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**Statement of Cindy Rank**

**to the Senate Committee on Energy and Natural Resources**

**of the United States Senate**

## **on** 

THE SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977:

POLICY ISSUES THIRTY YEARS LATER

### November 13, 2007

Good afternoon Chairman Bingaman and members of the Committee. Thank you
for the opportunity to speak with you today. I am Cindy Rank, a citizen
volunteer with the West Virginia Highlands Conservancy (WVHC) since
1979.

The West Virginia Highlands Conservancy is a nonprofit membership
organization with approximately 1,800 members, most of whom reside in
West Virginia. Officially incorporated in 1967, the Highlands
Conservancy is one of the state's oldest environmental advocacy
organizations and for the past four decades has been a leader in citizen
efforts to protect West Virginia's land, water and human resources from
the effects of illegal and irresponsible coal mining.

I live in southern Upshur County in Central WV. I became a member of the
Highlands Conservancy nearly 30 years ago when our local community
group, Friends of the Little Kanawha (FOLK) appealed to the Conservancy
for assistance in our fight against strip mining planned for our area
that would have severely degraded our water with acid mine drainage.

I was president of the Conservancy from 1988 to1994 and continue to
serve on the Board of Directors. Since 1994 I have also chaired the
Conservancy's Mining Committee.

Although my initial concern about mining centered on the devastating
impact of acid mine drainage on the waters that support my own life,
home and community, my years with the Highlands Conservancy have
introduced me to a broader range of problems and additional concerns. At
times focused on specific local problems on behalf of our members, the
Conservancy also addresses more programmatic issues and deficiencies in
the program, through commenting on regulatory proposals, participating
in administrative proceedings, and filing litigation when necessary.

As a volunteer organization the Conservancy often relies on the able
assistance and generous pro-bono legal work of local, regional and
national groups such as the Appalachian Center for the Economy and the
Environment in Lewisburg, WV, Public Justice and Earthjustice here in
Washington DC. Joan Mulhern from Earthjustice is here with me today to
assist with specific legal and technical questions you may ask.

#### SMCRA AND OSM

In the opening sections of the Surface Mine Act Congress clearly
recognized that achieving the necessary balance of protecting the
environment while providing for the Nation's need for coal would require
strong guidance and oversight to assure that society would be protected
from the adverse effects of strip mining.

When OSM first came to town in the late 1970's it *was* that powerful
force ... intent on reining in the abuses of the coal industry. Then, as
enforcement was handed over to the states, funding and staffing cuts
imposed on OSM, and weakening regulatory changes made -- mostly at the
urging of industry year after year -- the Office has become an empty
shell of its former self. Despite the good intentions of many dedicated
staff members, OSM currently offers more help to the mining industry
than it does to citizens and communities where coal is mined. All too
often, the "*balance*" intended under the act no longer exists.... The
scales of justice are once again tipped in favor of coal at any cost
over people and the environment.

PUBLIC PARTICIPATION

From the outset, public participation was recognized as a key component
of the overall regulatory program. Citizens were to be watchdogs to keep
regulators on their toes and ensure implementation of state regulatory
programs in accordance with the requirements of the Surface Mining Act
by commenting on regulations, fully participating in the permitting
process and other aspects of the program.

However, after years of tweaking, bending and stretching regulations to
the benefit of industry ordinary citizens are now hard pressed to be the
watchdogs envisioned by Congress in 1977. Individuals can now spend
entire lifetimes at great personal and emotional cost following the
regulatory agency's every move, educating themselves and others,
organizing across the mountain ridges, finding and hiring independent
hydrologists, biologists, and other legal and technical experts at great
expense. All this to protect their lives, homes and communities \--
protection that SMCRA assured would be provided by OSM. Only individuals
whose health and personal family circumstances can sustain such
inordinate amounts of time and effort can survive.

