United States
Environmental Protection
Agency
EPA Region 3
Philadelphia, PA
Public Comment Compendium
Mountaintop Mining/Valley Fills
in Appalachia Final Programmatic
Environmental Impact Statement
October
2005
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Volume I
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Table of Contents
VOLUME I
INTRODUCTION 14
SECTIONA
Elected Officials
The Honorable Frank Pallone, Jr., United States House of Representatives.
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FederalAgencies
James EDevine, United States Department of the Interior.
Paul Joe, Department of Health & Human Services
Theresa Presser, United States Geological Survey
State or Commonwealth Agencies „..........„.,
Betsy Child, Tennessee Department of Environment and Conservation ....
Donald Dott, Kentucky State Nature Preserves Commission ,
Herbert Harper, Tennessee Historical Commission
Robert Logan, Kentucky Natural Resources and Environmental
Protection Cabinet, Department for Environmental Protection ,
Aubrey McKinney, Tennessee Wildlife Resources Agency ,
Michael Murphy, Virginia Department of Environmental Quality
Paul Rothman, Kentucky Environmental and Public Protection Cabinet
LaJuana Wilcher, Kentucky Environmental and Public Protection Cabinet,
Joanna Wilson, Virginia Department of Historic Resources
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Organizations
Tina Aridas, Mountain Redbird Music
James Baker, Sierra Club — Tennessee Chapter
Sherman Bamford, Virginia Forest Watch
Lawrence Beckerle, West Virginia State Chapter of Quail Unlimited .
Teri Blanton, Kentuckians for the Commonwealth
Jason Bostic, Joint Coal Industries
Craig Breon, Santa Clara Valley Audubon Society
Michael Carey, Ohio Coal Association
Greg Conrad, Interstate Mining Compact Commission
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Kent DesRocher, West Virginia Coal Association A-226
Randy Dettmers, Partners in Flight A-229
MarkDonham,Heartwood A-231
Jenny Dorgan, Alabama Environmental Council A-232
Ralph Dunkin, West Virginia-Western Maryland Synod of theELCA A-232
Lawrence Emerson, Arch Coal Inc , A-233
Tom FitzGerald, Kentucky Resources Council A-297
Anthony Flaccavento, Appalachian Sustainable Development A-297
Friends of the Little Kanawha A-298
Grattan Gannon, Erris Co. LLC A-299
Liz Garland, West Virginia Rivers Coalition A-299
Scott Gollwitzer, Appalachian Voices A-300
Bill Gorman, Mayor of Hazard, Kentucky A-301
Sandra Goss, Tennessee Citizens for Wilderness Planning A-304
James Hecker, West Virginia Highlands Conservancy and
Ohio Valley Environmental Coalition A-305
VOLUME II
Catherine Holtkamp, Congregation of Divine Providence A-536
Renee Hoyos, Tennessee Clean Water Network A-536
MaryHufford, University of Pennsylvania A-537
Carolyn Johnson, Citizens Coal Council A-542
John Jones, Alpha Natural Resources A-544
Thomas Kelly, Catholic Conference of Kentucky A-545
Kentuckians for the Commonwealth A-546
Kevin Knobloch, Union of Concerned Scientists A-552
Steve Krichbaum, Wild Virginia A-553
Frances Lamberts, League of Women Voters of Tennessee A-556
Joseph Lovett, Appalachian Center for the Economy and the Environment A-305
Meg Maguire, Scenic America A-559
Mary Mastin, Sierra Club A-560
Landon Medley, Save Our Cumberland Mountains, Inc A-562
VinceMeleski, Wild Alabama/Wild South A-589
Amanda Moore, Appalachian Citizens Law Center, Inc A-590
Bryan Moore, West Virginia Council of Trout Unlimited A-591
Joan Mulhern, Earthjustice et al A-592
Diana Mullis, Potomac Valley Audubon Society A-603
Janice Nease, Coal River Mountain Watch A-604
Robbie Pentecost, Catholic Committee of Appalachia A-606
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Table of Contents
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Bob Pereiasepe, National Audubon Society A-607
Judith Petersen, Kentucky Waterways Alliance A-608
Bill Price, Sierra Club—Appalachian Region A-611
AndiPutman, A Lasting World A-614
Ciody Rank, West Virginia Highlands Conservancy A-615
DoiwldRatliff, Enterprise Mining Company, LLC A-616
Robert Reid, Alabama Audubon Council, etal A-617
Virginia Reynolds, Tennessee Ornithological Society, et al A-618
Richard Seeley, Glendale-LaCrescenta Advocates A-625
Francis Slider, West Virginia Chapter of the Sierra Club A-626
Seth Shteir, San Fernando Valley Audubon Society A-626
John Snider, West Virginia Coal Association A-627
John Spahr, Virginia Society of Ornithology and August Bird Club A-629
Stephen Stewart, Seven Hills Birdwatchers A-634
Vivian Stockman, Ohio Valley Environmental Coalition A-639
Carol Stoddard, The Garden Club of America A-725
Jean Sullivan, Redbud Family Health Center A-725
Mike Tidwell, Chesapeake Climate Action Network A-726
United Mineworkers of America A-727
Charles Wakild, Progress Energy A-730
Jason Wandling, West Virginia Chapter of the National Lawyers Guild A-731
Tony Whitaker, Hazard/Perry County Chamber of Commerce A-734
Gerald Winegrad, American Bird Conservancy, etal A-734
Citizens , ,A-844
Michael Abraham A-845
David Brandon Absher A-845
MarkAbshire A-846
Lorraine J. Adams A-847
Knox Adler A-847
GeertAerts A-848
LeeAgee A-848
Sandy Ahlstrom A-849
Julie Alaimo A-850
George & Frances Alderson A-850
Jonathan Alevy A-851
Deborah C.Allen A-851
Christopher Ambrose A-852
Christopher Anderson A-852
Anonymous
Anonymous
Anonymous
Julie Amngton
Gordon Aubrecht, n,
Harvard Ayers
Janet Ayward
JimBaird
Ray & Arlene Baker.
Isabel Balboa
Jessie Ballowe
Carl Banks
Israel Baran
Richard Baskin
Susan Bechtholt
LawrenceBeckerle ...
Barbara Beer
TriciaBehle
Bob Bell
Gordon Bell
Vaughn Bell
Joe Bergeron
David Berkland
Michael Bialas
Bonnie Biddison
Charles Biggs
CathieBird
Stephanie Blessing .,
RuthBleuni
MargaretBlock
Kathryn Blume
Julia Bonds
Douglas Boucher
Brian Bowen
Deborah Bowles
GayleBrabec
Mary Beth Bradley ...
JuliaBrady
Sandra Brady
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MTM/VF Draft PEIS Public Comment Compendium
Table of Contents
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Matthew Branch A-896
Lee Bridges A-896
Dede Brown A-897
LeeAnn, George, Emily & Sarah Brown A-897
Shale Brownstein A-898
Mike Brumbaugh A-898
MarkBruns A-899
StephenBull A-900
DougBurge A-900
MarkBurger A-901
Gail Burgess A-901
Moss Burgess A-902
Linda Burkhart A-903
JudyBurris A-903
Rick Cameron A-904
Beth Campbell A-905
Ruth Campbell A-905
Pauline Canterberry A-906
Nancy Carbonara A-906
Enid Cardinal A-907
Mary Lou Carswell A-908
Jenny Casey A-908
SidniCassel A-909
DonCassidy A-910
Philip Castevens A-910
Billy Caudill A-911
Herman Caudill A-911
Therma Caudill A-912
Dan Chandler A-912
Dorsey Channel A-913
John Chase , A-913
TJ. Chase A-914
Louise Chawla , A-914
Robert Cherry A-916
Arthur Childers A-916
Susan Cho A-917
Martin Christ A-917
Jerry Ciolino A-918
Matthew Cleveland A-918
John & Tammy Cline ,
Sister Mary Brigid Clingman
Jerry Coalgate ,
MarleneCole
Marian Colette
Michael Compton
James Conroy
Peggy Conroy
David Cooper
Kennon Copeland
Ruby Corbin
Jennifer Cox ,
John Cox
James Crabb
Ryan Crehan
Kathy Cross
April & Jeff Crowe
Kate Cunningham
Marilynn Cuonzo
Janet Dales
Mick Daugherty
Bongo Dave
Eric Davis
William Dawson
Elmer & Angela Dobson
B.Dominey
Gail Douglas
Linda Downs
Waneta Dressier
Phoebe Driscoll
Morris Dunlop
BillDwyer
Craig Edgerton
Edgar Edinger
lierEdinger
Dave Edwards
Robert Eggerting
Susan Eggert
ClaraElse
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Table of Contents
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Susan Emberley A-951
Julie Emerson A-952
LindaLeeEmrich A-952
Kathleen Enders A-953
Nancy Erps A-953
Craig Etchison A-954
Karen Eva A-955
Alice Evans A-955
Gaye Evans A-956
McNairEzzard , A-956
PeteFarino A-957
EstelleFein A-958
Robert Fener A-958
Denise Ferguson A-959
Steve Fesenmaier A-960
Arthur Figel A-960
Patrice Fisher A-961
Gerry & Louise Fitzgerald A-961
Anthony Flaccavento A-962
Agatha (Betty) Fleming A-962
Catherine Fleischman A-963
Marsha Fishrnan A-963
Janet Fout A-964
Winnie Fox A-%7
Luther Franklin A-968
TimFrasine A-968
Vincent Frazzetta A-969
SuzanFrecon A-969
Barbara Fredrickson A-970
RachelFrith , A-970
Don Games A-971
PashGalbavy A-972
Francis Gallagher A-972
Marie Gatsgwish A-973
Steven Gardner A-973
Dawn Garten A-975
NiallGartlan A-976
LydiaGarvey A-976
Glenn Gaskill A-977
Suzanne Gayetsky
MaryGee
Melissa Gee
Ms. Gee
DanGeiger
Andy Gelston
Mike George
Meagan Gibson
Larry Glen
Christopher Goddard ...
GayGoforth
Crystal Good
Donny Good
Joanne Granzow
Katherine Green
Margaret Gregg
Robert Gipe
Karen Grabb
Robert Hallick
Etnilie Hamilton
HannJ
KarlHanzel
Alice Hardin
Jerry Hardt
BillHardy
Roy Earless, Jr.
Ronda Harper
MarkHarris
EricaHarvey
Tracy Hasuga
Marlon Henn
DanHensley
Robert Hensley
J. Michael Herr
Caroline Hice
SusanHickman
Sanford Higginbotham.
MonieaHill
Marty Killer
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IV
Table of Contents
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DanitaHines A-1000
Robert Hiser A4001
PaulHodder A-1001
Sharon Hodges A-1002
Steve Hodges A-1002
Andy Hodgman A-1003
Karen Holl A-1003
MarkHomer A-1004
JohnHoneck A-1005
John Hopkins A-1005
Patricia Hopkins A-1006
Pierre Howard A-1006
ReneeHoyos A-1007
PatrickHuber A-1007
Barbara Hutchinson-Smith A-1008
Martha Hutson A-1009
Carole Hyre A-1009
Robert lies A-1010
Michael Jablonski A-1010
Donnie Jackson A-1011
Gordon James A-1011
Roberta James A-1012
Phyllis Jenness A-1012
JohnJodine.Jr A-1013
Emily Johnson A-1014
Jane Johnson A-1014
John Johnson A-1015
Andrew Jones A-1015
Deborah Jones A-1017
Lora Jones A-1017
Mary Lou Jones A-1018
Tim Jones A-1019
Richard Jorgensen A-1019
Tom Joy A-1020
Edward Kadane A-1021
RayKamstra A-1021
DanKash A-1022
Barry Katzen A-1022
ErinKazee A-1023
Robert Keiilbach
Mary Corsi Kelley
Cindy Kendrick
Oren Kennedy
Carol Anne Kilgore
Sterling Kinnell
Laura Klein
Jennifer Knaggs
GerriKolesar
Vanessa Kranda
JudKratzer
Scott Kravitz
TomKruzen
Glenn Kuehne
KaraKukovich
Kenneth M. Kukovich
JohnL
Alexandra Lamb
SloaneLamb
Melissa Lambert
DeniseLamobaw
Jackie Lancaster
Susan Lander
Jennifer Lantz
TimLarrick
Jessica Lavin
Phyllis Law
F.Carey Lea
Elaine Leach
Carole Levenson
IgalLevy
Elizabeth Lewis
NormaLewis
TomLewis
BettaLeyland
EricLillyblad
JoanLinville
JoeLinville
Nannie Linville
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Table of Contents
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Curt Livingston, Sr.
Julie Longman-Pollard
Sherry Lorenz
David & Marsha Low
Benjamin Lowman
LoisLudwig
Tom Luther
Grace Glaser-Lynch & Thomas Lynch.
Ann Lynnworth
LawrenceLyon
Malcolm MacPherson
Andy Mahler
Craig Mains
O. Mandrussow
Carli Mareneck
Peter Mareneck
RogMarjay
Thomas Marshalek
Martin ,
Julia Martin
Julian Martin
Namon Martin
Rev. Mary Me Anally
James McCarthy
DoraMcCarty
ErikaMcCarty
Kerry McClure
Chelena McCoy
Harold McCurdy
Howard McPann
John McFerrin
Scott McGarrity
Carol McGeehan ...
M. McGeorge .....
Margaret McGinnis
Judith McHugh
Meagan McKay
Catherine McKenzie
Bonnie McKeown
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CatheMcLaughlin A-1077
Corinna McMackin A-1078
Elizabeth McMahon A-1079
James &CarlaMcMillin A-1079
Janet McReynolds A-1080
Shawn Meagher A-1081
Colby Mecham A-1082
Elaine Melnick A-1083
Barbara Mendelsohn A-1083
VOLUME III
Ricardo Mendez A-1084
Barbara Menendez A-1084
ZinaMerkin A-1085
Jennifer Merrick A-1085
Robert Mertz A-1086
James Mesich A-1088
Teresa Mesich A-1088
Alissa Meyer A-1089
Judy Meyer A-1090
Greg Miles A-1094
Sue Miles A-1094
Leon & Lucille Miller A-1095
Mark Miller A-1096
Mary Miller A-1097
RobinMills A-1097
Phyllis Mingo A-1100
Georgia Mim'ard A-1100
Steve Mininger A-1101
Carol Mintz A-1102
Jonathan Mirgeaux A-1102
Denver Mitchell A-1103
Keith Mohn A-1109
Wm Montgomery A-1110
John Mooney A-1110
MaryheaMorelock A-llll
B.Morgan A-1112
Mark Morgan , A-1112
Jeffrey Morris A-1113
MTM/VF Draft PEIS Public Comment Compendium
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Robert Moss A-1114
Robert Mueller A-1115
David Muhly A-1116
Dr. Mendi Mullett A-1117
Cory Munson A-1118
Mark Murphy A-1119
Sheldon Myers A-1119
Grace Naccarato A-1120
Susan Nadeau A-1120
Patricia Napier A-1132
Ann Nelson A-1133
Nanette Nelson A-1134
Paul Nelson A-1135
Denis Newbold A-1145
Mike Newell A-1147
BradNewsham A-1148
Duane Nichols A-1148
Karl Norton A-1149
Jason O'Brian A-1149
Mary O'Brien A-1150
Sandra O'Hara A-1151
Peggy O'Kane A-1151
Ethel Oldham A-1152
Russell Oliver A-1152
Steven Olshewsky A-1153
Tony Oppegard A-1153
Marilyn Qrtt A-1154
Clark Orwick A-1155
Amanda O'Shea A-1155
JimOttaviani A-1156
Judy Otto A-1157
Jon Owens A-1157
AletaPahl A-1158
Lori Parsley A-1158
Lynn Partington A-1159
MaryPasti A-1160
Cynthia Patterson & Peter Schrand A-1161
LeiterPatton A-1161
JeronePaul A-1162
K.Payne
Karen Payne
Ray Payne
Elizabeth Peelle .....
Joan Peoples
Dolores Perez
Candice Peters
Ian Petersen
Denise Peterson
Jan Peterson
Susan Peterson
Dean Petrich
Deborah Pettry
Amelia Pickering
Joseph & Helen Pickering.
Joseph Presson
Andrew Price
Donna Price
Penie'LeeProuty
SeanQuinlan
Christine Rafal
TeresaRafi
Linda Rago
Mary Ramsay
Jan Randall
Kevin Randall
M. Rauen
John Rausch
LisaRayburn
EricRechel
PatriciaReed
Linda Reeves
DylanReid
Richard Reis
DavidReister
Jordan Reiter
John Reppun
Michelle Reynolds
James Richard
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Nancy Riley A-1187
Paul Robertson A-1188
Richard Robertson A-1188
Tom Robertson A-1189
Gail Roc A-1189
Hugh Rogers A-1190
Ruth Rogers A-1190
Michael Romo A-1191
DebraRookard A-1192
Ruth Rosenthal A-1193
June Rostan A-1194
Greg Roth A-1194
Lionel Ruberg A-1195
Stephen Rudolph A-1195
Steve Rutledge A-1196
Mark Van Ryzin A-1196
PaulSainato A-1197
Sue Ann Salmon A-1198
Manuel Sanchez A-1198
Bennett Sawyers A-1199
AshleeSaylor A-1199
Abraham Scarr A-1200
PaulSchaefer A-1200
Kenny Schmidt A-1201
Betty Schnaar A-1202
Dave Schuett-Homes A-1202
Rose Alma Schuler A-1203
Lance Eric Schultz A-1203
Lauren Schwartz A-1204
Brace Scott A-1205
William Scott A-1205
Jason Scullion A-1206
Robert Seaver A-1206
Linda Sekura A-1207
Danny Sergent A-1207
Price Sewell A-1208
Dink Shackleford A-1208
Justine Sharp A-1209
WaltSharpe A-1209
Sue Sharps
Barrett Sherwood ....
Susan Shriner
June Silverman
Willis Simms
Pat Simpson
GarySkutaik
Deana Smith
Donna Smith
EllenSmith
Eric Smith
John Smith
Jonathan Smuck
Susan Sobkoviak ....
Richard Soderberg ..
Sooner Fan
Constance Sowards
Wayne Spiggle
Daniel SpOman
Joel Spoonheim
Richard Spotts
Tom Spry
SueStaehli
Robert Stanley
Dallas Staten
Steve Stathakis
FitzSteele
Edward Stein ,
JimSteitz
Judith Stetson
Elaine Stoltzfus
Kathryn Stone
Sally Streeter
Joseph Strobel
Jean Strong
William Sullivan
Jim Sweeney
ChetanTalwalkar
Lesley Tate
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William Taylor
DarlaTewell
DeanThayer
Rose Thompson
Derek Thornsberry ,
Ershel Thornsberry ,
Mildred Thornsberry
Barry Terming
Phillip Tracy
Roy Trent
PhilTriolo
Martha Tumquist
EllisaValoe
Mary Vassalls
Corey Vernier
Sue Vernier
JeffWaites
Judith Walker
Bruce Wallace
Patty Wallace
David Walters
Richard Walters
Barbara Walton
Rufus Wanning
Kenneth Warren
Holly Watkins
CleeWebb
Robert Welkle
Eric Wessels
Julya Westfall
Marian Weston
Julia Whiteker
Gregory Wilcox
Rachel Williams
Susan Williams
Suzanne Williams
cara Wilts
Vickie Wolfe
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Doug Wood ,
Ivan & Jean Woods
Tanya Woods
Anne Woodbury , ,
Nancy Woodward
Daniel Wright
Mingjane Wu
Bryan Wyberg
Eleanor Yackel
Lynn & Chess Yellott
Geofirey Young
Walter Young ,
MaryYunker ,
David Zeff
Carol Zeigler
Form Letters
Amend the DEIS form letter — 4,156 signatories
American Rivers form letter — 4,227 signatories
Boone County form letter — 46 signatories
Community Visit form letter — 14 signatories
Destruction form letter — 65 signatories
Earth Justice form letter — 35,743 signatories
Oppose Change to Stream Buffer Zone Rule form letter — 7,168 signatories .,
Protect Appalachian Streams form letter — 425 signatories
Reduce Harmful Effects form letter— 4,522 signatories
Restriction form letter — 5 signatories
Save Our Environment — 297 signatories
Sierra Club post card — 953 signatories
Stop Destructive Mountaintop Removal form letter — 31 signatories
Support Alternative 3 form letter — 18 signatories
Writing to Urge form letter — 360 signatories
SBCTIONAINDEX
Elected Officials .
Federal Agencies .
State or Commonwealth Agencies ..
...A-1298
...A- 1299
...A-1300
...A-1300
...A-1301
...A-1301
...A-1302
...A-1302
...A-1303
...A-1304
...A-1304
...A-1305
...A-1306
...A-1306
...A-1307
..A-1308
...A-1309
...A-1309
...A-1310
...A-1310
...A-1311
...A-1311
...A-1312
...A-1313
...A-1313
...A-1314
...A-1314
...A-1315
...A-1316
...A-1316
...A-1317
...A-1317
...A-1318
1
1
1
MTM/VF Draft PEIS Public Comment Compendium
IX
Table of Contents
-------
Organizations
Order by Author
Order by Organization.
Citizens
Form Letters
SECTIONB ,„..,„, .
Kentucky Afternoon Session [[[
Jeff Coker, facilitator, Kentucky afternoon session, opening comments
Dink Shackelford, Virginia Mining Association
Bill Caylor, Kentucky Coal Association
Rebeca Mullins, private citizen
Bennett Sawyers, private citizen
Lonnie Starns, private citizen
DonaldRex Napier & John Blankenship, private citizens
Harlan Farler, Jr., private citizen
John Ledington, private citizen
Dave Mockabee, private citizen
Roger Jones, private citizen
Leonard W. Davis, private citizen
Harry Fields, private citizen
Paul David Taulbee, private citizen
Keith Mohn, private citizen
Larry Roberts, private citizen
Lawrence Joseph, Jr., private citizen
Gary Earned, private citizen
Charles Reed, private citizen
Carl Ramey, private citizen
Bernie Faulkner, private citiezn
Steve Gardner, private citizen
Don Gibson, private citizen
Paul Matney, private citizen
Bill Gorman, mayor of Hazard
Ackra Stacy, private citizen
Michael Joseph & Columbus Heath, private citizens
Doris Brewer, private citizen
Earl demons, private citizen
Russell Oliver, private citizen
Joe Evans, private citizen
Rick Johnson, private citizen B-42
1 David Wilder, private citizen B43
2 Robbie Pentecost, Catholic Committe of Appalacia B-44
3 Everett Kelly, private citizen , B-46
.... 10 Robert Zik,TECO Coal B^I6
John Rausch, Catholic Diocese of Lexington, KY B47
.. B-l Tom Wooton, private citizen B48
..B-2 David Creech, private citizen B49
.. B-3 Brian Patton, Starfire Mining Co B-50
...B-6 Jimmy Jackson, UMWA and Local 5890 B-52
...B-8 Andy Willis, private citizen B-52
.B-10 Leslie Combs, private citizen B-53
.B-ll Mike Hansel, private citizen B-54
. B-12 Paul Johnson, private citizen B-55
.B-12 Ben Perry, private citizen B-56
.B-13 Meg Moore, Kentuckians for the Commonwealth B-58
.B-13 Paul Lyon, Mineral Labs, Inc B-60
.B-14
. B-15 Kentucky Evening Session , B-61
. B-16 Jeff Coker, facilitator, Kentucky evening session, opening comments ............... B-62
. B-17 Betty M. Hagen, Kentuckians for the Commonwealth B-66
. B-18 Ruth Colvin, Kentuckians for the Commonwealth B-66
.B-20 Patty Wallace, Kentuckians for the Commonwealth B-67
.B-21 Dan Kash, Kentuckians for the Commonwealth B-^
.B-22 Randall Moon, private citizen B-69
.B-23 Jessie Collins, private citizen B-70
.B-25 Maynard Tetreault, private citizen B-71
. B-26 Dave Cooper, Kentuckians for the Commonwealth
.B-27 and the Sierra Club B-73
.B-29 Joyce Wise, Kentuckians for the Commonwealth B-75
. B-30 Kaseana Jones, private citizen B-76
.B-32 Ten Blanton, Kentuckians for the Commonwealth B-76
.B-34 Lyle Snider, Kentuckians for the Commonwealth B-78
.B-35 Amanda Moore, Appalachian Citizen Law Center B-79
.B-36 Ted Adams, private citizen B-81
.B-37 Rocky Gay, private citizen B-84
.B-38 Bruce Blair, private citizen B-85
.B-40 Gregory Burnett, private citizen B-87
.B-41 Lisa Conley, private citizen • B-87
MTM/VF Draft PEIS Public Comment Compendium
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J.W. Bradley, Save Our Cumberland Mountains B-89
Kathy Bird, Save Our Cumberland Mountains B-90
Charles Blankenship, private citizen B-92
Doug Dorfeld, Kentuckians for the Commonwealth B-93
Michael Riley, private citizen B-94
Brent Boggs, private citizen B-96
Anthony Jones, private citizen B-96
Jim Sidwell, private citizen B-97
Levon Baker, private citizen B-98
444, private citizen B-99
Tom Jones, East Kentucky Corp B-101
Dewey Gorman, Hazard Coal Corp B-1Q2
Phillip Estep, Miller Brothers Coal B-104
James Detherage, Twin Energies B-1Q5
Denny Noble, county judge for Perry County , B-1Q5
Steve Gardner, private citizen B-106
ElishaAbner, private citizen B-108
Daniel Mongiardo, state senator for Perry, Bell, Harlan, and Leslie Counties B410
Brandon Smith, state representative, 84th B411
Charles Everage, B & C Trucking B-115
Bill Caylor, Kentucky Coal Association B-117
Fitz Steele, private citizen B-119
Randy Wilson, private citizen B-12Q
Larry Keith, private citizen B-122
Wesley Harvey, private citizen B-122
Simmy Ray Bolen, private citizen B-124
West Virginia Afternoon Session[[[ B-126
Mark Taylor, chairman, West Virginia afternoon session, opening remarks .. B-128
B ill Rainey, West Virginia Coal Association B-132
Ted Hapney, United Mine Workers of America (UMWA) B-135
Wesley Hall, private citizen B-137
Jeremy Muller, West Virginia Rivers Coalition B-138
Cindy Rank, Friends of the Little Kanawha (FOLK) B440
Vivian Stockman, Ohio Valley Environmental Coalition (OVEC) B-142
Liz Garland, West Virginia Rivers Coalition B-144
Sandi Lucha, private citizen B-145
Frank Young, West Virginia Highlands Conservancy B-146
Wayne Coleman, private citizen B-148
Carol Warren, WV Council of Churches B-150
Jack Henry, private citizen B-152
Diana Wood, private citizen , B-154
Natalie Spencer, private citizen B-157
John Metzger, private citizen B-159
Randy McMillion, private citizen B-161
Karen Keaton, private citizen B-162
Terry Brown, private citizen B-162
Doug Waldron, private citizen B-163
Mike Vines, private citizen B-164
Jeremy Fairchild,Fairchild International B-165
Andy Ashurst, private citizen B-167
Lee Barker, private citizen B-167
Larry Keith, private citizen B-169
Robert Wilkerson, private citizen B-171
Fitz Steele, private citizen B-173
Luke McCarty, private citizen B-175
William Runzon, private citizen B-178
Benny Dixon, private citizen B-179
Mike Comer, private citizen B-180
Nelson Jones, Madison Coal Supply B-181
Bob Gates, private citizen B-182
Corky Griffith, private citizen B-183
Ed Painter, private citizen B-184
Warren Hilton, private citizen B-186
West Virginia Evening Session B-189
Mark A Taylor, chairman, West Virginia evening session, opening comments B-191
Mary Ellen O'Farrell, West Virginia Envrionment Council B-196
Chris Hamilton, West Virginia Coal Association B-197
Scott Gollwiteer, private citizen B-199
Larry Emerson, Arch Coal, Inc B-201
Bill Gorz, Earth First B-203
Nick Carter, Natural Resource Partners &
National Council of Coal Resource B-2ft>
John R. Snider, Arch Coal, Inc B-207
Kent DesRocher, private citizen B-209
Randall Maggard, Argus Energy B-212
Michael A. Morrison, private citizen B-213
MTM/VF Draft PEIS Public Comment Compendium
XI
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Julia Bonds, private citizen B-214
Lawrence Beckerle, private citizen B-216
Nanette Nelson, Coal River Mountain Watch B-219
Larry Maynard, Delbarton Environmental Community Awareness Foundation ... B-222
Vivian Stockman, Ohio Valley Environmental Coalition (OVEC) B-223
Larry Gibson, private citizen B-225
Julian Martin, WV Highlands Conservancy B-226
Janet Fout, Ohio Valley Environmental Coalition (OVEC) B-229
James Maynard, private citizen B-231
Donna Price, Coal River Mountain Watch B-232
Frieda Williams, private citizen B-233
Bill Price, Sierra Club of Central Appalachia B-234
Pam Medlin, private citizen B-236
Winnie Fox, private citizen B-237
Patty Sebok, private citizen B-239
Janice Neese, Coal River Mountain Watch B-240
Chuck Wyrostok, Concerned Citizen Coalition B-242
Marian Miller, private citizen B-244
Pauline Cantebury, town of Sylvester B-246
Mel Tyrce, private citizen B-248
Bill McCabe, Citizens Coal Council B-250
Florence Twu, private citizen B-251
Abraham Mwaura, private citizen B-252
Connie Lewis, WV Environmental Council B-254
Paul Nelson, private citizen B-257
Monty Fowler, private citizen B-258
Denise Giardina, private citizen B-260
Jason Bostic, West Viriginia Coal Association B-261
John Taylor, Ohio Valley Environmental Council &
West Virginia Environmental Council B-263
Fred Sampson, private citizen B-264
Leon Miller, private citizen B-266
Blair Gardner, private citizen B-267
Elain Purkey, private citizen B-2®
Sharon Murphy, private citizen B-270
Maria Pitzer, private citizen B-272
John Barrett, Appalachian Center for the Economy
and the Environment B-274
Lisa Millimet, private citizen B-277
Bill McCabe, Citizens Coal Council B-278
Alphabetical Order
Kentucky Afternoon Session
Kentucky Evening Session
West Virginia Afternoon Session.
West Virginia Evening Session ....
Transcript Order
Kentucky Afternoon Session
Kentucky Evening Session
West Virginia Afternoon Session.
West Virginia Evening Session....
1
1
.2
,2
...3
...4
...4
...5
MTM/VF Draft PE1S Public Comment Compendium
XII
Table of Contents
-------
Introduction
The U.S. Army Corps of Engineers, U.S. Environmental Protection Agency,
U.S. Fish and Wildlife Service, U.S. Office of Surface Mining, and West
Virginia Department of Environmental Protection prepared a Draft
Programmatic Environmental Impact Statement (DPEIS) on mountamtop coal
mining and associated valley fills in Appalachia.
The Notice of Availability of the DPEIS for public review and comment
appeared in the Federal Register dated May 30,2003 (68FR32487). The
notice announced a 90-day comment period ending August 29,2003. The
period for receipt of comments was extended 130 days to January 6,2004
and then an additional two weeks to January 21,2004, based on several
requests from stakeholders. Comment period extensions were published in
the Federal Register, announced in news releases, and noted on the agencies'
web pages. Requesters for comment period extension were notified by e--
mail of the extension. The public review period was scheduled to provide
concerned agencies and the public an opportunity to review the DPEIS and to
offer comments on its adequacy.
The Federal Register notice announced that the DPEIS was available on the
Internet at http://www.epa.gov/region3/mtntop/index.htrn. The other agencies
maintained prominent links to the EPA website. The EPAhas distributed copies
to known interested parties and organizations, local agency offices, and public
libraries as indicated in the document at Chapter VII; Distribution List. An
EPA Region 3 toll-free EIS request telephone hotline was in operation during
the comment period to allow persons to request copies of the DPEIS.
Approximately 140 hard copies and 600 CDs of the DPEIS were distributed
to agencies and to interested members of the public.
The Corps of Engineers led a communications team for the agencies and
distributed a press release on May 29, 2003 to the Associated Press and
United Press International. The news release was posted on each agency's
web site. A press teleconference was held with twenty national and local
media contacts. Follow-up interviews were conducted with other press
contacts that could not participate. Wide national coverage of the availability
of the DPEIS occurred in print and broadcast media. The news release
announced the release of the DPEIS, summarized the DPEIS recommendations,
provided brief background information, the libraries where the DPEIS was
distributed and contact persons for additional information.
The public was invited to provide written comments during the comment period
and oral comments during the two public hearings. Written comments were
accepted through the mail or by placing them in a 'comment box' during the
public hearings. Comments were also accepted through e-mail at:
mountaintop.r3 @epa.gov. The first hearing was held on July 22,2003 at The
Forum at The Hal Rogers Center, 101 Bulldog Lane, Hazard, KY 41701.
The second hearing was held on July 24,2003 at the Charleston Civic Center-
Little Theater, 200 Civic Center Drive, Charleston, WV 25301. Each hearing
had two sessions: the first from 2:00 p.m. to 5:00 p.m. and the second on the
same day from 7:00 p.m. to 11:00 p.m. Notices of the public hearings were
mailed by the Corps of Engineers to persons who mailed comments to the
EPA during the NEPA scoping process.
During the public review period, 712 letters were received from individuals
and organizations. One letter was received from a group of members of the
United States Congress. Three letters were received from Federal agencies.
Nine letters were received from state or commonwealth agencies. One hundred
seventy six (176) people provided oral comments at the Public Hearings.
Eighty three thousand ninety five (83,095) form letters were received. This
document presents the complete text of the public comment letters and e--
mails in Section A and the complete public hearing transcripts in Section B.
Each of the seventeen different form letters is presented once in Section A
with a notation of the number received.
MTM/VF Draft PEIS Public Comment Compendium
1-1
Introduction
-------
Each letter, e-mail, form letter, and oral statement was reviewed andevaluated.
Changes or additions to the text of the DPEIS made in response to comments
are incorporated into the Final EIS through an errata sheet.
To effectively and efficiently evaluate and respond to the large number of
comments, each written and oral comment was grouped into a numbered
category. Paragraphs within a letter, e-mail, post card or oral statement were
identified by a set of numbers that correspond to the numbered category. For
example, a paragraph stating a preference for Alternative 3 was given the
number 1-4.
These following categories/subcategories were assigned to paragraphs (or as
needed to sentences) within comment letters, e-mails, post cards or oral
statements. The notation on the comment letter is the major category number
and the subcategory number, plus the second subcategory number when
applicable (for example l-l,or5-l-2). The first four major categories do not
have second subcategories. The remaining categories have subcategories and
second subcategories. The notation 1-1 indicates category 1 Alternatives and
an additional notation of a preference for the no action alternative. The notation
5-1-2 indicates category 5 water resources and an additional notation of
surface water use as a resource, adequacy of analysis. The notation 5-5-2
indicates category 5 water resources and an additional notation of water quality,
adequacy of analysis.
Major Category
Subcategory
Second subcategory
1- Alternatives
1. Preference for No Action Alternative
2. Preference for Alternative 1
3. Preference for Alternative 2
4. Preference for Alternative 3
5. Disagree with all alternatives presented
6. The Agency Preferred Alternative should be modified in a
specific way
7. Preference for an alternative considered in the EIS but
not evaluated in detail
8. Suggestion of an alternative not considered or evaluated
in the EIS
9. Opposition to MTM/VF
10. Opposition to easing environmental regulation, including
opposition to changing or eliminating the Stream Buffer
Zone rule
11. Support of MTM/VF
12. Support of no additional regulation
13. Other
2. Role of the General Public
1. Local CitkertsNcorrimufflties
2. Nationwide Citizens\Communities
3. Specific interest groups
4. Other
MTM/VF Draft PEIS Public Comment Compendium
1-2
Introduction
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3- Public Involvement
1. Adequacy/Availability of Information
2. Outreach/Agency Communication Efforts
3. Use of Public fovolvement/Cbrament
4, Public Meetings
5. Adequacy of Public Comment Period
6.Other
4. Adequacy of EIS (NEPA)
1. Adequate
2. Inadequate
5. Water Resources
1. Surface Water Use as a Resource
2. Groundwater Use as a Resource
3. Riparian Areas and Wetlands
4. Water Quantity
5. Water Quality
6, Watershed Condition
7. Direct Stream Loss
8. Other
6. Aquatic Fauna and Flora
1. Non-game
2. Game
3. Avifauna
4.1nvertebrate and Insect
5. Aquatic Flora
6-Other
7. Terrestrial Fauna and Flora
1. Non-game
2. Game
3. Avifauna
4. Invertebrate and Insect
5. Terrestrial Flora
6. Other
8- T&E. Candidate, and Species of Concern
1. Federal Threatened, Endangered, or Candidate
2. Species of Concern
3. Other
9. Cumulative Impacts
1. Terrestrial Ecosystem/Habitat Composition and Function
/Fragmentation and Comeetivity/Deforestation
2. Environmental Quality and Ecosystem Integrity/
Biodiversity /Environmental Values
3. Aquatic Cumulative. Aquatic Ecosystem/Habitat
Composition/Integrity
4. Social and Economic cumulative
5. Other
10. Social Values
1. Population Parameters (i.e. number and age structure)
2. Community / Cultural
3. Urbanization and Development
4. Quality of Life
5. Public Health and safety
6. Aesthetic Values (visual, noise, etc)
7. Environmental Justice
8. Other
MTM/VF Draft PE1S Public Comment Compendium
1-3
Introduction
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11- Economic Values
1. Employment
2. Business Viability
3. Private Property Values
4. Tax Base and Payment to states
5. Non-traditional forest products economic issues
6. Traditional forest products economic issues
7. Tourism and recreation economic issues
8. Coal industry economic issues
9. Other
12. Government Efficiency
1. Permitting
2, Other
13. Excess Spoil Disposal
1. Fill Minimization
2. Fill Stability
3. Other
14. Stream Habitat and Aquatic Functions
1. Assessing
2. Mitigating
3. Other
15. Air Quality
1. Blasting dust and fumes
2. Other
16. Blasting (Excluding blasting dust and fumes)
1. Vibration
2. Fly rock
3. Other
1. Flooding Evaluation
2. Fear of Flooding
3. Other
18. Invasive Species
1. Used in reclamation
2. Increased opportunity for invasives to spread
3. Other
19. Reclamation
1. Contemporaneous reclamation
2. Reclamation with trees
3, Other
Secondary Subcategories
Each subcategory comment was further categorized into the following
secondary subcategories. Except for subcategories under Major Categories
1-4, which have no secondary subcategories.
1, Legal
2. Adequacy of analysis or statement of impact
3. Monitoring or mitigation
4. Specific edit
5. Factual material provided to include in EIS
MTM/VF Draft PEIS Public Comment Compendium
14
Introduction
-------
Section A
The public was invited to provide written comments on the Mountaintop
Mning/Valley Fills in AppalachiaDraftftogrammattc EnvironmentalImpact
Statement during the public comment period. The Federal Register Notice of
Availability dated May 30,2003 announced a 90 day comment period ending
August 29,2003. The public comment period was subsequently extended an
additional 130 days to January 6,2004, and then an additional two weeks to
January 21,2004. These letters were made available for public review on
the EPA website http://www.epa.gov/region3/mtntop/index.htm.
The written comments were reviewed and evaluated. Comments were
grouped into different numbered categories. The comments are presented half
size with applicable numbered categories identified adj acent to the comment.
Form letters are presented once with the number of signatories.
The written comments are presented in the following order:
• Elected Officials
• Federal Agencies
• State or Commonwealth Agencies
• Organizations
• Citizens
• Individual Letters
• Form Letters
An index of a author's name and the page number where the Comments are
presented is included at the end of this document. An index of organizations
and the page number where comment letters are presented is included at the
end of this document.
MTM/VF Draft PEIS Public Comment Compendium A-1 Section A
-------
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Elected Officials
MTM/VF Draft PEIS Public Comment Compendium A-2 Section A - Elected Officials
-------
-------
The Honorable Frank Pallone, Jr., United States House of Representatives
of Hit Uniieft
Ufaslnngtcm, OC 20513
June 19,2003
Christine Todd Whitman, Administrator Les Brownlee, Acting Assistant
U.S. Environmental Protection Agency Secretary of the Army (Civil Works)
1200 Pennsylvania Ave., N.W, 108 Army Pentagon
Washington, D.C. 20460 Washington, B.C. 20310-0108
Steven A. Williams, Director
U.S. Pish and Wildlife Service
Department of the Interior
1849 C Street N.W.
Washington, D.C. 20240
Jeffery Jarrett, Director
U.S. Office of Surface Mining
Department of the Interior
1849 C Street N.W.
Washington, D.C. 20240
Dear Administrator Whitman, Acting Assistant Secretary Brownlee, Director Williams
and Director Jarrett:
We are wiring to express our opposition to the Mountaintop Mining/Valley Fill
Draft Environmental Impact Statement (EIS) released May 29,2003 by the
Environmental Protection Agency (EPA), Army Corps of Engineers (Corps), Office of
Surface Mining (OSM), U.S. Fish and Wildlife Agency (FWS), and the West Virginia
Department of Environmental Protection, We ask you to reconsider the suggested
"preferred alternative" contained in the Draft EIS, and to evaluate and select a more
appropriate measure that would limit the environmental destruction caused by
mountaintop removal coal mining that was documented in the studies accompanying the
Draft EIS.
The preferred alternative advocated in the Draft EIS would attempt to combine the
Surface Mining Reclamation and Control Act (SMCRA) and Clean Water Act (CWA)
permitting processes, in a move that the agencies advocate as a streamlining aad
efficiency measure. However, many of the intended benefits of the CWA regulations
would be largely undermined by this new approach, which would give the OSM a greater
role in CWA permitting decisions •— a responsibility and authority granted by Congress to
EPA, not OSM. Given the EPA's familiarity and expertise in the CWA permitting
process, it seems inefficient and unnecessary to decrease their role and transfer this
responsibility to the OSM.
In addition, the "preferred alternative" directs the Corps to decide whether to require
a general Nationwide Permit (NWP 21) or a mote stringent individual Permit (IP) for
proposed mining activities on a case-by-ease basis, heavily relying upon SMCRA
information provided by tie applicant. The CWA, however, prohibits the grairting of a
NWP for actions that cause more than a minimal impact to the waters of tie U.S. Given
the results of the Cumulative Impact Study (CIS) performed in the course of the EIS, it is
clear that mountaintop removal mining and valley fill activities individually and
cumulatively da constitute more than minimal impacts aad therefore should no longer be
treated as eligible for general permits. We also understand that the preferred alternative
would go so far as to eliminate the interim prohibition on using NWPs for valley fills
greater than 250 acres in size that has been in effect in West "Virginia since 1998. TMs
appears to completely ignore the findings that the larger valley 0Ils are the most
environmentally harmful.
Additionally, the scientific and technical studies performed ia the course of the EIS
clearly demonstrate that small (e.g. 35 acre) drainage basin reSriction sizes were the least
damaging to terrestrial, riparian and aquatic resources within the study area. The
scenarios with unconstrained drainage basin impact areas produced the largest negative
effect upon the study area.
These findings regarding drainage basin size restrictions led to the inclusion of
alternatives in the January 2001 Preliminary Draft EIS that compared the relative benefits
and costs of limiting the maximum size of valley fills. Specifically, the Preliminary Draft
detailed scenarios in which valley fill size would be capped between 0 to 75 acres or 76 to
250 acres. However, the May 29,2003 Draft EIS contains no alternatives regarding valley
fill size restrictions.
The original purpose of this programmatic EIS was to develop policies and procedures
to "minimize, to the maximum extent practicable, the adverse environmental effects to
waters of the United States and to fish and wildlife resources from mountaintop mining
operations, and to environmental resources that could be affected by the size and location
of fill material in valley fill sites" 68 PR 5800 (emphasis added). Yet, it appears that the
primary goal of the May 29,2003 Draft EIS was streamlining the permitting process,
rather than minimizing environmental impacts. The impacts of mountaintop removal
mining were proven to be significant and will not go away simply by combining the federal
permitting processes, nor by weakening existing federal environmental protections.
The CIS included in the EIS states that "if mining, permitting, and mitigation trends
stay the same, an additional 1000 miles ofdtmct impacts could occur" in the next decade.
The accompanying studies demonstrate that the harm to the region's natural resources, and
the human communities and wildlife species that depend on these resources, is significant,
largely irreversible, and of national consequence. For example, between 1985 and 2001,
nearly 6,700 valley fills were approved in the study region, which included West Virginia,
Kentucky, and parts of Virginia and Tennessee. These valley fills have already buried over
700 miles of streams and degraded water quality over a total of 1200 miles of streams —
and the studies confirm that the direct burial of stream segments is permanent. This is to
say nothing of the indirect effects of these mining aad fill activities, which would certainly
exacerbate the environmental harm. Due to the immense biodiversity (riparian, terrestrial,
and aquatic) of the southern Appalachian region, the biological impacts of valley fills will
have a "disproportionately large impact on the total aquatic genetic diversity of the nation."
MTM/VF Draft PEIS Public Comment Compendium
A-3
Section A - Elected Officials
-------
The CIS further asserts that, "based on permits issued in the last ten years and an
assumption of similar permits in the next ten yean, mountaitttop [removal] mining has
the potential to adversely impact 380,547 acres of forest in the four-state study area."
This is equivalent to 594 square mites — an area equivalent to about ten cities the siffi of
the District of Columbia. While the agencies are to be commended for preparing and
releasing the CIS and the dozens of other technical, scientific and economic studies
conducted as part of (he Draft BIS, they fail to draw the conclusion from these reports
that mountaintop removal coal mining is seriously jeopardizing the future of the
Appalachian region as well as rapidly destroying natural resources of national
importance.
We are most concerned that, despite the well-demonstrated need to tafce immediate
measures to limit the destruction caused by mountaintop removal mining, the final EIS
neither evaluates nor proposes measures to address the significant environmental
problems raised in the CIS and other reports. Rather, the EIS evaluates primarily
procedural, authority-driven changes in the agencies' permitting processes and information
sharing policies. Furthermore, the Draft EIS's preferred alternative even suggests
weakening existing environmental standards that apply to mountaintop removal coal
mining. This is exactly the opposite response warranted by the thousands of pages of
studies accompanying the EIS.
Another recommendation in the EIS is to finalize changes to the SMCRA buffer
zone regulation. This rule, adopted by the Reagan Administration in 1983, prohibits
surface mining disturbances within 100 feet of a perennial stream or intermittent stream,
unless there is a finding that the activity will meet water quality standards and not cause
adverse environmental effects on stream water quality or quantity. The proposed new
rule, however, would specifically allow for the dumping of excess spoil directly into
these streams, with the only requirement being that the mining companies have"
minimized the creation of excess spoil to the maximum extent practicable," This rule
change would effectively remove the "buffer" from the buffer zone rule to create an
illegal and unwarranted exception for valley fills. This hands an advantage to coal
mining companies that would continue to increase, not minimize, the harmful
environmental effects of mountaintop removal mining.
We urge you to reconsider the recommendations in the Draft EIS to conform to the
evidence produced by your studies. Mountaintop removal miming and the dumping of excess
spoils into valley fills aw incredibly destructive activities mat have wreaked havoc upon an
entire ecosystem, and will continue to do so without the enforcement of existing laws like the
buffer zone rule and the adoption of additional limits on these practices. This Draft EIS tips
the scales too heavily in favor of the coal mining industry and againstthe resources and
people of the region. Accordingly, your agencies should implement procedures that, at the
very least, strike the required statutory balance of environmental and mining interests.
Sincerely.
//4fri
Member o (Congress
V _,
/&*»
/AMMY/ALDWIN
T\fatiber iff Congress
CHRlSTOI'HJpTSHAYS
oiKigress
BARNEY KRA*5R
Member of Congress
t.I.UM
Member of Congress
MICHAEL HONDA
Member of Congress
EDWARD MARK.EY
Member of Congress
31M McDERMOTT
Member of Congress
".RROl.DKADLRR
'Member of Congress
T
SHEILA JACKSQSf LCE
Member of Congress
r?vfr*rf Us
Member ol'Con
RIJSH HOLT
Member of Congress
MTM/VF Draft PEIS Public Comment Compendium
A-4
Section A - Elected Officials
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RAU.GR&ALVA
Member of Congress
KARI.Bi.UMENAUER
Member of Congress
Member of Conarcss
Member of C
NITA LOWCY
Member of Congress
MTMA/F Draft PEIS Public Comment Compendium
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Section A - Elected Officials
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Federal Agencies
MTM/VF Draft PEIS Public Comment Compendium A-6 Section A - Federal Agencies
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James F.Devine, United States Department of the Interior
United States Department of the Interior
U.S. GEOLOGICAL SURVEY
Riiton, Virginia 20192 '
Reply Kefer To:
Mat Stop 423
JAN o
MEMORANDUM
Philadelphia, Pennsylvania
Bcorn: Janes F. Devine
Senior Advisor for
Subject: Review of Draft Piogramtmtic Enwronrnental Impact Statement for the
Mountaintop Coal Mining and Associated VaL'ey Fills in Appalachia.
The U.S. Geological Survey (USGS) has reviewed the subject Draft Programmatic
Environmental Impact Statement (DPEIS) and offers the following comments.
GENERAL COMMENT:
The Draft Programmatic Environmental Impact Statement does not use any USGS coal
quality data The data in USGS Professiorjal Paper 167.5-C (2001) could bs helpful in
evaluation of the resource,
SPECIFIC COMMENTS:
Page ES-4, Executive Summary, Chapter Technical Studies, third builet print:
The third sentence is internally inconsistent. As written, the sentence contrasts stream
storm response to "low-frequency storms" with response to "larger rainfall events;" low-
freqiieucy storms are by defimtiou large storms. A correction that wonld improve the
meaning of this s^itence wouiA be to diasge tbs phrase "low-ftsQiieBcy** to "low-
intensity.** The USGS recomniends that the sentence be replaced \viththefoUowing
sentence: "I>iringsfow, soaking storms, peak unit nmoff from a mined watershed
generally does not exceed ttotfroiii an urmjined watershed; however, during highly
mtsjise snTTfinftr tnnsdfirstcssDS, peafe unit rout
or exceeds that from an. unmined watershed."
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Page ttC-28 to H.C-29, Chapter II Alternatives; Section C Detailed Analyses of
the Actions to Address Issnes; Subsection 2, Goveituucnt Effideucy, Sub-Issue:
Consistent/Compatible Definitions for Stream Characteristics and Analyses;
Subsection a-, No Action Alternative; Subsection a-2,SMCRA; last sentence:
TtefoUowingtyrwgrapWcal error ^uH be corrected as it is part of a definition: "For
mstance, in West VirgimX the T«int where the stream segnKnt changes from ephemeral
to mteiTtrittent is located by a fie) contributing to a watershed tributary."
Page ILC-29, Chapter D Alternatives; Section C, Detailed Analyses ot the Actions
to Address Issues; Subsection 2, Government Efficiency, Sub-Issae:
Consistent/Compatible Definitions for Stream Characteristics and Analyses;
Subsection b, Alternatives 1,2, and 3; second paragraph:
The document states in Action 2 that ISsderal and state regulatory authorities wffl work
with... stakeholders to estabUsh science-based methods for definition and delineation of
sfaeam characteristics.../'A study addressmgtrusrraini has been convicted by the USGS
in cooperation with the Office of Surface Mining and the U.S. Bnyiranmsntal Protection
Agency (Paybins, 2002).
Pag«sin.N-l to IU.N-7, Chapter in Affected Environuient And Consequences of
MT1WVF; Section N. Past And Current Mining In The Study Area:
'Dae coal pro
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specifically cold-water species, but pioneer species adapted to live in ephemei'al
environments. This should be noted ia the section.
system, which is important in the evolution and spBcjation of North American feshwater
fishes, seeds to be ctariSed. ftisaiatherin^xirtantstaSemaittandmsritsSjHte'
discussion.
The discussion of leatie environments seems rather bag, considering the letattve paucity
of fc&e features in me landscape of the study area. lusteadof an environment affected
by MTM/VF, wettads and ponds in the study area 01® amdi mate likely an environment
from MTM/VF and should to discnssed in more detail
The listing of the potential benefits of ponds ia the stndy a*a makes no njerttoiioflhe
transient nature of the benefits, as the ponds are very commonly removed a the
completion of reclamation. SedimeHt pools made available by tjje removal of pond dams
»uMre«iftra the pitetaasport of large sediment loads. These sediments are of
unknown composition and may contain elevated concentrations of metals and trace
elements. This topic should be forltier discussed in the text
Page ITt.C-17, Chapter M Affected Environment and Consequences of MTM/VF:
SettionC, Appalachian Aquatic Systtms, Subsection 2. Lentic (Non-flowing)
Aquatic Systems and Wetlands, Subsection e. Ecosystem f'lmcn'on:
The .statement that 'This lake is antidpated to te similar to natural rrands found in the
study area." is iaconsJsteol wife the statement &SSL *".. ,fl»re are no natural lakes and
pcmds in West Virginia... [and] virtually all leutic systems in the study area have been
fotn»d by injKra^lng flowing water systems" (page DJ.C-13). Tie USGS wawunends
tnat the statements be reconciled so the docunjaEt states unambiguously whe*» natural
ponds exjst in tlie study area
Page m.C-20, Chapter m Affected Environment a
Section C, Appalachian Aquatic Systems, Subsection 2. Lentic (Non-flowing)
Aquatic Systems and Wetlands, Subsection t Wetlands In the Study Area:
The USGS recodfflesds thM 1j& discussion on enginsex&d ponds ssd wetlands in mtsed
areas include information about accumulation of sediment. Most of these ponds are
designed to trap sedimeut, which they do effectively. Because the ponds fill up with
sediment, the fenetions they perform change through time; sp«eifi^y,tte faction of
providing fish habitat is performed less effectively by ponds filled with sediment
The statement that "Functions of man made ponds md wetlands exist and maybe
considerable... [and] have their own inherent values." (p. El.C-20) seems overly broad:
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arai vague, consideririg that niiugation projects for stream loss have incliided the
. .ereatinn of patetrtne or pond-type wetlands or linear, drainage ditebrtype
there irrigation wetlatKis have been nEde and are available, then specific info
ation
stjould be presented msecdonC; and if not, the absence of such measurements should be
noted.
Page m. D-l, Chapter m Affected Environment and Consequences
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Page III. D-S, Chapter III Aflected Environment and Consequences of MTMAT;
Section D, Impact Producing Factors to The Headwater Streams from Mountaintop
Mining; Subsection!. Studies Relating to Direct and Indirect Surface Water
Impacts from Mountaintop Mining and Vafley Fills; Subsection d., Changes in
DownsD-eam Thermal Regime:
TlKUSGSreconimeodstiiatttepai-agrapllclariry that the site below the wiUey fill was at
(he toe of the valley fill.
Section D, Impact Pi-oduciug Factors to The Headwater Streams from Mountaintop
Mining; Subseclion 1, Studies Relating to Direct and Indirect Surface Water
Impacts from MountaintopMJiHag and Vafley Fills; Subsection d., Changes in
I>ownstream Thermal Regime, fitst paragraph:
kopacts of this ITOderated thermal regime on the downstream aquatic commumtiBS."
There is a body of lileraturedescribiiig the effects of thcnmi regimes upon invertebrate
communities. Many physiological rrocesses are temperature dependent and many key
lil'e cycle e-vents are cued by teinperatta*. Alta-ation of the thermal regimes may result in
a reduction of fitness at ail organismal level or alter fc synchronization of invertfibrate
life cycles with other seasonal events. A good review of the theimal ecology of aquatic
invertebrates can be found in Ward and Stanford (1982). It is interesting to note that on
page m.D-14, a study by.%chCo^ iudicaedthata. moderated themal regime may
result in the early emergence of cesrtiimstoneflytaxa Th= USGS recommends tliat the
paragiaph be rewritten to incorporate so me of the conclusions of these studies.
Overall, there is a lack of synthesis across topical areas. Notoneof these factors has an
effect entiely separate from the others, hi parncular, chemistiy and hydrology are
intimately hnked,es[x;cially in their effect upon downstream reactes. Increased flow
dirringlow-flowperiodiicarihelpsustahipopulatioas, but if the elevated flow is also
elevated in coMarriinants, there is a simultaneous decre^e in one sti-essor(lov^-flow) and
increase in another (exposure to contaminant). The USGS recommends that the
document include discussion of these interactions across all the listed factors.
PageHI.D-5, Chapter III Affected Environment and Consequences of MTM/VT;
Section D, Impact Producing Factors to Tfic Headwater Streams from Mountaintop
Mining Subsection I. Studies Relating to Direct and Indirect Surface Water
ImpactsfromMountaintopMrnuigaud Vafley Fills; Subscctioue. Changes in
Downstream How Regime:
Hie USGS suggests that two reports on the Baltod Fork gages (Messinger, 2003;
Messinger and PayWns, 2003), wMch were produced by TJSQS Wffit Vfeginia Dirtrict ag
part of fhe BIS process, be discussed in fids section. Both reports contain noteworthy
mfbniiatiori on total flows, stormflow characteristics, and seEsonal evapotrartspiratiou
6-6-4
Page m. D-7, Chapter ffl Affected Environment aid Consequences ofSCTM/VF;
Section n, Impact Producing Factors to "Ow Headwater Streams finaa Mountaintop
Mining; Subsection 1, Studies Kelating to Direct and Indirect Surface Water
Itownstawn Chemistry; Subseclion 12, Summary and Conclusions, fij^
paragraph, second sentence:
Sulfate, total dissolved solids, tastaess, ipecafic conductance, and manganese are cot
cations, lie USGS rerammerdstriat the word "cations" be replaced wim"coustiai£ut'i
aod ^xy^^ttss^* or otib^wise be x&wiiu^i.
Page ffl.D-9, Chapter ffl Affected Environinent and Consequences of MTMATB';
Section D, Impact Producing Factore to The Headwater Streams from Mountaintop
Mining; Subsection 1, Studies Relating to Direct and Indirect Surface Water
Impacts frtraMountamtop Mining and VaBeyFUls-, Subsection b,ESects to
Downstream Biota, Subsection M, Summary of Resnlts from Upstrearn-
Downstream Comparison-Type Studies, second paragraph:
Tte USGS nx»rurffinds the word 'taetrices" be changed to ''nietrics."
Page HI. D-ll, Chapter BDt Aflected Environment and Consequences of MTM/VF;
SecUonD, Impact Pradudng Factors to lie Head water Streams from Mountamtop
Mining; Sabsectionl. Studies Relating to ISrect and Indirect Surface Water
Impacts from Mountaintop Mintag and Valley Fills; Subsection h4., Studies of
MacroinTertebrate Communities in Stream Sites Located Downstream from Mined
or ifinedWaBey Filled Areas in Comparison to Reference Locations, first
llie iotroductory paragraph refers to a single study; however, tte second sentence refers
to "...these studies...." ITie USGS recommends that the docuiiient clarrfy that only one
study is used.
Page m.D-15, Chapter 111 Affected Environmeiit and Consequences of MTM/VF;
Section D, Impact Praduimg Factors to The Headwater Streams from Mountaintop
Mining; Subsection L Studies Relating to Direct and Indirect Surface Wate
Impacts from Mountaintop MiBing and Valley Fills; Subsection i., Impacts of
MTMrtT on Fish Assemblages, second paragraph:
The USGS National Water Quality
should not be characterized as
mfe coalfields and 20 sites overall.
fish community stody (USGS 2001b)
were only collected at a dozen sites
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MTM/VF Draft PE1S Public Comment Compendium
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Section A - Federal Agencies
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Page HI. D-18, Chapter III Affected Environment and Consequences rf MM/VF;
Section D, Impact Producing Factors to The Headwater Streams from Mnuntaintop
MSning; Subsection 2, Studies Relating to Mitigation Efforts tor MTM/VF Impacts
to Aquatic Systems; Subsection A., Limiting Factors for la-Kind Mitigatiou
Projects:
The USGS leconHaesds t&at the discos&soBsof sEreamcrests>a inchide a
information on watershed hydrology, such as the Variable Source Area Concept (Hewlett
and ffibbert, 1967), that is, tljat watei' seeps downriill thixjugh soil until it reaches a
confining ja^1, tibat streams &nn in saturated soil ag&as on the land surface, a&d tbat the
area of saturated soiUhat contributes to streamflow is variable through time. In light of
the principles of watershed hydrology, stream creation is very difficult and may not be
practiral, at least if ordy natural channel design is to be applied to ditch coEStruction.
Page m. D-19 (fldrt paragraph) and m. D-20 (tMrt paragraph), Chapter Dl
Producing Factoi-s to The Headwater Streams from Mountaintop Mining;
Subsection 2^ Studies Relating tf>l\Iitigation Efforts for MTMAT Impacts to
Aquatic Systems; Subsection e.1., Onsite:
Are the haKtatquaUtyiudicatorsacteany scored from 0 to 1? Or is this a typographical
error? Please Wiry.
For nutrient cycling, it is weH blown that aquatic insects play a role in all aquatic
ecosysteroi because all living organisms cycle nutrients. A more reasonable question that
should be addressed in this section is whstlier nutrient cycling in such imrrient-poor
systems are important to areas larger than the created wetlands.
Page HI- D-21, Chapter in Affected Environment and Consequences of MTM/Wj
Section D.topact Producing Factors to The Headwater Streams from Mountaintop
Mining Subsectiun 2, Studies Relating to Mitigation Efforts fcr MTM/VF Impacts
to Aquatic Systems; Subsection e.l, Onsite, top of page, lines 7-9:
The statement "However, it Is not kaowa whedter the orgaru'c matter processing that
occurs in created wetlands would mimic the processing found in a natural stream.
systeni'Moes not consider rrmchinforrnation that is known about the namre of wetlaods
con^ared to the nature of streams. Wetlands, by then-nature, trap and conserve organic
matter, and function &s oi^anic m£^£er sinks; wnal^v^r orgraic m^eosl wetlands retain,
the material tends to be dissolved, rather than imdissolved. Streams, by virtue of flowing,
teed to Q-ansport orgiinic matter (aad whatever else they coiitain) downstream Thus, it is
unlikely that organic matter processing in created wetlands would provide processing
similar to that piovsled by srjaaH streaJBS, The 0SGS necozntnends d^at tise statement be
icodified to emphasize these differing roles of streams and wetlands.
6-6-4
A inajor ouesdos iE lije context of inWgatiGH is sot wlseflier constructed ponds and
provide value equal to that of the streams they replace. One of the ways this can be
assessed wordd be by quaatifymgtherr relative eiiects on downstream aquatic systems
through a desigcrf Before-After, Control-Irnpact study. The USGS recommends that the
document describe hov/it wm be detenmr^ttot the functions of the created ponds and
wetlands wm be equal to thoIK of the surface water features they replace.
Page nLD-21, Chapter m Affected Environment and Consequences of MTM'VF;
Section D, Impact Producing Factors to The Headwater Streams from Monntaintop
Muling; Subsection 2, Studies Relating to Mitigation Efforts tw M1M/VF Impacts
to Aquatic Systems; Subsection ei, Otfsite, second paragraph, sixth sentence:
The USGS recommends flat the document esplato. what a h^h water mark h and bfiw it
is determined.
Page m. E-3, Chapter m Affected Environment and Consequences of MTMATF;
Section E, Coal MJnB Drainage ftom Surface Mirong; Subsection 2, Coal Mine
Drainage, second paragraph:
For clarity, USGS recomrcends that the tenncircuameutral be replaced with a more
conventional way of sajing that values were close to pH of 7.
Page ffl. E-3> Chapter m Affected Environment and Consequences of MTM/W;
Section E, Coal Mine Drainage from Surface Mining; Subsection 2, Coal Mine
Drainage, Subsection a» Indicator Parameters:
The USGS Mcomawnds that Hat discosstei of ataltafty in urine drajnage place greater
emphasis OH the Hnpoitsjce of teclaniation and mine-drainage treatment as a s^siiicant
source of iucreased alkalinity. Water-quality ameudmsnts used to elevate pH and
pecipitateFe and Mumrrunectainage before dischargrag to receiving waters also
inctease bofli alkalinity and s^cafic conductance; this shonjd be stated in the discussioa
Page DLE-6 Chapter HI Affected Environment and Consequences of MTMA^F;
Section E, Coal Mine Drainage froin Surface Milling; Subsection Z, Coal Mine
Drainage, Subsection 2b^ Effects of Coal Mmc Drainage:
This secUon states thai coal-mine drainage contains nsetals and trace elements that
6-6-4
corresponding concentratkinsniths sediments. The USGS recommends that the section
also stress the role of ftoctulauts and precipitates in cernerrjiiigsiibstrates and
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Section B, Relationship
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Page ni.H-5, Chapter HI Affected Enviroranent and Coasequences of MTMA'F;
Section H, Relationship of Mountaintop Mining to Groundwater Quality and
Quantity; Subsection 3., Impacts to Gronndwater Quantity irumMTWVF,
Subsection c., Impacts to Valley-Bottom Groundwater Recharge from MTMAT,
first paragraph:
No justification is provided forte assertion in the second sentence of this paragraph tfjat
MTMAfFijap^tsottvdteyte&ookaqBfaswoiiMbefiijated The justification
requites proof that W aqalfas do not itfwaet with, te underlying fiaettaad bedrock.
Tile USGSrexoramendstlMtritations justify ing die concqjtual models be provided, or
for ftttaractJon between, the VP aquifers »1 the tmdatlyiag bedtodt
Page ffl.H-7, Chapter m Affected Environment and Consequences of MTMA'F;
Section H, Relationship of Mountaintop Mining to Groundwater Quality and
Quantity, Subsection 4, Impacts to Groundwater Chemistry train MTM/Vf;
Subsection a, Geochemical Reactions, flrat WB sentence:
IteUSGSrecormiffiudsthssenteiice be reworded to eirphasize thai mineral
concentrations in outflowing waters from fins may decrease over time but may remain at
unacceptable levels.
Page IU.K-38 through m.K-46, Chapter mAflectedEnrironment and
Couseq«eiicesofMTM^VF;SccUonK., Excess SpoU Disposal, Subsection 4., Treuds
in Watershed Size:
Most of the comparativedisciissions on the data provided in this cnlire section arc brief
audcursoiy. The reader is left to discern differences in trends and interpretations that
could give more meaning to the data Tlie significance of the mlbrmation in the tables
and figures should be provided iu text. What does the information mean, and why is it
impacts on the environment; however, no information is provided on io w the trend
analysis is useful or whst the impacts are specifically, llffi USGS recommends that this
additional information be provided in this section.
Page HI. K-47, Chapter ffl Affected Enviromnent and Consequences of MTMAT;
Section K., Excess Spoil Disposal, Subsection 5.,'Irtnds on Stream Impact Under
Fill Footprints:
1. Hie analyses m subsection 5 saim to be based on tte use of data that differe from
data based on impacted v/atershed areas upstream of a fill toe to assess tbe total
lengrnof direct stream. Perhaps, this should be stated explicitly in the text.
5-4-4
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13-3-4
5-7-4
2. Tte reason for the choice of 30-acre watersheds used ill the delineation of the
synthetic stream iffitwoik is aotexpUcitly stated witb^ section ffl-K, other tnan
that the synthetic network is less subjective than the topographic map stream
delineation. A discussion somewhere in this section about the accuracy of the
underlying data seems necessary, given that the National Elevation Dataset data
includes d%&sl Gfovstflcni motleys of iBnll%*l)B teaslatkai and viMage,
3. The term "stream loss" was used to describe the synthetic streams that are buried
byfilk, but no mention is made as to whether the streams were assumed to lie
iatennittent or perennial This information should be provided in text.
4. No ramnieut in this brief section alludes to tiends as coropaied to wutersheti area
iinpacted by fuls; for example, altrroughWV had only 1.73 nules of synthetic
streams buried m 2001 (tabklttK-S), the average watershed area impacted by a
valley ffll was 3 times greater (97.28 acres) than that for tlieSO-acrewatersted.
Does this suggest that 30-acre watersheds may be too dense a network? Are
watersb^ areas imder a fill actually intermittent or ephemera;? Should medians
tw waSraSjed area be ased in t«Bl analysis, so as to inqpwve information about
central tendency of data?
S. It is not clear if me valley M footprint data used in tin's analysis is the total
nurntjer of fiUs approved or the nuinber of fills coiiEtructed. This would seetn a
crucial point, as up to half of the permitted fills may not be constructed, according
to information provided in section in. K-2.
PageIV.B-3, Chapter I\r Environmental Consequences of the AlternaBves
Analyzed, Section B, Aquatic Resoaorees, Subsection 1., Consequences Common to
No Action Alternative and Alternatives 1,2, and 3; Subsection a., Direct Stream
Loss from MTMA'F, second paragraph:
The coalribution of ftjeaiid coarse organic matter represents one of the niostiaipoitant
Although widely-accepted, standardized testing procedures for quantities of fine and
co arse organic matter m streams may not exist in a regulatoi7conte;tt, regulatory
mediods didn't exist for son« of the other impacts studied in the DPB1S process. Several
classic studies (Fisher and Likens, 1973, for instance) would sei-ve as excellent models
lii& study
Page IV.B-3, Chapter IV Envii-onmental Consequences of the Altei-natives
Analyzed, Section B, Aqnatic Resources, Subsection 1^ Consequencts Common to
No Action Alternative and Alternatives 1,2, and 3; Subsection a., Direct Stream
Loss from MTM/VF, fifth paragraph:
Tbe statement'It is also iiut evident to wt^ degree reclamation aiidmitiga}ion (e.g.
drainage OTijlrol and revegetation)oflset this organic uuuieutieductioa" requires further
explanation; is there some component of drainage control that is thought ta directly offset
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MTM/VF Draft PEIS Public Comment Compendium
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Section A - Federal Agencies
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13
14
this loss? if so, it was not adequately discussed in this section of the DPEIS. Similarly,
the statement "Existing CWA programs indirectly address these effects...." does m>t
appe-ar tote well supported because the progranB mentioned address diffei-ent effects
that rmy or may not tove ecological importance equal to that of organic-riKirter
processing. Whetter the ecological importance is equal can only IDC deteTmined if
orgaiuc- matter processing is measiD-ediu the study area. The USGS suggests that
a4Morialiijfoimation,if available, be provided to bolster snipport for the noted
explicitly stated in text
PageIV.B-5, Chapter IV Envii-onmental Consequences of the Alternative
Analyzed, Section B. Aquatic Resources, Subsection 1, Consequences Common to
No Action Alternative and Alternatives 1, 2, and 3, Subsection b, Indirect Stream.
The frstfrdl sentence nray not accraately describe the mtendedmeamng of the pas sage.
Zinc, sodiaai, and stuiatecor«;ntrarionsii'0iild be expected to be positively correlated
with fish and mvertebrateirnpairrneots instead of negatively correlated. The USGS
suggests that the intended meaning of the passage be verified.
PageIV.D-5, Chapter IV Environmental Consequences of flie Alternatives
Analyzed, Section O, fWi and Wildlife, Subsection 1, Consequences Common to No
Action Alternative and Alternatives 1,2, and 3, Subsection A, Fish Populations:
TWs section Is ferirf and not vety jatmnattw Bspriiag mining impacts on fii3»
populations. Ilie USGS siiggests trjM addinor^ inforraation (topic material or concepts)
be provided in the sectto.
section b, (page IV. D-2).
Page C-45, Table C-17 General Groundwater Composition of Vurginia Coalfields
(Hufscluuidt, 1981):
Table C47 5s inconect
infonm*tt(fimnHjtfsetaadt, 1981) Deeds to Ijeinctaitel here.
Page C-51, Table C-19 Comparalive Groundwato Quality Data for Southwestern
Table C-19 is not cited in text discussion.
Tterik you for the opportunity to review aid conHnent on UBS DEES.
REFERENCES:
Hifc, »82,Hy*otogyof A«a 9, Basfcw Coal Province, West V%Biia:0.&
Geological Swwy Open-File Report 81-803.
6-6-4
6-1-4
439.
Hewlett, J.D., and Hibbert, A.R., 1967, Factors affecting the response of small
wMershedstoprecipitationinhurrfldareas, pp. 275-290 in Sopj>er,W.B., and Lrdl,
aW.,eds.,R»«th$di»logy: PogamoB, New York.
Hufschmidt, 1981, Hydrology of Area 16, Eastern Coal Province, Virginia aid Tenessee:
U.S. Geological Survey Opeu-Ege Report 81-204 p. 68.
Messinger, Terence, 2003, Comparison of stoim response of streams in small, vujmir.ed
and valley-filled watersheds, 1999-2001, Ballard Fork, West Virginia- U.S.
Geobgical Svrrvey Water-Resoirrces Investigations Report 02-4303, 22 p.
Messinger, Terence, and Paybins, Katherine S., 2003, Relations between precipitation
watersheds, Ballard Kirk, West Virginia, 1999-2001: U.S. Geological Survey
Water-Resources Investigations Report 03-41 13, 51 p.
Paybms, 2002, Row origvo, drainage area, and hyoralogic characteristics for headwater
streiarBratljerr»tmtair.topcoal-irjiriingregionof southern West Virginia, 2000-
01, USGS Water-Resources Investigations Report 02-4300.
5-5-4
U. S. Seologi<l Survey coal database,
U.S. Geological Survey, 2003, How origin, drainage areas, and hydrologic characteristics
for headwater streanism the niovmtaintop coal-mining region of southern West
Virginia, 2000-2001: U.S. Geological Survey Water-Resources Investigations
Report 03^1300.
Ward, I.V., and }. A Stanford, 1982, Thermal responses in the evolutionary ecology of
aquatic insects: Annual Reviews in Entomology, v. 27 p 97-117.
MTM/VF Draft PEIS Public Comment Compendium
A-13
Section A - Federal Agencies
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Paul Joe, Department of Health & Human Services
Theresa Presser, United States Geological Survey
DEPARTMENT OF HEALTH & HUMAN SERVICES
PuWioHeaWi Service
Centeis for Disaasa Control
®id Prevaiften (CDC)
Atlanta OA 30883
September 2,2003
Mr. John Fonen, US EPA (3EA30)
2650 Ansh Street
Philadelphia, Pennsylvania 19103
Dear Mr, Forten:
We hove reviewed the Mountair.top Mining/Valley Fills in Appalachia Drail Prcgramatic
Environmental Impact prepared by tins U.S, Cotes of Engheets, U.S, BwiMnasstttal Protection
Agency, U.S. 13shfflidWadmeServk«, and the West Virginia Department of Environmeriial
Protection.
(DHHS), U.S. Public Health Setvfce.
We bclfcvcMhe DEIS has identified the appropriate potential human health impacts tlifit may re-siUl
from these mining operations.
and enforced, there should be minimi impacts to human teeBi,
Thailkyoufortheopportunity to review and comment on tils document.
of the Final E1S when it becomes available
Sincere^ yours,
10-5-3
us a copy
Paul Joe,
Medical Officer
National Center for Environmental Health (Flo)
Centers for Disease Control & Prevention
iUSGS
Water Resources Division
345 Middlefield Road, MS 435
MenloPark,CA 94025
December 29, 2003
TO: John Forren, U.S. Environmental Protection Agency, Region 3, Philadelphia,
Pennsylvania
FROM: Theresa Presser
U.S. Geological Survey, Water Resources Division, National Research Program, Menlo
Park, California
SUBJECT: Technical Comments on the Draft Programmatic Environmental Impact Statement
(DPEIS) on Mountaittop Coal Mining and Associated Vaflsy Fills in Appalachia
concerning Selenium Sources, Monitoring, and Prediction of Ecosystem Effects
SUMMARY
The Draft Programmatic Environmental Impact Statement (DPEIS) on Mountaintbp Coal Mining
and Associated Valley Fills (MTM/VF) in Appahchia is critically deficient because 1) supporting
documentation failed to adequately quantify and analyze the effects of selenium on aquatic life: and 2)
proposed alternatives failed to address the protection of aquatic life from potential adverse effects of
selenium. Although extreme Se contamination causes death in adult organisms, the responses of
greatest concern are impairment of reproductive success (e.g. failure of eggs to hatch) and
teratogenesis (deformities in juveniles) in birds and fish. Streamlining the permitting process and
monitoring the decline in water quality arid ecological health in affected watersheds do nothing to
reduce selenium concentrations or limit impacts. Proposed control measures to neutralize coal mine
drainage (CMD) with alkaline addition may exacerbate the mobility of selenium and hence it's loading
to the environment. AH alternatives require mitigation of unavoidable impacts to waters of the United
States. Proposed mitigation measures in the DPETS, specifically sedimentation ponds and associated
wetlands, likely would allow elevated selenium risk environments for birds and fish because of
increased opportunities for Se biornagniftcation in food webs.
The DPEIS has left out 1) fundamental data on selenium concentrations in sediment, invertebrates,
fish tissue, and bird eggs: and 2) information on dietary pathways and vulnerable predator species.
These data are necessary to assess potential impacts from bioacfiumulation of selenium in the areas of
meuntaintop mining and valley ftlts. However, based solely on selenium concentrations in streams and
sedimentation ponds receiving discharges torn valley fills, adverse ecological effects from selenium
are likely to occur in the DPEIS study area. The median selenium concentration in streams at .filled
sites was approximately two-fold above the toxieity thresnold for protection of aquatic life (5 u.g Se/L)
and concentrations at individual sites were as much as ten-fold above (Appendix D, Stream Chemistry
Final Report, 4/8/02). Sediment control ponds at the base of fills contained some of the highest
selenium concentrations (up to 42 ug Se/L),
5-5-2
GENERAL COMMENTS?
Several components of documented field case studies may be applicable to selenium mobilization in
Appalachia. In contrast to many other contaminants, sources of selenium and significant
environmental damage due to selenium have been well documented (Letnly, 1985; Pnssser, et al.,
1994; Lernly, 1997; Hamilton, 1998; Sfcorupa, 1998; Presser and Piper, 1998; Leraly, 2002; Seileret
5-5-5
MTM/VF Draft PE1S Public Comment Compendium
A-14
Section A - Federal Agencies
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Water Resources Division
Western Region
345 Middlefield Road, MS 435
Menlo Park, CA 94025
December 29, 2003
TO:
John Forren, U.S. Environmental Protection Agency, Region 3, Philadelphia,
Pennsylvania
FROM: Theresa Presser
U.S. Geological Survey, Water Resources Division, National Research Program, Menio
Park, California
SUBJECT: Technical Comments on the Draft Programmatic Environmental Impact Statement
(DPEIS) on Mountaintop Coal Mining and Associated Valley Fills in Appalachia
concerning Selenium Sources, Monitoring, and Prediction of Ecosystem Effects
SUMMARY
The Draft Programmatic Environmental Impact Statement (DPEIS) on Mountaintop Coal Mining
and Associated Valley Fills (MTM/VF) in Appalachia is critically deficient because 1) supporting
documentation failed to adequately quantify and analyze the effects of selenium on aquatic life; and 2)
proposed alternatives failed to address the protection of aquatic life from potential adverse effects of
selenium. Although extreme Se contamination causes death in adult organisms, the responses of
greatest concern are impairment of reproductive success (e.g. failure of eggs to hatch) and
teratogenesis (deformities in juveniles) in birds and fish. Streamlining the permitting process and
monitoring the decline in water quality and ecological health in affected wateisheds do nothing to
reduce selenium concentrations or limit impacts. Proposed control measures to neutralize coal mine
drainage (CMD) with alkaline addition may exacerbate the mobility of selenium and hence it's loading
to the environment. All alternatives require mitigation of unavoidable impacts to waters of the United
States. Proposed mitigation measures in the DPEIS, specifically sedimentation ponds and associated
wetlands, likely would allow elevated selenium risk environments for birds and fish because of
increased opportunities for Se biomagnification in food webs.
The DPEIS has left out 1) fundamental data on selenium concentrations in sediment, invertebrates,
fish tissue, and bird eggs; and 2) information on dietary pathways and vulnerable predator species.
These data are necessary to assess potential impacts from bioaccumulation of selenium in the areas of
mountaintop mining and valley fills. However, based $olely on selenium concentrations in streams and
sedimentation ponds receiving discharges from valley fills, adverse ecological effects from selenium
are likely to occur in the DPEIS study area. The median selenium concentration in streams at jilted
sites was approximately two-fold above the toxiclty threshold for protection of aquatic life (5 jig Se/L)
and concentrations at individual sites were as much as ten-fold above (Appendix D, Stream Chemistry
Final Report, 4/8/02). Sediment control ponds at the base of fills contained some of the highest
selenium concentrations (up to 42 fig Se/L).
GENERAL COMMENTS
Several components of documented field case studies may be applicable to selenium mobilization in
Appalachia, In contrast to many other contaminants, sources of selenium and significant
environmental damage due to selenium have been well documented (Lemly, 1985; Presser, et al.,
1994; Lemly, 1997; Hamilton, 1998; Skorupa, 1998; Presser and Piper, 1998; Lemly, 2002; Seileret
5-5-5
DPEIS leaves in doubt whether mining and mitigation can proceed while controlling environmental
selenium concentrations within protective ranges.
The DPEIS cumulative effects analysis also may need to consider the combined effect of other
environmental stressors imposed by a general decrease in water quality and ecological health in
watersheds impacted by mining when evaluating selenium risk (DPEIS Appendix I). Environmental
selenium data and ecological risk thresholds may be applicable as part of the proposed action to build a
database (Action 12, DPEIS IIC-69) to determine if a scientific basis for a cumulative-impact-
threshold can be identified in the future.
A recommended selenium monitoring program would include a mass balance or budget through
affected watersheds (i.e., inputs: fluxes and storage within environmental media; and outputs); food
web analysis; life cycle analysis of vulnerable predators; and identification of elevated risk areas and
seasons (Presser and Piper, 1998; Luoma and Presser, 2000). Studies of the documented, (DPEIS IIIC-
17) well-developed, and predictable food web of pond systems and impoundments may be particularly
important. Those species feeding on benthic and emergent aquatic invertebrates such as salamanders,
Acadian Flycatcher, and Louisiana Waterthrush may warrant specific monitoring. Cattail wetlands
suggested as mitigation to increase productivity, water quality, and biodiversity may require increased
control measures and monitoring (0PEIS1-14).
Results of a comprehensive monitoring approach could be used to forecast ecological effects of
selenium under an array of scenarios that could result from different resolutions of waste management
issues. Effects-analysis to calculate risk would take into account not only reproduction, but also
reduced growth and immuno-suppression. Source rock and waste analysis may show that some mining
areas contain less selenium aad that some mitigation measures have less risk in terms of mobility of
selenium in food webs. Climatic and hydrologic effects and the progression of acid mine drainage
may be attenuating variables.
Given below are specific technical comments and further recommendations for monitoring that
may help provide a basis for understanding the biotransfer of selenium in the ecologically rich and
diverse watersheds of Appalachia. Attachment 1 is a summary of background information for the
DPETS.
SPECWC COMMENTS ANB DOCUMENTATION
Water Quality, Valley Fills, and Sedimentation Ponds
The DPEIS documents that selenium concentrations from the filled category sites were four ti to
exceed AWQC for selenium at most (13 of 15) sites In this category; and the existence ofseleni
concentrations in excess of AWQC at most filled sites indicates a potential for impacts to the a fuatic
environment ami possibly to higher order organisms that feed on aquatic organisms (DPEIS P ige 111
D-6, 7, and 10). Data mainly are given in Appendix D: 5-5-4
Appendix D, Stream Chemistry Final Report, 4/8/02
A WQC (Water Quality Criterion), i fig Se/L
Five watersheds in the Primary Region of hfottntaintop/Vallev Fill Coal Mining
Sampling period, August 2000 through February 2001
Fitted category (75 sites), 66 violations at 13 sites
Range 1.5 to 49 fig Se/L
Median at un-mined sites, 1.5 ftg Se/L
Median at fitted sites, 11.7 ftg Se/L
Appendix D, Fisheries Study, 10/02
MTM/VF Draft PEIS Public Comment Compendium
A-15
Section A - Federal Agencies
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Water chemistry analysis detected selenium in five of the eight sites in the Mud River watershed
assofjated with valley Jills (page IS),
Range 9. J to 31.1 fig Se/L
The DPEIS (page 1-9) documents for the study areas that:
1) During 1985 to 1998 a) aa average of 365 filblyeur were constructed: and b) 5,168 acres of fill
in 15,733 acres of watershed were approved.
2) During 1999 to 2001 a) an average of 217/ttr/year were constructed; and b) 3,016 acres of fill
in 26,570 acres of watershed were approved.
No other category of streams (i.e., streams in un-mined areas or streams in mined areas without valley
fills) had violations of the selenium limit.
Sedimentation ponds for drainage from fills also were sampled as part of the Stream Chemistry
Final Report (Figure Se-1,24 to 42 jig Se/L), but were not illustrated as a separate category. Drainage
from all valley fill areas is required to past through a sedimentation pond, and additional ponds may be
on a mine site where needed to control sediment and runoff from other disturbances (DPEIS III J-7). If
treatment is necessary, the sedimentation ponds are normally used as treatment basins and may be
constructed in a series. Mitigation wetlands also may be constructed at the toe of filled areas.
Ecological Effects of Selenium
Little information and data also are given to help assess or predict selenium's current exposure and
effects in the DPEiS study area or as a result of future mining activities. For example, selenium
concentrations mfill material, sediment, invertebrates, fish tissue, bird eggs, or plants are not available.
Bioaecumulatjon and uptake via food is the most important route of transfer to upper trophic level
species. Upper trophic level predators are more at risk than their prey, making it difficult to use
traditional methods to predict risk from environmental concentrations alone. Skorupa (1998) described
field case studies showing different degrees of selenium effects in a variety of wetlands and reservoirs
with identified sources of selenium. An especially well documented case study exists for Belews
Lake, North Carolina where selenium contamination resulted in local extinctions of most fish
population! in a cooling water reservoir used to dispose of coal fly-ash (Lemly, 1985; 1997). The most
well known case of selenium poisoning in a field environment is at Kesterson National Wildlife
Refuge in the San Joaquin Valley, California (Presser and Ohlendorf, 1987). There, teratogenesis was
widespread in populations of water birds and reproductive failure occurred in populations offish
because of agricultural drainage practices. A more recent case of acute selenium poisoning of
livestock ia Idaho has resulted in the desr* of more than 300 sheep who fed on forage grown on
reclaimed waste dumps (Piper et al., 2000). Comprehensive reviews of the effects of Se in birds and
fish are given in Skorupa and Ohiendorf, 1991; Heinz, 1996; USDOI, 1998; Skorupa, 1998; Lemly,
2002; Hamilton and Hofirnan, 2003; Ohlendorf, 2003.
As noted previously, based on established guidelines and the current understanding of selenium
biogeochemistry, ecological effects from selenium in areas of valley fills are likely to occur.
Sedimentation ponds may be of greatest concern. Selenium-contaminated impoundments appear to
present greater risks to wildlife than selenium contaminated streams and rivers (Skorupa, 1998).
Protective guidelines also are calculated that establish concern for the environment at 2 ug Se/L for
freshwater (USFWS and NMFS, 2000). A 2-ng Se/L criterion is in place at evaporation ponds and
wetland channel in the San Joaquin Valley, California. Additionally, USEPA is redefining selenium
criteria for the protection of wildlife and aquatic life to take into account exposure from food webs
(USEPA, 1998).
5-5-4
9-2-5
Human Health Advisories for Selenium
A national drinking water standard of 50 ug Se/L also has been developed based on concentration
of selenium. Guidelines for public health warnings based on selenium in the diet have been developed
in areas of the western United States (USDOI, 1998), Advisories were issued in California when
selenium concentrations in fish muscle reached or exceeded 2 jig Se/g, wet weight (6-12 |ig Se/g dry
weight, assuming 65-85% moisture). Consumption was not to exceed 112 grams of flesh per one- or
two-week period or 20 grains of fish at bird muscle per day in addition to the regular daily intake.
Children (less than age 15) and pregnant women were advised not to consume any fwh or game from
the posted areas. When edible tissues exceeded 5 ug Se/g on a wet weight basis, a complete ban on
human consumption offish was recommended. In the San Joaquin Valley of California, me postings
are provided in several languages because a subsistence lifestyle provides the greatest risk.
Vegetation as Diet
In general, substantive risk to aquatic life occurs at selenium concentrations in diet > 7 u.g Se/g, dry
weight (USDOI, 1998; Presser et al, 2004). Marginal risk to aquatic life from diet occurs at 3 pg Se/g.
Various federal and state agencies recommend less than 5 (ig Se/g in terrestrial forage as an action
level of regional grazing level (U.S. Forest Service and the Idaho State Veterinarian Office). The
chronic toxicity range for horses and sheep starts at 5 |ig Se/g in forage (Puls, 1988).
Sources of Selenium
Coal is a recognized source of selenium both through selenium enriched particulates from the
burning of fossil fuel and fly-ash disposal in aquatic environments (Lemly, 1985; 1997; 2002).
Available data on a whole-coal basis for trace elements in coal samples from West Virginia show an
average selenium concentration of 4.2 ug Se/g, with a range of 2.8 to 21.3 ug Se/g (DPEIS Appendix
D, Stream Chemistry Final Report, 4M/Q2; West Virginia Geological and Economic Survey,
www.wvgs.wvnet.edu). The Stream Chemistry Report also states that disturbing coal and soils during
mining could be expected to result in violations of the stream limit for selenium (page 74).
This range of selenium eoneerrtratiorts in West Virginia coals is comparable to that in source rocks
of the Coast Ranges of California, but is lower than the range occurring in phosphorites of southeast
Idaho. Processing activities in these problem areas call attention to anthropogenic connections to the
environment (irrigation drainage, oil refining effluents, waste shale production), in addition to surface
processes (weathering, erosion, and runoff) and hydrologic factors (aridity, drainage progression), that
can ultimately mediate contamination.
Shales associated with coals that are displaced at the time of mining and consequently concentrated
A fill sites may be a source of selenium to areas downstream of valley fill construction, hi general,
selenium sources to the environment are linked to organic-enriched sedimentary rocks—black shales,
petroleum source rocks, phosphorites (Presser et al, 2004). Their global distribution is dependent on
the fundamental rote of essential elements such as selenium in determining primary productivity in
ancient depositional environments. Coals are included as a subset of petroleum source rocks (Klemme
and Ulmtshek, 1991), As illustrated by the case of phosphorites in Idaho, waste shale in comparison to
ore, is more enriched in selenium (80 (Ig Se/g v. 50 fig Se/g) {Presser et al,, 2004).
Examples from the San Joaquin Valley, California and waste-rock sites at phosphate mines, Idaho
highlight a present-dty mechanism of selenium mobility in the environment that involves exposure of
organic carbon»rich rock to the oxie conditions of the atmosphere and surface and ground water.
Selenium is oxidized from relatively insoluble selenide (SB2") and elemental Se° to soluble oxyanions,
selenite (SeOj2") and selenate (SeO<2') under alkaline conditions (Presser, 1994; Piper et al, 2000).
Organic selenium {operationally defined as organic selenide) also can exist in the dissolved phase.
10-5-5
6-1-5
5-5-5
MTM/VF Draft PEIS Public Comment Compendium
A-16
Section A - Federal Agencies
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gr MksMne Knvirenmeais
Acid mine drainage is traditionally of concern in mining areas, as it is in the DPE1S study area.
However, methods of controlling coal mine drainage (CM0) with alkaline addition toaf e III E-9) may
exacerbate the mobility of selenium and hence its loading to the environment Selenium contamination
problems have been associated with oxidizing, alkaline environments since the 1940's when studies
focused on the potential toxicity of selefliferous op^-range plants in arid and semi-arid western states
(National Research Council, • 989; Presser «t a!., 1994). As a msult, grazing was terminated on large
areas of western rangeland. In the 1980s, the sources and mechanism of contamination jr, the San
Joaqnin Valley, California served as a prototype to develop criteria for selecting study sites for the
National Irrigation Water Quality Program (Presser et al., 1994; Seller et al., 2003). Among the six
criteria contributing to selenium contamination was an oxidized, alkaline environment that promotes
the formation of selenate, the mobile form of selenium.
5-5-2
4) Continue Study «f Selenium in Stream*
Quality controls issues were resolved concejming analysis of selenium in streams. However, results
from Lab 1 were discarded mainly because of elevated levels in Blanks. Duplicating this study with
improved methodology and detection limit for selenium may prove informative.
Thank you for the opportunity to provide technical comments on several aspects of selenium
chemistry and exposure in the environment as they relate to the 0PEIS. If you have questions or need
copies of referenced documents, please do not hesitate to call (650-329-4512, tpresser@usgs.gov).
5-5-3
MONITORING RECOMMENDATIONS
I) Expand Current Selenium Monitoring
2) Fareeast Selenium Effects Under an Array of Management Scenarios
Determination oft Se mass balance or budget for the DPEIS watersheds and Se cycling through the
components of the watershed's ecosystems are crucial because of Se Woaccumwlatkm. A
comprehensive linked approach would include all considerations that cause systems to respond
differently to Se contamination. Comparison to multi-media guidelines could be made to assess
exposure and risk. Results of a comprehensive monitoring approach then could be used to forecast
ecological effects of selenium under an array of scenarios that could result from different resolutions of
waste management issues.
The critical media to be monitored are water, partieulate material, and prey and predator tissue.
Because selenium is a reproductive toxin, selenium concentrations in fish and bird eggs also provide
assessments for risk management that incorporate arjd concentrate ruany confounding site variabilities.
Knowledge of potentially optimal indicators (e.g., benthic invertebrate!) in pond systems would be
necessary to fulty explore feeding relations and document predator exposure. Variables to be
addressed in a linked food web approach to include: 1) hydrologic units; 2) vulnerable predators; 3)
elevated risk periods; 4) suspended partieulate material patterns; 5) contaminant concentrations and
speciation in sources that most influence bioavailabtiiiy; 6) seasonality of invertebrate food webs; 7)
food assimilation capacities and reactivities; 8) life cycles of predator species thai inhabit each
hydrologic unit: and 9) nesting habitats.
3) Ensure Selenium Methodology with a0.4ftg Se/L Detection Limit
The detection limit for the methodology used in the OPEIS stream study was noted as 3 }4g Se/L
(Appendix D, Stream Chemistry Final Report, 4/8/02, Tabte 2), but was further noted that the
estimated detection limit for Se in water using Method 200.8, Inductively Coupled Plasma-Mass
Spectrometer, was araund S fig Se/L (USEPA Methods Manual, 1983). This methodology and
detection limit (3-5 ug Se/L) may not be sufficient in view of a USEPA criterion of 5 ftg Se/L and
ecological effects being of concern at levels of 2 )ig Se/L. Guidance provided by USEPA requires a
detection limit of 0.6 ug Se/L) (Interim Chemical/Biological Monitoring Protocol far Coal Mining
Permit Application. 11/19/00).
5-5-39
Attachments: (I)
cc: Marc A. Sylvester, USGS, WRD, Menlo Park, CA
Keith O. Kirk, USGS, WRD, Menlo Park, CA
12/29/03 Transmitted via 1) email to forren.john@epa.gov and 2) FedEx to John Forren, U.S.
Environmental Protection Agency (3EA30), 1650 Arch Street, Philadelphia, PA 19103
MTM/VF Draft PE1S Public Comment Compendium
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Soction A - Federal Agencies
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REFERENCES
Hamilton, SJ., 1998, Selenium effects on endangered fish in fee Colorado River basin, In
Frankenberger, W.T., Jr., aid Engberg, R.A., eds., Environmental Chemistry of Selenium: New York,
Marcel Dekker Inc., p. 297-313.
Hamilton, SJ. and Hoffman, D.J, 2003, Trace Element and Nutrition Interactions in Fish and Wildlife,
in DJ. Hodman, B.A. Rattner, G.A. Burton Jr., and ] Cairns Jr., eds., Handbook of Bcotoxicology,
Lewis Publishers, Washington D.C. p. 1)97-1235.
Heinz, G.H., 1996, Selenium in Birds, in W.N. Beyer, G.H. Heinz, and A.W. Redmond-Norwood eds.
Environmental Contaminants in Wildlife: Interpreting Tissue Concentrations, CRC Press, p. 447-458.
Klemme, H.D. and Ulmishek, G.F., 1991, Effective petroleum source rocks of the world: strati-
graphic distribution and controlling depositions! factors: American Association of Petroleum
Geologists Bulletin, v. 75, p. 1809-1851.
Lemly, A.D., 1985, Toxicology of selenium in a freshwater reservoir: Implications for environmental
hazard evaluation and safety: Ecotoxicology and Environmental Safety, v.10, p. 314-338.
Lemly, A.D., 1997, Ecosystem recovery following selenium contamination in a freshwater reservoir:
Ecotoxicology and Environmental Safety, v. 36, p. 275-281.
Lemly, A.D., 2002, Selenium Assessment in Aquatic Ecosystems: a Guide for Hazard Evaluation and
Water Quality Criteria: Springer, New York, 161 p.
Luotna, S.N. and Presser, T.S., 2000, Forecasting selenium discharges to the San Francisco Bay-Delta
Estuary: ecological effects of a proposed San Luis Drain extension, U.S. Geological Survey Open-File
Report 00-416,358 p (water.usgs.gov/pubs/oft/ofiOO-416).
National Research Council, 1989, Irrigation-induced water quality problems: What can be learned
from the San Joaquin Valley experience: Washington, D.C., National Academy Press, 157 p.
Ohlendorf, H.M., 2003, Ecotoxicology of Selenium, in DJ. Hoffman, B.A. Rattner, G.A. Burton Jr.,
and J Cairns Jr., eds., Handbook of Ecotoxicology. Lewis Publishers, Washington D.C., p. 465-500.
Piper, D., Skorupa, J., Presser, T, Hardy, M, Hamilton, S, Huebner, M, and Gulbrandsen, R., 2000,
The Phosphoria Formation at the Hot Springs Mine in southeast Idaho: a source of trace elements to
ground water, surface water, and biota: U.S. Geological Survey Open-File Report 00-050, 73 p.
Presser, T.S. and Ohlendorf, H.M., 1987. Biogeochemical cycling of selenium in the San
Joaquin Valley, California, USA: Environmental Management, v. 11, p. 805-821.
Presser, T.S, Sylvester, M.A., and Low, W.H., 1994, Bioaccumulation of selenium from natural
geologic sources in the Western States and its potential consequences: Environmental Management, V.
18, No. 3, p. 42 3-436.
Presser, T.S. and Piper, D.Z, 1998, Mass balance approach to selenium cycling through the San
Joaquin Valley, sources to river to bay, in W. Frankeriberger and RAJingberg, eds., Environmental
Chemistry of Selenium, Marcel Dekker Inc., New York., p. 153-182.
Presser, T.S. and Skompa, J.P., 2003, Linking Selenium Sources to Ecosystems: Local and Global
Perspectives, Abstracts of the Annual Meeting of American Association for the Advancement of
Science, Seattle, Washington, February 13-16,2004 (www.aaas.org/meetings/).
Presser, T.S., Piper, D.Z., Bird, KJ, Skorupa, J.P.,Hamilton, SJ., Detwiler, SJ. and Huebner, M.A.,
2004, The Phosphoria Formation: a mode! tat forecasting global selenium sources to the environment,
in 1. Hein, ed., Life Cycle of the Phosphoria Formation: From Deposition to the Post-Mining
Environment, Elsevier, New York, 38 p. (January, 2004 publication)
Puls, R., 1988. Mineral levels in animal health: Diagnostic Data, (2" edn.). Sherpa
International, Clearbrook, British Colombia, Canada, 356 p.
Seller, R.L., Skorupa, J.P., Naftz, D.L. and Nolan, B.T., 2003, Irrigation-induced contamination of
water, sediment, and biota in the western United States—synthesis of data from the National Irrigation
Water Quality Program: U. S. Geological Survey Professional Paper 1655,123 p.
Skorupa, J.P. and Ohlendorf, H.M, 1991, Contaminants in drainage water and avian risk threshold1!, in
A. Dinar and D. Zilberrnan, eds., The Economics and Management of Water and Drainage in
Agriculture, Kluwer Academic Publishers, Boston Massachusetts, p. 345-368.
Skorupa, J.P., 1998, Selenium Poisoning of Fish and Wildlife in Nature: Lessons from Twelve Real-
World Examples in W. Frankenberger and R.A.Engberg, eds.. Environmental Chemistry of Selenium,
Marcel Dekker Inc., New York., p. 315-354.
(USDHHS) U.S. Department of Health and Human Services, 1996, lexicological profile for selenium:
Agency for Toxic Substances and Disease Registry, Public Health Service, US Department of Health
and Human Services, Atlanta, Georgia, 185 p.
(USEPA) U.S. Environmental Protection Agency, 1998, Report on the peer consultation workshop on
selenium aquatic toxicity and bioaccumulation: U.S. Environmental Protection Agency, Washington,
D.C., 59 p.; Appendices A-F.
(USFWS and NMFS) U.S. Fish and Wildlife Service and National Marine Fisheries Service, 1998 and
amended 2000, Biological opinion on USEPA's proposed rule for the promulgation of water quality
standard: establishment of numeric criteria for priority toxic pollutants for the state of California: U.S.
Fish and Wildlife Service and National Marine Fisheries Service, 260 p.
(USDOI) U.S. Department of the Interior (U.S. Fish and Wildlife Service, Bureau of Reclamation,
Geological Survey, Bureau of Indian Affairs), 1998, R.A. Engberg (ed), Guidelines for interpretation
of the biological effects of selected constituents in biota, water, and sediment: National Irrigation
Water Quality Program, U.S. Department of Interior, Bureau of Reclamation, Denver, Colorado, p,
139-184 (www.usbr.gov/niwqp/guidelines/index.htm).
MTM/VF Draft PEIS Public Comment Compendium
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ATTACHMENT 1, Summary of Background Information
Location &n4 C&&1 Pr&ducti&it
The study area of die DEIS ts located within the Appalachian Coalfield Kegion of the Appalachian
Plateau physiographic province and Bituminous Coal Basin (DEIS 1-5). The study area encompasses
gpprojtimately 12 million acres and extends over portions of West Virginia, Kentucky, Virginia, and
Tennessee. Surface coal mining production (million short tons) in the study area for 1998 was:
southern West Virginia's 48.6; eastern Kentucky's 49.6; Virginia, 8.5; and Tennessee, 1 .6 (DEIS III N-
3 SL 4). Ninety-five percent of the surface mining in southern West Virginia would be classified as
MTM/VF mining as covered under this DEIS (DEIS HI N-l). Estimated remaining years of surface
production in West Virginia is 49 and in Kentucky is 108.
Removal and I 'a I ley Fffls
For large scale mountaintop mining to occur and excess spoils to be generated two factors must be
coincident: 1) steep terrain and 2) sufficient coal reserves located close to the tops of mountains and
ridges (DEIS HI A-l), Removal of rock above and between coal seams results in waste material
(spoils) being placed in disposal sites adjacent to mining. Typical locations for excess spoil disposal
sites are valleys, known as heads~o£-hollows or headwater stream reaches (DEIS 1-1). The study area
covers the region where valley fills have been constructed or will be constructed in the future as a
result of coal mining activities.
Hydrologic conditions and geologic processes hi the DEIS study area are such that most of the
major rivers and tributaries east of the Mississippi River originate in die mountains of the Appalachian
regions (DEIS HI A-1&2). Some headwater streams are intermittent or ephemeral. Impounded water
and wetlands a!so provide aquatic habitat in the DEIS study area (DEIS III D-l).
Ecoregions in the study area are unique because they combine characteristically northern species
with their southern counterparts, and thus boast enormous richness and diversity (DEIS, 111 A-l).
Headwater stream populations have the greatest potential for natural selection processes that may
result in development of new species/subspecies.
The southern Appalachians have one of the richest salamander fauna in the world (IIIC-21). Many
species of birds, such as die Cerulean Warbler, Louisiana Waterthrush, and Acadia Flycatcher, depend
on large areas of relatively unbroken forest (93% forest cover, DEIS II C-62) and headwater stream
habitats (1I1C-22), The DEIS study area is unique and important in the evolution and speciation of
North American freshwater fishes (IV D-5). Fifty-six species offish are present in the DEIS
watersheds, with small headwater streams harboring populations with unique genetic diversity.
Impacts
A decline in water quality is predicted in areas of surface mining because of the exposure of coal
and overburden materials and increasing rates of oxidation of sulfur-bearing minerals such as pyrite
(DEES HI 0-6 & E-l). From historic data, streams classified as^/W had lower numbers of total
species and benthic species than un-mtned streams. Actions 5 and 6 (DEIS 11 C43) address evaluating
effects of mining operations on chemistry and biology and refining science-based protocols for
assessing ecological function, making permit decisions, and establishing mitigation requirements.
Cumulative Impacts
Landscape-scale cumulative impact studies indicate that watersheds subjected to mining drop In
rank, signaling a decrease in ecological health (DEIS Appendix I). However, several alternatives
restricting cumulative impacts to waters of the United States (e,g,, prohibiting fills in one out of every
two first order streams) were dismissed because limiting the loss of headwater streams to conserve the
10
health of the watershed ecosystem has not been proven (DEIS IJ D-6). According to the DEIS,
existing data do not show that an across-the-board cumulatsve-impact-threshold could replace case-
specific evaluations of all MTM/VF and other disturbances within a defined Cumulative Impact
Area/watershed.
The DEIS proposes an action to build a database to determine if a scientific basis for a cumitlative-
impacMhreshold can be identified in the ftrture (Action 12, DEIS IIC-69), Further associated actions
would involve developing an interageney, interdisciplinary approach for NEPA and Clean Water Act
aquatic cumulative impact assessments, including definition of the cumulative impact area for each
resource of significance.
Mitigation and Compensation
All alternatives require mitigation of unavoidable impacts to waters of tlie United States (DEIS IV
B-8). Mitigation would compensate for functions lost by filling headwater streams. These practices
include stream construction or enhancement, wetland construction, riparian habitat restoration or
enhancement (DEIS IV B-8). Cattail wetlands, for example, have been suggested to increase
productivity, water quality, and biodiversity (DEIS 1-14). Off-site compensatory projects may be
necessary because of limitations to functional replacements on reclaimed mine areas.
Mitigation areas often include fill sites and the drainages belowfill sites (toes of fills). ValJey fills
act as reservoirs and provide a reliable stream of water downstream due to inoreased base flow 'mjilletl
areas (DEIS I-14). lite net effect is ifeat stream segments that were once ephemeral and that supported
only sporadic benthic life before mining, now flow perennially and support benthic life throughout the
year. Topsoil substitution or replacement with re-vegetation is also a part of reclamation. The top ten
feet of oxidized subsoil is loosely dumped to promote rooting and tree productivity (DEIS page III J-
19).
Monitoring
The Interim Chemical/Biological Monitoring Protocol for Coal Mining Permit Application
(11/19/00), a guidance document, requires analyzing selenium to a detection limit of 0.6 ng Se/L as
part of chemistry monitoring during the assessment of baseline conditions. Biological monitoring
emphasizes quantitative surveys of organisms and physical habitat characterization.
MTM/VF Draft PEIS Public Comment Compendium
A-19
Section A - Federal Agencies
-------
-------
State or Commonwealth Agencies
MTM/VF Draft PEIS Public Comment Compendium A-20 Section A - State or Commonwealth Agencies
-------
-------
Betsy Child, Tennessee Department of Environment and Conservation
PHIL BRiPBSEN
STXTE OP TENNESSII
DEPARTMENT OF ENVIRONMENT AND CONSERVATION
NASHVILLE, TSWeSSffi 3724*0485 ,.-.
December 1, 2003
Mr. John Forren
U.S,EPA(3ES30)
1650 Arch. Street
Philadelphia, PA 19103
RE: ProgJainirSBip Draft Environmental hnrjaet Statement concerning
Mountaintop Mining / Valley Fills in Appatechia
Dear Mr. fatten; _
Please find enclosed the detailed comments from our technical staff to the Mountaintop
Mining Programmatic DEIS. Please consider these comments as the official and complete
response on behalf of the State of Tennessee.
I am writing to emphasize one point. All of the alternatives you are evaluating represent
different ways of managing the interface between the federa! Clean Water Act and the
Surface Mining Control and Reclamation Act. In Tennessee since we do not have a state
mining pragntt^ i$s' reljpoiJd to such issues guided by our stee Water QuaHty Coated
Act and die federal NPDES program. From this standpoint, it has been and will continue
to be the position of the Department that we do not allow disposal of spoil or fill material
from coal mining in streams as defined by our state regulations. This policy will remain
unaltered whether you choose the preferred alternative or go with one of the others being
evaluated. Thank you for this opportunity to comment.
Sincerely,
5-7-1
Betsy L. Child
BLGAML
Enclosures
t'fc f) 8
STATE OFTSWESSEE
DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Division of Wator Pollution Con&d.MininflSecSon
2700 MMdiabrook Pike
Kr.oxv-aie, Tennessee 37921
Tetephora; (865)594-5035
November24,2003
Mr. John Forren
U-S.EPAT(3BS30)
1650 Atch Street
Philadelphia, PA 19103
RE: Programmatic Draft Envrromriental Impact Statement concerning
Mountaintop Mining/Valley Fills in Appalachia
DearMr. Forrea:
The U.S. Office of Surface Mining issues and inspects Surface Mining Control and
Reclamation Act permits for coal mining in Tennessee, our Division of Water Pollution
Control -Mining Section is responsible for NPDES permits for discharge of bleated waste
water and inspection of those permitted facilities for coal and non-coal mining in Tennessee.
Since coal mining is considered a primary industry by (he U. S. Environmental Protection
Agency, their approval as well as OSM's Mining Permit issuance is necessary prior to
issuance of NPDES permits to coal facilities.
The oiily coal nime excess srxiil fills currently authorized for the discharge of waste water in
Teiuessee involve the placement of fill material in locations outside waters of the state. Only
when the dearly planned objective has been restoration of damaged streams have we
authorized the use of watere for fiUm'seoMment control. The nils outside waters of the state of
Tennessee have most often been referred to as "head-of-hollow" fills. Fills within waters, of
the state of Termessee are r»t currently allowed and will cot be allowed ill the future.
to Chapter 2, Alternatives, H. C. DETAILED ANALYSE OF THE ACTIONS TO
ADDRESS ISSUES, the EIS makes reference to in lieu fee arrangements for stream
mitigation activities. Such an arrangeuient has been discussed as a tool for mitigation of loss
ofwatersofthestate/U.S. as a result of federally funded highway projects. There is not an in
lieu fee agi-eonentwWch can be applied to mining projects in Teimessee.
The BIS also alludes to finalizaticn of regulations and coordination between agencies to
clarify buffer zone requirements. That clarification is sorely needed and only coordination
between the various agencies will accomplish it.
12-1-1
5-7-3
12-1-2
MTM/VF Draft PEIS Public Comment Compendium
A-21
Section A - State or Commonwealth Agencies
-------
Sincerely,
L
«
Paul Seteneierbach
Water Pollution Confrol, Knoxville Office
• Pages
STATE OF TENNESSEE
DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Division of Natural Heritage
14th Floor L&C Tower
401 Church Street
Nashville. Tennessee 37243-0447
Phone 615/532-0431 Fax 615/532-0231
August4,2003 ' :
Mr. John Forren
US.EPA(3ES30)
1650 Arch Street
Philadelphia, PA 19103
Dear Mr. Forren:
The Division of Natural Heritage, Tennessee Department of Environment and Conservation,
appreciates the opportunity to review and provide comment on Ae Mountaintop Mirung/Valley
Fffis ,in Appalacraa Draft Programmatic Environmental Impact Statement (DEIS). The DEIS
identifies a number of proposed actions to improve agency programs at the state and federal
levels, which aim to enhance environmental protection ana agency coordination during permit
reviews under SMCRA and CWA consistent with the primary goal of minimizing adverse
environmental impacts from mountaintop mining and excess spoil valley fills in Appalachia.
The Tennessee Division of Natural Heritage (DNH) has reviewed the information submits the
following comments for consideration.
With regard to the protection of rare, threatened, and endangered species, the DEIS described
programmatic changes, which would minimize adverse environmental impacts to federally listed
species, however, gave inadequate mention to state-listed species. One report cited in the DEIS
stated that, "surface coal mining and reclamation operations conducted in accordance with
properly implemented stats and Federal regulatory programs under SMCRA would not be likely
to jeopardize the continued existence of listed or proposed species" (!VD»5,6).
This is not necessarily absolute. One federally threatened land snail in Tennessee is limited to
fewer than 12 linear miles of the Cumberland Plateau escarpment in Franklin County. Were this
01 similarly restricted species subjected to MTM/VF, the continued existence or that species
could bejeopardized under permitted mining activities.
Additionally, the cumulative effects of MTM/VP could negatively impact other species of
concern, including state listed species. In fact, many of the state listed species from the DEIS
impact area are less common in Tennessee than some of the federally listed species.
Conservation of itese rare species will in part depend on whether they are $ven sufficient
consideration when planning for future MTM/VF locations. The DNH requests that the DEIS
give consideration to all state- listed plants and animals, regardless if such species are likely to
Become federally listed.
Among the CWA/SMCRA program improvements envisioned that could help minimize
incidental takes of state and federally listed species is the development of a comprehensive
baseline data collection, system (ES-4). The DNH supports any and all plans that would
emphasize rare species inventory and monitoring.
8-3-4
8-2-2
8-3-3
MTM/VF Draft PEIS Public Comment Compendium
A-22
Section A - State or Commonwealth Agencies
-------
Donald Dott, Kentucky State Nature Preserves Commission
Another programmatic change, which the DNH supports and is common throughout each of the
proposed alternatives, is tie development of state-of-the science BMP's for reclamation
techniques, revegetation species, and success measurement techniques for accomplishing post-
mining land uses iny_Qlvjng trees (ES-8, IVC-7). Regarding revegetation species, the DNH
advocates planting and restoring the affected area with native trees, shrubs, forbs and warm and
cool season grasses, which are compatible with hardwood reforestation. Rfive|etation of the area
with plants listed by the Tennessee Exotic Pest Plant Council as harmful exotic plants should be
prohibited. In the past, autumn olive, bicolor lespedeza, sericea lespedeza, fescue and other
plants listed by the TNEPPC as invasive have been used in mine reclamation throughout this
area. This has resulted in extensive degradation of native plant communities and wildlife habitat
throughout the region.
In addition to supporting programmatic changes that emphasize inventory, monitoring, and
conservation of rare species, the DNH also supports programmatic changes that would enhance
BSA, CWA and SMCRA compliance. However, emphasis on compliance was not stressed to the
document. The DNH feels that this is a critical part of the solution to minimizing adverse
environmental impacts resulting from MTM/VF and needs to be better addressed in the BIS.
Thank you for the opportunity to comment on this proposal and for considering Tennessee's rare
species throughout the planning of this DEIS. Should you have any questions, please do not
hesitate to contact me at (615) 532-0434.
C: Alan Leiserson^
DO&UD 8. Dorr, JR.
DIRECTOR
18-1-3
8-3-4
PAUL 1. P*rrON
GCVEBMOR
COMMONWEALTH OF KENTUCKY
KENTUCKY STATE NATURE PRESERVES COMMISSION
801 ScHENxa LANE
FIWNKIW," KENTUCKY 40801-1403
($02) 573-2886 VoiCf
£502) 573-2355 FAX
November 26,2003
Mr. John Forma, U.S. EPA (3EA30)
1650 An* Street
Philadelphia, PA 19103
Dear Mr. Fatten:
This letter serves as comment by the Kentucky State Nature Preserves Commission concerning
the Draft Environmental Impact Statement for the reduction of adverse environmental impacts of
mounutintop mining operations and excess spoil valley areas in Appatachia.
The Commission has ttoee major concerns with the environmental impacts resulting from this
method of coal mining extraction. Kist is the loss and fragmentation of a significant area of
relatively instate, upland forest communities. This impact has the most potential to directly
impact several endangered and threatened species including Indiana tat (Myotis fodalis - -
USFWS Endangered) and Cerulean warbler (Dendroica cerulea - USFWS Species of
Msnafement Concern). Second is the loss
-------
Herbert Harper, Tennessee Historical Commission
Robert Logan, Kentucky Natural Resources and Environmental
Protection Cabinet, Department for Environmental Protection
'D
3 S2BS3
TENNESSEE HISTORICAL COMMISSION
DEPARTMENT OF ENVIRONMENT AND CONSERVATION
2841 LEBANON ROAD
NASHVILLE, TN 37243-0442
(615)532-1550
June 20, 2003
Mr. John Forren
U.S. EPA (3EA30)
1650 Arch Street
Philadelphia, Pennsylvania 19103
RE: EPA, DRAFT PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT,
MINING/VALLEY FILLS IN APPALACHIA, UNINCORPORATED, MULTI COUNTY
Dear Mr. Forren:
At your request, our office has reviewed the above-referenced Draft Programmatic
Environmental Impact Statement in accordance with regulations codified at 36 CFR 800
(Federal Register, December 12, 2000, 77698-77739). We concur that the proposed
program has the potential to affect historic properties. In accordance with the
document, all Tennessee projects undertaken within the proposed program must be
submitted to our office for review and comment.
Questions and comments regarding project review may be addressed to Jennifer M.
Barnett, 615-741-1588, ext. 17.
Your cooperation is appreciated.
Sincerely,
10-2-1
Herbert L. Harper
Executive Director and
Deputy State Historic
Preservation Officer
HLH/jmb
SEP 1 5
HENRY C. LIST
SECRETARY
PAUL E. PATTON
COMMONWEALTH OF KENTUCKY
NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET
DEPARTMENT FOR ENVIRONMENTAL PROTECTION
ROBERT W. LOGAN
COMMISSIONER
FRANKFORT OFFICE PARK
14 REILLYRD
FRANKFORT KY 40601
September 9, 2003
John Forren
US EPA (3ES30)
1650 Arch St.
Philadelphia, PA 19103
Dear Mr. Forren:
The Kentucky Department for Environmental Protection would like to offer the following
comment concerning the Summary of Proposed Alternatives contained in your mountaintop
removal Environmental Impact Statement (EIS) document.
In your upcoming deliberations on how to modify current SMCRA and Clean Water Act
(CWA) permitting of stream loss due to coal mining waste disposal sites, please keep in mind
that normally the states have a role in the 404 permitting process under Section 401 of the CWA.
In. the case of Kentucky, state legislation passed in 1994 has limited the role of the state 401
program in regulating stream loss covered under Nationwide 404 permit #21.
While this agency did not request and does not agree with the language contained in KRS
224.16-070 (attached), we are compelled to abide by it. In order for Kentucky to resume its 401
involvement in the processing of nationwide 21 permits, KRS 224.16-070 must be changed. To
accomplish this, the Environmental Protection Agency (EPA) will need to incorporate this issue
into its programmatic discussions with the coal industry on possible changes to the existing 404
permitting process.
Sincerely,
RWL:mw
Attachment
5-7-1
Robert W. Logan
Commissioner
Printed on Recycled Paper
An Equal Opportunity Employer M/F/D
MTM/VF Draft PEIS Public Comment Compendium
A-24
Section A - State or Commonwealth Agencies
-------
. _"\'_li- ^-•'^±^ii[;/5i|j
224.1^070
Water
.,,,'gJi-L
for applicants eltgtote -for
(I) ThJs sections shall apply to the- cabinet's issuance, waiveart or denial of water
certifications for surface coal mining operations, as defined in KJU3 550,010, if;
(a) The applicant for the water quality certSficatioa has applied to the cabinet for a
permit in accordance with. KRS Chapter 350 and the administrative Teguladons promulgated
pursuant t&eieto;
(b) Xbe applicant fox the water quality csdificafiGa is eligible for Nationwide Permit
21 or 26 issued IB accordance with 33 XJ.S.C, 1344 and 33 C.FJL Part 330. Appendix A;
(c) The applicant's surface coal mining opcia&a Will not impact waters of the
ConuuQPwealtii designated by tfie cabinet ID its water -quality standards as outetajidhig slate or
national resource waters or au cold water aquatic habilat; and
(d) Toe applicant's surface coal mining operating will, oof tmpsci waters of Lhe
Commonwealth wbich are wetlands OBS (1) sere or 'more m ssze.
(2) If die watershed above tlis tye of ife |aitha$t -dywasiieaia penuaii&itt staiCsBra
authouze4 pmsuast to ISJaUoawids Penult 21 or 26 is Jess -than four hundred eighty (480) acres
for the surface coaJ mining operation meeting the criteria of subsection (1) of this section, the
cabinet sbsll issue a water quality certifeatfoa of miSgatioa area for every one (1) acre of pcrmaneal loss of waters of the
Commonwealth, on tlie permitted area, except for waters of tte Commonwealtb irolated as a '
result of dse pc-noaEcnt stxtictaro,
(c) For Caters of the DammonwealUi isolated as a result of a permanent structure,
fee maximum mitigation ratio shall bs fivs-tcadis (0,5) aore of oiitigation mss, for ever/ one (]}
acre of tkose isolated waters.
(d) Ths cablet shall accepc Hjitigstioai oa fhe permitted ai«a; mtftgafxoti off the •
penoittei? area, mitigation bacMug of waters of cite Commonwealth, or My comhination tecof.
ox any otter mitigation qaeasore acceptable to tiie cabinet.
(e) Upon comffletton of all mit^gatbja work iBqaired by the waisr qiialfiy ceatifkadon
sequlred liy chis subscuction, the surface coal raining opsratluD shall olXain a cerfiflcaiion from
a registered professional engineer that all aiitigation work bas beea coxcsplsCed In accordance wick
the omditions of the water quality certification. The surface coal ruining qpemtk«n sball
psQEQpEly submit the professioual engineer's certification to the cs^>inet. Hie cabinet shall
promptly javi.ew the caiftEcadon and provide1- to the surface coal mining operation written ood,ce
that all m|ti.gation work has besix successfully coERplet.ed:,' of thst fiiTthar mitigaiion -woii: is
necessary to trusef the conditions imposed by the water quality certificstitYn,
(4) The cabinet staa.ll EOI require a watear quality certilication for a ro;id cnsssing on
the permitted area irapacting less fbsn two huadred {200} linear feet of waters of the
CommotrweaJrh,
(5) The cabinet shall confer with Kjussentadves of the surface coal mlniBg industry
aad representatives of eoviixsntaeiital organizations with an interest in water quality in developing
a manual of approvable options for mitigatiaiion.perioitted Kreas, midtgadOKOJffi'i^isijt^d ai^as,
niiiigaiiaii involving banfcfjng of watets of tb& CoiKBioawcaitlXj ano removal of temp<33rar^
sediment stracta^s at s«r^.ce coal mining Qp&ratians ss a uatigati^n optioE.
(6)(a) Hxs cabiacE shall have tea (10) woiidag days to make a detfinnibatioa that an
appHcattom for a water pI3cadoB, the*, water quality cenifieation
stedl be deemed waived.
(7) Nothing in tills s^ctisa saaH be construed as abrogating th« cifyinGrs ability to
zeqpiro wat^1 quality ccrtificattoiiis for surface coal mining ope^tloiis tisat do not nwrt 'be
criteria of subsection {1} of this seciioE,
12
MTM/VF Draft PEIS Public Comment Compendium
A-25
Section A - State or Commonwealth Agencies
-------
Aubrey McKinney, Tennessee Wildlife Resources Agency
Michael Murphy, Virginia Department of Environmental Quality
TENNESSEE WILDLIFE RESOURCES AGENCY
ELLINGTON AGRICULTURAL CENTER "
P. O. BOX 40747
NASHVILLE, TENNESSEE 37204 REC'D SEP 0 2 2003
AUB22
August 18, 2003
U.S. Environmental Protection Agency
1650 Arch Street
Philadelphia, PA 19103
Re: Draft Environmental Impact Statement
Mountaintop Mining/Valley Fills
Appalachia
Dear EPA:
The Tennessee Wildlife Resources Agency provides the following comments and recommendations on
the programmatic DEIS.
• Placement of spoil material in waters of the state of Tennessee or in such a manner as to
adversely impact waters of the state is a violation of both the Tennessee Water Quality Control
Act and the Wildlife Code (Tennessee Code Annotated).
• Current requirements for buffer zones around streams are grossly inadequate for mountainous
terrain. The minimum riparian protection zone for coal mining should be 200 feet on either side
of Appalachian mountain streams.
• Remining and reclamation of abandoned mine lands should be required as mitigation for
all surface mining activity.
* Reclamation for surface mine impacts on Appalachian and Cumberland Mountain
hardwood forest must include compensatory mitigation and/or reforestation,
• This document does not further protection or conservation of aquatic resources and
exhibits near total disregard for the spirit, intent, and letter of federal water pollution law.
5-7-1
19-3-3
19-2-3
4-2
ADM:bg
COMMONWEALTH of VIRQIN1A
DEPARTMENT OF ENVIRONMENTAL QUALITY
Street address: 629 East Main Street, Richmond, Virginia 232! 9
W. Tayloe Murphy, Jr. Mailing address: P.O. Box 10009, Richmond, Virginia 23240
Secretary of Natural Resources Fax (804) 695-4500 TDD (504) 698-4021
www.dcq.state.va. us
December 24, 2003
Robert G. Burnley
Director
(804) 698-4000
1-800-592-3482
Mr. John Forren
U.S. Environmental Protection Agency
Mail Stop 3BA30
1650 Arch Street
Philadelphia, Pennsylvania 19103
RE: Draft Programmatic Environmental Impact Statement, Mouataintop Mining/
Valley Fills in Appalachia
DEQ-03-106F
Dear Mr. Forren:
The Commonwealth of Virginia has completed its review of the above-referenced
document The Department of Environmental Quality (DEQ) is responsible for
coordinating Virginia's review of federal environmental documents and responding to
appropriate federal officials on behalf of the Commonwealth. The following agencies
and localities joined in this review:
Department of Environmental Quality
Department of Game and Inland Fisheries
Department of Agriculture and Consumer Services
Department of Conservation and Recreation
Department of Health
Marine Resources Commission
Department of Mines, Minerals, and Energy
Buchanan County
Lee County
Wise County.
In addition, the following agencies, planning district commissions, and localities were
invited to comment:
Department of Historic Resources
Department of Forestry
The State of Tennessee
AN EQUAL OPPORTUNITY EMPLOYER
MTM/VF Draft PEIS Public Comment Compendium
A-26
Section A - State or Commonwealth Agencies
-------
Mr. John Fft
Mi. John Forren
Page 3
Leuowisco Piaitsiiug District Commission
Cttmber1ac-d Plateau Planning District Commission
g •whether an Environmental Assessment or an Envirotunenlal Impacl
Coyaty
TazewdJ Qmtt
The EnvuTQameat'ai Protection Agency, the Army Corps of Eogb^rs* and two
agencies of the T^parttnemi of the Hcierior [Fish asd Wildlife Service antl Gfike of
Surface MmJHg} joined with the West Virginia Depanment of Environmental Protection
to consider new or revised prop-am guidance, policies, aa.d regaiiatioas to niinimiKe
adverse environmental effects of raoiintsituop uilniisg and valley filJ {hereinafter
"ivnTMTVF*) operations within the Appalachian study areas to West Virginia, Virginia,
Keniucky, £ffid Tennfissea, (In Virginia, (Jsese include the six counties listed above.)
As stated in the Draft Prograromajic Euviroaimemtsl Impael, Stalemettt (benanatler
'"Draft EIS"), the removal of overbtsKlissi (rock above coal searas) stic! iaterburdEn ('rock
between coal scams) during moiaitaintep surface raining results in excess spoil, because
thai rock will not St back into the Mining pit. Ths excess spoil is placed in disposal siltei.
