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2 Legal and Regulatory Framework THE FEDERAL SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977 AND 'RECHARGE CAPACITY" Introduction The Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA; 30 USC 1201-1328) is comprehensive, covering over 85 pages of printed text. The specific language that this committee was concerned with is a subpart of one of 25 listed environmental protection performance standards that are to guide surface mining. Because the context in which the language appears is helpful in understanding the scope and meaning of the language, the full context is set out, with the language of concern to this committee highlighted: (b) General performance standards shall be applicable to all surface coal mining and reclamation operations and shall require the operation as a minimum to-- (10) minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining -7-

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-8- operations and during reclamation by-- (A) avoiding acid or other toxic mine drainage by such measures as, but not limited to-- (i) preventing or removing water from contact with toxic producing deposits; (ii) treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses; (iii) casing, sealing, or otherwise managing boreholes, shafts, and wells and keep acid or other toxic drainage from entering ground and surface waters; (B) (i) conducting surface coal mining operations so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow, or runoff outside the permit area, but in no event shall contributions be in excess of requirements set by applicable state or federal law; (ii) constructing any siltation structures pursuant to subparagraph (B) (i) of this subsection prior to commencement of surface coal mining operations, such structures to be certified by a qualified registered engineer to be constructed as designed and as approved in the reclamation plan; (C) cleaning out and removing temporary or large settling ponds or other siltation structures from drainways after disturbed areas are revegetated and stabilized; and depositing the silt and debris at a site and in a manner approved by the regulatory authority; (D) restoring recharge capacity of the mined area to approximate pre-mininz conditions; it) avoiding channel deepening or enlargement in operations requiring the discharge of water from mines; (F) preserving throughout the mining and reclamation process the essential hydrologic functions of alluvial valley floors in the arid and semiarid areas of the country; and (G) such other actions as the regulatory authority may prescribe . . .

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- 9 - In the language to be interpreted, "restoring recharge capacity of the mined area to approximate pre-mining conditions," there are three key phrases whose meaning must be delineated: (1) "recharge capacity," (2) "the mined area," and (3) "restoring . . . to approximate pre-mining conditions." None of these words, terms, or phrases, is defined in SMCRA. ~ ~ _ ~ A common dictionary contains meanings for all of the listed words. For example, "recharge" is "to charge again" (Webster's New Collegiate Dictionary, 1Yb3, p. 706, and "capacity" is either "power of receiving" or "extent of room or space" p. 122~. However, a listing of even only two definitions for "capacity" requires that selections be made. "Approximate" is "nearly resembling" p. 44~; "restore" is "to put back into the former or original state" p. 722~. Although standard dictionary definitions and common usage may be sufficient for words such as "restore" and "approximate,)' the definitions are not sufficient for other words such as "recharge" and "capacity." These words are used in SMCRA in a specialized context in a specific combination. Dictionary definitions do not reflect this context and combination. Even in the specialized contexts of water science and water law, the combination "recharge capacity" does not have a clear and universally understood meaning. History* and Context Surface Mining Control and Reclamation Act of 1974 The recharge capacity provision was added to a Senate bill (S. 425) on October 9, 1973, through amendment on the Senate floor. This bill was to *For an overview of the legislative history available on SMCRA, see Appendix B.

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- 1 0 - become the Surface Mining Control and Reclamation Act of 1974. The specific proposal read as follows: 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. 33321 (1973~. For the entire context, including two other amendments, in which Senator Moss presented the proposal, see Appendix B. All of the amendments were agreed to by legislators acting as a bloc without a roll call (119 Cong. Rec. 33322 (1973~. This earliest language varies in two respects from the language in SMCRA of 1977. It focuses on the recharge capacity of the "aquifer at the mine sites' and includes the concept of protecting "alluvial valley floors." These focal points are explained in Senator Moss's comments. He referred to the problem that both surface and underground mining could cause as "intersecting aquifers and discharging this ground water into surface drainage systems" (119 Cong. Rec. 33322 (1973~. He noted that while such action might have little impact in the eastern states, it could have substantial impacts on land use and the economy in the arid and semiarid states. He then stated: In order to assure that both the short- and long-term disruptive impacts of mining on ground water supplies are minimized, it is necessary that reclamation be conducted in such a way so as to maximize the recharge capacity of the mine sites. The design of spoil handling, placement, and grading operations should be done to enhance recharge potential at the site. For those mining operations, singularly or in combination, which cut across or destroy large aquifers, mining should be predicated on the

