Executive Summary Note to Readers--The term "mountaintop removal mining," when used by the public, generally refers to three different kinds of surface coal mining operations (contour mining, area mining and mountaintop removal mining). On the other hand, mountaintop removal mining, when used by the Office of Surface Mining (OSM) and the states regulating coal mining, legally refers to a particular method of mining where the top of the mountain is removed to totally extract underlying coal seams and the reclaimed land is left in a flat or gently rolling configuration that is capable of supporting certain post-mining land uses such as industrial, commercial, residential, agricultural, or public facilities (including recreational facilities). Since the reclamation will leave flat or gently rolling land, this results in a variance from the requirement that mined lands be put back to their "approximate original contour." Thus, the reclamation required of a mountaintop removal mine is markedly different from that of a steep slope area or contour surface coal mine. This report will use the broader terms "mountaintop mining" or "mountaintop operations" to refer to all three types of surface coal mining in the steep slope areas of the central Appalachian mountains. The Surface Mining Control and Reclamation Act of 1977 ( SMCRA), through the Federal agency it created, OSM, regulates surface coal mining operations in the United States but through cooperative Federalism. Cooperative Federalism promotes state regulation, meeting minimum standards set by OSM, as opposed to direct Federal regulation. The Secretary of the Interior grants primacy to a state so that it may regulate coal mining activities within its borders--as long as the program is consistent with the Federal program. In cooperation with the states and coalfield citizens, OSM performs oversight to ensure that the states' programs remain consistent with the Federal program. At the time SMCRA was enacted, there were a few mountaintop operations in Appalachia. But in recent years, in West Virginia, Kentucky, and to a lesser extent Virginia, the number and size of these operations have increased due to market forces and the availability of larger and more efficient earth-moving equipment. Although there has been an increase in the number and size of these operations, they account for a very small percentage of the overall mining in these states. Nonetheless, the citizens of West Virginia and Kentucky appear to be justified in their concerns about the cumulative environmental impacts from mountaintop operations. OSM, other Federal agencies, such as the Environmental Protection Agency (EPA), and the Army Corps of Engineers (COE), and the involved states have responded to citizen concerns and are committed to studying the environmental impacts thoroughly. In response to the public concerns, OSM began developing plans for comprehensive studies of mountaintop operations with other federal and state agencies. These studies will assist in determining what action pursuant to SMCRA and the Clean Water Act (CWA) needs to be taken. These studies, which will provide a foundation for further OSM research and data collection efforts on this issue, include: (1) conducting an inventory of valley fills; (2) assessing impacts of fills on terrestrial and aquatic habitats; (3) determining flooding potential; (4) identifying stream mitigation regulations and the extent of their implementation; and (5) assessing long-term stability of fills. Studies 1, 3, and 5 are being funded by OSM and are currently under way. In July of 1998, the West Virginia Highlands Conservancy filed suit against the West Virginia Department of Environmental Protection (WVDEP) and the COE, alleging that valley fills associated with mountaintop mining had resulted in the loss of West Virginia streams [Bragg v. Robertson, Civ. Action No. 2:98-636 (S.D.W.V.)]. On December 23, 1998, OSM, EPA, COE, the U.S. Fish and Wildlife Service and WVDEP agreed to prepare a comprehensive environmental impact statement (EIS) on the effect of valley fills associated with mountaintop operations. The Federal agencies and WVDEP also agreed to develop a memorandum of understanding (MOU) outlining a coordinated CWA and SMCRA permit review process regarding valley fills. OSM anticipates that much of the technical work done in the studies will be incorporated into the EIS required by the Bragg v. Robertson settlement agreement. OSM field offices in West Virginia, Kentucky, and Virginia have undertaken oversight evaluations on various aspects of mountaintop operations, including postmining land uses and acceptable approximate original contour configurations. These studies will be finalized in the first quarter of calendar year 1999 and plans for the resolution of issues identified during the evaluations are already underway. Additionally, West Virginia's Governor has established the "Task Force on Mountaintop Mining and Related Practices." This task force has focused on impacts to the economy, people, and the environment. The Task Force report makes several recommendations about further study and data compilation, assessment of community impacts, stream mitigation, postmining land use, pro-active regulatory agency involvement, and further mountaintop mining policy development. We believe that when completed, the current studies and activities will resolve outstanding issues surrounding the mountaintop operations and their associated impacts. We recommend that OSM: (1) compile the results of information collection efforts previously mentioned in the ongoing activities; (2) implement appropriate recommendations derived from those activities; (3) coordinate with its state and Federal partners to ascertain the jurisdictional boundaries between various Federal and state agencies; (4) develop guidelines, policies, and rules, as needed to clarify statutory and regulatory provisions; (5) evaluate related issues and assure implementation of the decisions arising from the conclusions of ongoing activities through Federal oversight; and, (6) provide technical assistance to states in implementing new guidelines, policies, and procedures. OSM currently has earmarked funds for this issue and will continually evaluate the adequacy of those funds. The EIS may require a supplemental appropriation for fiscal year 1999. We are committed to ensuring compliance with SMCRA and, in so doing, protecting the public and the environment from the adverse effects of surface coal mining. We will aggressively pursue the ongoing studies and activities mentioned in this report to resolve the issues related to mountaintop mining operations. Table of Contents Page Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 I. Background. . . . . . . . . . . . . . . . . . . . . . . . . .2 A. Coal Mining in Appalachia. . . . . . . . . . . . . . . .2 B. Issues and Impacts from Mountaintop Mining . . . . . . .4 II. The Role of OSM, Other Federal Agencies and the States in Regulating the Environmental Effects of Mountaintop Mining . . . . . . . . . . . . . . .8 A. OSM's Role . . . . . . . . . . . . . . . . . . . . . . .9 B. Other Federal Agencies' Role . . . . . . . . . . . . . 10 1. Environmental Protection Agency . . . . . . . . . 10 a. Clean Water Act. . . . . . . . . . . . . . . 10 b. Clean Air Act . . . . . . . . . . . . . . . 11 2. U.S. Army Corps of Engineers . . . . . . . . . . 12 3. U. S. Fish and Wildlife Service . . . . . . . . . 12 C. States' Role . . . . . . . . . . . . . . . . . . . . . 13 III. Current Activities. . . . . . . . . . . . . . . . . . . . 14 A. Federal Interagency Coordination . . . . . . . . . . . 14 1. The Four-agency Valley Fill Impact Steering Group 14 2. The Settlement Agreement Resulting from the Bragg v. Robertson Lawsuit14 a. Comprehensive Environmental Impact Assessment15 (1) Inventory of Valley Fills. . . . . . . 15 (2) Assessment of Impacts on Aquatic and Terrestrial Habitats15 (3) Assessment of the Effects of Large-scale Mountaintop Mining and Valley Fills in Steep Slopes on Downstream Flooding Potential . . . . . . . . . . . . . . 16 (4) Identification of Stream Mitigation Regulations16 (5) Assessment of Long-term Stability of Excess Spoil Disposal Fills . . . . . . . . . . . . . . . . 16 b. Interim Permit Review Process. . . . . . . . 16 B. Related OSM Activities . . . . . . . . . . . . . . . . 17 1. Oversight . . . . . . . . . . . . . . . . . . . . 17 a. West Virginia. . . . . . . . . . . . . . . . 18 b. Kentucky . . . . . . . . . . . . . . . . . . 19 c. Virginia . . . . . . . . . . . . . . . . . . 20 2. Policy, Guidance, or Rulemaking Decision Process 20 a. Postmining Land Use. . . . . . . . . . . . . 21 b. Approximate original contour . . . . . . . . 21 3. State Program Amendment Issues. . . . . . . . . . 22 C. State Activities . . . . . . . . . . . . . . . . . . . 22 1. West Virginia Senate Bill 145 . . . . . . . . . . 22 2. West Virginia Governor's Task Force . . . . . . . 23 IV. Suggestions for Improvement. . . . . . . . . . . . . . . . 