Typical locations for thsse arc valleys, also known as heads-of-hollows or upperaoost
^headwater) stream reaches. The spoil is pleoaJ in en^neerrf «stnh sad tock strucsyres
know^ as excess spoil disposal areas, or valley fills (page 1-1 ),
According Us the Draft EIS^ &e sturfy a^ea was dsossfi because it includes
beds where csc«ss spoil fills, otherwise kmwn as valley fills, have beetj
ctol or are likely to be constructed ia the nitme (page l-5t seclion B),
Draf^ EIS describes afld aoal^zes a no*action allemmtiv^ whi.cb is
msJTtt^isnce of the present regulatory1 programs aod processes, and Ehre£ action
dlteuauves. HIK summary pages present these alternatives in sorae d
follow (p3ge& ES-5
Action dhgrmafivg /: Imtial detenrmiation by ths Anay Ccips of EngineerSj through
the individual permit process pursuant to gecitoa 404 of the federal Cl«^3 Water Act,
of the size, number, and location of valley SJis in wafers of the United States and
ralisuce on the Coips by tfe Office of Surface Mining (DepsrnnerU of the Inferior}
ajid other regsilatory agencies; reliance in the otter direciioa in the case t>f individual
parraits; Corps as lead agency for Endangered Species ACE consul taliofl; other
regulatory programs dsfcr to Corps on Section 404 approval. In d.t5s aUetnarive, ibc
Coips. would aceoraplish appropriate National Enviitminmtal Policy Ac4 analysis,
Stetement i
Jcnow Alternative 3 fprgfetrgd aliefnadvg}: CooperaSive detJssnEiRation of size.,
number, and lacalionof valley fills allowed in waiers of itee United Stales; Oftl-ceof
Ssufaee Mining rules would make Eba stnsani buffer ssotse more coHsisteut with the
Ocan Wsief Ac! and Surface Mining Control and ReciarnaEtan Act; excess spoil riles
would b& rnodiSed so pro\^dc ibr tninjmjzaticin srwi allemati'Ves analj'Sis, ssoiilsr to
&e Stedoti 404(bXH Gaidslin^, Toe Corps would make decisions on nationwide
versus individual permits, and accomplish NUPA remw of individual permits, With
res^arct to Nationwide No. 2 3 p&nxfts* Hie surf&ee mining agctKy (in Virginia's case,
the Dep&rtmem of Mines, Ivlniemls, and En&gy) would lake the S&sd on EiitiiJig'eriyj
Species Ad eoordinatios. As with Ahenjaiive 1, Use Corps would accomplish
appropriate National Eirvirdanicsntal Policy Act analysis* d^temjEiing whsllicr an
EiivitomEcastai Assessment or an EnvirGnmenJa! Impacl Statement is required.,
Action Atuzmative. 3: The Conps would begin proc<^sing mountainiop mining and
valley fills ss Nalioitwide Mo. 21 permits &nd few projects would require individual
peimils. The surfitce mining agency would take the primary raie of joint applicalion
review. The Corps would base its Clean Water Acl aylhortsatiosis largely oa (Be
surface mining review, adding off-site gsitigaliori, Ftsderal agigicics (the QiBce of
Swrfsce Midiag Reclamation aod Enforcemoiit) asd state agencies wiJli fcgulaiory
ainJusriJy would develop guidance for consistent dea^ojtions, refina ihe uniform
protocols for assessing ecological function and making persiiti decisidns, and
undertake oiJier activilies related to QIC regulation of mroMaintop surface niini&g,
etieral.Cj&maieMs_oa .the Drafl.EIS
Aecordiiig; to the Department of Mines, Minerals, afid Etiergj1 (DMMEX the Dralt
EIS presents iiiibtmatiiDaj ssnd is bss«4 ots analysis, n-ot equally applicable or relevant to
tiits sUtfcs affected by the proposed or atlematrv>e regu,l.a(sry p'rogram. Speci.fical!y, me
Draft MB recoranisads a fedenil mandate, binding on Virginia that siems from •cxttditions
aad a kgal agraemest in West Virginia (Bran; BIS, pages Jt-$ and 1-9), lite Draft EIS
should noE assume that the processes agreed to with West Virginia are also necessary in
oUjer stales, OT that Vlrgioia, at least, woiiJd follow thcjn ^enclosed DMME commons,
page 4).
Similarly* the Draft EIS makes assertions that do not take Virginia co0.dittons into
account. For example, it dismisses wetlands created by mintng as non-jurisdiclionaJ
{Braft EIS,, page ES-4), overlooking the fact that in Virginia, isolated wetlands arc
.regulated and protected under slate law ( Virginia Code sK-tion 62. 1 -44. 1 5:5) unless they
ars detenfliDisd to bti small and of limiied feGsjlogical value, DMME stales that for this
1-6
5-3-4
MTM/VF Draft PEIS Public Comment Compendium
A-27
Section A - State or Commonwealth Agencies
-------
Mr. John Fonen
Page 4
Mr. John Forren
Pages
reason, any conclusions based on the assumption that such wetlands are not regulated
would be unfounded (DMME comments, page 1). The Draft EIS also refers to a number
of stream studies in assessing environmental consequences of the proposed program
(Chapter IV); however, none of these studies took place in Virginia, and the resulting
findings may not apply here (DMME comments, pages 9-10).
DMME's overall conclusion is mat the Draft EIS process should be stopped in
favor of selecting a ''true no-action alternative" that leaves the existing regulatory
program in place (DMME comments, page 1). If the EIS process is not stopped, then
Alternative 3 should be adopted. DMME disagrees with some of the information
presented in the Draft EIS. Detailed comments from DMME are enclosed. (See also
"Environmental Impacts and Mitigation," items 2 and 5, below.)
Environmental Impacts and Mitigation
/. Natural Heritage Resources, The Virginia Department of Conservation and
Recreation (DCR) functions to preserve and protect the Commonwealth's environment
and advocate the wise use of its scenic, cultural, recreational, and natural heritage
resources. ''Natural heritage resources" are defined as the habitat of rare, threatened, or
endangered plant and animal species, unique or exemplary natural communities,
significant geologic formations, and similar features of scientific interest.
The southern Appalachian mountains were identified, by the Nature Conservancy
in 2000, as one of the six biodiversity hot spots for species rarity and richness in the
United States. This designation was generally based on me rich freshwater fauna
(especially fish and mussels) found in this area, which are dependent on the region's
rivers and streams (Stein, et al, 2000). The Upper Tennessee River drainage in Virginia,
including the Clinch, Holsten, and Powell Rivers, supports a very diverse assemblage of
fish and mussels, including many species that are globally rare and critically imperiled.
Mining operations in a significant portion of the Appalachian coalfields of extreme
southwestern Virginia are conducted in and near the uppermost (headwater) stream
reaches of the Tennessee River drainage. DCR states that the placement of excess spoil
from mining operations in valleys, or head-of-hollows, in these watersheds, could
potentially impact downstream fish and mussel populations (as well as other aquatic
organisms.)
While DCR expresses concern for the aquatic resources downstream of the
mining operation, DCR also recognizes the benefits associated with reclamation activities
associated with abandoned mined lands and reconnection of cut-off headwater streams to
their lower reaches. DMME reports that 70-80% of areas currently being mined in
Virginia are previously mined lands (DMME comments, pg. 12.)
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1-4
8-2-2
The Department of Conservation and Recreation's Biotics Data System
documents that a number of listed endangered and threatened species can be found in the
proposed mountaintop mining area. Specifically, according to the listings and
abbreviations provided by DCR (enclosed), there are nine (9) species listed as
endangered by the federal government and sixteen (16) species listed as endangered by
Hie state government.
The Virginia Department of Agriculture and Consumer Services, which has
jurisdiction over state-listed endangered or threatened plant and insect species,
acknowledges that the Department of Mines, Minerals and Energy, the regulatory
authority in Virginia under the Surface Mining Control and Reclamation Act, will
continue to consult with the Fish and "Wildlife Service and appropriate state agencies
regarding federally- and state-listed endangered and threatened species.
2. Wetlands and Water Quality. DEQ's Water Division agrees that federal and
state regulations, policies, and guidance relative to MTM/VF activities should be
consistently and fairly applied. The preferred alternative identifies an interim impact
threshold of 250 acres. DEQ's Water Division recommends establishment of some
reasonable threshold limit for valley fills (such as a certain linear footage of stream
impacts) that is protective of me environment by reducing impacts to surface waters from
mining activities. Because many valley fill activities occur in headwaters of first-order
streams, the activities may have far-reaching implications for downstream water quality.
DEQ's Water Division indicates that appropriate technical studies should continue to be
conducted before the authorization of any valley fill. These studies should include such
• fish assemblages present
• benthic macro-invertebrates
• threatened and endangered species, particularly freshwater mussels (see item
1, above)
• stream geomorphology.
The results of technical studies should be used as a baseline to enable avoidance or
miniinization of impacts to the aquatic community (as required by Section 404(b)(l) of
the Clean Water Act as well as by state law), and to determine the appropriate
compensation for unavoidable impacts.
Unavoidable water quality impacts from valley fills will require a Virginia Water
Protection Permit from DEQ, and may require a Virginia Pollutant Discharge Elimination
System (VPDES) permit for construction. Point source discharges, if any, may require a
VPDES discharge permit See "Regulatory and Coordination Needs," item 1, below.
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MTM/VF Draft PEIS Public Comment Compendium
A-28
Section A - State or Commonwealth Agencies
-------
Mr. JohnForren
Page 6
Mr. John Forren
Page?
DEQ's Water Division states that, based upon information provided in the
wetland technical report, wetland impacts associated with valley fill activities will be
minimal, because wetlands are not found in significant abundance in steep-slope terrain.
Most wetlands occurring in these areas are associated with, riparian buffers along streams,
streams, and some plateau areas. Accordingly, the most significant impacts on aquatic
resources from MTM/VF activities will be loss of stream habitat and riparian areas.
Besides direct loss of stream habitat, secondary impacts should be evaluated prior
to authorization of valley fills. Technical studies to assess potential secondary impacts
should include:
• observable and measurable changes to the downstream geomorphology of the
stream;
• degradation of downstream habitat from sediment transport;
• flow rates; and
• changes in water chemistry, including:
temperature
pH
dissolved oxygen
conductivity
total dissolved solids
alkalinity
calcium hardness
ammonia
nitrate
phosphate.
Compensation for unavoidable impacts should also take secondary impacts into account.
According to the Department of Mines, Minerals, and Energy (DMME), the EIS
concludes that wetlands created "by mining are not generally of high quality, and non-
jurisdictional from the standpoint of Section 404 regulation under the Clean Water Act
(Draft EIS., page ES-4). Also, streams mentioned by name in the EIS do not include any
in Virginia, so conclusions relative to Virginia streams may not be valid (DMME
comments, page 9). The same is true, according to DMME, for a number of studies
described in the EIS (Appendix D), including those on wetland resources on steep slopes
in West Virginia, headwater stream values, a benthic survey in Kentucky, and an
ecological assessment in West Virginia (DMME comments, page 10). On the other hand,
as the DCR indicates, a Virginia study did show negative impacts to the benthic
community, consistent with the Kentucky results (enclosed DCR comments, dated
December 23,2003, page 2, item 4).
5-3-5
3. Water Supply. According to the Virginia Department of Health's Office of
Drinking Water, there are a limited number of water intakes that would be affected by
MTM/VF activities. Known intakes include Pennington Gap, St. Paul, Wise County
Public Service Authority, and possibly Richlands. Other water treatment plant sources
are small mountaintop reservoirs, or larger reservoirs like Pound Lake or Flannagan
Reservoir.
The Department of Health's Office of Drinking Water should be given
opportunity to comment on applications for any VPDES permits for valley fills, so as to
review them for water supply impacts.
In addition, MTM/VF activities proposed in a watershed within 5 miles of a water
supply intake should be announced to the Office of Drinking Water and to the
waterworks owner. The Office of Drinking Water assumes that runoff ponds and silt
fences will be required to contain runoff in order to protect stream water quality.
4. Wildlife Resources Management. Under Virginia Code Title 29.1, the
Department of Game and Inland Fisheries (DGIF) is the primary wildlife and freshwater
fish management agency in the Commonwealth. DGIF has full law enforcement and
regulatory jurisdiction over all wildlife resources, inclusive of state and federally
endangered or threatened species, but excluding listed insects. The agency maintains a
comprehensive system of databases of wildlife resources that is available through the
Agency's site at www.dgif.state.va.us, in the ''Wildlife" section from the link to "Wildlife
Information Online." DGIF determines likely impacts on fish, and wildlife resources and
habitats, and recommends appropriate measures to avoid, reduce, or compensate for those
impacts. For more information on the Wildlife Information Online Service, the
proponents may contact DGIF (Kathy Quindlen Graham, telephone (804) 367-9717).
The Department of Game and Inland Fisheries is concerned primarily with
potential impacts to endangered and threatened species, trout waters, and other terrestrial
and aquatic resources. The existing programs provide for trie Department's review of,
and comments on, mountaintop mining and valley fills. Provided that tin's coordination
continues, the Department of Game and Inland Fisheries concurs with the
recommendation by the Department of Mines, Minerals, and Energy that the EIS process
be abandoned (see next item).
5. Stale-level Management Concerns.
(a) Department of Mines, Minerals, and Energy. The Department of Mines,
Minerals, and Energy (DMME) and the Department of Game and jfoland Fisheries prefer
the current management system of existing programs administered by DMME, the Army
Corps of Engineers, and the Environmental Protection Agency. DMME opposes the
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6-2-2
1-12
MTM/VF Draft PEIS Public Comment Compendium
A-29
Section A - State or Commonwealth Agencies
-------
Mr. John Forren
Mr. John Forren
preferred alternative, recommending instead that the EIS process be ended (see the
enclosed DMME comments, page 1).
As mentioned above (see "General Comments..."), DMME indicates that the
Draft EIS is predicated on conditions in the coal fields of West Virginia, and that some of
its recommendations on the future of the regulatory program are based on a settlement
agreement with West Virginia. These conditions differ in Virginia and other states, and
the agreement with West Virginia may not be relevant to or needed in Virginia or other
states (DMME comments, page 4).
(b) DEQ 's Southwest Regional Office. DEQ's Southwest Regiorial Office
indicated that the Norfolk District of the Army Corps of Engineers ("Corps") regulates
coal mining activities mainly through the Nationwide Permit No. 21 (NWP-21) for
Surface Coal Mining. DEQ does not issue separate Virginia Water Protection Permits for
coal mining activities tnat qualify for the NWP-21. Projects that exceed the NWP-21
threshold are permitted under the DMME's NPDES permit program using guidelines
established in the Virginia Water Protection Program.
DEQ's Southwest Regional Office recommends several approaches that might
contribute to more effective review of coal mining activities. These include the
following.
• Incorporate requirements for minimization of impacts and alternatives analysis for
excess spoil disposal into Surface Mining Control and Reclamation Act (SMCRA)
permit authorization. Such rule-making would be more consistent with Clean Water
Act section 404(b)(l) guidelines and allow agencies to work together instead of
trying., sometimes at cross-purposes, to fulfill guidelines separately.
• Develop of advanced identification of disposal sites (ADID) and watersheds
unsuitable for fill could encourage alternative valley fill solutions from the beginning
of the project. The ADID designation would give permittees a better idea of the
viability of a project before their resources are committed.
• Continue rule-making relative to the stream buffer zone rule and excess spoil
disposal.
6. Local Comments. Buchanan, Lee, and Wise Counties indicated no comments
on the document, and Wise County indicated no objection to the preferred alternative. As
indicated above, Russell, Scott, and Tazewell Counties were invited to comment
1-12
12-1-5
Regulatory and Coordination Needs
1. Water Quality Regulation. As mentioned above, valley fill activities may
require a Virginia Water Protection Permit and a VPDES permit for construction. The
Virginia Water Permit program is administered by DEQ's Southwest Regional Office.
VPDES (NPDES) permits for coal mining operations are administered by DMME. As
indicated above, Virginia Water Protection Permits are not issued for coal mining
activities that qualify for the Nationwide Permit No. 21, which is issued by the Army
Corps of Engineers. For information on DMME's NPDES permit program, the
Department of Mines, Minerals, and Energy (Steve Walz, telephone (804) 692-3211)
may be contacted. Questions on other water permits may be addressed to DEQ's Water
Division (Ellen Gilinsky, telephone (S04) 698-4375) or DEQ's Southwest Regional
Office (Allen Newman, telephone ((276) 676-4804).
2. Subaqueous Bed Encroachment. Trie Virginia Marine Resources Commission
has permit jurisdiction over any encroachments in, on, or over the beds of the rivers,
streams, and creeks that are the property of the Commonwealth, pursuant to Virginia
Code section 28.2-1200 etseq. Accordingly, if any portion of MTM/VF activities
involves any encroachments channelward of ordinary high water along natural rivers and
streams, a permit may be required from the Commission. Questions on this requirement
maybe addressed to the Commission (Randy Owen, telephone (757) 247-2200).
3. Water Supply. As mentioned above ("Environmental Impacts and Mitigation,"
item 3), the Virginia Department of Health's Office of Drinking Water (Alan Weber,
telephone (804) 371-2883) should be given opportunity to comment on (1) any MTM/VF
activities that are proposed within 5 miles of a water supply intake and (2) any
applications for VPDES permits ibr valley fills.
Review Process
We are grateful for the extension of the comment deadline from August 29,2003
to January 4,2004. The added time enabled Virginia agencies to have an extended
discussion of the regulatory program and exchange views regarding the proposed changes
therein. The Department of Mines, Minerals, and Energy provided extensive comments,
which are enclosed.
12-1-5
3-5
MTM/VF Draft PEIS Public Comment Compendium
A-30
Section A - State or Commonwealth Agencies
-------
Mr. John Fcsrren
Page 10
Thasik yo'u for ihe opposttrniiy to review the Draft E.1S, The detailed eammsats of
the reviewing ageodss ara enclosed.
W. Tayloi: Murphy. Jr
Sincerely,
Michael P, Murphy* DrrecSflr
Division of Envuoaraeatil Eahanconsat
Enclosures
fi: Dfiual Jonte, DCR
Keith R, Tignor, DACS
Alan D. Weher, VDH
EBen Gilmsty, DEQ-Water
Aian I. Newman, DEtJ-SWRO
RandaD Owen, _>.CRC
Brian D, Maya. DGIF
Ethel R- Eaten, DHR
Steven Wste, DMME
Gerald P, Wilkes, DMME
J, Michael Foreman, DOF
Andrew Chafin, Cnmberland Plateau PDC
Ronald C. FSraary, Lraowisso PDC
W. J. CandiO, Jr., Buchanan County
D. DOTS FoeT Lee Couoty
Edwsrd L, Sealover, Wise Cooniy
James Gillsspie, Russell CooQEy
John StniEnsr, Scott County
James Spencer, TazeweU Connty
Kansn L. Msyne, USFWS
J. Robert Hunts, ACOE
Ellie L. Irons, DEQ-OEIR
COMMONWEALTH of VIRQINIA
OIFARTMEST Or CONSERVATION AND RECREATION
Date;
To;
From:
Subject
MEMORANDUM
J3De«niber2003
dories H. Ellis, HI, Viiginig
nEal Quality
Derm! Joan, Plaajoiag Bmnssu Manager
DEQ203-1QGF: Moratain Top Mining/Valley Fills in Appmlaehia
The Departcceat of OsoservstjoH sad Rscieaofln (DCR) functions to jjresarve and prated ttw
etmromtseiit of da; Conimoiiw^ik of Virginia and advccate the wke use of is scenic, cultural,
recreation and osteal heritage rasjnin^s, Naasal bofege ce^wises are defined as fee habitat of
j or eikbai^sed plant aa4 antgtai specses, state Buiqne or ftxemplary naaaal
^'c formations and similar features of sdentsfe W&KK&,
Tte soifihera Appalachians were identified as one of &e six bi&divereity hot ^30£s for species
tarity and ncimess in ifae Umtccf Slates m 2000 by The NaUae GonservaiKy and NatarcSecve,
TWs desigjjation was generally based MI the rich freshwater fewaa (espeddly Ms and mussels)
found in ibis aiei, which is dep«Kiect on ^e region's fivers md sJre^ass (Stein ct al^ 2000), The
Upper Teoncssee River drainage m ^TsTgimB, including the Okeh, Rblstoo^ and Powell rivers,
supports a very diverse assemblage of fish, aad mussels, indudiag many species that are ej-ofeally
tare and critically imperiled Muring tytaaSans m a s^nlflcanc porc'cm of Hie AjspslachiaQ
c&alfidds of ejftrenw soothw^tem Virgmia are conducted in and liear the uppermost
(headwaterj stream reaches of the Tennessa; River diainage. The placement af excess spoil
&om mining operations m valleys, or head-o&hQDows, in ihesE watersheds, ccndd potenlially
S fish and raussei populations (as well as asfees aquatic cff^nisms),
In reference to she JDepaitmeoE of Muies, Minerals and Eaetgy cemmettis oa Mo
Miniag^Vaflcy Fills in Appdachia Draft Pfogrmmamttc Eswramenial impact Staaaneat,, DCR
vvouJd like to provide fire following comments:
1) On page 5a Chapter IDLB -topsct Ptodaciag Factors to Headwater Streams from
Mouetaxatop Mining, DMME sta.Kd that drainiSge structures assocssted WIQJ miniag can
provide base! K that cEMild ofifeet aqoaiic impacts. The study enii
Evaluatfoti of Hollow Fill Drainages in Low Order Streams in t
?-2-5
6-6-4
rcinjj Virginia 'x Nalttrall an
MTM/VF Draft PEIS Public Comment Compendium
A-31
Section A - State or Commonwealth Agencies
-------
Mountains of Virginia and West Virginia by Timothy Merricks concluded that settling
ponds would enhance collector filtcTcr populations. The study by Timothy Merricks,
although it may be scientifically sound, should not be regarded as me definitive study OB
the impacts of hollow fill mining in Virginia. Rather, it i« the first of many needed
studies on this topic. Merricks* study was of short duration (2 yon), limited geographic
scope (only a few of Ms study sites were actually in Virginia; others were in West
Virginia), aad confined to Swapper readies of each watershed. It did not address issues
such as Ox !ong*tena impacts of hollow fin mming, catastrophic events, potential
impacts to square biota farmer downstream in the watershed, or evaluate a. diveise array
of study site conditions.
2) On page 6, Chapter UI. F-Appalachian Forest Communities DMME states that 85 % of
reclaimed miaed Ja&ds in &e study area are returned to Ihrests ®sd most are reamed to
die approximate original contour including re-establishing drainage patterns. DC'R
reco^izes the b^ie^ of refbrestsfioii activities on abandoned mined IHIH& associaied
wife the laotaitaistop miaing process. Aocordtag to DCR staff, the Crests may be
restored, however tfee fiarest ^pe and cover wiH be different due to Usiited soils and
forest age difference.
3) On page 9, in reference to page IV.B-I section tided Consequences Common to tiie No
Action Alteiialives and Altetnatives 1,2, and 3. DMME stated these alternatives as well
as the ao action alternative should take into account the headwaters steams are replaced
with divereion ditches and drainage systeras in aud around filli. According to Dr, {table,
fliese ateed systems are very unlikely to support the sane biological communities ss
undisturbed headwater streams. Hiis was also stated by Dr. Bruce Wallace, University of
Georgia, at the Headwater Stzeams Symposium (Mou&saintop MffiingWaHey Fills is
Appalacbia-Bralt Pm^anoatatic Bnviroonseittal Intact Statemeol CD). DCR recognizes
die benefit associated with reclamation activities associated with abandoned fniaed lands
and reconoection of cut-off headwater streams,
4) On page 16, DMME stated &0 Kenrodty Moimtsintop inining ben&Jc maroinvertebrate
survey has limited usefulness because it is specific to fiw counties sad limited duration
of the study. DMME also stated the conclusion from the Kentucky study that
moustaii^} mining and vaQey fill eegativdy impacted benthic health did not match &e
Virginia study (Ecotoxicotagical Evaluation of Hollow fill Drainages in Low Order
Streams in the Appalachian Mountains of Virpaia and West Virginia). However,
according to Dr. Steve Roble the survey sites listed below in the VA study and overall
survey results did show a negative impact to the benthic community.
A. A MiAlle Creek, VA site associated M.ith a recent hollow fill had reduced total
spedssrichnsss, reduced EPT richness and tower %EPT in 1 of 2 yeara at a
recmt hollow fill. HoBow fill sites io this drainige that lacked holding or
settling ponds bad reduced clam growth rates.
B. South Fork of Pound River (SI-TR) and Powell River sites with holloiv fills
tad decreased benthic macro invertebrate richneK vs. reference sites
6-6-4
C. Overall elevated metal (Al,Ca)lcvcJs in hollow fill drainages, especially m
a
B.
Some JajBow ffll streams were acutely trade to test organisms
HoBow fill drainages warn ebamttereBti by a mam tolerant biotie K
flower total specira richness, lower EPT richness, lower %EPT and elevated
Chironomidas populations) than reference streams or sites below settling
ponds.
6-4-4
7-5-4
6-6-4
6-4-4
MTIVIA/F Draft PEIS Public Comment Compendium
A-32
Section A - State or Commonwealth Agencies
-------
Ellla.a»artes
From:
Sent:
To:
Cci
Subject:
Hene Hypes [s*tiypes@dcr.$tatatva.usj
Thursday, December 18, 200S 8:40 PM
ESia,Chants
J. Chris ludwtg; StSVB Rotate; Synihia Waymack; Thomas Smith
Natural Heritage Resources List -Mountahtop Mining
Aqua'jcMaturoJKarilsoeReafiurcesvcllt-.lnlhoProposQd Study Aiea for Mounlamlop Mining
EM nupistxi I seres »*i«list or«» wural teWHee raaowns (or »• proooMd n»«a*n»|i«**9a>i»l»iaia.li«»»«>«Dupro[,xSar^?tor«.,lo!mok.iTOllya
-------
Aquatic Natural Herttapj Resources witilin 1f» Proposed Study «roa fcr MounteMop Mining
PfyQfroEmaeiujs stjbte&am
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MTMA/F Draft PEIS Public Comment Compendium
A-34
Section A - State or Commonwealth Agencies
-------
btowMsc. Used on N.Kr.l Bdtee Rtsmrc.- Li«»
of*.
Ibrexteiwd or
Department afAgricatam! aw! Coumnner SCTVIBCS Plant Protection Bsresu fir STATE listed ptoi *Bd iiis
pepBtoi««lofai»M«ijdl«B>idfi*Kl««6>r.lI«(wSTAt5Sli>Wmli»l« ^^
MTM/VF Draft PEIS Public Comment Compendium
A-35
Sectton A - State or Commonwealth Agencies
-------
RECEIVED
JUL 1 0 2083
OBMlBNil
COMMONWEALTH o/ VIRGINIA
DEPARTMENT OF ENVIRONMENTAL QUALITY
SlnflAMwmi 355 DextaoreSnwt, AWnsta, Vilgnim MllO
fitting JfMrm f.O. Bat IlSSS, AbtaSte, Vlpgiak 24ZI2-JSI!
RotatO. BmOcy
Dtttctor
Secretary of Natural R*s6iS«s
July 7,2003
Mr. Charles H. Ellis ill
Department of Environmental Quality
OtJIce of EfiviKHrmenta! Impact Review
629 East Main Street, Sixth Floor
Richmond, VA 23219
Re: EPA Mountaintop Mining/Valley Fills in Apfislaehia Environmental Inrpact Review
Dear Mr. EUis:
The Department of Environmental Quality (DEQ) Southwest Regional Office received the
subject CD on Jane 17,2003. The Southwest Regional Office is responsible fa implementing
regulatory air, water and waste programs in thirteen of Virginia's southwestern most counties.
Of these thirteen counties, Lee, Wise, Buchanan, Dickenson, Tazewell and portions of Scott aad
Russell Counties are located in the Virginia portion of Appalaehia where coal mining takes
place.
The Norfolk District of Corps of Engineers, regulates coal wtatng activities mainly through the
Nationwide Permit Number 21 (NWP 21) for Surface Coal Mining. Virginia DEQ does not
issue separate Virginia Water Protection Permits for coal mining activities tfat quality for the
NWP 21. By mutual agreement, projects t&at exceed thresholds !br NWP 21, arepemritted
ander the Department ofMiaes, Minerals and Esergy NPDBS permit piogr&n using guidelines
established in the Virginia Water protection Program. This EBl discusses some issues that these
programs work through with each Coal Permit application. With this background in mind, we
would like to offer fc following comments.
Table H.B-2 Distinctions Among MHM/VF BB Alternatives, highlights the difterent focus of
each of the permit programs and points to the changes that should be implemented so that a more
straight forward review can be accomplished by all parties. For instance, SMCRA permit
authorization should incorporate requirements for minimization and aftematives analysis for
excess spoil disposal. Rule-making that is more consistent with the Clean Water Act Section
404(b)(l) guidelines would allow agencies to wo* together instead of trying to fulfill guidelines
at cross-purposes. Development of advanced identification of disposal sites (ADID), watersheds
12-1-5
12-1-4
generally imsuitable for fill, could encourage alternative valley fill solutions iioiatlie beginnirig
oftlisprojtct Designalion of ADID sites would give the permittee a better idea of the viability
ofaproject before resources are committed. Another action is to continue mlemaking relative to
the stream buffer zons nils and excess spoil disposal.
Oilier actions proposed fay the alternatives arc consistent with Virginta and Norfolk District
Corps of Engineers discussions on how to protect the environment. Develop guidance policies
12-1-4
mitigation methods. DeveJop guidelines jdcntifying state of the science BMPs for sslocting
appropriate gcowtfr med^t, redaination techniques, rerogetatiori spei
measiu-emeiittechniqlies for post mining land uses involving trees.
In Chapter ID, page 18 of22, mitigation rec
r those of Virginia programs.
That is, "replacemeEt of a mined for filled stream by restoration or creation of a similar type of
stream would be more in keeping with
-------
X£ you cannot meat the deadlins, pleasa notify CBJSO.H8 ELLIS at
804/S9&-*-448S prior to the date $iv*n. fcrraspeaeats will bet mad®
to axtsnd tlie date £or ytytitt areview i£ pos0ible» iha ageticy vill
not &a cotiaideK» DATKB.
Please return your cofnmenta to:
MK.CHAELES X. ELLIS XXI
DEPARTMENT QS EHVTRONKENTAL QUALITY
OFFICE OF SNVIROKMEJCTAL IMPACT REVIEW
$29 EAST HAIN ySSSO!, SIZES FLOOR
RICHKOND, VA 2321$
PAX #804/598-4319
fox your
IXMcMJJST BE
A. Please review the document carefully. If the proposal has
been reviewed earlier (i.e. if the doeur.iene is a federal
Final VIS or a state suppleraant) , pleas* consider whether
your earlier coramants have been adequately addressed.
B. Prepare your agency's comcenta is a form which would be
acceptable for responding directly to a project proponent
agency.
C. ttse your agency stationary or the
coramer-ts. IF xon C3E 3X8 SPACE ~
SIGHED ABB t*.TED.
Please return your commanta to:
a below for your
, TH3 FORM HCTST BE
ME.CHAKLSS.K. IttLIS III
DEPASTHBOT OP KHVIEONaESJIAI.
OK9XCS OF BHTXRCiHSSH^
S29 EAST MAIN STREET, SIZTE FLOOR
EICJHKOKD, VA 2321S
XKSE S804/698-431B
.RECEIVED
- ?AU6 I 8 2803
BKVIKOHMEHTAL PROGKAM PIANNEK
Statements ill the project dotliment GODCerning endangered species were reviewed and
coropa cd to available infonnation. As rctyiired io the draft MTM/VF, the SMRCA
reguktoiyautioritywil!rontinuetoconsu!twitbUS.Fi3h and Wildlife Service and
appropriate state agencies regarding federal- and state-listed endangered and threatened
species. No additional commems are n(xessary in relerencc to caidingiirHl plant and insect
•pecies regmHng this pwjett
August 13, 2003
(signed)
.(title)
(agency)
[date)
a/98
PROJECT » 93-198?
8/93
MTM/VF Draft PEIS Public Comment Compendium
A-37
Section A - State or Commonwealth Agencies
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RUG-12-2003 14121
DRINKING URTER
Subject: Mauntaiotop Mining/Valley fills CD
Date: Wed, 06 AuS 2063 11:0836 -0400
From: Mike Dtshman
To: Jfny Peaks
CC: "Puckett.Richard" ,
You sent us a CD on tsfeo subject and *Bk(sd us to eassrafrit . lie &«ve very
few Btreaaa intaJcea that would wan potentially be inp*ct«di PwiflitsafeQS
Sap, Sc. Pa-a]., wise County rat, maybe Hich lands. The other NTP oourcss
are small mouuta-Ua top reser«'oir« or laafga reservoir*- like TOQUE! lake or
Flaaaagaa. Qtir coomeato aunt
1. iSh* report e««ta8 to prcjpsaera WSBS fierndcii for «ny" valley fills, omr
eorosusmt would b« that OCW slioaid review fchcne applicat-ioBS for s*afcer
a. KomsfcainCop Biining/valley fill praposed in a watershed withim 5
Btilas of an JUitake should *^ least be announced GO CSS* and eke
waterworks owner. We asaataa that runoff pomis and aim fencee will toe;
required to contain nrna££* in wfaich ea»9 ch« streams" Bfeould be
adecpately profcat^tmd as far aa water supply ratjuiremeiats go,
If
were locking for awire, l«e sw know.
Milce Dishmaa,
Deputy FieMDiicc
Virginia DcpartraT
Office of Driftkmg Wa«r
VHUJINIA n^ARlM^sra1 OF BHVmONMENTAL QU,
WATER DIVMON
Laxry G. Lawson, P.E., Director
To:
From:
Charlie Ellis
Date:
Subject:
EItt<3ilJi^,Hi.D,PWS
VWPpcnnit Program Manager U
August?, 2003
Moontaintop MininsWalley FBI Draft KI8
HPA
Piqject Number 03-10SF
p tuining CfHMild^fi Itll iyp^t flf gyffi^^i f^il nninmg ^ ^ ^
) 31 £be stee^i texzalii of fee central AgipalacMaa coal^ds. Kmnoval of o^eEtjar^ea and
interbuidcii(rw:k above and between coal seams, resprctivsly) during moimtaintop mining/
vallsy fills (MTMAT) operations results in generation of B'f cess spoil, because the broken rock
will not all fit back into the mining pit. Tne excess spoil must be placed in disposal sites
^jaceat to the mining pits in order to allow for efficient and economicai coal exfraetion.
Typical locations for excess spoil disposal sites are valleys, also known as heads-of-kollov/s or
uppermost (headwater) stream readies, '[neusualmetbodofdisposingof thisexcessspoilisto
place it in engineered earthen and rock structures known ss excess spoil disposal areas or .
colloquially known as hejjd-of-ho!!ow fills, hollow fills or valley fills.
Th= U.S. Army Corps of Engineers (COE)acd the U.S. Enviroranental Protection Agency (EPA)
stare rcsponsibih'tyfOTimplcmenticgdirrerentportioBS of the Clean Water Act (CWA). The
CO&bas&sptixt^al ao&onfy ^} regulate 1i»placraD^t of SBe u££o w^^s of die U,S, under
CWA Section 404 while EPA maintains oversight autliority. The EPA Office of Surface Mining
(OSM) is responsftle for the national admimstratian of the Surface MirangCoiitrol and
Reclamation Act (SMCRA), and has delegated thib authority to states in tlie EIS study area
except Tennessee. DelegationofSMCRA authority occurs when states assume primacy for
tegulatmg surface c»d mining and reciamatioa by adopting statutes and regulations no less
effective than the Federal counteparts.
The COE, EPA, and fheOSM propose to establish an mtcgraten surface coal mining regulatory
program in steep slope Appalachia. The objective of the coordinated program improvements
considered by this EIS is consistent appHcatioa of the CWA and the SMCRA to improve the
regulatory process and effect better environmental protection for MTMA^l1 operations. To effect
8/7/20037:19 AM
guidance, procedures, or regulations as necessary. These amendments woiUd result in MTM/VF
^>p^ragff«n
-------
87/24/2M3 IB: 33 7ST247BB62 «**• m
If you cannot a«et tin deadline, please notify CBMUKOf SLI.IS «t
804/633-4488 prior to tha data given. ArrangosiMits will be aade
Co extend the data £o* ycmx review If poa»ibla. An agealcy will
not be considnred to have rsviewed a dcciBBant if no comments are
r«ceived Cor contact in made) within th« ;
If you cannot meet the deadline, (lease notify CHARLIE ELMS at
804/698-4488 prior to the data given. Arrangements will be made
to extend tne data for ycraz raviaw if possible. An agency will
not be considered to have reviewed a document if BO comments are
(or cotitaot ia ma*3M) within the pario
-------
FAX
DEPARTMENT OF ENVIROHMEOT&L
OFFICB OF ENVIRONMENTAL IMPACT
TQi Hilling,, pamatjll
O£fXB6: ftjg|tBB«a, CQuatey
on KM
T'JTAI, # OF PASisS INCLUDING COV8R:
i Charlie Ellin
J3«pfc. o£
Office of Environmental Impact
Review • ' •
629 Bsvt Bain stroet, Stlt l»loar
, VA 23219 *' . • ,•
638-4*88 ••• . -
U* HOMBBR, 604/698-4313
Use, Caudill - I na*d your commote, if any, on. the CD -mxaian of Kite Ora£t
trogrjKMSatie Snvironmantal Impact Statement on Mountaintop Mining and
Vallay Wil» in appalaeM* (ESQ-OS-lOsf). iluafc you. . • •
Cfcxrlis fcllia
If you cannot me«t cJie deadline, please notify CHAitLIS ELi.xa at
804/693-4488 prior to the data given. Arrangements will be made
to extend t&e data for your raview if poaaibla. Jua agency will
not he cooaidarod to hav* raviewed & doctunant If no ccanaants are
(our ocBStftfltcis is uttH'tif*} ^tfj^fe^HJiB tfa* pwxiocl - - •
SSVI1W
Pleasa rwview eita daotawnt carefully. M the proposal baa
ba«n revie»ad aarlier {i.e." if the document is a Saderal
?inal SIS or a state aupplastant} , pleasa consider trhethar
your aarlier comments liave haen adequately addressed.
Pr«p»ra your agsnoy'a conrasBfiB in * form whioi would be
acceptable for arsspouding directly to a project proponent
agency,
ttea your agency staniemery or tfea si^ce below £or your
comeaes. IF you USE SHE SC&CE BEIOW, THE FORM MOST BS
Please return your connaents to:
MR.CKAH1E3 8. ELLIS III
OFFICE OF EKVTIRONMEHTAL IMPACT HEVISW
. 629 S&S7 M&ZH ^TK8^
HICHKCCTD, VA 23219
VAX §804/696-4219
S^MESKft
a/98
I JflVi
MTM/VF Draft PEIS Public Comment Compendium
A-40
Section A - State or Commonwealth Agencies
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Department of Mines, Minerals and Energy Comments on
Mouutaintop Mining/Valley Fills IB Appatachia Draft
Programmatic Environmental Impact Statement
Th« Department of Mines, Minerals nd Energy (DMME) offers tfas Mowing comments on the
Mountaintop MioingA/alley Fills in Appalachia Draft Programmatic Euviroumeutal Impact
Statement (EIS). DMME ijncis that the dia.1 E1S report regularly reflects use of incomplete or
isacoirate data. This raises considerable $i«4ikiSty proMia&s "would bs substaiirially impacted". The HB Moantaintop
Technical Team reviewed plans oil 11 sites and concluded that there would be a 90.9% reduction
The above msntionedpiarirEriew is the only actual sit=-specific study in the EIS. Additionally,
the Phase I aiKln, Economic Studies are seriously flawed models as discussed ai tie October 17,
2002 EIS Economic Meetiug in Cuarleston,WV. Tnerefcre, many parta ofthia draft EIS are not
supported oy accurate, fact-bassd studies. Conclusions drawn in the EIS, and any actions taken
in response to these conclusioEs, may be considered arbitrary and capricious. Any actions taken
as a resoH of firis ®S WOBW uefid to fee jasfiSfiS 'by a^sts^ accafates, fesfc-bascd stores and not
rely on the information in the drafi EIS.
Environniental and Process Benefits
QnpagcES-S, the No Action Alternalive, as well as elsewhere in the EIS, is iliac cruiitely
cbaracterized. A true No Action Alternative presents no changes. This is not the case with coal
raining regulation. Since 1998 thsSMCRA, EPA and COB programs (particularly the COE's
some cor^stencybetwciOT COB oisrri^s.m addition in Viigiina the COE and the Nature
Conservancy are dcvelopiug an MOU for mln-Lieti Fes Program for mitigation of streiim
impact. West Virgiraa has implemented ttcw state specific laws and regulations that change
roiningi^ssra West Vkgima but not in omer states m the study area. As such it is impossible
for the EIS to accuratoly describe the first option as a No Action Alternative. This option should
be recharactc^ed as an option that would contmae the exisrmgSMCRA, EPA, and COE
ongokig amendments to the |»oee^ws.
1° full paragraph, page ES-9, me reference to tbo250-acre limit m West Virj^a states that use
of the 250-acreBmit has reduced the number of valley fills. This statement fails to note that
restricting fills to waiersheds less than 250 sens resulted mnijmerous instances of many more
dozen or more smaller filis were proposed. The implication that the 250-acTeumit helped reducn
me nun;bcr of fills cannot be supported.
Alternatives 1,2 and 3. The EIS does not daciMS me difgculty in establishing and irnpfcmciiting
suchanMOA. It has bsen the e^crience of Vii^imaDI*lME that obtaining suet an MOA is
MOA.
DMME
US. R* and W5UB& Satvlee (USFWS). tte 0SFWS tried to make all DMME
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MTM/VF Draft PEIS Public Comment Compendium
A-41
Section A - State or Commonwealth Agencies
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pennirting actions federal undertakings through huiguagc in the MOA. This would have
lead to a USFWS takeover the state's role is permits involving T&£ species on mine
sites. When the USFWS was unable io get DMMB, to agi'ee to this approach they dech'ned
to continue woiking ort an MOA.
* Ttol996"Fonn»!S«^(m7Btologica5OpimonaHJCk»ftMioeSUiKi«oiiSw*(»Ccsa!
Mining and Reclamation Operations Under the Surface Mining Control and Reclamation
Act of I9T7" spelts out the process to tie used for consoltattoa between state SMQRA
agencies such as DMME sod USFWS. USFWS staff in Virginia do not fallow its
guidance.
Until the federal agencies show acceptance of existing agreements and flexibility in drafting new
agreements that will meet the needs of all parties, the MOA approach is likely to Call and any
alternative relying on use of MO As is questionable.
Actions and Alternatives
In the list of cooperative efforts by die "federal and/or stole agencies", 5* bullet, page ES-7, fte
COB is currently requhing post mitigation monitoring fir a period of five years. Under SMCRA
areas that are remined are eligible far bond release after two years. The two-year liability period
was put into plage as an ificeothfe fat ret&liKlig asd reelamting abandoned mined hmds (AML).
To require all SMCRA psraiits to impkmo-it the five year rnonitoring and liability pericxl would
be counter productive. EPA has documentation that remiiiirig and reclaimiiig AML areas v,ill
improve water quality. Any cooperative effort between the agenci es should give deference to
remining activities as required by the 1992 Energy Policy Act and the Rahall Amendment to the
Clean Water Act, and Dot uniformly incorporate existing COE standards across flic whole
In the list of "OSM and/'or state SMCRA TCgulatory authorities" efforts, 491 bullet, page ES-S, the
EIS proposes "if legislative authority is established by Congress or the states, require reclaauatlon
with trees as the postminisg iandass," The EIS steering coicmittee was advised several times that
this is not feasible. Due to multiple mineral and surface ownership issues, and the fact that many
permit applicants do not own the surface but lather have a nna exclusive ri^it of entry Io mine
the coal and reclaim the area. The cerates! over Qie type of vegetation to be replaced will remain
primarily with the surface lamlowtier. The EIS is not authorized to intrude into private ow nership
rights as suggested here. While is VkgMa over 85% of milled land is reclaimed to forested use,
some Virginia landowner* wi^i to have hayland and pasture as a postsaasng land use. These
sites me actively managed by the landowners and $ne pioductive haylacci pastmrea. This
recommendation should be removed from the EIS.
Chaster |, ^I
On Page J-i, the BIS goes heyosd the fine definition of "moontaiiitop miniBg1*. The BIS defines
the term "moustaiBtop" as the "summit of the ffloimtaia**. In reafity, the dtaft BIS addresses all
area from the valley floor to the summit ("Surface coal mining occurring on mouataintops,
ridges, and other steep slopes...)- The use of the term 'Taountaintop mining" in Redraft ETS
should be changed to reflect the bittad effect of actions proposed in the draft EIS.
12-2-4
The ESS classifies fflls as "valley fills", ignoring the existence of other types of fills such as
bench SUs and sids Ml fills. (Sccalsonotel.E.--where excess spoil fills, otherwise known as
valley alia"" - and I "f, I on page 1-5 - etamology say be mHeafingif reference to yaHey fiBs
is also cucompassiiig other types of excess spoil disposal areas.) The EIS should accurately
dlaracterize (he types of fil's it is addressing. Without His characterization, any icquircments
implsraoEttd as a result of this EIS could perversely afiect the use of these other types of fills.
For example, ftere are sigmfieant emrsoiBBeafcil benefits &om atifiaiBgpre-existBig beaches for
the placement of excess soil-climimtmg miles of pre-Act abandoned highwalls.
The BIS was initiated and developed by the federal agencies ia partnership with West Virgrda.
West Viri^a was a signatory to trw Settlement Agreement; ftootha-pjiimcy states were not.
Tfae &fcxxfeietiaa section sliouM tecogmze tlsat fee other Appalacliiaii slates were cot ibrmal
parties to trrisEJS and that the recommendatioBS in the BIS may not be appropiiate in these other
I.B Proposed Action and I.C Purpose of the EIS
The ElSreccrmneads the OSM, EPA and COE establish a uniform fednairnandate hi the
AppalacWan coalfields. This was developed primarily oil conditioca in West Vkginia. TheEIS
does not rocogoize the unique differences in tie tjpes of coal mining operations hi Virginia (and
other Appalachian states) as compared to conditions in West Virginia. If the EIS process is
continued, the ElSshoidd be revised to reflect tie dirTeringconditioriS among the Appalachian
I.D Need for Proposed Action
On page 1-3 fee opening jsaragraph stales tot impacts IB tbs study area am at least as
adequate for other areas. This one-si2e-fits-all approach does not recognize that the impacts
fiom cos! susifig are significantly less in some areas and feat tfee proposed measaras in the draft
On page 1-8, rhe draft EIS discusses the Bragg 1998 Settlement. This settlement agreement was
signed by the federal agencies and Weat Virginia relative to MTMAT. However, Virginia and
ouicr primacy states in the Appalachian coalfields were not signatories to such and are not bound
by the terms and conditions of the agreement This EIS assumes that the federal agencies, via
oversight, would compel other state compliance as a corfMoo of jHifaiaiaiag (heir regulatory
programs.(ItoePage 1-9—^sMiatbeobjeett^offaHawasMscratiayofpemiite.*") The
ffedsral ageiid^ Si^dd IK^ malateraify 3sq}leaximyt a vothinl^ consent agreement in BOJI-
signatory states. The draft EIS should not assume that the processes agreed to in the consent
agreement are needed in ths other states or would be done.
H» 2000-2003 Cteaotagy-«t«BS that, "FoBowingteiwnBtttog<*ani^ instituted porOTantto
the Bra^Mtflimem agreement and other unrelated factors, the average number-of fills/year
approvedin the EIS study area declined...." The EIS did not note that the decHne was due ro
part to the COE's moratorium on issuing 404 or NWP 21 permits-which rBS'uted in a
tremendous bacMog of perrrjt applicarions in West Virginia & tiius less fill approvals. Any
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MTM/VF Draft PEIS Public Comment Compendium
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Section A - State or Commonwealth Agencies
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a positive eflfect on She number of approved fills per year may not be supported by file actual
conditions in the West Vitgitaa regulatory program,
Chantet II
Summary of Alternatives
The BIS process should be ended at Ihis point and til® OSMT EPA, and COB programs should be
cor.tinued as tfcsy are in effect today. The action alternatives cannot be supported by the record
in the draft EIS. Many of the studies used to develop iheEIS are flawed. Conc!usio;is are baoed
on either incorrect or limited data. It would be prohibitively expensive and tijiiely to fix tliesc
problems soSlciaBtiy to sappoit asjy acticm altentatave. if tiie B3S process is not stopped, tfaea
the jEsderal agencies should adopt Alteniative 3, TMs nwmld, recognize the unique expertise of
SMCRA agencies m evaluating fine effects of miuing operatiOEs cm the eavirDBment, md lead to
a more efficient and effective outcome than lite othar alternatives,
There are some specific probleais witb itona In Chapter H as oatlinai below.
On page HB- in section 3a, there is a regulatory process benefits discussion coscsrsiag a joint
appli^atioa form. The BIS coaclijdes diat use of common data elements in a joint application
form could result in more efficient analytical approaches araong agencies. DMME is concerned
about the adniinistrative diif.culty and cairiage(CMD) as drainage from surface
ffiJuingtiiat causes wa&arquaHtypjobkans is auBsable. ThfedsfiiiitiCBicauldi&Gludeilraraagc
fiommostnimedlandsthroughoutthestudyarea. Yet Table IE.E-1 (page nLE-7) indicates that
only 10 CMD sites are identified fcr all of Kentucky and only 26 CMD sites are identified in
Virginia. The \%girjia number is from Virginia's AMD inyentory and represents long-term
pollution discharges. Also, tie number of active permits shown in Virginia is incorrect The 26
atfls ia Vagisia j^nesesl aft loag-tem poUotkm dasdiasges in Virgi&ia from active and BOB-
active sites.
Oil page m.E-6m me first paragraph of Pat 2 (b), the narrative seems to iiseCNffi and acid
mine drainage (AMD) interchangeably. These terms are not interchangeable and should not be
used as such.
llie draft ElSmicates on page m.E-13 that Vkgmia is actively working-.vith the EPA in
pursmng a regulation criange to the Clam Water Act (CWA) for &crwges from coal remining
sites. Virpoiia is currently not pursuing a CWA regulation change. EPA promulgated me
remining rule January 23,2002.
Chapter m.F-Appalachian Forest Communities
Page ffl.F-12 ctaaeteiiw reclaimed rajaed lands in UBS ttudy area as,"... often limited in
topographic zetie£ devoid of Sowing wt£ra; and most commonly dominated by ezostoii-
rasntmtlingj fcarhaaeflng fastmtiimjtfeg**. Xb& c^£3c&H323ii{>ii is notaccuxBtfijbr reclaimed mi&ed
lands in Soitfb$re& Virginia. Ei^gty-iivspexsfltit of teclaiirjjsd mined lands i&Vi£glii!£ ate
returned to forests. Most reclarmed mined lands in Virgmia are returned to the approximate
origuial contour including re-es'iablishing drainage parterns.
Many of the gcnerafeations made about the study area do not or should not apply to Virginia's
coalfields. It is clear that many of the referenced studiis included in me Appendix and narrative
in Chapter 3 do not incline Virginia. It's unclear and, most readsrs/ieviewers will probably be
unsure, if Virginia's seven coalfield counties wers pan of the erea actually studies for the EIS.
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MTM/VF Draft PEIS Public Comment Compendium
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Section A - State or Commonwealth Agencies
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Chapter I1I.K.2 - Trends in Valley Fills
Pago 13UC-36, «eofion A. Virginia Valley Fill Sim Trends, the data for Virpnia is nnstoadmg.
Daring the period of 1998 to 2032, Virg&ia did not di&ingaisfa between backSU and excess spoil
designations for multiple seam mining. Spoil placed above the lowest coal seam mined was
deemed to be excess spoil if there was a valley fill at that location below the lowest coal seam
rnaned. This resulted in an overstatement of the footprint of valley fills during that period.
Beginning in 2002, only excess spoil placed below tbe lowest coal seam mined on steep slopes
was determined to be valley fills as this is the actual definition of excess spoil. Span placed
above fee lowest coal seam mined is now defined as back&U. Therefore, tfee statements m tMs
section tftat characterize the total and average valley fin acreage M Virginia are larger than
actual, and should not be used.
Chapter HI. L - Mine Feasibility Evaluation and Planning
General Cousiderstioas:
Page III. L-3 In section c, "Reclamation Bonding" me last full paragraph reads to part "Complete
release of reclamation bonds on a given area typically requires five years after completion of
reclamation,". Tms section sjioiild also note mat areas that are remiuen arc eligible for bond
release in two yeans.
Chapter DEI. M - Coal Distribution and Markets
Page DLM-7, the last paragraph appears to be inaccurate. Virginiz has more than 52 mines and
West Virginia certainly has more tiian 35. It is unclear if this is meant to be tlie number of
surfzccmiiiisarthecombin«itotalof surface and underground irrines. In addition V A DMME
is incorrectly cited as the source of the ta&naation on it^ntuclcy tsmes or pmdUfi&m. 0MME
did not provide this information.
Chapter 1TI.P- Demographic Conditions
The descriptions of demograpHcs, economic cofiditjons, and historic & ardiaeologjoa! resoBrces
do not accurately portray Virginia's coalfields. Some statements could lead one to believe that
the writers were not sure of the location of Virginia's coalfields. Examples include placing the
Blue Ridge Parkway in Virginia's coalfields and using the Thuuderbird Paleo-lndian site la
Virginia's Shenasdoah Valley its not example of local archaeologleal resources. The study
identifies tourist attractions in Kentucky, West Virginia, and Pennsylvania, but says thai none of
the Virginia, study area counties are tourism des^oalions. Many examples of tourist attractions
equivalent to the ones identified for the other states exist within Virginia's coal counties - like
state parks & national forests. The report's errors and failure to MghHglft knows Virginia tourist
attractions indicate that the writers were not familiar with the area. These errors add to the lack
of credibility of the toft EB.
Chapter ffl.Q - Ecoaonu'c Conditions
The socio-economic studies on community impacts do not adequately address the effects that
loss of coal-mirimg jobs would have on commuru'tie: in the Appalachian coajfields. The BIS
should also look at past studies or perhaps 4o new studies on communities impacted by the loss
of or significant reductions in mining. A classic example to study wouM be commimities that
were developed by mining companies such as Lynch, KY. When the U.S. Steel mining
operation was sold to Arch, the community suffered significant impacts. It had previously bees
13-3-4
12-2-4
11-8-4
10-2-4
11-9-2
supportcdataostcntirelyliythecompany, U.S. Steel, with even the basic infrastructure being
maintained by the company. With the purchase by Arch the commraity had to start providing
this support and maintenance itself.
When communities softer near or complete loss of nmnmg, a maflced change m the demographics
of the community eventually occurs. With the loss of the economic base that once supported the
commodity, a loss of yoimgsr comzmmity members occurs as they leave to find employment in
otherareas, Eventually thg eormiflmity wfada tip wftfo an unusually fr$gh ?a|inb«r of y&tfnnt
housra-rrecple are unable to sen me toascs since the real estate market usually plummets in
these areas. 'IttcpopulationQfthecommutiity consists of a majority of elderly retired persons on
fixed incomes, The tax base is impacted to sich a degree that the cornmum'ty can no longer
maintain the mftaatmctiu-a required for a cornmunity, schools, water, sewer, etc. It often takes
many m West Virgmia. is ihs same portion.
The Bfii abonM address the impact any decrease in mining would have on the federal Abandoned
Mined Land (AM.) program and the UMWA Combined Benefit Funds when looking at fhe
potential loss of mining sfitiK result of the E1S alternative. The AML&nd receives its revenue
ETjm the coal rroned by comrjanies, currently at a rate of S0.35/ton for surface mined coal- The
AML tod is tased fa part to food water ptojeete to commsnitses -whose water supplies visa*
previously inducted fiom AML mramg. States can tise up to 30% of their AML allocation to
fund these water projects. Virginia funds two water projects a year from the AML grant The
socjo-ecoaoisic impacts of file loss of all or part of this community water project funding mnM
be considered. The UMWA Combined Benefit Fund receives sigllificfriit funding from the AMI^
traat fimd to mafcei^jsboJt fells fi-omooiapacyooBlnlmtloas. &6diictioMiiiAMLibespai
-------
These socio-economic impacts to coal field residents from reductions in coal mining mast be
considered in the EIS.
Chapter IH.V - Relstiouship of Sal-face Mining and Air QuaKty
The draft BIS states that Black Lung is a condition prevalent m coal mine workers who have
worked in underground coal mines for a period of eight years or longer. The report includes six
pages discussing the impacts of black lung mi tlie residents of the study area. This information
has little to do with the cGnsec|ueBees of MTMA'F, ofljer than if coa! mining shifts fiosa surface
mining to underground mining. This irrelevant information should be deleted from the report.
Chapter IV
Environmental Cor.sequeuces
The last paragraph an P$ge IV.A-3 Is mi&leadfsg to t&e reader. The author of the document
describes a conditioa of a mine site not having a post miffing land use of forestry that may take
femdreds of years to revert to Ibrestry, There are sites that are reclaimed as liayland/pastee. The
land usable for fanmag in the coalfield counties of southwestern Virginia is very small. Post
mining land ases of hayiand/pasture are welcomed and are wed by Isadownens., The report
should not imply that forestry is the only desirable ase of reclaimed mm& land.
The page IV.B-1 section titled Consequences Common to the No Action Alternatives and
Alternatives 1,2, and 3 should take into account the headwater streams that are replaced with
diversion ditches and drainage systems m and around fills. M addition headwater streams
disrupted or severed by prior mining activities are often reconnected to lower stream reaches
when the highwalls on abandoned rained land are renamed and backfilled.
OB page FVJB-4, the third paragraph discusses the potential release of toxic materials into the
environment by mimng operations. Studies in Virginia have not shown any toxic waters from
valley fills. Also, water quality standards are monitored on a regular basis by BM3LR inspection
staff for compliance with water quality standards.
None of the stream studies referenced in this doxsiment were coaducted in Virginia. Therefore,
conclusions regarding streams may not be valid fax Virginia,
Page IV.F-1 section Energy, Natural, or Depletable Resource Requirements fails to mention that
one of the requirements of SMRCA is to maximize coal recovery. The BIS authors should
recognize this statutory mandate wtea evalaatmg alternatives.
The language on page XV.G-3 gives readers the impression that raonatam top mining is
displacing local communities. There Is BO evidence of this in Virginia. In Virginia, people in
these coal camps were leaving the area long before mountain top raining began to be practiced.
The ami companies that constructed these camps have long sine* shut down and left these camps
to deteriorate. With ao sewer systems or public water systems, residents began leaving. With no
jobs any longer available, children graduating from schools led Che area for work. Mountain top
mining did not create this condition. Additionally, any actions taken as a result of this BIS &ai
restrict future mining would fertfaer harm local economies and hasten the decline of these
communities. These consequences should be recognized in the BIB.
15-2-4
19-3-4
5-7-4
5-5-4
10-2-4
General Comment
Many of the studies cited do not address Virginia. Virginia conditions, both on the ground
C&B&&3BS and the e££ectiveii€S8 of Vitginia'g coal surface xotfiiag segulstctfy program, differ
from West Virginia and Kentucky. Conclusions based on these studies may not be applicable in
Viigiaia. Notes (msp&ASe studies follow,
A Review of Wetland Resources in the Steep Slope Terrain al West Virginia
No VkgJBia study iaibttsstiQii iadailed.
The Value of Headwater Streams: Results of a Workshop, State College, Pennsylvania,
April 13, 1999
No Virginia study information included. It should be noted in the EIS that ranining of AML
areas would often reconnect headwater streams to lower reaches. These streams were originally
«Usiijptedtjy,AMLimmBg activities. Tlie headwaters siB$>iya&toths.AMJLb&ficb,tl!Oi flow
down tfcfl benefa, eveetaalfy flowing over th« bemdi at a low point by passing the lower reacfe of
A Survey of the Conditions of Streams in the Primary Region of Moiintaintop Mining
Valley Fill Coal Mining
Streams asses »M dining the study that comainedresidentiai development were the most
. Because several atrassois,ii»^adJ^iiHiaflgactivMEsaBdresid^lial development
cawe file observed impairments, so specilic coBeltiSKi&s were reached. AUtaou^i i^aes
very BHIe aaeSii «h«y p twnrSmxirqpi t^at -^final^aitl tftyi lyjtnmo anrf Iftlllfty fill
(VTTJvlA/F)coi!stmction negatively impacts bentMc health do not necessarily match similar
study restdts Sonx Vlr^aia 2nd West V^^oiEi. "His research report "ffiip^ffipcQippcal Evaluation
6-6-2
5-3-2
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6-4-2
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MTM/VF Draft PEIS Public Comment Compendium
A-45
Section A - State or Commonwealth Agencies
-------
of Hollaw Fill Datmetg in Low Order Steams in t|e Appalachian Mountains of Virginia and
West Virginia" by Timothy Menicks wife Dr. Donald Cherry do not support this conclusion.
A Survey of the Water Quality of Streams In die Primary Rigion ofMountalntop/Valley
Fill Coal Mining
No Virginia study taformatian included. The same five West Virginia watersheds were used for
the chemical water quality survey as for fee ecological survey.
A. Survey of Eight Major Aquatic Insect Orders Associated with Small Headwater Streams
Subject to Valley Fills from Muuntaintop Mining
On page 3 of this study, BO indication if any of fee streams sampled Itad been adversely aapaeted
by past mining, losing, or other activities.
Flaw Origin, Drainage Ana, and Hydrologic Characteristics for Headwater Streams in the
Mountain top Coal-Mining Region of Southern West Virginia, 2000-01
The areas in tins report are limited to sou&ern West Virginia. Ho Virginia information is
included.
Anacndte E - Terrestrial
Genera! Comme&t
Regional experts were not used for these studies. Experts outside the study area were used. No
snidies were conducted in Virginia. Refer to ApptudixG comrtiHit concerning the article by tlic
Society of American Foresters. Handel's report has no mention of amoent of trees being planting
by landowners today. Handel also noted that the studies were short in duration. Cosohisioas
should not be drawn when insufficient information is obtained to back the conclusions.
Handel Terrestrial Report
"Trees that were obvious parts of an implemented planting program (determined by plantation
spacing and diameter at breast height) were not included in the counts, as these did not nann-aBy
arrive on the sites and are not part of any invasion process. Any offspring produced by planted
individuals were included in the data, however. We were not interested in survival of the planted
trees, as all planted species we encountered are either forestry created hybrids or non-native and
in fact illegal to plant in many states. Data were entered on computer databases for further
study." This statement in the Handel rq>ort is ail example of the types of flawsd information the
BIS contains. Handel references a stady by Karen Holl that concluded, The research reviewed
above showed plant communities on mine sites reclaimed within the past 30 years developed into
ecosystems $iat resemble the native hardwood forests. Although all species in surrounding
forests were not found on the mined sites, the reclaimed-mine forests are still very youag relative
to (he native hardwood forests which had developed over much longer time periods. Research
has shown tliat reclamation practices have a dramatic influence on the rate of forested ecosystem
recovery on uninanaged reclaimed mine sites, and on thek long-term productivity and ecosotaic
value. Practices that encourage ecosystem recovery are compatible with and complementary to
those that may be used to establish commercially viable, productive hardwood forests on
reclaimed mine sites," Handel described die Holl paper as follows. "An in-press article by Holl
(2002) shows the potential Sir reinvasion and recovery on reclaimed surface mined lands. It is
extremely important to note that, like the Skouscn article, her study was comprised of pre-law
5-5-2
6-4-4
5-4-2
7-5-2
sites dating tiack to 1962 reclamatiorB. She does not report how many of the 15 sites were post-
law (post 1977), bat her Jhree age classes ftrflie mines are 1S62-1967,1972-1977, and 1980-
1987. A3so, me niincs in that report are small'/.hectare parcels, not comparable to the large
motmtaintc^ removal areas subject to this stody. The Holl study sites, only 62.5 x 40m in size,
examined areas very close to seed sources, witiin "5-50 m from unirrmed forests." When
Vrrgmia Tech was asked to respond to tUs assertion by Handel, DMME received the foDov.-ing
reply.''Kaiea (Holl) did look at larger pre-law mirjes, but her actual stedyplots are what are
feeing sized oat here. He (Handel) should be nervous because he completely misrepresented her
work after she talked with him about it and offered to assisthiraiii the interpretation.** Theuse
of experts not familiar with the region leads to these r^pe of mistakes. Handel presumes that all
mines are of the scale of large moontBiiuop removal operations several thousand acres in size.
That is' not the case in Virginia.
Edge Bird Populations
No studies were conducted in Virginia where the typical permit si» is smaller than sites used in
the study. Therefore, the conclusions in the report may not be applicable to Virginia.
Page 2 of me study gives the re^er me impressiou that all surface miries leaves huge tracts of
grasslands. This is not tins in Virgrata. More man 85% of all mined land in Virginia is returned
Vertebrate Study
This study focuses only on grasslands. The author of this report should note that not all
reclaimed mme sites have a. post nmung land use of hsyland^aastsre (graaslsoids). No studies
were conducted on mtne sites is Virginia that have been reclaimed to forestry. Therefore, the
conclusions may not be applicable- to Virginia lands.
Mountaintop EIS Technical Report
On page 1 of the Executive Surrrmary second paragraph states that 14 sites that were chosen for
this study were an located in West Virginia, lio sites in Virginia were part of tins study,
On page 1 of (he report under fne heading of Methodology, the report indicates that flare were
ae also dOTcrencesftom me areas m Virginia as well. Virginia does not have the multiple coal
seams available that aUows for mmmgmovmtamtop removal ofKrarions like those in West
Virgin*.
Page 2 under the heading of Conclusion, it is noted that the lower end of the ephemeral stream
are very high m the valley thus reitrictmg me amovmt of f3H that could be placed in the fill.
According to Vir^nia estimates, approximately 70%-SO% of area currently being mined is
previously mined tad. *h these cases, the ephemeral stream has bean buried or disrooted by
being cot through by jafaing. Tins report does mot take into account the impacts to stream from
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7-1-2
11-8-2
12
MTM/VF Draft PEIS Public Comment Compendium
A-46
Section A - State or Commonwealth Agencies
-------
Land Use Assessment
This is a West Virginia Study. No other states are mentioned as being included in this study area.
Taereftjre the data and conclusions may not tie appropriate to Virginia,
Table 7on page 13, under the heading of Current Mining Permits Methods and Results, only lists
lam! uses that could be easily identified. The report should include areas that have been
reclaimed and post-mining land uses implemented. Also, table 4 does sot include land uses such
as residential, commercial or industrial.
The last paragraph on page 17 and the first paragraph on page 18 are either stated wrong or are
misleading. State sad Federal governments (SMCRA authority) do not have contra! over post-
inining land uses. SMCRA. authorities are charged with approval ami monitoring implementation
of the post-mining land use. SMRCA authorities do not control landowner rights or local zoning
requirements. Landowners and local zoning and planning agencies control what post-raining land
use changes are selected. SMCRA ooJyrequires that the site has an eqxaal or higfaer post^miaing
land use.
Pa^e 31 paragraph 2 under L^d Use Plaiming and Decision Makirig for Specific Mine Sites
states that, "land use decision-making is generally focused on identifying site-specific rather the
regional development potentials". This is not always the case. A regional development authority
that actively considers regional development potential serves the Virginia coalfield region.
This BIS does not reflect the following facts listed in a publication on the Internet by the Society
of American Foresters fliap://www.^ai&eLomfa^ reads;
* There are a total of 247 billion trees above 1" diameter in the US cm all lands, according
to the last forest inventory.
• The science of forestry was established in iheUiiited States at the turn of the century, at a
time when vast areas of forests bad been cat down with little thought of the fiiture.
Foresters have done a magnificent job in restoring America's forests. Our forests now
grow nearly four times more wood each year than in 1920,
* There axe 747 million acres of forestland in the United States, about 71% as much as
there was in 1630.
* America's forests are owned by private individuals (54%), public agencies (37%), and
private industries (9%),
* Bach year about 1.4 billion tree seedlings are planted — roughly four asilh'oa a day - more
than making tip for those that are harvested. If you iaclude naturally regenerated trees the
net growth exceeds the harvesting by 33% due to good forest management
* Tlieavcn^ge AmsricaiiTises about 749 poimds of p,sper every year and 95% of the hous2s
built are dona so using wood. That means that 'the average person tises the equivalent of a
! 00-foot high, 16 inches in diameter tree each year for their wood and paper needs.
* Parks, wildlife refuges, and other preserves spaa 166 million acres of the Samoa's total
land mass; and the National Wilderness Preservation System covers an additional 104
million acres - a total of 270 million acres set aside for parks, refuges, or wilderness
areas,
* The forest industry ranks among the top 10 employers in. 40 of the 50 states.
About 45 percent of t$u? paper consumed in the United States is recovered for recycling.
Recycled paper, however, is not "pure" so it m\i5t contain some new wood fiber for
10-3-2
Three weU-placedmatac trees around a house can cut air-condilioning costs by 10-50
pascal, wfcjle ftees and other laadsca$»ag caa increase property value by 5-1 0 perce&t.
One mature tree ribsorfos approximate 13 jwaa& of carixm dioxide aye®*. Forevery
tonofwcodaforestgmws.it removes 1.47 tons of carbon dioxide and replaces it with
1.07 tons of oxygen.
Today, Hie Umted States has aboig the s^Meamotmt of laaadcovered oy trees (orsEgitily
l«)asildMiiil907.
Species such aswhitetail deer, wild turkeys, and wood ducks were almost extinct at the
tarn of fas ceatey. WHdHle cosservatioa aad habitat esfraticemeat bas resulted in
flourishing populations of these and other species we now take almost for granted. Now,
Ibrestars &e working with other proibssiatmls to feipiove b&bitgts sad ensure survival of
otter wildlife species.
XMttt the 1920s, ibasstsweitt generally logged aod abandoned. Kow, across tfoeooimtry
sn ttvorssc of 1.7 &H3ioii scsSSogs azc plEBtcd Kosuslly. T^sttzsusl&tesiiifio 6 soc^Uogs
p!antedforeverytreeharvested. In addition, billions of additional seedlings are
regenerated naturally.
tres plaining.
i TbBseco&Sicts should btttoco&dicd in fhcKlS'
Phase I and n Economics Study
The Hiase I stody of rx>tential reduction in mining from action taken M a result of the EIS used
a technically incorrect model based on West Virginia terrain, lie results of this model were
&en used to pi^eotTeduetions into Vagsma. Ther^^d^of^asfirojecticmw^e^ieausddto
project economic effects in Virginia. These economic projections should not be used as they are
oasisd oa piojectioss asade fioai aa foaacomaie tef^mical model,
AdditionaUy, the Jaiiuary 2003 Ifill and Associates report, page 1, stales that coal from deep
mines v/ill grow and make up the lost tonnage because of valley fill restrictions. Deep mining
will not replace coal that cannot be mined under this proposed EIS. Any restrictions developed
asaresHJtoftbisIJIS wiliafifect deep nria^^wefi as aii^ce mines. It wmild be &s difficult to
permit new surface mines. ThcEISiecommcndarjons will apply equally to mess srnictures as
they would to valley fills. The EIS should account for this impact.
General Comment
The§e studies aenotsecessaidlyieiJrssentaSive of cooditioos on Vir^Bia. Almost an surBece
minii^is Va^mainvolvasreamiiigBiBomswi^. IMS typically takes file fbrmoCAML
highwalls bemg second cut and AMLoighwaUs backfilled with excess spoil. Some permits have
no vallsy fills as 100% of the spoil can be disposed of on AMI benches. No studies have been
done lor fee EK to docurassst &eae IssB^ in Virginia and as sgcii file MS cannot poiport to
represent conditions in Virginia.
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11-8-2
13
14
MTM/VF Draft PEIS Public Comment Compendium
A-47
Section A - State or Commonwealth Agencies
-------
Paul Rothman, Kentucky Environmental and Public Protection Cabinet
AimeadfaK
Final Report of (he Joint OSM Special Study aa Drainage Control (Dee, 1999) - conducted
in Kentucky
Report findings - "no corroborating evidence to support allegation that surface mining
operations tad an adverse impact oa the flooding potential for citizens and residences
downstream, when DSMRE's hydrologic policies mi procedures were followed." In Virginia no
instances of mining related flooding other th;in from AML sites or blowouts torn underground
mines hive been documented. While no Virginia sites are addressed in this study, DMME's
experience supports the findings Som Kentucky,
17-1-2
Comments on Mountaintop Mining/Valley Kills in Appalaehia Draft
Programmatic Environmental Impact Statement
Hie Kentucky Environmental and Public Protection Cabinet (Cabinet) is the newly
established agency with regulatory responsibilities for the program areas that are the subject of
the Draft Mountaintop Mining/Valley Fills in Appalachia Programmatic Environmental Impact
Statement The Cabinet hereby requests that it be afforded an additional three (3) weeks to
provide its comments. Those policymakers responsible for the provision of the comments were
installed in the last two (2) weeks. They have not had the opportunity to review the issues due to
the recency of their appointments and the reorganization of the agencies with programmatic
responsibility and, therefore seek this extension of time.
3-5
15
MTM/VF Draft PEIS Public Comment Compendium
A-48
Section A - State or Commonwealth Agencies
-------
LaJuana Wilcher, Kentucky Environmental and Public Protection
Cabinet
REC'D JAN 2 6,
laJuar» a WUclw
Sscratary
CocuBoim-caliiiofKcr.tjiclk.v
Environmental and Public Protection Cabinet
Office of ihs Secretary
Capital PiazaTovwr
Frankfort, Kentucky 40601
January 21,2004
Mr. John Forrea
US EPA{3BS30)
1650 Arch Street
Philadelphia, PA 19103
HE: Draft Programmatic Environmental Impact Statement
Dear Mr. Forrea:
The Kentucky Environmental and Public Protection Cabinet (EPPC) welcomes the
opportunity to submit eomateats on the Draft Programmatic Environmental Impact Statement
(HS) on mountaJBtop naningrVilley fills prepared by the U.S. Army Corps of Engineers (CQE),
the U.S. Environmental Protection Agency, tie V.S. Department of Interior's Office of Surface
Mining and Fish and Wildlife Service and the West Virginia Department of Environmental
Protection. EPPC is a new state agency created by executive order of Governor Bride Fletcher
entered on December 23, 2003, and is eharged with responAfHty for regulation of the
environment and the protection of Kentucky's aataisi resources, among other things. BPPC's
responsibilities include administration of state programs implementing the federal Clean Water
Act (CWA) and the Suffice Mining Control and Reclamation Act (SMCRA).
BPPC is aware that its predecessor agencies to Kentucky h»ve participated in a very
limited manner in the development of the draft BIS that is under consideration The unfortunate
result « that the draft BIS does not fully reflect Kentucky's experiences in the regulation of
mountamtop removal and valley fill mining activities or their impact on Kentucky's
environment EPPC pledges its Sill cooperation and greater participation in the federal agencies'
future efforts to address this important issue.
Tie Fletcher administration i» committed to the development of Kentucky's abundant
mineral resources while protecting the state's natural environment It would be difficult to
conceive of a situation where such a balance of interests would be more' appropriate than in the
formulation of a workable 'approach to the regulation of mouataiatop removal and valley fill
mining activities. The viability of Kentucky's mining industry, an important part of our
economic future, hiftges upon the continued ability of the coal mining industry to conduct taming
operations under reasonable regulatory constraints. On the other hand, Kentucky's
Mr. JohnForren
January 21,2004
Page 2
environmental future hinges upon the ability of government to ensure that this activity is
conducted in a manner that mhtitnizes adverse environmental effects and pfote&s our aquatic
resources and critical ecosystems. A» a result, the successful completion of the objectives of this
draft BIS is a matter of highest priority to EPPC.
EPPC believes that federal and state agencies involved in the regulation of mountaintop
mining/valley fills should teek to accaraplMi two goals: to coordinate and expedite the review
of applications to conduct mining activities, and to minimize the number, size and impacts of
vailey fills. EPPC is of the opinion that several of the alternatives considered in the draft BIS
have the potential, if properly implemented, to help accomplish those goals. Accordingly, EPPC
has no objection to the federal agencies' recommended alternative but strongly encourages
consideration of die specific suggestions sst forth below.
* States should be encouraged to administer eieiaeats of tile Section 464 permit
program and adequate ftwduig should be aaade avaUabie for implementatioa.
Many of the procedural delays in the issuance of CWA Section 404 permits for coaj-
reteted activities could be minimized if states were encouraged to administer elements of the
program under state programmatic general permits. In order for states to undertake such
obligations, it would be necessary for federal agencies to provide a source of funding for such
activities. Such federally-funded state activity could play a major role in the expedited permit
review procedures contemplated under Alternative 2 of the draft EIS
* Clear and concise tfeHaitSoiis and procedures should be developed'and uniformly
applied.
A recurring issue has been the definition utilized by the COB for the determination of its
jurisdiction over headwater streams in applications for CWA Section 404 permits for coal-related
activities. Kentucky is encompassed in four different COB districts and the jurisdietional
definitions vary from districMo-dis&ict The development and application of uniform defmitioBS
for aH COB districts would eliminate uncertainty on the part of state wster poHutioa control
agencies and regulated entities. Additionally, this action would provide a standard point of
reference for determinations as to jarisdictional waters and provide clear and consistent guidance
as to the point hi streams at which nationwide permits may be utilized and as to the point at
which individual COB permits must be obtained,
* Conflict resolution procedures should be developed to resolve Intel-agency
disputes in a timely manner.
Federal and state agencies should establish effective procedures for the resolution of
inter-agency conflicts that arise during the administration of the programs that govern coil-
related activities. For esnmpie, such procedures would be an essential program element if the
COB utilizes state programmatic general permits to encourage state assumption of part of the
admhustratrw burdens of the CWA Section 404 permit program for coal-related activities.
12-1-1
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MTM/VF Draft PEIS Public Comment Compendium
A-49
Section A - State or Commonwealth Agencies
-------
Mr. Mm Forren
January 21, 2004
Pagel
• Procedures for rendering tinal deten^natlfHifi stamid be developed taM
accommodate state administration of elements of the Section 404 permit
program,
Under the CWA Section 404 permit program disagreements between the COB and the
Environmental Protection Agency me resolved by elevating the issue to the administrative heads
of the two agencies for consideration with final resolution pursuant to CWA Section 404(c).
Additional procedures far rendering final determinations should be developed to «ccoraniodate
state administration of elements of the program pursuant to state programmatic general permits.
la addition to the coimrients outlined above, EFPC has identified a number of technical
issues raised by the draft BJS that should be resolved prior to fiaalizataoa of the document
These technical issues are discussed in the Technical Attachment to this letter.
BPPC respectfully requests your carefitl consideration of the comiaei&s set forth above.
Sincerely,
Attachment
1-6
L&iam S. Wflctwr
Secretary
TECHNICAL ATTACHMENT
A, Economic impacts to coalfield communities
The socio-economic studies do not accurately address the effect the loss of coal-
mining jobs would have on the Appalachian coalfield communities or the effect
mining activities may have on the development of the tourism industry. The
Kentucky coal industry directly and indirectly employs over 56,000 and is a S3.15
billion industry (Kentucky Coal Council). Clearly, the coal industry has a dramatic
influence on individual coal counties. Miners in Martin County represent nearly 30%
of the workforce and over S4I million in wages, representing over 48% of the total
county wages with an additional $1.8 million of coal severance taxes returned to the
county. In Pike County, miners represented 15% of the workforce, with $182 million
paid in wages and $3.3 million returned in coal severance taxes.
B. The "No Action Alternative" is improperly characterized
The "No Action Alternative" should be revised to acknowledge the many changes
that have occurred in SMCRA and COE regulatory programs since the EIS was
started. Since 1998 the SMCRA, EPA and COE programs (particularly the SMCRA
and COE requirements) have been, and continue, to change. For example, in 2000 the
COE Louisville Regional office advised the Kentucky Department for Surface
Mining Reclamation and Enforcement (DSMRE) that it would develop regional
conditions for CWA 404 NWP 21 authorizations. Because of these COE conditions,
the DSMRE began developing or modifying a number of policies relative to: the
permitting and mitigation of stream impacts (RAM #134); the construction of durable
rock fills (RAM #135); inspection requirements for fills (Directive 36 - Division of
Field Services). In addition, the COE and the KY Division of Water (DOW) have
entered into an agreement that provides for an m-Lieu Fee Program for mitigation of
stream impact If these revisions are not made, "No Action Alternative" should be
modified t» describe the regulatory programs, policies and coordination processes, as
they existed in 1998.
C Rifmining/honil liahility period
On page ES-7 (fifth item), the COE requires post mitigation monitoring for a period
of five years. EPA has documented that "remining" of pre-SMCRA mined areas will
improve water quality in associated watersheds. OSM and Kentucky have enacted
statutes providing for a two-year liability period, in lieu of the normal five-year
period, for remined areas in order to encourage these beneficial activities. The
absolute five-year period required by the COE would constitute a disincentive to the
industry to undertake mining operations in these areas that would otherwise be left in
their present degraded condition.
I). Definition ofMountaintop Mining
The draft EIS, Page 1-1, extends beyond the true definition of "mountaintop mining".
The draft EIS defines the term "mountaintop" as the "summit of the mountain".
11-9-2
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1-6
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Page 1 of 5
MTM/VF Draft PE1S Public Comment Compendium
A-50
Section A - State or Commonwealth Agencies
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However, the draft EIS is applicable to all types of surface coal mining (mountaintop
removal, area, contour, etc.) in the steep terrain of the Appalachian coalfield. This
would effectively include mining activity from the valley floor to the summit.
("Surface coal mining occurring on mountaintops, ridges, and other steep slopes..,).
Thus the use of the term "mountaintop mining" in the draft EIS should be changed to
properly recognize the broader impacts associated with the actions proposed in the
draft EIS.
E. Does not recognize different fitt types
The draft EIS portrays all excess spoil fills as "valley fills". However, there are
several different types of fills, characterized by elevation in the hollow, location and
geometric configuration. The common types of fills are:
1. Valley fills - these structures are located in the valley floor and they cover or
are adjacent to intermittent or perennial streams and, therefore, have the
potential to constitute the greatest impact to the environment.
2. Hollow fills and head-of-hollow fills - these structures are located at mid and
upper elevations in the hollow and would primarily affect intermittent and
ephemeral stream reaches.
3, Side hill fills - these structures are small fills located in the ephemeral reaches
or sub-watersheds of intermittent streams.
4. Bench fills - these fills are confined to existing mine benches, left as a result of
mining prior to the enactment of SMCRA. They normally affect only
ephemeral portions of streams above the mine bench. These fills often result in
the elimination of pre-SMCRA Mghwalls, therefore, reducing threats to the
safety of the public and wildlife utilizing these areas.
Without the above characterization, the application of the conclusions of the draft EIS
in a broad manner may unnecessarily affect the utilization of some types of fills
which can provide a benefit to the public and the environment without the associated
impacts of the more invasive true "valley fills".
F, Recognizing the differences that exist from state to state
The draft EIS recommends GSM, EPA and COE establish a uniform federal mandate
regarding "mountaintop mining" and AOC requirements. This recommendation was
based primarily on mining methods and topographical conditions existing in the state
of West Virginia. However, mining methods and conditions often differ dramatically
in Kentucky.
In West Virginia, there are greater elevation differentials from valley floors to
uppermost coal seams, resulting in larger excess spoil disposal areas and much larger
plateaus with AOC variances. These conditions are infrequent in Kentucky,
Permitted areas in West Virginia tend to be larger, in that the rights to potential
mining areas are held by large mineral holding companies. In Kentucky, permits are
smaller due to many private landowner parcels.
1-6
13-3-2
1-6
G. Kentucky was net a signatory to the Settlement Agreement
The draft EIS discusses the Bragg 1998 Settlement on page 1-8. The four federal
agencies and the West Virginia DEP signed the MTM/VF settlement agreement.
However, Kentucky and other primacy states in the Appalachian coalfields were not
signatories to the settlement agreement and are not bound by its terms and conditions.
This draft EIS assumes that the federal agencies, via oversight, would compel other
states to comply as a condition of maintaining their regulatory programs. (Note Page
1-9 - *"to aid in the objective of increased scrutiny of permits.") The federal agencies
should not unilaterally implement a voluntary consent agreement in non-signatory
states.
H, Reduction infills — as a result of regulatory uncertainty instead of improved
coordination
The 2000-2G03 Chronology -states feat, "Following the permitting changes instituted
pursuant to the Bragg settlement agreement and other unrelated factors, the average
number of fills/year approved in title EIS study area declined,,,," The draft EIS failed
to recognize that the decline was due, in part, to the CQE's moratorium on issuing
404 or NWP 21 permits. This hesitancy resulted in a tremendous backlog of permit
applications in Corps* Huntington Regional office so fewer fill permits were
approved. The portrayal that the permitting changes instituted pursuant to the Bragg
settlement agreement has reduced the number of approved fills per year may fee
somewhat misleading.
/. Aquatic Studies - do not accurately represent Kentucky streams
Although Kentucky concurs with (and uses) the EPA aquatic sampling protocols
performed in West Virginia and Kentucky stream studies, Kentucky sampling
locations were inappropriate as they do not truly reflect "mined" watersheds and
reference streams. Data collected for the mined watersheds included impacts from
logging, agriculture, residences and public roads as the sampling locations were a
considerable distance from the mining operations. Sampling locations immediately
below (downstream) of a mined area would ideatily the true impacts of the mining
activity. Sampling sites for reference reach streams were located in extremely remote
and restricted areas IBT removed from other industrial/commercial and public impacts.
Similarly, sampling locations for an unmined area should be located at higher
elevations, upstream of any non-mining impacts. Therefore, the selection of these
streams does not represent typical unmined/mined watersheds in Eastern Kentucky.
The second stream study conducted targeted selected species in perennial streams
("permanent headwaters"). The majority of mining operations in Eastern Kentucky
arTect ephemeral portions of streams.
/, Appalachian forest community - studies do not represent Kentucky streams
Reforestation Initiatives
Page IH.F-12 of the draft EIS characterizes reclaimed mine lands in the study area as,
"... often limited in topographic relief, devoid of flowing water, and most commonly
1-6
13-2-4
6-4-2
7-6-4
Page 2 of5
Page 3 of 5
MTM/VF Draft PEIS Public Comment Compendium
A-51
Section A - State or Commonwealth Agencies
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dominated by erosion-controlling, herbaceous communities". This characterization
fails to recognize the efforts of Kentucky's Reforestation initiative (RAM # 124) and
the accompanying long-term benefits. The DSMRE started promoting reforestation as
the post mining land use of choice in 1997. In cooperation with the University of
Kentucky, a number of research areas have been developed that are providing great
insight to the potential forest communities that can be established in the eastern
Kentucky coalfields if reclamation practices are modified. Though the revegetation
standards don't compel the establishment of all the different native species in the
forest, the coat industry is required to satisfy diversity by establishing a number of
different tree, shrub and ground cover species. Further, the grading practices
advocated by this agency for reforestation will provide for invasion and natural
succession. The "Kentucky Reforestation Initiative" is highly regarded by other state
and federal surface raining programs, and is the standard by which other states model
their own reforestation programs.
K. Valley fill trends
The information contained in the valley fill trends indicates that a significant number
of fills have been approved for construction in the eastern Kentucky coalfields. We
believe that the data in this section is somewhat misleading. In part, this is due to the
confusion over the intermittent stream definition and similar contusion over the
stream buffer zone. As a result of limiting fills to upper stream reaches, a larger
number of smaller fills have resulted. OSM records reveal that most of the fills in
Kentucky are small. As of September 2GOO, 4421 fills have been permitted since
1985. These approved fills are located; 81% in watersheds < 75 acres; 14% in
watersheds 76-250 acres; 5% in watersheds > 250 acres.
JL Maximizing coat recovery is a regulatory requirement
In the list of technical study conclusions, page ES-4, last bullet, the statement that
"The extraction of coal reserves IB the study area eoiild be substantially impacted if
fills are restricted to small watersheds" should be changed to "would be substantially
impacted". The EIS Mountaintop Technical Team reviewed plans on 11 WV sites and
concluded the reduction of available fill volume resulted in a significant reduction in
the coal reserves recovered. The original plans for the 11 sites reviewed would have
produced 186 million tons of coal. By restricting the fills to the ephemeral streams,
the total recovery is 16.8 million tons. That would be a 90.9% reduction in mineable
coal. If the West Virginia study were extrapolated to the Appalachian coalfield as a
whole, similar reductions in resource recovery would be anticipated in eastern
Kentucky. However, federal and state requirements (SMCRA Section 102(i) and(k);
405 KAR 16:010 Section 2) mandate the conduct of mining operations so as to
maximize the utilization and conservation of coal reserves, while minimizing the
impact of those operations. Kentucky has taken steps to promote this issue through
our "Remitting Initiative'* (RAM $ 129). This program supports the recovery of
remaining coal reserves on old pre-SMCRA mine sites, and also provides for the
proper reclamation of these areas after remining.
7-6-4
M. Postmining lanil use i>ptiniis/laiiil(m'ner participation
Page IV.A-3, the last paragraph is somewhat misleading. The author describes the
condition of a mine site tiot having been reclaimed to a post mining land use of
forestry, and explains that it may take hundreds of years to revert to forestry. There
are many sites that are reclaimed to hay land/pasture in accordance with the desires of
the landowners. Landowners who manage their property as hay land and pasture
intentionally inhibit the natural succession and the development of a forest. The
report improperly implies that forest is the only desirable PMLU for reclaimed mine
land.
19-3-4
13-3-4
13-1-4
Page 4 of 5
Page 5 of 5
MTM/VF Draft PEIS Public Comment Compendium
A-52
Section A - State or Commonwealth Agencies
-------
Joanna Wilson, Virginia Department of Historic Resources
REC'D OCT2 3
W, Tayloe Mwrphy, Jr.
Seafetaty of Natural ^Resources
COMMONWEALTH of VIRGINIA
Department of Historic Resources
2801 Kensington Avenue, fficttmond, Virginia 28221
Ksthleen S. KUpatrlek
Director
October 20,2003
FKC (800 SW-S391
•EDO; PM) 887-2386
3Wff.dhf.stat8.va.ua
Mr. John Foiren
USEPA(3EA30)
1650 Arch Street
Philadelphia, PA 19103
Re: Draft Programmatic Environmental Impact Statement
DHR File #2003-0789
Dear Mr. Forren:
We have received materials for review of the above referenced project It is ow
understanding that the Aany Corps of Engineers, the US Environmental Pnotection Agency,
the Office of Surface Mining, the US Fish and Wildlife Service, and fte West Virginia
Department of Environmental Protection are preparing this document to assist in
niinirniang the adverse environmental effects of mountaintop mining in Appalachia.
As stated in Section DI.S-1, Section 106 of the National Historic Preservation Act of 1966,
as amended, requires federal agencies to consider the effects of their undertakings upon
historic and prehistoric resources. An undertaking is defined is "...any project, activity or
program funded in whole or in part under either (he direct or indirect jurisdiction of a
Federal agency" (36CFR800,16(y)). 36 CFR 800, the regulations under which Section 106
review is implemented, requires flint the review process be completed prior to issuance of
said funding, permits or licenses. We recommend that this action be initiated as early as
possible in the planning process so that our office may best assist you in identifying and
addressing potential impacts to these resources. We ask that, prior to inMatjng consultation
with our office, the Federal agency or it's designated contractor perform a search of our
archives to identify historic and prehistoric resources that may be affected by the project
For more information on this process please access our website at
htte//state.vipnet.org^te/review.
Regarding statements made in Section IV.G-2, coordination with the SHPO should be
approached ten a procedural standpoint, rather than from the assumption that consultation
will result in a determination of adverse effect and a single fonn of mitigation. It is the
' Mr. John Fatten
Mountaintop Mining Draft EIS
October 20,2003
Page 2
agency's responsibility to work with the SHPO to not only identity {he scope of the project
and any known eulttmi resources or resource potential within that scope, but to evaluate
alternatives that may assist in avoiding adverse affects to significant cultural resources
(36CFRX00.6). MWgation is the approach taken when other options have been determined
inferable.
We look forward to working with the above referenced agencies both in completion of this
useful document and in review of applicable pKgects in the future. If you have any questions
about the Section 106 review process or our comments, please call me at (804) 367-2323,
Ext 140.
Sincerely,
10-2-1
Joanna Wflson, Archaeologist
Office, of Review and Compliance
10-2-1
\\lBphcBter Regimt Ofik»
in?N.K
Rosaakc.VA 24613
Fax:
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Organizations
MTM/VF Draft PEIS Public Comment Compendium A-54 Section A - Organizations
-------
-------
Tina Aridas, Mountain Redbird Music
MOUNTAIN REDBIRD MUSIC
AUG 18 2003
SEED
If There Were Nothing To Uine
byT.Aridas/J.Reams,BMI &2002 Mountain R&jtiircl Music
718-965-8490 m/bgyamesreams.com
August 11,2003
Mr. John Forren
USB*A
1650 Arch Street
Philadelphia, PA 19130
Dear Mr. Forren:
i am writing to you to voice my strong belief that Mountaintop Removal should be
Mountaintop Rsmovaf Is destroying Bis "saline" of America. "The magnificent
Appalachian Mountains tat reach to the sky are among the world's oldest mountains,
and we are allowing them to be destroyed.
Along with the leveling of our majestic natural skyline, streams are being Destroyed and
drinking water is being contaminated. The blasting Is damaging the surrounding homes,
causing air pollution, destroying hardwood forests and wildlife habitats.
Mountaintop Removal defies the Executive Order regarding Environmental Justice for
tow-income people.
There is nothing good about it. No good comes of ft. Please stop it.
I am taking my 12-year-old son next week on a trip from our home in Brooklyn, New
York, to see the beautiful Appalachian Mountains. I am saddened by the thought that
the possibility exists that Men he is a parent he will not be able to do the same for his
children.
Youm truly,
TINA ARIDAS
SJ'MOUNTAIN REDBIRD MUSIC
5SS 9"' STREET * BROOKLYN, NY 11215
718-965-8490 * 017-814-3384 * TINA@JAME3REAMS.COM
WWW.JAME8REAMS.COM
1-9
10-7-2
They tunneled deep into the Mis of my county
The mules and 810 ponies went blind underground
The men and the boys got sick from the coal dust
A deadly affliction for pennies a pound
If God had not put coal in these mountains
If there had been nothing but rack, dirt and trees
My Daddy'd be walking these hills In file springtime
Not living a hard death of black lung disease
Now dynamite blasts off tho tops of these mountains
And big machines carve out the coai from the seams
They flatten the hills and fiil up the valleys
And turn into triad: pools God's pure mountain streams
If God had not put coal in these mountains
If He had blessed them with nothing to mine
The hilltops would offer their green domes to Heaven
Crowned with pink rosebay and blackberry vines
The strip mines that take off the tops of these mountains
Leave scars that won't heal and make God turn his eyes
They level the hilitops that once reached toward Heaven
A mighty green skyline now humble in size
As God looks down at coal mining counties
At what has been done to this blessed land
I wonder if He ever wishes He never
Put coal in these mountains and gave them to man
MTM/VF Draft PEIS Public Comment Compendium
A-55
Section A - Organizations
-------
James Baker, Sierra Club—Tennessee Chapter
SIERRA
CLUB
Tennessee Chapter
Sierra Club - Water Sentinels Program
P.O. Box 111094, Memphis, TN 38111
January 3,2004
Mr. John Forren
US. EPA (3EA30), 1650 Ardi Street
Philadelphia, PA 19103
RE: Draft Program malic tf nv iron men t;ii Impact Statement (DEIS) on Mountain Top Mi&ittg-
Valley Fill (MTM-VF) in the Appalachian region of the eastern United States.
Dear Mr. Forren,
Please accept these comments on behalf of the Water Sentinels Program of the Tennessee Chapter of the
Sieira Club.
I am writing these comments because of concerns fi>r the erwironmeatal degradation of the forests, the
ephciiierai and headwater steams, as well as the perennial streams that will be adversely affiected as a
result of MTM-VF activities in Kentucky, West Virginia, ViiginiU and Tennessee or throughout the
Appalachian'coal-fieltis. The experience so far in Tennessee with the Zeh Mountain Mine, just one
mountain top mine (here called "cross-ridge" mining, but I believe essentially the same as mounttUatop
removal) cannot be accomplished without devastating destruction of affected ephemeral and headwater
streams, as weB as the perennial streams.
These mountain top mtntng operations are massive projects that strip mmy acres of forest as a Brst siep.
The DEIS lists that over 380,000 acres of mature forest will be destroyed by MTM-VF over the next Km
years. This loss will destroy wildlife h^riiat aad fragment more habitats. These forests am among the
most biologically diverge in the world and are home to such wildlife as the Cerulean Warbler, a species
ttiat has been petitioned ft>r listing under the Endangered Species Act.
The DEIS recognizes the value of headwater streams to a river ecosystem. As stated by D&ppelt, &t al
1993, ". "Even where inaccessible to 8sh, these headwater streams provide high levels of waser quality
and quantity, sediment control nuaienls and wood debris for downstream reaches of the watershed.
Intermittent and ephemeral headwater streams therefore are often largely responsible Ibr maintaining die
quality of downstream riverine processes and habitat for considerable distances."
8-1-2
Yet, the following Mountain site ia Te&aessee, after only a few months of mining (at a tuise with a 10-year lijfe
span), total suspended solids readings in a major steam (which is home of flte federaRy llireatened fish
the Blackside Daee) have already been consistently mote lhau ten times the permit limits.
We can do better (nan strip the forests off of mountain pea&s and destroy and fragment wildlife habitat.
We can do better than rip the mountain apart to mine a small seam of coal, and filling die vaHeys with
overburden and destroying ephemeral and headwater streams ia the process. We can do better to not send
nKjd and silt pollution into larger streams aad destray fish and aquatic life. We cm do & lot hotter than
"restoring a mountain" to its origioat contours, remembering (hat it will take at least several human
lifetimes or longer for the forests to renew themselves. It is better for humans to use Boa-polluting energy
generation systems such as wind and solar power, which will spare wildlife habitat, and protect streams,
for oar families, for our fiimre.
8-1-2
Tennessee Chapter-Sierra Club
Tennessee Chapter-Sierra Club
MTM/VF Draft PEIS Public Comment Compendium
A-56
Section A - Organizations
-------
Sherman Bamford, Virginia Forest Watch
I submit that because fun her studies arc weeded, Shis Draft f aivlromncntsil Impact Staienieitt ts
incomplete, I suggest on behalf of the Water Sentinels Program of the Tennessee Chapter of the Sierra
Club, tJtoal the Draft Environmental Impact Statement must be re-done with additional studies on forest
Iiealth and water quality, 'Hie public must also he involved in these studies at all levels of DHLS
dewlopnient, Irv addition, until there is a final HIS, these mining practices need to cease atKl desist
immediately.
On behalf of the Water Seininel-s I'rogram of the Tennessee Chapter-Sierra Club, I appreciate the chance
to comment on this Draff ERviroMnerwai impact Statement,
Respectfully Submitted
James H. Baker - Project I-eader-Temiessee Water Sentinels
c. Mr. Gary Bowers - Tennessee (Chapter Conservation Chair
Mr. Don Richardson - Temessee Chapter Viee-Coaservstloii Chair
Mr. Axe! Uittge - TeiMiessec Ctapwr Water QuaBi}" Chair
Mr. Seem Dye -• Dir-eetor, Sierra Club Waier SeiiUfleSs Program
Mr. Charles A. Horn! - Chtckasaw Group Chair
I>i', Allan I .utnmus - Chickasaw Groap Conservation Chair
Hie
—- Forwarded by David Rider/R3/USEPA/US on 01/23/2004 (S:23 AM —-
9-2-2
comments
Shaman Bamford
< barnford® rev.nct>
cc:
01/21/200407:21
PM
To: R3Mountalntop@EPA
bamford® rev.net
Subjest: Mountaintop Removal DEIS
Sherman Bamford
Virginia Forest Watch
P.O. Box 3102
Roarioke,Va 240154102
BamfordSJ rev.net
January 21,2004
Mr. John Forren
U.S. EPA (3EA30)
1650 Arch Street Philadelphia, PA 19103
rnountalntop.r3@ epagov
The following are comments submitted on behalf of Virginia Forest Watch and
mjself r^ai'ding the DEIS for mountalntop removal, valley fills, dam water, habitat,
and associated ISSUES. Vlrgnla Forest Watch (VAFW) Is a grass-roots based coalition
of individuals and eivironmental groups vfcse mission is to maintain and restore the
natural ecology and biodiversity of woodlands across Virginia through education and
citizen participation. Many members of this coalition live, vwrk, and enjoy the natural
amenities of the western Virginia area, and face the devastating impacts of
mountalntop removal.
Mountalntop removal/valley fill significantly affects western Virgrta and many of our
neighboring states in the Appalachian chain: "The geographic focus of this study
involves approximately 12 million acres, encompassing most of eastern Kentucky,
southern West Vlrgnia, vsstem Virgnla. and scattered areas of eastern Tennessee.
The study area contains about 59,000 miles of streams. Some of the streams flow all
year, some flow part of the year, and some flow only briefly after a rainstorm or snow
melt. Most of the streams discussed in this EIS are considered headwater streams.
Headwater streams are generally important ecologically because they contain not only
9-2-2
MTM/VF Draft PEIS Public Comment Compendium
A-57
Section A - Organizations
-------
diverse invertebrate assemblages, but some unique aquatic species. Headwater
streams also provide organic energy that is critical to fish and other aquatic species
throughout an entire river.
Ecologically, the study area is valuable because of Its rich plant life and because it is a
suitable habitat for diverse populations of migratory songbirds, mammals, and
amphibians." (executive summary for the DEIS- underlining for emphasis). The
practice has serious, centuries-long impacts on watersheds, forests, arid wildlife habitat
that we are fighting to protect, and that our neighbors are fighting to protect in nearby
states. We believe that mountaintop removal operations/valley fills are one of the top
threats to ecosystems in the Appalachian Mountains,
We are concerned that given the inadequate range of alternatives in the draft E IS on
mountaintop removal. It appears likely that the EPA would not strengthen protection
of our mountains and valleys in Virginia and other states, but vwuld weaken those
protections. Adequate streamside buffers would not be retained, dumping of toxins
would be tolerated, drinking Vvater would be tainted, and many people would lose the
hunting and fishing areas they love. Please establish the strong measures that are
needed to retain our natural heritage for future generations.
We are concerned that:
- over 1293 miles of streams have been damaged or destroyed by mountaintop
removal
- direct impacts to streams would be greatly lessened by reducing the size of the valley
fills where mining wastes are dumped on top of streams
- the total of past, present and estimated future forest losses is 1.4 million acres
- forest losses In West Virginia have the potential of directly impacting as many as 244
vertebrate wildlife species, Mountaintop removal in other states could affect many
more species.
- even if hardwood forests can be reestablished in mined areas, which is unproven and
unlikely, there will be a drastically different ecosystem from pre-mining forest
conditions for generations, if not thousands of years
- without new limits on mountaintop removal, an additional 350 square miles of
mountains, streams, and forests will be flattened and destroyed by mountaintop
removal mining
9-2-2
1-5
1-10
1-5
- Streams are smothered by the millions of tons of waste rock and debris produced by
mountaintop removal. One hundred thousand acres of wildlife habitat have been
destroyed. And generations-old communities have been and continue to be forced to
move from their homes because of mountaintop removal mining,
- According to government reports from the U.S. Fish & Wildlife Service as well as
the E PA, mountaintop removal mining lias devastated bird, fish, and other wildlife
habitat in Appalachiaand obliterated more than 1,000 miles of streams In West
Virginia and K entucky. Virginia and Tennessee are threatened as well.
- In Virgnia, tributaries of the Clinch, Powell, and Holston Rivers are some of the
most diverse rivers in N orth America in tern's of mussel, fish, and otha~ aquatic
species diversity. According to a report commissioned by the American Fisheries
Society, 71.7% of all freshwater mussel taxa in the U.S. and Canada are" considered
endangered, threatened or of special concern." (Williams et al. Fisheries Vol. 18, No.
9) Mussels are highly sensitive to sedimaitatton and contaminants, flntro, to
mollusks section, Neves, Virginia's Endangered Species, Terwllliger, ed., Virginias
Endangered Species, McDonald and Woodward Publishing 1991), These and other
watersheds to the west and north (eg Pound River, Russell Fork, Levisa Fork, and
other watersheds) also offer spectacular mixed mesophytic forests. Whitewater and
canoeing recreation, black bear habitat, Indiana bat. habitat, cerulean warbler habitat.
other songbird habitat, salamander habitat, and interior forest habitat. Mountaintop
removal would have serious impacts on these watersheds and quality of life In them.
-Cerulean warblers, for example, are bearing the brunt of habitat destruction from
mountaintop removal and from other habitat destruction: the warblers' key breeding
area overlaps Appalachian coalfields, and their population has plummeted 70 percent
since 1966,
- Watersheds exist In Virginia are vulnerable to high water events. For example, in
July 2001, devastating flooding occurred In the heavily logged and roaded Big Stony
Creek watershed, killing one person and wreaking havoc on property owners.
Although mountaintop removal was not a factor in this watershed, mountaintop
removal has the potential to exacerbate impacts in other watersheds where the
practice occurs - whatever flooding and high water events occur.
- The immediate and long-term environmental effects of mountaintop removal
coal mining a'e severe and irreversible, according to recently released studies
accompanying a draft Environmental Impact Statement (BIS), Hundreds of miles of
streams have been buried, hundreds of square miles of forested mountains flattened.
5-6-2
8-1-2
17-1-2
10-2-2
MTM/VF Draft PEIS Public Comment Compendium
A-58
Section A - Organizations
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Lawrence Beckerle, West Virginia State Chapter of Quail Unlimited
and generations-old communities of coalfield residents have been forced from their
homes by this extremely destructive mining practice.
According to the draft Environmental Impact Statement (EIS) on rnountaintop
removal coal mining, the environmental effects of mountalntop removal are
widspread, devastating and permanent. Yet the draft E IS proposes no restrictions
on the size of valley' fills that bury streams, no limits on the number of acres of forest
that can be destroyed, no protections for Imperiled wildlife, and no safegjards for
the communities of people that depend on the region's natural resources for
themselves and future generations.
We do not understand why the "preferred alternative" for addressing the enormoiE
problems caused by rnountaintop removal coal mining is to waken existing
environmental protections. The draft EIS proposes streamlining the permitting
process, allowing mountalntop removal and associated valley fills to continue at an
accelerated rate The draft EIS alsosuggests doing away with a surface Tnining rule
that makes it illegal for mining activities to disturb areas within 100 feet of streams
unless it can be proven that streams will not be harmed, Tills "preferred alternative"
ignore the administration's own studies detailing the devastation caused by
mountalntop removal coal mining. Including.
You must consider alternatives that reduce the environmental impacts of
rnountaintop removal and then Implement measures to protect natural resources and
communities In Appalachla, such as restrictions on the size of valley fills to reduce the
destruction of streams, forests, wildlife and communities.
As the draft E IS would not lessen the devastation or significantly improve the
environmental protections from the impact of rnountaintop removal mining, the
agencies to withdraw this draft EIS and start all over again or at the very least, make
substantial changes before Issuing a final EIS.
Thank you for considering our comments.
Sincerely yours,
Sherman Bamford
Virginia Forest Watch
10-2-2
1-7
1-10
1-5
..... Forwarded by David Rider/ R3/ USE PA/ US on 01/23/2004 09:22 AM - .....
L avwence Beckerle
yahoo.com> cc:
Sut^ect: Comments on E IS
01/21/200404:34
PM
January 2 1,2004
Further comments on rnountaintop mining EIS
By Lawrence T. Beckerle
VALLEY FILLS
Mining companies are only allowed to use two desigis in West Virginia: All material
for chimney core valley fill must pass the slate durability test E nd dump valley f Ols
must be at least 80 parent durable rock through out trie entire valley fill .
It would make more sense to have such requirements for just the face of valley fills
where stability is a concern. Instead DE P requires that such requirements be met
through out the entire length of the valley fill By forcing coal companies to g3 to
such extremes, regulatory apncies have caused some remarkable conditions. The
valley fills are exceptionally well aerated, so oxidation of fill material proceeds at an
unusiMly rapid rate. The refease of iron, manganese and selenium is thus also quite
rapid. Conversely the reduction of these minerals is minimized, so the release of
these minerals Into discharge waters is much higher than what would otherwise
occur. It is thus a good example of tills fundamental tilth: When regulatory
agencies take things to extremes, more environmental problems are created.
ORGAN ICS
The regulatory emphasis on perennial grasses to meet the requirement for permanent
cova has resulted in a hostile environment for many native plants and animals. It
has also resulted In a decline of soil improving crop type plants. Reseeding annuals
provide permanent cover, (Example: crlrrson clover provides a permanent cover aid
acts as a good nurse crop for native plants. It allows warm season natives to cjickiy
overtake it, usually within 18 months from when the native seeds germinate,)
Perennial fa'bs provide permanent cover. E ach should be recognized by regulatory
agencies as providing permanent cover. In addition a pure stand of native blackberry
aid/w raspberry vines should be recognized as providing permanent cover.
itrogen Orprtcs Example: A farmer can apply treated sewage sludge to a
pasture field and * it's no big deal* . But if a coal operator wants to apply sevsage
sludge to a surface mine, the regulatory requirements are prohibitive. Such misguided
actions forfeit the chance to use organlcs to reduce the amount of oxygen that causes
13-3-1
19-3-1
MTM/VF Draft PEIS Public Comment Compendium
A-59
Section A - Organizations
-------
sulfur, iron, manganese and selenium to be released from mined areas. It also forfeits
a chance to feed sulfur-reducing bacteria, which help to reverse acid mine water
production and lead to a dealing of water by precipitating out various metals. So
even though my research in 1972 and the research of others have proven the
advantages of using treated sludge on surface mines, the regjiatory extremes make it
impractical for coal operators to productively use this kind of material.
Organics Deficient In Nitrogen Example: "Sawdust* Has ten shown to reduce
surface runoff rates, increase the productivity of the land, and to reduce add mine
drainage. (Reports also suggest this includes a lowering of selenium.) Decay of
sawdust uses as much oxygen as if one were to use it for fuel. Plus the other
enhancements of soil life absorb even more oxygen. However regulatory
requirements for use of permanent grass for permanent cover make "sawdust* type
materials unattractive for coal operators, Typically sawdust is applied through the
summer months. Early summer applications are planted to cowpeas, soybeans or
other largj seeded legume. Before 50 percent leaf drop of the cowpeas or soybeans,
crimson clover (and perhaps some cereal rye) plus a perennial clover (white Dutch or
red clover) are sown. In about February there is another sowing of either white
Dutch or red dover (called a" frost seeding*, because freezing and thawing works the
seed into the ground.) White these plantings we usually quite lush, it is 18 months to
two years from the first seeding before perennial jyass can be grown. Thus the fact
that regulatory agencies only recognize permanent cover with the establishment of
perainial grass puts a bonding release penalty against those v>ho establish other
forms of perennial cover and this virtually prohibits the use of organics such as
sawdiBi to make topsail.
NATIVE PLANTS AND ANIMALS
E xcessive competition prevents the establishment of native plants. While there has
been attention in recent years about how the use of overly competitive grasses
prevents the establishment of trees, there has been little attention about how
excessive competition prevents the establishment of naive forbs and shrubs.
In prior comments 1 detailed how the regulatory rule preferences results in mined
lands that are excessively dry, and f t irther prevent the establishment of vernal pools
and ephemeral pools so necessary to the treedir^ of several salamanders, toads,
frogs, and crayfish. This also prevents the establlshmait of plants like Nutrush
(Scieria trigtomerata). Nutrush produces a seed (wth the appearance of polished
white ceramic) that is relished by Bobwhile quail and otha seed eating birds.
A few examples of native plants that are put at a severe disadvantage by current rules:
Partridge pea is a reseeding native annual that is quite effective at revegetating
disturbed sites when competition is limited. Tills native and others lite it are seldom
seen on strip mines reclaimed since 1977,
19-3-1
Blackberry thickets where old canes cover the ground are not found on rained land
reclaimed since 1977. iSuch thickets are necessary for bobwfvite quail to find
adequate protection from house cats and oilier nighttime predators.)
Bayberry, Carolina bush pea, orange puccoon, prairie acacia. Quercus illicifdia,
several of the native bushctovers will spread by root sprouts and/or otherwise form
groundcovers into open areas v.here grass competition is absent.
All these plants are important to the winter survival of animate with needs similar to
Bobwhite quail. Normally 60 to 80 percent of wild populations of Bobwhite perish
each winter. So the absence of these plants frequently leads to the extinction of
bobwhite quail populations. Bobwhite quail were present in all counties of West
Virginia before 1977 (and frequently found on old surface mines). After 27 years of
SMCRA Bobwhtte quail are absent from about 90 percent of West Virginia (and are
only found on a couple of these surface mines where exceptional efforts have been
made to support quail). Other factors have been involved, but extremist
interpretations of SMCRA have also been a major contributor to the decline of
bobwhite quail and other birds that have similar habitat requirements,
Instead of being an example what to do to establish native plants (and what to do
help restore populations of native animals that.
-------
Teri Blanton, Kentuckians for the Commonwealth
Nurse cropping: a nurse crop modifies the soil surface enrn^i that more tender
seedlings are able to establish in a soil surface environment that otherwise would be
too harsh for them. Crimson clover is an ideal nurse crop, since it begins to decline
in May as soil temperatures begin to reach 70 degrees (the temperature A which most
native warm season plants germinate.)
Relay cropping Sometimes a succession of plants is required to make the soil
suitable For some perennials, for example: One niif^t sow crimson clover, doveweed
{Croton spp.) and partridge pea in August to early fall of 2004. (The Crimson clover
would germinate usually within a week. Most of the partridge pea would germinate in
March 2005 and most of the dovevwed would germinate in May 2005.) Mealy bean,
milk pea, and pink bean could be sown into the crimson clover stand in early May
2005. Some of those seeds would germinate in May and some would not germinate
until May 2006.) If soil nitrogen had been severely limiting then one would not plant
American beakgrain, prairie dropseed, sacatoa smooth or circular paspalum g-ass
until May 2006 {Many of these seeds would jproinate Immediately. Some would not
germinate until May 2007. If any crimson clover ware left, it would generally cease to
be part of the stand by the end of summer 2006.) Permanent cover is maintained
through this succession of plants, but the regulatory agencies currently penalize
anyone using such a plant establishment method. Yet this method is most
advantages to Bobwhite quail and to establishing many native plants. When will the
regulatory agencies recognize the need for this and other wildlife friendly plant
establishment methods?
Fences: As an educational tool I would like to see a fence built along the contour
that more or less separates at least some of the areas with slopes less than 25 % slope
from those with slopes greater than 25%. Openings to the sire fence should not be
less than 2 inches wide by 2.5 inches tall to permit the passage of Bobwhie quail and
allow them to distance themselves from p'edators too large to pass through the wire.
19-3-1
Kentuckians For The Commonwealth
P.O. Box 1450
John FOITCU
O.S,HPA(3BS30)
1650 Arch Street
Philadelphia, PA 19103
Dear Mr. Foment
London, Kentucky 40743
800-878-2161
January 3,2004
REC'D JA«09;
On behalf of KeateeWwis Perltie ComnoowealA I am writing to express our deep opposition to the
recommendations contained In tb= draft E1S on momittintop mining.
KJ-TC is a grassroots social justice organization with mom than 2,000 members statewide. For more than 22
years we have worked to build citizen leadership and organize low-iaconie communities to improve the
tywtUy of lib to Keatadgf. Onr Mitory is Mated la the waggle fer justice la the Appalachian tsMtfMdk. b
the erfy 1980J, KFTC Initiated, fought for and waft m uamitied mineral* IMS so ft* cotpoartkMi who hold
most of the wealth in this region must contribute to the development of local conimuni ties. We fought for
and won a constitutional amendment that prohibits coal companies from strip mining against the wishes of
landowners. Together with our allies, we haw worked to strengthen and protect state and federal tows
governing water gasfiiy aad coal snlidBg. Aid we htve worked with thousands of ladividuals and scores of
communities over the past two decades to protect tomes and the environment, hold companies accountable,
and win meaningful enforcement of mining laws,
Personally and organizationally, we oppose mountain top removal mining and valley Site. A common sense
reading of tte CSean Water Aet and Surface Mining Laws act only allows tat mqutres the government to
prohibit the use of valley fills and mountaintop removal. These practices ate i nimoral and illegal and should
be stopped.
Let me be very dor why we oppose the conclnsions reached lit the HS document:
1. The rccommendaiiona area sh;un and a shame. The) hetray the orifiinal purpose of the E1S.
The stated purpose of this document was:
To gmluate options for imprevlag agency programs wafer tlte Clean Water
4« (CWA), Sutfme MUug Control ami SeelamaHon Act (SMCRA) and
Endangered Spectes Aet (XSA) tltttt wffl swarfew to refactef the tutvmt
fm&Mftt&ffitop rem&v®l operations &®d exeess spoil
The EIS report was originally requested by coalfield citizens and environmental supporters in order to
MeoUfy ways to better p««e« oar l*nd, wWw aid people. Indeed, tte studies oMtaiBed wkhia tab 5,000-
page document show that the damage caused by mountaintop removal mining is more widespread and severe
than previously known.
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Yet the report was hijacked by the coal industry and its cronies within the Bash administration. Rather than
addressing the serious harm caused by motintaintop removal mining, its recommendations focus on issues of
"government efficiency" and the need to "provide a basis for mote predictable business and rate* planning
decisions." Based on an internal memo from fte office of Deputy Secretary of the Interior (and a former
coal industry lobbyist), it Is clear that the Bush Administration seized this opportunity to aid the coal industry
at the expense of locM comrmmities and the environment The draft report is loaded with ways to gat existing
water protections and make it easier for the industry to continue with its full-scale assault on oar
cottatui&iries, environment, and hope for the future.
2. The report ignores its own findings.
KPTC welcomes the sdeatiflc studies flint docameat flie widespread and Irreversible damage the coal
industry is doing to our state and region. We're teowm and experienced these problems to Kentucky for too
long. Motintafatop removal and valley fills bury aad destroy important headwater streams, destroy
biologically rich forest «nd stream eeosysjans, damage driaMng water sources ttted by millions of people,
cause frequent and severe flooding, and wreck the qtialty of life to mountain communities.
Yet the three alternatives proposed would do nothing to end or ittiflfaBiae this destruction. All three so-ealied
alternatives will increase the ease and rate of destraeBoa and make MTR «n even more attractive opBoa tor
to coal industry.
Below are a few examples of the environmental damage documented, and then Ignored, within the BIS.
> 724 miles of streams across the Central Appalachian region were teried by vtBey fills between 1985 and
2001 (many more miles have been psBBtted but not yet bnrted);
> an additional 1,200 miles of steams nave already been impcted by valley fills;
> seleakai was found only to those coalfield streams Wow viiey fill* (ielemium is a metalloid tfttt,
according to the EPA, "can be M^ly tosle to aquatic life even at relatively low concentrations'*};
> aquatic life forms downstream of valley fills are being harmed or killed;
> without additional restrictions, a total of 2,200 square miles of Appalachian forests (6.8 percent) would
be eliminated by 2012 by large-scale mining operations (this is an area that would encompass Fioyd,
Knott, Leslie, Letcher, Pterry and most of Hartaa counties in eastern Kentucky; or Hopkins, Daviess,
Union, Muhlenberg aad Webster eouatle* to western Kentucky);
> without additional environmental restrictions, aiountaintop removal mining will destroy an additional
600 square miles of land and 1000 miles of streams to Ae next decade.
the coal industry to bury Appalachian streams under valley flHi — in other worts aay proposal that
wo-ihi reqnu-c the coal industry to obey the law.
The BIS fails to give menningful consideration to any options that would reduce the destruction to water,
land, public welfare and the quality of life in local comaninittes. Some worthy ideas that received no
consideration were:
« Enforcing the Clean Water Act, which prohibit the damping of waste in streams.
• Restricting valley filb to certain rypes of streams.
« Restricting the siw of allowable valley fills front mate than 250 acres to just 35 acres.
• Setting m upper limit on tie total number or percentage of stretnis allowed to be impacted.
« Labeling the streams in the repen m "high vitae,™ which vroold tack-in other parts of the Clean Water
Act that could restrict the use of vtHey fills.
" Using the anti-depadatiott rules of the Clean Water Act to prohibit the use of valley fills,
2
1-5
1-9
1-7
The report dismisses mosi of these options out-of-hand, claiming then is not enough "science" to support
them. It is hard to imagine what additional scientific evidence is needed to demonstrate that burying
hundreds of miles of Appalachian headwater streams, eliminating thousands of square miles of forests, and
leveling the oldest mountains in the world causes irreparable harm and should be stopped.
And if the science is not enough, just open your eyes and use your common sen se.
The report also rejects fixe limits on valley fills because the "economic study results were determined to
have limitations and were not suited for establishing alternatives." In truth, the government's economic
studies showed that even the strictest size limit would have a minimal economic impact on the economy and
jobs.
We oppose all three of the so-called alternatives contained trtfe the EIS report.
KFTC opposes Alternatives #1,2 or 3 contained within die BS report None of these options will protect our
w atet. None of these options will protect our communities. Nome of these options will shape a better future.
for Kentucky or the region. They are a stem mil a shame. They do nothing to address the -real problems of
our region. Rather, they will only make it easier for the coal industry to seek and obtain permits to continue
with the towl destruction of onr land, waw and people.
It is notable that all three alternatives, even the am called "status quo" would weaken existing water
protections. All three options call for the elunination of fte stream buffer zone rule that has been in existence
for 25 yeara, TMs role, known as SMCRA reflation 30 CHI 816.57, prohibits raining activity witMn 100
feet of intermittent and perennial streams, Using fte EIS process to eliminate mis protection is cynical and
oatrageons behavior, KPTC believes this rale shoaM be ttrfcay enforced for valley fills and In alt other
1-7
1-5
1-10
KFTC also strongly oppoess the report's support for * role change enseted one year ago by the Bush
administration which etaa'ged tte definftfon of "fill" in order to allow the Corps of Bngtaasra to grant
permits tot valley fills under the Cteau Watw Act We believe thai vaBey fills created in the process of
mining for the disposal of rMaiiig waste are a dear violtlioii of the CWA.
13-3-2
to eonchaiott, we believe ttatt the Draft EIS document is a shameful gift to the coal industry and a betrayal of
our Appalachian communities. I urge toe government to reject the three alternatives offered in this document
and go back to tie drawing board. Give meaningful consideration to options that would protect our water,
forests and land from further destruction. Support the meaningful enforcement of existing laws. Reject
efforts to shred and weaken water proteetfons. Have the courage to do what is right, and in the process help
us create a better future in Kentucky aad throughout the Appalachian region.
Sincerely,
1-5
Teri Blanton
Chairperson
Kentuckians For The Common wealth
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-— Forwarded by David Rider/RMJSBIWUS on 01/08/2004 11:30 AM -
KITX"
To: R3 Motmtatalop^EPA
cc:
01/WW004 01:05 Subject: MTR BIS comments
I'M
Kcmuckians Tot The Common wealth
P.O. Box 1450
London, Kentucky 40743
606-878-2161
January 3,2004
.folin I;oiren
U.S. BPA (3tiS30)
J 650 Arch Street
Philadelphia, PA 19103
Dear Mr. Forren:
On behalf of Kenutekians For The Common wealth, I am writing lo express
our deep opposition to the recommendations contained in the draft BIS on
mouniaintop mining.
KIT!1 is. a grassroots social justice organi/ation with more than 2,000
members statewide. For more than 22 years we have worked to build
citben leadership and organixe low-income communities to improve !he
quality of hit* in Kentucky. Our history is ranted in the struggle for
justice in the Appalachian coalfields. In the early 1980s. Ki-TC
initiated, fought for and won an umnined minerals tax so that
corporations who hold most of the wealth In Shis region must contribute
lo the development of local communities. We fought for and won a
constituHona! amendment that prohibits co:tl companies from strip mining
agutast the wishes of landowners. Together with ou? allies, we have
worked to strengthen and protect state and federal laws governing water
quality ami coal mining. And we have worked with thousands of
individuals and scores of communities over the past two decades to
protect homes and the environment. Hold companies accountable, and win
meaningful enforcement of mining lawn.
Personally and ofgant/atiortally, we oppose mountain top removal mining
and valley fills, A common sense reading of the (-lean Water Act and
Surface Kittling I AWS not only allows hut requires thu government to
prohibit the use of valley fills and mounlaintnp removal. These
practices are immoral and illegal and should be slopped.
Ijjt me he very clear why we oppose the conclusions reached in Hie F.IS
document:
1. The recommendations are a sham and a shame. They betray the original
purpose of the BIS.
The stated purpose <*f this document was:
"To evaluate options for improving agency programs under the Clean
Water Aet (CWA3. Surface Mining Control and Reclamation Act (SMCKA) a
Endangered Species Aet (HSAS that will contribute to reducing the
adverse environmental impacts of ntountaintop removal operations and
excess spoil valley fills in Appalachia."
The HIS report was originally reque&le4 tiy coalfield citizens and
environmental supporters in order to identify ways lo better protect our
land, water and people. Indeed, the studies contained within this
5,000-page document show that the damage caused by mounlaintop removal
mining is more widespread and severe than previously known.
Yet the report was hijacked by the coal industry and its cronies within
the Bush administration. Rather than addressing the serious harm caused
by mountain top removal mining, its recommendations focus OH issues of
"government efficiency" and the need to "provide a basis for more
predictably business, and mine panning decisions." Based on an mienial
memo from IRC office of l>epuiy Secretary of the Interior (and a former
coal industry lobbyist), it is clear that the Bush Administration sei/ed
this opportunity to aid the coal industry at the expense of local
communities aod the environment The draft report is loaded with ways to
gut existing water protections and make it easier for the industry to
continue with its full-scale assault on our communities, environment.
and hope for the future
2. TN' report ignores its own findings.
Kl'TC welcomes the scientific studies that document the widespread and
irreversible damage the coal industry is doing lo our stale and region.
We've known and experienced these problems in Kentucky for too long.
Mountaintop removal and valley tills bury and destroy important
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headwater streams, destroy biologically rich forest artd stream
ecosystems, damage drinking water sources used by millions of people,
cause frequent add severe flooding, and wreck the quality of life in
mountain communities.
Yet the. three alternatives proposed would do nothing to end or minimize
this destruction. All three so-culled alternatives will increase the
ease and rate of destruction and make MTR an even more attractive option
for the coal industry.
Below are a few examples of the environmental damage documented, and
then ignored, within the HIS.
y 724 miles of streams across the Central Appalachian region were buried
hy valley fills between 1985 and 2001 (many more miles have been
permitted hut not yet buried);
y an additional 1,200 miles of streams have already been impacted by
valley fills;
y selenium was found only in those coalfield streams below valley fills
(selenium is a metalloid that, according to the liPA. "can be highly
toxic lo aquatic life even at relatively low concentrations"):
y aquatic life forms downstream of valley fills are being harmed or
killed:
y without additional restrictions, a total of 2,200 square miles of
Appalachian forests (6.K percent) would be eliminated by 2012 by
large-scale mining operations {this is an area that would encompass
Floyd, Knott, I .esiie. 1 £tcher. Perry and most of Harlan counties in
eastern Kentucky; or Hopkins, Daviess, Union. Muhleitberg and Webster
counties in western Kentucky):
y without additional environmental restrictions, mountaintop removal
mining will destroy an additional 600 square mites of land and 1000
mites of streams in the next decade.
3. The report mentions, and then immediately rejects, any proposals that
would restrict the ability of the cod industry to bury Appalachian
streams under valley fills
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Jason Bostic, Joint Coal Industries
enacted one year ago by ihe Bush administration which changed ihc
definition of "1111" in order to allow the Corps of Engineers to gram
permits for valley fills under the Clean Water Act. We believe that
valley fills crested in the process of mining lor the disposal of mining
waste are a clear violation of the CWA.
In conclusion, we believe that the Draft KIS document is a shameful gift
to the coal industry and i betrayal of our Appalachian communities. I
urge the government to reject the Uiree alternatives offered in this
document and go back to the drawing board. Give meaningful consideration
to options that would protect our water, forests and land from further
destruction. Support the meaningful enforcement of existing lows. Reject
efforts to shred and weaken water protections. Have the courage to do
what is right, and in the process help us create a better future in
Kentucky and throughout the Appalachian region.
