William J. Kovacic, Director
October 12, 1999

Page 2

OSM has stated in its report that the DSMRE should consider site configuration, stability,
and drainage, as well as the amount of backfill in determining whether to approve variances from
approximate original contour. The Appendix to the report includes a June 23, 1999 commitment
from DSMRE to better define approximate original contour, considering these additional factors.

The criticisms regarding excess spoil fills are currently being addressed by this agency.
The DSMRE has worked with OSM to accomplish the goal of minimizing the size of fills and
eliminating the practice of “wing-dumping.” DSMRE has met this year on numerous occasions
with representatives from EPA, OSM, the U.S. Army Corps of Engineers, U.S. Fish and
Wildlife, and the Kentucky Department of Fish and Wildlife, at which fill size and placement
were discussed. As recently as September 13, DSMRE met with OSM to discuss the two
agencies’ joint recommendations regarding the elimination of “wing dumping.” This agency’s
goal of minimizing disturbances to the watershed is consistent with the comments of OSM.

The report states that OSM’s oversight of Kentucky’s program has been made more
difficult by record keeping problems and failure to electronically track variances. OSM points
out that there are some inconsistencies in the permit package between the variances requested by
the operator, the information supplied by the applicant in the permit package, and the variances
granted. In both DSMRE permits and federal lands permits issued by OSM, there are some
instances where information in the permit supports the approved variance, but the variance does
not appear on the permit face. DSMRE will make every cffort to correct seemingly inconsistent
permit face shects to reflect the information in the permit itself. In addition, DSMRE has
redesigned its Surface Mining Information System (SMIS) to better meet the reporting needs of
the agency. The improvements made in SMIS, and those which will be made in the near future,
will resolve OSM’s concerns about tracking variances.

With regard to OSM’s concerns for the need for program amendments, DSMRE has
already begun the rulemaking process to amend 405 KAR 20:060 Section 3(3). The regulatory
change will clarify that, in approving a steep slope variance, the total volume of the flow from
the proposed mine area, during every season of the year, must not vary in any way that adversely
affects the ecology of any surface water, or any planned use of surface or groundwater. This
change will likely take about eight (8) months to complete the regulatory process. DSMRE
appreciates OSM’s acknowledgement that this information has been required in the permit
applications, and that the failure to have made the regulation change has not contributed to any
of the issues raised in the report.

The shortcomings of the current DSMRE checklist and affirmative findings for issuance
of permits were identified by this agency prior to this report. We are currently working on a
revision to the checklist and affirmative findings, and have met with OSM on this issue on more
than one occasion. This issue is expected to be resolved in the near future.

There is some clarification necessary in the report’s supporting data and OSM’s
conclusions. Table A-5 lists for each of the reviewed sites the proposed fill volume in
percentages. It is noteworthy that typically 25% of that volume is swell. ‘Laking this into
consideration, it is apparent that swell yardage alonc accounts for a significant percentage of the

17


Il.

material to the head of the hollow. One comment advocated that this issue should be
resolved between the coal industry and DSMRE. Another comment stated that existing
regulations and enforcement policies can be used efficiently and effectively by DSMRE
to address any fill construction issues.

Response: The draft report pointed out that the practice of "wing dumping" or "side
dumping" of excess spoil creates the unnecessary disturbance to the head waters and
streams. DSMRE and OSM are also conducting a more in-depth engineering study of
excess spoil fills. In this study, the practice will be further evaluated for stability
concerns, OSM agrees that the existing regulations and enforcement policies can
effectively address this issue, as is provided in the Action Plan in Appendix C.

Comments: Two comments advocate continuation of policies that allow flexibility in
mining plans for the number and capacity of excess spoil fills. The comments argue that
experience has shown that a restrictive mine plan needs constant permit modifications
causing delays in mining.

Response: These comments relate to two concerns OSM has about the excess spoil fills
that have been permitted. One concern is that, when there is a change in mining method,
the permittee must revise its backfilling and grading plan and recalculate the volume of
material that must be placed in excess spoil fills. In addition, OSM is concerned that
some operations over-permit the number of fills and fill capacity so as to maximize the
flexibility for the operator. OSM understands the need for some flexibility but believes
that this practice creates an undesirable regulatory situation where the inspector does not
know which fills will be constructed and to what capacity. As provided in the Action
Plan, OSM will work with DSMRE to improve these practices, while recognizing that
some degree of flexibility will remain necessary in spite of improved engineering
practices

Comment: One comment questioned how to define specific fill characteristics.

Response: OSM has not made any change in the report in response to this comment. The
nature of the points raised will be considered as policies and practices are reviewed and
changed in accordance with the Action Plan.

Comment: One comment questioned whether the "Observed Construction Concerns" in
the draft report truly identify a construction issue.

Response: The draft report identified all issues considered by OSM during its permit
review and field observations of the selected sites. DSMRE had properly cited all
violations, and those violations are being corrected in accordance with State procedures.
No change in the report was adopted as a result of this comment

11


can be developed. A copy of all training materials dealing with AOC and post-
mining land use was forwarded to the OSM Lexington Field Office. DSMRE will
develop a draft AOC policy by April 17, 2000, to address both existing, as well as
future, permits. OSM will provide any technical assistance requested. By

May 15, 2000, DSMRE will issue a final AOC policy and implement this policy
for future permitting decisions.

Implementation -Existing Permits: DSMRE will conduct an internal review of all AOC
and variance determinations for surface mining in the steep slope areas of Eastern
Kentucky. DSMRE will develop a policy for consistent treatment of these
existing permits. OSM agrees that these existing operations, some of which were
initially permitted many years ago, will only be altered to the extent practicable.
In accordance with this policy, DSMRE will notify all permittees of any required
changes by June 30, 2000.

Implementation-New Permits: DSMRE will develop a draft AOC policy and submit it to
OSM by April 17, 2000. OSM will complete its review and submit any comments
to DSMRE by May 1, 2000. After May 15, 2000, DSMRE will issue any new
permits in accordance with the AOC policy.