24 V. Appendices. . . . . . . . . . . . . . . . . . . . . . . . . A1 Appendix A: Definitions. . . . . . . . . . . . . . . . A2 Appendix B: Inspectable Units Tables and Charts. . . . A6 Appendix C: OSM Existing Regulations Governing Air PollutionA13 Appendix D: Coal Producing States in Appalachia and Dates of Program ApprovalA14 Appendix E: Interagency Fill Impact Study Group, Proposed Statement of Mutual Intent and Scopes of Work for Each Study Element.A15 Appendix F: Bragg v. Robertson, Civil Action No. 2:98-636 (Southern District, WV) . . . . . . . . . . . . . . . . . . .A16 Appendix G: Settlement Agreement . . . . . . . . . . .A19 Appendix H: Charleston Field Office, Draft Oversight Report, "An Evaluation of Approximate Original Contour and Postmining Land Use in West Virginia". . . . . . . . . . . . . . . . .A20 Appendix I: Workplans\Performance Agreements for Kentucky and Virginia's Oversight of Mountaintop Mining. . . . . .A21 Appendix J: West Virginia Senate Bill 145. . . . . . .A22 Appendix K: West Virginia's Governor's Task Force ReportA23 Appendix L: Notice of Intent for Environmental Impact StatementA24 Appendix M: Reserved . . . . . . . . . . . . . . . . .A25 VI. Figures. . . . . . . . . . . . . . . . . . . . . . . . . . F1 Figure 1 - Mountaintop Mining Operation in Progress . . . F2 Figure 2 - Valley Fill Construction . . . . . . . . . . . F2 Figure 3 - Mountaintop Mine Reclamation . . . . . . . . . F3 Figure 4 - Reclaimed Site . . . . . . . . . . . . . . . . F3 Figure 5 - Valley Fill . . . . . . . . . . . . . . . . F4 Figure 6 - Mountaintop Mine Diagram . . . . . . . . . . . F5 Figure 7 - Dragline Operation Diagram . . . . . . . . . . F6 Mountaintop Mining Purpose The House of Representatives' Committee on Appropriations expressed its concern over the effects of mountaintop removal coal mining in Appalachia in the Fiscal Year 1999 Department of Interior Appropriations Bill. The appropriation language for the Office of Surface Mining Reclamation and Enforcement (OSM) stated: "The Committee is concerned with the impact of mountaintop removal surface coal mining operations in certain areas of the Appalachians and encourages the Office of Surface Mining to carefully examine this issue. The OSM should report back to the House and Senate Committees on Appropriations by March 1, 1999, on the overall situation, the role of OSM, other Federal agencies and the States in regulating the environmental effects, and suggestions to improve the situation." This report was written in response to that request. This report addresses a number of issues connected with mountaintop mining operations in the Appalachians. Mountaintop mines are those surface coal mines that remove all or a large portion of a coal seam or seams running through the upper fraction of a mountain or ridge. Citizens have recently taken issue with respect to the application of State and Federal environmental laws, regulations, and policies to mountaintop mining operations. The size and extent of excess spoil fills connected with these operations have raised concerns over the loss of streams, the destruction of fish and wildlife habitats, and impairment of aesthetics. Questions have also arisen over whether state regulatory authorities have been approving appropriate postmining land uses and postmining land configurations. A couple of important questions to consider are, why, rather suddenly, has the controversy emerged about mountaintop operations and whether the Surface Mining Control and Reclamation Act of 1977 (SMCRA), the Clean Water Act (CWA) and other laws are being implemented in a manner that adequately deals with them. There are several reasons. One has to do with the terms of SMCRA itself. While SMCRA is a wide-ranging law, it does not clearly answer all the questions that are raised. There are some uncertainties about how to apply the approximate original contour requirements, and how broadly or narrowly the postmining land use limitations should be construed. There is the related question about how much leeway SMCRA gives the states to address these issues. Evolution in the coal industry has also contributed to the relatively recent emergence of the issue. With the application of new Clean Air Act (CAA) restrictions, high quality coal such as that found in West Virginia has become more desirable in the marketplace. Technological advances that permit larger operations operating in mountainous Appalachia are also a contributing factor. Finally, until very recently, the regulatory issues have not generally been raised in the permitting processes by other governmental agencies, by environmental groups, or by other citizens. The explanation for why it has taken so long for the issue to arise, is therefore, complex. I. Background A. Coal Mining in Appalachia Coal in Appalachia is recovered by underground and surface mining. This report will focus on surface mining operations in steep slopes (greater than 20 degrees). There are two phases to a surface mining operation the mining phase and the reclamation phase. These phases operate concurrently, but the issues in this report generally focus on the result of mining, or the reclamation phase. As a rule, SMCRA requires that the reclamation phase result in a final landscape that closely resembles the configuration of the land prior to mining, i.e. "approximate original contour." There are two instances, however, in the steep-slope coal regions of Appalachia where the land is not required to achieve approximate original contour. The first instance was termed, "mountaintop removal" by SMCRA. To obtain a mountaintop removal permit the surface mining operation: 1) must extract an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill and, 2) must create a level plateau or a gently rolling contour that has no highwalls remaining and is capable of supporting certain postmining land uses. The second instance where it is not necessary to achieve approximate original contour is termed by SMCRA "steep-slope variance," and allows a mining operation to leave the mined area flat or gently rolling--if certain post-mining land use conditions are met. When mining operations propose that the reclamation phase will not achieve approximate original contour, they must satisfy specific conditions required by SMCRA, notably equal or better postmining land uses. These postmining land uses for mountaintop removal include industrial, commercial, agricultural, residential, or public facility (including recreational facilities). Two key differences between steep slope variances and mountaintop-removal operations are: 1) in a steep-slope variance operation, the entire coal seam is not removed and the highwall must be reclaimed and, 2) agriculture is not an approved postmining land use for steep-slope mining with a variance. In addition to complying with these postmining land use requirements, approval of these methods requires the applicant to satisfy other specific performance requirements imposed by SMCRA (see details in Section B). SMCRA envisioned that most surface coal mining operations would return the land to the approximate original contour. Regardless of the reclamation configuration proposed, the mining phase utilizes any of several different methods for removing the overburden, or rock, overlying the coal seams. One such surface mining method is referred to as a contour mine. This kind of operation follows the surface exposure, or outcrop, of a coal seam(s) around a hillside at approximately the same elevation (hence the name). Contour mining excavates only part of a hillside, leaving undisturbed areas above and below the excavation. Operations of this type are typically conducted up to the point where it is no longer economical to extract additional coal because of the excessive amount of soil and rock that would have to be removed to access the coal seam. Contour mining creates a cliff-like highwall and shelf-like bench on the hillside that must be restored to approximate original contour. These mines range from ones that are relatively small and cover just a few acres to those that wind around an entire valley for thousands of feet and total hundreds of acres in size. Another method used, especially when all or a large portion of the coal seam or seams running through the upper fraction of a mountain or ridge are removed, is often referred to as area mining. The mining phase of an area mining operation is similar to that termed a "mountaintop removal" operation in SMCRA. The term area mining is appropriate for these surface mining operations because the overburden overlying a large area of a coal seam are completely removed, the coal is mined, and the overburden returned to reclaim the excavation. Area mines were typically found only on gently or moderately sloping land in the Midwest and West until the late 1960's and 1970's when haulage equipment used in interstate highway building began to be used in surface mining in the East, including the Appalachian region. This equipment finally made it economical to use large draglines and shovels for the removal of large amounts of overburden in that section of the country. Use of these types of equipment also resulted in adoption of the mining methods used in the Midwest and West, such as mine development and sequencing, for use in the Appalachian mountaintop operations. When surface mining operations began using large equipment, it became feasible, in many cases, to remove the entire top of mountains to retrieve underlying coal deposits. Today, these mountaintop operations, with supporting equipment, often remove up to a dozen or more coal seams, as well as the intervening overburden. Capital costs for the type of equipment used in mountaintop mining are tremendous. Mountaintop mining is usually not practical unless large tracts of reserves are available to recover these costs. In recent years, use of this method of mining in Appalachia has increased, as has the size of the permits issued for this type of operation. Typical of this trend is a permit application for a mine area in excess of 3100 acres. Members of the media and the concerned public have loosely used the term "mountaintop removal" to refer to all kinds of operations in steep slope Appalachia that occurs on the upper slopes of a mountain. Technically and legally speaking with respect to SMCRA, the term "mountaintop removal" only applies as discussed and narrowly defined above. To avoid confusion, this report will use the