July 4, 2001
Daniel Evans, Chief South Section, Regulatory Branch US Army Corps of Engineers P.O. Box 59 Louisville, KY 40201-0059
Jerry Sparks, COE Eastern Kentucky regional office 845 Sassafras Creek Road Sassafras, Kentucky 41759
Joseph Pavlovich, District Mgr. MSHA District 7 HC 66, Box 1699 Barbourville, KY 40906-9206
Re: Coastal Coal Company Proposed Jake Campbell Branch Slurry Impoundment MSHA Site ID 1211-KY7-07153-01
I am writing to you concerning the proposal by Coastal Coal Company, LLC to construct a coal waste impoundment, a coarse refuse fill and associated sediment structures in Jake Campbell Branch for disposal of coarse coal refuse and coal slurry material from a coal preparation plant proposed to be constructed at the confluence of Jake Campbell Branch and the North Fork of the Kentucky River.
In preparing this letter, I have reviewed the permit file of the Kentucky Department for Surface Mining Reclamation and Enforcement, the U.S. Army Corps of Engineers file (as of May 30, 2001), and material received from MSHA District 7 in response to FOIA requests.
My reason for writing is straightforward ? the Kentucky Resources Council, Inc. believes that under the current regulations of the U.S. Army Corps of Engineers, the placement of coal waste material in waters of the United States is not an activity that can be lawfully approved under the Section 404 program, and thus would constitute an unauthorized discharge of a pollutant into waters of the United States unless authorized under Section 402 of the Clean Water Act. The placement of coarse coal refuse and fine slurry/water material behind the coarse refuse dam is proposed for the sole purpose of disposing of coal preparation waste material, and thus cannot be authorized under Section 404 of the Clean Water Act, since the Corps of Engineers definition of ?fill material? excludes ?any pollutant discharged into the water primarily to dispose of waste[.]? 33 C.F.R.323.2(e). Since the disposal of coarse refuse and impounded slurry in Jack Campbell Branch is for the sole purpose of waste disposal, and thus is an activity outside of the ambit of Section 404, it would constitute a prohibited discharge of a pollutant unless authorized under Section 402 of the Clean Water Act.
Alternatively, assuming for the sake of argument that the filling of Jake Campbell Branch with coal wastes can lawfully be approved under the Section 404 program by the Corps of Engineers despite the prohibition in the Corp?s regulations on placement of fill material where the primary purpose is to dispose of waste, the Coastal Coal Co. proposal to construct a coarse refuse impoundment, to fill it with a water/slurry mixture, and to construct two sedimentation ponds to control runoff from the slurry impoundment and an ancillary excess refuse fill, and the proposal to fill floodplain areas in the Jack Campbell Branch and the floodplain of the North Fork of the Kentucky River to support the preparation plant and disposal sites, cannot be approved as submitted, since any such proposal:
(1) must be accompanied by the development of an Environmental Impact Statement prepared in accordance with the National Environmental Policy Act,
(2) must be prefaced by a meaningful assessment of practicable alternative locations, configurations, and technologies and a meaningful mitigation plan that accounts for the spatial and temporal loss of the aquatic and floodplain resources that will be filled and altered to support the proposed project. The alternatives analysis must include alternative configurations that could support the proposed activity with less alteration of terrestrial and aquatic habitat; alternative locations for the proposed activities that would result in less environmental impact; and alternative technologies that would minimize or avoid the proposed impacts through further processing the waste in dry filter presses to avoid impounding slurry and water in a high hazard structure immediately adjacent to underground mine workings; and
(3) Is contrary to the ?public interest? due to the availability of alternative, cost-competitive and safer technologies for disposal of coal preparation wastes.
Specific comments follow.
