Click here for their press release.

A video of their 40-minute press conference is below.

There is an important new protocol now in place for lessening the amount of toxic mining wastes dumped into streams. If enforced, it could help reduce significantly the destruction of our waterways. That is a good thing,

Titled the “fill placement optimization process” the document establishes a protocol (it reads largely like an engineering paper) for determining the amount of mining waste and where it should end up — first on the site being mined, then on adjacent abandoned mines and possibly in upper valley elevations (above stream level). It potentially diverts mining wastes from streams but does not ban dumping into streams. Basically, it establishes a possible protocol for enforcing existing law.

That’s the rub: state officials could (and should!) have been enforcing these laws all along had they chosen to do so. And the industry could have been obeying these laws. Instead, state officials have routinely granted waivers of the stream buffer zone (165 waivers out of a total of 251 new permits issued in 2005 and 2006) and reclamation laws. There is no evidence that they will not continue to do so, and this “new” policy — which the state is “encouraging” coal companies to follow — means nothing if the state and federal agencies are not going to require it. There are still plenty of loopholes.

That’s why the Stream Saver Bill and the Clean Water Protection Act are still needed. Coal companies should be prevented by law from filling our streams with their toxic wastes, not just “encouraged” to do so.

And given the Science journal study cited in our January 7 blog post, an outright prohibition of mountaintop removal and valley fills is the only real guarantee that our streams (and land and forests and people) will be protected and preserved.

We applaud the efforts of Tom FitzGerald and the Kentucky Resources Council to move the enforcement agencies a step closer to real enforcement of the law. Now it is up to enforcement officials to prove there will be action behind these words.

An active mountaintop removal site near the Floyd/Magoffin county border in Eastern KY

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.

A federal judge today refused to reverse a last-minute Bush administration act that did away with an important rule designed to protect streams from mining.

The Stream Buffer Zone (SBZ) rule – in place since 1983 – required coal companies to keep the impact of mining at least 100 feet from streams. Though that rule was generally ignored by federal and state mining agencies, it provided legal grounds for citizens to challenge valley fill permits. Therefore, the Bush administration went through a drawn-out process to re-write the rule in a way to remove the protection and actually give incentives to coal companies to mine in streams.

Standing in what once was a stream bed, Eugene Mullins is dwarfed by a valley fill being pushed further and further downstream.

A few months after taking office, the Obama administration said it would intervene in an ongoing lawsuit asking the courts to reverse the Bush action. But in turning down the request, U.S. District Judge Henry Kennedy Jr. likened that to changing the rules without proper process or public input.

The National Mining Association applauded Kennedy's decision. Spokesman Luke Popovich told the Associated Press that the Bush administration spent better than five years rewriting the stream buffer rule, including taking public input. However, the AP did not report that the Bush administration received tens of thousands of letters about their proposal to eliminate the SBZ rule, the vast majority opposing the change.

The Obama administration may appeal the ruling. It could also initiate its own rule-making process to re-write and restore the SBZ rule. It could also support legislation in Congress that would strengthen the Clean Water Act with the same goal of stopping the dumping of toxic mining wastes into Appalachian streams.

Want to help do something about this? Start here to learn about the Clean Water Protection Act, and here for the Appalachian Restoration Act.

 Some facts about the dumping of mining wastes in streams.

• more than 1,400 miles of streams in Kentucky have been eliminated (buried under millions of tons of waste) or severely damaged by the dumping of mining wastes into valleys (figure  compiled from the reports of several federal agencies);
• stopping these valley fills, or significantly restricting their size, would have a negligible effect on the cost of electricity  (U.S. EPA based on the findings of economic consultants);
• selenium, a carcinogen, has been found only in those Appalachian streams below valley fills (U.S. EPA)
• sedimentation, largely from mining, is by far the worst pollutant in most eastern Kentucky streams (Ky. Division of Water, research by Eastern Kentucky University and other studies);
• Reconstructed channels do not come close to replacing the vital ecological functions of natural headwater streams, services that include water quality, flood control and providing nutrients for downstream aquatic life (U.S. EPA, Dr. Margaret Palmer, a stream restoration expert; Dr. Nathaniel Hitt, researcher at Virginia Tech University).
  