Sincerely,
Teri Blanton
Chairperson
Kentuekiam For The Commonwealth
13-3-2
1-5
January 6. 2004
Mr. John Forren
U.S. EPA(3EA30)
1650 Arch Street
Philadelphia, PA 19103
RE: Joint Coal Industry Cammeats on the Monn«aint«p Mining/Valley FIB
Draft Environmental impact Statement
Dear Mr, Forren:
Coal Operators and Associates, the Kentucky Coal Association, the
National Mining Association . the Ohio Coal Association, and the West Virginia
Coal Association appreciate the opportunity to share our views on this Draft
Environmental Impact Statement (EIS) on Mountaintop Mining and Valley Fills
(hereinafter, "MTlyf") in Central Appalactrii. This issue is extremely important to
our members because m»ny of them utilize coal extraction methods that require
the construction of head of hollow fills trtd valley fills in their coal mining
operations in the study area. As recogiized by the EIS, MTM operations are
generally the most economical and efficient forms of surface mining in this area.
EIS 1111- 1.
Using valley and head of hollow fills in this region is absolutely necessary,
because when mining is conducted in steep slope areas such as Appalaehia, the
volume of the spoil material is si|ptifieatttly greater than the volume of the
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overburden excavated from its original geological location,' This is true whether
the mining methods are mountaintop mining, contour mining, or even, in many
instances, when creating the necessary surface area to begin and support an
underground mine. Consequently, the excess spoil must be placed in valley and
head of hollow fills. MTM is » major factor itt coal production in this area, and
accounts for y, to 1/3 of Appalachian coal production, and about 95% of the
surface mining in West Virginia. EIS III 1-23; 111 N-l. A brief description of the
signatory trade associations to these comments follows.
Coal Operators & Associates, tac. (COA) is a trade association that
represents nearly 300 member companies involved in the ownership, leasing.
mining, transportation and preparation of coal in Eastern Kentucky; or, supply
goods and/or services to the coal mining industry. Our members mine by both
surface and underground mining methods and represent the majority of coal mined
in Eastern Kentucky.
The Kentucky Coa! Association (KCA) is a non-profit corporation whose
membership includes targe and small, surface and underground coal operators in
both the eastern and western Kentucky coal fields. KCA's membership also
! The whinis of spoil is greater than the overburden thai Is excavated because iite material swells b> as
inucli as 25% when it is removed. i'« Bragg V- Robtrual. 248 F.34 275. 286 (4* Or, 2001). oat denied
122 S.CI. 930 (2002): See aha Illinois ,%»* Project, lot:, v. Hakl. 884 F. 2d 1216, 1292 (7* Or.
1988X recognising ihtit overburden from mining may swell in the range of 15-40% depending
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consultants, engineering firms, mining equipment manufacturers, coal
transportation companies, coal consumers and land and mineral holding
companies. WVCA's primary goal is promoting the continued viability of the
West Virginia coal industry by supporting and facilitating environmentally
responsible coal removal and processing through reasonable, equitable, and
achievable State and Federal policy and regulation.
Our comments are divided into several sections that will convey our views.
First, we will provide some background information on the statutory and
regulatory framework For mining in general and MTM in particular, under which
our members operate. Second, we provide extensive general comments on the
EIS. This section explains how the EIS shows that MTM has minimal individual
and cumulative effects on the environment, highlights some of the significant
positive aspects of MTM, and discusses its programmatic nature. The document
will demonstrate that, based on the evidence in me EIS record, the best alternative
to select would be Alternative HI, including an explanation of why Nationwide
Permits (NWP) under Clean Water Act (CWA) Section 404 are appropriate in
most cases for coal mining operations including moumaintop mining, and why
individual permits are normally not appropriate in most MTM situations. Nest,
our comments analyze all 17 action items contained in the EIS, Third, we provide
a section of specific comments on aquatic, terrestrial, and community impacts of
MTM.
1-4
I. Background
a. Mining in General, and MTM in Particular, is Very Heavily and
Closely Regulated, but is also Expressly Sanctioned by Federal
Law
Mining is one of the most heavily regulated industries in American history.
There are several statutes that specifically regulate mining, and many other general
laws that are applicable to mining operations. Just some of the most significant
federal laws include the Surface Mining Control and Reclamation Act (SMCRA),
the Clean Water Act (CWA), the Clean Air Act (CAA), me Endangered Species
Act (ESA), and the Mine Safety and Health Act. In addition to all of these laws,
and the thousands of pages of Federal rules in the Code of Federal Regulations
pursuant to these laws that are designed to protect me environment and the public,
there are hundreds of State laws that regulate mining.
There are also several prowsions in these laws and regulations that apply
even tougher standards for some of the activities that take place at MTM
operations. Although the law sets tough standards for operators mining in these
areas, the indisputable logical corollary to this is that Congress has specifically
sanctioned MTM by enacting these provisions. Some of these provisions include
SMCRA sections 31S(bX3)(requiring restoration of approximate original contour);
515(bX22)(gdveming excess spoil placement); and 515{c){2) and (3XexpressIy
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discussing MTM techniques). See also Office of Surface Mining (OSM)
regulations at 30 C.F.R. 785.14 (MTM); 30 C.F.R. Part 824 (MTM); 30 C.F.R. §
780.29 (stream channel diversions); 30 C.F.R. 816.57 (Stream Buffer Zone Rule);
30 C.F.R. § 816,72 (Disposal of Excess Spoil in Valley Fills); 30 C.F.R. §
816.151(d)(5)( relocation of natural stream channels). The E1S itself recognizes
that "Congress acknowledged the necessity of valley fill construction in streams
[in SMCRA § 515(b)(22)]." E1S II D-2.
OSM regulations also recognize the necessity of mining in or near streams.
30 C.F.R, § 816.43 expressly allows and regulates the diversion of streams, MTM
and mining in or near streams is presumed necessary and valid by Congress and
the regulatory agencies, such as the OSM, so long as adverse effects to oflfsite
areas are minimized. There are additional protections in the law for areas that are
designated as unsuitable for mining. In extraordinary circumstances, States may
designate specific areas in § 522(a)-(d) of SMCRA, if the evidence iri the record
supports such findings by the State government. See also 30 C.F.R. §§ 761-764.
Given all of these statutory and regulatory requirements that must be met,
mining operations produce volumes of analyses and plans before they are issued a
permit to build a mine. During this process, the public is provided with numerous
opportunities to provide input and comment on the permit application, and may
object to the regulatory authority. 30 U.S.C. §§ 1263-1264. Even after the permit
is issued, Federal and State laws provide for regular monthly and quarterly
inspections of surface coal mining operations to ensure their compliance with
applicable laws, regulations, mine plans, and their permit conditions. 30 C.F.R,
Part 842; 30 C.F.R.f 840.11. In addition, mines are subject to inspection
following any citizen complaint giving rise to a concern that a violation of
SMCRA or regulations has occurred, 30 C.F.R. § 842.12.
The CWA, like SMCRA, is also crystal dear that valley fill construction
for excess spoil placement is permissible under Federal and State law.
Environmental groups have repeatedly tried and failed to convince appellate courts
that MTM is somehow illegal based on misguided interpretations of the CWA,
SMCRA, and their implementing regulations. However, the 4* Circuit Court of
Appeals has clearly held that such a view of the law is wrong because: (1) EPA's
and COE's interpretation of "fill material," which expressly included coal mining
overimrden placement in waters of the U.S. (including the streams at issue in the
EIS), was a reasonable interpretation of the CWA; and (2) SMCRA anticipates
that excess spoil from MTM "could and would" be placed in waters of the U.S.2
As the EIS correctly notes, both the CV/A and SMCRA recognize that
incursions and disturbances of streams are frequently unavoidable. EIS II C-30.
Congress, the administrative agencies, and the courts all recognize that Federal
5-7-1
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law anticipates that excess spoil will be placed in streams. The real question i*
not whether MTM or excess spoil placement is permissible, but rather how to
regulate it. Therefore, the question is not what happens to the stream segment
that is filled, but whether the downstream impacts or impacts to areas outside the
permit area are so significant that they caimot be avoided or satisfactorily
mitigated. With this background and this issue in mind, we next turn to an
examination of MTM, how it has been analyzed over the years, and what this most
recent E1S teaches us about MTM.
b. MTM/VFs have been Studied for Decades, and those Studies
Have Consistently Demonstrated that they Are Acceptable
Mining Methods
As demonstrated above. Congress was well aware of MTM/VF techniques
when it enacted the SMCRA legislation, and recognized the legitimacy of these
practices through Federal law. MTM/VF practices have been extensively studied
and analyzed since that time as well. For example, in 1979, EPA authored a report
concluding that MTM is actually environmentally desirable, »nd that head of
hollow fills can reduce adverse environmental impacts, EPA concluded3 that:
: Ste Ktmtiickitimfof llit Cooaamireallli v. Rlmhtfgli, 3 ] 7 F. 3d 425. 443 (4* Cir 2003).
3 Knviroiwiviital Assessment of Surface Mining Meth&ih: Hvaii-of-Httlhw Fill and
MviitilaiMop Removal, /nteragency Energy^'FjfvirowtieM R<$D Program Reptjrt
(hereinafter: "EPA EA stfSw/ace MiHingMe/hods"), U.S. EPA (July 1979) p. 6.
5-7-3
(1) Mountaintap removal mining is an environmentally desirable surface
mining technique in the steep sloped terrain of southwestern West Virginia
and eastern Kentucky when conducted in compliance with existing
reclamation criteria; and
(2) Head-of-holkw fin reclamation can reduce environmental impacts
occasionally associated with other reclamation practices such as contour
regrading in steep terrain or dowiislope spoil casting. Specifically, these
improvements are realized in erosion and sedimentation control, spoil
stabilization, revegetatton success and land use potential.
in 1989, the Department of Interior prepared a report to Congress on
mountaintop mining. This report found that OSM and other Federal agencies are
committed to studying the environmental impacts of MTM thoroughly. One of the
key studies4 attached to the Congressional report, the WV Governor's Report,
found that "numerous regulatory programs are in place to assure protection of
State water quality," and also found ".. .no significant evidence of widespread or
routine violations of State and Federal water quality standards..." See WV
Governor's Report at ENV9-10. It concluded that, "On balance...the positive
5-5-5
* "State tfffr'etf! Irgifiw Omt'mtr I* ?'&*£ Force (ml Iwntaintnp Mining nntl Rnkrted Practices,"
(December l998)(herein»«er"WV Governor's Report"),
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impacts of Mountaintop removal mining can outweigh the negative impacts." Set.'
Id. at People-7.
The current EIS contains an additional 30 studies on MTM/VF, and
continues the trend of careful and continuous study, evaluation, and improvement
of MTM/VF practices. A summary and analysis of the contents of this latest
comprehensive analysis of MTM/VF is explained below.
II. General Comments on the EIS
a. The EIS Demonstrates that in Most Areas of Concern, MTM
Dues Not Raise Significant Issues
Inspector Gregory:
"Is there any other point to which you would wish to draw my attontion?"
Holmes: "To the curious incident of the dog in the night-time."
"The dog did nothing in the night-time."
'That was the curious incident," remarked Sherlock Holmes.
From "The Adventure of Silver Blaze" by Arthur Cowan Doyle
i. Overall Impacts of MTM
5-5-5
The EIS commissioned 30 comprehensive scientific studies over a span of
four years to determine the impact of MTM on the study area, which includes
parts of four different States in Appalachia. Based on this information, it is clear
that the overall impact of MTM on the study area is not significantly adverse. For
example, studies found that despite the size of these MTM operations, about 98%
of the streams in the study are not directly impacted by MTM. EIS It! 0-2. Only
slightly more than 1% of streams are actually filled, and many of those "streams '*
consist of areas that either flow only intermittently for part of the year, or are dry
channels that contain water only immediately after a rainstorm6. The EIS
acknowledges thtt its estimates of potential future stream losses are overstated
because they do not take into account avoidance, minimization, and mitigation
already required by the 2002 Nationwide Permit (NWP) 21. EISIVB-3. Such
estimates are probably even more inflated, given tfa»t changes to the status quo
made by any of the three Alternatives would improve environmental protection
and better coordinate the CWA and SMCRA. BIS II B-l. The studies also found
that even when aggregating all MTM activity over the past decide, about 97% of
the study area was undisturbed by MTM. EIS 11C-62. Finally, the evidence
shows tliat MTM has been decreasing, both in numbers and in average size in
recent years. EISHC-5.
5 Regulatory agencies, sach as the COE, define "streams" mach more broadly than the general public
does. Msre common definitions of tlse term say it includes only "A body ofrttwtfng water;" or "a steady
currant of a fluid." (enipMsis added) foe American Merita^: DictioBiWy, T"1 Edition.
6 IH Kentucky and Virginia, many of the nils are not valley fills but rmher head of hollow fills impacting
only stretches of ephemeral streams.
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In addition to the fact that these overall impacts are minimal, one must
recognize that".. .surface raining is a temporary use of the land and, with proper
mining and reclamation techniques, the land is not irretrievable for a variety of
future land uses." EIS IV F-l. Therefore, many of the impacts listed above, such
as forest fragmentation will ultimately be a temporary phenomena.
ii. Specific Impacts ttf MTM Found Insignificant
1, Air Quality Impacts
The EIS found that air quality concerns were not an issue with MTM.
MTM has not been considered a major source of air pollution since it does not
meet the criteria for major source air quality permits under Title V of the CAA.
EIS 111 V-3. Moreover, except for ozone, monitoring stations reported good air
quality' for all criteria air pollutants. EIS 111 V-l. OSM regulations already
specifically require an air pollution control plan. 30 C.F.R. § 780.15.
In addition, the Mine Safety and Hetlth Administration (MSHA). maintains
separate air monitoring requirements for mining operations to protect mine
workers, and has established enforceable exposure limits for respirable coal dust.
EIS HI V-4 MSHA regulations also require every mine to submit a ventilation
15-2-1
system and methane and dust control plan every six months. Id. Finally, MSHA
is required by statute to make surprise inspections of every surface mine in the
United States at least twice each year. 30 U.S.C. § 813(a).
2. Impact* to Land) Blasting, Stability, Scenery, and
Forest Cover Are Insignificant
The studies found that land use is not a significant issue because "existing
regulatory controls are adequate to address the issue." E1S 11 A-7. Likewise.
blasting is not considered a significant issue with MTM because the studies
concluded that "existing regulatory controls provide adequate protections from
coal mining related blasting impacts on public safety and structures including
wells." EIS II A-6. The EIS found that stability of valley fills is not a significant
issue because there were "very low occurrences of stability failures, and those
identified failures were generally minor in nature and posed no risk to public
safety." EIS IIA-8. Finally, the EIS found that scenery and culturally significant
landscapes have statutory and regulatory controls that are adequate to address the
issue. Id.
The EIS explains that only 3.4% of the forested land in the study »rea was
changed to grassland by surface mining over the past ten years (in WV, Valley
15-2-1
For exaiwpte, the EIS predicts that if MTM continues at iis cutrcnl rate, f Jiere stay be
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Fills (VF) account for only 0.7% of forest loss). E1S Appendix i at V. Therefore,
MTM docs not have a significant adverse effect on forest cover, particularly when
one considers that some of this tend will be reforested through reclamation, which
will be further facilitated by pending changes in OSM rules to encourage tree
planning. Statistics from the E1S show that there is actually more forest cover
today than there was in 1950." E1S III R-2. In addition, this land will eventually
revert to forest through natural succession. EIS IV A-4.
The EIS concludes that",. .impacts to soils from MTM/VF are not
irreversible and that over time, soils simitar to those that existed prior to mining
are likely to be re-established on reclaimed mine sites." EIS IV C-7. In addition,
providing grassland areas and edge habitat in this region will have positive
environmental benefits for tntny species that require diverse habitats to flourish.
EIS Appendix 1 at 15. Fragmented forests have more edge habitat, and the
creation of wore edge habitat often corresponds to an increase in local species
diversity as "edge" species are attracted to the region. EIS Appendix I at 43.
The studies found no evidence that MTM has contributed to the spread of
invasive and exotic species in Southern WV, EIS HI F-16; Handel 2001. Nor is
there a significant issue regarding the Endangered Species Act (ESA). The
biological opinion issued in 1986 states that"... surface coal mining conducted in
accordance with properly implemented State and Federal regulatory programs
under SMCRA would not be likely to jeopardize the continued existence of listed
or proposed species, or result in the destruction or adverse modification of
designated or proposed critical habitats." EIS IV 0-5. Another EIS study says
that"... ample forest will remain in the West Virginia portion of the study area to
maintain relatively high PEC9 scores, [but] impacts to many forest interior bird
species are likely to occur." EiS Appendix 1 at 90. Finally, the EIS notes that
"there are no significant differences among the No Action Alternative and
Alternatives I, H, and 111 in terms of their ability to protect [threatened and
endangered] species." EIS IV D-7.
4. Water Issues are not Significant
3. Exotic and Invasive Species are not Invading!
Threatened and Endangered Species are not
Threatened
there would still bean abundant salamander population of over 35 billion intbe study ami—orabowt 100
salamanders for every man. woman, and child m the United States.
M This trend is eoHtiiiMmg. Data from the U.S. Forest Service indicates that the average cubic fee! of forest
growth exceeds Hie average annual rate of forest loss for ALL states in the region, EIS IV C~2.
The EIS found that flooding due to MTM is not a significant concern. The
EIS found that downstream flooding potential is not significantly increased by
existing mining practices so long as approved drainage control plans are properly
" PEC stands &r potential ecotogical condition, and is a value calculated to determine the ecological health
at t defined landscape scale, usually a watershed level, but Hits cumulative impact study did so oti« Suite
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applied. EIS IV 1-7; Appendix H. In addition, "...valley fills do not seem to fee
causing excessive sediment deposition on the first and second order streams." EIS
III D-8. "...[TJhe substrate characteristics of the filled, filled/residential, and
mined classes were not substantially different from the unmined class." EIS III D-
13. In other words, the EIS found no significant sediment problem that could be
attributed to MTM. Finally, "the EIS studies did not conclude that impacts
documented below MTM/VF operations cause or contribute to significant
degradation of waters of the U.S." EIS II D-9.
The EIS suggests that changes in water chemistry downstream from MTM
operations are cause for concern. EIS II! D-7. First, with respect to USEPA's
water chemistry data, the USEPA identified problems with the quality
assurance/quality control (QA/QC) implemented during the collection and analysis
of the water chemistry data, causing all the water chemistry data to be called into
question.'" Assuming these QA/QC issues do not change the overall conclusion
that significant differences exist between the filled and unmined sites and between
the filled/residential and unmined sites, supplemental studies conducted in
conjunction with the MTM/VF EIS studies conclude that neither the changes in
the biological community, nor changes in water chemistry in the filled sites appear
to have significant adverse impacts on the stream function with respect to
by Slate level. According to the EIS. PEC is an effective measure of biologic integrity. EIS Appendix 1 at
17.
16
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downstream segments. Instead, these studies found sites influenced by mining
continue to support abundant populations with representatives of all the functional
feeding groups and stream function does not appear compromised at these sites."
Second, the evidence does not show a clear impact on the study streams by
the mountaintop mining/valley fill activities. To the contrary, the data establishes
that MTM/VF activities result in changes in water chemistry and biological
communities typical of any large scale development project, e.g. road construction
or residential development Such changes in community structure are more likely
the result of changes in temperature regimes, typical whenever ponds, dams or
municipal discharges are present. Id. Therefore, it is fair to say that any statement
in the EIS attributing a cause and effect to a single activity where others such as
temperature or ponds which provide a different food source are playing a role
must be considered with caution. In addition, it should tlso be noted that USEPA
reported studies compare a mined site on a third, fourth or fifth order stream with
an utimined site on a first or second order stream. No unniined sites were selected
on third, fourth or fifth order streams. Changes in water chemistry and biological
communities between first or second order streams and third or fourth order
streams are expected. USEPA failed to consider changes associated with
10 Tliese problems ate discasscd in the report "A Survey of the Water Quality of Streams ifnive Primary
Region of MminteiBtop/Valtey Fill Coal Mining" (April S. 1002).
u ArcnCoai Supplemental MTR/VF EIS Stadv Report. April 2002.
17
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increasing stream order in data interpretation and presentation to the public. This
flaw in the data must be addressed in the Final EIS.
Finally, concerns about elevated selenium at test sites are minimized when
considered in light of the latest scientific data on aquatic toxicity of selenium.
EPA's current nationally recommended chronic criterion for selenium (5ug/l in the
water column) and 20 ug/1 acute criterion have been adopted by many States and
utilized in water quality standards programs. However, based upon the latest
scientific knowledge on selenium toxicity, EPA made a decision to update the
acute and chronic criteria for selenium and published, in March 2002, a draft
selenium criteria document.12 EPA's draft document proposes a revised
freshwater acute criterion (185 ug.'l) irr the water column and 7.9 ug/g (dry weight)
in fish tissue that is considerably higher than the current national criterion, it is
important to note that in some geographic areas in the study area background
levels of total Se exceed 20 ppb, yet no acute toxic effects ire observed.
Therefore, the levels of concern expressed iti the EIS studies become much less
significant when considered pursuant to the agency's proposed revised criteria.
The EIS found that "Overall, the abundance of macroinvertebrates was
found to be similar in upstream and downstream stations or to be slightly higher in
5-5-2
6-4-2
Sec Draft Aqnotit ljji> Water Quality Criteria jvr Selenium 3002. EPA Conttad No. 68-C6-0036 (March
20(12 Draft).
downstream stations. EIS III D-9. This strongly suggests that MTM operations
are not having an adverse impact on downstream water quality. Likewise, the
studies note that: "Biological conditions in the rained sites generally represented
very good conditions, although a few sites did score in the good and poor range."
EIS III D-12, This strongly suggests that MTM can be conducted with minimal
effects on the environment, provided that appropriate mitigation techniques are
applied.
Environmentalists have alleged that all of the above areas are at severe risk
due to MTM. As explained above and in the EIS, the scientific data from the 30
comprehensive studies does not support the environmentalists* alarmist
predictions. At the end of the day, the EIS observed that: "Watershed impacts
directly attributable to mining and fills could not be distinguished from impacts
due to other types of human activity." EIS IIC-74. As Sherlock Holmes
observed, the "dog that didn't bark" is a clue in and of itself.
b. The EIS Demonstrate that MTM has Numerous Positive
Benefits th»t Suggest it Should be Permitted
i. MTM has Provided Environmental Benefits
MTM has resulted in improvements in water quality' in several areas.
Studies commissioned by the EIS have found that MTM resulted in improvements
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in pH, iron, and manganese levels downstream. EIS HI D-7. As the EIS notes,
"the Appalachian coalfields provide almost limitless opportunities for watershed
improvement." EIS IV B-9. Such opportunities are presented both in the form of
remitting operations, which can greatly improve water quality and improve public
safety be removing highwalls. as well as mitigation conducted as part of the MTM
process.
important for game species such as wild turkey, bobwMte quail, ruffed gronse, and
white tailed deer. EIS III F-l'l. Some forest edge and grassland species (certain
reptiles, birds, mammals, raptors, etc.) are positively impacted by the terrestrial
habitat diversity created by MTM. EIS IIC-75, The EIS documents that there has
been an increase in the abundance of edge and grassland bird species at reclaimed
MTM sites. EIS III F-7.°
Runoff and groundwater are stored in valley fills. EIS IV B-4. Valley fills
hold approximately 7 times more water as their pre-mining counterparts. EIS III
H-4. This water is slowly released downstream, increasing base flows, lowering
peak discharges, and moderating water temperatures. EIS IV B-6. An increase in
base flow may eliminate intermittent flow, improving an intermittent stream to a
perennial stream.
MTM activity also creates ponds. The EIS recognizes that functions of
man made ponds exist and may be considerable, and may tend to limit the effect of
disturbances on the downstream watersheds. EIS III C-18 & 20; Wallace B. in
EPA et at. March 20, 2000. Wetland areas are being created at reclaimed mine
sites. It is anticipated that wetland acreage has actually increased as a result of
these steep slope [MTM] activities. EIS HI D-19. These newly created wetland
habitats, in conjunction with results from other mining reclamation efforts, have
created habitat, such as grasslands, edge habitat, and scattered ponds that are
20
II, MTM has Provided Economic and Social Benefits
MTM lias provided immeasurable economic and social benefits to one of
the poorest regions of the United States. These mines provide high paying jobs,
economic activity for other businesses, taxes for governments and schools, roads
(EIS III J-2), and land that, in certain cases, can be used for commercial
development.
The population in die study region is exceptionally poor. According to the
Census, over 1/3 of the residents in 24 counties in the study area are below the
poverty level, EIS III P-2. What the stud>' area lacks in personal income, it makes
up for in natural resources. The are* contains over 28.5 billion tons of coal. EIS
ES-2 MTM/VF operations are generally the most economical and efficient forms
of surface mining in steep slope Appalaehia and provide for the highest possible
" Sec also Wood ami E*»wiJs, 2001; Cmtcffcuiy 2001.
21
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recovery of multiple coal seams. EB HI 1-1. Such operations may be able to mine
as many as 18 seams. E1S 111 J-l. At current rates of coal production, this area
could produce coal for the next 100 years.
One of the many benefits of these MTM operations are the high paying jobs
and taxes created by the activity. Mining made up more than 10% of employment
in a number of the study area counties. E1S HI Q-5. Impacts are even greater in
certain regions of the study area. Whereas MTM operations account for about !4
to 1/3 of Appalachian coal production, in southern West Virginia, about 95% of
the surface mining is done by the MTM method. Such impacts are also reflected
in the tax revenues of these areas. For example, in West Virginia, 90% of the
severance taxes come from coal. HIS III Q-10. Surface mining is particularly
important to the economies of Boone, Logan, and Mingo counties. EIS HI Q-13.
iii. Unnecessary Limitations on MTM Will Cause Both
Economic and Environmental Harm
Unnecessary limitations on MTM in the study area would have significant
adverse consequences, for the economy, the people of the region, government, and
the environment. The EIS recognizes that if mining costs increase too greatly in
the study area, mining employment would drop and tax revenue from coal would
decline. Other studies have found that prohibiting valley fills in West Virginia
would cause State tax revenues to decline by as much as $168 million annually,
22
plus an additional $83 million drop in County tax collections.u Commensurate
school closings, and diminished State and government services would occur. EIS
IV1-2. The EIS also recognized comments in the record stating that local
governments depend on revenues and taxes in order to provide police and fire
protection, ambulance service, and education. EIS 1-20. Impacts to the private
sector would be even greater, resulting in the loss of over 15,000 jobs and a $2,4
billion decrease in economic output in West Virginia. See Marshall Study, cited
supra. The EIS does not offer any significant economic activity that would
replace MTM if it were lost.
Moreover, "if coal in the study area is rendered economically
unrecoverable, it may never be mined..." EIS IV F-1. This would be contrary to
what is best for the environment, because it would waste natural resources and
require coal to be mined somewhere else that may not involve the most
economical and efficient form of surface mining that does not provide for the
highest possible recovery of multiple coal seams. EIS 111 1-1. As early as 1979,
EPA has stated that MTM may be preferable to other forms of mining, such as
contour mining: "Mourrtairttop removal may serve as an excellent alternative to
contour mining in these mountainous areas primarily because of the potential for
reduced environmental impact, improved reclamation, increase land value,
H See '7fe f 'incut impiictitmit* of Judicially Imposed Surface Mining Restriction* tn M-Vtf f->£(«K"
Marshall University Center lor Business ami Economic Research, {February 2001).
23
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expanded land use potential and total resource recovery." KI'A KA of Surface
Mining Methods at p. 25, In addition, the Marshall study also found that mining
firms would be "extraordinarily unlikely" to replace lost MTM tonnage with
additional coal mined underground. Indeed, a policy that did not maximize
utilization of our coal resources would actually violate OSM's regulations, which
provide that surface mining activities must be conducted to maximize the
utilization and conservation of the coal so that reaffecting the land in the future is
minimized. See 30 C.F.R. § 816.59.
".. .to consider developing agency policies, guidance, arid coordinated
agency decision-making processes to minimize, to the maximum extent
practicable, the adverse environmental effects to waters of the United States
and to fish and wildlife resources affected by mountaintop mining
operations, and to environmental resources that could be affected by the
size and location of excess spoil disposal sites in valley fills."
64 Fed. Reg. 5778 (February 5, 1999).
Finally, the EIS fails to address impacts to national security if the amount
of coal reserves noted elsewhere in this document are excluded from recovery.
There is no consideration for this Administration's National Energy Strategy,
aimed at securing energy independence for the United States. This strategy relies
heavily on the continued use of this nation's abundant coal resources as a low-cost
and reliable source of energy.
c. The EIS is Programmatic In Nature
The agreement to prepare the EIS is contained in a settlement agreement
that resolved Federal claims in the case of Bragg v. Robertson, 54 F.Supp. 2d 653
(S.D. WV 1999). The stated purpose of the EIS is:
24
The EIS is not specific to any particular action, but rather is a "Programmatic EIS"
in that it evaluates broad Federal actions such as the adoption of new or revised
agency program guidance, policies, or regulations. An EIS is not itself "final
agency action" subject to judicial review. Standing alone, it does not establish any
rights, obligations, or other legal consequences." A programmatic EIS is
essentially procedural in nature and not substantive. In the future, policies will be
finalized and rules promulgated based on information and analysis contained in
the EIS, but the EIS itself does not change any current laws or regulations. Future
actions proposed as an outgrowth of this EIS may require independent or
supplemental NEPA analysis.
" SttBtmtav.Sfear,SV>\i.S. 154, 177(1997).
25
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The E1S lias done exactly what it is supposed to have done—it has
considered various policies, guidance, and coordinated agency decision-making
processes to minimize the impacts of MTM to the extent practicable.
Accordingly, in the framework of this programmatic EIS, we turn now to a
discussion of Alternative 111, and why we believe that it should be selected as the
best Alternative in the Final EIS.
d. Alternative HI is Preferable
Although the EIS states that "the alternatives were developed with the
objective that each would satisfy the requirements of the CWA and SMCRA,"
EIS II B-l, and each would likewise "improve environmental protection and better
coordinate implementation of the CWA and SMCRA..." Id,, Alternative HI is the
most preferable alternative for the following reasons.
i. Alternative III Will Produce the Best Decisions, Which
Wit! Improve the Environment
The EIS correctly observes that: "[Alternative III] would provide clear
environmental performance targets for industry, stakeholders, and regulators based
on combined analyses of SMCRA and CWA perfortnatice standards, t better basis
for decisions and findings by SMCRA regulators, and an improved ability for
States, with more knowledge about environmental resources within their borders,
26
1-4
local conditions, etc., to set priorities for mitigation." Id. The EIS also recognizes
that the U.S. Army Corps of Engineers (COE) does not have staff with mining
engineering background as OSM does, and thtt CWA § 404 minimization
alternative analyses involve a knowledge of mine planning theory and practice, as
well as operational feasibility to determine if all practicable alternatives have been
considered. EIS IV 1-17. Therefore, Alternative III is the most logical choice
because the Federal regulatory personnel with the best knowledge about the
subject will more frequently be in a lead role in making environmental decisions.
it. Coordination will Also Yield Better Decisionmaklng
Alternative HI is based on a joint permit application that will provide for
concurrent review, which will result in better decisiotimaking. It will enhance the
coordinated regulatory processes by serving as the platform for evaluation of
compliance with SMCRA and CWA Sections 401, 402, and 404 programs. EIS (I
C-22. Although a single permit application would be used, each agency would
remain responsible for ensuring that all statutory and regulatory responsibilities in
SMCRA and the CWA are met, further enhancing environmental protections. A
memorandum of agreement (MOA) and field operating procedures (FOP) will
further enhance coordination and deeisiomnaktng. EIS II C-25-26.
1-4
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SMCRA requires that Federal and State agencies, such as GSM, State
regulatory authorities, and the COE, coordinate implementation of their programs
and cooperate "to the greatest extent possible" in order to minimize duplication,
delays, and conflict 30 U.S.C. §§ 121l(cX12)& 1292(c); 30 C.F.R. § 773,5. The
CWA likewise mandttes the agencies minimize duplication." Alternative lit is
clearly the best option to fulfill this statutory mandate, because it would minimize
duplication by promoting "a single lead agency with coal mining regulatory
expertise for permitting and a framework for efficient, environmentally
responsible production of energy resources." EIS II B-15. Requiring both an
individual permit (IP) and a SMCRA review would be duplicttive and inefficient,
unless it is determined necessary by the COE in a particular situation, and justified
by the particular circumstances.
iii. Alternative III Correctly Presumes the NWPs are
Appropriate in Most CMCS
Data from the EIS demonstrates that the vast majority of MTM operations
are currently authorized pursuant to NWP 21. .For example, in West Virginia from
1990-2002, 81 NWPs have been issued for MTM operations, versus only 5
individual permits (IP). EIS II C-46. The COE has been independently applying
the statutory requirements of the CWA over this time, and has concluded 94% of
" 33 U.S.C. § 1 J03(a); 33 C.F.R- § 322.2(l)(2)i Ha also Ml' Governor 'slteforl M ES-4 f|COE. FWS,
OSM & EPAj stolid be cncouragol.. .to cooperate in resolving outstanding mmmtaintop removal
issues.1").
1-4
the time that NWPs are appropriate. Environmental organizations have repeatedly
challenged approval of these permits, and have repeatedly lost their claims in
Federal courts," Therefore, it is apparent that Alternative III is the most
appropriate alternative, because it establishes the regulatory paradigm that will
most often produce the correct decision.
iv. Balancing Environmental, Economic, and Technical
Considerations
Alternatives are considered not only with regard to their impact on the
environment, but also on technical »nd economic factors. For example, one of the
primary purposes of SMCRA is to "assure that the coa! supply essential to the
Nation's energy requirements and to its economic and social well being is
provided and strike a balance between protection of the environment.,, and the
Nation's need for coal as an essential source of energy." 30 U.S.C. § 1202(f).
Agencies are required to follow all Congressional mandates, including those in
SMCRA and other laws. Since the comprehensive analysis concluded that: "the
environmental benefits of the three alternatives are very similar," EIS It B-13, the
agencies should select Alternative 111 because it is the best alternative that also
fulfills other statutory mandates by minimizing the adverse impacts to the
" ,*<• Hragg r. Robertson, 72/•:%>/). Ill 643. Kg (S.D. V. 1"A 19991; racaml Bragg v. Wea Virginia
CfuttAmttioam: 248 F,3d 275 (IGf)!}; «*t denied 122&CI. 926 (2QQ21; See also KenmchHwsfor the
Camiltmfmxtlflt v. Rireiituityli. 317 F. 3d 42S (4* Cir. 2003),
29
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economy. This approach is also consistent with NEPA and regulations by the
Council on Environmental Quality (CEQ), which allow agencies to consider
economic and technical issues: "An agency may discuss preferences among
alternatives based on relevant factors, including economic and technical
considerations and agency statutory missions." 40 C.F.R. § 1505,2(b); 42 U.S.C.
§ 4332(B).
v. Why NWPs are Appropriate for MTM
1. COE Asserts that NWP are Appropriate for MTM
The COE reauthorizes its nationwide permits (NWPs) every five years. In
all of its previous actions, and particularly in its most recent reauthorization, the
COE clearly stated that NWP 21 is appropriate for MTM: "...this [NWP 21]
permit is designed for use by mounttintop mining operations as well as other
surface coal mining activities. 67 Fed. Reg. 2042 (January 15, 2002). The COE
also states that".. .valley fills may be pursued under the current regulations." hi.
at 2039. The COE, through NWP 21, ensures that surface coal mining activities
do not cause more than minimal adverse effects to the aquatic environment after
considering mitigation. Id
The COE believes that NWP are appropriate and useful for expediting the
processing of permits provided there is adequate compensatory mitigation. Id at
1-4
2043. The COE found that proposed projects under NWP 21 are generally located
at the upper limits of the watersheds and are therefore not interfering with aquatic
species migration. Id. Moreover, the COE is ensuring that such projects are
avoiding and minimizing impacts to the extent practicable and providing adequate
mitigation, especially in the form of enhancement or rehabilitation of existing
streams through stabilizing okl mined sites to reduce sedimentation and acidic
water releases. Such activities can result in substantial improvement in
downstream water quality and aquatic habitat within a watershed. Id. These
findings are consistent with those of the EIS, which found that Appalachian
coalfields provide almost limitless opportunities for watershed improvement EIS
IV B-9. The EIS also agrees that mitigation could not only offset, but enhance
aquatic resources. Id Finally, the COE recognizes that coal mining is different
than many offier activities authorized under NWPs, because coal mining projects
are thoroughly reviewed for environments! impacts under several other authorities.
Id at 2042.
2. There are many protections built Into the NWP
framework
There are many protections available under NWP 21 to ensure protection of
aquatic resources. Such protections are always evolving and improving, as
necessary. For example, jnst last year, the COE made two changes to NWP 21.
First, the COE now requires a specific written determination by the District
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Engineer (DE), on a case-by-case basis, that the proposed activity complies with
the terms and conditions of this NWP, and that adverse effects to the aquatic
environment are minimal both individually and cumulatively, after consideration
of any required mitigation before any project can be authorized. 6? Fed. Reg.
2038. Second, the COE clarified specifically in the NWP 21 that the agency will
require mitigation when evaluating surface coal mining activities in accordance
with General Condition 19. The COE also will now address direct and indirect
effects to the aquatic environment from the regulated discharge of fill material in
its § 404 review.
Furthermore, under Alternative III, the COE retains discretion to (I) require
an individual permit if the adverse individual or cumulative effects on the aquatic
environment will be more than minimal after mitigation; (2) add regional
conditions on a watershed, regional, or geographic basis; or (3) suspend, modify,
or revoke authorizations under a NWP. NWPs do not authorize any activity that is
likely to jeopardize the continued existence of a threatened or endangered species
as listed or proposed for listing under the ESA, or to destroy or adversely aftect
the designated critical habitat of such species. Not only does the COE have
substantial discretion to regulate NWPs, but EPA is also authorized to veto any §
404 permit. EIS II C-8; CWA § 404(c).
1-4
vi. IPs Are 'Dupli«»tiv* and UimemMry in Most CMC)
Because SMCRA Provides Comprehensive Information
on all Aspects of Mining for Use by COE In § 404 Reviews
The COE, pursuant to CWA § 404, is limited to regulating the placement of
fill material in waters of the United States, and the scope of its analysis is limited
to impacts on aquatic resources. However, SMCRA provides much broader
coverage through several statutory and regulatory provisions, through which OSM
protects fish, wildlife, and the hydrologic balance. Indeed, that is why NWP 21 is
the only "programmatic" Nationwide Permit—that is, a general permit directly
tied to another environmental regulatory program that already comprehensively
regulates the authorized activities. As the COE has repeatedly found, SMCRA
adequately addresses environmental concerns and provides similar protections for
aquatic resources as the § 404 program requirements. l8 The language of NWP 21
has always tied the authorization directly to those activities that are "authorized by
[OSM] or Stales with approved programs under Title V or [SMCRA]." See 51
Fed. Reg. 41026, 41256 (November 13, 1986); 67 Fed. Reg, 2020, 2081 (January
15,2002), A number of these SMCRA protections are discussed below.
SMCRA § 515(b)(10) requires operators to "minimize the disturbances to
the prevailing hydrologic balance st the mine site and in associated offsite areas
and to the quality and quantify of water in surface and ground water systems..."
1-4
32
" SK 56 Fed. Reg. 14)98. 14604 (April 10, 1»91); 56 Fed. Reg. 59110, 59124 (November 22, 1991).
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In addition, § 5!5{bX24) provides that operators must minimize disturbances md
adverse impacts of operations on fish, wildlife, and related environmental values
to the extent possible using best technology currently available (BTCA).
For permit applications, SMCRA also requires information on maps,
mining plans, watersheds, climatological factors, geological information regarding
overburden strata, coal seams, aquifers, the water table, spoil, topsoil, blasting,
natural drainways, and chemical analyses. 30U.S.C. § 1257(b). Further
information is required for the mine's reclamation plan. 30 U.S.C. § 1258.
In addition, SMCRA § 507(b)(l I) requires a determination of the probable
hydrologic consequences of the mining and reclamation operations, both on and
off the mine site. This section results in information collected on the hydrologic
regime, quantity and quality of water in surface and underground water systems,
information on dissolved and suspended solids, and such other data as required to
assess the probable cumulative impacts (set forth in a Cumulative Hydrologic
Impact Analysis, or "CH1A"). ,S"ee also 30 C.F.R. § 780.21.
All of this information is available to the COE to assist in making its
required determinations pursuant to its authority under CWA § 404. Because
SMCRA provides such comprehensive information regarding the mine, and
because Alternative 01 provides numerous avenues for coordination between
34
OSM and COE, it would be unnecessary, duplicative, and contrary to
Congressional intent to require lengthy individual permits as the norm, as is likely
under Alternative 1. Moreover, courts have observed that they will not uphold
presumptions, such as Alternative I, that are counterfactual.15
viL OSM Will Promulgate Rules to Pill any Regulatory Gaps
OSM will issue ruleitiakitigs (Action 3.3 and Action 7) and ati MOA to
ensure that any gaps, including § 404 data collection, impact prediction, and
alternative analysis, including avoidance and minimization are addressed. EISII
C-23. These actions include amending the "stream buffer zone" rule and the OSM
regulations on the placement of excess spoil. We strongly support these
regulatory changes by OSM that are more fully explained in Section ll(e)(iii) &
(vii) of our comments, supra.
e. Discussion of Specific EIS Action Items (EIS IIC)
The EIS proposes seventeen specific action items. Our comments on these
Action items are provided below.
19 AM4 v. Babbitt, 172 F.3d 906,913 (D.C. Cir. 1999)(we do not see how a
counterfactual procedural device could be justified even as a matter of policy); See
Allentrnm Mack Sales * Sen., Inc. v. MJiB, 522 U.S. 3S9, IIS S. Ct. SIS, S2S, 139 L
Ed. 3d 797 (199S).
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t. Action Item 1: Regulatory Alternatives
As explained in great detail in Section I!(d). of our comments, we strongly
support Action 1.3, commonly referred to as "Alternative III,"
ii. Action Item 2: Consistent Stream Definitions
We support this action. Like the definition of "fill material" that was
clarified by the COE and EPA in 2000, creating consistent definitions of streams
would be beneficial so that the same definitions would apply to various regulatory
programs. This would lead to greater efficiency, better coordination, and
consequently better environmental analysis, deeisionnwking, and consistency
among the various programs.
iii. Action Item 3: Clarification of the Stream Buffer Zone
Rule
We strongly support this action.
SMCRA has never mentioned, let alone mandated, a requirement that there
needs to be a "buffer zone" around a stream. Quite the contrary, SMCRA is
1-4
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36
replete with references to mining near, under, and/of through streams. Instead of
prohibiting stream disturbance altogether, the law requires an effort to minimize
adverse effects outside the permit area and downstream. See, e.g. SMCRA §§
515(b)(10(BXiXPI«vei« to &e extent possible using BTCA additional
contributions of suspended solids to stretmflow or runoff outside the permit area);
515(b)(22)(D)( allowing disposal in springs, natural water courses or wet weather
seeps as long as drains are constructed); 516(b)(9)(BXfocusing on limiting
additional contribution of suspended solids to streamflow outside the permit area);
516(bX 11 Xmifli^i^e, to the extent possible using BTCA disturbances & adverse
impacts of operations on fish &. wildlife); 516{cXailowing mining under perennial
streams, except where imminent danger to human inhabitants exists). Congress
reiterated its concerns in SMCRA's legislative history, which emphasized that
Congress was not primarily concerned with the footprint of MTM VFs, but rather
with the downstream impact, both in terms of safety to populations and the
environment. See Senrte Report No. 95-128, 1* Session, p. 83.
The original purpose of the stream buffer zone (SBZ) rule was to protect a
stream from sediment bearing water flowing from the disturbed area. See 44 Fed.
Reg. 30619 (May 25, 1979). This purpose confirms the fact that the rule was
never meant to apply to valley fills in the first place. Instead, it was directed at
mining near a stream. As OSM recognized in its 1983 rule, "It is impossible to
conduct surface mining operations without disturbing a number of minor natural
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streams, including some which contain biota." 48 Fed. Reg. 30313 (June 30,
1983).
The CWA, as well as OSM regulations, provide ample protection for
streams, CWA § 404 permits provides extensive protection, including mitigation
requirements that are beyond that required by SMCRA, In addition, almost a
dozen other SMCRA regulations provide protection for the hydrologie balance and
fish & wildlife.20 The SBZ rale is therefore not only redundant, but worse, its
vague language has resulted in unnecessary and costly litigation, permit delays,
and uncertainty in the SMCRA regulatory programs. Therefore, this rale needs to
be eliminated, or at the very least, properly clarified.
iv. Action Item 4: Advanced Identification Designation
(ABID)
We strongly oppose this action. This action is unnecessary and duplicative,
because authority already exists under SMCRA to designate areas that are
unsuitable for mining. 30 U.S.C. § 1272. These SMCRA provisions are
specifically designed for mining, and are more appropriate for use with MTM
operations than is an unrelated provision meant to be applied in other contexts.
Moreover, both the CWA and SMCRA require agencies to minimize duplication.
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30 U.S.C. § 1292{c) gi 1303(9); 33 U.S.C. § 121 l(e)(12); 33 C.F.R. § 322.2{fX2).
Such duplicative action is also contrary to the purpose of the EIS, which calls for
coordinated agency action.
In addition, AD1D regulations have historically been used only for specific
geographic locations and not applied to a general class of particular stream
segments or water resources. EIS H C-36. ADiD designation only occurs
following exhaustive site-specific data collection and analysis, and thorough
public participation. Id. Without these site-specific efforts for each headwater
stream, an ADID designation for a broad category of streams would be arbitrary.
EIS II D-7.
v. Action S: Development of New Water Quality Standards
The CWA requires States to review water quality standards (wqs) at least
once every 3 years. 33 U.S.C. § 1313{0)(1). The Associations support efforts by
States to review tnd revise wqs as appropriate to ensure they are attainable and
that they are based upon the latest scientific knowledge. EPA recognizes that
there are a number of factors, water quality and non-water quality, that affect the
attainment of the biological integrity of a particular water body, including the
amount of human activity resulting in permitted and non-permitted discharges, and
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51 See. e.g. 30 C.F.R. |§ 816.41-43; 816.43; 816.72; 816.97; 816. IM(bX5): 816.1$0(d)(l) & (d)(2);
816.151(0(2); and 816J31(dXS),
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the type and extent of hydrologic modifications,21 For example, some recent
literature suggests the full restoration of natural aquatic life communities may not
be feasible in small watersheds with heavily urbanized areas. Id at 23. Likewise,
the same may be true for certain water bodies where natural background
conditions or irretrievable human-induced conditions prevent attainment. As such,
EPA recommends States consider developing a system of tiered aquatic life uses
and subcategories which define reasonably attainable biological communities for
the impacted areas. Once a refined designated use system is developed, individual
water bodies may be assigned refined designated uses, as appropriate, and wqs and
water quality criteria (wqc) may be revised accordingly. Such revisions are
subject to EPA review and approval and require an appropriate scientific, technical
or economic justification for tire change. The Associations believe, particularly in
light of new scientific evidence suggesting the current national water quality
criteria for selenium may be over-protective, that States should undertake a
meaningful review of current standards and use designations where credible
evidence supports a reanaiysis, e.g. such as standard for selenium.
vi. Action 6: Refine Ecological Function Protocols
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"' See EPA Guidance: CooftJinmirtg CSO Long-Term Planning With Water Quality SfcMKfctfds Reviews,
July 31, 2001.
We support the use of appropriately crafted protocols to assist in
determining the effects of MTM operations on ecology. However, such protocols
must be based on real evidence and sound science, and not arbitrary numbers
created just for the sake of having a threshold limit.
vii. Action 7: Ruletnaking on Excess Spoil
We support this rulemaking effort by OSM. We agree that the permit
applicant should demonstrate, to the satisfaction of the regulatory authority, that
the volume of excess spoil is no more than necessary and that the location and
configuration of excess spoil fills will result in the least environmental impact
after considering alternative sites and designs. However, consistent with SMCRA
§ 515(bX24), the second requirement should be required only to the extent
possible, ming BTCA, since this limitation was imposed by Congress.
vlH. Action 8; BMP manual for stream protocol and
mitigation
We support this action.
Ix. Action 9: Refine and Calibrate Stream Assessment
Protocols
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We support this action. The protocols should continue to be improved and
calibrated as new data becomes available.
x. Action 10: Incorporate Mitigation/Compensation
Monitoring Plans iato SMCRA7NPDES inspection
schedules. Coordinate SMCRA and CWA requirements
to establish financial liability to ensure that reclamation
and compensatory mitigation projects are completed
successfully.
We do not understand this action. This action seems to combine and
confuse concepts that do not belong together. For example, NPDES does not
relate to mitigation. Likewise, there is no bonding under the CWA; rather,
bonding is required only under SMCRA, and only for reclamation. NMA filed
comments with OSM last year on proposed changes to its bonding regulations.
The comments explained that bonds are set to cover certain activities, and cannot
be broadened after the fact. There is a serious problem with the availability of
reclamation bonds for the mining industry. Also, heaping loo much liability on
the system risks additional forfeitures, which can ultimately make the overall
problem worse. We are not aware of any COE regulations requiring bonding for
mitigation associated with NWPs. Therefore, the agencies must be extremely
careful in implementing this action.
We cannot provide further comments without more specifics on exactly
what is being proposed in this action.
1-13
xl. Action 11: Apply Stream Assessment Protocols to
Determine On Site Mitigation Requirements
The SMCRA regulatory authority should apply the stream assessment
protocols to determine on site mitigation requirements so long as the protocols are
realistic and produce realistic assessments. However, certain protocols that have
been developed so far are of questionable reliability. For example, the Louisville
Protocol has not undergone extensive peer review or public comment, and may
contain errors.22 In addition, permittees should receive credit for SMCRA
reclamation towards mitigation requirements.
ill. Action 12: Creation of a Dynamic GIS Database for
evaluating and Tracking Aquatic Cumulative Impacts
We support the gathering of additional data to better evaluate and track the
cumulative impacts on aquatics. However, we do not agree that such information
should be used to establish a "bright line" cumulative impact threshold for feasible
CWA § 404 MTM permits. The evidence in the E1S uniformly suggests that such
a bright line is inappropriate because there are too many site specific factors, and
therefore, the creation of such a line would be arbitrary and capricious. Moreover,
the EIS itself found that smaller watershed sizes, by increasing the number of fills
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: Sue Joim tadiistn' Specific Comments.
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constructed, could result in greater cumulative impacts, reductions in coal reserves
and increases in utility costs. E1S It C-73.
xlii. Action 13: BMP Manual for Growth Media &
Reclamation with Trees
We support this action. Studies have shown that changes in reclamation
techniques, coupled with modifications to OSM regulations could greatly improve
the ability to grow trees on reclaimed land. Moreover, the E1S recognizes that
"...impacts to soils from MTM/VF are not irreversible and that over time, soils
similar to those that existed prior to mining are likely to be re-established on
reclaimed mine sites." EIS IV C-7. Such techniques, if properly applied, can
actually be less expensive than current practices. This is an area where OSM
rulemaking could make a significant contribution to minimizing the impact of
MTM operations by removing existing impediments to planting trees.
xiv. Action 14: Congressional Mandate to Grow Trees
We strongly oppose this action. A one-size-fits-all mandate such as this
was not put into SMCRA by Congress in the first place because they recognized
that OSM, States, and permittees needed flexibility to address site specific
conditions that are most appropriate for the area. Moreover, most surface rights
are not Owned by mining companies, and therefore permittees cannot normally
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force landowners to accept forest cover as the post mining land use. If such an
amendment were made to SMCRA, it would remove a big sticlc from the surface
property owners' bundle of rights, and cause takings lawsuits. It would
unnecessarily eliminate flexibility that is built into current law. Finally, forcing
States to do this may also violate the 10* Amendment to the Constitution. This is
an unnecessary and bad idea.
xv. Action IS: Evaluate and Coordinate Dust/Blasting
Programs and Develop BMP Manual
The creation of a BMP manual may merit further consideration. However.
we oppose the regulatory actions because the EIS shows that "dust and fume
emissions from blasting pose no potential health problems outside the permit area.
Visible and measurable fugitive dust rarely migrated more than 1000 feet from the
actual blast." EIS II C-84. Air quality control plans are already required as part of
the SMCRA permit. .See 30 C.F.R. § 780.15. In addition, MSHA also regulates
explosives and blasting. See 30 C.F.R. §§77.1300-1304.
xvi. Action 16: Flooding Guidelines
We support the concept of non-mandatory guidelines to assist operators in
minimizing the potential for off-site flooding, to the extent that guidelines are
reasonable. However, we would not support mandatory flooding regulation
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because the EIS does not support such action. It found that: (1) the predicted
increases in peak flow did not cause flows to leave the banks of the stream
channel; and (2) flooding was caused by mine sites that were not following or
maintaining their approved drainage control plans. EIS IT C-87. This evidence
demonstrates that more regulations are not necessary or productive, but rather, the
focus should be better compliance with existing rules and regulations at a few
operations.
xvii. Action 17: Program Changes to Comply with the ESA
As noted above, the most recent biological opinion issued by FWS says
that: ".. .surface coal mining conducted in accordance with properly implemented
State and Federal regulatory programs under SMCRA would not be likely to
jeopardize the continued existence of listed or proposed species, or result in the
destruction or adverse modification of designated or proposed critical habitats." In
addition, the EIS says that: "there are no significant differences among the No
Action Alternative and Alternatives 1,11, and 111 in terms of their ability to protect
[threatened and endangered] species." EIS IV D-7. Endangered species issues
can be adequately addressed on a pennit-by-permit basis under existing
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regulations. Neither a CWA 404 permit nor a SMCRA permit will be issued if it
will result in violations of the ESA.23
The following section of the comments will provide detailed comments on
specific sections of the EIS.
HI. Specific Comments on the MTM EIS
Page II.C-30
The extent to which v<ey fills reduce energy (organic carbon) resources
thai may he used by downstream aquatic communities is not veil known.
Scientific research has demonstrated that no-net reduction in energy transport or
energy availability has occurred. For example, the United States Geological
Survey, as part of the National Water Quality Assessment Program, conducted a
survey of fish communities to assess biological responses to certain stressors, with
an emphasis on mining. Published in 2001, the study found that streams
associated with large scale surface mining activity (including one of the streams
analyzed in both the EIS benthic and chemistry reports) had high scores in terms
of both sensitive individuals and total fish counts:
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21 33 U.S.C. 11344{c);30CF,R. § 780.16; 30 C.F.R. §816.97(b).
6-8-4
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Among the Kftiutwh* River streams, C1e»r Fork at Whltesville,
Kelley's Creek at Cedar Grove and Laurel Creek at Hacker
Valley ranked among the best sites in several species
composition metrics.
If valley fill construction or other mining-related disturbance was impacting the
amount of energy available to downstream reiches, according to the positions
advocated by participants in the Value of Headwater Streams Workshop (EiS
Appendix D), a corresponding reduction in fish populations would occur below
valley fills. As noted under the same section of the EIS, "Macroinvertebrate
recovery appears to be facilitated provided sufficient food sources and aquatic
habitats are available." The results of the USOS fish survey and the findings of
the EIS Cumulative Impact Study (CIS) demonstrate that sufficient energy exists
and will continue to exist to provide input for these watersheds and to sustain
aquatic function in the downstream reaches of the watershed.
Page II.C-36, Actions 4.1 and 4.2
Designate Areas Generally Unsuitable
for Disposal Referred te as Advanced
Identification of Disposal Areas
Application of (his §404 regulatory tool to mining in Central Appalachia would
be redundant. Each of the factors identified as part of the ADID process are
currently addressed and/or facilitated by other regulatory programs. For instance,
preminuig baseline water quality data is collected and submitted as part of the
n U.S. Geological Survey. Fixh Commmiti&s and Their Relation to Environmental ptxlors in the
kannwlia River Baxltl, ET?$? l-lrgmia. Virginia, and North Cnrotina 1997-199B. 2001
6-8-4
SMCRA and NPDES applications. The public participation avenues that are
stressed in the ADID description are an integral part of the SMCRA, §401 and
§402 permitting processes. While permit-specific legal challenges are not a matter
of routine in the study area, the SMCRA process certainly provides the option of
administrative challenge (to an appeals board) and legal challenges to the
appropriate state court.
As noted by the COE in earlier rulemaking actions regarding NWP 21, the mining
related dredge and fill permits are one of the only permits in the §404 program
that are subject to extensive, independent environmental analysis2S. Mining
operations are subject to extensive SMCRA permitting requirements and NPDES
requirements. Depending on the activity, other agencies such as the federal Mine
Safety and Health Administration ran be involved in permitting actions. All these
existing environmental programs are subject to federal oversight: OSM in the
SMCRA process and EPA in the NPDES process.
In summary, the ADID process would only add to an already comprehensive,
expensive and time consuming regulatory process associated mine permitting
actions.
Page II.C-37 Stream Impairment
Studies indicate that aquatic communities downstream of surface coat
mining operations and valley fills max lie impaired
(emphasis added)
~s 56 Fed. Reg. 14598. 14606 (April 10, 1991) "SMCRA provides simitar protecJkms fi>r aquatic resources
us the §404 program rapiemcnts." S« also 5f>Fe4 Reg. Ml 10, J91J4 (November 22.1991). COE
again acknowledges thai § 404 and SMCRA protect the saine resources.
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Scientific research conducted for this EIS and by mining companies in conjunction
with the EIS does not support this statement. The most significant change
observed below valley fills was a shift in the benthic community towards more
filter-feeding organisms and a reduction in mayfly population. This shift may or
may not be directly attributable to valley fill construction or mining activity. OSM
found similar community shifts with a distinct reduction in mayfly populations
downstream of mining without valley fills:
A study was...conducted by OSM on the cumulative off-
site impacts from a large area mine in southeastern Ohio
over a twelve year period. The location of the study was
on the Central Ohio Coal Company (COCCO) property
where a dragline was used,..Although this study was not
in the EIS study area It was included to show how mining
activities without valley fills can Impact water quality.
The chemical analysis of the impacted streams Indicated
similarly elevated levels of hardness, sulfatos,
conductivity...
Comparative surveys of macro invertebrates...indicate
similar results to those in the filled and filled/residential
class sites of the MTM/VF studies (Le.j elevated
conductivity, sulfates, hardness and a decline in pollution
sensitive species)...It is particularly noteworthy that none
of the macro inveterate samples...showed any significant
numbers or kinds of mayflies.
EIS 111.0-7.
Since the OSM study cited above was in connection with mining that did not
involve valley fills, similar results can be expected with any earth disturbing
activity, mining or otherwise.
6-8-4
Neither the decline of the mayfly population or the shift towards filter-feeding
organisms impacts stream function downstream. The USOS fish survey found that
streams below valley fill and surface mine disturbance supported healthy and
diverse fish populations, indicating that sufficient energy exists below filled areas.
Total fish species downstream of some filled sites were lower than mined
and reference s/fes. However, fisheries sampling was limited by drought
conditions (luring the study period and the sample populations may not be
statistically representative.
The Associations believe that statements regarding fish impairment are incorrect.
As noted above, results of the Fish Report are questionable, and of little value.
The USGS fish survey conducted in the same region as the EiS Fish Report found
some of the healthiest fish populations downstream of areas subject to large scale
mining and valley fill activities. As noted in the subsequent paragraph:
The sample size and monitoring periods conducted far the K1S were not
considered sufficient to establishjirm cause and effect relationships
between individual pollutants and the decline in particular macro
invertebrate populations. Impairment could not be correlated with the
number offtlh, their size, age, or construction method
When viewed in conjunction with the USOS fisheries report previously cited in
our comments it is clear that valley fills and other mining activities are having no
adverse affect on the downstream fish communities. The failure of the EIS to slate
the obvious is a serious flaw and should be addressed in the final EIS.
Page II.C-44, third paragraph under Action 6:
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AH example ofblomnnitoting to assess baseline stream health using macro
invertebrate data is the West Virginia Stream Condition Index, which was
used in some of Ike aquatic studies conducted for this EIS.
Application of the WV SCI to the southern coalfields of West Virginia is
inappropriate. This assessment method was developed using data collected across
the State, but an undue emphasis was placed on information collected in the
central and northern regions. The conditions in these other regions are quite
different that those that exist within the primary region of MTM/VF which rests in
the southern portion of the State. A more region specific assessment would
account for the natural conditions evident in the West Virginia portion of the study
area Further, the results of the WV SCI have beea incorrectly interpreted to assign
"impairment" to several streams.
Finally, it is inappropriate to conclude that changes are the result of valley fills.
For example, OSM's evaluation of a large scale surface mine in Ohio, the Central
Ohio Coal Company Study (OSM COCCo. Study) documented similar benthic
changes below mining disturbance that did not include valley fill construction.
Mayfly taxa were virtually non-existent in this study as well. Because of
generally flat terrain of the mined area, OSM COCCo. Study could be
characterized as an evaluation of excavation rather than mining, so similar impacts
to the mayfly taxa should be expected below any activity that fractures rock and
disturbs the soil.
Page 1I.C-51, NWPs Discussion:
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On January 15, 1003 the COR reissued all of Us NWRi. Those permits
generally identified upper limit thresholds for NWT applicability of each
identified activity. In considering the need for thresholds for NWP 21, the
COE determined that there was currently no scientific basis for a
programmatic threshold. Additionally, the COll beliews the coal mining is
different from activities authorised tinder other NWPs in that coal mining
projects are reviewed for enviromaeMal impacts under oilier federal
authorities.
As noted in this section of the EIS narrative, coal mining is subject to extensive
and detailed environmental analyses through the state or federal SMCRA, NPDES
and 401 water quality certification programs. Any potential environmental
impacts of mining are identified and addressed prior to the issuance of the
SMCRA and NPDES permits. These existing permit reviews which occur
independent of the §404 permitting process are sufficient to insure that "no more
than minimal" impacts will result from the proposed mining operation.
However, the COE made the commitment to re-evalttate the possibility of
an upper threshold foe NWP 21 after this EIS is completed.
The existence of the SMCRA and NPDES permitting programs, coupled with data
collected through the EIS technical studies and other scientific research support a
final decision by the COE to assume that all §404 permit applications are eligible
for authorization under NWP 21 as advocated under alternative tSiree, and that an
upper threshold is not required. Specific evidence to support this approach and
alternative are presented under our General Comments.
Page fI.C-52, Compensatory Mitigation, General Comment:
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The COE encourages applicants to perform compensatory mitigation
projects in conjunction with mining operations",
A permanent cementation easement is required for mitigation and coal
mine companies frequently do not own the property they are mining.
Requiring permanent conservation easements works at odds with encouraging on-
site mitigation performed as part of the reclamation of a mined area and
improperly extends the COE's influence beyond its statutory jurisdiction. As the
statements cited above acknowledge, coal companies usually do not own the land
on which they are mining. Instead, the mining companies lease the right to extract
the mineral and the surface of the area reverts back to its owners once extraction
and reclamation are completed. Because of this unique land ownership
arrangement, the ability of the mine operator to obtain property and execute
conservation easements is extremely limited, if not impossible. Unlike other
development activities that impact wetlands and require §404 permits, mining is
only a temporary land use. Whereas highway, infrastructure and building
construction are permanent activities, mining only occurs in an area for a
relatively short time. Any Mitigation project undertaken for these permanent
activities lends itself better to perpetual easements, since property is usually
purchased by the permittee in conjunction with these permanent land uses and
maintained in perpetuity as simply an extension of that project. Other natural
resource extraction activities often coexist with mining, with timbering and natural
gas production being the most prevalent activities. These activities, like coal
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extraction, are temporary aid are usually facilitated through leases, not ownership.
Conservation easements could potentially complicate these other extraction
activities thereby reducing the land's overall value and presenting a takings
situation.
A conservation easement forecloses the possibility of future use or development
and eliminates the private property rights retained by the landowner
As with many other particulars to the "wetlands" mitigation requirements it is
clear that mining and lite temporary nature of coal extraction was never considered
in the development of this requirement.
Imposition of a conservation easement is unneeded and duplicative. Any future
activity that could impact jurisdictional waters would require §404 authorization
from the COE.
Page ll.C-73, last paragraph, Establishing Cumulative Impact Thresholds:
Based on the fact thai thert have been 5 individual permit applications
compared to the 81 projects approved under NWI> 21 in West Virginia, it
appears that applicants are designing the majority of MTM;yi' proposals
to stay below the 25Q-acre minimal impact threshold and thereby avoid the
IP process.
This statement is presented without any explanation as to the effects of the interim
250-acre NWP/1P permit threshold. Operations in West Virginia redesigned to fall
under the 250-acre reduced projected employment and production numbers. A
particular operation in Nicholas County West Virginia was redesigned by the
permittee to reduce valley fill configurations in order to fall below the 250-acre
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watershed restriction. The project's planned recoverable coal reserves were
lowered from 25 million tons to 8 million tons.26
The E1S technical studies found similar results, which are summarized on page
IV.1-3:
The economics studies show a direct correlation between fill size
and shifts in production due to increased mining costs.
The Hill & Associates sensitivity analysis projected reserve
reductions of 11 and 45% as well as cost increases of around 8
and 14% when all fills are restricted to 2SO- and 75 acre
watersheds respectively.
The Hill & Associates studies generally concluded that smaller
fills necessitate less complete extraction but more rapid
depletion of the surface mineable reserve base with different
equipment types,..
The effects of the 250-acre threshold require more explanation in the EIS as the
reader is left with the impression that the limit is impact-free, which it clearly is
not: reserve bases are being reduced and the projected life of particular mine sites
are being diminished with coincident reductions in employment, state tax
collections etc.
Page II.C-45, Fill Minimization, General Comment
The entire discussion of fill minimization in this section overlooks a critical
controlling factor in the location and development of mining operations. Coal
mining occurs where the coal resource exists. Unlike other land disturbance
activities that potentially impact jurisdictional waters, alternatives to filling are
" Bragg v. Robertson. Civil Action 2:98-636 U.S. District Court for the Southern District of West Virginia.
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generally not available to the coal industry. As noted in the Mining Technology
section of the EIS, all disturbance for surface or underground mining in the region
wilt result in the generation of spoil. AOC reclamation returns most of this spoil
to the mined area, but because of the "swell" factor of fractured overburden, not
all the spoil, even under an AOC scenario can be returned to the mined area
Page H.C-47
Compensatory mitigation for unavoidable impacts is required by the C.WA
for both general and individual permits. The amount and type of
compensatory mitigation required are determined by the functional
assessment of the waters impacted by a specific project; i.e. higher quality
streams require more mitigation than lower quality streams. The fimctiom
of streams lost through filling can require substantial mitigation as
compensation. Consequently, mitigation to replace and restore aquatic
functions can he a costly endea\x>r. Therefore, the costofmiligaiioncan
serve as an incentive to minimize valley fills in aquatic habitats,
Assuming that exorbitant mitigation requirements.will result itt fill minimization is
lUlisejifflBBSSiBl- ^'rs*' ™y disturbance, mining or otherwise, in the steep slopes
of Central Appalachia will result in the generation of excess spoil. For mined
areas, existing SMCRA requirements mandate these areas be restored to AOC
unless an alternative land use is justified by the applicant. Even if AOC
reclamation occurs based on the swell factor of the interburden and overburden
some fill material MUST be placed in a valley fill regardless of mitigation
requirements:
The primary reason for using valley fills is that the
excavation of overburden results in a greater volume of
Avadavit of William B. Rarsv.
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material than was present on the mine site before mining.
When bedrock is broken up forming spoil, void spaces are
left between the individual rock fragments, causing them
to occupy a greater volume than the original, unbroken
rock. This expansion is referred to as swell and typically
represents a volume increase of about 40 percent.
Compaction of the spoil during backfilling partially
offsets swell as the rock fragments are squeezed together
by the weight of the overlying material, but this shrinkage
factor will not completely return the spoil to its
solid...volume.
Particularly on steep-sloped mine sites, the excess spoil
generated by the swell factor cannot be completely
backfilled on the mine bench with the construction of
potentially unstable slopes or substantial deviation from
AOC
EIS IH.K-3.
The EIS economics technical studies demonstrated that the physical and
economic recoverability of a given coal reserve is directly tied to available valley
fill opportunities:
The economics studies show a direct correlation between fill si»
and shifts in production due to increased mining costs.
EIS IV.1-3.
So, rather than encouraging fill minimization and stream avoidance, draconian
mitigation requirements will only increase the cost of mining and act as a de facto
programmatic barrier to mining activity in the region, much like the specific
watershed acreage restrictions considered but ultimately rejected for inclusion in
the EIS.
Another result of excessive mitigation requirements is to discourage post-mining
land development. Though lack of suitable, stable land remains a chronic
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economic and social problem throughout the study area, mitigation requirements
and costs will discourage these post-mining developments.
Site specific conditions may exist that permit the operator to further minimize fill
placement beyond the existing AOC requirements if suitable adjacent, attainable
areas such as AML benches exist, but the incentive to use these areas is provided
in the 404(bXl) analysis and would be identified in the SMCRA permitting
process absent any increased mitigation costs.
Page 11. C-52, Compensatory Mitigation, General Comment:
As the E1S properly notes, environmental conditions in the study area provide
ample mitigation opportunities:
The Appalachian coalfields provide almost limitless opportunities for
watershed improvement, following almost 100 yean of abandoned mine
land (AML) problems. Mine drainage pollution, eroding spoil on the down
slope, clogged stream channels, abandoned hlghwalls and coal refuse
areas, and other orphan land problems exceed the capacity of the SMC HA
AMI. Trttxt Fund. Many of the problems are such low priority thai it is
unlikely that the AML program will ever address thetn.
Acid mine drainage and other stream impacts such as eroding spoil or coal refuse
emanating from AML sites is by far the most serious and common water quality
problem in the study area. A cursory glance at the 303(d) list of any of the states
within the Central Appalachian region reveals hundreds if not thousands of
streams identified as impaired from these impacts. The above-cited paragraph is
also correct by observing that few, if any of these problems will be alleviated by
the current AML program established under SMCRA, where impacts posing
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threats to health and safety receive the most attention and funding. While the AML
fund may not provide for timely reclamation of sites impacting water quality in the
study area it provides an excellent structure to facilitate reclamation and
remediation of these areas through mitigation.
Except for Tennessee, ail the states currently have an AML program that has been
delegated to the state regulatory authority. These state AML programs use
allocations from the federal AML fund to complete reclamation of identified pre-
SMCRA disturbance. Using this existing structure, operators seeking 404
authorization for valley fill construction would, in cooperation with the state AML
agency, identify an AML site(s) that is adversely impacting water quality. The
operator would then work with the AML agency to alleviate these impacts.
Mitigation credit would be assessed based on the overall improvement to water
quality and habitat.
Approaching mitigation from this more practical standpoint will have a
substantially greater improvement on the environmental health of the area than
will in-kind replacement of headwater streams for several reasons. First, the
scopes of potential impacts are not of a severe magnitude, Headwater streams will
continue to comprise roughly 60% of total stream length in Central Appalachia
and the area will maintain sufficient PEC scores. Second, structures constructed
in accordance with SMCRA mandated mining and reclamation standards can serve
as onsite mitigation. Research has demonstrated that these SMCRA provide
unique habitats (through wetlands) that do no exist in the study area. Third and
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most impofttfit, improving or preserving the energy transported from headwaters
to the downstream system means nothing if other stressors such as AMD and
excessive sedimentation impair or eliminate the aquatic habitat. In other words,
mitigation efforts that restore, preserve or enhance the energy transport from
mined areas means nothing if there are no macroinvertebrates alive downstream to
consume this energy. This approach to mitigation is best viewed as a "watershed"
approach that results in an overall net environmental benefit.
Similar environmental benefits will be seen from other water quality
improvements that can be implemented through mitigation. Tie second most
prevalent water quality problem in the study area results from the lack of public
infrastructure. Failing or nonexistent wastewater treatment systems contribute to
stream degradation in the region as do crude road crossings, stream bank erosion
caused by repeated flooding and residential stream encroachment. Again, using
the watershed approach to mitigation, it makes little sense to enhance the energy
transport of the mined area through enhanced SMCRA structures or preservation
of headwater reaches only to have this energy flow to a. downstream area that is
severely impacted by fecal coli form, or from another stressor resulting from the
lack of infrastructure.
The correction of pre-existing water quality stressors coupled with vast mitigation
potential of mining-created wetlands, ponds and side drains make the study area a
"gold mine" of mitigation possibilities, and the final BIS should recognize and
promote these "iiontraditionar' mitigation measMes^
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Page ll.C-53, COE Stream Assessment Protocol, General Comment;
The Louisville Stream Assessment Protocol is mentioned throughout this section.
Use of a functional assessment may indeed facilitate mitigation decisions, but the
value or applicability of the Louisville Protocol is not as established as the
discussion in this section presents it to be. Unlike the EPA RBP, the Louisville
Protocol has not undergone an extensive peer review or public comment.
The Louisville Protocol is based on an earlier study conducted by the Kentucky
Division of Water, so any errors made in this proceeding endeavor will be
amplified by application of the Louisville Protocol. Serious questions exist
regarding the inclusion/exclusion of particular bcnthic metrics in the document
that may unfairly skew the assessment and the documents' heavy reliance on
conductivity.
II. 0-1, Alternatives Considered but Not Carried Forward in This £18,
General Comment, entire section;
Both SMCRA and the CWA clearly contemplate fill construction in streams, as
noted in our introductory comments. Eaeh of the various specific fill restrictions
presented in this section ignores this basic, underlying premise: Mining and valley
fill construction is legal and with recent court decisions its legality is crystal clear.
Two specific legal challenges have targeted surface mining in Appalachia
specifically. Section I, Purpose and Need provides a cursory glance at these recent
judicial assaults that sought to undue Congressional statutory intent and decades of
regulatory interpretation by the veiy agencies that have prepared this EIS. The
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first, styled as Bragg v.Robertson was centered on the SBE of OSM and a staitor
provision found in West Virginia's state surface mining program. The District
Court in this action chose to accept the plaintiffs tortured reading of federal and
state mining kw that construed the SBZ to prohibit valley fill construction in
intermittent and perennial streams. The Bragg decision was reversed by the U.S.
Court of Appeals for the Fourth Circuit on federalism and jurisdictional questions.
A subsequent action was filed in the same Court, this time challenging the COE's
interpretation of the CWA to permit valley fill construction under §404. The same
District Court this time held, despite years of interpretation to the contrary, that
mining spoil was "waste" under the CWA and could not be permitted pursuant to
§404. In the decision, the District Court went so far as to dismiss a pending EPA-
COE rulemaking that would finally end the confusion surrounding mining spoil
and place it firmly within the jurisdiction of the COE as "fill material". This
decision too was appealed to the Fourth Circuit and again the Appeals Court
reversed. In this case there was no overriding question of jurisdiction and the
Appeals Court spoke directly to the legality of surface mining in the context of
both SMCRA and the CWA:
White SMCRA does not define "fill material", its "excess
spoil material," 30 U.S.C. section J265(b)(22), is defined in
the SMCRA regulations as material placed "in a location
other than th« mined-out area."...And, regardless of
whether the fill has a beneficial primary purpose,
SMCRA does not prohibit the discharge of surface coal
mining excess spoil in waters of the United States.
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Indeed, it t$ beyond dispute that SMCRA recognizes the
possibility of placing excess spoil material in waters of the
United States...
It is apparent that SMCRA anticipates the possibility that
excess spoil material could And would be placed in waters
of the United States..."
The Appeals Court decisions in Bragg and KI'K" .which predate the release of this
E1S, have properly recognized Congressional intent and sustained years of
regulatory implementation. Consequently, any such alternative contemplated by
the agencies seeking to ban valley fills would require a statutory change and reach
far beyond the programmatic scope of this E1S.
The watershed specific fill restrictions explained in this section ignore the scale
and scope of current and anticipated mining activity in the region and appear to
assume that mining and valley fill construction activities were affecting vast
regions of the study area, while in fact that is not the case. The CIS has
determined, using liberal estimates, that mining and valley fill activity could
potentially impact 4.10% of the streams in the study area. The same study found
that the dominant land use of the area will continue to be dense, unmanaged forest
over: 87.5% of the study area is forecast to remain unchanged when all
disturbances including mining are considered. Assuming a worst-case scenario of
mining disturbance (no renewed emphasis on reforestation and fill minimization)
the same study found that the area would maintain adequate PEC scores to support
healthy and abundant terrestrial and aquatic life. So, even absent the scientific
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evidence showing the minimal/beneficial effects of mining, the minute scale of
disturbance would not justify the sweeping changes and restrictions contemplated
under this section.
Page lll.C-3, Energy Sources and Plant Communities:
Headwater energy sources are important, not only k> invertebrates and
vertebrates in upper reaches of the watershed, but excess organic carbon /.v
subsequently utilized by life forms in all stream orders clown gradient.
Since streams have a unidirectional flow, downstream areas are also
dependent on upstream areas for portions of their energy.
This statement leaves the impression that energy can only be supplied by
headwater streams. Research conducted by the coal industry in conjunction with
the E1S indicates ponds and wetlands constructed during the mine reclamation
provide similar, adequate sources of downstream energy:
The streams with valley fill* have a sediment retention
pond located typically in the most upstream reaches of the
stream just below the fill area. These ponds carry out »
similar function for the upstream reaches of the streams.
In the ponds, biological communities are established
which are dependent on algal growth, not leaf litter, as a
food source. The algae and detrilal material flowing from
the ponds act as the food source for the downstream
communities.**
In addition, upon completion of the reclamation process, vegetation will have
returned to the area, replacing the coveted "aquatic-terrestrial interface". Further,
27 KenttlcUtaufarthf CaimtianseaU v. RIvtttlHirgh, 3 ITFJd 425 {4* Cir 2003).
s Arch Coal Supplement!! MTR/VF EIS Study Report, April 2002
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fisheries research conducted below mining impacted watersheds indicates trial
healthy and diverse fish populations are thriving. According to the River
Continuum Concept that is postulated as the true value of headwater streams, one
must assume that sufficient energy input is occurring in the stream to support these
downstream communities,
Page III.C-S, Organic Matter Processing, general comment, entire lection:
The entire discussion presented in this section is devoted to an explanation of the
River Continuum Concept (RCC). This theory suggests the health of an entire
river ecosystem is associated with, organic energy that is processed in headwater
stream reaches and subsequently transported downstream. The RCC forms the
basis for many of statements made in the EIS regarding the possible effects of
valley fill construction in headwater streams.
The RCC may be inapplicable to the steep-sloped terrain and stream systems of
Central Appalachia for several reasons. First, the RCC assumes a pristine
environment, which is certainly not the case in the study region:
The Appalachian coalfields provide almost limitless opportunities for
watershed improvement, following almost 100 years of abandoned
mine land (AMI.) problems. Mine drainage pollution, eroding spoil on
the down slope, dodged stream channels, abandoned hi«hwulls and
coal refuse areas, and other orphan land problems exceed the capacity
of the SMCRA AML Trust Fund. Many of the problems are such low
priority that it is unlikely that the AML program will ever addres»
them. EIS page
Second, the RCC assumes that extreme headwater stream reaches provide the only
opportunity for energy inputs to the river system through the aquatic-terrestrial
6-6>4
interface ttiat occurs in forested headwater streams. This is not the case in the
study area. Research conducted by mining companies confirms that energy inputs
continue in mining watersheds regardkss of the level of impact in associated
head\vater areas because most of the streams below mining areas are forested:
The cumulative impact itudy found thai over 80% of first to third
order streams in the EIS study area are surrounding by forest,
EISIII.D-18.
III.D-1, Loss of Linear Stream Length from Filling and Mining Activities
Associated with Fills, General Comment
The findings of the EIS technical studies which are referenced in this section
further illustrate the need for the agencies to view potential impacts of
mountaintop mining in terms of scope and scale. Only 2.05% of the total stream
wiles have been directly impacted by valley fill construction and mining activities,
and projected future impacts will total only 4.10% of the total stream miles within
the region. Absent the renewed emphasis placed by the agencies on mitigation,
with a preference for on-site, in-kind mitigation, mining will not result in the mass
elimination of headwater streams. As the coal industry, SRAs and the COE
implement new mitigation techniques in accordance with the recommendations of
the EIS, it likely that the stream segments directly impacted by mining will be
more than offset by either stream/wetlands creation during reclamation and/or
water quality improvement projects undertaken by operators.
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Page JII.D-2, Loss of Biota under FBI Foot Print or from Mined Areas,
General Comment:
The Associations do not dispute that the biota present within the fill footprint are
lost once fill construction has been completed. Based on the results of the CIS, the
benthic organisms common in headwater streams that are subject to fill activity are
by no means in danger in the study area. With a mere 4,10% of the streams in the
study area projected to be impacted by mining operations, sufficient habitat for
these macro invertebrates will continue to exist in the study area. The concern for
the biota of these streams should not focus on the minute fraction impacted
directly by fill construction, but the ability of reclamation and mitigation to
replace the function of these benthic species in the overall aquatic system. EIS
Appendix D, Value of'Headwater Streams concludes that the single most
important feature of the biota of headwater streams is to provide energy input to
support the health of the streams down gradient of the headwater areas.
Subsequent technical research has demonstrated that sufficient energy inputs
continue to exist below filled areas.
These studies are summarized on page Itl.D-9 of the ETS;
Overall the abundance of macro invertebrates was found to be
similar in upstream and downstream stations or to be slightly
higher in downstream stations.
Other industry sponsored research supports this conclusion:
Increased abundance at the filled sites, as compared to the
unmlned sites and the presence of a similar shredder community
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indicates that sufficient food is available to support a benthic
community and that downstream communities are likely
receiving particulate organic material from these more upstream
segments.
This conclusion is confirmed by the USGS Fisheries Study that found some of the
healthiest fish populations in watersheds associated with large scale surface
mining and valley fill construction.
to summary, it is reasonable to assume that the energy processing and transport
will continue. . Mountaintop mining will potentially impact only 4.10% of the
total stream miles in the study area, 60% of which are first order headwater
steams, dispelling any myth that mining and valley fills are eradicating all
headwater streams. Benthic research has demonstrated that abundance remains
high below fills and that the ponds and wetlands created during reclamation are
providing their own energy inputs to the stream reaches. The USGS fisheries
survey confirms the benthic research, finding that heavily surface mined
watersheds supported healthy and diverse fish populations.
Page III.D-S, Changes In Downstream Chemistry:
Comparisons to AWQC were performed with a subset of the loial data set
as explained in USEPA (2002a). Selenium concentrations from the filled
category exceeded AWQC for selenium at most (13 of 15) sites in this
category,
Finding selenium concentrations above the suggested criteria can be expected
given the overall background levels of selenium present in the native soils of the
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area. Simitar concentrations can be expected below any land disturbing activity in
the region:
...we see tKat in the region of MTM/VF mining, the coals
can contain an average of 4ppm of selenium, normal soils
can average 0.2ppm and the allowable limits are S ug/L
(0.005 ppw). Disturbing coal and soils during MTM/VF
could be expected to result in violations of the stream limit
for selenium M
While improvements in pH, iron and manganese were seen, median
concentrations ofsulfales among all sites increased from 38 mgfL to 56
mg'L in the north and, and from 46 mg/L to 77 ing/L in the south.
The presence of sulfate, as noted in the narrative, is indicative of disturbance, not
necessarily mining induced disturbance . This conclusion is confirmed by the
presence of similar sulftte levels below a large scale milting operation in Ohio that
did not involve fill construction.
In the IJ8KPA (lOOla) stream chemistry study, selenium was found to
exceed A WQC at Filled sites only and was found to exceed A WQC. at most
filled sites included in the study,
As noted in previous comments, selenium is inherent in the soils and coal of the
region.
The existence of selenium concentrations in excess of A WQC at most of the
filled sites indicates a potential for impacts to the aquatic environment and
possibly to higher order organisms that feed on aquatic organisms.
* U.S. Environmental Protection Agency. A survey ofthe Water Qttsllty o/"5/mi*»,« itf the Prlmsn' Region
ofMo,mlalnloff!'alleyl-"HI('ealMining. 2002.
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This statement is misplaced given the level of understanding relative to selenium
impacts and technical research that found healthy aquatic communities in
watersheds exceeding the suggested water quality criteria for selenium.
The E1S chemistry study, from which the above cited EIS narratives are drawn,
mentions the effects of selenium based on research conducted by Lemely in lotic
(non-flowing) habitats, specifically a large pond with extended water retention
times. This is a vastly different situation thin what exists in the headwater streams
of Central Appalachia, Therefore is incorrect to extend the results of the Lemely
studies to this EIS.
EPA is currently in the process of revising the suggested water quality standard
for selenium. In February 2002 the agency published a draft of these revisions.
Among the conclusions and observations included in the draft document are
several that are relevant to tlis EIS and the assertion that detectable selenium
concentrations in the water column are indicative of negative impacts.
Since the itsu»n« ot the 1987 chronic criterion of 5ug/L,
considerable information has come forth regarding the route of
exposure of selenium to aqnatic organisms. Studies have shown
that diet is the primary route of exposure that controls chronic
toxkity to fish.
...diet controls selenium chronic toxicity in the environment and
water-only exposures require unrealistic aqueous concentrations
i« order to elicit • chronic reiponse...
...a tfateNtoerf ftiterieni Is not appropriate fyr selenium because
diet is being the most important route of exposure for chronic
toxieity.
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If the organisms are provided with an tincGtttaminated diet, then
exceedingly hinh water faneentralians, possibly above the acute
criterion, ore needed ta elicit .effects,,,
Sediment has also been proposed as a medium upon which to
base the selenium chronic criterion, but because of the
patchiness of selenium in sediment and an insufficient amount o
data to support a casual link between concentrations of seleniun
in sediment and the chronic effects observed in fish, a sediment-
based criterion was not selected.31
int of
im
Considering the findings of EPA in the draft revised selenium criteria, that water
column concentrations of selenium are not correlated to toxicity in fish and that
the natural background of selenium present in the soils of the study area, it is clear
that application of the autent suggeitedwater quality criteria fat .selenium, should
be reconsidered.
The USOS fisheries survey supports both EPA's revised selenium water quality
criterion and clearly demonstrates that selenium concentrations in the study area
have not impacted the aquatic community to the study area. The E1S chemistry
study found detectable levels of selenium on sampling sites within the Clear Fork
Watershed:
Site Selenium Concentration
MT-62 2.8 ug/L
MT-64 13.0 ug/L
Despite these concentrations, the USGS Fisheries Study concluded:
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Clear Fork at WhitesvH»e,..halat!t?tt to Kfivtnwmmlal Faefor.v irt tt
Kanmtlm River Basin, ll'ea l-'trg/nla, Virginia, and Honk Carolina 19V7-I998. 2001
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h,l. Summary of Results from Upstre»tn-0owrtstre»« Comparison Type
Studies
Overall, the abundance of macro-invertebrates was found to be similar in
upstream anil downstream stations or to be slightly higher in downstream
stations.
The largest difference seen between upstream and downstream locations
was the change in proportion of sensitive groups.
The results of these studies demonstrate that valley fill construction and mining
activity are not having an adverse impact on streams. A mere shift in community
structure does not constitute degradation, especially if sufficient energy remains
for transport downstream. According to the results of these studies, streams with
mining activity in their headwaters are still carrying out the primary function of
pristine headwater reaches.
h.2. Results of Comparison of Pre-mlnlng Biotic Conditions to Post-mining
Aquatk Communities
The authors of this report slated that a qualitative comparison of current to
past results suggests that the aquatic macro Invertebrate community has
undergone a shift lo a more tolerant, less sensitive community.
Changes in the downstream station were similar to those seen at the
upstream station for abundance and taxa richness. However, the diversity
and evenness of the dwnatreatti macro invertebrate communities
decreased... ami the proportion of tolerant organisms increased notahfy...
The studies cited in this section analyzed mining and disturbance, not necessarily
valley fill construction:
These .studies did not .specifically address the presence of or potential
impacts from valley fills.
This ongoing project confirms the results of other studies referenced or included in
this EG. As in the OSM COCCo Study, a shift was observed in the downstream
benthic community that appears commensurate with disturbance of the native rock
and soils. This shift cannot be termed itnpairnient however, unless the
downstream reaches of the watershed are failing to receive adequate energy inputs.
Other studies have confirmed that sufficient energy is being provided by niming-
related structures and that no net-reduction in watershed productivity and diversity
has occurred.
h.3. Results of A Multivariate Analysis Study on Benthic Invertebrate
Communities and Their Responses to Selected Environmental Factors
Coal mining appeared to influence invertebrate communities through two
factors...
h,4. Studies of Macro invertebrate Communities in Stream Sites l/ocated
Downstream from Mined/Valley Filled Areas in Comparison to Reference
Locations
Biological conditions In the untnined sites generally represented a gradient
of conditions from good to very good, based on the WVDEI' SCI scores...
The wide variability of the scores on the unmined reference streams demonstrates
a known fact that is mysteriously absent from the discussions in the draft EIS.
Headwater streams are extremely unstable systems in ttieit natural condition as
they rely primarily on ram-induced runoff to susMiLli
svnerav of the aouatic ecosystem:
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Onefunmined] site scored in the high-end of the fair range m the
summer of 1999, one site scored in the poor range ui tile fell of
1999, and one site scored in the high-end of the fair range in the
winter of 2000.
Biological conditions in the filled sitea generally represented a gradient of
conditions from poor to very good...However, over a third of the time, filled
.files scored in the good or very good range over the Jive seasons.
This statement is probably the most important contained in the EIS and it deserves
more attention and focus. Readily apparent is the reality that filled streams are
supporting the aquatic processes that receive so much attention as the source of
life throughout the stream system. In a region that suffers from multiple water
quality stressors such as AML drainage, lack of infrastructure and failing
wastewrter treatment systems, the effects of valley fill construction appear
negligible.
The authors believe water qtia/ily explains the vide gradient in the
biological conditions at the filled sites.
The OSM COCCo. Study documented increased conductivity below mining that
did Hot involve valley fill construction, demonstrating that increased conductivity
should be expected with any human development (mining, residential or highway
construction) or natural disturbance (land slides), Again, the background natural
conditions of the area appear to make such situations unavoidable. Any
development or improvements that are going to occur in the region are going to
involve land disturbance- earth and rock will be excavated, and fills will likely be
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built whether it is for raining, roads, schools, housing etc. Itesed on the research
presented in this EIS, til of these activities will be expected to have similar
increases in conductivity. Since the inherent geological and topographic features
of the area are such that excavation and fill construction is required in connection
with development and mining, the question should not be if conductivity is
increased, but what effect conductivity has had on the stream system as a whole.
In our comments on other sections of the EIS, the Associations have presented the
results of studies conducted for the EIS, by coal operators in conjunction with the
EIS , independent of the EIS but within the study area and outside of the study
area but related to the subject at issue. The bulk of this research documents a shift
in the biologic community below dltfurkanee. There is some question as to how
directly this shift can be correlated to particular water column parameters
including conductivity:
Differences between the honthic macro invertebrate
communities in the unmined and (Wed sites were evident in
metrics involving the mayfly population which decreased below
the fill sites. Stonefltes were prevalent In theae site, however,
indicating that water duality may mil be the limiting factor for
the absent rruryfliea m they are both sensitive tout __
Whatever the cause, it is overly apparent mat this change does not correlate to
impairment. In fact, by supplying a more constant source of energy to the stream
below (though wetland »nd pond construction), mining may improve the health of
the watershed.
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Biological conditions in the filled and'ftlled'residvnlwl classes were
substantially different from the conditions in the unmined class and were
impaired relative to conditions in the unmined class, based an the WV SO
scores.
From the results of the EPA Streams study and other related research, it is
apparent that the aquatic communities were different among the classes, but not
impaired:
Overall, the filled sites are only significantly different from the
unmined sites with respect to the percentage of the population
comprised of mayflies.
As noted iti our earlier comments, ponds and wetlands are constructed during the
mining process to control sediment and in some instance attenuate flow. These
wetlands and ponds influence the composition of the benthic community;
Changes in the benthic macro invertebrate community structure
below impoundments are well documented...Th*»e changes may
result from flow constancy, organic loading, temperature
changes or a combination of factors...mayflies and stoneflles are
often eliminated below impoundments.15
The elimination of the mayfly taxa CANNOT be linked to impairment as the EIS
narrative attempts to do:
Below the filled sites, the sensitive I IT taxa still comprised an
average of 50% of the population,
Also of Interest below the fills is the presence of a shredder
community very similar to the unmined reference streams...The
similar communities in the filled and unmined streani!) indicate
that the downstream reaches of the streams are being supplied
3 Arch Coal Supplemental MTR'VF EIS Study Report, April JOQ2
J Arch Coal Supplemental MTR/VF EIS Study Repon, April MOZ
'ibid
7S
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with coarse and fine organic material which are the major
contribution of headwater reaches described In the river
continuum theory.3*
The cited EIS statement should include a qualifier regarding the stream size
sampled in the study. Generally, all of the streams sampled below valley fills
were larger streams than those sampled in the umnhied/reference class. The
unmined reference sites were located on first and second order streams while the
filled sites were located on third, fourth and fifth order streams. Changes in the
composition of the aquatic community are expected as stream order increases .
Page HI.D-15, Impacts of MTM/VF on Fi$h Assemblages
The USGS (2001 b) found that stream size and zoogeography masked any
potential water qtiailly effects of land tae on species composition and
relative abundance offish communities in the area.
This statement appears to be a weak attempt at explaining away the findings of the
USGS fisheries survey. The specific results of this study are enormously
important to this EIS. This study determined that one of the healthiest fish
communities existed at Whitesville, on the Clear Fork tributary to the Coal River,
It is a well-known feet that this watershed has been heavily mined, with most
recent extraction occurring in the form of surface mining with valley fills. The
EIS Chemistry study found detectable levels of selenium within the watershed, yet
the USGS Fisheries Report observes a healthy and diverse fish population.
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The USGS Fisheries Report also designated streams as impaired that were
associated with mining activity. However, both of the watersheds are more
correctly identified as areas of historical mining. Both of these watersheds have
identified sources of serious AMD and sedimentation impacts from pre-SMCR A
activities.
Page m.D-15:
For example, fish collected from one lake downstream of cm extensive
mining complex in West Virginia were found to contain selenium
concentrations much higher than would he expected to occur naturally,
indicating thai the selenium associated with mining operations occurs in a
form that if biologically available for uptake into the food chain (U.S.
t'IVS, unpublished data).
This reference is entirely inappropriate and should be deleted from the final
EIS. EisyLJto&i&JIflJliace f
S- Second, "concentrations much higher than would be
expected to occur naturally" contradicts assertions made in the EIS chemistry
study which recognized that the natural background levels of selenium in the soil,
overburden and coal approach the limit established by the current water quality
criterion implemented in West Virginia. Third, as this is unpublished data, other
possible sources selenium such, as non-mining land disturbance cannot be
identified.
Page nj.D-17 Studies Relating to Mitigation Efforts for MTM/VF
Impacts to Aquatic Systems
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P&$1 efforts gt c0mp%f®@t@ty tnitiftiMMin have not achieved a condition oj no
net tox.s of stream ares orfwictinnfi.
This statement is unqualified, conflicts with subsequent statements mide under the
same narrative section and should be deleted from the final EIS. A similar
prevarication is repeated in the fist paragraph on page IILD-2 1 . Our comments
address both statements.
Mining companies have routinely created structures as part of the SMCRA
mining and reclamation plan that serve to offset the loss of headwater streams
from Fill construction. At the stme time however, these companies also satisfied
the existing COE mitigation requirements imposed by the respective states and not
characterized these structures as "mitigation" projects.
In the EIS technical study A Review of Wetland Resources in ike Sleep Slope
Terrain of West ^irgima, EPA found that few traditional wetlands existed prior to
the initiation of surface mining and areas that had no surface mining had no
wetlands:
...the percentage of vegetated wetlands (PF,PEM,PSS
designations) existing in these watersheds is extremely low,
representing less than 1/10 of 1% of the watershed in all cases.
The majority of the NWI wetlands in these watersheds appear in
most cases to be sediment ponds associated with mined sites.
Other statements in this technical study strive at discounting the value of these
created areas by declaring them "unvegetated" wetlands. However, as cited
previously in our comments regarding stream function and the biologic condition
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of streams affected by mining, these wetlands and ponds are ptoviding similar, if
not superior energy input to the watershed, eliminating any reduction from the
headwater streams impacted directly by construction of valley fills. The EPA
review of wetlands goes on to state that isolated wetlands created within the mined
area can be enhanced to further supplement and therefore "mitigate" the loss of
headwater stream reaches:
...opportunities do appear to exist for the creation of functioning
wetland systems on mined sites. Planned wetlands, if
incorporated into the restoration design, can provide valuable
functions by enhancing sediment stabilization, water quality
improvement, and wildlife habitat on mined sites.
With respect to habitat creation, further enhancements may be possible but EIS
terrestrial studies have shown that mining-created wetlands are indeed increasing
the wildlife diversity' of the study area and that several terrestrial species not
traditionally associated with the Central Appalachian region have been observed
utilizing ruining wetlands.
Research conducted by mining companies in conjunction with the EIS have also
documented the unique and beneficial habitat provided by mining created
wetlands, the results of which are summarized in this section of the EIS:
When comparing total abundances and taxa between the ponds,
the study found that two of the ponds contained large total
abundances of aquatic insects and a desirable number of taa.3
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'' Pen Coal Corporation-RBI Consultants. An Evaluation of the Aqoatie Habitat Provided By Sediment
Control Ponds and Other Aquatic Enhancement Structures Located dn Mine Permitted Areas in Southern
West Virginia 1999
82
Similar conclusions can be regarding the conveyance ditches or "groin™ ditches
created on valley fills:
During the development of this EIS, technical representatives
from OSM and from West Virginia have suggested that groin
ditches constructed along the edges of fills may represent an
opportunity for the in-kind replacement of streams with an
intermittent or perennial flow regime. To date, no drainage
structures observed appear to have successfully developed into a
functioning headwater stream. EIS II1.D-18,
As noted in our preceding comments, reconstructing headwater streams
historically never the goal of these structures. Instead, their design and
construction was intended to satisfy the hydrologic requirements of SMCRA and
to preserve/assure the stability of the valley fill. These functions must remain the
primary objective of the ditches, as they are obviously working (no pattern of fill
instability identified by the EIS technical studies). However, if these areas could
be enhanced as described in this section and continue to assure the stability of the
fill area this opportunity should not be ignored, since it would essentially equate to
double the length of the original headwater impacted by the valley fill placement.
The renewed emphasis on mitigation that has emerged from preparation of the EIS
and permeates all the suggested alternative actions must acknowledge the ability
of these SMCRA structures to serve as mitigation and the alternatives should
include the direction to develop & BMP manual for further enhancing the values
that can be provided by these structures.
Other historical, state mitigation measures focused on stream restoration through
water quality improvement. As earlier sections of the EIS recognize, the study
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area provides limitless opportunities for mitigation through the remediation of
existing water quality sfressors such as AMD discharges and installation of public
waste water treatment systems. For brevity, we will not repeat extensive
comments on this subject made in previous paragraphs, but only observe that state
imposed and COE accepted "remediation mitigation" goes further towards
satisfying the overall objectives of the CWA than does the current focus on
headwater stream creation/ preservation.
In 2001 the National 'Research Council (NRC) released a comprehensive report
regarding the s §404 dredge and fill program titled Compensating far Wetland
Losses Under the Clean Water Act. In this review, the NRC provided 10
guidelines for implementing the mitigation requirements of the §404 program.
Chief among these suggestions was a focus on restoration over creation. State
mitigation programs, particularly in West Virginia, favored these types of projects.
In the case of public waste water system installation, these mitigation efforts
provided another immeasurable benefit: community improvement through
infrastructure installation. As the socio-economic sections of the EIS
acknowledge, the overwhelmingly majority of the study area is extremely rural
and extremely small, isolated communities abound. The likelihood of publicly-
funded improvement projects being developed in these areas, absent facilitation
through coal mine mitigation, is slim to none.
Past mitigation practices that encouraged and accepted wetlands and water quality
remediation either through AMD elimination or community infrastructure
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improvement should not be summarily dismissed by the draft EIS as cited
statement attempts to do and the current mitigation initiatives underway cannot
ignore the benefits of this "remediation mitigation".
IV, ENVIRONMENTAL CONSEQUENCES OF THE ALTERNATIVES
ANALZED
B. AQUATIC RESOURCES
Page IV.B-2, las! paragraph:
... the length of stream buried by mining or valley fills displaces the hiomass
and pi-oportionctle amount of energy provided by fine and coarae
paniculate material leaving a particular reach of headwater stream.
This fact in unarguable, however there is no indication that sufficient biomiss and
energy inputs do not occur in the stream reaches below the 011ed areas."18 Further
as we have identified in previous comments on other sections of the EIS, wetlands
and ponds created during the mining process adequately offset this direct loss.
The scientific research used to support these comments also indicates that by
providing a more constant flow of energy input, these ponds and wetlands may
provide superior contributions to the synergy of the stream system below. Since
the ponds at the toes of valley fills are constructed commensurate with mining
activity, any reduction in energy inputs would only be temporary in nature.
Consequently, leaf litter exclusion as a result ofMTM-VI'" may affect
productivity dowmtreant due la this terrestrial aquatic relationship.
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There is no argument that valley fill placement eliminates the aquatic-terrestrial
interface that exists within the fill footprint area. However, EIS technical studies
have determined that some 80% of the streams in the study area are forested,
indicating that substantial aquatic-terrestrial zones exists downstream of the
headwater reaches that can be directly impacted by fill construction," Further,
most of the stream miles in the study area (60%) are headwater streams. Given the
minute scale of current and potential mining impacts, adequate aquatic-terrestrial
interface areas wili continue to exist.
Page IV.B-3
The Mo Action Alternative and fiction alternatives will not eliminate the
loss of stream segments and reduction in organic mailer transported
downstream. In the absence of standardized testing and research, it is not
clear to what extent this direct stream loss indirectly affects downstream
aquatic life.
This statement incorrectly assumes that some reduction the energy transported
downstream has occurred despite scientific evidence to the contrary. Similar
fallacious statements in preceding sections of the EIS were addressed in detail in
our comments on those sections. However, to be complete we will summarize
these comments here. The EIS technical studies found a wide range of conditions
below valley fills, suggesting that stream health is preserved below fills:
Biological conditions in the filled sites generally represented a
gradient of conditions from poor lo very good...however, over a
'U.S. Fish and Wildlife Service. The t'ffltie af Headwater S«
Appendix D
" Ibid.
• Remlto of a It'orhtiop. 1999, EIS
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third 0f the time, filled sites seared in the good or very good
43
range.
As we have noted in detail in our comments on other sections of the BIS, the EPA
benthie study referenced above did not account for or acknowledge the influence
of stream order on benthie populations, Beuthic assemblages are expected to be
different from \a and 2"1 order streams that are ephemeral and intermittent in
nature as were the unrnined reference sites opposed to the filled sites in the study
which were generally located on 3"1 order streams that flowed constantly, possibly
as a result of valley fill hydrology.
Industry supported research referenced extensively in our earlier comments has
determined that the presence of ponds and wetlands at the toes of fills may provide
superior energy inputs through the creation of an aquatic community that
processes algae, coupled with increased and constant flow created by fill
hydrology.
// is also not evident to what degree reclamation and mitigation (e.g.,
drainage control and re vegetation) offset Ms reduction
As with the previous section, this statement assumes that a reduction has occurred
in areas of fill construction and our comments above are applicable here as well.
As to the ability of mitigation to replace any possible reduction, the industry
sponsored research and EIS technical studies suggest that stream reaches below
WU.S. Environmental Protection Agency. A Survey of the ComJition of Stream iruhe Primary Region of
Mounteralop Mining/Valley Fill Coal Milling. 2000.
8?
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the filled areas as well as ponds, wetlands and drainage ditches constructed as part
of the mining process can continue to supply adequate, energy downstream,
Page IV.B-4
Stream chemistry showed increased mineralization and a shift in macro
invertebrate assemblages from pollution intolerant species to pollution
tolerant species.
The degree to which this increased mineralization affects the downstream aquatic
community is unknown given the findings of the EIS technical studies and other
scientific research indicating the presence of healthy aquatic communities below
mined and filled areas. Further, use of the terms "pollution-tolerant" and
"pollution-intolerant" fall far short of properly characterizing the conditions in
mined and filled areas given the results of similar research and the influence of
such variables as stream order.
Page IV.B-5
The Aquatic Impacts Statistical Report indicated that ecological
characteristics (if productivity and habitat are easily disrupted in
headwater streams... the analysis Indicated that biological integrity Is
hampered by mining activity and that nnmined sites have higher biolic
integrity with more taxa and more sensitive taxa.
This statement is misleading, patently false and should be deleted from the final
EIS. The referenced results of the Statistical Report are suspect. The authors of
the study excluded industry-submitted data indicating healthy stream populations,
arbitrarily dismissing it as "non representative" of the study area. The Statistical
Report emphasized perceived impacts from mining and fill construction while
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discounting or dismissing the lack of differences between the filled and unmined
reference streams.
Selenium and zinc were negatively correlated with the WV SCI.
Concerns regarding the applicability of the WV SCI to the southern West Virginia
region of the study area have been presented in comments on other sections of the
draft EIS.
The strongest association with water chemistry suggested that zinc, sodiutn,
and sulfate concentrations were negatively correlated with fish and macro
invertebrate impairments
The value of this statement, aside from presenting inflammatory verbiage, is
further questionable given the caveat presented in the Statistical Analysis with
regard to fish communities:
... these correlations da not imply a causal relationship bemeeti the water
quality parameters and fish community condition.
Subsequent statements in the EIS narrative correctly note that the statistical results
are far from conclusive and by no means support the sweeping proclamations
made in the above cited portions of the EIS:
However, the study also concluded that insufficient data existed
to determine the temporal nature of the Impact or the distance
downstream that the impacts persists. Due to the limited scope
of the studies performed by the EIS no correlation could be
made of downstream impacts with the age, number, and size of
mining disturbances and fills, nor could data differentiate
impacts of mining, fills or other human activity in a watershed.
EIS IV.B-5.
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Also worth noting is that the Statistical Report did not correlate selenium
elevations to fish community impacts as the Fisheries Report attempted to do,
casting further doubts on the validity of both studies.
The Associations maintain that the balance of EIS technical research has identified
a shift in benthic communities, a shift that can be attributed to a number of factors
and a shift that is by no means disadvantageous. Similar shifts were found below
mining related disturbance that did not involve valley fill activities at M site outside
of the EIS study region suggesting that similar results can be expected below any
disturbance within the general Appalachian region.
Constructing wetlands is a possible mitigation measure for impacts lo
headwater streams.
The positive benefits provided by mining created wetlands have been identified in
technical studies and summarized in comments on other sections of the draft EIS
narrative.
Other human development activities, such as logging and other types of
excavation, aim pose potential threats to the tntlrient cycling function,
sedimentation, and other physical, chemical, and biological impacts to
headwater streams in the KIS study area. However, the permanent nature
of filling discussed under direct loss, ax compared to the more temporary
impact,? from forestry suggest that MTM.'W impacts of headwater stream
systems may have a longer-term impact on this system, although data do
not currently suggest the duration of these impacts.
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This statement fails to consider the scope and scale of potential mining impacts
and suffers a flaw that is unfortunately common in this draft EIS: an overbearing
concern with the functions provided by headwater streams.
The CIS study has determined that 59,000 miles of streams exist within the study
area and that 60% of these streams are headwater areas. The same study estimated
that 1.23% of the streams have been impacted by past and current mining and
valley fill activity and that 4.10% of the total stream miles could potentially be
impacted by future mining. These results confirm that mining is affecting a
relatively minute fraction of the total streams within the study area.
Threats, or more properly stressors to watersheds in the study area are well
documented. On page IV.B-9 for example, the EIS acknowledges that the Central
Appalachian coalfields provide almost limitless opportunities for watershed
improvement. These narrative sections concur with an EPA study initiative that
predates the draft EIS:
In general, the biological assessment results appear to Indicate
th*s« art poor water quality streams prior to the Impact of
raining operations and valley fills. 4I
Given the reality of stream conditions in the region, the focus on the functions of
headwater streams seems misplaced. As confirmed by certain sections of this EIS,
the streams of the region are impaired by a variety of stressors unrelated to current
mining. Therefore the function of the headwater stream (energy input) may be
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worthless if the downstream reaches of the watershed are impaired because of
other impacts. As WE have noted in our earlier comments regarding mitigation^
the environmental condition of the study area could have been markedly improved
had the massive amountof resources and attention..directed by anti-mining groups
and the agencies at MTM/VF impacts to headwater ..streams had been focused on
the remediation of existing water quality problems of the region.
Page IV.B-tO
As a result of all alternatives involving mitigation, there will be a strong
disincentive for the applicant to disturb strvatn segments.
This statement assumes that practical alternatives to valley fill construction exist
for the mining industry and ignores the substantial amount of information
collected by the EIS and summarized in the mining technology sections of the
document. Because of the very nature of the topography and geology of the
study area, the native rock and soil excavated to facilitate mining (both surface and
underground) will "swell" and not alt of it can be returned to the mined area even
under the most rigorous application of SMCRA's AOC mandate. Consequently,
some of this excavated material MUST be placed in a valley fill. A "strong
disincentive for the applicant to disturb stream segments" already exists through
compliance with SMCRA imposed AOC requirements and the 404(bXl)
guidelines of the CWA programs of the COE and EPA. The reality of increased
*' U.S. Environmental Projection Agency. Analysis of Valley Fill Impacts (,'.««£ A-fe
Final Report. 1998,
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and what appears to be punitive mitigation requirements will not result in further
minimized fills, it will only add yet another economic constraint on the ability to
mine coal in this region, since other sections of the EIS narrative and the EIS mine
engineering technical studies confirm that the physical and economic
recoverability of coal reserves is directly correlated to the amount of fill space
available. Another unfortunate result of punitive mitigation measures will be seen
in post-mining land use development. The EIS has correctly observed that the
lack of stable, flat land remains a substantial barrier to the economic
diversification and social stabilization of the region. MTMA'F offers the unique
opportunity to create such flat and stable areas at no public cost. However, any
area suitable for development will need to be flat, require a variance from the
AOC requirements of SMCRA and possibly place more fill material in stream
segments. The punitive and overly restrictive mitigation measures contemplated
in the EIS such as conservation easements will discourage these types of
developments despite a clear and proven economic and social need for their
creation. In short, these mitigation measures are more akin to penalizing the
citizens and governments of the study area by complicating the private property
rights of landowners in the area, frustrating efforts to diversify the economy while
at the same time limiting the viability of the coal industry.
Accordingly, the final EIS should focus not on the ability of mitigation to
discourage fill placement as fill minimization is already addressed not only
through SMCRA but the 404(b)(l) guidelines
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Page IV.D-5 d. flsh populations, general comment, entire section:
As with other sections of the EIS, the statements in this section fail to account for
the scale and scope of mining impacts. If headwater streams are indeed hotbeds of
evolution, according the EPA CIS analysis only 4.10% of the streams in the study
have or could be affected by mining. Considering that headwater streams
comprise the largest portion of the region's streams at 60% of the total stream
miles, sufficient areas will remain intact for the occurrence of "natural selection
process that may result in the development of new species/subspecies'*.
Regarding the results of the EIS Fisheries Study, the Associations maintain that
this study cannot be relied upon to deduce MTM/VF impacts. The study was
extremely limited in scope and compared to patently different areas (New River
and eastern Kentucky). The USGS Fisheries Survey found two of the healthiest
fish populations in the area studied in watersheds associated with large scale
surface mining and valley fill construction.
a. Terrestrial
II. C.
Deforestation (page II.C.-7S)
General Comment
Any possible impacts from mining activities must be considered in terms of scope.
As paragraphs in this section note, technical studies conducted as part of this EIS
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have found that the dominant land use of the area is forestland with 92% of the
area being densely forested. Mining has disturbed only about 3% of the region.
The same study determined that mining, in conjunction with at! human
disturbances, would only affect about \ \% of the area.
elimination. of forested areas is mot going to occur in the region. Further, a
renewed emphasis is being placed on tree growth as a result of this EIS.
Considering that mining offers the opportunity to create soils that are superior to
native soils and that tree growth on reclaimed mines is possible if traditional
SMCRA imposed barriers to reforestation are addressed, the potential impact
estimates are likely liberal and forecast a much greater decrease than will actually
occur.
Page II.C-76, first paragraph:
PBS! Mining Ijmcl ( hes without trees were historically perceived to be
easier to achieve and less cosily, as well as result in a shorter liability
period for release of performance bonds.
This statement fails to consider all the factors that influence the selection of a
PMLU, such agency and community preference and regulatory achievability. As
noted in the next paragraph, the reason that reclamation with trees is not more
widespread is mainly attributable to SMCRA regulation and requirements related
to erosion control and stability.
Page II.C-76, last paragraph.
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Il it possible other eaaumtic taeentlvm could encourage refttmstiitlint.
A reference to mitigation should be added to this discussion. As noted elsewhere
in the EtS and its appendices, the value of headwater streams subject to valley fill
construction is the terrestrial-aquatic interface. Any reforestation initiative that is
coupled to a stream restoration/mitigation project would further replace this
function. Accordingly, reforestation should be considered when assessing
required mitigation, as noted by the first paragraph under section a. 1, CWA
Program on page ll.C-7;
The protection and/or restoration of forested riparian habitat as
part of aquatic resource enhancement may result in mitigation
credit by the COE for CWA section 404 permits.
Page II.C-83, Action 14, general comment, entire paragraph:
Action 14: /f Legislative authority is established by Congress OF the states,
the SMCKA regulatory authorities wilt require reclamation with trees £»•
the post mining land use.
Advocating such an action is unwise. As noted in our previous comments, no
evidence exists that mining activities will result in massive deforestation of the
region. The CIS determined that mining mid all other human disturbances will
only impact about 11% of the existing forested areas within the study area.
Assuming the worst case scenario, that all future mining would result in the
replacement of dense forest with other habitats the region will remain S7.5 %
forest land.
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A programmatic tree growth mandate imposed through Congressional edict would
remove the opportunities for mining to create alternative land uses and conditions
Suitable land for development remains one of the greatest social and economic
barriers in the region. Mining offers a unique opportunity to improve the usability
of lands that are otherwise steeply sloped and undeveloped with little or no
additional cost. Economic diversification and social stabilization (by relocating
flood prone communities) are real possibilities only if alternative post-mining land
uses, other than reforestation, are preserved in the regulatory program,
Page II.C-90, Section 11, Threatened and Endangered Species, General
Comment, Entire Section:
As noted in our previous comments, the statements and assumptions fail to
consider the scope of the activities in question. The CIS determined that mining
affects only a small portion of the study area, which will remain dominated by
densely forested areas. The s»me technical study found that headwater streams
comprise 60% of all streams in the region and fliat mining has (he potential to
impact only 4.10% of these streams. In preparing the BO, the agencies MUST
consider these factors. It is very apparent that neither mining nor any human
activity is going to result in massive elimination of existing fish and wildlife
habitat.
The EIS terrestrial studies failed to show that current mining and reclamation
practices were adversely impacting existing wildlife assemblages. In fact several
species thought to be rare and declining in the study region were actually found in
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reclaimed areas. For example, the edge effect created by mining disturbance was
determined to be a habitat for Cerulean Warblers.
To be adequate, the BO must also consider the positive effects of mining-created
habitats for certain species of wildlife. The terrestrial technical studies found
several species on reclaimed mined lands that were rare in the study area. Several
of these unexpected species are also targeted for conservation efforts. However, at
least one of the technical studies went to great lengths to ignore these terrestrial
gains. The same mistakes cannot be repeated in the BO if it is to adequately
protect T&E species.
Page ITt.B-11 Last three paragraphs concerning topsoil:
The statements and observations made in these paragraphs imply that topsoil is the
most important factor in establishing tree growth. It is common knowledge that
the native topsoils of the area are remarkably thin and subject to "wasting" or
being destroyed or lost during any efforts to collect and stockpile them for later
use. Such statements conflict with EIS technical studies, research conducted
independent of the EIS and even statements made in subsequent paragraphs of the
narrative,
EIS technical studies have proven that soils created during mining can be of
greater value than the existing native soils. An overreaching historical observation
that has been confirmed by studies conducted outside of the EIS is that
prescriptive SMCRA regulations regarding compaction are the chief detractors to
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reforestation on mined areas. As noted in the Wtewittg partgsspht of the EIS
Prior to the passage of SMCRA, most surface-mined land in the
east and Midwest was reclaimed with trees. The quality and
productivity of these lands varied, but, in general, reforestation
was successful and commercially valuable forests were created.
With the implementation of SMCRA-based rules and
regulations, the percentage of land reclaimed forest dropped
significantly. The rules, as typically interpreted and enforced,
resulted in intensely graded landscapes with erosion control
provided by herbaceous vegetation. In this post SMCRA
environment, reforestation was difficult and productivity of
those lands was disappointing.
Deep rocky soils with the appropriate chemical composition can
be produced through mining and reclamation, and will support
forests that are more productive than those supported by the
thin natural soils typical of the Appalachian Mountains.
EIS II1.B-12.
Page IIt.F-7, second paragraph:
This chtmge m habitat has resulted In a shift />/ the distrihutioti of birds
throughout southern ffest Virginia with an increase in the abundance of
edge and grassland species at reclaimed mine sites.
While the technical studies do indicate that edge and grassland species are
occurring on reclaimed mine sites, it is entirely inappropriate to extrapolate these
results into the conclusion that a "shift" has occurred throughout southern West
Virginia. As noted in our previous comments, the Cumulative Impact Study DOES
NQT indicate that past, current or future mining will eliminate or substantially
reduce existing forest cover. West Virginia and the majority of the region will
remain dominated by dense forest cover. Further, both the Woods and Edwards
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research and the Canterbury research has documented the occurrence afforest
interior species in the forest edge habitats created by mining activity, including the
presence of species that are of conservation concern. This statement also conflicts
with subsequent paragraphs in the E1S narrative:
Eighty-four of 92 "probable" or "confirmed** breeding birds,
based on data presented by Buckalew and Hall (1994) in the
West Virginia Breeding Bird Atlas were confirmed at
mountaintop mining sites in southern West Virginia in 1999 and
2000 (Woods and Edwards). The eight species identified by
Woods and Edwards (2001) are not associated with habitats
associated with mountaintop mining sites (residential and urban
habitats/ E1S III.F-7.
The presence of 84 of the 92 expected species clearly does not indicate a "shift" in
the bird community. The Associations suggest that ttie statement referring_to a
"shift" in the bird community be deleted since it is unsupported.
Page III.F-7, fourth paragraph under Birds section:
Species richness and abundance of songbirds is higher in shrub'pole
habitats of ' mouniatntup mining sites than in grasslands, fragmented forest,
and intact forest habitats (Woods and Edwards, 2001).
Page HI F-7, fifth paragraph under Birds section:
Mountaintop Mining sites are known ID support at least ten grassland and
shrub bird species not previously listed in the WY BRA (Woods and
Edwards). Grassland birds are declining throughout much of the United
Slates. Three grassland species listed as "rare" in West Virginia are
known to occupy moimlaimop mining sites in southern West Virginia,
Based on the tbove referenced statements and the underlying technical research, it
is apparent that current rtiountaintop mining and reclamation practices are creating
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hgbittts that foster terrestrial diversity. EPA's CIS results indicate dense forest
will remain the dominant land use of both West Virginia and the region. Unlike
the forest habitat, which dominates the study area, grasslands/shrub habitats are
rare in West Virginia. This data leads to a logical conclusion that the diversity
created by these mining produced habitats far outweighs the site-specific declines
observed in the forest-interior species.
In general, species richness and abundance are expected to be greatest
from diverse habitats like the shrub pole communities and lowest in the
least diverse habitat* like grasslands,
While this statement may be factually correct, it implies bias since intact or dense
forest can be expected to be equally less diverse as the grassland areas.
It is possible that some of the grassland bird populations on mountaintop
mining sites reclaimed with herbaceous cover are existing as "sinks ",
"Sink populations are maintained by immigration because death rates
exceed birth rates.
This statement is unsupported by the technical research, especially considering the
conclusions regarding available breeding habitats for the grasshopper sparrows
which are summarized in subsequent sentences in the same narrative paragraph.
Further, since the largest habitat of the area is dense forest cover and grasslands is
one of smallest, where would the birds be migrating?
Page IH.F-8, second paragraph:
Some argue that mountaintop mining has the potential to negatively impact
many forest songbirds, in particular neotropical migrants, through direct
loss and fragmentation ofmature forest habitats. Forest inter/or
species... have significantly higher populations (at least one year of the two-
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year study) in intact forests than fragmented'forests. Furthermore,
cerulean warblers., are more likely to be found in a forested area as
distance from a mine increases. These data suggest that forest*intvt*ior
species are negatively Impacted by mountainlop mining through dima loss
afforest habitat and fragmentation of the terrestrial environment.
The data presented in the E1S technical studies DO NOT support such a
conclusion. Higher populations of forest interior species in intact forests versus
fragmented forest in one year of a two year study are far from conclusive.
Page III.F-9 Mammals section
Small mammfli species richness does not differ between grassland,
shrub-pole, fragmented forest, and iniact forest habitats from mmmtairUop
mining sites in southern West Virginia. Small mammal species abundance
lends to be greater in grassland and shrub;pole than tn fragmented and
Intact forest habitats.
Of a possible 58 species expected to occur in the study area, 41 »rere
encountered.
The 41 species included 12 salamander species, 10 toad and frog specie!:, 3
lizard species, 13 snake species, and 3 turtle species.
This statement provides even further evidence that mining and current reclamation
practices create valuable habitat in the study area that results in mammal diversity
as opposed to the dominant land cover of dense forest,
Mmtntaintop mining results in greater soil disturbance than forest clearing
so a longer titne may be required for recovery of salamander populations.
While recovery of the salamander populations on mountaintop mining areas may
be slower when compared to rates associated with other disturbance, the most
important fact is that salamanders do frequent the habitats created by current
reclamation.
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Page IILF-9 throtign F-10, Interior Forest Habitat and Area Sensitive Species
Interior forest habitats are relatively rare and easily lost.
This may be a true statement nationally, but is simply not the case in the study
area. As previously cited, the CIS found the study area will remain 87.5 percent
forested if all future mining impacts are combined with all human disturbances.
The CIS also assumes a worst case scenario for turning by assuming that all
reclamation areas will be returned to grasslands and no renewed emphasis on tree
reclamation will take place.
Ktudies conducted at reclaimed mtiuii/ainliip mining sites in smilhern Ir'eit
Virginia have yielded forest interior bird species in sjtrub pole and
fragmented forest habitats as well as intact forest liabttals. However, the
abundance of forest Interior bird species was significantly lower in
fragmented ft iresls than iniact forest suggesting a detrimental impact.
The presence of these traditional forest interior species in the edges and shrub/pole
habitats created by the reclamation process do not support the conclusion that
forest fragmentation is negatively impacting these species in the study area. The
next statement, that interior species w«re significantly lower in fragmented forest,
is not supported by the Woods and Edwards Report. A lower abundance was
found for only six of the forest interior species. Six species out of 47 clearly does
not support the conclusion that detrimental impact is occurring.
Page IH.F-11, §ec«nd paragraph under Deforestation
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It follows that deforestation of large portions of the Appalachians through
mmmiaintop mining is a significant concern from the standpoint forest-
dwelling wildlife, in particular, forest interior species.
This statement conflicts with the findings of the CIS and the terrestrial technical
studies. The CIS found that abundant habitat will continue to exist in the region
even when mining disturbance is assumed to have the greatest impact (no
reforestation) and raining is considered along with all other human activities.
According to the CIS, the area will remain 87.5% forested. The Woods and
Edwards terrestrial technical study found that forest-interior species were present
in the fragmented forest area created by mining. As noted in a subsequent
paragraph in this same section, a majority of species have the same abundance in
the fragmented forest as the intact forest;
Furthermore, with the exception of a few rare species, the
densities of songbirds on grassland and shrub/pole mountaintop
mining sites was similar to that reported in other studies
indicating the quality of habitat and availability of resources is
similar to the other sites. EIS III.F-11.
In other words, mining has created habitat favored by these traditionally forest
interior species.
The above findings provide evidence that mmtntaintop wining practices
provide favorable conditions for some species. However, these advantages
may no! AW/?av.v the disadvantages these practices have on the
sustamability of plants and wildlife in the region.
The technical studies do not indicate that mining and reclamation practices have a
disadvantageous effect on plants and wildlife in the region. First, greater growth
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rates of trees and plants have been demonstrated to be tecimicilly feasible if the
traditional SMCKA barrier of over compaction is addressed. Second, the CIS
determined that future mining and other disturbances will not result in a dramatic
shift in the existing land cover of the region, with 87.5% of the study projected to
remain dense forest cover. With regards to wildlife, the technical studies have
shown that traditional forest-dependent species are present on reclaimed areas and
that grassland and shrub/pole habitat species not associated with study area are
also present on reclaimed areas. At worst, mining and reclamation is increasing the
biodiversity of the area.
Page tll.F-12, first full paragraph, general comment:
The EIS has already acknowledged that existing rules and regulations imposed by
SMCRA are the biggest factor preventing reforestation. With the renewed
emphasis on reforestation and tree growth that will result from the EIS
alternatives, it is reasonable to assume that tree reclamation will increase in the
study area. However, if tree reclamation wts not advocated in the EIS
alternatives, scientific research indicates that these grassland and shrub/pole
habitats are supporting a healthy and diverse terrestrial community with species of
both forest-interior and grasslands being recorded on reclaimed areas. The CIS
has found that neither mining nor any other human activity will result in a massive
conversion of the study area from dense forest to another land cover indicator.
Page IV.C-5, first paragraph:
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There are also indirect effects related to removal of forest associated with
mining, Studies have shown thai trees help remove certain dements from
our air and sequester them. This process is known as "carbon
sequestration."
According to the tables summarized on the pages preceding this paragraph, all the
states within the study area will remain dominated by forest cover and continue to
provide the valuable carbon sequestration function. Further the U.S. Forest
Service's Forest Inventory and Analysis indicates that the average annual cubic
feet of forest growth exceeds the average annual rate of forest loss for all states in
the region.42 This information is summarized on page IV.C-2:
data, based on the forest census in Wot Virginia (1989),
Virginia (1992), and Tennessee (1999), shows that the average
annual cubic feet of forest growth exceeds the cubic feet afforest
loss by 10 million cubic feet in Virginia, 2-llmillion cubic feet in
Tennessee and 25? million cubic feet in West Virginia.
These growth to loss ratios will increase as new reforestation efforts are
implemented by OSM and state regulatory authorities to encourage tree growth on
mined areas. Therefore, it is apparent that the carbon sequestration ability of the
region will persist and even improve.
Page II.C-87, Flooding, General Comment, entire section:
This section summarizes various site-specific technical evaluations of the flooding
potential of surface mining and associated valley fills. Collectively, the results of
these various studies lead to one conclusion:
" Data lor similar cut/growth ntiios was not available for Kentucky.
...the study findings generally support a conclusion that
downstream flooding potential is not significantly increased by
existing mining practices so long as approved drainage control
plans are properly applied. EIS IV.I-7.
Any possible increased flow potential from mined and/or filled areas are site-
specific issues that must be addressed on a permit-by-permit basis. Because of the
wide variability in results where flow increases where detected, no programmatic
or endemic conclusions can be drawn, as this section correctly notes:
Studies prepared as part of this EIS and other available
literature indicates that peak runoff increase or decrease below
mining can occur. Site-specific analysts is required based on
many factors...
It is difficult to generalize mining impacts on runoff. Due to site
conditions, increases In peak runoff may not cause or contribute
to flooding.
Other sections of the EIS note that the study area is naturally prone to flooding
given the topographic characteristics of the region:
The rugged terrain of this r«gion is generally characterized by
steep mountain slopes, confined river valleys and narrow ridge
tops. EIS IH.A-1.
Because of the topography and terrain in steep-sloped
Appalachia, flooding occurs in severe weather conditions. Draft
EIS IV.H-1.