Action Dates-Policy: A draft AOC policy for both existing and future permits will be
developed by April 17, 2000. OSM will submit comments to DSMRE by
May 1, 2000. DSMRE will issue final policy by May 15, 2000

Implementation: The initial evaluation of all existing permits will be completed by
May 1, 2000. DSMRE will notify all permittees of any required changes by
June 30, 2000. After May 15, 2000, DSMRE will issue any new permits in
accordance with the AOC policy.

2. Excess Spoil Fills: Design and Construction

Issue: OSM found that, in a number of instances, DSMRE has given operators approval
to construct fills for excess spoil that become unnecessary because of mining
method changes or that are larger than are necessary for the operation. DSMRE is
taking steps to ensure that, before a permittee changes its method of mining, it
obtains an appropriate modification of its permit, including revisions to the
number and/or capacity of the fills. Finally, the State is in the process of adopting
policies to address the practice of “wing-dumping" in constructing excess spoil
fills. The State should consider a policy that would encourage the construction of
fills in stages. These fills would begin in the upper portion of the watershed and
to progress downstream only as necessary until the full capacity of the fill is
achieved. This will avoid unnecessary impacts to the watershed where, after


Th. INTRODUCTION

The purpose of this report is to finalize the draft report dated September 1999 entitled "An
Evaluation of Approximate Original Contour and Post-Mining Land Use in Kentucky." OSM,
with the assistance of the Kentucky DSMRE, completed a draft oversight evaluation report on
Kentucky’s approved surface mining regulatory program. The report focused on AOC variances,
excess spoil, and post-mining land uses associated with mountaintop and steep slope mining
operations. The draft report was released on September 21, 1999. An initial public comment
period for receiving input into the report was set for October 22, 1999. The comment period was
extended to November 19, 1999. Kentucky has submitted letters (dated June 23, 1999; June 25,
1999; September 8, 1999; and October 12, 1999) to OSM committing to correct deficiencies, and
have already initiated some of these corrective actions. In addition, OSM has had numerous
discussions with Kentucky on the issues identified in the draft report and the corrective actions
discussed in this final report.

We received comments from two Federal agencies, one coal association, one environmental
group, and two individuals. We also received comments from the Secretary of the Kentucky
Natural Resources and Environmental Protection Cabinet (NREPC). We would like to take this
opportunity to thank everyone who commented on the draft report. The comments were useful in
helping OSM formulate an Action Plan with the State addressing all of the issues that were
identified during the review. We would also like to thank DSMRE for its cooperation and
assistance both during the review and in formulating the plan addressing the issues that were
identified in the report. Appendix A contains a summary of all the public comments received on
the report and OSM’s responses.

The purpose of this report is to explain how the State and OSM plan to resolve the issues that
were mentioned in the earlier oversight report. None of the comments that were submitted
questioned any of the facts or findings that OSM provided in the draft oversight report. Several
comments questioned the recommendation regarding the review of the AOC variances granted in
existing permits. This recommendation has been rewritten to clarify OSM’s intent. Rather than
publish the entire report again, OSM decided that it would be more beneficial to focus on how
OSM and DSMRE intend to fix the problems regarding AOC and unapproved post-mining land
uses for mountaintop removal and steep slope mining operations with AOC variances. The
proposed conclusions and recommendations from the earlier draft report are now being adopted
in final and are contained in Part III of this report. This is being done so that the reader does not
have to refer back to the earlier report, unless he or she wants information concerning specific
permits that were evaluated in that report. An electronic version of the draft oversight report is
still available on OSM’s Web page and can be viewed at http://wwww.osmre. gov/mtindex. htm.
Upon request, hard copies of the report may also be obtained from the Lexington Field Office.

Appendix C of this report contains a copy of the Action Plan that OSM and DSMRE have
developed to address the issues raised in this final oversight report.


William J. Kovacic, Director
October 12, 1999
Page 3

proposed fill volume. Tables A-5 and B-2 show that for the 29 sites reviewed, more spoil was
returned to the bench than was placed in hollowfills, and that there were no significant changes
to the drainage patterns. 405 KAR 8:050 Section 4, in defining mountaintop removal mining,
states that substantially all of the overburden will be removed from the bench. Consequently,
OSM is correct in its conclusion that some of these permits contained unnecessary AOC
variances. What is not clear from the report is that considering the amount of spoil placed back
on the bench, the lack of substantial changes to the drainage systems, and site configuration,
many of the reviewed sites currently meet the definition of AOC. It is important to note that in
Kentucky there is not wide-spread abuse of the requirement to restore to AOC.

This agency is committed to enforcement of the requirements for approximate original
contour, proper documentation for variances from AOC on mountain-top removal operations and
steep slope operations, granting only authorized post mining land use changes and requiring
proper documentation for those changes, minimizing stream loss from fills, integrity in the
permitting process, and comprehensive computer tracking. It is apparent from the report that the
issues identified in Kentucky are in the process of being resolved, and that the valley fill issues in
this state are not of the magnitude found elsewhere.

Again, we appreciate the opportunity to comment.

Sincerely.

s
james EF. Bickfoi
ecretary

cc: Carl Campbell
Barbara Foster

18


Proposed Action-Draft Finding Document: DSMRE has completed an initial draft.
OSM provided comments to DSMRE. DSMRE will continue its comprehensive
review of its procedures regarding written findings.

Action Date: July 1, 2000.

7. Permit Documentation: Expected Need and Market Data

/ssue: In a number of instances, DSMRE issued mountaintop removal permits without

obtaining the required assurances that the requested post-mining land use be

obtainable according to data regarding expected need and market.

Proposed Action: DSMRE is currently reviewing the past interpretation and
implementation of 405 KAR 8:050, Section 4 and will develop new policy.

