Chapter 1: Introduction

INTRODUCTION

 

Few experiences affect and confound average citizens more than having a coal mining operation under or near their home or community.

    Despite assurances from the operator and government agencies that they will protect the public and the environment, those living in the neighborhood of a mine frequently encounter very serious problems. Efforts to combat these problems are often frustrated by complex techni­cal responses from teams of coal company technicians and lawyers that serve only to further muddy the real problems caused by strip mining. Yet, people willing to assert their rights can prevail, thanks to the Surface Mining and Reclamation Act of 1977 (SMCRA). This law — fought by mining interests from its beginnings and always susceptible to half­hearted enforcement efforts by the responsible state and federal agencies — can nevertheless provide citizens with effective relief from most problems associated with mining.

    The Strip Mining Handbook was written to give citizens in mining areas a fighting chance to protect their homes and communities from the ravages of mining operations by providing them with the tools they need to understand the law and use the often complex provisions of SMCRA to their advantage.
 
 
 
Strip Mining and Society
 
    An important historical problem that helped shape the conflict between Appalachian surface owners and coal companies was the broad form deed.  When coal companies bargained with landowners to buy mineral rights, they commonly negotiated favorable terms for themselves and did not adequately explain the terms to the largely uneducated landowners, who often did not understand the contracts.[1] The companies paid very little for the coal, despite the fact that they reserved the right to use the land surface for coal development.[2]

    Most of the mineral rights deeds were made in the late nineteenth century and early twentieth century, when underground mining was common and surface mining was rare.[3] Land owners who signed these deeds never expected that their homesteads would be turned into strip mines. Yet up until the mid-1980’s, courts in Appalachia consistently interpreted broad form deeds to permit surface mining operations even though the grantor had retained the surface rights to the land above the coal seam. Broad form deeds included language that waived mining companies’ liability for surface impacts that were “convenient or necessary” to the mining operation.[4]  Based on the turn-of-the-century mining technologies in use during that time period, this language meant that the mining company, which owned only the subsurface mineral rights, could build roads, buildings, coal waste piles, and other structures, as well as harvest timber, on the surface land to facilitate an underground mining operation.[5] Finally, in 1988, Kentucky amended its constitution so that broad form deeds are interpreted in accordance with the intentions of the parties based on the commonly known coal extraction methods at the time the deed was signed.[6] That interpretation limited coal companies’ ability to take advantage of the broad language in the old deeds to conduct surface mining on lands for which they did not own surface rights. 

    Although traditionally the surface owners possess an absolute right to have surface land supported by the underlying strata of rock and soil,[7] if the deed conveying mineral rights contains a specific provision that waives that right to subjacent support then the surface owner cannot receive compensation for damage to the surface of the land when the ground underneath it sinks.[8]  Moreover, courts have interpreted the vague language in broad form deeds to waive the right to subjacent support in cases where longwall mining caused subsidence damage to the surface owner’s property. [9]

    Furthermore, West Virginia courts do not require mining companies to compensate landowners for the loss of surface water when subsidence from longwall mining drains away surface water resources.[10]  Other courts have been reluctant to acknowledge that subsidence constitutes substantial surface damage.  In Virginia, the state’s highest court refused to recognize that any substantial damage had occurred after a surface owner’s land subsided as much as three feet.[11]  The court based its opinion on the biased testimony of the defendant coal company’s own expert witness.[12]  In coalfield states, this kind of judicial sympathy for mining companies is all too common. 
 
 
 
Strip Mining and the Environment
 
    From its earliest beginnings, strip mining has been synonymous with environmental controversy. Grossly underregulated coal mining in the 1960's and 70's spawned one of the greatest abuses of the environ­ment in the history of the United States.

    The statistics of strip mine abuse numb the mind and overwhelm the spirit. At the time SMCRA was passed in 1977, more than 264,000 acres of cropland, 135,000 acres of pasture, and 127,800 acres of forest had been lost.[13] More than 11,000 miles of streams had been polluted by sediment or acid from surface and underground mining combined.[14] Some 29,000 acres of reservoirs and impoundments had been seriously damaged by strip mining.[15] Strip mining had created at least 3,000 miles of landslides and left some 34,000 miles of highwalls.[16] Two-thirds of the land that had been mined for coal had been left unreclaimed,[17] and the cost of reclamation in 1977 was estimated at between $10 billion and $35 billion.[18] [19] While many of the worst abuses have been addressed by SMCRA, problems remain.

    The most serious adverse impacts from coal mining have occurred in the Appalachian region, especially the states of Kentucky, Pennsylvania, Tennessee, Virginia, and West Virginia, but coal mining occurs in many parts of the country including the Midwest, the South and the West. Large mines in such western states as Colorado, New Mexico, Utah and Wyoming began operating in the 1970’s. The Powder River Basin of Wyoming and Montana alone produces 40 percent of the coal burned in the United States.[20] Although many unique prob­lems have been encountered at these western mines, many of the problems are the same as in other parts of the country.

