Thursday, January 31, 2008
Abandoned Mine Posts
Friday, January 25, 2008
MTR Part V: Controversy about the proposed change
As is to be expected with any hot button issue, opinions vary and opposition is fierce. Here are just a few examples:
Opponents’ opinions
“OSM proposes to change the rule to conform with its deviant behavior rather than requiring the coal industry to comply with the law.” (Lyric, 2007)
“It would exempt from the stream buffer zone rule those very mountaintop removal activities that are most destructive to streams, including “permanent excess spoil fills, and coal waste disposal facilities” — in other words, giant valley fills and sludge-filled lagoons.” (Lyric, 2007)
"What they are doing is, they are sacrificing Kentucky to the coal-mining powers," said Patty Wallace of Louisa, who is active with the group Kentuckians For the Commonwealth.” (Bruggers & Dunlop, 2007)
Tom FitzGerald, director of the Kentucky Resources Council, said yesterday that OSM has mischaracterized both the state of existing law and the impact of its proposed rule. "It's irresponsible from an ecological standpoint," FitzGerald said of the rule change sought by OSM. "It caters to worst mine plans rather than best practices, and it will further fuel outrage of people in the coalfields, in the scientific community and those who rely on coal-fired power and are tired of seeing coal mined in such an irresponsible manner." (Bruggers & Dunlop, 2007)
Supporters say
Bill Caylor, president of the Kentucky Coal Association, an industry group, said the proposed rule “merely continues the status quo. I don't see things changing at all. This rule simply recognizes existing practice." (Bruggers & Dunlop, 2007)
Ben Owens, an OSM spokesman, contended that the new rule "would not legalize anything that was not legal before." (Bruggers & Dunlop, 2007)
Courts rule
“The original rule was upheld by the 4th U.S. Circuit Court of Appeals, which overturned a lower court decision holding that substantial portions of streams could not be buried under excess spoil or other mining-related structures.” (Bruggers & Dunlop, 2007)
“In October 1999, the Federal District Court ruled that the SBZ rule prohibits valley fills in streams and held that the Stream Buffer Zone Rule is more stringent than the Clean Water Act 404(b)(1) guidelines on placing fill into streams. There is concern such an interpretation of the SBZ rule makes it inconsistent with SMCRA.” (Mining, 2007)
“In April 2001, the U.S. Court of Appeals for the Fourth Circuit reversed the Oct 1999 decision on constitutional grounds (11th Amendment).” (Mining, 2007)
“In May 2002, in Kentuckians for the Commonwealth, Inc. v Rivenburgh, the district court held that SMCRA did not authorize the disposal of overburden in streams.” (Mining, 2007)
“In February 2003, the 4th Circuit Court of Appeals in KFTC v. Rivenburgh, stated that SMCRA at 515(b)(22)(D) envisions that overburden would be placed in waters of the U.S. and reversed the May 2002 District Court decision.” (Mining, 2007)
Resulting confusion
It becomes more and more obvious that not only is the rule unclear, but SMCRA contains a great deal of ambiguity regarding the practices of mountaintop removal. I find it difficult to imagine that OSM truly believes that valley fills, which in effect destroy headwaters streams, constitute a minimization of adverse impacts. However, it seems that the problem lay not in the SBZ rule but in the interpretation of SMCRA and other relevant laws.
Wednesday, January 16, 2008
MTR Part IV: Controversial proposed change to Stream Buffer Zone by OSM
Bush Administration’s Proposed New Rule (3/21/02 Draft)
§ 816.57 Hydrologic balance: Stream buffer zones.
(a) General. You must first obtain specific approval from the regulatory authority before conducting surface mining activities within 100 feet of a perennial or intermittent stream. Except as provided in paragraph (b), the regulatory authority may authorize such activities only after making a written finding that the activities will—
(1) Not cause or contribute to a violation of applicable State or Federal water quality standards.
(2) Be conducted to minimize disturbances to the quantity and quality of water in the stream. This finding need not be made with respect to any reach of the stream that is upstream of a sedimentation pond located within the stream channel; provided that the pond meets the location requirements of § 816.46(c)(1)(ii) of this part.
(3) Be conducted in a manner that minimizes disturbances and adverse impacts to fish, wildlife, and related environmental values of the stream.
(b) Placement of excess spoil in perennial or intermittent streams. The findings required in paragraphs (a)(1)-(3) do not apply to the construction of excess spoil fills in perennial or intermittent streams. To approve construction of fills in these streams, the regulatory authority must find that the applicant has—
(1) Minimized the creation of excess spoil to the maximum extent practicable as required under § 780.18(b)(3) of this chapter and § 816.102(b) of this part; and
(2) Designed the fill to avoid or minimize adverse impacts to perennial or intermittent streams to the extent required under §780.16(c) of this chapter and § 816.97(f) of this part.
