Surface Coal Mining
Financial Assurances for, and Long-Term Oversight of, Mines with Valley Fills in Four Appalachian States Gao ID: GAO-10-206 January 14, 2010Surface mining for coal in Appalachia has generated opposition because rock and dirt from mountaintops is often removed and placed in nearby valleys and streams. The Office of Surface Mining Reclamation and Enforcement (OSM) in the Department of the Interior and states with approved programs regulate these mines under the Surface Mining Control and Reclamation Act (SMCRA). The Army Corps of Engineers (Corps), the Environmental Protection Agency (EPA), and states also regulate different aspects of coal mining, including the filling of valley streams, under the Clean Water Act. Under SMCRA, mine operators must provide financial assurances sufficient to allow mines to be reclaimed. Under the Clean Water Act, the Corps may require financial assurances that the impact of mines on streams can be mitigated. GAO was asked to examine (1) the approaches OSM, the states, and the Corps have taken to obtain financial assurances for surface coal mines with valley fills; (2) federal and state agencies' monitoring of these mines after reclamation and mitigation are complete; and (3) the federal laws agencies may use, and have used, to address latent environmental problems. GAO gathered information from state and federal agencies in Kentucky, Tennessee, Virginia, and West Virginia about their financial assurances practices, long-term monitoring, and use of federal laws to address environmental impacts at former mine sites. This report makes no recommendations.
OSM, the states, and the Corps use different approaches to financial assurances for reclamation and mitigation. Under SMCRA, states have flexibility to require mine operators to provide a bond for the full cost of reclamation or participate in an alternative bonding system such as a bond pool, which may combine bonds, taxes on coal production, and other sources of funding. West Virginia relies exclusively on an alternative bonding system, while Tennessee exclusively uses a full-cost bonding system. The other two states, Virginia and Kentucky, rely on a combination of full-cost bonds and an alternative bonding system. Under the Clean Water Act, the Corps has discretion to require that mine operators provide assurances that funds will be available to mitigate the effects of burying streams with valley fills but it has not done so in the four states we reviewed. Instead, the Corps has relied on other mechanisms to ensure that mitigation will be completed satisfactorily, according to Corps officials. For example, some Corps officials said they rely on SMCRA financial assurances to ensure required mitigation. OSM, EPA, the Corps, and the four states' mining and environmental agencies are not required to monitor former mountaintop mines with valley fills for long-term environmental degradation after reclamation and mitigation are complete and financial assurances have been released. However, several of them, along with the U.S. Geological Survey, have conducted or funded analyses of conditions near reclaimed mine sites with valley fills that have shown environmental impacts. Specifically, analyses have shown that (1) reforestation efforts at some reclaimed surface coal mine sites needed improvement; (2) surface coal mine sites have contaminated streams and harmed aquatic organisms; (3) valley fills may affect water flow; and (4) mine operators have not always returned mine sites to their approximate original contour when required to do so under SMCRA. Federal and state agencies have taken some actions to respond to these findings, including adopting new guidelines for reforestation practices. Several federal laws may be available under limited circumstances to address long-term environmental problems at former mine sites. These laws include SMCRA; the Clean Water Act; the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), also commonly known as Superfund; and the Resource Conservation and Recovery Act. For example, the Clean Water Act authorizes EPA or a state to require a permit if discharges are detected from a former surface mine, and CERCLA may authorize EPA to respond to certain pollution from former surface mines. According to the agencies, they have rarely or never needed to use these authorities. We provided a draft of this report to OSM, the Corps, EPA, Kentucky, Virginia, and West Virginia for review and comment. The federal agencies generally agreed with the report, while the states were critical of what they perceived to be the message of the report.
GAO-10-206, Surface Coal Mining: Financial Assurances for, and Long-Term Oversight of, Mines with Valley Fills in Four Appalachian States
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
January 2010:
Surface Coal Mining:
Financial Assurances for, and Long-Term Oversight of, Mines with
Valley Fills in Four Appalachian States:
GAO-10-206:
GAO Highlights:
Highlights of GAO-10-206, a report to congressional requesters.
Why GAO Did This Study:
Surface mining for coal in Appalachia has generated opposition because
rock and dirt from mountaintops is often removed and placed in nearby
valleys and streams. The Office of Surface Mining Reclamation and
Enforcement (OSM) in the Department of the Interior and states with
approved programs regulate these mines under the Surface Mining
Control and Reclamation Act (SMCRA). The Army Corps of Engineers
(Corps), the Environmental Protection Agency (EPA), and states also
regulate different aspects of coal mining, including the filling of
valley streams, under the Clean Water Act. Under SMCRA, mine operators
must provide financial assurances sufficient to allow mines to be
reclaimed. Under the Clean Water Act, the Corps may require financial
assurances that the impact of mines on streams can be mitigated. GAO
was asked to examine (1) the approaches OSM, the states, and the Corps
have taken to obtain financial assurances for surface coal mines with
valley fills; (2) federal and state agencies‘ monitoring of these
mines after reclamation and mitigation are complete; and (3) the
federal laws agencies may use, and have used, to address latent
environmental problems. GAO gathered information from state and
federal agencies in Kentucky, Tennessee, Virginia, and West Virginia
about their financial assurances practices, long-term monitoring, and
use of federal laws to address environmental impacts at former mine
sites. This report makes no recommendations.
What GAO Found:
OSM, the states, and the Corps use different approaches to financial
assurances for reclamation and mitigation. Under SMCRA, states have
flexibility to require mine operators to provide a bond for the full
cost of reclamation or participate in an alternative bonding system
such as a bond pool, which may combine bonds, taxes on coal
production, and other sources of funding. West Virginia relies
exclusively on an alternative bonding system, while Tennessee
exclusively uses a full-cost bonding system. The other two states,
Virginia and Kentucky, rely on a combination of full-cost bonds and an
alternative bonding system. Under the Clean Water Act, the Corps has
discretion to require that mine operators provide assurances that
funds will be available to mitigate the effects of burying streams
with valley fills but it has not done so in the four states we
reviewed. Instead, the Corps has relied on other mechanisms to ensure
that mitigation will be completed satisfactorily, according to Corps
officials. For example, some Corps officials said they rely on SMCRA
financial assurances to ensure required mitigation.
OSM, EPA, the Corps, and the four states‘ mining and environmental
agencies are not required to monitor former mountaintop mines with
valley fills for long-term environmental degradation after reclamation
and mitigation are complete and financial assurances have been
released. However, several of them, along with the U.S. Geological
Survey, have conducted or funded analyses of conditions near reclaimed
mine sites with valley fills that have shown environmental impacts.
Specifically, analyses have shown that (1) reforestation efforts at
some reclaimed surface coal mine sites needed improvement; (2) surface
coal mine sites have contaminated streams and harmed aquatic
organisms; (3) valley fills may affect water flow; and (4) mine
operators have not always returned mine sites to their approximate
original contour when required to do so under SMCRA. Federal and state
agencies have taken some actions to respond to these findings,
including adopting new guidelines for reforestation practices.
Several federal laws may be available under limited circumstances to
address long-term environmental problems at former mine sites. These
laws include SMCRA; the Clean Water Act; the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA), also
commonly known as Superfund; and the Resource Conservation and
Recovery Act. For example, the Clean Water Act authorizes EPA or a
state to require a permit if discharges are detected from a former
surface mine, and CERCLA may authorize EPA to respond to certain
pollution from former surface mines. According to the agencies, they
have rarely or never needed to use these authorities.
We provided a draft of this report to OSM, the Corps, EPA, Kentucky,
Virginia, and West Virginia for review and comment. The federal
agencies generally agreed with the report, while the states were
critical of what they perceived to be the message of the report.
View [hyperlink, http://www.gao.gov/products/GAO-10-206] or key
components. For more information, contact Anu Mittal at (202) 512-3841
or mittala@gao.gov.
[End of section]
Contents:
Letter:
Background:
Mining Agencies and the Corps Use Different Approaches to Financial
Assurances for Reclamation and Mitigation:
Federal and State Agencies Are Not Required to Monitor Former Mine
Sites but Have Conducted Some Analyses of Environmental Impacts:
Federal Laws May Be Available Under Limited Circumstances to Address
Long-term Environmental Problems Associated with Valley Fills but Have
Rarely or Never Been Needed or Used, According to Agency Officials:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Selected Surface Mining Control and Reclamation Act
Reclamation Standards:
Appendix III: Comments from the Department of the Interior:
Appendix IV: Comments from the Department of Defense:
Appendix V: Comments from the Environmental Protection Agency:
Appendix VI: Comments from the Kentucky Department for Natural
Resources:
Appendix VII: Comments from the Virginia Department of Mines, Minerals
and Energy:
Appendix VIII: Comments from the West Virginia Department of
Environmental Protection:
Appendix IX: GAO Contact and Staff Acknowledgments:
Figure:
Figure 1: A Valley Fill in West Virginia:
Abbreviations:
AOC: Approximate original contour:
Corps: Army Corps of Engineers:
CERCLA: Comprehensive Environmental Response, Compensation, and
Liability Act:
EPA: Environmental Protection Agency:
OSM: Office of Surface Mining Reclamation and Enforcement:
PEIS: Programmatic environmental impact statement:
RCRA: Resource Conservation and Recovery Act:
SMCRA: Surface Mining Control and Reclamation Act:
TMDL: Total maximum daily load:
[End of section]
United States Government Accountability Office: Washington, DC 20548:
January 14, 2010:
The Honorable Jeff Bingaman:
Chairman:
Committee on Energy and Natural Resources:
United States Senate:
The Honorable Lamar Alexander:
Ranking Member:
Subcommittee on Children's Health:
Committee on Environment and Public Works:
United States Senate:
Surface mining for coal in the mountainous areas of Appalachia--a
process often referred to as mountaintop mining--has generated
opposition in recent years because of its impact on landscapes,
streams, ecosystems, and communities. In mountaintop mining, before
the underlying coal can be extracted, the land is cleared of forests
and other vegetation. Explosives or other techniques are then used to
break up the overlying solid rock, creating dislodged earth, rock, and
other materials known as "spoil." Some or most of the spoil is placed
back on the mined-out area to return it to its approximate original
contour. However, excess spoil that cannot be safely placed back is
often placed as "fill" in adjacent valleys or hollows.[Footnote 1] In
some cases, this excess fill buries the headwaters of streams. (See
figure 1 for an example of a valley fill.)
Figure 1: A Valley Fill in West Virginia:
[Refer to PDF for image: photograph]
Source: GAO.
Note: The triangular area in the middle of the photo is a valley fill.
The fill material is dirt and rock that have been placed into the
valley. The visible terraces help control the flow of water across the
fill. Fill material may bury the headwaters of a small stream in a
valley such as this one.
[End of figure]
Mountaintop coal mines that produce valley fills have affected the
land and streams in the central Appalachian states of Kentucky,
Tennessee, Virginia, and West Virginia. According to federal and state
estimates, from 1994 through 2003, surface mining had disturbed about
400,000 mostly forested acres in these states and generated thousands
of valley fills.[Footnote 2] Furthermore, these valley fills buried
724 miles of headwater streams in the four states from 1985 through
2001. Another 367 miles of streams in the Appalachian region are
expected to be affected by surface mines that were approved for
permits from October 2001 through June 2005.[Footnote 3] In December
2009, we reported on characteristics of mining in the mountainous
areas of Kentucky and West Virginia, including the number of valley
fills approved in those states since 2000.[Footnote 4] Specifically,
we reported that Kentucky and West Virginia collectively approved
nearly 2,000 fills to store at least 4.9 billion cubic yards of excess
spoil in nearby valleys.[Footnote 5]
Surface coal mining is regulated by the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). SMCRA created the Office of Surface
Mining Reclamation and Enforcement (OSM) in the Department of the
Interior to implement and enforce the act. SMCRA allows an individual
state to develop its own program to implement the act if the Secretary
of the Interior finds that the state program is in accordance with
federal law.[Footnote 6] A state with an approved program is said to
have "primacy" for that program. OSM has approved state programs for
Kentucky, Virginia, and West Virginia, and annually evaluates how well
the state programs are administered. OSM manages the mining program in
Tennessee.[Footnote 7] One goal of SMCRA's, among others, is to assure
that mines are reclaimed as contemporaneously as possible with surface
coal mining operations and to protect the environment from problems--
such as water quality degradation--that may result from mining. SMCRA
requires the operator to provide financial assurance, in the form of a
performance bond, in an amount sufficient to allow the relevant
regulatory authority--either OSM or the state mining agency--to
reclaim the mine site if the operator does not.[Footnote 8]
Mountaintop coal mine operators may also be required to obtain permits
under the Clean Water Act.[Footnote 9] The Department of Defense's
Army Corps of Engineers (Corps), the Environmental Protection Agency
(EPA), and state agencies may all have a role in approving or
overseeing permits issued under the Clean Water Act for certain
activities associated with surface coal mine operations. For example,
the Corps has the authority to issue a permit to a mine operator who
seeks to discharge spoil into a stream when constructing a valley
fill, and it may require the operator to compensate for the loss of
the stream through mitigation--actions such as creating a new stream
or enhancing a degraded stream.[Footnote 10] The Corps also has the
authority to require an operator to provide financial assurances to
ensure a high level of confidence that the compensatory mitigation
project will be successfully completed.
In this context, you asked us to examine (1) the approaches OSM, the
states, and the Corps have taken to obtain financial assurances for
surface coal mines with valley fills; (2) the extent to which federal
and state agencies monitor and evaluate these mines after reclamation
and mitigation are complete; and (3) the federal laws agencies may
use, and have used, to address any latent environmental problems
associated with these mines that may occur after SMCRA or Clean Water
Act financial assurances have expired.
This report focuses on the four Appalachian states of Kentucky,
Tennessee, Virginia, and West Virginia because these areas accounted
for nearly 83 percent of the surface coal production in Appalachia in
2008 and more than 98 percent of recently-approved valley fills across
the country.[Footnote 11]
To address our objectives, we reviewed relevant federal and state
laws, regulations, and policy guidance on surface coal mining,
financial assurances, reclamation, and mitigation. We also spoke with
headquarters and field officials from OSM, the Corps, EPA, and state
mining agencies regarding financial assurance practices in Kentucky,
Tennessee, Virginia, and West Virginia. Furthermore, we interviewed
federal and state agency officials to obtain information on the long-
term monitoring and evaluation their agencies have done related to
reclaimed and mitigated mine sites. We also analyzed the applicability
of selected environmental laws--in addition to SMCRA and the Clean
Water Act--to address long-term environmental problems that might be
caused by mine sites with valley fills, and interviewed agency
officials to learn if such laws had been used in that context. A more
detailed description of our scope and methodology can be found in
appendix I.
We conducted this engagement from October 2008 to January 2010 in
accordance with all sections of GAO's Quality Assurance Framework that
are relevant to our objectives. The framework requires that we plan
and perform the engagement to obtain sufficient and appropriate
evidence to meet our stated objectives and to discuss any limitations
in our work. We believe that the information and data obtained, and
the analysis conducted, provide a reasonable basis for any findings
and conclusions in this report.
Background:
The central Appalachian coal region plays a large part in supplying
the country with its energy needs. Specifically, in 2008, West
Virginia and Kentucky were the second-and third-largest coal-producing
states in the nation--behind Wyoming--and accounted for more than 76
percent of the coal produced from surface mines in Appalachia. West
Virginia produced about 69 million tons of coal from surface mines,
while Kentucky produced about 51 million tons. Virginia produced close
to 9 million tons and Tennessee less than 2 million tons from surface
mines in 2008, respectively.
