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APPENDIX B
Legal Background
B1. THE LEGISIATIVE HISTORY OF SMCRA
Three distinct categories of legislative history
assist in the process of interpreting language in
SMCRA of 1977 (P.L. 95-87~: (1) other surface
mining bills, (2) committee hearings and reports,
and (3) floor discussions in the Senate and House
of Representatives.
1. Other surface mining bills. Although surface
mining bills were introduced into the Congress as
early as the 1940s, the first significant step in
the process that led to SMCRA was the inclusion of
a section in the Appalachian Regional Development
Act of 1965 that required the secretary of the
interior to "make a survey and study of strip and
surface mining operations and their effects in the
United States." In 1966 before the interior
secretary's final report was issued but after an
interim report came out, Senator Lausche of Ohio
introduced a bill (S. 3882) to control surface
mining. Time ran out before the bill could be
considered, and the process began again in the 90th
Congress (1967-19689. The interior secretary's
final report came out in 1967. Senator Lausche
introduced a new bill (S. 217) in 1967; the
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Administration introduced its bill in 1968 through
Senator Jackson (S. 3132~; Senator Nelson
Over the period
from 1966 to 1977 and the passage of SMCRA, the
number of bills introduced was substantial. For
example, at least 18 bills were introduced in the
House of Representatives alone in the 93rd Congress
(1973-1974~. In this interim two bills, S. 425 in
1973-1974 and H.R. 25 in 1975, passed both the
House and Senate but were vetoed by the President.
~ , ,
introduced a third bill (S. 31261.
, .
2. Committee hearings and reports. Although
congressional hearings on surface mining go back at
least to the 1940s, the first hearing on surface
mining after the Department of Interior Report came
out was held during the 90th Congress (1967-1968)
on April 30th, May 1st and May 2nd, 1968. This
hearing was on S. 3132, S. 3126, and S. 217, three
bills referred to above in the discussion of other
surface mining bills. In addition, Congress held
hearings on proposed surface mining legislation in
1971. 1972. 1973. and 1977.
_ ~ _ _ . _ 7 ~ ~
House of Representatives and Senate committee
reports accompany bills that are recommended for
passage by the respective committees. When the
House and Senate pass different versions of a bill,
a conference committee is named to resolve the
differences. Conference reports set forth and
justify the major changes agreed to by the
conferees. From the earliest report on a surface
mining bill (S. Rept. No. 92-1162, 92nd Cong., 2nd
Sess. (1972~), dated September 18, 1972, to the
Conference Report on SMCRA (H. Rept. No. 95-493,
95th Cong., 1st Sess. (1977~), inclusive, Congress
issued 13 reports.
No 92-1162
_
~ F1~' Hi Rot mnc in The R"n~t~ and HnI~ of
Representatives. The first floor discussion
dealing with a bill proposing surface mining
regulation after the Department of Interior Report
came out occurred in the House of Representatives
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in the 92d Congress (1971-1972~. This discussion,
on October 11, 1972, was on H.R. 6482 and ended
with the House passing H.R. 6482 on a 265 to 75
vote. Thereafter there were 12 significant floor
discussions in Congress before SMCRA was passed in
1977.
For additional discussions of legislative history
related to surface mining control, see Dunlap
(1975) and Waters (19809.
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B2. CO~TEx~r OF RECHARGE CAPACITY
PROVISION AS INTRODUCEI) IN 1973
[Senator Moss:] At the appropriate place in
Section 208 [permit application requirements; add
the following:
(14) a determination of the hydrologic
consequences of the mining and reclamation
operations, both on and off the mine site,
with respect to the hydrologic regime,
quantity and quality of water in surface and
ground water systems and the collection of
sufficient data for the mine site and
surrounding area so that an assessment can be
made of the probable cumulative impacts of all
anticipated mining in the area upon the
hydrology of the area and particularly upon
water availability. For those mining and
reclamation operations which remove or disturb
strata that serve as aquifers which
significantly insure the hydrologic balance of
water use either on or off the mining site,
the regulatory authority shall specify:
(A) monitoring sites to record the quantity
and quality of surface drainage above and
below the mine site as well as in the
potential zone of influence;
(B) monitoring sites to record level, amount,
and samples of ground water aquifers
.