According to the state and federal agency files, the proposed project consists of construction of a disposal area in Jake Campbell Branch for disposal of coal wastes associated with a proposed coal preparation plant. The slurry impoundment is acknowledged by the applicant to be a Class C High Hazard structure. Coarse refuse will be used to construct an embankment dam for disposal of slurry material 2700 feet upstream of the junction of Jake Campbell Branch with the North Fork of the Kentucky River. In addition to the construction of the coarse refuse dam and slurry impoundment behind it, refuse not needed for the dam construction will be disposed of ?in a separate coarse refuse fill? and a sediment control structure will be constructed instream below the toe of the waste dam to control sediment from the proposed structure, with a second sediment pond to control runoff from the ancillary refuse fill.
Additionally, the applicant has proposed construction of a preparation plant In Jake Campbell Branch, resulting in additional filling of the floodplain of that stream and permanent loss of 1,730 linear feet of that Branch, and ?temporary? relocation of 2,470 linear feet of Jake Campbell Branch. The DSMRE permit application notes that the construction of the coal refuse facility will permanently eliminate approximately 6950 linear feet of the existing stream.
The application submitted to MSHA acknowledges the presence of underground mine workings in the immediate vicinity of the proposed impoundment:
An abandoned deep mine entry in the Hazard No. 5A seam is adjacent to the southern limits of the site. Specifically, the entrance will be within the limits of the impoundment during Stage 5. Before the fine refuse reaches the coal seam elevation, the portal will exposed (sic) and checked for proper seals. If necessary the portals will be resealed. From the face-up area, the deep mine progress (sic) to the south away from the slurry impoundment.
The applicant acknowledges that ?[a] deep mine entry for the Hazard No. 5A coal seam is located on the south side of the hollow just upstream of the final stage embankment,? at an elevation of approximately 1120 feet msl, and that the proposed impoundment at Stage 5 will have a crest at 1155 msl, impounding slurry to an elevation of 1073 feet with water impounded to an elevation of 1151 feet approximately during storm events, with a normal pool elevation of 1145 feet msl. At completion of Stage 5, then, the elevation of the impounded water/slurry mixture will exceed the height of the portal regularly by 25 feet, 31 feet during the design storm event.
Neither the MSHA or DSMRE, nor the COE applications, contain any information or analysis of the possibility of a breakthrough into the abandoned Hazard No. 5A seam. The only discussion in the MSHA application is one paragraph on p. 18 noting that room and pillar mining occurred in that seam and that ?[t]he mine entrance in the location shown on the drawing will be within the limits of the slurry impoundment during Stage 5. Accordingly, the mine entrance will need to be uncovered and resealed as shown in the details on Sheet 11 of the drawings.? As far as analysis of the possibility of a loss of integrity of that seal, resulting in a discharge into the mine workings, the application states:
From the entrance, the mine progresses away from the impoundment and out of the area of influence.
MSHA Application p. 18.
Unfortunately, the application does not describe the working assumptions underlying that conclusion, i.e. what is considered to be the ?area of influence? of the impounded waste/water mixture relative to the strength of the barrier outcrop and the mine seal.
Nor does the DSMRE permit application, which is required by law to include a ?determination of probable hydrologic consequences? of the proposed surface coal mining and reclamation operation on and off-site, include any discussion of the possibility of a breakthrough into the No. 5A workings and any potential for such a breakthrough to reach the North Fork of the Kentucky River.
Additionally, the DSMRE application does not address the possibility of impacts on downstream water supplies in the Kentucky River watershed, dismissing the ate supply analysis by restricting the analysis of potential water quality impacts to an area five times the area to be affected.
It is unclear where the applicant derived the ?five times? formulae, but the regulations and statute plainly require a hydrologic analysis for any area potentially affected. The possibility of catastrophic failure of the structure due to seismic activity or other factors has not been, and should be modeled, and the full range of downstream flooding, water supply and water quality impacts assessed in order to properly characterize the risks associated with the proposed structure and the probable hydrologic consequences of a failure, to allow for calculation of appropriate levels of financial responsibility from the applicant during the permitting process, and to properly inform the agencies as to whether the application should be approved.