(Mountains, 2007)
“The agency is proposing to fully implement the requirements established by Congress, and water from strip-mined areas still must meet state and federal water-quality standards," OSM contends. (Bruggers & Dunlop, 2007) The Office of Surface Mining points out that this proposal is a revision that will clarify existing requirements for mining in and around streams. They say that this is an effort aimed at achieving regulatory stability in Appalachia. (Owens, 2007)
OSM admits that valley fills disturb streams, but they must work within the bounds of SMCRA. It is their contention that this change will not have any noticeable impact on the way things are done in Appalachia.
Under the current stream buffer zone regulation, the length of streams permanently or temporarily directly impacted will be considerable. Approximately 535 miles of intermittent and perennial streams will be temporarily or permanently affected nationwide just from surface coal mining operations permitted from October 1, 2001 to June 30, 2005. We do not anticipate that revision of the stream buffer zone as described in the alternatives would cause additional stream disturbance as compared to the “No Action” alternative. (Enforcement, Environmental Impact Statement, 2007)
It is interesting to note that OSM did consider several alternatives, one of which would have amended the rule to prohibit any mining activity within the 100ft buffer zone. They discarded this alternative early on in the process, saying it would not be consistent with SMCRA regulations because it would significantly impact coal extraction activities, citing the following: “[OSM must]…assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being, is provided and strike a balance between protection of the environment and . . . the Nation’s need for coal as an essential source of energy.” (Enforcement, Environmental Impact Statement, 2007)
Hope and Hard Work Trainings
HOPE AND HARD WORK TRAININGS
FOR APPALACHIAN WATERSHED WORKERS
Greetings! The Eastern Coal Regional Round Table is seeking determined
citizens' groups or organizations that are concerned with cleaning up
their local watershed, improving their community and learning how to
find the money to make improvement possible. The ECRR is offering the
opportunity to participate in a three-part training program called Hope
and Hard Work.
Spring training sessions will occur during March 26th-28th at Canaan
Valley Resort for Northern Coalfields groups and April 9th-11th at
Breaks Interstate Park for groups from the Southern Coalfields. The
ECRR will cover participants' lodging, food, and registration expenses.
Each attending group representative will participate in one of two
course tracks; water quality monitoring and fiscal sustainability. The
water quality monitoring track will teach groups how to effectively
monitor acid mine drainage (AMD) and wastewater contamination and how to
use this data to obtain funding to implement cleanup projects. The
fiscal sustainability track will focus on obtaining funds to build the
size, effectiveness, and capacity of your group or organization. A
topic based agenda can be found on the next page.
Two representatives from each group must commit to all three sessions -
the spring training, the summer practicum and the fall training.
We hope that you will join us in embarking on this exciting project to
restore Appalachia's watershed communities! If your group is interested
in this opportunity for free training focused specifically on the
coal-impacted counties of Appalachia, please contact us by email info@easterncoal.org or by phone at 304.329.8409. If you know of other groups that may be interested in
participating, feel free to pass along this information!
We look forward to building new partnerships with you that will
strengthen and expand on the good work of groups like yours in Coal
Country.
Sincerely yours,
Sarah Walters
Eastern Coal Regional Roundtable
119 S. Prince Street, Suite 209
Kingwood, WV 26537
Tuesday, January 8, 2008
MTR Part III-Stream Buffer Zone Rule
Stream Buffer Zone Rule (SBZ)
Existing Buffer Zone Rule 30 CFR § 816.57
§ 816.57 Hydrologic balance: Stream buffer zones.
(a) No land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream. The regulatory authority may authorize such activities only upon finding that—
(1) Surface mining activities will not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream; and
(2) If there will be a temporary or permanent stream-channel diversion, it will comply with Sec. 816.43.
(b) The area not to be disturbed shall be designated as a buffer zone, and the operator shall mark it as specified in Sec. 816.11.
[48 FR 30327, June 30, 1983] (Mountains, 2007)
OSM is not authorized to prohibit Mountaintop Removal Activities under SMCRA. All rules are extracted from SMCRA guidelines during rulemaking.[1] The Stream Buffer Zone Rule applies to mining activities in or around intermittent[2] and perennial streams.[3] There is much controversy regarding this rule and what proposed changes will mean.