For us in Appalachia today the situation is explosive \-- literally....
Not only are thousands of pounds of explosives used DAILY to blast apart
mountains in southern WV, but communities near these mines are becoming
tinderboxes of tension. Emotions run high as dust, blasting, water
pollution, and flooding force people out of their homes and hollows.
Those who stay suffer constant barrage of problems large and small. And
for those brave enough to challenge illegally granted permits in the
courts, threats against home and family are now rampant.

Much of this is due to newer technologies and mammoth mining machines
that have made it possible to cause more destruction both above and
below ground. Much also has to do with the entrenched political
influence of the coal industry and its ability to sway state and federal
regulators to do what benefits industry. For its part, OSM has seen to
the dilution of standards and the weakening of any enforcement that
stands in the way of profit -- leaving citizens more or less to fend for
themselves.

OSM's failure to enforce the law has allowed mining operations to
permanently damage streams, forests, and generations old communities. We
find ourselves embroiled in difficult and lengthy administrative and
legal efforts to hold *both* the state and federal agencies accountable.
We've appealed to the courts time and time again. Individual citizens
brave enough to challenge illegal permits are forced into the trenches
once more -- confronting angry neighbors who work in the mines and are
dependent for work on ill-conceived permits. Just like the bad old days
when SMCRA was first enacted, neighbor is pitted against neighbor. One
family's livelihood against another family's home and heritage.

SPECIFIC ISSUES

While my own experience is rooted in the eastern part of the country --
and central Appalachia in particular, citizens in the mid west, great
plains and as far north as Alaska are experiencing the same
disappointment with the agency. Their stories reflect suffering and
similar types of harm due to the lack of enforcement of an imperfect but
useful SMCRA.

After the mighty struggles that finally resulted in the enactment of
SMCRA, lax enforcement of the law has led us back to the beginning. The
same problems that spawned the Surface Mine Act in the first place have
risen from the ashes with a vengeance \-\-- just in different, more
modern day clothing...and with better PR spin doctors to shine the most
favorable light on some of the most despicable.... horrendous crimes
against nature.

While it's impossible to address the many programmatic deficiencies and
issues of concern in the short amount of time we have today, I offer the
following brief overview of some major concerns that are festering with
less than adequate attention from OSM and/or its counterpart state
agencies:

[Acid Mine Drainage]{.underline} from mines permitted both before and
after SMCRA has left thousands of miles of streams unfit and unsafe....

-   [Pre-SMCRA sites]{.underline} -- The Abandoned Mine Lands (AML)
    program and fund established to reclaim minesites abandoned prior to
    the passage of SMCRA has had significant problems these past 30
    years and hundreds of mines abandoned prior to 1977 still sit
    untended today. It is my sincere hope that the important (but far
    from perfect) re-authorization bill enacted by this Congress at the
    end of last year will help to some degree. But for it to work, it is
    imperative that the states use the funds wisely and primarily to
    accomplish the main goal of reclaiming old abandoned minessites.

-   [Post-SMCRA sites]{.underline} -- Beginning in 1977 no permits were
    to be issued where it was reasonable to assume a perpetual source of
    acid would be created, and yet today hundreds of those mines plague
    thousands of miles of WV and PA streams with acid mine drainage.

-   SMCRA requires that [bonding]{.underline} mechanism be in place to
    assure that enough money will be available to reclaim any site that
    might be abandoned prior to complete reclamation. Companies would be
    required to post individual bonds and/or contribute to alternative
    bonding systems set up to achieve this end. Nonetheless, the bond
    program in WV was never sufficient. After nearly 15 years of legal
    and administrative challenges by WVHC and others, the state DID
    increase the per ton fee companies are required to contribute to the
    states "Special Reclamation Fund", which did help address the
    backlog of reclamation. However, by all recent estimates the fund
    will again be broke within the next few years. Millions of dollars
    is needed to fix the fund, and that's not even counting at least 364
    active sites where water treatment is ongoing and will most likely
    be needed -- by someone -- far into the future if not forever.