term "mountaintop removal" only in its technical/legal sense. The broader term, "mountaintop operations," will be used to refer to all of the kinds of operations described (for more explanation of these operations, see definitions in Appendix A). In practice, many surface mines employ combinations of methods to economically recover the coal reserves. Because of varied surface and mineral ownership, surface mines in one area may gradually increase in small increments. The mines string together hundreds of permitted acres contiguously, until thousands of acres have been mined by different mining methods in one location. In other areas, such as West Virginia, where large tracts of land are available, single permits covering these tracts have been issued or are being sought for large-scale mining operations. In West Virginia and Kentucky, areas of up to 20,000 acres have been contiguously mined by ten or more permits over a 15-20 year period. It is important to understand that whenever overburden is removed during mining in Appalachia, even though a certain coal volume is also removed, the amount of overburden generally exceeds the amount that can safely be placed back into the mining excavation. This extra overburden volume is called "excess spoil." One easy way to envision this excess spoil phenomenon is to think of what happens when plowing a garden. Plowing soil produces smaller, irregularly shaped pieces separated by voids or air pockets. Because the plowed soil no longer fits together as compactly as it once did, the overall volume of the soil is increased. For that reason, the ground level after plowing is always higher than it was before. Similarly, mining breaks up solid rock layers and creates voids, causing the overall volume of the material to increase. This phenomenon is known in the mining industry as "bulking," or "swell." Excess spoil is the material produced by swell. Excess spoil occurs in the East, regardless of the type of surface mining method used. The same is not necessarily true in the West, where the coal seams are large in comparison to the overburden and the topography in the coal basins is relatively flat. Those thick coal seams can be mined without producing significant excess spoil. In Appalachia, throughout the mining process, the excess spoil is placed in adjacent valleys which are then called "valley fills." Valley fill construction occurs at all types of mountaintop mining operations. The steep slopes of Appalachia can present challenges to reclaiming mountaintop mines. Placing the overburden back into the mined area to the same configuration as it was before mining (the approximate original contour) can be difficult because of equipment limitations, backfill stability, and consideration for the safety of the equipment operators. Congress recognized this difficulty and made provisions in SMCRA to allow operators some latitude in reclaiming mine sites. These provisions are discussed in more detail in section I.B. regarding variances to approximate original contour. The number and scale of mountaintop operations have risen dramatically in recent years. This may help explain the upsurge in the public's interest in these mines (see Appendix B for tables and charts depicting the numbers and acres of mountaintop mines in Appalachia). B. Issues and Impacts from Mountaintop Mining Public Law 95-87, referred to as SMCRA, was enacted on August 3, 1977. In enacting SMCRA, Congress made a number of findings and conclusions. For example, Section 101(c) of SMCRA states that "many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce, and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural, and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property, by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water, and other natural resources;. . ." Section 101(e) states that "surface mining and reclamation technology are now developed so that effective and reasonable regulation of surface coal mining operations by the States and by the Federal Government in accordance with the requirements of this Act is an appropriate and necessary means to minimize so far as practicable the adverse social, economic, and environmental effects of such mining operations;. . ." SMCRA imposed environmental performance standards (some of which were already in use in some states) to minimize the adverse effects of coal mining. Examples of performance standards applicable during mining or reclamation include the requirement to: eliminate all highwalls, control the placement of excess spoil, control erosion and sediment, design sediment control facilities, revegetate effectively, and, unless a variance is obtained, return the mined area to its approximate original contour. The reclaimed land must also be capable of supporting an equal, higher, or better use than existed prior to mining. The advent of SMCRA performance standards has eliminated or minimized many of the past coal mining abuses. Nevertheless, even 20 years after the passage of SMCRA, there is constant citizen and media interest in surface coal mining operations. This continuing interest may possibly be attributed to the conspicuous presence of mining disturbances on the landscape, as well as the nuisance that even the best mining operations creates for adjacent residents. Recently, public attention has focused on mountaintop operations. Areas of concern include the aesthetic impact of the landscape alterations, adverse impacts on streams and associated fish and wildlife habitats, diminished quality of life for citizens living near the operations, lack of economic development following mining, and depreciating property values. These concerns are aggravated by dust from blasting and haulage trucks, noise and vibration from blasting, truck traffic, loss of stream headwaters from spoil disposal in valley fills, and related impacts (see Figures 1 through 5 for mountaintop mining photos, and Figures 6 and 7 for mining layouts). Although many of these issues are similar to the issues raised more than 20 years ago, the basis for the concerns has changed. Prior to the passage of SMCRA, the environmental impacts directly related to mining were even more obvious. Rainstorms eroded mine spoil and filled streams with silt. Placement of spoil on steep hillsides resulted in landslides, blocked streams, and created potential flooding and stream pollution. Miles and miles of highwalls were unstable, unsightly, and dangerous. Rural roads, not designed for heavy loads, were destroyed or made impassible by coal haulage. These conditions, and the state-to-state disparity of reclamation requirements and resultant unstable economics of the coal industry, helped lead to the passage of SMCRA. Under SMCRA, and state regulations, all mining permits must generally require return of the mined land to its premining surface configuration or approximate original contour. Subsection 701(2) of SMCRA defines approximate original contour to mean "that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated." Under certain circumstances, a state regulatory authority may issue a variance from approximate original contour requirements (see Table One). SMCRA at section 515(c)(2) provides that a permit may be issued without regard to the requirement to restore to approximate original contour where the mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining. These mining operations are called mountaintop removal operations. Similarly, SMCRA at section 515(e) provides that under certain circumstances, a variance from approximate original contour requirements can be granted on steep slope operations. Steep slope operations are those conducted on areas where the natural slope of the land within the proposed permit area exceeds an average of 20 degrees. Under SMCRA these variances from the approximate original contour requirement are granted where the creation of flat or rolling terrain is needed for specific development purposes or land uses. The postmining land uses permitted under SMCRA include (in the case of mountaintop removal operations) industrial, commercial, residential, agricultural uses, or (in the case of steep slope operations) a public facility or public use (including recreational facilities). The regulatory authority may grant a variance from reclaiming the site to AOC for specific postmining land use categories only after consideration of the need, market, public support, and the commitment or likelihood of private investment, for the proposed land use. In addition to requiring particular postmining land uses, SMCRA imposes certain performance standards upon operators that seek approximate original contour variances for either mountaintop removal or steep slope operations (See Table Two). For mountaintop removal operations, these standards include: retaining the toe of the lowest coal seam and associated overburden in place to prevent slides and erosion, making the reclaimed area stable, draining the resulting plateau or rolling contour inward from the outslopes, not damaging natural watercourses, placing the spoil necessary to achieve the postmining land use on the mountaintop bench, insuring stability of the spoil retained on the bench, and placing all excess spoil in accordance with the provisions of subsection 515(b)(22) of SMCRA. The performance standards for steep slope variance operations include: placing only the amount of spoil off the mine bench that is necessary to achieve the planned postmining land use, insuring the stability of the spoil retained on the bench, and placing any spoil off the bench in compliance with subsection 515(b)(22) of SMCRA. Table One. Federal Provisions Regarding Approximate Original Contour Variances. FEDERAL PROVISIONS Approximate Original Contour (AOC) Restoration Mountaintop Removal AOC Variance Steep Slope AOC Variance Premining topographical eligibility requirements None. Standard applies universally in absence of variance. Mountain, ridge, or hill Average slopes in excess of 20 degrees (or lesser threshold designated by State) Postmining topographical requirements Must closely resemble general remining surface configuration Level or gently rolling inward-draining plateau No specific requirements (dependent on land use and terrain) Surface owner consent to proposed postmining topography Not required, but owner must be consulted on postmining land use Not required, but owner must be consulted on postmining land use Required Acceptable postmining land uses Premining or higher or better uses (uses with higher economic value or non-monetary benefit to landowner or community) Industrial, commercial, agricultural, residential, or public facility (including recreational facilities) Industrial, residential, commercial, or public (including recreational facilities) Implementation requirements for approved postmining land use None (must be capable of supporting approved use) Must be integrated with mining and reclamation None (must be capable of supporting approved use) Special hydrologic requirements None Must not damage natural watercourses Must demonstrate that watershed will be improved Amount of overburden that may be placed outside mined-out area Limited to excess spoil and spoil required for blending with surrounding terrain No restrictions apart from requirement to retain enough on bench to achieve postmining land use Limited to amount necessary to achieve postmining land use and ensure stability Table Two: Statutory and Regulatory Citations for Approximate Original Contour Variances FEDERAL PROVISIONS Approximate Original Contour (AOC) Restoration Mountaintop Removal AOC Variance Steep Slope AOC Variance SMCRA citations 515(b)(3) 515(c) 515(e) 30 CFR citations 816.102-816.107 817.102-817.107 785.14, Part 824 785.16, 816/817.133(d) It should be noted that not all applicants for mountaintop and steep slope mining operations request variances from approximate original contour. Surface mining operations that are returned to approximate original contour do not have to comply with the variance requirements discussed above. Although the Act provides specific categories of acceptable postmining land uses, as well as specific performance standards for both types of approximate original contour variances, recent oversight studies indicate that problems may exist in implementing these standards (see section III. B.). OSM is currently reviewing these problem areas to determine whether additional policy, regulatory guidance, or other measures are necessary. OSM is also consulting with the state regulatory agencies on how to address these problems. Issues relating to approximate original contour, land use, valley fills, blasting, dust, and truck traffic pertain to all types of mining, not just mountaintop operations. However, the media and public have specifically focused on mountaintop operations as the principal cause of these concerns. For example, news reports describe whole communities being displaced and cultures lost because of unbearable and unsafe living conditions allegedly created by these operations. Other articles describe how mining activities, such as blasting, damage homes, diminish property values, and interrupt water supplies. In order to respond to public concerns raised by mountaintop mining operations, OSM has conducted oversight studies in West Virginia, Kentucky, and Virginia. The results of the West Virginia evaluation will be discussed in this report. The Kentucky and Virginia reports have not yet been completed. II. The Role of OSM, Other Federal Agencies and the States in Regulating the Environmental Effects of Mountaintop Mining Federal authority to control the environmental impacts of mountaintop mining arises from both the CWA and SMCRA. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (COE) derive their authority from the CWA while OSM's regulatory responsibilities come from SMCRA. The role of the COE and the EPA are discussed under section II. B. The analysis that follows examines mountaintop mining from a SMCRA perspective. A. OSM's Role SMCRA establishes a program of cooperative federalism under which states may enact and administer their own regulatory programs within limits established by Federal minimum standards and with oversight authority by the Department of the Interior. See H.R. Rep. 218, 95th Cong., 1st Sess. at 57 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News 593, 595; Hodel v. Virginia Surface Mining and Reclamation Association, 452 U.S. 264, 289 (1981). In SMCRA's findings section, Congress explained its decision to offer each state "primary jurisdiction" or "primacy" in this area: because of the diversity in terrain, climate, biologic, chemical and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this chapter should rest with the States[.] 30 U.S.C. 1201(f). SMCRA does not, however, grant a state absolute authority to regulate surface coal mining without any Federal involvement. Section 503 of SMCRA requires that state rules and regulations be "consistent with regulations issued by the Secretary pursuant to [SMCRA]." 30 U.S.C.  1253(a)(7). Further, Section 505(b) of SMCRA provides that "[a]ny provision of any State law or regulation . . . which provides for more stringent land use and environmental controls and regulations" than does SMCRA or the Federal rules "shall not be construed to be inconsistent" with SMCRA. 30 U.S.C. 1255(b). The actions of a primacy state must be evaluated for consistency with the requirements of its approved program. However, should it become apparent that some aspect of the approved program is inconsistent with SMCRA, it is incumbent on OSM to address that situation. If, for example, OSM finds State program provisions to be less effective than the Federal requirements, it can require the State to amend its program in accordance with 30 CFR  732.17. B. Other Federal Agencies' Role 1. Environmental Protection Agency - The EPA, pursuant to the CWA and the CAA, may exercise authority over the valley fills created by mountaintop mining: a. Clean Water Act- Under Section 401 of the CWA, all applications for a Federal license or permit must be accompanied by a state certification, or waiver thereof, that the proposed activity will comply with the state water quality standards. While both the Federal licensing agency and the state must independently ensure that the proposed activity conforms with all requirements, the EPA has an opportunity to review both the application and certification to ensure that the quality of waters of adjacent states will not be adversely affected. The National Pollutant Discharge Elimination System (NPDES) program, which regulates all discharges of pollutants into waters of the United States, was established by section 402 of the CWA. The EPA may authorize a state to assume the responsibilities of the NPDES program, and all Appalachian states have obtained this authority. EPA retains the right to review and formally object to the issuance of any NPDES permit if issuance of the permit would violate the CWA. If the state NPDES permitting agency does not address EPA concerns, EPA will intervene and block issuance of permits. EPA's authority to intervene and block contrasts markedly with that of OSM; OSM lacks the statutory authority to review and influence individual permit decisions. It is the responsibility of the COE to issue permits regulating the discharge of dredge and fill material into the waters of the United States. Section 404 of the CWA outlines specific and coordinated responsibilities for both EPA and COE. EPA is required, in conjunction with COE, to establish environmental standards for reviewing Section 404 permit applications. The COE is charged with administering the Section 404 permit program, processing applications in accordance with EPA's standards and issuing permits, where appropriate, after notice and an opportunity for public comment. EPA and COE coordinate routinely in the review of Section 404 permit applications to ensure permit decisions are made in a timely manner while providing effective protection for the Nation's human health and environment. EPA may raise objections to the issuance of section 404 permits. EPA may also veto a COE permit pursuant to Section 404(c) of the CWA on the grounds that the discharge of dredge or fill material will have an unacceptable adverse effect on aquatic resources. The EPA is required to consult with the COE and the permit applicant, provide for a public hearing, and make public its findings and reasons for any determination in writing. All Appalachian states have water quality certification programs to provide for the mitigation of any adverse impacts that a mining activity may cause to a stream or wetland. Under Section 401 of the CWA, an application for a 404 permit must be accompanied by a state certification providing for the mitigation of any stream or wetland loss due to mining. Any conditions of the state section 401 water quality certification become conditions of the COE's Section 404 permit; however, the COE may also impose conditions which could expand or modify mitigation requirements imposed by the state. Mitigation is primarily accomplished through state laws or policies that have evolved over the years and the requirements vary from state to state. Mitigation may involve such approaches as restoration of the area impacted, or other areas with adverse impacts. Mitigation may also include compensation used to perform replacement or restoration. b. Clean Air Act - Fugitive dust is one of