SMCRA Regulates Surface Coal Mining Operations and Requires Financial
Assurances:
SMCRA requires mine operators to obtain a permit before starting to
mine.[Footnote 12] The permit process requires operators to submit
detailed plans describing the extent of proposed mining operations,
how reclamation on the mine site will be achieved, and the estimated
per-acre cost of reclamation. In reclaiming the mine site, operators
must comply with regulatory standards that govern, among other things,
how the reclaimed area is regraded, replanting of the site, and the
quality of water flowing from the site.[Footnote 13] (See app. II for
selected details about these key reclamation standards.) In general,
an operator must reclaim the land to a use it was capable of
supporting before mining or an alternative post-mining land use that
the regulatory authority deems higher or better than the pre-mining
land use. Additionally, although the operator is generally required to
redeposit spoil on the mine site so that it approximates the original
contour of the site, the operator may in certain circumstances receive
a variance to this general requirement and leave the land flat or
gently rolling. In addition, a mountaintop removal operation is one
that, by definition, will not restore the area to its approximate
original contour.[Footnote 14] However, only specific types of post-
mining land uses--including industrial, commercial, agricultural,
residential, or public uses--are allowed for mountaintop removal
operations.[Footnote 15]
SMCRA requires the operator to submit a bond in an amount sufficient
to ensure that adequate funds will be available for the regulatory
authority--either OSM or a state with primacy--to complete the
reclamation if the operator does not do so.[Footnote 16] The bond
provisions of SMCRA apply generally to all types of coal mines and do
not include any requirements that are specific to mines with valley
fills. However, the bond amount for a particular site cannot be less
than $10,000 and must also be sufficient to ensure the completion of
the reclamation plan for that particular site if the work had to be
completed by the regulatory authority in the event of forfeiture. In
this report, we refer to a bond that is equal to the expected cost to
reclaim the entire site as a "full-cost bond." OSM has prepared
guidance for mine operators on how to calculate their bond amounts to
capture the likely costs of reclamation. Bond amounts can be adjusted
as the size of the permit area or the projected cost of reclamation
changes. When all reclamation standards identified in SMCRA and the
operator's permit--including compliance with water quality standards--
have been met, the bond is completely "released" to the operator.
[Footnote 17]
The OSM regulations implementing SMCRA recognize three major types of
bonds: corporate surety bonds, collateral bonds, and self-bonds.
* A surety bond is a bond in which a surety company guarantees the
performance of the permittee's obligation to reclaim the mine site. If
the mining company does not reclaim the site, the surety company must
pay the bond amount to the regulatory authority or the regulatory
authority may allow the surety company to perform the reclamation
instead of paying the bond amount.
* Collateral bonds include cash; certificates of deposit; liens on
real estate; letters of credit; federal, state, or municipal bonds;
and investment-grade securities deposited directly with the regulatory
authority.
* A self-bond is a bond in which the permittee guarantees its own
performance with or without separate surety. Self-bonds are available
only to operators who meet certain financial conditions. To remain
qualified for self-bonding, operators must, among other requirements,
maintain a net worth of at least $10 million, possess fixed assets in
the United States of at least $20 million, and have an "A" or higher
bond rating.
SMCRA also authorizes states to enact an OSM-approved alternative to a
full-cost bonding system as long the alternative achieves the same
objectives. One kind of alternative bonding system is known as a "bond
pool." Under this type of system, the operator may post a bond--e.g.,
a surety bond or collateral bond--for an amount determined by
multiplying the number of acres in the permit area by a per-acre
assessment. The per-acre assessment may vary depending on the site-
specific characteristics of the planned mining operation and the
operator's history of compliance with state regulations. However, the
per-acre bond amount may be less than the estimated cost of
reclamation. To supplement the per-acre bond, the operator generally
must pay a fee for each ton of mined coal and may also be required to
pay other types of fees. Funds are placed within a pool and can be
used to reclaim sites that participants in the alternative bonding
system do not reclaim.[Footnote 18] Under OSM regulations, all
alternative bonding systems must provide a substantial economic
incentive for the operator to comply with reclamation requirements and
must ensure that the regulatory authority has adequate resources to
complete the reclamation plan for any sites that may be in default at
any time.
Once bonds have been completely released to a mine operator, the
relevant regulatory authority may terminate its jurisdiction under
SMCRA.[Footnote 19] However, the regulatory authority may also revoke
an operator's permit if the operator fails to comply with the permit's
provisions. Under those circumstances, the operator may forfeit the
bond to the regulatory authority. The regulatory authority then
becomes responsible for reclaiming the land to the reclamation
standards found in the operator's permit. If the amount forfeited is
insufficient to pay for the full cost of reclamation, the operator
remains liable for remaining costs. The regulatory authority may
complete reclamation and may sue the operator to recover additional
expenses. Failure to complete reclamation has other serious
consequences for mine operators--SMCRA prohibits applicants from
obtaining future SMCRA permits if they have unabated violations of law
or regulations applicable to surface mining; state regulations
specifically note that bond forfeitures based on violations that are
not subsequently corrected disqualify operators from obtaining future
permits.
Clean Water Act Provisions Also Regulate Aspects of Surface Coal
Mining Operations:
The objective of the Clean Water Act is to restore and maintain the
chemical, physical, and biological integrity of the nation's waters.
Section 404 of the act allows the Corps to issue permits for the
discharge of material, including fill material, into waters of the
United States at specified disposal sites.[Footnote 20] Such permits
are needed for the construction of a valley fill.[Footnote 21] Section
404(c) authorizes EPA to deny or restrict the use of any disposal site
where it finds that the discharge will have unacceptable adverse
effects. Mining companies may be able to construct valley fills under
one of two types of permits issued by the Corps. First, the mining
company may be authorized to construct a valley fill under the Corps'
"nationwide permit" for surface coal mining.[Footnote 22] A nationwide
permit provides coverage for substantially similar activities that are
expected to cause only minimal adverse environmental effects on an
individual and cumulative basis. Second, the Corps may issue an
"individual permit." Individual permits are issued on a case-by-case
basis for activities that are expected to have more than a minimal
impact. Before issuing an individual permit, the Corps must evaluate
the operator's proposed activity for several factors, including, but
not limited to, its effects on environmental values--such as fish,
wildlife, and water quality--and safety issues, as well as any
proposed mitigation for the project.
Under guidelines prepared by the EPA Administrator and the Secretary
of the Army acting through the Chief of Engineers, pursuant to section
404, the Corps may issue permits to discharge fill material, if, at a
minimum, compliance with the guidelines is demonstrated. One aspect of
compliance is that the discharge does not cause or contribute to
"significant degradation" of waters of the United States.[Footnote 23]
Under these guidelines, an operator would not be permitted to
discharge fill materials into waters of the United States if there is
a practicable alternative to such a discharge and would be required to
minimize discharges that cannot be avoided. If such discharges are
unavoidable, the Corps can require as a condition of the permit that
the operator compensate for the loss or degradation of regulated
waters. In the case of valley fills that bury streams, such
compensatory mitigation could involve (1) creating a new stream, (2)
enhancing a degraded stream, or (3) preserving an existing stream. The
mitigation work may be done within the permitted area (on-site) or
outside of the permitted area (off-site). Mitigation may be performed
by the mine operator or a third party, such as a public or nonprofit
entity, under agreement with the Corps.
The Corps' Clean Water Act implementing regulations and related
policies authorize the Corps' district engineers to require financial
assurances when approving section 404 permits in order to ensure a
high level of confidence that compensatory mitigation will be
successfully completed.[Footnote 24] The Corps allows financial
assurances to be in the form of bonds, escrow accounts, casualty
insurance, letters of credit, legislative appropriations for
government sponsored projects, or other appropriate instruments,
subject to the approval of the district engineer. If assurances are
required, district engineers are to determine the amount based on
factors such as the size and complexity of the compensatory mitigation
project, the likelihood of success, the past performance of the
project sponsor, and any other factors they deem appropriate. Also,
Corps district engineers must release financial assurances once they
determine that the operator has demonstrated that a compensatory
mitigation project has successfully met its performance standards.
Typically, the monitoring period to assess the success of a
compensatory mitigation project is 5 years but this period may be
extended for projects that take longer, such as stream restoration.
The Corps' authority to require financial assurances to ensure
compensatory mitigation differs from the authority that mining
agencies have under SMCRA to require bonds for mine reclamation.
* While SMCRA explicitly calls for mining agencies to require all
operators to provide bonds, the Corps' Clean Water Act regulations
authorize district engineers to decide whether financial assurances
are necessary on a permit-by-permit basis. The district engineer may
determine that financial assurances are not necessary for a specific
project if an alternate mechanism is available to ensure a high level
of confidence that the compensatory mitigation will be provided and
maintained.
* While SMCRA authorizes mining agencies to directly hold and use
financial assurances to ensure the required reclamation is completed
if the operator defaults on its reclamation obligations, the Corps
does not have statutory authority under the Clean Water Act to do so.
[Footnote 25] In light of that limitation, the Corps' regulations and
policies stipulate that if a district engineer does choose to require
financial assurances, those assurances must be payable to a third
party--such as a governmental or nongovernmental environmental
management organization--that will agree to hold the funds and
complete the mitigation in accordance with the Corps' instructions if
the operator defaults on its obligations.
In addition to needing a Clean Water Act section 404 permit to
construct a valley fill, mine operators need to obtain a National
Pollutant Discharge Elimination System, or section 402, permit if they
discharge pollutants from industrial point sources.[Footnote 26] Point
sources are discrete conveyances such as pipes.[Footnote 27] Section
402 permits, generally administered by the states under EPA-approved
programs, include limits on the amount of pollutants--such as
suspended solids--that mines can directly discharge into bodies of
water.[Footnote 28] Surface coal mines contain sediment ponds and
drainage ditches that collect runoff from all disturbed areas,
including water from the base or perimeter of valley fills or other
locations that may then flow into a stream. These flows may need to
comply with point source pollutant limitations specified in a section
402 permit. Section 402 permits also require that mine operators
submit periodic discharge monitoring reports to the regulatory
authority, which is typically a state agency.[Footnote 29] A mine
operator cannot obtain the release of its SMCRA bond if the land is
contributing suspended solids and other pollutants, in excess of
applicable state effluent limitations, to stream flow or runoff
outside the SMCRA permit approved area.
Under SMCRA and the Clean Water Act, Agencies Have Approved Permits
for Mines with Thousands of Valley Fills in Central Appalachia:
The regulatory authorities in the four states we reviewed have
collectively authorized thousands of valley fills since the enactment
of SMCRA in 1977. Although the total number of valley fills approved
since 1977 is uncertain, data we collected from OSM, Kentucky,
Virginia, and West Virginia show that at least 2,343 valley fills have
been authorized since January 2000.[Footnote 30] Specifically,
* Kentucky authorized 1,488 valley fills through July 30, 2008;
* Tennessee authorized 17 valley fills through December 31, 2008;
* Virginia authorized 327 valley fills through August 17, 2009; and:
* West Virginia authorized 511 valley fills through July 30, 2008.
Notably, approval of a valley fill does not necessarily mean that it
will be constructed. For example, according to Virginia state
officials, of the 327 valley fills approved between January 2000 and
August 2009, 97 were completed, 103 were under construction, 90 were
not started, and 37 were "not needed and/or not constructed."
While OSM and state mining agencies have been approving SMCRA permits
with valley fills since the late 1970s, the Corps did not begin to
consistently require section 404 permits for valley fills until the
spring of 2002, when the Corps and EPA jointly issued regulations
revising the definition of fill material. Prior to this revision, the
Corps interpreted excess spoil to be a "waste" regulated under section
402 of the Clean Water Act rather than a fill material regulated under
section 404.
The Corps could not readily provide us with data on the total number
of section 404 permits it has issued for valley fills, the number of
operators it has required to complete mitigation for valley fills, the
types of mitigation called for, or the status of mitigation projects.
The Corps did provide us electronic data showing that in the four
states we reviewed it approved 378 Nationwide Permit 21 permits from
March 2002 through December 2008 and 171 individual permits for
surface coal mining operations from March 2002 through September 2009.
[Footnote 31] However, its database does not contain information on
how many of those permits were for valley fills.[Footnote 32] In
addition, its electronic database indicated that only 57 of the
nationwide permits required compensatory mitigation projects; Corps
officials believed that number to be understated because the database
is not complete. Although not captured in its electronic database, the
information on valley fills and required compensatory mitigation
projects is more completely documented in the Corps' paper permit
files, according to agency officials.
Mining Agencies and the Corps Use Different Approaches to Financial
Assurances for Reclamation and Mitigation:
The four states in our review use different approaches to fulfill
SMCRA's requirement that mine operators provide adequate financial
assurances for completing reclamation. These states primarily vary in
whether they require mine operators to fulfill their financial
assurance obligation strictly through a full-cost bond or whether they
allow operators to use alternative bonding systems that combine bonds,
taxes on coal production, and other sources of funding. The Corps has
not used its discretionary authority to require surface coal mine
operators in the four states to provide financial assurances for
mitigation work required as part of their section 404 permit,
according to Corps officials. Furthermore, Corps officials said the
Corps has relied on other permit conditions for assurance that
mitigation will be satisfactorily completed.
State Mining Agencies' Approaches to Financial Assurances Vary:
The three states with primacy that we examined--West Virginia,
Virginia, and Kentucky--have financial assurance programs that differ
from each other and from the federal program that OSM administers in
Tennessee. Each of the three states has received approval from OSM to
use an alternative bonding system, although they do so to varying
degrees.
* West Virginia requires that all operators participate in a bond pool.
* Virginia relies primarily on a bond pool but also uses a full-cost
bonding system.
* Kentucky relies primarily on a full-cost bonding system but also
uses a bond pool.
* Tennessee uses a full-cost bonding system.
West Virginia:
All mine operators must participate in the state's alternative bond
system. The state has limited the site-specific per-acre bond to
between $1,000 and $5,000.[Footnote 33] The state also collects a tax
on each ton of coal produced. The current tax is 14.4 cents per ton of
clean coal produced. The state deposits those funds into a Special
Reclamation Fund and a Special Reclamation Water Trust Fund.[Footnote
34] As of June 2008, the combined balance for the two funds was $46.9
million. The state can use these funds to reclaim lands that were
permitted and abandoned after August 3, 1977, for which there is not
enough bond amount to cover reclamation.
The West Virginia legislature created an advisory council in 2001 to
ensure the effective, efficient, and financially stable operation of
the Special Reclamation Fund. The advisory council is required to
report to the legislature every year on the financial condition of the
fund. Furthermore, the West Virginia Department of Environmental
Protection is required to conduct formal actuarial studies every 2
years and conduct informal reviews annually on the Special Reclamation
Fund and Special Reclamation Water Trust Fund. In January 2009,
recognizing that the tax rate was scheduled to drop from 14.4 cents
per ton to 7 cents later that year, the advisory council recommended
that the state legislature adjust the tax rate to 13 cents per ton for
at least a 5-year period or provide for additional funding needed to
ensure solvency. While the council concluded that the fund was solvent
as of January 2009, it stated that, based upon projections in the 2008
actuarial study and with only the known revenue sources at that time,
the fund balance would be negative by 2015. In April 2009, the state
legislature set the tax rate at 14.4 cents per ton, effective July 1,
2009; called for a review of the tax every 2 years to determine
whether it should be continued; and stipulated that the tax could not
be reduced until the funds have sufficient monies to carry out
required reclamation.
Virginia:
Virginia offers the option of a bond pool to operators who meet
eligibility criteria; other operators must post a full-cost bond. As
of October 2009, the majority of active surface mine permits were
covered by the bond pool. According to officials from the Virginia
Department of Mines, Minerals and Energy, as of October 13, 2009,
there were 148 active surface mine permits in the bond pool and 18
surface mines covered by full-cost bonding. The total bonded amount in
the bond pool was about $143 million, while the total for full-cost
bonding was about $14 million. An operator must be able to demonstrate
at least 3 consecutive years of compliance under Virginia's Coal
Surface Mining and Coal Reclamation Act or any other comparable state
or federal act to participate in the bond pool. Once in the pool, an
operator cannot opt out. Operators in the pool must pay an entrance
fee of $1,000 when the total balance of the pool is determined to be
greater than $2 million; the entrance fee increases to $5,000 if the
total fund balance falls below $1.75 million, and remains at $5,000
until the balance again exceeds $2 million. A fee of $1,000 is
required of all operators in the pool when the permit is
renewed.[Footnote 35] Participants in the bond pool also furnish a
bond of $1,500 or $3,000 per acre, depending on when the permit was
issued.[Footnote 36] Regardless of acreage, bonds for operations
entering the fund on or after July 1, 1991, must be at least $100,000.