    Perhaps the greatest modern threat from coal mining comes from mountaintop removal mining in the Appalachian region. This practice is described in more detail in Chapter 2. Improved technology allows mine operators to remove entire mountaintops to access underlying coal seams by moving mountaintop vegetation, topsoil, and overburden (the mining term for the rock, subsoil, soil, and vegetation overlying the coal seam) to adjacent valleys where mountain streams often run. Most affected streams are considered headwater streams, which are important because they contain unique aquatic life and provide organic energy to fish and other species downriver.[21] The Environmental Protection Agency estimates that over 700 miles of streams have been buried by removed material and 1,200 miles have been directly affected by mountaintop removal mining.[22] In Kentucky, for example, the number of polluted streams rose by twelve percent between 2001 and 2005.[23]

    Mountaintop removal mining will cause a projected loss of 1.4 million acres of land by 2010. Roughly 800 square miles of mountains had already been destroyed by 2003,[24] and, while there is little reliable data after 2001, current estimates suggest that as many as 470 mountains have now been flattened in West Virginia, Virginia, and Kentucky.[25]

    Coal mining causes many other risks as well.  For example, mine fires threaten local communities and contribute significantly to climate change. These fires release poisonous gases and cause sudden subsidence, opening holes large enough to swallow vehicles and buildings. Burning deep underground along cracks in the coal seam, the fires are very difficult to extinguish. One fire in Centralia, Pennsylvania has been burning underground for over 45 years. Centralia’s residential properties were condemned in 1992, yet a few holdouts remain.[26]

    Another serious problem involves coal slurry.  Coal slurry is liquid waste created when coal is rinsed with water, starches, or lime.  It is often stored in impoundments at coal mining sites. On February 26, 1972, an impoundment dam failed above Buffalo Creek, releasing 132 million gallons of slurry. The toxic water washed away a dozen towns, destroyed 4000 homes, and left 125 residents dead.[27] A generation later, in 2000, a Martin County Coal Company slurry impoundment failed near Inez, Kentucky, releasing an estimated 300 million gallons of slurry into several rivers and streams.[28] Slurry flooded downstream residents’ properties,[29] killed aquatic life, and contaminated the water systems of 27,000 people.[30] All said, this disaster affected more than 100 miles of streams and floodplains, and slurry remains in the stream systems today; it is unlikely that all of it will ever be removed.[31]
 
 
Making SMCRA Work
 
 
    The widespread degradation of land and water resources caused by strip mining — and the failure of the states to effectively regulate the industry themselves — resulted in the passage of the Surface Mining Control and Reclamation Act of 1977. The overriding purpose of SMCRA was to make mine operators conduct their operations in a way that would avoid environmental and public health injury, and to restore the land after mining to its pre-mining condition.

    SMCRA, however, has been as controversial as strip mining itself. SMCRA was one of the most bitterly contested environmental statutes ever considered by Congress. The battle did not end when the law was passed. Representatives of the energy and electrical utilities industries (who often burn coal to produce energy) and a number of major coal-pro­ducing states fought hard against passage of the legislation. Having lost that battle, these same forces set out to frustrate its implementation.

    Citizens groups from around the country have fought hard to main­tain the gains achieved through SMCRA. It sometimes has seemed an endless fight. In the early years after passage of the law, the federal Office of Surface Mining made great strides towards achieving the goals that had been established by Congress. But the appointment of James Watt as Secretary of the Interior in 1981 triggered a series of setbacks from which the agency has struggled to recover.

    In one of his first moves as Secretary, Watt asked some of the most outspoken opponents of SMCRA to fill key agency posts within OSM. The result was predictable.[32] Enforcement actions dropped dramatically and a frenzied effort to weaken the strict federal regulations began. The zeal with which the new administrators set about to deregulate the industry, however, was coupled with a shocking ignorance of the legal require­ments of SMCRA. The initial efforts thus were frustrated. Subsequent efforts persisted, however, and eventually the federal rules were weakened dramatically. Fortunately, the citizen groups that had fought so hard for passage of the law did not give in. Lawsuits were filed successfully challenging many of these new rules. But, as the recent battles over mountaintop removal mining illustrate, efforts to under­mine the law have not subsided, and citizens interested in preserving SMCRA should expect the fight to continue for many years to come.
 