Repeated, severe flooding has plagued certain areas within the study region for
centuries, certainly before the advent of surface mining. The stark reality is that
topographic influences lead the area to be more prone to flooding events . These
same influences forced residential, infrastructure, transportation and commercial
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development into documented floodp!ai« areas. On page HI.R-5, the EIS presents
the results of the Land Use technical study confirming these observations:
The steep slopes and narrow, flood-prone valleys have limited
the availability of land parcels suited for large scale
development.
Despite these observed restrictions, development and residential construction as a
matter of practicality has occurred in these flood-prone areas, subjecting residents
to repeated and unfortunate flooding.
Surface mining provides a unique, no public cost opportunity to alleviate some of
these conditions by providing flat, stable land that is far elevated from the
"narrow, flood prone valleys" that possess most of residential settlements in the
study area. Historically, periods of government attention were focused on
relocating flood prone communities to reclaimed, non-AOC surface mined areas.
Unfortunately, what would otherwise serve as a tool of stabilization both
economically and socially- massive relocation of these areas- has never been
succinctly expressed or implemented and emerging environmental restrictions
such as excessive mitigation requirements and fill minimization mandates may bar
this from ever occurring.
Page 1II.G-3, General Comment, Peak Flow Study:
The Associations generally agree with tire conclusions of the Peak Flow Study,
insofar »»the results highlight the need for site-specific permit analysis as the
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decrease* tad increases in flow indicated by the wious models differed for each
area analyzed.
The OSM-COE studies presented in this section underscore the reality that an
increase in flow does not translate into an increased flood potential. Based on the
results of the OSM-COE models, even the highest peak flows indicated by the
studies did not cause a rise in water levels that would exceed channel capacities
and lead to flooding downstream under the 10 and 100 year scenarios modeled for
these areas:
...the predicted increases in peak flow would not have CM used
flooding on the banks outside the receiving stream channel. EIS
ra.G-4.
...increases in peak flow did not cause a rise in water level
overtopping the receiving stream channels. EtS HI.G-6.
Even though the water levels predicted by these site-specific analysts increased
compared to pre-mining conditions, these increases DID NOT result in or cause
flooding. As noted on page IO.G-6 of this section:
Flooding typically occurs only when water levels exceed channel
capacities and spread across the floodplain where residential
settlements may occur.
Additionally, as runoff travels farther downstream, any increase in flow become
less discernible. Thus, the downstream impact from any possible runoff increase
in the headwater areas becomes less pronounced the farther removed a location is
from the disturbed area:
The Influence of changes in the headwater areas will decreases
as the point »f analysis Is moved farther downstream.
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EIS HLG-6.
in terms of results, the actual data from the various studies are only partially
presented in Appendix H. While the HEC-HMS computer rnodel data appears in
each of the 10 studies, the SEDCAD 4 modeling data presented in the chart on
page IT1.G-5 does not. The SEDCAD 4 models returned results similar to the
HEC-HMS, but predictions of peak flow were significantly different under certain
conditions. Without the opportunity to review the SEDCAD 4 data in detail, the
Associations are without sufficient information to offer specific comments.
Unless the supporting data is provided, the SEDCAD 4 results should be removed
from the final EIS.
Page tll.G-7, Fill Hydrology Study:
The technical study summarized here, Comparison of Storm Response of Streams
in Small, Umnined and Galley-lolled Watersheds (Appendix H draft EIS)
determined that the mined and filled watershed exhibited higher peak flows than
the non-mined "control" watershed when rainfall exceeded 1 inch per hour.
This veracity of this finding is compromised by the location of the sampling
station on the filled watershed. On page seven of the technical study, the USGS
indicates that the measurement point for the filled steam was located between the
toe of the valley fill and the sediment pond, thereby excluding any possible flow
attenuations provided by the sediment pond.
During most storms however, peak flow from the unmined watershed
exceeded ptak from the filled watershed.
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This finding comports with other observations and technical research that
generally found sustained base flow and lower peak flows in mined areas results
from the hydrotogic characteristics of backfilled spoil and valley fills:
Creation ofvaH«y fill aquifers change th« hydrology of streams
receiving baseflow from valley fill aquifers by diverting a greater
percentage of precipitation into the fill allowing water to be
released at a much slower and less intense rate compared to
normal storm-induced stream hydrographs. EIS Hl.H-9.
On page 20, the authors of the technical study properly observe that:
Rainfall-runoff relations oit altered landscapes are site specific
and reclamation practices that affect storm response may vary
among mines.
This statement further supports the Associations' position that no programmatic
conclusions can be drawn with respect to mining and/or valley fill influences on
flooding potential.
Page II1.G-7, July 2001 Floods Study:
Titled Comparison of Peak Discharges Among Sites With and Without Valley Fills
for th& July 8*9 Flood in the Headwaters of Char Pork Coal River Baa in,
Motmtainlop Coal-Mining Region, Southern West Virginia, this study attempted to
determine whether mining had any adverse impact in the July 8-9 severe flooding
event experienced across central and southern West Virginia including the Clear
Fork area.
The basic premise of this study- that there was equal rainfall among the six
analyzed basins proved to be incorrect. The flood recurrence intervals (and
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therefore rainfall amounts) in the six basins were unequal, compromising any
possible conclusions, since a watershed receiving more rainfall is going to exhibit
higher runoff than one receiving less rainfall.
Given the confounding factors that have compromised the basic assumptions of
the study, the Associations believe the Report offers little of real value and its
reference should be deleted from the final E1S,
Page III.G-8, Citizen Complaint Study:
A review of the underlying citizen complaints that support this section confirms
past assertions made by the mining industry with respect to flooding: The areas
where mining occurs are naturally prone to flooding and provided that the
approved drainage control plan is followed and the drainage control system is
functioning per regulatory requirements, mining has no adverse impact on either
flooding potential or the severity of flooding. Despite 126 complaints in West
Virginia from 1995-1999, only tight of these complaints resulted in enforcement
actions related to drainage control structures. Similar results were found in a
review of Kentucky (35 investigations, five enforcement actions) and Virginia
(three investigations, no enforcement actions) SRA records.
Page III.G-8, Other Studies:
This section presents the results of two state specific studies undertaken in
response to specific severe flooding events. This first, RunoffAnafysis of Seng,
Scrabble, and Sycamore Creek was conducted by the West Virginia SRA. The
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summarized results of this study confirm the general conclusions of the draft EtS
and the suggested alternatives related to flooding potential: Mining can influence
the degree of runoff, but the extent to which a decrease or increase may have
reduced or increased flooding potential is site specific. The West Virginia coal
industry was intimately involved in the preparation and review of this study as one
of several stakeholders on the Flooding Advisory Committee, and feels compelled
to identify in further detail the findings of (his review:
1. Mining may either have a positive or negative effect on total runoff and
that effect appears dependent upon the extent to which the original,
steep-sloped flood prone terrain and topography of the mined is restored
through the reclamation process,
2. In all three of the mined watersheds, the effects of documented,
increased flows were relatively small.
3. The rain event of the study period was so intense that flooding would
have occurred absent any possible influences from mining activity.
4. No programmatic conclusions was reached in the study regarding runoff
increase or decreases attributable to mining activity, as this would
require "long-term investigation and analyses, including an
investigation of every reach of stream" in the relevant watersheds.
Unlike the West Virginia undertaking, very little information is provided in the
EIS with respect to the Kentucky initiative, Joint OSM-DSMRE Special Study
Report an Drainage Control. This is unfortunate, as the most pertinent conclusion
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of this study is one that deserves prominent replication in the E1S because it serves
to confirm the results of the other technical research and me ultimate conclusion
reached in the draft EIS with respect to this issue:
I' actual results garnered front the study indicate that the
majority of the alleged downstream flooding problems were
more a result of localized, extremely heavy precipitation events
that led to flash flooding, which would have occurred with or
without the mining operations being present. *"
III.I-1) Overview of Appalachian Region Coal Mining Methods
National industry trends have favored surface mining over underground
mining in recent decades, driven by the advent of very large earthmoving
equipment, ami surface mining now accounts for the majority of nationwide
coal product ion.
The shift in coal production methods from underground mining to surface mining
can be attributed to events that occurred independent of the availability of large
equipment. Relatively large scale surface mining has occurred for decades in coal
producing regions other than the study area, where surface mining is generally a
recent phenomenon that can be attributed to shifting coal markets. In the
anthracite fields of Pennsylvania, the lignite regions of Texas and the coal fields of
the Midwest large scale surface mining has a history dating back to before the
1950's. By 1971, the amount of coal produced from surface mines exceeded the
amount produced from underground mines nationally. Since then, surface mines
have accounted for an increasing percentage of the nation's coal production with
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much of the increase occurring at western surface mines and in particular mines
developed in ef- the Powder River Basin:
Much of the increased coal production in the United States,..is from
large open pit mines in the western region.*1
The coals seams and overburden characteristics in this region make underground
mining difficult if not impossible. Unlike coal regions in the southwest, midwest
and eastern United States, overburden to coal ratios in the Powder River Basin are
extremely low. What overburden material that does exist is unconsolidated,
"weak" material better characterized as "soil":
...the coal lands of the Western region an underlain by flat
lying or gently dipping beds of lignite or sub bituminous coal.
Some of the seams of sab bituminous ceal are 70 feet thick or
more and He at relatively shallow depths; overburden ratios
commonly are 1:1 or less. Thus most of the coal produced in this
region is from large surface mines in such seams.4'
The second driving force behind a movement towards surface mining can
generally be seen in the Central Appalachian study area. With the passage of the
1990 amendments to the CAA, a substantial market was created for steam coal
that could satisfy new emission mandates. The coal seams and reserves in Central
Appaiachia developed as a result of this market demand lend themselves better to
surface mining than to underground mining for a number of reasons, including the
cost benefits realized from larger surface mining equipment. Prior to passage of
the 1990 amendments to the CAA, mining in the study region was largely linked
•° Mm OSU'DSMRE Special Study Report on Drainage Control, 1999.
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to metallurgical coal production. These seams ate better accessed by underground
mining methods as they ate deeper in the geologic column than seams associated
with steam coal production. Historically, steam coal production in Appalaehia
was concentrated in the Pittsburgh seam in northern West Virginia and associated
more with longwall underground mining. Commensurate with the increased
demand for "compliance" stream coal was a precipitous drop in the demand for
metallurgical coal production. Reduced domestic coke production, a result of
decreased raw steel production and increasingly restrictive emission standards for
coke ovens has drastically lowered demand for metallurgical coal.
The term "motintatnlop mining" used in this EIS encompasses three
different kinds of surface mining operations (contour mining, area mining,
and nivuntaintop removal mining) that create valley fills.
The final E1S should be revised to more felly acknowledge the potential affects
the various policy options under consideration will have upon underground coal
mining operations. On page lII.K-15of the EIS, the agencies identified 719 valley
fills that were permitted for underground mines. As this statistic reflects,
underground mines iti this steep sloped area also require the construction of valley
fills. These flits facilitate creation of a flat, level bench that allows access to the
coal seam and permits construction of underground support facilities such as
ventilation fans, raw coal belts and stockpile areas, bathhouses and electrical
installations such as battery charging stations. These benches also serve as
"staging areas" for the underground mining operation where supplies are
stockpiled and equipment is serviced. Past interim regulatory initiatives such as
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the 250-gcre watershed restricrioti on vtlley fills have applied to fills constructed
for underground mining, as will the alternatives considered in this EIS. To
provide a true picture of mining in the region and likely results of the various
alternatives, underground mining must be included in this and other descriptions
contained in the fmel EIS.
Page III.I-I
Current technology achieves nearly the highest possible recovery a/the
coal reserves beneath a typical tract a/Appalachian land; however, this is
neither always economically feasible nor acceptable from an environmental
standpoint,
Mining in general and surface mining in particular is one of the most heavily
regulated industrial activities in the nation. Several major environmental statutes
have jurisdiction over coal extraction, including a single environmental program
mat was developed by Congress specifically for coal mining. If mining was "not
acceptable from an environmental standpoint", the vast statutes and regulations
and the various federal and state agencies that regulate this activity would not
allow t mining permit to be issued. In fact, this EIS confirms the viability of these
existing regulatory programs in that no more than temporary, minimal impacts
could be linked to surface mining in the region. A more proper statement would
be "not acceptable to some", as this EIS can be attributed not only to misguided
litigation but hyperbole surrounding mining arid valley fills and exaggerations
regarding the scope and scale of these activities within the study area.
Page IiI.I-3, Underground Mining Methods
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Although nat directly minted to theftxm of this EIS on surface mining
valley fill impacts, underground mines are pan of'the overall coal industry
within the study area...
The statement above repeats a very serious error already cited by tile Associations:
the failure to associate underground mining with valley fill construction. This
statement also fails to acknowledge to interrelationship of surface mining to
underground mining. Many underground mines exist solely to provide blending
stock for coal produced through surface mining methods as part of large mining
complex much like the one described on page HI.1-26. Since surface mined coal is
generally of a better quality than coal mined using underground methods (because
rock partings and other impurities present in the coal seam can be removed in the
pit), many underground mines could not produce a marketable product unless
blended with a turface mined product.
Page tII.I-26 Mountnintop Mining Complexes, general comment,
entire section:
This section provides fairly accurate description of current mining and coal
processing practices in the Central Appalachian region, with one exception. As
with other sections of the EfS, it neglects to mention the interrelationship of
underground mining to surface mining. As we have stated previously, raw or
unprocessed coal produced by both methods of mining is usually needed to
produce a marketable "clean" product that meets the emission and volatile
requirements of the customer. Should any either source of raw coal be eliminated,
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the ability of the "complex" to provide a greater range of clean coal suitable for a
number of applications and customers is reduced;
Many deep mines are co-dependent on related surface mines for
quality Mending requirements and even economic avenging
arrangements. Eliminating or reducing the surface mining has direct
impact on the viability of the deep mining in these instances.J
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statement should be revised to more ctearJy reflect the conclusions of the technical
review.
Page IH.K-2:
In tlte late 1970 's and early 1980 's the durable rock fill method became the
predominate excess spoil disposal technique due to the cost efficiencies of
the technique.
As a general matter this statement is correct, but it should be expanded to include
safety considerations and the implications for direct stream loss.
Cost considerations drove development of this spoil placement method but other
considerations also influenced the move towards durable rock fill construction
such as truck haulage. On page IV. 1-8, the E1S describes the operational effects of
increased backfilling. Similar conclusions could be drawn regarding conventional
lift construction with the added dimension of operator safety. Haulage trucks
would be transporting spoil down grade on steep roads. Not only would
equipment endure increased physical wear in terms of brakes and other essential
systems, but instances of haulage accidents could be expected to increase.
Conventional lift construction also assures maximum disturbance to the permitted
footprint area. Durable rock fills provide the operator with the flexibility to
respond to unforeseen geologic conditions and economic factors by discontinuing
fill placement and reducing the direct impacts to streams. In convential lift
construction, the entire footprint area is constructed during installation of the
initial lift.
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Page HI.K-10, c. Valey Flit Stability
There has been anecdotal evidence that valley fill Instability (landslides or
landslips on fills) arc neither commonplace nor widespread; and, that
properly constructed valley fills are well-engineered and stable structures.
The EIS Steering Committee chartered a slttdy of fill stability to
corroborate perception with empirical information
The remainder of this section fails to confirm that the technical study corroborated
the anecdotal information, even though it was stated goal of the evaluation:
A review and analysis of the data indicates- that slope movements
in valley fills are neither commonplace nor widespread. As of
the completion of this rtady In November 2000, only 20
occurrences of valley fill instability are recorded out of more
than 4,000 fills constructed in the past 23 years. While these
instances of fill instability might 1m e been "major" as regards
the cost of re-engineering and corrective action to mitigate the
mass movement, the consequences were not Ins of life or
significant property damage.4*
The technical study also serves to dispel the notion that isolated movement of
material on the face of a valley fill equates to "failure" and that the results would
not be similar to the effects of the 1972 failure of an tin-engineered coal refuse
dam »t Buffalo Creek, West Virginia:
...catastrophic impacts over a great distance down
valley,..should not occur. An unstable valley nil would not be
expected to impact distant areas because:
-(Unlike the pre-SMCMA coal dam »t Buffalo Creek) fill designs
build In a substantial, long-term factor of safety against
instability and have specific drainage control measures.
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-No large quantity of water should b« present in properly
designed valley fills to lubricate the fill material into a flowing
mass that could transport for any great distance. The
regulations prohibit ponds on fills er fills impounding water
behind them. Even improperly designed (ills should have
minimal impounding potential.'19
Despite the overwhelming conclusion of the technical study that valley fills are
stable structures, the EIS narrative is misleading, as the results of the technical
study ate never firmly presented in relationship to first paragraph regarding
anecdotal evidence.
Page IU.K-2:
In Ike late 1970'.t andearly !9HO's the durable rock fill method became the
predominate excess spoil disposal technique due to the cost efficiencies of
the technique.
As a general matter this statement is correct, but it should be expanded to include
safety considerations and the implications for direct stream loss,
Cost considerations drove development of this spoil placement method but other
considerations also influenced the move towards durable rock fill construction
such as truck haulage. On page IVJ-8, the EIS describes the operational effects of
increased backfilling. Similar conclusions could be drawn regarding conventional
lift construction with added the dimension of operator safety. Haulage trucks
would be transporting spoil down grade on steep roads. Not only would
equipment suffer increased physical wear in terms of brakes and other essential
systems, but instances of haulage accidents could be expected to increase.
13-2-4
13-3-4
Conventional lift construction atso assures that maximum impact to downstream
areas. Durable rock fills provide the operator with the flexibility to respond to
unforeseen geologic conditions and economic factors by discontinuing fill
placement and reducing the direct impacts to streams. In conventional lift
construction, the entire footprint area is constructed during installation of the
initial lift.
Page IV.F-1, Energy, Natural, or Depeletable Resource Requirements
The three action alternatives and rite No Action Alternative may also
provide significant environmental benefit if mitigation proves infectsible In
certain locations, c0i*.vm# no mining to occur.
This statement, as worded is very misleading, ignores the results of the EIS
technical studies and should be removed from the final F.IS. Inclusion of such a
statement assumes that mining and valley fill construction activities have resulted
in more than minimal impacts on the environment of the region. This is simply
not true. As we have noted throughout our other comments regarding the
environmental concerns associated with mining in this area, it is clear that mining
and valley fill activities have not, nor will they ever have more than minimal
impacts on the environmental and social resources of the study area. What
environmental effects have been documented can be characterized as
improvements (wildlife diversity has increased, more stable sources of
downstream energy have been established, flat, stable, useable land can be
created). Absent voluminous studies and date to affirm this position with respect
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to individual environmental and social issues, past, current and future mining will
only affect a relatively small portion of the Central Appalachian landscape,
communities, and streams.
Significant environmental benefit will most certainly never occur in areas where
mitigation efforts could have alleviated existing degraded streams through any
number of water quality and habitat improvements. These existing environmental
detriments, identified elsewhere in the EIS present far greater threats to the overall
environmental health and stability of the region than does surface mining and
valley fill construction. These existing stressors affect a far greater scale of the
region that surface mining has or is forecast to affect, and the environmental
degradation associated with such stressors as AWL-AMD discharges is far more
serious than the loss of a headwater stream.
Some limited number ofresen'es may be recoverable by underground
mining or a combination of contour and augerhighwaH mining.
This statement too requires revision to be accurate. One of the pervading
mistruths regarding surface mining is that otiier extraction methods allow removal
of the same coal resource. The reality is that most seams currently being mined
using surface mining and valley fill extraction methods cannot be recovered using
underground mining. The seams are either physically too thin, the overburden too
unconsolidated to allow for safe mining or the reserve so isolated or small that
underground extraction is either impossible or hopelessly uneconomic.
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This statement also fitils to acknowledge flw dependence of underground mining
on valley fill construction. Assuming that the environmental restrictions
envisioned under all the EtS alternatives will apply equally to all mining related
fill construction (as they have in the past), in the limited situations where an
expansion of underground extraction can replace lost surface mine production, this
expansion will be constrained by the saine restrictions that may ultimately make
surface mining implausible:
...It is an egregious mistake to ignore Impacts of valley
limitations on deep mines, especially new ones. First, many deep
mines are co-dependent on related surface mines for quality
blending requirements and evert economic averaging
arrangements. Eliminating or reducing the surface mining has a
direct impact on the viability of deep mining in these instances.
Second, the typical reject rate In Central Appalaehla from a
wash plant associated with a deep mine is about 50%. Thus, for
every one ton of coal mined, one ton of refuse is placed in a
valley fill or related impoundment. In fact, the valley fills
associated with wash plant refuse arc generally among the larger
valley fills associated with coal mining (with generally larger
watershed) but are fewer in number than surface mining valley
fills. Third, the construction of a new deep mine involves other
valley fill issues. Often, a new deep mine is accompanied by a
new wash plant with a new valley fill for refute. Plus, in order to
"face up" the entrances to the new deep mine, a new valley fill
for the mine entrance is typically needed."
With respect to underground mining, a proper characterization would be "it is
unlikely that underground mining can replace surface mining in the extraction
these reserves."
*" FJS Appendix H: Final Rspon. Coordinated Review of Meumasntop Mining/ Valley Fill EiS Economics
Slydies..
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The second component of this statement, "...a combination of contour and
auger/highwall mining" is simply absurd and it ignores the underlying fact behind
the entire EIS: The Central Appalachian study region is steep-sloped and any
excavation for underground mine development, any variation of surface mining or
any other human development activity will result in the generation of spoil that
cannot be safely placed anywhere but in a fill. Because of the very nature of the
native terrain, with rare exceptions, "fill-less" mining or disturbance is simply not
possible. Very isolated opportunities may exist for the placement of generated
spoil on adjacent flat areas such as AML benches:
Abandoned mine benches, reclaimed mine sites or active mining areas
may accommodate some volume of excess spoil...
EIS 1V.I-2
However, these occurrences would be so rare and dependent on such a wide range
of factors that they deserve no mention as a reasonable alternative to valley fill
construction. No substantial amount of coal could ever be produced from an
operation that was dependent such an area for spoil placement.
Any reference to these two surface mining techniques should be deleted from
this statement,
... resources in U.S. coal basins within or outside of Appalachia and in
other countries exist io offset tost resen'es from the study area, if market
conditions change for regulatory or other reasons.
Fortunately, the U.S. has been blessed with an abundant reserve base of
recoverable coal resources to feed the energy needs of an expanding and evolving
126
society. However, not all of these coal resources are equal, tnd for the agencies
preparing this EIS to assume that lost Central Appalachian production can simply
be replaced from other regions is a serious error. Coal mined in Central
Appalachia represents some the highest quality coal found anywhere in the world.
Because it is low in constituents targeted by emission legislation yet high enough
in heating properties to satisfy utility input requirements, it may be the most
valuable coal in existence. Other regions, particularly the Power River Basin and
southwest, produce coal that is generally superior as far as emission standards are
concerned. However, resources from these areas fall far short in comparing to the
netting properties of coal from the study region.
This EIS has made no effort to analyze the available capacity of the Powder River
Basin, both in terms of coal production and more importantly transportation, to
assume the burden of energy production should policy and regulation sterilize the
substantial coal resources of Central Appalachia.
As for the other regions of Appalachia and the Mid-West, the continued
marketability of coil from this region is hampered by emission standards enacted
as part of the CAA. As we have noted in our other comments, it was the
imposition of these restrictions that ultimately spurred development of the
resources being extracted using surface mining and valley fill methods.
Further, there is no domestic substitute source for the metallurgical coal produced
in this region. Once the production of industrial and metallurgical coal is lost to
Central Appalachia, it is lost to the U.S. compelling reliance on imported coal or
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imported finished coke- A truly regretful situation. Reliance on foreign resources
can be tolerated where domestic sources are finite or nonexistent (as with
petroleum) but in the case of coal, the U.S. lias ample reserves, a highly trained,
well-compensated workforce and developed infrastructure to facilitate coal
extraction. At the same time, mature regulatory programs exist to assure minimal
environmental and social impacts of coal mining. Thus, there is simply no
palatable excuse, given the minimal effects of mining, for misplaced
environmental policy to drive dependence on foreign resources.
... economic impacts resulting from decreased coal mining could be locally
significant.
This is a gross understatement and one that requires revision to be accurate. A
more proper characterization would be "profound". At the request of the West
Virginia legislature, Marshall University conducted an analysis of the economic
effects of a severe restriction on surface mining within the state. Published in
2000 this study determined that the economic results of restricting surface mining
equated to the effects of the Great Depression: widespread economic and social
and devastation and dislocation."'
G. Cultural, Historic* and Visual Resources, general comment, entire
section:
Central Appalachia is indeed an area of rich culture and history worthy of
protecting. However, as the Associations have noted previously, mining will
11-9-4
51 Marshal! University Center for Btisiness arid Economic Research. Ow/ Protection Farecmts aftd
&owimk' lmpoi-1 Siwtttalions in SbHf/iem H'exl Virginia: A Special Report It) the B'etf llrginia Senate
Finance Committee, 2000.
128
never occur on a scale large enough to eliminate or even substantially impact these
values. Localized impels can, and will occur, but existing regulatory mechanisms
exits to protect the resources in these areas. As for community displacement,
again localized occurrences are possible, but because of the small scale of mining
activity, instances of displacement are no more likely than community
displacement in the same region or other areas from publicly funded projects such
as flood control and road construction.
II. Social Conditions, general comment, entire section:
The Central Appalachian region faces many social and economic challenges mat is
without dispute. However, the description of these conditions characterizes these
challenges as relatively recent phenomena and leaves the uninitiated with the
impression that they are attributable to mining. For decades government programs
such as the Appalachian Regional Commission have sought to enhance the social
and economic conditions of the study area. Despite all these positive influences
such as aggressive highway construction, problems persist:
Income statistics from the 1980 and 1990 Censuses Indicate that
the study area, as a whole, has a starkly lower Income than the
individual states,
Census statistics for 1980 and 1990 depict a poverty problem
throughout most of the EIS study area.
In twenty-four of the study area counties, ever one in every three
residents was estimated to live below the poverty level.
EIS IV.H-1.
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These demographic realities further stress the economic and social importance of
the coal industry. Coal mining activity creates substantial economic activity
through high-paying wages for coal miners and demand for goods and service
related directly to coal extraction. The ripple effect of this activity is tremendous
and mining is the only economic driving force in a majority of the study area:
The establishment of n new mine or the expansion of an existing
one affette both the economy of the local community where the
mine is located and the economy of communities far removed
from the mine site. This is because the United States has a
highly interdependent economy. What happens in the mining
industry eventually impacts many other industries. This Is
referred to as the ripple or multiplier effect. Recent
studies...using an input-output model indicate that the
multiplier effect for a new mine is several time* the magnitude of
production, income and employment of the mine itself. It is
estimated that a one dollar increase in coal production
stimulates a total of $6.30 of production throughout the
economy.
Likewise, the creation of one full job In a new or expanded
mining operation stimulates the creation of a total of 11 other
jobs elsewhere in the economy. As expected, personal income
also increases but not in proportion to employment. For every
dollar increase in personal income associated with coal mining
activity, there is a $4,83 increases in personal income elsewhere
in the economy.55
Just as it stimulates economic growth and earnings, the coal industry provides the
social infrastructure for much of the region through taxes. The draft EIS
summarizes the taxes collected on the coal industry beginning on page III.Q-9.
U.S. Department of the Interior Office of Surface Mining. [)r&ft Fjtvironmental Impact Statemwt, 1'alid
KxiaingRlglm. 1995.
In short, the substtntkl economic activity created by mining in the region serves
to alleviate these existing social problems, and coupled with the opportunities
provided by post-mining land use development, offers tangible expectancy for a
stable, diversified post-coal economy:
Mast leaders are also keenly aware that its coal resources are its
best sources for leverage of investments needed to build an
economy that can flourish after the inevitable decline of coal
mining. EIS IV.h-2.
I. Economic Role of Coal in the Economy
As long ca coal is required to supply a dominant portion of heal and
national energy* needs, the ability 10 extract I0w sulfur coal reserves
efficiently and cost effectively will occur somewhere in the nation (or the
world) to meet energy demands and cleafi air standards.
This statement is key to understanding the effect that increased restrictions will
have on the energy security of the nation, particularly the regions and industries
that have historically relied on coal supplies from Central Appalachia. Given the
current energy needs of the nation, utility, industrial, metallurgical or otherwise,
lost production from me study area will replaced by coal from other regions or
foreign sources. As we noted previously, the ability of other coal regions in the
U.S. to replace this lost production is limited for several reasons. First, the low
sulfur coal produced in the west has substantially lower heating values than similar
low sulfur Central Appalachian coal. Second, coal from other regions such as the
mid-west and northern Appalachia is high in constituents targeted by clean air
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legislation. Finally, a substantial portion of production from the study area is nsed
for steel making other industrial applications that demand specific heating, fusion
and chemical compositions that can only be found domestically in Central
Appalachian coal. Hence it is possible, if not likely that lost production from the
study area will be replaced by coal from foreign sources further reducing the
energy independence of the nation.
Higher mining costs due, in part, to environmental compliance... will result
in coal supplies originating from coal basins outside the ELS sluefy area
where compliance can occur,
This statement unfairly conveys the impression that compliance within the study
area has not occurred. This is simply not the case, as the EIS demonstrates. The
only issue that has been identified is related to new mitigation requirements
imposed by revisions to the COE's general permit program and the constantly
evolving interpretation of these mitigation requirements by the v»rious COE
districts:
Increased environmental costs...have not been a constant factor
in environmental compliance in the study until the 2002 renewal
ofNWP21. EtSIV.1-2.
As we have noted in our previous comments on other sections of the EIS,
application of these new requirements, particularly conservation easements, to the
study area is inappropriate and may not be the most environmentally beneficial
measures for the region. This statement should be revised in the final EIS to
properly reflect this reality.
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to.aattnces where cod tadittoaltv. suppled .from Cental. AflnalicMg.it teulaced
by foreign 4oaKes.-itD "environmental compliance can occur" because
the agencies have fatted to sport the vast environmental controls imposed in the
study reiiion .to forejaa goal baiins. The statement should be revised to reflect the
knowledge that displaced production will likely be supplanted at le«st in part by
coal from other regions of the world that lack the environmental controls of the
U.S.
New capital will be required to "ret-too)" in order to conduct more
cotttour'atiger mining to reduce valley Jill sizes, lower mitigation costs and
still meet coal market demand.
As with other sections of the EIS, this statement incorrectly leaves the reader with
the impression that these particular mining methods are conducted without vaUey
fill construction and that they are mutually exclusive production methods. Since
they are activities that require excavation in the steep-slopes of the study area,
these two mining methods by definition will result in valley fill construction.
Further, as the EIS notes on page III. 1-26, these surface extraction methods usually
occur in conjunction with underground and other surface mining developments.
All of these mining methods are usually necejsary to produce marketable coal;
Many mines rely on blending the products of different surface
mines or a combination of surface and underground coal to
conform to supply contracts for particular coal quality. Also,
transportation and coal preparation costs associated with
•mailer and underground mines are sometimes related to the
proximity of larger mtnes with existing Infrastructure. If the
infrastructure is not available, new smaller mines may not be
practical. ElSlV.t-4.
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A proper revision would delete reference to these two mining methods and
associate "re-tooling" costs to the smaller equipment associated with reduced
operations and reduced recoverable coal reserves.
... Declines in surface mining production typically result in some amount of
commensurate increases in underground production and employment.
This statement requires revision to accurately portray the realities of mining and
the anticipated results of new, restrictive environmental policy. As we noted
previously the effects of the alternatives contemplated in the EIS will affect
underground mining, either directly through valley fill constraints or indirectly by
reducing surface mined coal that is blended with underground production to
produce a saleable product. Consequently, a short-term increase in underground
mining employment may result from a decline in surface mining production, but
given the interrelationship of mining methods, any increase will be short-lived. A
reduction in surface mining employment will eventually equate to a reduction in
all mining employment as the effects of surface mining restrictions are extended to
underground mining. The cited statement should be revised in the final EIS to
properly reflect this relationship.
// is reasonable to assume that required mitigation costs (i.e., to offset
valley fills) will result in future MTM designs with reduced valley fill sizes.
This statement requires revision to properly frame increased mitigation costs
within the context of other regulatory requirements imposed by SMCRA and
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CWA. As we .have noted previousty in our comments, maximum fill minimization
is already achieved through application of SMCRA's AOC requirement and
compliance with the CWA's section 404(bXl) guidelines. Since there is simply no
other way to facilitate coal removal by any extraction method absent the existence
of a valley fill, increased mitigation costs will act as punitive measure for
unavoidable direct impacts and could unfairly hinder post-mining land uses in a
region in serious need of flat developable land. A Revised Version of the sentence
would properly acknowledge that operations assure fill minimization by satisfying
the AOC mandate of SMCRA and the 404(b)(l) analysis of the CWA. Any
further fill reduction thtt occurs will result from mitigation costs reducing the
economic or practical viability of the operation.
The Hill & Associates sensitivity analysis projected.-..
The Hill & Associates (H&A) work summarized in the EIS rjrc^yjiitsjjniyji
"vision" of what will happen to the wining industry if valley fills are restricted
directly (watershed specific prohibition on fills) or indirectly (increased mitigation
requirements reducing the viability of a mining operation). The results of the.H&A
work produced very conservative estimates of the possible effects of fill
restrictions because of certain restraints inherent in the modeKsi.
The H&A analysis relied on another EIS technical study conducted by Resource
Technologies Corp. (RTC) known as the "Phase I" economics study, which used
macro-GIS models to estimate the amount of available coal recoverable if valley
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fills were limited to certain specific watershed acreage. The validity of this
analysis is questionable, as the cover sheet to Appendix H notes:
V alley fill locations used in the study exceeded the watershed
size thresholds established by the study (I.e. fills were placed in
watersheds greater than the scenario limits). The .Phase 1 rtudv
fill. Locations, were inconsistent with .basic engineering principlts
and typical raining practice to locate fills in valleys as opposed to
on hillsides.
Further, the phase I study relied on consideration of future
mining based on areas where past mining had not occurred. A
number of the potential mining sites utili/ed in the Phase I
analysis have subsequently been determined to have been mined,
consequently overestimating the available future resources for
the Phase. ,1 scenarios. The study attempted to take into account
mining engineering considerations such as overburden ratios,
the volume of resource block, topography, etc., to assess resource
recovery feasibility. However, the computer model was not
designed, nor did the data exist, to account for every critical
mining engineering factor, such M coal quality, mineral and
surface ownership conflicts, and other very site-specific
elements.
The•_Steerig^CoMjjjMtc_ceMgguM!jjy_tojijjd tiytt-tittJitfe
specific.. results .of .the Phatt I Economics .study have limitations
and should n»t be relied on to be representative at potential
future mining and fill areas...with respect to production change
estimates.
Despite the study limitations, the computer modeling clearly
indicates- a trend related t» reductlanIn av»(tel)lft vajUey.flH
storapand the antaant of reserves recoverable. The study
Illustrates, from a regional perspective, that restricting valley
fills .to.sni»llw»t8rsl>8ds»nuld_c.qiuiuen>HratelY.restrict mining
feasibility and minimizes full resource utilization.
The H&A work, or "Phase If of the economics analysis, relied on flawed inputs
from the Phase I study;
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Because the Phase tl Eeo-nesiie Study used the results if the
Phase I Economic Study, the (phase 111 study results also have
limitations.
In addition to receiving flawed data from the initial analysis, the H&A work also
failed to properly account for the increased mining costs associated with smaller
fills:
In the original Phase II study, no adjustments In costs were
made to reflect changes in material handling and haulage
methods resulting from fill restrictions. The costs were also not
adjusted to reflect the reality that fill restrictions would likely
necessitate a change from large mining equipment to smaller
equipment. A shift from fewer larger fills to many smaller fills
would require construction costs for additional sediment ponds-
not part of the initial Phase II assumptions. Finally, the initial
modeling runs in the Phase II Economic Study did not project
an increase (in| the required return on investment (HOI) capital,
which is estimated to be as high as 20%.
The serious limitations in the initial Phase H study lead the agencies to
commission H&A to conduct a "sensitivity analysis" to more accurately reflect the
reality of mine economics:
The E1S Steering Committee sanctioned a sensitivity study by
Hill and Associates to evaluate these limitations. The sensitivity
study was designed to determine how the results of the initial
Phase II study would change if a different set of Phase I
assumptions and inputs were used. Modeling inputs, drawn
from mining experience were used to indicate the direction and
the magnitude of Phase II study output change resulting front
adjusted sensitivity inputs.
The sensitivity runs confirmed earlier results Indicating that coal
production was sensitive to lower reserve recovery because of
smaller fills. Production decreased by approximately 10 percent
over the initial study results. The prlee of coal was somewhat
sensitive to the model assumptions adjustments, reflected by
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approximately $2,00 more per ton under the watt rtttrlctive
scenario over the base scenario. This impact is double that of
the original Phase II run for the same scenario.
In summary, the EIS economics studies used super-presumptive models that
overestimated recoverable reserves, failed to account for the interrelationship of
surface and underground mining and underestimated the economic results.
11-8-4
Chapter 1 - Introduction atnd Motivation
If there is any single element that defines the bounds of a regional economy, it is the
intensity of the interrelationships that inexorably bind the economic fate of one group to the
well-being of all others. Thus, as policy-makers ponder the potential impacts of reduced coal
production in West Virginia's southwestern counties, there is a clear understanding that the
foreseeable decline in coal-related economic activity will very quickly affect the nature and
magnitude of all other commercial activity within the region. This conclusion is hardly in need of
validation by the academic community. Coal mines and miners' pay define the southern coal
field region of the State.
Most of those concerned also understand that the markets in which West Virginia's coal
is sold are changing rapidly. Increasingly stringent domestic and international air quality
standards are reflected in the increasing demand for low sulfur western coal and in measurable
declines in at least some of the coal produced east of Ike Mississippi River. Increased production
in Columbia and Australia has brought new and voracious competition to international fuel
markets and the on-going restructuring of the US electric utility industry appears to favor natural
gas over coal as a fuel source. These economic forces have already had readily observable
impacts on the fiscal vitality of West Virginia's coal producers.'
Finally, pending court rulings thst further restrict surface mining methods will place
additional economic pressure on coal producers and the communities they help to sustain. While
many question the dire claims proffered by the mining community with regard to mountaintop
mining, the vast sums that mining companies have spent to protect this practice stand as
unshakable testimony to the importance West Virginia's mining industry places on mountaintop
mining. Even the mining industry's most ardent detractors must realize that mining management
would have preferred to distribute these monies as profits and would have, indeed, done so if not
for the belief that protecting the controversial form of surface mining is essential to their future
prosperity.
138
1 For exait^>ie, Arch Coal Inc. experienced a 166.1 % decrease in earnings growth over the last &) months. (Source:
Zacks Investment Research, Nttp://2a.zacJc$.com/advi$Of),
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While many understand the challenges facing the State's coal producing region, few have
attempted to quantify the degree to which increased competition and additional surface mining
restrictions will affect the level of coal production or the broader regional economy. It is within
this context and in response to a request from West Virginia Senate Finance Committee Chair
Oshel Craigo, that Marshall University's Center for Business and Economic Research is
attempting to provide th« first glimpse of what the future may hold for West Virginia's
southwestern coal producing counties. Readers should note that the following analysts is not
intended to provide the sort of comprehensive information necessary to a formal cost-benefit
analysis. Specifically, we do not seek to estimate the magnitude of any environmental costs
within the region nor do we attempt to value the extent to which some regional residents are
negatively impacted by coal mining operations.2 Instead, the current analysis is strictly focused
on foreseeable changes in coal production and the ways in which these changes may be expected
to affect regional commerce, employment, and incomes in the near future.
The remainder of the current study is organized into five sections and a set of appendices.
The first of these, Chapter 2, is an examination of the historical role of coal production within the
study region. Chapter 3 details the current economics of coal production, including the impact of
increased international competition, more strict air quality standards, and the potential impacts of
electric utility restructuring. Within Chapter 4, we develop a county-level model for forecasting
the supply of and demand for coal. In addition to a baseline forecast, this Chapter contains two
alternative scenarios that depict varying regulatory outcomes. Chapter 5 extends the variations in
coal production forecasted under each scenario to broader economic impacts within each study
region county. Finally, we provide concluding comments in Chapter 6. Appendix A contains
county level data, while Appendices B and C explain and demonstrate the models and estimation
techniques used in the study.
Chapter 2 - The Study Reg ion, Coal Production, &
RegionalEconomy
2.1 Study Region Definition
The study region, pictured in Figure 2.1, is comprised of Boone, Fayette, Kanawha,
Logan, McDowell, Mingo, Nicholas, Raleigh, and Wyoming counties. This study region was
established based on a number of criteria. First, these contiguous counties provide a rough
outline of West Virginia's southern coai'fields. Second, this regional definition includes counties
with largely homogeneous economies and coal reserves. Were we to extend the analysis to
include northern coal producing counties, it would be necessary to account for the measurably
different economic conditions observed in those counties, as well as the vastly different
characteristics of the coal mined within that region. Finally, the study region was defined based
on the historical {and current) dominance of coal production within the region's nine counties.
Current population, personal income, and employment data for these counties is summarized in
Table 2.1. These data indicate that as late as 1998 (the last year for which data are currently
available) coal production directly represented an overwhelming portion (over 18%) of the
economic activity within the study region.
Figure 2.1
The Study Region
2 West Virginia University's Bureau for Business and Economic Research is currently working in conjunction with
the U.S. Environmental Protection Agency to conduct a long-run, comprehensive economk analysis within the
Environmental Impact Statement process.
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Table 2,1
The Study Region, 1998
BOOM
Payette
iCattawha
Logan
McDowell
Mingo
Nicholas
Raleigh
Wyoming
Population
26,347
48,5«6
203,195
41,294
30,558
32,475
27.5SO
78,970
27,S«2
Per-Capita
Income
517,735
S 15,96)
824,489
$16,383
$13,482
SI 5,923
$14,743
$18,421
$13,816
Total
Employment
9,436
16,540
134,345
15,682
7,213
11,189
10,508
36,612
7,214
Direct Coal-
Related
Employment
3,116
625
2,296
1,902
908
2,713
593
1,836
1,329
Percentage of
Coal-Related
Employment
33.0%
3.8%
1.7%
12.1V.
12.6%
24.2%
5.6%
5.0*1
184%
2.2 A Brief Historical Context
Bituminous coal underlies more than two-thirds of West Virginia. These coal deposits are
divided by s. geological "hinge line" into northern and southern fields. Generally, coal mined in
the southern fields has a higher heating value and lower suite content than northern West
Virginia coal. Historically, however, the development of the State's coal industry first occurred
in the north.3
While coal production in "western Virginia" dates to the early 19lh century, development
of the southern West Virginia coal fields did not begin until after the Civil War. The Flat Top-
Pocahontas Field, located primarily in Mercer and McDowell counties, first shipped coal in 1883
and grew quickly from that time. Smaller operations within the area were consolidated into
larger companies and the Pocahontas Fuel Company, organized in 1907, soon dominated
McDowell County production.
Many of the southern coal fields, such as the Kanawha, New River, Winding Gulf, Logan
and Greenbrier, owed their success to the development of the Norfolk Southern and Chesapeake
& Ohio Railways. As the railway expanded into the region, coal was more easily marketed and
the southern coal fields prospered. The Logan field, lying in Logan and Wyoming counties, did
1 S« US Energy Information Administration, Slate Coul Profiles. Washington, DC, 1998.
not open until 1904, when the railway finally reached that area. Once opened, Logan soon
became the State's largest coal producing county.
Over the years, mining technique! and equipment hive varied considerably. Earty on,
progress in mechanization was slow. Nonetheless, by 1890 electric coal cutting, loading, and
hauling machines were in wide use. Beginning in the middle 1930s, mechanization moved
forward even more rapidly, as shuttle cars, long trains, conveyor belts, and a variety of other
equipment came into common use. Large-scale surface mining did not begin until 1913, but with
the development of large earth moving equipment and draglines, the overburden could be
removed more efficiently, so in recent years surface miming has become a major method of
mining coal within the study region. Technological advancements, increasing concerns for
health, and rising workers' compensation costs have lead to mine safety improvements.
2.3 Coal Production and the Study Region Economy
Table 2.3A provides estimates of coal production, employment, and mine-mouth prices
from 1980 through 1998. Section 3 describes the largely exogenous market forces that have lead
to variations in these outcomes, However, it is clear, even without these explanations, that the
economic well-being of the study region has been directly tied to the magnitude of coal
production. Table 2.3B provides an intertemporal glance at the relationship between the study
region's coal production, populations, and incomes. When the demand for the study region's coal
has been relatively strong (as in the 19?0's), the regional economy was able to support a
population of 611,175 in 1979, with an average real per-capital income of $13,797. In contrast,
when the demand for the region's coal has been slack (as in the middle 1980's), incomes
changed marginally while population fell measurably. During this latter period, region
population declined by 12.8 percent in the decade from 1979 to 1989.
The study region is currently home to over 515,000 persons, who comprise roughly
200,000 households. Virtually every measure of economic well-being reflects the damage done
by a 15 years of sustained out-migration. The 1999 unemployment rate, weighted by a county
population of 8.3 percent was more than twice the national average of 4.1 percent and 125
percent of the West Virginia average of 6.6 percent. The average regional per-capita income of
$16,772 is only 87.17 percent of the national average. Home values within the study region
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average only $38,700, while the State-wide figure is $47,600. And finally, in some counties the
high school non-completion rate for those over 25 is substantially greater thmn 50 percent4.
Table 2.3A
Year
1980
198?
1992
1493
1994
1 995
1996
% Change
Regional Coal
Production
{Tons x 1,000)
60,317
60,228
84,119
78,339
87,288
87,552
91,989
53%
Real Mine-Mouth
Price / Ton (92 $)
$46.00
$35.08
$28,15
$26,88
$2114
S25.26
$24.23
-47%
Direct Mining
Employment
40,391
19,813
I8,6i7
14,021
15,1 S3
15,873
14,017
-S5%
Tons per Mining
Employee (Tons x
1,000)
1.493
3,040
4.509
5.587
5,760
5.809
4.563
439%
Indeed, eight of the nine study region counties have been classified as "distressed" by the
Appalachian Regional Commission.5 There are those who would blame coal producers for these
negative economic outcomes. To do so wouU, however, be largely unfair. Instead, the economic
conditions within the study region reflect a lack of economic diversity coupled with the
significant volatility observed in fuel markets. Figure 2,3 depicts real coal prices over a period of
nearly 120 years. This figure reveals two important points. Over the long-run inflation-adjusted
coal prices have proven remarkably stable. In the short-run, however, coal prices have been
remarkably volatile.
While economic conditions within the study region generally lag behind those observed
within the remainder of the State, there are indications that at least some study region counties
have become less reliant on coal-based economic activities. Certainly, Kanawha County, with its
diversity of manufacturing, service sector, and governmental activities, is less susceptible to
' U.S. Census Bureau, 1990 Census.
5 These substandard economic conditions are reflected in other negative outcomes. For example, the widely
dispersed population and lagging economic conditions have made it difficult for the region's residents to obtain
adequate health c»re. As a result, health attainment within a namlw of study region counties ranks among the lowest
in the nation. Appalachian Regional Commission Distressed Counties, FV 2000,
coai-related economic disruptions. Moreover, both Fayettc and Raleigh Counties have enjoyed a
measurable increase in tourist-related economic activity over the past decade. Indeed, since
1994, the number of tourism-related establishments and jobs in these two counties have both
grown at an annual rate of over 20 percent.6
Table 2.3B
Year Production |
(Tons x 1,000)
1970
1971
1972
1973
1974
1975
I97«
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
.
-
.
.
73,948
69,590
74,468
64,837
73,293
76,619
81,172
83,728
89,420
»3,87«
110,021
109,060
107,278
92,860
108,902
112,616
117,171
120,666
116,201
(92$)
S2S.67
$33.05
$34.61
$36.69
Ml. 61
$76.54
$74,27
$71.84
$71.33
$67.14
$59.39
$58.73
$54.84
$49.94
$46.15
$43,64
$39.56
$36.00
$33.47
$32.46
$30.72
$29.48
$28,15
$26,78
$25.%
$23.02
$22.11
$23.29
Regional
Population
557,238
563317
569,593
570,666
369.551
581,358
594,416
604,190
609,506
611,175
608,400
606,979
605,500
602,329
593,899
584,673
574,445
562,124
546,257
532,660
524,998
524,551
524,838
525,694
523,698
522,573
520,353
516,647
513,022
Average
Regional Per-
Capita Income
(92$)
$10,419
SI 0,834
$11,845
$12,187
$12,279
813,003
$13,326
513,552
$13,841
513,797
$13,699
SI 3,279
$13,472
$12,614
$13,016
SI 2,973
$13,153
$13,059
$13,170
$13,2(6
$13,704
$13,852
$14,206
$14,132
$14,417
$14,4.33
$14,504
$14,662
* This figure is based on the growth of enjoyment arid establishments within the categories of lodging, restaurants,
and recnalion»l establishments within tfce county. U.S. Bureuu of the Census, County Business Patterns 1994-1998,
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Figure 2.3
Long Run Bituminous Coal Prices in West Virginia,
1992 Constant Dollars
1870 1»HO 1890 WOO I9W 1920 1930 1940 !9» I960 I9W 1980 1990
Chapter 3 - The Economics of the Coal Industry
Historically, coal and other related fuel markets have exhibited a significant degree of
short-ran volatility which has translated into instability and a paucity of economic development
within those study region counties that rely heavily on coal production7. As West Virginia enters
the 21" century, there is no iadication that this pattern of instability or volatility will abate. To
the contrary, a number of new pressures have emerged that make the course of coil production
within the study region less, rather than more, certain. Among the issues affecting the State's
coal industry are increased international and domestic competition, uncertain international
petroleum prices, electric utility restructuring, and new environmental regulations. These affect
both the production and consumption of West Virginia coal8. Within the remainder of this
chapter, we carefully evaluate how each of these sources of instability may be expected to affect
the study region's coal producers. The chapter also attempts to dispel various myths regarding
production costs and alternative production techniques that cloud the debate surrounding further
regulatory intervention and its impact on coal production.
3.1 The Demand for Study Region Coal
Like most raw materials, the demand for coal produced within the study region is derived
from the demand for the products that coal is used to create and the technologies available for
producing these "downstream" goods or services. Within the current context, this "derived
demand" implies that the willingness to pay for study region coal depends on the demand for
electricity and steel products, as well as the availability and pricing of other fuel substitutes. This
includes coal from other regions, natural gas, and fuel oil, and generating and steel producing
technologies. Changes in any of these other factors can materially affect the demand for coal
produced in southern West Virginia, The demand for study region coal is further complicated,
since bituminous coal is sold in commodity markets that recognize qualitative differences in
7 Specifically, the volatility of regional economic activity within the study region has served to weaken investment,
hindering economic growth relative to other regions.
* The 1990 Clean Air Act Amendment*; (CAAA), whieh became effective January 1,2000, outline stricter sulfur
emission reduction requirements of Phase II.
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sulfur dioxide, ash, moisture, and Btu content.' Metallurgical coal users and utilities that face
few air quality compliance issues may be attracted to the relatively high Btu content of study
region coal, while other electricity users may favor the low sulfur content and relatively low
transportation costs of western coal, even though most such coal has a significantly lower Btu
content.10
As the opening paragraph of this chapter indicates, a number of evolving forces will
potentially impact the volume of coal produced within the study region over coming decades.
With the exception of environmental restrictions on surface mining practices, these emerging
forces represent demand-side changes that are effecting consumers' willingness to pay for study
region coal.
3,1,1 Clean Air Standards and the Demand for Study Region Coil
The U.S. Environmental Protection Agency's implementation of the 1990 amendments to
the Clean Air Act have increasingly restricted electric utility emissions of a variety of pollutants.
These pollutants include sulfur dioxide, nitrogen oxides, and paniculate matter. Coal burning
utilities generally have four options or strategies available for compliance with these standards -
(I) high-emission facilities can be retired; (2) high-emission facilities can be retrofitted to bum
low-sulfur coal, a low-sulfur/high sulfur coal mix, or an alternative fuel; (3) high-emission
facilities can be modified to include scrubber equipment that reduces the volume of pollutants
emitted from the burn of high-sulfur coal; or (4) operators of high-emissions facilities can
acquire (either internally or through purchase) emissions credits that will allow the facility to
legally exceed the applicable emission standards.
9 The British Thermal Unit (Btu) is the most common measure of heat producing capacity. It reflects the amount of
heat required to raise the temperature of one pound of pure water by one degree Fahrenheit.
10 The complexity of coal markets is, perhaps, highlighted by the diversity of coal products available in the western
United States. Powder River Basin (PRB) coal from Montana and Wyoming is of the low sulfur, low Btu variety
noted in the text. However, the low suiftir coal produced in Colorado, Utah, and British Columbia has a consistently
higher Bfu content. However, the non-PRB western coal does not routinely compete in eastern rue! markets because
moving it through the Rocky Mountains requires relatively high expenditures for transportation.
10
Some compliance strategies allow electricity producers to continue the use of study
region coal, while other strategies preclude this ttse". However, just as emission standards have
made southern Appalachian coal less desirable for some customers, the same regulations have
caused other users to substitute study region coal for Illinois basin and northern Appalachian coal
that has an appreciably higher sulfur content. Thus, it is difficult to assess the current net effect
of clean air standards on the demand for study region coal.
If there is one clear outcome associated with more stringent air quality standards, it is the
growth in popularity of Powder River Basin (PRB) coal mined in Wyoming and Montana,'2 PRB
coal is mined at a cost of roughly $4.50 per ton and can be transported into the Illinois and Ohio
River Basins at rates that result in delivered prices that are comparable to the mine-mouth price
of study region coal.13 The difference, of course, is that the low Btu content of PRB coal means
that much more coal must be burned to achieve the same power generation. To date, it appears
that PRB coal is primarily displacing Illinois Basin coal, but the same qualities that make
western coal attractive to users in Illinois and Indiana may eventually sway utilities further
east.14
Air quality issues are also leading many utilities to substitute natural gas for coal as a
generating fuel. Tampa Electric Company (TECO) recently announced plans to convert all coal-
fired generating facilities to natural gas within the next two years and Ontario Hydro is rumored
to be contemplating similar changes. Both utilities have historically consumed West Virginia
Coal.
n The purchase of sulftir dioxide permits cellars for continued burning of study region coal without retrofitting
plants with emissions curtailing technologies,
n Historically, the relatively high costs of mining and transporting eastern coal allowed PRB coal to compete in
markets west of the Mississippi River. Relative declines in transportation costs from the Powder River Basin during
the I990's moved the east-west boundary between eastern and western coal dominance further east into the Illinois
and Ohio River basins. More recently, however, the continued eastern expansion of western coal appears to owe to
the effects of more stringent clean air standards, rather than any further decline in relative transport rates.
° The Energy Information Administration Coal Industry Annual 1998 reports a real mine price (1992$) of $4,80.
However, anecdotal evidence suggests that Powder River Basin coal costs have lowered since 1998,
u For a discussion of the expanded use of PRB coal, see Energy Information Administration. While there is no
evidence at this point to support our contention, the authors suspect that the attractiveness of using PRB coal as a
compliance strategy is enhanced by the knowledge that this strategy will be effective for the foreseeable future,
whereas alternative strategies - for example blending ~ may cease to be effective if standards are raised further.
II
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3.1.2 International Competition and the Demand for Study Region Coal
Table 3.1 summarizes West Virginia coal exports between 1993 and 1997. On average,
exports accounted for roughly 25% of all sales during that period." Tables 3.2 and 3.3 provide
additional information on the export destinations of the State's coal production. These data, in
combination with additional anecdotal data, tell a clear story of increased international
competition,
Table 3.1
Year
1993
1994
1995
1996
1997
WV Sales to
Domestic Ussrs
(x 1,000)
102.7
122.8
120.9
127.2
133.8
WV Sates to
IntBrnationat
Users (X 1,000)
33.2
36.2
44.3
42.0
38.4
Total WV Sates
(x 1,000)
135.9
159.0
165.2
169.2
172.2
Percentage of
Export Sales
24.43%
22.77%
26.82%
24.82%
22.30%
export losses to other international customers. It is important to note, however, that the growth in
Canadian usage reflects a one-time increase hi Ontario Hydro's consumption that resulted from
the utility's need to rapidly replace generating capacity lost with the unplanned shutdown of
nuclear facilities."
Increased low sulfiir, high Btu Australian coal production is also placing additional
competitive pressures on West Virginia exports. In 1996, Australia embarked on a program
designed to increase coal production by approximately 5 percent annually through 2002." This
increased production is principally aimed at Asian markets which accounted for roughly 11
percent of West Virginia exports in 1997." However, there are secondary effects arising from
the Australian expansion. Anecdotal information suggests that Australian coal has displaced a
significant amount of low-sulfur, high-Btu coal mined in British Columbia. As British
Columbian producers seek alternative markets, it may well affect West Virginia's ability to
export coal to eastern Canada.
The majority of West Virginia's coal exports (47% in 1997) are bound for European
destinations. However, throughout the period of record, European nations have been purchasing
less coal from West Virginia and more from other exporting nations, such as Columbia."
Columbian coal is even making inroads into US domestic markets. Unpublished sources suggest
that Alabama Power, beginning in 200J, plans to import more than four million tons of
Columbia coal over the Port of Mobile.
The second largest importer of West Virginia coal (23% in 1997) is Canada. Of the coal
shipped to Canadian users, roughly one-third is purchased by Ontario Hydro, with the remainder
going to other generating and industrial users. During the 1993-1997 period, annual Canadian
use of West Virginia coal grew by 2.9 million tons (71%). This growth clearly helped offset
15 Energy Information Administration data do not allow the segregation of study region exports from other West
Virginia exports.
H The decline in European coal purchases would appear greater still if the 112 percent increase in West Virginia
exports to Romania are excluded from calculations.
!? It is worth noting that one issue that has arisen in the proposed railroad merger between Burlington Northern
Santa fe and the Canadian Nationul • Illinois Central is the degree to which a combined system would allow for the
more efficient transport of Powder River Basin coal to eastern Canada customers. If this merger is allowed, it could
olnce additions] competitive pressure on West Virginia coal exports.
fs See "Australian Coal Supply: Risks and Prospects to 2002," Australian Commodities, Vol 4, No. 2, June 1997,
pp. 214-26.
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Table 3.2
West Virginia Coal Exports
Table 3.3
West Virginia Coal Exports
Destination 1993 Tons 1994 Tons 1995 Tons 1999 Tons 1997 Tons
Country (x 1,000) (x 1,000) (x 1,000) (x 1,000) (x 1,000)
Argentina
Belgium
Brazil
Bulgaria
Canada
Chile
China
Croatia
Egypt
Finland
France
Germany
India
Italy
Japan
Korea
Mexico
Netherlands
Nigeria
Portugal
Romania
South Africa
Spain
Sweden
Turkey
United Kingdom
Total
1 32
1,396
2,496
644
4,071
—
141
63
601
212
2,864
286
—
3,111
2,260
318
—
2,014
43
151
820
577
1,071
603
1,370
1,261
29,498
35
1,302
4,109
1,571
5,605
—
284
593
375
3,514
382
—
2,927
2,148
523
—
1,717
—
—
925
771
1,255
866
1,468
1,212
31,582
1,175
4,329
1,360
5,759
—
355
,
714
683
3,594
254
—
2,873
3,222
1,013
—
1,523
—
33
1,623
946
1,084
1,352
1,560
1,182
34,634
1,261
- 4,247
1,152
6,907
43
353
.^.
303
507
2,859
584
11
2,361
2,062
1,050
1,223
—
164
1,315
947
818
882
1,643
1,024
31,716
822
3,927
1,008
6,956
188
....
807
324
2,286
419
.,
2,084
2,585
829
25
1,977
—
118
1,737
706
681
857
1,295
897
30,528
Country *
Argentina
Belgium
Brazil
Bulgaria
Canada
Chile
China
Croatia
Egypt
Finland
France
Germany
India
Italy
Japan
Korea
Mexico
Netherlands
Nigeria
Portugal
Romania
South Africa
Spain
Sweden
Turkey
United Kingdom
Total
1993 1994 1995 1996 1997
i of Total % of Total % of Total % of Total % of Total
Exports Exports Exports Exports Exports
0.50%
5.27%
9.42%
2.43%
15.36%
_
0.53%
0.24%
2.27%
0.80%
10.81%
1.08%
_
11.74%
8.53%
1.20%
...
7.60%
0.16%
0.57%
3.09%
2.18%
4.04%
2.28%
5.17%
4.76%
100%
0.11%
4.12%
13.01%
4.97%
17.75%
_
0.90%
...
1.88%
1.19%
11.13%
1.21%
...
9.27%
6.80%
1.66%
...
5.44%
...
—
2.93%
2.44%
3-97%
2.74%
4.65%
3.84%
100%
3.39%
12.50%
3.93%
16,63%
—
1.03%
._
2.0«%
1.97%
10.38%
0.73%
_
8.30%
9.30%
2.92%
4.40%
...
0.10%
4.69%
2.73%
3.13%
3.90%
4.50%
3.41%
100%
3.98%
13.39%
3.63%
21.78%
0.14%
1.11%
_
0,96%
1,60%
9.01%
1.84%
0.03%
7.44%
6.50%
3.31%
•
3.86%
0.52%
4.15%
2.99%
2.58%
2.78%
5.18%
3.23%
100%
.
2.69%
12.86%
3.30%
22.79%
._
0.62%
._
2,64%
1.06%
7.49%
1.37%
6.83%
8.47%
2.72%
0.08%
6.48%
...
0,39%
5.69%
2.31%
2.23%
2.81%
4.24%
2.94%
100%
3.1.3 The Potential Impacts of Electric Utility Restructuring
As of December I, 1999, 12 states enacted restructuring legislation, six states had
comprehensive regulatory orders issued, and seven states had legislation/orders pending.2* The
status of these regulatory reforms is summarized in Table 3.4. This electric utility industry
28 FL and SD have no significant ongoing activity. TX allows competitive wholesale wheeling, as authorized by SB
373,1995. C A, MA, and NM have replatory orders and legislation in place. See "Challenges of Electric Power
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restructuring is predicted, in the long-nm, to measurably impact the markets in which study
region coal is bought and sold in a number of important ways. According to the U.S. Department
of Energy's Energy Information Administration, electric utility deregulation will simultaneously
place downward pressure on coal prices, favor the use of natural gas - even in base-load
generation, reduce or eliminate long-term contracts for coal, and introduce greater levels of
uncertainty for coal producers.
For two reasons, the full implications of electric utility restructuring on study region coal
production will not be apparent for several years. First, under most restructuring scenarios, states
will retain residua! regulatory powers. Moreover, any federal regulatory restructuring will take
considerable time to reach fruition, so that competition and its effects on ftiel markets will
emerge gradually. Second, existing coal-fared plants - particularly those already adapted to meet
more stringent air quality standards - are likely to remain in use until these assets can be
efficiently retired. Any premature retirement of coal-fired facilities will leave the utilities
"stranded" with the capital costs of those facilities. The ability of utilities to recover such costs is
uncertain.22
Industry Restructuring for Fuel Suppliers," U.S. Department of Energy, Energy Information Administration,
DQE/ETA-Q&23, September, 1998.
:! Ibid
22 The treatment of "stranded costs" - capital costs that are unrecoverable due to the transition from regulation to
competition • remains as a complex issue within the topic of electric utility restructuring. Certainly, while most
states' restructuring plans provide some relief in this area, it is to the utility's advantage to minimize the value of
such costs. Moreover, the costs of investments made during an era whefi restructuring is foreseeable may be
completely vulnerable.
16
Table 3.4
Electricity Restructuring
Restructuring
Reguhtoryprder
* Issued
Pending
Ongoing
CA
CM
IL
ME
MT
NV
Nil
OK
PA
RI
VA
AZ
MD
MI
NJ
NV
VT
AK
BE
KY
MO
OH
sc
wv
AL
AR
CO
GA
HI
ID
IN
to
KS
LA
MN
MS
NE
NM
NC
ND
OR
TN
TX
irr
WA
WI
WY
District of Columbia
3.2 The Cost Structure of Study Region Coal Producers
Changing demands will not act in isolation to affect changes in study region coal
production levels within the study region. Instead, it is the interaction of changing demands with
cost-dependent supply conditions that will ultimately determine the region's economic outcomes.
With the exception of pending additional restrictions on surface mining methods, the future
structure of study region mining costs is largely devoid of any public policy influence. Instead, it
is the mining interests who will decide how and where coal maybe efficiently produced.
3.2.2 Capital, Labor, and tabor Productivity
The structure of coal mining has changed dramatically since the widespread introduction
of the continuous miner in the 1950's. The once labor intensive production process has been
replaced by the use of capital assets that resulted in a precipitous decline in mining employment.
The southern West Virginia coal fields primarily employ long-wall and continuous miner
technologies. The productivity gains resulting from these techniques are reflected in the
significant increase in output per worker (see Table 2.3A).
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Many have concluded that the decline in employment is strictly attributable to the growth
in surface mining - mining that BOW accounts for roughly one-third of »11 West Virginia
production. Indeed, State-wide underground mining employment fell from 45,000 in 1980 to
16,000 in 1996, while surface mining's share of State output increased from 21 percent to 33
percent. However, the conclusion that surface mining is at the root of employment declines
largely ignores two critical facts.
First, without regard to surftce operations, the productivity of underground miners
increased dramatically over the 1980-1996 period. In 1980, 45,000 underground miners
produced roughly 96 million tons of coal - about 2,100 tons per worker. In 1996 16,000
underground miners, only one-third of those employed in 1980, produced more than 112 million
tons of coal, or approximately 7,000 tons per employee. Thus, it appears that improvements in
underground mining productivity are more responsible for declines in mining employment than
the continuing emergence of surface mining. Finally, it is worth observing that surface mining
employment also declined, fa 1980, there were 7,500 West Virginians employed in surface
mining operations. By 1996, their number had fallen to 4,118, due to strong productivity growth.
In considering the future costs of regional producers, it is reasonable to examine any
potential inter-firm variations that might make it possible for some sellers to respond more
effectively than others to changing demand conditions, if such variations exist, they are more
than likely the result of accidents of geography rather than any structural differences between
firms. Indeed, the productivity-enhancing technologies noted above appear to spread rapidly
across producers, so that it is unlikely that large scale inter-firm cost differences are attributable
to equipment use. Similarly, there may be modest differences between the productivity of
unionized and non-union mining operations, but these differences are also likely tied to
geography-dictated mining methods rather than actual productivity differences23, to the end,
variations in the costs incurred by mining firms are dictated primarily by the disaggregated
spatial nature of the natural resource they extract. Simply put, in coal mining, geology plays a
critical role in determining the overall costs of production. Though new cost-reducing
technologies will continue to emerge, firms have remarkably little control over their individual
production costs.
3.2.3 The Issues of Scale and Scop* Economies
The conclusion that regional coal producers have only minimal control over production
costs differs from the typical case in which firms may affect unit costs by pursuing different
scales of production. However, the current analysis of the regional production process directly
supports the contention that firms are not able to improve productive efficiency by increasing the
scale of their operations. This issue is empirically modeled and farther described in Appendix C.
In many ways, this outcome relates to the distinction between "plant level" and "firm level" scale
economies, to many instances, firms can reduce unit costs by making individual plants bigger. In
the case of regional mining operations, however, the "plant" is the mine property which, absent
regulatory constraint, is limited in size by the geography and geology of coal reserves. As a
consequence, the only additional scale economies available to regional producers are the "firm"
level savings that might come from averaging administrative and overhead costs over the output
from a number of consolidated mining operations."24
Based on this discussion, the relevant question is whether or not there are significant
potential cost savings attainable through the consolidation of regional coal producers. While the
evidence is limited, the answer to this question would appear to be "No". Figure 3.1 depicts the
four firm concentration ratio (the percentage of market output produced by the largest four
producers) for Appalachian coal producers, other interior coal producers, and mining operations
in the western US from 1970 forward. Certainly, Appalachian coal producers have had the
incentive to reduce costs in any way possible, yet the level of concentration has remained
constant. One implication of this relatively static concentration ratio is that attainable cost
reductions through consolidation are minimal at best.
In 1997 firms east of the Mississippi River produced 3.89 short Ions of coal per miner per hour compared to firms
west of Mississippi River, who produced 16.04 short tons of coal per miner per hour. 1997 Productivity Data,
Energy information Administration.
24 This conclusion that available scale economies are firm level in nature appears to be largely shared by the Energy
Information Administration (EIA). In its evaluation of the probable impacts of electrie utility restructuring, the ETA
suggests capturing scale economies through consolidations may be important. However, it also suggests that the
source of available economies is limited to lowering per-unit overhead costs and by, "(increasing] producer's
negotiating power to deal with larger generating and transportation counterparts." See "Challenges of Electric Power
Industry Restructuring tor Fuel Suppliers," Ch. I, p. 6. U.S. Department of Energy, Energy Information
Administration, DOE/EIA-0623, September, 1998.
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Figure 3.1
Share of Regional Coal Production by Four
Largest Producers in Region
1976 1986 1991
| Appabchla H| Interior [~] Western
The potential savings from the capture of firm level economies are illustrated in Figure
3.2. Within this figure, mine-level Average Total Costs arc depicted by ATC0. The ability to
lower these average costs by expanding the mine size is, however, constrained by the geography
and geology of the mining region. It is impossible to move downward along this curve beyond
the quantity denoted as QMX- Any additional cost savings can only be achieved by lowering
average overhead and administrative costs by averaging these expenditures across additional
output from other mining facilities. Doing so would result in a new mine-specific Average Total
Cost curve represented in the figure as ATC|.
Figure 3.2
Minimum Mine
Size Based on
Economic
Constraint
$26.64
Maximum Mine
Size Bused on
Geological
Constraint
Figure 3.2 can also be used to illusteate the "scope" economies that exist between
underground and surface operations. Economies of scope exist when a product can be made
more cheaply when it is produced, in combination with one or more other products. For example,
many have argued that electricity can be produced more cheaply when generating activities are
combined with electricity distribution. In the case of coal, underground and surface mining
operations may exist independently of one another - even at separate locations, yet the delivered
cost of each output can be made lower by the production of the other. This outcome is the result
of scale economies in the Mending and transportation of coal. Output quantities from both
underground and surface mines are routinely combined in blending operations and the blended
coal is routinely shipped as a single product. Both unit blending and transport costs are lowered
25 Kaserfltan, David L.; Mayo, John W. 'The Measurement of Vertical Economies and the Efficient Structure of the
Electric Utility Industry." Journal of Industrial Economics; v39 n5 September 1991, pp. 483-502.
20
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by additional quantities - quantities that arc only made possible by combining the output from
distinct surface and underground operation,26 Within Figure 3,2, ATQ may be viewed as the
Average Total Cost curve for an underground surface operation in the absence of a companion
facility of the other sort. ATCj, then, reflects the operation's Average Total Cost when the
companion production facility is in operation. The implications of these scope economies are
fully discussed in Appendix C. However, the results of the current analysis suggest that study
region counties that have a relatively balanced mix of mining methods enjoy strong scope
economies. The critical implication of this finding is that the loss of mines of either type may
actually increase the costs of producing coal by the alternative method.
3.2.4 Additional Environmental Restrictions And Production Costs
The introduction to this chapter notes that most of the foreseeable changes that may affect
regional coal production are demand-side in nature. The one major exception is the
implementation of judicial decisions that may substantially reduce the size of certain surface
mining operations. Figure 3.3 continues the same graphical construct in order to demonstrate the
potential impacts of these additional restrictions on study region mining costs.
The judicial ruling in question - known as the "Haden decision" - is likely to have two
impacts on the costs of some coal producers.27 First, by limiting the loeatioas in which valleys
may be filled with the overburden from mountaintop mining, the Haden decision is likely to
reduce the size of many surface operations or eliminate some entirely. The impact of this
restriction on producer costs is depicted by a movement along ATCo, in association with a
reduction in quantity from QMX to Qn,
The second potential impact of the Haden decision on production costs owes to the
additional uncertainty this decision introduces. Economic decisions regarding continued
production hinge on the short-run and long-run profitability of this production. To the extent that
the Hadea decision clouds assessments of this profitability, it may reduce investment, limiting
future production capacity and causing future costs to rise. Within Figure 3.3, the additional
uncertainty is reflected by a movement from ATC0 to ATCi.
Figure 3.3
Judicially Imp.ned
Limited Mta* Stee
S26.M - .
QMN QH QMX QMX
" Patricia Bragg, « al, Plaintiffs, vs. Colonel Dana Robertson, et »l, Defendants. Civil Action 2:98-0636, U.S.
District Court for Southern West Virginia, Charleston Division.
22
3.3 Coal Pricing and Future Producer Profitability
The preceding two sections outline the ways in which ongoing changes are likely to
aftec! the demand for and supply of study region coal. Chapter 4 quantifies these impacts in
order to predict the overall economic impact on study region counties. Still, even in advance of
these forecasts, it is possible to evaluate the qualitative effects of the foreseeable changes in West
Virginia coal output quantities. Absent the Haden decision, the reduced demand for study region
coal should result in a continued decline in mine-mouth prices and a measurable decline in
output quantities, If the Haden decision is upheld, production costs at some mines will increase.
These cost increases will further exacerbate the problems of regional producers by making it
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unprofitable to mine coal that is only marginally profitable under current conditions. Ultimately
some producers may not survive this process. Whether firms arc publicly owned or held
privately, the long-run response to sustained negative firm profits is the same - market exit.
There is already evidence that the uncertain ftiture facing regional coal producers is
affecting economic outcomes and the fiscal health of regional coal producers. After reaching an
all-time high of over 180 million tons in 1997, West Virginia coal production has declined over
the past two years. Industry estimates suggest that 1999 totals may be as low as 162 million tons,
a reduction of roughly 10 percent. While a two year output decline certainly does not constitute
evidence of a Song-run trend, it is consistent with the expected impacts of changing demand
conditions.
It is also likely that effects of changing demands have been slowed somewhat by the
existence of long-term contracts between producers and utilities m»de popular by uncertain
supplies and rising feel prices during the 1970's. Now, however, most West Virginia coal is sold
via short-term contracts, so that the market for the study region's output is, in many ways,
similar to a spot market, with only a smaller subset sold through long-term, fixed-price
contracts. The recent decline in spot market or short-term coal prices has made long-term
contracts less attractive to customers, so that long-term contract volumes continue to fall,2'
Anecdotal evidence, as well ts discussions with industry representatives, suggests that the last of
the long-term contracts will have expired by 2003. This transition to short-term market pricing
has interjected additional uncertainty into the transaction process and amplified the competitive
pressure facing regional producers.
Chapter 4 - Forecast Model & History
The long-run, fixed price contracts were popular with consumers during the 1970's and early I §80's, as nominal
prices soared, concurrent with oil shortages.
M This is also the suggestion that long-term contracts are becoming less popular with electricity generators as they
prepare for electric utility restructuring, "Challenges of Electric Power Industry Restructuring for Fuel Suppliers.
Energy Information Administration". 24
4.1 The Forecast Model & Simulations
Energy demand and the supply of fossil fuels are among the most heavily forecasted
economic outcomes. These forecasts we typically of three types: consumer and industrial
demand for electricity, geologic assessments of remaining reserves, and price forecasts of
extracted fossil fuels. The forecasting efforts of the Department of Energy's Energy Information
Administration provide detailed long-term assessments of the latter two, while a number of
regional forecasting centers, as well as the U.S. Geological Survey, project the United States'
extractable fossil fuel reserves. Similar international agencies and foreign governments also
undertake these types of forecasts. These forecasts are critical to both individual firms, and state
and federal planners in developing their own inventories and revenue assessments. An additional
level of forecasting is available from academic sources, especially journals dedicated to energy
research and forecasting method. However, these models often seek to illustrate a specific issue
or methods and are therefore not typically of immediate value to a forecaster interested in a
generalized prediction model from which simulation! can be constructed.
Forecasting techniques involve the use of a purely statistical method (the time series
approach), a structural model that evaluates causation, or a combination of these techniques. The
model we have u»ed here is the final type, a structural-time series model. We have selected this
forecasting tool for a variety of reasons. The most important of these is the need to simulate
policy changes and trends in other variables (e.g. electricity demand) on the quantity of coal
produced in West Virginia. This purpose recommends a structural model that also captures
historical information and relationships.
Use of a structural time series model for a short-run forecast and simulation is quite
common. Indeed, it is the preferred method for this type of industry specific forecast.5 However,
this model differs from most existing coal models because it projects regional coal production
from a supply and demand model. We were unable to identify any similar regional production
forecast and simulation model within the economics literature. This study is unique in that
3aFor a more detailed explanation, see Appendix B. For a non-technical discussion of this technique, see
Kennedy [1994]. Fot a technical tnstment, see Granger f 19891-
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respect and offers an important tool for economic and fiscal planning in West Virginia. The
model employed in this study incorporates the major supply and demand issues identified in
Chapter 3 in order to evaluate the total effect of each on production of coal in the State. The date
and variables selected for this estimation are derived primarily from data collected from the
Energy Information Administration and the U.S. Department of the Census?* The full model is
outlined in a technical form in Appendix B. This appendix describes the mathematical derivation
of the model, the data, and the assumptions that were employed in its construction. In general,
the model evaluates the quantity of southern West Virginia coal produced as a function of
quality, end use demand, price, imports and exports of coal, the price of capital equipment, the
price of labor, a technology trend and the county level industry structure (the number and share
of surface and underground mines). See Table 4.1.
Table 4.1
Model Variables
Variable Supply Demand
Btu content *f -S
Electricity Demand »
Price per Btu unit ^ ^
Total Imports S
Total Exports ^
Technology Variable ^
Interest Rate on Capital ^
Wages Paid to Miners ^
Underground Share ^
Total Surface Mines "f
Time Trend (attioregressiott) *^ "^
Statistical Significance
at the 5% level
^
•/
/
•/
s
-------
baseline forecast, since the mild change in the total output did not affect the counties' production
economies of scope.
The baseline coal forecast for 2000 predicts a regional output decline of just over 7.1
percent, or just under 7.3 million short tons of coal. The direct dollar value of this decline, in coal
only, is roughly $170 million. This baseline estimate is very consistent with the 1999 annual
production decline of roughly 7,9 percent34. See Figure 4.2. The implication of these results is
that, even ignoring potential additional restrictions on surface mining, the market forces
described in Chapter 3 continue to erode regional coal production.
Figure 4.2
Total Regional Coal Production (Baseline Forecast)
. no.ooo.ow
90^8,00*
?0,OW,W0
60,(Hi(!,000
IMS
4.3 Phase In of The Haden Decision
1WS
aim
2MS
An interpretation of the Haden Decision that restricts permitting of new valley fill
generated our first alternative simulation. Under this scenario, mines that are currently operating,
and have engaged in valley fill under permits may continue to produce. However, new mine
permits that include valley fill allowances will not be issued. !n practice, this virtually precludes
further surface mining. There is no indication that, given the current economic climate, surface
mining, on a significant scale, can continue without valley fill.
As a result, when currently permitted seams arc mined to exhaustion and cease
operations, surface mining will migrate from the region. This migration should occur at roughly
the rate at which flans mine coal seams to the point where they cannot recover their production
costs. This would be approximately the average life of a seam of coal under production. This
study has not identified existing research establishing the average seam life in southern West
Virginia. In order to provide a conservative estimate of this impact, we selected an average seam
life of seven years, and assumed that all currently producing seams were newly permitted.35 We
then phased-in the impact of valley fill restrictions over a seven year period. This simulation
should closely mirror the impact of mine closings resulting from the currently pending litigation
already observed (e.g. the Daltex Mine). This scenario also includes the impact of the economies
of scope issues on underground mining, whereby decreased surface mining imposes a higher cost
on underground mining through its related production technologies (primarily in transport and
processing), and hence will impact the level of production. The simulation results generated from
the model project an output decline of roughly 16 million tons, with a value of $386 million, see
Figure 4.3.
Figure 4.3
Total Regional Coal Production (Haden Decision Phase-In)
34 Indeed, our county level baseline forecasts were very consistent with the Beckley-Bluefield Region Outlook; 1999
-1004 released in May, 2000 by WW't Bureau of Business and Economic Research. In (articular, the high growth
in Raleigh, and sluggish growth in McDowell they predict coincided closely with this study's results.
MThe selection of seven years was made following several unscientific discussions regarding the average life of a
seam of coal. We feel the seven year period overestimates the Hfespan of a coal seam, especially since we assumed
all were originally fsermitted in 2000.
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4.4 The Restrictive Haden Decision - A More Severe Case
The application of the Haden Decision's interpretation of the Clean Water Act is
currently under appeal and will likely continue in litigation and/or arbitration for some time to
come. The final resolution of mining and permitting practices is unforeseeable. However, to
provide a lower bound to production, an extremely restrictive interpretation of the Haden
Decision was employed in which all surface mining is forced to immediately cease. Remarkably,
this is not the most potentially restrictive interpretation of this decision that could have been
used. Here, we only simulate declines in surface mining production. It must be noted, however,
that underground mines (and a variety of other types of construction in the region) also deposit
spoil into valleys. Therefore, this scenario, though providing the lower bound to regional coal
production in this study, is not as restrictive as it might have been.
Forecast estimates based on the restrictive Haden scenario suggest that an immediate
cessation of surface mining would result in production declines of 47.5 million tons, with a first-
year value of $1.093 billion. See Figure 4.4. This decline reflects not only lost surface
production, but also some modest amount of lost underground production due to an inability to
capture available economies of scope.
Figure 4.4
Total Regional Coal Production (Restrictive Haden Decision)
130,800,000
f 110,090,900-
£ so.ooo.ooo -
£ 70,«Ou, •
*" «0,0«>,e»0
50,090,«W '
40,000,000
4.5 Short Run Price Effects of Reduced Study Region Production
The study region cutrcatly supplies roughly 10 percent of the nation's steam coal. If the
Haden Decision is upheld, we estimate that as much as 50 percent of tout production could be
lost in a relatively short time period.*6 Mining industry advocates have suggested that this sudden
reduction in coal supplies could lead to significantly higher fuel and electricity prices. Under
such a scenario, currently unprofitable underground and (surviving) surface operations could
become financially viable for a short period of time, so that study estimates of reduced regional
output would be, to some degree, overstated. We do not, however, find this argument compelling
and have not treated it with the current analysis. We have exercised this judgement for & number
of reasons.
First, the movement Irom long-term contract to spot markets for coal means that utilities
arc already accustomed to searching for low-priced eoal. Indeed, by the time the Haden Decision
is implemented, we strongly suspect that most users of West Virginia coal will have developed
contingencies that allow them to move easily to a reasonably competitive alternative market
source.37 This supposition is further strengthened by the fact that air quality standards are already
forcing some utilities to begin the shift away from West Virginia coal. Secondly, to the extent
that lost economies of scope affect underground mining costs, currently marginal underground
operations may become far less feasible, even at mine-mouth prices that are made somewhat
higher by lost surface production. Finally, given the intensity of competition in fuel and
electricity markets, as well as the vast array of alternative fuel sources, it is likely that any
variation in coal prices attributable to lost surface production in West Virginia will be very
transitory in nature, so that the economic impacts detailed in Chapter 5 might be momentarily
delayed, but in no way forestalled.
1985
19M
1995
2008
2005
*In 1999, the study region produced roughly 120,000,000 tons of the 942,000,000 tons demanded fur Ox
generation of electricity. The end use statistics are not disaggregated sufficiently to note final destination of the
study region coal. Nationwide, roughly 90 percent of domestic coal is used for power generation. Though the study
area production of coking coal is higher proportionately than the national average, the difference does no(
substantially effect this estimate. Data obtained from El A, Frame and Hong, US. Cool Supply and Demand: 1999
Keview. Proportions calculated by CBER.
"There is evidence that the railroad industry is already contemplating how the Haden Decision will affect
the demand for coal transport (sec Traffic World, November 15,1999, pg. 19).
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4.6 Summary
This chapter presents the non-technical outline of our forecasting and simulation model.
The technical model and estimation techniques are provided in Appendix B. The technical
exposition of the production function model appears in Appendix C. The baseline forecast and
simulations used to drive the economic impact analysis that follows also appear in this chapter .
The strong forecast model performance suggests it is an appropriate tool for developing short run
predictions, yielding results that provide a solid basis for regional impact analyses.
The inclusion of economies of scope within the analysis and the role these economies
play in producing accurate forecast results is particularly important. To some, these outcomes
may seem counter-intuitive. However, the estimation results clearly demonstrate that any
supposition that underground mining will fill the void of curtailed surface mining is incorrect.
Quite to the contrary, the empirical analysis suggests that reduced surface volumes will increase
the cost of coal mined underground within most study region counties.
Chapter 5 - Total Regiona I Impact
5.1 The Impact Analysis
The impact of the baseline forecast, the Haden Decision phase-in, and restrictive Haden
Decision simulation were performed using the econometric models outlined in Chapter 4, and
Appendixes B and C. The reduction in coal production under each scenario was used to generate
estimates of industry income declines and these foregone incomes were, in turn, used to predict
study region economic impacts. The local impact analysis performed using the IMPLAN
simulation software, produced by MIG, Inc. This commercial software employs Regional Impact
Multipliers II (RIMS II), collected by the U.S. Bureau of [.abor Statistics. These multipliers
quantify the regional flow of goods and services associated with each of the industries and all
households in the region. For example, the RIMS II multipliers capture the local goods and
services such as engineering services, transport, and fuel used by the coal producers. Similarly,
the multipliers capture the coal industry employees' consumer goods purchases. Thus, the
displacement of production and the incumbent loss of employee income is included within all
calculations, and its impact on the regional economy is tallied by the IMPLAN software. This is
the most commonly used and widely accepted method of analyzing local economic impacts. In
this study, we present our estimate of the baseline forecast and the two study area simulations.
Appendix A outlines the individual county-level impacts. Given that inter-county variations in
impacts are sizable, the reader is encouraged to carefully consider these findings.
5.2 The Baseline Forecast
As outlined in Chapter 4, the total regional output decline in the baseline forecast for
2000 resulted in a regional output decline of just over 7.1 percent, or just under 7,3 million short
tons of coal. The direct dollar value of this decline, in coal only, will be roughly $170 million in
2000, This baseline estimate is very consistent with the 1999 annual production decline of
roughly 7.9 percent. The economic impact of this baseline forecast for year 2000, representing a
roughly seven percent reduction in output, is illustrated in Table 5.2.
The analysis does not account for the full range of fiscal impacts that might be expected
under this scenario. As noted, the loss of commercial activity is likely to spawn changes in both
33
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the demand for public services and the tax revenues collected. The (uncertain) rate of demand
and revenue changes will affect the fiscal balance of the State and its individual counties. The
loss of public employees resulting from a lower demand for school, public safety Mid
administrative services will, in some part, balance the loss of tax revenues. The speed at which
this occurs complicates a one year analysis, but does not forestall the final impact. We do
anticipate a loss of commercial activity reducing public sector employment by 341 jobs. The
direct loss of Severance Taxes to the State is estimated at roughly $8,367,000 under this
scenario. Of this amount, we estimate that $6.28 million is the direct county share.
Table 5.3
Haden Decision Phase-In Impact
Industry
Agriculture
Mining
Construction
Manufacturing
TCPtl
Trade
FIRE
Services
Other
Total
Table 5.2
Baseline Impact
Employment Wages
7 S68.180
810 39,902,000
51 1,766,000
16 443,700
69 2,686,000
369 6,225,000
52 981,400
262 5,951,000
10 78,620
-1,646 -S5H.10I.900
Output
$124,930
214,544,000
3,821,000
1,827,000
9,401,000
14,233,000
8,307,000
12,066,000
78,630
4264,402,560
Note: columns may n»t sum dm ie Indepentttnt rounding. TCPU!« Transportation,
Communications anil Public Utilities. FIRE ii Finance, Insurance and Real EstMc.
5.3 The Haden Decision Phase-In
The first alternative simulation estimates the effect of new seam permit stoppage. Based
on the methodology outlined in Chapter 4, we estimate this prohibition would result in output
reductions of roughly 14 percent annually. The simulation results this model generates project an
output decline of roughly 16 million tons, with a first-year value of $386 million. The economic
impact of this phased-in simulation for year 2000 is depicted in Table 5.3. The projections only
account for first year reductions in coal output. Given no abatement in the production effects of
restricted permits, this scenario predicts continuing declines in coal outputs and escalating
economic impacts in each subsequent year.
Industry
Agriculture
Mining
Construction
Manufacturing
TCPU
Trade
FFRE
Services
Other
Total
Employment
16
1,564
129
41
167
812
140
676
30
•3,575
Wages
$155,000
78,907,000
4,431,000
1,456,000
7,019,000
13,830,000
2,964,000
16,240,000
226,000
4125,228,000
Outpyt
$294,000
493,459,000
10,274,000
7,115,000
24,091,000
31,915,000
21,863,000
31,146,000
226,000
4620,383,000
Nttu.> mlimms may net sum due m independent m*JU0n$.
Communications and Public Mtttat, ffllC to Finance. Insurance and ttal Estate.
Under this scenario, we forecast the first-year loss of an additional 922 public sector jobs
and a decline in State Severance Tax revenues of roughly $19.24 million, of which $14.43
million is the direct county share.
5.4 The Restrictive Haden Decision
The third simulation generated within this analysis is based on a scenario where all
surface mining is immediately eliminated by Judge Haden's interpretation of the Clean Water
Act. In this scenario, the loss of surface mining is compounded by a decline in underground
mining in selected counties. Here, we estimate the restrictive Haden Decision will result in a coal
production decline of 47.5 million tons, with a value of $1.093 billion. The economic impact of
this phase-in simulation for year 2000 is outlined in Table 5.4. These figures reflect a dramatic,
rapid loss in employment, wages, and output across the region.
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Table 5.4
Restrictive Haden Decision Impact
Industry
Agriculture
Mining
Construction
Manufacturing
TCPU
Trade
FIRE
Services
Other
Total
Employment
43
5,091
376
115
467
2,174
188
1,889
89
-lfl.632
Wages
$182,021
202,482,163
7,152,149
1,60S,054
13,105,143
25,707,644
4,257,164
26,059,724
429,026
•$2«!,»81,!»88
Output
$781,000
I,4«7j626,000
2S,2»3,WO
19,796,000
68,135,000
85,320,000
«0,9»2,OOQ
86,911,702
7^39J000
-$1,765,393,702
Chapter 6 - Concluding Remarks
w mlnmns may mi sum ttste to mdtpeniieta ro^rttfittg. TCPTJ ts Yrmspfinntim* Co«iBtttate*flfrBS *sA
Puhlk- Utljjtk*. PlfcE it Klr.aru-e, Irnurincc *ttd Rcsl fi»t*te,
The third scenario offers the most dramatic commercial impact. Here, we anticipate the
Joss of an additional 1,612 public sector employees. Likewise, the expected State Severance Tax
collections are forecasted to decline by roughly $54.89 million, of which $41.1? million
comprise the counties* direct share.
The preceding analysis yields a number of very important conclusions fer West Virginia
policy-makers. First, even if the Haden decision is not upheld, the near-term economic ftrture of
the State's southern coal producing region is unsure. Changes in both domestic and international
markets for fuel owing to electric utility restructuring, stricter clean air standards, and increased
international competitioft will almost certainly continue to place dowuward pressures on the
price of West Virginia coal. These pressures are likely to result in lower outpui quantities and
may ultimately lead some producers to exit the region. If the baseline forecast presented in
Chapter 4 is correct, planners may encounter a 7 percent reduction in coal-related employment
within the study region over the coming year. This reduction will, in turn, lead to a $58 million
reduction in regional incenses and a $264 million reduction in overall regional economic activity,
Outcomes in subsequent years are similar.
If the Haden decision is upheld, regional production will fee further reduced. The actual
magnitude and iaterttmpor&l course of these reductions is very difficult to predict. The foregoing
analysis considers two scenarios that are both within the realm of reason. In the first of these
scenarios, surface mining is gradually reduced, as currently permitted mines are retired and no
new surface permits are granted. Even under this restricted scenario, the economic effects on the
counties that comprise the &tudy region are likely to be devastating. Total regional employment
is predicted to decline by 4,3 percent, while overall regional economic activity is predicted to
decline by $620 million within the first year. The economic impacts observed under the extreme
scenario, in which the Haden decision leads to the immediate curtailment of surface mining, are
even more extreme, A sudden cessation in surface mining is predicted to cost the study region
more than 10,500 jobs, §281 million in incomes, and $1.8 billion in total economic activity.
Clearly, even the economic disruptions predicted under the baseline scenario are likely to
demand policy responses on the part of both the State and local governments. In the very near
term, reduced production* combined with falling prices, will diminish State Severance Tax
collections. Indeed, current estimates suggest that severance tax collections are already falling at
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a rate that may approach 13 percent for the current fiscal year.58 Likewise, the predicted
reduction in coal production will likely lead to a reduction in a number of other State funding
sources including, but not limited to, corporate net income tax eoltections, business franchise tax
collections, personal income tax collections, and revenues from the collection of State sales
taxes. To the extent that additional restrictions on surface mining methods further reduce
regional coal production, the near-term strains on State revenue sources will be even more
pronounced. Moreover, if the short-run trends predicted under the three scenarios considered
here continue over even a few years, property value* within the study region are likely to be
negatively affected, so that local governments' ability to generate fends through property taxes
will also be constrained.
Just as State policy-makers are likely to face declines in coal-related revenues, the short-
run demand for State services is likely to increase. Almost certainly, a sustained decline in coal
production will lead to the out-migration of study region residents, but this exodus is likely to
occur with a lag as regional residents attempt to weather declining economic conditions before
exiting the region. Thus, State and local governments may expect increased claims for
unemployment benefits, Medicaid benefits, and other forms of public assistance. The magnitude
of the short-run increase in the demand for governmental services will directly reflect the degree
to which coal-related economic activity is reduced. Even if reduced coal production does
ultimately reduce the demand for government-provided services by reducing local populations,
reacting to these reduced demands may present a number of challenges to policy-makers. Absent
the current population base, it may be necessary to further consolidate the provision of
educational, social, law enforcement, and medical services. Such consolidations are rarely
accomplished with ease.
The reader is urged to recall the short-run nature of the current analysis. The very near-
term vantage adopted here largely obscures two points that are routine issues within more
comprehensive discussions of the link between coal production and the economic viability of the
study region. First, many may argue that the rather dire economic predictions proffered here fail
to consider the potential replacement of coal-related economic activity with alternative
38 Because the State's severance tax is levied against gross receipts, the effect of reduced production on collected
revenues is compounded by the impact of falling regional coal prices. The 13 percent figure is based on information
obtained through the West Virginia Department of Tax and Revenue.
38
commerce. This is, in fact, true. Countless State »nd regional employees and policy-makers
quietly and tirelessly endeavor to bring new non-coal economic activity to the study region and,
at least in some study region counties, these efforts are yielding some successes. The growth of
tourism in Fayette and Raleigh Counties described in Chapter 2, is a poignant example. Still, the
task of bringing a vibrant, broad-based economy to a region that faces so many challenges cannot
be accomplished with great speed. Thus, while current development efforts may eventually yield
tangible and laudable results, it is our judgement that these efforts will provide little shelter for
the region's current residents.
The second argument that is routinely encountered during discussions of the coal industry
suggests that the more stringent regulation of surface mining activities will only hasten what is
likely to be the same long-ran outcome. It is argued that the increased competition in fuel
markets documented here, when combined with the steady reduction in economically mineable
reserves, points to a "West Virginia without coal" under any circumstance. We have neither the
desire, nor the ability, to refute such claims. There are, however, two associated points that
deserve equal treatment.
First, dramatic swings in the prosperity of coal producers and coal producing
communities are more the exception than the rule. One need only contrast the almost manic coal
production of the 1970's with the industries slump during the 1980's to understand this point.
Thus, to pin predictions of significant long-run reductions in coal production on currently
observable economic circumstances is, at best, perilous. Easily conceivable events, such as
prolonged disruptions in international petroleum or coal production or the development of more
efficient coal gassificttion processes, could, once again, renew the importance of West
Virginia's coal reserves within domestic and international feel markets.
Perhaps more importantly, even if all roads do lead to permanent and diminished role of
coal production within the West Virginia economy, some roads are likely to be much bumpier
than others. Given that our principal concern is the short-run economic consequences of various
policies on the coal producing counties in the study region, we must conclude that a more
gradual transition away from a coal-centered economy would be far less disruptive than a rapidly
accelerated cessation in production.
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In conclusion, the evidence developed within the current study implies that the coal
producing region of West Virginia is Hkely to face significant challenges over the coming few
years - challenges that will severely tax the energy and tenacity of the region's inhabitants, as
well as the wisdom and resourcefulness of its leaders. However, there is nothing within these
results that indicates helplessness. To the contrary, the variations in the predicted outcomes
across populations, commercial sectors, and policy alternatives suggests that there are good
choices to be made and bad choices to be avoided. This realization, in turn, obligates each of us
to continue to investigate, discuss, and search for the most productive policy course.
Joint Statement Of
MARK L. BURTON*
And
MICHAEL S. HICKS"
Center for Business and Economic Research
Marshall University***
Huntington, West Virginia
June 6,2002
/. Introduction
In 1999, Charles Haden, Federal District Judge far southern West Virginia entered a
decision that would have substantially limited the placement of valley fills in connection with
surface coal mining within the State. At that tint*, surface operations accounted for roughly 30
percent of West Virginia's total coal production. Consequently, economic concerns prompted
numerous policy discussions in a variety of venues, including the State's legislature.
In March of 2000, West Virginia State Senator Oshel Craigo requested that Marshall
University's Center for Business and Economic Research (CBER) undertake an investigation
designed to identify the probable economic impacts of Judge Haden's decision on West
Virginia's southern coal producing counties. The resulting analysis, titled Coal Production
Forecasts and Economic Simulations in Southern Wast Virginia: A Special Report to the West
Virginia Finance Committee, was released in June of 2000 and w included here as attachment A.
Thjg study found that, depending on the form of judicial implementation, the Haden decision
could reduce economic activity within the nine-county study region by as much as eight percent
in the immediate future.
* Dr. Burton is Director of fee Center for Business and Bcmiorfflc Research at Marshall University in Huntington,
West Virginia. His cttmeatuM vita is provided here as Attachment C.
Dt. Hicks is Director of Research at ttie Center for Business and Economic Research at Marshall University in
HimtingtdB, West Virgmia. His curriculum vita is provided here as Attachment D,
The positions and opiaiGSS expressed is this statement are strictly those of its authors and do not necessarily
reflect the positions or opteiGM of the Lewis College of Business, Marshall University, or the State of West
Virginia.
1 We are aot attorneys and, therefore, are con^jletely tmqualified to comment on the legal appropriateness of Judge
Hadea's deckioa..
40
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The June 2000 CBBR report sparked immediate concerns regarding potential fiscal
outcomes related to reduced coal production. Consequently, die West Virginia Legislature
commissioned a second CBER study designed to estimate more comprehensive State-wide
economic impacts of reduced surface mining, as well as associated fiscal outcomes. This second
report titled, The Fiscal Implications of Judicially Imposed Surface Mining Restrictions in West
Virginia, was released in February of 2001 (Included here as Attachment B), The study found
that annual State tax revenues would decline by as much as $168 million under a scenario in
which Judge Haden's decision was phased in over a seven year period. County tax collections
would have fallen by $83 million annually under the same scenario.2
While Judge Haden's original decision was overturned by the US Fourth Circuit, his
subsequent rulings in other litigation have, again, threatened to restrict the use of valley fills in
connection with surface coal mining. Consequently, policy-makers are likely to revisit questions
surrounding the economic and fiscal effects of potential reductions in West Virginia coal
production. Within this contact, the purpose of our current statement is threefold. First, we wish
to review our earlier analyses, highlighting salient points regarding both methodology and
outcomes. Second, we hope to summarize both the nature and magnitude of economic and
demographic changes that may distinguish the current setting from the period in which the earlier
analyses were conducted. Finally, to the extent possible we will attempt to assess the degree to
which the earlier results remain valid.
2, Summary of Earlier Methods and Findings
The Analytical process was comprised of four distinct steps. The first step involved
creating baseline coal production forecasts and translating Judge Haden's ruling into probable
coal production impacts.3 We accomplished the latter task through repeated and prolonged
consultation with officials from West Virginia's Department of Environmental Protection (DBF),
mining engineers from Marshall University's College of College of Information Technology and
Engineering, and officials from the US Office of Surface mining (OSM). Ultimately, we elected
to pursue a scenario in which DBF would issue no new permits for surface mime sites, but under
which existing surface mines could continue to operate so long as valid permits remain in force.4
The second analytical step involved empirically relating surface mining to underground
operations. In doing so we established that surface and underground mining exhibit what
economists refer to as economies of scope. That is to say, underground operating costs are made
2 Importantly, coal related State and County revenues also fell tinder the baseline scenario. This reflects moderate
(13%) declines in State-wide coal production even in the absence ofImdge Haden's decision.
3 CBER estimated county-specific baselise forecasts. IB the aggregate, however, oat State-level production
forecasts were nearly identical to those produced by Regional Economic Models, fete. (SEMI),
4 This treatment suggests that the prohibition on valley fills in perennial and intermittent stream beds would
ultimately eliminate opportunities for surface mining. Detractors argued that this approach was too extreme,
However, evidence suggests that any remaining surface production would be minimal.
lower by the presence of surface mining. Thus, the elimination of surface operations would
make a small percentage of the State's underground operations unprofitable.
Next, we translated policy-related reductions in coal production into county-specific
economic impacts through the use of regional simulation software.3 Finally, estimated fiscal
impact* were derived from the projected economic impacts based on methods developed in
earlier CBER studies.*
Estimated State-wide economic and fiscal impacts of a phased-in elimination of surface
mining in West Virginia at year five are summarized in Table 1. County-specific impacts are
provided in the original study documents. Forecast reductions in coal production under the
Table 1
Summary of Earlier Findings
Impact Area
Gauge in Coal Production (tons)
Chang in Ettploymoit (All Sectors)
Change to Labor Income (All Sectors)
Change in Output (All Sectors)
Coil Severance Tax Revenues
Property Tax Revenues (All Sources)
Sales and Use Tax Revenues
Personal Income Tax Revenues
Corporate Net Income Tax Revenues
Business Franchise Tax
Annual Policy-
Iltduacd Differential
-41,100,000
-15,579
-$689,100,000
42,460,000,000
-59,921,000
-59,107,000
-19,985,000
-20,191,000
-5,513,000
-3,651,000
Percentage
-------
baseline conditions suggest that increased domestic and international competition, in conjunction
with increasingly strict ait quality standards will continue to erode West Virginia's share in many
fuel markets. However, increased restrictions on surface mining methods could bring about
considerable economic and fiscal hardship for the State. The $2.5 billion projected decline in
output represents a roughly four percent reduction in State-wide economic activity.
While the potential State-wide economic impacts are significant, the possible disruptions
in coal-dependent counties are far more severe. For example, the 1,061 projected reduction in
jobs associated with reduced mining activity in Boone County, represents 12.5 percent of that
county's civilian labor force. County-specific fiscal impacts may also be extreme. Many poorer
coal producing counties rely heavily on Severance Tax revenues as a source of operating funds.8
As Table 1 indicates, reductions in property to revenues would also make it more difficult for
ajl West Virginia counties to fund public school operations.9 To the extent that county
governments might find it difficult to provide even the most basic public services, they would
almost certainly expect State assistance regardless of whether or not (he necessary State funds
are available.
3. Misconceptions Regarding the Production of and Markets for Coal
One common hypothesis in the face of potential reductions in surface coal production is
that mining firms will replace lost tonnage with additional coal mined underground. We find this
outcome extraordinarily unlikely. First, if additional quantities of underground coal could be
mined profitably given current market conditions, mining companies would be doing so. Thus,
if mining companies are to replace lost surface quantities with underground coal, one of two
things must occur. Either the cost of mining underground coal must go down as surface mining
disappears or the mine-mouth price of underground coal must increase as surface coal production
is eliminated.
That underground production costs would decline as surface operations are eliminated is
virtually impossible. As the June 2000 CBER report describes (p. 21), the evidence is that
economies of scope exist between underground and surface operations. Thus, eliminating
surface operations would cause underground production costs to go up not down.
The second scenario in which underground production increases as surface production
declines is one in which the mine-mouth price of underground coal is greater than what is
currently observed. Again, this is highly unlikely. The long-run trend in real coal prices is
unmistakably downward. Moreover West Virginia's annual surface production of roughly 36
million tons is less than four percent of the total US production, so that it is unlikely that the
withdrawal of that coal from the supply-side of US-served markets will lead to any abatement in
the long-run price trend.lo
4. Coal and the West Virginia Economy since 1999
The two CBER studies summarized in Section 2 were based on economic and coal
industry data through 1999. One of the primary tasks we presently face is the identification of
any structural changes that may call into doubt (he current validity of results based on less than
current data.
Nationally, there have been a number of important occurrences between 1999 and the
present. A decade-long economic expansion gave way to a modest recession. Petroleum and
national gas prices spiked during the first half of 2001, and painful experiences in California
slowed the national trend toward electric utility restructuring."
Taking each of these occurrences in turn, the national economic slowdown has had a
relatively benign impact on the West Virginia. During the rapid expansion of the 1990's, West
Virginia saw only very modest economic growth. However, as the national economy has cooled,
employment, incomes, and output in West Virginia have continued to grow at very moderate
rates. This pattern has been reflected in similarly tepid, but positive growth rates for State tax
revenues which are expected to increase again during the current fiscal year by three to four
percent. The rapid increase in petroleum and natural gas prices during 2001 had a predictable
effect on the mine-mouth price of coal sold in spot markets. For a brief period, spot market coal
prices were nearly double toe $23 per ton value that had been relatively constant over the past
few years. However, just as spot market coal prices tracked upward moving petroleum prices,
coal prices have followed other fuel prices downward as they approach sustainable long-run
levels.12 Finally, events in California have noticeably slowed the national trend toward electric
utility restructuring. This trend was largely viewed as favoring natural gas as a generating fuel
source.u Thus, the demand for coal has been steadier than might have, otherwise, been
As Table 1 indicates, the State's Severance Tax is a Sate tax. However, 75 percent of Severance Tax revenues ate
eventually returned to the county in which they were generated
9 while property taxes are levied at the county level, they me redistributed by the Slate based on an earollment-
based funding formula. Thus, if property tax collections diminish in coal producing counties, it will affect fee
financial viability of the education system in every West Virginia county.
It is also unlikely that even «tort-nm price increase would lead to increased underground production. In 2001,
when spot market prices nearly doubled, underground production increased by only one percent. Coal producers
simply will not undertake the investment necessary to respond to transient price increases in any sort of meaningful
way.
n In addition to the occurrences noted in the main body of the text, we also considered whether or not mining ia
West Virginia had been effected by the US decision not to sign the Kyoto Protocol, litigation by eastern states aimed
at lowering rnidwestem emissions, tad the scheduled increase in HOX standards scheduled under the 1990
amendments to the Clean Air Act. We could, however, identify no immediate impacts.
12 Part of flie strength in State revenue collects is attributable to the swell in Severance Tax collects resulting from
higher coal prices. This burst in revenues as crested and the stream Severance Tax payments is returning to more
typical levels.
n See Challenges of Electric Power Industry Restructuring for fuel Suppliers, US Department of Energy, Energy
taformatjoa Administration, Washington, DC, September, 1998.
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predicted. Nonetheless, in West Virginia, both of the two new generating projects currently in
the planning stages are gas fired.
Coal production and employment values are provided in Table 2. The period between
1999 and the present generally consistent with already observed treads in which overall
production is relatively stable in the range of 175 million tons a year, surface mining's share of
total output is increasing, and mining industry employment is on the decline. Additionally, in all
but one year the absolute magnitude of underground coal mined in West Virginia has declined.
Table 2
Coal Production and Employment
Table 3
Incomes In Southern Coal Producing Counties
Year
1996
1997
1998
1999
2000
2001
Mining
Employment
20,038
17,806
18,201
14,854
14,254
15,729
Surface Share of
Total Production
31.57%
31.18%
30.31%
32.57%
35.41%
36.82%
Total Production
(Tom)
174,008,217
181,914,000
180,794,012
169,206,834
169,370,602
175,052,857
Annual Household Deviation from Deviation from
County
Boone*
Fayette!
Kanawha
Slogan*
McDowell*
Mingo*
Nicholas*
Raleigh*
Wyoming*
Ineomt State Average National Avtrage
26,808
23,828
32,456
24,600
18,582
24,642
26,872
27,864
23,994
-624
-3,904
5,024
-2,832
-8,850
-2,790
-1,860
432
-3,438
-10,197
-13,477
-4,549
-12,405
-18,423
-12,363
-11,133
-9,141
-13,011
* Indicates the county has been identified at "Distressed" by the Appalachian Regional Commission
has remained largely insolated from the recent economic downturn, instead exhibiting a barely
perceptible, but positive level of growth. Meanwhile, economic conditions within the State's
coal producing region coatiruie to deteriorate measurably. All told, conditions in 2002 differ
little from those observe in 1999. Thus, the current reference to the earlier CBER analyses
seetns entirely prudent.
Generally, in the southern West Virginia counties where most of the State's coal is
mined, economic conditions were abysmal in 1999 and they are more so today.14 Table 3
compares incomes in the nine southern cotl field counties to State and national averages. This is
only one measure of the extreme economic distress evident within these counties. As economic
theory would suggest the paucity of economic opportunities in this region has induced a reluctant
out-migration of many of the region's inhabitants. Newly released 2000 census figures indicate
that, overall, the region's population declined by 6.5% between 1990 and 2000. fa the last two
years, the economic conditions within the region have been made worse by extensive flooding
that destroyed many rural communities in both June of 2001 and April of 2002.
In summary, coal production within West Virginia between 1999 and the present has
been bolstered to some small extent by the spike in petroleum and natural gas prices and by a
stowing in the trend toward electric utility restructuring. These two factors contributed to the
observed largely constant levels of production (as opposed the very modest predicted decline).
Coal producers continue to improve productivity and the surface share of total coal production
continues to increase. The West Virginia economy, while not sharing in the boom of the 1990's,
In truth, the southern coal field region is not as homogeneous as it appears. In particular, the eastern counties of
Raleigh, Fayette, and Nicholas exhibit less economic distress largely dw to ttie growing presence of tourism
activities. Also, as noted, Kanawta County is home to Charleston, the State capital. Conversely, Boone, Logan,
McDowell, Mingo, and Wyoming coaties are in desperate economic condition.
5. The Effect of 'the Recent Haden Decision
The economic and fiscal effects of the recent judicial decision prohibiting the placement
of valley fills is entirely dependent on how this decision is interpreted and implemented. If, as
West Virginia's Department of Environmental Protection (DEP) suggests, the prohibition only is
applicable to fills that do not have functions in post-mine we plans, then the economic impacts
will likely be less than those predicted by the earlier CBER studies. The current DBF
interpretation is certainly different from Department's assessment in 2000 when we were
conducting the initial analyses. Alternatively, if Judge Haden's ruling, in fact, prohibits all
future valley fills in perennial and intermittent streams, it will effectively end surface mining in
West Virginia, so that the earlier CBER predictions will again be valid. Finally, if the same
standards are applied the fills used to create prep plant impoundments, underground mining will
also be significantly effected and me CBER analyses contains predictions of economic and fiscal
outcomes that are probably too optimistic.15 Without knowing more about the form and extent of
the decision's implementation, we simply cannot judge which scenario is the most likely.
15 CBER's 2000 and 2001 analyses were harshly criticized by coal producers because we did not include the
potential impacts of restricting the valley fills associated with underground tntaing. However, our decision to
exclude these potential impacts was based on the fact that there had been no legal attempt to apply the same standard
to prep plant impoundments.
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It is important to realize that Judge Haden's decisions are probably already impacting the
West Virginia economy. As our June 2000 report (pp. 22-23) explains, the tremendous
uncertainty created by current circumstances is not without effect. Both surface and
underground mines are productive assets with lives that are often measured in decades. Coal
producers are understandably hesitant to make such investments when there is a question of
whether or not regulatory restrictions will prohibit these assets' use. Even if producers could be
induced to make new investments, the uncertainty would increase the necessary return, leading
in rum, to higher production costs - an outcome that is really not tenable given the highly
competitive nature of fuel markets. While we have engaged in no formal assessment of mining
investment, there is certainly ample anecdotal evidence to support the suggestion that regulatory
uncertainty has dampened mining industry investment in West Virginia.
6. Summary Remarks
The extreme emotion that surrounds the policy debate over mining practices has lead to a
number of equally extreme statements that are not supportable by fact. For example, some have
claimed that prohibitions that end surface mining will actually help the economies of West
Virginia's coal field counties by opening them for increased tourist-related commerce. This, we
believe, is absurd. In those areas of the region where tourist activities are present and growing,
mining and tourism seem to coexist with little difficulty." In the remainder of the region there is
little or nothing to attract tourists, so that the point is moot. On the other extreme, some have
claimed that prohibitions that end surface mining in West Virginia would create a national
energy crisis by leading to markedly hitler coal prices. Again, surface production in the State
accounts for less than four percent of domestic production. The loss of this tonnage over multi-
year period would be entirely unremarkable as far as fael markets are concerned. Even if Judge
Haden's decision is extended to surface mining operations in Kentucky and Virginia, our
conclusion remains the same - the impact of the decision is a substantial local and regional issue
it is not a national issue. The ruling likely does not have national implications, so long as it does
not effect the industry's ability to place fills in association with underground mining operations.17
The West Virginia economy is still dependent on coal as a major source of commercial
activity. The loss of surface coal production would create State-wide economic hardships at a
time when there is very little surplus available to remedy new distress. Moreover, the impacts on
individual coal-producing counties could be extreme. There is no chance that underground
production will increase to offset the loss of surface production and there are virtually no
alternative commercial opportunities. Many of the region's counties are places where few
people lived before mining and where only a relatively few people will live if mining ceases.
This is not conjecture. One need only look at the breathtaking correlation between mining
employment and population that is evident over the past century.
" For a discussion of tourism growtt in Payette, and Raleigh Qmnty, Wat Virginia, see Feasibility Study for the
Thurm&nd, Glm Jean & Great New River Railroad, Center lot Business and Economic Research, Marshal!
University, February 2*0.
" Total surface production in eautern Kentucky, Virginia, and West Vkgtoia accounts for just over 11 percent of
total coat production m the US. Combined surface and underground production from these s^tes represents roughly
30 percent of the US total.
Our earlier studies address only the economic and fiscal impacts of further restrictions on
surface mining activities and we stand firm in our belief ttiat our assessment was and is valid.
There are, however, other economic issues that have gone largely unexplored. Almost certainly
mining generates environmental and other social impacts that should rightfully be measured and
included in a comprehensive accounting of the benefits and costs associated with mining
activities.18 Only a thorough and balanced review of all economic outcomes can provide policy-
makers with the information they need to make appropriate decisions for West Virginia. We
hope such analyses will be forthcoming.
Respectfully submitted June 6,2002,
Mark L. Burton
Michael J. Hicks
11 While the general public perception is that these social or "external" impacts are negative. This is aot always the
case. There tie certainty irataaees to which poM-aane-ase planning has been combined with more general land-use
planning » create new economic and recreational opportunities.
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Draft
Aquatic Life Water Quality Criteria for
Selenium
2002
Aquatic Life Water Quality Criteria for
Selenium
2002
Prepared by
Great Lakes Environmental Center
Traverse City, Michigan 49686
Prepared for
U.S. Environmental Protection Agency
Office of Water
Office of Science and Technology
Washington, IXC.
EPA Contract No. 68-C6-0036
Work Assignment No. 3-34
February 2002
U.S. Environmental Protection Agency
Office of Water
Office of Science And Technology
Washington, B.C.
March 2002 Draft
March 2002 Draft
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NOTICES
ACKNOWLEDGMENTS
This document has been reviewed by the Health and Ecological Effects Criteria Division, Office
of Science and Technology, U.S. Environmental Protection Agency, and approved for
publication.
Mention of trade names or commercial products does not constitute endorsement or
recommendation for use.
This document can be downloaded from:
http://www.epa.gov/waterscience/standards/
Questions or comments may be directed to Charles Delos, U.S. EPA,
delos.charles@epa.gov
Dennis O. Mclntyre
Tyler K, Linton
William H. Clement
Gregory J. Smith
Manoel Pacheco
Great Lakes Environmental Center
Columbus, Ohio
Charles Delos
(document coordinator)
USEPA
Health and Ecological Effects Criteria Division
Washington, D.C.
Larry T. Brooke
University of Wisconsin-Superior
Superior, Wisconsin
March 2002 Draft
March 2002 Drtft
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List of Tables
TftbkefCbfiiento
Introduction ....,,..,. ..,.,.,,.,..,..,»
Chemical atul Physical Properties ......,.,..».
Sources of Sdemiam to Aquatic Systems ..,.,.,
Ntttow Margin. Between Sufficiency and Toxicity
Selenium Document Information »
Acute Toxicity of Setenite .. , &
Acute Toxicity of $e{W) jto Freshwater Amtnak ..........,,.,., §
Se(lV) Freshwater Final Acute Value Determination ., , |
Acute Toxicity of Se(JV) to Saltwater Aaimafe , 5
ScflV) Saltwater Final Acute Value Detarmination .... ., . |J
Acute Toxicity of Sekttate
Acute Toxicity of SofVl) tn Freshwater Animals ......
ndei!!i Tsxfcjty of Selenate .............
Freshwater Filial Acute Value Df&grmmatkm ...
Acute Toxicity of ScfVI) to Saltwater Anjmftk ...
Se(V!) Saltwater Fiaa! Acute Value Determination
Comparison of Seletfite and Selenale Acute Toxkity ..
n
|2
5
.M
S
M
Review a&d Analysis of Chronic Data 43
Selection of Medium for Expressing Ohrotrie Criterion |^
Calculation of Gwoaic Values >,>,...,.,....,.,.,..,»..»» ,, 46
Evaluation of Freshwater Chrome Data for Haeh Species ,,.,'.... |E
Fofmtiljrfiew of tic Final Chronic Value (FCV) fw Sebnium 5|
FCV Relative to Nstoral Back^-o«ftd Lewis of Selenium in F^h §|l
N-ational Criteria ...... ,,, £g
Implementation ,....,..,... 66
References ,,.. Ref-1
Appendices
A. T(SiStcit>' of Sei^nitmi to Aquatic Plants , A-l
B. Riodsmixntratimi atsd Bioaeouftuikiion of Selefiittim ,,...,...,,. B-I
C. Enviraninetttal Factors Affecting Selenium Toxicity and Bioaccumulalion C-l
D, Sit-e«8pwific C
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Introduction
This document provides guidance to States and Tribes authorized to establish water quality standards
under the Clean Water Act (CWA) to protect aquatic life from toxic effects of selenium. Under the
CWA, States and Tribes are to establish water quality standards to protect designated uses, White this
document constitutes the U.S. Environmental Protection Agency's (U.S. EPA) scientific
recommendations regarding ambient concentrations of selenium, this document does not substitute for
the CWA or U.S. EPA's regulations; nor is it a regulation itself. Thus, it cannot impose legally binding
requirements on the U.S. EPA, States, Tribes or the regulated community, and might not apply to a
particular situation based upon the circumstances. Interested parties are free to raise questions and
objections about the substance of this guidance and the appropriateness of the application of this
guidance to a particular situation. State and Tribal decision-makers retain the discretion to adopt
approaches on a case-by-case basis that differ from this guidance when appropriate. The U.S. EPA may
change this guidance in the future.
For selenium this document establishes water quality criteria for protection of aquatic life. Under
Section 304(a) of the CWA, U.S. EPA is to periodically revise water quality criteria to accurately reflect
the latest scientific knowledge. Toward this end, a U.S. EPA-spotisored Peer Consultation Workshop on
Selenium Aquatic Toxicity and Bioaecumulation on May 27-28, 1998 brought together experts in
selenium research to discuss issues related to the chronic criterion for selenium. As a result of findings
from the workshop and the fact that a substantial body of literature on the chronic toxicity of selenium
has accumulated since the 1987 document was published, U.S. EPA has decided to update the acute and
chronic criteria for selenium.
Hie criteria presented herein supersede all previous national aquatic life water quality criteria for
selenium (U.S. EPA 1976,1980a, 1987a, 1995).
Chemical and Physical Properties
Water quality criteria are being derived for total selenium measured as selenite-Se plus selenate-Se, but a
variety of forms of selenium can occur in water and tissue. Three oxidation states (selenide = II, selenite
= IV, and selenate = VI) can exist simultaneously in aerobic surface water at pH = 6.5 to 9.0. In natural
surface waters, inorganic selenite and selenate dominate and exist primarily in the dissolved state. A
fourth oxidation state (elemental = 0) exists in sediment, but is insoluble in water. In laboratory studies,
Tokunaga et al. (1997) observed the reduction of Se(VI) in the water column to Se(0) ill the sediments.
1
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Thompson-Eagle and Franfcenberger (1990) observed the volatilization of selenium from pond water.
Chemical conversion from one oxidation state to another often proceeds at such a slow rate in aerobic
surface water that thermodynamic considerations do not determine the relative concentrations of the
oxidation states. Thus, although seleninm(VI) is thermodynamically favored in oxygenated alkaline
water, substantial concentrations of both ieleniwn(II) and selenium(IV) are not uncommon (U.S. EPA
1987a).
In living organisms, selenides can also exist as organic molecules. Inorganic forms of seleaium are
converted by plants to L-selenomethionine, several free amino acids and volatile organosetenium
compounds. Organisms can also oxidize elemental selenium to selenium(IV) (U.S. EPA 1987a), reduce
seleniumfVI) to selenium(IV) (Fujita et al. 1997; Losi and Frankenberger 1997; USEPA 1987a), produce
gaseous dimethyl selenide and dimethyl diselenide (U.S. EPA 1987a), volatilize selenium (Azaizeh et al.
1997; Zhang and Moore 1996), methylate selenium (microbial methylation) to volatile (CHj^Se (Flury et
al. 1997), and reduce selenium(IV) and selenium(VI) to selenium (II) and incorporate it into amino acids
and proteins, such as selenornethionine (Gao and Tanji 1995; Hu et al. 1996; Oyamada et al. 1991; U.S.
EPA 1987a). A substantial portion of selenium in surface waters may exist in organoselenium forms or
complexes.
Sources of Selenium to Aquatic Systems
Selenium occurs in many soil types and enters ground and surface waters through natural weathering
process such as erosion, leaching and runoff. The national average concentration of selenium in
uncontaminated surface waters ranges from 0.1 to 0.4 ug Se/L (Maier and Knight 1993). Elevated levels
of selenium occtir in surface waters when substantial quantities of selenium enter surface waters from
both natural and anthropogenic sources. It is abundant in the drier soils of North America from the Great
Plains to the Pacific Ocean. Some ground waters in California, Colorado, Kansas, Oklahoma, South
Dakota and Wyoming contain elevated concentrations of selenium due to weathering of and leaching
from rocks and soils. Ecological impacts have been observed where selenium is concentrated through
irrigation practices in areas with seleniferous soils. Selenium also occurs in sulfide deposits of copper,
lead, mercury, silver and zinc and can be released during the mining and smelting of these ores. In
addition, selenium occurs in high concentrations in coal and fuel oil and is emitted in flue gas and in fly
ash during combustion. Some selenium then enters surface waters in drainage from fly-ash ponds and in
runoff from fly-ash deposits on land. Notable examples of systems that have been affected by selenium
originating from coal ash include Belews Lake, North Carolina where 16 of the 20 species originally
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present were eliminated within a few years after diicharge began, and Hyco Reservoir, North Carolina
where selenium toxicity was associated with fish larval mortality (Gillespie and Bautnann 1986),
the various inorganic and organic compounds and oxidation states of selenium are equally effective
sources of selenium as a frace nutrient, or as reducing the toxic effects of various pollutants.
Narrow Margin Between Sufficiency and Toxicity
Of all the priority and non-priority pollutants, selenium has the narrowest range of what is beneficial for
biota and what is detrimental. Selenium is an essential element required as a mineral eofactor in the
manufacture of glutathione peroxidase, an anti-oxidant enzyme lliat neutralizes the damaging (oxidizing)
hydrogen peroxide. Aquatic and terrestrial organism* require 0.5 ug/g dry weight (dw) of selenium in
their diet to sustain metabolic processes, whereas concentrations of selenium that are only an order of
magnitude greater than the required level have been shown to be toxic to fish. Selenium deficiency has
been found to affect humans (U.S. EPA 1987a), sheep and cattle (U.S. EPA 1987a), deer (Oliver et al.
1990) fish (Thorarinsioit et al. 1994; Wang and Lovell 1997; Wilson et al. 1997; U.S. EPA 1987a),
aquatic invertebrates (Audas etal. 1995; Caffrey 1989; Cooney et al, 1992; Cowgill 1987; Cowgill and
Milazzo 1989; Elendt 1990; Elendt and Bais 1990; Harrison et al. 1988; Hyne et al. 1993; Keating and
Caffrey 1989; Larsen and Bjerregaard 1995; Lim and Akiyama 1995; Lindstrom 1991; US. EPA 1987a;
Winner 1989; Winner and Whitford 1987), and algae (Doucette et al. 1987; Keller et al. 1987; Price
1987; Price et al. 1987; Thompson and Hosja 1996; U.S. EPA 1987a; Welir and Brown 1985).
Selenium has been shown to mitigate the toxic effects of arsenic, cadmium, copper, inorganic and
organic mercury, silver, ofloxacin, methyl parathion and the herbicide paraquat to biota in both aquatic
and terrestrial environments (Bjerregaard 1988a, b; Cuvin and Furneuii 1988; Ding et al. 1988; Krizkova
et al. 1.996; Malarvizhi and Usharani 1994; Micallef and Tyler 1987; Patel et al. 1988; Paulsson »nd
Lundbergh 1991; Pelletier 1986b, 1988; Phillips et al. 1987; Ramakrishna et al. 1988; Rouleau et al.
1992; Sate et al. 1988; Siegel et al. 1991; Szilagyi et al. 1993; U.S. EPA 1987a). Selenium pretreatment
resulted in reduced effects in 128-hr old, but not 6-hr old, embryos of Oryzias latipes from cadmium and
mercury, whereas prior exposure to selenium did not affect the sensitivity of white suckers to cadmium
(U.S. EPA 1987a). In contrast, Birge et al. and Hucfctbee and Griffith reported that selenium »nd
mercury acted synergistically in producing toxic eifects to fish embryos (U.S. EPA 1987a). Selenium is
reported to reduce the uptake of mercury by some aquatic species (Southworth et al. 1994; U.S. EPA
1987a), to have no effect on uptake of mercury by a mussel, and to increase As uptake of mercury by
mammals and some fish (U.S. EPA 1987a). Selenium augmented accumulation of cadmium in some
tissues of the shore crab, Carcinus maenas (U.S. EPA 1987a). The available data do not show whether
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Selenium Document Information
All concentrations reported herein are expressed as selenium, not as the chemical tested. Although
Se(VI) is expected to be the predominant oxidation state at chemical equilibrium in oxygenated alkaline
waters, the rate of conversion of SeflV) to SefVI) seems to be slow in most natural waters. Therefore, it
was assumed that when Se(IV) was introduced into stock or test solutions, it would persist as the
predominate state throughout the test, even if no analyses specific for the Se(IV) oxidation state were
performed. Similarly, it was assumed that when Se(VI) was introduced into stock or test solutions, it
would persist as the predominant state throughout the test, even if no analyses specific for Se(VI) were
performed.
An understanding of the "Guidelines for Deriving Numerical National Water Quality Criteria for the
Protection of Aquatic Organisms and Their Uses" (Stephan et al. 1985), hereinafter referred to as the
Guidelines, and the response to public comments (U.S. EPA 1985a) is helpful for understanding the
derivation of the acute criteria for selenium. Briefly, the Guidelines procedure involves the following
steps: (1) Acute toxicity test data is gathered from all suitably conducted studies. Data are to be
available for species in a minknum of eight families representing a diverse assemblage of taxa. (2) The
Final Acute Value (FAV) is derived by extrapolation or interpolation to a hypothetical genus more
sensitive than 95 percent of a diverse assemblage of taxa. The FAV, which represents an LQ,, or ECM, is
divided by two in order to obtain an acute criterion protective of nearly all individuals in such a genus.