If forfeiture occurs, the state may, after using the available bond
monies, use the bond pool funds as necessary to complete reclamation
liabilities for the permit area.
To oversee the bond pool's general operations, the Virginia
legislature created a reclamation fund advisory board that meets at
least twice each year to make recommendations to the director of the
Department of Mines, Minerals and Energy.[Footnote 37] The advisory
board must also report to the director and to the governor on the
pool's financial status and recommend to the director any new or
amended regulations for administering or operating the pool. According
to the department, the advisory board concluded in August 2009 that
the fund was solvent.
Kentucky:
Kentucky offers mine operators who meet eligibility criteria the
option of participating in a bond pool, but the vast majority of
operators provide full-cost bonds. According to the most recently
available state data, as of May 2007, only 65 permits were covered by
the bond pool. As of June 30, 2009, OSM data showed that there were a
total of 893 permits for surface mining in Kentucky. To participate in
the bond pool, state regulations require that an operator have an
acceptable or better history of compliance with the state's mining
regulations, among other criteria. The cost of membership ranges from
$1,000 to $2,500 and depends on a member's performance record. In
addition, participants must obtain a bond that ranges from $500 to
$2,000 per acre, depending on the performance rating of the member.
Finally, members pay a 5 cent per-ton fee for surface-mined coal. When
the Kentucky Bond Pool Fund reaches $17.4 million, the assessment of
tonnage fees is to be suspended for all members who have made 36 or
more monthly payments to the fund. If the fund level drops to $12.3
million, the tonnage fee requirement will be reinstated for all
members. The funds in the pool are available only for reclamation
costs at sites operated by members of the pool. Bond pool members' per-
acre bonds are fully released at the completion of the initial phase
of reclamation. After the initial phase, a permit is covered only by
the bond pool.
In Kentucky, the law requires a review of the actuarial soundness of
the bond pool every 3 years. The last Kentucky actuarial study, which
evaluated the pool as of May 31, 2007, concluded that the fund, with a
balance of $19.7 million, was solvent and that it had been building
its assets at a faster pace than the increase in its outstanding
liabilities. As an indication of the pool's financial soundness, the
study noted, the pool could survive the failure of its two largest
members. The study concluded that the fund's soundness had improved
because its liability was more evenly spread among its members. The
study recommended that the state continue the 5 cent per ton fee for
surface coal mines and limit the maximum amount of bond funds held for
any member operator to $6 million, or about 30 percent of the total
bond pool. According to the state's bond pool administrator, the pool
has continued the 5 cent per ton fee as recommended. He also said
there has never been a member of the bond pool to have bonds in excess
of $4 to $5 million because the program primarily offers bonding
assistance to small coal operators.
Tennessee:
Tennessee is the only one of the four states we reviewed to use a full-
cost bond system exclusively. As of September 30, 2008, the state had
15 active surface coal mines. OSM held bonds totaling about $17.8
million for those 15 mines. In 2007 OSM revised its regulations for
Tennessee to address concerns that full-cost bonds were not adequate
to handle the problem of post-mining acid-or toxic-mine drainage.
[Footnote 38] Specifically, the new regulations provide a mechanism in
Tennessee to allow operators to establish a trust fund or annuity to
cover the cost of postmining pollution discharges in lieu of a
performance bond.[Footnote 39] OSM's policy in Tennessee is to assume
that post-mining pollution discharges will need to be treated for at
least 75 years, barring evidence to the contrary. When OSM established
the trust fund and annuity options in Tennessee, it stated that a
system that provides an income stream may be better suited than full-
cost bonds to ensure the long-term treatment of postmining pollution
discharges. According to OSM, surety bonds, the most common form of a
full-cost bond, are especially ill-suited for this purpose because
surety companies normally do not underwrite a bond when there is no
expectation of release of liability. The addition of this authority in
Tennessee builds upon the experience of Pennsylvania, which had
already established a process for accepting trust funds or annuities
to pay for postmining discharges.
OSM Oversees State Bonding Programs and Has Made Bonding a National
Priority for the 2010 Evaluation Year:
In October 2009, the acting director of OSM announced that OSM was
making bonding a national priority of its 2010 annual evaluation of
state mining programs.[Footnote 40] Specifically, the acting director
instructed regional and field office directors to evaluate how states
are complying with their own regulations for determining required bond
amounts. The instructions further stated that the evaluations should
assess whether (1) the states' methods of determining bond amounts
ensure that adequate funds are available to the state in the event
that the operator forfeits its bond, (2) the bond calculation methods
include a mechanism to adjust bond amounts or provide other financial
assurance to cover the cost of unanticipated long-term postmining
pollutional discharges that develop after permit approval, and (3) the
state re-evaluates the bond amount each time a permit is revised or
renewed. According to an OSM official in the Appalachian Regional
Office, OSM chose bonding as a national priority after surveying
managers and staff for their oversight priorities. OSM's November 2009
work plan calls for OSM to examine a sample of forfeited sites to
determine whether adequate bonds were posted and whether the sites
were reclaimed as proposed in their reclamation plans. For those sites
covered in part or in total by a full-cost bond, OSM plans to use its
directive on bond calculation as a basis for evaluating the adequacy
of bonds. OSM plans to finalize a report on its findings by September
1, 2010.
In addition, OSM announced in November 2009 that it was considering
rulemaking to address concerns related to bonding programs. One of
OSM's concerns is that mine operators do not always apply for bond
release in a timely manner, particularly for phases II and III. OSM
noted that there is no legal requirement that operators apply for bond
release in a timely manner and identified several options for
improving timeliness. Another concern of OSM was that the data needed
to assess the success of reclamation has not been adequate. To improve
data quality, OSM is considering requiring operators to submit an
annual status report to the regulatory authority with information on
areas that are permitted, bonded, disturbed, backfilled and graded,
newly planted, and that have reached one or more of the phases of bond
release.
While OSM has made bonding an oversight priority for 2010 and is
considering related rulemaking options, it has reported on various
aspects of state bonding programs in prior annual evaluations. For
example, in its 2009 evaluation year report on West Virginia, OSM
reported that it did not appear that the state was meeting
requirements for inspections at bond forfeiture sites. OSM estimated
that the state had completed about 55 percent of the required
inspections at bond forfeiture sites.[Footnote 41] In its 2009 report
on Virginia, OSM reported that it had reviewed a sample of operators
that applied for phase III bond release during the year and found that
on-the-ground reclamation had been successful. In its 2009 report on
Kentucky, OSM provided information on the number of forfeited permits
at which reclamation was complete or underway. OSM has reported on the
states' bonding programs in other evaluations, but it was not within
the scope of our review to assess the effectiveness of those programs.
The Corps Has Not Required Financial Assurances for Valley Fill
Permits in the Four States but Has Relied on Other Mechanisms:
The Corps has not required operators with section 404 permits for
mines with valley fills to provide financial assurances to ensure
mitigation is completed, according to officials in the five district
offices that approve permits in the four states we reviewed. Corps
officials said they have not required financial assurances for the
following reasons:
* The agency does not have statutory authority to directly hold and
use performance bonds to ensure that mitigation is completed.
Officials said that if they did require financial assurances, an
operator would need to identify a third party to hold the assurances
and complete the mitigation if the operator does not. Some Corps
officials said, however, that few third parties with the ability to
conduct stream restoration have been available.
* The mine operators have had sufficient capital to complete required
mitigation or have demonstrated their ability to successfully complete
other mitigation work.
* It is assumed that mine operators will comply with compensatory
mitigation requirements without financial assurances.
* The operators' approved mitigation projects are not yet complete and
therefore the Corps has no evidence that these projects will be
unsuccessful.
Corps officials told us the Corps has relied on mechanisms other than
financial assurances to ensure that mitigation associated with valley
fill permits will be satisfactorily completed. Specifically, one
mechanism may require the operator, under the terms of its permit, to
prepare an adaptive management plan. Such a plan would identify
alternative mitigation actions the operator would take in the event
that elements of the original plan did not succeed. In addition to an
adaptive management plan, the Corps may require a permit to include a
contingency plan that identifies acceptable alternative compensatory
mitigation should the approved mitigation project fail. A contingency
plan could require that the operator purchase mitigation credits from
an in-lieu-fee program if the planned mitigation does not succeed.
[Footnote 42]
Some Corps officials also told us that the SMCRA bond could be used to
cover the mitigation required under section 404, but others disagreed.
According to a Norfolk, Virginia district Corps official, when off-
site mitigation is part of the 404 permit, the Virginia state mining
agency will expand the area covered by the SMCRA bond beyond the mine
area to include land on which the 404 mitigation is to be done. The
Norfolk, Virginia district official stated that this practice is
consistent with the Corps' 2004 mitigation policy for surface mining
operations.[Footnote 43] This policy encourages district engineers to
coordinate with state or OSM staff and the mining operators to
incorporate required SMCRA features--such as drainage ditches and
sediment ponds--into section 404 compensatory mitigation plans. On the
other hand, Corps officials in Huntington, West Virginia, said they
consider the SMCRA bond as a financial assurance only for mitigation
projects done on the surface mine site. In further contrast, a Corps
district official we spoke with in Louisville, Kentucky, does not
consider the SMCRA bond to be an assurance for on-site section 404
mitigation because the goals of reclamation and mitigation are not
always the same. According to Corps headquarters officials, the
district offices have the discretion to decide if SMCRA mitigation
projects qualify as section 404 mitigation. Officials from OSM's
Appalachian region and field offices agreed that on-site section 404
compensatory mitigation can be incorporated as a special condition of
the surface mining reclamation plan in a SMCRA permit.
Federal and State Agencies Are Not Required to Monitor Former Mine
Sites but Have Conducted Some Analyses of Environmental Impacts:
OSM, the states' mining or environmental agencies, EPA, and the Corps
are not required to monitor former mountaintop mines with valley fills
for long-term environmental degradation after reclamation and
mitigation are complete and financial assurances have been released.
While the agencies are not required to collect post-reclamation
monitoring data, several have analyzed conditions near reclaimed mine
sites with valley fills and found that (1) reforestation efforts at
some reclaimed surface coal mine sites needed improvement, (2) some
surface coal mine sites have contaminated streams and harmed aquatic
organisms, (3) a link exists between valley fills and changes to water
flow, and (4) mine operators have not always returned mine sites to
their approximate original contour when required to do so under SMCRA.
Several federal and state agencies have taken some actions to respond
to these findings.
Additional Monitoring after Releasing Financial Assurances Is Not
Required or Needed, According to Many Agency Officials:
Federal and state agencies in the four Appalachian states we reviewed
are not required by SMCRA or the Clean Water Act to monitor mine sites
with valley fills or associated mitigation sites after they have
determined that reclamation and mitigation are complete. Most
officials we interviewed at the federal and state mining and
environmental protection agencies in the four states we reviewed said
post-reclamation or post-mitigation monitoring is not needed, with
officials from several agencies explaining that the laws or their
implementing regulations require adequate monitoring before an agency
can determine that either reclamation or mitigation is complete. For
example, in order to obtain bond release under SMCRA, mine operators
must be able to demonstrate to agency inspectors that revegetation,
water quality, and other standards are being met. Generally, this
period is 5 years after the last reclamation activity. Officials from
EPA and the state departments of environmental protection also told us
that they do not monitor mine sites for water pollution discharges
after they have been reclaimed. In order to achieve bond release,
according to OSM and state officials, the operator typically removes
and reclaims all sediment ponds that are subject to section 402
discharge permits and must demonstrate that discharge limits have not
been exceeded for a year. Therefore, once the bond has been released,
officials would no longer have a reason to monitor the site for
section 402 permit violations. Officials from two Corps districts said
that the Corps' requirement that the operator monitor and report on
mitigation sites for 5 to 10 years before the Corps will determine
that the mitigation is complete is sufficient. In addition, officials
from three Corps district offices told us that because they did not
begin to consistently issue section 404 permits for valley fills until
2002, few mitigation projects have been in place long enough to have
been completed and thus are not available for post-mitigation review.
While the agency officials we spoke with generally said that
additional monitoring is not necessary after reclamation and
mitigation are complete, there were some that said that additional
monitoring is needed to evaluate the long-term effectiveness of those
activities. Specifically, officials from EPA's Office of Water and
region 3 and 4 offices said that they believe monitoring has not been
adequate to document the success of section 404 mitigation projects.
[Footnote 44] Officials from the U.S. Geological Survey Water Science
Center in West Virginia told us that additional long-term monitoring
is needed to collect data on a range of issues, including water
contamination, flooding, and land stability.
Agencies Have Conducted Some Studies, which Show Long-Term Impacts
from Valley Fills, and Taken Some Actions:
Several agencies have conducted or funded studies that show some
evidence of the effect of environmental changes associated with
mountaintop mines with valley fills after reclamation. The majority of
the studies that agencies referred us to were done as part of the 2003
draft multiagency programmatic environmental impact statement (PEIS)
on mountaintop mining and valley fills.[Footnote 45] Among the
concerns raised by these studies were reforestation efforts, effects
of mining on aquatic organisms, relations between valley fills and
floods, and reclamation to the approximate original contour. Several
agencies have taken actions in response to some of these concerns,
such as promoting new reforestation methods.
OSM and State Mining Agency Studies Found that Reforestation Efforts
at Reclaimed Mine Sites Needed Improvement:
OSM and state mining agencies have found that reclamation efforts on
mountaintop mines and valley fill sites could be improved to yield
more successful reforestation. For example, the 2003 draft PEIS noted
that previously forested mountaintop mine sites were more likely to
have been revegetated with grasses than with trees. One PEIS study
compared revegetation at a sample of southern West Virginia
mountaintop removal and valley fill mining sites with adjacent unmined
sites; the revegetation had occurred from 8 to 26 years prior to the
study, and therefore the operators probably had their bonds released.
[Footnote 46] According to the study, poor vegetation development with
time was typical of the reclaimed sites, with significantly lower tree
diversity on the mined sites than in adjacent forests. The study found
that its data and other published studies supported the conclusion
that mining reclamation procedures limit the overall ecological health
and inhibit the desired growth of native tree and shrub species on the
site.[Footnote 47] With regard to the study in the draft PEIS, OSM
officials told us that SMCRA permits do not always call for
reforestation. For example, a mine site might be approved for
reclamation as pasture or commercial development. Therefore, reclaimed
mine sites may not need to become forested to meet SMRCA requirements.
In June 2008, OSM issued a policy directive to promote the
reestablishment of forest land where existing forests had been removed
by surface mining.[Footnote 48] In its directive, and in related
advisory documents, OSM noted that past reclamation and revegetation
efforts had not been fully successful and had led to low rates of tree
survival and growth, forest fragmentation, reduced carbon
sequestration, loss of wildlife habitat and forest products, and
increased potential for floods. To reverse this trend, the directive
encourages, but does not require, the widespread and routine planting
of native, high-value trees that should help restore the uses and
ecosystems provided by forests prior to mining. The directive also
encourages mine operators to avoid compacting the top 4 feet of soil
on reclaimed mine sites in order to promote water infiltration and
tree growth. The OSM directive is part of a broader effort known as
the Appalachian Regional Reforestation Initiative--formed in 2004 by
federal and state agencies, the coal industry, environmental
organizations, and others in the Appalachian region--to promote
improved reforestation techniques on surface-mined lands.[Footnote 49]
Officials from Kentucky, Virginia, and West Virginia told us that the
OSM initiative built upon changes in reforestation policy or
regulation at the state level. According to an OSM Appalachian Region
official, while he believes that the use of these techniques is
increasing, he also said that reliable data showing the acres of mined
land planted using these techniques are not available. According to
this official, OSM is working with participants in the reforestation
initiative on methods for assessing success.