Action Date; May 1, 2000.

Cc. OSM Oversight and Technical Assistance
OSM and DSMRE 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 DSMRE if requested.

Additionally, OSM is currently developing policy guidance for approving alternative post-mining
land uses. This information will be shared with states as soon as the guidance is finalized

24


NREPC/OSM Action Plan for Resolving Mountaintop Mining Issues

A.

Purpose

OSM and NREPC recognize that there are outstanding issues and questions related to
mountaintop mining practices that need to be addressed as priority items between the two
agencies. The following action elements include all issues identified in "An Evaluation of
Approximate Original Contour and Post-Mining Land Use in Kentucky." 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 Kentucky.

B.

Issue:

OSM’s Evaluation of Approximate Original Contour and Post-Mining Land
Use in Kentucky

1. Approximate Original Contour: Policy and Implementation of
Approximate Original Contour

OSM did not find any formal State policy guidance on the meaning of the term
“approximate original contour" except for the State statutory definition, that
essentially repeats the Federal definition. OSM found an informal AOC policy.

In determining if a permit application met AOC, DSMRE placed greater emphasis
on terrace width and the amount of spoil material returned to the mined area and
not enough emphasis upon land configuration and use, slope stability, and
drainage controls.

DSMRE approved some surface mining permits in the mountains of Eastern
Kentucky that contained unnecessary or unjustified variances from the AOC
requirement. In deciding whether AOC variances were necessary at these sites,
DSMRE relied almost exclusively upon the informal policy discussed previously.
During the evaluation, OSM also observed that, in some cases, not much
difference existed between mines which have received variances from the AOC
requirement and those that are supposed to restore the land to AOC. That is, there
was little difference between the final grading plans that DSMRE accepted as

AOC for some mines and the final grading plans at other mines that DSMRE
required to obtain variances from AOC.

Proposed Action-Policy: The Kentucky Natural Resources and Environmental

Protection Cabinet agreed to develop clear, written guidelines on determining
whether or not a mine permit meets AOC. To begin this process, DSMRE, in
conjunction with the Kentucky Division of Water and the U.S. Army Corps of
Engineers, conducted an in-depth training session on December 16, 1999,
reviewing permitting requirements under the Clean Water Act and clarifying the
AOC decisions to be made on an interim basis until a more comprehensive policy

20


APPENDIX B: Comments from Natural Resources and
Environmental Protection Cabinet Secretary on
Draft Evaluation of Approximate Original Contour
and Post-Mining Land Use in Kentucky

15


APPENDIX A: Disposition of Public Comments


always benefit the environment. OSM and DSMRE will examine each permit on a site-specific
basis to make sure that the State’s approved program is being properly enforced and any on-the-
ground environmental problems identified are corrected to our mutual satisfaction.

A. Approximate Original Contour and Variances

Conclusion: DSMRE approved some surface mining permits in the mountains of Eastern
Kentucky that contained unnecessary or unjustified variances from the AOC requirement. In
determining if a permit application met AOC, DSMRE placed greater emphasis on terrace width
and the amount of spoil material returned to the mined area and not enough emphasis upon land
configuration and use, slope stability, and drainage controls. During the evaluation, OSM also
observed that, in some cases, not much difference existed between mines which have received
variances from the AOC requirement and those that are supposed to restore the land to AOC.
That is, there was little difference between the final grading plans that DSMRE accepted as AOC
for some mines and the final grading plans at other mines that DSMRE required to obtain
variances from AOC. Finally, DSMRE issued a number of permits involving variances from
AOC without requiring appropriate post-mining land uses for the sites.

As explained in the draft report, permits involving mountaintop removal or steep slope mining
operations with variances from AOC may be issued by the regulatory authority only if they will
be capable of supporting the post-mining land uses specified in the State program.

Recommendation: To implement the AOC standard properly, DSMRE should take steps to
insure that its permit reviewers, when they determine whether or not to approve variances,
consider not just the amount of backfill but also site configuration, stability, and drainage. In
addition, DSMRE should review all outstanding permits with AOC variances and reclassify any
sites that have been inappropriately granted variances. In a letter dated June 23, 1999, DSMRE
committed to develop a formal policy that better defines what is required to achieve AOC. Upon
development of this new AOC policy, DSMRE will apply this policy prospectively for all new
permits. In addition, as discussed above, DSMRE and OSM will review all previously-issued
permits and correct any deficiencies to the extent practicable.

B. Excess Spoil Fills

Conclusion: OSM found that, in a number of instances, DSMRE has given operators approval
to construct fills for excess spoil that are either entirely unnecessary or that exceed the capacity
necessary for the operation. OSM also found that construction problems with some fills have
caused unnecessary impacts to headwaters and streams.

Recommendation: DSMRE should revise its permitting practices to better insure that fill size is
minimized. DSMRE should also take steps to insure that, before a permittee changes its method
of mining, it obtains an appropriate modification of its permit, including revisions to the number
ty of the fills. Finally, the S s linate the practice of

and/or shouid adopt policies to ei



Il. CONCLUSIONS AND RECOMMENDATIONS

OSM is adopting the conclusions contained in the draft report from September 1999 as a final
document. The recommendations have been revised (a) in response to comments regarding
appropriate, corrective actions for existing permits, and (b) to include the corrective actions
contained in the negotiated Action Plan. The Action Plan included as Appendix C contains the
corrective actions and a schedule for implementing the changes that will be taken as a result of
the review.

Mountaintop removal and steep slope mining in Kentucky share characteristics of mining
practices in the border states of West Virginia and Virginia. While the number of permits with
AOC variances in Kentucky is substantial, the number of permits issued annually and the acreage
permitted have remained fairly constant since program approval in 1982. The field office
conducted a detailed review of 29 permits at 20 mines.