the most common complaints regarding large-scale surface mining operations. The EPA regulates air pollution from mining equipment, preparation plants and other stationary sources associated with surface mining activities, but no agency regulates fugitive dust, which sometimes occurs during blasting and backfilling activities. Section 515(b)(4) of SMCRA provides that ". . . all surface coal mining and reclamation operations must stabilize and protect all surface areas . . . to effectively control erosion and attendant air and water pollution." Shortly after the passage of SMCRA, OSM determined that fugitive dust associated with surface mining activities constituted a public health and safety problem, and in 1979, promulgated rules requiring operators to control air pollution from all their mining operations. In 1980, a United States District Court struck down and remanded the rules for revision, because it determined that SMCRA's legislative history indicates that OSM's authority to regulate air pollution is limited to activities related to erosion [In re: Permanent Surface Mining Regulation Litigation, C.A. 79-1144 (D.D.C., May 16, 1980)]. OSM re-promulgated its rules regulating air pollution from surface coal mining and reclamation operations in 1983. The Federal performance standards at 30 CFR 816.95 require all exposed areas of surface mining operations to be protected and stabilized to effectively control erosion and air pollution attendant to erosion. This is usually accomplished through mulching reclaimed areas after backfilling and regrading and through watering unpaved haul roads. Appendix C contains a copy of OSM's existing regulations governing air pollution. In 1988, the U.S. Court of Appeals reaffirmed the district court's ruling finding that OSM's role in controlling air and water pollution is limited to pollution attendant to erosion. The Appeals Court found that EPA has the authority under the CAA to regulate fugitive dust from surface mining operations, but it had not done so [NWF v. Hodel, C.A. 84-5743 (U.S. Court of Appeals D.C. Circuit, January 29, 1988)]. 2. U.S. Army Corps of Engineers - Under Section 404 of the CWA, the Secretary of the Army, acting through the Chief of Engineers, is authorized to issue permits, after notice and opportunity for public hearings, for the discharge of dredged or fill material into waters of the United States. Fill permitting decisions must accord with guidelines developed by the EPA in conjunction with the Secretary of the Army. These guidelines are known as the 404(b)(1) Guidelines. The discharge of pollutants, other than landfill material, into waters of the United States is regulated under Section 402 of the CWA. The COE can issue two different types of permits: Individual Permits and General Permits. The COE may require an individual 404 permit for "dredge or fill" activities, depending on the impact on the environment (NEPA and the 404b(1) Guidelines). It more commonly issues a General, or "Nationwide" Permit for similar activities that are considered to have a minimal individual and cumulative adverse environmental effect. The Individual Permit process requires the COE to (1) issue a public notice and provide an opportunity to request a public hearing, and (2) evaluate the project in accordance with the 404(b)(1) guidelines which require the COE and the applicant to explore alternatives to avoid impacts to wetlands and streams. Because the General Permit process does not require these steps, it is generally takes less time. Both processes require coordination with Federal resource agencies. For coal mining activities, the COE has developed and used Nationwide Permit Number 21. Conditions associated with a 404 permit are based on regional conditions and state input through the "401 certification" process. From now on, as a result of a settlement agreement described in section III. A. 2., valley fills at a mountaintop mine may require an individual 404 permit. Conditions imposed by 404 permits often limit fill sizes to avoid impacts to important aquatic resources and require specific mitigation plans to restore or replace aquatic resources impacted by fills. 3. U. S. Fish and Wildlife Service (FWS) - Under the consultation provisions of the federal Endangered Species Act (ESA), consultation with the FWS is required whenever any action authorized, funded, or carried out, in whole or in part, by a federal agency "may affect" a federally-listed threatened or endangered species. For example, COE authorization of a valley fill at a mountaintop operation is a federal action subject to the ESA consultation provisions. Under the Fish and Wildlife Coordination Act (FWCA), the FWS has the lead role for the Department of the Interior in reviewing federally constructed, authorized, or funded water development projects, evaluating their potential impacts on fish and wildlife resources, and providing recommendations to the authorizing agencies on ways to eliminate or minimize adverse environmental impacts. The FWS may object to the issuance of Section 404 permits, which will invoke a formal procedure for dispute resolution. Thus, whenever OSM, COE, or EPA authorize an action within the scope of the FWCA, they are required to consult with the FWS, and similar state agencies regarding ways to minimize potential effects on fish and wildlife resources and to mitigate those effects which occur. C. States' Role As discussed above, most coal-producing states in the Appalachian Region have approved permanent regulatory programs under SMCRA, which allow them to regulate the environmental effects of surface coal mining activities. Appendix D lists those coal-producing states and the dates that their programs were approved. Under the approved programs, state regulatory authorities issue permits, conduct inspections, and, when necessary, take enforcement actions to ensure compliance with those programs. States also have their own fish and wildlife agencies to manage and protect fish and wildlife species and their habitat. Most state fish and wildlife agencies provide operators information concerning game and non-game species for surface mining permit applications. The state agencies also coordinate with the FWS on threatened or endangered species and review and comment on any surface mining applications that are submitted to the state mining authorities for approval. State mining authorities must coordinate with other state and federal agencies to ensure compliance with their state counterparts to SMCRA, CWA, CAA, and the FWCA when regulating mountaintop mining activities. All Appalachian states have been authorized by EPA to administer their NPDES programs pursuant to section 402 of the CWA. They are responsible for issuing NPDES permits and any required air pollution control permits that may be necessary to ensure compliance with state air and water quality programs. The states must still afford EPA the opportunity to review and comment on all NPDES permit applications. States have the responsibility and right under section 401 of the CWA to review any Federal permit or license to ensure that the proposed action will comply with water quality requirements. State 401 certification is applicable to dredge and fill permits issued by the COE under section 404 of CWA. The States may impose more stringent conditions that must be incorporated into a 404 permit though State 401 certification. III. Current Activities A. Federal Interagency Coordination 1. The Four-agency Valley Fill Impact Steering Group - In the fall of 1997, EPA, OSM, and the West Virginia Division of Environmental Protection (WVDEP) began discussing issues related to valley fills because the West Virginia Legislature was considering revising the stream mitigation criteria for impacted streams. Stream mitigation is a method employed by state, OSM and COE programs, whereby a coal company can offset an impact to an existing stream by reclaiming a greater or equal length of polluted stream, by enhancing a stream, and/or by paying fees to an approved mitigation program. A State may impose thresholds for mitigation under its certification authority vested by section 401 of the CWA. West Virginia's coal industry supported the change (Senate Bill 145) raising the State's threshold for mitigation from 250 to 480 acres of watershed in order to parallel the threshold existing in Kentucky. After enacting Senate Bill 145 (see discussion in section III. C. 1.), OSM and EPA pushed for a coordinated Federal effort to: 1) resolve jurisdictional inconsistencies between the CWA and SMCRA, 2) initiate studies to collect data that would allow evaluation of the impacts of valley fills, and 3) develop appropriate strategies for mitigating the effects of valley fills. The outgrowth of this was a four-agency Federal steering group comprised of mid-level management of the EPA, COE, OSM, and FWS. A proposed Statement of Mutual Intent among the agencies was developed, and although never signed, it has been a useful guideline in determining the types of studies needed. The proposed Statement of Mutual Intent and the scope of work for each of the studies anticipated are included as Appendix E. 2. The Settlement Agreement Resulting from the Bragg v. Robertson Lawsuit [C.A. 2:98-636 (S.D.W.V.)] - During the period that the four-agency steering group developed plans to initiate studies, a lawsuit against the COE and WVDEP was filed by citizens and the West Virginia Highlands Conservancy (July 1998). Appendix F summarizes the thirteen counts in the Complaint. Generally, the lawsuit concerns allegations that valley fills associated with mountaintop removal, steep slope and multiple seam mining operations have resulted in the loss and degradation of West Virginia