Federal Agencies Have Found That Contaminants from Mine Sites,
Including Reclaimed Sites with Valley Fills, Have Harmed Aquatic
Organisms:
According to the 2003 draft PEIS, approximately 1,200 miles of
headwater streams within the boundaries of mining permits (or 2
percent of the streams in the central Appalachian study area) were
directly affected by mountaintop mining and valley fills. For example,
streams below valley fills were characterized by contaminants
discharged from mine sites as well as less diverse and more pollutant-
tolerant aquatic invertebrates and fish. Furthermore, in some
locations, streams where mountaintop mines and valley fills exist,
concentrations of selenium, a potentially toxic element that
accumulates in aquatic organisms, were found to exceed standards.
In 2008, EPA scientists reported that aquatic life downstream from 27
active and reclaimed mountaintop mines with valley fills showed subtle
to severe effects compared with aquatic life downstream in similar,
but unmined, West Virginia watersheds.[Footnote 50] More specifically,
the authors compared three reclaimed mine sites with three unmined
sites over a period of 6 to 7 years. According to the study, two of
the three reclaimed mine sites showed further degradation of aquatic
organisms over the period while the third showed some improvement, but
in each case the three reclaimed sites were impaired compared with the
unmined sites.
EPA has cited the 2008 study, as well as other analyses, in recent
actions that it has taken on section 404 permits for valley fills. In
September 2009, EPA announced its plan for the "enhanced coordinated
review" of 79 section 404 permit applications for surface mines with
valley fills pending with the Corps.[Footnote 51] In making its
announcement, EPA stated, among other things, that on the basis of the
scientific literature, its field experience, and available project
information, it was concerned that the mitigation proposed may not be
sufficient to replace lost aquatic resources. On the other hand, Corps
officials told us that they believe that the scientific literature EPA
referred to is not complete; specifically, that it lacks adequate site-
specific analysis.
Also in September 2009, EPA asked the Corps to reconsider a section
404 permit that it issued in 2007 for the Spruce No. 1 mine in West
Virginia with planned valley fills that, if built, would fill more
than 8 miles of headwater streams. EPA expressed concerns that the
Corps decision to issue the permit did not reflect studies showing
that impairments from surface coal mining are persistent over time and
cannot be easily mitigated or removed. EPA also raised specific
concerns about the mitigation plan in the issued permit, including the
planned use of drainage ditches--such as might be constructed at the
perimeter of valley fills--as compensatory stream channels. EPA said
that it has consistently objected to the use of these ditches as
compensation for lost headwater stream channels and requested that the
Corps re-evaluate the mitigation plan to ensure that it achieves
functional replacement of lost aquatic resources. On September 30,
2009, the Corps' district engineer in Huntington, West Virginia,
responded to EPA, noting that the decision to issue the permit had
followed extensive coordination with EPA for nearly 10 years
concerning the project's scope, alternatives, and compensatory
mitigation and included the preparation of an Environmental Impact
Statement. Furthermore, the district engineer said that there were no
factors at that time that compelled him to consider suspending,
modifying, or revoking the permit. However, EPA's acting regional
administrator for Region 3 wrote to the Corps on October 16, 2009,
that additional modifications would need to be made if the permit were
to comply with the Clean Water Act and the regulations implementing
the act.
EPA is preparing additional analysis of the impacts of mountaintop
mining sites, including reclaimed sites, on water quality and aquatic
life. EPA's Office of Research and Development plans to release for
public comment a draft assessment in early 2010 that evaluates
restoration and recovery methods that mining companies use to address
the ecological impacts associated with mountaintop mining and valley
fills.[Footnote 52] EPA plans to prepare the assessment with advice
from an expert panel chartered under the Federal Advisory Committee
Act.
Federal Agencies and the State of West Virginia Have Drawn a Link
between Valley Fills and Changes to Water Flow:
Federal and state agencies examining the impact of mountaintop mines
with valley fills have found that in streams downstream from these
sites, low flows are usually increased and storm flows are sometimes
increased. For example, according to the 2003 draft PEIS, streams in
watersheds below valley fills tended to have greater base flows.
[Footnote 53] Streams with fills were generally less likely to
experience increases in peak flow than unmined areas during most
storms. However, they were more likely to experience increases in peak
flow during more intense rainfall events. Consequently, the draft PEIS
concluded that water flows may increase below valley fills, but that
the effects are site-specific. This conclusion was derived, at least
in part, from studies by the U.S. Geological Survey, which compared
changes in water flow in watersheds with valley fills (some of which
had been reclaimed) with watersheds without valley fills.
In addition, the state of West Virginia has examined the extent to
which mining activities may have contributed to flooding associated
with a particular storm event. On July 8, 2001, the southern portion
of West Virginia experienced a major rainstorm that produced
disastrous flooding. This flooding damaged or destroyed hundreds of
homes and many businesses. Most of the affected counties are in the
heart of West Virginia's southern coalfields and have extensive
underground and surface mining activities. Logging is also prevalent
in this region. In response to public concerns, the governor created a
Flood Investigation Advisory Committee and a Flood Analysis Technical
Team to focus specifically on the impacts of the mining and logging
industry on the July 8th flooding.
The team compared two watersheds with extensive mining (and logging)
activities, including valley fills, with a third watershed with no
such activities. In general, according to the team, the contributions
of mining and logging to increased water flow were relatively small
when compared to the total stream flow volumes.[Footnote 54] It
concluded, however, that mining and logging influenced the studied
watersheds by increasing surface water runoff and the resulting stream
flows at various evaluation points. Consequently, the flood analysis
technical team recommended that, among other things, the state revise
its regulations to prohibit any increase in surface water discharge
over pre-mining conditions and modify certain requirements for valley
fill construction. In 2003, the state received OSM's approval to
revise its mining regulations to require that permit applications
contain a storm water runoff analysis and that the worst case during
mining and post-mining evaluations must show no net increase in peak
runoff compared with the pre-mining evaluation.[Footnote 55] According
to the Secretary of the West Virginia Department of Environmental
Protection, the state has also modified its valley fill construction
rules to further ensure no flooding potential in times of short,
intense runoff from flash storms.[Footnote 56] These modifications
include engineering requirements to help ensure the stability of the
valley fill.[Footnote 57]
OSM Has Studied Operators' Reclamation of Mountaintops to Approximate
Original Contour:
Returning spoil material to a mined out area in order to approximate
the original contour and elevation of the mountain helps to reduce the
amount of excess spoil that otherwise might be placed in a valley
fill. As we reported in December 2009, most operators in West Virginia
and Kentucky have not requested a variance from this requirement.
[Footnote 58] However, according to OSM studies in 1999 and 2001 of
West Virginia and Kentucky's implementation of the approximate
original contour standard, some reclaimed sites where the operator was
supposed to return the land to approximate original contour differed
little from sites that had been granted variances.[Footnote 59] OSM
also reported in 1999 that most mountaintop removal projects in
Virginia were reclaimed to a configuration closely resembling the
approximate original contour, even when the state had granted a
variance to the operator. Following those findings, the states issued
new guidance on how to achieve approximate original contour. In 2007
and 2008, OSM reviewed the effectiveness of the states' new contour
policies and procedures; the results of those reviews were not
available as of November 2009. In October 2009, OSM's acting director
instructed the field offices to assess all the states' implementation
of approximate original contour standards starting in 2010.
Federal Laws May Be Available Under Limited Circumstances to Address
Long-term Environmental Problems Associated with Valley Fills but Have
Rarely or Never Been Needed or Used, According to Agency Officials:
Several federal laws may be available, under limited circumstances, to
address environmental problems associated with mountaintop mines with
valley fills after SMCRA or Clean Water Act financial assurances have
expired, but these have rarely been needed or used, according to
federal and state officials. We selected four federal laws for
analysis in this regard: SMCRA; the Clean Water Act; the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA), also
commonly known as Superfund; and the Resource Conservation and
Recovery Act (RCRA).
SMCRA Provides Limited Authority to Address Environmental Problems at
Former Mine Sites after Bond Release:
OSM and state mining agencies can use additional SMCRA provisions
under two limited sets of circumstances to address environmental
problems at former mine sites. First, SMCRA regulations require a
mining agency to reassert jurisdiction over a mine site after a bond
release if it can demonstrate that the release was based on the
operator's fraud, collusion, or misrepresentation of a material fact.
According to OSM, reassertion of jurisdiction could involve reopening
the permit and requiring a new bond. However, OSM and state officials
reported to us that they have rarely needed to use this authority. For
example, OSM told us that it had reasserted jurisdiction on one post-
bond release site in West Virginia that was discharging pollution
after the agency successfully argued in court that the company had
misrepresented material facts when the bond was released.
Second, SMCRA authorizes OSM and approved states to use funds from
OSM's Abandoned Mine Land Fund to reclaim some sites. SMCRA
established the fund to reclaim certain sites mined prior to SMCRA's
passage in 1977. However, amendments to SMCRA have made these funds
available for additional projects. Specifically, OSM and primacy
states can use these funds to reclaim sites for which any bond or
other source of funds is insufficient for reclamation when (1) mining
occurred between the enactment of SMCRA and OSM approval of a state
program or (2) mining occurred between the enactment of SMCRA and its
amendment in 1990 and the mine operator's surety has become insolvent.
[Footnote 60] Moreover, these funds must be used to rectify situations
posing extreme danger or adverse effects to public health and safety
before they are used to restore environmental resources. Funds for
carrying out these purposes are generated by a tax on coal production
and may also be generated by penalties assessed for violations of
SMCRA.[Footnote 61] OSM officials told us that each year a small
amount of civil penalty money is available for any state that requests
it, on a competitive basis for site reclamation and that the agency
has used these funds in the past for as many as four inadequately
reclaimed mine sites each year.
The Clean Water Act Authorizes EPA or State Water Quality Regulators
to Require a Permit for Discharges from Former Surface Mines:
Two provisions of the Clean Water Act authorize EPA or state water
quality regulators to address or monitor water quality issues
associated with former mine sites. First, the act authorizes EPA or
EPA-authorized states to regulate discharges of pollutants from point
sources by issuing and enforcing National Pollutant Discharge
Elimination System section 402 permits that include limits on
discharges of specific pollutants. According to EPA officials, a point
source at a mining site could be, for example, a ditch draining a
sediment pond at the base of a valley fill. Mine operators typically
remove such point sources prior to receiving full bond release.
However, in some circumstances, sediment ponds and associated drainage
ditches may be authorized to remain on site if provisions for ongoing
maintenance of the pond are made. If, after bond release, conditions
at the former mine site change so that pollutants are being discharged
from a point source, the party responsible for maintaining the point
source--which could be the former mine operator or the landowner of
the mine site--would have to obtain a section 402 permit and would be
subject to applicable pollutant discharge limitations. EPA officials
emphasized that a point source may remain after bond release and that
the requirement to maintain a permit for any such remaining point
source would be indefinite. However, state officials told us that they
have rarely, if ever, needed to use this Clean Water Act authority to
require a new permit for a point source at a surface coal mine.
[Footnote 62]
Second, the Clean Water Act requires states to identify impaired
waters and to develop "total maximum daily loads" (TMDLs) for impaired
waters.[Footnote 63] States may be able to use information on impaired
waters to indirectly mitigate latent pollution associated with former
surface coal mine sites. Specifically, if the state determines that a
water body is impaired, it must eventually develop, for each pollutant
causing an impairment, a TMDL--the amount of the pollutant that the
water body can receive, taking into account seasonal variations and a
margin of safety, and still meet the water quality standard applicable
to that body of water. To implement a TMDL, states allocate pollutant
loadings among specific sources, such as mines, and incorporate the
loads into the state's water quality management plans and section 402
permits. Thus, if a proposed mine would cause a body of water to
exceed its TMDL for a given pollutant, the state may, among other
things, impose stricter discharge limits in that site's section 402
permit in order to achieve water quality standards. In addition, the
Corps and EPA may use the information on impaired waters in
considering whether a section 404 permit for a valley fill operation
should be issued. For example, in raising concerns regarding the
Corps' permit for the Spruce No. 1 mine in West Virginia in 2007, EPA
cited the existence of a TMDL in the mine's watershed; EPA's decision
as to whether to veto this permit was pending as of October 2009.
The states we reviewed have identified mining as a general cause of
impairment for certain bodies of water, but they have not attributed
such impairments to specific mine sites. For example, West Virginia's
2006 Water Quality Assessment Report identified coal mining as a
probable source of impairments for about 4,066 miles of streams in the
state, but did not identify specific mining permits as a source.
CERCLA May Authorize EPA to Respond to Pollution from Former Mines:
CERCLA, commonly known as Superfund, authorizes, but does not require,
EPA to respond to the release or threatened release of hazardous
substances from a former surface coal mine.[Footnote 64] Whether a
particular release from a former mine constitutes a hazardous
substance must be determined on a case-by-case basis. Some of the
pollutants commonly associated with coal or coal mining, such as
selenium, are considered hazardous substances under CERCLA. CERCLA
allows the government to collect the costs of mitigating or cleaning
up these substances from responsible parties. However, EPA officials
said that the agency has not used CERCLA authority to respond to mine
pollution released from a former surface coal mine site.[Footnote 65]
EPA has noted that coal contains trace amounts of hazardous
substances, but that such amounts as may be released over time from a
former surface mine might not rise to the level that would trigger an
EPA response.[Footnote 66]
EPA is Considering Regulating Coal Combustion Residue at Surface Mines
under RCRA:
As currently implemented, the hazardous waste provisions of RCRA would
not generally be available to address environmental issues at former
surface coal mines because many of the wastes associated with the
extraction, processing, and combustion of coal have been exempted from
the definition of hazardous waste.[Footnote 67] However, concern over
one particular coal by-product, coal combustion residue, may lead to
regulation of the material as a hazardous waste in the future. Coal
combustion residue--the material that is left once coal has been
burned, as in a power plant--is sometimes placed on surface mines to
abate acid mine drainage. According to OSM, the residue may also be
used to enhance soil, seal and encapsulate material, and backfill mine
sites. If coal combustion residue were deemed a hazardous waste,
surface mines receiving such materials might be subjected to RCRA's
hazardous waste provisions and could be forced to address releases of
hazardous wastes.[Footnote 68] Currently, EPA is developing
regulations on managing coal combustion residue, including those
managed in surface impoundments, such as one that failed in Tennessee
in December 2008.[Footnote 69] EPA is considering a number of
approaches for regulating coal combustion residue, including using the
solid waste provisions of RCRA, or a combination of the solid and
hazardous waste provisions of RCRA.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Department of the Interior,
the Department of Defense, and the Environmental Protection Agency for
review and comment. We also provided a draft of this report to the
Kentucky Department for Natural Resources; the Virginia Department of
Mines, Minerals and Energy; and the West Virginia Department of
Environmental Protection. The three federal agencies generally agreed
with our findings, while the three state agencies were critical of
what they perceived to be the message of the report.
The Department of the Interior said that it believed the report is an
informative and fair characterization of the federal and state program
requirements under SMCRA pertaining to financial assurances in the
four states we reviewed. The Department of Defense said that, in
general, it believed the report is informative and provides a good
discussion of the issues involved in financial assurances for surface
coal mining in Appalachia. The Environmental Protection Agency noted
that the report provides a factual presentation of issues associated
with the review and regulation of surface coal mining practices. The
agency also noted that the data presented in this and a December 2009
GAO report provide helpful context for federal and state agencies as
they continue to work together to address both the near-and long-term
consequences of surface coal mining activities on the environment,
water quality, and Appalachian coalfield communities.
The three state agencies' comments were critical of the draft report.
For example, Kentucky commented that it believed the report is overly
broad in its generalized statements, that terms and phrases are used
interchangeably so as to confuse the issues, and that the report is
written in a manner to misrepresent and sensationalize the issues. We
do not agree that the report misrepresents or sensationalizes the
issues, and have reviewed our use of terms--such as mountaintop
mining, mountaintop removal mining, valley fills, and hollow fills--to
ensure that they are used consistently and appropriately throughout
the report.
