Clerk
United States District Court
P.O. Box - 3934
Charlestown, West Virginia 25339
28 September 1999
Greetings:
The Raymond Proffitt Foundation has the following comments on the documents provided by the Court for public comment:
Mountain top mining is a destructive method of extracting coal. Vast areas of the landscape are permanently altered. The old ways of mining took the coal and left behind unreclaimed waste dumps and polluted rivers and streams. This new way is hardly less destructive, if mountain tops lose hundreds of feet of elevation and entire watersheds are buried under the waste. Those residents left in those areas will live with an environment that will forever be diminished. This is the latest legacy of the coal industry.
The human cost of mountain top removal appears to be of little concern of those in authority, except the Court, which was entirely correct to grant a preliminary injunction. Coal companies are hardly to blame--no one should be surprised to see them defend their interests, which ultimately are financial.
Regulatory agencies, however, such as WV Department of Environmental Protection, the US Army Corps of Engineers, the Office of Surface Mining, and the Environmental Protection Agency have acted irresponsibly in issuing permits for mountain top removal mining. Even now, they are less concerned with following their statutory obligations--they are more interested in "clarifying" the regulations so that permits can be issued (see below). The Court should beware of arguments that if the Court agrees with the plaintiffs, mining in West Virginia will cease. The job of the regulatory agencies is to assess the methods and ensure that if mining continues, compliance with the law will result--not dilute the law simply so that mining can continue in its present form.
We have the following specific comments on the "Memorandum Opinion and Order Granting Preliminary Injunction:"
Page 3: The Court is correct in prefacing its decision with the objectives of the Clean Water Act (as recognized by the 4th Circuit Court of Appeals).
Page 13: The Court does well to review the "arbitrary and capricious: standard, as it certainly appears that the responsibles agencies' decisions "entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [are] so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
Pages 14-15: We agree that the valley fill in Pigeonroost Hollow "would actually and detrimentally affect the stream and its flora and fauna."
Pages 22-23: The Court is correct to note that Hobet acknowledges that the Spruce Fork operation could be mined using truck and shovel, albeit with greater expenses.
Pages 23-24: It strikes us as specious for Hobet's consulting biologist to opine that Pigeonroost Hollow is a damaged community, and therefore, little would be lost if it is completely destroyed by filling. Note the Clean Water Act's objectives is to restore and maintain the Nation's waters. Even if the consultant's opinion is correct (and the opinion is contrary to the evidence), the conclusion is erroneous.
Pages 24-25: Again, the Court correctly notes that the applicable laws "are intended to protect environmental interests."
Page 26: The Court is correct in distinguishing the present, minor impacts to Pigeonroost Branch and the permanent, major impacts that filling will bring.
Page 26, footnote: We respectfully caution the Court to remember that damage to the community results from harm to individual species, when that harm is significant. Although individual species need not be protected throughout the entire length of a stream (e.g., placing of a road culvert may render a some small length of a stream unusable by many species), the elimination of individual species throughout great lengths of stream will have serious community effects. Changes in hydrology, stream bank vegetation, or substrate might be enough to harm individual species sufficiently to cause community-level effects. Here, where the proposed action is to fill the stream channel and watershed with many feet of rock, the individual and community effects are obvious--both the individual species and the community will cease to exist.
Page 27: We agree that destruction of the mountain and Pigeonroost Hollow is "permanent and irreversible."
Page 35: We agree with the Plaintiff's arguments on AOC.
Page 41: We find it amazing that the Corps of Engineers would consider a Nationwide Permit for the permanent destruction of a stream and its watershed with the attributes of Pigeonroost Hollow in the first place, when the characterization of the watershed, even by Hobet, indicates its value. Destruction of it is certainly greater than the "minimal adverse effects" threshold. Also, no cumulative analysis of valley fills has been done.
Page 42: We believe that any close scrutiny of the process in granting buffer zone variances will indicate serious deficiencies (see below).
Page 43, footnote: The Court notes that there were numerous examples of "one agency or team within an agency charged with making a particular finding blindly relied upon a somewhat similar finding made by another agency or team, without any exercise of independent agency expertise or discretion." This would be bad enough if this was as far as the responsible agencies go, but unfortunately, the agencies seem to wish to continue this practice, even if they have to ignore the regulations in the process. The Foundation recently (18 August 1999) submitted identical Freedom of Information Act requests to the COE, EPA and OSM requesting the Memorandum of Understanding that (MOU) purports to clarify the regulations related to the buffer zone (30 CFR 816.57, 817.57), and any records related to its development. Only the COE responded within the statutory 20-day limit, and their response was simply a copy of the MOU and no records related to its development. We had hoped to learn more about the MOU because we believe it is related to the actions of the Court that are currently open for public comment.