streams. A central issue in the suit was whether or not valley fills are regulated under Section 402 (EPA's NPDES requirements) or Section 404 (COE's requirements) of the CWA. Section 404 regulates the discharge of dredged or fill material in waters of the U.S., and Section 402 regulates the discharge of pollutants, other than dredged or fill material, from a point source into waters of the U. S. The discharge of mining spoil material into streams is regulated under Section 404 and the discharge from the sediment ponds is regulated under Section 402. The plaintiffs contended that it is beyond the COE's jurisdiction to regulate valley fills under Section 404 of the CWA. Assuming the COE has jurisdiction, the plaintiffs alleged that the COE violated the National Environmental Policy Act by failing to analyze the adverse and cumulative environmental impact of valley fills and surface mining activities in West Virginia. On December 23, 1998, the plaintiffs, the Department of Justice (acting for the COE, EPA, OSM, and FWS), and the WVDEP agreed to settle the CWA portion of the case. The case remains open relative to SMCRA-related counts against WVDEP (See Appendix F). The terms of the settlement agreement are included in Appendix G. The agreement covers two primary objectives, discussed below. a. Comprehensive Environmental Impact Assessment: The parties to the settlement agreement will collaborate in the 24-month preparation of an Environmental Impact Statement (EIS). The EIS will "consider developing agency policies, guidance, and coordinated agency decision-making processes to minimize, to the maximum extent practicable, the adverse environmental effects to waters of the United States and to fish and wildlife resources affected by mountaintop mining operations, and to environmental resources that could be affected by the size and location of excess spoil disposal sites in valley fills." The EIS is currently in the scoping process. In early February 1999, each of the Federal agencies published Federal Register notices seeking public input into the things the EIS should include (see Appendix L). The final scope of the EIS will be developed in March and April of 1999 by the parties to the settlement agreement, but the Four-agency steering group intended that any EIS on these issues would include parallel or substantial portions of the study designs summarized below (see Appendix E for detailed scopes of work): (1) Inventory of Valley Fills - The impacts from filling of stream channels cannot be fully assessed without an inventory of the location and size of excess spoil disposal sites (valley fills). Using geographic information system (GIS) technology (a digital spatial data base) fill "footprints" are being created for sites in each state. GIS funding grants have been awarded by OSM, with some EPA funds as well, to Kentucky, West Virginia, and Virginia. Additional resources for completing the remaining States are being sought. Anticipated completion for this study by OSM is summer 1999. (2) Assessment of Impacts on Aquatic and Terrestrial Habitats, Including Water Quality and Quantity, On and Below the Fill Areas, and the Effectiveness of Off-site Mitigation Measures - The scope of this study was not completed and will now be developed by the EIS scoping effort. The early study design envisioned comparing mined and unmined watersheds. Potential study sites were under consideration, but the EIS will define the final approach. (3) Assessment of the Effects of Large-scale Mountaintop Mining and Valley Fills in Steep Slopes on Downstream Flooding Potential - OSM and COE are collecting data on the first sites selected for modeling runoff characteristics before, during, and following mining. This study will proceed as an adjunct to any planned EIS effort. Additional funding for completion of the modeling of all representative mine sites in West Virginia, Kentucky, and Virginia is under consideration. If additional funding is available, anticipated completion is spring 2000. (4) Identification of Stream Mitigation Regulations and the Extent of their Implementation in the Appalachian Coalfield States - This effort, as originally designed, would involve compiling the states' practices and requirements, if any, for mitigation of stream impacts from valley fills. Methods for compensation, restoration, or replacement used to offset valley fills would be described. Completion could occur by summer 1999 if the EIS scoping plan is in agreement with performing this activity. (5) Assessment of Long-term Stability of Excess Spoil Disposal Fills - The proposed evaluation will assess the effectiveness of SMCRA-related regulations on assuring stable valley fills. Permits will be reviewed, a large sample of fill sites in West Virginia, Kentucky, and Virginia will be observed by air, a smaller sample will be viewed on the ground, and several sites will be drilled to check key stability components of the foundation soils and water level in the fills. Forms for consistent evaluation are being developed and sites selected for inclusion. This study will occur as an adjunct activity to the EIS, and is being conducted by OSM staff, with the assistance of state regulatory personnel. Completion of the report is anticipated by spring 2000. b. Interim Permit Review Process: The ultimate goal of the settlement agreement is to establish long-term interagency coordinated procedures for the permitting of valley fills, based on the findings of data collection and analysis during the EIS. While the studies are underway, the settlement agreement creates an interim process for new mining applications. Thresholds for coordinated permit review by the parties (COE, EPA, OSM, FWS, WVDEP, plaintiffs) are based on the watershed of any valley fill. The criteria governing the permitting process are paraphrased as follows: (1) As a general matter, any fill in a stream draining a watershed of more than 250 acres is considered to cause more than minimal adverse environmental impacts to the waters of the U.S., and will require an individual CWA Section 404 permit. (2) Any fill in a stream draining a watershed less than 250 acres is generally considered to result in minimal adverse environmental impacts from a site-specific standpoint and a Nationwide CWA Section 404 permit may be authorized. (3) Any 404 permit involving threatened or endangered species requires FWS coordination pursuant to the Endangered Species Act. The presence of wetlands may also require an individual CWA Section 404 permit. (4) The cumulative effects of all fills of any single mining permit will be assessed to determine whether the cumulative impacts are more than minimal. The coordinated process will result in issuances of CWA 404 permits by the COE, CWA 401 certification by WVDEP, CWA 402 NPDES permit by WVDEP, and a SMCRA mining permit by WVDEP. As this document was being finalized, a Memorandum of Understanding guiding the coordinated interim permit review process was under review by the four Federal signatories to the settlement agreement and WVDEP. Currently, thirty-eight surface coal mining applications containing proposed valley fills are submitted to the WVDEP, but have not reached permit issuance. These permit applications are subject to the terms of the settlement agreement and have been preliminarily screened by the four Federal agencies and WVDEP to see which applications may require individual CWA 404 permits, and which ones may be processed under the Nationwide general CWA 404 permit. Sixteen of the 38 applications contain fills larger than the 250-acre watershed threshold noted in (1) above. Another six applications contain a number of fills below the 250-acre threshold, but may have cumulative impacts that are considered more than minimal, as described in (4), above. The remaining sixteen applications fall under category (2), above, and, thus appear to be eligible for the Nationwide CWA 404 permit process. The next phase of the interim coordinated permit review process will be for the WVDEP and four Federal agencies to meet jointly with the companies proposing valley fills of such size and extent that individual CWA 404 permits must be obtained. The purpose of the meetings is to determine if the companies can alter their permit application and mining plans to reduce the size of valley fills below the 250-acre threshold to allow Nationwide CWA 404 permit processing. These discussions will begin in late February 1999. The final determination of which applications may require individual CWA 404 permits rests with the COE. B. Related OSM Activities 1. Oversight - As previously mentioned, under the SMCRA principle of primacy, the states are granted regulatory authority to administer SMCRA with OSM exercising oversight to assess the state program effectiveness. During 1998, OSM Field Offices in West Virginia, Kentucky, and Virginia added studies of various aspects of mountaintop mining operations, including postmining land uses and acceptable approximate original contour configurations to the annual oversight plans for their respective state programs. These studies and the resolution of issues identified during oversight will continue in calendar year 1999. Although not required to do so by SMCRA or state law, most coal-producing states have developed databases to track not only permitting and inspection of surface mining activities but also enforcement actions taken with respect to those activities. These databases distinguish between surface and underground mining operations, but they were never designed to differentiate between the various types of surface mining operations, i.e., mountaintop mining operations with or without variances from approximate original contour and steep slope mining