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- 11- ability to replace the aquifer storage and recharge capability by selective spoil material segregation and handling. Similarly, the alluvial valley floors and stream channels at the mine site must be preserved (119 Cong. Rec. 33322 (19739~. The House bill (H.R. 11500) that passed and was to be reconciled with S. 425 already contained the provisions added by the Moss amendment to S. 425 when it was reported by committee to the House in May 1974. Because none of the 15 House bills that were introduced and considered in the public hearings in 1973 contained the recharge capacity language, it must have been added by committee action. H.R. 11500 divided the recharge capacity and alluvial valley provisions and omitted reference to aquifers: (D) restoring recharge capacity of the mine sites to approximate pre-mining conditions; (E) preserving throughout the mining and reclamation process the hydrologic integrity of alluvial valley floors in the arid and semiarid areas of the country (120 Cong. Rec. 23702, 23703, 23705 (1974~. Since the House Committee first reported the recharge capacity provision in 1974, the House did not change its explanation of the provision. That explanation is as follows: In order to assure that both the short and long term disruptive impacts of mining and ground water supplies are minimized, it is necessary that reclamation be conducted in such a way so as to maximize the recharge capacity of the mine site upon completion. Recharge capacity refers to the ability of an area to replenish its ground water content from precipitation and infiltration from surrounding lands. Restoring recharge capacity does not mean restoring the aquifer, but Restoring recharge

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-12- rather that the capability of an area to recharge an aquifer be restored. Spoil handling and placement and grading operations should be designed to enhance the recharge potential of the site. It is anticipated that in those mining operations which singularly or in combination would mine or seriously affect large aquifers, mining should be predicated on the ability of the operator to replace to the extent possible the ground water storage and recharge capability of the site by selective spoil material segregation and handling. (H.R. Rept. No. 93-1072, 93d Cong., 2d Sess. 100 (1974): H.R. Rent. No. 94-45, 94th Cong., 1st Sess. No. 94-896, 94th Cong., 2d ~ ~ , ~ 106 (1975); H.R. Rept. Sess. 63 (1976); H.R. Rept. No. 95-218, 95th Cong., 1st Sess. 116 (1977)). Several comments made on the House floor reflect on the meaning of the recharge provision. ltWhat _ is the difference "contrasting permitted river bed mining] if the coal seam is an aquifer and the ground has porosity and is not adversely affected? That can be done under this very reasonable bill, providing there is no damage to the hydrologic balance of the mined area" (120 Cong. Rec. 23666 (1974~. The following exchange occurred between Congressman Hechler and Congressman Regula: congressman Koncallo or Wyoming commented: [Hechler:] What would the gentleman propose in those areas where the coal seam is actually the aquifer? It seems to me in the vast areas in the West which are very short in the supply of rainfall, under 15 or 16 inches, and where the coal seam constitutes the aquifer, that it would make sense to prevent surface mining where we could destroy the water supply in those areas. [Regula:] What we have to weigh is the best use of our land resources, including the mineral that is contained therein in terms of our nation's needs. There may be some instances where the total use of our coal resource is just as we have