(3) Chronic toxicity test data (longer-term survival, growth, or reproduction) are needed for at least three
taxa. Most often the chronic criterion is set by determining an appropriate acute-chronic ratio (the ratio
of acutely toxic concentrations to me chronically toxic concentrations) and applying that ratio to the FAV
from the previous step. (4) When necessary, the acute and/or chronic criterion may be lowered to protect
critically important species.
The chronic criteria procedure explicitly set forth in the Guidelines (Step 3 above) is not well suited to
bioaccumulative contaminants for which diet is the primary route of aquatic life exposure.
Consequently, that procedure was not u»ed for deriving the chronic criterion for selenium either in the
original 1987 criteria document or in this update. Rather, to accord with other provisions of the
Guidelines, it was necessary to apply what the Guidelines refer to as "appropriate modifications" of the
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procedures in order to obtain a criterion "consistent with sound scientific evidence", as will be described
in a later section.
Results of such intermediate calculations as recalculated LCws and Species Mean Acute Values are given
to four significant figures to prevent roundoff error in subsequent calculations, not to reflect the precision
of the value. The latest comprehensive literature search for information for this document was conducted
in August 2001; some more recent information was included.
The body of this document contains only the information on acute and chronic toxicily of selenium that is
relevant to the derivation of the acute and chronic criteria. Supporting information on the toxieity and
bioaecutnulation of selenium, and the data that were reviewed and not used in deriving the criteria are
provided in the appendk and include: toxieity to aquatic plants (Appendix A); bioconcentration and
bioaccumulation (Appendix B); environmental factors affecting selenium toxieity and bioaccumnlation
(Appendix C); site-specific considerations (Appendix D); other data (Appendix E); unused data
(Appendix F); regression analysis (Appendix G); chronic data summaries (Appendix H); and tissue
monitoring data (Appendix I).
Acute Toxkity of Selemite
Data that may be used, according to the Guideliness in the derivation of Final Acute Values for selenite
are presented in Tables la and Ib, The following text presents a brief overview of the acceptable data
obtained for seienite, followed by a discussion of the more sensitive and commercially and recreationally
important species. A ranking of the relative sensitivity of selenite to selenate for each genera is listed in
Tables 2« and 2b.
Acute Toxidty of Se(lV) to Freshwater Animals
Acceptable data on the acute effects of selenite in freshwater are available for 14 species of invertebrates
and 20 species offish (Table la). These 34 species satisfy the eight family provision specified in the
Guidelines. Invertebrates are both the most sensitive and the most tolerant freshwater species to selenite
with Species Mean Acute Values (SMAV) ranging from 440 ug/L for the crustacean, Ceriodaphnia
dubia, to 203,000 ug/L for the leech, Nephelapsis obscura. The selenite SMAVs for fishes range from
1,783 ug/L for the striped bass, Morons saxatilis, to 35,000 ug/L for the common carp, Cyprinus carpio.
The following text presents a species-by-species discussion of the eight most sensitive genera, plus all
commercially and recreationally important species.
Hyalella famphipod)
The most sensitive freshwater genus is the amphipod, Hyalella, with a Genus Mean Acute Value
(GMAV) of 461.4 ug Se/L. The GMAV is derived from five 96-hr acute flow-through measured tests
where the LC,,, values ranged from 340 to 670 ug Se/L (GLEC 1998; Halter et al. 1980). A sixth test
conducted under non flow-through conditions is also listed in Table la (Brasher and Ogle 1993), but the
Guidelines recommend using flow-through measured data in preference to static or renewal data.
Ceriodaptmia (cladoceran)
The second most sensitive freshwater genus is Ceriodaphnia, with a GMAV of <515.3 ug Se/L that is
derived from the geometric mean of the C. afflnis (<603.6 \ia, Se/L) and C. dubia (440 ug Se/L) SMAVs.
Four static unmeasured 48-hr studies are available for C. qffinis where the LCJO values ranged from <480
to 720 ug Se/L (Owsley 1984; Owsley and McCauley 1986). The one available C. dubia acute study was
conducted by GLEC (1999) that exposed <24-hr old neonates to sodium selenite for 48 hours under flow-
through measured conditions. The resultant 48-hr LCj,, value was 440 fig Se/L, which is the most
sensitive SMAV fbr selenite in the database.
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Daphnia (cladocer an)
The eleven available acute values are used to calculate the Daphnia ntagna SMAV of 905.3 ug Se/L
(acute LCa values ranged from 215 to 3,020 ug Se/L), but only one flow-through measured acute LC,,,
test value of 1,987 ug Se/L is used for the for D. putex SMAV (a second static measured test conducted
by Reading {1979) is listed, but not used to calculate the SMAV). The resultant OMAV of 1,341 pg
Se/L for Daphnia is the third most sensitive for selenite.
Hydra
The fourth most sensitive freshwater genus is Hydra, with a GMAV of 1,700 ug Se/L. The GMAV is
derived from the one available static-measured test conducted by Brooke et al. (1985).
Morone (striped bass)
Two 96-hr static unmeasured test* are available for the striped bass, Morone saxatilis, and the LC,,
values were 1,325 and 2,400 fig Se/L (Palawski et al. 1985). The geometric mean of the two values yield
the GMAV of 1,783 ug Se/L.
Pimephales (fathead minnow')
A total of 16 fathead minnow acute studies are presented in Table la, but only the eight flow-through
measured LCM values are used to derive the GMAV of 2,209 ug Se/L. The eight flow-through LCJO
values ranged from 620 to 5,200 ug Se/L (Cardwell et al. 1976a,b; GLEC 1998; Kimball manuscript).
Gammana {amphipod)
The seventh most sensitive freshwater genus is Gammarus, with a GMAV of 3,489 ug Se/L that»
derived from the geometric mean of five flow-through measured studies (GLEC 1998,1999) where the
LC,0 values ranged from 1,800 to 10,950 fig Se/L. Two static measured acute studies were conduced by
Brooke et al. (1985) and Brooke (1987), but as recommended by the Guidelines, were not used to
calculate the SMAV for this species.
Jordanetta (flagfish)
The eighth most sensitive freshwater germs isJordanella, with a GMAV of 6,500 jig Se/L. The GMAV
is derived from the one available 96-hr flow-through measured test conducted by Cardwell et a!.
(1976a,b) that exposed Jordanella floridae to selenium dioxide.
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Oncorhynchtts (githttonid)
The GMAV of 10.580 fig Se/L for the commercially important salmonid Oncorhynchm is derived from
the geometric mean of the coho salmon (O. kisutch; 7,240 ug Se/L), chinook salmon (O. tshawytscha;
15,596 fig Se/L) and rainbow trout (O. mykiss; 10,488 ug Se/L) SMAVs. Three static unmeasured 96-hr
studies are used to calculate the coho salmon SMAV where the LC,9 values ranged from 3,578 to 13,600
Ug Se/L (Hamilton and Buhl 1990b; Buhl and Hamilton 1991). A fourth coho salmon LC!0 value is
available for an acute test initiated with the tolerant alevin life stage (Buhl and Hamilton 1991), but
based on Guideline recommendations this value is not used when data are available from a more sensitive
life stage.
Six acute chinook salmon static unmeasured 96-hr acute studies conducted with the more sensitive post-
alevitt life stage of the fish are used to determine the 15,596 ug Se/L SMAV for the species and the LC,,,
values ranged from 8,150 to 23,400 ug Se/L (Hamilton and Bahl 1990b). The two acute studies
conducted with the tolerant eyed egg and alevin life stages by the same authors are not used in the
SMAV determination as recommended by the Guidelines. Hamilton and Buhl (1990b) noted th»t
chinook salmon fry were consistently more sensitive than either the embryos or alevin to selenite.
A total of seven rainbow trout acute studies are presented in Table la, but only the two flow-through
measured LCjo values are u»ed to derive the SMAV of 10,488 fig Se/L as recommended by the
Guidelines. The two 96-hr flow-through test LC« values are 8,800 and 12,500 ug Se/L (Goetfl and
Davies 1976; Hodson et al. 1980). As with the coho and chinook salmon, the alevin life stage was less
sensitive to gelenite.
Lepomis ftluepll)
The GMAV of 28,500 fig Se/L for the recreationally important bluegill sunfish, Lepomis macrochirm, is
derived from the 96-hr flow-through measured test conducted by Cardwell et al, (1976a,b). The static
measured acute study conduced by Brooke et al. (1985) was not used to calculate the SMAV for this
species, a* recommended by the Guidelines.
Se(IV) Freshwater Final Acute Value Determination
Freshwater Species Mean Acute Values (Table la) were calculated as geometric means of the available
acute values for selenite, and Genus Mean Acute Values (Table 2a) were then calculated as geometric
means of the Species Mean Acute Values'. Of the 28 genera for which freshwater mean acute values are
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available, the most sensitive genus, Hyalella, is 440 times more sensitive than the most tolerant,
Nephelopsis. The range of sensitivities of the four most sensitive genera span* a factor of 3,7, The
freshwater Final Acute Value (FAV), representing the most sensitive 5* percentile genus, is calculated to
be 514.9 ug/L for selenite using the procedure described in the Guidelines and the Genus Mean Acute
Values in Table 2a. The Final Acute Value is higher than the lowest Species Mean Acute Value (Figure
1).
Acute Toxicity of Se(IV) to Saltwater Animals
Acute toxicity data that can be used to derive a saltwater criterion for selenite are available for 10 species
of invertebrates and eight species offish that are resident in North America (Table Ib). These 18 species
satisfy the eight family provision specified in the Guidelines. The range of SMAVs for saltwater
invertebrates extends from 255 fig Se/L for juveniles of the bay scallop, Argopecten irradians (Nelson et
al, 1988) to greater than 10,000 |ig Se/L for embryos of the blue mussel, Mytilus edulis (Martin et al.
1981) and embryos of the Pacific oyster, Crassostrea gigas (Glickstein 1978; Martin et al. 1981). The
range of SMAVs for fish is slightly wider than that for invertebrates, extending from 599 ug Se/L for
larvae of the haddock, Melanogrammus aeglefimts, to 17,350 fig Se/L for adults of the fourspine
stickleback, Apeites quadrants (Cardin 1986). No consistent relationship was detected between life
stage of invertebrates or fish and their sensitivity to selenite, and few data are available concerning the
influence of temperature or salinity on the toxicity of selenite to saltwater animals. Acute tests with the
copepod, Acartia tonsa, at 5 and 10°C gave similar results (Lussier 1986), The following text presents a
species-by-species discussion of the eight most sensitive genera, plus all commercially and recreationally
important species. The genera sensitivity ranking is listed in Table 2b.
Arsopecten (bay scallop)
The most sensitive saltwater genus h Argopecten, with a GMAV of 255 jig Se/L, The GMAV is derived
from the one available bay scallop (Argopecten irradians) static-renewal unmeasured test conducted by
Nelson et al. (1988) at a salinity of 25 g/kg.
Melcmogramtmts (haddock)
The second most sensitive saltwater genus is Melanogrammus, with a GMAV of 599 ug Se/L. The
GMAV is derived from the one available haddock (Melanogrammus aegleflnus) static unmeasured tat
conducted by Cardin (1986) at a salinity of 30 g/kg.
9 March 2002 Draft
Cancer (dungenea crab)
The third most sensitive saltwater genus is Cancer, with a GMAV of 1,040 ug Se/L. The GMAV is
derived from the one available static unmeasured test conducted by Glickstein (1978) that exposed
Cancer maglster to selenium oxide at a salinity of 33.8 g/kg.
Penaeus (brown shrimp)
The fourth most sensitive saltwater genus is Penaeus, with a GMAV of 1,200 ug Se/L. The GMAV is
derived from the one available static unmeasured test conducted by Ward et al, (1981) that exposed
Penaeus aztecus to sodium selenite at a salinity of 30 g/kg.
Acartia (oopcpod)
The fifth most sensitive saltwater genus is Acartia, with a GMAV of 1,331 ug Se/L that is derived from
the geometric mean of the A. clausi (2,110 ug Se/L) and A. tonsa (839 ug Se/L) SMAVs. Each of the
SMAVs is derived from one static unmeasured acute test conducted by Lussier (1986) that exposed each
species to selenious acid at a salinity of 30 g/kg.
Americamysis (Mysidapsis) fanysid)
The GMAV of 1,500 ug Se/L for the mysid Americamysis (formerly Mysidopsis) is derived from the one
Americamysis bahia 96-hr flow-through measured test conducted by Ward et al. (1981). The static
unmeasured acute study conduced by U.S. EPA (1978) was not used to calculate the SMAV for this
species as recommended by the Guidelines. The flow-through measured test was conducted with
selenious acid at a salinity of 15-20 g/kg.
Spisuta (surf clam)
The seventh most sensitive saltwater genus is Spisvla, with a GMAV of 1,900 ug Se/L. The GMAV is
derived from the one available static-renewal unmeasured test conducted by Nelson et al. (1988) that
exposed Spisula sottdissima to sodium selenite at a salinity of 25 g/kg.
Morone (stripsd baas)
Five 96-hr static unmeasured tests are available for the striped bass, Morone saxatihs, and the LCM
values ranged from 1,550 to 3,900 ug Se/L (Chapman 1992; Palawsfci et al. 1985). The geometric mean
of the five values yielded the GMAV of 3,036 ug Se/L. All the tests were conducted with sodium
selenite at» salinity of 1-5 g/kg.
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Paralichthys (summer flgBtldcr)
The OMAV of 3,497 ug Se/L for the commercially important summer flounder, Paralichthys dentatus, i*
derived from one 96-hr static unmeasured acute test conducted by Cardin (1986) that exposed embryos to
selenious acid at a salinity of 30.2 g/kg.
Callinectes (bhie crab>
The GMAV of 4,600 ug Se/L for the commercially important blue crab, Callinectes sapidus, is derived
from one static unmeasured acute test conducted by Ward et al, (1981) that exposed juveniles to sodium
selenite at a salinity of 30 g/kg.
Crassostrm (Pacific oyster)
Two static unmeasured tests are available for the commercially important Pacific oyrter, Crassostrea
gigas, and the LCa values were both >10,000 ug Se/L (Gliekstein 1978; Martin et al. 1981). The
geometric mean of the two values yielded the GMAV of > 10,000 ug Se/L. The tests were conducted
with selenium oxide and sodium selenite at a salinity of 33.8 g/kg.
Mytihts (blue mussel)
The GMAV for the commercially important blue mussel, Mytilus edulis, is also > 10,000 ug Se/L, and is
derived from the one static unmeasured acute test conducted by Martin et al. (1981) that exposed
embryos to selenium oxide at a salinity of 33.8 g/kg.
Pseudopleuranectes (winter flounder)
The GMAV of 14,649 ug Se/L for the commercially important winter flounder, Pseudopleuronectes
americamts, is derived from two 96-hr static unmeasured acute teats conducted by Cardin (1986) that
exposed larvae to selenious acid at a salinity of 28-30 g/kg.
Se(IV) Saltwater Final Acute Value Determination
Of the 17 genera for which saltwater mean acute values are available for selenite (Table 2b), the most
sensitive genus, Argopectin, is 68 times more sensitive than the most tolerant, Apeltes. The sensitivities
of the four most sensitive genera differ by a factor of 4.7, and these four include three invertebrates and
one fish, of which an invertebrate is the most sensitive of the four. The saltwater Final Acute Value,
representing the most sensitive 5* percentile genus, is 253.4 ug/L for selenite, which is slightly lower
than the lowest Species Mean Acute Value (Figure 2).
Acute Toxkity of Selenate
Data that may be used, according to the Guidelines, in the derivation of Final Acute Values for selenate
are presented in Tables la and Ib. The following text presents a brief overview of the acceptable data
obtained for selenate, and includes a discussion of the more sensitive and important species. The genera
sensitivity ranking is listed in Tables 2a and 2b.
Acute Torfcity of Se(VI) to Freshwater Animals
Acceptable data on the acute effects of selenate in freshwater are available for 12 invertebrate species
and 11 species offish (Table la). These 23 species satisfy the eight family provision of the Guidelines.
Invertebrates are both the most sensitive and the most tolerant freshwater species to selenate with
SMAVs ranging from 246 ug/L for the crustacean, Daphnia pulicaria, to 442,000 ug/L for the leech,
Nephelopsis obscura. The selenate SMAVs for fishes range from 12,282 ug/L for the fathead minnow,
Pimephalet promelas, to 66,000 ug/L for channel catfish, Ictalurus punctatus. The following text
presents a species-by-species discussion of the eight most sensitive genera, plus all commercially and
recreationally important species.
Ceriodaphnia (eladoceran)
The most sensitive freshwater genus is the cladeceran, Ceriodaphnia, with a GMAV of 3 76 ug Se/L.
The GMAV is derived from one 48-hr acute flow-through measured test (GLEC 1999). Two additional
test* conducted under non flow-through conditions is also listed in Table la (Brix et al. 2001a,b), but the
Guidelines recommend using flow-through measured data in preference to static or renewal data.
Daphnia (cladoceran)
The second most sensitive freshwater genus is Daphnia, with a GMAV of 926.8 ug Se/L that is derived
from the geometric mean of the D. magna (2,118 ug Se/L), D. pulex (1,528 ug Se/L) and D. pulicaria
(246 ug Se/L) SMAVs. Five static and one static-renewal measured 48-hr studies are available for D.
magna where the LC» values ranged from 570 to 5,300 ug Se/L (Boyum 1984; Brooke et al. 1985;
Dunbar et al, 1983; Ingersol et al, 1990; Maier et al. 1993).
The D. pulex SMAV of 1,528 ug Se/L is based on the 48-hr flow-through measured test conducted by
GLEC (1999) that exposed <24-hr old neonates to sodium selenate. Two static measured testa conducted
by Brix et al. (2001a,b), are not used to calculate the SMAV as recommend by the Guidelines.
11
March 2002 Draft
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A-167
Section A - Organizations
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The one available D. pulicaria acute study was conducted by Boyum (1984) that exposed neonates to
sodium selenate for 48 hours under static measured conditions. The resultant 48-hr LC_» value was 246
fig Se/L, which is the most sensitive SMAV for selenate in the database,
Hyalellfi (amphipqd)
The third most sensitive freshwater genus is the amphipod, Hyalella, with a GMAV of 2,073 ug Se/L.
lie GMAV is derived from four 96-hr acute flow-through measured tests where the LCS() values ranged
from 1,350 to 3,580 ug Se/L (GLEC 1998), Three tests conducted under non flow-through conditions
are ako listed in Table la (Adams 1976; Brasher and Ogle 1993; Brix et al. 20Qla,b), but are not used to
calculate the SMAV as recommended by the Guidelines.
Gammarw (amphipod)
The fourth most sensitive freshwater genus is Gammarus, with a GMAV of 2,741 ug Se/L that is derived
from the geometric mean of the G. lacustris (3,054 fig Se/L) and G. pssudolimna&u (2,460 ug Se/L)
SMAVs. The static measured acute test conduced by Brix et al. (2001a) is the only LCio value available
for G. laeustris.
The G. pseudolimnaeus SMAV of 2,460 fig Se/L is based on five 96-hr flow-through measured tests
conducted by GLEC (1998,1999). Two static measured acute studies were conduced by Brooke et al.
(1985) and Brooke (1987), but as recommended by the Guidelines, were not used to calculate the SMAV
for this species.
The fifth most sensitive freshwater genus is Hydra, with a GMAV of 7,300 ug Se/L. The GMAV is
derived from the one available static-measured test conducted by Brooke et gl. (1985).
Pimephales (fathead minnow)
A total of nine fathead minnow acute studies are presented in Table la, but only (he five flow-through
measured LCX values are used to derive the GMAV of 12,282 fig Se/L. The five flow-through LC^
values ranged from 5,500 to 42,100 fig Se/L (Spehar 1986; GLEC 1998). The four static tests are not
used to calculate the SMAV as recommended by the Guidelines.
Xyrauchen (razorbackiucker)
Six 96-hr static unmeasured tests are available for the razorback sucker, Xyrauchen texanus, and the LCM
values ranged from 7,620 to 20,064 ug Se/L (Buhl and Hamilton 1996; Hamilton 1995; Hamilton and
Buhl 1997a). The geometric mean of fte six vataes yield the GMAV of 13,211 ug Se/L.
Paratanyarsvs (midge)
The eighth most sensitive freshwater genus is Paratanyarsvs with a GMAV of 20,000 fig Se/L. The
GMAV is derived from the one available static-measured test conducted with Paratanyarsm
parthenogeneticus by Brooke et al (1985).
Oncorhvnchuf (salmonid)
The GMAV of 56,493 ug Se/L for the commercially important salmonid Qncorhynckta is derived from
the geometric mean of the coho salmon (O. kistitch; 33,972 ug Se/L), chinook salmon (O. tshcrwytscha;
112,918 ftg Se/L) and rainbow trout (O. mykiss; 47,000 ug Se/L) SMAVs. Three static unmeasured 96-
hr studies are used to calculate the coho salmon SMAV where the LCSO values ranged from 30,932 to
39,000 fig Se/L (Buhl and Hamilton 1991; Hamilton and Buhl 1990b), A fourth coho salmon LCM value
is available for an acute test initiated with the tolerant atevin life stage (Buhl and Hamilton 1991), but
based on Guideline recommendations this value is not used when data are available from a more sensitive
life stage.
Five acute chinook salmon static unmeasured 96-hr acute studies conducted with the more sensitive life
stage of the fish are used to determine the 112,918 ug Se/L SMAV for the species with LC50 values
ranging from 62,900 to 180,000 ug Se/L (Hamilton and Buhl 1990b). The two acute studies conducted
with the tolerant eyed egg and alevin life stages by the same authors are not used in the SMAV
determination as recommended by the Guidelines.
A total of four rainbow trout acute studies are presented in Table la, but only the one flow-through
measured LCSO value is used to derive the SMAV of 47,000 ug Se/L (Spehar 1986) as recommended by
the Guidelines.
13
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Section A - Organizations
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(blue fill)
The QMAV of 63.000 ng S&fL for the recreationally important btoegill sunfish, Lepomis macrochirtts, is
derived from the 96-hr static measured test conducted by Brooke et at. (1983) that exposed juvenile
bluegill to sodium selenate,
Ictglurus (channel catfish)
The GMAV of 66,000 fig Se/L for the commercially important channel catfish, Ictalurus punctatus, is
derived from the 96-hr static measured test conducted by Brooke et al. (1985) that exposed juvenile
catfish to sodium selenate.
Sulfate-dependent Toxkity of Selenate
The toxicity of a number of metals (e.g., copper and cadmium) to aquatic organisms is related to the
concentration of hardness in the water. The toxicity of these metals to many different aquatic species
has been shown to decrease as the hardness concentration increases. A similar relationship also has been
recognized between selenate and dissolved sulfate (a similar relationship is not evident between selenite
and sulfate or between either form of selenium and hardness). The studies reviewed in this document
indicate that as the concentration of sulfate increases, the acute toxicity of selenate is reduced (less
toxic). Selenate acute toxicity tests conducted at different levels of dissolved sulfate are available with
C. dubia, D. magna, H. azteca, G, pseudolimnaeus, chinook salmon and fathead minnows (Table la).
These data indicate that, in general, selenate is more toxic to these species in low sulfate water than in
higher sulfate water.
The natural logarithm of selenate acute values was a linear function of the natural logarithm of salfate
concentrations. Regression analysis revealed significant, positive slopes for five of six species that had
scute values precisely determined. Taxa with acute values estimated as greater or less than a given
threshold were excluded from the analysis. However, the sulfate adjustment was not here incorporated
into the water quality criterion for the following reasons. ( 1) Variation in sulfate concentration did not
have a similar effect on the selenate acute value of all species. Analysis of covariance (Zar 1984)
revealed that slopes of regression lines projecting selenate acute values as a function of sulftte
concentrations (see Stephan et al. 1985) were significantly different among taxa (F3j3« - 5.06, P < 0.02).
Slopes ranged from 0. 19 (Hyaletta azteca) to 0.87 (chinook salmon). (2) The influence of sulfate is
sufficiently mild, and the acute criterion sufficiently high compared to chronically toxic concentrations,
that it was not clear that the additional complexity of a sulfate formula would have any significance in
regulator}' applications. (3) If a total selenium criterion were implemented based on the selenate FAV
adjusted for the sulfate concentration, then the selenium limit would not adequately protect aquatic
organisms when selenite is the predominant form of selenium and sulfate concentrations are high.
S«(VI) Freshwater Finn! Acute Value Determination
Of the 18 freshwater genera for which mean acute values are available for selenate, the most sensitive,
Ceriodaphnia, is 1,176 times more sensitive than the most tolerant, Nephehpsis. The range of
sensitivities of the four most sensitive genera, all invertebrates, spans a factor of 7.3. This is
comparatively high variability among taxa. The freshwater Final Acute Value, representing the most
sensitive 5th pereeniile genus, was calculated to be 369.6 ug/L for selenate. This Final Acute Value is
lower than the acute value of the most sensitive freshwater species (Figure 3).
Acute Torieity of Se(VI) to Saltwater Animate
The only species with which acute tests have been conducted on selenate in salt water is tile striped bass
(Table Ib). Klauda (198Sa, b) obtained 96-hr selenate LCJ8 values of 9,790 and 85,840 ug/L using flow-
through measured methodology with prolarvae and juvenile striped bass, respectively. In static
unmeasured tests, Chapman (1992) determined selenate 96-hr LC5!, values that ranged from 23,700 to
29,000 ug/L using 24 to 32 day posthatch striped bass larvae. The more sensitive prolarvae life stage test
conducted underflow-through conditions is used to yield the SMAV and QMAV of 9,790 u.g Se/L for
the striped bass.
Se(VI) Saltwater Final Acute Value Determination
The one saltwater species available for selenate does not satisfy the eight family provision specified in
the Guidelines. Therefore, a saltwater Final Acute Value for selenate cannot be determined.
Comparison of Selenite and Selenate Acute Toxicity
Species Mean Acute Values have been determined for both selenite and selenate with 20 freshwater
species (Table 3a) and one saltwater species (Table 3b). Of these 21 species, 17 are more sensitive to
Se(IV), Nevertheless, of the remaining four species that more sensitive to SefVI), three are in the
sensitive portion of the Table 3a distribution. Although most of the SefVI) acute values are higher than
those for Se(IV), the FAV for S
-------
value, that for Ceriodaphnia dubia, is lower than any acute value for SeftV), and fewer species have been
tested for Se(VI), causing its FAV to be extrapolated below its lowest acute value.
Table la. Acute Toxicity of Selenium to Freshwater Animals
Hardness LC50 Suedes Mean
SfiedS
Hydra (adult),
Hydra sp.
Womi,
Tuhifex lubffai
Leech (adult),
Nvpheto&sis obscura
Snail (adult),
Apfaxa hypnorum
Snail (adult),
A&lextt hytmomm
Snail,
Physa sp.
Cladoceran (
-------
Table la. Acute Toxicity of Selenium to Freshwater Animals (continued).
Hardness LC50 Species Mean
Species
Antphipod
(2 mm length),
Hyalelia asteca
AffipMpod,
Hytdetta azteca
Amphipod,
Hy^leHa ast&ca
Amphipod,
Hyalella asteca
Amplipod,
Hyalella azt&ca
Amphipod,
Midge (4th mster),
ChirorKmus decants
Midge,
Cftirenomus plum asus
Midge,
Chironamtts pttanogus
Midge,
TcsnytQPstis dissitnitss
Coho salmon (0.5 g),
OflttorhynchMS fatsutck
Coho salmon (2,6 g),
Oncorhynckus kisvtch
Coho salmon (alevin),
Qncork}$whus kisutch
Coho salmon (juvenile),
Qncorhyncfatis kisnich
Chinook salmon (0,7 g).
Qnc&t'ttytichus
s vysc
Cliinook salmon (0.5 g),
OncatityncJitts
tawy
Cliinook salmon (1 ,6 g),
Oncorhynchits
tsttttwytscha
Chinook salmon (1 .6 g),
Oncofhvnchtis
(mg/L as or EC50
iMi&l!
R, M Sodium 1 33 410
selenite
F, M Sodium 329 340
satellite
F, M Sodium 1 32 i$7§
selenite (suIftte-64)
F, M Sodium 132 <3SQ
selenite (sulfate-138)
F, M Sodium 1 38 <4(»0
ssleiite fsulfate=359)
F, M Sodium 1 3S STB
setenite (sutfate^ 2)
R, M Sodium 85 4H.200
seleiite
S,U Sodium 39 244jSP
sekrate
S, U Sodium 280 27JgP
selenite
F, M Selenium 48.0 4&gflQ
dioxide
S, U Sodium 2 1 1 7,80ft
satellite
S, U Sodium 333 13,6 mi
sekitite
S,U Sodium 41 35,560*
selenite
S, U Sodium 41 &57>
selenite
S»U Sodium 211 14.800
selerits
S, U Sodiutti 211 U.iffflP.
selenite
S, U Sodium 333 23JOO
selenite
S,U Sodium 333 23.490
selenite
18
Acute Value
(itg/L) Refar-ence
Brasher and Ogle
1993
Halter etal. 1980
GLEC 3 998
GLEC 1998
GLEC 1998
461 A GLEC 1991?
48,200 Maier and Knight
1993
Mayer and
Elkrsieck 1986
25,934 Mayer and
Eikrsieek 1986
42,500 Call etal. 1983
Hamilton and
Buhl 1990b
Hamilton and
BuM 1990b
Buhl and
Hamilton 1991
7,240 Buhl and
Hamilton 1991
Hamilton and
Buhl 1990b
Hamilton and
BuM 199Gb
Hamilton and
Buhl 1990b
Hamilton and
Buhl 1 990b
March 2002 Draft
Table la« Acute Toxicity of Selenium to Freshwater Animals (contin«ed).
Hardness LC50 Species Mean
Species
Chinook satoon
(eyed egg),
Qncoyhynchiis
tsh itwytschs
Chinook salmon (alevin),
Qncorhynchm
tstiawytscha
Chinook salmon (0,31 g),
tsh&wyt$ch&
Chin<»k srfmon (0.46 g),
Qrtcorhynchus
t$tt(tw$tsch&
Rsintxw trotit,
Rainbow troyt,
Oftc&rhyttchtis tnykiss
Rainbow tiX3Ut,
QficofhyftcJ'&ts ntykiss
„ - , . ,
(alevin),
Omortymcms myfaxs
Rainbow trout
(juvenile),
Qftc&rhyttcfa&is tnykiss
l^inbow tout,
Qtt/dGrhynchus myldss
Rainbow trwit,
Orscorhynchts tnykfss
Brook trout
(adirit),
Safafawfonttnalto
Arctic grayling
(alevin).
Thymolhis gpctfeus
Arctic gracing
(juveniJe),
T$jytn&U$4$ ctrcticus
Goldfish
O&ftjssius wrattis
Cotmnon carp,
Cyprirnts c&?n?i®
McttPJt
s,u
S, U
S, U
s,u
S U
S, U
s,u
S U
S, U
F,M
F, M
F, M
S,U
s,u
F, M
R.U
(mgA, as at EC50
CliartBia C»CQ.) (ta/Lt
Sodiom 41.7 >348,320'
selenite
Sodium 41.7 64,690'
selemte
Sodiuni 41.7 jt^^Stf
Sodium 41.7 jyj«
selemte
Sodiutn 330 4 500
selenite
Soditfifl 330 <1 200
selenite
Sodium 272 1,800
selenite
SoditHti 41 118 000
selemte
Sodium 41 9,000
seleftite
Sodium 30 IMflft
selenite
Sodium 135 8.SIKI
selenite
Selenium 1 57 10.200
dioxide
Sodium 41 34,732'
selenite
Sodium 41 1M5
selenite
Selenium 157 |&JJS
dicocde
19
Acute Value
(U&/L) Reference
Hamilton and
BuM 1990b
Hamilton and
Buhl 1990b
Hamilton and
Buhl !990b
15,596 Hamilton and
Buhl 1990b
Ad^ms 1976
Adams 1976
Hunnetal. 1987
Suhl aJid
Hamilton 1991
Buhl and
Hamilton 1991
Goettl and Davies
1976
10,488 Hodson et al. 1980
10,200 Caidwell et al.
19?6a,b
Buhl and
Hamilton 1991
15,675 Bull! and
Hamilton 1991
26,100 Cardwell et al.
1 97oa,b
35,000 Sato etal. 1980
March 2002 Draft
MTMA/F Draft PEIS Public Comment Compendium
A-171
Section A - Organizations
-------
Table la. Acute Toxieity of Selenium to Freshwater Animals (continued).
Hardness LC50 Species Mean
(mg/L as or EC50 Acute Value
SPM<«
Golden shiner,
Noteffti&otms crysol&ucas
Fathead minnow,
Pimephales pro-malas
Fathead minnow,
Pimephales promslas
Fathead minnow,
Pimsphales promefas
Fathead minnow,
Pimephales promelas
Fathead minnow,
P im&phal&s promelas
Fathead minnow,
Pimephafas promelas
Fathead minnow
(30 days),
Ptmepttaie-s promelus
Fathead minnow
(juvenile),
Pim&phules promelas
Fathead minnow
(fry),
Pim&phales promelas
Fathead minnow
(juvenile),
Pimephal&s promelas
Fathead minnow,
Pirnephales pfomelas
Patliead minnow,
Pimephales promelas
Fathead minnow,
Pimephaies pmmdas
Fathead minnow,
Pim&pj-ml&s promslas
Fathead minnow,
Pimephatesprom@!as
Fathead minnow,
Pim&phttlets pramelas
Colorado sqiiawfish
Psych&cheilus hichts
Metboff
F,M
S,U
s,u
s,u
s, u
s,u
S.U
S,M
s,u
F,M
F, M
F, M
F,M
F.M
F,M
F,M
F.M
S5U
Chanted
Sodium
selenite
Sodium
selenite
Sodium
selenite
Sodium
selenite
Sodium
selenite
Sodium
selenite
Sodium
sslenite
Sodium
selenite
Sodium
seienite
Seleniurn
dioxide
Selenium
dioxide
Sodium
setenite
Soxlium
selenite
Sodium
selenite
Sodium
selenite
Seienious
acid
Seienious
acid
Sodium
sefenite
CaC0..1
72.2
312
03°C)
312
(13°C)
303
303
avc)
292
(25°C)
292
(25°C)
51.1
40
157
157
131
(sutf»te»24)
131
(sulfate=160)
145
(sdftte-214)
140
(sulfate-870)
220'
220'
197
20
SaM.
ltM»
10,500
11,300
6,000
7,400
3,400
2,200
1,700
7,760
2.10B
5.MO
3,«70
4Jia
UH
tss.
as
a
&»s
-Jw&L.
11,200 Hsrtwell et al.
19S9
Adams 197«
Adams 1976
Adams 1976
Adams 1976
Adams 1976
Adams 1976
Brooke etal. 1985
Mayer and
Ellersieck 1986
Cardwell et al.
1976a,b
Cardwell et al.
1976a,b
GLECI998
GLEC 1998
OLEC 1998
OLEC 1998
Kimball,
Manuscript
2,209 Kimball,
Manuscript
Hamilton 1995
March 2002 Draft
Table la. Acute Toxicity of Selenium to Freshwater Animals (continued).
Hardness LC50 Species Mean
(mg/L as or EC50 Acute Value
Species
Colorado squawfish
(0,4-1.1 gjuverile),
Ptyehocheilus Iwws
Colorado squawfish
(1 .7 g juvenile),
Ptychocheilus Ittcius
Colorado squawiish
Oarva),
Ptychoeheilus hidus
Colorado squawfish
0uvenile),
Plychachetlus luclus
Colorado squawfish
(0.024-0.047 g),
Ptyckocketkts hteius
Bonytail (fly),
Gfla elegans
Bonytail (1.1 g juvenile).
Gila slegons
Bonytail (2.6 g juvenile),
Gila e/egans
BonytaU (larva),
Gila stegans
Bonytail (jiivenileX
- BuM and
Hamilton 1996
;0,7BO 12,801 Hamilton and
Buhl 1997a
8.(>Sfl - Hamilton 1995
7,7»9 - Hamilton 1995
6.85g - Hamilton 1.995
14.4'X) - BuM and
Hamilton 1996
Ii,g7fl 9,708 Buhl md
Hamilton 1996
4855 - Hamilton 1995
4j,M7 - Hamilton 1995
7,311 - Hainilton 1995
10.45(1 - Buhl and
Hamilton 1996
g,g%0 - BuM and
Hamilton 1996
11.3M 7,679 Hamilton and
BuM1997a
March 2002 Draft
MTM/VF Draft PEIS Public Comment Compendium
A-172
Section A - Organizations
-------
Table la. Acute Toxicity of Selenium to Freshwater Animals (continued),
Hardness LCSO Species Mean
(mg/L as or EC50 Acute Value
Species Method' Chetrfaa] CaCO,) (fs/U^ (ue/L)
White sucker, F.M Sodium 10.2 29.IHH) - Klawfcamp et al.
Catostomiis commersoni seleiite 1983a
White sucker, F, M Sodium 18 31,400 30,176 Duncan and
Catostomus commersani selenite Klaverkamp 1 983
Flaniieimouth sucker
(12- 13 days),
Catastomtis latipinnis
Striped bass (63 days),
Mm-one swcatills
Striped bass (63 days),
Mat-one saxattlis
Channel catfish (juvenile),
Ictulurus pimctctttis
Channel catfish (juvenile),
Ictahtms puncttttns
Channel catfish,
Ict&lwu^ ptmctalMS
Ftogfish,
JardaneHa flortdae
Mosquitofish,
Gombtisfa afflnts
Bluegill (juvenile),
L&pomts maci"ochtnj$
Bluegill,
Lepomls macrochirus
Yellow perch,
Perca flavescens
Hydra (adult),
Hydr-g sf>.
Leech (adult),
Nephelopsis obsatra
Snail,
Aplexa kypnonnn
Cladocenm (<24 hi),
Csri&daphnia dubia
Cladocetan (<24 to),
Ceriodapfiniei dttbia
S,U
S, U
S,U
S, M
S,U
F, M
F.M
S,U
S,M
F, M
F.M
S, M
S, M
S, M
S, M
S, M
Sodium
selenite
Sodium
selenite
Sodium
selenite
Sodium
salemte
Sodium
seienite
Selenium
dioxide
Seleniuni
dioxide
Sodium
selenite
Sodium
sslenite
Selenium
dioxide
Sodium
selenite
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
144 UJM
40 1.328
285 1.480
49.8 16,000
4\ 4,110
157 13,600
157 «at
43.7 M.«BO
50.5 12,000
157 28..SIMI
10.2 11.708'
Stltnatt
53.6 7.»fl
49.3 442. Mm
51.0 1»3,BQO
52 1,969
(sulfate-52)
52 1,864
(sulfate-55)
22
19,100 Hamilton and
Buhll»7b
Palawski et al.
1985
1,783 Palawski et al.
1985
Brooke etal. 1985
Mayer and
Etlersieck 19K6
13,600 Cardwelletal.
1976a,b
6,500 Cardwelletal.
1976a,b
12,600 Reading 1979
Brooke etal. 1983
28,500 Cardwelletal.
1976a,b
11,700 Klawrkarnp et al.
1983a
7,300 Brooke etal, 1985
442,000 Brooke et al. 1985
1 93,000 Brooke et at 1 985
Brix etal. 2001 a,b
Brix etal. 2001 a,b
March 2002 Draft
Table la. Acute Toxicity of Selenium to Freshwater Animals (continued).
Hardness LC50 Species Mean
(rag/L as or EC50 Acute Value
jJEajt Method* Chemical _C§CO,1 IMa£ (ue'L) Reference
dadoomn (<24 hr), F.M Sodium 127 37t 376 GLEC 1999
Ctrlaiafihnfa Jubia wlenate (sutfste=25)
Cladoceran,
Daphnia magmt
Cladoceran,
Daphnia magna
Cladoceran,
Dapknia mogna
Cladoceran,
Dtqihnla magna
Cladoceran,
Daphnia magna
Cladoceran (<24 hr),
Daphnta magna
Cladoceran (<24 hr),
Daphnta pulex
Cladoceran (<24 hr),
DqphntQ ptttsx
Cladoceran (<24 hr),
Qqphrpa ptdex
Cladoceran,
Dapfmia jwllcttriQ
Amphipod(8-12 mm),
Gtmpnqrus lawstris
Ajnphipod (adult),
Gammants
ps&udolimmmts
Arnphipod (adult),
Gammon®
psGuifaltmntmts
Arnphipod,
Goftvtiants
pseudoUmnamts
Antphipod,
Gammams
pxmtfhllmnmus
Arnphipod,
Gommants
pseudalimnaetis
S, M
S, M
S, M
S, M
S, M
R.M
S, M
S.M
P, M
S,M
S, M
S, M
S, M
F,M
F, M
F, M
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
seienate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
seienate
Sodium
selenate
129.5 S.3M
138 UUP
48.1 52»
45.5 2jS«i
136 4.CT
80-100 1840
52 10,123
(sutfate-52)
52 8,111
(sulfate=55)
147 1.528
(suif»te=25)
138 246
116 MSI
(snlfate-120)
46,1 75
51.0 57
139 m>
(sulf»te-25)
132 2,820
(sulfate=125)
137 3.7H
(sulfate-=367)
23
Dunbaretat 1983
Boyum 1984
Brooke etal. 1985
Ingersoil et at
1990
Ingersoil et al.
1990
2,118 Maier etal. 1993
Brix etal. 2001 a,b
Brix etal. 200! a,b
1,528 OLEC 1999
246 Boyum 1984
3,054 Brixetat. 2001a,b
Brooke 1987
GLEC 1998
GLEC 1998
OLEC 1998
March 2002 Draft
MTM/VF Draft PEIS Public Comment Compendium
A-173
Section A - Organizations
-------
Table la. Acute Toxicity of Selenium to Freshwater Animals (continued).
HardBass LC50 Species Mean
(mg/i as or EC50 Acute Value
Amphipod,
Gammarus
pseudolimmmis
Ampfiipod (adult),
Gammarus
psmtdolimnaeus
Amphipod,
fiy&l&ila azteca
Amphipod
(2 mm length),
Hy<tia asteca
Amphipod
(7- 10 days),
Hyateila azteca
Amphipod,
ffytil&tla asteea
Aitiphipod,
Hyahlla asfeca
Atnphipod,
fjyalslla azteca
Amphipod,
ffyaiellu azteca
Midge (4th instar),
Chironorntts dec&ms
Midge (3rd imtar),
Paratmytai-sus
parlhen&f&mttcus
Coho salmon
(0.5 g).
Oncorhynchits kisutch
Coho salmon
fl."g).
Oncorhynchtts ktsurch
Coho salmon
(alevin),
Oncortynctnjs ktmtch
Coho salmon
(juvenileX
Qncorhynchus kisutch
Chinook salmon
(0-? 8),
Oncorhynchus
tslutwytscha
Method*
F, M
F, M
F,U
R,M
S, M
F, M
F, M
F, M
F, M
R,M
S, M
S, U
S,U
S,U
S, U
s,u
Chemical
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
CaCQ.) (usflr
134 3,|7a
(sulftte=«35)
131 1191
(sulfate=25)
336.8 760
133 1,031
52 1,428
(sulfate=55)
143 im
(sulfate-40)
132 1,350
(sulfate=«125)
137 1.54B
(sulfate»367)
1 -jj \ 5SO
(sulfat«=822)
85 23,700
49.4 M.MO
211 323BB
333 39.000
41 158,422'
41 30J32
211 Kl.BOO
24
(ug/L) Reference
GLEC 1998
2,460 GLEC 1999
Adams 1976
Brasher and Ogle
1993
Brixetal. 2001 a,b
GLEG 1998
GLEC 1998
GLEC 1998
2,073 GLEC 1998
23,700 Maier and Knight
1993
20,000 Brooke otal. 1985
Hamilton and
Buhl 1990b
Hamilton and
Buhl 1990b
Buhl and
Hamilton 1991
33,972 Buhl and
Hamilton 1991
Hamilton and
Buhl 1990b
March 2002 Draft
Table la. Acute Toricity of Selenium to Freshwater Animals (conttaaed).
Hardness LC50 Species Mean
(mg/L as or EC50 Acute Value
Species
Chinook salmon
(0-5 g),
Oncorfypnehtts
tshttwytscha
Chinook salmon
(1 .6 g)s
Qne&rhyrtcfnfs
tshawytscha
Chinook salmon
Oncofhynchus
ttihawytscha
Chinook salmon
(eyed egg)s
Qncofhynchus
tshawytscha
Chinook salmon
(alevin),
Qncorhynchus
t^&wytscha
CWaook salmon
(0-31 g),
Qncarfaynchtts
(sh&wytscha
Rainbow trout
(juvenile),
Qncorhyrichus mykiss
Rainbow trout
(alevin),
Gncorfyttcfms ntykiss
Rainbow trout
(juvenile),
Ottzorhync *m> iss
Rainbow trout,
QtKt0t"ftyncfmi$ $tylki$$
Arctic grayling
(alevin),
Tttymaitus wctictts
Arc^c grayling
(juvenile),
Tkyai&lhfs arcticus
Fathead minnow,
Pitrisptial&s pt-otneles
Method'
S,U
S, U
S,U
S,U
S,U
S,U
S, M
S, 0
S.U
F,M
S,U
S.O
s,u
Chenicai
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
seienate
Sodium
selenate
Sodium
sdenate
Sodium
selenate
Sodium
selenate
CaCCs) {u^L^ (jig/L) Reference
211 JWJSfi • Hamilton and
Bull! 1990b
333 ISO. OOP - Hamiltonand
Buhll990b
333 134.0»B - Hamiltonand
Buhl I990b
41.7 >552,000f - Hamiltonand
Buhl 1990b
41.7 >176,640' - Hamiltonand
Buhl I990b
41.7 62.900 112,918 Hamiltonand
Buhl 1990b
51.0 24,000 - Brooke etal. 1985
41 196,460 - Buhl and
Hamilton 1991
41 13,501 - Buhl and
Hamilton 1991
45 47,009 47,000 Speharl986
41 41,800 - Buhl and
Hamilton 1991
41 7S.240 56,081 BuMand
Hamilton 1991
323 1 1,800 - Adams 1976
25 March 2002 Draft
MTM/VF Draft PEIS Public Comment Compendium
A-174
Section A - Organizations
-------
Table la. Acute Toxicity of So Ionium to Freshwater Animals (continued).
Hardness LC50 Species Mean
Sj3eoi.es
Fathead minnow,
Pimephates promotes
Fathead minnow*
Pitnephates prom&les
Fathead minnow
(juvenile),
Pimephnles prom&las
Fathead minnow,
P ffn&pholnsii ppotn&leis
Fathead minnow,
Pimephal&s promelas
Fathead minnow,
Pimephates promet&s
Fathead minnow,
Pimephnles promelas
Fathead minnow,
Pimephales promelas
Colorado squawfish
<&yX
Ptychocheilus lucius
Colorado squawfish
(0.4-1.1 gjuvenile),
P tychochettus Indus
Colorado squawfish
(1,7 g juvenile),
Colorado squawfish,
(larva).
Plych&cheiltiS htcius
Colorado squawfish
Ptychoche,ilu$ Indus
r i ri *fi h
(0,024-0.047 gX
Ptychoch$ilu$ lucius
Bonytai!
(fryX
8
Bonytail
(1.1 g juvenile),
Glia elsgans
s, u
s,u
S, M
F, M
F, M
F, M
F, M
F, M
S, U
S,U
S, U
S,U
S, U
S U
Chemical
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
selenate
Sodium
,.
selenate
(mg/L as or EC50
CaCO,l ,fMBll!
323 11,000
323 12,500
47.9 2,300
46 5.500
136 6.21(1
(sulfate-24)
127 in.sno
(sulfate-160)
131 IS.OOfl
(sul&te=474)
147 42.100
(sulf»te»90t>)
197 27,588
197 mm
197 138,358
199 13.880
199 42.780
1 44 88 000
Acute Value
(us/L) Reference
Adams 1976
Adams 1976
Brooke etal. 1985
Speliar 1986
GLEC1998
OLEC 1998
OLEC 1998
12,282 OLEC 1998
Hamilton 1995
Hamilton 1995
Hamilton 1995
Buhl and
Hamilton 1996
Buhl and
Hamilton 1996
,. ,
Buhl 1997a
Table la. Acute Toxicity of Selenium to Freshwater Animals (continual).
Hardness LC50 Species Mean
(rng/L as or EC50 Acute Value
Suedes Method* Chemical CaCCs) fiie/Ll> fata/D
Bonytafl S, U Sodium 197 90.7M
(2. fig juvenile), selenate
Gita elegons
Bonytail S, U Sodium 199 14.578
(larva), selenate
Gfla elegans
Bonytail S, U Sodium 199 M,9W 37,586
(juvenile), selenate
Gil& ek&atts
Riizorbaek sucker S, U Sodium 197 2MS1
(fiy), selenats
Xyrmtchen texarws
Razorbaek sucker S, U Sodium 197 MJ^f,
(0.9 g juvenile), selenate
Xyftatchen texixrtus
Razorbat* sucker S, U Sodium 1 97 10.450
(2.0 g juvenile), selenate
Xyremchett tex&mts
Ra^jrback sucker S, U Sodium 199 13,910
(larva), selenate
Xyrwchen texanus
Razorbaek sucker S, U Sodium 199 7.620
(juvenile), seienate
Xyra&ich&n texatms
Razorbaok sucker S8 U Sodium ! 44 15.900 13,2 1 1
(0,006-0.042 g), seknate
Xyr£&te&@n tsxatius
Hannelmouth sucker S, U Sodiwn 144 2&900 26,900
(12- 13 days), selenate
Caioslomm lati:pirm/ls
Qiaimel catfish (juvenile). S5 M Sodium 51.0 66.000 66,000
ktalum? ptmctatun selemte
Bluegili (juvenile), S, M Sodium 50.4 63.0JB 63,000
L&pomis macrochfrus selenate
a S - static; R = renewal; F = flow-thrwdi; M = measured; U ~ unrneasiffed.
Reference
Hamilton 1995
Buhl and
Hamilton 1996
Buhl and
Hamilton 1996
Hamilton 1995
Hamilton 1995
Hamilton 1995
Buhl and
Hamilton 1996
Buhl and
Hamilton 1996
Hamilton and
Buhl 1997a
Hamilton and
Buhl 1997b
Brooke etal, 1985
Brooke etal. 1985
s,u
s,u
Sodium
1
Sodium
selenate
197 SOU.
197 182,828
26
Hamilton 1995
Hamilton 1995
March 2002 Draft
fcr fe K:spective species.
c Repeated by Barrows et al- (1 980) in wak performed in the same laboratory under the same contract
3 Fran Smitii et al. (1976).
9 Calculated from regression equation
f Not used in calculation, of Species Mean Acute Value because data are available for a more sensitive life
27
stage.
March 2002 Draft
MTIV1/VF Draft PEIS Public Comment Compendium
A-175
Section A - Organizations
-------
Table 5b, Acute Toxidty of Selenium to Saltwater Animals
LC50 Species Mean
Salinity or ECSO Acute Value
Species MeUKxf Chemicgl (g/kg) ^g/yft r (vs/L) Refgiaice
SALTWATER SPECIES
Sc-kniU
BluemuxseJ s,U Selenium 33,79 >10.(MH) >10,000 Martinet el. 1981
(embryo), oxide
Myttlua edulis
Bay scallop
(juvenile).,
A}-&0.pecten Irradions
Pacific oyster
(embryo),
Crass&stf^a gfgas
Pacific oyster
(embryo),
Crussostrea §y%ft$
Surf clam
(juvenile),
Spimla solidissim-a
Copepod
(adult),
Acat'tia clausi
Copepod
(adult),
Acarisa tonsa
Mysid
(juvenile),
Americotnysis bahia
Mysid
(juvenile),
Amerieamysis bafaa
Brown shrimp
(juvenile),
Penaeus ast&cus
Dungeness crab
(zoea larva),
Cancer maltster
Blue crab
(juvenile),
Callinectes sofnckts
R, U Sodium 25
sslenite
S, U Selenium 33.79
oxide
S, U Soditim 33,79
seleiite
R,U Sodium 25
selemte
S, U Seknious 30
acid
S, U Selemous 3Q
acid
S, U Selenious
acid
F, M Selenious 15-20
acid
S, U Sodium 30
selersite
S, U Selenium 33,79
oxide
S, U Sodium 30
selenite
28
15S 255 Nelson at al. 1988
>10.0B0 - Oiickstein 1978;
Martinet al. 1981
>m(MO >10,000 Gliekstdn 1978
1.900 1,900 Nelson et at 1988
I.HQ 2,1 10 Lussiet 1986
1» 839 Lussiet 1986
600 - U.S. EPA 1978
1,S(M) 1 ,500 Ward et al. 1 98 1
l.a>Ht 1,200 Ward et al. 1981
1.040 1,040 Olictotein 1978
4,600 4,600 Ward et at. 1981
March 2002 Draft
Table Ib. Acute Toxicity of Selenium to Saltwater Animals (continued)
LC50 Species Mean
Salinity or ECSO Acute Value
Species Method! Chemical (a/kg) iMEDl ..(UttflLA. Reference
Haddock S,U Selenious 30 599 599 Cufdm 1986
(larva),
Melanogrfmrtws
aeftlffinas
SheepAead minnow
(juvenile),
Cyrinadon varisgattts
Sheepshead rmrifiow
(juvenile),
C£>rirt0ft(W variegates
Atlantic silverside
(juvenile),
Msttidia mvntdia
Fcurspine stickleback
(adult),
Apeltvs quadracus
Striped bass,
Mortme saxattlis
Striped bass
(24dposthatcri),
Morone snxatitts
Striped bass
(25dposthatch),
Morone saxaNHs
Striped bass
(31 d posthatch),
Morone swcatiils
Striped bass
(32 d posthatch),
A4drotte swcoMlls
Pinft*
(juvenile),
Lagodon rhomboido
Surnmer flcamder
(embryo),
Pamllchtfiys denl&lus
"^nter floundei
(larva),
Pseudoplmtronectes
americttfiMS
acid
S, U Selemous
acid
F, M Sodium 30
seierate
S, U Selenious 30
acid
S, U Selenious 30
acid
S, U Sodium 1
selenite
S, U Sodium 5
seienite
S, U Sodium 5
selenite
S, U Sodium 5
selenite
S, U Sodium 5
selenite
S, U Sodium 30
selenite
S, U Selemous 30,2
acid
S, U Selenious 30
acid
29
«,700 - Heitmuller et al.
1981
7.480 7,400 Ward et at. 1981
9,7|S 9,725 Cardin 1986
17.350 17,350 Cardin 1986
1.550 - Palawski et al.
1985
3.400 - Chapman 1992
3.300 - Chapman 1992
J.8IMI - Chapman 1992
3.900 3,036 Chapman 1992
4.400 4,400 Ward etal. 1981
449J7 3,497 Cardin 1986
14,240 - Cardin 1986
March 2002 Draft
MTM/VF Draft PEIS Public Comment Compendium
A-176
Section A - Organizations
-------
Table Ib. Acute Toxicity of Selenium to Saltwater Animals (continued)
Seedes
Winter flounder
(larva),
Pseud&pi&ttrottectes
cmericamts
Striped bass
(24dposthatch),
Morons saxatilis
Striped bass
(25dposthatch),
Morone saxatilis
Striped bass
(31 dposthatch),
Moratie saxatilis
Striped bass
(32dpoethatch),
Stiiped bass
(juvenile^
Morone saxatilis
Stiiped bass
(prolarvae),
Atfarane saxatilis
s S = static; R = renewal; F -
fe Concentration of selenium,
for the respective species.
1/C50 Species Mean
Salinity or EC50 Acute Value
Method" Chermcal (aloft fitg/L:!b (ustfL)
S, U Selenious 28 15.ft70 14,649
acid
senate
S, U Sodium 5 26,300"
seienate
S, U Sodium 5 23,700*
seienate
S, U Sodium 5 26,300"
seienate
S, U Sodium 5 29,000"
seienate
F, M Sodium 6.0-6.5 85,840'
seienate
F, M Sodium 3.5-4.2 9.T90 9,790
seienate
flow-through; M = measured; U - unmeasured
Reference
Cm-din 1986
Chapman 1992
Chapman 1992
Chapman 1992
Chapman 1992
Klauda 1985a,b
Klauda 1985a,b
not the chemical. Noje^ The values underlined in this column were used to calculate the SM AV
e Not used in calculation of Species Mean Acute Value because data are available for a more seasitive life
30
stage.
March 2002 Draft
Table 2a. Ranked Freshwater Genus Mean Acute Values
Rank'
28
27
26
25
24
23
22
21
20
19
18
17
16
15
14
Genus Mean
Acute Value
Cue/Li
203,000
42,500
35,356
35,000
34,914
28,500
26,100
24,100
24,008
15,675
13,600
12,801
12,600
1 1,700
11,200
Species
FRESHWATER SPECIES
Sttenite
Leech,
Nephelopsls obscura
Midge,
Tanytarsus dissimilis
Midge,
Onronomus decorus
Midge,
Ckifoft&mus plumosus
Common carp,
Cyprimis carpio
Snail,
Aptexa hypnorum
Bluegill,
Lepomis macrochirus
Goldfish,
Carassius auratus
Snail,
Physa 5).
White sucker,
Catostomus commersoni
Flannehtioutli suclcer
Catostomus tatipinnis
Arctic gmyling
Thymaltta arcticus
Channel citfish,
tctalunis punctatus
Colorado squawfish,
Ptychocheilus hicias
Mosquitoft^i,
Gambmia qffinis
Yellow perch,
Percaflavesctns
Golden shiner,
Notemigonta ctysoleucas
31
Species Mean
Acute Value
203,000
42,500
48,200
25,934
35,000
34,914
28,500
26,100
24,100
30,176
19,100
15,675
13,600
12,801
12,600
11,700
11,200
Number of Acute
Values used to
Calculate Species
Mean Value11
1
1
1
2
1
2
1
1
1
2
1
1
1
6
1
1
1
March 2002 Draft
MTM/VF Draft PEIS Public Comment Compendium
A-177
Section A - Organizations
-------
Table 2a. Ranked Freshwater Genus Mean Acute Values (continued)
Genus Mean Species Mean
Acute Value
Rank* (ug/L)
13 10,580
n 10,200
1 1 9,708
10 7,710
9 7,679
8 6,500
7 3,489
6 2,209
5 1,783
4 1,700
3 1,341
2 <515.3
1 461.4
Speeies
Chinook salmon,
Oncorhynchits tshcnvytscha
Cohosalttion,
Oncorhynchus kisutch
Rainbow trout,
Oncorhynchus mykiss
Brook trout
Salvelinus fontinalis
Bonytail
Gilas elegans
Worm,
Tubifex tubifex
Razorbsck sucker,
Xyrauchen texanus
Flagfish,
Jordanellafloridae
Amphipod,
Gammains pseudoUmnae us
Fathead minnow.
Pimephalis promelta
Striped bass,
Morons scccatiUs
Hydra,
Hydra sp.
Cladoceran,
Daphnia metgnu
Ciadoceran,
Daphnia pulex
Cladoceran,
Ceriodaphtna ajjtitis
Cladoceran,
Ceriodaphnia Aibia
Amphipod,
Hyalella tateca
32
Acute Value
(ya/L)1*
15,596
7,240
10,488
10,200
9,708
7,710
7,679
6,500
3,489
2,209
1,783
1,700
905.3
1,987
<603.6
440
461.4
Num her of Acute
Values used to
Calculate Species
Mean Valueb
6
3
2
1
5
1
6
1
5
8
2
1
11
1
4
1
5
March 2002 Draft
Table 2*. Ranked Freshwater Genus Mean Acute Values (continued)
Genus Mean Species Mean
Rank*
18
17
16
15
14
13
12
11
10
9
8
7
6
5
4
Acute- Value
(tiS/LV
442,000
193,000
66,000
63,000
56,493
56,081
53,454
37,586
26,900
23,700
20,000
13,211
12,282
7,300
2,741
Species
Seienatc
Leech,
Nephelopsis obsaira
Snail,
Aptexa hypnorum
Channel catfish,
Ictahmis punctatus
Bluegill,
Lepomis macrochirus
Chinook salmon,
Oncorhynchus tshaivytscha
Coho salmon,
Oncorhynchus kisutch
Rainbow trout,
Oncorhynchus mykiss
Arctic grayling.
Thymnllus arcticus
Colorado squawfish.
Ptyehocheiltts hicius
Bonytail,
Gila elegans
Fltttmelrnouth sucker
Catostomus latipinnis
Midge,
Chirotwmtts decorus
Midge,
Pamtonptarsus
parthenogeneticits
Razorback sucker,
Xyrauchen texanus
Fathead minnow,
PitnephaUs promelas
Hydra,
Hydra sp.
Amphipod,
Gammarus lacustris
33
Acute Value
(pg/'Ll''
442,000
193,000
66,000
63,000
112,918
33,972
47,000
56,081
53,454
37,586
26,900
23,700
20,000
13,211
12,282
7,300
3,054
Number of Acute
Values used to
Calculate Species
Mean Value11
1
1
1
1
5
3
1
2
6
5
1
1
1
6
5
1
1
March 2002 Draft
MTM/VF Draft PEIS Public Comment Compendium
A-178
Section A - Organizations
-------
Table 2a. Ranked Freshwater Genus Mean Acute Values (continued)
Number of Acute
Genus Mean Species Mean Values used to
Acute Value Acute Value Calculate Species
Rank3 ( ufi/L) Species (ug/LI^ Mean Value6
Arnphipod, 2,460 5
Oammana pseudolimnaeus
3 2,073 Arnphipod, 2,073 4
Hyalelki azteca
2 926,8 Cladoceran, 2,118 6
Daphnia magna
Cladoceran, 1,528 1
Daphnia pulex
Ciadoeerao, 246 1
Daphna pulicaria
1 376 Cladoceran, 376 1
Ceriodavknia t&jbm
'• Ranked from most resistant to most sensitive based on Genus Mean Acute Value. Inclusion of
"greater than" and "less than" values does not necessarily imply a true ranking, but does allow
use of all genera for which data are available so that the Final Acute Value is not unnecessarily
lowered.
b From Table la.
34 March 2002 Draft
Table 2b. Ranked Saltwater Genus Mean Acute Values
Genus Mean
Acute Value
Rank* (uaM
17 17,350
16 14,649
15 >1 0,000
14 >10,000
13 9,725
12 7,400
11 4,600
10 4,400
9 3,497
8 3,036
7 1,900
6 1,500
5 1,331
4 1,200
3 1,040
2 599
Species
SALTWATER SPECIES
Seknlte
Fourspine stickleback,
Apsltes quadracus
Winter flounder,
Psevdopltufonectes
americanus
Blue mussel,
Mytilm edutis
Pacific oyster,
Crassosttva gigas
Atlantic silverside,
Menidia menidia
Sheepshead minnow,
Cyptinodon variegatus
Blue crab,
Caltinectes sapidus
Pinfish,
Lagodon rhomboides
Summ er flounder,
Paralichthys dentatus
Striped bass,
Uorone saxattlis
Surf clam,
Spisula sotidissima
Mysi4
Amertcamysis bahia
Qipepod,
Acartia clausi
Copepod,
Acartia tonsa
Brovvn shrimp,
Penaeus aztetms
Dungeness crab,
Cancer magistsr
Haddock,
Melanogrammus aeglefinus
35
Species Mean
Acute Value
17,350
14,649
> 10,000
> 10,000
9,725
7,400
4,600
4,400
3,497
3,036
1,900
1,500
2,110
839
1,200
1,040
599
Number of Acute
Values used to
Calculate Species
Mean Valueb
1
2
i
i
i
i
i
i
i
5
1
1
1
1
1
1
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Table 2b. Ranked Saltwater Genus Mean Acute Values
Number of Acute
Genus Mean Species Mean Values used to
Acute Value Acute Value Calculate Species
Esnk* JugLI Species (\ffIJt MeaaVatue* ...
1 255 Bay scallop, 255 1
Ar%opect@n irradians
Selenate
1 9,790 Striped bass, 9,790 1
Morons saxatitis
* Ranked from mast resistant to most sensitive based on Genus Mean Acute Value. Inclusion of
"greater than" and "less than" values does not necessarily imply a true ranking, but does allow
use of all genera for which data are available so that the Final Acute Value is not unnecessarily
lowered.
* From Table Ib.
Selenite
Freshwater
Final Acute Value = 514.9 ug/L
Criterion Maximum Concentration » (514.9 ug/L)/2 - 257.5 ug/L
Silt water
Final Acute Value = 253.4 ug/L
Criterion Maximum Concentration = (253.4 (Jg/tyj = 126.7 ug/L
Selenate
Fresh water
Final Acute Value - 369.6 ug/L
Criterion Maximum Concentration -- (369.6 ug/L)/2 =184.8 ug/L
36 March 2002 Draft
Table 3a. Ratios of Freshwater Species Mean Acute Values for Selenite and Selenate.
Selenite
Sensitirity
Rank from
Selenite
Species Mean
Acute Value
Selenate
Species Mean
Acute Value
Ratio
FRESHWATER SPECIES
28
27
26
25
24
23
22
21
20
19
18
17
16
15
14
13
Leech,
Nephelopsis obscttra
Midge,
Tanytarms cKssimitis
Midge,
Chironomus decorus
Midge,
Chironomus ptumoms
Cosimon carp,
Cyprinus carpio
Snail,
Aplaa hypnomm
Bluegill,
Lepc&nis macfochims
Goldfish,
Carassnu aurariw
Snail,
Physa sp,
White sucker,
Catostomtts comtnenoni
Flannelmouth sucker
Calostomw tatipinnis
Arctic grayling
Thymallus articus
Cliannel catfish,
Ictaltirus punctattLi
Colorado squawfish,
Ptychockeilus lucias
Mosqujtofish,
Gambusia affinis
Yellow perch,
Percaftovescens
Golden shiner,
ffotoemigonus trysoleticas
Chinook salmon,
Oncorhynchus tshawytscha
203,000
42,500
48,200
25,934
35,000
34,914
28,500
26,100
24,100
30,176
19,100
15,675
13,600
12,801
12,600
11,700
11,200
15,596
37
442,000
NA'
23,700
NA
NA
193,000
63,000
NA
NA
NA
26,900
56,081
66,000
53,454
NA
NA
NA
112,948
0.459
NA
2,033
NA
NA
0.181
0.452
NA
NA
NA
0710
0.280
0.206
0.239
NA
NA
NA
0.138
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Table 3a. Ratios of Freshwater Species Mean Acute Values tor Selenite and
(continued).
Selenite Selenite Selenate
Sensitivity Species Mean Species Mean
Rank from Acute Value Acute Value
Coho salmon, 7,240 33,972
Oncorhynchus kisutch
Rainbow trout, 10,488 47,000
Oncorhynchus mykiss
12 Brook trout 10,200 NA
Salvelimts fontinalis
11 Bonytail 9,708 37,586
Oilas elegams
10 Worm, 7.710 NA
Tubifex tubifex
9 Razorback sucker, 7,679 13,211
Xyrauchen texanus
8 Flagfish, 6,500 NA
Jordansllafloridae
7 Amphipod, 3,489 2,460
Gammarus pse udolimnaeus
6 Fathead minnow, 2,209 12,282
Pimephaks prometas
5 Striped bass, 1,783 NA
Morons saxatilis
4 Hydra, 1,700 7,300
Hydra sp.
3 Cladoceran, 905.3 2,118
Daphnia magna
Cladoceran, 1,987 • 1,528
Daphnia piilex
2 Cladoceran, -=603.6 NA
Ceriodaphnia affinis
Cladoceran, 440 376
Ceriodaphnia dubia
1 Amphipod, 461.4 2,073
Hyahlla azteca
Setenate
Ratio
0.213
0.223
NA
0.258
NA
0.581
NA
1.418
0.180
NA
0.233
0.427
1.300
NA
1.170
0,223
' Ranked from most resistant to most sensitive based on Selenite Genus Mean Acute Value (from Table 2a).
k From Table la.
c NA = Not Available
38 March 2002 Draft
Table 3b. Ratios of Saltwater Species Mean Acute Values for Selenite and Selenate,
Selenite Selenate
Sensitivity Species Mean Species Mean
Rank from Acute Value Acute Value
SALTWATER SPECIES
8 Striped bass, 3,036 9,790 0.310
Marone saxMtis
' Ranked from most resistant to most sensitive based on Genus Mean Acute Value (from Table 2b1.
^ From Table Ib.
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D)
0)
§
o
UJ 10
£
i
10
Ranked Summary of Selenite GMAVs
Freshwater
.0."°*°
Ranked Summary of Selenite GMAVs
O •
Rmfl torts Vafee = 5W S fjgft. S
0.2 0.4 0.6 0.8 1
% Rank GMAVs SF^n^T*1*
-J, 10- ,
Ol ;
3. ;
c"
,2 n(j* -
te ii
is :
c
Q)
c 1(f .
O :
** ;
UJ lo2^
1 :
W4 A
10 ^
Saltwater
. " .
• D D
•
. 0
• *
D
0 ° ° °
•
SSitwsfer Final AcutS V^fjs ^ 253 3 yp^ S^lefifis
Cntsria y»imi,im ConesrsfratMX! = 1 28 7 p^L Seismte
I 1 I [ I
0.2 0.4 0.6 0.8
% Rank GMAVs ,
Figure 1.
Ranked summary of selenite GMAVs (freshwater).
Figure 2.
Ranked summary of selenate GMAVs (saltwater).
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a
c
.2
IS
§
o
UJ
&
n
I
10" i
Ranked Summary of Selenate GMAVs
Freshwater
Freshwsfe-Final AfiutsVakies: 3813 81194. S
Maximum Concanirstesn = 184.8 \i$L Setersate
0.2 0.4 0.6 0.8 1
% Rank GMAVs iHJHrST""
Review and Analysis of Chronic Data
Since the issuance of the 1987 chronic criterion of 5 uj^L, considerable information has come forth
regarding the route of exposure of selenium to aqxiatic organisms. Studies have shown that diet is the
primary route of exposure that controls chronic toxicity to fish, the group considered to be the most
sensitive to selenium (Coyle et al. 1993; Hamilton et at. 1990; Hermanutz et al. 1996). Chronic tests in
which test organisms were exposed to selenium only through water and which have measured selenium
in the tissue of the test species have produced questionably low chronic values based on the tissue
concentrations. Some of these water-only exposures have required aqueous concentrations of selenium
of greater than 300 ug/L to attain body burdens sufficient to achieve a chronic response that would have
been reached in the real world at aqueous concentrations approximately 30 times lower (Cleveland et al.
1993; Gissel-Nielsen and Gissel-Nielsen 1978).
Because diet controls selenium chronic toxicity in the environment and water-only exposures require
unrealistic aqueous concentrations in order to elicit a chronic response, only studies in which test
organisms were exposed to selenium in their diet alone or in their diet and water were considered in the
derivation of a chronic value, To be able to use the chronic study results, the measurements had to
include selenium in the test species tissue. Both laboratory and field studies were considered in the
review process. Chronic studies reviewed were obtained through a literature search extending back to
the last revision review, from information supplied to U.S. EPA through the Notice of Data Availability,
and using the references cited in previous selenium criteria documents.
Figure 3.
Ranked summary of selenate GMAVs (freshwater).
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Selection of Medium for Expressing Chronic Criterion
Whole-body tissue concentration of selenium on a dry weight basis, for species eliciting the chronic
response, was selected as the medium from which to base the chronic criterion value. As discussed
above, a water-based criterion is not appropriate for selenium because diet being the most important
route of exposure for chronic toxicity. The option of basing the chronic criterion on the concentration of
selenium in prey species (that is, in the diet of the target species), was considered inappropriate for two
reasons: 1) the concentration of selenium in the diet is an indirect measure of effects observed in the test
species and is dependent on feeding behavior of the target species, and 2) selection of what organism to
sample to assess attainment of a criterion based on diet is problematic in the implementation of such a
criterion. Sediment has also been proposed as a medium upon which to base the »elentam chronic
criterion (Canton and Van Derveer 1997; Van Derveer and Canton 1997), but because of the patehiness
of selenium in sediment and an insufficient amount of data to support a causal link between
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concentrations of selenium in sediment and chronic effects observed in fish (see Hamilton and Lemly
1999, for a review), a sediment-based criterion was not selected.
Besides being a direct link to chronic endpokts, a tissue-based criterion has the positive attributes of
integrating many site-specific factors, such as chemical speciation and rates of transformation, large
variations in temporal concentrations in water, types of organisms constituting the food chain, and rates
of exchange between water, sediment, and organisms (Hamilton, in preparation; U.S. EPA 1998).
Whole-body tissue was selected over specific tissue types, such as ovary, liver, kidney or muscle because
of practical reasons of sampling and because a sufficient data base containing chronic effects based on
whole-body tissue is present in the literature. Ovaries may be the best tissue to link selenium to chronic
effects because of its role in the maternal transfer of selenium to eggs, and embryo-larval development
being the most sensitive endpoint for chronic effects. However, ovarian tissue is also only available
seasonally and sometimes difficult to extract in quantities sufficient for analysis, especially in smaller
fish species. Whole-body larval tissue is also not practical due to sampling and seasonal constraints.
To increase the number of studies in which chronic effects could be compared with selenium
concentrations in whole-body tissue, the relationship between selenium in whole-body was compared
with ovary, liver and muscle tissues. Data from 12 studies that sampled whole-body as well as muscles,
ovary, or liver allowed the projection of whole-body concentrations as a positive, linear function of
concentrations in these individual tissues. It was not possible to estimate such relationship for kidneys
and carcass because of insufficient data. Three species (rainbow tout, bluegill sunfish and largemouth
bass) comprised over 95 percent of the data evaluated for these relationships.
Projections of whole-body concentrations of selenium as a linear function of concentrations of this
element in muscles or ovaries appeared to be reliable (Figure 4; Appendix G; r2 values of 0.92 and 0.84,
respectively; P < 0.01 for both tests). Estimates from selenium concentrations in liver were not as
precise (r1 = 0.61), but the relationship was still highly significant (P < 0.01). Where appropriate,
whole-body selenium concentrations were estimated from selenium concentrations in muscle, ovary and
liver according to the following equations:
Se In whole body vs muscle
30 -
25 -
20 -
f = 0 92
y =0 71 x + S 43
Se In muscle,
Se in whole body vs, ovary
y s 0 84 x * 045
Se in ovary, pg/g d
Se in whole body vs liver
40 60 SO )00 120
Se in !iv*r, Mi'i dw
Figure 4. Linear regressions of selenium concentrations in all tissues (whole body) against
concentrations in muscle, ovary and liver tissues. Data include multiple species offish.
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0.71([Selwut,«]) + 1.43 (I)
+- 0.45 (II)
1.30 (III)
Chronic studies that reported selenium concentrations in tissues based on wet weight were converted to
dry weight using a moisture content of 0.80 (U.S. EPA 1985b).
Calculation of C'hronlc Values
In aquatic toxicity tests, chronic values are usually defined as the geometric mean of the highest
concentration of a toxic substance at which no adverse effect is observed (highest no observed adverse
effect concentration, NOAEC) and the lowest concentration of the toxic substance that causes an adverse
effect (lowest observed adverse effect concentration, LOAEC). The significance of observed effects is
determined by statistical tests comparing responses of organisms exposed to natural concentrations of the
toxic substance (control) against responses of organisms exposed to elevated concentrations. Analysis of
variance is the most common test employed for such comparisons. This approach however, has its
limitations. Since neither NOAEC or LOAEC are known in advance and the number of concentrations
that can be tested is constrained by logistic and financial resources, observed effects of elevated
concentrations may not permit accurate estimates of chronic values. For instance, if all elevated
concentrations had high adverse effects or if the difference in concentrations between two significantly
different treatments was large, it would not be possible to define either the NOAEC or LOAEC with
precision. Furthermore, as the concentration of some substances (e.g., selenium) naturally varies among
ecosystems, a concentration that is above the normal range at one site, maybe within the normal range at
a different location. In this approach to calculate chronic values, natural variation in concentrations of a
substance implies that controls are site specific, and thus multiple tests are needed to define the chronic
value at different locations.
An alternative approach to calculate chronic values focuses on the use of regression analysis to define the
dose-response relationship. With a regression equation, which defines the level of adverse effects as a
function of increasing concentrations of the toxic substance, it is possible to determine the concentration
that causes a relatively small effect, for example a 5 to 30 percent reduction in response. A reduction of
20 percent in the response observed at control (ECM) was used as the chronic value because it represents
a low level of effect that is generally significantly different from the control (tJ.S. EPA 1999). Smaller
reduction* in growth, survival, or other endpoints only rarely can be detected statistically. Effect
coneenfratiotB associated wttfc such small reductions have wide uncertainty bands, making them
unreliable for criteria derivation. Adverse effects are generally modeled as a sigmoid function of
increasing concentrations of the toxic substance (Figure 5).
Dose-Response Relationship
o
Q.
0
Figure 5.
Selenium Concentration
Reductions in survival, growth or other responses of organisms are often modeled as a
siginoid function of increasing concentrations of selenium, or any other toxic substance.
A logistic regression was used to model negative effects of increasing concentrations of selenium on
growth, survival, or percent of normal individuals (without deformities) of several aquatic species. The
equations that described such functions were then used to estimate the concentration that promoted a 20
percent reduction in response observed at control levels (EC26). These analyses were performed using
the Toxic Effects Analysis Model software (version 0.02; R. Erickson, U.S. EPA Duluth).
Only data sets that met the following conditions were included in the analysis; (1) the experiment had a
control treatment, which made it possible to define response levels at natural concentrations of selenium,
(2) and at least four concentrations of selenium. (3) The highest tested concentration of selenium caused
>50 percent reduction relative to the control treatment, and (4) at least one tested concentration of
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selenium caused <20 percent reduction relative to the control treatment to ensure that the ECj8 was
bracketed by tested concentrations of selenium. When the response was expressed as percentages (e.g.,
percent survival), tansformed values (arcsin of the square root) were used to homogenize the variance.
When the data from an acceptable chronic test met the conditions for the logistic regression analysis, the
ECm was the preferred chronic value. When data did not meet the conditions, best scientific judgment
was used to determine the chronic value. In this case the chronic value is usually the geometric mean of
the NOAEC and LOAEC. But when no treatment concentration was an NOAEC, the chronic value is
less than the lowest tested concentration. And when no treatment concentration was a LOAEC, the
chronic value is greater than the highest tested concentration.
Logistic regression assumes that a logistic model describes the log dose-response curve. For a visual
display of such model, a logistic curve with three parameters was fitted to each data set using nonlinear
least-squares regression analysis {Draper and Smith 1981). The logistic model was
y-
l+OJC*
where x symbolizes the selenium concentration in the organism's tissues, y is the response of interest
(survival, growth, or reproduction), and >•„, a and b are model parameters estimated by the regression
analysts. The y0 parameter represents the response of interest at background levels of selenium. The
graphs also include the 95 percent confidence interval for projections of the logistic model. These tasks
were performed in S-Plus version 6,0 (Insightful 2001).
Evaluation of Freshwater Chronic Data for Each Species
Acceptable freshwater chronic toxicity data are currently available for an aquatic invertebrate
(Brachionus calyciflorous), six different fish species, and a mix offish species from the family
Centrarehidae; total of 17 different studies (Table 4). Detailed summaries of each study are included in
Appendix H. Collectively, only these data were considered for the derivation of a final tissue residue
criterion for selenium. Below is a brief synopsis of the experimental design, test duration, relevant test
endpoints, and other critical information regarding the derivation of each specific chronic value. The
chronic toxicity values for other chronic selenium toxicity values and endpoints are included in
Appendix H.
Brachionus calyciflorus (freshwater rotifer)
This study reported by Dobbs et at. (1996) is one of two laboratory-based experiments (also see Bennett
et aL 1986) that involved exposing algae to selenium (in this case as sodium selenate) in water, and
subsequently feeding the algae to rotifers which were in him fed to fish (fathead minnows). In this
particular study, the rotifers and fish were exposed to the same concentations of sodium selenate in the
water as the algae, but received additional selenium from their diet (i.e., the algae fed to rotifers and the
rotifers fed to fish). The overall exposure lasted for 25 days. Rotifers did not grow well at
concentrations exceeding 108.1 ug Se/L in water, and the population survived only 6 days at selenium
concentrations equal to or greater than 202.4 jig Se/L in the water (40 ug/g dw in the algae). Regression
analysis of untransformed growth data (dry weight) determined 4 day post-test initiation resulted in a
calculated ECa, of 42.36 ug Se/g dw tissue (Table 4).
Oncorhmehus tshawytscha (chinook salmon)
Hamilton et at. (1990) conducted a 90-day growth and survival study with swim-up larvae fed one of two
different diets. The first diet consisted of Oregon moist pellets where over half of the salmon meal was
replaced with meal from selenium-laden mosquitofish (Gambusia affinls) collected from the San Luis
Drain, CA (SLD diet). The second diet was prepared by replacing half the salmon meal in the Oregon
moist pellets with meal from low-selenium mosquitofish (i.e., the same relatively uncontaminated
rnosquitofish that were used in the control diet) and spiked with seleno-DL-methionine (SeMe diet).
Analysis of the trace element composition in the two different diet* indicated that while selenium was the
most toxic element in the SLD diet, concentrations of boron, chromium, iron and strontium in the high-
selenium mosquitofish replacement diet (SLD diet type) were slightly elevated compared to the
replacement diet composed of uncontaminated control mosquitofish that were spiked with organic
selenium (SeMe diet type). These trace elements were, however, only 1.2 (e.g., iron) to 2.0 times (e.g.,
chromium) higher in the SLD diet than the SeMe diet, which contained the following measured
concentrations (dry weight basis) in the food: boron-10 ug/g; chromium- 2.8 ug/'g, iron- 776 ug/g, and
strontium- 48.9 ug/g.
During the test, the survival of control Chinook salmon larvae and larvae fed the lowest dietary selenium
concentrations in either dietary exposure type (SLD and SeMe, respectively, consuming food at
approximately 3 ug Se/g dw) exceeded z 97 percent up to 60 days post-test initiation. Between 60 and 90
days of exposure, however, the control survival declined significantly. Therefore, only data collected up
to 60 days post-test initiation was considered for analysis. Regression analysis of untransformed growth
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data after 60 days of exposure resulted in a calculated EC,,, of 15.74 fig Se/g dw tissue for fish fed the
SLD diet type, and 10.47 ug Se/g dw tissue for fish fed the SeMe diet type (Table 4). Note: The
mosquitoftsh from San Luis Drain were not tested for contaminants other than certain key elements
suspected to be present in these fish. The San Luis Drain receives irrigation drainage from the greater
San Joaquin Valley; and therefore, there is the possibility that the mosquitofish used in this study may
have contained elevated levels of pesticides. The use of the SLD diet results assumes that selenium, and
not these other possible contaminants, was the cause of any adverse chronic effects.
Qncgrhynetnis mykisf (rainbow trout)
Hilton and Hodson (1983) reared juvenile rainbow trout on either a high (25 percent) or low (1 percent)
available carbohydrate diet supplemented with sodium selenite for 16 weeks. Body weights, feed:gain
ratios, and total mortalities were followed throughout the exposure every 28 days. Tissues (livers and
kidneys) were extracted for selenium analysis after 16 weeks. Fish fed the diets (low carbohydrate and
high carbohydrate) with the highest selenium concentration (11.4 and 11.8 ug/g dw food, respectively)
exhibited a 45 to 48 percent reduction in body weight (expressed as kg per 100 fish) compared to control
fish by the end of the exposure, which the authors attributed to food avoidance. With only two dietary
exposure concentrations and a control, these data were not amenable to regression analysis. The
maximum acceptable toxicant concentration (MATC) for growth of juvenile rainbow trout relative to the
final concentrations of selenium in liver tissue of trout reared on the high carbohydrate seleniferous
dietary type is the geometric mean (GM) of 21.0 ug/g dw (NOAEC) and 71.7 ug/g dw (LOAEC), or
38,80 ug Se/g dw. Using the equation III to convert the selenium concentration in liver tissue to a
concentration of selenium in the whole-body, the MATC becomes 9.659 ug/g dw (Table 4). The
calculated MATC for the same group of experimental fish exposed to selenium in the low carbohydrate
diet for an additional 4 weeks based on the occurrence of nephrocaleinosis in kidneys was estimated to be
10.42 fig Se/g dw tissue (see Hicks et al. 1984).
Hilton et al. (1980) employed a similar test design as Hilton and Hodson (1983) in a later experiment to
examine the narrow window at which selenium changes from an essential nutrient to a toxicant affecting
juvenile rainbow trout. The food consisted of a casein-torula yeast diet supplemented with selenium as
sodium selenite. The experiment lasted for 20 weeks. During this time, the trout were fed to satiation 3
to 4 times per day, 6 days per week, with one feeding on the seventh day. Organs (liver and kidney) and
carcasses were analyzed for selenium from fish sacrificed at 4 and 16 weeks. No gross histopathological
or physiological effects were detected in the fish, although trout raised on the highest dietary level of
selenium (13.06 ug/g dw) had a significantly lower body weight (wet basis), a higher feed:gain ratio, and
higher number of mortalities (10.7; expressed as number per 10,000 fish days). The MATC for growth
and survival of juvenile rainbow trout relative to the final concentrations of selenium in whole-body
tissue estimated from the selenium concentrations measured in the liver using the equation III is the GM
of the NOAEC (9.710 ug/g dw tissue) and the LOAEC (2Z31 ug/g dw tissue), or 14,72 ug/g dw tissue
(Table 4).
Oncorhynchus clarki (cutthroat trout)
No significant effects of bioaccumulated selenium on mortalities and deformities in the eggs, larvae, and
fry from wild-caught cutthroat trout from a reference and exposed site (Fording River, British Columbia,
Canada) were observed by Kennedy et al. (2000). The observations were made on eggs reared in well
water from spawning age females collected from the two locations (N ~ 17 and 20, respectively) and
fertilized by one male collected at each site. The mean selenium content in muscle tissue from adult fish
was 2.4 ug/g dw tissue for fish collected from the reference site, and 125 ug/g dw tissue for fish
collected from the Fording River. Using Equation I to convert the selenium concentration in muscle
tissue to a selenium concentration in the whole-body, the chronic value for this species was estimated to
be > 10.31 ug/g dw parental fish tissue (see Table 4).
Pimephales Drotnglta (fathead minnows)
Chronic values for fathead minnows were derived from three laboratory-based studies and one mesocosm
study (Table 4). Two of the laboratory studies (Bennett et al. 1986 and Dobbs et al. 1996) involved
exposing algae to selenium (either as sodium selenite or sodium selenate) in water, and subsequently
feeding me algae to rotifers which were in turn fed to fathead minnows. In the Bennett et al. (1986)
study, larval fathead minnows were fed control (cultured in chambers without selenium containing algae)
or selenium-contaminated rotifers (cultured in chambers with selenium containing algae previously
exposed to sodium selenite in the water) in three separate experiments lasting 9 to 30 days. The different
experiments were distinguished by: 1) the day selenium-laden rotifers were first fed, 2) the day selenium-
laden rotifers were last fed, and 3) the age of larvae at experiment termination. The results from the three
experiments reported by Bennett et al. (1986) were conflicting. Larval growth was significantly reduced
at whole-body selenium concentrations ranging from 43.0 to 51.7 ug/g dw tissue in the first two
experiments (see Appendix H for conditions), bat growth w» not significantly reduced in larvae that had
accumulated 61.1 ug/g dw tissue in the third experiment (Table 4). The geometric mean of these three
values, 51.40 ug/g dw, was considered the chronic value for selenium for this test.
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A similar test system was used by Dobbs et al. (1996), in which larval fathead minnows were exposed to
the same concentrations of sodium selenate in the water as their prey (rotifers), but »lso received
additional selenium from the consumption of the selenium-contaminated rotifers, In this study, the
fathead minnows did not grow well at concentrations exceeding 108,1 ug Se/L in water, and they
survived only to 11 days at selenium concentrations equal to or greater than 393,0 ug/L in the water (75
ug Se/g dw in the diet, i.e., rotifers). The LOAEC for retarded growth (larval fish dry weight) in (his
study was <73 ug/g dw tissue (Table 4).
In contrast to Ihe above laboratory-based food chain studies, Ogle and Knight (1989) examined the
chronic effects of only elevated foodbome selenium on growth and reproduction of fathead minnows.
Juvenile fathead minnows were fed a purified diet mix spiked with inorganic and organic selenium in the
following percentages: 25 percent selenate, 50 percent selenite, and 25 percent seleno-L-methionine.
The pre-spawning exposure lasted 105 days using progeny of adult fathead minnows originally obtained
from the Columbia National Fishery Research Laboratory, and those obtained from a commercial fish
supplier. After the 105 day exposure period, a single male and female pair from each of (he respective
treatment replicates were isolated and inspected for spawning activity for 30 days following the first
spawning event of that pair. There was no effect from selenium on any of the reproductive parameters
measured, including larval survival, at the dietary concentrations tested (5.2 to 29.5 ug/g dw food). Sub-
samples of larvae from each brood were maintained for 14 days post-hatch and exhibited >87,4 percent
survival. The pre-spawaing adult fish fed a mean dietary level of 20.3 ug Se/g dw did exhibit a
significant reduction in growth compared to controls (16 percent reduction), whereas no effect on growth
occurred in the fish fed 15.2 ug/g dw. The whole-body chronic value, as determined by the GM of the
NOAEC and the LOAEC measured at 98 days post-test initiation, was 5.961 ug/g dw tissue (Table 4).
The chronic value of 5.961 ug/g dw determined for growth after 98 days of exposure to pre-spawning
fathead minnow adults (Ogle and Knight, 1989) was approximately an order of magnitude lower than the
growth effects to fathead minnow observed in Bennett et al. (1986) and Dobbs et al (1996). The length
of exposure in the Ogle and Knight test was more than twice as long as either Bennett et al. or Dobbs et
al., suggesting a longer duration was needed in order to detect any growth effects from selenium.
However, survival of larvae hatched from parents exposed to each of the five selenium treatments
(including those in which growth was affected) was not affected.
Other studies (Bryson et al, 1984; Bryson et al. 1985a; Coyle et al. 1993; Hermamitz et al. 1996) have
found larval deformities and larval survival to be the most sensitive endpoint to fish. This also appears
true for fathead minnows. Schultz and Hermanute (1990) examined the effects of selenium in fathead
minnow larvae transferred from parental fish (females). The parental fathead minnows were originally
exposed to selenite which was added to artificial streams in a mesocosm study. The selenite entered the
food web which contributed to exposure from the diet. Spawning platforms were submerged into treated
and control streams. The embryo samples that were collected from the streams were brought into the
laboratory and reared in incubation cups which received stream water dosed with sodium selenite via a
proportional diluter. Edema and lordosis were observed in approximately 25 percent of the larvae
spawned and reared in natural water containing 10 ug Se/L. Selenium residues in the ovaries of females
from the treated stream averaged 39.27 ug/g dw. Using equation II to convert the selenium concentration
in (he ovaries to a concentration of selenium in the whole-body, the chronic value for this species was
estimated to be <18.99 ug/g dw (Table 4).
Since Ogle and Knight reported that food in the higher selenium concentrations remained uneaten and
fish were observed to reject the food containing the higher selenium concentrations, the authors
suggested (hat (he decreased growth was caused by a reduced palatability of the seleniferous food items.
This is a common observation also noted by Hilton and Hodson (1983) and Hilton et al. (1980) and
apparent in Coughlan and Velte (1989). Given the no observed effect to larval survival and the apparent
Ron-toxicological effect on growth in the Ogle and Knight study, the SMCV for fathead minnows does
not include the 5.% 1 ug/g dw chronic value.
Lepamis macrochirm (Muegill sunfish)
Applicable chronic data for bluegill sunfish can be grouped according to field exposure versus laboratory
exposure. In some field studies, chronic tolerance to selenium appears to be much higher than in
laboratory studies (Bryson et al. 1985a; Lemly 1993B).
In the Bryson et al. (1984, 1985a) and Gillespie and Baumann (1986) studies, the progeny of females
collected from a selenium contaminated reservoir, Hyco Reservoir, Person County, NC and artificially
crossed did not survive to swim-up stage, irrespective of the origin of milt used for fertilization.
Measured waterborne selenium concentrations prior to the experiments ranged from 35 to 80 ug/L. The
whole-body tissue selenium concentration in the female parent associated with this high occurrence of
mortality of hatched larvae was <43.32ug/g dw tissue, as reported by Bryson et al. (1985a), and <22.16
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ug/g dw tissue, as reported by Gillespie and Baumann (1986) (Table 4). In die case of the litter, nearly
all swim-up larvae from the Hyco Reservoir females were edetnstous, none of which survived to swim-
up. These chronic effect tissue values are in line with the ECy, calculated for the occurrence of
deformities among juvenile and adult fishes from the family Centrarchtdae collected from Belews Lake,
NC, ie, 44,57 ug Se/g dw (seeLemly 1993b, Table 4).
In contrast, the chronic effects threshold for larval survival in a combination laboratory waterbome and
dietary selenium exposure (Coyle et al, 1993), or even a long-term mesoeostn exposure (Hermanutz et al.
19%), occurs at concentrations approximately 3 times lower than those recorded above (Table 4). In the
Coyle et al, (1993) study, two-year old pond reared bluegill sunfish were exposed in the laboratory to a
nominal 10 ug Se/L in water (measured concentrations in respective dietary treatments ranging item 8.4
to 11 ng/L) and fed (twice daily ad libitum) Oregon moist pellets containing increasing concentrations of
seleno-L-methionine. The fish were grown under these test conditions for 140 days, Spawning
frequency, fecundity, and percentage hatch were monitored after 60 days when spawning began to occur.
There was no effect of the combination of the highest dietary selenium concentration (33,3 ug Se/g dw)
in conjunction with waterbome selenium concentrations averaging 11 ug/L on adult growth, condition
factor, gonadal somatic index, or the various reproductive endpoints (Appendix H), The survival of
newly hatched larvae, however, was markedly reduced; only about 7 percent survived to 5 days post-
hatch. Regression analysis on arcsin square root transformed fry survival data 5 days post-hatch resulted
in a calculated EC» of 8.95 ug Se/g dw tissue (Table 4),
Hermanutz et al. (1996), as corrected by Tao et al. (1999), exposed bluegill sunfish to sodium selenite
spiked into artificial streams (nominal test concentrations: 0,2.5, 10, and 30 ug Se/L) which entered the
food web, thus providing a simulated field-type exposure (waterbome and dietary selenium exposure). A
series of three studies were conducted over a 3 year period lasting anywhere from 8 to 11 months.
Spawning activity was monitored in the stream, and embryo and larval observations were made In situ
and from fertilized eggs taken from the streams and incubated in egg cups in the laboratory. None of the
adult bluegill exposed to the highest concentration of selenium in the water (mean measured
concentration equal to 29,4 ug/L) survived. Incidence of edema, hemorrhage, and lordosis in the larvae
incubated in egg cups and spawned from fish exposed to 10 ug Se/L were 100,45 and 15 percent,
respectively (see Hermattutz 1996 in Appendix H). Such health problems were not observed in larvae
from fish that were not exposed to elevated concentrations of selenium (control treatment). Rates of
edema, hemorrhage, and lordosis occurrence in larvae (egg cup data) from fish exposed to 2.5 ug Se/L
The importance of diet in the biosecuimtlatton of seleniatn was demonstrated in one additional
experiment Study ID consisted of the addition of new adult bluegill to the same streams that received
the 2,5,10 and 30 jig/L sodium selenite during previous studies, but with all dosing of selenite halted.
The adult bluegills exposed only to dietary selenium present in the food web accumulated selenium to
levels voy near to the levels accumulated during Study II in which aqueous selenium was also present
demonstrating the importance of diet on selenium accumulation. There were no effects (no effect on
larval survival, 0 percent deformities, 0 percent hemarrhaging), on tfte bluegill progeny in Study III even
from fish that accumulated 11.7 and 14.5 ug/g dw in the recovering 10 ug/L streams, and 17.3 ug/g dw in
the recovering 30 fi^L stream. The lack of any effect on the Study III larvae suggests bluegill are more
sensitive to a combined aqueous and dietary selenium exposure than they are to dietary only selenium.
Data from Lemly (1993a) indicate that over-wintering fish may be more susceptible to the effects of
waterbome and dietary selenium due to increased sensitivity at low temperature. The authors exposed
juvenile bluegill sunfish in the laboratory to waterbome (1:1 selenite.-selenate; nominal 5 fig Se/L) and
foodbome (seleno-L-methionine in TetraMitt; nominal 5 fig Se/g dw food) selenium for 180 days. Tests
with a control and treated fish were run at 4°C and 20°C with biological and selenium measurements
made every 60 days. Survival, whole-body lipid content and oxygen consumption were unaffected
compared to control fish exposed »t 20°C (whole-body selenium concentrations equal to 6 ug/g dw),
whereas fish exposed to the combination low-level waterbome and dietary selenium at 4°C exhibited
significantly elevated mortality (33.8 percent) relative to controls (2.7 percent), and exhibited
significantly greater oxygen consumption and reduced lipid content, which are all indicative of an
additional stress load. The chronic value for juvenile bluegill sunfish exposed to waterbome and dietary
selenium at 4°C was <7.9 ug/g dw tissue.
Five of the studies discussed above evaluated the effects of selenium on fish larvae to which exposure
was through the parents. Three of these studies collected adult fish from Hyco Reservoir to which the
bluegill population had been exposed to elevated selenium concentrations for multiple generations
(Bryson et al. 1984; Bryson et al. 1985a; Gillespie and Baumann 1986), whereas the other two studies
exposed blaegill parents obtained from an uncontarninated source (Coyle et al. 1993; Hermanutz et al.
1996). The average of the chronic values reported for the Hyco studies were four times the values in the
latter two studies. This difference may simply be the inability of the field tests to evaluate a lower effect
concentration than that which occurs at the site. However, Bryson et al. (1985a) found no effects to
larval survival from Hyeo Reservoir females collected in an "unaffected area" containing 19.18 ug/g dw
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suggesting the possibility of tolerance through physiological or genetic adaptation of Hie previous
exposed bluegill population at Hyco Reservoir.
Acquisition of tolerance to selenium has also been implied in the literature for other fish species. For
example, Kennedy et al, (2000) suggested that the cutthroat trout collected from a stream containing 13,3
to 14.5 ug Se-'L in the water column were tolerant at the cellular level explaining their ability to develop
normally in the early life stages, Kennedy et al. reported the overall frequency of larval deformities in
the exposed population was less than 1 percent, and in one fish containing eggs with 81,3 ug/g dw, there
were 0.04 percent pre-ponding deformities and 3.3 percent larval mortalities. Other than the Kennedy et
al, study, tolerance to selenium at the apparent most sensitive endpoint to fish, embryo-larval
development, has not been reported in the literature and its reality is uncertain at this time. However,
given the need to protect sensitive populations of species, the chronic values for the studies in which eggs
and larvae were obtained from bluegill adults that were exposed to elevated selenium for multiple
generations (i.e., Bryson et al. 1984: Bryson et al. 1985a; Gillespie and Baumann, 1986) were not
included in the SMCV calculation.
Morone saxitilis (Striped baas')
The only remaining applicable chronic value for selenium was determined from a laboratory dietary
exposure conducted using yearling striped bass (Coughlan and Velte 1989), During the experiment, the
bass were fed contaminated red shiners (38.6 ug Se/g dw tissue) from Belews Lake, NC (treated fish) or
golden shiners with low levels of selenium (1,3 ug/g dw tissue) purchased from a commercial supplier
(control fish). The test was conducted in soft well water and lasted up to 80 days. During the
experiment, all fish were fed to satiation 3 times per day. Control fish grew well and behaved normally.
Treated fish behaved lethargically, grew poorly due to a significant reduction in appetite, and showed
histologieal damage, all eventually leading to the death of the animal. The final selenium concentration
in muscle of treated striped bass averaged from 17.50 to 20.00 ug/g dw tissue (assuming 80 percent
moisture content), which was 3.2 to 3.6 times higher than the final selenium concentrations in control
striped bass, which averaged 5.500 ug/g dw tissue. Using equation I to convert the selenium
concentration in muscle tissue to a selenium concentration in the whole-body, the chronic value for this
species was determined to be <17.50 ug/g dw (Table 4).
Formulation of the Final Chronic Value (FCV) tor Selenium
The lowest GMCV in Table 4 is for bluegill, 9.5 ug/g dw whole body, which is the geometric mean of
chronic values from the laboratory study of Coyle et al. (1993), the laboratory study of Lemly (1993 a),
and the macrocosm exposure study of Hermanutz et al. (1996). The "less than" values tabulated for
Bryson et al. (1984) and Gillespie and Baumann {1986) for Hyco Reservoir bluegill did not contribute to
this mean because they only indicate a chronic value in a range that includes 9.5 ug/g dw.
The Table 4 results for Bryson et al. (1985a) and Lanly (1993b) were also not used in calculating the
bluegill GMCV, Bryson et al. (1985a) indicated a chronic value for Hyco Reservoir bluegill somewhere
between 19,18 and 43.43 ug/g dw. Lemly (1993b), appearing in Table 4 under the category
Centrarchidae, the family that includes bluegill, yielded a Belews Lake chronic EC20 of 44.57 ug/g dw,
again substantially above the GMCV of 9.5 ug/g dw. It is not known whether historical exposure to
elevated selenium concentrations, such as occurred at Belews Lake and Hyco Reservoir, will dependably
lead to this magnitude of increase in the chronic tolerance of resident fish.
The Lemly (1993a) laboratory results, indicating a chronic value <7.9 ug/g dw, are not completely
comparable to the other results used to calculate the bluegill GMCV. Lemly (1993a) involved an
additional natural stress, exposure to a winter low temperature of 4°C. This appeared to reduce the tissue
concentration associated with reduced survival. Because this stress occurs annually to one degree or
another in nearly all the country, the FCV was lowered to 7.9 ug/g dw. Although the literature contains
little information on the temperature-dependence of selenium toxicity, Lemly *s study (further
summarized in Appendix H) was judged to be1 sufficiently definitive to merit lowering the FCV.
The Guidelines indicate that the chronic criterion (in this case the FCV) is intended to be a good estimate
of the threshold for unacceptable effect The Guidelines point out that the threshold for unacceptable
effect does not equate with a threshold for any adverse effect. Some adverse effects, possibly even a
small reduction in survival, growth, or reproduction, may occur at this threshold. If bluegill is as
sensitive as indicated by the Lemly (1993a) results, a minor reduction in survival (compared to
populations accumulating lesser concentrations of selenium or exposed to less severe winter
temperatures) would occur at the FCV. Nevertheless, other studies, those of Lemly (1993b) and Bryson
et al. (1985a), suggest that historically exposed populations would not be as sensitive as the organisms
studied by Lemly (1993a).
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The FCV may not necessarily protect fish in artificial environments where they are exposed only via
water and not via diet. IF the organisms are provided with an tmcontaminated diet then exceedingly high
water concentrations, possibly above the acute criterion, are needed to elicit effects, but such effects may
occur at tissue concentrations below the FCV (Cleveland et al. 1993; Gisset-Nielsen and Gksel-Nielsen
1978). This is not a practical limitation, however, since water-only exposure of selenium is not
representative of the actual exposure of selenium to aquatic organisms in the environment.
Although this aquatic life criterion was not developed with the intent of protecting terrestrial wildlife, the
Dietary Levels' for Selenite
Species
belted kingfisher
great blue heron
osprey
dietary level that would
result in a dose
equivalent to the
NOAEL, ug/g dw
9.5
10.5
11
dietary level that would
result in a dose
equivalent to the
LQAEL, ug/g dw
18.5
21.5
22
dietary level that would
result in a dose
equivalent to the
MATC,f»g/gdw
13.26
15.02
15.56
FCV is expected to be protective of birds dependent on an aquatic food chain. Adverse effects to
waterfowl, shorebirds and piscivorus birds have been associated with elevated selenium concentrations at
several western locations, notably at Kesterson Reservoir in the San Joaquin Valley, California (Burton
et al. 1987b; Home 1991; Ohlendorf 1986; Ohlendorfet al. 1986a,b; Saiki 1986a,b). An effect level was
determined in the laboratory by Heinz et al. (1987) through feeding adult mallards and their ducklings
food that contained selenite or selenotnethionine. The number of 21-day old ducklings per hen was 9.7
for the controls and 2.0 for the animals that received food containing 10 ug/g selenomethionine. The
treatments receiving 10 and 25 ug/g selenite produced 8.1 and 0.2 ducklings per hen, respectively. Food
containing 10 ug/g selenomethionine resulted in nearly ten times as much selenium in eggs as did food
containing 10 ug/g selenite. Selenomethionine resulted in more selenium ta egg white than yolk, but the
opposite was true for selenite. Adult mallards fed diets containing 10 ug/g seleno-DL-methionine for 76
days (Heinz and Hoffman 1998) displayed reduced hatching success, reduced survival of ducklings and
produced a higher percentage of deformities when compared to the control group. Adults exposed under
control conditions produced an average of 7.6 young per female, and 6.1 percent of the embryos had
deformities. Females fed 10 ug/g selenomethionine produced an average of 2.8 young and 36.2 percent
of the embryos had deformities.
A way to estimate risk to birds is to compare the FCV to effect levels derived for selenium in the diet of
piscivorus birds, Opresko et al. (1995) derived chronic No Observed Adverse Effect Levels (NOAEL)
and Lowest Observed Adverse Effect Levels (LOAEL) for three piscivorus birds: belted kingfisher, great
blue heron and osprey, using the mallard data generated by Heinz et al. (1987). From the NOAELs and
LOAELs, they calculated the dietary concentration in food of the contaminant that would result in a dose
equivalent to the NOAEL and LOAEL (assuming no exposure through other environmental media). The
chronic values for these birds, including the GM of the two dietary levels, are given in the following
table:
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Dietary Levels" for Selenomethionine
Species
belted kingfisher
great blue heron
osprey
dietary level that would
result in a dose
equivalent to the
NOAEL, ug/g dw
7.5
8.5
8.5
dietary level that would
result in a dose
equivalent to the
LOAEL, ug/g dw
15
17
17.5
dietary level that would
result in a dose
equivalent to the
MATC, ug'g dw
10.61
12.02
12.20
a Converted from wet weight to dry weight using a moisture content of 0.80 (U.S. EPA 1985b).
Comparing the FCV with the dietary levels that would result in a dose equivalent to the MATC indicates
piseivorus birds would be protected from unacceptable effects if their diet (fish) is maintained or kept
below the FCV. This assessment assumes that there is minimal exposure of selenium from other sources.
Opresko et al. (1995) estimate the concentration of selenium in water needed to produce effects at the
NOAEL and LOAEL for these birds ranges from 6,800 to 8,700 ug/L, which is approximately 1000
times the concentration of waters in which fish would be approaching the FCV level. Exposure of
selenium to these birds through the intake of water at 1,000 times lower than the effect level would
therefore be a minimal exposure.
FCV Relative to Natural Background Levels of Selenium in Fish
As an essential element, selenium naturally occurs in all living things. Since selenium is found in all
fish, two questions arise. 1) How close is the FCV of 7.9 ug/g dw to natural background levels in fish,
and 2) how frequently do natural selenium tissue concentrations exceed the FCV. The latter situation
would pose problems in the implementation of the FCV as an ambient water quality criterion.
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As part of the National Contaminant Biomonitorirtg Program, the U.S. Fish and Wildlife Service
collected fish from 112 sites distributed evenly across the U.S. during 1979 through 1981 and measured
several contaminants including selenium (Lowe et al. 1985). Selenium, measured in 591 fish
representing 60 different species, ranged from 0.3 to 10.5 ug/g dw and had an overall average and
standard deviation of 1.91 1.4 ug/g dw.
A separate data set of selenitim measured in macroinvertebrates and fish collected from 48 reference sites
in USGS's National Water Quality Assessment (NAWQA) program. NAWQA is intended to measure
water quality in a sampling of smaller watersheds having known land use. The categories of such land
use span a wide range, and include residential, industrial, agricultural, and mixed, among others. The 48
sites evaluated for this comparison excluded watersheds with land use listed as anything other than
"reference". Among these reference sites, whole body fish ti»»ue concentrations ranged from 0.7 to
9.83 ug/g dw and had an overall average and standard deviation of 2.99 ± 1.96 jig/g dw. The
distribution of both these data sets indicates that the FCV would not be in the range of natural
background concentration for selenium in over 98 percent of fish collected across the United States
(Figure 6; Appendix I). The FCV is therefore sufficiently greater than natural selenium levels that
unavoidable exceedances of the criterion are unlikely.
Distribution of selenium concentrations in fish
1.0
0.8 -
a
0.6
8J
°4
I"
O
0.0
-Nationaf Contaminant
Biomonitoring Program
- USGS NA\AC3A Reference
Sites
Chronic criterion
468
Se in fish [jjg/g dw]
10
12
Figure 6.
Cumulative distribution of selenium (whole-body, ug/g dw) in 591 fish samples from
112 sites across the United States. From Lowe et al. 1985.
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Table 4, I'*resh wafer Chronic Values fratn Acceptable Tests
Spenrs
Srac'Mwi/s
e-afyt'i/tomv
rotifer
Ofi^^mtViiB1
/s^awfise/w
chawok salmon
0«tYJrJ7JVK*MA'
fe/iaw^ffts
Chinook salmon
Onc&f'hynchtts
rttvkiss
rsiinhow trout
Qncoftoy&chus
j*gfes
rambmv trout
Onc&rhywvhus
dartci
cuUhroat trout
I'imzphates
prvmekts
fethesd m innow
Pmgpkaltis
fsthead m tnnow
Keferenee
Dohhs et ill
!996
Hamilton eta!.
1990
Hamilton $lnl.
1990
HthonanJ
Hodiicm 198,1:
Hicks etal i9S4
Hilton et al
1 980
Kennedy et H|
2000
Bennett et al.
1986
Ogle and Knight
1989
--^^a^fOT^H
(Jietaty and
w-aterbDrne.
O^b)
dietary
(lab)
dietary
0*)*
dietary
(lab)
dietary
(kb)
dietary and
waterfjorne (field
- Fordins River,
no
dietjjry
(tab)
dietary
(tab)
%lerti«m ferai
algae e^xi»d to
SeVI in water, algae
tiien fed to rotifers
Ss-laden
mostfurtofish from
San Luis Drain, CA
Nfequitofish spiked
with selernvDL'
jsethbnine
sodiurs setenits in
fcKKj ppeparntion
sodiisn selenite in
food prepanfiioti
not determined
algae exposed to
selenite then fed to
rotifers which were
fed to fish
mix of 25, 50, and 25
percent seletiste,
selerttte, and selmo-
1,-racUiionine in food
preparation
Toxketagical
emf^Mfiut
KCwforrottf0dry
weight after 4 d
EC^ for juvenile
growth
ECtoForj«venile
growth
MATC for juvenile
growth;
nephrocaScinosis
MATCfn-jwenile
stsrvival and growth
Chronic value for
embryo/larval
defonflitie,*; and
mortality
Chronic value for larva!
growth
MAIC for pre--
sfHtwning nduli gttwth
Chronic value,
fJK/fitlw*
42.36
15.74
(juvenile tissue)
10.47
(jxivctlile tissue)
9,659"
(juvenile tissue)
1472s
(juvenile tissue)
>tO;31*
(parent tissue)
51.40
(larval tissue)
5.961*
(jpre -spawning adult
ttnue)
SMCV
^Eg/^dw
42.M
12.S4
1192
>I0.31
41.46
GMCV
/Iff^dw
42.96
>11.64
41.46
Species
Psimphafes
pomelos
Fathead m itinciw
PmtphaUf
promeias
fathead minnow
t^pamis
twcrotfoints
WuegiU
Lep0&&$
macrochints
bluegiil
Lep&mis
fiwtcrochints
bluegill
l^epomis
ffiacr&chirtiS
biuegili
IjSpamis
macrochinis
biuegin
deference
Dobbs et al
1996
Schtdtt and
Hemiaautz 1990
Bryson et si
19S4
Biysort et »]
1985a
Gfttatpfe and
Bauaiarm 1986
Coyteetai. 1093
Umly 1993a
Exposure route
diel&ry tmd
wsHerhwne
(kb)
dietary and
waterbome
(mesoeosffl -
Motitieelio)
dietary and
wateifcome (field
- Hyoo
Resefvdr, NC)
dieiary and
w^ett'Oi'tJe (field
- Hyco
Reser\'oir,NO
dietary and
watertsome (fieid
-Hyeo
Rwwrvoir.NC}
dietary ami
watertH>nte (lab)
dietan'md
waterfeomc (lab)
Seteniom foPTit
Ejgae ejgsjsed to
stsienai* in wato fen
fed to rotifer which
were fed to fish
seienits added to
artifieiai str^ans
which entered food
web and ptwided
dietary exposure
not determined
not determined
not determined
diet: setonot.-
roethionnie
water: 6:1
selenaK;selefjite
diet: selenoL-
metJiionine
water: 1 :1
seteisitc:seienite
Tsxieofogieal
etidpint
LOAEC for brval fish
drj' weight after 8 d
Chronic value for larval
edema and kirdosis
Oiranic value for larval
moitality
Onunic vate for
swim-up larvae
CJirnnk valu* for larva!
survival
ECi>; for Jan-si survival
Chronic wine for
juvenile mortality
Chronic value,
pj*/^dw"
<73
(larval tissue)
<48.99
(parent tissue)
•36) .OT*1*
fpar-enf thsue)
^43.^*
>19.I8vJ
(parent tissue)
<28.20*
(larva! tissue"); or
<22 16**'
(p^ireilt tissue)
8954
(parent tissue -
JTemaleson^)
<7.9
(juvenile tissue)
SMCV
ftf^tlw
9..SOO
GMCV
^)?dw
9500
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«2E™™^*™™
l&p&ms
M1l!i£T(Khins$
btuegil!
Cottssrehidae
(9 species)
AJiMWfc* soxitilis
striped bass
&cfere(i#e
TJermaftUtz et at
1996
Lwniy I993b
CoughSsn nnd
Vette i9&9
Expostwe route
dieter)' and
wal«rb0me
{mesososm -
Mcwticello)
dietary attd
watcrbqrne (field
- Baiews Lake,
NC)
dietary
flab)
SeteiiiiKt form
s«1enit« added to
artU'ieifcl streams
which entered food
web and provided
dietary exppsar*
not determined
Se4aden shiners
from Bclews Lake,
NC
lutii-olov.kMt
emlfNijnt
LOA.EO for larval
survival, edei^
lardosis and
hemarrhaging
ECE far deformities
among juveniles and
adults
Chronk value for
survival of yearling
bass
Chrank v*hffc,
jtg&tN*
S2.12
(parent tissue)
44.57
(juvenile and adiiit
< 17.50*
Gwttrite tissue)
SMCV
j^dw
NA
<1 7 50
GMCV
pffi^dw
NA
<17.50
iistiniated using the equation IB,
Estimated using the et|U2ticsi I,
tlirotiic salue not used m SMCV cslculatiesi (see text).
Bsiimated using tiie equationll.
National Criteria
The available data for selenium, evaluated using the procedures described in the "Guideline* for Deriving
Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses"
(Stephan et al. 1985) indicate that, except possibly where an unusually sensitive species is important at a
site, freshwater aquatic life should be protected if the concentration of selenium in whole-body fish tissue
does not exceed 7.9 pg/g dry weight, and if the short-teem average concentration of selenium dissolved in
the water seldom exceeds 185 fig/L,
The available data for selenium, evaluated as above, indicate that saltwater aquatic life should likewise
be protected if the short-term average concentration of dissolved selenium seldom exceeds 127 fig/L. If
selenium is as chronically toxic to saltwater fishes as it is to freshwater fishes, the status of the fish
community ihould be monitored if selenium exceeds 7.9 ug/g dw in the whole-body tissue of salt water
fishes.
Implementation
As discu»»ed in the Water Quality Standards Regulation (U.S. EPA 1983b), a water quality criterion for
aquatic life has regulatory force only after it as been adopted in a state or tribal water quality standard.
Such a standard specifies a criterion for a pollutant that is consistent with a particular designated use.
With the concurrence of (he U.S. EPA, states and tribes designate one or more uses for each body of
water or segment thereof and adopt criteria fliat are consistent with the uses (U.S. EPA 1983c, 1987b). In
each standard, a state or tribe may adopt the national criterion (if one exists), or an adequately justified
state-specific or site-specific criterion.
A/arc* 2002 Draft
State-specific or site-specific criteria may include not only criterion concentrations (U.S. EPA 1983c),
but also state-specific or site-specific, and possibly pollutant-specific, durations of averaging period* and
frequencies of allowed excursions (U.S. EPA 1985c). Because the chronic criterion is tissue-based for
selenium, the averaging period only applies to the acute criterion, which is defined as a short-term
average, based on the nature of the toKiciry tests used for its derivation, and the speed at which effects
may occur in such tests. Implementation guidance on using criteria to derive water quality-based effluent
limits is available in U.S. EPA (1985c and 1987b).
66
March 2002 Draft
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United States
Environmental Protection
Office of Water
4304
EPA-82a*98-00?
Saptsmter 1898
SEPA Report on the Peer
Consultation Workshop on
Selenium Aquatic Toxicity and
Bioaccumulation
September 1998
REPORT ON THE
PEER CONSULTATION WORKSHOP ON
SELENIUM AQUATIC TOXICITY AND BIOACCUMULATION
September 1998
Office of Water
U.S. Environmental Protection Agency
Washington, DC
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CONTENTS
NOTE
This report wag prepared by Eastern Research Group, Inc., a contractor to the U.S. Environmental
Protection Agency (EPA), as a general record of discussion during the peer consultation workshop. As
requested by EPA, this report captures the main points of scheduled presentations and discussions, and a
summary of comments offered by observers attending the workshop; the report is not a complete record of
all details discussed, nor does it embellish, interpret, or enlarge upon matters that were incomplete or
unclear. This report will be used by EPA as an early scientific assessment of technical issues associated
with selenium aquatic toxicology and bioaccumulation and will serve as a technical resource during EPA's
review of freshwater selenium aquatic life criteria. The information in this document does not necessarily
reflect the policy of the U.S. Environmental Protection Agency and no official endorsement should be
inferred. Mention of trade names or commercial products does not constitute endorsement or
recommendation for use.
ACKNOWLEDGMENTS
This document summarizes the proceedings and presentations made at a 2-day workshop sponsored by the
U.S. Environmental Protection Agency (EPA) to discuss selenium aquatic toxicology and bioaccumulation.
The meeting was chaired by Anne Fairbrother of ecological planning andtoxicity, inc., who wrote the
overall meeting summary section and led one of the discussion sessions. Other discussion leaders included
William Adams (Kennecott Utah Copper Corporation), Steven Hamilton (U.S. Geological Survey) and
William Van Derveer (Colorado Springs Utilities). Technical presentations were made by A. Dennis Lemly
(Virginia Tech University) and George Bowie (Tetra Tech, Inc.). Keith Sappington of EPA's Office of
Water served as the Work Assignment Manager for this task. Kate Schalk, Rebekah Lacey, Lauren
Lariviere, and Beth O'Connor of Eastern Research Group provided support services to plan and coordinate
the workshop and prepare a summary report for task 98-09 under EPA Contract No. 68-D5-0028,
OBTAINING COPIES OP THIS DOCUMENT
Copies of this document may be obtained by contacting the U.S. EPA, National Center for Environmental
Publications and Information (NCEPI), 11029 Kenwood Road, Cincinnati, Ohio, 45242, phone (513) 489-
8190. In addition, the document will soon be published on the world wide web at
http://www.epa.gov/ost/selenium.
Page
PREFACE ii
I. INTRODUCTION 1
Background 1
Summary of Opening Remarks 2
• Opening Presentations 3
Chair's Charge to the Experts aid Highlights of Premeeting Comments 8
II. CHAIR'S SUMMARY OF WORKSHOP DISCUSSIONS 9
III. TECHNICAL DISCUSSION SESSIONS 14
DISCUSSION SESSION 1:
Technical Issues Associated With a Watsr-Column-Based Chronic Criterion 14
DISCUSSION SESSION 2:
Technical Issues Associated With a Tissue-Based Chronic Criterion 23
DISCUSSION SESSION 3:
Technical Issues Associated With a Sediment-Based Chronic Criterion 31
DISCUSSION SESSION 4:
Cross-Cutting Issues Associated With a Chronic Criterion 39
IV. OBSERVER COMMENTS 52
V. REFERENCES 55
APPENDIX A Workshop Materials
APPENDIX B Technical Charge to Experts and Background Materials
APPENDIX C Premeeting Comments
APPENDIX D Additional References Provided by Experts
APPENDIX E Presentation Materials
APPENDIX F Observer Presentations
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PREFACE
I. INTRODUCTION
Under section 304(a) of the Clean Water Act, the U.S. Environmental Protection Agency (EPA) publishes
ambient water quality criteria which serve as guidance to States and Tribes for setting enforceable water
quality standards. Water quality standards form the basis for establishing pollutant discharge limits under
the National Pollutant Discharge Elimination System (NPDES) and for setting Total Maximum Daily Loads
(TMDLs). Given the importance of 304(a) criteria to the regulation of pollutant discharges to the Nation's
waters, these criteria must be reviewed and revised periodically to reflect the latest scientific information.
Selenium is one chemical for which 304(a) aquatic life criteria have been derived, but which is currently
undergoing review by EPA Selenium exhibits a number of chemical and toxicological properties that
complicate the derivation of numeric aquatic life criteria. Among these are; (1) its existence in at least four
different oxidation states in the aquatic environment, (2) its propensity to bioaccumukte in aquatic food
webs, and (3) its ability to convert between different chemical forms.
On May 27 and 28, 1998, EPA sponsored a workshop entitled: Peer Consultation Workshop on Selenium
Aquatic Toxicity and Bioaccumttlation, The goal of this peer consultation was to obtain early assessment
of the state of the science on various technical issues associated with deriving aquatic life criteria for
selenium. This document presents the proceedings from this workshop and is considered by EPA to be a
valuable technical resource for future refinement of EP A's aquatic life criteria for selenium.
Background
Selenium, a metalloid that is released to water from both natural and anthropogenic sources, can be highly
toxic to aquatic life at relatively low concentrations. Selenium is also an essential trace nutrient for many
aquatic and terrestrial species. Derivation of aquatic life criteria for selenium is complicated by its complex
biogeochernistry in the aquatic environment Specifically, selenium can exist in several different oxidation
states in water, each with varying toxicities, and can undergo biotransformations between inorganic and
organic forms. The biotramformation of selenium can significantly alter its bioavaiiability and toxicity to
aquatic organisms. Selenium also has been shown to bioaceumulate in aquatic food webs, which makes
dietary exposures to selenium a significant exposure pathway for aquatic organisms.
The most recent aquatic criteria for selenium were derived by the U.S. Environmental Protection Agency
(EPA) in 1987. At the time of their publication, these criteria could not be conveniently adjusted to
account for the combined toxicities of different selenium forms. Since then, a substantial body of literature
has accumulated on the aquatic toxicity of different selenium forms (in combination and in isolation). Jn
response to this and other new information, EPA has initiated an effort to evaluate and revise acute and
chronic aquatic life criteria and site-specific criteria guidelines for selenium.
As part of this effort, EPA sponsored a Peer Consultation Workshop on Selenium Aquatic Toxicity and
Bioaccumulation on May 27-28, 1998. This workshop brought together nine experts on the aquatic
chemistry and biology of selenium to discuss technical issues underlying the freshwater aquatic life chronic
criterion. The discussion among the experts was guided by questions posed in a technical charge written by
EPA While focusing on issues related to the chronic criterion, the charge also touched on technical
questions pertinent to acute criteria, wildlife criteria, and site-specific criteria guidelines. The output from
this meeting (recommendations in response to the technical charge) will be considered by an EPA-
established work group that will be responsible for revising freshwater selenium criteria and for developing
guidance for site-specific criteria.
Before the workshop, the experts submitted individual responses to the questions in the technical charge.
At the workshop, the experts heard presentations by two leading selenium researchers; they then
collectively discussed the questions in the technical charge and related issues. This report presents the
results of this peer consultation. Section 11 of this report presents the chair's summary of the overarching
themes and recommendations that emerged from the workshop. Section III summarizes the discussions
and specific conclusions concerning each question in the technical charge. Section IV summarizes
comments presented by observers at the meeting. Section V lists the references cited in the report.
Workshop materials, including the agenda and lists of experts, presenters, and observers, are provided in
Appendix A. Appendix B includes the technical charge to the experts and background materials. Appendix
C presents the experts' premeetittg comments. Additional references provided by experts, presentation
materials, and observer presentations are included in Appendices D, E, and F respectively.
Summary of Opening Remarks
Dr. Jeanette Wtttse, director of the Health and Ecological Criteria Division of EPA's Office of V/ater,
opened the meeting and welcomed participants. She said that the peer consultation process allows EPA to
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benefit from the knowledge and experience of experts in the field, obtaining better understanding of the
problem and new perspectives. She thanked the experts for their time and effort.
Dr. Wiltse commented that metals present a technically complex problem when developing water criteria.
One key issue is the balance between sufficiency and tosdcity: Many metals (including selenium) are
required by organisms in small amounts, but are toxic in larger amounts. She predicted that the experts
would find the selenium discussion challenging and thanked them again for participating in the consultation.
Keith Sappington, also of the Health and Ecological Criteria Division, then presented an overview and
background of the revision of EPA's freshwater aquatic life criteria for selenium. He said that the purpose
of the consultation was to provide an early assessment of the science on a number of the technical issues
associated with the criteria, and that EPA would use this information as a basis for moving forward through
the criteria revision process. He explained that the impetus for EPA's review of the selenium criteria
included:
• New data and concern over the level of protection (too high or too low?).
• Ecological importance (as selenium is both an essential trace nutrient and a toxicant),
* The need to address the toxicity and bioavailability of different selenium forms.
• The need for site-specific criteria modification procedures (taking into account
bioaccumulation and food-web exposure).
He added that some fundamental issues EPA is facing in the development of the new criteria include
determining in which environmental compartment to express the criteria, establishing the duration of the
averaging period, and identifying the key factors affecting the toxicity and bioaccumulation of selenium.
Mr. Sappington emphasized that the focus of the peer consultation would be on technical issues underlying
the freshwater aquatic life chronic criterion. He reminded the experts that discussion of risk management
or policy decisions would not be appropriate to this forum. He discussed the key steps that EPA would
undertake in its criteria review process and concluded by presenting a rough timeline for the development
of the revised criteria. (See Appendices B and E for more detail.)
Dr. Anne Fairbrother, the workshop chair, then discussed the workshop structure and objectives, reminding
experts again to focus only on reviewing the state of the science; she added that waterbirds would not be
considered in the discussion. (See Appendix E for presentation materials.)
Opening Presentations
Selews Lake: Lessons Learned
Dr. A. Dennis Lemly of the Department of Fisheries and Wildlife at Virginia Tech University gave a
presentation entitled "Belews Lake: Lessons Learned." (See Appendix E for presentation materials.)
Belews Lake is a reservoir in the northwestern Piedmont area of North Carolina. The reservoir is
hydrologically divided by a highway crossing into a main lake and the "158-Arm." The main lake received
selenium input from disposal of waste ash from a coal-fired power plant. Inputs occurred over a 10-year
period, stopping in 1985. The combination of a period of ongoing inputs and a period of declining
selenium concentrations has allowed researchers to obtain a great deal of information on tissue residue
levels and effects. Dr. Lemly's summary of the key information gained from research at Belews Lake is as
follows:
Main Lake Studies:
A concentration of ~ 10 ug/L dissolved selenium (about 80-90% selenite as it entered the lake) can
bioaccumulate in aquatic food chains and cause massive reproductive failure in warm-water fish.
Centrarchids (e.g., largemouth bass, bluegill, crappie, sunfish) are among the most sensitive to
elevated selenium; forage species such as red shiners, fathead minnows, and mosquitofish are
relatively tolerant (Cumbie and Van Horn, 1978; Lemly, 1985).
