Fixing OSM(RE), Part 3 — Here’s a solid plan

Today, we’re going to start off the week with a guest blogger, Tom FitzGerald of the Kentucky Resources Council. This is a speech that Fitz gave at an OSMRE annual meeting at Kentucky’s Dale Hollow Lake State Park earlier this month, and it provides a blueprint for fixing the agency … 

It is such a pleasure to be here with you.  I remember being at your annual meeting in those bleak days in 1981 after Secretary James Watt assumed control of the Department of Interior, and being with you several times during the intervening 28 years - 20 rough years of successive hostile administrations that set about to dismantle both the 1979 regulations and federal oversight, and the 8 years of inattention during the Clinton Administration.

I’m proud and humbled to have been asked to be here with you as we stand at the threshold of significant change in the coalfields.

The future of coal is tied inextricably with climate change, since combustion of coal is responsible for 41% of global CO2 emissions from energy use.  As this nation and others move to more fully “cost” coal as a fuel by monetizing carbon emissions, the cost of coal-fired electricity will rise, and the ripple effects of that increase will be felt in all corners of our economy.

My focus during this time remains in line with yours – to minimize the heavy footprint of coal on the land, water, people and communities of the coal-producing regions.

I was asked to address the issues that I see as most significant from an environmental standpoint.

The overarching issues I see are two:  first, the need for a Director for the Office of Surface Mining who will rehabilitate an agency in distress and restore to the administration of the 1977 law the central principles that drove its passage – a belief that mining should be a temporary use of land, and that the rights of people living downhill and downstream should be fully protected.  We need a Director who will come to work each day with those goals, and will help this agency recover a potential that existed for a brief period of time before the advent of the Reagan era.  Along with the leadership, we need to restore a level of funding that will allow the agency to fully implement its oversight functions, and a regulatory oversight policy that combines on-the-ground assessment of state regulatory programs with analysis of the implementation of state program components by the state agencies, in order to identify weaknesses in program implementation in a more timely and efficient manner.

Going forward, the new Administration needs to address a number of areas where we have lost our way, and have betrayed the promise Congress made to those who live in coalfield communities:– Where the law contemplates that the approximate original contour of land be restored both in elevation and configuration, the elevation requirement has been ignored, and significant amounts of spoil material have been 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.

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

– Where the federal regulation provides for 100-foot stream buffer zones to protect intermittent and perennial streams from adverse effects of mining on water quality and habitat, OSM has allowed the states to adopt disparate rules often ignoring those areas filled by spoil when applying buffer zones.

– Though Congress intended that the choice of technology would follow, rather than dictate, environmental protection, the coal industry has   systematically replaced the workforce with larger machines more indiscriminate to the terrain, and concepts such as “contemporaneous reclamation” have been weakened in order to accommodate this shift.

– Though 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, OSM has interpreted that phrase to allow state regulatory authorities to define the term or implement an approved program in a manner that allows the issuance of mining permits to proposed operations even though information in the permit application or otherwise available to the regulatory authority indicates that effluent or groundwater migration from the proposed operation would likely cause or contribute to a violation of one or more applicable water quality standards in a stream, river, or lake downgradient from the proposed operation.

–  Though Congress intended to prohibit surface impacts from underground mines on certain public and private lands, the 1999 regulation reversed the agency’s prior interpretation that Section 522 of the federal Act prohibited surface impacts from underground coal mines in certain key areas, including national parks, wildlife refuges, wilderness areas, state parks, occupied dwellings, public buildings, schools, churches, cemeteries and roads, and in so doing put at risk of damage from subsidence, some 29,600 homes and more than 15,000 acres of protected parks and open space lands.

–  Though mined sites present heightened risks of surface and groundwater contamination from disposal of coal combustion ash over undisturbed areas, OSM has continued to advocate adoption of a set of regulations allowing co-disposal of such wastes in mined areas.  Comprehensive regulations mandating proper characterization and responsible management of coal combustion wastes by the Environmental Protection Agency should be a priority, and OSM should refrain from promulgating regulations to encourage or allow indiscriminate or uncontrolled backstowing of such wastes on mined areas.

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

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

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

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

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

The new Administration has the tools needed to restore this agency to its potential, and to fulfill Congress’ promise to the citizens of the coalfields.  Let us hope that the Administration chooses wisely, and supports the new management of the agency as we try to reclaim what has been lost over these last three decades. Thank you for letting me be a part of this year’s meeting.