The Obama administration made a major announcement today to clarify its approach to protecting the public from the dumping of mining wastes into streams.

Officials from the U.S. Environmental Protection Agency, U.S. Department of Interior and Army Corps of Engineers participated in a press conference to describe a new "Interagency Action Plan on Appalachian Surface Coal Mining."

"The steps we are taking today are a firm departure from the previous administration's approach to mountaintop coal mining, which failed to protect our communities, water, and wildlife in Appalachia,” said Interior Secretary Ken Salazar. “By toughening enforcement standards, by looking for common-sense improvements to our rules and regulations, and by coordinating our efforts with other agencies, we will immediately make progress toward reducing the environmental impacts of mountaintop coal mining.”

The agreement is significant in that, for the first time, the federal government is acknowledging through policy the deep and long-term consequences of mountaintop removal and valley fills. For example, officials said they would look at the cumulative impact of valley fill permits on water quality and look at entire watersheds instead of isolated streams.

"They mentioned looking at cumulative impacts, and looking at entire watersheds, which are things that have never been considered before.”

“And the presence of selenium and manganese in waters below valley fills is well documented but has not been considered in making decisions about issuing permits. Just acknowledging the presence of these pollutants in very important,” said KFTC Fellow Teri Blanton.

Some of the short-term steps the agencies said they would do include:

• within 30 days begin the process for revoking the "nationwide permit" for valley fills, the legal framework under which the Corps of Engineers rubber stamped many valley fill permits (something a federal judge has already ordered be done);
• continue to work for the reinstatement of the Stream Buffer Zone rule (that requires mining impacts to be kept 100 feet from a stream) and issue guidelines to clarify its implementation;
• work with state agencies "to strengthen state regulation, enforcement, and permitting of surface
  mining operations" under various sections of the Clean Water Act.
• involve the U.S. Fish and Wildlife Service in policy and decision-making related to valley fills and their environmental impacts.
  

 The agencies also announced some long-term goals, which include reviewing "existing regulatory authorities and procedures to determine whether regulatory modifications should be proposed to
better protect the environment and public health from the impacts of Appalachian surface coal mining." This could include provisions of the 1977 Surface Mine Control and Reclamation Act such as the requirement that post-mined land be returned to approximate original contour.

The Associated Press reported that administration officials called officials with state enforcement agencies in the affected states to deliver a different message. "The purposes stated today was to actually make [the permit process] more effective, make it more efficient, make it more transparent. And say yes more quickly and no more quickly,"  Len Peters, Kentucky's energy and environmental secretary, told the AP.

“Overall, the interagency agreement is a step in the right direction. It’s always a good thing to protect people and water," Blanton pointed out. "But this announcement is not an end to mountaintop removal. As Wendell Berry has stated, you can’t regulate an abomination.” 

Resources and media:

• Press release from the federal agencies
• Interagency Memorandum of Understanding
• Analysis from the Kentucky Resources Council
• solveclimate.com: Appalachia Says 'Not Good Enough' to Obama Mountaintop Mining Plan
• Lexington Herald-Leader: Mountaintop mining requests could face more stringent review
• The Courier-Journal: U.S. vows strict mountaintop mine oversight
• WYMT-TV News: President Obama Looks To Toughen Surface Mining Oversight
• Washington Post: Mountaintop Mining To Get More Scrutiny
• Ken Ward's Coal Tattoo blog: Obama's plan for mountaintop removal
• Associated Press: Plan targets fallout from mountaintop mining
• Judy Petersen at KentuckianaGreen,com: The Latest Salvo Over Mining Permits
  

• New York Times: Departments to Toughen Standards for Mining

Coalfield residents are applauding an announcement today by the U.S. Department of Interior that it will attempt to vacate a last-minute Bush administration rule change that encouraged coal companies to dispose of their waste in streams.