The following is representative of environmental group’s interpretation of the SBZ rule: “The Stream Buffer Zone Rule prohibits coal-mining activities from disrupting areas within 100 feet of streams unless those activities in no way impact water quality or quantity.” (Lyric, 2007) But upon closer study, I find that OSM interprets the law as prohibiting activities that adversely impact water quantity or quality. In their reasoning, the law provides for a variance when in their estimation, the proposed activity will not cause significant damage. I think the misunderstanding stems from the use of the phrase, “will not adversely affect the water quantity and quality…..” (Mountains, 2007) A literal interpretation of this statement would lead one to believe that the activities in question are completely prohibited when in fact the actual wording in SMCRA uses the phrase, “minimize adverse impacts….” (Enforcement, Environmental Impact Statement, 2007) OSM is charged with balancing the nation’s need for energy with environmental concerns. Therefore, they will not and cannot, completely prohibit any mining activities allowed by SMCRA, but rather they can only regulate them to the extent allowed by law. “A Stream Buffer Zone is not required by the Surface Mining Control and Reclamation Act of 1977 (SMCRA). OSM created the existing Stream Buffer Zone rule as a framework for making sure this standard is met. While the law (SMCRA) does not prohibit most mining activities within and around streams, OSM and States have used the Stream Buffer Zone rule to require mine operators to take additional precautions within that zone.” (Owens, 2007)
Thursday, January 3, 2008
Mountain top removal Part II: SMCRA and the AOC requirement
SMCRA
The Surface Mining Control and Reclamation Act (SMCRA) was passed in 1977 to regulate all types of surface mining, including Mountaintop Removal. It may come as a surprise to some, that Mountaintop Removal Mining is not prohibited by SMCRA but is rather encouraged as a means of economic growth.[1] The next few posts will discuss the parts of this law that apply to MTR.
Approximate Contour Requirement (AOC)
Lands disturbed by mining must be reclaimed to their approximate original contour. SMCRA creates limited exceptions to this requirement for mountaintop removal, but operators wishing to take advantage of one of these exceptions must render the mined lands capable of one of several enumerated post mining land uses. It should only be allowed in situations where beneficial post mining land uses could compensate for the adverse effects of not returning the land to AOC, such as the greater number and size of the excess spoil fills generated by mountaintop removal. The Office of Surface Mining’s alternative post mining land use regulations impose a higher and better use reclamation standard on MTR. A post mining land use cannot be approved where the use could be achieved without the waiving of the AOC requirement, except in those rare instances where it is demonstrated that a significant public or economic benefit will be realized there from; and the post mining land use must always offer a net benefit to the public or the economy. (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999)
So, in other words, if the reclaimed land has a better use (according to what SMCRA considers better) than the existing use prior to mining then an AOC waiver[2] will be granted to the mine operator. The Office of Surface Mining has a list of specific uses constituting better usage. They are industrial, commercial, agricultural, residential, and public facility.
“[Industrial use includes] heavy and light manufacturing facilities, production of materials for fabrication and storage of products.” (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999) This is considered a benefit because the writers of SMCRA believed it would create local job opportunities and stimulate the economy.
“[Commercial use includes] retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments.” (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999)This type of use provides a service to residents and increases the potential for tourism.[3]
Agricultural use is considered beneficial with forestry topping the list.[4] OSM regulations state that low-intensity, low-maintenance agricultural activities, such as grazing and pastureland are discouraged but that is often exactly what is done during reclamation. Some states are now beginning to use a different approach with less compaction, enabling replanted trees to flourish on past mining sites.[5] These techniques show a great deal of promise.
“[Residential use includes] land used for single- and multiple-family housing, mobile home parks, or other residential lodgings. “ (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999) This use provides needed housing to residents in the area, thus making it a better use according to SMCRA.
Public facility is the final approved use of reclaimed land. Interestingly, fish and wildlife habitat cannot be approved as a beneficial use in and of itself, even though that was most likely the pre-mining function. Fish and wildlife habitat is only considered better use if it is an integral part in the plan of a public facility. “Public facility use may include schools, hospitals, airports, reservoirs, museums, and developed recreational sites such as picnic areas, campgrounds, ball fields, tennis courts, fishing ponds, equestrian and off-road vehicle trails, and amusement areas together with any necessary supporting infrastructure such as parking lots, and rest facilities.” (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999)
[1] Some believe the creation of flat land in mountainous areas makes good economic sense. Others, who vehemently oppose the practice, disagree to say the least. MTR has become a hot issue to be discussed with care.
[2] An AOC waiver or variance grants permission to the mining operator to use an alternate reclamation plan other than approximate original contour as specified in SMCRA.
[3] Some locals would argue that the mountains are what the tourists come to see.
[4] Ideally all reclaimed sites would be planted with trees, but SMCRA regulations require compaction of the soil to prevent erosion. Trees have great difficulty growing in this type of environment.
[5] Appalachian Regional Restoration Initiative, http://arri.osmre.gov.