Once ecosystem equilibration to -10 ug/L has occurred in this type of a reservoir setting, natural
removal/cleansing processes operate very slowly. Elevated residues and toxic (teratogenic) effects
in fish were evident 10 years after selenium inputs stopped and waterborrte concentrations dropped
below 1 ug/L (Lemly, 1997); consumption advisories are still in effect because of public health
concerns. Complete recovery can be on the order of decades.
Dietary selenium was the most important source leading to effects in fish. Across years, the
sediment/detrital route of exposure delivered the most consistent dose to fish (i.e., residues in
benthos were consistently high). However, within a given year, residues in the
waterborne/planktonic route of exposure were occasionally as high as in the twnthic pathway (70-90
ug/g dry weight especially in summer). Thus, each route of exposure delivered a toxic dose to fish.
Planktivores, omnivores, insectivores, and piscivores were all similarly affected.
158-Arm Studies:
Concentrations of 0.2-4 ug/L dissolved selenium in the 158-Arm bioaccumulated to levels that
caused teratogenic deformities and chronic selenosis (pathological lesions) in sensitive fish species
(e.g., bluegill and green sunfish) (Sorensen et al., 1984; Lemly, 1993a, 1997).
Concentrations of 0.2-4 ug/L dissolved selenium bioaccumulated to >25 ug/g dry weight in aquatic
food-chain organisms. This concentration is over five times the chronic dietary toxicity threshold for
freshwater fish and aquatic birds, as determined in laboratory studies (i.e., 3-5 ug/g; Lemly 1993b).
Selenium concentrations in fish (especially biuegill) reached levels equal to or greater than those that
caused reproductive failure in artificial crosses of bluegill from a sister lake (Hyco Reservoir; 38-54
ug/g dry weight whole body concentrations in fish; Cumbie and Van Horn, 1978; Holland, 1979;
Oillespie and Baumann, 1986), and reproductive failure in laboratory feeding experiments with
bluegill (13 and 33 ug/g dry weight in fish diets; Woock et al., 1987; Coyle et al., 1993).
Related Laboratory Studies:
Exposure to waterborne (only) selenium (selenite) at concentrations of 10 ug/L does not affect
survival of juvenile bluegill. Although some bioconcentration occurs, residues in tissues do not
reach the toxic threshold (Lemly, 1982).
Conditions mimicking those in the Belews 158-Arm (4-5 ug/L dissolved selenium; 5 ug/g dry weight
dietary selenium) can induce physiological and metabolic stress in young centrarchids, resulting in
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significant mortality during cold weather due to Winter Stress Syndrome (Lemly, 1993c, 1996).
Thus, time of year may be an important factor in the toxicity process when concentrations are near
the current EPA criterion for chronic exposure (5 ug/L),
Conclusions:
Because of the extensive and rapid collapse offish populations, the main body of Bekws Lake has
received most of the research focus and notoriety. However, the 158-Arm provides valuable
information on selenium bioaccumulation and effects when waterborne concentrations are below the
EPA national criterion for chronic exposure (5 ug/L),
Historic and current reference to the 158-Arm as "unaffected" (e.g., EPA 1998 Draft Field Study
Summary) are incorrect. Multiple lines of evidence from this field site, (diagnostic residues, tissue
pathology, teratogenic deformities) as well as associated laboratory studies (simultaneous water/diet
exposures), indicate that selenium can become toxic to fish when waterborne concentrations are 4
ug/L or less. The affected taxa include widely distributed, economically and recrealionally important
species such as largemouth bass and bluegill. In this type of field setting, the threshold for
detrimental impacts is well below 5 ug/L.
The most sensitive biological endpoint for detecting toxicity in fish (that has demonstrated impacts at
a population and community level) is reproductive failure (i.e., teratogenic deformities and
associated embryomortality that occur shortly after hatching). Winter Stress Syndrome may be a
more sensitive indicator but it has not been confirmed in field studies.
From a toxicity perspective, the point of effect is the fish's reproductive tissue ( i.e., eggs). The
toxic threshold for selenium in eggs (10 ug/g dry weight) is consistent regardless of the source or
chemical form of selenium in an aquatic system. Pairing water and egg concentrations gives a direct
source-fate, cause-effect linkage that integrates all aspects of the selenium cycle. The existing
national field database suggests that a single water-tissue method for setting criteria can be applied
equally to both selenate and selenite dominated systems.
The practice of allowing exceedances in meeting water quality criteria is not supported by field
evidence of effects. For example, current EPA guidelines allow up to 20 ug/L as an ambient (lake-
wide) concentration once every 3 years. The concentration of waterborne selenium in Belews Lake
reached this level only once in 10 years, yet 17 species of fish were eliminated.
In response to a question on the origin of the 4 ug/L of selenium in the uptake ami, Dr. Lemly replied that
it must have come from baekflow from the main lake, because he doubted that there was significant
contribution from atmospheric deposition. Dr. Teresa Fan asked whether it had actually been determined
that selenium was incorporated into proteins in the species with which Dr. Lemly was working. Dr. Lemly
said mere had been some speciation work done, but that he did not know if there were differences between
mosquitofish and bluegill in terms of selenium incorporation into protein. He said that this was one
possible explanation for why mosquitofish accumulate higher tissue levels of selenium than bluegills yet
show fewer effects. Dr. Steven Hamilton asked about Dr. Lemly's statement that 10 ug/g of selenium in
fish eggs is correlated with 5 ug/g in the food chain and 2 ug/L in the water column. Dr. Lemly replied
that this statement was based on both data from the Belews recovery period and data from other lakes.
Modeling Selenium in Aquatic Ecosystems
Dr. George Bowie of TetraTech gave a presentation entitled "Modeling Selenium in Aquatic Ecosystems,"
and referred to the paper "Assessing Selenium Cycling and Accumulation in Aquatic Ecosystems" (Bowie
et al., 1996). (See Appendix E for presentation materials.) The model was sponsored by the Electric
Power Research Institute (EPRI) and was developed in conjunction with a major research program, The
research had two major components: toxicology and biogeochemieal processes. Dr. Bowie's presentation
focused on three of the five major components of the model: cycling processes in the water column and in
the sediments, and accumulation in tissues of organisms.
For each of these areas, Dr. Bowie described the processes in the model, discussed areas of uncertainty or
limitations in our understanding of these processes, and showed the results for an example application to
Hyco Lake to illustrate which processes are most important. He used these results plus some of his
experimental results to discuss the response times of aquatic organisms to changes in selenium exposure
and the effects of water quality variables on selenium uptake. Since the model description, Hyco
application, and conclusions are covered in the paper, Dr. Bowie listed the main points concerning
uncertainty, pharmacokinetics, and water quality effects on uptake that are not included in the paper,
Water-Column Uncertainty:
Organic selenides represent a lumped selenium pool that includes many different selenium
compounds which are poorly understood and most of which cannot be measured with current
analytical techniques. Some, such as selenomethionine, may be very biologically reactive while
others may be much more refractory. Most of the organic selenide pool is not selenomethionine
since the high uptake rates measured in the lab are not consistent with accumulation levels and
organic selenide turnover times observed in Hie field.
Sediment Uncertainty;
Sediment selenium accumulation depends on settling of partteulate selenium (plankton, suspended
organic detritus, elemental selenium, selenite adsorbed on clays), diffusion of water column
inorganic selenium into sediment porewaters followed by rapid reduction to elemental selenium in
anaerobic sediments, and decomposition of organic detrital selenium in the sediments. In lakes where
sediments are usually anaerobic below a thin oxidized microzone, diffusion of inorganic selenium and
subsequent reduction to elemental selenium is one of the most important processes. However, in
other types of systems where the sediments are aerobic or anaerobic at much greater depths, other
accumulation processes would be more important. Selenium speciation data in other types of
systems are currently lacking, which limits an assessment of accumulation mechanisms in these
systems. Sediment selenium concentrations depend not only on the selenium fluxes into the
sediments, but also on the sediment deposition rates (and sediment transport rates in flowing
systems). This makes sediment selenium concentrations very dependent on site-specific conditions.
Food Web Accumulation Uncertainty:
Most research on selenium accumulation in aquatic organisms has focused on planktonic food webs.
Benthic invertebrates can be an important source of selenium accumulation in fish, and since the
sediments contain most of the historical selenium loadings in aquatic ecosystems, detrital and
sediment pathways to benthic organisms could be extremely important. Bacteria accumulate
selenium to levels several times higher than algae, so sediment bacteria associated with organic
detritus could be an important source of selenium accumulation in benthos. Much of the sediment
selenium in lakes is elemental selenium, which was recently shown to be bioavailable to benthos
(though organic selenium assimilation efficiencies are several times higher). The selenium
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concentrations in organic detrital particles, associated bacteria, and the amount of elemental
selenium ingested during feeding are what determine selenium accumulation in benthos, not the
selenium concentrations in the bulk sediments. Systems with high sediment deposition rates or high
sediment transport rates could dilute selenium concentrations in bulk sediments, even though the
selenium content of the organic food particles remained the same.
Response Rates of Organism Tissue Concentrations to Changes in Exposure:
Uptake and depuration experiments, as well as other studies in the literature, indicate that the time it
takes to reach equilibrium starting from no previous selenium exposure is on the order of a few days
to a week for algae and bacteria, 1 week for microzooplankton, 1 to 2 weeks for zooplankton and
benthic invertebrates, and 3 to 10 months for fish. Since most fish experiments are conducted with
small fish in the laboratory, larger fish in the field could respond more slowly. Food is generally the
primary route of selenium accumulation in consumer organisms, and since the sediments respond
much more slowly to changes in selenium loadings than the water column, the benthic food web can
continue to provide exposure to fish long after the planktonic food web levels drop.
Water Quality Effects on Selenium Accumulation:
Since most selenium accumulation occurs at the bottom of the food web and then moves to higher
trophic components through food exposure, water quality factors that influence accumulation in
primary producers can be very important. In experimental research with phytoplankton, three water
quality variables had a significant effect on selenium uptake rates (Riedel and Sanders, 1996). Low
pH and low phosphate increased selenite uptake by a factor of about 4 or 5, and low sulphate
increased selenate uptake by a factor of 2.
Dr. Fan asked Dr. Bowie if the elemental selenium data he was using for sediments involved analytical
confirmation. Dr. Fan cautioned that her group could not confirm using extraction methods that the red
amorphous material secreted from algae was elemental selenium; this material contained <10% Se and
>90% carbonaceous material, possibly polysaccharides. She suggested a particular analytical technique
that should be used for elemental selenium. Dr. Bowie replied that he was using results from Dr. Greg
Cutter's work (Cutter, 1991), but that Dr. Terry Layton's work (not yet published) at the University of
California at Berkeley used the analytical technique referred to by Dr. Fan and found that a significant
portion of the sediment selenium was elemental selenium.
looking at this relationship alone is not a good approach for a bioaceumulative compound like selenium.
Many of the experts noted that the most sensitive fully aquatic species are fish species and that diet is the
primary exposure route. Also, there seemed to be a need to discuss selenium chemistry.
Next, Dr. Fairbrother discussed the experts" comments on the relationship between tissue concentrations
and either sediment or water concentrations. She said that there had been mixed responses on this issue.
There was disagreement on the state of the science; some of the experts said that the science base was
good, while others said that there was too little data The experts also disagreed somewhat in what form of
selenium to measure in which tissue. There was some agreement that water-tissue correlations are poor,
and that diet-tissue-effects correlations are better.
Concerning the link between sediment concentrations and both water concentrations and effects. Dr.
Fairbrother said mat there had been disagreement on several aspects of this question. Experts disagreed
about the ability to relate sediment concentrations to either water-column concentrations or effects in fish.
Finally, Dr. Fairbrother said that some of the cross-cutting issues brought up included selenium
geochemistry, selenium kinetics within and between ecosystem compartments, and the differences between
lotic and lentic systems.
Chair's Charge to the Experts and Highlight* of Premerting Comments
Dr. Fairbrother summarized the technical charge given to the experts by EPA, and the experts' premeeting
responses to the questions in the charge. (See Appendix E for presentation materials.) She noted that the
leaders of each discussion session would present the premeeting comments in more detail.
Dr. Fairbrother repeated that the charge to the experts was to address and comment on technical issues.
She asked the experts to identify the rationale behind their comments and conclusions, assess the level of
confidence in data cited, and discuss data quality.
Dr. Fairbrother first addressed the question "What do we know about the relationship between water-
column measurements of selenium and biological effects?" She said that the experts generally agreed that
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II. CHAIR'S SUMMARY OF WORKSHOP DISCUSSIONS
The following summary was written by the Workshop Chair, Anne Fairbrother, based on the experts'
discussion and premeeting comments. Details of the experts' discussions are provided in Section HI,
The technical sessions initiated discussions among the experts by first reviewing the questions provided in
the premeeting comments and then allowing conversation to develop around a general theme. General
themes were: relationship of effects to water, sediment, or tissue concentrations and a session on cross-
cutting issues to capture ideas on chemistry, system variability, and other topics brought forward by
individual experts.
Water-Effects Relationships
This session began with a discussion of the scientific validity of predicting chronic effects of selenium from
water concentrations. The experts quickly agreed that waterborne exposure to selenium in all its various
forms is less important than dietary' exposure in determining the potential for chronic effects. Therefore,
predictions of ecological effects cannot be based on studies that use water-only exposures. Factors that
modify the relationship between water concentration and effects include the types of organisms constituting
the food web, speciation and rates of transformation of selenium, and rates of exchange of selenium
between water, sediment, and organisms. It was noted that selenium speciation may be sensitive to salinity,
thus altering bioaccumulation potential, but this has not yet been proven.
There were differences of opinion about what to measure in the water column for assessing the level of
selenium contamination of an aquatic system. However, it was agreed that, at a minimum, dissolved (i.e.,
in the water phase) versus particulate (i.e., attached to particles of inorganic substances or to bacteria or
phytoplankton) seknium be differentiated and that selenate arid selenite (two oxidation states of selenium)
be determined in both fractions. Peplide- and protein-bound forms of selenium are critically related to the
potential for occurrence of chronic effects. The protein-bound forms should be specifically included in the
analysis of selenium in the particulate fraction, as this is the primary step for the major route of
bioaccumulation. The current definition of the dissolved fraction is the portion of the sample that passes
freely through a 0.4 am filter. One expert suggested that an 0.2 am filter might be more appropriate in
order to catch the smaller phytoplankton and bacteria in the particulate fraction, as these organisms are
very important in the first step of bioaccumulation of selenium.
Experts concluded that insufficient information exists to quantitatively correlate water quality
characteristics (such as sulfate, pH, and TOC) with chronic toxicity. Finally, the experts emphatically
agreed that toxicity relationships derived from acute toxicity studies cannot be used to predict chronic
toxicity, as the dietary route of concentration and exposure is so important for selenium. This also implies
that bioconcentration factors (i.e.. concentration in tissues divided by concentration in water) are not
appropriate for use with this compound. In summary, water concentrations are related to effects, but it is a
nonlinear (and site-specific) relationship.
Tissue - Eff«cts Relationships
Discussion then turned to technical issues associated with a tissue-based criterion. The experts agreed that
tissue integrates all exposures, whether from food or water. The best tissue in which to measure selenium
is fish ovaries or eggs as concentrations have been linked to reproductive, effects in some species. There
was some discussion, however, that pointed out the need to develop a larger data set encompassing
interspecies variability in the ovary concentration — reproductive effects relationship. If fish ovaries are not
available (i.e., sampling needs to he done during the wrong time of year), then larval stages are the next-
best tissue to measure as older life-stages arc less sensitive to selenium effects. Liver tissue was mentioned
as a third tissue for possible monitoring of residue concentrations. Muscle-plug biopsy techniques have
been suggested for use with endangered species, but do not seem to correlate well with effects.
It was also pointed out that concentrations of selenium in benthic invertebrates could be measured in order
to determine the potential for effects to the lower order organisms as well as to establish potential dietary
exposure values for fish. Discussion highlighted the need to standardize this method, in order to bo sure
that sediment is removed from the organisms guts prior to measurement, A discussion ensued about the
ability of selenium to alter community relationships of phytoplankton with ramifications throughout the
entire food web. However, it was a^eed that fish are the most sensitive to the chronic effects of selenium
arid therefore fish tissue continues to be the choice for a tissue-based toxicological threshold.
Further discussion centered on the form of selenium that is most appropriate to measure in tissue. To date,
nearly all of the studies have measured total selenium, but it was agreed that a more accurate representation
of selenium-effect relationships could be obtained through measuring protein- or peptide-bound forms of
organoselenium. The incorporation of selenium into protein is the trigger for biological effects.
Finally, it may be difficult to correlate water column concentrations with tissue concentrations. There are
many examples of sites where water levels are low and tissue levels are high, as a result of previous
sediment loading with current reductions in water-column selenium. Sediment (and subsequent dietary)
concentrations will decline over time if water-levels are kept low, but there is a considerable lag from the
time when water concentrations are reduced to the time when sediment concentrations reach low levels.
Therefore, if the history of a site is not known, a single measurement of water and tissue (or sediment)
concentrations may provide a misleading picture and inconclusive relationships.
Sediment - Effects Relationships
Sediment is the dominant sink for selenium, and sedimentary organic materials (detritus) are an important
dietary resource for aquatic invertebrates. The literature relating sediment-based criteria is sparse; most
participants relied on three key references in their comments. A positive relationship between sedimentary
selenium concentrations and effects in fish or bioaccumulation in invertebrate larvae has been shown in a
few studies. However, one expert cautioned that a no-effects determination in field studies must always be
tempered with an assertion that the test was powerful enough to have detected effects if they were there,
albeit at low levels.
An analysis of data focusing only on fish indicates that toxic effects may occur when total sedimentary
selenium concentrations exceed 4 ^g/g (dry weight). Elemental and organic selenium forms predominate in
sediments. The process is affected by redox conditions, and selenium tends to associate with the organic
detritus. In streams, total sedimentary sekniam is related to water-column concentrations through
normalization to total organic carbon. It was suggested that sedimentary aluminum concentrations might
be useful as a marker for inorganic sediment composition, in an effort to further separate the detrital-bound
selenium from inorganic-bound forms. For accumulation in sediments of lentic systems (is., lakes and slow
moving water), consideration of residence time and use of a mass balance approach could relate sediment
selenium to waterbome selenium.
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Because waterborne selenium concentrations tend to exhibit large temporal variations, the strength of the
water-to-sediment correlation is affected by the averaging period selected. The issue of spatial
heterogeneity of benthie invertebrates as well as selenium deposition and speciation is very important.
Other parameters that might affect the relationship of sediment concentrations and ecological effects
include water retention time, volatilization rates, the type of benthie phytoplankton community, and
whether or not the system is at equilibrium. Habitat selection by different types of aquatic biota and
preferential feeding habits of higher organisms also modifies selenium exposure. Various experts made the
points that redox potential (i.e.. amount of oxygen in the system) affects selenium speciation and that
improved analytical methods for sediments are needed. Two experts advocated the expansion of the use of
liquid chromatography for sediment selenium analysis.
Cross-Cutting Issues
The cross-cutting session captured issues that did not fit neatly into one of the above themes, as well as
other comments or ideas. Spatio-temporal variability was addressed again, as it applies to water column,
sediments, and tissues, although in different scales for each. Water concentrations may change rapidly
(within days), whereas fish-tissue residue and sediment concentrations take months or years to change. The
rate-limiting step may be the rate of conversion of the inorganic form of selenium to the organic form,
which is a function of the species of selenium in the water column and the types of microorganisms present
in the sediment.
There was agreement that the type of ecosystem has a large effect on selenium cycling in the system. Lentic
and lotk (fast-flowing) systems, ephemeral or perennial waterbodies, saline systems, and northern (cold)
streams, may differ in response to selenium input Retention time of carbon, rate of sediment accumulation,
rates of conversion of inorganic to organic forms of selenium, and tolerances of local species all differ
among these types of systems. Bacteria and phytoplankton species differ between the two ecosystem types,
which may cause differences in bioaccumulation rates. Also, lentic systems have higgler primary
productivity. Open (rather than closed) fish populations in lotic systems make changes in recruitment more
difficult to document. While there was argument about the relative importance of considering one or both
of these types of systems, there was agreement that their interconnections are important.
Two methods using existing field data were suggested for differentiating non-affected sites, areas with
definite effects, and sites requiring a site-specific determination of effects. The apparent effects threshold
(AET) method categorizes previously studied areas based on sediment or water concentrations. The
sediment/water concentration above which effects always occurred would be identified, as would the
concentration below which effects never occurred. New sites with sediment/water concentration* that fall
between these two values (where effects sometimes occurred or sometimes did not) would require a site-
specific assessment; otherwise, the site would be categorized as affected or not. A second method is based
on fish tissue concentrations as a function of water concentrations. The empirical data from field studies
that exist in the literature would be used to develop the bioaccumulation correlation on a global basis. Sites
where measured fish tissue concentrations were statistically significantly different from what would be
predicted based on water concentrations and the global bioaccumulation factor, would require a site-
specific assessment of potential effects.
It was suggested that the Aquatic Toxicity Model presented by George Bowie could be used to make a
priori predictions of whether a concentration of selenium in water would result in effects to the fish. Site-
specific input parameters include selenium input (amount, rate, and species), flow rates, water depth, and a
10
few other hydrological parameters as well as food-web species. The more site-specific data that are used in
the model, the more likely it is to accurately predict effects.
Selenium has the potential to interact with other metals, causing either greater or lesser responses than
predicted from selenium alone. Furthermore, exposure to selenium may reduce an organism's ability to
respond to other environmental stresses, such as has been shown for fish similar to those found in Belews
Lake that were exposed to cold temperatures during laboratory studies. These types of interactions might
confound the global empirical data set relating effects to selenium concentrations in water, sediment, or
food.
Selenium is a required micronutrient for both plants and animals. Therefore, there is an exposure
concentration below which insufficiency effects are seen and a different concentration above which toxicity
occurs. The area in between is the Optimal Effects Concentration. In general, there is at least a 10-fold
difference between insufficient and toxic concentrations and, on a practical basis, it does not appear to be
of particular concern in field situations. However, this issue may be important in laboratory studies where
appropriate minimum concentrations of selenium must be provided to maintain colonies of test species.
Analytic methods for detection of selenium in water, sediment, or tissue are technically complex. However,
due to their importance in carefully and critically describing the systems at risk, a significant amount of time
was devoted to discussion of this issue. Desired minimum detection limits, sample preparation
requirements, cost, and laboratory' capability all affect the selection of which method to use. A detailed
summary of available methods, as well as sample collection and retention procedures, is included in the
report
One expert stated that at the national level, median background concentrations of selenium in aquatic
systems do not vary greatly, being at about 0.1 ngfL. However, there was disagreement on this value and
particularly on the variability in background, which is dependent upon the spatial scale of the analysis as
well as on site-specific geology. Methods are being developed for differentiating between natural and
anthropogenic inputs of selenium into aquatic systems, but there remains a great deal of uncertainty.
Observer comments reinforced the recommendation to develop methods for setting site-specific criteria, as
a universal numeric chronic criterion for selenium is highly unlikely to be predictive of effects for any
particular site.
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III. TECHNICAL DISCUSSION SESSIONS
Generally, discussion leaders organized the discussions according to the questions provided to the technical
charge. Each leader opened the discussion on each question by presenting an overhead summarizing the
relevant premeeting comments. The following discussion session summaries include the presentation of the
premeeting comments, followed by an account of the discussion for each question of the technical charge.
Overall conclusions, which were written by the discussion leaders and reviewed by the other e>q>erts, are
presented at the end of the discussion summary for each session.
DISCUSSION SESSION 1:
Technical Issues Associated With a Water-Colttmn-Based Criterion
Question 1: Besides selenite and selenate, which other forms of selenium in water are lexicologically
important with respect to causing adverse eflects on freshwater aquatic organisms under
environmentally realistic conditions?
Discussion leader's summary of premeeting comments:
Dr. William Adams presented his summary of the experts* premeeting comments concerning this question
as follows: Selenate, gelenite, seleno-cyanate, and organo-forms (seleno-methiontne) are the key forms of
interest. Selenate and selenite are the predominant forms derived from mining, agricultural practices, fly
ash, and natural shales. Organo-selenium compounds produced from these inorganic forms are of most
ecological relevance on a chronic basis; seleno-methionine is thought to be a key chemical form. Little is
known, however, about environmental exposures of orgato-forms, especially seleno-methionine; there is a
general lack of analytical procedures for measuring organo-forms. Dr. Adams then asked the experts for
any comments concerning his summary or question 1,
Discussion:
Dr. Gregory Cutter, disagreeing with the statements concerning seleno-methionine, said that free seleno-
methionine is not important in water and is easy to measure. Dr. Fan expressed skepticism about the
measurement of seleno-methionine, because most methods do not involve structure confirmation. She also
pointed out that seleno-methionine is abundant in macromolecules and emphasized that macromolecular
seleno-methionine may be important, although this hypothesis has been neither disputed nor confirmed by
the literature. Dr. Cutter ayeed and also stated that, based on his analysis using acid hydrolysis and ligand-
exchange chromatography, the vast majority of organic selenium in unpolluted waters is peptide-bound.
Dr. Fan mentioned the possibility of the selenonium form, a cation, being present, as shown by Cooke and
Bniland (1987). She added that, based on her work, salinity can drive speciation; she has found that one
phytoplanktort accumulates dimethyl selenonium propionate in a euryhaline environment. Dr. Cutter
agreed that selenonium can be present in highly contaminated systems.
Returning to the discussion of seleno-methionine, Dr. Chapman asked whether laboratory tests using
seleno-methionine are irrelevant to environmental exposures, given the small amounts of free seleno-
methionine found in water. Other experts agreed that water-only exposures to seleno-methionine are of
questionable relevance, but seleno-methionine may be important in food-chain transfer of selenium.
12
Question 2i Which form (or combination of forms) of selenium in water are most closely correlated
with chronic effects on aquatic lite in the field? (In other words, given current or emerging
analytical techniques, which forms of selenium in water would yon measure for correlating exposure
with advene effects in the field?) Note: Your response should include consideration of operationally
defined measurements of selenium (e.g.. dissolved and total recoverable selenium), in addition to
individual selenium species.
Discussion leader's summary of premeeting comments:
Dr. Adams summarized the experts' premeeting comments for this question as follows: Total recoverable
selenium is a useful form to measure. This would include all forms of selenium in the water except a
limited amount of non-bioavailable selenium that might be tied up in the crystalline structure of suspended
solids. There are no identified actual correlations between selenium forms and chronic effects. Future
efforts should focus on proteinaceous forms (especially seleno-methionine). Dr. Adams then asked for the
other experts' reactions to this question,
Discussion:
Dr. Fan asked for the other experts' opinions on making correlations between waterborne particulate
selenium and accumulation of selenium in the food chain. She said that she had seen a couple of papers
that indicated that there was a correlation (e.g., Saiki et al., 1993). Dr. Oerhardt Riedel replied that he
thought that gathering data from multiple lakes would result in a correlation that was positive but would
have large confidence limits.
Dr. Cutter advocated separating total recoverable selenium into the dissolved and particulate fractions,
because those pools are available to different organisms. He said that this should be done by filtration using
as small a pore size as possible, preferably 0.2 microns. Dr. Riedel and Dr. Adams agreed that separating
the dissolved and particulate fractions is useful.
Dr. Gary Chapman raised the issue of the operational definition of dissolved selenium, which Dr. Cutter
had mentioned in his premeeting comments. He asked Dr. Cutter to discuss this issue. Dr. Cutter replied
that there is some work on colloidal selenium in estuaries, including a paper by Takayanagi and Wong
(1984), He thinks that, based on these papers and his work, in most systems colloidal selenium represents a
small fraction of "dissolved" (sO,4//m) selenium. Thus, in his opinion, 0.4 microns is not a bad filter pore
size for most systems, but he advocates 0.2 microns to ensure that the smaller phytoplankton and bacteria
are included in the particulate fraction. Although Dr. Riedel suggested that cross-flow filtration could be
used to get down to very small size ranges, Dr. Cutter replied that this technique is laborious. Dr. Cutter
and Dr. Riedel agreed mat the very small size range is not that important for selenium, although it is
important for some other metals. Dr. Adams concluded this discussion by pointing out that the operational
definition of "dissolved" is a topic currently under debate, particularly in respect to data collection by the
United States Geological Survey (USOS).
Dr. Adams asked whether the experts thought it accurate to state that no forms of selenium in water have
been correlated with chronic effects; he added that the science is uncertain, but it is probably a
polypeptide/protein-bound form of selenium.
Dr. Chapman asked how much of particulate selenium is actually organic and how much is bound up in a
13
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mineral matrix. Dr. Fan agreed that this was an important question for thinking about bioavailability. Dr,
Cutter agreed and listed the possible forms of paftieulate selenium: adsorbed selenate or seienite (probably
on clays), elemental selenium, and organic forms. He said that Luoma et al. (1992) have looked at the
speciation of selenium on particles. Dr. Fairbrother responded that the separation of organic from
mineralized selenium needs further research. Dr. Fan suggested that standard biochemical procedures
could be used to determine what fraction of particulate selenium is bound to proteins. Dr. Adams observed
that most of the previous discussion related to possible areas of future research, rather than currently
practical techniques.
Dr. Joseph Skorupa asked the biochemists present if they felt that any form of selenium was lexicologically
unimportant Dr. Fan and Dr. Cutter responded that they did not, because all forms of selenium may
eventually interconvert.
Question 3A: In priority order, which water quality characteristics (e.g., pH, TOC, snlfate,
interactions with other nielals such as mercury) »re most important in affecting tlie chronic toxicity
and bioaccumuMon of selenium to freshwater aquatic life under environmentally realistic exposure
conditions?
Discussion leader's summary ofpremeeting comments:
Dr. Adams summarized the experts" premeeting comments for this question as follows: It is not possible to
rank these water quality characteristics with reasonable certainty due to insufficient information on their
effects on expression of chronic toxicity. Overall, the Eh (oxidative/reduetive) state of an ecosystem is
most important in determining the potential for chronic toxicity to occur, because it significantly influences
the formation of organo-forms of selenium. One could predict that, at the extremes and as a function of
Eh, pH would be important due to speciation changes, but chronic data are not available to assess this. pH
would be expected to have the most impact on seienite across typical environmental pH values. Sulfate
appears unimportant in terms of the expression of chronic toxicity except potentially for primary producers.
Arsenic and molybdenum are also mobilized under similar conditions as selenium and appear to be additive
with selenate.
Discussion:
Dr. Cutter agreed that redox state is important for precipitating elemental selenium and removing dissolved
selenium. He argued, however, that photosynthesis has more influence on the formation of organo-
selenium. Dr. Adams and Dr. Fan pointed out that non-photosynthetic tnicrobial processes are also
important, particularly in sediments; these processes are somewhat coupled to redox state.
Dr. Fan added that the presence of sulfate or nitrate in a reducing environment encourages a certain type of
microbial community (sulfate or nitrate reducers), which would have a major impact on selenium
speciation. She cited evidence of hydrogen selenide and methanesele-nol release into the marine atmosphere
via phytoplankton activities (Amoroux and Donard, 19%). Dr. Cutter expressed skepticism about this
possibility. Dr. Fan, Dr. Cutter, and Dr. Adams did agree, however, that the microbial loop is very
important and that the presence of sulfate and nitrate reducers would affect selenium speciation, resulting
primarily in the reduction of selenium to the elemental form.
Dr. Cutter commented that arsenic and molybdenum behave differently from selenium; in a reducing
14
environment, arsenic is mobilized while selenium is immobilized.
Question 3D: Of these, which have been (or can be) quantitatively related to selenium chronic
toxicity or bioaccumulation in aquatic organisms? How strong and robust an these relationships?
Discussion leader's summary ofpremeeting comments:
Dr. Adams summarized the experts' premeeting comments for this question as follows: Insufficient
information exists to quantitatively correlate water quality characteristics with chronic toxicity across
multiple species and trophic levels, Sulfate, phosphate, and temperature have been shown to correlate with
selenate for some species (i.e., primary producers).
Discussion:
Dr. Riedel amended Dr. Adams's comment by saying that, for primary producers, phosphate does not
affect selenate uptake, but rather high phosphate concentrations appear to suppress seienite uptake.
Question 3C: How certain are applications of toxicity relationships derived from acute toxicity and
water quality characteristics to chronic toxicity situations in the Held?
Discussion leader*! summary ofpremeeting comments:
Dr. Adams summarized the experts" premeeting comments for this question as follows: The applications of
relationships derived from acute toxicity and water quality characteristics do not apply to chronic toxicity
for most aquatic life (an exception to this might be the relationship between selenate and sutfate for alga«).
The primary reason for this is that acute toxicity is most often the result of water exposures, whereas
chronic effects are the result of selenium being incorporated into the diet where the predominant form of
selenium is no longer an inorganic form,
Discussion:
None of the experts had any objections to this summation.
General Comments:
Discussion leader's summary ofpremeeting comments:
Dr. Adams offered for discussion the following statements taken from various premeetmg comments: 1)
Laboratory studies provide reasonable estimates of acute toxicity. 1) It seems imperative that chronic
criteria include consideration of tissue residue and dietary route of uptake. 3) Fish eggs may represent a
reasonably sensitive tissue to use as an endpoint for assessing the potential for species-level risk. 4) A
useful approach might be to develop a generic criterion which also allows for site-specific approaches.
Toxicity and bioconcentration factors (BCFs) are a function of time and exposure level. 5) Organic forms
are thought to be produced in response to inorganic selenium enrichment and probably represent a net
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reduction in potential For toxicity.
Discussion:
Dr, Adam
s displa
yed graph ;<
s i, '.»•
ng data
1.0.
an
ment he
med °6*
mine
04 .
ty as a
on of
with
0.2 •
ow trout
lings
fathead
showi 9
from - '
1 . i 7
V expert f (
Vr Perfor 5 '
1\I 5
X^ conce
^^" '^~~^N! toxici 4-
si,. functi
•%j|
WS 20 40 60 BO 100
„« i ->\
se the
changed
.• ' t'igHre 2. The effect of time on the toxicity of sodium selenite to
fffigerlmg rainbow trout "l"he line «>as fitted hv eve.
time
rainb
finger *
and
minno
(Figur
rj 1
\
\
\
\
i\
\J
Ipvr
J. ^»
to IS 2Q 30 4O 80
^-"$0 Tims Idays!
over
, , Figure 3. ITieotled of lane oil the toxicitv of
sodium selenite to juvenile fathead tniitnows.
expenm (Adams, 1976.) " ' ent The line was fitted by eye. (Adorns, 1976.)
(i.e., uptak
e rates are slow), he postulated that the 96-hour assay may not be the right test for acute toxicity. Dr.
Cutter questioned the relevance of a water-only exposure. Dr. Skorupa pointed out that a short-term spike
in selenium may have long-lasting food-chain implications, as shown by a paper by Maier et al. (1998). In
this paper, a short-term 10 |ig/L spike in a Sierra Nevada stream resulted in a concentration of 4 ug/g in the
food chain for over a year. Dr. Chapman replied that a tissue-based criterion would require modeling with
rate and fate functions and that in such a situation there would be no reason to draw an arbitrary timeline to
separate acute dosings from chronic effects. Dr. Fairbrother said that that issue would be addressed in the
discussion of averaging times during the cross-cutting session.
Dr, Adams then initiated
point concerning organic
pointed out that
toxic and can volatilize out
they can also
Cutter stated that a paper
showed that dissolved
less bioavailable to primary
forms, such as selenite.
distinction between
essentially nontoxic to
selenate, which is
agreed that concentrations
real waters are probably
selenate. Dr. Fan pointed
organic forms may be
organisms such as small
ingest them; Dr. Cutter agreed
Figure 4. The accttmxiiatioii of selenium i
fathead minnows. (Adains, 1976.)
the muscle of adult
discussion on the last
selenium forms. Dr. Fan
methylated forms are less
of the system, but that
bioaccumulate. Dr.
by Oobler et al. (1997)
organic selenium was
producers than inorganic
Dr. Riedel made the
selenite, which is
phytoplankton, and
moderately toxic. He
of organic selenium in
less toxic to algae than
out that paniculate
more bioavailable to
protozoans, which can
Overall, however.-Dr, Riedel and Dr. Cutter both stated that dissolved (not
particulate) organic selenium in most waters is probably fairly persistent and refractory, and not very
bioavailable. (It is taken up poorly and broken down slowly.) Dr. Cutter referred to a paper his group has
published, which looks at the lifetime of dissolved organic selenium in the North Atlantic (Cutter and
17
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Cutter, 1998).
Dr. Adams directed the experts' attention to the comment concerning bioconcentration factors, which he
defined as not including diet. (Bioaccumulation factors would include diet) He showed a graph of
bioconcentration factors observed at various intervals for fathead minnows exposed to four concentrations
of selenium (Figure 4). 0r. Adams argued that, because there is a body of literature showing (as did his
data) that BCF is inversely related to water concentration for selenium and many other metals, reporting a
BCF for a given species at a given site is of questionable value. Dr. Chapman replied that he thought the
experts could agree that BCFs were not relevant for selenium, as food chain is the key; Dr. Cutter agreed
and said that this point should be emphasized.
Dr. Fan remarked that the emphasis on water-column concentration has led mitigators to focus on driving
down those concentrations, which is not in fact the aspect of the system that is directly correlated with
ecosystem effects. Dr. Fairbrother replied that EPA is struggling with this issue, because water quality
criteria have been set using water column numbers. Dr. Adams postulated that the mass of selenium in the
sediments may be more important than the concentration of selenium in the water. Dr. Cutter replied that
water concentrations are related to effects but that it is a nonlinear relationship. Dr. Fan gave an example
of two agricultural drainage ponds she has studied. Water concentrations of selenium differ by an order of
magnitude between the two ponds, but sediment concentrations are similar. Dr. Adams speculated that one
site might have more volatilization, and Dr. Fan agreed. Some of the experts discussed volatilization. 0r.
Adams said he had seen papers that found that volatilization increases in reservoirs which have alternating
own and refill cycles (Hansen el al., 1998;
nberger and Karison, 1994). The experts
sed the residence time of volatilized selenium in
atmosphere; Dr. Cutter said that it lasts a day or
most, although Dr. Fan said it could be longer if
selenium attaches to particles and/or aerosols.
Skorupa asked if the apparent lack of correlation
en water and sediment selenium concentrations in
Fan's evaporation ponds could be due to sediment
geneity and small sampling size. Dr. Fairbrother
that this question could be discussed during the
VVra
Dr.
follow
effects
the
accou
transf
Figure 5. A eomjwiso!! of the bioconceninrtion fackirs
observed at various iiitervajs for fathead mijuiows exposed
to lour concentrations of seienittm. (Adams, 1976.)
p-Up
Adams summarized the discussion session as
s: Dietary uptake is critical to determining chronic
. The incorporation of waterborne selenium into
diet is key, factors that should be taken into
nt include transformations, rates of
ormation, chemical species, and types of
organi sms (e.g., microbes, invertebrates).
Peptide/protein-bound forms are important. Free seleno-methionine is typically nonexistent or at low
levels.
18
Dr. Adams asked what fonn(s) of selenium in water should be measured relative to assessing chronic
toxicity and water quality standard compliance. Dr. Cutter said that, at a minimum, selenite, selenate, and
total dissolved selenium should be measured. Another expert added that particulate should be measured as
well. The experts discussed this question but did not come to agreement. Experts with opinions on this
topic were asked to write summaries of their opinions.
Dr. Fan gave the following summary of her opinion regarding the significance of differentiating the
protein-bound fraction of particulate selenium in the water column:
Particulate selenium can originate from live planktonic organisms, organistnal debris/waste, and
soil/sediment particles. The bioavailability of selenium associated with these different sources can
vary. Presumably, selenium associated with organisms and biodebris represents a dietary route of
exposure for aquatic consumers, and this fraction of selenium may be more concentrated and
bioavailable. Since selenium bioaccumulation and toxic effects are mainly expressed through dietary
exposure, it is important to distinguish the fraction of particulate selenium that is more
representative of the consumers' diets. However, it would be a difficult task to spectate all of the
selenium in particulate matter that is of biological origin. The fraction of biogenic selenium
associated with soluble proteins may be convenient, because it may also be the most significant
selenium sink in planktonic organisms exposed to environmentally relevant waterborne selenium
concentrations. Major incorporations of selenium into bulk algal proteins have been documented for
several categories of algae (Wrench, 1978; Fan et al., in press; Fan et al., 1998). Based on known
selenium biochemistry (e.g., the propensity of selenium to substitute in sulfur ammo acids), similar
incorporations may well be applicable to other planktonic organisms. Therefore, monitoring
protein-bound selenium in paniculate matter may provide & more representative linkage from water
to aquatic consumers in terms of selenium exposure.
Dr. Adams gave the following summary of his opinion regarding total recoverable selenium measurements;
Total recoverable selenium is recommended as one of several measurements that could be made to
correlate with adverse effects in the field. This measurement includes all of the forms of selenium
present in a water sample (both dissolved and particulate) except those tied-up in the crystalline
structure of suspended solids. This recommendation is based on the need to identify a measurement
that can be performed routinely and reliably across multiple laboratories. Additionally, many of the
existing relationships between water, sediment and tissue have been developed around either total
recoverable selenium or dissolved selenium. Ultimately, what form(s) of selenium should be
measured depends upon the use of the data.
Dr. Cutter gave the following summary of his opinion regarding selenium measurements;
Additional measurements that are recommended for water include dissolved (defined as sO.4 ,um)
and particulate selenium. Dissolved measurements would be measured as total dissolved selenium,
selenate, and selenite. Se4 (selenides) would be determined by subtracting Se*4 + Se** from total
dissolved selenium (Cutter 1982). Particulate selenium (defined as selenium associated with
particles >0,4 ^m) could be measured as total selenium as well as Se4"1 and Se+s. Elemental selenium
would be determined separately by direct analysis for Se° (Velinsky and Cutter 1990). Se"2 would be
determined by difference (i.e., subtracting [elemental -t- Se*4 -t- Se"1*] from total particulate selenium).
As an approach to reduce costs one could consider speciating samples, especially the particulate
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fraction, only on a periodic basis.
Conclusions: The following summary of the entire discussion session was written by the discussion
leader and reviewed by the other experts.
1. W aterborne exposure to selenium in all its various forms is much less important than dietary
exposure in determining the potential for chronic effects in aquatic organisms in general and for fish
in particular.
2, The relationship between selenium in water and sediment relative to the aquatic organisms that live
in these compartments and constitute the diet of fishes is key to understanding the food chain
transfer of selenium. Factors that are important in understanding these relationships include rates of
transformation and speciatkm of selenium, rates of exchange of selenium between sediment and
water and organism tissues, and types of organisms constituting the food web.
3. Peptide- and protein-bound forms of selenium in the diet of aquatic organisms are emerging as
critical factors in assessing the potential for chronic effects in aquatic organisms. Free seleno-
methionme appears to exist only at very low levels in tissues and in water.
4. Bioconcentration and btoaccumulation factors are inversely related to water exposure levels, which
complicates their use in developing water quality criteria.
5. To evaluate selenium in the water compartment of aquatic ecosystems it is recommended that at a
minimum dissolved versus particulate selenium be differentiated and mat selenate and selenite be
determined in the dissolved fraction. Additionally, it appears useful to determine selenite, selenate,
and protein-bound and total selenium in the particulate fraction of natural surface waters. The latter
may be of less importance for industrial discharges.
DISCUSSION SESSION 2:
Technical Issues Associated With a Tissue-Based Chronic Criterion
Dr. Hamilton opened the session by remarking that tissues integrate all exposures an organism experiences
and represent the biological effects that water quality criteria are intended to prevent.
Question 4: Which forms of selenium in tissues are t<«icolo«ically important with respect to causing
adverse effects on freshwater aquatic organisms tinder environmentally realistic conditions and
why?
Discussion leader's summary ofpremegting comments;
Dr. Hamilton presented a brief summary of each individual's comments on this question. He said there was
general agreement that the form of selenium of concern in tissues was an organic, or protein-bound, form.
He asked for any comments or concerns.
Dr. Chapman asked whether this question included organisms fed on by fish, pointing out that, if so, it
would be important to think about the issue of gut contents and to specify whether organisms should be
20
depurated. Dr. Fairbrother asked the other experts to clarity whether fish were the only organisms in which
effects were to be discussed, or whether anyone would say that selenium affects other organisms. Dr. Fan
replied that, based on her review of the literature, there are not mortality or direct toxic effects on
phytoplankton or invertebrates, but there may be community change. Dr. Riedel agreed. Dr. Fan and Dr.
Riedel submitted additional comments on this point
Dr. Fan submitted the following comments on the potential effect of selenium on community structure:
It is clear that selenium, regardless of the form, is less toxic to lower trophic organisms including
primary and secondary producers, zooplanklon, and benthic invertebrates. Selenium contamination,
however, can have an effect on the competitiveness of different components of a given community,
leading to an alteration of the community structure. For example, in San Francisco Bay in the
1980s, a shift from a diatom-dominated to a green algal community occurred. This shift preceded an
explosive growth of the Asian clam, Potamocorbula amitrensis, which is an extremely efficient
accumulator of selenium (Brown and Luotna, 1995). It is unclear whether selenium contamination
contributed to the change in the algal community, nor can we draw conclusions about the role of
selenium in the abundance of the Asian clam. However, selenium is interacting with this new trophic
system, and a selenium bioaccumulation factor of over 100,000 from water to the clam has been
observed. In addition, the Asian clam is an important food source for the indigenous sturgeon.
There is some evidence that the sturgeon population in the Bay is not actively reproducing and that
field-collected sturgeon eggs exhibit high parts per million (ppm) selenium concentrations,
particularly in certain protein fractions (Kroll and Doroshov, 1991). Unfortunately, tlie relationship
between high selenium egg content and sturgeon reproduction problems has not been clearly
established. It remains a real possibility, however, that selenium plays an important role in the
impact of altered lower trophic community structure on fish reproduction.
Dr. Riedel submitted the following comments on selenium toxicity and algal communities:
Although most of the discussion of selenium toxicity has focused on fish reproductive effects,
selenium toxicity can exert other effects on aquatic ecosystems. In some cases, environmental
concentrations of selenium can also exceed the acute toxicity thresholds for a variety of algal
species. The toxicity of selenium to algae is dependent both on the species of algae and the form of
selenium. Of the two predominant forms of inorganic selenium in water, selenate has been generally
observed to be more toxic to algae than selenite. For example, selenate concentrations from 50 to
greater than >10,000 ug Se'L have been observed to inhibit growth of three species of
phytoplankton from three different taxa. A diatom. Cyclotella meneghiania, was observed to be the
most sensitive (ECJO - 200 ug;L), A green alga, Chlamydomcnias reitihardtii, was the next most
sensitive (ECM - 2,000 ug/L), while the eyanophyte Anabaena jlos-aquae was the least sensitive,
with an EC50 of->10.000 ug/L. None of these species were inhibited by concentrations of selenite up
to 10,000 ug/L (Sanders et al., 1989). Similar toxicity results have been reported by Wheeler et al.
(1982). Other authors, notably Kumar and Prakash (1971) and Moede et al. (1980), have observed
that selenate and selenite have similar effects on several algal species. At least one green algae,
Ankistrodesmtis falcatus. may be unusually sensitive to selenite; Dr. Riede! has observed near
complete growth inhibition in cultures spiked with 10 ug/L selenile, but not selenate (Riedel,
unpublished observation).
Dr. Riedel has observed at least one "field" case of selenium toxicity at concentrations representative
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of mildly contaminated sites. Riedel et a!. (1996) made 10 ug/L additions of both selenate and
selenite to natural phytoplanktort cultures collected from Hyco Lake, as part of a biotransformation
experiment. The selenate cultures showed a mild reduction in growth rate and maximum yield
(-10%) compared to the control and selenite cultures. To verify the study, a series of selenate and
selenite additions were made to another natural collection from the same site one month later, in this
case, 10 ug/L selenate showed no inhibition, 20 ug/L decreased growth more than 10%, and
inhibition was complete at 200 ug/L. Selenite did not show inhibition in these experiments either.
If selenium toxicity to a particular species or group of species were to occur in the field, it would be
very difficult to observe from the existing community; the absence of some subset of possible species
would not readily be detected (unlike the situation offish in Belews where some 13 of 17 possible
fish species were eliminated, there are hundreds of possible phytoplankton species, and rapid
changes in species composition is the norm). Even a relatively small decrease in growth rate by an
individual species could lead to a very rapid decline in its abundance relative to unaffected species.
Nevertheless, the lack of these species could be significant in the food web, or as links in the chain of
selenium bioaccumulation and biotransformation. If the sensitive species are truly randomly
distributed among taxa, size classes, edibility to higher trophic levels, etc., differential selenium
toxicity to phytoplankton is probably not a significant influence on aquatic ecosystems. It is
unlikely, however, that the effects are truly random, and the net effect of selenium toxicity to
phytoplankton may be to inhibit large cells to a greater extent than small cells (e.g., Munwar et al.
1987), diatoms to a greater extent than blue-greens (e.g., Sanders et al., 1989), and so on.
To return to the original question about lexicologically important selenium forms in tissue, Dr. Fan said
mat she did not believe that all selenium in tissue is in the protein-bound form. She cited a study of her
group's, currently in press, which found that the percent allocation of selenium into protein in algae varies
with varying selenium concentration (Fan et al., in press). Dr. Cutter, referencing his dissertation work
(Cutter, 1982), said that the remaining selenium could be going into selenium esters, found in membranes.
Dr. Hamilton asked the experts whether the bottom line of the discussion was still that incorporation of
selenium into protein was the trigger for biological effects. The other experts agreed that this is at least "a"
bottom line.
Question 5: Which form (or combination of forms) of selenium in tismies are most closely correlated
with chronic effects on aquatic life in the field? (In other words, given current or emerging
analytical techniques, which forma of selenium in tissues would you measure for correlating
exposure with adverse effects in the field?)
Discussion leader's summary ofpremeeting comments:
Dr. Hamilton summarized the experts' premeeting comments for this question as follows: There were a
variety of answers and agreement on some points. The experts agreed that there has been little speciation
work in fish tissue. The forms suggested for measurement were largely total selenium or protein-bound
selenium. William Van Derveer said that he would measure total selenium only if the exposure was a field
exposure.
Discussion:
22
Dr. Hamilton asked Mr. Van Derveer to elaborate on his premeeting comments. Mr. Van Derveer replied
that his concern is that, in laboratory' studies, when diets are dosed with a specific selenium form, the
residues that accumulate in the tissues may differ from the full btogeochemical spectrum that is found in the
field. Dr. Hamilton replied thai he had done a study in which fish were fed diets either spiked with seleno-
rnethionjne or made up of selenium-contaminated organisms from the field. He found mirror-image effects
between the two diets (Hamilton et al., 1990). He added that there has been at least one other study that
indicated that seleno-methionine is a good model for selenium present in the food chain (Bryson et al.,
1985). Dr. Skorupa said that there is fairly strong consensus in the scientific literature that food-chain
selenium, even though it is derived from different forms in water, exerts the same toxicity on a gram per
gram basis. Besser et al. (1993) showed that seleno-rnethionine, selenate. and selenite bioaceumulate lo
different levels, but exert the same toxicity at the same levels. However, the various forms will move
differently from water into the food chain; for example, compare Chevron Marsh to Kesterson (Skorupa,
1998). Dr. Cutter pointed out that the Bryson et al. study related to water exposure, not selenium added to
the diet.
Dr. Hamilton summarized that the form of selenium in the tissue most closely associated with biological
effects is an organic form. Dr. Fairbrother reminded the other experts that the original question was what
to measure in tissues. She added that, historically, total selenium is what has been measured in tissues to
relate to effects, but that in the ftiture more measurement of protein-bound selenium should be done. Dr.
Hamilton agreed, but Dr. Riedel said that, from a monitoring perspective, total selenium is adequate for
tissues. Dr. Fairbrother pointed out that the morning's discussion indicated that there is not always a good
correlation between total concentrations and effects. She speculated that these differences could be related
to different amounts, or different types, of protein-bound selenium. The experts discussed the implications
of the variation in the correlation between tissue levels of selenium and effects. Some argued that this
variation mostly results from individual and interspecies variation in metabolism and fitness, whereas others
said it may result from different forms of selenium in the tissues. The latter group thus argued for
improved speciation of selenium forms in tissue.
Question 6: Which tissues (and to which species of aquatic organisms) are best correlated with
overall chronic toxicological effect thresholds for selenium?
Discussion leader's summary ofpremeeting comments:
Dr. Hamilton summarized the experts' premeeting comments as follows: Almost all of the experts said that
reproductive tissue is best correlated with effect thresholds. Some suggested that whole-body residue
measurements would also be acceptable; whole fish are easier to obtain and much of the data in the
literature is on whole-body residues. Dr. Fairbrother and Dr. Chapman suggested sampling benthic
invertebrates: Dr. Cutter recommended the cytosol fraction of prey organisms.
Discussion:
Dr. Hamilton asked the experts whether they could recommend the ovaries as the tissue of choice, even
though ovaries are not available all year. After a brief discussion, the experts agreed that fish ovaries are
the tissue of choice in which to measure selenium levels. This agreement, however, was followed by
further discussion.
Dr. Adams said that there needs to be a great deal more data on the variability of thresholds of effect
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among various species, habitat types, and environments. Df. Hamilton agreed. Dr. Adams said that it
would be important to characterize the distribution of sensitivity among organisms of interest, as is
currently done for the water-column criteria. Dr. Fairbrother asked whether the variability is based mostly
on species sensitivity, or whether the type of selenium measured and the problem of gut contents contribute
to the variability. Dr. Hamilton said thai a lot of the variability in the current data set is due to life stage, as
older organisms are more resistant. He said that, if whole-body residues are used, larval fish should be
sampled.
Dr. Fairbrother asked Dr. Skorupa to comment based on Ms experience with the agricultural drainwater
study. He replied that that type of dataset would be useftil for taking a probabilistic approach to the
criterion. The National Irrigation Water Quality Program (NIWQP) dataset (Seiler, 1996) has a large
amount of data relating water concentrations to fish tissue levels (almost exclusively whole-body). Dr.
Skorupa said that this data could be used, along with good measures of tissue effect levels, to develop a
water column number that was associated with a certain probability ofexceedance of effect thresholds. He
agreed that more work would need to be done on effect-level variability among species. Dr. Fairbrother
said that, if this type of analysis were done, it would be important to look at all the relevant parameters,
such as what type of selenium is measured, whether the gut content is included, etc.
Dr. Fan asked how endangered species could be sampled for regulatory purposes. Dr. Hamilton replied
that a muscle-plug technique has been developed, in which a biopsy is analyzed by neutron activation.
Unfortunately, muscle tissue does not seem to correlate well with effects, based on his research (Hamilton,
unpublished). Dr. Fan asked if blood sampling is an option; Dr. Riedel replied that it is, although it is hard
to get blood from the smaller fish. Dr. Hamilton said that he has seen sampling of gills, blood, heart, and
liver, but that are few data on these tissues. Dr. Riedel responded that his group had sampled various
tissues in fathead minnows. They found that selenium concentrations increased more slowly in muscle
tissues than in other tissues. Selenium concentrations in livers, however, mirrored concentrations in ovaries
(Dr. Denise Breitburg, unpublished research for the EPRI project). Dr. Riedel noted that, unlike ovaries,
livers are available all year.
Dr. Adams said that he thinks gonadal tissue is by far the first choice, because it is where the most sensitive
effect is expressed; it is worth waiting to sample this tissue when it is available. Other experts agreed,
although it was pointed out that there are additional sampling difficulties; some fish bear their young live,
and sometimes it is difficult to get gonadal tissue even during the reproductive season. Dr. Lemly said a
good approach would be to target a sensitive species that is widespread, such as a salmonid or a
centrarchid, depending on the water body. Other experts reiterated that assessing data sensitivity across
species would be crucial to the establishment of a tissue-based criterion,
Question 7: How certain arc we in relating water-column concentrations of selenium to tissue-
residue concentrations in top trophic-level organisms such as fish? What are the primary sources of
uncertainty in this extrapolation?
Discussion leader's summary ofpremeeting comments;
Dr. Hamilton summarized the experts' premeeting comments as follows: Experts expressed that they were
"not very certain" about making these correlations.
Discussion:
24
Dr. Hamilton made the point that there are many situations in which the water-column concentration of
selenium is low but tissue levels are high (Hamilton et al., 1990; Schroeder et al., 1988; Skorupa and
Ohiendorf, 1991; Zhang and Moore, 1996). Loading to tissue can come from the sediments and biota as
well as from the water. Dr. Hamilton also asked whether it is possible that geleno-methionine is found in
such low concerttations in the water column because it is highly bioavailatte and taken up immediately
when cells lyse. Dr, Cutter said that his group is working on this question.
The experts discussed using the NIWQP dataset to develop an empirical probabilistic approach to
correlating water-column to tissue concentrations of selenium. Dr. Adams did not have great success in an
initial attempt to make these correlations (Adams, unpublished), but he plans to redo his analysis. Dr.
Hamilton said that better correlations could probably be achieved by taking site-specific factors into
account. Dr. Adams agreed; he said that some of the published studies say that selenium transfer from the
water to the food chain can be predicted well within a small site, but attempts to extrapolate to a regional
or national scale fall apart.
Dr. Cutter raised the issue of detection limits, which he said are often not low enough for researchers to
adequately make the correlations that are attempted. He recommends 0.01 ppb, because most
uncontaminated waters are below 0.1 ppb total selenium. He and Dr. Skorupa discussed this issue. Dr.
Skorupa questioned whether such a low detection limit is necessary if the effects threshold is much higher.
Dr. Cutter responded that the lower the detection limit, the more useful the data will be for future uses and
for looking at sublethal effects. Dr, Fairbrother agreed that a low detection limit was a good idea when
trying to establish water-tissue correlations. Some experts objected to the characterization of the natural
background concentration of selenium as 0.1 ppb, but this discussion was tabled until the cross-cutting
Dr. Hamilton then asked whether the other experts thought there would be more certainty in relating
dietary concentrations to tissue residue in fish, and then in the two-step process of relating water to food
organisms to fish. The experts agreed that there would be more certainty in these relationships, but that
they still would be difficult to quantify. Many of the experts mentioned the difficulty caused by spatial and
temporal variability in water-column selenium concentrations. Dr. Fan also questioned how to define diet.
She mentioned Saiki's work in the San Joaquin River and San Luis drain (Saiki and Lowe, 1987; Saiki et
al, 1993), which showed a good correlation between benthic invertebrates and detrital selenium. She
emphasized, however, that it is crucial to determine what organisms are actually eating when trying to
model food-chain transfer. Dr. Hamilton added that this point brought up the issue of sediments, which can
be a source of loading to the food chain, and thus should potentially be included in correlation models. Dr.
Fan said that migration of organisms in and out of the system poses another problem for correlations.
Wrap-Up:
Dr. Hamilton summarized the discussion front this session. He said that he thought the experts had come
to agreement that tissue integrates all exposures, whether different food types or water. Issues that had
been raised included community change and variability in the sensitivity of the reproduction endpoint across
fish species, and sometimes within species; there are limited data on both of these topics. He said that the
group had not thoroughly discussed which endpoint was appropriate to examine (e.g., mortality, growth,
deformities). Dr. Fan responded that this is why she thought the blood idea would be interesting. Selenium
may reduce blood's oxygen-carrying capacity, and this endpoint would respond fairly quickly to ingestion
of selenium. Dr. Hamilton replied that an important question to ask in considering an endpoint is whether
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the effect is reversible. If so, the effect may not be truly adverse; it may not have effects at the population
level.
Dr. Hamilton said that the experts had largely agreed that the ovary is the best tissue in which to measure
residues; larval fish are a second choice if ovaries are not available. He reiterated that the issue of sensitive
species is key. He said that information on linking sediments or water back to tissue is a data gap; too few-
data exist to build a good model. Dr. Adams said that he thinks the data exist, but that gathering sufficient
data to encompass variability within and across sites would be a large task. He added that EPA should
make a broad effort to compile these data sets. Dr. Fairbrother put in a cautionary note that the empirical
approach of using large data sets to look at correlations is a useful starting point, but the real goal should
be to understand mechanistically how selenium moves through the different compartments in different
systems. Dr, Hamilton agreed, and said the data set should be built around reproductive studies in a series
of fish species.
Dr. Hamilton said that some of the experts had suggested sampling benthic invertebrates because they are a
key component of the food chain. He agreed that this is a good idea, and added that tissue concentrations
in these organisms will be less variable than other components of the ecosystem. Dr, Riedel pointed out
that selenium concentrations in benthic invertebrates are highly affected by gut contents, but other experts
replied that this problem can be solved by depurating the organisms. Dr, Adams said that which
compartment is most variable can be site-specific; sediments can be very heterogeneous and may therefore
be highly variable. Other experts responded that this problem could be addressed by sampling in multiple
locations.
Dr. Adams made the final point that, when looking at sensitive species, it is important to look at species
thai actually occur in the region under study. Dr, Hamilton agreed and added that, in the west, one may
want to differentiate between native and introduced species.
Conclusions: The following summary of the entire discussion session was written by the discussion
leader and reviewed by the other experts.
There was an unexpected, readily reached agreement on the four issues concerning the possibility of a
tissue-based chronic criterion. The experts agreed that the selenium form in tissue that is lexicologically
important with respect to causing effects on freshwater aquatic organisms under environmentally realistic
conditions is protein-bound selenium. By "protein-bound," experts meant all organic selenium forms as a
group. It was acknowledged that different forms of selenium can exist in tissue, but analysis of tissue
selenium is typically as total selenium and not by speciated forms. In general, the organisms of concern
were fish, which is the group usually emphasized in consideration of adverse effects on aquatic life.
However, aquatic invertebrates were mentioned as another tissue of concern, because they represent an
important link in food-chain transfer of selenium in the aquatic environment.
Protein-bound selenium, measured as total selenium, is the selenium form related to chronic toxicity. The
major concern was organo-selem'um forms bound by proteins rather than free organo-selenium or inorganic
forms. One concern raised was that the form of selenium to which organisms are exposed might influence
the resulting tissue residue; thus, emphasis should be on use of data from environmental field studies rather
than laboratory studies in establishing a tissue-based criterion. The key tissues identified by experts were
fish gonads, ovaries, or eggs. Due to the limited availability of ripe gonads/eggs, however, newly hatched
larvae analyzed for whole-body residues were recognized as a possible alternative. Most data are on
26
whole-body fish, but for a variety of life stages rather than the preferred, sensitive larval life stage. The
dataset for gonads, ovaries, and eggs are more limited. Liver tissue was mentioned as a third tissue for
possible monitoring of residue concentrations.
Referring back to the dietary route for selenium, benthic invertebrates were recognized as a possible ip-cup
of organisms to monitor in assessing adverse effects on aquatic environments, especially from the
standpoint of shifts in the composition of a community and the resultant effects on higher trophic levels
which might also shift in composition. One concern with benthic invertebrates was possible errors in
residue concentrations due to gut contents.
Even though tissues were readily embraced as a possible component for establishing a criterion for
selenium, the relation to water concentrations was questionable. Experts readily acknowledged that there
was a lot of uncertainty in modeling the relation between concentrations in fish tissue and water. However,
the level of uncertainty was less for the relation of selenium in water to that in aquatic invertebrates, and
concomitantly, from selenium in dietary organisms to fish tissue.
Data gaps were identified including the limited number of fish reproductive studies where exposures
included water and dietary routes using realistic water characteristics and food organisms and where
meaningful endpoints were measured such as egg and larvae residues along with biological effects on
offspring. These reproductive fish studies should include several representative families offish.
DISCUSSION SESSION 3:
Technical Issues Associated With a Sediment-Based Chronic Criterion
Mr. Van Derveer opened the session by making some general observations based on the pretneeting
comments. First, sediment is the dominant sink for selenium. Second, sedimentary organic materials
(detritus) are an important dietary resource for aquatic invertebrates, and selenium tends to accumulate in
detritus. He added that the literature applicable to sediment-based criteria is sparse; most participants
relied on two to three references in their comments. Finally, he said that there was a range of opinions
expressed in the comments regarding the potential merit of a sediment-based criterion.
Question 8: Which forms of selenium in sediments are toxicologieajly important with respect to
causing adverse effects on freshwater aquatic organisms under environmentally realistic conditions?
Discussion leader's summary ofpremeeting comments:
Mr, Van Derveer presented a brief summary of each individual's comments on this question. Experts
expressed a range of different opinions. Forms suggested included total selenium, elemental and organic
selenium, and detrital selenium. Various experts made the points that redox affects speciation and that
improved analytical methods are needed.
Discussion:
The issue of sediment heterogeneity was raised and discussed by some of the experts. They agreed that
selenium can be distributed very heterogeneically in sediments, and that this should be considered in
sampling and modeling. Dr, Skorupa added that the spatial heterogeneity of benthic invertebrate
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distribution should also be noted. He said that this distribution often maps onto the spatial heterogeneity of
selenium; both are found in areas of fine organic matter. In his opinion, sampling that does not concentrate
on these areas misrepresents the toxioologieal risk. Dr. Riedel agreed and said that normali/ation lo total
organic carbon (TOG) is one way to solve this problem. Mr. Van Derveer said that he would later present
some data showing that depositiona! zone selenium concentrations can fairly well predict concentrations in
rime-dwelling midges.
Mr. Van Dervecr asked Dr. Adams to elaborate on his call for improved analytical methods for sedimentary
selenium. Dr. Adams replied that he sees variability among analytical laboratories in determining sediment
selenium speciation. Dr. Cutter responded that the techniques are established, but that better training may
be needed. Dr. Skorupa said that he agreed with Dr. Adams, arid added that it is important that all
analytical data be evaluated. Dr. Riedel agreed that there is a problem with analysis for selenate. He and
Dr. Fan advocated the expansion of the use of liquid chromatography for selenium analysis.
Mr. Van Derveer asked if there were any other issues related to question 8, recognizing that the literature
relating sediment concentrations to toxicily is sparse. Dr. Cutter replied that, because of the lack of
literature, the conclusion should be that the experts had low confidence in answering the question; Dr.
Riedel agreed.
Mr. Van Derveer presented a graph using data from a publication of his (Van Derveer and Canton, 1997)
(Figure 5). The graph showed the relationship between sedimentary selenium concentration and effects in
fish, using data from a variety of sources, including NIWQP, Belews Lake, Hyco, and others. Mr. Van
Derveer said that there appears to be a clear concentration-response ratio, but that more data are needed.
Dr. Skorupa cautioned that the power of the study should be kept in mind when there is a finding of "no
effect," as many studies lack the necessary power to detect effects.
Quest
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Mr.
Reanalysis of Sedimentary Selenium Toxicity Data from
Van Derveer and Canton (1997) Using Only Effects
Data for Fish
Observed
1
$ Predicted
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systems, using 204 water-sediment pairs from 15 water bodies (Adams, unpublished). The correlation
coefficient was 0.66 overall.
Correlating water with | ' 1 the fine-grained
fraction of sediments Western Streams Model from Van Derveer and yielded a
coefficient of 0.68; with Canton (1997) the coarse-
grained fraction the ^ coefficient was
0.73. Dr. Riedel pointed
-------
Finally, relating sediment to water, a TOC model exists for western streams. Residence time is important
for both lentic and lotic systems. Whether the system is at equilibrium or not should be considered.
Uncertainty is moderate overall for relating sediment to water, based on the small number of publications
specifically addressing this relationship.
Conclusions: The following summary of the entire discussion session was written by the discussion
leader and reviewed by the other experts.
Sediment is the dominant sink for selenium in aquatic ecosystems. Elemental and organic selenium tend to
predominate in sediment, with elemental selenium dominating under reducing conditions. Organic selenium
is believed to be markedly more bioavailable than elemental selenium. Sedimentary organic materials
(detritus) are an important dietary' resource for aquatic invertebrates. Selenium tends to accumulate in
detritus, thereby entering the benthic-detrital food web.
The literature regarding the toxicological effects of sedimentary selenium is sparse, and most workshop
participants relied upon two to three publications for preparing their premeeting comments. Several
participants cited a paper by Van Derveer and Canton (1997), which concluded that the total sedimentary
selenium concentration is a reliable predictor of chronic toxicity in fish and birds. A reanalysis of those data
(Van Derveer, premeeting comments), focusing only on fish, indicated that toxic effects may occur when
total sedimentary selenium concentrations exceed 4 ^g/g (dry weight). The field data that were collected
from Belews Lake after curtailment of fly ash input demonstrate the importance of sedimentary selenium in
bioaccumulation and toxic effects on fish. Although waterbome selenium concentrations declined rapidly,
Se concentrations in sediment and biota declined very slowly and teratogenic effects in fish populations
persisted even 10 years later. Effects data for particular selenium forms in sediment are lacking in the
literature; thus, preventing interpretation of sedimentary selenium speciation data.
The relationship between sedimentary selenium and toxicological effects may be affected by factors such as
spatial heterogeneity in sedimentary selenium concentrations, habitat selection by different types of aquatic
biota, and preferential feeding habits of aquatic biota. Moreover, efforts to relate toxicological effects to
sedimentary selenium concentrations, or selenium concentrations in any environmental compartment,
should consider the statistical power of the effects assessment. It was hypothesized that prediction of food
web bioaccumulation and subsequent chronic effects on higher trophic levels might be improved by
measuring detrital selenium, proteinaceous selenium in sediment, or seleno-methionine in sediment.
Unpublished data (Van Derveer, premeeting comments) were presented which indicate that a significant
positive relationship exists between total selenium in surficial sediment (ca. 0-3 cm) and selenium
accumulation in depurated Chironomidae larvae from streams of the middle Arkansas River basin,
Colorado. These data suggest that, at least for some systems, total sedimentary selenium is well correlated
with bioaccumulation in benthic organisms.
The following sediment quality characteristics were identified as potentially relevant to chronic selenium
toxicity:
• Sedimentary TOC (possibly inappropriate for anoxic sediments where redox processes predominate);
• Quantity of sedimentary detritus present;
• Water residence time (longer residence time promotes greater sedimentary selenium accumulation);
• Normalization of sedimentary selenium to sedimentary carbon;nitrogen ratio;
33
* Normalization of sedimentary selenium to sedimentary protein content;
• Efflux of selenium from sediment to water; and
« Sulfate concentrations (may affect the composition of sedimentary microbial communities and thus the
speciation of sedimentary selenium).
Sedimentary selenium caa be related.to waterbome seieniisa usijtg two approaches, with a moderate degree
of uncertainty. For streams of the western United States, a TOC-based model can be applied (Van Derveer
and Canton, 1997). Sedimentary selenium accumulation in lentic and lotic systems can be calculated by
considering residence time and applying a mass balance approach (Cutter, 1991). Because waterbome
selenium concentrations tend to exhibit large temporal variations, the strength of the water-to-sediment
correlation is affected by the averaging period selected. It is also important to consider whether the regime
of waterbome selenium input to a system is relatively consistent over time (e.g., a stream receiving
selenium from surrounding geological sources) or recently altered (e.g., Belews Lake after curtailment of
fly ash input).
The following research issues were identified as being relevant to developing a more complete
understanding of the role of sediment in chronic selenium toxicity:
• Assessing the relationship between detrital selenium and food web bioaccumulation;
* Understanding factors that may cause variability in selenium accumulation in benthic invertebrates, such
as interspecific differences, assimilation rates, and effect of sedimentary selenium speciation;
• Evaluating the potential merit of depurating specimens prior to correlation with sediment, or any other
environmental compartment;
• Correlating sedimentary selenium concentrations at preferred feeding sites with particular species of
interest (e.g., endangered fish);
• Defining the mechanisms of selenium accumulation in sediment; and
* Performing laboratory studies of sedimentary selenium accumulation by invertebrates.
DISCUSSION SESSION 4:
Crosi-Cutting Issues Associated With a Chronic Criterion
Dr. Fairbrother explained that the cross-cutting session was intended to capture issues that did not fit neatly
in one compartment, as well as any other comments or ideas that any of the experts had not yet had a
chance to raise. She listed the following issues to be discussed during the session: spatio-temporal
variability and averaging times; ecosystem type (including lentic vs. lotic); site-specific approaches;
analytical methods; sufficiency vs. toxicity; natural background; and interactions with other stressors.
Question 12: How does time variability in ambient concentrations affect the bioaecmmilalioii of
selenium in aquatic food webs and, in particular, how rapidly do residues in fish respond to
increases and decreases in water concentrations?
Discussion leader's summary ofpremeetlng comments:
Dr. Fairbrother summarized the experts' premeeting comments on this question as follows: Water
concentrations can change by ten-fold in 1 month. Bioaccumulation in fish tissues changes over months.
Phytoplankton and bacteria accumulate selenium rapidly (5-6 days), with turnover in 2 weeks. The rate-
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* Normalization of sedimentary selenium to sedimentary protein content;
• Efflux of selenium from sediment to water; and
• Sulfate concentrations (may affect the composition of sedimentary microbial communities and thus the
speciation of sedimentary selenium).
Sedimentary selenium can be related to waterborne selenium using two approaches, with a moderate degree
of uncertainty. For streams of the western United States, a TOC-based model can be applied (Van Derveer
and Canton, 1997). Sedimentary selenium accumulation in lentic and lotic systems can be calculated by
considering residence time and applying a mass balance approach (Cutter, 1991). Because waterborne
selenium concentratioas tend to exhibit large temporal variations, the strength of the water-to-sedimetrt
correlation is affected by the averaging period selected. It is also important to consider whether the regime
of waterborne selenium input to a system is relatively consistent over time (e.g., a stream receiving
selenium from surrounding geological sources) or recently altered (e.g., Belews Lake after curtailment of
fly ash input).
The following research issues were identified as being relevant to developing a more complete
understanding of the role of sediment in chronic selenium toxicity;
• Assessing the relationship between detrital selenium and food web bioaccumulation;
* Understanding factors that may cause variability in selenium accumulation in benthic invertebrates, such
as interspecific differences, assimilation rates, and effect of sedimentary selenium speciation;
• Evaluating the potential merit of depurating specimens prior to correlation with sediment, or any other
environmental compartment;
• Correlating sedimentary selenium concentrations at preferred feeding sites with particular species of
interest (e.g., endangered fish);
• Defining the mechanisms of selenium accumulation in sediment; and
* Performing laboratory studies of sedimentary selenium accumulation by invertebrates.
DISCUSSION SESSION 4:
Cross-Cutting Issues Associated With » Chronic Criterion
Dr. Fairbrother explained that the cross-cutting session was intended to capture issues that did not fit neatly
in one compartment, as well as any other comments or ideas that any of the experts had not yet had a
chance to raise. She listed the following issues to be discussed during the session: spatio-temporal
variability and averaging times; ecosystem type (including lentic vs. lotic); site-specific approaches;
analytical methods; sufficiency vs. toxicity; natural background; and interactions with other stressors.
Question 12: How does tine variability in ambient concentrations affect the bioaccumulation of
selenium in aquatic food webs and, in particular, how rapidly do residues in fish respond to
increases and decreases in water concentrations?
Discussion leader's summary of premeeting comments:
Dr. Fairbrother summarized the experts* premeeting comments on this question as follows: Water
concentrations can change by ten-fold in 1 month. Bioaccumulation in fish tissues changes over months.
Phytoplankton and bacteria accumulate selenium rapidly (5-6 days), with turnover in 2 weeks. The rate-
34
limiting step is the conversion of the inorganic form to the organic form. The tm for sediments depends on
the form of selenium.
Discussion:
Dr. Cutter suggested that averaging time should be a function of retention time (the physics of the system),
which varies greatly between lentic and lotic systems. Dr. Fan said that the biological component of a
system can also have an effect on averaging time. Dr. Skorupa again raised the issue that a short-term
spike can have long-term food-chain implications, based on the Mater et al. (1998) study. Dr. Fairbrother
summarized that, in addition to the physics of the system, the biology of the system has to be considered,
because organisms will have different effects on the residence time of selenium in the various
compartments. Both physics and biology should be looked at when examining the relationship of water
fluxes to responses or to fish tissue changes.
Question 13: To what extent would the type of ecoiystem (e.g., lentic, lotic) affect the chronic
toxicity of selenium?
Discussion leader's summary of premeeting comments:
Dr. Fairbrother summarized the expats' premeeting comments on this question as follows: There was
general agreement that the type of ecosystem has a large effect on selenium cycling in the system. Lotic
systems have a slower rate of conversion of inorganic to organic selenium, shorter retention time of carbon
and decreased storage potential, and less accumulation of selenium in sediments, The modeling approach
differs between lotic and lentic systems. Bacteria and phytoplankton species differ between the two
ecosystem types, which may cause differences in bioaccumulation factors. Also, lentic systems have higher
primary productivity. Open (rather than closed) fish populations make changes in recruitment more
difficult to document
Discussion:
Dr. Riedel added that lotic systems have a larger contribution of terrigenous detritus, which tends to dilute
the selenium concentration. Dr. Fan replied that if the allochthonous input is through seleniferous soils, the
reverse could be true. Dr. Skorupa said that another way in which lotic and lentic systems differ is that
lotic systems are more likely to provide the source water for lentic rather than vice versa. Dr. Pairbrother
replied that the reverse could also be true. Dr. Riedel said that the key point is not to consider parts of
systems in isolation. Dr. Hamilton agreed that the interconnection of lentic and lotic systems is important.
He cited a study by Radtke et al. (1988) on the Lower Colorado River, which showed that selenium in the
backwaters was coming from the river's main stem. Conversely, a study by Engberg (currently in review)
showed that only 18 percent of the selenium entering Lake Powell stays in the lake.
Dr. Adams said that there are other ecosystem types that should be considered, such as the Great Salt
Lake, saline streams, ephemeral streams, and cold northern streams. He added that indigenous biology in
each of the different environments should be taken into account.
Dr. Fairbrother questioned the statement that modeling approaches vary for different systems. She said
that, in her opinion, the major components of the model are conceptually the same for different systems and
that what varies are the rate processes. She asked for comments from the other experts. Dr. Fan replied
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that components other than fates vary (e.g., food-web composition). Dr. Cutter replied that food-web
composition is taken into account by Or, Bowie's model. Dr. Bowie agreed.
Dr. Fan asked Dr. Bowie what was the minimum amount of information required to use his model for a
site. Dr. Bowie said that one can use very little information and make guesses, but that the more actual
data that are included, the better the model is. He said that the hydrology of the system and the selenium
loadings would be the most important information, followed by the food web structure and some
information on sediments. Dr. Fan replied that it is difficult to get a good mass balance for a dynamic
system. She mentioned volatilization as an important component that is difficult to measure. Dr. Bowie
replied that he didn't think volatilization was a major factor in mast systems; further, the model takes into
account factors which affect volatilization, such as the volatile fractions of bacterial and algal excretions.
During the discussion, it was also clarified that the main purpose of the model is to be able to tie biological
effects to water concentrations resulting from loadings, and possibly predict outcomes in hypothetical
future situations.
Site-Specific Approaches:
Dr. Fairbrother summarized suggestions Dr. Adams made about different approaches for doing site-specific
assessments. These were: (1) Empirical database offish tissue concentration as a function of water
concentrations (develop for a variety of species and couple with reproductive effect concentrations); (2)
Apparent Effects Threshold (AET — use it to identify areas where site-specific effects measurements should
be done); and (3) Modeling approach (parameterize for the ecosystem of concern).
Discussion:
Dr. Adams elaborated further on the AET approach. He explained that it is the approach shown in the
graph Mr. Van Derveer presented earlier (Figure 5). For multiple sites, concentrations of selenium in
various compartments are coupled with information on the presence or absence of biological effects at the
site. This approach identifies three ranges of concentrations: a range in which effects were never seen, one
in which effects were sometimes seen, and one in which effects were always seen. This approach helps to
establish rough effect thresholds and to identify sites for which more site-specific data are needed (i.e.,
those in the middle range). The AET approach has been articulated for marine sediments (Barrick et al,
1989). Dr. Bowie said that, for such an approach, using total selenium measurements might not be
desirable for sediments, because detritaj selenium is what gets into the food web. Dr. Fairbrother agreed
that, in the sediments discussion session, there had been suggestions to normalize to TOC or protein. Dr.
Fairbrother emphasized that, for the AET approach, it would be crucial to consider whether the studies
used had adequate power to detect effects.
Dr. Fairbrother then asked Dr. Adams to discuss the idea of an empirical database. Dr. Adams said that
this idea was based on various papers (e.g., Skorupa and Ohlendorf, 1991; Ohlendorf and Santolo, 1994).
He said that, basically, this approach would again use information from multiple sites. Relationships
between, for example, water concentrations and levels in fish reproductive tissue could be graphed and
used to create a regression line. The strength of the regression's predictive power could be evaluated; in
addition, as with the AET approach, sites with strong site-specific influences could be identified.
Dr. Riedel asked Dr. Adams how he would modify the water-to-fish regression if it did not fit well. Dr.
Adams replied that his first step would be to remove sites like Belews Lake, in which there is not an
36
ongoing selenium discharge. Dr. Skorupa said that it should not be too hard to separate out the sites
causing the "noise" in the data, based on knowledge of site-specific factors. He expressed optimism that it
would be possible to create a good global relationship between water-column and fish-tissue selenium. Dr.
Cutter added that another factor to consider would be the amount each site is elevated above background
for its region.
Dr. Fairbrother said that the experts seemed to be contradicting their conclusions from the previous day, in
which most of them had said that water concentrations could not be used to predict fish tissue
concentrations. Dr. Adams said that part of the reason for that conclusion was that, to date, efforts to build
global models had not been very successful. Dr. Skorupa said that two different scales of analysis were
being discussed. During the water session, the experts addressed the question of what confidence they
would have in predicting fish-tissue selenium concentations from water selenium concentrations. He said
that that was a different question from the current issue, which was looking globally at relationships
between water and fish and trying to identify sites that are over or under the regression line. Dr. Cutter
agreed. Dr. Adams said that, even if tissue levels are considered to have the best predictive power of
effects, they still must be related back to water concentrations, or the tissue-based approach leads only to
site-specific assessments for every site. Dr. Fan added that picking apart the variables that make some sites
deviate from the global relationship would lead to a better understanding of the relationship between tissue
concentrations and water concentrations.
Dr. Fairbrother commented that what the two approaches under discussion would mainly show is which
sites need site-specific studies. Dr. Riedel asked whether a "site-specific study" means anything beyond
analyzing selenium in the discharge and the receiving body. Dr. Skonipa replied that, in his opinion, site-
specific analysis usually boils down to developing rigorous effects data to assess whether effects are
occurring at a particular site.
Analytical Methods:
Dr. Cutter presented the following remarks:
The Chemical Forms of Selenium in Natural Waters
DISSOLVED
Se(VI) Selenate (SeO/")
Se(IV) Selenite (HSeO/ + SeCV')
Se(0) Elemental selenium (insoluble, but may be colloidal and pass through a 0.4 urn filter)
Se(-II) Selenide, primarily in the form of organic selenides such as seleno- amino acids (e.g.,
seleno-methionine, CH3Se(CH2)2CH(NH3)CO2H) in dissolved peptides, and dimethyl
selenide ((CH3)zSe))
PARTICULATE
Se (IV+VI) Adsorbed to mineral or biogenic phases
Se(VI) Selenate esters in membranes
Se(0) Elemental Se precipitated from water column or produced in sediments
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Se(OMI) Metal selenides (pyrite-like compounds)
Se(-II) Organic selenides (primarily seleno- amino acids in proteins)
Factors to Consider for Selecting Appropriate Analytical Methods for Determining Selenium in
Natural Waters
1. Accuracy. For obvious reasons, systematic errors must be eliminated. Standard additions method of
calibration should be used and appropriate (i.e., same matrix type) standard reference materials should
be analyzed (although only limited speciation data for these are available).
2. Precision. The analytical precision must be much less than the environmental variability in order to
discern it.
3. Low detection limits. Natural concentrations of dissolved selenium can be as low as 2 ng Se/L,
necessitating low detection limits. In this respect, for determining loadings, etc. a lack of data (i.e.,
below detection limits) should be avoided. Moreover, low detection limits allow potential interferences
to be minimized via dilution. As a general rule, the detection limits should be approximately lOx lower
than the expected concentrations.
4. Ability to determine dissolved and particulate speciation. The speciation of selenium in both the
dissolved and particulate phases has been shown to affect its bioavailability and/or toxicity.
Analytical Techniques for Selenium Determinations in Natural Waters
Method
SHG AAS
SHO
ICP-MS
Deriv.-
fluoritnetry
Deriv.-
GC
1C
IC-ICP-MS
Speciation
Dissolved
yes
yes
yes
yes
yes
yes
Particulate
yes
yes
no
no
no
no
Interferences
few
few
many
few
many
many
Detection
Limit
2 pptr
<2 pptr
5 pptr
5 pptr
Ippb
<2 pptr
Relative
Cost
$
$$$$
$
a>
$
$$$$
SHG = selective hydride generation
AAS = atomic absorption spectrometry
ICP = inductively coupled plasma
What can we do now?
38
Dissolved: IV, IV + VI, total, selected or operationally defined organics
VI = (IV + VI) - IV
organic Se (-II) = Total - (IV + VI)
Particulate: IV, IV + VI, total, Se(0), pyrite-Se
organic Se (-II) = Total - (IV + VI) - Se(0) - pyrite-Se
Organic Se: The big problem. HPLC, etc. require knowledge about specific compounds. Can get at
specific compounds or compound classes. For example: Copper-chelex gets primary amine Se;
cation resin gets the selenonium cation.
Dr. Fan pointed out that the cost of disposal has to be factored into the cost of analysis using selective
hydride generation, because a very acidic waste is generated for which disposal can be expensive. She
added that her laboratory has had problems with their nebulizer becoming clogged. Dr. Cutter replied mat
a nebulizer is not necessary for his AA-hydride method.
Dr. Fan noted that selenonium can be analyzed for by spiking whole water with base and analyzing the
resulting head space. She asked Dr. Cutter if he had tried using the copper chelex method to analyze for
seleno-methionine in sediments, and he replied that he had not. Dr. Riedel said mat his group, after dosing
algae with selenium-75, had detected small amounts of free seleno-methionine in water (in the parts per
trillion range) using copper chelex. Dr. Skorapa asked Dr. Cutter to comment on neutron activation. Dr.
Cutter replied that this method does not do speciation and that special attention must be paid to sample
preparation.
Dr. Cutter presented further remarks:
Water-Column Sampling
Sample
--> 0.4 um filter (immediate)
--> "dissolved" (pH <2 with HC1, borosilicate glass)
—> suspended particles (freeze; dry at low ternp)
Why? Dissolved and participate represent different "pools" available to different parts of food web.
Sediment Sampling
Box core (or equivalent)
—> "squeeze" and filter
--> dissolved
••> particulate (dry at low temp)
Why? Dissolved and particulate availability; fluxes; selenium changes with depth; preserve flocculent
matter at surface.
References for sediment sampling: Bender et at, 1987; Blomqvist, 1985; Blomqvist, 1991; Jahnke,
1988; Zhang et al, 1998.
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For determination of selenium in sediments, Dr. Fan brought up benchtop x-ray fluorescence spectrometry.
She said that it has the advantage of not requiring digestion, which minimizes sample handling and thus the
potential for technician error. Dr. Cutter replied that the detection limits for this method are very high. Dr.
Fan agreed, saying they are currently around 2 ppm, but she said the method could be useful for more
highly contaminated sediments. She added that this technique determines other metals at the same time,
which can be useful for looking at interactions. Dr. Cutter replied that it is an expensive instrument. Dr.
Fan responded that it is not more expensive than other instruments he had referred to and that it results in
large savings in labor costs.
Dr. Adams commented that Dr. Cutter's chart of analytical methods was a summary of the state of the art,
rather than the methods commonly used. He said he thought a detection limit of 2 pptr was a stretch for
some of the methods and was certainly a stretch for contract laboratories. Most contract laboratories, he
added, are struggling to do a good quantitative analysis at the 2 ppb level. Dr. Riedel replied that EPA is
currently publishing and validating a method for arsenic and that the selenium method will come in time.
Dr. Cutter replied that, in his opinion, it is crucial that detection limits be ten times below the
concentrations being analyzed. He added, however, that he understands the situation faced by a contract or
utility lab analyzing large quantities of samples in short time periods. He said that, with EPR.I funding, he
had developed a methods "cookbook" currently used by many utility labs. He said that the approach he
recommends for these labs is to analyze for total selenium, making sure that their method is accurate and
precise, and to speciate a subset of samples.
Sufficiency vs. Toxicity:
Dr. Fairbrother introduced this topic by saying that selenium is a required micronutrient; the question, then,
is whether the range between sufficiency and toxicity levels is large enough that we need not worry about
sufficiency. Dr. Riedel responded that there are regions, such as places on the Canadian Shield, in which
selenium concentrations are so low (in the low pptr in the water column) that algae respond to selenium
administration. Dr. Fan added that she found that she needed to add selenium to an algal culture in her
laboratory that she had isolated from an evaporation pond. Algal growth had been diminished, but was
ameliorated when she added 10 ppb of selenium to the culture. Dr. Fairbrother pointed out that these algae
were adapted to a high-selenium environment She reiterated the question of how wide the zone between
sufficiency and toxicity is, and Dr. Riedel replied that for plants and algae it is quite wide.
For fish, Dr. Hamilton cited a study in which a selenite-spiked diet was fed to rainbow trout (Hilton et al.,
1980). The researchers determined that between 0.15 and 0.38 ug/g dry weight selenium in the diet was
the sufficiency level; they estimated that the toxicity level was about 3 ug/g. Dr. Hamilton pointed out that
this was only a ten-fold difference, which is fairly narrow. Mr. Van Derveer said that spiking with selenite
did not realistically mirror an environmental exposure.
Dr. Cutter said that, in his opinion, one would not have to worry about making a system too clean. He
pointed out that low-selenium environments would have an assemblage of species that were adapted to the
lack of selenium. Dr. Skorupa agreed; he said that, in 10 years of research, he has never found selenium
levels in a waterbird egg in the wild that were below the level of selenium sufficiency determined for
chickens.
Dr. Adams said that published papers have established a selenium requirement for daphnids in the range of
0.5 to 1 ug/L added to the algal culture that is fed to the daphnids. He also commented that European
40
researchers have started to develop sufficiency-toxicity curves for metals and said that this is interesting
because it allows one to look at the gradations of effect. He added that, in the Netherlands, water criteria
for metals are adjusted for natural background concentrations. Dr. Fairbrother then turned the discussion
to the topic of natural background.
Natural Background:
Dr. Fairbrother asked Dr. Cutter to elaborate on his assertion that 0.1 ppb is the natural background for
selenium in U.S. freshwaters. He replied that the data he based this on were presented in a chapter he
wrote on selenium in freshwater systems, which he had provided to the group (Cutter, 1989). He said that
he only included data he considered to have been produced using sound analytical methods; he
acknowledged that the western United States was not adequately represented. He also cited another
reference he provided (Cutter and San Diego-McOlone, 1990), detailing variability in selenium
concentrations over 2 years in the Sacramento and San Joaquim rivers. He added, however, that
concentrations in the San Joaquim are affected by agricultural input, and that headwater data would be
necessary to estimate natural background. Dr. Riedel said that using headwater data ignores the natural
selenium inputs that occur as one moves downstream. Dr. Fan said that researchers had addressed this
issue in the San Joaquim by looking at tracers; they determined that approximately 90% of the selenium
inputs were agricultural. Dr. Fairbrother asked if this method could be used to determine natural
background in systems with anthropogenic inputs. Dr. Fan replied that some researchers are trying to do
this, but it is not yet a proven method. Dr. Adams questioned how one defines a number for "background,"
since there is a range of values; he cited some examples of water bodies with natural selenium levels much
higher than 0.1 ppb.
Dr. Cutter turned the discussion to the natural background selenium level for U.S. freshwater sediments,
which he said is about 1 ppm. Dr. Adams agreed. Dr. Cutter said there is not much regional variation. Dr.
Skorupa said that the USOS study of surficial soils in the United States found little regional variation in
selenium soil levels. Dr. Fairbrother questioned how numbers were averaged in this study, agreeing with
Dr. Adams's comment that one must look at the distribution as well as the median. She summarized the
discussion by saying that there is still debate about natural background and that more work must done to
allow good determinations to be made of whether sites' selenium concentrations are at natural background
or elevated.
Interactions with Other Stressors:
Dr. Fairbrother raised the issue of the interaction of selenium with other stressors, asking the experts
whether they had confidence that effects seen in the empirical data set are due just to selenium. Dr. Cutter
said that he did not have confidence that this was the case, because when there is an excess of selenium,
there is often an excess of something else. Dr. Hamilton said that the literature is fairly limited on many
other elements. He cited an example from his research; in a study he did on the Green River, vanadium was
somewhat elevated and may have been a confounding factor, but he could only find one relevant study
about vanadium. Dr. Fairbrother and other experts pointed out the additional problem of extrapolating
from the laboratory to the field. Dr. Fan said that, as broad element scans are becoming easier to do, she is
hopeful that more field data will soon be available. Dr. Skorupa said that he feels there are sufficient data
establishing that effects attributed to selenium are actually caused by selenium alone. His group has done
studies in reservoirs that have a suite of pollutants excluding selenium, and they have not seen the effects
typically associated with selenium.
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Clarification Requested by EPA:
At this point, Mr. Sappington asked the experts to clarify a coup!* of issues. First, he pointed out that,
during the cross-cutting session, experts had discussed possible global approaches in relating tissue
concentrations to water concentrations; however, during the water-column issues session the day before,
experts had expressed skepticism about performing water-to-tissue correlations. He asked them to clarify
this, and also to state some of the factors that they think might make the correlation poor. He asked
whether the experts considered loading from sediments and spatio-temporal variability in the water column
to be important factors.
Dr. Fan replied that the problem might be more complex than that and cited an example of an irrigation
pond in California in which large changes in selenium load in bird eggs were observed with only a minor
dilution of waterborne selenium concentrations, for unknown reasons. Dr. Fairbrother asked the experts to
also clarify whether the form of selenium that is discharged to receiving waters changes the temporal or
magnitudinal dynamics of what happens in the food chain. Dr. Cutter replied that it does; for example, the
uptake rate of selenale is slow compared to selenite. Dr. Fairbrother said that part of the problem in trying
to establish relationships is that the systems under study are generally non-equilibrium, dynamic systems.
Dr. Adams responded to Mr. Sapping! on's original question by agreeing that both mass in the sediments
and spatio-temporal variability in the water column tre important. He added that fish behavior is also
important, including what fish feed on and where they forage.
Mr. Sappington asked whether the experts would expect tissue residue effect levels to differ between the
laboratory and the field, or whether laboratory data are in fact useful for generating effect-level
information. Dr. Hamilton replied that when he did laboratory studies, with both water-only and dietary
exposure to selenium, he found the residue effect level to be very similar between the two; in other words,
how the selenium got into the tissue did not affect the effect level. Dr. Riedel agreed that this is probably
generally true, but that there are exceptions. He pointed out that there are many unknowns in the field,
while organisms in the laboratory are kept under optimal conditions. Dr. Hamilton agreed.
Conclusions: The following summary of the entire discussion session was written by the discussion
leader and reviewed by the other experts.
/. Spatio-temporal variability
There is a large amount of variability in selenium concentrations within compartments of an ecosystem
(e.g., water, sediment, biota) across both time and space. The relationships between the compartments are
not linear, however. Water concentrations may change rapidly (within days) whereas sediment
concentrations take months or years to change, particularly in lentic systems. Fish tissue residues integrate
all compartments and theoretically may change in response to alterations in any of them although food-
chain exposures tend to dominate. Therefore, fish tissue residues also change over a period of months, and
do not reflect the faster fluctuations of water.
The major factors influencing spatio-temporal variability are water residence time and biological processing
(i.e., the type of organisms in the food web). The rate-limiting step may be the rate of conversion of
inorganic form to organic form, which is a function of the form of selenium and species of microorganisms
in the sediment.
Z Ecosystem type
Ecosystems can be divided into lentic or lotic systems. Further subdivisions include ephemeral or perennial,
highly saline, and northern (cold) streams. Differences in these systems that may lead to different responses
to similar selenium input include retention time of carbon, rate of sediment accumulation, rates of
conversion of inorganic to organic forms of selenium, and tolerance of local species. In addition, rates of
allochthonous inputs (i.e., input of selenium materials from outside the aquatic system) versus
autochthonous inputs (i.e., from within the system) differ. Most lotic systems are biologically open systems
which makes it more difficult to measure ecologically-relevant effects on fish species that may move
through the system, rather than being resident.
3. Site-specific approaches
Three approaches to site-specific assessments were proposed:
* Apparent effects threshold: This method would use existing field data to categorize systems as affected
or not affected relative to selenium concentrations in sediment or water. The sediment/water
concentration above which effects always occurred would be identified, as would the concentration
below which effects never occurred. The concentrations in-between (where effects sometimes occurred
or sometimes did not) would identify sites where a site-specific assessment would be needed.
* Fish tissue concentrations as a function of water concentrations: The empirical data from field studies
that exist in the literature would be used to develop this bioaccumulation correlation on a global basis.
Sites where measured fish tissue concentrations were different from the predicted concentrations, based
on the amount of selenium in the water, would require a site-specific approach. If fish tissue - effects
relationships are known for the species of concern, then sites could be further characterized as those
with potentially higher than predicted effects or those with potentially lower effects.
• Modeling approach: The Aquatic Toxicity Model presented by George Bowie could be used to make a
priori predictions of whether a concentration of selenium in water would result in effects to the fish.
Site-specific input parameters include selenium input (amount, rate, and species), flow rates, water
depth, and a few other hydrological parameters as well as food web species. The more site-specific
data that are used in the model, the more likely is it to accurately predict effects,
4. Analytical methods
There are several methods for analyzing selenium in water, sediment, or tissue. No one method is the best
for all media. Important considerations are desired minimum detection limits (ideally, should be ten-fold
lower than the concentrations of interest), sample preparation requirements, and laboratory capabilities.
Cost may be a factor as well. While methods are available that can achieve very low detection limits, many
(if not most) contract laboratories are not set up to conduct these methods with appropriate accuracy or
precision.
In addition to analytical methodology, appropriate sample collection and storage are required. Water
samples should be acidified (with HC1) and kept cool; solid matrices should be kept frozen. Selenium may
volatilize when a sample is heated and provide an incorrectly low value. Box core samplers are preferred
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for sediment sampling as they preserve the depth structure of the sediment, allowing measurements to be
made on the upper flocculent (organic) material versus the lower inorganic portions.
5. Sufficiency versus toxicity
Since selenium is a required micronutrient for both plants and animals, there is an exposure concentration
below which insufficiency effects are seen and a different concentration above which toxicity occurs. The
area in-between is the Optimal Effects Concentration. For algae, there is a wide sufficiency zone and the
required amount may differ depending on the amount of selenium in the system from which the test colony
was derived (due to adaptation to a higher selenium environment). Fish have at least a ten-fold difference
between required and toxic amounts. In general, there does not appear to be any naturally deficient
systems, with the exception of some lakes in the Laurentian Shield area in Canada that may be deficient for
algae. Furthermore, on a practical basis, it does not appear that source reduction of site remediation would
result in systems with insufficient selenium concentrations. However, this issue may be important in
laboratory studies where appropriate minimum concentrations of selenium must be provided to maintain
colonies of test species.
6. Natural background
On the national level, the median background concentration of selenium in aquatic systems is about 0,1
ug/L. However, there is disagreement about this value and about the variability and range of natural
background concentrations. Areas of highly seleniferous soils in the western U.S. may have naturally
higher background concentrations either through movement of soils into waterbodies or into groundwater.
Methods are being developed for differentiating between natural and anthropogenic inputs of selenium into
an aquatic system, but there remains a great deal of uncertainty in the follow-on calculation of what a •
resulting natural background concentration would be.
7. Interactions with other stressors
Selenium has the potential to interact with other metals, causing either greater or lesser responses than
predicted from selenium alone. Furthermore, exposure to selenium may reduce an organisms' ability to
respond to other environmental stresses, such as has been shown for fish similar to those found in Belews
Lake that were exposed to cold temperatures during laboratory studies (Lemly, 1993c, 1996). These types
of interactions might confound the global empirical dataset relating effects to selenium concentrations in
water, sediment, or food. Examples where this may have occurred include interactions between vanadium
and selenium in a field study offish reproduction. On the other hand, another study showed that effects
were correlated only with the selenium concentration in the food, and that additional elements had no
discernible effects. The endpoint of interest also may affect the potential for interactive effects to occur.
IV. OBSERVER COMMENTS
At the end of each day of the meeting, Dr. Fairbrother opened the floor to comments from observers.
These comments are summarized below. In addition, observer presentation materials may be found in
Appendix P.
Peter Chapman. EVS Consultants
This observer (speaking on the first day of the meeting) noted that discussions to date had mostly focused
on standing-water systems. In contrast, his interest is flowing cold-water streams, particularly in Alaska
and southeast British Columbia, with inputs of selenium from hard-rock mining and coal mining. He
pointed out that these systems are quite different in many aspects from the systems under discussion by the
experts. To date, his group's studies have found no adverse effects in streams in British Columbia with
concentrations of selenium as high as 65 ug/L. He urged the experts and EPA to consider three key points:
• Flowing-water systems are very different from standing-water systems; much higher concentrations
can be tolerated without adverse effects.
* Site-specific factors are incredibly important.
« Not all waters or biota require the same level of protection.
Philip Porn. Shell Development Company
This observer questioned the need for a revision of the national freshwater chronic water quality criterion
for selenium. He argued that no compelling field effects have been demonstrated in waters with selenium
levels below the existing 5 ug/L chronic criterion. In addition, analytical methods for compliance testing
are limited below 10 ug/L. Finally, there is large uncertainty in making correlations at the national scale
between water-column selenium concentrations, selenium concentrations in the food chain, and selenium
concentrations in bird eggs. He urged EPA to move toward developing site-specific residue- or effects-
based criteria. He also noted that the cost per pound to remove selenium from discharge is quite high and
that the removal process generates a large volume of sludge which must be disposed of. He asked EPA to
ensure that future regulations are developed upon fact-based science.
Rob Reash. American Electric Power
This observer made comments on behalf of the Utility Water Act Group (UWAG), an association of
electric utility companies and trade associations. UWAG is interested in EPA's revaluation of the
freshwater chronic aquatic life criterion for selenium because selenium is a natural trace element in coal and
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many of UWAG's members use coal as the primary fuel for electrical generation. The observer said thrt
UWAG views a universal numeric chronic criterion for selenium as inappropriate. He urged EPA to
consider the following issues:
Stratification by waterbody type;
Accurate accounting of site-specific factors affecting selenium toxicity; and
Development of site-specific criteria technical guidance.
In addition, he offered the opinion that fish liver is a good tissue in which to measure residues if ovaries are
unavailable; in his work, he has found that fish liver tissue mirrors water-column selenium concentrations.
Wilier Kuit. Cominco. Ltd.
Speaking on behalf of Cominco Alaska, this observer said that selenium is a key issue at his company's Red
Dog Mine in northern Alaska. An impending NPDES permit wilt lower the mine's selenium discharge limit
to a level that the company ctnnot meet. He said that flowing streams should be considered separately
from standing water and urged EPA to move quickly in developing site-specific guidance. He also asked
EPA to provide preliminary guidance on possible changes in sampling procedures (e.g., implementation of
fish ovary sampling), so that affected parties can start gathering relevant data as soon as possible.
tohn Ctoodrich-ManotKy, EPRI Environment Division
This observer said that EPRI will be coming out with their Selenium Aquatic Toxicity Model this fall. He
invited experts and observers to be beta testers for the model. He can be contacted at
. He added that EPRI encourages EPA to develop site-specific guidance and is
willing to offer any assistance it can.
fadith Schofield. DvnCorp
This observer stated that DynCorp has been providing support to EPA in the development of 1600-series
analytical methods; she updated the attendees on the status of the two methods that apply to selenium.
EPA Draft Method 1638 is an 1CP-MS method with an estimated detection limit of 0.45 ug/L. EPA Draft
Method 1639 is a gas furnace-AA method with an estimated detection limit of 0.3 ug/L. The methods and
their detection limits will be tested in upcoming interlaboratory validation studies. Formal proposal of the
methods will probably occur in early 1999. She added that EPA is also working on a streamlining rule,
which is a performance-based measurement system approach to analytical methods.
William Wright Montgomery Wateon
This observer, an ecologist, is managing the Southeast Idaho Phosphate Resource Area Selenium Project.
This project involves the evaluation of a 1,200-square-mile area containing 14 mines, where selenium is
leaching from interburden waste shales. Receiving waters are typically intermittent tributaries of montane
trout streams and are generally sulfate rich, Sampling to date has found water-column concentrations of
selenium ranging from below detection limits to 2,000 ppb. Ninety percent of the selenium is in the
selenate form. His group does not have definitive results yet, but has seen no adverse effects so far.
Healthy populations have been found in areas with high concentrations of selenium. He echoed Peter
Chapman's comments, saying that site-specificity is important, and beneficial use should be taken into
account.
Chris Stanford. JD Consulting
This observer expressed the opinion that we have a long way to go in regard to quantifying the behavior
and effects of selenium in the environment. He added that although revising the chronic criterion is a good
goal, we do not yet have enough information to be able to develop a new nationwide criterion that is a
definite improvement over the existing one. The solution to this in the short term, he said, is to develop
site-specific standards, including guidance on sampling and data analysis and interpretations. In addition,
he asked EPA to establish standards that can serve as guidance to contract laboratories.
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V. REFERENCES
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Cumbie, P.M. and S.L. Van Horn. 1978. Selenium accumulation associated with fish mortality and
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Cutter, G.A. 1989. Freshwater systems. In M. Ihnat, ed., Occurrence and Distribution of Selenium. CRC
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Cutter, G.A. 1991. Selenium Biochemistry in Reservoirs. Volume 1: Time Series and Mass Balance
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Alto, CA.
Cutter, G.A, and LS. Cutter. 1998, Metalloids in the high latitude North Atlantic: sources and internal
cycling. Mar. Chem. 61:25-36.
Cutter, G.A, and M.L.C. San Diego-McGlone. 1990. Temporal variability of selenium fluxes in the San
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Engberg, R.A. 1998. Selenium budgets for lake Powell and the upper Colorado River basin. J. Amer.
Water Res. Assoc, (in review).
Fan, T.W.-M., R.M. Higashi, and A.N, Lane. 1998. Biotransformations of selenium oxyanion by
filamentous cyanophyte-dominated mat cultured from agricultural drainage waters. Environ. Sci.
Technol., in press.
Fan, T.W.-M., A.N. Lane, D. Martens, and R.M. Higashi. 1998. Synthesis and structure characterization
of selenium metabolites. Analyst l"23:S7S-HS4.
Frankenberger, W.T. and U. Karlson. 1994. Microbial volatilization of selenium from soils and sediments.
In W.T. Frankenberger and S. Benson, eds., Selenium In the Environment. Marcel Dekker, New
York, pp. 369-387.
Gillespie, R.B. and P.C. Baumann. 1986. Effects of high tissue concentrations of selenium on
reproduction by bluegills. Trans. Am. Fish. Soc. 115:208-213.
Gobler, C.J., D.A. Hutchins, N.S. Fisher, E.M. Cosper, and S.A. Sanudo-Wilhelmy. 1997. Release and
bioavajlability of C, N, P, Se, and Fe following viral lysis of marine ehrysophyte. Limnol.
Oceanogr. 42:1492-1504.
Hamilton, S J., K.J. Buhl, F.A. Bullard, and S.F. McDonald. 1996. Evaluation of toxicity to larval
razorback suckers of selenium-laden food organisms from Ouray NWR on the Green River, Utah.
Final Report. Colorado River Recovery Implementation Program, Denver, CO. 79 pp.
Hansen, D., P.J, Duda, A. Zayed, and N. Terry. 1998. Selenium removal by constructed wetlands: Role of
biological volatilization. Environ. Sci. Technol. 32:591-597.
Hilton, J.W., P.V. Hodson, and S J. Slinger. 1980. The requirement and toxicity of selenium in rainbow
trout (Salmo gairdneri). J. Nutri. 110:2527-2535.
Holland, E. A, 1979. Arsenic and selenium in the water, sediments, and biota near a coal-fired power
plant — BeJews Lake, North Carolina. M.S. Thesis, School of Public Health, Department of
Environmental Sciences and Engineering, University of North Carolina, Chapel Hill, NC.
Jahnke, R.A. 1988. A simple, reliable, and inexpensive pore-water sampler. Limnol Oceanogr. 33:483-
487.
Karlson, U. and W.T. Frankenberger, Jr. 1990. Volatilization of selenium from agricultural evaporation
pond sediments. ScL Total Environ. 92:41-54,
Kroll, K J. and S.I. Doroshov. 1991. Vitellogenin: Potential vehicle for selenium bioaccumulation in
oocytes of the white sturgeon (Acipenser trammontanus). In P. Wtlliot, ed., Acipenser, Cemagref
Publishers, pp. 99-106.
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Kumar, H.D. and O. Prakash. 1971. Toxicity of selenium to the blue-green algae, Anacystis nidulans end
Anabaena variables. Ann. Sot. (Land.) 35:687-703.
Lemly, A,D. 1982. Response of juvenile centrarchids to sublethal concentrations of waterborne selenium.
1. Uptake, tissue distribution, and retention. Aquat. Tmlcol. 2:235-252.
Lemly, A.D. 1985. Toxicology of selenium in a freshwater reservoir: Indications for environmental
hazard evaluation and safety. Ecotoxtcol Environ. Saf. 10:314-338,
LemlVj A.D. 1993a. Teratogenic effects of selenium in natural populations of freshwater fish. Ecotoxtcol.
Environ. Saf. 26:181-204.
Lemly, A.D. 1993b. Guidelines for evaluating selenium data from aquatic monitoring and assessment
studies. Environmental Monitoring and Assessment 28:83-100.
Lemly, A.D. 1993c. Metabolic stress during winter increases me toxicity of selenium to fish. Aquat.
Toxicol. 27:133-158.
Lemly. A.D. 1996. Winter Stress Syndrome: An important consideration for hazard assessment of aquatic
pollutants. Ecotoxtcol. Environ. Saf. 34:223-227.
Lemly, A.D. 1997. Ecosystem recovery following selenium contamination in a freshwater reservoir.
Ecotoxtcol. Environ. Saf. 36:275-28.
Luoma, S.N., C. Johns, N.S. Fisher, N.S. Steinberg, R.S. Oremlans, and J.R. Reinfelder. 1992.
Determination of selenium bioavailability to a benthic bivalve from particulate and solute pathways.
Environ. Set. Technol 26:485-491.
Maier, K.J., C.R. Nelson, F.C. Bailey, S.J. Klaine, and A.W. Knight. 1998. Accumulation of selenium by
the aquatic biota of a watershed treated with seleniferous fertilizer. Bull. Environ. Contain.
Toxicol. 60:409-416.
Moede, A., R..W. Greene, and D.F. Spencer. 1980. Effects of selenium on the growth and phosphorus
uptake of Scetiedesmits dimorphm and Anabaena cylindrtca. Environ. Exp. Bat, 20:207-212.
Munwar, M., I.F. Munwar, P.E. Ross, and C.I. Mayfield, 1987. Differential sensitivity of natural
phytoplaflkton size assemblages to metal mixture toxicity. Ergeb. Lltnnol. 25:123-139.
Ohlendorf, H.M. and G.M, Santolo. 1994. Kesterson Reservoir — past, present, and future: an ecological
risk assessment. In W.T. Frankenberger and S, Benson, eds., Selenium in the Environment.
Marcel Dekker, New York, pp. 69-118.
Radtke, D.B, W.G. Kepner, and RJ, Effertz. 1988. Reconnaissance investigation of water quality, bottom
sediment, and biota associated with irrigation drainage in the lower Colorado River Valley, Arizona,
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Geological Survey, Tucson, Arizona,
Riedel, G.F. and J. G. Sanders. 1996. The influence of pH and media composition on the uptake of
inorganic selenium by Chlamydomonas reuthardiii. Environ. Toxicol. Chetn. 15:1577-1583.
Riedel, G.F., J.G. Sanders, and C.C. Gilmour. 1996. Uptake, transformation and impact of selenium in
freshwater phytoplankton and bacterioplankton communities. Aquat. Microbiol. Ecol. 11:43-51.
Saiki, M.K., MR. Jennings, and W.G. Brumbaugh. 1993. Boron, molybdenum, and selenium in aquatic
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Saiki, M.K. and T.P. Lowe. 1987. Selenium in aquatic organisms from subsurface agricultural drainage
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Sanders, J.G., R.P. Gallagher, C.C. Gilmour, R.W. Osman, and G.F. Riedel. 1989. Selenium Cycling and
Impact in Aquatic Systems. Annual Progress Report for 1989, Prepared for Electric Power
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Schroeder, R.A., D.U. Palawski, and J.P. Skorupa, 1988. Reconnaissance investigation of water quality,
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examples. In W.T. Frankenberger and R.A. Engberg, eds., Environmental Chemistry of Selenium.
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Skorupa, J.P. and H.M. Qhlendorf. 1991. Contaminants in drainage water and avian risk thresholds. In A.
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Sorensen, E.M.B., P.M. Cunibie, T.L. Bauer, J.S. Bell, and C.W. Harlan. 1984. Histopatiological,
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Velinsky, D.J. and G. A Cutter. 1991. Geochemistry and selenium in a coastal salt marsh. Geochltn.
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Woock, S.E., W.R. Garrett, W.E. Partin, and W.T. Bryson. 1987. Decreased survival and teratogenesis
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Craig Breon, Santa Clara Valley Audubon Society
Zhang, Y., and J,N. Moore. 1996, Selenium flmctionation and speciation in a wetland system. Environ.
Sri Technol. 30:2613-2619.
Zhang, Y. and IN, Moore. 1997. Environmental conditions controlling selenium volatilization from a
wetland system. Environ. Set. Technol, 31:511-517.
Mr.JoJmfi>inii
US.Eiivte»m«»ta .
1650 Aril Street, WWelpKa, PA 18103
.
n lo destroy tie Appsbchia region wilhmljLig paces *s levdffrac? vs tfce te af »tifcy Sl« that tarysteaiss ,oar
givinj us an opporttmity to voice cur views on this impomntisai;.
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Michael Carey, Ohio Coal Association
January 6, 2004
Mr. John Forreri
U.S. KPA (3KA3Q)
1650 Jacob Sum
Philadelphia. PA 19103
RE:
Ohio Coal Association Comments on the Mountaintop Mining/Valley Fill
Draft Environmental Impact Statement
Dear Mr. Forrcn:
The Ohio Coal Association joined with tire National Mining Association (NMA) and
other state coal associations from Kentucky, West Virginia and Virginia in the delivery of
joint comments on the Draft Programmatic Environmental Impact Statement (PEIS)
addressing mountaintop mining and valley fills (MTM/VF) in the steep slope
Appalachian coal fields. The Ohio Coal Association fully supports those comments.
The Ohio Coal Association is a non-profit trade association that is dedicated to
representing Ohio's underground and surface coal mining production. The Association
represents close to forty coal producing companies and over fifty Associate Members,
which include suppliers and consultants to the mining industry, coal sales agents and
brokers and allied industries. As a united front, the Ohio Coal Association is committed
to advancing the development and utilization of Ohio coal as an abundant, economic and
environmentally sound energy source.
A common thread among the state industry groups joining in the above noted comments
is the fact that all conduct coal mining operations within the Himlmgton District of the
Corps of Engineers.
However, there are also some major differences between coal operations within the PEIS
study area and coal operations in the Slate of Ohio. In addition to the joint comments
filed by the National Mining Association on behalf of the Ohio Coal Association the
Association wishes to address the following specific concerns regarding the PEfS:
* Applicability of PEIS to mining activities not involving MTM/VF outside of the
study area
The Study Area established for the PEIS was based upon where MTM/VP activities were
located in the past and where MTM/VF activities were anticipated in the Mure. Ohio
wits not included in the Study Area, and impacts of Ohio coal mining activities were not
specifically studied as part of the PEIS. One exception however was a single study on
the recovery of reclaimed streams in central Ohio, which was included as supplemental
material. As noted, mis study did not involve valley fills. The research was conducted
years ago by the Office of Surface Mining and provided positive results.
There was an attempt in the document to outline assumptions that would provide some
correlation of MTM/VF activities in the study area to other mining activities in other
areas, but these explanations fell short of acceptable. No justification can be found for
expanding findings beyond the study area, or for adequately addressing impacts other
than those associated with mountaintop mining and associated valley fills. The document
should be modified to clarify that findings and recommended alternatives are not lo apply
to mining activities outside of the study area that do not involve valley fills.
• Authority for the Corps* new "no net loss of stream function*' policy
There is no explanation and no justifiable authority found for the recent shift in Corps*
policy to require no net loss of stream length and function, and yet the contents of this
PEIS seem to be based almost entirely on this policy. There is even a statement to the
document that claims that the goals of the CWA cannot be accomplished unless stream
function is addressed (page 1-4), The document should be expanded to clarify this
statement.
Everyone is aware of the no net loss of wetland policy that was officially expanded to
include no net loss of wetland functions. However, recent activities within the Corps
have now resulted in a no net loss of stream function and there is no clear indication as lo
how this became official national policy. The Ohio Coal Association can find no official
document mandating the use of this policy. Only that it is now policy.
While wetland functions are etsily identifiable and understood, this is not the case for
streams. In addition, the use of biological protocols to assess the range of stream
functions is inappropriate, especially in the case of ephemeral streams and the upper
reaches of intermittent streams. The US EPA went through an educational process on
wetland functions and provided opportunities for public input prior to implementing the
policy change from no net loss of wetlands to no net loss of wetland functions. This was
not the case for the stream policy now being imposed by the Corps.
• Use of a headwaters category
The use of a "headwaters" category artificially increases the value of the majority of
streams included in that category, namely 1 *', 2— and 3"1 order streams, or ephemeral
streams and upper reaches of intermittent streams. Through the use of the headwaters
category an ephemeral stream will have the same value as perennial streams within the
watershed because all would be considered as headwater streams. This then exaggerates
the mitigation requirements to be imposed by die regulatory agency. The PEIS should
retain the descriptions of ephemeral, intermittent and perennial for stream categorization.
« Watershed approach to mitigation
The Corps is proposing to consider watershed needs when imposing mitigation
requirements. The Ohio Coal Association agrees with this approach. However, the
Corps should also determine impacts of a proposed activity on a watershed basis and not
1-13
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5-7-4
5-6-3
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Greg Conrad, Interstate Mining Compact Commission
on a stream by stream basis. As an eKample, impacts to an individual ephemeral stream
will appear significant when considering only the impacts to that individual stream.
However, when you consider the impacts to that ephemeral stream relative to the
watershed and downstream functions, the temporary loss of that ephemeral stream wiil he
minimal at most. The Corps should make the necessary changes to reflect this more
reasonable approach.
The Ohio Coal Association appreciates the opportunity to become involved in this
process.
Sincerely,
Michael T,W. Carey
President
5-6-3
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: www.iracc.tsa.as E-Mail: geoatad^lffieeJsMis or bbolste@lmoe.isa.us
JtnusryJ, 2004
John Forrea
U.S. finvfajntseatsil Protection Ageaey
3BS30
1650 Areh Street
Philadelphia, PA 19103
Dew Mr. Foma:
This letter constitutes the comments of the Interstate Mining Compact
Commission 0MCC) r«gwdtog the draft prografamafe environmental impact
statement on m ountaintop mining-Valley fills in Appriadiia. IMCC it a multi-state
governmental organization representing 20 mineral-producing Mates throughoui the
U.S., 15 of wMoh operate federally approved regulatory pjrogrtiw pursuant to the
SurfeceMffimg Control andRtdsunation Act of 1977 and most of which operate
state programs/plans pursuant to the Clean Water Act IMCC has participated at
various times throughout the development of the draft BIS and in the preparation and
review of the various technical studies that accompany and serve as die basis for the
BIS. However, for the most part, MGC has relied upon the expertise and •input of
the three primary states that have been' tie fceu of the draft BIS,-ie. West Virginia,
Kentucky and Virjgnk to fe regard MCC'eidorsestte'comnatts of the •
Commonwealth of Virginia that have been submitted on the draft BIS.
One of oar primary concerns from the outset has been the development gad
identification of the appropriate alternatives that fttme the basis of the draft BIS.
Although the authors h»ve come dossr to the mark fc flw final draft, we still beBeve
thai the "no action" alternative (which is our prefen ed alternative) doe» not
accurately reflect the teaHtte* of today's rsguhtoiy program to this regard, we echo
the comments of Virginia that the no action alternative should be recharacterized as
an option that would continue the existing SMCRA, EPA and Corps of Engineers
regulatory programs, induding past and ongoing amendments to those progiams We
have 8MB a plethora of changes over the past several months in all three regulatory
programs, mtsy of which sire being considered for adoption by the states, that reflect
the ever-changing regulatory Landscape associated with mfuntaiBtop mining and
valley fills: It is essential that all three federal agencies continue to work ' . .••'• •
cooperative^ together; along with tfee states, to BBure-the.implisnetation of "• • ' '
' "'
effectively protect the environment whfle maintaining and assuring an adequate supply
of coat, our Nation's most abundant *ergy resource. '.:'.•' : ••'"'
1-1
1-13
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Section A - Organizations
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Kent DesRocher, West Virginia Coal Association
We ate also concerned that the draft EIS, and its various recommendations, will have
impacts and repercussions far beyond Appalachia. MCC has articulated this -view from the outset
ami our review of tie draft BIS fas heightened ow ametsm. White EPA, OSM and
-------
lack of transportation and developable acreage for many years. The
transportation routes are improving with the upgrading of US 119
(Corridor G) and Interstate 77 (West Virginia Turnpike) coupled with
Interstate 64 and 79. The development of the King Coal Highway and
the Coal Fields Expressway will further increase development
opportunities.
The mountainous terrain of the fourteen counties has also slowed growth
in the area. Industrial, commercial and housing sites have been at a
premium. The development of flat to gently rolling sites will assist in the
growth and stability of ttie aret.
Charles Yuill of West Virginia University lists six provisions for new
land uses and land use opportunities.
1. Mr, Yuill indicates "most potential future mountaintop mining areas
will be reclaimed to various forest cover". The current rates relating
to commercial forestry must be reviewed to allow for the highest yield
practical, lite rules mast be reviewed with regpect to compaction;
competition, and composition of soils. Recent studies would indicate
that the best method hag not yet been proposed to provide the best
opportunities for commercial forestry.
10-3-5
2. Much discussion has occurred over the past several years regarding
tbSfllWSf'post mine land use for agriculture such as vineyards, animal
production; green house farming and aquacutare. Most of the sites
where agriculture has been proposed wiD not occupy the entire site
and approval of multiple uses will be required. For example, let's say
the primary post mine land use is a vineyard, which would occupy
fifty percent of the property. Bnt since this is an agricultural project
which is a higher and better use, the remaining portion of the property
must be allowed to be developed into support areas, pasture lands or
habitat which would not compete with primary higher use. Rules
development must keep these issues in mind.
3. The study projects that "significant acreages of land suitable for
developed post-mining land uses will result from future mining under
all of the mining scenarios." The only way thftt die fourteen counties
can significantly change the economy of the area is the development
of large sites capable of supporting multiple uses. Mining scenarios
f *y
that produce acres of flat to gently rolling land areas can provide the
opportunity to diversify and improve the economy of southern West
Virginia.
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MTM/VF Draft PE1S Public Comment Compendium
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Section A - Organizations
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4, Mr. Yull is correct when he states ttiat "Development linatttions such
as poor accessibility and infrastructure proximity will continue in
nearly all of these areas." These issues will require the development
agencies and en vironmental agencies to think out of the tot. Such
issues as the use of mitigation payments for water and sewer projects
should be considered if there is a desire by the involved parties to
redevelop and diversify the area. Smaller sites, less than 50 acres,
will do little to diversify the economy of the 14 counties.
5. The environmental regulatory agencies raust work closely with
planning and development agencies when considering post mine land
use. Here again, in order to allow for diversity and stabilization of the
economy, regulatory agencies must think outside the box. Higher and
better use must be site specific based upon tnany items normally
associated in planning documents.
6, If we want the fourteen counties discussed in the study to diversify
their economy, they must be Allowed to create lands suitable for
development The sites must be of sufficient size tflBW to make it
worthwhile to provide the necessary infrastructure required for
development.
10-3-5
With the advent of a responsible Environmental Impact Statement and a
desire by the federal and state regulatory agencies to provide for
affordable energy while providing sites for future economic
transformation in the fourteen counties, we can provide a positive
outcome for the citizens of the area.
In summary, large-scale surface mining can help support the
development of infrastructure, access, and sites necessary for future
development to allow for diversification of the economy in southern
West Virginia.
Thank yon for your time today.
Kent R. DesRocher
281 Ridgeview Terrace
Chapmtnvilte, WV 25508
7/22/03
10-3-5
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Randy Dettmers, Partners in Flight
Partners in Flight
Northeast Working Group
John Forren
U.S. BPA (3KA30)
650 Arch Street
Philadelphia, PA 19103
Dear Mr. Forren:
Please accept the following comments in review of the Draft HIS on moumaintop coal mining
and associated valley fills in West Virginia, Kentucky, Tennessee, and Virginia. These
comments reflect discussions among members of the Northeast Working Group of Partners in
Flight (P1F) regarding the likely impacts of moumaintop mining activities on the full suite of
priority birds associated with mature deciduous forests, including populations of Cerulean
Warblers, as well as a summary of laodbird conservation priorities for the geographic area under
consideration for ihc DEIS. A brief summary statement is presented below, with a mote detailed
discussion in the attached pages. These comments represent a synthesis of information gained
from published literature, bird conservation plans developed by PIF, an extensive Cerulean
Warbler Atlas Project conducted from 1997-2(XM). and discussions with colleagues. Figures
from the Draft FJS on cumulative impacts of this mining activity in the study area suggest a
massive and permanent impact within the FJS study area on the entire suite of priority mature
forest birds (e.g.. Cerulean Warbler, Louisiana Waterthrush, Worm-eating Warbler. Kentucky
Warbler. Wood Thrush, Yellow-throated Vireo, Acadian Flycatcher) due to the estimated forest
loss of approximately 760,01)0 acres from issued and future permits during the 20-year period of
1992 to 2012. Total cumulative forest loss from all mining activities, including permitted
activities prior to 1992, is estimated at 11.5% of the total forest cover in the F.fS study area. We
consider this level of habitat loss to constitute a significant negative impact for the entire mature
forest suite of birds, and especially for the Cerulean Warbler, the forest species of highest
concern m this area. The cumulative impacts from issued and proposed future mountaintop
mine/valley fill permits during this period appear likely to eliminate breeding habitat for 10^-
20% (our estimate is 17^) of the global population of Cerulean Warblers. This level of habitat
loss is unacceptable for a species that has experienced steep population declines over the last 30
years and is facing other major threats. Furthermore, research within the BIS study area shows
that densities of Cerulean Warblers are reduced in isolated forest patches left by mining and near
mine edges, indicating an even greater impact beyond the direct habitat kws from mining
activities. According to PtF bird conservation plans, mature forest birds are a high conservation
priority within the FJS study area, whereas grassland birds are not. In addition, the creation of
poor quality, early-succe.ssional habitats that may be suitable for some shrub nesting species does
not justify, or in any way compensate, the removal and fragmentation of extensive mature forest
areas within the HIS study area. We encourage every effort to minimi?!1 the removal and
fragmentation of existing mature forest habitat in the HIS study area.
