National Citizens Coal Law Project
A Project of the Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2845 fax
September 8, 2000
Joe Vitalis by e-mail
US Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington DC 20460
John Tinger by e-mail
US Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington DC 20460
Re: Proposed Rule, Coal Mining Point Source Category
Dear Mr. Vitalis:
These comments are submitted on behalf of the National Citizens Coal Law Project, a project of the Kentucky Resources Council, Inc. That is dedicated to providing legal and technical assistance to coalfields citizens and citizen organizations on the environmental consequences of coal mining operations. These comments are also endorsed by the Citizens Coal Council.
The Kentucky Resources Council is a non-profit environmental advocacy organization whose members include numerous individuals who live, work, and recreate in the coal-bearing regions of the state, and who have been adversely affected by improperly reclaimed surface and underground mining operations. Council members have an abiding interest in assuring that remining of previously mined lands is conducted in such a manner that a net improvement to the environment will occur. Where incentives are offered to encourage remining, the Council believes that those incentives should not include a lowering of environmental protection standards, but rather should focus on financial incentives that encourage remining without compromising the post-remining environmental quality of the area.
The Citizens Coal Council is a federation of organizations in 16 states and the Navajo Nation whose members live in the coal fields and are directly affected by coal mining. The goals of the Citizens Coal Council are to protect water resources and to return law and order to the coal fields through enforcement of federal and state coal mining laws.
The Council has reviewed the proposed rule with respect to the proposed effluent guidelines for coal remining operations, and requests that the rule be withdrawn pending compliance with various laws, including the Surface Mining Control and Reclamation Act of 1977, the Clean Water Act, the Federal Advisory Commission Act, and the National Environmental Policy Act.
The process followed in the development of the proposed rule failed to involve the most important stakeholders in the process in a meaningful manner - the public who live, work, and recreate in areas affected by remining operations - those who live downhill and downstream. Predictably, the resulting proposed rule is skewed towards assisting coal operators to cut costs in remining previously disturbed areas, while sacrificing the ability to achieve meaningful improvements in baseline conditions from previously mined areas.
Substantively, the proposed rule represents a substantial retreat from current practice in states such as Kentucky, and is an arbitrary and capricious exercise of rulemaking authority which will be challenged in court should it be finalized as proposed.
Background On Remining
The Kentucky Resources Council, Inc. has long supported initiatives to encourage responsible remining of previously-mined areas, provided that the opportunity for appreciable environmental improvement is presented, the mining and reclamation plans have adequately assessed and planned for reclamation of the previously-disturbed areas, and environmental protection goals and requirements are not lowered in order to encourage remining to the point where the public benefit is questionable.
The Council s has supported the creation of initiatives for remining previously mined and unreclaimed areas such as support for financial incentives which make remining of previously mined areas more attractive without creating or perpetuating public exposure to impacts from AML sites, including crediting or waiving abandoned mine land fees for the reprocessed or remined coal. The Council has not supported proposals to reduce bonded liability for such operations unless that reduced liability were assumed by another entity, such as the state or AML program, and has steadfastly opposed efforts to lower environmental standards below reasonable levels.
Currently, a number of opportunities exist under law for differential standard-setting for remining operations. Alternative iron and manganese standards are potentially available under the Rahall Amendment , alternative backfilling and grading, revegetation, time and distance, post-mining land use, and bonding provisions are also available for such operations, and limitations on the duration of bonded liability and waivers from permit blocking under 30 U.S.C. 1260(c) are also available.
There is a point, however, at which remining standards are lowered below the reasonable expectations of downstream water users and landowners who have a right to expect that environmental standards will be met in any new mining. While encouraging the remining of previously mined areas is a valid goal, that goal should not be pursued by lowering standards to the point that we have subsidized a second-cut mining operation, and lowered the costs of that remining, by shifting the environmental costs downstream or downhill by requiring that neighbors and other water users accept perpetually degraded water quality or poorly-reclaimed lands.