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potentially affected by the mining and also
directly below the lower most (deepest) coal
seam to be mined;
(C) the maintenance of records of well logs
and boreholes; and
(D) monitoring sites to record precipitation.
The monitoring, data collection and analysis
required by this section shall be conducted
according to standards and procedures set
forth by the regulatory authority in order to
assure their reliability and validity.
At the appropriate place in Section 213 [Criteria
for surface mining and reclamation operations],
add the following:
(11) a detailed description of the measures to
be taken during the mining and reclamation
process to assure the protection of (A) the
quantity and quality of surface and ground
water systems, both on- and off-site, from
adverse effects of the mining and reclamation
process, and (B) the rights of present users
to such water.
At the appropriate place in Section 213 [Criteria
for surface mining and reclamation operations],
add a new paragraph (E) as follows:
by restoring recharge capacity of the aquifer
at the mine site and protecting alluvial valley
floors."
(119 Cong. Rec. 33,321 (19739)
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B3. SMCRA OF 1977 VERSIONS OF
SECTIONS IN APPENDIX B2
(b) The permit application shall be submitted in
a manner satisfactory to the regulatory authority
and shall contain, among other things--
(11) a determination of the probable hydrologic
consequences of the mining and reclamation
operations, both on and off the mine site, with
respect to the hydrologic regime, quantity and
quality of water in surface and ground water
systems including the dissolved and suspended
solids under seasonal flow conditions and the
collection of sufficient data for the mine site and
surrounding areas so that an assessment can be made
by the regulatory authority of the probable
cumulative impacts of all anticipated mining in the
area upon the hydrology of the area and
particularly upon water availability. Provided,
however, that this determination shall not be
required until such time as hydrologic information
on the general area prior to mining is made
available from an appropriate Federal or State
agency: Provided further, that the permit shall
not be approved until such information is available
and is incorporated into the application. "
(30 U. S . C . § 1257 (b) (11) )
[F]or those surface coal mining and
reclamation operations which remove or disturb
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strata that serve as aquifers which significantly
insure the hydrologic balance of water use either
on or off the mining site, the regulatory
authority shall specify:
(A) monitoring sites to record the quantity
and quality of surface drainage above and below
the mine site as well as in the potential zone of
influence;
(B) monitoring sites to record level, amount,
and samples of ground water and aquifers
potentially affected by the mining and also
directly below the lowermost (deepest) coal seam
to be mined;
(C) records of well logs and borehole data to
be maintained; and
(D) monitoring sites to record precipitation.
The monitoring, data collection and analysis
required by this section shall be conducted
according to standards and procedures set forth
by the regulatory authority in order to assure
their reliability and validity.
(30 U.S.C. § 1267(b)~2~)
[In addition, the applicant for a mining permit
must submit a reclamation plan that includes:]
· · —
(13) a detailed description of the measures to
be taken during the mining and reclamation
process to assure the protection of: (A) the
quality of surface and ground water systems, both
on- and off-site, from adverse effects of the
mining and reclamation process; (B) the rights of
present users to such water; and (C) the quantity
of surface and ground water systems, both on- and
off-site, from adverse effects of the mining and
reclamation process or to provide alternative
sources of water where such protection of
quantity cannot be assured.
(30 U.S.C. § 1258(a)~131)
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B4. OSM HYDROLOGIC INFORNATION
AND BALANCE REGULATIONS
30 C.F.R. § 780.21 Hydrologic information.
(a) Sampling and analysis methodology. All
water-quality analyses performed to meet the
requirements of this section shall be conducted
according to the methodology in the 15th edition of
"Standard Methods for the Examination of Water and
Wastewater," which is incorporated by reference, or
the methodology in 40 CFR Parts 136 and 434. Water
quality sampling performed to meet the requirements
of this section shall be conducted according to
either methodology listed above when feasible.
