Category Archives: Coal and Water

Items on the various connections between water resources and the mining and use of coal.

Stream Protection Rule Regarding Coal Mining Impacts on Waterways Rescinded in February 2017 After Finalization in December 2016

In early February 2017, Congress used the Congressional Review Act to rescind the U.S. Office of Surface Mining Reclamation and Enforcement’s (OSMRE) “Stream Protection Rule,” on impacts of coal mining on waterways.  The rule had been finalized with Federal Register publication on December 20, 2016.  OSMRE’s Web site on the proposed rule is at http://www.osmre.gov/programs/rcm/streamprotectionrule.shtm; a link to the text of the proposed rule is available there.  OSMRE first proposed the rule on July 16, 2015 (the draft rule was published in the Federal Register on July 27, 2015).

According to the OSMRE Web site on 2/14/17, the rule was intended to have done the following:

“…[Define] ‘material damage to the hydrologic balance outside the permit area’ for the first time…clarifying that the statutory prohibition on the approval of proposed operations that would result in material damage to the hydrologic balance outside the permit area applies to both surface and underground mining operations.  Under SMCRA [the Surface Mining Control and Reclamation Act, passed in 1977], the regulatory authority may not approve a permit application unless the application demonstrates, and the regulatory authority finds, that the proposed operation would not result in material damage to the hydrologic balance outside the permit area.

“…[Require] that the regulatory authority specify the point at which adverse mining-related impacts on groundwater and surface water would constitute material damage to the hydrologic balance outside the permit area reach that level of damage.  It further provides that the regulatory authority must specify threshold values for surface water and groundwater parameters that will trigger an evaluation of whether the permit must be revised to prevent the occurrence of material damage to the hydrologic balance outside the permit area.

“…[Expand] the baseline data requirements for permit applications for proposed coal mining operations to ensure that the permittee and the regulatory authority have a complete picture of pre-mining conditions to which the impacts of mining can be compared.  Monitoring during mining and reclamation will include a comprehensive suite of parameters for both surface water and groundwater to ensure that the impacts of mining are identified in a manner that will enable timely initiation of corrective measures.

“…[Require] the restoration of the physical form, hydrologic function, and ecological function of the segment of a perennial or intermittent stream that a permittee mines through.  Additionally, it requires that the post-mining surface configuration of the reclaimed mine site include a drainage pattern, including ephemeral streams, similar to the pre-mining drainage pattern, with exceptions for stability, topographical changes, fish and wildlife habitat, etc.

“…[Require] the establishment of a 100-foot-wide streamside vegetative corridor of native species (including riparian species, when appropriate) along each bank of any restored or permanently-diverted perennial, intermittent, or ephemeral stream.”

The proposed rule’s announcement in July 2015 raised immediate objections from the National Mining Association, some elected officials from mining states like West Virginia, and others about its potential economic impacts.  On the other hand, some environmental organizations criticized the proposal for allowing some variance, under certain conditions, from the 100-foot buffer requirement established in 1983; those conditions are described in the proposed rule on p.364 (part of the section entitled, “What additional requirements apply to proposed activities in, through, or adjacent to streams?”).

The Stream Protection Rule was the latest in a series of regulatory and litigation developments since the 1977 passage of the federal Surface Mining Control and Reclamation Act.  Some of those developments that led to the Stream Protection Rule were the following:
*1983 OSMRE rule requiring a 100-foot buffer zone along streams;
*2008 OSMRE Stream Buffer Zone Rule allowing deposition of mining materials within the 100-foot zone, with certain requirements for reducing impacts;
*2009 Memorandum of Understanding among the Interior Department, U.S. EPA, and Army Corps of Engineers on reducing stream impacts of coal mining, simultaneously starting OSMRE’s process to develop the current proposed regulation; and
*February 2014 ruling by the U.S. District Court for the District of Columbia vacating OSMRE’s 2008 Stream Buffer Zone Rule and reinstating the 1983 buffer zone.