Sincerely,
Randy Deltmers, Chair
Northeast Working Group of Partners in Flight
300 Westgmtc Center Drive
Hadley, MA 01035
8-1-2
94-2
7-3-3
Northeast Partners in Flight comments for mountaintop mining DlilS 2
Impacts of Mining Activities tm Mature Forest Birds. The moumaintop removal mining/valley
filling practices addressed by tin.' BIS occur throughout what can bu considered the core of the
breeding range for many of the I'D' high priority birds of eastern mature deciduous forests.
including Cerulean Warbler. Louisiana Waterthrush, Worm-eating Warbler, Wood Thrush,
Yellow-throated Vireo, and Acadian Flycatcher. According to Breeding Bird Survey (BBS)
data, all of the species just mentioned occur at or near their peak abundances within the FJS
study area, which largely overlaps with the Northern Cumberland Plateau physiographic area as
delineated by PIF. Numerous other species of this habitat suite also occur in high relative
abundances within this area, including Kentucky Warbler, liasicrn Wood-Pewee. Ovenbird, and
Scarlet Tanager, The mining and valley fill activities addressed by the HIS directly affect several
of the primary habitats used by these species - mature deciduous forest on Appalachian ridge
tops (used by Cerulean Warbler, Yellow-throated Warbler, Eastern Wood-Pewee. Scarlet
Tanager, Ovenbird, Wood Thrush), and mature mixed-me'sophylic forest along headwater
streams ("coves" - used by Cerulean Warblers, Louisiana Waterthrush, Worm-eating Warbler.
Kentucky Warbler. Acadian Flycatcher, Wood Thrush). Preliminary figures from the FJS on
cumulative impacts of mining activities in the study area suggest a massive and permanent
impact on the mature forest suite of birds within the study are due to the estimated forest loss of
approximately 760,000 acres from issued and future permits during the 20-year period of 1992 to
2012. An additional 648,000 forested acres appe'ars to have been lost from permitted mining
activities prior to 1992.
The total cumulative forest loss from mining activities equates to an 11.5% reduction in total
forest cover in the study area. Removing > 10*^ of the forest cover from a region is likely to
have negative impacts on mature forest birds, even in well-forested landscapes. As overall forest
cover drops in a region, negative impacts to forest breeding birds from fragmentation and edge
effects wilt become more severe. Work by O'Conntl) et al. (2000) across the Mid-Atlantic
Highlands region, which includes a large part of the EIS study area, suggests that as landscapes
fall below a threshold of about 82% forest cover, the ecological integrity of the forest community
becomes increasingly compromised Removing almost 12% of the forest from the BIS study
area through mining activities alone will bring the 1 forest cover of this entire area down close
to this threshold and certainly will cause some landscape-level areas within ibis larger area to fail
well below this threshold. We consider the level of breeding habitat loss resulting from
permitted and proposed mining activities to represent a significant negative impact for the suite
of mature deciduous forest birds in the EIS study area, particularly for those species for which
this area represents the core of their breeding range.
Specific Impacts to Ceruhcm Warblers. Because the Cerulean Warbler is the mature forest
species of highest concern according to PIF assessments and because it has been petitioned for
listing under the lindangered Species Act, wo provide a more detailed analysis on the impacts
that mining activities are likely to have on this species.
Population suuus.and trends. The genera! status and population trends of Cerulean Warbler in
most parts of its range are fairly well documented. These have been previously summari7,ed in
the USF'WS Status Assessment (Hamel 2000). as well as final report to USIWS of the Cerulean
Warbler Atlas I"roject (Rosenberg et. al., 21X101. We believe that population trends as reported by
the BBS are sufficiently reliable for Cerulean Warbler at range-wide and regional scales. These
trends show a roughly 4.5%-per-year decline range-wide since 1966, with steep declines in nearly
9-1-2
8-1-2
MTfvlA/F Draft PEIS Public Comment Compendium
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Northeast Partners in Flight comments for mountaintop mining DEIS 3
every region including in the core of. the species' range, wMch overlaps almost entirely with the i
BIS study area.
As part of the development of a PIF North American landbird Conservation Plan, estimates of
the total continental breeding populations of most species have been developed for tic purpose
of setting conservation objectives. Using ihis method of extrapolating BBS relative abundances.
the current total population estimate (using data from the decade of the 1990s) for Cerulean
Warblers is about 560,000 birds, or roughly 280.000 pairs. Based on the BBS data, an estimated
70S> of the total breeding population occurs in the Ohio Hills and Northern Cumberland Plateau
physiographic areas, from southern Ohio and Pennsylvania, through West Virginia to Tennessee.
Vast areas of suitable habitat in this region support large populations of Cerulean Warblers,
especially on privately owned forestlands. We should note that although 280,000 pairs seem like
a si/able population, ills among the smallest populations of any passerine bird in North
America, which mostly number in the millions.
Threats to noeulaiions. We consider the major threats to Cerulean Warblers to Ml within four
main categories: (1) direct loss of breeding habitat from mining activities; (2) loss of breeding
and migration stop-over habitat due to development; (3) loss of suitable breeding habitat from
silvicultural practices: and (4) hahitat loss on wintering grounds in South America, We consider
the practice of mountaintop removal mining/valley filling to be the greatest immediate threat
within the core of the Cerulean Warbler's breeding range.
Applying similar methods to those used in calculating total population sizes for the PIF North
American Landbird Conservation Plan. BUS survey date indicate that the average breeding
density of Cerulean Warblers across the Northern Cumberland Plateau physiographic area during
the 1990s was 0.1)65 pairs/acre. Most of the I'lS study area occurs in this physiographic area.
This estimate does not include a time-of-day correction used in calculating the total population
sire, and therefore might he an underestimate. However, this density is similar 10 breeding
densities estimated from territory mapping plots surveyed in southern West Virginia, although
locally higher densities were observed in some locations. Using this BBS-derived estimate of
breeding densities and applying it to llie estimated forest loss of approximately 760,(HX) acres
from issued and future mining permits between 1992 and 2012, habitat for approximately 49,400
pairs (17*3;' of the estimated total Cerulean Warbler population) would he eliminated through
mining activities during this period. This is a very rough estimate of the number of birds likely
to be impacted and is based on the assumption that the entire area within permit boundaries
wouki be disturbed. Nonetheless, we are confident in slating that breeding habitat for as much as
HW-209 of the known Cerulean Warbler population is likely to he directly eliminated by
proposed and permitted mountaintop mines/valley fills during the 20-year period of 1992-2012.
These numbers reflect direct loss of breeding habitat and do not reflect reductions in habitat
suitability around mine sites. Research within the EIS study area has .shown that densities of
Cerulean Warblers are reduced in forest patches remaining from mining activities and in forest
near mine edges. We consider the level of breeding habitat loss due to mining activities in the
EIS study area to represent a significant negative impact for this species of high continental
concern that is already experiencing steep population declines and is threatened by other major
impacts such as development and loss of wintering ground habitat.
Relative Conwmitian Value of Reclaimed Mint* is. Undisturbed Farrst Habitat. We do not
consider removal of extensive areas of mature forest and replacement with the poor quality.
early-successional habitats resulting from current reclamation practices to be an appropriate
3-1-2
Northeisl P»rtaer» in Flight comments for mouotaintop mining DEIS 4
action for bird conservation in the HIS study area. First, this hahitat alteration is occurring in
core breeding areas for many hifh priority birds of Us mature eastern deciduous forest suite.
Removing almost 12% of the forest cover from this area is likely to negatively impact all of
these species. In paiticul&r, this area is critical for the teng-term persistence of the Cerulean
Warbler and the estimated forest loss from mining activities will represent a significant negative
impact for this species of high continental concern. Second, current reclamation practices result
in large acreages of grassland habitat, hut the grassland suite of birds is a relatively low PIF
conservation priority in me EIS study ares. The vast majority of grassland bird species
benefiting from the current mining activities are rather low in conservation priority, and this area
is not a core breeding area for grassland birds. Third, current methods of reclamation following
mountaifUop removal raining/valley fill activities result in poor quality, early-suecesskma!
habitats of grasses and shrubs that are likely to remain in these early-successions! conditions for
very long periods of time due to the soil disruption and compaction during the mining and
reclamation process. Estimates of the length of time it will take tree species to colonize and re-
forest these areas are in the many hundreds of years (e.g., 500-1000 years). The minimal value
that habitats reclaimed under current methods might have for early-successi0riai bird species
does not justify replacing mature forests with extremely long-lasting, poor-quality, early-
suecessional habitats. Maintaining extensive tracts of mature deciduous forests to support the
high diversity of mature forest birds, many of which are high conservation concern species, is
one of the highest PIF' conservation priorities within the EIS study a*ea. We encourage every
effort to minimize the removal and fragmentation of existing mature forest habitat within the EIS
study area.
19-3-2
MTM/VF Draft PEIS Public Comment Compendium
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Section A - Organizations
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Mark Donfaam, Heartwood
— - Forwarded Iw David Rfcier/R3/USEPA/US on 01/09/2004 02:51 PM -—
Mark Dontam
< markkri
nk.net>
rthl!
To; R3 MountaJntop® EPA
Sijbf-eet; Hsartwoad cornmer&s on mountain top removal draft EIS
01/05/20)408:48
PM
Dear US EPA,
These are the comments of Heart waod regarding the draft £ IS on mountain
Top removal (MTR), Heartvvoodhas many members who are directly and
irtdfrectlylrnpacuxl by MTR,
How can the government let coal companies destroy Appalachia with mining
practices that level mountalntops, wipe out forests, bury streams, and
destroy ecarttminJtira.
According to the admtrustration's draft Environmental Impact Statement
(EI-S)
on mountaintop rarova! coat mining, the environmental effects of
mountaintop
removal are widespread, devastating, and permanent Yet the draft EIS
proposes no restrictions on the size of vrfiey fills that bury streams,
no
limits on the number of acres of forest that can be destrowd, no
protections for Imperiled v^ldtife, aid no safiagt.iards for the
communities of
people that depend on the region's natural resources for tbemaeives and
hxtre generations. What kJnd of mitigation. Is that. In fheabsence
of
mitigation, the agsncy mist explain in detail ^KS the Impacts will be
v^thout any mitigation,
How can rdajdng tte curterit regulMions protect the environment? Tlie
draft
E IS proposes streamlining tte pernittHig proc^, dlowiJiig n^aintaintop
raT5o\%i and associated vaftey fills to continim at %n axder Med rate.
The
draft E IS also suggests doing av^iy v4th & surface rninir^ rule tliat mak^
it
illegal for milling activities to d&tiirb a*ees within 100 feet of
streams
trfess it can be. proven that streams v^U not be hartTKd. This
" preferred
alternative* Scores the administration's own studies detailing the
devastation caused by mountain! op removal coal mii^ng, Including
1-9
1-5
1-10
- over 1200 miles of streams have been damped or destroyed by
rttoiuitaintop
removal
- direct impacts to streams would be g^aatiy ia?sened by reducing the
size
of the valley fills where mining wastes are dmped on top of streams
- the total of past, present and estimated futtte forest losses is 1,4
rniiUon acr es
- forest losses in West Virginia and Kentucky have the potential of
directly
impacting as many as 244 v^ebrate VMildMe speetes
- even if hardvrood forests can be reestablished in mired areas, Wifch is
improven ^Ki unllkdy, there will be a drastically different eoDS^erii
from
pro-mining forest conditknis for poeratlons, if not thousands of years
- without new limits on motintalntap removal, an additional 350 square
miles
of mountains, streams, and forests will be flattened and destroyed by
mouriiainlop removal milling
Oriel HngwewEtnt to specifically conintsnt on is any poteitiai *ro
jeopmtJ/
optaions r^arding the critically endarsgerec! Indiana Bat. We do not
1-5
that aggndes can justify anymore taking of Indiana bets, aid that any
taking is jeoparding the continued existence of the species.
These Impacts are nothing short of devastating to local neighborhoods and the ecology of the
region. Weofjpose any decision to contlmje MTR. This fe a ta&srbaric, injust, and destructive
practice that our chlldrens' children »ill be paying for. Plume stop MTR.
Sincerely,
Mark Donham
HeartwoDd Pro-am Director
RR# 1, Box 308
Brookport, IL 62910
618-564-3367
8-1-2
1-9
MTM/VF Draft PE1S Public Comment Compendium
A-231
Section A - Organizations
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Jenny Dorgan, Alabama Environmental Council
Ralph Dunkin, West Virginia- Western Maryland Synod of the ELCA
Forwarded by David RidetfR3/US£PA/US on 01/08/2004 01:58 PM —
Jenny Dorgan
ec:
Sybleet: For the People
01/06/2004 10:27
AM
Mr. Jorm Fofren,
! am writing on behalf of the Alabama Environmental Council, a statewide
non-profit organization dedicated to protecting environment diizsra
and biodiversity. This purpose of this message is to state our
opposition to mountaintop removal and valley fills and any change in the
ruie protecting stream buffer zones.
It is exftwdtnarfly disppointing that the federal govsnrmant is
ignoring its own studies by proposing to reduce protections for people
and the environment.
We as* tor a new study that looks at the alternatives to prevent new
mountaintop removal and vaMy tt operations and to stop the existing
ones within 5 years or by the expiration of (he current mining permit,
whichever date occurs first.
As a government official and a part of th6 major governing process of
protecting the environment and the citerss of this country, i hope that
you will do your patriotic duty to stand up for what Is right and good
for the people.
Jenny Dorgan
Program Coordinator
Alabama Environments!! Council, Inc.
2717 7th Avenue South Suite 207
Birmingham, AL 35233
(205) 322-3128
'^aa.
The Synod of
WEST VIRGINIA-WESTERN MARYLAND
oflh*
IVANGEtlCAL LUTHERAN CHURCH IN AMERICA
The Atrium • 503 Mei^amowrt Avenue, Suite t<30 • Fairmont, W«st VJ[$ln!a 26554-1374
" 4ME*iC*"
The B«v»«nd Kalpfc W. Ouftkin. B!«t»p Phone: 004) J»-«30
1-9
1-10
1-5
The Season of Peutecost
July 31,2003
Mr. John Fonen
USEPA (3BA30)
1650 Arch Street
FhUaAelphia, PA 19103
D«r Mr. Fccnen,
Grace and peace be unto you during this spirit-filled season.
Before the time of public comment on the Environmental Impact Study ends, I wish to
males the following comments.
In 2001 devastating mills that resulted in four major floods in this region impacted
southeastern West Virginia. In »ady August of 20011 toured the flood-ravaged area.
People in these ureas pointed out the lands that had been "reclaimed" from mountain top
mid strip mining. My initial observation was that of why were there no trees growing on
top of the» mountains?
Common sense states that where trees are on top there will be less run off and the chance
for fewer floods. Seeds from said trees would naturally flow downward and create new
growth. Natives to these regions state
-------
Lawrence Emerson, Arch Coal Inc.
A layman's reading of the Qeaa Water Act and Sarfhee Miasng Laws not only allows by
requires our government to prohibit the use of valley fills mid tnonBtaartop removal.
Twenty-five years of but enforcement have asuted at uneeoeptaMe situafleti. Existing
laws should not be weakened, but strenuously enforced.
My prayers are with you and the people who are live daily with your decisions.
Yours in our Lord's service,
Ralph W. Dunkia, Bishop
CC: Carol Wtrren, West Virginia Council of Churches
Tena Wiltensma, Comaifasion on Religion in Appalfefaja
Danielle Weliiever, ELCA Director fa BtrrirotHnenJal Bdtuation
Dory Campbell, Evangelical Lutheran Coalition for Mission in Appalachia
BAG
ARCH COAL, INC
LAWRENCI D. EMERSON
December 17,2003
Mr. John Porren
US Environmental Protection Agency (3BA30)
1650 Arch Street
Philadelphia, PA 19103
RE: Wtittea Commanti on At Draft MomtaintoB.Mining BIS
Dear Mr. Forren,
In aocordance with the press release dated August 14,2Q03, please fin4 enclosed
two (2) sets of written comments related to the aquatic section of the draft Environmental
Impact Statement document. More specifically, these comments are responses to EPA'?
written comments to our benthic macroinvertebrate report that Arch Coal Inc., conducted
within the Mud River, Spruce Fork and Island Creek watersheds located in southern West
Virginia.
in the spring of 2002, Arch Coal Inc. submitted to EPA Region III a supplements!
quantitative report of benthic studies conducted in the watersheds associated with three
our coal mining operations, The studies were based on our own sample collections from
(he EPA selected sites, using quantitative sampling methods. That report was submitted
to EPA for peer review purposes, and the documents submitted herewith are our
responses to EPA's comments.
The first document, entitled "Response to US EPA's Comments..." u in a
comment and response format. In those instances where EPA's comment resulted in &
change to the body of the Arch report, those changes were made and are reflected in the
final supplemental report, also enclosed.
Thank you for the opportunity to comment. We look forward to the release of the
final EIS document.
Sincerely,
6-6-5
10 Konten W»e Owteoii, WV 25311 (304)357-5714 Ftt: (304) 357,5725
MTM/VF Draft PEIS Public Comment Compendium
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Section A - Organizations
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JPOTESTA
POTESTA & ASSOCIATES, INC.
Engineers and Environmental Consultants
September 2003
RESPONSE TO UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY'S
COMMENTS ON
"SUPPLEMENTAL QUANTITATIVE 1ENTMIC MACROINVERTEBRAT! STUDIES
IMPLEMENTED IN CONJUNCTION WITH THE USEPA
MOUNTAINTOP MINING/VALLBY PILL
ENVIRONMENTAL IMPACT STATEMENT STOW WITHIN
THE MUD RIVER, SPRUCE PORK, AND ISLAND CREEK WATERSHEDS"
Prepared for:
Arch Coal, Inc.
10 Kenton Drive
Charleston, West Virginia 25311
Prepared by:
Potesta &. Associates, Inc.
2300 MacCorkle Avenue, S.E.
Charleston, West Virginia 25304
E-mail: potesta@potesta.com
Protect 01-0057
September 23, 2003
Response to United States Environmental Protection Agency's
Comments en
"Supplemental Quantitative Benthic Macroinvertebrate Studies Implemented
In Conjunction with the USEPA Mountaintop Mining/Valley Fill
Environmental Impact Statement Study Within
The Mud River, Spruce Pork, and Island Creek Watersheds"
Prepared by: Potesta & Associates, Inc.
The Orated States Environmental Protection Agency (EPA) comments are in normal type with
the response inserted into the document in bald font,
Points where we are in agreement;
The filled sites are ffi worse biological condition than the unmined sites.
The filled residential sites are in worse biological condition than the unmined sites.
The filled sites represent a wide range of conditions (good to impaired).
The filled residential sites are in a narrower range of conditions (impaired).
The unfflined sites as in a narrow range of conditions (good to very good).
Water chemistry is significantly different between classes.
Habitat and substrate are not significantly different between the classes.
8. The biological and water chemistry changes are typical of mining impacts.
9. These biological and water quality effects are statistically significant.
1 0. Sulfete is likely a significant contributor to the high conductivity.
Project No. 01-0057-006
2308 KittarUt »»«nu«, $. i. -
i,W««VlrjI»ii B304 • Miami! (MM) MM4M; f«: (>04) M-n)t; «ww.|«Mta.t«»
MTMA/F Draft PE1S Public Comment Compendium
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Section A - Organizations
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GENERAL COMMENTS:
in genera!, we disagree with the way water quality issues are treated as an afterthought
throughout the report The report repeatedly infers that temperature, ponds, and stream order are
the main contributing factors to the biological condition rather than changes in water chemistry.
The report secondarily refers to other factors such as flow, low dissolved oxygen, embeddedness,
scouring from flooding, canopy changes from deciduous to evergreen, and the amount of canopy.
The report provides no correlation analyses and, in some cases, no or inadequate data to support
these statements, and in some cases, the authors ignore their own statistical analyses where there
are relevant data. Our exploratory correlation analyses indicated conductivity (-0.741 for EPA
field conductivity) and total dissolved solids (-0.716) had the strongest and most significant
relationships to biological condition. Both of these parameters are directly related to mining
impacts.
POTESTA.: The report do« not Infer that temperature, ponds, aad stream order are the
main contributing factors to the biological condition, but does conclude that
the effects of these factors cannot, with the data available, be separated from
mining effects or effects of valley fills, and that all aforementioned variables
are potential contributors to the current fcj-streain conditions. POTESTA's
analysis of the data did not incite correlation analysis because there are too
many factors not included In the EPA's study to have confidence in the
results. For example, Hie conductivity and total dlnolved solids would be
higher In anas with more mining activity. These areas would alto have more
numerous ponds, but may or may not have more numerous or larger valley
fills. Under this scenario, it is not clear whether a correlation exists between
the biological condition and the area mined) area of the settling ponds, or
number and size of the valley fills,
No changes were made to the test as a result of this comment.
The only temperature data offered in the report is the field data for the Winter and Spring of
2000. The statistical analyses of these data indicated there was no significant difference between
the site classes. This finding does not support the Potesta conclusions. Even if there were
temperature differences Potesta offers no supporting information or data to confirm it. The
emergence time issue is not scientifically defensible.
POTESTA: Temperature data available fer tfcto study are from two dates In the Spring
and Winter 2000 and no significant differences exist between the site classes
on these days. However, data from two dates which are not representative of
the seasonal temperature variations does not adequately describe what goes
on in the system over the course of an aquatic Insect's Hfeeycle. While no
information may be specifically available regarding the temperature
conditions which occur below valley filli, the temperature differences below
impoundments and the impacts to Hie benthic macroinvt-rteliratc community
arc well documented. Warmer than normal winter temperatures eliminate
the thermal cues needed for many species to break egg dtaputte. Cool
summer temperatures can result In too few degree-days to complete
development Life cycles can loose their synchrony and Impair reproductive
success (Alien, 2000). A shift in temperature as small as 2*C to «*C has been
shawn to Mtef life-history characteristic-* (Wart, 1992). Th* text wffl be
revised to include a discussion of relevant literature.
If the ponds were the primary factor in determining the benthic community downstream, then we
would expect to see similar biological communities downstream of all the ponds but instead the
data indicate a range of conditions below ponds. The condition of filled communities in our
study ranged from poor to very good in both the Winter and Spring of 2000, The correlation
between TOC, DOC, and biological condition was -0.388 and -0.183, respectively. Other
parameters, including base cations and metals had higher correlation coefficients than the carbon
parameters: e.g. Ca( -0.710), Mg( -0.689), Se( -0.528).
POTESTA: Paragraph 4. The ponds are not indicated to be a "primary factor* In
determining the beflthie community downstream, but one of several factors
which may be influencing the community. This study did not purport la
have sufficient information to discern between the potential impacts. That
said, the idea that the communities at all sampling locations downstream of
the pond should be similar is not plausible. There is no available information
on the si7c or number of ponds upstream of each site, the distance from the
sampling location to the pond, whether the pond is surface or bottom release
and many other variables. Also, consideration must be given to variables
such as water chemistry for which there it SBUIC limited information
available. The range of conditions which are found to exist downstream of
the ponds undoubtedly reflects the range of conditions upstream of and
within the ponds.
This report has no biological or chemical data from sites above ponds and in our study we only
had two sites above ponds. These sites ranged in condition from fair to good during the Winter
and Spring of 2000. If we had more information about the water above the ponds, we would be
better able to understand what impact the ponds were having on the streams below the ponds.
POTESTA: Paragraph S. We are in agreement that more information is needed about
the conditions upstream of the ponds. Of the two sites upstream of ponds
which were included In the EPA study, one lite is apparently bedrock
substrate and therefore net comparable to the gravel cobble substrate
sampled In free flowing reaches. It Is true that If there was more information
about the water above the ponds, we would be better able to understand
what Impact the ponds were having on the streams below the ponds. This
variable would have best been considered before the data were collected
during the site selection phaee.
Stre«m order is not an issue when computing unniined and filled sites in this study since sites in
both classes were on small, low order streams. All the unmined sites were on first and second
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order streams and all but two of the filled sites were on first and second order streams based on
1:24,000 scale maps. In the mountaintop mining area of West Virginia, there are no large
streams(third and fourth order) without some type of mining in the watershed. The statistical
analyses in flie report { Table 19) indicate tiiere is no significant difference between these two
classes. These stream orders (1-3) are often included together in index development and often
have the same reference condition because ui that site range, stream order does not explain a lot
of natural variability in the reference sites and the data do not indierte a need for classification to
stream order (e.g. the WVSCI, the regional EMAP MAHA and the MD MBSS ffib are for 1 -3rd
order streams based on a 1: 1 00S000 scale map). Based on your statistical analyses the stream
order of the filled/ residential sites are significantly different from the unmined sites. The larger
stream size of the filled/ residential sites will mask any potential impairment and not amplify it.
These larger streams can appear to be less impaired because they have the potential to contain
more taxa thao smaller streams.
POTBSTA: Stream order is always an Issue when infecting rite* for comparison and
should have been considered prior to study initiation so that appropriate
references enuld have b«en determined for each stream class. Th« stream
orders from the unmined and fitted sites do overlap so there is no
statististical difference; however, the differences In the stream sins should be
considered as a potential source at the variability teen In the filled sites. The
larger stream In the filled/residential rites are significantly different than the
reference streams and are not suitable for comparison to the headwater
reaches. To say that such a comparison will "mask impairment" is flot a
clear representation of tile situation. Any changes in community structure,
such as those described by the river cottthtuuiti concept, will shew tip in data
analysis as being a "different" community; which, as has already been
established, is then labeled as "impaired". These comparisons are
inappropriate and if suitable reference sites were not Included in the study it
indicates a poor study design, rather than actual impairment.
SPECIFIC COMMENTS
Cover Letter Page 2 -Disagree that the overall difference between the USEPA's two contractor
laboratories cause all of the water chemistry data to be called questionable. Blank and duplicate
samples provided information regarding the accuracy and precision of the data. In the blank and
duplicate data from the second laboratory there is no evidence to suggest that the data from this
laboratory is not reliable. We do agree with the following statement "These QA/QC issues do not
change the overall conclusion that significant differences exist between the filled and reference
(unmined) sites and between the filled/residential and reference sites."
POTESTA: As has been explained to the OS EPA personnel previously, the language In
the cover letter to which they are objecting w»s written at a caveat to readers
when the revbed data set was discovered. At the time, it was n«t apparent
which data usrf In the original report wer« acceptable and which were
questionable. No changes will be made resultant from this comment.
Page i -We agree with the last sentence in AI Hendricks excerpt
PGTESTA; The last sentence of AI Htndrkks review, with which th« US EPA agrees,
nmmartaed the POTESTA findings.
Pige i and ii -Is it possible to see the fall comments from the reviewers?
POTESTA: Specific comments from tbe reviewers were Incorporated into the text.
G»Mr»l comments from the reviewer* are provided.
Page 1, paragraph 4 -See general comments.
POTESTA; Set response to ftneral comments.
Page 1, paragraph 4 -The tet sentence of this paragraph is clearly speculation and not supported
by the data. Our correlation analysis indicates the changes are strongly related to chemistry
parameters. The filled /residential sites do have additional stressors im them that the filled sites do
not. The ailed/residential sites have refuse piles, other mining, larger roads and highways, and
residences, all of which can contribute to a more degraded community.
POTESTA: While the reviewer may find the tet tmteMt objectionable, no other
eiplanalion is offered for the discrepancy between .the "impairment"
indicated by the water chemistry an* the bioli»|i«al data. The data clearly
indicate* that If water chemistry alone is responsible for the "impairment" in
the biological Mommitty, then the (fled rite sfceold b« more sifiiiflcartly
degraded than tt* fillet! «st«J»«»l sites. The refuse piles and oilier mining
influences offered m potential additional degradation in the flited/nsidentM
sitel would have shown up in the water chemistry. The larger roads and
highways should have shown up as a significant stressor In the water
elttmhtry (TSS and TDS) and in the embedtlediiess and habitat evaluation.
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The impact &£ the residfiaees Is noteworthy and dees show up in water
chemistry analysis in the form of nutrients. This Is exactly why sttes with
residential impacts should not he included in the analysis ef valley fills and
mining without appropriate reference sites,
Page 1, paragraph 5 and continued page 2
The discussion of changes in function and the reliance on functional feeding group indicators is
highly suspect since it is well known that it is difficult to correctly assign functional feeding
groups at the family level (due to generic differences} add to early irtstsrs. More importantly,
these types of metrics are almost never chosen for multimetric development for stream
assessment they do not adequately discriminate between reference and impaired sites. For
example, in the WYSQ report, the foilowing information appears on page 16: % Filterers, the
trend was opposite of that expected, interpretation unclear; % Scrapers, poor discrimination; %
Collectors, trend opposite from expected, interpretation unclear; % Predators, poor
discrimination; % Shredders, skewed distribution, high variance, and marginal discrimination.
These metrics are not used because they cannot identify impairment,
POTESTA: Both Men-it and Cummings (1996) and the US EPA's Rapid Bioassessment
Protocols for Use In Wadeable Streams and Rivers (EPA 841-B-W-002)
provide functional feeding group information at the family level and while it
is more variable than generic level information, it Is still valid. Most of the
information used in this report and the US EPA's report relative to the
benthlc macroinvertehrale community structure (i.e. number of tuft,
tolerance values, etc.) would be more specific if identifications had been
conducted to the generic level. However, the US ETA made the decision that
family level data was sufficient for the purpose of this study, and POTESTA
is reporting the data to be comparable with the US EPA study.
The use of functional feeding group analysts to document the changes in the
benthic Riaeroinvertebrate community as a result of disturbance are widely
documented (Camarf o and de Jalon, 1WS; Poff and Matthews, 1986; Short
and Ward, 1980). The data are not Included herein as metrics to indicate
whether significant changes exist, but as a tool to evaluate the factors
contributing to significant changes (already indicated by more traditional
metrics). Macroliivertebrate community structural elements (e,g. numbers,
taxa, diversity, etc.) often present an incomplete picture of community
responses to stress (Barret 1981; Matthews et al. 1982 in Poff and Matthews,
1986). Considering the functional feeding group distribution provides
additional insight into the nature of community responses and may reflect
altered tropic conditions which can profoundly affect community structure
(Poff and Matthews, 1986). In this manner, the functional feeding group
information serves in a similar manner to the habitat data and the water
chcmisty in providing information on factors contributing to the changes in
the biological community. The reviewer appears to have misunderstood the
Intent of the discussion. A discussion of the Intent of the analysis has been
added to the text for clarification.
If we did make a big assumption and say they did work, then the first and last sentence of this
paragraph do not fit in with your own statistics. The first sentence states oo significant adverse
impacts and the last sentence states stream function does not appear to be compromised. In
looking at your own statistics, there are sipiificant differences between the stream classes For
both the spring and winter sampling seasons. This would indicate that functional feeding groups
are being impaired or compromised at the filled and filled/residential sites. The fact that they are
ail represented does not mean they are in good condition.
POTESTA: As stated above, there Is no need for an assumption that functional feeding
group metrics "work" in this analysis. The first sentence in the paragraph
states that there appears to be no significant adverse impacts on the stream
function with respect to downstream segments. This does not contradict the
finding of statistical differences In the biological community. Stream
function refers to the ability of the stream to supf>ort a benthic
macronivertebrate community, process nutrients in different forms, and
provide nutrient sources to downstream communities. The functional
feeding group analysis indicates a shift In the community which indicates
differences In food supply; however, the stream function is preserved.
failure of the community to utilize an available food source (i.e. lass of a
functional feeding group) or failure to respond to a shift in available food
sources would indicate lack of stream function. A significant difference in
the functional feeding groups between unmined and filled or filled/residential
sites does not indicated "impairment". It indicates an abundance of some
other type of feed scares, which Is being utilized by the community. This is
exactly the type of information a researcher hopes to find when trying to
determine factors contributing to the significant differences seen in the
community metrics. There will be no change in the text in response to this
comment.
Page 2, paragraph 2
The changes ift water quality and biological communities below the fills is related to the entire
mining operation (the mined area above the fill, the fill, the toads associated with the mining,
and the sediment ponds). But, the one fact that cannot get test, that is directly associated with the
fills, is direct stream loss under the fills.
POTESTA; The objective of this study was to determine effects »f valley fills on the
biological community downstream of the fill. This Is why all the study sites
were located downstream of the filled areas. Stream loss under » fill is not a
focus of this particular study. We appear t« be In agreement that changes In
water quality and biological communities below the fills are related to the
entire mining operation (the mined area above the fill, the fill, the roads
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associated with the milling, and the sediment ponds) and OH effects cannot be
specifically differentiated with the current study design.
Page 2, paragraph 3
Stream Order: See genera! comments.
POTESTA: As stated previously mid in the text at the report, the changes associated wiflt
increasing stream order should have been considered in the study design
phase and should certainly he considered in the date interpretation. Then
will be no change In the text In response to this comment.
Page 5, Section 2.2. 1 and 2-2.2
It shortid be noted that although many of the unmined sites could not be sampled during the
summer and fall of 1999, they were not ali necessarily dry. When these streams were sampled
the following winter they were ill in good or very good condition. That indicates that even
though there may not have been any visible surface 0ow or not enough surface flow to collect a
representative sample, the invertebrates were still there. Maity of these stremtis did have
perceptible surface flow, they definitely had subsurface interstitial flow, and maay had residual
pools. The macro invertebrates had refiigia during the drought. We just could not sample them.
POTESTA: The report text is changed
which prohibited sampling.
reflect little or no flow creating eomUtiem
Page 8, 2.6 Biosssessment Metrics
There should be some better justification for metric selection other than " the standard metrics
that Potesta uses", fs there some background work ar documentation that has been done to justify
their selection? Generally metric are selected ba$ed on discrimination ability, variability, snd
redundancy. Has any of this been done? This section needs beefed up.
POTESTA: The metrics selected fer IBB in fhe nioassesMient were «e1ected by Dr, Frank
Borsuk baud on guidance by the US KP.Vs nioaxsessment methods
document. It is acceptable to use metrics suggested by the US EPA without
discriminatory analysis on every study because the discriminatory ability h»»
been tested in a wide range of cendUtjem by tn« OS EPA or (er other
researchers and presented In the EPA document^ prior to the presentation «f
the metrics in the RBI" protocol. Additionally, multiple metrics are
presented with benefits and limitation of each so that professionals can use
their judgment in selecting an array of metrics tor use in a particular study.
A reference to the US EPA document us*d in the metric selection has been
added to the text.
Functional feeding groups are used in the report, but there is no write up in this section justifying
their use and the importance of using them. There is also no discussion how each taxa was
assigned to a group and there is no list of the taxa assignments,
POTESTA:
Page 10,3.1
A dbtuarieo »f the latent of the function*! feeding group analysts has been
added to the text for clarification. A discussion regarding group designations
and 41 table showing the functional feeding group classification for each
family has also been added to the text.
"The impacts that the drought in 1999 had on the reference streams are unknown." This is not a
correct statement All the streams were sampled in the winter and spring of 2000, and all were in
good or very good condition,
POTESTA; Sampling of the reference stream* in Winter and Spring 299B glwss an
indication of the condition when the streams were sampled, good or very
good. However, this does not give any indication of the impacts that the
drought had on the stream communities. Effects of drought on henthic
maeroinvertebratfi conHnmiffies ***** weB* documented and include decreased
abundance, increased intra and inter specific competition and predation, an
initial increase in taxa richness during the reeoloni/ing period, changes in
community structure resultant from alteration in food availability, and water
chemistry changes (dissolved oxygen, temperature and other changes
associated with slower ftow) (Lake, 2tM; AUen, 29M). The sampling
condnttefl to determine that the communities were "good or very good" were
qualitative and would not indicate a decrease in abundance. They in no way
accounted far community level changes from increased intra and later
specific competition and prjdatiQi or changes in community structure
resultant fram alteration in food availability. The effects en tii* richness
are also unknown beauine thert it no "pre-dronght* data available tor
comparison. The statement that the impacts of toe draught on t»e reference
streams it unknown will not be changed in the text
Page 11, paragraph 2
"Also noteworthy is the increase in fikar- collectors in the filled/residratial groups, which could
be attributed to the organic levels from domestic inputs." The numbers in the table indicate 20.56
% of the individuals in the filled/residential sites were filter-collectors and 20.07 % were filter-
collectors at the filled sites. If this is true, where did the nutrients oome from in the filled sites?
POTESTAi Not including a discussion of fflter-colleetor increases in the filled sites was
an oversight and has been corrected. The non-feat wurce for the filter
feeding organisms is the ponds themselves. Their contribution of a nutrient
rich food source and the subsequent increase in collectors is well documented
(Stanford and Wart, 1979; Petts, 1984; Allen, MWO).
Page 13, paragraph 1
See previous comments concerning post drought condition of ujirntaed stream*. There is no data
to support the comment about temperature and D.O. having an influence on the communities.
Our D.O. data did not indicate a problem.
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POTESTA: This statement is from Strmm SenbgjK Structure md Function »f Manning
Waters (Allen 2000), a stream ecology textbook. The author Is relying on u
bask knowledge of stream dynamics that the reviewers were believed to
stare. N«t only win 1999 a draught year, b»t also one of the hottest ye«w on
record, 0nder drought condltto«», flaws are redawd. The reviewer has
stated that flow was negligible, often subsurface and in some places only
pools remained tor refugfa for the organisms. Without measuring, h te safe
to assoine th»t the inert water yoa have, the less likely It Is to respond to
temperature fluctuations In the environment. Subsequently, the less water
available, the harder It Is to maintain water temperature in the stream and
the greater ore temperature fluctuations. It is well documented that
dissolved oxygen Is Inversely related t» temperature. So, with high
temperatures (such as those reported during one of the hottest years on
record), dissolved oxygen saturation would have been reduced. Since the
most reaeratton occurs in riffles and under flowing condition!, the low flow
conditions (as stated by the reviewer) would not have been conducive to
rearntlon. Also, organic material in the sediments and in pooh exerts an
oxygen demand not present in riffle/gravtl/cobble substrates which would
further add to I lie oxygen demand. The reviewer states that their data did
not indicate a dissolved oxygen problem; however, the author would not
expect dissolved oxygen reading!) taken during the daylight hours to
neceisarily reflect a problem. These data would represent one Instance in
time, and not the conditions to which the organism are «po»ed. An analogy
would be to sample the organically rich area below i waste treatment plant
on a warm summer afternoon when the water is supersaturated with oxygen
ignoring the diurnal fluctuations and nighttime sag and stating that DO is
not a problem. A researcher has to Interpret data using all the information
at their disposal. A discussion Is Included In the text describing the impacts
• of draught on streams and biological communities.
Page 13, paragraph 2
The term "moderate richness and abundance" is used in this paragraph. What is it moderate in
relationship too?
POTESTA: The terms "moderate richness and abundance" and "low richness and
abundance" are both used in this paragraph. They are subjective tern*,
which refer to low level* and medium levels of richness and abundance based
on the other sampling locations used In this study and the researcher's
knowledge of the communities expected to be present under Ideal conditions
in the streams. No change has been made to the text as a result of this
comment.
Page 13, paragraph 3
"Chironomidae, another filter feeder". Is this the group you put them in or is this a mistake?
POTESTA: Chironomidne are collector-gatherers and were placed Into this category for
functional feeding group analysis. The text ha» been changed to reflect the
collector-gatherer category.
Page 13,4.2 Winter BentWe Mseroinvertebrates
The abundance at the anmined sites was not significantly different from the filled sites but the
filled residential sites were significantly different from the tuwitned sites. Hitler abundance is
not an indicator of better condition, it is generally an indication of impaired condition. The
condition of me benfhic community by site class indicates the tinmined sites are in the best
condition, followed by filled sites and then the filled/residential sites. The abundance data would
put them in the same order which clearly indicates that more is not necessarily better.
POTESTA: Abundance data can either increase or decrease in response to stress. While
It can Indicate enrichment of a food source, as in the Oiled/residential sites. It
can ate Indicate impairment. Reduced abundance is associated with
recovery from drought conditions and it is the professional judgment of the
researcher that an average of only 100 organisms to a surber sample is an the
low side. There li no Indication that the unmined sites are "better" than the
filled sites with respect to abundance. No changes will be made In the text
Page 14, paragraph 1
Some stoneflies are tolerant to the constituents found in mine drainage and acid rain impacted
streams. Mayflies on the other hand are not. The statement that water quality may not be the
limiting factor is rather erroneous. True, they are both sensitive orders but they can fee sensitive
to different constituents.
POTESTA: According to the RBP, the tolerance values of mayflies range from B to 9
while the tolerance values «f stoneflies ranges from 8 to 6 3, indicating that
boflt groups of organisms are stellar ta their sensitivities. While It i« true
that some stonetlies have been found to be somewhat tolerant to mining
related discharges, the number and diversity of stonefly tut present and the
discrepancy between the water chemistry and biological data still Indicate
thai more information to needed to determine that water quality is the
limiting factor in the streams. No change Is made to the text In response to
this comment.
Page 14, paragraph 2
The report indicates that the characteristics of the fflb might explain the variability in the
biological communities. The report also lists many of the things that can affect the fills but does
not state that all these things will also have an impact on the water quality exiting the sediment
pond. In our report, the range of biological conditions was best explained by water quality.
POTESTA: The paragraph in the text has been expanded to Include a discussion of
several other factors which nuty be contributing to the variability seen In the
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fitted sites. The author disagrees that in the US EPA report die range of
biological conditions was explained by water quality. The US EPA report
MM to consider significant sources of variability and relies on correlation
analysis without taking into account the potential for alternate correlations
with the variables they ignored. "The presence of a correlation between two
variables does not necessarily mean there exists a causal link between them."
(Glass and Ropkingi 1984)
Page 14. paragraph 3
"The algae and deitital material flowing from the ponds acts as the food source for the
downstream communities." We are not pond experts but would think that ponds would be detrital
sinks not a source.
POTESTA: The lentic system can act as a detrital sink, but they are also a source. While
much of the productivity comes from photosynthesis of algae, this is
dependent an the rich nutrient source of detrital breakdown. However,
"detritus includes participate and dissolved organic carbon..." (Smith 1992)
which Is discharged via the outfall. This reference is a general ecology text
book.
The statement, "Since this is a more continuous aad less variable food supply than leaf litter".
has nothing to support it. There k no data in (he report and no references to defend this
statement. We did not measure in stream leaf litter but our visual observations and photographic
record indicate there is leaf litter in these streams below the ponds.
POTESTA: The potential changes below impoundments include reduced variability In
thermal regime, food quality and quantity, flow conditions, and other
parameters which are well documented in the literature (Stanford and Ward
1979; Pettt 1984; Kondratieff and Vostell WW»). A photographic record of
leaf litter does not indicate the quality or quantity of a food supply. The
availability of the food source is related to many variables.
"While this represents a fundamental shift in the biological community, fte community created is
not necessarily undesirable," The Clean Water Act was written to protect biological integrity and
integrity is defined as an unimpaired condition not a changed condition.
POTESTA: The goal of the dean Water Act is to "restore aad maintain the chemical,
physical, and biological integrity of the Nation's water.'' The author Is
unaware of any place in the Clean Water Act where biological Integrity is
defined or where "change" (s defined as Impairment. The reviewer should
provide a reference for that interpretation. If that is the case, than any dam
constructed for any reason (flood control, hydroelectric power, sediment
retention, recreation) would be in violation of the Clean Water Act, as would
be many other activities which are currently permitted or acceptable
practices.
Page ,15, paragraph !
The only habitat data we observed in the report was ours and that embeddedness data did not
indicate a problem with the filled sites. If there is data out there that can support the statements
about embeddedness, increased flooding and scouring, or changes in the type and amount of
canopy cover in the filled sites it should be tn the report or these speculative statements should
be dropped From the report. If there is increased flooding and scouring below the mines it would
not be good news for the industry.
POTESTA: Changes In sediment deposition from mining, timbering, road construction,
and other development are widely documented. It is somewhat of a surprise,
and a testimony to the effectiveness of the sediment control structures
(ponds), that emhcddcdness was not significantly higher in the milling
influenced sites in this study. lion ever, embeddedness has been removed as
a potential variable contributing to scraper declines in mining Influenced
streams. Changes in the flow regime below mine sites are not news to the
Industry. As required by regulation, specific steps are taken on mine sites to
move water quickly away from areas of overburden storage where
infiltration may lead to saturation and potential stability problems. The
direction sf water away from these areas, and the movement of water
through these areas, results in hydrographs very different from a natural
stream. The presence of a pond further alters the hydrograph of the
downstream reaches. Cafe Is taken during the planning stages (if mining
activities to ensure that stream channels are capable of receiving the flow
magnitude and velocities generated on the sites. Depending an the site
conditions, Increased peak discharges and scouring in a downstream reach
are possible, as are lower flow conditions In a stream reach. The
"speculative" statements will not be removed from the report. They are, In
the belt professional judgment of the author, plausible explanations for
variability seen in the data and perfectly appropriate for the discussion
section of a scientific study.
Page 15, paragraph 3
Simutiidae filter FPOM with forts, they do not siphon water.
POTESTA: The test has been clarified.
Caddisfltes we- ubkjuifous except in the most toxic conditions, so to say they sire found below
ponds and waste treatment plants K not news; they am found everywhere,
POTESTA: While caddisflies *r* ubiquitous, the point «f tte discussion Is that they occur
in increased abundance and are often the dominant organism in communities
below ponds and waste treatment plants, a condition found in (he current
study. The importance of the shift of the henthic community to one
comprised of 75% collectors has been clarified in the ten for the reader.
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Page 16, paragraph 1
There are no data to support the temperature data. See previous comments.
POTESTA: See response to general comments.
Page 16, paragraph 2
The increased alkalinity is not "a significant benefit to the streams." These streams are naturally
low in alkalinity and conductivity and support diverse macro invertebrates community. To
suggest that the water quality is improved below the filled sites totally ignores the biological
data. Again, there is no dati to support the statement "acidic precipitation couM cause
excursions of the pH below the acceptable level." We observed no indications of a problem.
POTESTA: The EPA's April 8, 2902 document entitled "A survey of the Water Quality
of Streams hi the Primary Region of Mountalnfop/Valley Pfll Coal Mining"
states that th« only pH excursions below the 4J SI) water quality standard
were In nn mined streams and "conW be a result of acid deposition" (Page
73), The previous statement that no Indications of a problem were obierved
Is Incorrect. Abo, POTESTA'« analyiis of the fleld data Indicated significant
differences between the unmined and tiled sites with the unmined sites
having pH values lower than the filled sites. Acid precipitation is increasing
globally (US EPA Acid Rain Program Website), u most selentirts are aware.
West Virginia is in an area of increasing acid deposition as indicated by the
isopleth diagrams from 1994 and 2000 (attached), tn 199$, West Virginia's
3fl3-d list was expanded to include a number of streams listed «s impaired
due to acid precipitation. While atmospheric deposition Is not listed on the
20(10 303-d list, due to the uncertainty from raining influences and the
naturally acidic conditions of some streams, It is still considered to be a
limiting factor In some streams both locally and globally. Further, due to
leaching of the buffering capacity of soils and the continued decline In
precipitation pll, the acidification of streams related to acid rain Is not
expected to decline in the near future. It is the judgment of the author that
the Increased alkalinity Is a benefit to the streams. The test was not modified
In response to this comment.
Page 16
There is no mention of the Selenium criteria violations, is it because the data was not available at
that time?
POTESTA: Selenium criteria violations were noted In the unmined, filled and
filled/residential streams in the water chemistry samples analyzed In Mils
study. Although the water chemistry data were revised to remove all
samples not passing -quality assurance testing, the values from the Winter
and Spring 20(10 data are still higher (often an order of magnitude) than the
second EPA contractor laboratory. Given these discrepancies, both uatasets
are of little value for comparison to water quality standards until one dataset
can be shown to be accurate. As such, selenium Is used only for relative
comparisons between the three treatments.
Page 16, last paraptph
The report acknowledges here that there were few habitat differences among the site classes and
embeddedness was not one of them. See previous comments for page 15.
POTESTA: See response to comment on Page IS, Paragraph 1.
Page 17, paragraph 1
See previous comments on stream order.
POTESTA: See response to general comments.
Page 17, paragraph 2
Again, increased abundance is a classic indication of stress, as competition decreases from the
loss of intolerant organisms there is an increase m the number more tolerant organisms. This is
well documented in the literature. Small headwater streams, such as these, with low alkalinity
ind low conductivity tend to haw low numbers of rnacroinvertebrstes. The discussion about the
emergence times of the stoneflies is speculation and is not supported by data or literature review.
POTESTA: As indicated previously, abundance can either decrease (as in response to
flooding or drought) or Increase (as In response to an organic food source) in
response to perturbation in * stream. A change in either direction Is an
Indication of stress. The reduced condition if well documented hi the
literature, particularly with respect to the recovery period of beirthic
communities following flooding events (Lake, 2000). The Increase in
abundance in response to organic Inputs Is also well documented (Allen,
2898). The shift in community structure from «n Intolerant to a tolerant
community described above is not generally accompanied by an overall
increase in abundance (rather a replacement) unless an additional foot)
supply Is available.
The dependence of the development and emergence time of stonefHes on
temperature Is well known, at are the responses «f the Piecopterans t» both
"winter warm" and "tuinimer cold" conditions wfclch may prevail below
impoundments (Stanford and Ward, W79). The discussion In the text
reprdiBg the effects of valley fills and ponds on jtonefly populations Is a
plausible explanation for the variability seen In the study and ts appropriate
for the discussion section of the study. No changes have been made to the
tent as a result of this comment.
Page 17, paragraph 3 and top of page 18
The statement, "decreased scraper community in the spring when temf cover shades the stream",
cannot be documented. We did not do wy canopy measurements and we do not see any data to
indicate Potcsta did either. We sampled in late April and early May before leaf out was complete.
Page 14 of 16
Page 15 of 16
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A-241
Section A - Organizations
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POTESTA: Samples were collected January 21-31, 3900 (Winter) and May 17-18, 29M
(Spring). Although specific measurements were not taken, common sense
would dictate thai the tree cover In headwater streams would differ
substantially between these two periods. That lacking, the attached
photographs support increased shade during the spring sampling event
(Attachment 2). No changes have been made to the text as a result of this
comment.
Page 18, paragraph I
There is no data or supporting literature to back up the idea that there is a greater food sypply for
collectors in the streams below fills and ponds,
POTESTA: While the scientific knowledge is limited rtgardhif conditions below flit*,
there is no shortage of information regarding the conditions below
impoundments and pond discharges. In general, an increased density,
primarily of filter feeder* and collectors is expected resulting from flow
constancy, organic loading, or both (Stanford tied Ward, M79; Petti, 1984;
Alien, 2000). Although It should be noted that the responses at benthic
communities to Impoundments are highly variable depending on such factors
as release location (surface or bottom release), impoundment size and
retention time, water quality, geographic location, and many others. A
discussion of the changes in the benthic macroln vertebrate community below
impoundments has been added elsewhere in the text.
Page 20
Both the structure and function of streams below valley fills have been altered and as such would
not meet the objectives of the Clean Water Act.
POTESTA: The changes In an aquatic system downstream of an impoundment are well
documented (Allan, Ward and Stanford, 1971. Petto, 1984, Allen, 260ft). If
the Clean Water Act (Act) is interpreted such that "restoration and
maintenance of chemical, phyiicsl and biolej^eai integrity'* means no change
is acceptable betew an impoundment, than then are many impoundments
created for flood control, hydroelectric production, drinking water reservoirs
and beaver hoasing which ire also in violation of the Act. Additionally,
many other activities such as removing canopy cover, dredging a channel,
building hi a watershed, and others, would also be a violation of the Act. The
discharge of organic material from a waste treatment plant, white within the
permit limits. Increases the filter feeding organisms Mow the discharge and
this too would be a violation of the Act We disagree with the conclusion that
became streams are "altered" the activities do not meet the objectives of the
Act and would request that the reviewer provide documentation for this
Interpretation.
Page 16 of 16
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Section A - Organizations
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a & Associates, fnc.
4rch Coal, Inc.
»O ttm fe te'
II r 4t K tH'' 'Vf ( ^ >.l -a *' It
^X) Mad !»*«•«wirww ^
-------
ST-St JtefejHrtrt BJ«» n«w«*(t*
-------
Polestt & Aj&ociirtas* Inc.
Arch Coal. Jnc.
PO Hos *3«-'i
ttai, We?: VnswU 2J'l i -*7f»
JPOTESTA
POTESTA & ASSOCIATES, INC.
Engineers and Environmental Consultants
September 2003
SUPPLEMENTAL QUANTITATIVEBENTH1C
MACROINVERTEBRATE STUDIES
IMPLEMENTED IN CONJUNCTION WITH THE
USEPA MOUNT AINTOP MINING/VALLEY FILL
ENVIRONMENTAL IMPACT
STATEMENT STUDY
WITHIN THE MUD RIVER, SPRUCE FORK, AND
ISLAND CREEK WATERSHEDS
Prepared/or:
Arch Coal, Inc.
10 Kesjton Drive
Cha-leiton, West Virginia 25311
Prepared by:
Potesta & Associates, IDC.
2300 MacCoikle Avenue, S3.
Charleston, West Virginia 25304
E-mail; potesta^wtesttcom
Project No, 01-0057-006
800 NMtoMl tMN*. t. b - CtartMIM, V
ISJ04 • Phom: <3««) Ml-1408; fan (J04) 343-9831: *«wfMM«uc
MTMA/F Draft PEIS Public Comment Compendium
A-245
Section A - Organizations
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TABLE OF CONTENTS
1,0
EXECUTIVE SUMMARY
2,0 INTRODUCTION 2
3.0 METHODS 3
3.1 Study Areas / 3
3.1.1 Mud River Watershed 4
3.1.2 Spree* Fork Watershed 4
3.1.3 Island Creek Watershed 4
3.2 Sampling Seasons 5
3.2,1 Summer 1999 5
3.2,2 Fall 1999 5
3.2.3 Winter 2000 6
3.2.4 Spring 2000 7
3.3 Quantitative Surber Sampling , ., ,,.„......„.,., 7
3.3.1 Sample Collection , 7
3.4 Sample Sorting & Identification , 7
3.5 Data Management.... .... , 8
3.5.1 Data Entry 8
3.5.2 Statistic*! Analysis 8
3.6 Bioassessment Metrics ., 9
3.7 Water Chemistry Analysis 9
3.8 Habitat and Substrate Assessment 9
4.0 RESULTS 10
4.1 Summer 1999 10
4.2 Fall 1999 10
4.3 Winter 2000 11
4.4 Spring 2000 12
4.5 Water Chemistry Analysis 12
4.6 Habitat and Substrate Assessment 13
5.0 DISCUSSION 13
5.1 Drought Effects 13
5,2 Winter Benthtc Macroinvertebfates — 14
5.3 Winter Water Chemistry 16
5.4 Winter Habitat 17
5.5 Spring Benthic Maeroinvertebrates „„..,.. , 18
5.6 Spring Water Chemistry , 19
TABLE OF CONTENTS (Continued)
6.0 CONCLUSIONS
7.0 CLOSING
8.0 REFERENCES
APPENTOCKS
Figures 1 - 27 APPENDIX A
Tables 1 -19 APPENDIX B
FFG Table APPENDIX C
19
21
22
Arch Coal Supplemental MTR/VP EIS Study Report, Septemtw 2003
Arch Ce»l Sappleraeatal MTR/W BIS Stady Report, SefiWAer 2003
MTM/VF Draft PEIS Public Comment Compendium
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SUPPLEMENTAL BENTHIC MACROINVIRTEBRATE
STUDIES IMPLEMENTED IN CONJUNCTION WITH THE
USEPA MOUNTAINTOP MINING/VALLEY FILL
ENVIRONMENTAL IMPACT STATEMENT STUDY WITHIN THE
MUD RIVER, SPRUCE FORK, AND ISLAND CREEK WATERSHEDS
1.9 EXECUTIVE SUMMARY
Arch Coal, Inc. (ARCH) laniired the services of Potesta & Associates, Inc. (POTESTA) to collect
supplemental benthic macroinvertebrate samples in conjunction with the United States
Environmental Protection Agency (USEPA) during the implementation of the Summer 1999, Fail
1999, Winter 2000, and Spring 2000 index periods of the Mountaittop Removal/Valley Fill Mining
Environmental Impact Statement Study (MTR/VF-EIS) within the Mad River, Spruce Fork, and
Island Creek watersheds. POTESTA collected six supplemental quantitative Surber samples at each
monitoring station sampled by the USEPA (except MT-24 which was a wetland-type habitat) during
each of the four index periods.
This report is a presentation of the benthic tnacroinvertebtate data at the familial level. Also
incorporated are water chemistry and habitat data collected at the sites by the USEPA. to sampling
seasons, when sufficient data were available, statistical comparisons were made between the
unmined (reference), valley filled and valley filled/residential sampling sites.
The majority of the reference streams within the three watersheds were dry during the summer and
fall index periods. Six of the seven unmined reference streams within the three watersheds were dry
during the summer index period. Ail seven reference streams were dry during the Fall 1999 index
period. In contrast, all monitoring stations associated with valley fills had flowing water in the
Summerl999 period, and all but one of the monitoring stations had flowing water in the Fall 1999
index period. All 22 monitoring stations had flowing water during the Winter 2000 index period.
Significant differences were seen in both the benthic community and water chemistry between the
unmined streams and the filled and filled/residential sites. Differences between the unmined streams
and the fil led streams may be related to differences in temperature regimes (and therefore emergence
times), the presence of ponds (additional food source), and water chemistry differences between the
treatments. One interesting finding is that while the most significant biological impairment was
indicated in the filled/residential sites, as compared to the unmined sites, the most significant
differences in water chemistry were seen between the filled sites and the unmined sites. This
indicates that the significant changes in the communities at the filled/residential sites (and possibly
the filled sites) results from some variable other than water chemistry parameters.
Neither the changes in the biological community, nor the changes in the water chemistry in the filled
sites appear to have significant adverse impacts on the stream function with respect to downstream
segments. The most significant changes in stream biological community are the shifts in the
functional feeding groups toward more filter feeding organisms and the reduction of the mayfly
Arch Coal Supplemental MTR/VF BIS Study Report, September 2003
Page I
community in filled and filled/residential sites. The changes in community structure likely result
from the presence of ponds and changes in temperature regimes. This typically occurs in streams
whenever ponds, dams or municipal discharges are present. The reduced mayfly populations in the
filled and tilled/residential sites are not uncommon to ants with mining influence or below
impoundments. Although a reduction in mayfly populations is often attributed to the presence of
metals, the contribution of suifate and other dissolved ions may also be important. Increased
abundance at the filled sites, as compared to the unmined sites, and the presence of a similar shredder
community indicates that sufficient food is available to support a benthic community at these
locations and that downstream communities are likely receiving particulate organic material from
these more upstream segments. Filled sites and filled/residential sites did not always have identical
functional feeding group distribution. For example, a hitler percentage of collector-gathers were
found below filled/residential sites. The reduction of the mayflies does not appear to affect the
function of the streams. Sites influenced by mining continue to support an abundant population with
representatives of all the functional feeding groups, and stream function does not appear
compromised at these sites.
The changes in the benthic macroinvertebrate communities and water chemistry at the filled and
filled/residential sites are consistent with expected changes in any mining influenced streams. These
potential changes are related to mining in general, not necessarily to the practice of valley fill
construction. Of the changes in both the water chemistry and biological communities which are
described in this report, none can be attributed to the fill specifically, and all potentially result from
coal mining, road construction or residential development. Additionally, the same changes in water
chemistry and biological communities result from large scale development projects and ore
extraction and processing operations (ore and gold extraction, steel mills, smelters).
Another consideration in this study is the imbalance in comparing a mined site on a third, fourth or
fifth order stream with an uttrnined site on a first or second order stream. No unmined sites were
selected on third, fourth or fifth order streams. Although not necessarily an objective of this study,
changes in water chemistry and biological communities between first or second order streams and
third or fourth order streams are expected (Vannote et a! 1980). The changes associated with
increasing stream order should be considered in the data interpretation.
2,9 INTRODUCTION
Arch Coal, Inc. (ARCH) acquired the services of Potesta & Associates, Inc. (POTESTA) to collect
quantitative benthic macroinvertebrate samples in conjunction with the United States Environmental
Protection Agency (USEPA) during the implementation of the Summer 1999, Fall 1999, Winter
2000, and Spring 2000 index periods of the Mountaintop Removal/Valley Fill Mining
Environmental Impact Statement Study (MTWW-EIS) within the Mud River, Spruce Fork, and
Island Creek watersheds.
The USEPA survey established monitoring stations on the mainstem of the major receiving streams
that bracketed the historical and current mining activities. They proposed to assess the biological
Arch Coat Supplemental MTIWF E1S Study Report, September 2003
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Section A - Organizations
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condition of the streams with the use of the semi-quantitative kicknet sampling technique at each of
the monitoring stations and the use of the quantitative Surber (1 square foot area) sampling technique
at selected monitoring stations. POTESTA recommended the collection of six quantitative Surber
samples at each monitoring station to improve the statistical power of the analyses.
The USEPA established 23 monitoring stations within the Mud River, Spruce Fork, and bland Creek
watersheds (Table 1). Helmet samples were collected from each of the 23 monitoring stations and
Surber samples were collected from selected sites for the EPA study. POTESTA collected six
supplemental Surber samples from each site where the USEPA collected a benthic macroinvertebrate
sample. The supplemental sutber samples were collected during the same time frame as the USEPA
studies. Efforts were made to collect samples in the Summer 1999, Fall 1999, Winter 2000 and
Spring 2000 sampling seasons. Due to the drought conditions of 1999, several of the study streams
were dry and bemhic macroinvertebrate samples were not collected in these streams in the summer
and fall sampling periods. Supplemental surber samples were not collected from MT-24 because the
site was located within a drainage ditch/wetland that was not conducive to quantitative Surber
sampling.
POTESTA independently analyzed the quantitative data using the EPA collected water chemistry
and habitat evaluation data from the sampling sites. The data were analyzed statistically comparing
the EPA identified categories or "treatment"' groups of sites which were untamed or reference, sites
which were influenced by valley fills, and sites influenced by both valley fills and residential areas.
Other groups, sach as sites influenced by mining but not valley fills, and sites to sediment control
structures were not included in this analysis due to low replication that prohibited statistical analysis.
Benthic macroinvertebrate data were summarized and analyzed using metrics indicative of biological
condition. Also, differences in the benthic communities were evaluated using a comparison of
functional feeding groups to assess the nature of the community changes indicated by the statistical
analysis. While changes in functkintl feeding poups have not consistently proven to be
discriminative metrics useful for identifying changes to benthic community structure, consideration
of the functional feeding groups distribution provides additional insist into fhe nature of community
responses (Poffand Matthews, 1985) and m a useful tool in evaluating the potential causes of
community level changes.
3.0 METHODS
3.1 Study Areas
The USEPA established 23 monitoring stations within the three watersheds as pal of the MTR/VF-
EIS study (Table 1), Nine monitoring stations were established within the Mud River watershed
(Figure 1), eight monitoring stations within the Spruce Fork watershed {Figure 2), and six monitoring
stations within the Island Creek watershed (Figure 3). Figures I, 2, and 3 are copies of USEPA
documents showing their selected monitoring stations are used with the permission of the agency.
The monitoring stations were designated by the USEPA as either urtrftmed (reference) stream
segments, or stream segments with valley fill mining (filled). The filled category was father divided
into filled with no residential impacts and filled with residential impacts (filled/residential).
Arch Coal Supplemental MtWVF £1S Sittdy Report, September 2003 Page 3
Additional samples were collected in areas thst had historical mining with no valley fills (mined) or
were historically mined with residential areas. These data are not discussed herein because the
sample sizes were so small that they could not be included in the statistical analysis. They are,
however, included in the lists of satnples collected.
In addition, the USEPA sampling program included sampling locations selected to indicate
cumulative mining impacts in the watershed and reference locations were selected for each
downstream sampling location. It was later determined by the USEPA that the impacts of mining
could not be separated from other multiple influences in the watersheds (Mefneratsduffi: From
Rebecca Hanmer, January 8,2001), Therefore, a discussion of cumulative impacts is not included in
this report.
3.1.1 Mud River Watershed
The USEPA established three reference stream segments, one mined stream segment, and four filled
stream segments within the Mud River watershed The three reference steam segments were located
on Rushpsteh Branch (MT-02), Lukey Fork (MT-03), and Spring Branch of Ballard Fork (MT-13).
The mined stream segment was located on the upper Mud River (MT-01). Although MT-01 was
sampled, the data were not included herein because the sample sixes were too small. The four filled
stream segments were located on Ballard Fork (MT-14), Stanley Fork (MT-1S), Sugartree Branch
(MT-18), and the lower Mud River (MT-23). The lower Mud River, MT-23, was a filled/residential
stream segment. The USEPA also established a second mined stream segment within the sediment
control drainage ditch at the headwaters of Stanley Fork (MT-24), but POTESTA did not sample this
site.
3,1.1 Spruce Fork Watershed
The USEPA established two reference stream segments, one mined stream segment and 6ve filled
stream segments within the Spruce Fork watershed. The two "reference" stream segments were
located on White Oak Branch (MT-39) and Oldhouss Branch (MT-42). The mined stream segment
was located on Pigeonroost Branch (MT-45). Although MT-45 was sampled, the data is not
presented in this report. The five filled stream segments were located on Roekhouse Creek
(MT-258), Beech Creek (MT-32), Left Fork of Beech Creek (MT-34B), Spruce Fork (MT-40), and
Spruce Fork (MT-48). The two Spruce Fork stream segments, MT-40 and MT-48, are also
influenced by residences and are therefore considered filled/residential.
3.1.3 Island Creek Watershed
The USEPA established two reference stream segments, one mined stream segment and three filled
stream sepaents within the Island Creek watershed. The two "reference" stream segments were
located on upper Cabin Branch (MT-50) and the lower Cabin Branch (MT-51). The three filled
stream segments were located on Cow Creek (MT-52), Hall Fork of Left Fork of Cow Creek
CMT-57B), and Left Fork of Cow Creek (MT-«0), The Cow Creek station MT-55 was
filled/residential.
Arch Coal Supplemental MTR/VF EtS Study Repo«. September 2003
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3,2 Sitmplittg Seasons
As part of the MTR/VF-EIS study, the USEPA sampled over five seasons (Spring 1999, Summer
1999, Fall 1999, Winter 2000 and Spring 2000). POTESTA collected quantitative benthic
macroinvertebrate samples over four seasons (Summer 1999, Fall 1999, Winter 2000, and Spring
2000) within the Mud River, Spruce Fork, and Island Creek watersheds. The Summer 1999 studies
were implemented during late July 1999, the Fall 1999 studies were implemented during late
October 1999, the Winter 2000 studies were implemented during late January 2000, and the Spring
2000 studies were implemented in mid-May 2000.
3.2.1 Summer 1999
Sampling during the summer season was implemented within the three watersheds from July 27 to
July 29. 1999. Drought conditions existed during this collection period. POTESTA collected
benthic macroinvertebrate samples from four of the nine sampling stations within the Mud River
watershed, seven of the eight monitoring stations within the Spruce Fork watershed, and four of the
six monitoring stations within the island Creek watershed.
Within the Mud River watershed, the three unmined monitoring stations (MT-02, MT-03, and
MT-13) did not have sufficient flow to collect representative samples during late July 1999, and
benthic macroinvertebrate samples were not collected from these monitoring stations. In addition,
POTESTA did not collect benthic mBcroinvertebratBS from the drainage ditch (MT-24). Quantitative
benthic macroinvertebrate samples were collected from three filled monitoring stations (MT-I4,
MT-15, and MT-18) and the filled/residential site, MT-23.
Within the Spruce Fork watershed, one (MT-39) of the two unmined stream segments was dry. The
second unmined stream segment (MT-42) exhibited tow flow conditions. However, POTESTA was
able to collect samples at this site. Macroinvertebrate samples were also collected from the filled
stations MT-25B, MT-32, and MT-34B, as well as the filled/residential sites MT-40 and MT-48 und
the mined site MT-45.
Within the Island Creek watershed, benthic macroinvertebrate samples were not collected from the
unmined sites, MT-50 and MT-51, due to dry conditions. Benthic macroinvertebrate samples were
collected from the filled stations MT-60, MT-57B, and MT-52 and from the filled/residential site
MT-55.
3.2.2 Fall 1999
Sampling during the fall season was implemented within the three watersheds from October 26 to
October 28,1999. All of the unmined streams were dry during the fall sampling season. POTESTA
was able to collect benthic macroinvertebrate samples from five of the nine sampling stations within
the Mud River watershed, five of the eight monitoring stations within the Spruce Fork watershed,
and four of the six monitoring stations within the Island Creek watershed.
Within the Mud River watershed, the three antntrted monitoring stations (MT-02, MT-03, and
MT-13) did not have sufficient flow to collect representative samples during Sate October 1999, and
benthic macroinveitebrate samples were not collected from these monitoring stations. POTESTA
did not collect quantitative samples from the drainage ditch (MT-24). Benthic macroinvertebrate
samples were collected from the filled sites MT-14, MT-15, and MT-18. In addition, benthic
macroinvertebrate samples were collected from the filled/residential site MT-23. A sample was also
collected from the mined site MT-01,
Within the Spruce Fork watershed, both unmined monitoring stations (MT-39 and MT-42) were dry
in late October 1999, and benthie macroinvertebrate samples were not collected from these
monitoring stations. Benthic macroinveitebrate samples were collected from two of the three filled
segments (MT-2SB, MT-32), the mined stream segment (MT-45), and bom the filled/residential sites
(MT-40 and MT-48). The stream sepnent associated with MT-34B was dry, and benthic
macroinvertebrate samples were not collected from this monitoring station.
Within the Island Creek watershed, the "reference" stream segments (MT-50 and MT-51) were dry
daring late October 1999, and benthic macroinvertebrate jamples were not collected froni these
monitoring stations. Additionally, the stream segment associated with MT-51 was severely disturbed
by the installation of a natural gas line by the local gas company. Filled monitoring stations MT-52,
MT-60, and MT-57B, and the filled/residential station MT*55 stations had flowing water conditions,
and benthic macroinvertebrate samples were collected from each of these sites.
3.2,3 Winter 2984
Sampling during the Winter 2000 season was implemented within the three watersheds from
January 21 to January 31, 2000. Ice had to be removed from several locations to collect benthic
macroinvertebrate samples. POTESTA collected benthic macroinvertebrate samples from eight of
the nine sampling stations within the Mud River watershed, seven of the eight monitoring stations
within the Spruce Fork watershed, and all six monitoring stations within the Island Creek watershed,
Within the Mud River watershed, benthic macroinvertebrate samples were collected from the three
unmined monitoring stations (MT-02, MT-03, and MT-I3), the three filled monitoring stations
(MT-14, MT-15, MT-18), the filled/residential station, MT-23, and the mined site MT-01.
POTESTA did not collect mteroinvertevbrtte samples from the drainage ditch (MT-24).
Within the Spruce Fork watershed, benthic nwcrainvertebrate samples were collected from both
unmined stream segments (MT-39 and MT-42), two of the three filled monitoring stations (MT-25B,
MT-32), the mined station (MT-45), and both the filled/residential stations (MT-40 and MT-48),
The stream segment associated with MT-34B was completely frozen, aad benthic macroinvertebrate
samples were not collected from this monitoring station during the Winter 2000 index period.
Within the Island Creek watenhed, the unmined stream segments (MT-50 and MT-51), the filled
monitoring stations (MT-52, MT-60 and MT-57B), and the filled/residential (MT-55) monitoring
Arch Cool Supplemental MTR/VF EIS Study Report, September 2003
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station had flowing water conditions, and benthie macroinverttbrate samples were collected from
each of these sites during the Winter 2000 index period,
3.2.4 Spring MOO
Sampling during the Spring 2000 season was implemented within the three watersheds May 17
and 18,2000. Within the Mud River watershed, benthic macroinvertebrate samples were collected
from eight of the nine USEPA monitoring stations. POTESTA did not collect macroinvertevbrate
samples from the drainage ditch (MT-24) due to inappropriate substrate for surber sampling, Within
the Spruce Fork and Island Creek watersheds, benthic macroinvertebrate samples were collected
from all of the USEPA monitoring stations.
3.3 Quantitative Sarber Sampling
3.3.1 Sample Collection
The benthic macroinvertebrate population at each station was sampled using the quantitative Surber
sampler with a 500 ^m nylon mesh. The sampling procedure followed standard sampling protocols
described in Standard Methods 10500B (Standard Methods, 1995). The Surber sampler was placed
on the stream bottom, ensuring that the bottom frame edges of the sampler were fiat against the
stream bottom so that all organisms within the sampling frame would drift into the net Cobble and
large gravel were brushed thoroughly and removed from the sampling fame. The substrate was then
disturbed to a depth of approximately three inches with the handle of the brush. Six Surber samples
were collected at each sampling station and retained as individual replicate samples.
3.4 Sample Sorting & Identlflcalion
The samples were removed from the Surber sampler net and transferred to one-liter plastic jars with
the use of a 500 #m sieve. Each sample was assigned a unique sample identification code based on
the sampling site, date, and replicate number. A sampling label with the unique identification code
was filled out with pencil and inserted into the jar. The unique identification code also was written
on the lid of the plastic jar with a black permanent marker. The unique sample identification code
also was noted in the field notebook for that specific sampling site. The samples were preserved in
the field with 70 to 75 percent ethyl-alcohol. .The samples were transported to the offices of
POTESTA in Charleston, West Virginia, by car, by the POTESTA biologists who collected the
samples.
Upon arrival at the offices of POTESTA, the samples were stored in the locked sample storage room
until they were processed and identified. Samples were sorted and identified by Dr. Thomas Jones'
laboratory at Alderson-Broaddus College located in Philippi, West Virginia. Some benthic
macroinvertebrate samples were sorted by staff and identified to familial level by senior scientists at
POTESTA and an outside consultant at Pennsylvania State University (resumes for the
subcontractors have previously been provided to the USEPA). All of the samples were identified to
the familial taxonomic level. Taxonomic keys used for this project included Merritt and Cununins
Arch Co»l Supplemental MTR/VF EtS Study Report, September 2003 Page 7
(1996), Wiggins (1996), and Stewart and Stark (1993). Standard quality assurance/quality control
(QA/QC) measures were followed to keep track of the samples (USEA QAPP).
3,5 Bat?. Management
35.1 D»ta Entry
The data from each sample log sheet were entered into a Microsoft ACCESS database. The
database, which was developed by the West Virginia Division of Environmental Protection and the
USEPA, calculated a series of bio-assessment metrics. The database was modified by POTESTA to
calculate all the metrics included in this analysis. Data utilized in the analysts included only aquatic
life stages of aquatic and semi-aquatic organisms. Terrestrial organisms and adults which were not
aquatic were excluded. These organisms are not contributing solely to the aquatic ecosystem at the
time of sampling, and their exclusion for data analysis is standard procedure. Similarly, pupae were
excluded from the data set. The metrics for each sample were exported to a Microsoft EXCEL
spreadsheet. Summary statistics such as maari, standard deviation, minimum value, and maximum
value for each of the stream segments were calculated using Kurnber Cruncher Statistical System
(NCSS) 2000 software.
3.5.2 Statistical Analysis
The Summer and Fall 1999 datasets were not complete due to the dry conditions. These datasets
were not subjected to statistical analysts. Data from the Winter and Spring 2000 sampling events
were more complete and were therefore utilized in significance testing. These data are also
represented graphically using Box and Whisker plots. The graphical displays allow for visualization
of differences between groups and violations of assumptions. To compare different types of stream
segments (unmined, filled and filled/residential") analysis of variance (ANOVA) methods were used.
The calculations were performed using the general linear models (OLM) procedure on NCSS. Prior
to the analysis, the data were rank transformed to reduce the effects of violations of the assumptions.
Following the overall test of mean differences, the reference (unmined) mean was compared to the
filled and filled/residential means using multiple comparisons based on Bonferroni adjusted Wests.
For all of the analyses, a Type I error rate of 0.05 was used.
Functional feeding groups, as described by Merrit and Cummings (1996) were determined for
benthic macroinvertebrate tmxa collected during the Winter and Spring 2000. The USEPA's Rapid
Biowsessment Protocols for Use in Wadeable Streams and Rivers - EPA S41~B-»-002 (RBP
Protocol) was also referenced for functional feeding group information as necessary. Functional
feeding groups included collector, filterer, scraper, shredder, predator and piercer. The feeding group
designation for each identified family is indicated in Table 2. Statistical comparisons between the
filled, filled/residential and unmined sites to Statistical comparison of functional groups between the
filled, filled/residential and unrm'ned sites were made using the OLM procedure on the ranked data
followed by Bonferroni t-test comparisons.
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3.6 Bioassessntent Metrics
The metrics included herein were based on the family-level classification and have been selected by
POTEST A as the most appropriate and comprehensive for use in conducting assessments of bemhic
rnacroinvertebrate communities. The metrics were selected from a larger group of widely applicable
candidate metrics described in the RBP Protocol. Bach of the selected metrics measured a different
component of the community structure and has a different ratige of sensitivity to
pollution/disturbance stress in the aquatic ecosystem. A description of each metric along with the
expected change in response to stress is included in Table 3. The 11 metrics were:
* Total Number of Individuals (Abundance)
Total Number of Taxa (Richness)
• Hilsenhoff Biotic Index (HBI)
• Percent Two Dominant Taxa
• Percent Chironotnidae
• Total Number of EPT taxa
• Number of EPT individuals
• Percent EPT taxa
• Percent Epheraeroptera
• Percent Plecoptera
• Percent Trichoptera
3.7 Water Chemistry Analysis
USEPA personnel have collected water chemistry samples for analysis as described in the EIS
document. Those data are included herein so that comparisons can be made between the treatment
classes with regard to the water chemistry.
Please note that while no data included herein were disqualified due to Quality assurance problems
with the USBPA contract laboratories, the results of the analysis are from the "first contract
laboratory" and were excluded from some of the USEPA's analysis due to perceived probiems with
the laboratory. Despite the potential quality issues, the data are included since they represent the
only water quality information available from the study period. The data should be interpreted with
caution.
Water chemistry data were analyzed using the OLM procedure on the ranked data followed by
Bonferront t-test comparisons. Statistical comparisons between the filled, filled/residential and
unmined sites were made where possible. Sample size was sometimes limiting.
3.8 Habitat and Substrate Assessment
USEPA personnel have performed habitat assessments and collected substrate Information at each
sampling location as described in the preliminary draft EIS document. Those data are included
hereto so flat comparisons can be mtde between the treatment classes with regard to the available
habitat and substrate.
Total habitat scores and measured values relating to habitat variability w«re analyzed using the GLM
procedure oil the ranked data followed by Banferroni t-test comparisons. Statistical comparisons
between the filled, filled/residential and unmined sites were made where possible.
4.0 RESULTS
The 11 bio-assessmeM metrics calculated for each monitoring station and season are provided in
Table J.
4.1 Summer 1999
When the benthic maeroinvwtebrate samples were collected in the Summer I999 index period, six of
the seven reference streams within the Mud River, Spruce Fork and Island Creek watersheds were
dry ot had insufficient flow to collect a sample. In contrast, all valley fill nutting-influenced
monitoring stations had flowing water in the summer and could be sampled. Due to the luck of
reference information, no comparisons can be drawn between the reference conditions and the filled
and filled/residential conditions. In addition to the obvious drought conditions, low flow conditions
occurring during the highest temperatures of the year make evaluation of mining influences difficult
It appears that the presence of fills to the watershed may minimize the effects of drought conditions
by supplying a more consistent flow of water to the headwater streams. However, the actual impacts
that drought conditions have on stream communities are variable depending on the length and
severity of the drought sad the extent of reftigia available for benthic macroinverfebrates to inhabit
until surface conditions are more favorable. The impacts that the drought in 1999 had on the
reference streams are unknown.
Data collected from the filled, filled/residential, and flowing unmined sites in the three watersheds
are presented m Table 4.
4.2 Pall 1999
As occurred in the Summer 1999 sampling event, all the reference streams within the three
watersheds were dry during the fall index period. One of the filled monitoring stations was dry
during the Fall 199V index period. As indicated previously, due to the lack of reference information,
no comparisons can be drawn between the reference conditions and the filled and filled/residential
conditions.
Data collected from the filled and filled/residential sites in the three watersheds are presented in
Table 5.
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4,3 Winter 2600
AH 2 \ monitoring stations had flowing water during the Winter 2000 index period, although one
monitoring station was completely frozen over and samples were not collected daring the Winter
2000 sampling event. Summary statistics for each site sampled are given in Table 6. Summary
statistics for each of the site types (reference, filled, or filled/residential) are included in Table 8 arid
the data are presented graphically in Figures 4 to 14. Boxplots are constructed using the average of
the stirber samples to represent one data point for each site.
Data from the three groups were compared statistically using a general linear model procedure on the
ranked data. Where statistically significant differences were fbimd between the groups, pairwise
comparisons were made using t-tests with the Banferroni adjustments. Results of the statistical
analysis are presented in Table 9. As is indicated in the table, the greatest difference between the
groups is in the percent mayfly metric followed by the percent EPT, percent chironomids, atMi
percent two dominant taxa. The filled/residential sites were significantly different from the unmined
sites for eight of the eleven metrics. The filled sites were significantly different from the unmined
sites for two of the eleven metrics, percent mayflies and percent two dominant taxa.
The functional feeding group for each identified family was determined. Functional feeding groups
are classifications that distinguish insects based on tiie manner in which they process nutrients. For
example, a collector filter is an organism which filters nutrient material from the water column.
Examining functional feeding groups may indicate to what degree a stream segment is depejndent on
a particular food resource (Merrill and Cummins, 19R4). The function feeding groups were
represented graphically for the filled, filled/residential, and untamed sites (Figure 15). The filter
feeders increased in the filled and filled/residential sites with respect to the unmined sites. The
collector group increased in the filled/residential sites as compared with the unmined and filled sites.
Scrapers declined in the filled and filled/residential sites with respect to the unmined sites.
Shredders increased slightly below the filled sites but declined in the filled/residential sites with
respect to the unmined sites. Predators were similarly represented in the filled and unmined sites but
decreased in the filled/residential sites.
Statistical analysw of the data indicate that collector-gatherers were significantly higher in the
filled/residential sites as compared to the unrnined sites (Table 10). Representatives of the piercer
feeding group were also significantly reduced in the filled/residential sites as compared with the
unmined category; however, there were so few piercers in the population that the differences are
slight. Organisms from the scraper functional feeding group dominated the unmined sites and were
significantly greater than representatives of this functional feeding group with respect to the filled
sites. Of particular significance is the similarity between the unmined and filled groups with respect
to shredders having 19.3 percent and 25 percent of each community comprised of these individuals,
respectively. Also noteworthy is the increase to fllterer-collectors in the filled and filled/residential
groups, which could be attributed to increases in the organic inputs. The sources of organic
enrichment would likely be domestic inputs at the filled/residential sites and the pond influence at
the filled sites, increases in collectors, particularly filter feeders, below impoundments are well
documented in the literature (Allen, 2000; Stanford and Ward, 1979; Pette, 1984).
4.4 Spring 29»
AH 22 monitoring stations had flowing water during the Spring 2000 index period and samples were
collected from each station except MT-24, which was not sampled due to substrate limitations.
Summary statistics for each site sampled are given in Table 7. Summary statistics for each of the site
types (reference, filled, or filled/residential) are included in Table 11, and the data are presented
graphically in Figures 16 to 26. Boxplots are eoaitructed using the average of the surber samples to
represent one data point for each site.
As with the winter index period, data from the three groups were compared statistically using a
general linear model procedure on the ranked data. Where statistically sijpuficaot differences were
found between the groups, pairwise comparisons were made using t-tests with the Bonferroni
adjustments. Results of the statistical analysis are presented in Table 12.
As shown in Table 12, the greatest difference between the groups is in the percent mayfly metric
followed by the percent EPT, percent chironomids, MM, and percent two dominant taxa. The
filled/residential sites were significantly different from the unmmed sites for six of the eleven
metrics. The filled sites were significantly different from the tuimined sites for five of the eleven
metrics, including: EPT richness, percent Plecoptera, percent Bphemeroprera, and HBI.
The functional feeding group for each identified family was determined. The functional feeding
groups were represented graphically for the filled, ftUed'residerttM, arid unmined sites (Figure 27).
As seen also in the winter data, the filter feeders increased in the filled and filled/residential sites
with respect to the unturned sites. The collector group increased slightly in the filled/residential sites
as compared with the unmined and filled sites. There were fewer scraper t«xa in the filled and
filled/residential sites with respect to the unmined sites. In contrast to the winter sampling event,
shredders decreased below the filled md the filled/residential sites with respect to the unmined sites.
Predators were similarly represented in the Filled and unmined sites but decreased in the
filled/residential sites.
Statistical analysis of the data indicates that there were no statistical differences between the
unrnined, filled and filled/residential groups with respect to the collector-gatherers, scrapers, or
piercers (Table 13). Collector-gatherers dominated all treatments. Shredders were significantly
lower in the filled and filled/residential sites than the unrrtitied sites and filterer-collectors were
significantly greater in the filled and filled/residential sites than the unmined. Predators were again
siptficantly reduced in the filled/residential sites as compared with the unrnined.
4,5 Wator Chemistry Aimlyuls
OSEPA personnel have collected water chemistry samples for analysis as described in the EJS
document. Those date discussed herein are included in Tables 14 and 15 with summaries showing
statistical comparisons given in Tables 16 and 17.
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4.6 Habitat atitl Substrate Assessment
Selected habitat and substrate parameters were compared with the metrics found to indicate
significant differences between the tmmined, filled, and filled/residential sites. The data used in the
comparisons are included in Table 18 and the results of the statistical comparisons are included in
Table 19.
5.0 MSCUSSION
This report is a presentation of the benthic ffiacroinveitebrate data at the familial level. The study
focused on the Mud Rivet, Spruce Fork, and Island Creek watersheds. There was a drou^it during
the Summer and Fall 1999 index periods,
5.1 Drought Effects
The majority of the reference streams within the three watersheds were dry during the summer and
fall index periods. In contrast, valley fill stations had flowing water in the summer and all but one in
the Fall 1999 index period. The extent to which the drought conditions affected the bentbie
communities is unknown. In response to reduced flow conditions, higher temperatures, and lower
dissolved oxygen levels associated with drought conditions (Alien, 2000; Lake, 2000; Miller and
Goiladay, 1996), the benthic macroinvertebtate communities may experience increased predatioti and
competition, increasing richness of opportunistic species, low abundance, and change in functional
feeding group structure (Lake, 2000; Miller and Golkday, 1996}. The tmmimsd sites, which were
too flow limited to be sampled, and to some extent, the filled, and filled/residential streams may have
experienced all or some of these conditions related to drought conditions.
During the summer drought conditions, benthie communities in the filled and filled/residential
streams were characterized by low abundance and richness in the Mud River watershed with
moderate richness and abundance in the Spruce Fork and Island Creek watersheds. Filter feeding
ciddisflies from the family Hydropsychidae dominated benthic communities at most of the filled
sites. Filled/residential sites were dominated by riffle beetles which may reflect increased algae
growth due to nutrient loading from residences or decreased canopy cover in the larger, higher order
streams. Stoneflies and mayflies were poorly represented in the samples; however, HPT abundance
and percent EPT metrics were high due to the dominance of the Trichoptera.
Similar drought conditions were seen in tbe fall index period. In the Mud River watershed, the
abundance increased at the filled sites. Richness also showed a slight increase as compared with the
summer condition. Stoneflies were dominant at the filled site, MT-14, and increased throughout the
watershed. The shredders from families Leuctridae/Capniidae and Taeniopterygidae were prevalent,
and Philopotmnidae, another filter feeding caddMy, was dominant in addition to the
Hydropsychidae. Cbironomktee, a collector, was dominant at the filled site, MT-18. Spruce Fork
and Island Creek watersheds also had increases in abundance and moderate richness. As seen in
Mud River, Stoneflies increased in both watersheds which also raised the EPT abundance.
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Communities at sampling locations in the Spruce Fork watershed were still dominated by
hydropsychids with riffle beetles, Leuctfiese/Capniidte, and rm4ges also contributing to the percent
two dominant taxa metric.
Data collected during the Summer and Fall af 1999 should be interpreted carefully due to the
stressful conditions of the drought and the lack of reference data for comparison. Overall, streams
with valley fills are more likely to maintain flowing water conditions during dry periods. These
streams are dominated by filter feeding organisms followed by shredders with scrapers, the riffle
beetles, appearing in the larger more open streams.
5.2 Winter Benttfe Maeroinvertebrates
Benthic maeroinverteferate data collected during the winter sampling event showed differences
between the unmined, filled and filled residential groups. Abundance was reduced in the unturned
reference locations possibly due to the drought conditions experienced in the previous two index
periods. As indicated, the effects of the fills appear to mitigate the drought and likely contributed to
the higher abundance in the filled and filled/residential sites. Differences between the benthic
macroinvertebrate communities in the unmined and fllles sites were evident in the metrics involving
the mayfly population which was decreased below the fill sites, Stoneflies were prevalent in these
sites, however, indicating that water quality may not be the limiting factor for the absent mayflies, as
they are both sensitive taxa. Below the filled sites, the sensitive EPT taxa still comprised an average
of 50 percent of the population.
The increased variability for several metrics in the filled sites, as compared with the unmined sites,
indicates that there are differences within the filled group which may I imit the benthic communities
at some sites but not consistently in this group. Significant differences in the filled group, which
pertain to mining influences, may include the age of fill, time elapsed since fill completion, type of
overburden placed in the fill, number of fills in the watershed, size of the fills, and engineering
practices used in fill construction. Differences may also be due to site related conditions such as the
presence of ponds or impoundments, distance from the sampling site to the impoundment, number of
ponds upstream of the site, size and age of the ponds, impoundment release mechanism (surface or
bottom release), general watershed characteristics {gradient, soil type, cover) and many other
variables. Overall, the filled sites are only significantly different from the unmined sites with respect
to the percentage of the population comprised of mayflies and the percentage of the two dominant
taxa, which is not necessarily a mayfly influenced metric. Differences in both of these metrics may
be attributed to the differences in food sources for the organisms in the filled sites located below the
ponds associated with the fills, stream order, and differences in temperature regimes associated with
the fills and the ponds.
Flowing stream systems rely on food sources typically contributed from upstream segments which
are dependent on allochthonous inputs, such as leaf litter, for nutrients. The leaves are broken down
by shredders which eat the leaf material and the fungi and bacteria colonizing the leaf Utter. Small
parts of the leaves, associated fungi and bacteria, as well as feces from the organisms contribute to
the food supply of downstream collector-gatherers and filter feeding organisms. The streams with
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valley fills have a sediment retention pond located typically in the most upstream reaches of the
stream just below the fill area. These ponds carry out a similar function for the upstream reaches of
the streams. In the ponds, biological communities are established which are dependent on algal
growth, not leaf litter, as a food source. The algae and detrital material flowing from the ponds act as
the food source for the downstream communities. Since this is a more continuous and less variable
food supply than leaf litter, the filler feeding and gathering organisms increased below the ponds,
much like they would be in the downstream reaches of rivers described by the river continuum
concept. White this represents a fundamental shift in the biological community, the community
created is not necessari ly undesirable, it is simply different and more representative of a community
located much farther downstream.
Changes in the beiMhie mscroinvertebmte community structure below impoundments are well
documented. In general, increase in density and biornass, primarily of filter feeders and collectors,
and a decrease in diversity, is expected downstream of an impoundment These changes may result
from flow constancy, organic ioadiftg, temperature changes or a combination of multiple factors
(Stanford and Ward, 1979; Petts, 1984; Allen, 2000). Temperature changes often play an important
role in shaping community structure and vary depending on many factors including the location of
the impoundment water release (surface or bottom), source of water, size and depth of the pond and
retention time of the pond Kondtatieff and Voshell, 1980). Summer cools and winter warms
particularly impact taxa dependent on thermal cues for life cycle completion. Mayflies and stoneflies
are often eliminated below impoundments (Stanford and Ward, 1979). Caddisflies and other
collectors and filter feeders, as well as, afljphipods, isopods, gastropods, oltgochaetes, and
turbetlariaiis often increase (Stanford and Ward, 1979)
Also of interest below the fills is the presence of a shredder community very similar to the unmined
reference streams. It appears that leaf litter and detritus are still available as a food source for these
organisms in addition to the pond inputs. In streams where an established riparian »ne is in place,
stotjeflies of the families Leuctridae, Capniidae, Tanaepoterygidse, and Nemouridae comprise the
shredder communities in unmined areas and below the fill areas. The similar communities in the
filled and unmined streams indicate that the downstream reaches of the streams are being supplied
with the coarse and fine paniculate organic material which are the major contribution of headwater
reaches described in the rivet continuum theory (Varmote, et at, 1980).
During the winter sampling event, the percentage of scrapers was high in the unmined areas. This
community, primarily composed of the mayfly, Ameletidae, and the beetle, Elmidae, was lower in
the filled sites which may reflect the changing food source below the ponds and maybe indiative of
competition with the filter feeders and collectors which increased below the fills and ponds. This
shift away from the scraper abundance in the filled sites contributes significantly to the decline in the
mayflies below the filled sites. Because they are a sensitive taxa, a decrease in the mayfly
community may appear to indicate community degradation associated with the fills and has been
represented «s being indicative of poor water quality due to the fills. While this any be the case, it
cannot be overlooked that the entire scraper community declines in the Ml sites, not just the
mayflies. This includes snails, beetles (riffle beetles and waterpennys) and one caddisfly taxa. This
type of shift away from a functional feeding group is most likely related to a shift in the food source.
Scouring from flooding, canopy cover from evergreen trees as opposed to deciduous trees, and many
other factors could all be causing or contributing to the decline in scrapers. At this time it is not
possible to discern the cause without more study.
The filled/residential sites were significantly different from the unmined sites with respect to eight of
the eleven metrics and represent a different type of biological community than that which exists in
the reference sites or the filled sites. Differences in the biological communities likely resulted from
both the effect of fills/ponds, differences in stream order (2* order vs. 4* order) and the increased
nutrients associated with sewage inputs from residences. This is supported by the increase in fitter
feeders and collector gatherers with respect to the reference streams. Unlike the filled sites, the
filled/residential sites did not generally show increased variability with respect to the unmined sites
but consistently scored below the reference sites. While having the highest abundance, the
filled/residential sites had the lowest percent EPTs and the highest percent Chironomidae. The
Chironornidae are organisms more tolerant to water quality degradation including increases in metals
and oxygen depletion associated with nutrient loading, such as from sewage inputs.
Most of the chironomids feed by collecting organic material from the water corumn. Simuliids feed
by filtering nutrient rich particles from the water. Both of these tolerant organisms are prevalent in
the filled/residential sites. The filter feeding caddisflies of the family Hydropsychidae were also
prevalent in streams with filled/residential influences. These caddisflies are often found below
ponds and below waste treatment out&lls in flowing waters. The collectors and filterers comprised
almost 75 percent of the community in filled/residential stream segment? indicating a significant
shift in the benthic community at these sites from a scraper dominated community. The collector
dominated community is dependent on organic loading from external or upstream sources. This
significant shift in the community resulting from a food source change indicates that significant
differences between the biological communities at the unmined and filled/residential locations are
due, at least in part, to changes in organic loading between the two categories of stream.
S3 Winter Water Chemistry
The water chemistry collected by the USEPA contributes some information to be used when
discerning the causes of changes seen in the benthic communities in the filled and filleoVresidential
sites. The parameters measured in the field include dissolved oxygen, temperature, pH and specific
conductivity. The higher dissolved oxygen concentrations in the filled/residential sites support the
previous discussion regarding nutrient loading in those stream segments. During the daylight hours,
when photosynthesis is occurring, the dissolved oxygen is higher in nutrient rich systems. During
the night time hours when there is no oxygen input from photosynthesis, there is often an oxygen
sag, particularly when associated with higher temperatures, which contributes to the tolerant
communities in areas with high nutrient loadings (Wetzel and Likens, 1991). Temperatures
associated with the filled sites are generally higher in the winter (and likely lower in the summer)
which can alter reproduction and emergence strategies of the benthic macroinvertebrates. The
alkalinity is higher ia the filled and filled/residential streams which will better buffer the impacts of
acid precipitation in these streams. Specific conductivity, an indication of dissolved ions, is
significantly higher in the filled and filled/ residential sites as compared with the unminsd sites. This
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is most likely eaased by increased dissolution of minerals such as calcium aad magnesium, that are
commonly found in the sandstone and shales disturbed by miming activity. Increased surface area of
fragmented rock and exposure to the elements increases weathering rates, resulting in higher
concentrations of alkaline or basic JOBS in the runoff. This tends to be the case regardless of whether
the rock material remains on top of the mimed area or placed in fills.
in the Winter 2QGO data, only 14 of the 33 water chemistry parameters measured by the USEPA had
sufficient sample sizes for statistical comparisons of all three groups. Of these parameters, all but
three were significantly different to the unturned as compared to the filled and eight were
significantly different between the uamtoed and the fjlled/residemial. For three of the parameters,
sufficient data were available to statistically compare the only the unmined and filled sites. Sample
sizes of filled/residential sites were insufficient for statistical comparisons. Of these three
parameters, selenium, antimony and lead, a] 1 three were found to be significantly higher hi the filled
sites as compared to the unmined. The alkalinity of the unmined streams was extremely low,
averaging only 13.31 mg/1 OtCOs. The filled and filled/residential sites had significantly higher
buffering capacity than the unmined sites which is a significant benefit to the aquatic life in the
streams. While the pH of the unturned streams was m the six to eight standard unit range
(significantly lower than the filled mid Filled/residential sites), due to the reduced stream buffering
capacity, acidic precipitation could cause excursions of the pH below the acceptable levels.
Similarly, calcium and magnesium, which make up total hardness, were both higher in the filled and
filled/residential streams. Hardness mitigates metals toxicity to aquatic organisms and may be
important Decau§e metals, like selenium and lead, were present in ail stream types.
The levels of other ions, such as chloride, nitrate, sodium and potassium, were statistically
significantly elevated. However, the low levels overall likely have tio biological significance,
Sutfote, which is a component of rock that dissolves and leaches into the water, is significantly
higher in the filled and filled/residential sites as compared with the unrntaed. This is likely a
significant contributor to the high conductivity measured in the field,
Parameters such as iron and manganese, which are typically associated with the mining activity, were
elevated in samples collected at the filled mid filled/resideotial sites with respect to the wnntined
sites. However, all the samples were well below their associated water quality criteria and not in the
range of causing biological impairment. Aluminum met the acute water quality criteria. There was
insufficient data on these three metals for comparisons between the treatment ^proups.
S.4 Winter Habitat
The sites were scored using the USEPA rapid bioassessment procedures habitat analysis metrics in
addition to substrate measurements. There were few differences between the habitat and substrates
at the urtmined, filled and filled/residential sites. The filled/residential sites tended to be from higher
order streams which may explain some differences in the communities at those sites. This may also
indicate that the reference streams used in this study are not appropriate to represent expected
communities at the filled/residential sites, The only significant difference in habitat characteristics
between the anmined sites and the filled sites was greater sUtam channel alteration in the filled sites.
this metric was also significantly different in the filled/residential sites.
5.5 Sprtiig Benthic Maerolnvertebrates
As in the winter sampling event, differences are seen between the unrnmcd, filled, and
filled/residential sites. Abundance was still lower in the reference streams as compared to the filled
and filled/residential streams. This may result from the previous summer's drought conditions or
reflect differences in food supply or other variables between the treatment groups. The EPT
abundance was similar between the tilled and unrnined streams but higher in the filled/residential
streams, which indicates the increase in the filter feeding caddisflies as described in the winter
sampling event. The percentage of EPT organisms decreased slightly in the filled sites with respect
to the unmtned sites resulting from a decrease m percent stoneflies, The percent mayflies increased
slightly. Five of the eleven metrics were significantly different in the filled treatment with respect to
the unmined conditions. These metrics were primarily those associated with the EPT taxa and the
HBI. Overall, variability increased in the filled streams with respect to the unmined streams. Again
this indicates that while the communities at some sites may be different from the reference condition,
this is not true of all the filled sites. The percentage of EPT individuals in the unmined streams
changed very little from the winter sampling event while the same metric dropped 10 percent in the
filled sites. This trend was mirrored in the percent plecoptera metric where there were 19 and 21
percent stoneflies in the reference streams (winter and spring, respectively) and 27 and 11 percent
stoneflies in the filled streams (winter mid spring, respectively). Caddisflies also decreased in both
populations, and the mayflies increased in both populations. The significant difference in the EPT
related metrics results from the significant differences in the stoneflies. The decline in stonefly
numbers between the two sampling events perhaps results from the emergence of stonefties in filled
sites earlier than their counterparts in the reference streams due to the more consistent temperatures
in the filled streams. This is supported by the substantial decrease in the shredder population in the
filled sites with respect to the uftmined sites. The HBI increased in both the umtiined and the filled
sites with the loss of the sensitive Plecoptera taxa probably contributing to the significant difference
between the treatments. This is supported by the fact that the percentage of Chironomidae did not
increase in either the filled or the unmined sites, which would have indicated a shift toward a more
tolerant population.
While the EPT richae&s was significantly reduced m the filled/residential sites, the percentage of
sensitive EPT taxa increased in the $pring sampling event with respect to the winter event. This 23
percent increase in EPT taxa is directly attributable to a 22 percent increase in ephememptogra. The
increase is primarily due to the increase in the collector/gatherer mayflies of the family Baetidae..
The increases hi collector/gatherer organisms, particularly baeiids, are also seen in the unmined and
filled treatments and perhaps are occurring in response to the decreased scraper community in the
spring when leaf cover shades the streams. This effect is pronounced in the filled and
filled/residential sites due to increasing production in the ponds with increasing temperatures which
provides a food supply for the collectors greater than that what would occur in typical headwater
streams.
Arch Coal Supplemental MTR/VF EIS Study Report, September 2003
Page I?
Afeh Coal Supplemental MTR/VF EIS Steiy Report, September 2003
MTM/VF Draft PEIS Public Comment Compendium
A-255
Section A - Organizations
-------
The filled/residential sites were significantly different that! the unmined sites for six of the eleven
metrics measured. In the winter sampling event, there were eight metrics significantly different with
the overall abundance and the EPT abundance being more similar in the spring event. The increased
HPT abundance indicates the previously mentioned baetid increases in the filled/residential sites.
Like the filled sites, the filled/residential sites also had increases in the collector/gatherer and filterer
functional feeding groups and a decrease in the scraper component of the community.
5.6 Spring Water Chemtotry
In the Spring 2000 sampling event, i 8 of the 35 water chemistry parameters measured by the EPA
had sufficient sample sizes for statistical comparisons, OF these parameters, all but four were
significantly different in the unmined sites as compared to the filled sites, and ten were significantly
different between the unmined and the filled/residential. Field chemistry analysis was similar to fee
winter sampling event with conductivity and pH significantly higher in the filled and
filled/residential sites as compared with the unmined sites. The higher temperatures and dissolved
oxygen in the filled and filled/residential sites that was evident during the colder winter months was
not apparent in the spring season.
The water chemistry parameters with sufficient simple sizes for statistical comparisons were slightly
different in Spring 2000 from the Winter 2000 sampling event. Parameters measured in the winter
showed similar trends to the previous sampling event with, alkalinity and hardness related parameters
highest in the filled sites. Total organic carbon wts significantly hi$wr in the filled sites again
indicating a food source for aquatic organisms. Other ions, such as chloride, nitrate, sodium snd
potassium, were statistically significantly elevated; however, the levels are so low overall that they
likely have no biological significance. Sulfate, was again elevated in the filled and filled/residential
sites.
Parameters measured in the Spring 2001 sampling event that were not measured in the previous
sampling event included: dissolved organic carbon, total iron, total dissolved solids and total
suspended solids. Like total organic carbon, dissolved organic carbon was also significantly hi^wr
in the filled sites M compared with the tmmmed sites. Total suspended solids was similar among the
three treatments. The average iron concentration was higher in the filled and filled residential sites,
although not significantly higher. Hone of the average iron concentrations in either treatment
approached the water quality standard for iron, so it is unlikely that this parameter will have any
biological effects.
6.0 CONCLUSIONS
Changes were seen in both the benthic macroinvertebrate community and water chemistry between
the unmined streams and filled and filled/residential reaches. Differences between the unmined
streams and the filled streams may be related to differences in temperature regimes (and tiarefore
emergence times), the presence of ponds (additional food source), and water chemistry differences
between the treatments. Differences in stream order may also contribute to the difference between
the communities at the tmrnined, filled and filled/residential sites. Different biological communities
would be expected in a first or second order stream as compared to a third, fourth or even fifth order
stream. One interesting finding is that while the most significant biological impairment was
indicated in the filled/residential sites with respect to the unmined sites, the most significant changes
in water chemistry, with respect to the reference sites, were seen in the filled sites. This indicates
that the significant changes in the communities at the filled/residential sites (and possibly the filled
sites) results from some variable other than water chemistry parameters alone.
Much information has been published on the effects of mining on benthic macroinvertebrate
community structure. Among the most significant and easily observable impacts is & reduction in the
sensitive EPT taxa (Beltman, et al. 1999), particularly mayflies and stoneflies which would be
accompanied by a shift toward a more tolerant community. 1ft recent years, several authors have
ftrrther reported that some stoneflies were not only present but dominant in mining influenced
streams where mayflies were reduced (Carlisle & Clements, 1999). While mining related impacts
are often tied to metals, it is not always evident whether other factors such as sedimentation, pH, and
other dissolved ions, such as sulfete, are also involved iti community structure changes. The current
study also indicates that changes in community structure may result from the presence of ponds
which provide a different food source. All of these potential changes are related to mining in
general, not necessarily to the practice of valley fill construction. Of the changes in both the water
chemistry and biological communities which are described in this report, none can be attributed to
the fill specifically and all potentially result from coal mining, road construction or residential
development. Additionally, the same changes in both water chemistry and biological communities
result from large scale development projects, and ore extraction and processing operations (ore and
gold extraction, steel mills, smelters).
Neither the changes in the biological community, nor the changes in the water chemistry in the filled
sites appear to have significant adverse impacts on the stream function with respect to downstream
segments. The most significant changes in stream biological community appear to be the shift in the
functional feeding groups toward more filter feeding organisms. This typically occurs in streams
whenever ponds, dams or municipal discharges are present The increased abundance in these sites,
which likely results from the increased food sources, indicates that sufficient food is available to
support a benthic community at these locations and downstream. Also, the shredder community is
not reduced at the filled sites, so it can be concluded that downstream communities should be
receiving a particulate organic material from these more upstream segments. While the benthic
communities at the sites associated with valley fills may have areduced mayfly population, they still
support an abundant population with representatives of all the functional feeding groups, and stream
function does not appear compromised at these sites.
From the data contained herein, it is not possible to discern any in-stream effects specifically
attributable to valley fills as distinguished from other mining practices or other disturbances such as
development, rosd construction, and ore ertraetion. Additionally, more information is necessary to
identify factors which contribute to the variability in the benthic community and the water quality at
the valley fill influences sites.
Arch Coal Supplemental MTRA'F EtS Study Report, September 2003
Page 19
Arch C«al Supplemental MTR/VF HS Study Report, September 2003
Page 26
MTM/VF Draft PE1S Public Comment Compendium
A-256
Section A - Organizations
-------
7.0 CLOS1MG
Potesta &. Associates, Inc. has prepared this report describing the activities associated with the
quantitative bentWc macroinvertebrate surveys that were conducted In corymietion with the USEPA
MTR/VF-ETS study on the Mad River, Spruce Fork and island Creek watershed during the Syrmner
1999, Fall 1999, and Winter 2000 sampling events. This report was prepared for the exclusive use of
the client. Arch Coal, Inc. The survey sampling was conducted in accordance with generally
accepted environmental practices and guidelines.
The intent of the report i$ to document field activities and present field observations and associated
data analysis based upon our experience and professional judgement. Conclusions regarding toe
assessed condition^) of the stream(s) do not necessarily represent a warranty that all segments of the
streajm(s) are of the same quality. Specific conditions may not fee observable or readily interpreted
from available information, but may become evident at a later date,
Respectfully Submitted,
POTESTA & ASSOCIATES, INC,
Laidley Eli McCoy
Vice President, Enviro
ft.0 REFERENCES
Allen, J.D.. 2000, Structure aid function of running waters. Stream Ecology,
Bettman, D. ]., W. H. Clements, J. Upton and D. Caeela. 1999. Benthic invertebrate metals
exposure, accumulation and eotffiTMmity-level effects downstream from a hard-rock-mine
site. Environmental Toxicology and Chemistry. 18(2}:299~307.
Carlisle, D, M. tnd W, H. Clauentt. 1999. Sensitivity and variability of metrics use in biological
assessments of running waters. Environmental Toxicology md Chemistry. 18(2):285-291.
Kondratieff, C. and Vosfaell, j. R. 1980. Life History and Ecology of Stemnma modestum (Banks)
(Ephermoropters: Heptageniidae) in Virginia, USA.
Lake, P. S. 2000. Disturbance, pstchiness, and diversity in streams.
Merrit, R.W, and K.W. Cummins (eds.). 1996. An Introduction to Ihe Aquatic Insects of North
America, Third Edition. Kendall/Hunt Publishing Company. 1A. 862 p.
Miller, A. M and Oolladay, S. W. 1996, Effects of states and drying on macroinveriebrate
assemblages of an intermittent and A pereani&l prairie stream. Journal of the North American
Benthological Society [J. N. AM. BBNTHOL. SOC.]. Vol. 15, no. 4, pp. 670-689. Dec 1996.
Petts, G. E. 1984. Perspectives for ecological management Impounded Rivers.
Poff, N. 0. and Matthews, R. A. 19S5. BentMc macroinverteferate community structural and
functional group response to thermal enhancement in the Savannah River and a coastal plain
tributary.
Stanford, J. A. and Ward, J. V. 1979. Dammed rivers of the world: Symposium Rationale.
USEPA. 1999t>. A Survey of the Condition of Streams in the Promary Region of Mountain Top
Removal/Valley Fill Coal Mining.
Vannote, R, L., G.W. Minshall, K.W. Cummins, J.R. SedeU, and C.E. Cashing. 1980. The river
continuum concept Can. ). Fish. Aquat. Sci, 37: 130-137.
Wiggins, O.B. 1998. Larvae of the North American Caddisfly Genera (Trichoptera), Second
Edition. University of Toronto Press. Canada. 457 p.
Wetzel, R.O. and O. E. Likens. 1991. Lifflflotogical Analyses. Springer-Verlag. NY. 305 p.
Arch Coai Supplemental sVfTR/VP E1S Study Report, September 2003
Areh Cwl Supplemental MT1WF BIS Study Report, Sefrtemtw 2003
MTM/VF Draft PE1S Public Comment Compendium
A-257
Section A - Organizations
-------
STREAM SAMPLING STATIONS - UPPER MUD RIVER WATERSHED, WET VIRGINIA
Kgare I. Sfream SampHng Sl^ions • Upper Mud River Watershed, West Virginia
Reprinted ftom "Moimtaart0p Mitring/Valley Pflts is Appslachja Draft Programmatic Iyt¥iro*!fflemal Impact Stmsment". US EPA -fane 20S3
OTREAM SAMPLING STATIONS - SPRUCE FORK WATERSIBD, WEST VIRGINIA
Flgnre 2 • Stream Sampling Stations - Spruce Fork Watershed, West Vkginia
Reprisfed from "MooAteintdp Mann^Vafley Fflfe in A^alachia Dmft Pto^aimiratic finviross^Maal Impact Sfatssmettt". US EPA Jum 2003
-------
fc
Flgnrw 4 - 14. itax pieft tfthe metrics for bentble niacr»to»ertehr«te connMiiritift
ni«l »nl HleS/toMf irtW iltw IB the Mad Biver, Spi-aw I-'ork »«d Mmil Cr»»k wattrshesls
during tt^ Wialwr 2MN) &tffi|*Iteg evsmi
Ftgan 4
696.7-
2S.O-,
4
Box Plot
Box Plot
Treatment
MTMA/F Draft PE1S Public Comment Compendium
A-259
Section A - Organizations
-------
Figurek
K
ft
UJ
Box Plot
f4'e«i:>*«c*J
-------
800,
Figure 11
Box Plot
Box Plot
Treatment
FtgMTt* 0
13,3
Box Rot
Treatment
Box Plot
Treatment
MTM/VF Draft PEIS Public Comment Compendium
A-261
Section A - Organizations
-------
Figure 14
Box Plot
^reu$H rejmsi'tifixi »f ffet Lftmlwed,
un U»c Winter 2*>W *a«ijil4o|
to
I
so
40
30
20
10
o '•-•
11
W»nt»r 2000
Rterer Sanpar
ShitKiiter PrsdaUv Pteresr
ing Ormtps
MTMA/F Draft PEIS Public Comment Compendium
A-262
Section A - Organizations
-------
Figures 1«. • J*. Box plot* »f the metric* far fcmtMc laaerotawrtcbrate «»mimu»tti«« at UaralBM
Mitel aad Klk
-------
e XII
f
5
a.
Figure 21
Box Plot
Box Plot
Treatment
FigureB
20.0-
a.
x1
23
Box Plot
Box Plot
1 reatm«f(t
MTMA/F Draft PEIS Public Comment Compendium
A-264
Section A - Organizations
-------
e 24
Box Plot
Figure 25
Box Plot
TABLE 1
MTM/VF Draft PEIS Public Comment Compendium
A-265
Section A - Organizations
-------
TABLE 1
Monitoring Sties within the Mml River, Spruce Fork, anrf island Creek Watersheds
TABLE 1 (Centtaued)
Monitoring SUes wtiMn tht Mud Kiver, Spruce Fork, tout fetaurf Creek Waemkeilf
Unnimed
XJmtlined
Urafiined
Filled
Filled
pilled
FB1«1/
residential
Not included in
assessment
Filled
Filled
Filled
Utasfaed
Filled/
residential
Unraitied
MiRed
W^xSS|8:;||£||
MT-02
Rashpatch Branch
MT-03
Lykey Fork
MT-U
Spring Branch of
Balhrd Pa*
MT-U
Baited Fo*
MT-15
Stanley Fofk
MT-18
Swgartree Btaach
MT-23
MadKJver
MT-24
Stanley
MT-25-B
Rockbfj^se Branch
MT-32
Beech Cieek
MT-34-B
Left Fork of Beech
Creek
MT-39
WMte Oak Branch
MT-40
Sprace Fork
MT-42
Okttieuse Braneh
MT-45
Pigeotsroost
Branch
;
A second order stream, is located approxirnstfcly 500 feet upstream of
confluence with tfse Mud River.
A second order stream, is located apj&roxirKately one mile upstream of
confluence with die Mud Rivsr.
A first order sfccesm, is located approximately 585 feet upstream of
eortftettee with Ballard fork.
A ^jc^id cn&sr stojj^ns is iocatec! ap|m>ximatefy 900 feet upstream of
cwtfUieftee with Mud "River,
A third order stream, is located afSfwoxinmttely TOO feet apsu-eam of
eoaflMeaee with Mud Eiwr.
A sec^^:W::^:¥::K:::&¥:¥:::::::::^^^ '::
A fifth ort^- stream, is loca^d approximately 5 100 feat downstream of
coftflaerKd wfth B^ch Creek,
A second order stream, is located approximately 650 feet upstream of
confluence with lack's Fork.
A second oFder streafti, is located approximately 1 800 feet upstream ef
cosflueacd with Copperas Mine Fork.
A first order stream, is located approximately three raiies upstream of
confluence with Ijfift Fork.
A third order strewn, is located approximately 1000 feet downstream
of confluence with Left Potk,
A first order stream, is located approximately 3600 fast upstream of
confluence with Left Park.
A Second ofder stream, is located arjproxirrmtely 5000 feet upstream of
the eo&fhiBtice with Cow Creek.
MTM/VF Draft PEIS Public Comment Compendium
A-266
Section A - Organizations
-------
TABLE 2
TABLE 2
Bi-nthic mKrohnertArnte samples celleetei wttAte tke M&4 River, Spruce Fork, and Islmd
Creek Watersfaeds ott the four sampling elates.
liiilllll!
MT-02
MT-03
MT-13
MT-14
MT-I5
MT-I8
MT-23
MT-24
MT-25-B
MT-32
MT-34-B
MT-39
MT-40
MT-42
MT-45
MT-48
MT-50
MT-5I
MT-52
MT-55
MT-57-B
MT-60
Uamiaed
Uraninsd
Unmined
FM«i
FBied
Fitted
FilM/residmtial
Sediment structure
Filled
Fillad
Fitted
Unmteed
HHe* residential
UumiHffld
Milted
PiBe* KSid»U»l
tlmtujic4
Unmined
Filled
Filled/ residential
Fffled
FflW
NS
NS
NS
S
s
S
s
NS
S
S
S
NS
S
s
s
s
NS
NS
S
S
S
s
NS
NS
NS
S
S
s
8
NS
S
S
NS
NS
S
NS
S
s
NS
NS«
S
S
s
s
s
s
s
s
s
s
s
NS
S
S
NS
S
S
s
s
s
s
s
s
s
s
s
^•His?
s
s
s
s
s
s
s
NS
s
s
s
s
s
s
s
s
s
s
s
s
s
s
S «= Sampled
NS=Not Sampled
MTM/VF Draft PEIS Public Comment Compendium
A-267
Section A - Organizations
-------
TABLE 3
Rcnthic macroiiivertebrate samples collected wUhtu Ike Mat Xiver, Spruce Fork, and Island
Creek Watersheds an Ike four sampling datm.
TABLES
T&tal Abundance
Taxa Richness
miscnhoff Biotie Index
(HBl)
Pereest Two Dominant Taxa
Percent Chlronostidae
EW Richness
,:
The total numb®1 of individuals, or total abundance,
characterizes the number of individuals present within the
sample. This number should decrease in response to
increasing perturbation (i.e., disturbance) in flte stream
ecosystem. However, certain individuals may increase in
response to selected types of disturbance (e.g. filter feeding
organisms in response to sewage pollution).
The total number of taxa, or taxa richness, characterizes the
diversity of taxa present within flie sample. The number of
taxa should decrease in response to increasing perturbation
in the stream ecosystem.
The HBI charseierfees the tolerance/intolerance of the
berrthic maeroinvertebrate contftftinity. The HBI weights
each taxon in the sample by the proportion of individuate
and the taxon's tolerance vatoe. Tolerance values are
assigned to each toon or* a scale of 0 to 10, with 0
identifying the least tolerant (most sensitive) organisms, and
1 0 identifying the most tolerant (least sensitive) organisms
(USEPA 1999). The HBI is expected to increase in response
to increased perturbation within the aquatic ecosystem.
The percent two dominant taxa metric characterizes the
percentage of the two most abundant tax* in the sample. It is
expected to increase in response to increased perturbation
within the aquatic ecosystem.
The percent Chironoisidae metric characterizes the
percentage of midge taxa present in the sample. It is
expected to increase in response to increased perturbation
wltWa to aquatic ecosystem.
The total number of EFT taxa, EFT richness, characterizes
the number of Bphemeroptera, Ptecopter*, and Trichoptera
(EFT) taxa present in the sample. It is expected to decrease
in response to increased perturbation within the aquatic
ecosystem.
MTM/VF Draft PE1S Public Comment Compendium
A-268
Section A - Organ/zaf/ons
-------
i^^^m^mmmmmmmm
M$$m$:mmmmmmm
EPT Abundance
Percent EPT Individuals
Percent Ephemeroptera
Percent Pleeapters*
Percent Trlehoptera
:
The number of EPT individuals, EFT abundance,
characterizes the number of sensitive EFT taxa within the
sample. It is expected to decrease in response to increased
perturbation within the aquatic ecosystem.
The percent EPT individuals characterizes the percent of
sensitive EPT organisms present in the sample. It b expected
to decrease in response to increased perturbation within the
aquatic ecosystem.
The percent Ephemeroptera characterizes the percent of
mayflies present in the sample. It is expected to decrease in
response to increased perturbation within the aquatic
ecosystem.
The percent Pleeoptera ehafaeterJKes the percent of stoneflies
present in {fee sample. It is expected to decrease in response
to increased perturbation within the aquatic ecosystem.
The percent Triehoptem characterizes the percent of
caddisflies present in the sample. It is expected to decrease
in response to increased perturbation within the aquatic
ecosystem.
TABLE 4a
MTM/VF Draft PEIS Public Comment Compendium
A-269
Section A - Organizations
-------
T»ble 4. Summary of tMnthle mscrolnvertuWate analysis from sample* collected
4.3. Mud River - Summer 1999
Number (Abundance)
Avg
SO
Max
Mm
taxa (Richness)
Avg
30
Max
Mln
Percent 2 Dominant Taj
Avg
SO
Max
Min
EPt Abundance
Avg
SO
Mix
Min
EPT Richness '
S
Vox
Min ...
PwomtSPT
A*S
SO
Max
Min
Percent Ptscoptera
Avj
80
Max
Mln
Percent £ph@meraptar
A»8
SO
Max
Win
Permit Triefioptera
Avg
SO
M«
Min
Percent C'^mnbmldafe
Avg
SO
Max
Min
H6I
Avg
SD
Wax
Min
MT-14
"" Tilled """
60.33
59.69
146.00
8.00
?.67
2.34
11.00
5.00
(3
70.87
7.04
81.51
62,50
34.6T
40.2S
100.00
1.00
3.33
1.51
5,00
toe
45.10
20.«
88,«
12.50
t.»7
2.02
4.7»
0.00
3
0.00
0.00
0.00
0.00
43.4$
20.82
68.44
12.80
5.52
5.48
14.28
0.00
5.04
0.32
S.SO
4.52
MT-15
1 Filled '
23.1T
12.70
47.00
12,00
5.00
1.28
6.00
3.00
7?.SO
13.38
96.00
SB.33
15.60
10,80
31.00
1.00
1.W
0.5S
2.0ft
1.00
80.93
29.81
87,M
B,»
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.60
60.83
28.61
87,50
8.33
2.78
«.80
18.87
0,00
4.87
0.38
4.9
3J2
MT-18
TIBS
71.50
58.58
172.00
17,00
a.oo
1.87
11.00
6.00
65.00
17.15
86.63
45.28
51.83
57.11
14».00
4.00
2.00
0.00
2.00
2.00
58.25
28.29
ae.63
23.53
0.00
0.00
0,00
0,90
0.00
0.00
0.00
0.00
56.25
S6.28
88.63
23,53
13.99
10,04
26.82
3.49
5.43
1.02
S.7S
4=32
MT-23
HlW/tesid
173,67
11485
348.00
17.00
10.50
288
1400
6.00
74.47
8.85
80.52
85.70
23.17
14.23
42.00
1.00
3.17
1.33
8.00
1.00
i4.se
8.4i
29.00
S.88
0.00
0,0(3
0.00
0.00
0.00
0.00
0,00
0,00
14,56
949
29.00
6.88
11. 7T
6,40
19.88
2.59
4.51
0.31
4.95
4.14
TABLE 4b
MTM/VF Draft PEIS Public Comment Compendium
A-270
Section A - Organizations
-------
4,b. Sfiraee FfiHs - Summer 1839
Number (Abundance)
Atfg
SO
Max
Min
Taxa (Richness)
Avg
30
Max
MM
Percent 2 Dominant Ta
Avg
SO
Max
Min
EFT Abundance
Avg
SO
Max
Min
EFT Riehnsfis
&
Max
Min
PenSntEPT
Avj
SO
Max
Min
Percent F*fec0pt0rs
A»9
SO
Max
Min
Percent Epheniefopt&r
Avj
SO
Met
Min
Percent trichoptsra
A»9
SD
Max
Min
Wrcenl Chifonomidae
&
Mw
Min
A19
SB
Max
Min
MT-25P
""FillH '
288.17
118,77
486.00
164.00
1100
2.26
13.00
8,00
a
78.41
8.42
90.32
7S.15
177.83
118.73
402.00
69.00
3.00
0.19
4.00
2.00
58,16
13.54
81.08
42.07
0.20
0,50
1.22
0.00
0.15
0.37
0.92
0,00
57.61
13J3
81.06
40 MS
14,82
10.80
27.58
0,80
5.73
0,21
8.08
5.49
.7W-32
Tfcd
564.50
316.S5
1146 M
230,00
13.67
3.44
20.00
11.00
8«.34
3.28
90.84
83.44
31.83
11,82
48,00
17.00
3-17
1.84
8.00
1.00
S.14
1.48
8.22
4.28
0.03
0,08
0.20
0.00
0.37
0.44
1.07
0.00
5.74
1.87
8.22
4.10
2.72
a.eo
3.47
IBS
4.32
0.18
4.88
4.1+
MT-34B
Fta1
21.33
4.72
28,00
14.00
5.83
1.47
8.00
.4,00.
75.78
10,67
89.47
61,90
2.S3
3.25
9.00
0.00
1.17
0.7S
2.00
0,00
14.33
17.12
47.37
0.00
o.eo
1.48
3.57
0.00
0.00
0.00
0.00
0.00
13.74
17.»2
47.37
0.00
0.79
1.94
4J8
0.00
7.70
0.83
8.92
«.rs
WPW
"Tilkt/Raiia
398.33
174.64
534.00
103,00
11.33
2.07
14.00
i,00
74.21
10.20
89.28
8S.30
213.17
88.30
322.00
W.OO
4.6?
1.21
6.00
3,00
S6.36
17.08
85.71
37.40
0.00
0.00
0.00
0.00
7,68
4.68
15.53-
2.M
48.71
19,98
82.86
29.07
28.17
11.57
36.19
6.43
S.21
0.12
S.40
5.10
W-42
Unniltied
83.83
14.18
102.00
88.00
15.67
2.80
21,00
13.00
40.86
5.2»
50,93
38.38
38.17
10.72
49.00
22.00
8.00
1.79
9,00
4.00
40.00
11.97
5«,98
23,16
22.32
8.17
29,23
7.S7
9.82
4.19
15.79
3.08
7.76
S.S4
16.28
0.00
1815
14.60
40.00
3.08
3.89
O.B6
S.05
MS
MT-48
FittetfRe*!1
378,17
72.13
457.00
288.00
18.00
3.58
20.00
11.00
76.67
9.48
88.02
87.83
86.17
85.80
209.00
14.00
4.67
1,21
8.00
3.80
22.34
13.88
45.73
3,41
0.00
0.00
0,00
0,00
1.06
0.98
2.63
0,00
21.2S
13.22
43.11
2.83
5.28
3.25
8.S7
0,88
4.49
0.15
4.72
4.J9
TABLE 4c
MTM/VF Draft PEIS Public Comment Compendium
A-271
Section A - Organizations
-------
4 c Maud Creek - Summar 1399
Number (AbumSrBij
Avg
SO
Max
Mtn
taxa {ftcrtfieisj
Avg
3D
Max
Ml)
Crests* 2" Dominant Ta
Ava
SD
Max
Mn
£PT Afeundsnee
A»9
SO
Max
Win
tPf Richness
A»9
so
Max
Mjn
Percent EFT
Avg
S6
M»
Win
PSfCHit Piecoptera
Avg
SD
Max
MIn
Percent fepriarwrapter*
Avg
SD
Max
MH
Percent Tfk^Qptera
Avg
SO
Max
Win
Perc»nt ctiironortiidae
Avfl
SD
Max
MIn
HBI
Avg
- SO
Max
I MIn
MJ-52
RtW "
89.00
81.08
214.00
36,00
11. «r
2.80
17,00
9.00
ta
63.80
9.13
74,70
4722
53.60
ZB.4B
104.00
19,00
4.S3
OJtt
5.00
3.00
54.82
SJ8
«Z.M
4S.80
9,86
S.S3
19.44
S.43
0.19
0.38
0.93
0.00
44.71
10.24
98.19
33,33
1.81
0.86
2.78
1.11
4.24
O.S4
4.67
3.77
MT-SS
Twresr
528.17
158,17
746.00
313.00
15.17
2.86
19,00
11.00
74.38
6.01
81.66
e?.s«
211.33
83.97
301.00
100.00
4.S7
1.03
6.00
3.00
39.00
8.4J
47.78
31 .«5
0.23
O.OS
0.31
0.13
1.81
O.S2
1.92
O.S2
37.39
B.3Z
4S.03
».n
11,78
2.80
16.74
7,87
S.02
0.27
6.33
4.81
MT-S78
1 Rilad" "
64.«7
72.01
19S.OO
1.00
10.17
7.83
20.00
1.00
B8.2§
17,28
100.00
54.46
29,33
36,49
89.00
1,00
3.00
2,45
7.00
1.00
48.83
30,48
100.00
8,08
1.00
1.67
3.86
0.00
0.00
O.DO
0.0*
0,00
47.63
30,30
100.00
9.08
8.87
4.27
15.15
3.85
4.39
0.39
$.00
3,i1
MTrfO ..
