REVIEWING A PERMIT APPLICATION The right of citizens to review an application for a permit to begin a strip mine operation is a key feature of SMCRA. The permitting process was described briefly in the section on citizen rights in permit proceedings. This section focuses more closely on the kinds of problems to be identified during a permit review.
Few reading experiences are likely to be as intimidating as that of reviewing your first coal mine permit application. At first, the application will seem highly technical — even impenetrable — to an untrained citizen. Moreover, an application for a large mine may encompass 25 to 30 bound volumes. (By contrast, an application for a small mine in the East may have been prepared almost entirely by filling in the blanks on a form provided by the state agency.) But patience and perseverance will pay off. It soon becomes evident when looking at the application that much of it is comprised of maps and charts without much bearing on issues you wish to raise. Indeed, a 25-volume application may contain only two or three volumes of text. These few volumes should provide much of the information you will need to conduct your review and will help direct you to the maps and other documents relevant to your concerns. Although you should not expect to master all the technical jargon, most people can quickly get a basic grasp of the proposed mining operation and the potential problems it presents. Agency staff also can help. (See box).
WHAT TO DO WHEN YOU ENCOUNTER QUESTIONS
After receiving a permit application, the state or federal agency first determines that the application is administratively complete.[1] An administratively complete application is one "which the regulatory authority determines to contain information addressing each application requirement of the regulatory program and to contain all information necessary to initiate processing and public review."[2] Determination that the application is complete triggers an announcement of the application in a local newspaper and the public comment period.[3]
The complexity of most permit applications requires that your review be carefully organized. First, satisfy yourself that the application is truly complete. Use the checklist in Appendix B to guide you in this process. The checklist contains a comprehensive listing of all permit requirements, together with citations to the applicable federal law and rules and a diagram describing the application process. Be sure to review those provisions of the law that are pertinent to your review. Don't worry too much about the content of the application at this stage, unless it seems to be so uninformative about the operator's plans that it is impossible to write meaningful comments. If you believe that the application is not sufficiently complete to allow the public comment period to begin, notify the regulatory authority immediately. Request that the agency ask the operator to supply the additional information that you think is needed and to extend the comment period until 30 days after the public has been notified that the information has been received. Be aware, however, that some citizens have tried this only to be told an application is administratively complete, even when it lacks complete hydrologic or landowner leasing information. If this happens to you, be persistent: try asking a different official within the agency, tell other concerned citizens to make the same request for information from the agency, and consider filing a complaint asking the OSM to review the implementation of the state program. The process for filing such a complaint is described in Chapter 4 and Appendix E.
In most states, an agency decision that an application is not administratively complete will result in a letter or notice to the applicant describing the deficiencies. The agency also must make these letters available to the public. Be sure to request copies of these letters as they may prove very helpful identifying potential problems with a proposed mining operation. Once the application is found to be administratively complete, the public comment period begins.[4] At the same time, the agency will begin its technical review of the application. If you intend to file comments, be realistic about what you can expect to accomplish. Outline those issues that concern you and the reasons for your concern. Find out what the federal law and state program require with respect to those issues. (The permit checklist in Appendix B should help identify the relevant federal standards.) You may be able to find other interested citizens willing to help you by looking at the land ownership map in the application, which should identify surrounding landowners. In many parts of the country, citizen groups have formed to help people with mine-related problems. Call one of the groups in your area and find out whether they can help you. (Appendix G provides a list of organizations that help citizens with mining problems.) If you have questions that have not been fully answered during your review of the application and your discussion of the application with agency personnel, be sure to request an informal conference on the application.[5] (See Chapter 4: "Citizen Rights in Permit Proceedings.") While this handbook cannot explain all of the myriad problems and issues you may encounter when reviewing a permit application, the following sections provide an overview of the more common problems and some of the particular problems facing the three major coal regions of the United States. A separate section discusses typical problems at underground mines.