Sources:

House Republicans Vote to End Rule Stopping Coal Mining Debris From Being Dumped in Streams, Associated Press, as published by Time, 2/1/17.

Republicans Move to Block Rule on Coal Mining Near Streams, New York Times, 2/2/17.

Congress passes first rollback of Obama environmental rule, USA Today, 2/2/17.

Federal Register, “Stream Protection Rule,” 81 FR 93066, 12/20/16, online at https://www.federalregister.gov/documents/2016/12/20/2016-29958/stream-protection-rule.

Interior Department Finalizes Stream Protection Rule to Safeguard Communities from Coal Mining Impacts, U.S. Department of the Interior News Release, 12/19/16.

Interior Department Unveils Proposed Stream Protection Rule to Safeguard Communities from Coal Mining Operations, U.S. Department of Interior News Release, 7/16/15.

National Mining Association Calls on Congress to Block OSM’s Costly, Unnecessary Stream Rule
, National Mining Association News Release, 7/16/15.

Interior unveils rule aimed at protecting streams from mining
, and Industry vows to fight ‘needless and conflicting’ stream rule, both from Greenwire, E&E Publishing, 7/16/15 (subscription required for access).

Water in the 2017 Virginia General Assembly: Coal Ash Management Bills

This is one of a series of posts on particular water-related bills in the 2017 Virginia General Assembly.  For an inventory of about 160 water-related bills in the 2017 General Assembly, please visit the Virginia Water Resources Research Center’s “Virginia Water Legislation” page, online at http://www.vwrrc.vt.edu/virginia-water-legislation/.  Each post includes a summary of the bill(s), their legislative status (in committee, passed, failed, etc.), and a list of hyperlinked headlines for news media items on the bill(s).  Information on the bills’ provisions and status is taken from the Virginia Legislative Information System (LIS), online at http://leg1.state.va.us/lis.htm.  Each bill number is hyperlinked to the LIS entry for that bill.

SB1383, sponsored by Sen. Scott Surovell (D-36th District) of Mt. Vernon, would have required electric utilities to recycle as much of their stored coal combustion by-products (o (also called coal combustion residuals, or coal ash) as is imported into the Commonwealth each year, on a pro rata basis.  The bill was stricken from the docket of the Senate Agriculture, Conservation and Natural Resources (ACNR) Committee at the request of Sen. Surovell.

SB 1398, also sponsored by Sen. Surovell, passed the Senate on Feb. 7 and was reported from the House ACNR Committee on February 15.  As passed by the Senate, the bill would prohibit the DEQ director from issuing a draft permit for the closure of a coal combustion residuals unit (CCR unit) located in the Chesapeake Bay watershed (that is, at facilities of Dominion Virginia Power) until the director has reviewed an assessment of closure options prepared by the owner or operator of the CCR unit.  Prior to receiving a permit, the permit-seeker would have to identify water pollution and address corrective measures to resolve it, evaluate the clean closure of the CCR unit by recycling the ash for use in cement or moving it to a landfill, and demonstrate the long-term safety of the CCR unit and its ability to keep ash out of wetlands and other sensitive areas.  The version reported from the House ACNR Committee removed the requirement that the information be provided and reviewed by the director before the director may issue a draft permit for closure of a CCR unit.

SB 1399, also sponsored by Sen. Surovell, would have directed the DEQ to require the closure of surface impoundments of coal combustion by-products, commonly called coal ash ponds, by July 1, 2021.  The bill would have applied to impoundments that managed such by-products from the generation of electricity by an electric utility or independent power producer prior to December 22, 2016, including those impoundments that, prior to December 22, 2016, have been closed by capping in place or have received DEQ approval for closure by capping in place.  The bill would also have required that the coal combustion by-products be removed for disposal in a permitted landfill meeting federal criteria and that the impoundment site be reclaimed in a manner consistent with federal mine reclamation standards for the closure to be deemed complete.  The bill would have allowed the electric utility to recover the costs of closure from customers.  The bill was stricken from the docket of the Senate ACNR Committee at the request of Sen. Surovell.