-   [Toxic underground mine pools]{.underline} have formed where
    interconnected deep mine workings in acid producing coal seams have
    become filled with acidic and metal laden water, polluting
    groundwater relied on for years by individuals and small rural and
    mountain communities at great distances from city water. .... Even
    now a bevy of agencies is thrashing about for solutions to the
    nearly million acre "Pittsburgh Pool" that exists in northern WV and
    southwestern Pennsylvania. Pressure is now forcing the metal laden
    water into wells, yards and streams through cracks and fissures in
    the surrounding rock. And still OSM stands by while the state issues
    additional permits in northern WV where the same phenomenon is
    likely to occur and present extreme water problems in the year to
    come.

[Subsidence]{.underline} due to longwall mining is causing permanent
damage to ponds, streams and homes. Today in WV hearing a group of
valiant citizens is challenging the first of two 6,000 acre longwall
mines planned for either side of the Tygart Lake in the northern part of
the state \-\-- just south of Greene County PA where the impacts of this
kind of mining have been felt for years....

[Blasting]{.underline} regulations insufficient to protect traditional
structures in rural WV and in tribal lands in the west and citizens are
required to go to great lengths to prove damage and beg and plead for
remuneration.

[Sludge ponds and slurry injection]{.underline} created for the disposal
of coal waste from preparation plants threaten the health of citizens in
Mingo County WV and other areas where water runs black and brown from
indoor faucets and children develop blisters and unidentified rashes
after bathing in that water. Citizens have had to fight and lobby our
state legislature to get even the slightest bit of official attention
and study of the matter.

And, lastly, the mother of all atrocities: [Mountaintop removal strip
mining]{.underline}

MOUNTAINTOP REMOVAL

Mountaintop removal has become the scourge of southern WV and adjacent
portions of KY, and southwestern VA where entire mountains are being
blown apart to allow easy access to 6,10 or more seams of coal that lie
within our steep mountains like frosting in a layer cake.

Every part of the human and natural environment is suffering as this
strip mining on steroids looms over communities and extends into the
lightly populated mountain hollows forcing small communities to seek
safer ground in unfamiliar cities and towns far from their roots that
have nurtured generations of families before them. The very heart and
soul of our mountain way of life is quickly and quietly being ripped out
with hardly a whimper out of OSM except to adjust one regulation after
another to further aid in the destruction of our forests, water and
communities that depend on those resources.

Water is at the heart of it all. Having nowhere to put the deep layers
of earth that separate the coal seams, companies blast apart and dump
the rock into the stream valleys that originate in the high reaches of
the mountain and flow down the hollows between the ridges. Pockets of
groundwater, perched aquifers and hillside springs that many of us
depend on are gone in an instant.

According to a multi agency draft Programmatic Environmental Impact
Statement (PEIS) on Mountaintop Mining/Valley Fills conducted in
response to litigation brought on behalf of the WVHC and several brave
coalfield citizens, these "valley fills" have buried or otherwise
damaged over 1,200 miles of irreplaceable headwater streams. These are
not 'dry ditches' as some would have you believe, but streams up to 2
miles long that flow year round and serve a unique role in the health
and vitality of downstream reaches. The PEIS predicted that another
1,000 miles of streams would be similarly impacted if no actions were
taken to limit or curtail the practice.

No one has predicted what or where -- or even IF -- groundwater and
hillside springs might redevelop ...... or how long it might take for
that process to occur. Ancient geologic formations of steep mountains
and narrow valleys are replaced with rubble-filled valleys and rock
molded into mounds a couple hundred feet lower than the mountains they
replace.

Land and forest resources are decimated as these ancient mountains are
turned inside out. Blasting hundreds of feet deep, thousands of acres at
a time mining has caused the loss of hundreds of square miles of the
most productive and diverse temperate hardwood forests in the world.
According to the Mountaintop mining EIS well over 400,000 acres have
already been impacted and the EIS predicted that figure would increase
to 1.4 million acres (that's over 2200 square miles) by the end of the
decade if nothing is done to limit the practice.