Common Problems: Blasting Most mining operations use blasting to break up the overburden, coal seam, or both. Many mines in the Midwest and West lie far enough away from populated areas so that blasting has little effect on homes and other structures such as concrete ditches or pipelines. But in the East, and in some areas of the Midwest and West, blasting can cause property damage and personal injury. All mines must contain a blasting plan that is designed to protect the public from damage.[6] Blasting plans tend to be highly technical in nature and difficult for untrained people to understand. Nonetheless, you should attempt to determine the extent of blasting, the proximity of blasting to any homes, buildings, or other structures, and the times during the day when blasting will be allowed, usually sunrise to sunset. [7] Before any blasting can occur, the operator must mail a pre-blasting notice, along with a copy of the planned blasting schedule, to the owners of all structures within one-half mile of the permit area (not the area where blasting will take place or where the mine pit is located but the outer boundaries of the entire permit area as set out in the application). [8] The pre-blasting notice advises all such property owners of their right to a pre-blast survey.[9] The purpose of the survey is to determine the condition of your property before blasting so you can more easily identify damage caused by blasting. Citizens reviewing a permit application should be sure that it lists the names of people who will be notified and that it includes all affected people and structures. If you own a structure within one-half mile of the permit area, you should receive a pre-blasting notice. Take advantage of your right to a pre-blast survey when you receive your pre-blasting notice.[10] (See box.) If you fail to do so, you may have a very difficult time proving that any damage to your structure was caused by blasting. Citizens have found that some mining operators will leave homes off of their maps, underestimate the distance between company structures and homes, or fail to identify the half-mile area affected by blasting until right before the permit is approved. It is important to compare the maps in the application with what you see on the ground. If you suspect that a home is within a half-mile of proposed blasting, make sure it is on the map, and make sure that that home owner knows that his or her home might be affected by blasting.
HOW TO REQUEST A PRE-BLAST SURVEY AND WHAT TO EXPECT FROM IT
Common Problems: Water Quantity and Quality Degradation
Mining inevitably affects surface and groundwater resources. If you obtain water from a well near a proposed mining operation or if you are otherwise concerned about the effects of mining on surface and groundwater systems near the mine site, you should become familiar with SMCRA's standards for water quantity and quality. At the permitting stage, the most important step is the preparation of a document by the operator to assess the probable hydrologic consequences (PHC) of mining.[16] Surface mine applicants normally hire a consultant to prepare this information for them, but small operators (less than 300,000 tons/year) may arrange to have it prepared at the regulatory authority's expense.[17] The regulatory authority uses the PHC determination to prepare an assessment of the probable cumulative hydrologic impacts (CHIA) of all anticipated mining in the area.[18] The regulatory authority is supposed to assess the impacts on the entire basin or watershed in which the mine is located, but it often fails to go beyond an assessment of the individual permit application site. For example, states may fail to consider the cumulative effects of nearby mine sites that have not yet received permits, even though the law requires that they do so. A complete PHC determination and CHIA provide substantial information about the effects of mining on water resources. Because of the substantial federal coal reserves in the western United States, the federal government has prepared CHIAs for many of the major coal basins in that region. Check to see whether a CHIA has been prepared for your area.[19] If you can afford it, hire a hydrologist to evaluate the completeness of the CHIA. In addition to these requirements, operators must include in their reclamation plans "a detailed description of the measures to be taken…to assure the protection of" the quality and quantity of surface and groundwater systems both on-site and off-site from adverse effects of the mining and reclamation process, and to preserve the rights of present users to that water.[20] Where they cannot assume that the quantity of water will be protected, surface mine operators must provide an alternative water source.[21] Since at least 1992, underground mine operators have also been required to replace damaged drinking, domestic, or residential water supplies,[22] unless the surface owner has signed a deed that waives the operator’s liability for damages caused by subsidence.[23] SMCRA requires the mine operator to monitor groundwater levels, infiltration rates, subsurface flow, storage characteristics and the quality of the groundwater both before and during mining.[24] Operators may be required both to drill wells of their own and to sample nearby wells that may be affected.[25] It is to your advantage to allow the mine operator to sample your water supply before mining begins so that you can later determine scientifically whether the water has been affected. If the operator refuses to check your well and the regulatory authority will not require it, try to get your water tested privately. When a mining company representative comes to your home to test your water, you should get a written, signed agreement from him to supply you with the results of the test. At a minimum, the operator should test the sample for the following characteristics:
If you suspect that mining may cause other forms of contamination, ask that those contaminants be tested for too. The Environmental Protection Agency (EPA) maintains detailed information about groundwater contamination, including information about approximately 90 contaminants for which the EPA has set drinking water standards at www.epa.gov/safewater/hfacts.html. The water sample should be taken from your drinking water supply before it is treated or purified. The operator should also note the type of well (dug or drilled); the year it was drilled or dug; casing; land surface elevation of well or spring; total depth of well; diameter of well; type of pump; pump setting; and type of water treatment (softening, chlorination, etc.), if any. If you are aware of other contaminants that have been found in local water supplies, be sure the sample is tested for those too. In addition to the sample taken by the operator, you should obtain your own independent sample if possible. Test the water in your well or at its source, before it has been treated or purified for drinking. Take the sample in a clean, wide-mouthed jar, totally full. Totally immerse the jar with the opening at an angle, being careful not to skim the surface water or disturb the bottom. Cap it tightly, date it, and have it analyzed as soon as possible. Be sure to place it in the refrigerator immediately, to maintain the quality of the sample. Usually, the state health department, the state geological survey, or a local university will analyze a water sample for a small fee or without charge. If the mine operator does not sample and measure your water supply, or if the analysis of your sample differs greatly from that of the mine operator, you should notify your state agency, preferably in writing, and request that the difference be resolved before the application is approved. Finally, bear in mind that the operator must "restore the recharge capacity of the mined area to approximate pre-mining conditions."[26] This means that the operator must insure that the natural processes which replenish groundwater supplies are restored. Of course, if the operator has breached a groundwater aquifer it is unlikely that the aquifer itself will be fully restored. More likely, the recharge water will replenish a deeper aquifer that may become an important source of groundwater in the future. Keep in mind that the operator is required to provide an alternative source of water for you if your water supply is adversely affected by mining. [27]
THE NATIONAL ENVIRONMENTAL POLICY ACT
Common Problems: Existing Violations
As previously noted, no coal operator may be issued a permit if that operator owns or controls any coal mine that is currently in violation of the law.[37] This restriction has been construed broadly, so that a company with interests in several coal companies must demonstrate full compliance at each mine in which it has an interest before it can get a permit. Some companies with outstanding violations may try to avoid this restriction by changing their corporate name or the principals involved. But the Office of Surface Mining maintains a computer data base that should make the process of detecting existing violators much easier. If you provide OSM with the name of the company, its major stockholders and corporate directors (most of which is available through your local Secretary of State’s Office), then the agency should be able to check its database and let you know if the company is an existing violator of the law. You can also use this system – called the “Applicant/Violator System (AVS) – yourself. [38]
Common Problems: Wildlife Damage Mining operations often present special problems for wildlife. The permit application should describe clearly any critical wildlife habitat (including winter range, calving grounds, and bird nesting sites) that may be disrupted by mining, and should explain how adverse impacts will be mitigated.[39] (SMCRA requires operators to "use the best technology currently available to minimize disturbances and adverse impacts of the operation on fish, wildlife, and related environmental values, and achieve enhancement of such resources where practicable."[40]) Note in particular any indication that the mining area may adversely impact an endangered or threatened species of wildlife listed under the federal Endangered Species Act (see box below). In such a case, mining may actually be prohibited. THE ENDANGERED SPECIES ACT
Appalachian Mining
Much of the mining in Appalachia occurs on steep slopes, and these rolling hillsides contribute to many of the problems associated with mining. Permit application review in this region should focus on sediment control, valley and head-of-hollow fills, and acid or alkaline mine drainage.
Sediment Control Heavy rainfall and steep slopes combine to create a substantial risk of landslides, erosion, and siltation of streams, lakes, and reservoirs. Citizens reviewing a permit application should be sure that measures used to stabilize topsoil and spoil materials are adequate and that the sediment control structures are designed with a sufficient capacity to handle a heavy rainfall. (Most structures must be designed to handle a 10-year/24-hour precipitation event — a 24-hour period of such severe rainfall that it occurs only once in ten years on average.[63]) Sediment control structures often take the form of sedimentation ponds. Sedimentation ponds are designed to hold stream water in one place long enough for suspended solids such as soil particles to drop out of the water and settle on the bottom of the pond. With few exceptions, operators must place sedimentation ponds in such a way as to channel and capture the runoff from the entire area disturbed by the mining operation.[64] Sedimentation ponds must be built before mining begins and must be certified after construction by a qualified professional engineer.[65] The ponds must be located as close as possible to the mined area, they must be large enough to provide adequate sediment storage volume,[66] and they must include adequate spillways.[67] Operators may choose to build a single sedimentation pond or a series of two or more.[68] Ponds may not be required, however, if the disturbed drainage area is small and the structures are not necessary to meet state and federal water quality standards.[69] It may be difficult to determine the adequacy of proposed sediment control ponds by looking at maps. If so, try to visit the site and identify the location for the proposed ponds on the ground. Sedimentation ponds are intended to prevent, “to the extent possible,” contributions of “suspended solids sediment to streamflow or runoff outside the permit area.” If the receiving stream is a cold water fishery, state water quality standards may also impose temperature requirements. (There are no federal temperature requirements, but federal law requires that state law be upheld.)