 
 
A Continuing Demand for Coal

    Coal is the most abundant fossil fuel used for energy production worldwide.  At the current rate of consumption, world coal reserves are estimated to last over 150 years.[33]  As oil and gas become scarcer and their prices continue to rise, pressure to develop coal resources increases.  World coal consumption is growing faster than the consumption of any other kind of energy.  The demand for coal in 2030 is expected to be double the demand in 2007.[34]               

    Currently the United States depends on coal for half of its electricity production.[35] With more proven coal reserves than any other country, the United States will continue coal mining not only for domestic use but for export to meet increasing international demand.[36]  The United States currently exports approximately six percent of the coal it produces.[37]

    The continued burning of coal to generate electricity and heat contributes significantly to global warming and climate change. Climate change results from a buildup of carbon dioxide and other greenhouse gases (“GHGs”) in the atmosphere that trap heat that would normally disperse into space. Burning coal with current technologies results in more GHG emissions per unit of energy produced than any other form of energy.[38]  To make matters worse, the mere extraction of coal produces 10% of U.S. methane emissions.  Methane, which inevitably escapes from the coal beds during the mining process,[39] is a dangerous GHG that traps twenty-one times more heat in the atmosphere than carbon dioxide.[40] (graphic)

    Carbon dioxide emissions from burning coal can be reduced in two ways.  One is to increase the efficiency of energy conversion in coal combustion; the other is to capture and sequester the GHGs emitted from burning coal.[41] Much work is being done to promote efficiency and carbon sequestration technology, but unless the GHG footprint of coal consumption is considerably reduced, the long-term future of coal remains in doubt. In the short-term, however, coal will continue to serve as the primary source of energy for electric power generation, and the prospects for further coal development remain fairly strong.

    Fortunately, coal mining can be conducted in a reasonably responsible fashion on most lands. The task for citizens is to ensure that the state and federal agencies are carrying out their responsibility to protect the public and the land, air, and water resources that may be adversely impacted by mining.
 
 
 
How to Use this Handbook
 
    This handbook has been designed to provide ordinary citizens with the background information they need to understand SMCRA, and how the law can be used to protect their homes, property, community and surroundings from problems resulting from strip mining operations. Chapter 2 describes the environmental effects typically produced by different types of mining operations. Chapter 3 gives an overview of the requirements of the federal law, and Chapter 4 explains the rights of citizens to enforce those requirements. The last three chapters provide a step-by-step explanation of how citizens can take action at three crucial stages of a strip mining operation:  reviewing the operator's application for a permit to begin mining; monitoring an ongoing surface mine operation; and participating in the proceedings after mining which release an opera­tor from the bond posted at the beginning of the mining operation.

    Eight appendices provide you with additional information, including forms, checklists, and the addresses of citizen organizations and regula­tory agencies. These materials are designed to help you through the complex rules of the statute. While every attempt has been made to explain unfamiliar terms in the text, a glossary is also provided in an appendix.

    Where appropriate, the handbook cites the correct authority, usually the federal statute or regulation. These citations can be helpful in under­standing the scope of the law and in describing a perceived problem to an agency official. Be careful, however, about how you use these citations. Most states have their own laws and regulations for implementing SMCRA. In most cases, therefore, the federal regulations themselves are not directly applicable. It is also possible that, over time, the federal regulations may change. Remember that state provisions must be at least as effective as the federal standards. Therefore, the federal standards are an appropriate benchmark against which a state program can be mea­sured, and citizens may reasonably demand that state programs be interpreted to ensure that citizens are protected to the same extent as they would have been under the federal standards.

    Those actively involved with a surface mining problem should obtain the most recent copy of the federal and state laws and rules. The federal rules can be browsed online at the Government Printing Office website: ecfr.gpoaccess.gov.  This website provides free access to an electronic version of the Code of Federal Regulations. To find the surface mining regulations, select “Title 30” from the drop-down menu and click on parts “700-999.”  The federal rules can also be purchased from the Government Printing Office.  Your local Congressperson or Senator may be able to assist you in obtaining the federal documents at little or no cost.  State statutes and regulations should be readily available from your state agency (see websites and addresses listed in Appendix G).

    The reader who faces serious mining problems may ultimately have to look beyond this publication. But this citizen's manual should provide you with the information and the confidence to get started.
 
 
 
The Need for Continuing Citizen Involvement

    A primary reason that coal operators and states have fought so hard against SMCRA is that it gives citizens extensive rights to participate in the process of controlling strip mining abuse. In providing for maximum citizen participation, Congress parted company with the coal operators and the states. Congress believed that citizen involvement would be crucial to SMCRA's success.

    Congress was right. The law won't work unless citizens make it work, just as it wouldn't have been passed in the first place if citizens hadn't demanded it. In short, if you want to see the abuses of strip mining ended, you are going to have to do part of the job yourself. Many resources — from this handbook to local environmental organizations — exist to help you. Use them.

    One final note of encouragement is in order. As a private citizen you should not expect to know as much about mining and reclamation as either the coal operator or the government agency in charge of regulation. Don't allow your lack of knowledge to discourage or intimidate you. You most likely will be the first to recognize that your property is threatened by a mining operation; Congress intended that you should be able to stop any damage before it starts. Notify the state and federal authorities of the problem immediately. Ask them to explain in detail their response and the reasons for that response. Even if no violation of law is ultimately found, you will have accomplished an important step by putting govern­ment agencies and coal operators on notice that private citizens are watching them. And when other problems do arise, both you and the agency will have gained valuable experience with the public participation requirements of the law.
 
Subpages (1): Chapter 1 Footnotes
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