"Standard Methods for the Examination of Water and
Wastewater" is a joint publication of the American
Public Health Association, the American Water Works
Association, and the Water Pollution Control
Federation and is available from the American
Public Health Association, 1015 15th Street, NW,
Washington, DC 20036. This document is also
available for inspection at the Office of the
Federal Register Information Center, Room 8301,
1100 L Street, NW, Washington, DC; at the Office of
the OSM Administrative Record, U.S. Department of
the Interior, Room 5315, 1100 L Street, NW,
Washington, DC; at the OSM Eastern Technical
Service Center, U.S. Department of the Interior,
Building 10, Parkway Center, Pittsburgh, Pa.; and
at the OSM Western Technical Service Center, U.S.
Department of the Interior, Brooks Tower, 1020 15th
Street, Denver, Colo. This incorporation by
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reference was approved by the Director of the
Federal Resister on October 26, 1983. This
incorporated as it exists on the date
ot the approval, and a notice of any change in it
will be published in the Federal Register.
(b) Baseline information. The application shall
include the following baseline hydrologic
information, and any additional information
required by the regulatory authority.
(1) Ground-water information. The location and
ownership for the permit and adjacent areas of
existing wells, springs, and other ground-water
resources, seasonal quality and quantity of ground
water, and usage. Water quality descriptions shall
include, at a minimum, total dissolved solids or
specific conductance corrected to 25°C. pH, total
iron, and total manganese.
descriptions shall include, at a minimum,
approximate rates of discharge or usage and depth
to the water in the coal seam, and each
water-bearing stratum above and potentially
impacted stratum below the coal seam.
(2) Surface-water information. The name,
location, ownership, and description of all
surface-water bodies such as streams, lakes, and
impoundments, the location of any discharge into
any surface-water body in the proposed permit and
adjacent areas, and information on surface-water
quality and quantity sufficient to demonstrate
seasonal variation and water usage. Water quality
descriptions shall include, at a minimum, baseline
information on total suspended solids, total
dissolved solids or specific conductance corrected
to 25°C, pH, total iron, and total manganese.
Baseline acidity and alkalinity information shall
be provided if there is a potential for acid
drainage from the proposed mining operation. Water
quantity descriptions shall include, at a minimum,
baseline information on seasonal flow rates.
(3) Supplemental information. If the
determination of the probable hydrologic
consequences (PHC) required by paragraph (f) of
this section indicates that adverse impacts on or
document is incorporated as it exists
~ .
(a) Baseline Information.
~~ ~ ~ r
~ 7 , ~
Ground-water Quantity
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off the proposed permit area may occur to the
hydrologic balance, or that acid-forming or
toxic-forming material is present that may result
in the contamination of ground-water or
surface-water supplies, then information
supplemental to that required under paragraphs (b)
(1) and (2) of this section shall be provided to
evaluate such probable hydrologic consequences and
to plan remedial and reclamation activities. Such
supplemental information may be based upon
drilling, aquifer tests, hydrogeologic analysis of
the water-bearing strata, flood flows, or analysis
of other water quality or quantity characteristics.
(c) Baseline cumulative impact area information.
(1) Hydrologic and geologic information for the
cumulative impact area necessary to assess the
probable cumulative hydrologic impacts of the
proposed operation and all anticipated mining on
surface- and ground-water systems as required by
paragraph (g) of this section shall be provided to
the regulatory authority if available from
appropriate Federal or State agencies.
(2) If the information is not available from such
agencies, then the applicant may gather and submit
this information to the regulatory authority as
part of the permit application.
(3) The permit shall not be approved until the
necessary hydrologic and
-
geologic information is
available to the regulatory authority.
(d) Modeling. The use of modeling techniques,
interpolation or statistical techniques may be
included as part of the permit application, but
actual surface and ground-water information may be
required by the regulatory authority for each site
even when such techniques are used.