Valley and Head of Hollow Fills As described previously, breaking up and removing the consolidated overburden above the coal seam causes this material to swell by as much as 25 percent.[70] The percentage increase in material is called the “swell factor.” The amount of swelling will depend on the type of material and the manner in which it is handled. Where the ratio of coal to overburden is low, the swell factor usually will generate a considerable amount of excess spoil, or spoil in excess of that needed to completely backfill the mined area. Mountaintop removal operations generate particularly large volumes of excess spoil since the mined area is not backfilled. In Appalachia, excess spoil is usually deposited at the top of V-shaped valleys with steeply sloping sides, referred to as valley or head-of-hollow fills. SMCRA requires all excess spoil to be "transported and placed in a controlled manner... in such a way to assure mass stability and to prevent mass movement."[71] The Act and regulations further require that the design be certified by "[a] qualified registered professional engineer experienced in the design of earth and rock fills.”[72] Citizens reviewing an application should make certain that these requirements are met. If the application does not indicate the engineer's experience with fills, ask that these qualifications be provided. To ensure that the reviewer is indeed a professional engineer (“PE”), look for the PE seal on the application documents. It will be difficult for a person without an engineering background to evaluate the sufficiency of a fill design. (Detailed requirements are set forth at 30 C.F.R. § 780.35.) If you suspect problems with the fill, you may want to hire an expert. Local colleges and universities may have experts, soils scientists, or geologists who would be willing to review this part of the application without charge or for a modest fee. The chief concern with fills is stability, and water is the most likely element to destabilize a fill. Accordingly, you should review with care any sources of water under or near the fill area and how the operator proposes to manage that water. The operator may plan, for example, to channel water around the fill or allow it to pass through a rock drain at the bottom of the fill. Chapter 6, on monitoring a strip mine, provides additional suggestions regarding fills. OSM’s stream buffer zone rule provides that “no land within 100 feet of a perennial or intermittent stream shall be disturbed by surface mining activities.”[73] Because valley fills invariably result in burying streams, they would seem to be a direct violation of the stream buffer zone rule. The rules, however, allow an exception if the fill will not violate state and federal water quality standards and will not adversely affect the water quantity and quality or other environmental resources of the stream.[74] Under NWP 21, discussed in the box, “Section 404 of the Clean Water Act,” mining companies are generally able to obtain approval for valley fills. While Corps’ approval would seem to indicate compliance with water quality standards,[75] approval does not necessarily prove compliance. Fills may still violate the federal rules if they adversely impact the stream environment. If you suspect that such impacts may result from construction of a fill, be sure that the regulatory authority makes a pre-fill assessment of the water and environmental resources of the stream or streams that will be impacted. This way you will be able to document any adverse impacts that result from the construction or maintenance of the fill.
Acid Mine Drainage Federal regulations require the operator to identify all acid and toxic-forming strata from the surface to the stratum immediately below the coal seam in the permit application.[76] Be sure that all strata are properly analyzed. If any strata are toxic or acid-forming, (for example, if they contain pyrite) review the overburden handling plan to be sure that these strata will not be exposed to air and water where they might contribute to acid runoff. Some states allow alkaline addition to offset acid-producing potential, regardless of whether the acid-producing potential might exceed the neutralization potential of the addition at the site. States sometimes even issue permits without the required alkaline addition, so you will need to check the permit application and follow up by checking the operator’s performance. Mine drainage can also be alkaline. Although alkaline drainage is usually not as destructive as acid mine drainage, it can contain heavy metals that degrade habitat and water supplies as well.
Midwestern Mining Most mining in the Midwest occurs on flat or rolling terrain where area mining methods are used. The principal concern regarding Midwestern coal mining tends to focus on the post-mining agricultural productivity of the land. This section discusses special provisions designed to protect prime farmland, and the problems posed by final-cut lakes.
Prime Farmland All permit applications are required to include the results of an inspection to determine whether any prime farmland (see box) exists within the proposed permit area.[77] If prime farmland may exist, a soil survey must be conducted to identify prime farmland soils within the permit area.[78] If prime farmland soils are identified, the application must contain detailed information about those soils, their pre-mining productivity and the operator's plan to reconstruct those soils after mining to achieve pre-mining crop yields.[79]
PRIME FARMLAND Prime farmland is defined by federal law and regulations as lands that have been identified by the Secretary of Agriculture as prime farmlands and that have been "historically used as croplands."[80] Lands are deemed to have been historically used for cropland if:
Because of the stringent requirements that apply to mining activities on prime farmland, it is extremely important that the operator correctly identifies all prime farmlands at the outset. Affidavits submitted by the coal company claiming that the land has not historically been used as cropland should particularly arouse the suspicion of citizens reviewing mining applications. Check with local residents who are familiar with the land to verify these claims. A local Soil Conservation Service office also may provide assistance in determining the extent of prime farmland in the permit area.