The use of alternative effluent limits must be limited to those cases in which an operation proposes to include a remining areas within a permit or to permit a remining area and the availability of alternative limits for iron and manganese is essential to the viability of the project. The agency should be aware (and would be, if proper guideline document investigation had been performed) of the fact that much of the surface coal mining in the Appalachian coalfield states already occurs on second-cut or mountaintop operations that are reaffecting previously mined areas, and which are already viable and do not need alternative effluent standards.
There has been, without development of regulations implementing the Rahall Amendment, a significant amount of mining of previously mined lands, particularly in the Appalachian coal fields, where first cut contour mines have been remined by second cut contour or mountaintop removal methods. These operations have occurred under existing regulations, and obviously have not been dissuaded from remining due to the site conditions. In fact, in many circumstances, the remining of those lands is far more economical than a virgin contour mine, since the access and haul roads (and on occasion, sediment control structures) are in place, the spoil handling requirements are limited to use of reasonably available spoil, an alternative effluent limitation provision is available under the Clean Water Act, the revegetation requirements are limited to stabilizing the area, and the 1992 Energy Policy Act Amendments allow a waiver of the permit block requirements for remining sites.
The Proposed Rule Failed To Comply With The Expedited
Guideline Development Process And Violates The APA
The failure to engage the public in a meaningful manner in the development of this rule and associated guideline documents violates the core principle of the expedited guideline development process - that of stakeholder involvement. EPA failed abjectly to seek the views of environmental interest groups, and coalfield citizens and citizen-advocates, despite acknowledgment that such involvement was integral to choice of subjects for, and development of, expedited guidelines. 65 FR 37783.
Additionally, the utilization of an expedited guidelines plan does not excuse EPA from compliance either with the requirements of 5 U.S.C. 553 to provide an adequate statement of the basis and purpose of the proposed and final agency action, or to produce a rule which is rational, consistent with the authorizing statute, and which is not arbitrary, capricious, or otherwise inconsistent with law. 5 U.S.C. 706. The proposed rulemaking, undertaken in violation of the expedited guidelines procedures, abridges the public s right to adequate notice and comment, and proposes to ground a rule on a very incomplete record.
Specific Areas of Concern
l. The use of the expedited guidelines approach to the rulemaking has resulted in a proposed rule that lacks sufficient support in the administrative record, and which seeks to cover the acknowledged substantial data gaps in the guideline documents regarding the water quality impacts of the proposal to rely largely on BMPs to satisfy BPT, by relying on public commenters to fill those data gaps during the comment period, even as the comment period is abridged substantially under the expedited guidelines development approach.
The agency acknowledges that the proposal was developed more quickly than a typical effluent guidelines proposal and contains less information than EPA usually provides for effluent guidelines. EPA proposes to identify any gaps and gather additional information through the public comment process[,] 65 FR 19445, in effect improperly abdicating or delegating the requirement to justify the rule to the public rather than providing a rational basis for the proposed rule as required by 5 U.S.C. 553 and 5 U.S.C. 706.
The expedited guideline document development process was also misapplied in this case, because, contrary to a core principle of the process, no meaningful engagement, dialogue or participation was invited from the coalfield citizens or the advocacy organizations involved in protection of the land and water resources of the coalfields, resulting, predictably, in a proposed rule that has significant practical and theoretical implementation and enforcement problems. The expedited effluent guidelines program was intended to broadly include stakeholders as a way of lowering the necessity for agency data collection, as well as identifying ways to develop the guidelines to maximize environmental protection in cost-effective ways. The failure to engage coalfield citizens and advocates has resulted in a rule which relies on an inadequate data base, and which threatens to reduce, rather than improve, environmental protection relative to remining operations.
2. Compliance with the National Environmental Policy Act has not been effected. The rulemaking completely fails to consider the negative environmental consequences associated with the rule on states such as Kentucky which are required by state law to adopt EPA effluent limitations once promulgated, and which have already developed and implemented other approaches to determination of BPJ for Rahall-type permits -- approaches which, like Kentucky s treatment-cost based approach to setting alternative BAT and BPT standards, are precluded by the cumbersome approach to setting effluent standards contained in the proposed rule.