The Stream Buffer Zone (SBZ) rule had been in place since 1983 and prohibited the impacts of coal mining from coming within 100 feet of a stream. But the change pushed through in December by the outgoing administration eliminated those controls if companies mined in the stream.

"It's a great day for the fragile ecosystem of the Appalachians as well as the quality of life for the people who live here," said Todd Bailey, a resident of Hueysville in Floyd County and member of Kentuckians For The Commonwealth.

Secretary of the Interior Ken Salazar said that he has determined the Bush administration action to be “legally defective” and would direct the Justice Department to ask the U.S. District Court to vacate the rule due to this deficiency.

“We must responsibly develop our coal supplies to help us achieve energy independence, but we cannot do so without appropriately assessing the impact such development might have on local communities and natural habitat and the species it support,” Salazar said.

“We hope that this announcement leads to the full and fair enforcement of the law,” a statement issued by KFTC read, calling this an important first step. “It’s not too much to ask that a law in place since 1983 be enforced.”

Elmer Lloyd of Cumberland (Harlan County) also welcomed the announcement — if there will be enforcement behind it.

"This is a very good thing. They sure need some laws on the books where they can control this a little better,” said Lloyd who had a private pond destroyed because of the dumping of mining waste behind his home. “If they get the inspectors to follow up on it they might save a little of this country. It shouldn’t be hard to do something right."

KFTC said that it was encouraged that four of Kentucky’s elected leaders — Gov. Steve Beshear, U.S. Reps. Ben Chandler and John Yarmuth, and Attorney General Jack Conway — took the bold step last fall of publicly opposing the Bush administration proposal to weaken the stream buffer zone.

As expected, the coal industry predicted all manner of dire consequences if they are made to obey the law. State Rep. Hubert Collins told the Lexington Herald-Leader that the action would raise the price of coal and spell economic disaster in Eastern Kentucky.

At least 1,400 miles of Kentucky streams and 35,000 acres of diverse hardwood forest have been destroyed of severely damaged from valley fills resulting from mountaintop removal and the failure of state and federal agencies to enforce the stream buffer zone and other mining laws.

Salazar said his agency intends to gather public comment "on how we can update and improve the Reagan-era rule. It is important that we ensure that SMCRA [Surface Mine Control and Reclamation Act] requirements are coordinated with Clean Water Act obligations that are administered by the U.S. Army Corps of Engineers and the Environmental Protection Agency."

“There is hope and optimism in the mountains and beyond today,” said Pam Maggard, a Knott County KFTC member. “Secretary Salazar has taken a first step to restore, to protect, and to enforce the stream buffer zone.”

Background and Media Coverage

• Charleston Gazette: Obama plans for mountaintop removal buffer rule unclear
• Lexington Herald-Leader:  Obama plans to reverse Bush rule on mountaintop removal
• The Washington Post: Salazar Seeks to Vacate Bush-Era Mining Rule
• Reuters: U.S. seeks to end Bush mountaintop coal mining rule
• WYMT-TV News: Possible Rule Reversal on Surface Mining
  
• Department of Interior announcement
• Secretary Salazar Remarks on Mountaintop Mining Rule

KFTC members, as witnessed on I Love Mountains Day, continue ongoing efforts to steer the Commonwealth away from coal-burning electricity and towards clean, renewable energy sources.  Based on this momentum, KFTC attempts to monitor all relevant legislation and has chosen to oppose or endorse some of the bills under consideration in the 2009 Kentucky General Assembly. 