If the proposed mining operation impacts prime farmland, be sure that the reclamation plan is adequate.[81] Check to see if the prime farmland restoration plan (or general reclamation plan) proposes the use of alternative soil materials.[82] While the operator may find it cheaper to mix soils, this procedure may also result in mixing good soils with rocky overburden. Before any alternative is approved, detailed data must be provided on the physical and chemical properties of the natural A and B soil horizons (the two uppermost soil horizons) and on the proposed reclamation mixture.[83] Replacement of the original soil horizons in the proper order is always preferred unless data clearly shows that a proposed alternative soil mixture is at least as good as the original soil.[84]
Citizens also should check the equipment proposed for restoring the soil horizons. Any proposal to use scrapers should arouse suspicion, as this equipment may cause excessive compaction.[85] End dump trucks are generally better for soil placement. Also note how the operator proposes to measure reclamation success. The deepest-rooting row crop commonly grown in the area should be used as the reference crop to measure reclamation success.[86] (In the Midwest, corn is usually the deepest.) If the operator is permitted to measure reclamation success through shallow hay crops, it may be impossible to accurately determine whether or not the land has been restored to full productivity.
Also, be sure to check the operator's claims regarding the pre-mining productivity of the land against local estimates on the productivity of comparable land.[87] Finally, review the soil reconstruction plan and any other available data to determine whether the operator has demonstrated that he can restore 100 percent of the pre-mining productivity of the land.[88] Additional information about reviewing permit applications on prime farmlands may be found in A Citizen's Guide to Farmland Reclamation. This informative guide is available from the Illinois Department of Natural Resources here: http://dnr.state.il.us/mines/lrd/farmland.pdf .
Last Cut Lakes As described in Chapter Two, area mine operators prefer to fill the last cut with water rather than trucking the spoil from the box-cut to the last cut. If you oppose this practice, several avenues for attacking it are available at the permit review stage. First, as a result of a successful lawsuit filed by citizen groups from around the country, last cut lakes are not permitted on prime farmland.[89] This fact underscores the importance of correctly identifying prime farmland at the outset. Last cut lakes may pose several particular problems. The spoil from the box cut may be difficult to blend with the surrounding terrain to achieve the approximate original contour, as required by SMCRA.[90] In that case, the operator might just as well truck the spoil to the final cut. Also, operators may try to place the box-cut spoil on prime farmlands. This should not be allowed because long-term storage of the spoil will damage the productivity of the land. The last cut lake also may be deemed a lesser use than the pre-mining use of the land, or it may conflict with local land-use plans.[91] As explained earlier, SMCRA requires that all mined land be restored to pre-mining uses, or to higher and better uses that are consistent with local land-use plans. This problem may be particularly compelling where a long, narrow last cut lake breaks up agricultural land in a way that interferes with farming activities. Last cut lakes also may pose public health or safety problems if, for example, the slopes leading down to the water are too steep. This, too, is prohibited by SMCRA.[92] Finally, the stratum below the coal seam often contains acid-producing materials that may substantially reduce any potential recreational value for the lake.
Western Mining Most Western mines are considerably larger than Eastern mines, and the problems associated with these mines are generally related to the arid climate that prevails throughout much of the West. This section discusses three problems: dewatering, threats to alluvial valley floors, and revegetation.
Mine Dewatering The large pits excavated for Western mines frequently breach groundwater aquifers. This creates problems not only for the mining operations but for residents who live nearby. The mine pit may drain the ground or surface water resources used by neighboring wells. Further, the water that gathers in the pit may contaminate other water sources when it is pumped out of the pit and discharged into another water body. Citizens reviewing permit applications in the West should look carefully at the operator's plans for collecting and managing mine water. Is the mine expected to draw-down ground or surface water in the area? Are the draw-down estimates realistic? What has been the experience at other neighboring mines? If you can afford it, hire a hydrogeologist (an expert on groundwater) to review this part of the permit application. Look with particular care at the water monitoring program in the permit application. Has the operator conducted sufficient pre-mining monitoring to determine the baseline (pre-mining) hydrology of the area?[93] Does the operator propose sufficient monitoring during and after mining and reclamation to assure a continuing assessment of the mine's impact on water?[94] Has the operator identified alternative sources of water in the event that he is required to replace lost water?[95] Is the proposed replacement source of similar quality?[96] Can it be extracted and used by the end user at similar cost?[97] You should demand satisfactory answers to all of these questions before the mining permit is approved.