3. The rulemaking fails to provide the rational connection between the facts found and course of action proposed that is required by 5 U.S.C. 706, since the agency fails to provide adequate and proper evidence correlating the application of best management practices to necessary improvements in water quality sufficient to meet the effluent and water quality requirements. While the proposed rule purports to rely on site-specific application of best management practices to satisfy the requirement of BPJ for remining operations, the record lack sufficient data showing the direct correlation between application of individual BMPs on a particular minesite and the improvement of the quality of the discharged water for iron and manganese.
4. The rulemaking fails to evaluate and consider the negative environmental consequences of establishment, at this late date, of a standardized procedure for setting baseline and during-mining standards based on application of BMPs, on state programs which are (a) required to adopt federal regulations verbatim and (b) which currently utilize BPJ procedures that set incremental interim treatment standards based on the economic cost of treatment, rather than application of unsubstantiated BMPs. The long delay in development of federal guidelines has resulted in states such as Kentucky developing approaches to implementation of remining effluent limits that are more defensible and enforceable than those proposed, and the mandated adoption of these proposed effluent limits and methodology will erode water quality improvement in those states.
Related to this is the lack of an anti-backsliding provision in the proposed rule to assure that all programs and all permits issued under existing state or federal programs which contain BPJ limitations imposed under the Rahall Amendment not be allowed to reduce levels of treatment and control required wither on a programmatic or permit-specific basis. Any final rule should include a savings clause allowing states to utilize alternative approaches to setting alternative standards for iron and manganese providing that the statutory language of the Rahall Amendment is met.
5. The proposed rule also fails to assess or evaluate the environmental consequences and the effect on remining of the proposal to apply current effluent guidelines to any active mining areas , including areas where active mining is occurring on areas which are being remined.
The effect of this proposal, which would not extend the possibility of alternative iron and manganese limitations to operations which are mining an area that include remining, and in which the drainage from the virgin and previously-mined areas are commingled, is to substantially restrict the availability of the Rahall Amendment in a manner that we believe is inconsistent with the intent of that provision.
The Council is also concerned that the real effect of this rule will be to encourage avoidance of the remining areas and diversion of pre-existing flow away from areas to be mined, since by commingling the wastewaters during the active mining phase, the operator would be required to treat any resulting wastewater to the most stringent standards. It defies logic and cuts against the grain of the proposal to allow alternative iron and manganese standards, to discourage inclusion of areas with pre-existing discharges and to impose interim treatment standards which encourage inclusion and management of those flows to improved, albeit less-than-Part 434, limits for iron and manganese.
The proposal is illogical in that it holds the operator which has included previously-mined areas within a permit and has commingles wastewaters for treatment purposes, to the highest standards, 65 FR 19443, yet proposes to extend the Rahall Amendment provision of no worse than baseline to pre-existing discharges which would be allowed to remain after the remining activity and which would not be required to be eliminated.
The rule seems to lack a fundamental understanding that remining occurs, where it occurs, not because of any benevolent motivations by the mining company, but because on balancing the economics of treatability of the discharge, the applicable effluent and water quality standards, the availability and market value of the coal, and other purely economic functions, the decision is made that it is a prudent economic investment in the mining of those reserves. Allowing a Rahall-type break after mining for any long-term discharges, provides little or no incentive for remining of areas where long-term improvement could be made after mining but, because of the loading of iron and manganese from the areas to be remined, some relief is needed during mining, but will provide an invitation for new operations in areas where pre-existing discharges can be diverted from the mined area or piped through the mined area, and an unwarranted break can be given after the mining for any pre-existing discharge routed through the mined area after bond release.
The proposal is a distortion of the intent of the Rahall Amendment, and fails to accord flexibility where needed during mining, while giving unwarranted breaks to active mining operations by lowering after-mining effluent discharge requirements.