Virginia commented that the report appears to be based on an
assumption that there are post-bond release pollution discharges below
valley fills, and that it was concerned with our use of an EPA study
(by Pond, Passmore, et al.) to support the point that such discharges
may occur. The state also noted that pollution problems that may occur
are likely to be site-specific. We disagree with Virginia's
characterization of our report because we did not assume that there
are post-bond release pollution discharges below valley fills. In
fact, our report notes that there is little monitoring of sites after
bond release, thereby making it difficult to assess post-bond release
conditions. Nevertheless, we recognize in the report that there is
some evidence, including in the EPA study, that such problems may
occur. We agree that problems, if they occur, are likely to be site-
specific.
West Virginia noted that all coal mines--not just Appalachian mines
with valley fills--are subject to SMCRA and the Clean Water Act. The
state also commented that the report seemed to imply that there is a
bonding or financial assurance problem in the four Appalachian states
we reviewed and that surface coal mines with valley fills are the only
mines that have the potential to cause environmental harm. West
Virginia also commented that the report implied that the monitoring
period before bond release should be longer. While we recognize that
other types of coal mining are subject to these laws and may affect
the environment, our report focused on surface coal mining with valley
fills. The four states we reviewed have more than 98 percent of the
recently approved valley fills across the country. In addition, our
report contained no conclusions about the adequacy of the bonding
programs in the four states or the length of the monitoring period;
instead, we attempted to present information on the requirements of
the relevant laws. Although West Virginia commented that the report
did not give full credit to the state for improvements it has made in
reforestation, approximate original contour, and surface water runoff
practices, it did not provide any additional information to support
these statements. The report does provide information on actions taken
by the state in these areas.
We present the agencies' letters containing their general comments,
along with our responses to them, as necessary, in appendixes III
through VIII. The agencies, with the exception of EPA, also provided
technical comments that we incorporated into the report, as
appropriate.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution for 30 days
from the report date. At that time, we will send copies of this report
to interested congressional committees, the Secretaries of the
Interior and Defense, and the Administrator of the Environmental
Protection Agency. The report will also be available at no charge on
the GAO Web site at [hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-3841 or mittala@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. GAO staff who made major
contributions to this report are listed in appendix IX.
Signed by:
Anu K. Mittal:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
This appendix details the methods we used to examine (1) the
approaches the Office of Surface Mining (OSM), the states we reviewed,
and the Army Corps of Engineers (Corps) have taken to obtain financial
assurances for surface coal mines with valley fills; (2) the extent to
which federal and state agencies monitor and evaluate these mines
after reclamation and mitigation are complete; and (3) the federal
laws agencies may use, and have used, to address any latent
environmental problems associated with these mines that may occur
after Surface Mining Control and Reclamation Act (SMCRA) or Clean
Water Act financial assurances have expired.
This report focused on the four Appalachian states of Kentucky,
Tennessee, Virginia, and West Virginia because these areas account for
more than 83 percent of the surface coal production in Appalachia and
more than 98 percent of recently approved valley fills across the
country. The data on coal production is from the Energy Information
Administration and can be found at [hyperlink,
http://www.eis.doe.gov/cneaf/coal/page/arc/table1.html]. The data on
valley fills are based on permits approved from October 1, 2001,
through June 30, 2005, as reported in Department of Interior, Office
of Surface Mining Reclamation and Enforcement, Environmental Impact
Statement: Proposed Revisions to the Permanent Program Regulations
Implementing the Surface Mining Control and Reclamation Act of 1977
Concerning the Creation and Disposal of Excess Spoil and Coal Mine
Waste and Stream Buffer Zones, OSM-EIS-34 (2008). We also gathered
background data on valley fills approved in the four states from
January 1, 2000, through various dates in mid-2008 to mid-2009. The
data from Kentucky and West Virginia are drawn from GAO-10-21, Surface
Coal Mining: Characteristics of Mining in Mountainous Areas of
Kentucky and West Virginia. Neither Virginia nor Tennessee maintained
valley fill data in electronic form. State officials provided fill
data for Virginia and OSM officials provided fill data for Tennessee
by reviewing hardcopy permits issued since 2000. We interviewed state
and OSM officials about the reliability of the data they provided and
compared their results to OSM's 2008 environmental impact statement on
excess spoil and stream buffer zones. We determined the data were
sufficiently reliable for our purposes.
To address each of the objectives, we obtained documents from and
interviewed officials at several federal and state agencies. These
included officials in the Department of the Interior's OSM in (1)
headquarters; (2) Appalachian Regional Office in Pittsburgh,
Pennsylvania; and (3) field offices in Lexington, Kentucky; Knoxville,
Tennessee; Charleston, West Virginia; and Big Stone Gap, Virginia. The
OSM field office in Knoxville manages the mining program in Tennessee.
We also interviewed and obtained information from officials in the
Environmental Protection Agency (EPA) headquarters and regional
offices in Philadelphia, Pennsylvania (Region 3) and Atlanta, Georgia
(Region 4); officials in the U.S. Geological Survey; and officials in
the Corps of Engineers headquarters and district offices in
Louisville, Kentucky; Pittsburgh, Pennsylvania; Nashville, Tennessee;
Norfolk, Virginia, and Huntington, West Virginia. Those five district
offices are responsible for issuing and enforcing the Clean Water Act
section 404 permits to surface mines in the states of Kentucky,
Tennessee, Virginia, and West Virginia. Moreover, we interviewed and
obtained information from the following state agencies in the four
states we reviewed: the Kentucky Department for Natural Resources;
Kentucky Division of Water; Tennessee Department of Environment and
Conservation; Virginia Department of Mines, Minerals and Energy;
Virginia Department of Environmental Quality; and West Virginia
Department of Environmental Protection.
To describe the approaches OSM, the states, and the Corps have taken
to obtain financial assurances for surface coal mines with valley
fills, we reviewed relevant sections of SMCRA and OSM's implementing
regulations and policy guidance to identify national requirements for
financial assurances associated with surface mining reclamation. We
also reviewed state mining laws in the three states that have primacy
for administering SMCRA--Kentucky, Virginia, and West Virginia--as
well as those states' mining agency implementing regulations and
policy guidance, to identify the states' approaches to financial
assurances for surface mining reclamation established in accordance
with the federal standards. We also spoke with officials from OSM
headquarters, the Appalachian Regional Office, and field offices, as
well as officials from the state mining agencies in Kentucky,
Virginia, and West Virginia. We spoke with officials from the OSM
field office in Knoxville to discuss financial assurances in Tennessee
because these officials manage the mining program in that state. We
also reviewed section 404 of the Clean Water Act and the Corps'
implementing regulations and policy guidance to identify requirements
and policy for financial assurances associated with compensatory
mitigation projects. In addition, we contacted Corps officials in the
headquarters and the five district offices to identify the extent to
which the Corps has included financial assurance requirements in
permits it has issued to surface mines for valley fills. We also
interviewed officials from the EPA to identify their role and
responsibility for overseeing section 404 permits.
To examine the extent to which federal and state agencies monitor and
evaluate surface coal mines with valley fills after reclamation and
mitigation are complete, we obtained information from and interviewed
officials in OSM's Appalachian Regional Office and field offices, as
well as state officials at the mining agencies in Kentucky, Virginia,
and West Virginia to identify any routine monitoring and "one-time"
evaluations that these agencies have done of mine sites to assess the
long-term environmental impact of the reclamation after the SMCRA
reclamation bonds have been released. We also interviewed and obtained
information from officials in the Corps' five district offices to
identify any routine monitoring the Corps has done of mitigation
projects after determining that operators have completed their
mitigation obligations or any specific studies of completed surface
coal mine mitigation projects. In addition, we interviewed and
obtained information from officials in EPA's Office of Water in
headquarters and regions 3 and 4; the U.S. Geological Survey; and
state water quality regulators in Kentucky, Tennessee, Virginia, and
West Virginia regarding any monitoring or evaluation of the long-term
environmental impact of former surface mines with valley fills. Among
the 11 federal and state agencies that we interviewed, none replied
that they had done routine monitoring of this nature, and most replied
that they had not done any "one-time" studies. The few agencies that
replied they had done one-time studies referred us primarily to
studies completed as part of the 2003 draft multiagency programmatic
environmental impact statement (PEIS). OSM's 2008 final environmental
impact statement on proposed regulations for excess spoil management
also generally cited the 2003 draft PEIS as a source of information on
the environmental impacts of valley fills. The federal and state
agencies that collaborated on the draft PEIS conducted or funded more
than 30 studies of the impacts of mountaintop mining and associated
valley fills and used them as support for evaluating the impacts of
various programmatic alternatives. With these facts in mind, we relied
heavily on the conclusions that the authors of the draft PEIS drew
concerning a number of environmental impacts, including reforestation,
water quality and impacts on aquatic organisms, and water flow. We
also cited more recent studies provided to us by agency officials,
such as a 2008 study by EPA Region 3 on water quality and aquatic
organisms near valley fills. Also, during the course of our review, we
learned from OSM officials about OSM's evaluation of mine operators'
compliance with approximate original contour policies in Kentucky,
Virginia, and West Virginia. We reported the results of those
evaluations because of their relevance to the construction of valley
fills.
To examine the federal laws agencies may use, and have used, to
address any latent environmental problems associated with surface
mines with valley fills that may occur after SMCRA or Clean Water Act
financial assurances have expired, we analyzed SMCRA and the Clean
Water Act and identified provisions that provide mining agencies and
water quality regulators authority to address environmental problems
on a former mine site after SCMRA bonds have been released. We also
interviewed officials from OSM, state mining agencies, and state water
quality regulators in the four states we reviewed to learn the extent
to which these authorities have been used in the past to address any
environmental problems that may have occurred on or caused by a former
mine site with valley fills. In addition, we analyzed two other
federal environmental laws--the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA, also known as Superfund) and
the Resource Conservation and Recovery Act (RCRA)--to identify
provisions that may authorize or require EPA to address environmental
problems that may occur on or be caused by a former surface mine after
bonds have been released. We interviewed officials from EPA's Office
of Solid Waste and Emergency Response to learn if CERCLA had been used
in the past in that context. We also we reviewed an EPA regulatory
determination published in 2000 on whether regulation of coal
combustion residue was warranted under the hazardous substance
provisions of RCRA.
We conducted this engagement from October 2008 to January 2010 in
accordance with all sections of GAO's Quality Assurance Framework that
are relevant to our objectives. The framework requires that we plan
and perform the engagement to obtain sufficient and appropriate
evidence to meet our stated objectives and to discuss any limitations
in our work. We believe that the information and data obtained, and
the analysis conducted, provide a reasonable basis for any findings
and conclusions in this report.
[End of section]
Appendix II: Selected Surface Mining Control and Reclamation Act
Reclamation Standards:
The Surface Mining Control and Reclamation Act (SMCRA) requires that
mined land be reclaimed consistent with environmental performance
standards, including making the land available for post-mining uses.
The SMCRA permit process requires operators to submit detailed plans
describing the extent of the proposed mining operations and how
reclamation will be achieved. In reclaiming the land, operators must
comply with regulatory standards that govern, among other things, the
final contour of the reclaimed area, the revegetation of reclaimed
mine sites, and the quality of water leaving the mine site. This
appendix describes these key reclamation standards.
Standards for Approximate Original Contour:
In general, mountaintop mine operators are required to return mine
sites to their approximate original contour (AOC) unless the operator
receives a variance from the regulatory authority. This means that the
surface configuration achieved by backfilling and grading of the mined
area must closely resemble the general surface configuration of the
land prior to mining and blend into and complement the drainage
pattern of the surrounding terrain, with all highwalls[Footnote 70]
and spoil piles eliminated.
The Office of Surface Mining (OSM) and the states may grant a variance
from the requirement to return the site to AOC--meaning that the land
would be left relatively flat--in certain circumstances, including
those in which the operator can demonstrate that the site will be
suitable for certain post-mining land uses.[Footnote 71] According to
OSM, these variances present an opportunity to create relatively flat,
flood-free land capable of supporting economic development. In our
recent report on trends in mountaintop mining, we reported that
variances from the AOC requirement have been relatively rare in
Kentucky and West Virginia.[Footnote 72]
A purpose of SMCRA is to assure that adequate procedures are
undertaken to reclaim surface areas as contemporaneously as possible
with the surface coal mining operations. OSM and the states require
that backfilling and grading begin within a certain number of days
after coal removal in a particular area.
Standards for Revegetation:
OSM and state law and regulations for mine reclamation also address
how sites are to be revegetated after they have been backfilled and
graded. To obtain bond release under SMCRA, mine operators must show
successful revegetation 5 full years after the last year of augmented
seeding, fertilizing, irrigation, or other work.[Footnote 73] What is
planted depends on the approved post-mining land use, such as forestry
or hayland and pasture.
State regulations set forth different requirements for factors
including plant species, variety, density, and coverage for different
post-mining land uses. The states have standards for the extent of
vegetation that must be initially planted and how much must survive in
order to receive bond release. For example, West Virginia's
regulations call for mines sites with a forest land post-mining land
use to be planted with at least 500 woody plants per acre. This is to
include at least 350 trees and 150 shrubs. The state specifies that a
least 5 species of trees be used, including at least 3 higher value
hardwoods such as oak, ash, or maple. The state also specifies a
minimum success standard of at least 450 trees and shrubs per acre and
a 70-percent ground cover.
Standards for Water Quality:
SMCRA requires that mine operators' bonds be of an amount sufficient
to ensure the completion of the site's reclamation plan by the
regulatory authority, which includes compliance with water quality
standards. These standards include those established by EPA or the
states under the Clean Water Act and referenced by SMCRA. Each
reclamation plan is to include a detailed description of the measures
to be taken during the mining and reclamation process to ensure the
protection of the quality of surface and ground water systems, both on-
and off-site, from adverse effects of the mining and reclamation
process. OSM has stated that a reclamation bond may not be released
where active or passive water treatment systems are being used to
achieve compliance with applicable standards.[Footnote 74]
SMCRA regulations contain specific water protection requirements. The
regulations include requirements that all surface mining and
reclamation activities be conducted to minimize disturbance of the
hydrologic balance within the permit and adjacent areas and to prevent
material damage to the hydrologic balance outside the permit area. The
hydrologic balance requirements include standards for water quality
and effluent limitations, sediment control, siltation and discharge
structures, and activities in or adjacent to perennial or intermittent
streams. Permit applicants must submit a probable hydrologic
consequences determination with their permit application as well as a
hydrologic reclamation plan indicating how any probable hydrologic
consequences will be prevented or remediated, including how the
general hydrologic balance requirements will be met. In addition, the
regulations that address backfilling and grading require operators to
cover acid-or toxic-forming materials with a minimum of 4 feet of
nontoxic material, or treat the material to neutralize its toxicity in
order to prevent water pollution. With regard to excess spoil used as
fill material, the regulations require that leachate and surface
runoff from the fill will not degrade surface or ground waters or
exceed effluent limitations set for iron, manganese, total suspended
solids, and pH. The regulations also require that slopes be protected
to minimize surface erosion at the site and that the fill be designed
using recognized professional standards, certified by a registered
professional engineer, and approved by the regulatory authority.
[End of section]
Appendix III: Comments from the Department of the Interior:
United States Department of the Interior:
Office Of The Secretary:
Washington, D.C. 20240:
December 22, 2009:
Ms. Robin M. Nazzaro:
Director, Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548:
Dear Ms. Nazzaro:
Thank you for providing the Department of the Interior the opportunity
to review and comment on the draft Government Accountability Office
Report entitled "Surface Coal Mining: Financial Assurances for, and
Long-Term Oversight of, Mines with Valley Fills in Four Appalachian
States" (GA0-10-206).
We appreciate the diligent work of the team that prepared the report
and the large amount of data collected, synthesized, and analyzed. In
general, we believe that this report is an informative and
fair characterization of the Federal and state program requirements
under the Surface Mining Control and Reclamation Act of 1977
pertaining to financial assurances in Kentucky, Tennessee, Virginia,
and West Virginia. We have enclosed several comments and suggestions
that, in our view, will enhance the quality and clarity of the report.
If you have any questions, or need additional information, please
contact Michael K. Robinson, Chief, Office of Surface Mining
Reclamation and Enforcement's Appalachian Region Technical Support
Division, at (412) 937-2882.