While we were thwarted in learning much about the development of the MOU by the agencies' disregard of their duties under FOIA, we have read the final document, and can state that it sets up a mechanism to institutionalize the behavior outlined in the footnote on Page 43. Simply speaking, if the "404(b)(1) Guidelines" (hereafter "Guidelines") are met, then the buffer zone requirements are also met. The agencies say this because they claim that the Guidelines and the OSM and DEP regulations are essentially the same (page 2, paragraph 4 of the MOU).
Among other things (such as violation of water quality standards), the Guidelines prohibit discharge of fill into waters of the United States if "significant degradation" will result (40 CFR 230.10(c)). Four types of effects are outlined (230.10(c)(1-4)). In each of those four subsections, the first three words are "[s]ignificantly adverse effects." It follows that "significant degradation" is the result of "significantly adverse effects." But compare that to 30 CFR 816.57(a)(1): "[s]urface mining activities will... not adversely affect the water quantity and quality or other environmental resources of the stream." Missing from this regulation is the word "significant." This regulation was promulgated in 1983, after the promulgation of the Guidelines. OSM could have simply referred to the Guidelines if they believed that the regulations were similar. With the word "significant" absent, the OSM regulation is possibly a more stringent test than the Guidelines. The purpose of SMCRA is "to protect society and the environment from the adverse effects of surface coal mining operations." The regulation mirrors the statute.
More importantly, the Guidelines speak to permitting the discharge of fill to waters of the United States, and were developed with the recognition that the issuance of a permit results in the destruction of the aquatic resource. "Significant degradation" is assessed in light of Congress' enacting Section 404, which allows fills. The OSM regulation, on the other hand, is specifically concerned with protection of streams, and the issuance of a variance results only in an encroachment of the buffer zone--if protection of the aquatic resource is assured. No destruction of the aquatic resource was ever contemplated under the OSM regulation. It is therefore a more stringent test, and the Guidelines are no substitute.
The MOU states that the COE will "conduct an evaluation" of the project (when an individual 404 permit is required), and if it meets the Guidelines, will provide the documentation to DEP, "which will incorporate the findings to satisfy their determination that the stream buffer zone variance under SMCRA has been met" (emphasis added). This goes far beyond information sharing and coordinated reviews. The agencies will continue the behavior that the Court was concerned with in the footnote on Page 43--failing to use their independent authority, and placing too much reliance on other agencies' findings. (When NWP 21 is used, DEP will determine if the Guidelines are met, and if so, the buffer zone variance (both Federal and state regulations) is also met (page 4). In this instance, the COE will "consider the SMCRA permit in completing its findings.")
In closing we wish to reiterate that mountain top removal mining, with its associated valley fills, as it is practiced in West Virginia, go far beyond what Congress intended in enacting the CWA and SMCRA. We support the Court's issuance of a preliminary injunction.
We thank the Court for the opportunity to comment.
For the Raymond Proffitt Foundation,
Joseph W. Turner, Sec/Tres.
215-945-1329
var.
The Raymond Proffitt Foundation has the following additional comments on the "Memorandum Opinion and Order Granting Preliminary Injunction:"
Page 43, footnote:
When OSM finalized the stream buffer rule (816.57) they also finalized a general rule on fish, wildlife, and environmental values (816.97) (40 FR
30312, June 30, 1983).
1) Relating to the buffer zone rule, one commenter recommended that the word "significantly" be added before the word "disturbed" as in
"[n]o land within 100 feet of an intermittent or perennial stream shall be disturbed." OSM rejected that suggestion. They said that activities could
take place within the buffer zone if "conducted in an environmentally acceptable manner." This is additional evidence that the regulation is
meant to afford complete protection to streams, and that encroachments within the buffer can only take place if protection is assured.
2) The other regulation (816.97(f)), deals with wetlands and commenters pointed out the protection already afforded to wetlands
under the CWA. OSM rejected arguments that the 404 regulatory program was sufficient, and that under SMCRA, additional regulations
were needed, even recognizing that there would be some duplication. If
OSM was intimately aware of the 404 program at that time, why didn't they incorporate the permitting program or the Guidelines into 816.57 or
816.97(f)? Because they are not suitable substitutes.
The August 1999 Memorandum of Understanding between COE, EPA, OSM, and WV DEP relieves OSM from exercising its non-discretionary duty by allowing the COE's Clean Water Act Section 404 process to substitute for the buffer zone test outlined in 30 CFR 816.57. We submit that the latter test is more stringent than the 404 test.
Sincerely,
Joseph W. Turner
Sec/Treas.