operations with or without approximate original contour variances. Recently, at OSM's urging, states in which mountaintop mining is occurring have agreed to update their databases so that they accurately identify all mining operations, including those with mountaintop removal and steep slope approximate original contour variances. Oversight actions in progress include: a. West Virginia: The OSM Charleston (WV) Field Office (CHFO) completed its study of mountaintop mining and released a draft report on December 8, 1998, for public review and comment (the report can be found in Appendix H). The comment period on the OSM West Virginia oversight report ended February 12, 1999. OSM identified the following concerns with the administration of various aspects of the West Virginia program: ÀÀ The State's approximate original contour requirements were overly broad or were being applied inconsistently; ÀÀ A number of permits contained incorrect designations of operations as mountaintop removal operations. These designations were often made without regard to whether an approximate original contour variance had been obtained; ÀÀ The provisions of the West Virginia approved program on post mining land use differ from the Federal requirements in three significant respects: 1) the lack of adequate documentation of the need and market for the designated postmining land use, 2) the use of "woodlands" as an approved postmining land use, 3) the provision for "public use" as a postmining land use instead of the narrower category specified in SMCRA ["public facility (including recreational facilities) use"]; ÀÀ A number of West Virginia permits authorized postmining land uses of "forestry" and "fish and wildlife" even though these uses are not part of West Virginia's approved program; and, ÀÀ The state files for mountaintop removal permits with approximate original contour variances often lacked complete documentation supporting the proposed postmining land use. The WVDEP has modified its environmental resources information network (ERIN) database to identify various types of approximate original contour variances correctly. More specific data on existing operations have been collected and entered into ERIN. The State is evaluating the data to ensure accuracy. Information on the various types of mining activities will be entered and updated as future applications and revisions are received. As a result of these recent changes, the WVDEP has identified significantly more mountaintop mining operations in the State. As this report was being finalized, CHFO and WVDEP are actively drafting an action plan to resolve the issues raised by the draft oversight report and the Bragg litigation. The final oversight report will contain the action plan and is anticipated to be completed in late March 1999. b. Kentucky: As part of routine oversight of the Kentucky program, in August of 1998, OSM requested that Kentucky furnish a legal rationale for authorizing "fish and wildlife habitat" as a postmining land use for mountaintop removal and steep slope mining operations with approximate original contour variances. Pursuant to an internal policy adopted in May 1991, Kentucky has been accepting this postmining land use for operations that are granted approximate original contour variances. In September 1998, Kentucky's Department for Surface Mining Reclamation and Enforcement (DSMRE) responded that it does not have a legal rationale for its position and will no longer issue permits for mountaintop removal and steep slope mining operations with a "fish and wildlife habitat" postmining land use. In October 1998, Natural Resources and Environmental Protection Cabinet Secretary James Bickford, requested that OSM's Director, Kathy Karpan, consider a State program change that would authorize "fish and wildlife habitat" as a postmining land use for mountaintop removal and steep slope mining operations. Kentucky Governor Paul Patton met with Director Karpan reinforcing the request for approval of fish and wildlife habitat postmining land uses for approximate original contour variances. OSM responded that it would seriously consider and assist Kentucky in the evaluation of such a proposed program amendment. Kentucky DSMRE has since submitted an informal program amendment to OSM, and the proposal is under review. The Lexington, Kentucky Field Office (LFO) jointly developed oversight plans with the DSMRE to look at issues similar to those identified in West Virginia. The Kentucky oversight plan can be found in Appendix I. In October 1998, the Kentucky DSMRE supplied an inventory of all permits from the inspectable units in Eastern Kentucky that contain mountaintop removal or approximate original contour permits. OSM and DSMRE jointly verified the inventory as part of the oversight work plan. OSM has completed inspection of mountaintop mining sites in Kentucky. A draft report describing the data gathered and conclusions reached is under review by OSM regional and headquarters offices. The final oversight report for Kentucky is anticipated to be completed in late March or early April 1999. c. Virginia: The Big Stone Gap, Virginia Field Office (BSGFO) jointly developed oversight plans with the State Division of Mined Land Reclamation (DMLR) to look at issues similar to those identified in West Virginia. The Virginia oversight plan can be found in Appendix I. OSM has completed inspection of mountaintop mining sites in Virginia. A draft report describing the data gathered and conclusions reached is under review by OSM regional and headquarters offices. The final oversight report for Virginia is anticipated to be completed in late March or early April 1999. To allow better categorization of mining operation types, Virginia recently updated its inventory of mining operations. The inventory process provided DMLR with insight for the development of its new automated data system and procedures. Although the current system tracks approximate original contour variances, DMLR found that the system was not completely accurate. DMLR currently tracks variances based on requests in the original permit application (initial submission), which often do not reflect what is finally approved for the operation. DMLR is establishing procedures to ensure that the information tracked in its database is accurate. 2. Policy, Guidance, or Rulemaking Decision Process - OSM is presently evaluating the need for policy changes, issuing guidelines, or revising regulations based upon: 1) the findings of oversight studies on mountaintop mining, and 2) comments and recommendations received on how OSM should deal with those oversight findings. Two principal issues emerge that are under consideration. The first is the need to define appropriate postmining land uses in a way that better fulfills Congress' intent in authorizing variances from the approximate original contour requirement. The second issue is the need to specify what surface configurations will satisfy the statutory requirement of restoring the land to its approximate original contour. The way in which the agency addresses these two issues will have a significant impact on a third area that is central to the current controversy valley fills. Definitions of acceptable postmining land uses and approximate original contour will directly affect the size of excess spoil fills. If an operation cannot justify the need for an approximate original contour variance, then attaining approximate original contour is required for the permit. If approximate original contour is required for the permit, less excess spoil disposal will be required. Less excess spoil disposal results in smaller valley fills and the resultant decrease in impacts to streams. The following section describes OSM's initiative to address these issues. a. Postmining Land Use: Mountaintop removal and steep slope mining can provide the opportunity to create flattened or gently rolling terrain capable of supporting a postmining land use that will provide a socioeconomic stimulus for nearby coal field residents and communities. The regulatory authority may grant a variance from reclaiming the site to approximate original contour for specific postmining land use categories only after consideration of the need, market, public support, and the commitment or likelihood of private investment for the proposed land use. Considerable ambiguity exists regarding the acceptable postmining land use categories and the details of postmining land use implementing plan and decision criteria. OSM is analyzing policy issues, researching the legislative and regulatory history and other pertinent information, and developing recommendations on options for policy, guidance, or rulemaking to better define postmining land use applicability. Decision making will incorporate, if appropriate, requested comments and suggestions from the public and other stakeholders. b. Approximate original contour: The legislative history of SMCRA shows that Congress intended to provide considerable flexibility with respect to what surface configuration would satisfy the statutory requirement for approximate original contour restoration. Because of this, and the wide topographic differences of coal mining regions in the U.S., OSM has never established guidelines for what constitutes approximate original contour at a given mine site during the permitting process. State primacy dictates that OSM provide some degree of flexibility for the states to interpret and determine approximate original contour requirements on a site-specific, or permit-specific, basis. An important issue, however, is the extent to which a postmining change in slope and configuration constitutes a departure from approximate original contour. Legislative history indicates