Sincerely,
Signed by:
Wilma A. Lewis:
Assistant Secretary:
Land and Minerals Management:
Enclosure:
[End of section]
Appendix IV: Comments from the Department of Defense:
Note: GAO comments supplementing those in the report text appear at
the end of this appendix.
Department Of The Army:
Office Of The Assistant Secretary:
Civil Works:
108 Army Pentagon:
Washington, DC 20310-0108:
December 15, 2009:
Ms. Robin M. Nazzaro, Director:
Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, DC 20548:
Dear Ms. Nazarro:
This is a Department of Defense (DOD) response to the GAO Draft Report
GAO-10206, "Surface Coal Mining: Financial Assurances for, and Long-
Term Oversight of, Mines with Valley Fills in Four Appalachian
States," dated November 23, 2009 (GAO Code 361023).
We appreciate the work of the team that collected and analyzed the
data and prepared the report. In general, we believe the report is
informative and provides a good discussion of the issues involved in
financial assurances for surface coal mining in Appalachia. We have
several general and specific comments and appreciate the opportunity
you provided to review this draft document. If our comments are
addressed, we feel that the quality and clarity of the final report
will be enhanced. Our comments are attached in the enclosure. We draw
your attention to General Comment Number 3, which concerns your
discussion of pending projects subject to the Enhanced
Coordination Procedures and the Spruce Mine permit in West Virginia.
[See comment 1] The Spruce Mine permit decision is currently in
litigation and we therefore recommend that you remove the discussion
associated with this project. Further, the discussion of both Spruce
and projects on the ECP list are not relevant to the three objectives
you have identified in this study and we therefore request that you
remove this information from the report. [See comment 2]
Please do not hesitate to contact me if you have any questions. Your
staff may also contact Mr. Chip Smith, my Assistant for Environment,
Tribal and Regulatory Affairs, at (703) 693-3655.
Very truly yours,
Signed by:
[Illegible] for:
Jo-Ellen Darcy:
Assistant Secretary of the Army (Civil Works):
The following are GAO's comments on the letter dated December 15,
2009, from the Assistant Secretary of the Army, Civil Works.
[End of letter]
GAO Comments:
1. While we appreciate the Army Corps of Engineers' (Corps)
sensitivity to the litigation associated with the Spruce mine, we do
not feel that any change to our report is warranted. We do not
specifically discuss the litigation, which was brought by
environmental groups against the Corps, but rather an ancillary
conflict between the Corps and the Environmental Protection Agency
(EPA). Our brief discussion of the matter presents both sides of the
conflict between EPA and the Corps using the agencies' own words
sourced wholly from publicly available documents and refrains from
making any conclusions as to the merits of the case.
2. We disagree with the Corps' comment that a discussion of projects
subject to the enhanced coordination procedure and the Spruce mine are
irrelevant to the objectives of our study. Both of these points are
relevant to our second objective, which asks us to describe the extent
to which federal and state agencies monitor and evaluate the impacts
of surface coal mining activities. Both the enhanced coordination
procedure and the Spruce mine case provide examples of how federal
regulators are using studies that we discuss in the report. Therefore,
we did not revise the report in response to this comment.
[End of section]
Appendix V: Comments from the Environmental Protection Agency:
United States Environmental Protection Agency:
Office of Water:
Washington, D.C. 20460:
[hyperlink, http://www.epa.gov]
December 24, 2009:
Ms. Robin M. Nazzaro:
Director:
Natural Resources and Environment:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Ms. Nazzaro:
Thank you for your November 23, 2009, correspondence to U.S.
Environmental Protection Agency (EPA) Administrator, Lisa P. Jackson,
concerning interagency review of the proposed report, Surface Coal
Mining: Financial Assurances for, and Long-Term Oversight of Mines
with Valley Fills in Four Appalachian States (GAO-10-206). As EPA
Assistant Administrator for Water, I want to express my appreciation
for the continued attention and objective focus given to this very
important environmental issue. EPA has provided technical assistance
to the U.S. Government Accountability Office (GAO) in the development
of this report. We have also reviewed the current draft report, noting
that it provides a factual presentation of issues associated with the
review and regulation of surface coal mining practices and offers no
specific recommendations for the agencies. EPA has no additional
comments to offer.
I would, however, like to take this opportunity to recognize one or
the key premises on which this report is based -- the importance of
better understanding the long-term implications of authorized surface
coal mining activities. As the draft report points out, valley fills
have directly impacted almost 1,100 miles of streams in the central
Appalachian States of Kentucky, Tennessee, Virginia and West Virginia
from 1985 through 2005. Furthermore, the draft report refers to a
recent finding from the final report GAO-10-21, which states that
nearly 2,000 valley fills were approved in the States of Kentucky and
West Virginia from 2000 through 2008. These and other data presented
in both GAO reports provide helpful context for Federal and State
agencies as we continue to work together to address both the near and
long-term consequences of surface coal mining activities on the
environment, water quality, and Appalachian coalfield communities.
Thank you again for the opportunity to review draft report GAO-10-206.
We appreciate your ongoing contribution of helpful information in
regard to this important issue. EPA will continue to utilize this data
as we work with our Federal and State regulatory partners, industry,
and the public to improve the environmental review of surface coal
mining under the Clean Water Act.
Sincerely,
Signed by:
Peter S. Silva:
Assistant Administrator:
cc: Ms. Andrea Brown, GAO:
Mr. Ross Campbell, GAO:
[End of section]
Appendix VI: Comments from the Kentucky Department for Natural
Resources:
Note: GAO comments supplementing those in the report text appear at
the end of this appendix.
Commonwealth of Kentucky:
Energy And Environment Cabinet:
Department For Natural Resources:
2 Hudson Hollow:
Frankfort, Kentucky 40601:
Phone: (502)564-6940:
Fax: (502)564-5698:
[hyperlink, http://www.eec.ky.gov]
[hyperlink, http://www.dnr.ky.gov]
Steven L. Beshear, Governor:
Leonard K. Peters, Secretary:
Carl L. Campbell, Commissioner:
December 17, 2009:
Ms. Robin M. Nazzaro, Director:
Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Ms. Nazzaro:
Reference is made to your correspondence of November 23, 2009 where in
you conveyed a draft copy of your proposed report entitled "Surface
Coal Mining: Financial Assurances tint, and Long-Term Oversight of,
Mines with Valley Fills in Four Appalachian States (GAO-10-206)" for
our review and comment. We have reviewed the draft document and our
comments and suggestions are as follows:
General Comments:
1. We sincerely appreciate GAO's intent to craft an informational
document designed to provide credible information and reliable data.
However, we believe this document is overly broad in its generalized
statements, Terms and phrases are used interchangeably so as to
confuse the issues and written in a manner that appears to
misrepresent and sensationalizes the issues. Because coal mining and
coal energy issues have become increasingly prevalent in the press, it
is imperative that clear and accurate facts utilizing correct language
be presented to appropriate agencies and the public. [See comment 1]
2. As was previously pointed out to GAO staff, we felt the Kentucky
"Statement of Facts" we received from your stall was a "bit thin", so
we didn't have a significant number of comments or concerns to convey
during the conference call of November 3, 2009. Had we had the
opportunity to review the statements that are made in the draft report
we would have provided considerably more comments. The work of federal
and state governments must be transparent so that our stakeholders may
be well informed for learned decisions. Therefore, we must point out
that throughout the report you use several terms interchangeably that
can create a false impression with your readers:
a) You call all excess spoil disposal areas "Valley Fills". As you
observe in footnote # 23, there are significant differences. Valley
fills result in a much larger "disturbed" footprint and directly
impact intermittent and perennial streams compared to hollow fills
that impact ephemeral stream reaches. These substantial differences of
types of fills should not be buried in a footnote but rather be made
part of the report text. Incidentally, there are very few valley fills
in the Kentucky coalfields. [See comment 3]
b) You use the term "Mountaintop Mining" and "Mountaintop Removal" as
though they are synonymous and these terms occur in the same sentence
(e.g. page 7 ” next to last sentence in the first paragraph; page 7”
footnote #11). Mountaintop removal is a regulatory defined mining
method that bears the weight of law in its application and
restrictions. Mountaintop mining is truly an egregious term that has
no regulatory reference and misconstrues actual mining activities. We
believe that the language of "mining in mountainous areas" that GAO
used in their previous report (GAO-10-21) more aptly describes the
mining scenarios in the eastern Kentucky coalfields. [See comment 4]
c) There is a significant difference between the number of fills
approved and the number actually constructed. Your agency has made
that observation in the past and we feel that it deserves being
restated in this report. Advancing this flawed premise for tabulating
stream miles buried (pgs.2-3, 28) is simply erroneous and falsely
alarms the reader. [See comment 5]
Specific Comments:
3. Page 9, 2nd paragraph: The statement "Once bonds have been
completely released to a mine operator, the relevant regulatory
authority may terminate its jurisdiction under SMCRA," should be
revised to say "Regardless of band type, bonds that have been
completely released to a mine operator, the relevant regulatory
authority must terminate its jurisdiction under SMCRA." [See comment 6]
4. Page 10, top partial paragraph: It should also be noted that SMCRA
also prohibits applicants from obtaining future SMCRA permits if they
have previous bond forfeitures. [See comment 7]
5. Page 14, Footnote 24: It is true that Tennessee has the fewest
fills. Compared to Kentucky and West Virginia, Tennessee has a very
small coal mining industry and thus, the fewest mining permit
applications. This information should be included or recognized in
your report. [See comment 8]
6. Page 15, 2nd paragraph: A new paragraph starting with "The Corps
has not used its discretionary authority..." should be inserted as
previous statements in the paragraph refer to the SMCRA process. We
also believe the Corps has used its authority via in-lieu fees to
provide financial assurance for 404 mitigation work. [See comment 9]
7. Page 24, 2nd paragraph: The statements in this paragraph reflect
some sort of investigation(s). However, no citations of these
"findings" are given. Additionally, we recommend using the phrase
"tenuous link" rather than "tentative link" when describing the
relationship between water flow and valley fills. [See comment 10]
8. Page 25, 2nd paragraph: The statements from the EPA's Office of
Water are largely editorial and do not apply to the purpose of this
report. Also, we are not surprised that USGS asks for additional long-
term monitoring as that is one of their agency responsibilities and
they seek financial assistance in this effort whenever possible. [See
comment 11]
9. Page 27, Footnote 41: The statement that "amphibians and reptiles
were affected by the presence or absence of mining" leads us to
believe that herpetiles are basically intolerant of any condition.
That being said, perhaps this statement needs to be removed. [See
comment 12]
10. Page 31, 3rd paragraph: When discussing water flow, it seems
somewhat contradictory to state that "contributions of mining and
logging to increased water flow were relatively small" compared to the
need to "ensure no flooding potential." Though the authors are
specifically targeting West Virginia for this concern, Kentucky has
regulations in place for flooding analysis and the assurance of no
change in pre-, during and post-mining water flows. [See comment 13]
11. Page 32, 2nd paragraph: In reference to the OSM (Kentucky) study
on approximate original contour, "the operator was supposed to return
the land to approximate original contour differed from sites that had
been granted variances," it should be noted that those Kentucky sites
were returned to AOC despite the approval for a variance. [See comment
14]
Again, we sincerely appreciate the opportunity for review and comment.
Please let us know if you have any questions or if we can be of
further assistance.
Respectfully,
Signed by:
Carl E. Campbell, Commissioner:
[End of letter]
The following are GAO's comments on the letter dated December 17,
2009, from the Commissioner, Department for Natural Resources.
GAO Comments:
1. We do not agree that the report misrepresents or sensationalizes
the issues; however, we do agree that it is important to be accurate
and use correct terminology. Throughout the report we have strived to
be accurate and have been careful to consistently and accurately use
terms and phrases that are commonly used in regulation or the coal
mining literature. In its comment, the state did not provide specific
examples of what it believes are inaccurate facts or inappropriate
terms. However, subsequent comments from the state referred to our use
of the terms mountaintop mining, mountaintop removal mining, valley
fills, and hollow fills. We have reviewed our use of these terms
throughout the report to ensure that they are used consistently and
appropriately.
2. The state is referring to our practice of holding "exit
conferences" near the end of our review. Our policy is to provide the
agencies with relevant program responsibilities--typically federal
agencies but in this case a state agency--with excerpted material from
the draft report. We call this document a "statement of facts." The
purpose of the exit conference is to obtain the agency's input
regarding the accuracy of the facts presented. The purpose is not to
obtain comments on the entire draft report; that step comes later in
the process. Therefore, the statement of facts that we sent to
Kentucky contained information describing laws, policies, and
conditions that pertained directly to the state. We understand that
agencies are likely to have additional comments on the full draft
report--as Kentucky did in this instance--but also believe that our
process of holding exit conferences to discuss the statement of facts
followed by a request for formal comments on the full report is a
transparent one.
3. We understand that Kentucky's regulations define both hollow fills
and valley fills, but not all states make this distinction in
practice. Federal and state regulations identify different types of
fills, including valley fills, head-of-hollow fills, and durable rock
fills. These definitions differ in their characteristics, including
placement, slope, and material composition. For ease of reading, we
refer to all types of fills as valley fills in this report. The term
valley fill is not meant to indicate the size of a particular fill or
the type of stream affected--ephemeral, intermittent, or perennial.
4. We agree with the state's specific comment and have clarified the
report accordingly. In our discussion of post-mining land use
requirements, we are referring specifically to mountaintop removal,
one type of mountaintop mining. For further clarity, we have added a
footnote that compares the requirements for mountaintop removal to
those for steep slope mining, another kind of mountaintop mining.
Throughout the rest of the report, however, we continue to use the
term mountaintop mining to refer generally to all types of coal mining
in mountainous areas. This usage is consistent with our previous
report mentioned by the state (GAO-10-21) that was also recently
reviewed by state officials. This usage is also consistent with the
Environmental Protection Agency's (EPA) 2003 draft Programmatic
Environmental Impact Statement on Mountaintop Mining/Valley Fills in
Appalachia.
5. We agree that not all fills approved are ultimately constructed,
and make that point in the report. However, we do not believe that our
report overstates the miles of buried streams and did not modify the
report in response to this comment. The sources for the data that we
include in the report are the 2003 draft Programmatic Environmental
Impact Statement on mountaintop mining and valley fills and the Office
of Surface Mining's 2008 final environmental impact statement on
excess spoil and the stream buffer zone. For example, the 2003 draft
statement reported that 724 miles of streams were "directly impacted
by valley fills (i.e., covered by fill)."
6. We disagree with the comment. While we understand that some state
regulations require termination of jurisdiction at bond release, the
federal regulations only state that the relevant regulatory authority
may terminate its jurisdiction under the Surface Mining Control and
Reclamation Act (SMCRA) at bond release. Therefore, we have not
revised the report in response to the comment.
7. We disagree with the comment. SMCRA does not specifically prohibit
applicants from obtaining future SMCRA permits if they have previous
bond forfeitures. SMCRA generally prohibits applicants from obtaining
future permits if they have unabated violations. However, in response
to the comment, we have added detail on the state regulations, which
do specifically note that bond forfeiture based on violations that are
not subsequently corrected disqualify operators from obtaining future
permits.
8. We did not modify the report in response to this comment because
the background section of the report does include data on the
differences in recent surface coal mine production in the four states.
Specifically, the report notes that Kentucky produced about 51 million
tons while Tennessee produced less than 2 million tons in 2008.
9. This paragraph summarizes the section that follows, and we do not
agree that an editorial change is needed. We believe that our
description of the Army Corps of Engineers' practices is accurate on
the basis of information obtained from that agency.
10. The citations on which the findings are based are provided later
in the body of the report. We did not add citations to this summary
paragraph. However, we have deleted the word "tentative" from our
discussion of impacts on water flows. We believe that the documents we
cite, along with comments we received from the Department of the
Interior, support our characterization in the final draft of the
report.
11. We do not agree that the EPA statements are largely editorial and
made no change to them. We believe that the EPA and U.S. Geological
Survey statements on inadequate monitoring are as germane to the
purpose of the report as the statements from state agency officials,
who believe monitoring is adequate.
12. We have clarified the footnote to indicate that the mix of
amphibian and reptile populations was affected by the presence of
mining.