(e) Alternative water source information. If the
PHC determination required by paragraph (f) of this
section indicates that the proposed mining
operation may proximately result in contamination,
diminution, or interruption of an underground or
surface source of water within the proposed permit
or adjacent areas which is used for domestic,
agricultural, industrial, or other legitimate
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purpose, then the application shall contain
information on water availability and alternative
water sources, including the suitability of
alternative water sources for existing permining
(sic) uses and approved post-mining land uses.
(f) Probable hydrologic consequences
determination. (1) The application shall contain a
determination of the probable hydrologic
consequences (PHC) of the proposed operation upon
the quality and quantity of surface and ground
water under seasonal flow conditions for the
proposed permit and adjacent areas.
(2) The PHC determination shall be based on
baseline hydrologic, geologic and other information
collected for the permit application and may
include data statistically representative of the
site.
(3) The PHC determination shall include findings
on:
(i) Whether adverse impacts may occur to the
hydrologic balance;
(ii) Whether acid-forming or toxic-forming
materials are present that could result in the
contamination of surface or ground-water supplies;
(iii) Whether the Proposed operation may
proximately result in contamination, diminution or
interruption of an underground or surface source of
water within the proposed permit or adjacent areas
which is used for domestic, agricultural,
industrial, or other legitimate purpose; and
(iv) What impact the proposed operation will have
or:
(A) Sediment yield from the disturbed area; (B)
acidity, total suspended and dissolved solids, and
other important water quality parameters of local
impact; (C) flooding or streamflow alteration; (D)
ground-water and surface-water availability, and
(E) other characteristics as required by the
regulatory authority.
(4) An application for a permit revision shall be
reviewed by the regulatory authority to determine
whether a new or updated PHC determination shall be
required.
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(g) Cumulative hydrologic impact assessment. (1)
The regulatory authority shall provide an -
assessment of the probable cumulative hydrologic
impacts (CHIA) of the proposed operation and all
anticipated mining upon surface- and ground-water
systems in the cumulative impact area. The
shall be sufficient to determine, for purposes or
permit approval, whether the proposed operation has
been designed to prevent material damage to the
hydrologic balance outside the permit area. The
regulatory authority may allow the applicant to
submit data and analyses relevant to the CHIA with
the permit application.
(2) An application for a permit revision shall be
reviewed by the regulatory authority to determine
whether a new or updated CHIA shall be required.
(h) Hydrologic reclamation plan. The application
shall include a plan, with maps and descriptions,
indicating how the relevant requirements of Part
816, including §§ 816.41 to 816.43, will be
met. The plan shall be specific to the local
hydrologic conditions. It shall contain the steps
to be taken during mining and reclamation through
bond release to minimize disturbances to the
hydrologic balance within the permit and adjacent
areas; to prevent material damage outside the
permit area; to meet applicable Federal and State
water quality laws and regulations; and to protect
the rights of present water users. The plan shall
include the measures to be taken to: avoid acid or
toxic drainage; prevent, ~ ~~
a _
area. The CHIA
to the extent possible,
using the best technology currently available,
additional contributions of suspended solids to
streamflow; provide water-treatment facilities when
needed; control drainage; restore approximate
premining recharge capacity and protect or replace
rights of present water users. The plan shall
specifically address and (sic) potential adverse
hydrologic consequences identified in the PHC
determination prepared under paragraph (f) of this
section and shall include preventive and remedial
measures.
(i) Ground-water monitoring plan. (1) The
application shall include a ground-water monitoring
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plan based upon the PHC determination required
under paragraph (f) of this section and the
analysis of all baseline hydrologic, geologic and
other information in the permit application. The
plan shall provide for the monitoring of parameters
that relate to the suitability of the ground water
for current and approved postmining land uses and
to the objectives for protection of the hydrologic
balance set forth in paragraph (h) of this
~ ~ . ~ _
~ . ~ . . . Em.
section. It shall identify the quantity and
quality parameters to be monitored, sampling
frequency, and site locations. It shall describe
how the data may be used to determine the impacts
of the operation upon the hydrologic balance. At a
minimum, total dissolved solids or specific
conductance corrected to 25°C, pH, total iron
total manganese, and water levels shall be
monitored and data submitted to the regulatory
authority at least every 3 months for each
monitoring location. The regulatory authority may
require additional monitoring.
