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An evaluation of approximate original contour variances and postmining land uses in Virginia |
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September 1999
A report prepared by the U. S. Department of the Interior,
Office of Surface Mining,
Big Stone Gap Field OfficeCONTENTS I. INTRODUCTION 1 II. CONCLUSIONS AND RECOMMENDATIONS 1 APPENDIX A 4 Disposition of Public Comments 5 APPENDIX B 7 DMME/DMLR/OSM ACTION PLAN FOR RESOLVING MOUNTAINTOP MINING ISSUES 8 I. PURPOSE 8
II. OSM'S EVALUATION OF APPROXIMATE ORIGINAL CONTOUR AND POSTMINING LAND USE IN VIRGINIA8 A. Approximate Original Contour 8 B. Mine Classification and Inventory 9 C. Permit Findings 9 Expected need and market data 9 Watershed Improvement findings 9
D. Postmining Land Uses 10 III. OSM Oversight and Technical Assistance 10 IV. Modification to this Agreement 11The purpose of this report is to finalize the draft report dated May 1999 entitled "AN EVALUATION OF APPROXIMATE ORIGINAL CONTOUR VARIANCES AND POSTMINING LAND USES IN VIRGINIA." The Office of Surface Mining (OSM), with the assistance of the Virginia Department of Mines, Minerals and Energy, Division of Mined Land Reclamation (DMME/DMLR), completed a draft oversight evaluation report on Virginia's approved surface mining regulatory program. The report focused on AOC variances and PMLU's associated with mountaintop and steep slope mining operations. The report was sent out for public comment on June 2, 1999. The public comment period ended on July 2, 1999.
We received comments from several government agencies, one special interest group, and one individual. We would like to take this opportunity to thank everyone who commented on the draft report. The comments were useful in helping us assess public interest on this topic and also helped OSM and the State formulate an action plan addressing the weaknesses that were identified during the review. We would also like to thank the Virginia Department of Mines, Minerals and Energy, Division of Mined Land Reclamation (DMME/DMLR) for its cooperation and assistance both during the review and in formulating the plan addressing the weaknesses that were identified in the report. Appendix A (see page 4) contains a summary of all the public comments received on the report and OSM's responses. Appendix B (see page 7) contains the action plan developed as a result of the program review.
Rather than republish the extensive report, we decided it would be more beneficial to focus on resolving the few issues that were identified. The remainder of this document provides a summary of the conclusions and recommendations from the draft report, responses to comments and our action plan addressing the identified weaknesses is included in Appendix B.
II. CONCLUSIONS AND RECOMMENDATIONS
OSM is adopting, with minor change, the draft report from May 1999 as a final document. The action plan included as Appendix B contains the corrective actions and a schedule for implementing the changes that will be taken as a result of the review. A summary of the original findings, conclusions, and recommendations are reprinted below.
While mountaintop removal and steep slope mining in Virginia share some of the characteristics of mining practices in the neighboring states of West Virginia and Kentucky, the scale of such operations in Virginia is much smaller. Mountaintop removal sites account for less than one percent of the permits and three percent of the total permitted acreage in Virginia, while permits with variances for steep slope mining account for four and a half percent of the permits and four percent of the total permitted acreage. Overall our study found that Virginia is successfully reclaiming mine sites and is limiting the amount of material disposed of in excess spoil fills.
The weaknesses that we found deal with the administration of various aspects of the Virginia program and not with the on-the-ground reclamation. In general, OSM agrees that reforms, as described in this report, which have been voluntarily initiated by DMME/DMLR to address the weaknesses are appropriate. OSM also believes that these reforms should be applied prospectively, and that existing mining operations, some of which were initially permitted many years ago, should be altered only to the extent practicable. DMME/DMLR has agreed to review all existing permits with variances and apply these reforms prospectively.
Based on an analysis of the information gathered during the oversight process, we developed the following conclusions, actions, and recommendations:
Since the draft report was written, OSM and DMME/DMLR have determined that Virginia needs additional guidance for determining AOC. A workgroup has been formed to develop the additional guidance. Once a draft document is developed, OSM and DMME/DMLR will determine if the changes have to be processed through the Virginia Administrative Process Act and/or as a program amendment. (see page 8)
(Summary and Disposition of Comments)
Disposition of Public Comments
Comment: One commenter questioned whether state policies or procedures used in determining when "the watershed control of the area will be improved by granting such a variance" are adequate to protect threatened and endangered species. Specifically, the commenter requests that guidelines be developed to achieve this purpose.