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-13- done in the bauxite mines, just as we have in cement mines, gravel mines, and many other types of mining, where we actually are in effect mining the aquifer as the mineral resource. I do not see any difference in some of the western areas with approaching coal mining in the same way we handle other types of mineral mining. (120 Cong. Rec. 23671 (1974~. In the discussions of surface mining bills, members of Congress frequently referred to a 1974 National Research Council study (NRC, 19741; particularly Chapter 4, "Water Resources in Relation to Surface Mining", which was also cited in the discussions on recharge capacity and alluvial floors. The following excerpts from that NRC study were noted in a statement by Congressman Hechler: "Groundwater supplies upslope and downslope from the cut may be depleted either temporarily or permanently . . . . It is not known to what extent the aquifer characteristics of the stratum formerly occupied by the coal seam might be restored" (120 Cong. Congressman Evans also referred to a the 1974 NRC study: "In planning of mining and rehabilitation it is essential to stipulate the alluvial floors be preserved" (120 Cong. Rec. 25011 (19749~. Mr. Roncalio in discussing alluvial valley floors and aquifer protection noted: --a ~ ~ - _ _ Rec. 24100 (1974~. ~ - statement from and oronosed The Evans' amendment to protect these alluvial valley floors should not be confused with mining of coal seams that are aquifers. The committee bill and the Evans' amendment would allow the mining of aquifers so long as the hydrologic ; mnac t cuff the mining operation is --on ~ r ~ 'm~n~m~zed,--section 211. This would mean that a coal company could remove a coal seam that was serving as an aquifer. (120 Cong. Rec. 25011 (1974~)

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-14- The other two bills actively being considered by the House at the same time as H.R. 11500 contained differing versions of Subsection (D). H.R. 12898 provided: "(E) restoring to the maximum extent practicable recharge capacity of the aquifer at the mine site to pre-mining conditions" (120 Cong. Rec. 23694 (1974) (emphasis added. H.R. 15000 provided: "(E) restoring recharge capacity of the aquifer at the mine sites to approximate pre-mining conditions" (120 Cong. Rec. 23703 (1974~. Although, as originally introduced in the Senate, the recharge provision included the dual protection of aquifers and alluvial floors, they were separated by the House and remained permanently separated thereafter. The Conference Report draft, adopted in both the Senate and the House and sent to the president, contained the House's separation of the recharge capacity and alluvial floor provisions but more nearly the Senate's language on recharge capacity: "(D) restoring recharge capacity of the aquifer at the mine site to approximate pre-mining conditions" (H.R. Rept. No. 93-1522, 93d Cong., 2d Sess. 37 (1974~. The Conference Report did not state any reason for adopting the Senate's language. SMCRA of 1974 was vetoed. Surface Mining Control and Reclamation Act of 1975 As passed in the Senate, S. 7 included the language: "(D) restoring recharge capacity of the mined area to approximate pre-mining conditions" (121 Cong. Rec. 12943 (1975~. The House version, H.R. 25, contained different language: "(D) restoring recharge capacity of the aquifer at the mine site to approximate pre-mining conditions" (121 Cong. Rec. 6824 (1975~. The House language had thus become identical to the language that the Conference Report had adopted in SMCRA of 1974 and to what had been originally the Senate language. However, the new language in the Senate version was similar to the House language in SMCRA of 1974

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-15- prior to the Conference Report. The draft of S. 7 reported to the Senate by the Senate Committee contained interlineations showing that the committee had changed the draft language from "aquifer" restoration to ''mined area" restoration (S. Rept. No. 28, 94th Cong., 1st Sess. 84 (1975~. However, the Senate Committee did not explain in the report why it had changed the language. If ~ Congressman Melcher of Montana moved on the House floor to substitute the Senate language into the House bill (121 Cong. Rec. 6830 (1975~. This meant two changes. First, "of the aquifer" would be deleted. Second, "mined area" would be substituted for "mine site." Congressman Melcher explained the reasons for the two changes as follows: [T]his amendment comes to me after virtually the identical language was adopted by the Senate in their version of the bill and at the recommendation of Montana Power Co. who through Western Energy is engaged in strip mining at Colstrip, Montana. . . . (D) refers to restoring the capacity of the Omened area, to approximate pre-m~n~ng conditions. As we have the bill before us we are talking about the 'recharge capacity of the aquifer at the mine site.' There are other points to consider. One is when coal is the aquifer and we remove it, it is pretty difficult to come up with an equal aquifer, but what we are really intending in the bill is to restore the recharge capacity, the amount of water that was there before. That is what is important. Then rather than saying 'mine site,' the amendment says 'mined area.' Rather than just restrict the requirement to the very narrow area being mined, my amendment protects the water capacity of the area around the mine site. Farmers and ranchers around the perimeter of the mined area, may find themselves having their water diminished or damaged. At