OSM and DSMRE have agreed that any reforms that resulted from the draft report would be
applied prospectively, and that existing mining operations, some of which were initially
permitted many years ago, would be altered only to the extent practicable. OSM requested that,
in addition to those permits which were examined for the draft report, DSMRE review all
existing permits with AOC variances and apply the reforms prospectively. For example, OSM
proposed that DSMRE require revisions of any permits or portions thereof that have not been
reclaimed in order to ensure that final reclamation leads to an approvable post-mining land use.
OSM did not recommend that any areas that have been regraded or that have established
vegetation be disturbed in order to address the concerns raised in the report.

Some industry representatives argued that all reforms should be applied prospectively. They
contend that operators obtained the permits after extensive review and public comment. To
apply the reforms retroactively is simply not fair and could cause needless paperwork and
potentially environmentally damaging consequences. Others commented that to limit the reforms
resulting from the report to prospective application is both illegal and unwise. These
commenters stated that any proposal to allow operations that are engaged in mining under
permits which do not satisfy the mandates of State law and to continue such operations
indefinitely is unlawful.

After consideration of all comments, OSM has decided that the various levels of technical
deficiencies in existing permits must be addressed differently depending on the extent that the
deficiency would actually cause a violation of the State program with "on-the-ground"
consequences. Where the deficiency relates only to permit documentation, no retroactive
correction will be required. Where the deficiency actually authorizes a post-mining land use that
is not provided for by the approved program, OSM and DSMRE have agreed to require that the
permit and, to the degree practicable, the actual mining operation be revised. However, OSM
still maintains that sites which have been backfilled, regraded, and revegetated should not be

din the drait r nd do not



dames E. BickForo
Secrerany

Paut E. Patton
Governon

Commonwealth oF KE:
Natura RESOURCES AND ENVIRONMENTAL PROTECTION CaRiNET
Orrice oF THE SECRETARY
Frankroat Kentucky 40601

Teterrone: (502) 564-3950

os LEXINGTON

October 12, 1999

William J. Kovacic, Director oct 14 4999
Lexington Field Office ~
Office of Surface Mining FAgLD OFFIOE

Reclamation and Enforcement
2675 Regency Road
Lexington, Kentucky 40503-2922

Dear Mr. Kovacic:

Thank you for the opportunity to comment on the Draft Evaluation of Approximate
Original Contour and Post-Mining Land Use in Kentucky dated September 21, 1999 and
prepared by your office.

For the past year, the Department for Surface Mining Reclamation and Enforcement has
been diligently working toward improving its regulation of mountaintop removal and steep slope
mining operations, particularly in the areas of approximate original contour and post-mining land
use. We believe that most of the problems OSM has identified in its report have already been
identified by this agency, and procedures have been put into place to resolve any deficiencies.

One of the main issues identified in OSM’s report was a former policy of allowing the
post-mining land use of fish and wildlife habitat on mountaintop removal operations and steep
slope mining operations with a variance from approximate original contour. Over a year ago, in
a letter dated September 8, 1998, this agency notified OSM that it had repudiated its policy of
allowing fish and wildlife as a post-mining land use on these operations. OSM was also notified
that the DSMRE had instructed its Division of Permits about this prohibition. These documents
appear in the Appendix to the report. OSM has suggested that the DSMRE review permits that
were improperly granted a post-mining land use of fish and wildlife habitat, and require permit
revisions. Because the policy of granting the fish and wildlife post-mining land use for
mountaintop removal and steep slope operations was in existence for seven (7) years, and
because OSM performed its oversight activities during this period of time, seemingly
acquiescing in the policy, we believe that now requiring these permits to be revised constitutes
an unreasonable burden.

This agency is committed to requiring proper documentation for variances from

approximate original contour. We are especially mindful of the requirement that the proposed
4 ¥ data reg:
Y data regi

be ol

g the expected need and
g the expected need and

EDUCATION
PAYS

AN Eauat, Opeortusity Ematoyea M/F/D.

16


Recommendation: DSMRE should conduct a comprehensive review of the 395 permits issued
for mountaintop operations in Eastern Kentucky to consistently identify AOC variances granted
based on the backfilling and grading information in the permit application and the AOC
variances requested. In addition, DSMRE should add data fields to SMIS for variance
information and add this information for all existing permits.

DSMRE has developed guidance regarding AOC classifications for these existing permits and
added necessary data fields to SMIS. OSM will monitor completion of these steps.

E. Needed Program Amendment

Conclusion: The approved Kentucky program does not specifically require applicants for steep
slope variances to demonstrate that the total volume of flow from the proposed mine, during
every season of the year, will not vary in any way that adversely affects the ecology of any
surface water or of any existing or planned use of surface or groundwater, and that the plan must
be approved by the “appropriate State environmental agency.”

Recommendation: As soon as possible, DSMRE should submit a program amendment that sets
out this requirement. On February 1, 2000, OSM received a proposed program amendment from
DSMRE to address this issue.

F. Permit Findings

Conclusion: DSMRE has been using an Affirmative Findings - Issuance/Denial Checklist to
document permit applicants’ compliance with the regulatory requirements for mountaintop
removal and steep slope AOC variance. Specifically, DSMRE relies upon three very general
findings to satisfy the requirement of 405 KAR 8:050 for affirmative findings before approving
mining with a mountaintop removal AOC variance. It also relies upon these three findings to
satisfy the requirements of 405 KAR 8:050, Section 6, for affirmative findings before approving
mining with a steep slope AOC variance.

Reliance on these general findings does not demonstrate the specific considerations required for
the State to approve mining with either a mountaintop removal or a steep slope AOC variance or
if, in fact, a variance is approved.

Recommendation: Specifically, DSMRE should modify its findings checklist to include the
specific finding required by 405 Kentucky Administration Regulations (KAR) 8:050, Section 4,
for a mountaintop removal AOC variance, the specific finding required by 405 KAR 8:050,
Section 6, for a steep slope AOC variance, and to include some reference to the relevant portions
of the permit application that support these findings. DSMRE has agreed to review all of its
findings documents.


mining commences, the permittee changes its method of mining resulting in less
excess spoil to be placed in fills.

