Today, Monday November 30^th, the Federal Office of Surface Mining Reclamation and Enforcement (OSM) took a first step to clarify how they will improve their protection of streams and also clarify the rules around returning a mined area to it’s Approximate Original Contour (AOC).  This first step is really just OSMRE gathering public opinions around how OSM should improve their protection of streams and the rules around returning mined areas back to AOC. So to be clear, this is not the OSM requesting comments on a proposed change to either the Stream Buffer Zone rule or the Approximate Original Contour rule. This is OSM collecting comments from the public on how OSM might change these rules and to the extent possible OSM would like the comments to incorporate scientific evidence to support the suggested changes.

You can download the federal notice here.

All of these changes are building off of the Memorandum of Understanding developed on June 11^th of this year between the Environmental Protection Agency, the Department of the Interior (which administers OSM) and the Army Corps of Engineers. This Memorandum of Understanding is a road map for how these three government agencies will relate to each other as they improve their communication when evaluating and issuing coal mining permits.

Part of the Memorandum of Understanding said that the Obama Administration would through the legal system have the 2008 Bush Administration changes to the Stream Buffer Zone rule thrown out. However, this summer the courts rules against the Obama administrations efforts and said that if the Obama administration wanted to change the 2008 Bush administration’s Stream Buffer Zone rule change then they needed to go back through the long administrative process for such rule changes.

You can get a more detailed history of the Stream Buffer Zone rule by reading the history section of the Federal Registry, but essentially the 1983 Stream Buffer Zone rule said the coal companies were not allowed to mine within 100 feet of a perennial or intermittent stream unless they could show that their mining “would not violate State or Federal water quality standards and would not adversely affect the water quantity, quality or other environmental resources of the stream.”

The 2008 Bush administration changes did require coal companies, to the extent possible, to minimize the damage to streams when mining within the 100 foot Buffer Zone, but they also exempted certain activities from the Buffer Zone requirements such as if a stream will cease to exist in its original location as a result of the mining activity. These activities include “stream-channel diversions, construction of stream crossings, construction of sedimentation pond embankments, and construction of excess spoil fills and coal mine waste disposal facilities.”

As for the requirement that coal companies return the land to it’s Approximate Original Contour as a part of the surface mining reclamation, this has never been clearly defined. Just how much of the mine waste dirt and rock needs to be put back onto the mine site? And in Kentucky AOC does not take into consideration elevation. So a coal company can take a mountain down 300 or 500 feet but as long as the original angle from the streambed to the top of the mountain, or slope of the side of the mountain, is “approximately” maintained then for reclamation purposes the mine has achieved their AOC requirements. Meanwhile the mountain is 300 or 500 feet lower.

In 1999 OSM did a study on AOC here in Kentucky, you can read about their findings here.

If more of the waste rock and dirt were required to be placed back on the mine site and if the coal company were required to match the original elevation then less of the waste dirt and rock would be dumped over the side of the hills and into the streams below.

Here is what the federal register says about submitting comments:

DATES: To ensure consideration, we must receive your comments on or before December 30, 2009.

ADDRESSES: You may submit comments by any of the following methods, although we request that you use the Federal e-rulemaking portal if possible:

• Federal e-Rulemaking Portal: http://www.regulations.gov. The document has been assigned Docket ID: OSM–2009–0009. Follow the online instructions for submitting comments.

• Mail, hand-delivery, or courier to: Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 252–SIB, 1951 Constitution Avenue, NW., Washington, DC 20240. Please include the Docket ID (OSM–2009–0009) with your comment.