13. We have not modified our characterization of the West Virginia
Flood Advisory Technical Task Force report because we believe it is an
accurate summary of the task force report. However, we have modified
the report to include Kentucky's comment on its regulations related to
flood analysis and avoidance.
14. We have added this information to footnote 57.
[End of section]
Appendix VII: Comments from the Virginia Department of Mines, Minerals
and Energy:
Note: GAO comments supplementing those in the report text appear at
the end of this appendix.
Commonwealth Of Virginia:
Department of Mines, Minerals and Energy:
Washington Building, 8th Floor:
1100 Bank Street:
Richmond, Virginia 23219-3638:
(804)692-3200:
Fax: (804)692-3237:
[hyperlink, http://www.dmme.virginia,gov]
Memorandum:
To: Robin M. Nazzaro:
Director, Natural Resources and Environment:
Government Accountability Office:
From: [Signed by] Stephen Walz, Director:
Virginia Department of Mines, Minerals and Energy:
Subject: Draft GAO-10-206: Surface Coal Mining: Financial Assurances
for, and Long-Tenn Oversight of, Mines with Valley Fills in Four
Appalachian States:
Date: December 22, 2009:
Thank you for the opportunity to review the GAO draft report on
mountaintop mining and financial assurances. The Virginia Department
of Mines, Minerals and Energy offers the following comments. We would
be glad to discuss these further if needed.
The draft report appears to be based on an assumption that there are
post bond release pollution discharges below fills. The Pond-Passmore
Report that has been used to support this assumption cites impacts to
one species of mayflies due to total dissolved solids (TDS). We are
concerned about basing conclusions on this report as it has not been
widely peer reviewed and other scientific studies refute the TDS
issue. Additionally, problems such as selenium have not been
identified as being a problem in Virginia. Conclusions based on such
assumptions should be modified to note that such problems are site
specific and any proposed modification to regulatory approaches should
account for such site-specific conditions. Across the board, one size
fits all changes to the regulatory program may not be appropriate for
all sites in all states. [See comment 1]
When addressing water quality, the draft report does not acknowledge
the presence of other extensive land disturbing activities in
watersheds being mined and their impacts on water quality. To provide
a complete picture, the draft report should recognize that these
activities add to stream impacts and should he accounted for in any
assessment of how surface coal milling activities affect water
quality. [See comment 2]
All state regulatory programs require that permitted operators take
actions to minimize the disturbances to the hydrologic balance. This
is not noted in the draft report. For example, mine operators are
required to conduct a Probable Hydrologic Consequence assessment
before a permit is issued and address any negative impact to the
hydrologic balance. The draft report should address how these actions
protect water quality in the area affected by coal mining operations.
[See comment 3]
Concerns over water quality downstream of fills after bond release
could be addressed by the use of wetlands below fills. Passive wetland
systems have proven to be effective in treating water during bond
release. Use of passive wetland systems would require a change to OSM
regulations. [See comment 4]
Throughout the draft report there are numerous references to the 2003
Mountaintop Mining/Valley Fills in Appalachia Draft Programmatic
Environmental Impact Statement or 2003 draft PETS. This document was
finalized in October 2005 and should be noted as such. [See comment 5]
We have additional comments regarding specific points in the draft
report. We are providing them below.
[End of memorandum]
The following are GAO's comments on the letter dated December 22,
2009, from the Director, Department of Mines, Minerals and Energy.
GAO Comments:
1. We do not assume that post-bond release pollution discharges occur
below valley fills. In addition to the Pond-Passmore study, our draft
report cited the 2003 draft Programmatic Environmental Impact
Statement, which concluded that streams below mountaintop mines with
valley fills were characterized by contamination. We agree that the
contamination may not necessarily have been post-bond release, and we
agree that contamination problems are likely to be site specific, when
they occur. We did not revise the report in response to this comment.
2. The focus of this report was surface coal mining and not all
activities that may affect water quality. Therefore, while we agree
that other land disturbing activities may affect water quality in
watersheds with mining, we have not included a discussion of those
activities.
3. Points relating to hydrologic balance, such as effluent
limitations, are discussed throughout the report in general terms and
more specifically in Appendix II. We have added more detail on
hydrologic balance requirements to Appendix II in response to this
comment. This material is included in the appendix because, while we
understand that adherence to regulations designed to protect the
hydrologic balance of the mine site during the mining operation may
help to minimize water quality issues after bond release, we were
asked to discuss mechanisms available to address environmental
problems after bond release, when the Surface Mining Control and
Reclamation Act's hydrologic balance requirements would no longer
apply.
4. We have not modified the report in response to the state's comment
because we did not analyze the use of passive wetlands, or other
methods, for treating water after bond release.
5. The state is correct that the 2003 draft programmatic environmental
impact statement was finalized in October 2005, and we have revised
footnote 2 to make that clear. The final version of the statement
incorporated the 2003 draft statement by reference. However, the 2005
final statement did not contain all of the material found in the draft
statement. For example, studies of the impacts of mountaintop mining
were in the appendixes of the 2003 draft, but not the 2005 final
statement. Therefore, we believe that it is preferable to refer the
readers of our report to the 2003 draft statement instead of the 2005
final statement.
[End of section]
Appendix VIII: Comments from the West Virginia Department of
Environmental Protection:
Note: GAO comments supplementing those in the report text appear at
the end of this appendix.
West Virginia Department of Environmental Protection:
Division of Mining & Reclamation:
December 22, 2009:
601 57th St., SE:
Charleston, WV 25304:
Phone (304)926-0490; Facsimile (304)926-0456:
Joe Manchin III, Governor:
Randy C. Hoffman, Cabinet Secretary:
[hyperlink, http://wwww.wvdep.org]
Robin Nazzaro:
Director, Natural Resources and Environment:
Government Accountability Office:
441 0 Street, NW:
Washington, DC 20548:
Dear Ms. Nazzaro:
Thank you for the opportunity to review and comment on the draft
Government Accountability Office report GAO-10-206, "Financial
Assurances for, and Long-Term Oversight of, Mines with Valley Fills in
Four Appalachian States."
All coal mining nationwide is subject to the Federal Surface
Control and Reclamation Act (SMCRA) and the Clean Water Act. Mining of
coal nationwide has similar potential to impact to the environment.
Bonds and or financial assurances are required in all states and are
not unique to the four states chosen for the report. It seems the GAO
is artificially implying that there is a bonding or financial
assurance problem in the four states and that mines with valley fills
are the only mines that have the potential to cause environmental
harm. [See comment 1]
West Virginia's bond forfeiture program is one of the most aggressive
in the nation in assuring reclamation of sites which have had bonds
forfeited, including the treatment of water on sites that require
chemical treatment of water. The West Virginia regulatory program has
addressed most of the needed improvements identified in the analyses
referenced in your report, in reforestation, approximate original
contour compliance. surface water runoff as well as other improvements
beyond the scope of GAO's findings. The GAO makes it sound as if all
these studies are recent and that little has been done about the
findings. More recently studies on impacts to aquatic organisms are
being evaluated. [See comment 2]
Furthermore, although the report contained no recommendations it
implies that monitoring periods before bond release should be longer.
In reality. the bond release period turns out to be much longer than
the required evaluation time due to maintenance or other requirements
that would start the clock over. To require a never ending,
jurisdiction for formerly mined sites would be contradictory to the
basic premise of ending jurisdiction under SMCRA. [See comment 3]
In closing it appears that this report could have presented a more
complete story. More specific comments are attached. If you have
questions or comments please contact this office.
Sincerely,
Signed by:
Lewis A. Halstead:
Deputy Director:
LAH/cm:
Attachment:
[End of letter]
The following are GAO's comments on the letter dated December 22,
2009, from the Deputy Director, Division of Mining and Reclamation.
GAO Comments:
1. We agree that mining nationwide has similar potential to impact the
environment. We also agree that the Surface Mining Control and
Reclamation Act requires financial assurances in all states. However,
we were asked to examine financial assurances and activities related
to monitoring at coal mines with valley fills. The four states we
reviewed have the vast majority of coal mines with valley fills.
Therefore, we did not revise the report in response to this comment.
2. Our report notes that the state has made changes to its policies
and practices related to reforestation, approximate original contour,
and surface water runoff. We did not revise the report in response to
this comment.
3. It is correct that we are not making any recommendations regarding
the length of the monitoring period before bond release. Our report
notes that most, but not all, agencies we contacted, believe that
monitoring is adequate. At the same time, there is evidence from some
monitoring that environmental problems may occur after bonds have been
released. We did not revise the report in response to this comment.
[End of section]
Appendix IX: GAO Contact and Staff Acknowledgments:
GAO Contact:
Anu K. Mittal, (202) 512-3841 or mittala@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Robin Nazzaro (Director),
Andrea Wamstad Brown (Assistant Director), Sherry McDonald (Assistant
Director); Ross Campbell, Antoinette Capaccio, Brian Friedman, Brandon
Haller, Carol Hernstadt Shulman, and Desiree Thorp made key
contributions to this report. Josey Ballenger, Charlie Egan, Carol
Kolarik, and Rebecca Shea also contributed to this report.
[End of section]
Footnotes:
[1] Federal and state regulations identify different types of fills,
including valley fills, head-of-hollow fills, and durable rock fills.
These definitions differ in their description of fill characteristics,
including placement, slope, and material composition. For ease of
reading, we refer to all types of fills as valley fills in this report.
[2] Environmental Protection Agency (EPA), Mountaintop Mining/Valley
Fills in Appalachia Draft Programmatic Environmental Impact Statement,
U.S. EPA Region 3, 9-03-R-00013 (2003). The impact statement was
prepared by EPA, the Army Corps of Engineers, the Office of Surface
Mining, the U.S. Fish and Wildlife Service, and the West Virginia
Department of Environmental Protection. The document was incorporated
by reference in a final impact statement dated October 2005.
[3] Department of the Interior, Office of Surface Mining Reclamation
and Enforcement, Environmental Impact Statement: Proposed Revisions to
the Permanent Program Regulations Implementing the Surface Mining
Control and Reclamation Act of 1977 Concerning the Creation and
Disposal of Excess Spoil and Coal Mine Waste and Stream Buffer Zones,
OSM-EIS-34 (2008).
[4] GAO, Surface Coal Mining: Characteristics of Mining in Mountainous
Areas of Kentucky and West Virginia, [hyperlink,
http://www.gao.gov/products/GAO-10-21] (Washington, D.C.: Dec. 9,
2009).
[5] Among the factors affecting the construction of valley fills is a
Department of the Interior regulation known as the stream buffer zone
rule. The rule, as originally promulgated in 1983, prohibited the
dumping of excess spoil material within 100 feet of a perennial or
intermittent stream except when such activities "will not cause or
contribute to the violation of state or federal water quality
standards and will not adversely affect the water quantity or quality
or other environmental resources of the stream." In December 2008, the
previous administration modified the rule to allow a surface coal mine
operator to place excess spoil material excavated by the operation
into streams if the operator can show it is not reasonably possible to
avoid doing so. The current administration unsuccessfully sought to
have the U.S. District Court of the District of Columbia vacate the
2008 rule. On November 30, 2009, the Department of the Interior
published an advance notice of proposed rulemaking requesting comments
on alternatives for revising the current Surface Mining Control and
Reclamation Act regulations, which include the 2008 rule. Kentucky,
Virginia, and West Virginia have not implemented any changes to their
own stream buffer zone rules in the wake of the federal rule change.
[6] In passing SMCRA, Congress found that "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 act should rest with the states."
[7] The Secretary of the Interior conditionally approved a Tennessee
state program on August 10, 1982; however, because Tennessee failed to
adequately implement certain parts of its program, OSM took over its
inspection and enforcement responsibilities on April 18, 1984.
Subsequently, the state repealed most of the Tennessee Coal Surface
Mining Law of 1980 and its implementing regulations, effective October
1, 1984. As a result, on October 1, 1984, OSM withdrew approval of the
Tennessee permanent regulatory program and promulgated a federal
program for the state.
[8] In this report, we use the terms "financial assurance" and "bond"
interchangeably.
[9] The Clean Water Act is codified at 33 U.S.C. §§ 1251-1387 (2006).
[10] Before requiring mitigation, the Corps requires a demonstration
that impacts to U.S. waters have been avoided where practicable and
that unavoidable impacts have been minimized to the extent
practicable. According to the Corps, it provides an evaluation and
analysis of avoidance, minimization, and compensation strategies and
ensures that all unavoidable losses of waters are adequately offset
through compensation on the vast majority of projects associated with
surface coal mining sites.
[11] The data on coal production is from the Energy Information
Administration and can be found at [hyperlink,
http://www.eia.doe.gov/cneaf/coal/page/acr/table1.html. The data on
valley fills are based on permits approved from October 1, 2001,
through June 30, 2005, as reported in OSM-EIS-34.
[12] For simplicity in this report, we refer to permittees and
operators as operators. The permittee is the person or entity who
holds the permit and is legally responsible for the permit, whereas
the operator is the person or entity who conducts coal removal
operations. The permittee and the operator may or may not be the same
person or entity.
[13] A purpose of SMCRA is to ensure that adequate procedures are
undertaken to reclaim surface areas as contemporaneously as possible
with the surface coal mining operations. OSM and the states have
regulations requiring that backfilling and grading begin within a
certain number of days after coal removal in a particular area.
[14] Other types of mountaintop mining have different requirements.
For example, steep slope mining describes mining operations in
mountainous terrain that may, or may not, include an approximate
original contour variance. Steep slope operations that do not have an
approximate original contour variance follow the same requirements as
other permits that comply with approximate original contour
requirements.
[15] State regulations regarding allowable post-mining land uses vary.
For example, West Virginia prohibits certain agricultural alternative
post-mining land uses for mountaintop mining operations, including
rangeland and hayland.
[16] The operator may choose to provide "incremental" bonds covering a
portion of the permitted area rather than the entire permitted area.
[17] SMCRA creates three discrete phases of reclamation for purposes
of bond release. Phase I includes backfilling, regrading, and drainage
control. Upon successful Phase I reclamation, up to 60 percent of the
bond can be released. Phase II occurs after establishment of
revegetation. No part of the bond can be released at this point if the
water flowing from the permit area is exceeding applicable state
effluent limitations established under the Clean Water Act. Phase III
requires meeting post-mine land use standards, which may include
revegetation success standards and meeting all other applicable
reclamation requirements.
[18] In commenting on a draft of this report, the Department of the
Interior noted that bond pools may also include civil penalties and
interest.
[19] State regulations may require termination of jurisdiction over a
mining operation once a bond is released.
[20] 33 U.S.C. § 1344 (2006). The Corps regulates discharges of fill
material into three categories of stream known as ephemeral,
intermittent, and perennial. According to the Corps, most valley fill
construction in the four states we reviewed has involved the discharge
of fill material into ephemeral streams.
[21] According to the Corps, a section 404 permit does not cover the
construction of an entire valley fill: the Corps only authorizes the
discharge of fill material into waters of the United States in
association with the underdrain beneath the valley fill; the
construction of the rest of the fill is regulated pursuant to SMCRA.
For ease of reading, we will continue to refer to this process as the
construction of a valley fill.
[22] Surface coal mine operators must notify the Corps of their intent
to discharge fill material into waters of the United States in
association with surface coal mining and reclamation activities under
a nationwide permit--known as Nationwide Permit 21--and receive
written authorization prior to commencing activity. In March 2009, a
federal district court judge in the Southern District of West Virginia
vacated Nationwide Permit 21 and enjoined the Corps from issuing
authorizations pursuant to Nationwide Permit 21 in the district until
the Corps has determined that Nationwide Permit 21 will not have
adverse cumulative impacts as required by the Clean Water Act. A June
11, 2009, Memorandum of Understanding between the Corps, the
Department of the Interior, and EPA states that the Corps will modify
Nationwide Permit 21 to prohibit its use to authorize discharges of
dredged or fill material into waters of the United States for surface
coal mining activities in the Appalachian region of Kentucky, Ohio,
Pennsylvania, Tennessee, Virginia, and West Virginia, and on July 15,
2009, this modification was completed by the Corps.