OSM also found that construction problems with a few fills have caused
unnecessary impacts to headwaters and streams. DSMRE has taken enforcement
actions to correct these construction problems

Proposed Action-Design and Construction: A joint special study has recently been
completed by DSMRE and OSM for the design and construction of excess spoil
fills. The findings of this study are currently being reviewed by DSMRE. Policy
decisions for both design and construction of fills will result from this study.

Action Date -Design and Construction: May 1, 2000.
3. Post-Mining Land Uses

/ssue: In a number of cases involving mountaintop removal or steep slope AOC
variances, DSMRE improperly granted permits that approved post-mining land
uses not authorized by the State program. Prospectively, DSMRE has now
reformed its policy regarding permissible post-mining land uses, but it still needs
to address this problem in connection with previously-issued permits.

Proposed Action: \n accordance with Section A, DSMRE is currently reviewing existing
issued permits. For those that are returned to AOC, the post-mining land use
regulations will be evaluated to insure compliance. With an AOC variance to a
permit was issued with an inappropriate post-mining land use, the permittee will
be required to make appropriate changes to comply with the State program to the
extent practicable. The application of prospective review is discussed in
Section A

Action Date: The initial evaluation of existing permits will be completed by March
2000 and post-mining land use changes, if necessary, will be completed by
September 2000.

4. Mine Classification and Inventory
Issue: DSMRE has classified a number of different mining types as "mountaintop

removal" operations. This practice creates confusion because "mountaintop
removal mining" is specifically defined in Kentucky’s approved program.

Although a database tracking system for mountaintop removal operations and
associated waivers is not required by State or Federal laws, the State’s permit

tracking system, the Surface Mining Information System (SMIS), does not

track



—Il L
L] CI
FINAL REPORT
AN EVALUATION OF APPROXIMATE
ORIGINAL CONTOUR AND
POST-MINING LAND USE IN
KENTUCKY
MAY 2000
PREPARED BY
U.S. Department of the Interior
Office of Surface Mining
Lexington Field Office
(a) (al



w

Comment: One comment criticizes the analysis in the draft report of the Federal
requirements and urges that Section 102 of SMCRA be discussed in the final report.
Section 102 describes the purpose of the Act including the charge to "strike a balance
between protection of the environment and agricultural productivity and the nation’s need
for coal as an essential source of energy." In addition, the comment criticizes the draft
report for not fully discussing Section 515{c)(2), which authorizes the variance from
AOC for mountaintop removal operations.

Response: The balance provided in Section 102 is implemented by OSM in the
development of the entire regulatory program and continually in our day-to-day activities.
After reviewing the analysis of the Federal requirements regarding Section 515(c)(2), we
believe that the analysis is appropriate. Consequently, no changes in the report were
made because of this comment.

Comment: One comment recommended that this oversight report be expanded so that the
scope will address location of fills, stream bio-diversity, stream buffer zones, riparian
vegetation, and cumulative aquatic impacts.

Response: The oversight report addresses only specific aspects of excess spoil fills. It
did not address those aspects suggested by the commenter. Due to the litigation in West
Virginia, OSM, the U.S. Army Corps of Engineers, the U.S. Environmental Protection
Agency, the U.S. Fish and Wildlife Service, and the West Virginia Division of
Environmental Protection are developing a programmatic Environmental Impact
Statement (EIS) to address the underlying policy issues relating to the commenters’
concerns. Upon completion of this programmatic EIS, OSM will address these issues in
its oversight of the Kentucky program. As a result, we are not making the suggested
changes in the scope of this report.

A, Approximate Original Contour and Variances

Comment: One comment indicated that neither DSMRE nor OSM had a formal AOC
policy. Another comment stated that the State has primary responsibility to interpret what
constitutes AOC.

Response: OSM Directive INE-26 establishes OSM policy regarding AOC and relies
heavily on the policies of the State regulatory agency as applied on a site-specific basis.
OSM agrees that DSMRE has primary responsibility for defining AOC based on the site
conditions found in Kentucky. The concern expressed in the draft report is that, because
the State does not have a formal policy, OSM observed very inconsistent field conditions.
On June 23, 1999, DSMRE, in response to the concern identified by OSM, committed to
develop a formal policy on AOC. Appendix C describes the Action Plan for this issue.
OSM agrees that the State has primary responsibility to interpret what constitutes AOC,


Disposition of Public Comments

OSM received comments on the draft report from ten individuals and organizations. Comments
were received from the Kentucky Environmental Protection and Natural Resources Cabinet, four
Federal agencies, one industry trade association, one citizen’s advocacy group, an individual
mineral owner, an individual citizen, and an OSM employee. Presented below is a summary of
the relevant comments as well as OSM’s responses to the comments. The comments are grouped
as follows:

1. A section containing a discussion of the more general overview comments
received.
2. A section containing a discussion of comments on the specific conclusions and

recommendations and organized in line with the structure of the conclusions and
recommendations section.

3. A section containing a discussion of the miscellaneous comments received.

General: OSM Should Ensure Full Compliance with the Surface Mining Control and
Reclamation Act and the Approved Kentucky Program

1.

Comments: Two comments indicated the need for OSM to take the lead in ensuring strict
compliance with the regulatory and statutory requirements of the respective laws and
regulations.

Response: OSM agrees that full compliance with an approved State program does ensure
better environmental protection. OSM continually works with States to improve their
permanent regulatory programs and the implementation of those programs. Also, OSM
revised the oversight process in 1996 to enable OSM to take innovative, results-oriented
evaluation approaches tailored to individual State programs with input from various
stakeholder interests. As a result of this public input, blasting, landslides, transportation,
and hydrologic issues have been identified as the concerns in Kentucky, and OSM has
worked on these issues.

