been skirted through regulatory fiat, or has been implemented poorly. As a result, data collection that may or may not be sufficient to fully inform a review of an individual mining operation impact on the hydrologic balance on and off the mine site, is almost certainly insufficient to allow reasoned review of the impacts of multiple mining operations in those areas where the hydrologic impacts overlap (both for surface and groundwater). A critical component of improved data collection both pre-mining (to inform the assessment of possible hydrologic impacts) and during and post-mining (to allow for adjustments where data reflects impacts are greater than of different than predicted, and to allow the agency to determine whether bond release should be granted), is that during the preliminary application phase of permit review, a hydrologic and geologic data collection plan should be required that allows the agency to evaluate the hydrologic impacts of the proposed mining operation against the backdrop of existing mining and anticipated mining operations.
3. Geologic data collection and analysis for acid and toxic forming material must be speciated by strata
One of the great failures in prediction of the acid and toxic-forming potential of overburden and interburden strata lies in allowing aggregation of the chemical characteristics of various strata. Typically, in Kentucky and elsewhere, applicants are permitted to aggregate strata with elevated pyritic or other potentially acid or toxic forming characteristics, with other strata proposed to be disturbed, under the flawed assumption that the blending of the strata will be such that neutralization of the potential for leaching acidic or toxic constituents will occur. Recent studies indicating elevated conductivity values underscore the need to require that each strata be separately analyzed and that those strata that have acid or toxic forming potential be required to be separately removed and managed.
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. The public notice indicates that the agency intends to define the term material damage to the hydrologic balance outside the permit area out of a recognition that Section 510(b)(3) demands that the agency make an affirmative finding that the proposed mining will not cause such an impact.
KRC agrees that defining material damage in a manner that fully protects the actual and designated uses of the receiving waters and which prevents disruption of the hydrologic processes of recharge and discharge, flow and quality of surface and groundwaters, is critical both to the development of the hydrologic component of the mining and reclamation plan, and the conducting of a meaningful cumulative hydrologic impact assessment.
Unfortunately, OSMRE has historically 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 clarify that the obligation to avoid material damage includes both short- and long-term damage, since Congress created no allowance for material damage during mining but instead demanded prevention of material damage outside the permit area without qualification, and minimization of damage to the prevailing hydrologic balance on-site during and after mining.
OSM should further define the term to reiterate the statement of basis and purpose for the agencys 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 OSMs litigation position in Ohio River Valley Environmental Coalition, Inc. v. Kempthorne, 473 F.3d 94 (4th Cir. 2006).
In addition to defining what constitutes material damage, OSMRE should clarify what data collection, sampling, pre-mining evaluation, and what benchmarks will be required to assure that the hydrologic balance is protected offsite and that disturbances to that balance are minimized on-site.
The obligation to design and conduct the mining activities in a manner that will prevent material damage outside of the permit area applies not only to the individual elements of the hydrologic balance, but to the balance itself. This requires both that specific, enforceable standards be established for defining what constitutes material damage and monitoring to assure that such damage is not occurring to each component of the hydrologic system and also that the mining plan and reclamation plan be designed to prevent damage to the hydrologic balance during and after mining. In addition to defining a threshold for what constitutes material damage for each of those components (such as the rate of recharge, the quality and yield of groundwater aquifers, the discharge patterns to surface waters, the water quality, biological integrity and habitat characteristics of affected surface waters), the choice by Congress to require that the regulatory agency make an affirmative finding that the proposed mining operation is designed to prevent material damage to [the] hydrologic balance outside [the] permit area demands that that the collection and assessment of the data and the mine planning be done in a manner that considers and protects the hydrologic balance as a system of with distinctive seasonal variations in flow, temperature, chemistry, habitat, recharge and discharge that must be evaluated and protected as a system.
Material damage cannot be reduced merely to compliance with water quality standards or drinking water standards, (though certainly violations of those standards would constitute material damage), but instead needs to rest on a combination of biological, chemical, physical, and other criteria that assure that the mining is planned and conducted in a manner that limits disruptions of the hydrologic balance on site to a minimum and truly prevents damage to the hydrologic balance offsite. The Act is clear in providing that evaluation only of surface or groundwater quality is insufficient to fully satisfy the requirement to minimize damage to (onsite) and prevent material damage to (office) the hydrologic balance, for 30 USC 1265(b)(10), separates the concept of minimization of disturbances to the prevailing hydrologic balance from minimization of disturbances to the quality and quantity of water in surface and ground water systems and requires that both the hydrologic balance and those particular aspects of the hydrologic system be addressed, through a list of enumerated actions such as avoidance of acid and toxic mine drainage, use of BCTA to minimize contributions of TSS, restoring recharge capacity, and other actions.
After the briefing by OSMRE on April 26, 2010, KRC is concerned that the agency may be viewing protection of the hydrologic balance and material damage in a manner that is underprotective of surface waters receiving effluent from mining operations. While KRC supports the collection of additional baseline data on hydrology, geology and aquatic biology to aid in the determination of the probable hydrologic consequences of the proposed mining and to the CHIA analysis, the proposal to utilize biological data as the determinant both of the application or nonapplication of stream protection measures and of the necessity and extent of corrective action or mitigation, is problematic because it fails to protect the potential for restoration of damaged streams, and to account for existing mine-related damage.