[23] 40 CFR Part 230.
[24] The district engineer is the lead official in each district.
There are 38 Corps districts in the United States. According to Corps
officials, there are five Corps districts in Appalachia that are
responsible for implementing the section 404 permit program in the
four states we reviewed. Those district offices are located in
Louisville, Kentucky; Pittsburgh, Pennsylvania; Nashville, Tennessee;
Norfolk, Virginia; and Huntington, West Virginia. Corps regulations
and policies are 33 CFR Part 332 (Compensatory Mitigation For Losses
Of Aquatic Resources) and Guidance on the Use of Financial Assurances,
and Suggested Language for Special Conditions for Department of the
Army Permits Requiring Performance Bonds, Regulatory Guidance Letter,
No. 05-1 (Feb. 14, 2005).
[25] Under 31 U.S.C. §3302(b), any funds that the Corps receives, such
as a bond, must be accounted for as a "miscellaneous receipt" under
the Miscellaneous Receipts Statute and must be deposited in the
General Fund of the U.S. Treasury. Thus, those funds could not be used
to provide the required compensatory mitigation for a specific project.
[26] These pollutant discharge limits are derived from technology-
based "effluent guidelines" established by EPA or in water-quality
standards developed by states and approved by EPA.
[27] 33 U.S.C. § 1362(14) (2006).
[28] EPA regulations have established effluent guidelines for coal
mining and preparation under section 402 for iron, manganese, total
suspended solids, and pH. States may establish standards for these and
other pollutants associated with surface coal mines. For any pollutant
without a published standard, permit writers may use their best
professional judgment.
[29] While it retains independent oversight authority, EPA has
approved the permitting and compliance authorities of the section 402
program in Kentucky, Tennessee, Virginia, and West Virginia.
[30] The data from Kentucky and West Virginia are from electronic
databases. While both states have collected some information in their
databases since the late 1970s, Kentucky officials told us their fill
data are less reliable prior to 2000. West Virginia officials also
told us they did not consistently record information on fills in their
database until the late 1990s. Virginia officials told us that they
did not have an electronic database with information on valley fills.
They collected information for us by reviewing the hardcopy files of
permits issued since 2000. Similarly, OSM officials conducted a review
of permit files to provide us with information on fills in Tennessee,
the state with the fewest fills.
[31] The 171 individual permits represented the approximate number of
permits the Corps approved during that period for surface mining
operations in the counties in Kentucky, Tennessee, Virginia, and West
Virginia that the agency identified as being in the Appalachian region
affected by its July 15, 2009, proposal to prohibit the use of the
Nationwide Permit 21 for surface coal mining activities. See footnote
22.
[32] The Corps may approve other types of mining activity besides
valley fills under the Nationwide Permit 21 and individual permits for
surface coal mining.
[33] The amount within that range is determined using criteria spelled
out in West Virginia's regulations. These criteria include such
factors as the type of surface mining being proposed, the number of
excess spoil fills, other geologic and hydrologic characteristics of
the site, and the compliance history of the operator, among other
things.
[34] In 2008, the West Virginia legislature authorized, but did not
separately fund, the Special Reclamation Water Trust Fund (Water Trust
Fund). Since July 2008, coal tax revenues based on a tax rate of 1.5
cents per ton have been paid into the Water Trust Fund, while coal tax
revenues based on a rate of 12.9 cents per ton have been paid into the
Special Reclamation Fund. According to the state, payments for both
land and water reclamation will be made from the Special Reclamation
Fund until 2018, at which time payments for water treatment would be
made from the Water Trust Fund.
[35] Permits are renewed after 5 years.
[36] Bonds for permits issued prior to July 1, 1991, were $1,500 per
acre, while those issued after are $3,000 per acre.
[37] According to state regulation, the Reclamation Fund Advisory
Board is to consist of five members appointed by the governor subject
to confirmation by the General Assembly, three of whom shall represent
the coal industry; one of whom shall be a representative of the
director to the Department of Mines, Minerals and Energy; and one of
whom shall be a member of the public without any coal industry
interests.
[38] Acid mine drainage is acidic water rich in heavy metals that
forms through the chemical reaction of surface water (rainwater,
snowmelt, and pond water) and shallow subsurface water with rocks that
contain sulfur-bearing minerals, resulting in sulfuric acid. Acid mine
drainage commonly flows from or is caused by surface mining, deep
mining, or coal refuse piles. According to EPA, there are a number of
major environmental problems caused by acid mine drainage: (1)
disrupts growth and reproduction of aquatic plants and animals, (2)
diminishes valued recreational fish species, (3) degrades outdoor
recreation and tourism, (4) contaminates surface and groundwater
drinking supplies, and (5) causes acid corrosion of infrastructure
like wastewater pipes.
[39] Tennessee Federal Regulatory Program, 72 Fed. Reg. 9616 (Mar. 2,
2007).
[40] A new director of OSM was confirmed subsequent to this
announcement. The agency's 2010 evaluation year is from July 1, 2009,
through June 30, 2010.
[41] In commenting on a draft of this report, West Virginia noted that
it conducted additional inspections not counted by OSM, including site
visits related to contract monitoring and water treatment activities.
[42] In-lieu-fee arrangements are often sponsored by public or
nonprofit entities. Under agreements with the Corps, in-lieu-fee
sponsors receive payments from multiple operators required to perform
compensatory mitigation. Then, at a later date, the sponsors use these
funds to implement compensatory mitigation projects.
[43] The Corps, Mitigation for Impacts to Aquatic Resources from
Surface Coal Mining, (May 7, 2004).
[44] EPA's Region 3 includes Virginia and West Virginia, as well as
Delaware, the District of Columbia, Maryland, and Pennsylvania. Region
4 includes Kentucky and Tennessee, as well as Alabama, Florida,
Georgia, Mississippi, North Carolina, and South Carolina.
[45] EPA, Mountaintop Mining/Valley Fills in Appalachia Draft
Programmatic Environmental Impact Statement, U.S. EPA Region 3, 9-03-R-
00013 (2003). The draft PEIS was prepared by EPA, the Corps, OSM, the
U.S. Fish and Wildlife Service, and the West Virginia Department of
Environmental Protection. The purpose of the PEIS was to evaluate
options for improving agency programs under the Clean Water Act,
SMCRA, and the Endangered Species Act that will contribute to reducing
the adverse environmental impacts of mountaintop mining operations and
excess spoil valley fills in Appalachia.
[46] Steven N. Handel, "Terrestrial Plant (Spring Herbs, Woody Plants)
Populations of Forested and Reclaimed Sites." Appendix in Mountaintop
Mining/Valley Fills in Appalachia, Draft Programmatic Environmental
Impact Statement, Region 3, U.S. Environmental Protection Agency.
(Available from: [hyperlink,
http://www.epa.gov/region3/mtntop/eis2003appendices.htm#appe].)
[47] The nature of the plant communities that are found on reclaimed
mine sites is likely to affect the types and diversity of animals that
inhabit those sites. According to the 2003 draft PEIS, the mix of bird
species in the study area tended to be affected by the presence of
mined or reclaimed mine lands compared with unmined land. Similarly,
the mix of amphibian and reptile populations was affected by the
presence of mining.
[48] OSM directive TSR-16, Reforestation of Title IV and Title V Mined
Lands (June 10, 2008) available at [hyperlink,
www.osmre.gov/guidance/directives/directive931.pdf.
[49] Federal agency signatories to the reforestation initiative
include the Forest Service and the Natural Resources Conservation
Service in the Department of Agriculture; the Fish and Wildlife
Service, the Geological Survey, and OSM in the Department of the
Interior; and the National Energy Technology Laboratory in the
Department of Energy.
[50] Gregory J. Pond, Margaret E. Passmore, Frank A. Borsuk, Lou
Reynolds, and Carole J. Rose, "Downstream effects of mountaintop coal
mining: comparing biological conditions using family-and genus-level
macroinvertebrate bioassessment tools." Journal of the North American
Benthological Society, vol. 27, no. 3 (2008). The Journal identifies
the authors as EPA Region 3 scientists.
[51] These 79 permit applications are in addition to a set of 48
section 404 permit applications that EPA reviewed earlier in 2009. EPA
raised environmental concerns with 6 of the 48 applications.
[52] 74 Fed.Reg. 48952.
[53] The base flow of a stream is the "fair weather" flow, which is
largely made up of ground water rather than runoff from precipitation.
[54] Flood Advisory Technical Taskforce, Runoff Analyses of Seng,
Scrabble, and Sycamore Creeks (June 14, 2002).
[55] West Virginia Regulatory Program, 68 Fed. Reg. 40157-40159 (Jul.
7, 2003) (codified at W. Va. Code R. § 38-2-5.6 (2009).
[56] From a statement the Secretary of West Virginia's Department of
Environmental Protection submitted to the Senate Committee on
Environment and Public Works Subcommittee on Water and Wildlife for a
June 25, 2009, hearing titled "The Impacts of Mountaintop Removal Coal
Mining on Water Quality in Appalachia."
[57] In commenting on a draft of this report, OSM noted that it had
conducted an evaluation of the state's storm run-off analysis in March
2009. OSM's full evaluation report is on the Web at [hyperlink,
http://arcc.osmre.gov/cfo/SWORA2008.pdf]. In its comments on a draft
of this report, the Kentucky Department for Natural Resources noted
that the state has regulations in place for flooding analysis and the
assurance of no change in pre-mining, during, and post-mining water
flows.
[58] [hyperlink, http://www.gao.gov/products/GAO-10-21].
[59] Specifically, the OSM report on Kentucky found that state
regulators had placed a greater emphasis on the amount of spoil
material returned to the mined-out area and not enough emphasis on the
post-mining land configuration, land use, slope stability, and
drainage controls. In commenting on a draft of this report, Kentucky
stated that the sites evaluated by OSM were returned to approximate
original contour despite the approval for a variance. Similarly, the
OSM report on West Virginia concluded that the state's approximate
original contour determinations should give more attention to large,
post-mining changes in elevation in relation to the pre-mining relief;
the amount and location of spoil placed outside the mined area; and
land configuration.
[60] SMCRA was enacted on August 3, 1977, and the applicable
amendments were passed on November 5, 1990.
[61] The use of civil penalty funds is subject to authorization in an
annual appropriation act or other relevant statute.
[62] A January 2009 court decision from the Northern District of West
Virginia ruled that the West Virginia Department of Environmental
Protection was required to apply for section permits for discharges at
18 forfeited mine sites at which it had taken over reclamation. In
August 2009, the Southern District of West Virginia issued a similar
ruling with regard to three additional bond forfeiture sites.
[63] A TMDL is the maximum amount of a pollutant that can enter into a
body of water without violating the relevant water quality standard.
[64] A "hazardous substance" refers to material that is listed or
would be characterized as hazardous under CERCLA, the Clean Water Act,
RCRA, the Clean Air Act, or the Toxic Substances Control Act.
[65] Specifically, EPA officials told us that they have never used
CERCLA to conduct a removal action--an emergency response to address
threats to people and the environment in the short term--to address an
issue at a former surface coal mine site and have never listed a
former surface coal mine site on the National Priorities List--EPA's
list of some of the most contaminated sites in the country.
[66] Although EPA has not used CERCLA to respond to mine pollution
released from former mine sites, it has conducted removal actions
under CERCLA to respond to pollution associated with coal production.
For example, EPA used CERCLA to respond to a 2000 coal slurry spill
resulting from an impoundment failure at a coal preparation plant in
Martin County, Kentucky. EPA also used CERCLA to respond to a December
22, 2008, breach in a dike at the Tennessee Valley Authority Kingston
Fossil Plant that resulted in the release of 5.4 million cubic yards
of coal combustion residue into the nearby Emory River. The spill
covered more than 300 acres, made 3 homes uninhabitable and damaged 23
other homes, plus roads, rail lines, and utilities. In addition, EPA
has used CERCLA to respond to releases of hazardous substances that
were stored at former surface mines but that were not directly related
to the surface mining operation.
[67] RCRA establishes a framework for regulation of hazardous and
solid wastes: Subtitle C establishes federal "cradle-to-grave"
regulation of hazardous wastes, and Subtitle D sets out minimum
standards for state management of solid waste in landfills. RCRA
includes provisions governing "corrective action"--cleanup--of
hazardous wastes at covered facilities, and also authorizes EPA to
issue orders requiring persons contributing to an imminent hazard to
take necessary actions to clean up hazardous or solid waste releases.
An amendment to RCRA, the Bevill amendment, exempted wastes from the
extraction, processing and combustion of coal, among others, from the
definition of hazardous waste pending further study by EPA. Based on
these studies, EPA determined that regulation of these materials as
hazardous wastes was not warranted and thus continued the exemption of
these materials from the definition of hazardous waste. The Bevill
amendment does not necessarily apply to every waste generated by a
coal mine; any hazardous waste not exempted under the Bevill amendment
would be subject to regulation under RCRA Subtitle C. Furthermore,
waste exempted under the Bevill amendment, as well as any other waste
that meets the definition of solid waste under RCRA, can in some
circumstances be addressed under section 7003 of RCRA. Section 7003 of
RCRA allows EPA to restrain the handling, storage, treatment,
transportation or disposal of any solid waste or hazardous waste that
may present an imminent and substantial endangerment to health or the
environment. Thus, for example, EPA could prevent the storage of coal
waste in an impoundment on a surface coal mine if such storage
presents an imminent and substantial danger.
[68] The placement of coal combustion residue on surface mines for
reclamation purposes is currently regulated in general terms under
SMCRA in that any material used to reclaim a permitted mine site must
comply with SMCRA permitting requirements and performance standards.
In commenting on this report, OSM noted that some states allow
disposal on mine sites. In May 2000 EPA determined that more specific
regulation of the placement of such material on a mine site might be
appropriate under the solid waste provisions of RCRA or under SMCRA.
In 2007 OSM issued an advance notice of proposed rulemaking to
regulate such wastes specifically under SMCRA and drafted but did not
publish a proposed rule.
[69] See footnote 66. The surface impoundment at the Kingston Fossil
Plant was not located on a surface mining operation, but at a coal
processing plant.
[70] A highwall is a cliff of exposed rock left after a surface mining
operation has cut into the landscape.
[71] SMCRA authorizes both "exceptions" and "variances," to AOC
requirements, but federal and state regulations use only the term
"variance," as we do for consistency. The AOC requirements may not
apply to permits to remine a previously mined site. The reason is that
a previously mined site may not have enough material to regrade the
site to the AOC standard.
[72] See GAO, Surface Coal Mining: Characteristics of Mining in
Mountainous Areas of Kentucky and West Virginia, [hyperlink,
http://www.gao.gov/products/GAO-10-21] (Washington, D.C.: Dec. 9,
2009). According to Kentucky's and West Virginia's data, most recently
issued surface coal mining permits issued required the land to be
reclaimed to AOC, although both states also granted some permits with
AOC variances. Specifically, 76 percent (or 294 permits) of the 388
permits that Kentucky issued from January 2002 through July 2008
required the operator to reclaim the land to AOC. The remaining 24
percent (or 94 permits) contained 99 AOC variances. In West Virginia,
85 percent (or 181 permits) of the 212 permits issued between January
2000 and July 2008 required the operator to reclaim the land to AOC.
The remaining 15 percent (or 31 permits) contained 33 AOC variances.
We did not collect data on AOC variances for Virginia for the purposes
of that report or for this review. However, in commenting on a draft
of this report, Virginia said that "variances from AOC have
traditionally been, and currently are, rare."
[73] The 5-year period of responsibility applies to regions of the
country, such as Appalachia, that receive at least 26 inches of rain
per year. In drier regions, the period of responsibility is 10 years.
[74] Craig B. Giffin, West Virginia's Seemingly Eternal Struggle for a
Fiscally and Environmentally Adequate Coal Mining Reclamation Bonding
Program, 107 W. Va. L. Rev. 105 (2004); See West Virginia Regulatory
Program, 61 Fed. Reg. 6511-6517 (Feb. 21, 1996).
[End of section]
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