KFTC ENDORSES:

House Bill 104   -   Senate Bill 100    “Stream Saver Bill”
  (Rep. Pasley)           (Sen. Stein)
Would prohibit dumping mining wastes into an intermittent, ephemeral or headwater stream or other state waters.  It directs that mining wastes be placed back on the site as part of the reclamation process (already required by state and federal law) or placed on a previously mined site — rather than pushed over the side of the hill into valleys and streams below.

House Bill 178  (Reps. Adkins, Steele)
Would reenact all elements of 2008’s House Bill 2, which KFTC endorsed last year.  House Bill 2 was passed by both chambers prior to midnight last year but was not enrolled as legislation until after that time, making it potentially vulnerable to legal challenge.

Senate Bill 51  (Sen. Harris)
Would authorize the Public Service Commission to require demand-side management plans for all utility companies under its oversight.

KFTC OPPOSES:

Senate Bill 13  -   House Bill 376
 (Sen. Leeper)        (Rep. Rudy and others)
Would eliminate state requirement that a federally approved permanent nuclear waste disposal site be identified prior to nuclear plant construction.  Thus, nuclear plants would be able to store hazardous waste on-site, endangering Kentucky communities.

House Bill 119  (Reps. Hall, Edmonds, Smith)
Would lower the number of required on-site mine emergency technicians for underground mines with fewer than 18 employees from two to one.  In response to widows of miners', UMWA's and KFTC's advocacy efforts, the number of required on-site METs was just increased to two in 2007.

House Bill 205  (Rep. Riggs)
Would greatly lower mining companies’ liability in civil lawsuits brought by citizens as a result of exposure to silica and mixed-dust.   Cancer and diseases similar to black lung, such as silicosis, may result from exposure to these dusts.
 
Senate Bill 55  (Sen. Jones)
Would allow all new coal-burning electricity plants and reconstructed plants to be eligible for House Bill 1 incentives, which are currently designated for alternative fuel and renewable energy facilities.

KFTC MONITORS ADDITIONAL BILLS:

KFTC’s Executive Committee monitors some bills without taking an official stance.  The committee meets every Monday night to review KFTC’s position and strategy on these bills.  If a KFTC member would like the organization to take an official position on a particular bill, please contact a Steering Committee or staff member Heather Mahoney.  This list below does NOT include all of the energy-related bills KFTC is monitoring, but only a few of them that could have major impact on our energy landscape.

House Bill 89  (Rep. Owens)
Would permit the Governor to add $2,000,000 to Low Income Home Energy Assistance Program funds if needed.

Senate Bill 52   and  Senate Bill 64
  (Sen. Jones)               (Sen. Jensen)
Both bills would establish requirements that improve mine safety.

Senate Bill 66 (Sen. Boswell)
Would amend existing law to include “tar sands” as among alternative transportation fuels eligible for tax incentives.

House Bill 285  (Rep. Adkins)
Expands some available tax incentives to newly constructed or modified coal-burning electricity plants with carbon capture or storage technologies.

House Bill 351 (Reps. Adkins, Pullin, Yonts)
Would require the state to assume liability for Kentucky Geological Service carbon sequestration projects.

Respond with comments to offer your opinion on these bills.  We'll keep you up to date through our Bill Tracker on their status.

For those of  you who have been trying to follow the twists and turns of the saga that has been the rule making of the changes to the Stream Buffer Zone rule, the good news is that so far the Bush administration has not changed the rule. As you will remember in the earlier blog post  there was an informal commenting period on the proposed new rule change up until November 23. Apparently part of the hold up is that the EPA needs to sign off on the proposed rule change and so far they have not made that move.

The thinking early on was that the rule change needed to be adopted 60 days before the next administration takes over, however after further research we now believe that since the rule change will likely cost less than 100 million dollars a year to implement then the rule only needs to be approved 30 days before the next administration takes over.

If you are trying to follow this issue there was a good article written in the Washington Post today that helps to diagram the situation for all of the new rule changes, not simply the Stream Buffer Zone rule change.

We are all paying close attention to see what actions the Bush administration will take in these final days.