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-16 times they are prevent that. ~ ~ . . seriously damaged. We want to The first part of my amendment wound give cnem protection. (121 Cong. Rec. 6830-31 (1975~. This amendment was approved without a roll call. As thus changed, the language appeared in SMCRA of 1975, which however, was vetoed. Surface Mining Control and Reclamation Act of 1977 Both the House and Senate bills reported by committee in 1977, and which were to become SMCRA of 1977, contained identical recharge capacity provisions: "(D) restoring recharge capacity of the mined area to approximate pre-mining conditions" (123 Cong. Rec. 12668 (1977) (House); S. Rept. No. 95-128, 95th Cong., 1st Sess. 25 (1977) (Senates. Furthermore, this is the identical language that had passed in SMCRA of 1975. Neither the House nor the Senate discussed the 1977 provisions on the floor. Because Congress contemplated that some aquifers might be mined, it is essential to ask what would determine which would be mined and which would not. Two answers are reflected in SMCRA of 1977. First, aquifers could not be mined if they were in areas that had been declared unsuitable for mining. Congress specifically provided in SMCRA that "a surface area may be designated unsuitable for certain types of surface coal mining operations if such Anti one wi 1 1 effort r~n~w~hl resource ~ . . , C;F _ ~ _ _ ~ ^~ ~ ~ _ ~ Hi._ _ ~ ~ ~ _ ~ ~~ ~ ~~ _ lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products, and such lands to include aquifers and aquifer recharge areas" (30 USC 1272(a)~3~(C)~. Second, if not already included in areas designated unsuitable for mining, aquifers could be mined if the mine operation had been designed to prevent material damage to areas outside the mine permit area. One circumstance

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-17- that would lead to material damage would be an inability to restore the "recharge capacity" of the mined area to approximate pre-mining conditions. The regulatory authority determines in the permitting process whether restoration can be accomplished. Detailed information relevant to determining hydrologic balance in the context of recharge capacity and in other contexts has to be submitted in the application. These information requirements are specified in SMCRA sections that are direct successors to the other provis ions introduced with the recharge capacity provision by Senator Moss as amendments to S. 425, noted above in the discussion titled "Surface Mining Control and Reclamation Act of 1974" and set forth fully in Appendix B. These sections as they appear in SMCRA of 1977 are set forth in Appendix B. If the recharge capacity cannot be restored, the permit is denied. However, if either temporary or permanent interference with a water supply should occur, Congress protects preexisting state law water rights (30 USC 1307(a)) and requires the operator to provide for a substitute water supply under some circumstances (30 USC 1307(b)~. Although the phrase "approximate pre-mining conditions" is not defined in SMCRA or by OSM regulations, SMCRA uses the word "approximate" different context in which SMCRA provides a definition. After mining, the land is to be restored to its "approximate original contour" (30 USC 1265(b)~3~. In defining "approximate original contour," Congress indicated that the land after reclamation was to "closely resemble the general surface configuration of the land prior to mining" (30 USC 1291~2~. Interpretation and Action Subsequent to Passage of SMCRA In a Since March 13, 1979, when the original permanent program regulations were promulgated, OSM has defined "recharge capacity" as "the ability of the