Alluvial Valley Floors When it passed SMCRA in 1977, Congress found that alluvial valley floors (AVFs) were "of special importance in the arid and semi-arid coal mining areas" because they form “the backbone of the agricultural and ranching economy in these areas.”[98] (The term “alluvial” describes fertile deposits of sediment laid down by the action of wind or water in ancient geological ages.) Quoting from a National Academy of Sciences study, Congress noted that "unconsolidated alluvial deposits are highly susceptible to erosion" and that "removal of the alluvium from the thalweg [the line along the very bottom of a stream that marks its direction] of the valley not only lowers the water table but also destroys the protective vegetative cover by draining soil moisture."[99] In considering this problem, Congress decided to protect the ranchers over the mine operators. SMCRA requires the operator to "preserve throughout the mining and reclamation process the essential hydrologic functions of alluvial valley floors in the arid and semi-arid areas of the country."[100] Any permit or adjacent area west of the 100th meridian [a line coincident with the eastern border of the Texas panhandle] that encompasses a valley holding a stream may include an AVF subject to the requirements of the law.[101] Thus, the most critical decision at the permitting stage is whether an AVF exists. By law, an AVF exists if – (1) unconsolidated stream-laid deposits are present, and (2) sufficient water exists to support agricultural activities.[102] Even where an AVF exists, however, operators may be able to avoid the stringent AVF protection standards if they can show that the only land to be disrupted is undeveloped rangeland which is not significant to farming, or of such small acreage that it will have a negligible impact on a particular farm's agricultural production.[103] If an AVF exists and is not subject to the above exceptions, or is not a mining operation that commenced before the Act was passed in 1977, then the permit applicant must demonstrate that the mining activities will not "interrupt, discontinue or preclude farming on the AVF” or “materially damage the quantity or quality of water in surface or underground water systems that supply these valley floors."[104] A proposed mining operation near an AVF will have great difficulty meeting the above requirement. Concerned citizens should employ the services of a hydrologist (surface water expert) or hydrogeologist (groundwater expert), if possible. Don't forget, however, that the regulatory authority will be making the final AVF determination and will have its own water experts. If you suspect an AVF may exist, gather information about the farming potential in the area’s surrounding streams. Consult with the appropriate agency people about this information and learn what you can from them about the prospects for designating one or more AVFs on or near the land proposed for mining.
Revegetation The arid conditions that prevail throughout the West may make revegetation difficult to achieve. Short-term success generally can be accomplished without much difficulty using non-native species, fertilizers, and intensive management. Over the long haul, however, the operator's ability to restore native vegetation that is capable of self-regeneration – without fertilizers and intensive management – is much harder to demonstrate. Although native species are preferred, SMCRA allows the use of non-native species where "desirable and necessary to achieve the approved post-mining land use."[105] In the West, the post-mining land use will almost invariably be rangeland. (Indeed, you should be suspicious of any plans to restore the land to anything but rangeland.) Thus, the species used to revegetate must be at least as suitable as the native species for grazing purposes.[106] Any good reclamation plan will clearly distinguish between short-term revegetation necessary for providing a protective cover, and long-term revegetation which focuses on the post-mining land use and provides a diverse cover of primarily native species.[107] If the reclamation plan you are reviewing does not make such a distinction, be sure to inquire further about the operator's specific revegetation plans.