(2) If an applicant can demonstrate by the use of
. .
~ ot Per avai. a ~ e
the PHC determination and ot Per avail. a ~ e
information that a particular water-bearing stratum
in the proposed permit and adjacent areas is not
one which serves as an aquifer which significantly
ensures the hydrologic balance within the
cumulative impact area, then monitoring of that
stratum may be waived by the regulatory authority.
(j) Surface-water monitoring plan. (1) The
application shall include a surface-water
monitoring plan based upon the PHC determination
required under paragraph (f) of this section and
the analysis of all baseline hydrologic, geologic,
and other information in the permit application.
The plan shall provide for the monitoring of
parameters that relate to the suitability of the
surface water for current and approved postmined
land uses and to the objectives for protection of
the hydrologic balance as set forth in paragraph
(h) of this section as well as the limitations
found at 40 CFR Part 434.
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(2) The plan shall identify the surface-water
quantity and quality parameters to be monitored,
sampling frequency and site locations. It shall
describe how the data may be used to determine the
impacts of the operation upon the hydrologic
balance.
(i) At all monitoring locations in the
surface-water bodies such as streams, lakes, and
impoundments, that are potentially impacted or into
which water will be discharged and at upstream
monitoring locations the total dissolved solids or
specific conductance corrected to 25°C, total
suspended solids, pH, total iron, total manganese,
and flow shall be monitored.
(ii) For point-source discharges, monitoring
shall be conducted in accordance with 40 CFR Parts
122, 123 and 434 and as required by the National
Pollutant Discharge Elimination System permitting
authority.
(3) The monitoring reports shall be submitted to
the regulatory authority every 3 months. The
regulatory authority may require additional
monitoring.
§ 816.41 Hydrologic-balance protection.
(a) General. All surface mining and reclamation
activities shall be conducted to minimize
disturbance of the hydrologic balance within the
permit and adjacent areas, to prevent material
damage to the hydrologic balance outside the permit
area, to assure the protection or replacement of
water rights, and to support approved post-mining
land uses in accordance with the terms and
conditions of the approved permit and the
performance standards of this part. The regulatory
authority may require additional preventative,
remedial, or monitoring measures to assure that
material damage to the hydrologic balance outside
the permit area is prevented. Mining and
reclamation practices that minimize water pollution
and changes in flow shall be used in preference to
water treatment.
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(b) Ground-water protection. In order to protect
the hydrologic balance, surface mining activities
shall be conducted according to the plan approved
under § 780.21(h) of this chapter and the
following:
(1) Ground-water quality shall be protected by
handling earth materials and runoff in a manner
that minimizes acidic, toxic, or other harmful
infiltration to ground-water systems and by
managing excavations and other disturbances to
prevent or control the discharge of pollutants into
the ground water.
(2) Ground-water quantity shall be protected by
handling earth materials and runoff in a manner
that will restore the approximate premining
recharge capacity of the reclaimed area as a whole,
excluding coal mine waste disposal areas and fills,
so as to allow the movement of water to the
ground-water system.
(c) Ground-water monitoring. (1) Ground-water
monitoring shall be conducted according to the
ground-water monitoring plan approved under §
780.21(i) of this chapter. The regulatory
authority may require additional monitoring when
necessary.
(2) Ground-water monitoring data shall be
submitted every 3 months to the regulatory
authority or more frequently as prescribed by the
regulatory authority. Monitoring reports shall
include analytical results from each sample taken
during the reporting period. When the analysis of
any ground-water sample indicates noncompliance
with the permit conditions, then the operator shall
promptly notify the regulatory authority and
immediately take the actions provided for in §§
773.17(e) and 780.21(h) of this chapter.