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-18- soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation" (44 Fed. Reg. 15320 (19799; 30 CFR 701.5 (1988~. In addition to repeating the statutory requirements, the regulations promulgated in 1979 also required that the reclamation plan include "a plan for the restoration of the approximate recharge capacity of the mine plan area in accordance with 30 CER 816.51 . . . " (44 Fed. Reg. 15359 (1979). In 30 CFR 816.51, the 1979 OSM regulations provided that Surface mining activities shall be conducted in a manner that facilitates reclamation which will restore approximate pre-mining recharge capacity, through restoration of the capability of the reclaimed areas as a whole, excluding-coal processing waste and underground development waste disposal areas and fills, to transmit water to the ground water system. The recharge capacity shall be restored to a condition which-- (a) Supports the approved post-mining land use; (b) Minimizes disturbances to the prevailing hydrologic balance in the mine plan area and in adjacent areas; and (c) Provides a rate of recharge that approximates the pre-mining recharge rate. (44 Fed. Reg. 15402 (1979~; 30 CFR 816.51 (1979~. This provision was removed from the regulations in 1983 (48 Fed. Reg. 43958-89, 43992 regulations adopted in 1983 rely instead on hydrologic reclamation plan 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; and - (1983)). The the

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- 1 9 - (2) Ground water quantity shall be protected by handling earth materials and runoff in a manner that will restore the approximate pre-mining recharge capacity of the reclaimed area as a whole, excluding coal mine waste disposal areas and [excess spoil] fills, so as to allow the movement of water to the ground water system." ~~ in (1983~; 30 CFR 816.41 OCR for page 7
-20- ~ ~L-- -_ "No permit . . . shall be approved unless . . . the regulatory authority finds . . . that-- . . . (2) . . . reclamation . . . can be accomplished . . . (3) the assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance . . . has been made . . . and the proposed operation thereof has been designed to prevent material damage to hydrologic balance outside permit area" (30 USC 1260b)~2~3~. Subsequently, at the stage of mining and reclamation, the regulatory authority must enforce the standard. Hermit application: "No Dermi ~ KENTUCKY AND OSM ROLES As noted in the discussion in Chapter 1, states are allowed to assume primacy in the administration of SMCRA and the regulations promulgated pursuant to SMCRA with the approval of the Secretary of the Interior and thus to become the regulatory authority. Kentucky has assumed primacy with federal consent (30 CFR pt. 917 (19881~. However, OSM retains oversight duties when a state assumes primacy. Thus the role and action of each, in their respective capacities, will be set forth. The Kentucky Surface Coal Mining Law (Ky. Rev. Stat. Ann. 350.420~5) (1983~) contains the same provision on recharge capacity that is in SMCRA. The Kentucky regulations (405 Ky. Admin. Reg. 16:060, 5 (1989~; 405 Ky. Admin. Reg. 8:030, 32~19~2) (19899) copy the new federal regulations set forth above. Neither the federal regulations nor the Kentucky regulations provide specifically that the applicant must provide information on the amount and rate of recharge in the area prior to mining and after reclamation. However, the Kentucky permit application form contains numerous ground water provisions. They are set forth in Appendix B. Surface Mining Control and Reclamation Act of 1977 provides that when a state assumes primacy, the state's jurisdiction in administering SMCRA and