that the primary element of approximate original contour is configuration or shape. However, because of the necessity to meet other SMCRA performance standards such as stability, access, and drainage/erosion control, some flexibility in determining what constitutes an acceptable approximate original contour must be provided. These performance standards are often met by installation of terraces, diversions, roads, and sediment control ditches/basins during the mining and reclamation process. These features, along with shaping the reclaimed site in a manner to resemble the premining contours, predicate that the post-mining land shape must differ somewhat from the premining configuration. Incorporating these requirements may have contributed to the varied interpretations as well as an inconsistent or overly broad application of policies or procedures that OSM is finding as the states attempt to implement their approximate original contour requirements. OSM is considering a process for determining whether a reclamation plan complies with approximate original contour standards. This process will also establish which portion of the overburden, or spoil removed during surface mining is truly "excess." As an agreed-upon part of the action plan resulting from the OSM West Virginia oversight, OSM is providing technical assistance to WVDEP in implementing a pilot program for review of permit applications. The pilot process for permit application review will assess attainment of approximate original contour and establish necessary excess spoil volumes for each proposed mining operation. OSM is also working with Kentucky DSMRE and Virginia DMLR in the development and testing of this approximate original contour/excess spoil determination concept. Following this pilot, OSM will also investigate whether further policy guidance on approximate original contour should be issued. 3. State Program Amendment Issues - On December 3, 1998, Kentucky submitted an informal program amendment that would authorize silviculture or managed woodland, and fish and wildlife habitat as postmining land uses for mountaintop removal operations. In 1997, West Virginia proposed a postmining land use of "fish and wildlife habitat and recreation lands" for mountaintop removal operations. OSM anticipates completion of review of these amendments following development of the policies, as described above. C. State Activities 1. West Virginia Senate Bill 145 - WV Senate Bill 145 (S.B. 145), contained in Appendix J, was signed by Governor Cecil H. Underwood and went into effect on June 12, 1998. The new law, commonly called the stream mitigation law, established a water quality certification program as mandated under Section 401 of the Federal CWA. Prior to the passage of Senate Bill 145, the State had been mitigating the effects of stream and wetland loss due to spoil disposal from mining and other industries through State guidelines, rather than through laws or regulations. The most controversial aspect of the new law increased the threshold for mitigation from 250 acres of drainage area to 480 acres of drainage area. With the change, applicants could fill streams with nearly twice as large drainage areas without doing any mitigation. The law also provided that, in lieu of on-the-ground mitigation, the operator could pay a mitigation amount not to exceed $250,000 per stream-acre disturbed. West Virginia is the only Appalachian state that allows a monetary option for stream mitigation. After passage, a legislative audit revealed that, since 1996, the WVDEP has entered into mitigation agreements for forty-seven mountaintop removal mining projects. If the standards contained in the new stream mitigation law had been applied, only six of the forty-seven projects would have required mitigation. Overall, the acreage of streams requiring compensation would have dropped 65 percent and the amount of compensation would have dropped almost 50 percent. The WVDEP has not issued any permits using the S.B. 145 standards. In August 1998, Governor Underwood directed the WVDEP to disregard, to the extent legally possible, the revised mitigation standards and use the stricter standards set forth in the former State guidelines when issuing permits. In December 1998, the Governor's Task Force on Mountaintop Mining and Related Practices recommended that the State Legislature rescind S.B. 145. The West Virginia Legislature is currently reviewing a bill to repeal portions of the controversial mitigation law. 2. West Virginia Governor's Task Force - In June 1998, Governor Underwood created the Task Force on Mountaintop Mining and Related Practices. The Task Force was made up of three committees: Committee on the Impact to the Economy, Committee on the Impact on the Environment, and Committee on the Impact on the People. Each of the Committees held frequent meetings and public hearings to solicit information on mountaintop mining from federal and state agencies, environmental and public interest groups, industry associations, and organized labor as well as individual citizens who felt they had been affected by these mining practices. The three committees reported their findings to the Task Force which compiled the findings into a final report. The Task Force report is included in Appendix K. Numerous recommendations were made in the report, encompassing six areas: further study and data compilation, community impact, stream mitigation, postmining land use, proactive regulatory agency involvement, and further mountaintop mining policy development. The recommendations were far-reaching and included: ÀÀ Calls for research on the environmental and economic effects of mountaintop mining; ÀÀ Establishing a State office to regulate the impact of mountaintop removal on people; ÀÀ Establishing a nationwide stream mitigation policy; ÀÀ Discontinuing fish and wildlife habitat as a postmining land use and development of commercial forest land as a preferred postmining land use; ÀÀ Enforcing rigorously existing regulatory requirements including water quality and approximate original contour guidelines; ÀÀ Examining whether public values compel restrictions on the degree of alteration of the landscape and the environment with regard to large scale mountaintop mining operations. A complete listing of all the recommendations can be found in the report. The Governor has sent the Task Force Report to the legislature without any recommendations. The Governor has stated publicly that he intends to follow generally the recommendations of the task force. However, he does not want to rescind the entire stream mitigation law or establish an office within the WVDEP to regulate the impact of mountaintop removal mining on people. WVDEP believes some of the recommendations of the Task Force report can be satisfied in developing the scope of the EIS mentioned above IV. Suggestions for Improvement As this report shows, there is a great deal of attention centered on the impacts of mountaintop mining operations. It is OSM's contention that, when completed, the ongoing activities will resolve many outstanding issues surrounding mountaintop mining, valley fills and their impacts, postmining land use, jurisdictional questions, approximate original contour, and approximate original contour variances. OSM is aggressively pursuing the implementation of appropriate recommendations, including the need for any subsequent additional data collection and studies, as well as any policy and/or rule changes that may be necessary. The recommendations that follow will be implemented as they are completed. However, all recommendations are planned to be implemented before the completion of the EIS at the end of calendar year 2000. While the previously mentioned activities are ongoing, OSM recommends the following: A. Complete ongoing information collection efforts, including the various oversight reports, the inter-agency valley fill impact studies, other federal and state assessments, and any environmental analyses emanating from the settlement agreement in Bragg v Robertson. B. Coordinate with state and federal partners to define jurisdictional boundaries between Federal agencies and devise integrated permitting processes. C. Develop guidelines, policies, and rules as needed to clarify statutory and regulatory provisions. D. Conduct federal oversight of state regulatory programs to evaluate related issues and assure implementation of the decisions arising from the conclusions drawn from the oversight reports and other studies. E. Provide technical assistance to states in implementing new guidelines, policies, and procedures. OSM has earmarked funds for oversight, special studies, and technical assistance. We will continually evaluate the adequacy of funding dedicated to this issue. The EIS may require a supplemental appropriation for fiscal year 1999. V. Appendices Appendix A: Definitions Appendix B: Inspectable Units Tables and Charts Appendix C: OSM Existing Regulations Governing Air Pollution Appendix D: Coal Producing States in Appalachia and Dates of Program Approval Appendix E: Interagency Fill Impact Study Group Statement of Mutual Intent and Scopes of Work for each study element. Appendix F: Bragg v. Robertson, Civil Action No. 2:98-636 (Southern District, WV.) Appendix G: Settlement Agreement Appendix H: Charleston Field Office, Draft Oversight Report, "An Evaluation of Approximate Original Contour and Postmining Land Use in West Virginia" Appendix I: Workplans\Performance Agreements for Kentucky and Virginia's Oversight Study of Mountaintop Mining Appendix J: West Virginia Senate Bill 145 Appendix K: West Virginia's Governor's Task Force Report Appendix L: Notice of Intent for Environmental Impact Statement Appendix M: Reserved