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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 - 118 -

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-119- 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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-120- 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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- 121- 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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-122- 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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-123- 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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-124- 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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-125- 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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-126- 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 25C. 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 25C, 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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-127- 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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-128- 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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-129- (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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-130- 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 25C, 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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-131- (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 25C, 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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-132- (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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-133- (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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-134- 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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-135- ~ ~ , 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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-136 - 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.