Comments: Three different comments indicated the view that the draft report did not
sufficiently credit DSMRE with responding in a timely manner to the concerns identified
by OSM to improve environmental protection for mountaintop removal and steep slope
mining operations.

Response: OSM acknowledges that DSMRE has taken diligent and prompt action to
respond to the concerns raised during this study. Furthermore, the corrective actions
provided in the Action Plan in Appendix C will ensure continued improvement of the
Kentucky program.


“wing-dumping” in constructing excess spoil fills. “Wing-dumping” is a practice for
constructing an excess spoil fill. This practice is to push excess spoil from the lowest coal seam
bench into the permitted spoil disposal area from all points along the sides of the fill disposal
area. The State should consider a policy that restricts the construction of fills in stages to begin
in the upper portion of the watershed and to progress downstream only as necessary until the full
capacity of the fill is achieved. This will avoid unnecessary impacts to the watershed where,
after mining commences, the permittee changes its method of mining resulting in less excess
spoil to be placed in fills.

Cc. Post-Mining Land Uses

Conclusion: In a number of cases involving mountaintop removal or steep slope AOC
variances, DSMRE improperly granted permits that approved post-mining land uses not
authorized by the State program. Prospectively, DSMRE has now reformed its policy regarding
permissible post-mining land uses, but it still needs to address this problem in connection with
previously-issued permits.

Recommendation: DSMRE should conduct a comprehensive review to identify all operations
that have been improperly issued either a mountaintop removal or a steep slope AOC variance.
Various levels of technical deficiencies must be addressed differently depending on the extent
that the deficiency would actually cause a violation of the State program with “on-the-ground”
consequences. OSM and DSMRE will examine each permit on a site-specific basis to make sure
that the State’s approved program is being properly enforced and any on-the-ground
environmental problems identified are corrected to our mutual satisfaction.

Conclusion: In a number of instances, DSMRE issued mountaintop removal permits without
obtaining the required assurances that the requested post-mining land use be obtainable
according to data regarding expected need and market

Recommendation: Kentucky should immediately begin requiring this information.
D. Mine Classification and Inventory

Conclusion: OSM’s oversight has been made difficult by several record keeping problems.
First, with respect to outstanding permits, inconsistencies exist between the AOC variances
requested by the applicants, the information actually supplied by the applicant, and the AOC
variances that DSMRE ultimately granted. Second, the State’s permit trac! system, the
Surface Mining Information System (SMIS), does not currently contain any data fields for
variance information. Thus, it was impossible to obtain a reliable electronic inventory of
mountaintop mining permitted to be restored to AOC, mountaintop mining permitted with an
AOC variance, and steep slope mining permitted with an AOC variance.



APPENDIX C: NREPC/OSM Action Plan for Resolving
Mountaintop Mining Issues

19


Concurrence by:

TM

J Das

Natural Resources and Environmental Protection Cabinet

<James E. Bickford, Secre

ig wills ber é } Kaus

William J. Kovacigf Field Office Director
Lexington Field Office, Office of Surface Mining

25


I. FORWARD

The Office of Surface Mining (OSM) is committed to ensuring that State programs contain
requirements that are no less effective than the Federal requirements and that those programs are
being properly implemented. State and Federal surface mining laws generally require a site after
mining to be returned to its approximate original contour (AOC). However, as discussed in this
report, under certain limited circumstances, an applicant may obtain a variance from the AOC
requirement. In connection with this variance, a critical issue is the appropriateness of the
proposed post-mining land use. Consequently, OSM has been working diligently with the
Kentucky Department for Surface Mining Reclamation and Enforcement (DSMRE) to improve
the State’s administration of its approved program in two areas: (1) the standards used by
DSMRE in evaluating whether a particular post-mining land configuration constitutes a return to
AOC; and (2) the post-mining land uses which DSMRE approves when it grants a waiver from
the AOC requirement.

The Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) provides that a
State program may grant variances from AOC for mountaintop removal and steep slope mining
operations, provided the State program requirements are no less stringent than those set forth in
§§515(c) and 515(e) of SMCRA. Section 515(c) of SMCRA specifies that a mountaintop
removal AOC variance may be granted by the regulatory authority only if the entire coal seam or
seams running through the upper fraction of the hill, ridge, or mountain is removed creating a
level plateau or gently rolling contour with no highwalls remaining and capable of supporting
post-mining land uses of industrial, commercial, agricultural, residential, or public facility
(including recreation facilities) use. Section $15(e) of SMCRA provides that a steep slope AOC
variance may be granted by the regulatory authority if (1) the proposed mining is going to occur
in a steep slope area (greater than 20 degrees), (2) the watershed control of the area will be
improved by granting such a variance, and (3) the landowner requests in writing that the variance
be granted so that the land after reclamation will be suitable for an industrial, commercial,
residential, or public use (including recreational facilities).

OSM conditionally approved Kentucky’s permanent regulatory program on May 18, 1982. At
the time, OSM found that the statutory and regulatory requirements of the program governing
mountaintop removal and steep slope mining operations were consistent with the Federal
requirements. Subsequent reviews of the State’s program, however, have identified a minor
aspect of the requirements for steep slope mining operations that is less stringent than the Federal
requirements. As discussed in this report, the State is in the process of correcting that deficiency
OSM is actively working with the State of Kentucky and other States in the Appalachian Region
to ensure that these mining methods, which are authorized by SMCRA, are being conducted
properly and consistently with the approved State programs. Topical evaluations, as done in
Kentucky last year, focus on specific program areas and are done periodically to assess a State’s
performance. It is through these studies that OSM plans to reassess State mountaintop mining
requirements and to ensure that the approved standards are being properly enforced through the



13.

15,

Cc. Post-Mining Land Uses

Comment: One comment pointed out DSMRE’s timely response when OSM identified
this concern with AOC variances based on fish and wildlife post-mining land use.