Some News Media Items on these Bills

Virginia House of Delegates committee defangs coal ash bill, Richmond Times-Dispatch, 2/15/17.

Coal ash bill clears House subcommittee, though not unscathed, Richmond Times-Dispatch, as published by Roanoke Times, 2/14/17.

Coal ash bill clears Senate, but faces challenges in the state House, Fauquier Times, 2/13/17.


Surovell bill to delay Dominion’s coal-ash plans moves to the state Senate, Prince William Times, 2/3/17.

Bill that would require more information on coal-ash closure plans clears Va. Senate committee, Richmond Times-Dispatch, 2/2/17.

Is Recycling a Practical Solution for Coal Ash?, Bacon’s Rebellion, 2/2/17.

Coal ash revaluation, recycling bill that could affect Chesapeake energy site passes Senate panel, Virginian-Pilot, 2/3/17.

Abandoned Coal Mine Clean-up Examined in Nov. 28, 2016, PBS NewsHour Report

On November 28, 2016, the PBS NewsHour aired a 5 min./25 sec. report on coal mine reclamation and particularly on clean-up of abandoned coal-mining sites.  “Why cleaning up abandoned coal mines is so important — and difficult,” available online at http://www.pbs.org/newshour/bb/cleaning-abandoned-coal-mines-important-difficult/, discusses issues of waste left at abandoned mines, reclamation at active mines, potential water-quality impacts of abandoned mine wastes, and funding.  The report includes examples from Pennsylvania and Wyoming.

Proposed Settlement Announced Sep. 30, 2016, for Alleged Southern Coal Corp. Water Pollution Violations at Operations in Virginia and Five Other Appalachian States

On September 30, 2016, the U.S. Justice Department and the U.S. Environmental Protection Agency (EPA) announced a proposed consent agreement for a lawsuit against the Southern Coal Corporation (headquartered in Roanoke, Va.) and 26 affiliated companies over alleged water pollution violations between 2009 and 2014 at company mining operations in Alabama, Kentucky, Tennessee, Virginia, and West Virginia.  Under the proposed settlement, the company would pay a $900,000 civil penalty and implement several measures to ensure better compliance with permits under the Clean Water Act and state laws.  The proposed settlement will undergo a 30-day public-comment period starting on October 7, 2016.  EPA information on the proposed settlement is available online at https://www.epa.gov/enforcement/southern-coal-corporation-clean-water-settlement.

Sources:
Southern Coal Corporation to Make System-Wide Upgrades to Reduce Water Pollution from Mining Operations in Appalachia, U.S. EPA News Release, 9/30/16.

Justice coal operations agree to $900,000 civil penalty to settle environmental lawsuit, Roanoke Times, 10/4/16.

Clean Power Plan Lawsuit Against U.S. EPA Overview and Information Sources – Full Court of Appeals Hears Oral Arguments on September 27, 2016; Supreme Court on Feb. 9, 2016, Granted Stay of Regulation Implementation While Litigation Proceeds

Here’s an overview, as of Sept. 28, 2016, of some developments in the federal lawsuit by 27 states over the U.S. EPA’s Clean Power Plan for regulating carbon emissions from power plants.  The Clean Power Plan, formally known as “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” was published in the Federal Register on October 23, 2015.  The case is State of West Virginia et al. v. United States Environmental Protection Agency et al. in the U.S. Court of Appeals for the District of Columbia.

Developments (starting with oldest)

On November 4, 2015, Virginia Attorney General Mark Herring announced that Virginia would be part of a coalition of 14 states plus several localities seeking to intervene to support the U.S. EPA in the lawsuit.