I. NEPA Compliance
A decision by MSHA and by the U.S. Army Corps of Engineers to approve the construction of the proposed coal preparation plant and associated waste disposal areas, is plainly subject to the requirements of the National Environmental Policy Act as ?major federal action? potentially having a significant effect on the human environment. In a situation where an applicant requests a federal permitting action, such as is the case here, the USACE (and MSHA) have a non-delegable responsibility to assure that the requirements of the National Environmental Policy Act are satisfied.
The Council appropriate scope of the "proposal" under consideration must, for NEPA purposes, includes both the placement of all waste material and construction of sediment ponds to support that waste placement, but also all filling, road construction, excavation and other land-altering activity proposed in support of the coal preparation facility.
The Corps properly rejected the application for coverage of the preparation facility and associated cut and fill activity under a nationwide permit and required consideration of the totality of impacts together.
The Council believes that the scale, the location, and the possible environmental and public safety consequences associated with the proposed activity, demand preparation of an Environmental Impact Statement to guide and instruct and inform the agencies in their review of the proposed project. The test for whether an environmental impact statement is required is whether the proposal for action is "major federal action" that may "significantly" affect the human environment. "Major federal action" includes actions with "effects that may be major and which are potentially subject to Federal control and responsibility." 40 CFR 1508.l8. Major reinforces but, according to the Council on Environmental Quality, has no meaning independent of the term "significantly." 40 CFR 1505.18.
In order to determine the "significance" of the federal action, both the context and intensity of the action must be considered. Both short and long-term effects, and direct as well as indirect effects must be considered. Among the indirect effects that must be evaluated in determining whether an EIS is required are:
Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably Foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
40 CFR 1508.8(b).
Taken as a whole, the CEQ regulations define major federal actions as those with effects (direct, indirect and cumulative) that may be major and which are potentially subject to federal control and responsibility. This is not a situation where the area of secondary impacts, or the types of anticipated effects, are so remote or speculative so as to defy characterization and assessment.
The entire project is under the direct control of USACE, since the proposal to place cut and fill material in the floodplain and to place coarse and fine coal waste material in Jake Campbell Branch are subject to the jurisdiction of Sections 404 and 402, respectively, of the Clean Water Act. To the extent that the federal authorization is sought, NEPA commands that the full range of effects flowing from the proposed project and the agency decisions be considered. MSHA, as another federal agency with review and approval authority over the proposed project, should be a cooperating agency in the preparation of the required environmental documentation under NEPA.
To the extent that the USACE determines that the project or any portion thereof is within the ambit of its regulatory jurisdiction, steps should be promptly taken to assure commencement of the scoping process for development of an environmental impact statement for this project. Among the considerations to be assessed are:
* Direct terrestrial and aquatic habitat losses associated with the project; * Downstream water quality and quantity impacts from the proposed project;
* Public health, safety and environmental consequences associated with the failure of the structure(s);
* Cumulative hydrologic impacts, habitat consequences and public health and safety consequences associated with construction of this proposed project against the backdrop of all existing and other proposed coal waste projects within the North Fork watershed;
* Alternative locations, configurations, and technologies, including a no action alternative;
* Mitigative measures that can be employed (although proposed mitigation cannot be used to make a significant project insignificant for purposes of NEPA review).
Please place me on the mailing list for any notices relating to the preparation of environmental documentation under NEPA with respect to this major federal action.
II. The Application Does Not Satisfy the Section 404(b)(1) Guidelines
Essential to proper application of the 404(b)(1) guidelines is the stepwise assessment of impacts to aquatic habitat and waters of the United States. Where a request is made to place dredged or fill material in Waters of the United States, the applicant must first define the project purpose, and the agency must independently assess the project purpose and then determine whether the impacts can be avoided, and if not, how the impacts can be minimized and how they must be compensated for by mitigation.
Assuming, for the sake of argument, that the project could be lawfully considered by USACE under Section 404 of the Clean Water Act, the ready availability of alternatives would dictate the denial of a Section 404 permit.
The Corps of Engineers regulation at 33 C.F.R.> 320.4(a)(1) demands that:
For activities involving 404 discharges, a permit will be denied if the discharge that would be authorized by such permit would not comply with the Environmental Protection Agency?s 404(b)(1) guidelines.