6. The rule has significant negative consequences that have not been adequately assessed. Kentucky considered and specifically rejected the approach taken in Pennsylvania, choosing instead to rely on a process which (1) requires adequate background data collection to assess the variability of background water quality conditions; (2) requires that the proposed remining operation be designed to achieve improvements in water quality run-off from the site after mining; (3) encourages inclusion and treatment of all runoff from the proposed remining area to be collected and treated to levels determined after consideration of the costs of treatment relative to the costs of treatment for mining operations absent the pre-existing pollutant loading from the previously mined area; (4) limits applicability of the alternative standard to those cases in which it is shown that such standards are needed based on pollutant loading and (5) imposes enforceable alternative numerical limits based on assumed levels of treatment rather than relying on assumed implementation of BMPs for which the data does not exist to show a correlation between implementation and water quality improvement.
The use of a baseline as a default, and avoidance of establishment of during-mining standards by use of BMPs is inappropriate. The proponents of the rule were informed by Kentucky, a major coal-producing state that has issued Rahall BPJ permits, that the proposal to set effluent limits at baseline would be inconsistent with the Clean Water Act and would be an abandonment of the prospect of improvement of water quality through the application of a treatment standard.
Kentucky also noted, by letter dated May 7, 1998 to Greg Conrad of the IMCC that the substitution of BMPs for effluent limits based on treatment, was inappropriate as stand alone control devices and that BMPs were useful to supplement but not supplant treatment-based standards. Kentucky also noted, as is the case with all mining operations under SMCRA, that BMPs are required for all mining as well as remining sites as a supplement to the point source requirements.
Finally, Kentucky noted that there is a lack of documented reproducible correlation between application of BMPs and quantifiable improvements in water quality. The proposed rule itself notes this, indicating that based on the limited data review it conducted, in only 45 and 44 percent of the cases, respectively, was improvement shown in the acidity or iron loadings from remining operations in Pennsylvania where BMPs were implemented.
A rule proposing, without any evidence in the record positively correlating the application of BMPs to water quality improvement in the discharge runoff, is arbitrary and capricious on its face. Kentucky is correct in noting that [a]s more documentation is developed regarding efficacy of various BMPs in regions of the state/nation, a shift to reliance on BMP implementation alone may be possible[,] although commenters believe that any shift from treatment to source controls, barrier or other BMPs must result in enforceable permit limits capable of being monitored. The rulemaking record does not contain the data to show that in every individual case, application of BMP X or Y or Z, or a combination of same, represents the best practicable control for that operation, and will necessarily result in a quantifiable and appropriate level of effluent improvement. Unless the agency intends to require that the applicant include, in any proposal for alternative effluent limits, the documentation correlating the application of the proposed BMPs to the particular pre-existing drainage chemistry and pollutants loadings, and documenting the improvement that will be achieved thereby, the proposal to use BMPs as a surrogate for appropriate alternative treatment-based limits fails to accord with the requirements of both the Surface Mining Act and the Clean Water Act.
It appears that an unstated goal of the rule is to allow operators to cut costs by avoiding and reducing pre-mining and during mining monitoring to establish baseline loading conditions and to demonstrate meaningful and maximum reasonably achievable improvements during and after mining. We agree with Kentucky that there is no surrogate for proper determination of actual baseline conditions in order to determine the range of variability in stream and discharge conditions and to allow for determination of the achievable improvements over those conditions.
In closing, the regulations, coming fully thirteen years after adoption of the Rahall Amendment are too little, too late. The proposed rule will encourage diversion of discharges rather than inclusion of areas and remining with net overall improvement, and will encourage use of the Rahall provision not to improve during-mining and post mining conditions, but to justify perpetual drainage through remined areas from preexisting sources that do not meet standards. The proposed rule is too cumbersome in the adoption of formulae, and would, in states like Kentucky, make remining more difficult, rather than resulting in more sites being remined.
The rule needs to be withdrawn and reconsidered. Water quality standards must still be met, and in order to assure that remining operations occur which will meet those standards and will result in net environmental improvements, there is a need for achievable and enforceable during-mining effluent standards, developed on the basis of adequate baseline loading information and on the cost of achievement of incremental improvements in iron, pH and manganese loading based on availability of treatment, cost of treatment, and optimization of remining design. BMPs are not a surrogate for calculation of baseline and imposition of treatment-based standards.
In the event that the requested extension of time is granted, these comments will be supplemented during the extended comment period.