On February 9, 2016, the U.S. Supreme Court granted a stay of EPA’s implementation of the regulation until the lawsuit has run its course. The stay will remain is effect while the case returns to the D.C. Appeals Court to hear the merits of the lawsuit and for any appeals of that court’s eventual ruling.  That court is scheduled to hear oral arguments in June 2016.  Responding to the stay, Va. Gov. Terry McAuliffe said in a February 10 news release that “we will stay on course and continue to develop the elements for a Virginia plan to reduce carbon emissions and stimulate our clean energy economy.”

On May 16, 2016, the U.S. Court of Appeals for the District of Columbia decided that the full court will hear the case, rather than a three-judge panel.  Previously, the smaller panel had been scheduled to hear the case on June 2, 2016.

On September 27, 2016, for about seven hours, the D.C. Appeals Court heard oral arguments in the case.  The court’s 10 active judges were present; Supreme Court nominee Merrick Garland recused himself from the case.  According to the CNN account of the hearings (Appeals court hears high-stakes challenge to Obama’s clean power plan, CNN, 9/27/16), “[d]ozens of lawyers from the government, industry, and public interest groups packed” the courtroom.  For more on the day’s arguments, see E&E Publishing’s “Clean Power Plan Hub,” online at http://www.eenews.net/interactive/clean_power_plan.

Sources and ongoing list of news articles related to the lawsuit:

Appeals court hears high-stakes challenge to Obama’s clean power plan, CNN, 9/27/16.

Invoking Scalia, judges question whether EPA bent the law, Greenwire, 9/27/16.

D.C. federal appeals court hears oral arguments on controversial Clean Power Plan, West Virginia Metro News Network, 9/27/16.

The full appeals court in Washington has elected to hear arguments in the legal fight over President Barack Obama’s plan to curtail greenhouse gas emissions, potentially accelerating the case’s path to the Supreme Court – Associated Press, as published by U.S. News & World Report, 5/16/16

Dominion goes to bat for Clean Power Plan, Daily Press, 4/4/16 [“Dominion Power filed an amicus brief Friday [4/1/16] in the national lawsuit against the federal Clean Power Plan, pushing back against arguments plan critics have made in an effort to derail new carbon rules.  The company didn’t lay out a firm yes-or-no position on the plan itself, which will likely be decided by the U.S. Supreme Court.  But the brief puts the weight of Virginia’s energy giant behind key aspects of the plan to cap carbon production at utility plants.”]

Herring joins coalition to curb climate change, Augusta Free Press, 3/29/16

[Virginia] Chamber of Commerce joins suit against EPA rules, WRIC-TV Richmond, 2/28/16.

EPA Chief: Clean Power Plan to Win on Merits, Power Magazine, 2/25/16.

Clean Power Plan: Challengers question EPA’s authority, rulemaking process in briefs, E&E Publishing EnergyWire, 2/22/16 [challengers to the Clean Power Plan filed briefs with the U.S. Court of Appeals for the D.C. Circuit on 2/19/16].

Clean Power Plan: ‘Heads are still spinning’ after Scalia’s death, SCOTUS ruling, E&E Publishing ClimateWire, 2/16/16.

States Evaluating Options Following CPP Stay, RTO Insider, 2/14/16.

Some States Forging Ahead With Emissions Reduction Plans Despite Supreme Court Ruling, Insideclimate News, 2/12/16.

Governor McAuliffe Statement on U.S. Supreme Court’s Decision to Stay the Clean Power Plan, Virginia Governor’s Office News Release, 2/10/16.

Will a surprising Supreme Court move shake the Paris climate accord?” – PBS NewsHour (6 min./16 sec. video), 2/10/16.

Supreme Court puts the brakes on the EPA’s Clean Power Plan, Washington Post, 2/9/16.

Virginia Joins Multi-State Coalition Supporting Economic, Environmental, and Health Benefits of Clean Air
, Virginia Attorney General’s Office News Release, 11/4/15.