Response: OSM believes that adequate safeguards exist in the approved Virginia program to address the commenter's concerns. Both the Virginia Department of Game and Inland Fisheries and the U. S. Fish and Wildlife Service are afforded an opportunity to comment on each application for a permit, significant revision, or permit renewal. These agencies are allowed to make recommendations on species specific protective measures.
Comment: One commenter recommended that OSM expand the scope of its oversight report to address the creation of valley fills, damage to natural watercourses, stream buffer zones, and riparian vegetation.
Response: While this report addressed excess spoil from the point of AOC restoration, it was not intended to address the engineering or design of excess spoil disposal fills, damage to natural watercourses, stream buffer zones or riparian vegetation. Due to litigation in other states, OSM, the U. S. Army Corps of Engineers, U. S. Environmental Protection Agency, West Virginia Department of Environmental Protection, and U. S. Fish and Wildlife Service are in the process of developing an Environmental Impact Statement (EIS) that addresses these concerns. Virginia operations are included in the studies addressing these areas. OSM chose not to duplicate the efforts of the EIS study by including the areas listed by the commenter in this oversight study.
Comment: One commenter believes that National Environmental Policy Act (NEPA) requirements should be applied to State permitting actions. Specifically, the commenter believes that NEPA requirements should be used to assess impacts of proposed alternative postmining land uses.
Response: Historically, Federal agencies overseeing approved state programs have determined that state permitting actions are not subject to NEPA. This position has been upheld by the Federal court system.
Comment: One commenter objected to OSM's characterization that most of "the flaws" in the Virginia program are administrative in nature and will be reformed prospectively. The commenter asserts that DMME and OSM have allowed permits to be "improvidently issued" and lands inadequately reclaimed. Furthermore the commenter requests that we require all permits with variances to be reclaimed to appropriate standards regardless of the site's status.
Response: The study documents that some permits were issued with AOC variances and improper postmining land uses. The action plan requires reclaiming active mining permits to appropriate standards. Permit bonds will not be released on the active mine sites until the AOC variance/postmining land use conflicts are resolved. DMME/DMLR is currently inventorying all active permits to determine if additional permits exist that require revisions to bring them into compliance with program requirements. DMLR will complete the inventory by September 30, 1999. We are not requiring redisturbance of permits where reclamation has been completed and the postmining land-use implemented.
Comment: A commenter suggested that we amend our draft report to list the weaknesses that we found, and particular "improvidently issued" permits in the report along with a schedule for completing actions to correct inadequate reclamation.
Response: OSM believes that the report does address the weaknesses that we identified as well as the permits from our sample that had variances and improper land uses. As previously mentioned, our action plan addresses corrective actions. (see page 7)
Comments: Several commenters voiced support for continued mining in the Commonwealth or provided "no impact" comments. Several commenters referred to remining as a means to further the reclamation interest in Virginia as well as to achieve other objectives such as reduced costs for road construction.
Response: We agree that remining plays an import part in the continued effort to reclaim scars from past mining.
(Action Plan)
The Office of Surface Mining Reclamation and Enforcement (OSM) and the Virginia Department of Mines, Minerals and Energy, Division of Mined Land Reclamation (DMME/DMLR) recognize that there are outstanding issues and questions related to mountaintop mining practices which need to be addressed as priority items between the two agencies. The following action elements include all issues identified in "OSM's Evaluation of Approximate Original Contour and Postmining Land Use in Virginia." As a result of this agreement, both parties are committing to activities which should ensure the timely and effective resolution of all known issues relating to mountaintop mining practices in Virginia.
II. OSM'S EVALUATION OF APPROXIMATE ORIGINAL CONTOUR AND POSTMINING LAND USE IN VIRGINIA A. Approximate Original ContourIssue: OSM's oversight evaluation found that most mountaintop removal sites in Virginia have been reclaimed to a configuration closely resembling the approximate original contour (AOC) even though an AOC variance has been approved. Also, the evaluation revealed that Virginia does not have written guidelines, policies, or procedures for determining when a mining operation's reclamation plan satisfies requirements established for AOC.