Response: OSM agrees with this comment that DSMRE is committed to enforcing its
approved program and works diligently to improve its program.

Comments: One comment stated that mining can restore the land so as to encourage
economic use of the land after mining. Another comment asked that the regulatory
agencies not allow the industry to misuse the post-mining land use provisions of the
approved State program. They offer the view that placing a picnic table on a reclaimed
area should not allow the area to be classified as recreational land use.

Response: OSM has not made any changes in this report because of these comments.
OSM does recognize that post-mining land is an important component of the AOC
variance process. Therefore, OSM is developing post-mining land use policy related to
this concern. This policy has been developed from the public concerns expressed to
OSM. The public has had an opportunity to comment on OSM’s draft post-mining land
use policy. A final policy will be posted on OSM’s web page at www.osmre gov.

Comments: A comment stated that fish and wildlife habitat for AOC variance sites had
been promoted by the Kentucky Department of Fish and Wildlife Resources as a better
post-mining land use than agricultural or pastureland. The comment also stated that fish
and wildlife habitat is considered a more realistic Jand use. Another comment suggested
that DSMRE and OSM should not adopt a comprehensive policy that precludes fish and
wildlife habitat without considering the merits of each proposal.

Response: A post-mining land use of fish and wildlife habitat is acceptable for a minesite
returned to AOC. For sites with an AOC variance, neither Federal law nor State law
allow fish and wildlife post-mining land use.

Comments: Three comments recommended that changes in permits to post-mining land
uses be made only prospectively for new permits. They argue that some permits were
initially permitted many years also and should only be altered to the extent practicable.

Response: OSM has responded to these comments by revising Section III - Conclusions
and Recommendation, to clarify its expectations for reviewing existing permits. This
position repeats OSM’s position taken in West Virginia and Virginia.

Comment: One comment indicated that permits issued at several U.S. Army Corps of
Engineers projects with an approved post-mining land use of public use (including


20

F Permit Findings

Comments: Two comments agreed with OSM’s report findings that Affirmative Findings
- Issuance/Denial Checklist to document permit applicants’ compliance with the
regulatory requirements for mountaintop removal and steep slope AOC variance. At least
in its present form, this checklist fails to adequately assure that applicants have fully
satisfied the pertinent requirements. Specifically, DSMRE should modify its findings
checklist to include the specific finding required by 405 Kentucky Administration
Regulations (KAR) 8:050, Section 4, for a mountaintop removal AOC variance, the
specific finding required by 405 KAR 8:050, Section 6, for a steep slope AOC variance,
and to include some reference to the relevant portions of the permit application that
support these findings. One comment recommended using invertebrate studies to support
the affirmative finding for material damage of the quality or quantity of water.

Response: DSMRE has agreed to improve permit findings for both steep slope and
mountaintop removal AOC variances. The Action Plan in Appendix C further describes
those actions. In addition, DSMRE has developed an internal effort to improve all
written findings and permit decisions. Finally, OSM has not adopted the suggestion to
rely on invertebrate studies for determining material damage to the quantity and quality of
water. Any invertebrate studies or other biological information may be used in other
aspects of the permitting decision, but is not the focus of the Cumulation Hydrologic
Impact Assessment (CHIA) for the SMCRA permit decision.

Miscellaneous

21.

22

Comment: One agency agreed with the draft report, however, they wanted all parties to
be concerned with the health and safety of the miners.

Response: OSM and DSMRE have been and will continue to be concerned for the health
and safety of the miners and also for the general public.

Comment: A comment was received that was concerned with the writing style of the
report.

Response: OSM is committed to issuing well developed written documents

14


APPENDIX B: Comments from Natural Resources and Environmental
Protection Cabinet Secretary on Draft Evaluation of
Approximate Original Contour and Post-Mining Land
Use in Kentucky ©0000. ee

October 12, 1999, letter from James E. Bickford to William J. Kovacic . .

APPENDIX C: NREPC/OSM Action Plan for Resolving Mountaintop
Mining Issues .................... eee

A. Purpose 20 eee eee
B. OSM’s Evaluation of Approximate Original Contour and Post-Mining
Land Use in Kentucky ............-..

1. Approximate Original Contour: Policy and Implementation
of Approximate Original Contour .................-.--
Excess Spoil Fills: Design and Construction .
Post-Mining Land Uses............

Mine Classification and Inventory
Needed Program Amendment .................. nn
Permit Findings ......... Lente eee eee teen ee
Permit Documentation: Expected Need and Market Data...........

NAWARYWN

Cc. OSM Oversight and Technical Assistance ............. : cece eee

iii

19

20

. 20


currently contains any data fields for variance information. This omission made it
impossible to obtain a reliable electronic inventory of mountaintop mining
permitted to be restored to AOC, mountaintop mining permitted with an AOC
variance, and steep slope mining permitted with an AOC variance.

Proposed Action: The SMIS database has been completed with the ability to reflect
appropriate AOC variances, post-mining land uses associated with the variance,
and acreage. The changes to the database were completed in November 1999.

An internal policy on how data will be input by DSMRE was completed in
December 1999.

Action Date: December 1999.
5. Needed Program Amendment

Issue: The approved Kentucky program does not specifically require applicants for steep
slope variances to demonstrate that the total volume of flow from the proposed
mine, during every season of the year, will not vary in any way that adversely
affects the ecology of any surface water or of any existing or planned use of
surface or groundwater, and that the plan must be approved by the "appropriate
State environmental agency."

Proposed Action: DSMRE published a Notice of Intent to Promulgate an
Administrative Regulation on September 1, 1999. This regulation filed a
proposed regulation with the Legislative Research Commission on January 27,
2000. On February 1, 2000, OSM received the proposed program amendment
from DSMRE to address this ongoing issue.