33 C.F.R. 320.4(a)(1).
Among the rigorous requirements of the Section 404(b)(1) guidelines is the mandate to prohibit the discharge of dredged or fill material:
if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.
40 C.F.R. 230.10(a).
The practicable alternatives must include those which do not involve a discharge of dredged or fill material, as well as discharges of dredged or fill material at other locations. 40 C.F.R. 230.10(a)(1)(i), (ii).
The application completely fails to establish the necessity of the impacts on waters of the United States, and fails to demonstrate the lack of feasible alternative technologies and locations for the project that would result in less impact.
The sum total of the alternatives analysis contained in the April 30, 2001 application is this one sentence:
Since there are no viable alternatives to adversely affecting Jake Campbell Branch, the following mitigation plan has been developed as part of Coastal Coal Company?s Application for Corps of Engineers Section 404 Permit.
In truth, there are a range of practicable alternatives that would have less environmental consequence, each of which must be rigorously explored by any permit applicant and independently reviewed by your agency:
* The alternative of underground slurry injection into abandoned underground workings, which are Class V wells regulated by the U.S. Environmental Protection Agency under the Underground Injection Control Program. Slurry reinjection occurs in a number of locations under federal permits within the Commonwealth, and is a feasible, cost-competitive alternative to surface disposal, which has significantly less environmental impact when managed in accordance with the UIC program requirements.
* The alternative of belt filter presses, which mechanically dewater the slurry creating a coal fine ?cake? that can be utilized as a fuel feed or disposed of in a manner that avoids creation of impoundments and which results in less environmental impact. This technology is in routine use in the coalfields, and is thus presumptively cost-competitive with slurry impoundments once those impoundments are ?fully costed? to include environmental impacts and mitigation. Background information on the technology is attached.
* Alternative locations, designs and configurations for the waste structure. The structure and associated preparation facilities are located at the lower reaches of the watershed, presumably for convenience, and resulting in much greater area of stream reach that is isolated by placement of waste material and channelization, and thus damaged. Alternative locations, designs and configurations should be fully explored which would have less impact.
Absent submission of an alternatives analysis meeting the requirements of the 404(b)(1) guidelines, the application must be rejected.
III. The ?public interest? requires that new proposals for coal waste impoundments such as this one be rejected.
Assuming for the moment that the substantial legal hurdle of placement of waste material in waters of the United States could be surmounted (or the proposed rulemaking removing that prohibition is finalized and withstands judicial review) and assuming that full NEPA compliance were achieved, the ?public interest review? that must precede any decision of the Corps of Engineers to issue a permit under Section 404 of the Clean Water Act, dictates the denial of new coal waste impoundments in waters of the United States due to the environmental impacts and potential risks posed to downstream populations and resources, and the ready availability of alternative technologies for processing coal preparation wastes.
The Corps of Engineers has developed a policy which is applicable to the review of all applications for a Department of the Army permit, called the ?public interest review.? 33 C.F.R. 320.4(a)(1). In addition to the obligations of your agency under the National Environmental Policy Act, and those imposed under the Section 404(b)(1) guidelines, the public interest review policy instructs that
the decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of this general balancing process.
* * * * All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economic, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people.
33 C.F.R. 320.4(a)(1).
The obligation to conduct a public interest review is not satisfied merely by undertaking the required analysis under the National Environmental Policy Act, but rather is a distinct obligation from both the NEPA mandate and the requirements of Section 404 of the Clean Water Act. Even if it were determined that the environmental consequences of the proposed project were without significant environmental effect, (a proposition which is not supported by the record), the responsibility of the agency under the public interest review is distinct and separate from its obligations under NEPA and the 404(b)(1) guidelines, as recognized in Van Abbema v. Fornell, 807 F.2d 633, 637-8 (7th Cir. 1986):
[r]elative absence of significant environmental effects does not translate directly into overall social benefit. The Corps must follow two distinct, if parallel, guidelines in issuing a permit after a FONSI. First, Section 102(2)(E) of NEPA, 42 U.S.C. 4332(2)(E), requires all federal agencies to ?study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.? And second, Corps regulations require that a permit shall issue only after a general ?public interest review? determines that the benefits outweigh the detriments of a proposal.