(3) Ground-water monitoring shall proceed through
mining and continue during reclamation until bond
release. Consistent with the procedures of §
774.13 of this chapter, the regulatory authority
may modify the monitoring requirements, including
the parameters covered and the sampling frequency,
if the operator demonstrates, using the monitoring
data obtained under this paragraph, that--
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(i) The operation has minimized disturbance to
the hydrologic balance in the permit and adjacent
areas and prevented material damage to the
hydrologic balance outside the permit area; water
quantity and quality are suitable to support
approved postmining land uses; and the water rights
of other users have been protected or replaced; or
(ii) Monitoring is no longer necessary to achieve
the purposes set forth in the monitoring plan
approved under § 780.21(i) of this chapter.
(4) Equipment, structures, and other devices used
in conjunction with monitoring the quality and
quantity of ground water onsite and offsite shall
be properly installed, maintained, and operated and
shall be removed by the operator when no longer
needed.
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B5. GROI1fID ~ATER PROVISIONS IN
KENTUCKY APPLICATION FORM
14.5 Do aquifers exist within the proposed permit
area below the lowest coal seam to be mined,
which may be adversely affected by the mining
operation? If yes, describe the structural
geology, Ethology and thickness of each stratum
from the lowest coal seam to be mined to such
aquifers. Submit description and related
information as 'Attachment 14.5.A.'
14.6 Describe all aquifers within and adjacent to
the proposed permit area which the mining
operation may adversely impact. Identify the
description as 'Attachment 14.6.A.' At a
minimum, the description must include, for each
aquifer, the following information:
Aquifers within the
permit area
(a) aquifer identification
(b) top elevation
(c) Ethology
(d) thickness
(e) areal extent
(f) number of users
(g) structural geology
Aquifers adjacent to
the permit area
(a) approximate areal
extent ~
(b) approximate
thickness
(c) aquifer
identification
(d) number of users
15.1 Provide the results of the ground water
inventory conducted for the proposed permit and
adjacent areas. The inventory must identify
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~ ~ ,
wells, springs, underground mines or other
similar ground water supply facilities which are
currently being used. have been used in the past,
~ . For each supply
source, describe the location, ownership, type of
use and where possible other relevant information
such as the depths and diameters of wells,
approximate rate of usage, pumpage or discharge.
Provide results as 'Attachment 15.1.A.'
or have a Potential to be used
15.2 Describe the pre-m~ntng ground water
monitoring program used to determine the seasonal
variations in ground water quality and quantity
for all aquifers and water transmitting zones.
At a minimum, six months of data must be
collected. The description must identify the
location and construction specifications of each
monitoring point used, parameters tested, and
laboratory methods used. Submit the description
as 'Attachment 15.2.A.'
15.3 On approved cabinet forms submit the results
of the pre-mining ground water monitoring
program. Original or notarized copies of all
laboratory analyses must be provided. Submit
this information as 'Attachment 15.3.A.'
17.1 Provide as 'Attachment 17.1.A,' a
determination of the probable hydrologic
consequences (phc) which the proposed mining
operation will have on both surface water and
ground water systems within the proposed permit
and adjacent areas. The contents of the
determination must conform to the requirements of
405 KAR 8:030, Section 32 (surface mine) or 405
KAR 8:040, Section 32 (underground mine).
17.2 Provide as 'Attachment 17.2.A,' a detailed
description of the protective measures to be
taken as part of the mining and reclamation
operations to ensure compliance with 405 KAR
16:060, Sections 1,2,3,4,5,6,8,9,12, and 405 KAR
16:080 (surface mine) or 405 KAR 18:060, Sections
, and 405 KAR 18:080 (underground
mine). Detailed designs of protective measures
must be presented in other pertinent sections of
this application.
1,2,3,4,5,7
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-
29.1 Provide as 'Attachment 29.1.A,' a detailed
description of the in-stream surface water
quality and quantity monitoring program to be
used during the mining and reclamation
operations. The location, frequency, and method
of collection must be described along with a list
of parameters tested and the reporting procedure.
Representative terms from entire chapter:
ground water