Action Date: January 27, 2000.
6. Permit Findings

Issue: DSMRE has been using an Affirmative Findings - Issuance/Denial Checklist to
document permit applicants’ compliance with the regulatory requirements for
mountaintop removal and steep slope AOC variance. At least in its present form,
this checklist fails to adequately assure that applicants have fully satisfied the
pertinent requirements. Specifically, DSMRE should modify its findings checklist
to include the specific finding required by 405 Kentucky Administrative
Regulations (KAR) 8:050, Section 4, for a mountaintop removal AOC variance,
the specific finding required by 405 KAR 8:050, Section 6, for a steep slope AOC
variance, and to include some reference to the relevant portions of the permit
application that support these findings.

23


TABLE OF CONTENTS

Page

1. FORWARD 2.000200 e nents 1

Il. INTRODUCTION ... 2.200220 2

Ii. CONCLUSIONS AND RECOMMENDATIONS ...................0.-0005. 3

A. Approximate Original Contour and Variances... 2... ..00 000.000 e eee ee 4

B. Excess Spoil Fills... . cette e eee eee eee eee eee 4

C. Post-Mining Land Uses ......... nnn cece eee eee 5

Dz. Mine Classification and Inventory»... 0.0. cece 5

E Needed Program Amendment ..................- beet eee eee 6

F. Permit Findings 2... cette eee 6

APPENDIX A: Disposition of Public Comments ..................... 0000000 e eee 7
General: OSM Should Ensure Full Compliance with the Surface Mining Control

and Reclamation Act and the Approved Kentucky Program ............ cove 8

A. Approximate Original Contour and Variances ................ Seve e ee 9

B. Excess Spoil Fills 2.0.0... ccc eee ee 10

C. Post-Mining Land Uses .. 2.22.0. eee eee 12

D. Mine Classification and Inventory ...............-.....- See eee 13

E. Needed Program Amendment .....................- Lecter 13

F. Permit Findings ........0.0..0000202 000000000008 cece cence ee 14

Miscellaneous Benet eee t eee eee 14


6

but OSM has an oversight responsibility to assure that the approved State program is
being properly administered.

Comments: Several comments were received regarding how mining operations have been
reclaimed to AOC. One comment agreed with OSM’s analysis in the draft report that
disturbance at Kentucky’s minesites have generally been in the upper elevation of the
mountains and that total relief has not been eliminated. Another comment agreed with
OSM’s analysis that a change in elevation by itself did not constitute a departure from
AOC. Another comment questioned whether in fact there was a need to more clearly
define AOC for Kentucky operations.

Response: As discussed in the draft AOC report, the Federal and State regulations define
AOC to include several factors including spoil placement, stability, access, drainage
control, and post-mining land use configuration. We appreciate the comments agreeing
with parts of the analysis but affirm our recommendation that Kentucky develop a formal
AOC policy.

Comment: One comment stated that the excess spoil fills were not subject to the AOC
requirement.

Response: OSM agrees with the comment. Both the Federal definition and Kentucky’s
approved program definition of AOC define the applicability to the "mined area" and,
therefore, the requirement would not apply to other areas such as the excess spoil fills.

Comments: Several comments expressed concern as to what extent the new standards
would apply to existing permits. Two comments expressed the view that retroactive
application of a new policy would be neither logical nor fair since those permits had
developed mine plans based on permits that had ample public and regulatory
involvement. One comment expressed concern that this action could represent a
regulatory taking. Another comment recommended a comprehensive review of all
existing permits and required improperly issued permits be modified. The comment
endorsed a short timetable to complete this work with periodic public notices and
updates.

Response: In response to these comments, we have expressed our intention regarding
existing permits more clearly in this report in Section IT - Conclusions and
Recommendations, and also in the Action Plan in Appendix C.

B. Excess Spoil Filis
Comments: Two comments stated their view that "wing dumping" or "side dumping"

was either not an issue or only a minor concern. One comment expressed concern about
ping” because of the restrictive cost of the alternative, hauling

eliminating “wing dur

10


18.

19.

recreational facilities) did not appear to comply with Section 515(d) of the Surface
Mining Control and Reclamation Act.

Response: None of the sites reviewed for this evaluation were on U.S. Army Corps of
Engineers project areas. OSM will further discuss this issue with the Corps of Engineers
to better understand the concern.

D. Mine Classification and Inventory

Comments: One comment stated that database tracking systems for mountaintop removal
operations and associated waivers are not required by Kentucky or Federal law.
Kentucky has consistently improved its SMIS database to reflect pertinent information.
OSM should work with Kentucky on relevant data collection. OSM should not be critical
of Kentucky’s existing database. Two comments were that there was no objection to the
findings and recommended that OSM and DSMRE work together.

Response: Section 201 of SMCRA established OSM to administer and implement the
Act. OSM’s primary role in a State that has received primacy with an approved program
is to monitor the State to ensure that it maintains the capability to fulfill those SMCRA
responsibilities. In Kentucky, OSM chose to use SMIS in many of the evaluations in lieu
of receiving each permit issued within the State. Therefore, it is important that SMIS be
reliable for oversight and public credibility. DSMRE has taken the lead to improve SMIS
as agreed to in the Action Plan found in Appendix C.

E. Needed Program Amendment

Comments: Two comments agreed with the finding that the approved Kentucky program
does not specifically require applicants for steep slope variances to demonstrate the total
volume of flow from the proposed mine, during every season of the year, will not vary in
any way that adversely affects the ecology of any surface water or of any existing or
planned use of surface or groundwater, and that the plan must be approved by the
“appropriate State environmental agency." Other comments pointed out that DSMRE has
committed to correcting these issues. One comment questioned why OSM made an issue
of this deficiency in the draft report. One comment recommended that the identified
agency be DSMRE while another recommended the Kentucky Division of Water.

Response: DSMRE has initiated promulgation of an administrative regulation that
addresses the required amendment. This final report reflects DSMRE’S commitment to
complete that rulemaking. Finally, the proposed regulation will be processed with public
participation both at the State and Federal level.

13