Proposed Action: In order to achieve consistency within the Department and to help achieve consistency among individual states, DMME/DMLR has agreed to develop guidelines on determining whether or not a reclaimed site is restored to AOC. DMME/DMLR and OSM are developing these guidelines with input from stakeholders utilizing the DMME/DMLR permit streamline and standardization workgroup. DMME/DMLR included the AOC issue on the permit streamline and standardization workgroup's July 28, 1999, agenda. The workgroup will work diligently and provide a draft document by the end of October 1999. Once a draft document has been developed a DMME/DMLR and OSM will determine if the change must be processed through the Virginia Administrative Process Act (APA) and/or as a program amendment.
Action Dates: October 31, 1999, Draft Document completed. November 5, 1999, Decision made and process begins to meet APA guidelines and/or program amendment requirements. B. Mine Classification and InventoryIssue: DMME/DMLR has classified a number of different mining types as "mountaintop removal" operations. This practice creates confusion because "mountaintop removal mining" is specifically defined in Virginia's approved program.
Proposed Action: Although a database tracking system for mountaintop removal operations and associated waivers is not required by State or Federal laws, the DMME/DMLR is revising its permitting database to clearly identify which sites should be classified as "mountaintop-removal mining" operations. Through its inspection workforce, the DMME/DMLR is reviewing all of its current permits to assure that the proper classification of mining type, variance status, and postmining land-use is reflected in the database.
Action Date: September 30, 1999, task will be completed.
C. Permit Findings: Lack of Expected Need and Market Data
Watershed Improvement Finding
Issues: To satisfy the requirement of documenting the existence of a need and a market for designated postmining land uses, DMME/DMLR accepts letters in which land owners of the affected land request the postmining land use. OSM has determined that additional information is required to satisfy the "need and market data" requirements. Also, OSM did not locate DMME/DMLR's written findings documenting "that watersheds will be improved" when permits were approved with steep slope AOC variances.
Proposed Actions: Expected need and market data - DMME/DMLR committed to developing procedures, working through the permit streamline and standardization workgroup to address this oversight. DMME/DMLR included the "need and market data" issue on the permit streamline and standardization workgroup's July 28, 1999, agenda. The workgroup will work diligently and provide a draft document by the end of October 1999. Once a draft document has been developed a DMME/DMLR and OSM will determine if the change must be processed through the Virginia Administrative Process Act (APA) and/or as a program amendment.
Watershed Improvement findings - DMME/DMLR has already revised its "findings" document to capture the information required by this section.Proposed Action Dates: Expected need and market data
October 31, 1999, Draft Document completed.November 5, 1999, Decision made and process begins to meet APA guidelines and/or program amendment requirements.
Watershed Improvement Findings
Corrective actions have been implemented.
D. Postmining Land UsesIssue: OSM's oversight evaluation found that DMME/DMLR has issued mountaintop-removal permits and other permits with AOC variances with unauthorized postmining land uses--"forestry" and "fish and wildlife habitat."
Proposed Action: DMME/DMLR has changed its findings document to list the approved postmining land uses along side of the specific variance types. This procedure should ensure that variances from AOC are granted only with authorized postmining land uses.
Additionally, DMLR is conducting an inventory of postmining land uses as part of the action required under item B above. Upon completion of the inventory conducted pursuant to item B and this section. DMME/DMLR will require a permit revision to correct any inappropriate postmining land use. The permitting requirements of the approved State program will determine the completion date of these efforts, but in no event, will bonds be released where the postmining land use is not allowed by the State program.
Action Date: Actions regarding the issuance of new permits have been implemented.
September 30, 1999, the inventory will be completed on existing permits. Revisions to existing permits will be required by October 30, 1999.
III. OSM Oversight and Technical AssistanceOSM and DMME/DMLR agree that OSM oversight of compliance with the actions in this agreement will be conducted through spot sampling of activities in the permitting process. OSM will provide assistance to DMME/DMLR if requested.
Additionally, OSM is currently developing policy guidance for approving alternative postmining land uses. This information will be shared with states as soon as the guidance is finalized.
Concurrence by:
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Roger L. Williams, Acting Division Director
Virginia Division of Mined Land Reclamation; Department of Mines, Minerals and Energy
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Robert A. Penn, Director
Big Stone Gap Field Office
Office of Surface Mining
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