Underground Mining Underground mining operations must meet most requirements that apply to surface mines.[108] Thus, if you are dealing with a proposed underground coal mine you should familiarize yourself with the surface mining requirements to be sure that these are met. Keep in mind, however, that SMCRA authorizes the Secretary of the Interior to establish different standards for underground mines "as are necessary to accommodate the distinct differences between surface and underground mining."[109] Most of the unique problems that result from underground mining relate to subsidence. Accordingly, a person reviewing an underground mine permit should look carefully at how the permittee plans to control subsidence damage. Permit applications for underground mines must include a pre-subsidence survey showing whether any structures or renewable resource lands exist within the proposed permit and adjacent area.[110] (Renewable resource lands are defined to include aquifers, recharge areas, agricultural, and silvicultural areas and grazing lands.[111]) If such structures or lands do exist, the applicant must determine whether subsidence might cause "material damage or diminution of reasonably foreseeable uses" to these structures or lands.[112]
Request that the mining operator include your property in the pre-subsidence survey. If the mining company refuses to conduct a pre-subsidence survey of your property, hire a private contractor to document the condition of all structures on your property, or document them yourself. Take photographs of all joints between walls and floors, all foundation slabs and walls, all door frames, and anything else that you suspect might be damaged by subsidence underneath the structure. Record the time and date you took the photographs. If you have a digital camera, upload the photographs to your computer immediately and email them to someone who is willing to hold them as a back-up.[113]
If the survey shows that subsidence may harm structures, water supplies, or renewable resource lands within the permit or adjacent area, the applicant must prepare a detailed subsidence control plan.[114] The subsidence control plan must include:
Be sure to review this plan. This will enable you to evaluate any claim by the applicant, either that the area does not contain structures or renewable resource lands, or that subsidence will not harm these structures or lands. Be sure that any subsidence control plan accurately identifies the structures or lands that may be affected and provides for adequate monitoring of the effects of subsidence before, during, and after mining. Regulations also require operators to identify on a map the location and type of drinking, domestic, and residential water supplies that could be contaminated, diminished, or interrupted by subsidence.[115] Make sure all such water sources are accurately represented on the map, and make sure the operator determines whether they will be impacted by subsidence. Mining companies often mis-identify springs, streams, wells, and ponds. Longwall mining is the most common method of underground mining in use today. [116] Because SMCRA allows longwall mine operators to engage in “planned subsidence,” you should pay close attention to any mention of planned subsidence in the permit application. The reclamation and restoration requirements for damages caused by planned subsidence are different from those caused by un-planned subsidence. See the section on “Controlling the Impacts of Subsidence” in Chapter 6 for an in-depth discussion of these requirements.
Additional Permitting Requirements under the Clean Water Act
In addition to the permitting requirements imposed by SMCRA, operators are often required to apply for separate permits under the Clean Water Act (CWA) if their actions will disturb or pollute rivers or streams. The requirements of the CWA are especially relevant in the wet forests of the Eastern United States. The remaining subsections of this chapter describe some of the provisions of the Act and how they apply to coal mine operators.
National Pollutant Discharge Elimination System Permits Section 402 of the Clean Water Act[117]establishes the National Pollutant Discharge Elimination System (NPDES), which is a permit program for point sources of water pollution.[118] Section 402 makes it illegal to discharge any pollutant from a point source into waters of the United States without a permit.[119] Each of the highlighted terms is expressly defined in the statute. For example, the term “pollutant” is defined broadly to include most types of waste that a surface mine might discharge, including rock, sand, and heat.[120] A “point source” encompasses “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container…from which pollutants are or may be discharged.”[121] NPDES permits are typically issued by state agencies pursuant to a program approved by the U.S. Environmental Protection Agency (EPA), although the EPA issues the permit in states without an approved program.[122] Courts have held that even rainwater runoff from spoil piles into a nearby stream is point source pollution, even without “direct action by the mine operators in pumping or draining water into the waterway.”[123] Moreover, because SMCRA regulations require that “[a]ll surface drainage from the disturbed area shall be passed through a siltation structure before leaving the permit area”[124] (subject to minor exceptions), any discharge from the mine site will necessarily come from such a structure, which will almost certainly satisfy the requirement for a point source.[125] For this reason, mining plans should be examined carefully to determine whether and where discharges will occur, so that the appropriate NPDES permits can be obtained. An NPDES permit application must be submitted at least 180 days before the date on which discharge is to begin, unless the permitting authority grants permission for a later application.[126] The application must contain detailed descriptions and maps of the proposed pollutant discharges, along with other reporting requirements.[127] The permitting authority then issues a draft decision to grant or deny the permit.[128] After notice to the public and a 30-day comment period and hearing,[129] the permitting authority makes a final decision.[130] The issued permit must contain technology-based effluent limitations, meaning operators must limit pollution to levels mandated and defined in accordance with detailed regulations issued by the EPA for coal mining operations.[131]
Permits for the Discharge of Dredged or Fill Material into Rivers and Streams