Id. at 638.
The Council believes that in this instance, the factors that must weigh most heavily in determining wherein lies the public interest are these:
* The high degree of certainty of adverse effects and environmental damage from the project, including direct and indirect terrestrial and aquatic impacts of the construction and routine operation of the project and the risk of damage in the event of releases or failure of the structure(s);
* The ready availability of safer, cost-competitive alternative technologies that would avoid or minimize terrestrial or aquatic impact;
* The potential to relocate waste disposal areas within the area and within the watershed so as to minimize impacts to Jake Campbell Branch, and to locate activities to avoid or minimize floodplain and stream impact;
* The lack of posted bond or financial instrument to assure compensation for any damage done to downstream resources associated with releases or failures of the structures, or increased flooding due to alterations of the hydrologic response of the watershed;
* The lack of public or private need for the proposed structures given the availability of alternatives for processing and disposing of wastes.
For each and all of these reasons, even if the Corps of Engineers assumes regulatory jurisdiction over the placement of coal wastes in waters of the United States, the ?public interest? dictates that proposals such as this to construct new coal waste impoundments in waters of the United States, particularly where the impoundment or pooled slurry is to be located near underground workings, should be rejected as being contrary to the ?public interest.?
The construction of high-hazard slurry impoundments to support coal cleaning is an activity that is both unnecessary and unwise. Cost-competitive, safer coal preparation waste management alternatives exist and are employed in the coal industry that allow for application of dry filter press technology to avoid impoundment of wet slurry material, or for reinjection of coal slurry into abandoned underground mine workings under the scrutiny of and in compliance with the Underground Injection Control program of the Safe Drinking Water Act.
The Council believes that it is past time that the Corps of Engineers applies and enforces its regulations, which clearly exclude the placement of waste materials from those activities that can be authorized under the Section 404 program. Alternatively, to the extent that the corps exercises jurisdiction over the placement of coal wastes in wastes of the United States, both the 404(b)(1) guidelines and the ?public interest review? requirements dictate denial of new coal waste impoundments such as that proposed.
The Corps of Engineers is specifically requested to deny the application to place coal waste material in a water of the United States, and to similarly deny any other pending applications for authorization to place coal wastes in waters of the United States. In the event that your agency refuses to refrain from issuance of additional nationwide or individual permits for placement of coal wastes in waters of the United States, please be advised that this letter serves as a notice of intent that the Council reserves the right, without further notice, to commence civil litigation under the Administrative Procedures Act to secure full implementation of the Clean Water Act. I am authorized by Joe Childers, counsel for Kentuckians for the Commonwealth, to indicate that the organization shares these concerns and similarly gives notice that it may commence suit unless these measures are taken.
Tom FitzGerald Director
Lee Barclay, PhD U.S. Fish and Wildlife Service 446 Neal Street Cookeville, Tennessee 38501
Larry Adams, Director Division of Permits DSMRE #2 Hudson Hollow Frankfort, KY. 40601
Eric Sommerville USEPA Region IV Atlanta GA 30365 See: also West Virginia Coal Association v. Reilly, 728 F.Supp. 1276, 1285 (S.D.W.Va. 1999), affirmed 932 F.2d 964 (4th Cir. 1991); Friends of Santa Fe County v. Lac Minerals, Inc., 892 F.Supp. 1333 (D.N.M. 1995). According to Sierra Club v. Pena, 915 F.Supp. 1381 (N.D. Ohio 1996), aff?d 120 F.3d 623 (6th Cir. 1997), the citizen suit provision of the Clean Water Act does not provide for suit directly against the Corps of Engineers for violation of Section 404 of the Act. Thus, to the extent that the COE refuses to enforce the waste prohibition, suit may be maintained without 60-days notice, under general federal question jurisdiction, 28 U.S.C. 1331, and the Administrative Procedure Act, 5 U.S.C. 701-706.