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-21- its regulations is exclusive except as provided in Sections 1271 and 1273 of SMCRA (30 USC 12531. Furthermore, SMCRA makes it clear that if any part of a state program is not being enforced by the state, OSM can enforce that part under Section 1271 (30 USC 1254~. Section 1271(a)~1) provides that when the federal government learns of a possible lack of enforcement, it is to notify the state, and if the state fails to act or to explain its inaction within ten days, the federal government is to inspect and proceed as specified (30 USC 1271(a)~19~. Section 1271(a)~2) provides for direct federal intervention in case of an "imminent danger" (30 USC 1271~2~. Section 1271(b) provides for full assumption of the state program by the federal government (30 USC 1271(b)~. The Section 1271(a)~1) role, the most likely to apply in the recharge capacity situation, is delineated clearly in a recent federal court opinion arising in Kentucky, Annaco Inc. v. U.S. Department of the Interior (675 F. Supp. . . 1052 (E.D. Ky. 1987)). In addition to performing this direct oversight function, OSM is permitted to promulgate regulations that will facilitate its primacy approval and oversight roles (In Re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 (D.C. Cir. 1981) (in bench. In 1986 the National Wildlife Federation and others sued the Kentucky Natural Resources and Environmental Protection Cabinet et al., claiming that Kentucky had not properly administered and enforced the SMCRA requirements since assuming primacy. Among the claims was one that Kentucky had not enforced the hydrologic protection requirements of SMCRA. The case was settled, and one of the specific items included in the settlement agreement dealt with a hydrologic study. OSM had been sued separately but became involved in the suit against Kentucky and when OSM became a party to the settlement with Kentucky, the separate suit against OSM was dismissed. A steering committee was to be selected to advise OSM on a study of the hydrology of Kentucky, and

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-22- specifically, that study was-to undertake to "identify . . . cost-effective approaches to determination of the pre-mining recharge capacity for both eastern and western Kentucky coal field regimes." As previously stated, the steering committee requested assistance from the National Research Council regarding the issue of recharge capacity, and hence this committee was formed. CHAPTER CONCLUSIONS 1. The recharge capacity provision of SMCRA does not prohibit mining aquifers or otherwise disturbing the ground water if after mining and reclamation the hydrologic balance of the mined area is not damaged materially when compared to the pre-mining situation. 2. The hydrologic balance is damaged materially if the mine operator cannot restore the recharge capacity of the mined area to approximate pre-m~ntug conditions. 3. "Recharge capacity" means recharge capability. Although there is language in the legislative history suggesting that at least some members of Congress expected any mined aquifer to be restored, this language gives way to the change in the language of the recharge capacity provision since first introduced and to clear statements such as those in the House Reports cited above. (Technically, however, "ground water recharge rate" is the preferred term.) 4. The definition contained in the Code of Federal Regulations since 1979, "the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation," represents a correct interpretation of the law (30 CFR 701.5 (198891. 5. Although substantial relevant data are required, neither the OSM nor Kentucky regulations specify a data requirement on measuring pre-mining or post-mining recharge capacity. Although the hydrologic data that are required may provide -

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-23- the regulators, OSM _ . . relevant parameters indirectly, and Kentucky, should mandate spec't~ca'iy the relevant parameters. 6. In summary, to implement the recharge capacity restoration provision of SMCRA, the regulatory authority must first determine whether there is a useable ground water supply in the area to be mined or an offsite supply affected by the area to be mined. If there is not a useable ground water supply, the recharge capacity need not be restored because the provision has meaning only in the context of restoring something (a useable ground water supply) of value. Congress was not concerned in the recharge capacity provision with water in the root zone, whereas it was concerned with that aspect in the alluvial valley floor provision. If there is a useable ground water supply, the "recharge capacity" must be restored to approximate pre-mining conditions. "Approximate" means closely resembling. The legislative history and the regulations indicate that this is to be done through materials handling and placement. Although not specifically stated in SMCRA, the assumption would be that this restoration should be complete before bond release. However, because the requirement is only that the capability to recharge ground water supplies in the area be restored, there is no need that actual recharge to any pre-existing level has occurred. Furthermore, how much recharge will take place is also a function of how much precipitation occurs and where. The major problem. then. for the regulatory either (1) - $ ~ ~ ~ authority is that it must be able to calculate in a scientifically acceptable yet economical way how much recharge could take place before mining and how much can take place after mining or (2) determine that no matter how much recharge capability existed before mining, the conditions are such that recharge capability could not be less after mining because the factors controlling recharge have not been adversely affected.