Contrary to the clear intent and purpose of SMCRA, a whole host of
environmental standards including Approximate Original Contour, saving
topsoil with the native seed-pools intact, the proper use of topsoil
substitutes, Post Mining Land Use (that provide viable economic
opportunities for communities once the valuable coal reserves are gone),
Cumulative Hydrologic Impact Assessment are all bastardized in order to
allow this destructive mining to continue. And the mountains of
Appalachia are being reduced to a 'field of dreams" for some future
undetermined generation.

Industry would have us believe that mountaintop removal mining is doing
only minimal damage and that the practice is only impacting about 1 or
2% of the state of West Virginia. While that may be true if you consider
the entire acreage of WV is some 15.5 million acres, if you look at the
16 or so counties where mountaintop removal mining is taking place, that
number skyrockets to as much as 15% or more. That can be seen clearly on
this map of the three county area of Boone, Logan and Mingo counties
that we've brought with us today.

As the late Judge Charles Haden recognized, this is bell that once rung,
can't be unrung. Many of our human mistakes can be corrected, even
polluted streams can be restored over long periods of time, but we will
*[never]{.underline}* get our mountains and headwater streams and high
mountain springs back again.

OSM has engaged in a series of actions to gut long-standing safeguards
against the wholesale burial and pollution of streams in Appalachia by
the coal mining industry.

\- In December 2003, the Office of Surface Mining (OSM) proposed to
weaken its oversight of state mining programs, by making federal
takeovers for state violations of federal law discretionary rather than
automatic. 68 Fed. Reg. 67776

\- In October 2005, the Administration released its final Programmatic
Environmental Impact Statement on Mountaintop Mining/Valley Fills in
Appalachia (PEIS), which proposed no meaningful mining reforms or
limitations on valley fills. 70 Fed. Reg. 62102. Despite scientific
studies showing significant harm was already being done ..... and would
continue, OSM chose to streamline the permitting process, totally
ignoring any effort to reduce the harmful impacts.

\- Now, in with its most recent proposal OSM wants to gut the Stream
Buffer Zone (SBZ) rule, the most important safeguard under the Surface
Mining Control and Reclamation Act (SMCRA) for protecting streams. Again
scientific studies cited in the draft EIS for the proposed rule change
indicate significant harm is being done. Again, OSM chose to ignore any
alternative that might reduce the size or number of fills and thus
reduce the impact and prevent further significant harm to the waters of
the U.S. The proposed rule would eliminate the standing prohibition
against mining within 100 feet of streams if that mining will have an
adverse effect on water quantity, water quality, and other environmental
resources of the stream. In its place the proposed rule merely asks that
a company do what it can to "minimize" harm to the extent possible. The
proposed rule is a violation of both SMCRA itself and the Clean Water
Act, which SMCRA purports to uphold.

\~CONCLUDING REMARKS\~

\-- OSM should withdraw the Stream Buffer Zone rule change and stop the
insanity that is now taking place in central Appalachia.

\-- OSM needs to maintain strong policy against permitting when acid
mine drainage is anticipated.

\-- OSM must improve its requirements for assessment of Cumulative
Hydrologic Consequences to better ascertain what is happening to our
ground and surface water resources especially in mining areas where
mountaintop removal strip mining and longwall deep mining is taking
place.

Again, thank you for the opportunity to speak today. Joan and I are
willing to answer any questions you might have and will be happy to
provide you with whatever additional information that you might request.
We hope that today's hearing will lead to additional oversight by the
Committee on Energy and Natural Resources, particularly on the enormous
damage being caused in my region by Mountaintop Removal mining. There
are many other citizens and coalfield residents as well as scientists
and mining experts who could provide the Committee with valuable and
compelling information to demonstrate that this practice must be ended.

LASTLY, let me extend an invitation to every one on this committee to
come to West Virginia and see for yourself the irreversible harm that is
being done as a result of the lax enforcement of the law and OSM's
acquiescence. The West Virginia Highlands Conservancy and our sister
organizations working to end the abuses of Mountaintop Removal mining
will be happy to provide you with the opportunity to flyover the
mountaintop removal areas and to meet and talk with citizens who are
directly and profoundly impacted by the mining.