E&E News, “Clean Power Plan Hub – Legal Challenges and Documents,” online at http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal, accessed 11/9/15.

For more information on the Clean Power Plan
E&E News “Clean Power Plan Hub,” online at http://www.eenews.net/interactive/clean_power_plan.

U.S. EPA, “Clean Power Plan for Existing Power Plants,” online at http://www.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants.

Virginia Water Central News Grouper post, Final Version of “Clean Power Plan” Announced by President Obama and the U.S. EPA on August 3, 2015; Carbon Emissions from Existing Power Plants to be Reduced by 32% Nationwide; States Have Individually Set Reduction Targets, 8/3/15.

Hurricane Creek Coal-waste “Gob” Pile in Russell County, Va., Nearing Clean-up as of August 2016

On August 30, 2016, Dominion Virginia Power reported the approaching finish of a two-year project to clean up a 12-acre, 1-million-ton pile of coal waste—known as a “gob” pile, for “garbage of bituminous”—beside Dumps Creek (a Clinch River tributary) near the Russell County, Va., town of Carbo.  Known as the Hurricane Creek gob pile, the site was used for disposal of gob—coal containing too much rock or dirt to be usable—from a Clinchfield Coal Company mine first opened in 1907.  In announcing the start of the clean-up in 2014, the Virginia Department of Mines, Minerals and Energy called the site the “single worst mine-related impact to water quality in the Clinch River.”  According to Dominion, clean-up of the site became economically feasible after Dominion’s Virginia City Hybrid Energy Center opened in St. Paul, Va. (Wise County), because the facility was able to use about 500,000 tons of the waste for generating electricity.  After removal of the coal waste, the site is to be planted with grass and hardwood trees.  The clean-up project has been managed by Gobco, LLC, of Abingdon, Va.

Sources:
Burning Waste Coal to Restore the Land, Bacon’s Rebellion, 8/30/16.
Dominion Powers Removal of Largest Pollution Source of Clinch River, Dominion Virginia Power News Release, 8/30/16.
Worst Mine Related Impact to Clinch to be Removed in Russell County, Virginia; Hurricane Fork Gob Pile To Be Removed And Burned At Nearby Power Plant, Virginia Department of Mines, Minerals and Energy News Release, 12/7/14.

Elkins Branch Landslide Mining Reclamation Project in Buchanan County, Va., Receives $400,000 Grant in June 2016

On June 3, 2016, the Virginia Department of Mines, Minerals and Energy (DMME) announced that is will receive a $400,000 grant from the Virginia Department of Environmental Quality to help stabilize a surface-mining-related landslide in the Elkins Branch area of Buchanan County.  The approximately 15-acre slide area resulting from mining prior to 1977, prior to passage of the federal Surface Mining and Reclamation Act.  This resulted in the area becoming an “abandoned mine land” (AML) area.  DMME states that the total Elkins Branch reclamation project—including the stabilization, removing the displaced slide material (which is partially blocking Elkins Branch), installing erosion and sediment controls, and revegetating the area—is expected to cost about $2 million and will be one of the largest ever undertaken during the 38 years of Virginia’s AML reclamation program.

Sources:
State grant to aid in landslide cleanup, Bristol Herald Courier, 6/5/16.

“Water Quality Improvement Grant to help Stabilize Dangerous Landslide in Buchanan County caused by Historic Coal Mining,” Virginia Department of Mines, Minerals and Energy News Release, 6/3/16, online (as PDF) at https://www.dmme.virginia.gov/DMME/pdf/news%20releases/2016Releases/ElkinsBranchGrant20160510.pdf.

“Public Notice of Intent to Enter to Conduct Reclamation Activities (Abandoned Mine Land Program) in the Matter of: Elkins Branch Landslide Project,” Virginia Department of Mines, Minerals and Energy Public Notice, 7/16/15, online (as PDF) at https://www.dmme.virginia.gov/DMLR/AML/ElkinsBranch-NoticeofIntent.pdf.