It must be understood that many of the receiving streams in the coalfields have already been impacted adversely by current and prior mining operations, and that the water quality and biological integrity of many of those streams have been compromised. Defining material damage in a manner that would use collected baseline biological and chemical data on the current water quality and biological community/habitat conditions rather than the applicable water quality standards and reference reach streams as the benchmark against which further damage would be measured, would assure that damaged streams remain so, and would violate the Clean Water Acts requirements that degraded streams be improved through development of waste load allocations and TMDL plans, and that waters whose quality is better than the minimum necessary to support the designated uses be safeguarded against lowering of the water quality (i.e. Tier II antidegradation).
One of SMCRAs central purposes is to supplement the Clean Water Act by requiring, among other things, that the mining operations be designed to prevent violation of applicable water quality standards and by imposing a mandatory framework for inspection and enforcement action to address such violations where they occur. The use of biological integrity and habitat indices is an important supplement to the collection of pre-, during- and post-mining qualitative data concerning the chemistry of the waterbody, particularly in determining whether the receiving stream is impaired and the extent to which changes in water quality might further impair the biological integrity of the receiving water, but the benchmark for determining what damage is material and what impact a proposed operation will have on a receiving stream, must be grounded in the designated or classified use of the stream and in full implementation of antidegradation provisions of the water quality standards in order to assure that damaged streams do not become further impaired and that high quality streams are not compromised through incremental degradation.
The use of reference reach streams should be incorporated, in order to provide a baseline for protection against impairment or further impairment. Where a stream is already in violation of numeric, narrative or translator water quality standards, no new permit should be approved unless a TMDL has been developed for the waterbody in order to assure that the Clean Water Acts antidegradation requirements are being implemented for that waterbody. To do otherwise would conflict with the Clean Water Act, by sanctioning new disturbances and discharges into a waterbody that is, due to existing and past mining, not attaining the designated use(s).
Similarly, where the existing water quality is in excess of that needed to support the designated use(s), that quality must be safeguarded against degradation.
Revising Definitions for Perennial, Intermittent and Ephemeral Streams
As noted above, KRC believes that use of biological indices to define streams or as the determinant on whether a stream should be protected against disturbance, fails to take into consideration the damage that has been done from past mining and mining-related activities to receiving waters. The Act should be implemented in a manner that protects the capacity of receiving waters, so that degraded waters do not become dumping grounds for new fills, coal waste impoundments, or instream sediment structures.
Stream buffer requirements should be developed to prevent mine-related disturbances to intermittent and perennial streams.
Clarify That Timber Removal In Advance Of Mining Is Within The Definition of Surface Coal Mining Operations
A particular concern with protection of the biological integrity of streams is the deforestation of the canopy overlying Appalachian headwater streams. The 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 require that the state regulatory authorities exert jurisdiction over clearing of forested habitat where done in advance of other site preparation.
It has been the practice by mining companies, either in advance of application for a permit or once notified during a preliminary walk out that either the terrestrial habitat or the aquatic habitat may support a threatened or endangered species, to clear lands prior to filing permit applications in order to avoid having to incorporate protections of those threatened and endangered species by changes in mine planning or limitations on when habitat alteration can occur.
The Act clearly and freely admits to an interpretation that would incorporate timber removal as a regulated activity where the timber removal is occurring on a proposed minesite or in the shadow area of a proposed valley fill. For surface coal mining operations includes not only the active mining of coal, but activities conducted on the surface of lands in connection with a surface coal mine and also those areas upon which such activities occur or where such activities disturbed the natural land surface. The scalping or removal and skidding of timber in advance of mining falls within the regulatory ambit of the Act. 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 prelude 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. In conjunction with the reinstatement of a streamside buffer, the regulation of mine-related timber removal would allow meaningful protection of canopy that is so critical to maintaining stream temperatures and protecting the habitat and biological integrity of headwater streams.
Clarifying that forest removal in advance of mining is a regulated activity is also the only feasible way that the agency can implement the stated goal of the notice of intent of requiring reforestation of previously wooded areas, since those areas will otherwise be deforested by the time that the permitting process begins.
Revising Spoil Management Regulations
KRC strongly supports the Agency proposal to revisit the backfilling and grading, excess spoil and AOC rules. Beyond the proposal to revisit those rules to incorporate landform restoration principles and reduce discharges of total dissolved solids, the agency must act to repudiate past policy concerning AOC and to restore meaningful standards for contemporaneous reclamation, AOC and fill minimization.
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.
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. 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 value to the community and environment. Because of failure to require restoration of the premining elevation and the mischaracterization of mountaintop removal mines as area mines in Appalachian coalfields, one could ban mountaintop removal tomorrow yet the ecological footprint and visual impact would be negligibly different. 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, has been thwarted through changes in rules and policy interpretations undertaken for the industrys convenience rather than to improve environmental protection.