Under Section 404 of the Clean Water Act (CWA) the U.S. Army Corps of Engineers (Corps) regulates discharges of dredged or fill material into the waters of the United States.[132] Mining operations often dump waste rock, soil, and other materials into streams or their tributaries, rather than dispose of it in a more environmentally friendly manner. To discharge fill material into waters or wetlands, mine operators need a Section 404 permit. The CWA, however, allows the Corps to define categories of activities that do not require individual permits because they only have minimal environmental impacts. Thus, the Corps has issued numerous “nationwide permits” (NWPs). NWP 21 governs the placement of valley fills derived from surface coal mining operations and is unique among NWPs in requiring written authorization from the Corps before construction can begin.[133] If the mining discharge is not a valley fill covered by NWP 21, an individual permit is required under Section 404. In approving an individual Section 404 permit, the Corps first determines if the application complies with the requirements of Section 404(b)(1). This section requires the mine operator to consider alternative proposals evaluating the effects of overburden disposal on different streams within the permit boundary, and to determine that the discharge does not jeopardize threatened or endangered species, violate state or federal water quality standards, or contribute to the significant degradation of waters of the United States.[134] The Corps must also find that the project is not contrary to the public interest. The public interest standard requires the Corps to consider conservation, economics, aesthetics, wetlands, historic properties, flood hazards, floodplain values, land use, navigation, recreation, energy and mineral needs, safety, water quality, fish and wildlife values, shore erosion and accretion, water supply and conservation, food and fiber production, property ownership, general environmental concerns, and the needs and welfare of the people.[135] In addition to the Corps’ authority to issue Section 404 permits, the Administrator of the EPA may deny or restrict a Section 404 permit if the discharge would harm municipal water supplies, shellfish or fish habitat, wildlife, or recreation interests.[136] Contact the office that is reviewing the Section 404 permit that you are concerned about. They may be able to assist you in critiquing the Corps’ analysis of the effects of the potential discharge. Additional CWA requirements apply to valley fills with sedimentation ponds below. Valley fills are sometimes placed in streambeds, and the mine operator typically uses the existing stream to transport sediment and other pollutants from the toe of the fill to a sedimentation pond.[137] The valley fill is considered a new point source for pollutants. Before utilizing a section of a mountain stream for this kind of waste transport, the operator must first obtain a § 402 NPDES permit from the EPA or state permitting agency as described above.[138]
Ambient Water Quality Standards Section 303 of the Clean Water Act[139] requires states to set ambient water quality standards for every water body in the state. All standards (or “criteria” as they are called in the rules) must have a sound scientific rationale[140] and should be at least strict enough to satisfy the national goal of making all water bodies suitable for swimming and fishing.[141] Water quality standards must include the designated uses for each water body as well as water quality criteria based on those uses.[142] Numeric standards are required for many toxic pollutants, which are listed pursuant to Section 307 of the CWA.[143] If these standards are not being met, the state must designate these water bodies as degraded. For all degraded water bodies, the state must set an upper limit on the amount of each pollutant in the water body that is not meeting the standards. This upper limit is called a Total Maximum Daily Load (“TMDL”).[144] The state must also set an upper limit on how much thermal pollution, or heat, enters the water body.[145] Both the pollutant TMDL and the thermal limit must be set at levels “to assure protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife.”[146] Each state must ensure that “existing instream water uses and the level of water quality necessary to protect the existing uses [are] maintained and protected.”[147] This means that high quality streams that support a wide range of aquatic life must be maintained at high water quality. However, there is an exception that allows the state to make a finding, after allowing for public participation, that the economic and social factors in the area outweigh the value of high water quality.[148] The state should test all water bodies regularly to see if pollution concentrations are exceeding the TMDL for each pollutant. Once a TMDL is set, the state must demonstrate that it is taking action to limit pollution from point and non-point sources along the water body to decrease pollution to meet the TMDL.[149] These limitations to discharges are called Water Quality Based Effluent Limitations, or “WQBELs.” Each drain, pipe, and outflow at a mine site is a point source. If the TMDL for a pollutant is not being met, a WQBEL should be imposed on the effluent from those point sources to reduce the amount of the pollutant that goes into the stream beyond the effluent limitations that would otherwise apply to an NPDES permit for a coal mining operation.
Additional State Certification for Federal Permits under the Clean Water Act
Another potentially powerful tool for protecting water quality is the state certification processed under, Section 401 of the Clean Water Act (CWA).[150] Section 401 requires an applicant for any federal license or permit to obtain certification from the state that “may result in any discharge into navigable waters.”[151] The applicant meets the CWA’s pollutant discharge limitations[152] as well as any additional state water quality standards.[153] Among the federal permits that may be requested for any mining operation that could adversely corrupt water quality are permits for pollution discharges, permits for rights of way across federal lands, and permits for air pollution discharges. Therefore, if a mine operator applies for any kind of federal permit that will potentially discharge material into rivers or streams, the operator will need the state’s water protection certification. Without state certification, the federal permit cannot be issued.[154] In addition, your state may impose conditions on the mine operator – for example, monitoring the operator for the life of the federally permitted project – to ensure the operator continues to meet water state and federal water quality standards. Because of the potential breadth of the conditions imposed on federal permit applicants, Section 401 has been called the “sleeping giant” of the CWA.[155] |
update NWP 21 information