Where the law contemplates that the approximate contour of land be restored both in elevation and configuration, successive hostile federal administrations and many states have ignored 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. Regulatory clarification is needed that approximate original contour means both that the reclaimed area should resemble the area before mining in both aspect (or slope) and elevation. Lax enforcement of the AOC requirement has resulted in numerous instances in which mined areas which have theoretically been restored to AOC are indistinguishable from sites that have been granted variances from AOC. Clarifying the obligation to restore premined elevations as well as landforms and aspect will minimize excess spoil that needs to be managed, as well as encouraging more contemporaneous reclamation.
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.
These durable rock fills are among the largest man-made structures, and are located lower in the watershed and are larger in area displaced than needed to properly dispose of the excess spoil material, and are created with little knowledge of the long-term stability of the structures. Much more should 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.
KRC appreciates the renewed emphasis of the agency on protection of headwater streams. 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. Yet rather than employing smaller equipment more appropriate to the terrain and to careful management of materials, the industry has systematically replaced the workforce with larger machines, violating the spirit and letter of water and mining laws in order to, literally, move heaven and earth in order to maximize profit. OSM, through several rule and policy changes, most notably elimination of time and distance criteria from contemporaneous reclamation, by defining AOC to exclude elevation, and by allowing end and wing-dumped fills, has been complicit in the degree of needless damage caused by these ruthlessly efficient methods of mining.
The revisiting of these rules offers the Obama Administration 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".
KRC believes that the scoping of the proposed rules should include:
a. requiring more realistic calculations of spoil generation;
b. incorporation of the fill minimization developed in Kentucky and in current use by EPA and the Corps of Engineers in order that fill location, configuration and design, including such approaches as side valley fills, be demonstrated to minimize the size and number of fills, and minimize the impact of fills on streams;
c. prohibiting end- side- or wing-dumping of spoil, and requiring instead that material be hauled or conveyed in a manner that results in more compact fill designs;
d. requiring that sediment structures other than fill-related ponds be located out of stream reaches, that fill-related ponds be located as close to the toe of any fill as possible rather than at the stream mouth, as has become common practice, and requiring that all diversion channels and other conveyances of stormwater be under permit;
e. demanding restoration of contour elevation as an integral component of AOC for all operations;
f. requiring that the 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; and
g. requiring that all upland disposal locations for disposal of excess spoil be evaluated prior to any fill approval, and requiring that the fill deck be moved as high in any valley as scan be accomplished while maintaining fill stability; and
h. reinstating time and distance criteria for 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.
The notice of intent indicates that changes in the bonding regulations are being contemplated that would codify the financial assurance provisions for long-term pollution discharges. While KRC supports requiring sufficient financial assurances to address those long-term discharges that cannot be abated, additional emphasis on prediction of acid and toxic drainage through better analysis of each stratas potential for such discharges is critical in minimizing future discharges from being created.
The agency should more broadly revisit bonding, since 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. The process for calculating performance bonds should be revised in order to assure that the bond amount is calculated based on the point of greatest vulnerability of the public to the possibility of non-performance of reclamation obligations by a mine permittee.
Alternative bonding systems, in which bond pools are utilized to fund some or all of the permittees 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.
Bond Releases Should Require Demonstration of Restoration of Hydrologic Balance
Despite the requirement that the damage to the hydrologic balance off the mine site be prevented and that on the mine site, recharge capacity be restored after mining, bond releases are routinely granted simply on the basis of surface water data and establishment of revegetation meeting success standards.
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 should not be granted absent an affirmative demonstration that material impacts to the hydrologic balance outside the permit area have been remedied, that the pre-mining recharge and discharge capacity have been restored during reclamation, and that aquicludes have been disrupted on site during mining are reconstructed through selective material handling.
No regulatory change is needed to effect these requirements; instead the states and tribal nations should be directed to require affirmative demonstrations that all performance standards associated with protection of and minimization of damage to the prevailing hydrologic balance have been achieved prior to bond release. Bonds should be held until the hydrologic balance has reached equilibrium.
Permitting and Bonding Mitigation Areas
KRC supports the requirement to permit and to bond any areas that are proposed as mitigation for unavoidable stream impacts associated with mining activities or disposal of mine-related spoil. Such areas are plainly disturbed in connection with mining, yet have in many states been allowed to avoid permitting and bonding.
Limitations on Alternative Post-Mining Land Uses
Existing regulations, properly administered, could greatly reduce the abuse of the opportunity for alternative post mining land uses. While the regulations require that lands be restored to the pre-mining land use or other uses that are higher and better, the feasibility requirement is typically ignored, and to facilitate quicker bond releases, forested areas are transformed into hayland/pasture that has no reasonable potential of actually supporting such uses.
KRC would underscore as a final matter, that Kentucky is among a number of states that have no more stringent than clauses barring state adoption of any procedural or substantive regulations regarding surface coal mining that are more stringent than the minimum federal regulations. Whatever changes are proposed must be done in a manner that obligates states to incorporate those changes into the regulatory program, rather than relying on guidance or on state-lead efforts. Where Congress made SMCRA the floor for environmental protection, many coalfield states have, like Kentucky, made the federal floor the states ceiling.
Thanks in advance for your consideration of these comments.