Wed
110,50
44.23
191.00
87.00
15.50
1.87
17.00
12.00
67.32
12.18
71.43
38.96
80.00
25.28
92.00
30.00
e.so
1.22
8.00
5,00
53.85
10.33
88.07
38.98
8.72
8.32
19.4J
2.09
2.17
1.28
4.48
0.88
42.98
13.99
59.«6
18.18
5.88
3.28
11,69
?,0«
4.86
0.18
4.84
4.47
TABLE Sa
MTM/VF Draft PEIS Public Comment Compendium
A-272
Section A - Organizations
-------
Table 5, Summary of b@ttthie maerolnv^rteferate analysis from samples collected in
the fail of 1991
5. a. Mud River - Fall 1999
lumber {A&imdartce)
Avg
SD
Max
Win
taxa (Richness)
Avg
SD
Max
Win
Percent 2 Dominant T
AVB
SO
Max
Min
EPT Abundance
Avg
Stf
Mm
Min
£pt rticriness
Avg
SD
Max
Mm
Percent EPT '
Avg
SO
Max
Mn
Psccent Pieeoptera
AVQ
SD
Max
Win
Percent frpriemeropte
AVB
so
Max
Mtn
Percent trichoptera
Avj
SO
Max
Min
Percent Chironomids
Avg
SD
Max
Min
H8I
Avj
SD
Max
Min
MT-14
Hited
503.50
304.43
1065.00
239.00
8.60
1.52
10.00
8.00
axa
92.83
3.72
98.03
87,85
481.87
305.03
1048.00
220.00
3.00
0.63
4.90
2.00
94.45
2.97
98.22
0.00
91.4S
2.44
94.83
87.85
ra
0.00
0.00
0.00
0.00
2.97
1.39
5.01
1.21
0.59
0.46
1.26
0.00
1.37
0.13
1.60
1.19
MT-15
hfliea
rs.so
25.89
11S.OO
43,00
8.83
1.72
11.00
7.00
60.81
10.04
72.55
48.10
48.67
20.03
73.00
18.00
3.67
1.03
5.00
2.00
58.76
14.88
7945
0.00
24.98
12.84
43.14
6.M
0.00
0,00
0.00
0,00
34,80
12.06
53.42
16,67
12.19
1-1.64
34.88
3.46
4,86
0.86
5.70
3.57
Ml-18
Wte'd
130.17
58.51
218.00
66.00
10,33
1.88
12.00
7.00
56.04
6.80
65.31
48.04
65.17
49.45
144,00
15.00
3.17
Q.41
4.00
3.00
45,81
19,58
66.08
0,00
14.80
8.09
25.69
2,04
0,00
0.00
0.00
0.00
31.20
11.78
43,94
13.27
34.15
16.84
56,12
17.80
469
0.75
5.81
3.67
MT-23
HHeti/Kesla
155.00
84.19
279.00
85.00
10.00
2.10
14.00
8.00
80.11
10.72
72.55
40.91
90.17
63,08
165.00
28.00
4.00
1.10
6,00
3.00
53.78
16.80
75.00
0.00
11,97
4.53
17.05
3,92
0.00
0.00
0.00
0.00
41.81
18,15
62.73
23.S3
11.80
3.78
16.13
8.38
4.40
0.32
4.83
3.91
TABLE 5b
MTM/VF Draft PEIS Public Comment Compendium
A-273
Section A - Organizations
-------
5.b. Spruce Fork - Fail 1999
Numbftr (Abundance)
Avo
SO
Max
Win
Taxa (Rienness)
Avg
SO
Max
Min
Perc&nt 2 Dominant T
Avg
SO
Max
Min
EFT Abundance
Avg
SO
Max
Min
EPf Stahness
Avg
SO
Max
Min
Pereont EPt
Avg
SO
Max
Min
Percent PSecoptefa
Avg
SO
Max
Mfn
Percent Epftsroeropts
Av0
SO
Max
Min
Percent Tricfopfers
svo8
Max
Min
Percent Chironornida
Avg
SO
Max
Min
HBl
Avg
SO
Max
Min
MT-Z5I
Wed
138.87
36.T9
185.W
82.00
10,33
1.97
14.00
9.00
axa
61.16
4.S8
85.S3
53,68
89,17
27.84
132,00
55.00
S.33
1,21
7.00
i_ 4-M
84.42
10.47
77 M
50,00
27.62
8,93
37.80
19.08
a
0.38
0.64
1.59
0.00
36.44
10.34
49.73
21,43
25.27
S.47
40.48
18,76
4.SO
0.48
5.32
3.98
MT-3Z
£led
1141.80
79S.27
2707.00
528.00
11.87
2.50
15,00
8.00
86.64
3.31
70,81
83,17
418,33
519,82
1443.00
25.00
3.87
1.83
S.OO
1.00
2S.81
17.84
S3.31
4,73
10.30
7.04
20.17
0.00
0.23
0.37
0.05
0.00
18.28
13.83
33.14
0,98
9.32.
«.22
19,59
0,00
4.48
0.55
5.S5
4.01
MT-W
FiHeCirtMsid
574.17
318,68
1146.00
229.00
10.50
2.59
1S.OO
8.00
79.77
7.18
•0.84
•9,20
408.00
29S.90
982.00
198.00
3.83
1,17
6,00
3.00
88.98
14.88
88.4«
S2.48
0.58
1.22
3.06
0.00
8.14
4.16
13.54
1.83
S2.25
14.00
83.88
46.67
14.62
12.29
33.10
0,00
4.97
0.20
S.10
4.S8
MT-45
rtfled/Resid
135,00
72.09
233.00
41.00
14.17
2.32
17.00
11.00
46.04
12.88
67.80
28.88
94.17
82.09
172,00
24,00
6.83
1,80
9.00
5.00
85.55
12,43
80,49
46,98
30.94
18.46
56.10
10.34
13.15
7.37
25,29
.. . .5J5
21.47
7.05
31.71
10.34
8.85
5.42
17.07
1.4$
3,47
0.66
4.49
• 2.63
MT-48
Nlod/kesfd
706.50
4S1.44
1530.00
234.00
15,83
4.31
21.00
10,00
64.00
10.24
75.17
48.30
233.17
231.51
671.00
34.00
8.67
2.16
10.00
4.00
27.52
11.73
43.86
10.18
7.57
7,33
18.30
0,00
4.63
2.32
8.15
2.40
15.32
7.13
21.70
5,10
24.03
10.18
36.73
7.6S
4.58
0.30
4.92
4,18
TABLE 5c
MTM/VF Draft PEIS Public Comment Compendium
A-274
Section A - Organizations
-------
5.C. Island Creek - Mi 1 399
Number (Abundance)
Avg
SB
Max
Mln
Tstxa (&chne$s)
Avg
SO
Max
Mln
Percent & Dominant t
Avg
SO
Max
Win
EPT Abundance
Avg
SD
Max
Min
EPT Richness
Avg
SD
Max
Mln
Percent £PT
Avg
SD
Max
Mln
f%MnTPfeedptera
Avj
SD
Max
Min
Percent tephemeropt®
Avg
SD
Max
Min
Percent TfsehoptSf a
Avg
SD
Max
Mift
Percent Chironomidat
Avg
SO
Max
Mln
HBt '"
Avg
SO
Max
Min
MT-52
FiW
3S8.17
141.80
448.00
110.00
13.17
3.13
18.00
10.00
axa
78.20
8,43
88J8
»5.SO
249.67
180.59
388.00
17.00
5.87
1.63
8.00
4.BO
BS.73
29.75
92.58
1S.45
SO.S3
28.55
S2.60
5,45
a
0.76
1.15
2,73
0.00
14.04
9,29
31.61
8.50
3.19
2.62
7.27
0.00
2.S9
0,88
4.11
1.56
MT*§5
AftafflMid
254.83
128.07
403.00
103.00
•.87
1.86
13.00
8.00
78.48
8,41
91.26
65.38
129.83
114.58
274.00
5.00
2.87
1.37
5.00
1.00
40.55
27.12
70.26
4.8S
O.S3
o.as
2.20
0.00
0.94
1.15
2.7S
0.00
38.e»
2S.03
98.23
2.91
31.35
50.51
60.19
8.28
5.18
0.1«
5.43
4.99
MT-57B
" Rtfeit
195.67
128.21
330.00
21.00
12.17
2.56
15.00
9.00
75.88
12.1?
85.82
S7.14
165.17
113.87
»1.00
10.00
5.17
1.47
7.00
3.00
77.«4
15,9?
89.58
47.82
88.42
18.75
83,40
42.05
0.79
1.94
4.78
0.00
10.43
10.76
30.88
0.00
S.1S
5.88
19.0S
2.32
2.25
0.82
3.14
1.76
ftfi-iO
FIW "'
139.83
86.30
288.00
57.00
11.50
1.05
13.00
10.00
80,78
8.52
73.68
52.31
94.87
83,02
201.00
38.00
5.83
1.17
r.oo
4,00
66,88
9.88
75.44
51.79
21.48
9.46
37.74
^_J&§3
1.08
• 1.3B
3.57
0.00
44.13
12.78
83.18
32.17
8.84
8,83
16.96
0.3S
4.07
0.46
4.67
3.39
TABLE 6a
MTM/VF Draft PEIS Public Comment Compendium
A-275
Section A - Organizations
-------
Tabls 6, Summary of bsftthic maeraiftvertebrate analysis from samples coffecied in the
Winter of 2066.
5.s. |8od River - Wln^r 2MO
Number (AbortEiatTCt!)
Avg
SO
M$x
M!n
Taxa fPleh^ess)
Avg
SD
Ms*
Mftl
^ercant 2 DamliTan! Taiffi
Avg
SD
Max
Mln
SPT Afcumfaftes
Mg
so
Max
Win
SPT Riehrass
Avg
S0
Max
M*
Permni EPT
Avg
St>
Max
MSn
PefGEirS Ptocoplera
Avj
SD
Max
Mir:
percent Ephamatoptes
A»o
SD
Ml,
•Win
f^ereettf trictopiem
A»9
SD
MtK
Peseervt ChtromsmSte
Ayg
SO
Max
Min
MB!
Aw)
SD
Max
Mm
MT-2
UnwinBd
MOO
2699
13200
62.00
1817
325
2100
13.0B
44.11
7.14
S2-87
31.40
SS.SO
15.11
74.90
35.80
11.33
2.25
15.00
9.00
80.52
11.28
7S.M
48.3»
31.82
12,74
51.72
21.51
19.29
5,15
28.63
12.64
9.32
3,69
14,08
5.30
22.47
7.97
30.47
1.30
3,36
O.M
3.84
2.4?
MT-3
Urtmfnsd
49.17
31 83
S5.00
11.00
10 go
451
19.00
8,00
SS.SO
7.6S
M.96
44.83
38,67
29.76
79.00
7.0S
5J7
2.60
10.00
3.00
73.B3
13.37
K.41
56.52
23.83
18.17
S4.55
4.35
38,67
17.48
60.78
».0»
11.42
».ta
22.78
0.00
9.4@
7.73
23.91
3.45
2.67
1,20
4.55
1.52
MT-13
Uflffltnafl
102.67
stas
171.00
16.00
13.17
S.12
21.80
»,00
83 J6
15.34
77.78
39.18
79.80
44.85
145.00
13.00
8.00
2.W
11.00
5.60
79.1B
11,64
8028
64.49
1Q.01
«.«2
23.3S
1.87
5662
19.88
7B.51
S2.1*
10.52
S.S8
20.56
4^9
5.84
5.13
14.02
O.W
2,30
1.05
4.67
1.27
MT-14
^led
14.67
8.12
23.00
7.00
6.00
2.00
9.00
4,00
82.21
14J8
81.12
43.48
9.67
6.15
19.60
3.00
3.83
1.84
7.00
Z.00
M.03
22.S9
82,81
23.0S
58,13
23.36
81,82
——sa.
0.72
1.77
4.35
.. . 0.00
5.1»
5.38
14.29
0.00
18.43
16.02
38.46
0.60
3.07
0.84
4.4S
2.29
MT.15
i=i}led
52.50
13.37
70.00
33.00
6.33
1.7J
S.OO
S.W
76.00
11.38
86,44
80.81
12.6?
7.58
25.00
. 8,00
3.67
1.21
5.00
. 2,00
23.50
9.9?
35.71
. 13.5S
».71
3.87
13.t1
4.1?
0.00
0.00
0.00
0.00
14.80
7.8S
22.86
5.08
19.13
Me
31.82
M»
5.45
OJ7
5.73
S.01
MT-18
Bled
299.83
144.26
53700
144.00
8.50
1 76
11.00
e.oo
82.57
11.77
93.75
64.1S
29,50
23.73
76.00
11.00
2,17
0.41
3.00
2.60
12.13
11,44
33.63
.3.44
0.04
0.10
0.25
0.00
o.oo
0.00
0.00
__tpO]
12.08
11.48
33.83
3,19
81.76
U.27
88.10
30.S3
5.77
0.22
5.93
S.33
MT-23
fitfeti^asid
17517
56,99
26600
11700
850
2,07
12.00
8-00
67,iS
a.e?
82.93
81.S4
49.50
19.45
87,00
31.00
3.50
0.55
4.09
3.09
28.92
7.83
3S.37
18.92
7.8S
2.01
10.07
4.27
0.00
0.00
S.5G
S.QO
J1.27
8.24
31.22
7.89
4J.Oi
8.5»
60.W
36,75
5.22
0.25
5.43
4.77
TABLE fib
MTM/VF Draft PEIS Public Comment Compendium
A-276
Section A - Organizations
-------
U. Spruca Fork - A'irtat 2MO
Numtw (Abundance)
*v»
SO
Msx
Mn
f axa (Richness)
AVS
SD
Max
Mn
Psresflt 2 Dominant tsxa
Avj
SD
Max
Mn
EPT Abundance
»*»
S0
Max
Mfn
EPT RtchRsss
*vs
SD
Max
Win
Pereatit £PT
*»9
30
M»K
M!n
Peccant Plecsptera
Ave
SD
Max
Mn
^arestvt ££fcenisrM
4,04
2.84
W-4I
pMrtfe^d
784,00
427.05
1448,00
445.00
14.83
3.19
19.00
11.00
88.66
8.3S
82-29
5t.B»
80.6T
80.83
202.60
34.00
4.67
1.03
650
3.00
10.39
3.86
13.95
4.43
4.38
1.88
6.88
2.1?
045
0.3?
1.18
0.1T
i.Si
3.35
9.80
2,0»
46.73
8.94
S6.89
31,24
5.22
0.34
5,44
4.S5
TABLE 6c
MTM/VF Draft PEIS Public Comment Compendium
A-27?
Section A - Organizations
-------
«,«..!
Number (Abundamts
A«9
SO
Max
Min
Jam (Rrchrass)
f.ig
SO
Max
Min
Perceri! 2 Dorsmsnt Taxa
A»S
SD
Max
Mil
EFT AtiurKFaree
A»9
3D
Max
Mta
EPT fficbrassa
Avj
30
MSn
Pwcent EPT
A»J
SD
Max
Min
parcent Piscoptera
Avs
SO
Max
Min
PsrceM EpfjeFReroptBra
A»g
SO
Max
Mm
Percent Trfehopfara
A«9
SO
Max
Min
Percent Ch(ronQnilda«
Avg
SO
Max
MSn
Hgl
Av»
SD
Max
Mifs
MT-SO
UnrrtirtDd
1Qg.80
6153
m.cn
45.00
14.80
1.64
17.00
13.00
43.17
4.21
47.42
37 .2»
53.a3
139.00
31,00
§.2Q
1.36
11.00
8.00
73.62
7.07
60.47
63.27
17.SS
11.48
33.73
5.15
3048
1139
46.55
15.56
2S-5S
10J3
37.11
11.83
8.31
2.83
12.07
4.12
3.46
0.21
371
3.20
swore. |.j«r*r
^T-51
Unmlmss
KU7
31.67
14S.OO
4Q.QQ
10.83
4.45
19.00
6.00
65.32
21.02
83.02
32.41
28.25
11S.6Q
33,00
7.SO
2.68
12.00
4.00
65.24
3.9S
90.57
u. 78.31
19.46
12-51
3S.44
6.S9
1423
12.11
33.79
— ™-£2i
S1.5S
24.29
7S.34
22.76
s,a«
3.28
11 72
2.SO
3.86
1.19
5.55
2.65
MT.S2
Fl*KJ
127.33
46,42
18».0«
75.00
13.50
1.S2
15.00
11.09
56,30
10.40
74,51
44,00
38.30
147,00
50.00
750
1.95
9.80
6.00
?3.««
7.89
88.23
S3.31
44.56
1146
60.79
S9.SS
14.12
10.19
32.S5
5JS
15 18
5.88
22.73
J.62
1J.OZ
4.3S
17.99
SJtt
3.13
0.48
3.92
2.4S
m
MT*
^tei/flBsW
469.17
228.79
754.00
213.00
8.SO
2.07
12,00
7.00
84.77
4.74
82.88
79,71
161.62
421^)0
24,00
3.33
1.37
S.Od
2.00
»,97
19.01
55.84
i.62
0.22
0.37
0.94
S.M
1,45
08t)
2.56
0.42
1S.29
19.86
SS,04
4.12
57,27
17.34
71.62
24.S?
8.37
0.22
5.70
5.03
BT-578
Fil!«
8100
32.30
133W
4000
11.17
2.40
18.00
§.OQ
8715
13.87
»6.»
52. SO
Z9.67
7J1
3S,»
2G.OO
7.00
1.55
9.00
5.00
39.65
12.03
51.32
26.32
24.63
8.87
31.58
14.43
4.34
2.87
7.89
1.47
10.68
8.0B
19.12
3.76
51.89
18.83
»S.i3
34,21
4.32
0.56
4.81
3.71
MT-60
Ftsi
259.67
81.36
402.00
156.00
18.83
2,32
20,00
14.00
50.01
9.14
81.54
34.2?
208.33
72.1?
332.00
128.00
10.50
1.87
13.00
S.OG
78.89
7.07
8724
69.76
23.19
10.81
S9.08
7,52
10,94
3.51
11.46
7.21
45,77
8.08
53.9S
31.69
10,90
3.05
16,94
8.83
3.48
0.17
3J8
3.28
TABLE 7a
MTM/VF Draft PEIS Public Comment Compendium
A-278
Section A - Organizations
-------
Table 7, Summary of benthic macrolnvortcbrate analysis from samples collected In the
T.a. Mud River • Spring JOOO
Jum&sr (Abundance)
Avg
SO
Max
Win
f sxa fRiehnsss}
A«J
SO
Max
Mm
% 2 Dominant Taxa
Avg
SO
Max
Min
EPT Abundsnce
Avg
SO
Max
Win
IPT Richness
Avg
SD
Max
Mln
Percent EPT
Avg
SO
Max
Mh
aefceflt f%coptera
Avg
SD
Max
Min
Percent Gphernsroptea
Avg
SO
Max
Mm
Psrcarrt Trichoptera
Avg
SD
Max
Mitt
Percent CMrGfiomlrJae
Avg
SD
M«x
Min
HBi
Avg
SD
Max
Min
-------
7.b- Spruce Forti . Spring 2000
Number (Abundance)
Avg
SD
Mn
Min
Taxa {Richness)
Avg
SD
Max
Mln
Percent 2 Dominant Taxa
Avg
SO
M«
Mln
EPT Abundance
Avj
SD
Max
Mid
EPT Richness
Avg
SO
Max
Mln
PsrcantEPT
Atfg
SO
Max
Min
Pwcent Pfecoptera
Avg
SO
M«x
Mn
Percent Ephemeroptera
Atfg
SO
Max
Mln
Percent Trlcnoptera
A«S
SO
Max
Mln
Percent Chiroftomidse
Avg
SD
Max
Min
HBI
Avg
SD
Max
Mln
MT-2S1
Filed
890,83
558,80
1624.00
154.00
13.83
2.83
18,00
9.00
68.48
S.74
78.60
62.91
306.83
171.4$
570.00
1IS.OO
8.50
1.22
8.00
5.00
58,88
22,34
77.27
16,61
9.66
4.48
18.23
3.32
37.19
20,91
57.52
0.0«
11.82
5,96
19.88
5.19
20,92
8.14
31.70
9.1S
4.85
0.68
5.81
3,88
MT-S2
Fitted
594.00
334,28
876.00
132.00
11.3$
3.06
16.00
8.00
S6.24
9.01
69.61
45.8$
98.83
43.84
170.00
SO.OO
4.17
1.47
6,00
2.00
22.31
12.55
37.88
J.47
2.39
3.57
7,80
0.00
7.48
7.85
20.49
1.08
12.41
6.26
20.71
. 5,«2
27.36
15.22
47.70
i.85
S.13
0.50
5.52
4,41
MT-34B
Filod
308.00
2H.19
810.00
87.00
8.83
1.33
10.00
.. 7.00
72,63
8,18
80.38
62.07
3133
22,«6
86.00
4.00
2.67
0.12
4.00
2.00
10.77
6,37
22.54
3.92
0.68
O.B2
1.48
0.00
0,00
0.00
0.00
. 0.00
8.88
4.00
1S.03
3.92
33.87
989
43.14
WJ4
6.45
0,55
7.39
5.S1
wr-»
U»mined
135.17
43.92
187.00
76.00
12.17
5.60
20.00
6.00
69.07
12.46
S1.3S
S3. 11
111.33
26.56
137.00
68.00
7.33
2.50
10.00
4.00
B4.»2
11.22
94.06
6S.24
18.07
5.01
23.S3
9.33
57.03
13.55
73.33
35.29
8.73
3.93
18.00
.5,86
4.02
2,84
6,78
0,00
3.07
0.11
3.21
2.89
WMB
F1H*R«8H
229,67
124.02
375.00
88,00
(.17
2,«4
13.00
6.00
81.51
4.66
66.1t
83.60
104.33
63.01
187.CX}
33.90
417
1.60
7,00
2.00
44.50
9.91
53,58
27.SO
1,49
1.39
3,20
0,00
29.8S
1112
40,51
13.33
13.05
7.84
27.94
7.30
30.80
10.98
51 J7
22.40
5.5«
0.20
5.87
5.31
MT-«2
Unmlnsd
1Ǥ,67
72.23
279.00
64.00
16.00
5.1»
22.W
8,00
4841
12,81
68.75
36.3*
124,67
47,83
206.00
62.00
10.00
2.6S
13,00
7,00
76.18
10.73
98.88
66.W
29.83
».«2
3107
18.83
37.03
13.6»
59.38
19.82
9.S2
5.58
19.6!
3.13
4.9i
3.8S
S.61
0.00
3,04
0,31
3,4«
2.74
MT-W
Flle*ResW
206.00
152.19
490.00
80.00
12.SO
4.23
20.00
9.00
59.05
16.77
76,12
40.69
50.SO
23.58
98.00
27.00
5,83
2.23
8,00
2.00
36.25
24.87
66.21
9,80
2.51
2.83
8.21
0.00
17.51
12.35
31.48
449
1672
12.22
37,24
4,56
94.44
23.42
64.90
7.59
4.SO
0.59
8.S3
3.86
TABLE 7c
MTM/VF Draft PEIS Public Comment Compendium
A-280
Section A - Organizations
-------
7.C. Island Crock . Spring 20CO
Number {Abundance}
Avg
SO
Max
Mln
f axa (Richness)
AVB
SO
Max
Mln
Percent 2 Dominant Taxa
Avg
so
Max
Mln
EPT Abundance
Avg
SO
Mix
Mm
EPT Richness
AvQ
S0
Max
Mln
Percent 6PT
Avg
SO
Max
Mn
Percent Pfeeoptera
Avg
SO
Max
Mm
Percent Ephamoraptsra
Avg
so
Max
Mn
•'grceflt TYichopteri
Avg
SO
Max
Win
Percent Cltironomidae
Avg
SO
Max
Min
HBI
Avg
SO
Max
Min
WtSP
Unmtoad
118.»3
33.«4
mm
82.00
16.67
1.75
19.00
14.00
51.5*
6.89
63.37
44.25
81.17
26.54
129.00
57.00
(.33
1.51
12.00
8.00
68.43
10.00
78.99
83.27
13.17
S.39
1S.47
5.81
SI .72
8,40
83.95
40.18
4.54
4.15
11.80
0.00
13.04
6.61
24.30
3.86
3.81
0.36
4.31
3.40
Mr-Si
Urimtnsd
118,83
28.79
142.00
88.00
13.50
2.43
17.00
10.00
49.71
7.31
60.S6
40.00
86.60
as.20
119.00
47.00
8.17
0.98
10.00
7.00
72.33
7.14
B3.BO
82.73
19.16
S.53
n,n
4.17
50.81
».S8
S3.33
37.88
S.35
2.54
8.45
2.28
14.86
4.9S
ziai
7.75
3.77
0.48
4.56
3.21
wrr-a
ttat
141.33
64.M
2SB.OO
90,00
ie.sc
4,28
23.00
11.00
3«.7S
8.21
49.13
34.07
78,33
36.77
146,00
45.00
8,50
1,52
11.00
7.00
55.6S
16.19
T2.53
26.01
25,49
8.77
35.M
18.48
1Z.24
7.M
25.27
4.62
17.83
10.09
30.77
2M
66S
4.51
12.72
MO
3.49
0.26
3.84
3.18
OT-«5
FiBott'Resid
883.80
1W.S4
888.00
42t.HO
14.17
1.33
1S.OO
11.00
78.23
».82
68.02
65.60
349,17
160.97
800.00
85.00
8.00
1.10
8.80
5,00
49.58
20.03
«.3»
^ 16.15
0.73
O.S2
1,63
0.23
27.42
21.92
SO.B5
1.04
21.42
10.87
39.4S
8.86
41.53
21,78
78,55
1182
S.15
0.38
5.71
4,83
MT-57
fsa
244.33
69.68
346.00
180.00
14,67
2.50
18.00
12.00
58.91
7,4«
«3.57
42.78
138.00
46.11
196.00
70.00
e.»3
1.72
10.00
5.00
55.48
10,94
70.21
37.84
2».64
».M
43.57
18,21
21.87
15.47
45.21
5.0S
S.95
2.50
8.57
2.13
23.44
9.80
36.24
7.W
4.08
0.39
4.SO
3.42
MT-W
Btetl
221 J3
72.61
341.00
124.00
15.17
2.32
18.00
13.00
87.03
7.23
87.S8
50.47
123.83
32.15
182.00
85.00
7.50
1.05
9,00
8.00
58.28
14.68
87.10
44.81
12,3*
9.23
30.65
6.80
3S.18
5.42
4S.W
31.60
6.73
5.42
16.94
1.48
12.36
*.47
18,34
1.61
4.39
0.47
4.87
3.45
TABLES
MTM/VF Draft PEIS Public Comment Compendium
A-281
Section A - Organizations
-------
ta
Mm
>3WTt__
•wean* 2 Dominant tan
ftwg
SO
Max
Mh
COHM
11?
2-1
TABLE 9
MTM/VF Draft PEfS Public Comment Compendium
A-282
Section A - Organizations
-------
Tl
o
s
;*
t»
m
CO
13
2
o'
O
o
Table 9. Analysis utilized was ANOVA on ranked data followed by multiple comparison testing using
Bortferroni t~tests. Degrees of freedom for all test are 2 and 16.
Abundance
Richness
Percent 2 Dominant Taxa
EPT Abundance
EPT Richness
PsreentEPT
Percent fHecaptera
Percent Ephemeroptera
Percent Triehoptsra
Percent CMronomWae
HB!
Degrees of Freedom
18
16
18
16
18
16
18
1«
16
16
16
F-value
4,50
2,18
7.03
O.OS
8.01
9,06
5,68
15.50
0.87
S.62
7.11
Probability
Level
0.0280
0.1476
0.0064
0.918J
0.0113
0,0023
0,0137
0,0002
0.4380
0.00»
0.0082
Significantly different from
unmined
FM/resMentU
Fiad, Hlled/reskiBoBal
Filled/residentia!
Fflledftesideiitial
Filled/resider.tial
F««l, Bred/r«sUentiaI
Filled/iespJe-.lial
Fillai/residential
O
o
3
TJ
®
a.
c"
3
1
0>
I
3s.
t
O
as
o"
(/I
-------
Tt
o
3
;*
Tl
m
CO
"0
§
o"
O
O
3
I
6"
s
-------
Table 11. Summary itaii
«ite* for S^1rplera
SO
M«x
Mio
Cewtt
18
73
3
16
SB
0
54
23
18
81
0
24
>afB»m f rtei«if*t$ra
SD
Max
fifen
Cosini
5
2D
0
42
7
31
54
IS
IE
2'
^rcsnt CtlJron&iftiOtfl
SO
V^a*
Count
15
12
64
2
42
27
21
74
8
35
1i
7!
S
24
HI! ,
SO
Max
Mis
4
OJ
5
2
42
S
1
7
a
54
S
0-5
i
2-
TABLE 12
MTM/VF Draft PEIS Public Comment Compendium
A-285
Section A - Organizations
-------
;*
T>
"O
c
CT
o"
0)
i a0ie vz. ^iggtttit^atice testing of ins spring ^uus bemme macromverf e&fme oaia. Analysis ufuiz^a was
&NOVA on ranked data followed by multiple comparison testing using Bonferroni t-tests, Degr ees of freedom
of all tests are 2 and 17.
Abundance
Percent 2 Dominant Taxa
EFT Abundance
EPT Richness
Percent EPT
Percent Plecoptera
Percent Epftetneroptsfa
Percent Trlehoptera
Percent Chfronomidae
HE!
Degrees of Freedom
17
17
17
17
17
17
17
17
17
17
17
F-value
1.9S
4.17
2.06
0.35
10.33
7.88
7.47
8.41
13.28
3.31
12.08
Probability
Level
0.1720
0.0335
0.1540
0.7080
0.0012
0.0044
0.0047
0.0029
0.0003
0.0610
0.0005
Significantly different from
unmjned
Fided/resWentiaf
Filed, FiltedfresWsniiaJ
F«ed
FBIed, F»ted*esMentBt
Filled
FBe«resi*»«ial
Filled/I esidential
Flted, FBed/fesaentiat
O
o
T>
CD
3
Q.
c"
3
00
o>
H
>
CO
OS
o
O
a
Q>
O"
-------
Tl
o
§1
m
a>
c
ET
o"
|
ct»
fable 13. Significance testing 01" Vm Winter iaido bentow maerotnvertebrate functional feeding groups- AnaSys&s uHted was
ANOVA on rartked date fdtowed by murrttpte comj>arison tesfing using Bonferroni Hests- Degrees of freedom for aB tests are 2
and 17.
Percent of each
Functional Feeding
Group
Coltector/gatherer
Filterer
Scraper
Shrodder
Predator
Piwow
Avwage
Unmined
56.84
4.72
11.79
21.73
6.12
0
Average
Filled
46.32
27.25
8.29
11.22
8.68
0.24
Average
Fille*
Residential
81.66
26.05
6.8S
432
1.30
3.67
Degrees of
Freedom
17
17
17
17
17
17
F-value
2.13
11.22
1.73
S.03
4.04
2.19
Frobabity
0.1488
0.0008
0.2074
0.010S
0.0368
0.1424
Sign^tcantfy different
from unmined
Filled, Fined/Residential
Fied, FWwVRmldantM
F:i!ed;Residefitial
"O
to
Q.
I
NJ
00
a
o"
is.
0!
N"
H
>
53
CO
-------
*}
if
lsili
ii
TABLE 14b, 14c
MTMA/F Draft PEIS Public Comment Compendium
A-288
Section A - Organizations
-------
la
«
111!
lill
liSiilli
TABLE 15a
MTMA/F Draft PEIS Public Comment Compendium
A-289
Section A - Organizations
-------
1
I
*
5*
1
i
1
jj
Is
H
ii
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ij
ft
5 *
A. "1
ij
i
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M
i
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1
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* ";
Hi
11-
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TABLE 15b, 15e
MTMA/F Draft PEIS Public Comment Compendium
A-290
Section A - Organizations
-------
iiSttlH!
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TABLE 16
MTM/VF Draft PEIS Public Comment Compendium
A-291
Section A - Organizations
-------
•1
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TABLE 17
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MTM/VF Draft PEIS Public Comment Compendium
A-292
Section A - Organizations
-------
o
3
;*
TI
m
CT
O
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It|M, TQfAi. s^/1
SU1FATE u^n
IBALUUM* wft
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t
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-------
Tattle IS. HaWtst and sefestraie inferajatlon EoJtwted by tfca US EPA at ttu feeafllfc TOiteralBverte&rM* gaming toeMtoas in the Mad
River, Syrme Pork «fld tetad Creak wateshads,
t8,a.MKi*ttiver
Stream Qrdar
tank Stak%
Bank Vsgasate
-tows
Migration
OTbsdSsdnsss
Syfestrata
Fra^ency of rWies
'tipariaf* Vsgstatoi
Sedfment Ospth
Vetoeit^C^Mh f^girms_
Total Habitat Scorn
tfeart Size Class
Diamstsr (nwij
% Samf at*) FKWS
UT-2
Urtmirasd
2
6
7
18
1?
14
1B
18
e
11
1?
148
9.4)
31.1
S74
MT4
UnRihied
2
8.5
B
IS
1»
13
1t
18
9
14
10
153
4.13
152
m4
MT-13
Unload
1
•i
8.5
W
1»
W
!«
«
9
14
10
193
3.33
&9
J0
MT-14
Fitlsd
2
7
§
18
17
12
It
ir
8
s
16
148
3,09
15.4
3S,r
MT-1S
FHled
3
8
8
18
15
14
11
17
8
6
18
145
2.97
11 .»
J4.6
fctt-18 MT-23
FMed Fified^eskl
2 4
«.5 7.5
6,5 5
18 18
13 14
12 14
17 .. 12
17 18
6 2,5
10 »
13 18
138 125
192 2.34
».« 2.7
1«.4 7S.Z "
18.b. S0rueft Fork
StmamQr^fir
Kmk SSiity
3ank Wgetstion
"kjws
Alteration
Smbsdtlednsss
Suttsirale
Fra^ueficy of Rifflsa
R^sriM Vsptatbrs
SediffientOsgU^
Vstoc% Dspfe Rqlme
Tata! HafjitsE Score
s^san S'tza Ctess
3lame®f (mffi)
% Sand and FSTOS
MT-JSB
nisa
2
4.5
7
19
14
16
1«
19
7.5
13
14
152
8*1
93J
1.8
Mt-92
?ma
3
B
S
20
7
13
14
18
4
10
17
133
2.7
«.5
4W
MT-38
UdmWied
2
S.6
8.5
17
17
16
19
20
7.8
17
10
161
3*
tos.s
S.S
MMO
FMtVRMU
S
5
7
t
4
4
e
5
14
17
144
3.88
S8.8
14.6
MT-42
UnrinM
1
8.5
8
1?
16
16
18
1»
8
15
14
165
3,47
36.8
11.4
MT-48
Filteel/Reski
5
8
9
16
IS
14
18
ts
7.5
13
18
WO
MS
22.1
as.g
1&c. i«l8mJCr«ek
Sirfiam Order
SankStebiHly
Bank Vepjtatton
Ftows
Alteration
Embeddedmss
SubstrsSf
Freqyency of Rfffes
Riparian V^etBtiofi
S*)lra»MD»l*
v«loc% D@|)Hi Regime
Total H^Mtal Score
M«m sta Glass
Dtsffmfef {ffim!
% Sand and Fines
MT.SO
Unmi»d
a
s.s
r
17
w
11
M
17
7
10
16
142
J-7
88.1
16.4
MT-51
UnmiFiad
2
5.5
5
IS. ...
18
12
18
t*
4.5
13
16
141
3.18
1U
3M
MT-»
FHI»d
1
«.6
t
18
12
12
17
18
M
13
16
146
3,42
91 .7
25.6
Mt-85
Fled/Resid
3
7.6
5.5
20
10
16
8
17
S
17
15
138
4.8
672.3
f».4
MT-S7S
F»«d
1
0
MT-90
FMd
2
8.5
8
17
W
16
17
19
12,5
14
10
157
3.81
48.4
ij.i
TABLE 19
MTM/VF Draft PEIS Public Comment Compendium
A-294
Section A - Organizations
-------
!J
f I
\\
1
II
II
f .8
I !
II
8
•I
P
a I
e B
I1
APPENDIX C
MTMA/F Draft PEIS Public Comment Compendium
A-295
Section A - Organizations
-------
Functional feeding group designations for families collected
Functional feediag group designations for fmntHes collected
at the HIS monitormg stations _
FAMILY
Aeari
Aeshmdae
Ameletidae
Saetidae
Baetiscidae
Bivaivia
Brachyeentridae
Caenirfae
CaJoplerygidaie
Cambmidae
Canaceidae
Capniidae
Ceratopogortidae
Chirottimid^
Ch loixiperiidae
Chrysoinelidae
Coenagrionidae
Collembola
CorbicuJidae
CordulegMtridae
Corydalidae
Cossidae
Culicidae
Dixidae
Dolichopodidae
Dryopidae
Elmidae
Errtpididae
EntofflobryJdae
Ephemerellidae
Ephemeridae
Ephydridae
Gastropoda
Gerridae
Glo^omatidae
Gomphidae
HeJophoridae
Heptagenidae
Hydracarina
Hydropsychidae
FAMFFG
Predator
Predator
Semper
Collector
Collector
Filler
Collector
Collector
Predator
Collector
Scraper
Shredder
Pred0tar
Collector
Predator
Shredder
Predator
Collector
Fiiterer
Predator
Predator
Shredder
Fiiterer
Filtered
Predator
Scraper
Scraper
Predator
Collector
Collector
Collector
Collector
Collector
Predator
Scraper
Predator
SiHredder
Scraper
Predator
Fiiterer
FAMILY
Hydropfilidae
Isooyehiidae
Isopoda
Lepldostomatidae
Leptopheteb iidae
Leuetridae
Leniridae
LimnephiHdae
Lymnaeidae
Muscidae
Nemouridae
Noctuidae
Otgiocliaeta
Oplioservus
Peltoperiidae
Perlidae
Periodldae
Philopotarnidae
Pkoridae
Physyae
Pkfiortjellidae
P0!yeentrapodidae
ihiephenidae
Psychomyiidae
Ptemarcyldae
Ptilodactylidae
Rhyacophiildde
Saldidae
Saldulidae
Salpingidae
Sialidae
Simulidae
Staphyitnidae
SttatioMyidae
Tabanidae
Taenioptefygidae
Tanyderidae
Ttpulidae
Tiirbellaria
Uenotdae
Veliidae
FAMFFG
Piercer
CoJleetor
Collector
Shredder
Collector
Shredder
Shredder
Shredder
Collector
Predator
Shredder
Shredder
Collector
Semper
Shredder
Predator
Predator
Filterer
Predstor
Scraper
Collector
Fiiterer
Scraper
Collector
Shfedder
Shredder
Predator
Predator
Predator
Predator
Predator
Filterer
Predator
Collector
Predator
Shredder
Shredder
Shredder
Predator
Scraper
Predator
MTMA/F Draft PEIS Public Comment Compendium
A-296
Section A - Organizations
-------
Tom FitzGerald, Kentucky Resources Council
Anthony Flaceavento, Appalachian Sustainable Development
— Forwarded by David KiderfR YUSKPA/US on 01/08/2004 o 1:48 PM
FitzKRCC*aol.com
To: R3 MountaintopetPA
01/07/2004 12:01 cc:
AM Subject; Comments on Mountaititop/Valley Fill DEIS
January 6,2004
Mr. John Potrcn
Project Manager
U.S. Environmental Protection Agency (3ES30)
165C! Arch Street
Philadelphia. PA 19103
Fax: 215414-2783
Email: tnonntaintop.r3 *>epa.gov
Subject: Comments on the Draft Programmatic BIS on Mountainlop
Removal/Valley Fills in Appalachia
Dear Mr. Forren:
The Kentucky Resources Council, Inc.. a nonprofit environmental advocacy organization whose
members include numerous individuals who live, work and recreate in areas adversely affected
by the construction of valley and he»d-of-holtew fills, submit these comments concerning the
draft BIS on valley fills and mountaintop mining.
KRC endorses and incorporates by reference as if fully set forth below the comments of the
Citizens Coal Council, the Kentucky Waterways Alliance, the Friends of the Earth, the Ohio
Valley linvironmenta! Coalition, the Ketituckians for the Commonwealth, and Save Our
Environment in opposition to the conclusions contained in the DFJS, and
urges that the DFJS be withdrawn in order that a document properly reflecting the science
contained In the numerous analysis, and consonant with the Clean Water Act and 8MCRA,
might be proposed.
Cordially,
Tom FiUGerald
Director
Kentucky Resources Council
Appalochion Sustainable Development
Cwm»rt»t( ant E«*wtmtflt
NarttWKt fewue* and SoattMfMt Vtta)rif
m. Box 791 , Ablngtion, Virginia 24212-0791
4-2
^feia^«e,g«^!gg"^t,
"ftft3^%"2!Wv'
Mr. Mm Pamir
US iavtaiimaiwl PretezBaa Ageney '
l«50Ard» Street
DeaMtFonw:
I waidrackrf to lei-n of ti:;E?A's plan io^lowmoimtamtop removal miring practices
to be acceierated and expaadsd.
'» am
will k«SS ^1 of these probisnB by elirainsmg limits on the size of Valley fii's and by
reduciag a ICO foot stream zone protection aita.
Mr. Forreri,] live iaAppalschia where this aountain'op removal takes place. Since
i«Kisl!««iBl978,ri««!»t4B!«BS?*Wjftisldad£(f^»(!tieetei»«, Ihaw
nuim-roiis friends v.iio iriake their ii™g in the coa! industn-and 1 airs a strong supporter
1-10
not and $mM act eoattmie ^ o&x at t&e e;q$eme ef fts
loot communities.
local ftmts add
jeanpse (w» «4i
-------
Friends of the Little Kanawha
FOLK
Friends of the Little Kanawha
P.O. Box! 4
Rock Cav«, WV 26234
January 3, 2004
Mr. John Forren
U.S. EPA (3EA30)
1650 Arch Street
Philadelphia, PA 19103
Dear Mr. Forren,
FOLK, Friends of tha Little Kanawha, is a watershed organization
dedicated to the preservation of the headwaters of the Little Kanawha
River. We have been performing benthte monitoring and chemical water
analysis on specific tributary sites on the headwaters for 25 years.
The EIS study on Mountain Top Removal confirms that this radical form of
strip mining is harmful to streams, the forest and to communities.
There has already been 1200 miles of streams buried under mining waste
in valley fffls. Burying headwater streams under tons of rubble is instant
death to the origin of a stream. These headwater streams are full of
organisms that benefit the river downstream and provide the balance
needed for stream health. Burying a headwaters alters the morphometry
of the affected stream, permanently altering stream volume, flow and
organic diversity downriver.
Our mixed mesophytic forests are the most dtverse in the world. The
operation of Mountain Top Removal has a predicted loss of over a million
acres of timber.
Communities have disappeared, close neighborhood ties have been broken,
people displaced, homesteads have been destroyed.
5-7-2
7-5-2
10-2-2
FOLK revests:
1. Stop the cavalier burying of headwater streams.
2. Reduce the size of valley fills.
3. Establish limits on deforestation.
4. Do not weaken the 100 foot stream buffer zone.
5. Develop programs to assist thosa suffering from community
displacement.
Thank you.
Sincerely,
1-8
Friends of the Little Ktnawha
MTM/VF Draft PEIS Public Comment Compendium
A-298
Section A - Organizations
-------
Grattan Gannon, Erris Co. LLC.
Liz Garland, West Virginia Rivers Coalition
ERRIS CO, LiC
724 OXFORD DR,
HUNTlNGTOKr, WV 25705
8/18/2003
John Barren
US. Environmental Protection Agency
1650 Arch St.
Philadelphia, PA 19103
PHONE 384 322 304
REC'O AU6 2 6:
Re: Moiailaintap Removal
Mining
Dear Mr.
I am a btts&tessutart wtios« erst^|«rise« depend on coal generated electricity in
Easfcsm and Western locations of the US, I Ivcve seen inmstttaiitep mMing and it is
insane. There are bettor ways of mining, and reasonably econautkral.
Pleas* accept tills letter as « pretest against mountatatop removal mining, and
as a plea h> guide us to sotmth&ig belter.
Mayor BiU Gorman of Hamrd,Ky, says that flat land created by mining has
allowed tot fas town to grow in a way it otherwise couldn't I accept this for to town.
O&ier location* more temote at® not s& fortunate. One such is in WV where thousands
of people a» permorwsritiy displaced, with no «tal possibility of d«v&]bprnsuit In a negative L-mploympiit sihiatton. It
appears fe3 be ttw priKr^t^/ to abuftdon the employees along with the larwi alter mining. I
da not live te close pt^Kimity to thess operations, bat tWs l«B:k of prirtdpte pefiecfes on
u^e as a buslra^satan. It lak^ Ehe hsitt out of om who struggfes io do what Is correct,
arid my business teffers,
H«ets« accept tiiis kttet fts ft plea to protect citizens ar,d their •
involved to this uftjiecessB»fy process.
1-9
10-2-2
WEST VIRGINIA RIVERS COALITION
801 N. EttdOlph Avenue •EDdia, Wat ViigMa 26241 • (304) 637-7201 • www.wvrivett.ois
Sammy 6, 2004
Mr. John Perron
U.S.EPA(3EA30)
WiOArohStoset
Philadelphia, FA 19103
Dear Mr. foam,
The June 2003 Mounaintop Mining/'Vsllcy Fills in Appalacbia Draft iTogr.tinmalic
Etmmamastal la^>^t S^slsoi^ (0HIS} rsciuesfecf public le^pemscs. As raqu0ste4 West
VfcgMa Riv«is CwJMoa (WVRC) sabmils He commons fat foflow.
\V\|TRCiepiesoits nearly 3,000 members and 48 afiiliae oi ganizatioBSwbo support our missioD
to sesk "flii! comovalion aid resswrjon of West Virgiiiia'i aaxpHawl mem and *eams".
MomitaiMop raiioval mining and it's iHHiciScd piactice of v-altey filling is in direct iippositioii to
the mtcrcsls and gods of WVRC and oar membership.
Our members refy OQ hcal&y vtstei. Qw mmibers ax& riparisa landows^s wlto ^onsmns West
Vn-ginia water for drinking Mrfwhost-chihlrHi play in our rivers. OurmKlifaers utilkt; aurwaler
j5^jiitg, li^jb^, exploring sad white meter bo^ng. Our nisnibcEB appreciate &e aesthetic quality
of West Virginia's streams, ti» abundance and divtrsitj- of our fisheries ard the rip.'uian ecoiofc-
ofonrheadwalcr sti'eams. Out merab=rs expect dean !md plcorifiil waer resources.
\\^^CMbirat5tnesecorrimenB to dkec.tly address the con
-------
Scott Gotlwitzer* Appalachian Voices
envtronmmt Infect, the Iroi^icg of' moie than a tjicu&aiid miles of headwater strctcns, is
presented as & statistic without comment about tfecmagsitade ofdesfcractiOTL
TlieDEISdocsnot^pportthcBufferZoneralc vvtiich wasmtroduced20yearsagoto
protectlaad within 100 feet of steams. The law protects these riparian, corridors on all
intermittent and ptsremiial streams widkiii SEreas <^it&itag m^lvlty. It ie<|iiii'es feat- water
quantity, water quality and related eaviromnental resources not be adversely impacted by
tmnmg, T&ft Btt$1» atNftt»s$*ttJo$t imposes efi%jctive$y eHnwasrtifig ifew buffer iBtd aJBowing
very adders* impacts to our rivers asd their liptriaa eosridoES-
The DEIS has downplayed its own secmintity ofevioos conclusions that smaller valley fills are
longer lengths of feeadwaasr stresois wifl resalt if the 0HIS canned recognize its own science
md limft valley ffls, tlms miiamisaag* %) fee issodmam €Kt«it ptsctf cable, the stdr^rsc
envirnntnentel effects to waters of fee United States."
The DL-JSconttmics to support the ase of genera! Nationwide Permit 21 which does not
provide ap{)fapri3^ The
general pcnni t is only lo be used wheu discharges have minimal adverse impact, including
cumulative impact Tbe direct aad eamubstrvw iiapaets of MHngvaEkyswifiimomitmitop
removal mining waste are enormous. In f&et tfee BEIS calls epos fflM^tton mfiasaros to
ofl&et ^*e tofiacls itf file saane time it acknow^dges that the destruction to headwater streams
Is cot tecoverable,
Offefts, amromaeiffal hans is 'weighed agamst ecoootnic gmn- Tfee DEIS ptsseet$ extensive
ec&aomic sosamaiy dgta, noae of wtiicli provides substantial economic argument fox- tfee
practice ofmoontaiatop nemoval, ea|)eciaJly any argument £9 coiaitef the saviro$9Jeota!
depadatloH of valley SUs, Cos! production is expected to be ^passed oat** in 4$ years,
according to U;eDHlST a figure that is almost douMcoihcr reports- In the last ten years
prodiictioa levels of coal have remained tsofisisfisat btit jobs, a ctitical economic Indicator in
Anpabichia have decreased. Wbci'e will the Jobs be In 49 years? The question is cspeciaUy
impoftasat since the DEIS poiats to a loss &om asifliag activity of sastaJnalile ag-ricaltiiral land
by over 20 percent in rongiily the last SO >-ear period.
|5-7-2
i-io
5-7-2
12-1-2
9-5-2
To coacl
to tfie waters of the Untied States1'. The ballets of dui letter point to die fact that the Bush
radmmistration is rccommccdL^g (be opposite by cncour^og N'HTl aiid supportiijg the
destruction of West Wgibia*s waters mfa tibe pnotise of vstoy filling.
Valley fills aad £&$ bmyiag of headwater streams ttmst be stopped Motmtamtop removal tstolug,
aad all imajag practices, amst proles tbe healSi of our water ffid stataosdli^ es^tensietBs,
WVRC asks that the rsspousiblc ageruies: U.S. Environmcmtal l^roiectioa Agency, U.S. Army
Coi|K of Esgiflears, U.S. Office 6f Sur^^ Mining. U.S. F!s& aad WMIfe Sesrvice and WV
Dqjfcrtment of Environmental Protection, revisit the purpose of the DEIS iiiid present sound
practices asd policies ^iHlsiiHizelhe envaroameetal degmdadoa of juoaafcaiatop removal miuiag
and vaHcy fillifig. In Itca of Ihe agencies' abUlly to make sotsai and taasonafois
reconaneadMioss, WVRC would expect moautaistop removal mimug and valley
to fee stopped
1-5
05 JANUARY 1004
Mr. Jofcn p, tkrae eommena ttt wtxxrahrt only to
the mat of iofamtxm a«IsUe teoagh dw diet of KibattOM (noted ibtwe) ud Ai not concede the
atdnshrily of the isnoo hsaafttt xMKtted. Aeeot*^, AfJHhthtal Vokra and SABP tMsin the tiglw to
comment upon, or ehalksge te)Q^i admrntsetztfoe or judiciai maans, may newic&jfnwtioa, Issues, csuses of
action 01 other iQfetm^Bon fektcd to fea above-wfeeeneftd KIS.
3-4
20BgttayPiri{Ave«»,Swte405
jkM»: 828-225-%a5 te
Carolina 2«M1
www.s«fpvoiees.ot|
MTMA/F Draft PEIS Public Comment Compendium
A-300
Section A - Organizations
-------
Bill Gorman, Mayor of Hazard, Kentucky
&$ Cited BocaiRCots a»d Astadfa&eafe. Fkase be su5«tad that any daeuiaeftts, whether
hard-cop? at ^eetratae, eitsdt in, or st&ehM to, ttusse eGmmetus ate to fee tinted as if ttap IJWEB My
fe rfst bo<% of !&«e coaKnents. As sweh» It is 0m iftttsatiQis that tfseae dfied cboimmtfi sasd
be considered jjtet of the coinptee siste *ad federal aeimmiatfttiv* jsseearsb. If asif of tbe
4geBd.es ffiwofoed w emewibg comments •w»aH Bas a^a» t^£ tiiese dociHBe«l\ .Ap^slaehiSB Voices yt
SABP -wiS furnish ifeem J^son seqaest fo* a neasemHe cqpfiisg Sse.
Request (hat Public Hesriog(s) be Recorded and Transcripts of the i'locecding? be Produced and
t of the A^Enitlicfieative Sesoedl- Appalachian Voiogs and SABP hcccbj- request ^nr n«f 4(«3 aS
&Nt to the abovft-cefREencecl EB be jec«z4etl and that transcsipts of the proceedkgs
d maete patt ef the eoffi|sle£e sfettta oftd Mint adb^immrf«« ttedtdt.
Request that Wi itwn Omunent Deadline be Extended for Two Wenks Afitr the Public Hearing. It Is
afetsotis that the gmblic ^ be beat abk eo pcovfete nieaiiln0fyl. wsi'tten coemiumts only after the? broe been
affoid«d «a ojjpoteuaitf to liea* £ccuxt «S Jater»sEed p^aaa ^mpotieots and op|>©neKW alike) attending »uj-
pufeik Heaabi^s. AJS sic^j, j^slscyaii Veices and SABP Ibeisfey BKpsett thst tb6 desKfiiinfi fet written
mmmmea be extended for two weeks felbwbg (asy soeii Keaiiap,
Request lot Wnttem Response «Q Commcfits. Appakcfelsn Voicss sm4 SABP hetoby rttqaest that EPA
pi^vide written t«sponses to all ipuMtc eomsu^s, taekidteg ifeese of Appaiauyjin Voices^ p
the »
Qosing Gomjneijts- As &£ attached mawnentss ftosn Ms. M^lmda. Weiton of &e Otsithebgicgl Society
, .^ too we O£toara% troubled ov«r fiia btcaiM eawbaamfflsia! iaapftcfij ^« mroaEtitttf^/'Kito Mi
isas h&d snd ^ffl coattstie to ha*g ijc a 'aads aitty of atitatKc, tetre^stiJzl and xtHftti t)ig*0Jasiis,
fy, we ate oEpdSy dbm&yed afeooi: the feconossic, e&Ltuxtl and ftraOTionmeatal coas*epi«rw:cs that
«|le|f Si laiftiag bas. Is and \dH cofitame tci usisak cm the good people seaidtof in the coal-
fields of Af3fak
-------
GOOD AFTERNOON:
MY NAME IS BILL GORMAN, I AM THE MAYOR OF
HAZARD, I AM IN MY 26th YEAR OF BEING MAYOR. I
SERVED OVER THIRTEEN YEARS AS THE VICE-
CHAIRMAN OF THE KY. ENVIRONMENTAL QUALITY
COMMISSION.
EASTERN KENTUCKY HAS HAD MANY PROBLEMS
HISTORICALLY, BUT IN HAZARD AND PERRY COUNTY,
WE HAVE BEEN VERY FORTUNATE, BECAUSE WE HAVE
BEEN ABLE TO GROW AND DEVELOP,
WE HAVE BEEN ABLE TO TAKE ADVANTAGE OF ROAD
CUTS AND FILLS. THE HAZARD BY-PASS COST $31
MILLION DOLLARS, BUT THE BY-PRODUCT OF IT HAS
BEEN OVER $100 MILLION IN DEVELOPMENT IN HOLLOW
FILLS.
MOUNTAIN TOP REMOVAL AND STRIP JOBS HAVE PRO-
VIDED MUCH NEEDED LAND FOR HOME SITES FOR OUR
10-3-5
PAGE 1
PEOPLE.
THEY HAVE PROVIDED OTHER SITES FOR THE
APPALACHIAN REGIONAL HOSPITAL AND THE ARH
PSYCHIATRIC HOSPITAL AND THE PHYSICIANS OFFICE
BUILDING. THE EAST KY, VETERANS CENTER SITS ON A
STRIP MINE BENCH.
WHAYNE SUPPLY, PERRY MANUFACTURING AND D. J.
NYPRO ARE LOCATED ON MOUNTAIN TOP REMOVAL
SUES RIGHT OFF DANIEL BOONE PARKWAY IN HAZARD.
APPROXIMATELY 300 HOMES IN HAZARD ARE ON
MOUNTAIN TOP REMOVAL SITES.
THE COAL FIELDS INDUSTRIAL PARK IS A 500 ACRE
MOUNTAIN TOP REMOVAL SITE, IT IS AN AUTHORITY OF
PERRY, HARLAN, LESLIE AND BREATHITT COUNTIES &
10-3-5
MTM/VF Draft PEIS Public Comment Compendium
A-302
Section A - Organizations
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PAGE 3
IS OPERATED BY THESE COUNTIES.
TRUS JOIST MACMILLAN IS A WOOD PRODUCTS
COMPANY, EMPLOYS ABOUT 500 PEOPLE AND THEY
HAVE OVER $130 MILLION INVESTED ON A MOUNTAIN
TOP REMOVAL SITE.
AMERICAN WOODMARK IN COAL FIELDS INDUSTRIAL
PARK (MOUNTAIN TOP REMOVAL SITE) JUST FINISHED
A 200,000 SQ. FT. BUILDING AND CURRENTLY EMPLOYS
OVER 300 PEOPLE.
EAST KY. CORPORATION JUST FINISHED A SPEC BUILD-
ING (40,000 SQ. FT.) IN THE INDUSTRIAL PARK.
SYKES, IN THE INDUSTRIAL PARK, (MOUNTAIN TOP
REMOVAL SITE) HAS BEEN IN OPERATION SINCE 1999
350 EMPLOYEES ARE CLOSING DOWN. HOWEVER, WE
TALKED TO OTHER PEOPLE WHO ARE INTERESTED IN
THIS SITE YESTERDAY.
10-3-5
PAGE 4
ADJACENT TO TOE COAL FIELDS INDUSTRIAL PARK
THE STATE GAVE THE CITY OF HAZARD A GRANT TO
PLAN A PROPOSED 18 HOLE GOLF COURSE.
ACROSS THE ROAD FROM THE COAL FIELDS
INDUSTRIAL PARK IS ANOTHER MOUNTAIN TOP
REMOVAL SITE. THE WENDELL H. FORD REGIONAL
AIRPORT, THE AIRPORT HAS TWO RUNWAYS - ONE IS
3200 FT. AND THE OTHER 5,000 FT. WE JUST RECEIVED
A $2 MILLION FEDERAL GRANT TO EXTEND THE RUN-
WAY. THIS $10 MILLION PROJECT INCLUDES A NEW
TERMINAL, A V.O.R. SYSTEM AND OTHER STATE OF
THE ART EQUIPMENT.
THERE IS A NEW WAL-MART LOCATION ON HIGHWAY 80.
THIS DEVELOPMENT WILL BE COSTING APPROXIMATELY
$50 MILLION DOLLARS DEVELOPED AROUND A HOLLOW
FILL AND MOUNTAIN TOP REMOVAL SITE TO BE COM-
10-3-5
MTM/VF Draft PEIS Public Comment Compendium
A-303
Section A - Organizations
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Sandra Goss, Tennessee Citizens for Wilderness Planning
PAGES
PLETED NEXT YEAR,
PERRY COUNTY DETENTION CENTER, A $5.3 MILLION
STRUCTURE AND KY. STATE POLICE, POST 13 ARE ALSO
ON THE SITE.
THE MINING INDUSTRY IS DOING A GOOD JOB IN
RECLAMATION. WE URGE YOU IN YOUR RECLAMATION
POLICIES TO ENCOURAGE MINING COMPANIES TO
RECLAIM THE LAND WHERE WE CAN GET THE MAXI-
MUM BENEFIT AFTER MINING FOR DEVELOPMENT AND
LAND USE.
10-3-5
"SaidraK. Goss"
< skgoss@ esper.com To: R 3 M ourtajrttop@ E PA
> cc:
Subject: Draft EIS Comment
01/06/200402:13
PM
Januarys, 2004
Mr. John Forren
US. EPA (3EA30)
1650 Arch Street
Philadelphia PA 19103
Dear Mr. Forren,
I write in rejprd to the Draft Programmatic Environmental Impact
Statement on Mountain Top Mining/Valley Fill In the Appalachian regjon
of the eastern United States, on behalf of Tennessee Citlzais for
Wilderness Planning, a state-wide organization with 500+ members.
There are several Issues in the draft E IS that concern IB. The primary
one Is water degradation. Data and accompanying studies confirm that the
environmental harm caused by mountaintop removal aid valley fill
operations is significant and mostly Irreversible More that 1,000 miles
of headwater streams have been destroyed or degraded due to valley fill
from mountaintop removal mining, with great harm to aquatic life forms
downstream. The lans and regulations that protect clean wrter mist not
be wakened particularly the proposal to change the stream buffer zone
rule that prohibits mining activity within 100 feet of streams. This
rule should be strictly enforced for valley Tills and in all other cases.
Another area of concern is toss of forests, an ongoing problem in the
Appalachians. The draft E IS projects that Tennessee will issue permits causing
the loss of 9,154 acres of forest between 2003 and 2012 based on permits
issued between 1992 and 2002. However, between December 2002 and
October 2003, over 5,000 aa-es of surface mining permits have already been
5-5-2
1-10
7-5-2
MTMA/F Draft PEIS Public Comment Compendium
A-304
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James Hecker, West Virginia Highlands Conservancy and
Ohio Valley Environmental Coalition
approved. This potential underestimate of future mining Impacts is substantial
and neecte to be Investigated and Incorporated in the analysis of cumulative
impacts in a fevdsed draft EIS.
The only mitigation offered in the draft EIS for the destruction of large areas
of hardwood forest habitat by mining operations is a suggestion tha the mine
sites could be reforested after operations erase Convincing evidence that a
hardwood forest, essentially the same as the one removed during mining can
be reestablished In a reasonable amount of time, needs to be presented before
this method can be offered as mitiption for the loss of hundreds of thousands
of acres of biologically diverse hardwood forest habitat.
The damage to water and habitat from mountaintop removal result in a loss of
habitat for animals. The Appalachians are an international treasure of
biodiversity, with a number of Birds of Conservation Concern. The draft EIS
does not address Executive Order 13186, which instructs federal agancies to
Integrate bird conservation principles and practices into agency activities. The
E xecutive Order needs to be implemented reprding the Mountaintop Removal
Mining in the entire study area
There have been numerous studies conducted in connection with the draft EIS.
It seems that the studies with any hint of conservation ware Ignored. Economic
studies prepared for the draft EIS indicate that significant restrictions on the
size of valley fills would not cause serious economic harm The environmental
and economic studies prepared for the draft EIS do not lend any support to the
administration's proposed "preferred alternative" that recommends weakening
existing environmental lav* that limit the size and location of valley fills.
We request a revision of the Draft E IS that will address some of the faring
jpps mentioned above. Thank you for the opportunity to comment.
Sincerely,
Sandra K. Goss
Executive Director
Tennessee Citizens for Wilderness Planning
Sandra K. Goss
4308 Thornwood Drive
Knoxville, Tennessee 37921
865.522-3809
skgoss@ esper.com
9-1-2
7-5-3
7-3-1
1-10
TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
AUS -7
August 5,2003
JofanPorren
U,S. EPA 0BA30)
1650 Areh Street
Philadelphia, PA 19103
Request for Extension of fc Pnble ComrfKnt Period on the May 29, 2003
Draft Eowtonoieatel topiet Statement on Moantaiatop Removal Coal
Re:
Dear Mr. Foam:
Cindy Rank of the West Virginia Hollands Conservancy has sent you a letter
requesting a 90-day extension of the August 29, 2003 deadline tat submitting public
comments on Hie May 29, 2003 Draft Environmental Impact Statement (DEIS) on
mountaintop removal coal mining in Appalaehia. On behalf of the Conservancy, I am
seeding this letter in fiirther support of its reqsest for an extension of t&ne.
The Conservancy took the lead ia negotiating and obtaining the 1 998 settlement
sweeraent tfcat resulted in the preparation of this DBS. ft therefore has a special interest
in determining that the DEIS fulfills the United States' obligations under that agreement.
To cany out this task, the Conservancy sent FOIA requests ia Joa* 2003 to West
Virginia, OSM, EPA, FWS, CEQ, and the Army Corps seeking records used In preparing
the DEIS.
West Virginia has responded to this request by producing a CD-ROM with over
5,000 email messages and attachments. These files contain tens of thousands of pages.
Most of these documents contain highly relevant communications by the Steering
Committee members who were directly involved with preparing the EIS. The
Conservancy cannot reasonably review and analyze all of (Ms material, in addition to the
voluminous materials fa the DEIS itself, by August 29,
EPA and CEQ requested an extension of time until Aagtat 18, 2003 to produce a
fill! response to the FOIA requests, Tb& Conservancy agreed with that request, with the
understanding that CEQ and. EPA would produce documents prior to that date as soon as
they became available. So fat, no document* have been produced. Given the volume of
the State's response, and the delay in these additional responses, the Conservancy cannot
reasonably review EPA's and CEQ's responses tad prepare comments by August 29.
3-5
GafcWd, CA 94S1X-3S84
Moot 020) &M190
Ite 010) 622-8.135
MTM/VF Draft PEIS Public Comment Compendium
A-305
Section A - Organizations
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The BHS is of exceptional public and environmental importance. It states that
moimtamtop mining causes "fundamental changes to the terrestrial environment," and
"significantly affectfs] the landscape nowta," wrfth post-mining conditions "dwntieaHy (fiffermf
from pre-minlng conditions. According to the DEIS, mining impacts on the nutrient cydteg
function of headwater streams "are of gnat concern." Mining impacts to habitat of interior forest
bird species have "extreme ecological significance." Mittteg conld impact 244 terrestrial
species. The loss of this genetic diversity "would have a disproportionately large impact on the
total aquatic genetic diversity of the nation."
The DEIS is urMsually lenj^hy and comptes. H contains nearly 4,000 pages and
encompasses ova 30 technical studies. West Virginia's FOIA reasons* indicates that Storing
Committee members spent 14 weeks camped at tlia Interior Department in early 2003 rewriting
the document See May 27,2003 Hostile Q&A Draft, p. 1. As a result, it differs tremendously
from the preliminary draft that the Conservancy obtained in response to a prior FOIA request in
2002. West Virginia's FOIA response also contains a set of agency talking points in which the
agencies admit that "mountaiatop mining is a complex issue" mid that the DEIS is "a very large
and complicated document." See May 29,2003 ComnranicaJions Strategy, p. 2.
I therefore hope that you will agree that an extension of time is needed.
Sincerely,
1! fREC'D JAN 0 ?!
Comments of West Vkgifiis Higbtaads Conservancy and OWo Valley Environmental Coalition
on tile
Draft Progwmmatlc Environmeitta! Impact Statacoent on
Motmtaintap Removal MMiag/Vatley Fill Activities in Appaiachia
James M. Becker
Be£0Mfiifi Wakefield
Trial Lawyers for Public Justice
1717 Massachusetts Avemic, KW.
Suite 800
Washington, D.C. 20036
Joseph M. Lovett
n Center &r the Economy and the
P.O. Box 507
Lewisterg, WV 24901
Cowael tat West Virginia Highlands Conservancy
and Ohio Valley Environmental Coalition
January 5,2004
MTM/VF Draft PEIS Public Comment Compendium
A-306
Section A - Organizations
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Table of Contents
I, The DEIS Violates the 1998 Bragy Settlement Agreement 1
A. The Agreement Required the U.S. to Develop Alternatives to Minimize
Environmental Impacts 1
B. From 1998 Until Mid-2002, Preliminary Drafts Recognized that the DBIS
Had to Include Action Alternatives to Minimize Environmental Impacts ...... 1
C. In October 2001,-the Deputy Secretary of Interior Ordered a Complete
Change ia the Direction and Purpose of the HS 3
D. Shortly After June 2002, Senior Agency Executives Overruled the DEIS
Steering Committee and Directed Adoption of a Revised Alternative
Framework that Eliminated Any Restrictions on Valley Fills and Substituted
Only Process Alternatives 6
E, The Revised Alternative Framework Violates the Settlement A^eameat 7
f. The Narrow Focus and Purpose of the DEBS Eviscerates Its Utility as a Guide
for Future Decisions on How to Minimize Environmental Impacts 9
1. In Addition to Violating the Settlement Agreement, the DEIS Violates NEPA in
Numerous Respects , .,,,10
A. The DEIS Violates NEPA Because & Does Not Contain m Reasonable Range
of Alternatives; All of the Alternatives Are "Process Alternatives" Without
Any Substantive Differences 10
B. The DHS Violates NBPA Because It Adopts OSM*s "Vision" and Defines
flw DHS's Purpose and Scope ia an Unreasoatbly Narrow Manner 14
C. The Alternatives Considered in the DBIS Violate NBPA and Defeat the Purpose
of a Programmatic EIS Because They AH Defer Analysis to Future "Case-by-
Case" Decisions on Mining Activities, aad Are Not Designed to Address and
Reduce the Cumulative Impacts of Those Decisions 15
D. None of the Three Alternatives Considered in the DEIS ShouM Be Adopted .. 22
E. The DEIS Violates NBPA By Not Analyzing Alteratives to tetrict Valley
Fills, Stream Loss, Deforestation, and Use ofNWPs 23
1. Restrictions on Valley FBI Sizes Should Be Considered 23
2. Restrictions on Deforestation Should Be Considered 25
3. The Eidstiag Alternatives in flie DHS Regarding Deforestation Are
Inadequate and Ineffective 27
4. Restrictions OB Stream Loss Should Be Considered 28
5. Individual and Cumulative Minimal Impacts Thresholds for NWPs
Should Be Considered 29
6. The "No Fill" Alternative Stmold Be Considered 32
7. An "EBviromneatally Preferred" Alternative Should Be Considered ... 35
F. The DEIS Violates NEPA Because It Presents Irrational Reasons for
Eliminating Reasonable Alternatives , 36
. 1. Even if There Were teaffieieat Information to Draw a "Bright Line"
Type of Restriction, Some Type of Individual or Cumulative
Restriction on Valey Fining itet Be Considered 37
2. The OBIS' Claim of Lack of Harm Is Erroneous and Is Not a Valid
Basis for Rejecting Fill Restriction AltemaBvm 39
3. Even if Sufficient Wormation Ware Not Available Now to Develop Fill
Restrictions, That lafotmstion Must Be Obtained, Because It Is Essential
to Choosing Among Alternatives, and the DEIS Does Not Demonstrate
that fhe Cost of Obtaining That Wbrmation is Exorbitant 41
4. Tie DEIS Cannot Bvade the Need to Consider Fill Restrictions on the
Ground flat Those Restrictions Are Prohibited by the CWA 43
fl. The DHS Violates NEPA Because It Mis to Address or Remedy Continuing
Violations of Federal Law .,.,.;.... 44
1. The DHS Violates the Clean Water Act Because It Assumes Continued
Use of Nationwide Permits, Even Though the DEIS' Own Studies
Demonstrate that the Minimal Cumulative Impact Ceiling for NWPs
Has Already Bees Exceeded 45
a. The CWA Prohibits Use of NWPs Unless fte Permitted
Activities Have Mififaal Environmental Effect* Both
Individually and Cumulatively 45
b. The DHS DsmoisfmMBMt the Cumulative inptcts of
MTM/VF Activities in AssalK&ia Are More tfeaa Minima!.... 46
2. The DEIS Violates the Clean Water Act, Because Its Studies Show that
MTM/VF Activities Cause Violations of the WV Water Quality
Standard for Selenium, Bat the DEB Does Nothing to Address Those
Violations 5!
3. The DHS Violates SMCRA, Beaase ft Admits tBaiMTM/VF Activities
Violate OSM Regulations Re-farting Soil Practices, But Does Nothing
to Address Those Violations S3
H. The DEIS Violates NB?A and SMCRA by Assumiag that Changing the
Stream Bufisr Zone Rule Is Part of the "Ho Action" Alternative ............ 54
1. The DBIS Violates NH'ABeMuse it Fafls to Adequately Analyze the
Eifectlveness of Mitigation Measures 57
I. The VEXS Relies on the E£feottven«» of to-kind Mitigation While
Admitting That Qa-sile Stream Reconstruction Has Never Been
Successfully Accomplished 58
2. The DEB Relies Solely on a BMP Manual to "Encourage"
Refttutttiui Without Any Analysis of Whether It Is Likely to Do So .60
J. The DBS' Analysis of flic Beoaomic Impacts of Mtaiag Restricttaas h
62
K. The DBS Uaderesttaales Ctffinuatfve Impacts by %noring Valley Fills Prior
to 1985 and Failing to Include All Watershed Impacts
L. The DEIS' Summary Dismissal of Blasting Impacts as Insignificant Is
Erroneous, aad Its Suggestion that Citizens Ftle-Nmssrice Actions Is
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Section A - Organizations
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Outrageous 65
M. Tie DEIS Underestimates Impacts on the Cerulean Warbler by Ignoring A
Recent Study 66
N. The DEIS Underestimates hnpacts on Threatened and Endangered Species ...68
0, The DEIS' Discussion of Antidegtadgtion Requirements Is Erroneous 69
P. The DEIS Contains Several Serious MhsWements of Fact 70
m. The Corps Is Illegally Taking Actions Before the Final EIS Is Completed 72
A. The Corps Ha$ Made Commitments to Aetioss that Prejudice the Results of
the EIS 72
6. The Corps Has Decided to Segment the Issue of Fill Thresholds from the
Rest of tfaeNEPA Process 73
Conclusion 74
List of Exhibits to Comments by WVHC and OVEC on MTM/VFDEtS i
The West Virginia Hollands Conservancy and the Ohio Valley Environmentel Coalition
submit the'ibllowing comments on the Draft Environmental Impact Statement (DEIS) for
luountmatop removal mining and valley His in Apptlaehia.
I. The DEES Violates the 1998
Settlement Agreement
A.
The Agreement Required the C.S. to Develop Alternatives to Minimize
Environmental Impacts
Under the 1998 Brjjjg Settlement Agreement, flie United States agreed to prepare an EIS:
on a proposal to consider developing agency policies, guidance, and coordinated agency
decision-making processes to mimmlzs. to the maxircram extent practicable, tfcq adverse
environmental
-------
Preliminary Draft EIS was issued in Jarmary, 2001. It costamed tlsee action alternatives that
restricted valley fiJls to ephemeral or intemitteBt streams, rotated the 100-fooS stream bnl&r
zone (SBZ) rale, and required adequate soil practices and forestry PMUIs. Ex, 3, pp. ES-«, IV-
1. Diflta^vnskratftlsMesatteiitemilim'WBMpnKat in later drafts until June 2002. For
example, a Match 2002 draft stated:
Tbe most significant distinction between the fbor slternstives is feow ead3 one addresses
Issue 1, "Direct loss of areamjaadstteamiinpasaent" Thequsstioarfwhatpoftiofts
of a stream can be legally filed under SMCRA ttiftedty was wntal to the Bras v.
Robertson lawsuit. the District Court deciste in that ease established flat fte SMCRA.
stream buffer wne regutaUons «t 30 CFR 916.51 and 817,57 do net allow mining
activities (ineludmg -caltey filb) within 100 feet of kteffiitfent ot peraiaial steams. The
Fourth CitooSt Court of Appeals toter weat«d the Distriat Court's decision, but on
pound* naateted to the applicability of the stream bufier zone xute. B«oase of the
atmosphere of regulatory uncertainty aaHmnding this issue, and flie importance of
allowable valley fill sfee to taiae-riaWfly and enviroiaoentol Impacts, the agencies
da»loaed Ae EfS .altemativiB aroimd it. Eaeii alternative proposes diffwat disngw to
regtitatoiy jso^ams that determine tbe allowable «ctmt of steetm toss throo^i vaBey
filling. The amount of valley filling tat is allowable will aflfeet fl» amount of mining that
can occur, which in turn will determins iie environmental and ecoaoniic awseguseees of
selecting & g
Ex. 21, Alt, p. 5 (emphasis tMesS), Set olio Ex. 24, p. W-2. The Propaaed Agenda for a Jvuie
1 8, 2002 Steering Committee meetSijg describes the feur «lt«5atives us follows:
Table IV- 1 .Mountiiatop Mbfag / Valey PtH EIS Altatriatiye Summary
Alternative A
Alternative B
Alternative C
Ho changes to the SMCRA and CWA programs in effect in 1998
Depending on the outcome of a detailed, psmiifr-by-pennit baseline data
eolleofion; thoroujfc site-specific, significant adverse irapaet amuses;
and, aensideraaoB of aKewtfivw for tvoidwse md rnWratoBon, valley
fills «rald te allowed in eptomeal. toteraitttBt, »d perennial stream
segments. MMgatim of UMVoid^tetajaots weald refjtjire to-kind
repiacement of ao^Mic fiffictlons and values witMnte watershed.
Valley 80s could be lowtsd in ephemeral aid teteanittent *earas.
Permit-by-permit baseline data eoHeettoft and stte-%ectfie dtermflves
analyses woald be required (stMjo/agfa not necetsariry » rigorous as in
Alternative B) to demonstrate that avoidance and minimization were
considered. Mitigation options for unavoidable impacts would be
somewhat roans varied sod thus more flexible tbsn tinder Alternative B.
Alternative D
Valley fills coUJd be located onfy «tins ephemeral jwtta of stews,
PermiMjy-peHBJt'baseUae- data, collection would be more Baited flan
under Attematw B, ffld ateraaive analyses would demonstrate that
minimization of downstream or indirect impacts were considered.
MMfatfaa «ould include compensation in lieu af in-kind replacement of
lost aquatic function and value.
Ex, 33, Prcpoied Agenda, p. 7.
C.
In October 2801, (h$ Deputy Secretary of Interior Ordered * Complete
Change in the Direction and Purpose of ft* EIS
1-13
However, OB October 5,2001, J. Steven Grfles, Deputy Secretary of the U.S, ttepartment
of tte iDtetior, isWd a letter to the CEQ, Office of Management sad Budget (OMB), S?A, and
COE, stating in pertinent part:
We Wieve the JMTM/VF] HS is fte logical vtbiete to addteas enviromaental protection
and promote government efficiency, while meeting (fee nation's energy needs... We do
not beHew that A* HS, as-cwrenfly drafted, focuses sufficiently on these go»ls. We
must awire 4at the BIS isy &e groundwork fijr eoordirafiag our respective regulatory
j-orisdicucn in tire most efficient manner. At £ minimum, this would require that the EIS
feciig .Qncfffttpjfapigarid.slEegmHmrtg coal mi^petMitting. and rsisirriizirig or
mitigating environmental impacts.
Ex. 7, f. 1 (emphasis aided). In an Qetote 11,2001 e-mail, Jtfflke Robinsott {OSM) «q>bi»d:
OSM h»s HKaived some executive dtrection ftoa 4* D«p«tment of the Itteridr on afn]
overall their* SK BJS BIS to «rateice>.. It's... ta line wifk ttie President's desired
direction for the energy polfesy. [T]he document was shared by Deputy Secretary Orites
with many of to prinelptls of our agencies fMs Monday at a meeting with HM President's
[CEQ].
Be. 8, p. 2.
la responw to the Qriles tetter, OSM developed a "Vision" sWwaeftt2 See 10/19/01
Hoflruaa *-aail, Ex. 9 ("I've also ioeWed die 'vision' that OSM developed ia response to the
Chiles letter"). Bait* toading of to OSM "vision statement" clearly appeared "ft* vision," as
follows:
1-13
*Bx. 9, p.l: Tve also included the 'vista' that OSM developed in response to the Oriles
latter."
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Section A - Organizations
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The Visions Streamline the regulation of valley Jills ly eFeatiag a "ene^slop"
permitting authority to satisfy all prrtltKiit statutory requirement*.
Ex. 9, Att, p. 2 (bold type, underlining, and italics in original). The "OSM vision" sought to
address the "problem" that "(t]he Bragg settlement agreement incensed COE and EPA
involvement in the review of coal mining permit applications" by creating "a comprehensive
'one-stop' permitting authority within state government to satisfy CWA aad. SMCRA." Jfl, p. 2
(emphasis in original). The "OSM Vision" explained:
Refoeiising of the BIS: ... The OS, as currently drafted,... does not sufficiently
consider options ibr centrajii$n$: aa4 streamlining, coal n^ne, permitting. The scope of tfafe
EELahottld be narrowed to foous oa tninimiziag »d mitigating impacts to tie waters of
the VS. rather thafl the broad scope carreatly contained fa the draft.
lit, p. 4 (bold type in original, underlining added). The new "OSM Vision" represented a
dramatic departure from the policy and purposes underlying (he preliminary DEIS, As observed
by Dave Densmow (USFWS) in as October i 1,2001 e-mail to Mifce Robinson (OSM):
Needless to say, this is not a shining ejcample of our Department having "spoken -with one
voice," since I can find no evidence of anyone at FWS having reviewed or concurred wi&
this approach. Regardless, based on my initial review, I find 1 cannot support this
approach, if for no other reason than the record having amply demonstrated mat it has
been the absence of federal oversight, not its confounding influence, that has gotten us in
the fix we are in now.
Ex. 9, p. 1.
As the "OSM Vision" reshaped the BIS, it became clear that OSM was demanding to do
away with me SBZ rule, not consider any requirement for reforestation, avoid regulation of
"terrestrial impacts" altogether, and consolidate permitting authority in the OSM, the COE, and
state SMCRA agencies (the development agencies) while diminishing the role of EPA and FWS
(the environmental protection agencies). BE. 10,11,12,13,19,20.* These objectives were
The drafters of the DEIS recognized that the "OSM Vision" represented a dramatic
departure with "key changes" ftom the PDE1S - that is, that the DEIS gutted flie substantive
environmental restrictions contained in the PDEIS in favor of purely "process" alternatives. For
example, a January 16,2003 memorandum regarding "[MTM/rVF] DEffi Background
Information for Communications Team," identified a series of "key issues that we anticipate will
be raised when the DEIS is published for public review," iBohidtog the following: "In response
to a 2001 FOIA request, an earlier version of the DBS... [was] released to tins public... The
current draft is different in several important respects, including the characterization of
alternative actions being considered in the DEIS. (Hie egllei- version focused, on evaluation of
alternative restrictions for limiting the size of valley fills m a wav.to limit environmental
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embodied to what was called "Alternative B," which OSM had unilaterally4 designated as the
"preferred alternative." 14. Alternative B contataed the process changes necessary to
"streamline" the permitting process and consolidate authority in the development agencies, while
setting no substantive limits on fill size, location, or impacts. Ex. 24, p. IV-1. BPA's William
Hoffman summarized:
...OSM seems to be understating the "environmental criteria" aspects of the Section
404(bX 1) guidelines that must be satisfied before a decision to issue a permit can be
made. QSM teemsl|o be foqusing solely on procedural aspects, which, if satisfied, will
always lead to permit issuance... evea if the [environmental] impacts continue to be
significant. If OSM focuses solely on incorporating the procedural aspects of the Section
404(b)(l) guidelines without including the "environmental criteria," the Section
404/BMCRA merger will be incomplete. The reason this is troubling to me is a statement
made... by an OSM attorney which suggested that... [a] permit will not be denied based
upon environmental effects... We must make sure that the SMCRA rale changes
incorporate performance standards that look at both process and environmental effects
(material daiaage in OSM Hugo) if the one stop permitting process is to work.
2/13/02 Hoffinan e-mail, Ex. 15 (emphasis added and removed). Mr. Hofiman further explained:
OSM has been pushing hard to aygjd.fequifing jefbtestatjoa and HfLV controls, and to
create a one-stop permitting process for ranting with the State SMCRA agency ss the
regulatory agency for CWA 402 anci 404 permrtUng... They [OSM] are going to propose
rule changes »t the same lime the EIS goes out that would incorporate 404(b)(l) analyses
into SMCRA regs and which would modirV the stream buffer rule to permit flits under
this "enhanced" State review process. As such, th«y ate pushing for the selectJoa of
Alternative B in the IjfS as ftg jreftosd alternative (fills would not be restricted to any
payticttlar watershed size or segment - but decisions would be made case-*by-case under
an improved regulatory scheme). Until the administration changed, we had agreed not to
select any alterative as preferred, and wtit to see how fee public reacted to the different
options. That's all changed now under the cogent OSM regime.
2/27/02 Hofltoan e-mail, Ex. 17 (emphasis added).
The "OSM Vision" is, in effect, a blatant attempt by political appointees in the Interior
impacts,
CWA wd SMCRA to ensure more eiieeUve ajvtaraaeatal protection. Why were these fast
madef Ex. a2,p.2(em|tosisaddeot).
4An EPA officW stated: This came right out of fte blue last ai jht There has been
absolutely no agency cootdtnttta (to my knowledge), aad it flys {sic] in the face of all of our
previous agreements not to designate » preferred alternative." Ex. 10.
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Department to unilaterally rewrite Ae Settlement Agreement wtthoat the consent of the parties to
that litigation,3 As a-plaintiff in Bragg, thft Conservancy mvat agreed to OSM's "Vision."
Instead, it agreed to the plain tonfaage ia the Ajpeament "That "Vision" lias become fee driving
force io the DEIS process, in place of the Settlement Agreement
D. Shortly After Jane 2J02, Senior Ag«tt«y Executtfts Owrrnled the DEIS
Steering Committee and Directed Adoption of a Revised Alternative
Framework that Eliminated Any Restrictions on Valley Fills and Substitnted
Only Process Alternatives
EPA continued to argue in April, 2002 that the SBZ rule should be strengthened rather
than eviscerated, and thai a NWP 21 minimm impact threshold should t» established,
particularly within "Altaaative B" sine* that dtemrttve relied on a "projeot-by-projeet" review,
Ex. 23," lift draft of the EB that existed in April, 2002, wblfe setting fosflj "Alternative B" as
the "preferred alternative," still contained- Alternatives C and D, which «try tepressitettves
participated [in re-writag the EISJ," (672/Q3 Robiasoa
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deficiencies contained ia the previous three-alternative framework, tad the tall draft of
Chapter IV confirms our concerns. Tserefbre, we continue to object to the ti$e of ihis
approach. However, since tfae agencies are proceeding based oa adoption of this
approach, we do not believe that elevating this issue for higher level review would be
helpftil or productive. The following general comments are intended to provide you only
with our sense of how problematic the proposed alternatives framework has become.
Now that the basic concept has been more felly elaborated in the September 20 write-up,
it is painfully obvious to as that there are no differences between the three action
alternative! that can be analyzed to a TtHPA context Table 1V-2 (Comparison of
Alternatives) underscores this fundamental shortcoming: Bach of the teee action
alternatives offers only meager environmental benefits (thus a "two-star rating," as with «
budget hotel or 8 movie), aad there is no difference between them — even in their degree
of meageraess. trie relative economic effects of these alternatives are similarly
indistinguishable. The reader is left wondering what genuine actions, if any, the agencies
are actually proposing.
Table IV-1 states flat the alternatives would "wtefeife*" the advene effects of
mouat»iatop mining and valley fill construction; the "analysis of alternatives" section
states that "all three alternatives will result in greater environmental protection that will
fulfill the agencies HS objectives." As we have stated repeatedly, it to the Service'*
position that the three ''action" alternatives, tt currently written, cannot be
interpreted as ensuring any improved environmental protection, as stipulated in the
settlement agreement, let alone protection that can be quantified or even estimated
in advance for purpeies of a MEPA aaafysfa. Without provMing clear indications of
how flie Corps would evaluate projects and reach decisions •Bamigh either the nationwide
permit or individual permit processes, and how th« SMCRA agency would make its
' decisions under Alternative 3, the public wiil not be able to deduce whether impacts to
waters under any of these alternatives would be any diffemt than the no action
alternative. Furthermore, the results of implementing individual action items whose
"actions* do not produce an outcome ("will continue to evaluate," "will work with the
states to establish," "will continue to assesi," "will continue to refine"), and of
developing "Best Management Practices" whose use wiB be voluntary, are not likely to
effect quantifiable, or even recognizable, improvements in environmental protection.
As we have already discussed ad nataman, NEPA regulations (ieseribe the Alternatives
section as "tao heart of the environmental impact statement" which, in comMnaiion'wifh
the Affected Environment and Bnvironmental Consequences sections, should "present
the environmental impacts of the proposal and the alternatives in comparative form, thus
sharply defining the issues and providing a clear basis for choice among options.by the
decisionmaker aad the public." Even after considering the necessarily broad,
programmatic nature of this document, we kave elearry felled to meet these standards.
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The HS tecinractl studies carried out by the agencies — at considerable taxpayer exfmnse -
- htve documented adverse impacts to aquatie aid terrestrial ecosystems, yet the proposed
alternatives presented offer no substantive mesas of addressing these impacts. The
alternatives and actions, as currently written, belie four yean of work and the
accumulated evidence
-------
framework that we're working with, "Why?' is instead going to be the public's response
when they see ttet, to gewfilplish the HS goal, all we've proposed is alternative
locations to house the rubber stamp that issues the permits. Why on earth would we
even prepare an EIS on such a non-event as tinkering with the permit issuance process,
UNLESS we also felly develop and provide the details on HOW each one of the
alternatives is really going to minimfe environmental impacts? ...
Mike (Robinson (OSM)] said we don't need to go into details because it's a
PROGRAMMATIC BIS... [WJhere is it written that programmatic BUS'S shooM of&f
only vague alternatives...? Again, it seems that Mding behind the "programmatic" veil
that we as agencies have unilaterally chosea and defined, really violates th* spirit of the
settlement agreement
10/30/02 Tibbott e-maii, Ex. 45 (emphasis added).
As it now stands, the DEIS is simply an analysis of which agency takes the had role in
making the decisions. There is no gtridanee on how those decisions should be made. The
unresolved decisions include what streams should be protected, how msny streams should be
protected, how the buffer zone rule should bo applied, how much forest shoald be preserved, and
how mitigation requirements should be applied. The agencies have cot addressed aay of these
issues in the DEIS or to any other NEPA document. Nor have they explained whether flse
different alternatives would reach different conclusions about these issues. As a result, the DEIS
is useless as a means of guiding future decisions on mlnSraiatag eaviroHtnental impacts, and all
of these issues will have to be addressed to additional fflSs in the future.
In sum, early drafts of Use DHS considered alternative! that were desigaed to minimize
environmental impacts, as the Settlement Agreement required. OSM then substituted its own
'Vision" of one-stop permitting that unilaterally amended the Settlement Agreement To carry
out ttat unilateral amendment, fte BBS substitutes purely process alternatives that eviscerate the
utility of the document in deciding how to rflWaiize environmental impacts. Consequently, the
DEIS violates the Settlement Agreement.
II. la Addition to Violating the Settlement Agreement, the DEIS Violates XEPA fa .
Nuflaerous Eespects.
A. The DEIS Violates NEPA Because It Does Not Contain a Reasonable Range
of Alterwrtrves; AB of fte Allemattws Are "Process Atternttivo* Without
Any Substantive Differences.
The three "action alternatives" considered in the DHS do not represent a leplly
sufficient range of alternatives because they are merely "process alternatives" without any
substantive differences between flam, or any substantive difference from the "no action
alternative." That is, the three "action alternatives" conteiBptee merely reshuffling the
procedural responsibilities between the various agencies, and all three have the same or very
10
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similar environmental impacts. Nose of the alternatives consider substantive restrictions or
change from the status ^u*x
He DEIS directly states (hat "[all alternatives... are based on process differences and
not feecttv onmeasnres AM restrict the area of mining." DHS IV.G-3 (emphasis added). The
DEIS flatter admits that "[t]be environmental benefits of ibe three action alternatives are very
similar," (DEIS ILB-13), and that "[f]ke regulatory HSSpOBsMfties... are common to all the
alternatives. However, the lead agency for eash responsibility imder the action could vary under
each aiternatrw." DB1SB.C4S. The DHSftirtner explains: "His programmatic EIS is
necessarily bread |$ven its propose of addressing policies, guidance, and coordinate!! agency
dedsi«HtttildBg processes... The proposed action aternafives are largely administrative and as a
result, BCi»r«tely projecting their environmental consequences is difficult" DEISIVA-1. That
the 0BIS relies upon a tondamsntal misconception feat it need not consider substantive
environmental restrictions is evident also in the agenda for an Executive and Steering Committee
meeting of November 21,2002, which states:
-Lack of environments! contrast; t/s a Jill restrietian component mededin Alternative 1 to
ffewided [sic] most emlromtentally-prtitectivt alternative? ...
-OFA states that MEPA.coffifflifflCfe.iiqt ga$$fifid! alternatives need not bs limited to
existing statutory authority—Should a "no m&ting" of other restrictive alternative be
included?;
- Counter: earrent contrast is "atoiiMtrBtlve'.aBAstaflar environmental consequences.is
jjk for programmatic DBS and consistent with 1999 Notice of Intent and 1998 settlement
agreement.
11/18/02 Hodgkiss e-mail, Ex. 52, Attachment (underlining added). As argued throughout thes
comments, a mere "administrative contrast" without distinguishable environmental restrictions or
consequences between the alternatives is not consistent with the 1999 Notice of intent, the Bragg
settlement agreement, or NEPA requirements to consider a reasonable range of alternatives.
Members of the Executive and Steering Committees criticized the DEIS for this same
reason. FWS stated flat it "is paiafolly obvious to us that (here are no differences between the
three action alternatives that can be analyzed in a NEPA context." Ex. 42, FWS Comments
(emphasis added). The FWS father commented that "all we've proposed is alternative locations
to house the rubber stamp that issues the permits." 10/30/02Tibbott e-mail, Ex. 45. BPA'sJohn
Forren stated that: "On its face, the set of aiternttives studied in detail in this DHS do not
represent fte full range of alternatives..." 10/4702 Porren email, Ex. 43. u[T]he principal
distinction between the three proposed alternatives is which agency will take the lead role..." H-.
Detailed Comments, para. 4. "A question that will surely be posed by some in the public is
'They did an EIS to determine which federal agency should take the lead role?'" !d.
(emphasis added). Similarly, EPA's Wheeling Office commented:
The body of the report has excellent scientific information on the environmental impacts
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of MTM/VF mimng. Unfortunately, it appears that information was not used in
developing the Alternatives. It is not clear why Alternative 2 is di» preferred alternative
when the only major difference among the three alternatives seems to be which agency
leads the permit process. The summary of the alternatives ... states that cross-program
actions minimizing adverse effects of mountaintop mining and valley fill construction on
terrestrial resources and the public are identical in Alternatives 1,2 and 3.
Ex. 55, Attachment: Comments, p. 1 (emphasis ia original); see also, 12/29/02 George email, Ex.
56 (the DEIS' "science findings are not reflected in [its] conclusions/recommendations"). EPA's
Greg Peck recommended consideration of a 50% restriction on first order streams in second
order watersheds because it would "address our goal of sharply defining the differences among
the alternatives and to address cumulative impacts, which he feels is lacMag among the
alternatives now." 11/15/02 Fonen email, Bx. 51. FWS" Tibbott proposed applying the
alternatives to a hypothetical mine project to understand what the consequences of each
alternative were, but that proposal was rejected. 11/1/02 Robinsoa email, Ex. 46.
The CEQ's NEPA regulations provide that the Record of Decision on an EIS must
"[ijdentify all alternatives considered by the tgeacy ia reaching its decision, specifying the
alternative or alternatives -which were considered to be environmentally preferable." 40 C.F.R. §
1505.2(b) (emphasis added). OSM has explained: "These actions (e.g., what may specifically be
intended by the agencies in a record of decision following the final EIS - not some indefinite
'future' possible actions) will dictate the alternatives..." 6/10/02 Robinson e-mail, Bx. 29, p. 2.
Any record of decision regarding MTMAT? operations in AppalacMa will be unable to comply
with this regulation because the DEIS does not identity or consider any alternative which is
distinguishable ftom any other alternative in environmental consequences.
The court in Simmons v. United Syes Amrv Corns of Bna'rs. 120 F3d 664,666 (7th
Cir. 1997), stated the rule that "[t]he broader the purpose, the wider the range of alternatives."
Despite the DEIS's admission that "[t]hs programmatic HS is necessarily broad," (DEIS IV.A-
1), however, the range of alternatives considered in the DEIS is quite narrow, containing no
analysis of how stream loss will differ under the three alternatives nor any analysis of how much
stream loss will be avoided noder any particular alternative. DHS IV.B-1, et seq. Instead, the
DEIS merely makes fhe eonclusory statement that "SMCRA and CWA program improvements
common toJhe action alternatives... will serve to reduce future direct steam loss," (DHS 1V.B-3
(emphasis added)), and admits that "[t]he indirect impacts from MTM/VF will continue
regardless of alternative selected by decision makers." DEIS IV JJ-5 (emphasis added). The
DEIS fails to satisfy the NEPA requirement to consider an adequate range of alternatives because
the DEIS does not consider any substantive restrictions, considering only rearrangements of
existing procedural responsibilities between the relevant agencies.
NEPA require* an 128 to "present the ettviranrnenW impacts of the proposal and U»e "
alternatives in comparative team, thus sharply defining the issues »d providing a clear basis for
choice among options by the decisionmafar and me public," and to "rigorously explore and
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objectively evaluate ajl reasonable alternatives." 40 C.FJL § 1502.14 (emphasis added). In
' Friends of Southeast's Patme jkAfonaen. 153 F.3d 1059 (9* Cir. t»8), the court summarized:
An EIS must describe and analyze alternatives to the proposed action. See Alaska
Wiiderasa Recreation & Tourism Ass'a v. Morrison. 67 F.3d 723,729 (9th Or. 1995).
Indeed, the alternatives analysis section is the "heart of the environmental impact
statement." 40 C.F.R. 11502.14. The agency most look at every reasonable alternative
within the range dictated by the nature and scope of the proposal. See Idaho Conservatioi}
League. 956 F.2d at 1520. The existence of reasonable but unexamined alternatives
renders am US inadequate. See Alaska Wilderness Recreation, & Tourism Aas'n. 67
F.3dat729.
M. at 1065 (emphasis added). IB Simmons v. U.S. Amy Coras, of Bnfmeas. 120 F.3d 664 (7*
Cir. 1997), where the platafifB opposed a plan to build a water reservoir, the court stated:
As a matter of logjc,... [a certain aketnalive} is not abagjl—which, jtqiugt be to justify
the Corps' failure, .to 'examine the idea at all... '"The, existence of a viable .ha urtexamined
alternative renders an eaviKrnmeiital impact statement iaadeqaate."' (citation omitted)...
If NEPA mandates anything, it mandates this: a federal agency cannot ram through a
project before first weijpang the pros and cons of the alternatives. In this case, the
officials of the Anoy Corps of Engineers executed an end-run around NBPA's COM
requirement. By focusing on the single-source idea, the Corps never looked at an entire
category of reasonable alternatives and thereby rained its environmental impact
M. at 669-70 (emphasis added). Set aim. State of CaLv. Block. 690 F.2d 753,767 (9* Cir.
1982) (enjoining release by the U.S. Forest Service of public tends to multiple use management
because the programmatic EIS prepared by the agency, which dealt with management category
designations for 62 million acres of National Foiwt Service land, did mot consider any alternative
which allocated more (ban one-third of the land to "wilderness" designation, and the agency's
selection of alternatives dictated an "end result" in which non-wilderness designations
substantially exceeded wilderness designations, despite the feet mat all of the land met the
criteria for wilderness designation).
In contrast to the deficient HS M issue in Simmons, the court ia Northern Alaska
jnvironmental Center v. Irian. 961 FM $86 (9* Cir. 1992), found the HS prepared by the U.S.
Park Service for mining operations iathe Yukon-Charley Rivers National Preserve ("Yukon") to
be adequate under NEPA. That HS, in contrast to the MTM/VF DEIS, does contain different
alternatives with environsientally distinguishable substantive restrictions and consequences. For
example, the Yukon EIS uses "Resource Protection- Goals" (RPGs) to quantify stream loss due to
future mining under different alternatives. Ex. 1, p. 149.
The ftree "action alternatives" in the MTM/VF DHS are purely process alternatives and
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provide no meaningful basis for anslyzasg or reducing eovrfonrae^tal impacts. By failing to
consider reasonable alternatives that would restrict fli size, scope, and number of valley fills, the
DEIS fails to consider a reasonable range of alternatives, as NBPA requires.
B.
The DEIS Violates NEPA Because It Adopts OSM's "Vision" and Define* the
DEIS's Purpose and Scope in an Unreasonably Narrow Manner.
The DEIS further violates NEPA k that it defines the purposes of its action to be so
unreasonably narrow that only "process alternatives" can satisfy it, and therefore illegally rejects
a broader range of substantive alternatives without analysis of their relative impacts. As we have
shown, OSM redefined the purpose of the E1S from minimizing environmental impacts to
streamlining permitting. The DEIS states that "[t]he proposed action alternatives are largely
administrative and as a result, accurately projecting their environmental consequences is
difficult" DEIS IV.A-1. The DEIS admits that "falll alternatives... are based on process
differences and not directly on measures that restrict the area of mining." DEISIV.G-3
(emphasis added). Although the DEIS states that *[o]ne of fte principal goals of Ms EIS is to
explore ways to minimize the adverse impacts on streams ftom [MTM/VF] construction," (DBS
EC-30), the narrow "process" purposes of the DEB only allow it to "focusO on the existing
regulatory controls and alternatives to tkese controls that have a bearing on the direct loss of
streams..." (DEIS H.C-30 to C-31), and force the DEIS to-eluninate from consideration any direct
restrictions on stream loss.
The CEQ's NB*A regulations warn that a NH>A document is not to be used to justify a
decision already made. 40 C J.R. § 1 S02.2(g). Thus, "an agency may not define the objectives
of its action in tetms so unreasonably narrow that only one alternative... would accomplish the
goals of the agency's action, and fee BIS would become a foreordiinsd fcrmaljty," Cjtjaais '
AgaipstBartinapii. Inc. v. Baaey. 938 F.2d 190,196 (D.C. Cir. 1991), ctrt. Anted, 502 U.S. 994
(1991). &e also, Mnekieshoot Man Tribe v. U.S. Forest Service. 177 F3d 800,812-14 (9ft
Or. 1999).
In Simmons. 120 F.3d at 666, the court explained:
When a federal agency prepares an [SS], it most consider "all reasonable alternatives" in
depth. 40 C.F.R. § 1502.14. No decision is more important than delimiting what these
"reasonable alternatives" are. That choice, and the ensuing analysis, forms "the heart of
the environmental impact statement" 40 C.F-R. § 1502.14. To make that decision, the
first thing an agency must define is (be project's purpose. See Citiaens Attafast
But]ifigton.fac..v.Bu«af. 938 F.2d 190,195-96 (D.C.Cir.1991). The broader the
purpose, the wider the range of alternatives; and vice versa. The "purpose" of* project is
a slippery concept, susceptible of no hard-and-fat definition. One obvious way for an
agency to slip past the, rtrktata* of MBPA is to contrive a ramose so slender M. to. define
competing "reasonable alternatives"; out of consideration fand even out of existence).
The federal courts cannot condone an agency's fiustration of Congressional will. If the
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4-2
irtmj^fiwp^.aMtbfl^.flKMMT^.t^
are reasonable alternatives, the HS eamotrulffll itsmle. Nor can the agency satisfy the
AS- 42 U.S.C. § 4332(2XE). [emphasis added]
In Pavia v. Mneta. 302 F.3d 1104 (10* Cir. 2002), the platatifts sought to enjoin a highway
project, including construction of a new brides over the Jordan River ia Utah, arpdng that the
defendants had violated NEPA by failing to consider reasonable alternatives. Citing, Inter alia,
Simmon^, the Davis court held:
While it is true ftat defendants could reject alternatives that did not meet the purpose and
need of the project,... they cotdd not define the pojeet so narrowly that it foreclosed a
reasonable consideration of alternatives,,. Further, if the Project did narrowly express its
purposes and needs as requiring a new erasing across the Jordan Hjver at 11400 South,
we would conclude that snch a narrow deftiitian of Protest needs would violate NEf A
ttivetlhe more general ovetaiichina objective ofimproving traffic .flow in the area.
302 F.3d at 1119 (citations omitted) (emphasis added).
Similarly, here, by focusing on the "OSM Vision" to "[s]treamline the regulation of
valley fills by creating a 'one-stop* permitting authority to satisfy all pertinent statutory
requirements" (Ex. 9), and eliminating an entire category (i.e., substantive restrictions) of
reasonable alternatives, the DEIS violates NEPA. See, e.g., Simmons. 120 F.3d at 670 ("By
focusing on the single-source idea, the Corps never looked at an entire category of reasonable
alternatives and thereby ruined its environmental impact statement."). See also, Blue Mountains
Biodiversity Ptofeet v. Blpcjo»ood. 161 F.3d 1208,1215 n.6 (9* Cir. 1998) (denouncing
"[ejxpediency and prejudice in fever of logging over NEPA compliance and adequate concern
for the environment.").
C. The Alternatives Considered in the DEIS Violate NEPA and Defeat the
Purpose of a Programmatic IIS Because They All Defer Analysis to Future
"Case-by-Casc" Decisions an Mining Activities, and An Not Designed to
Address and Reduce the Cumulative Impact) of Those Decisions.
The alternatives considered in the DEIS fail to meet the requirements of NEPA because
they all rely on ftiture "ease-by-case" analyses. This precludes effective analysis of cumulative
impacts, impermissibly sepnents mining activities into individual mines, and defeats the purpose
of a programmatic HIS. That is, any alternative which would have evaluated cumulative or
region*! impacts was not carried forward in the DEIS, while all of the alternatives which are
considered in the DEIS are based on "site-specific** analyses only. See DEIS E.D-1, regarding
"Alternatives Considered But Not Carried Forward in this EK,* stating: "Other alternatives
evaluated [but not carried forward] used cumulative impact measures to limit the size, location,
and number of valley fills in a given cumulative impact area." Specifically, the DEIS explains:
"A number of alternatives with restrictions... based on cumulative impacts... were considered
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and dismissed... lie existing date do not »now that art aeross-fhe-board cnnmtstive impact
threshold could replace case-specific evaluiljona of all M1M/VF and other disturbances -within a
defined CIA [(cumulative impact Met)]/watetsJjed." DEIS D.D-6.
NBPA requires an agency to consider the rasmntattve impact of the proposed action
together -with "other past, present, and reasonably foreseeable future actions." 40 C.P.R. |
1508.7. The CEQ has further explained in its 1997 guidance document on cumulative impaot
analysis that: "If... significant cumulative effects would occur as a result of a proposed aetion,
the project proponent should tvoid, roiftimfee, or mitigate adverse effects btModiMne or adding
CBQ, "Considering Cumulative Effects Under the National Environmental Policy
Act," Ex. 2, p. 45 (emphasis added).
"Cumulative impacts can result from individually minor but collectively significant
actions..." 40 C.F.R. § 1508.7. A NEPA document must "catalogue adequately the relevant past
projects in the area." City of Carmel-bv-tt»-Sea v. U.S. Dept of Tram.. 123 F.3d 1142,1160
(9th Cir, 1997). It must also include a *tuseiul analysis of the cumulative impacts of past, present,
and fttture projects [which] requires a discussion of how [future] projects together with the
proposed... project will affect the environment" M- The NEPA document must analyze the
combined effects of the actions in sufficient detail to be "useful to the decision-mate in deciding
whether, or how, to alter the program to lessen cumulative impacts." H. Detail is therefore
required in describing the cumulative effects of a proposed action together with other proposed
actions. Neighbors of Cuddy Mountain v.USFS. 137 F.3d 1372,1379 (9th Cir. 1998). A
meaningful cumulative impact analysis "must identify (1) the ate. in which the effects of the
proposed project will be felt; (2) the impacts that are expected in that area from the proposed
project; 0) other actions—past, present, and proposed, and reasonably foreseeable—that have bad
or are expected to have impacts in the same area; (4) the impacts or expected impacts from these
other actions; and (5) the overall impact that can be expected if the individual impacts are
allowed to accumulate." QnBd_Cgfgan_Igj8tv. PAA. 290 F.3d 339,345 (D.C. Cir. 2002). See
also, Bhie Mountains Biodiversity Project v. Blacfcwood. 161 F.3d 1208,1214-1215 (9* Cir.
1998); City of Tenakee Springs V. Cteroh. 915 P.2d 1308,1312 (9* Cir. 1990); Friends of the
Etah.y. U.S. Arnw Corps of Engineers. 109 F. Supped 30,41 (D.D.C. 2000).
Federal agencies cannot "evade their responsibilities" under NEPA by "artificially
dividing a major federal action into smaller components, each without a 'significant* impact."
Coalition on Semible Transportaticak Inc. v. Dole. 826 F.2d 60,68 (D.C.Cir. 1987). That is,
cumulative impacts analysis cannot be avoided by "segmenting" the project. NEPA requires
"that an agency consider the effects of several related actions in a single BIS in appropriate
circumstances. 'Not to require this would permit dividing a project into multiple 'actions,' each
of which individually has an insignificant environmental impact, but which collectively have a
substantial impact'" Churchill County v. Norton. 276 F.3d 1060,1076 (9* Cir. 2001), quoting
Thomas v, Peterson. 753 F.2d 754,758 (9* Cir. 1985). Valley fills fit the classic paradigm of
cumulatively significant actions, where "[d]ozens of small operations of a single type
incrementally contribute to deterioration of water quality in a common drainage stream." Siena
16
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Clabv.l'enMl 664 F.Supp. 1299,1303 (IXAte. 1987), off"d, 857 F.2d 1307,1320-22 (9* Cir.
1988). "While the operations are not functionally or economically interdependent, their impacts
are interdependent and require common analysis." M. at 1304. In Peafotd. as here, a federal
agency tad granted numerous peanits ibr mining to a watershed without considering their
cumulatively significant effects. The court held that an BIS was required. H- at 1305. Other
courts have similarly held that the successive dumping of material into the same area requires
analysis of cumulative impacts in an EIS. NRDC v. Callawav. 524 F.2d 79,87-89 (2ri Cir.
1975); Manatee County v. Ooreuch. 554 F.Supp. 778,793 (MIX Fla. 1982); National Wildlife
Federation v. Bean. 491 F.Supp. 1234,1248-52 (S.D.N.Y, 1980).
The three action alternatives considered ia the DEIS fail to meet the requirements of
NBPA because they all rely on "case-by-ease" analyses and therefore preclude effective analysis
of cumulative impacts.' Any alternative which woaWhave evaluated comulstive or regional
impacts was not carried &rwsrd in the DBS, while all of the alternatives which are considered in
the DEIS are based on '"site-specific" analyses only. See DHS H.D-1,6. Each of the alternatives
considered m the DEIS, therefore, would impen&issibly segme&t mining activities into individual
minas covering a small area, even though it is highly likely that mining will continue over a
much wider geographic area until coal reserves are ediausted.8 The DHS thus defeats the
purpose of a programmatic EIS — consideration of alternatives for reducing cumulative impacts —
by only considering alternatives that defy cumulative impacts analysis and rely entirely on case-
by-case analyses.
Cumulative impact analysis is precisely te fimotton of a rrogrwnmsttc EIS. "The CBQ
regulations require thtt so-catW "connflcteii* or 'eamubfive' actions be considered in a single
BIS. 40 CJ.R, § 1508.25(4X1). W(2); - 'WhtuB.flaajgiJiBpi-jale plans for regional
development NEPA requites both ayrngraanaatis and a site-speoiSe EIS..."' Qmtchill County.
276 F.3d tt 1076 (cttotjon omitted; emphasis added). Tie Second Circuit has stated:
*This NEPA "cumulative impacts" violation is distinct torn the CWA "minimal
cumulative impacts threshold" violation discussed below in which flie "case-by-case" approach
advocated in the DEIS for til alternatives is inherently inconsistent with the requirement in
Section 404(e) of me CWA that activities permitted under NWPs cannot have more than minimal
cumulative adverse effects ofi the eavifoninent
'See, ££, DEIS IVJ-1 ("[TJhe demand for central Appalachian coal will likely increase
at some point w the future."); DEIS ES-2 ("The U.S. Department of Energy (DOE) estimated in
1998 that 28.5 billion tons of high quality coal... remain in the study area. DOE reported abo\it
280 million tons of coal were extracted by surface and underground mining from the study area
in 1998. Coal produced ftom the study area continues to provide an important part of the energy
needs of the nation. RegSonaUy, coal mining is a key component of the economy!,] providing
jobs and tax revenue. Almost all of the electricity generated m the area comes from coal-fired
power plants... [CJoal production remains high...").
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The purposes of NEPA ate toisteated when consideration oialternatfses and collateral
effects is unreasonably coiatifeted. This can result if proposed agency actions w»
evaluated in artificial isolation from one another. Accordingly, 8& atc is. f
.
smider. the M iapHcaiionijaf each deciaoBiii light of other poteotiiJ developments in
the area, and to prepare a eorMmthmsivii intact statement if several projects are
Otaae CQuateftonnmg Bd v. PedattlPoaer Cornm'a. 559 F.M 1227,1232 (24 Cir. 197«),
cert denied, 434 0.S, 1086 (1978) (emphasis added), to Seiaitfats' hat fa Pub. Info.. Inc. v.
Atomis Etiergy Cggfn., 481 F.2d 1079,10S6-W88 (D,C. Cir. 1973), the court quoted fern a
1972 CEQ memorandum on this issue and observed:
[T)his section will focus on... the [Commission's suggested] possibility of substituting an
"environniaatil survey" for a NEPA statement... The Comnrissiori takes an unsBeessarily
crabbed approach to NEPA in assuming that the impact statement process was designed
only for particular faeifities rafter than for analysis of the overall effects of broad agency
programs. Meed, quite the amttm.ii true.
"Individual 8«io»s that ate related either feograpMcaHy or as logical parts in a
chain of contemplated actions may be more appropriately evaluated in a single,
program statement. Such a statement also appears appropriate in connection with
... the development of a new program (hat contemplates a number of subsequent
actions.... [T]he program statement las a number of advantages. It provides an
occasion &r a mere exhaustive consideration of effects and tftsmtivej than
would be practicable in a statement on an individual action. It ensures
e. Impacts that might be gpghtej iQ__a_case,::by"Cfase
See aha, Tex. Committee on Natural Rssources v, Berglattd. 433 F.Supp. 1235,1252 (ED.Tex.
1977), «v 'd on other greawfe, 573 F.2d 201 (5* Or. 1978), efrtug flie 1972 CEQ Memorandum
for the profositioa that "ft]he CEQ has... issued guidelines stating the advantages of a
programmatic HS."* These "advantages of a programmatic SB" were noted also by Ae court in
ASS'H,, of Pab. Agency Customers v. Bormgvill!; Power. 126F.3d 1158,1184 (9* Cir. 1997),
Where the court observed: "to many ways a propartMaafiaJEIS is superior to a limited, wnttast-
speoific E1S because it examines m erams goHcv pitfotive, -rabat flan pefforgting.a pieeeaeal
antlysia within the structure of a single agenoy action." (emphari! added).
The cowt in Natioml Wildlife Pad, v. Artpakchiam Sea. Com'a.. 677 F.2d 883,8S7-8S
s interpretation of NEPA is enStted to deference, Aadrus v. Siem Clak 442 U.S.
347,35$ (1979). Tte same is true of an opinion by CEQ's general cotasel. See Defenders of
Wildlife v. Aftdfus. 627 F.2d 1238,1246-47 g3.C.Cir.l9aO)." Ss»ttteAjdab°n SQC..V. Lyons.
871 F. &pp. 1291,1319 (W.D. WaA. 1994).
18
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(D.C.Ck 1981), explained at length tiie fiaaction aad role of a "programmati
Two distinct tiers of environmental review may be applicable to some "major Federal
actions." Sire-specific BISs constitute a .second tier in the discussion compounded: effect anareaon.
yanmjrfw esvJronmenialtMpefe are, indeed, what jgqans a eomcreheBsive impact
statement." In other wards, if (he "major Federal ncttoa" at issue consists of & number of
related enterprises associated -wMita a single propam and planned together, then their
joint effects should probably also be considered together, Tiis proceeds from the
requirement ttat trie scope of.the federal action be accurately characterized to ensure that
an BIS of equivalent scope is prepared.
{emphases added and removed). The court fljrther explained, regarding "program segmentation:"
Quite simply, "(sjegmentation of a large or cumulative project iate smaller components in
order to avoid desipating the project a. raijor federal action has been held to be
wikwfoi" Wgasaape.ffiissamflgmferiptioa m/nl$ apphrtf-aa a«8fi«sfluyhtto evafe
its HBPA respfflaibintv-ta. conrider proiMmairie envitttnrnentalJincacts,. The existence
df a cor^prebenstve program with camalatree enviromne^ erfeifa eannat be escaead fay
disjn«mamlv deseribteg it as only an amaitmtfton of nmktedjmaMer projects.
677 F2d at 890 (citation and footnote omitted) (eraphasis added).
Furtaer, not Ordy roust ctarntailttlve "proposed acttoa" irnpscts be considered together in a
programmatic HS, tet so also roust cumulative "Joreseeabie action" impacts. As explained in
Tafflg Committee oatjatatal Sesnuni^ v. Van Winkle. 197 F, Supped 586, 617 (N.D.T«.
2002): "pjvei if a foresesAle, fctere aotion is not « proposed action such that it does not need
to be analyzed asd decided iri tibfi satac El$> tlse cttmularive impacts of this foreseeable action
nevertheless must be analyzed ia the EIS." (citation omitted). Similarly, in gady v. Morton. 527
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F.2d 786,795 (9* Cir. 1975), the court held that an EtS limited to studying the effects of a 770
acre 5-year plan for coal strip mmmg was inadequate, and that an HIS encompassing fee entire
20-year project contemplated by coal leases approved by the Secretary of the Interior was
required. TTie Clfls! court explained:
While it is trae feat each mining plan prepared lor tracts within tile leased area is to a
significant degree an independent project which requires a separate HS with respect to
each, it is no less troe (tat the breadth and scope of the noaifeie, projects made possible by
the Secretary's approval of the leases require the type of comprehensive study that M3P A
mandates adequately to inform trie Secretary of possible environmental consequences of
bis approval.
(emphasis adde^. Set also Blue.Maunlaim. 161 FJd at 1215.
Finally, fhS» programmatic DBS cannot defer cumabtive impacts analysis to foture »ite-
specific EISs, evea if the cumulative impact analysis necessitates sojne degree of"forecasting
asd speculation" at tiie programmatic level. Is Kara y. U.S» Bateaa of Laad Management. 284
F.3d 1062 (9* Ck. 2002), phirtttffij challenged the adequacy of an HS prepared by the B1M in
connection wifli a resource management plan (RMP), under wMct site-specific timber sales
would be governed. The BLM argued, Inter eclfa, thai detailed environmental analysis need not
be undertaken by the HS for the RMP because such analyses would be undertaken at the nta>
specific level. Tie court (ejected this argument, holding:
An agency may not avoid an obligation to analyze is an EJS environmental consequences
that ibreseeabiy arise from an RMP merely by saving that the consequences are unclear or
will be analyzed liter when an EA is prepared tor a site-specific program proposed
pursuant to the KMP. "[T]he purpose of an P3IS] is to evakiate the possibilities in light
of current and contemplated plans and to produce an informed estimate of the
environmental consequences.... Drafting, an rESlneeesiaiilv involves some degree of
fataajstrot." City of Davis t. Colemaa. 521 Fid 661,676 (9th Cir.1975) (emphasis
added). ... Once an agency has an obligation to prepare an IIS, the scope of its analysis
of environmental consequences in that HIS must be appropriate to the action in question.
NEPA is not designed to noitoone analysis of an artykaameattil coraeaumce to the last
possible moment. Rather, it is desfoped to r
Ech_ analysis as soon as it can
reaaeiaablvbe.dorie. Su SamQur ScQimterM y. Clark, 747 F.2d 1240,1246 n, 9 (9th
Cir.1984) ("Reaaonabb forecasting and speealation to... implicit in NBPA. and we miat
reject any attempt bv agencies to ^irkifaeir responsibilifri&s tinder NEPA by labeling any
affllali discussion of ikture ^nvjrc-rtrflental erTecta as 'crystal ball isquitv.'" quoting
gciegtBB' Irat for Pub. Jnfe.. Inc. v. Atomic Energy. Comm'n. 481 F.2d 1079,1092
(D.C.Cir.1973)), If it is reasonably possible to analyze the environmental consequences
in an EIS for an RMP, the agency is required to perform that analysis.
284 F.3d at 1072 (emphasis added).
20
In the present case, the alternatives considered in the DEIS 6il to meet the requirements
of NBPA because they all rely on "case-by-case" analyses, prMiiiding effective analysis of
cumulative impacts, ijnpermissibry segmenting mining activities into individual mines, and
defeating the purposes of a programmatic ESS. "(CJumalattve impact analysis must be timely. It
is not appropriate to defer consideration of cumulative impacts to a future date when rneaningW
consideration can be given now." B. at 1075. See also, Defenders of Wildlife v. Ballard. 73 F.
Supp-2d 1094, lli2-H14(0,Ariz. 1999).10
The PWS similarly criticized the MTM/VF DEIS, stating:
Mike {Robinson (QSM)J and 1 argued... over the need to provide details on how the
pro-ams would evaluate permits ondsreKh of the alternatives. Mike said we don't need
to go into details becatae it's a PROGRAMMATIC HS... [W}here is it written that
propammatie EIS's should offisr only v»gne aBersitSves - especially a progrirmaatic EIS
that involved four years of studies that documented environmental impacts that need to be
dealt with? Again, it seems that hiding behind the "propatamMie" veil ttat we as
agencies have unilaterally chosen and defined, really violates the spirit of the settlement
agreement.
10/30/02 Tibbott e-mail, Ex, 45,"
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""fa Ballard, the court held:
At a minimum, this Court must order the Defendants to take a 'hard look* at ths
cumulative impact of the NWP program, specifically NWPs 13,14, and 26, and
determine that the use of these permits in this region has ao significant impact.
"NEPA requires consideration of the potential impact of an action before the
action takes place.' Cuddy. 137 F.3d at 1380 (citine Citv of Teaakee Springs. 915
F.2d at 1313). It was not appropriate to defer the cumulative impact assessment to
a future date. M- Defendants were folly aware of KBPA's obligations, as
evidenced by their Final Decision, yet they have done nothing since 1996 to
comply with the law. TMs Court cannot condone tether, violation of NBPA
which would result if it allows Defendants to continue authorizing projects mdatfifcejaiknged NWPs violate NEPA
mandates uatil Defendants conduct a regionally based, programmatic impact
73 F. S«pp.2d at 1114 (emphasis added). Here, me DEIS does not consider any alternatives
based on cumulative impacts. Consequently, the Corps cannot issue any NWPs until it does so.
"That the DEIS relies upon a fundamental misconception that it need not consider
substantive esviroamenta! restrictions - bat only reshuffling of "administrative" tasks - due to the
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D. None o f the Three Alternatives Considered In the DEIS Should Be Adopted
All three of the alternatives considered in the DEIS are fatally flawed. They are purely
process alternatives that should be discarded and replaced with alternatives that actually reduce
the cumulative environmental impacts of mountmtetop removal mining and valley fills.
Even if they could be adopted, there is no rational basis for choosing which of the three is
the best alternative. First, the three alternatives are internally contradictory. Under Alternative 1,
valley fills are presumed to have more than minimal adverse effects and need an individual 404
permit DHSlDLB-3, Under Alternative 3, valley fills are presumed to have minimal effects and
qualify for a NWP 21 authorization. M- Under Alternative 2, valley fills may or may not have
more than minimal adverse effects, depending on case-by-case determinations. M- The DEIS
does not explain why the effects of a valley fill, and the type of 404 permit used, should change
depending on which alternative is selected. In reality, the impacts are fixed regardless of which
alternative is selected.
Second, the DEIS never specifically explains why Alternative 2 is me preiened
alternative and is better than fte other two. It makes the general claim that it is "because of the
unproved efficiency, collaboration, division of labor, benefits to the public and applicants, and
the recognition that some proposals will likely be suited for IPs, and others best processed as
Nationwide Permit (NWP) 21." DEIS ES-5. These benefits are entirely procedural, and do not
explain in any way why, or how, better procedures wiE lead to better decisions or better
protection of the environment.
Third, it is impossible for the public to discern from the DEIS what difference any of the
"programmatic*' nature of the BIS is evident also in the agenda for an Executive »nd Steering
Committee meeting of November 21, 2002, which states:
Issue* Raised Daring Preparation:
-Lack of environmental contrast; is a fill restriction component needed in
Alternative } to provided [sic] most mvinmmentaUy~prateettve alternative? ...
-OFA states ttat NEPA compliance not satisfied; alternatives need not be limited
to easting statutory authority — Should a "no mining " or other restrictive
alternative be included?;
- Counter: current .contrast Jg *a4taiEBStrj£jvs*' sad similar eaviroassental
.B ok for progauronafe PHg «nd consistent wjft 1999 Notice of
latent and 1998 settlement agreement
1 1/18/02 Hodgkiss e-mail, Ex. 52, Attachment (underlining added). A mere "administrative
contrast" without distinguishable environmental restrictions or consequences between the
alternatives is not consistent with the 1 999 Notice of intent, the Raff settlement agreement, or
NEPA.
22
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alternatives will make in terns of environmental impacts. On the contrary, the DEIS admits that
the environmental benefits, if aay, of the three altemsEtives are the sam©. See, e.g., DEIS H.B-13,
n.c-25,rv.A-i,rv.G-3.
i.
The DEIS Violate* NEPA By Not Analyzing Alternatives to Restrict Valley
Mb, Stream Lost, Deforestatton, and Use of NWPs
NEPA requires that an Ef S "[rigorously explore and objectively evaluate all reasonable
alternatives" to the federal action, 40 CJp.R. § 1 S02.14(a); BokMarahall AUianeftvJfejgL 852
F.M 1223 (9th Cir. 19W), cert, denied, 489 U.S. 1066 (19S8). The purpose of this "rigorous"
analysis is to "providfe] a clear lasts for choice among options by fije deeisionmaker and the
public." 40 C.F.R, § 1502.14; see also, 42 U.S.C. § 4332(2XE); 40 C.FJI. §| 1507,2(d),
1508.9(b). The CEQ describes the alternatives requirement as the "heart" of the NEPA analysis.
40 C.F.R. § 1502,14. The CEQ has issued guidance explaining that: "If it is determined that
significant cnmttlative effects would occur as a result oft proposed action, the project proponent
should avoid, minimise, or mitigate adverse effects by Modifying or Mldmg alternatives." Ex. 2,
p. 45 (emphasis added). As explained below in section ttG.Lb of these comments, the DEIS
clearly demonstrates that the cumulative impacts of MTM/VF operations in AppatocMa are
significant Reasonable alternatives that should have been considered are: restrictions on valley
fill sizes, either individually or cumulatively; resttictiorB on deforestation, either individually or
cumulatively; restrictions on stream loss, either individually or cumulatively; and individual and
cumulative minimal impact thresholds for NWPs.'3
1. Restrictions on Valley Fill Sizes Should Be Considered
Restrictions on valley fill sizes, either individually or cumulatively, should have been
considered because the studies contained to the DEIS demonstrate tot while the cumulative
environmental harm caused by past and fctare valley fills is enormous, the economic impact of
valley fill size restrictions is tiny.
Regarding the correlation between valley fill size and environmental harm, the DEIS
states that "|t]he size, number, tnd location of valley fills correlate with direct loss of streams
and riparian and terrestrial habitats," (0E£S IiC-45), and case studies demonstrate that "direct
impacts to streams may be greatly lessened" by "reducimg the... size of the excess spoil fill."
DEB rV,I-9. M feet, a March 2002 EPA option* paper states that a "con" to "[selection of
Alternative B (unrestricted watershed, project by project review)" is that it: "Will appear
inconsistent with fimUap of tech studies, including economies, and wifc stated purpose of BIS to
reduce impacts." Ex. 18, Attachment, p, 1. Conversely, the same options paper explains that
"{sjelection of Alternative C (Restricts fills to intermittent zone 250 acre watersheds)" is:
"Most consistent with findings of tech studies." M- Th® options paper further states that
ls&tabUshment of a minimal cumulative impact threshold does not preclude a finding
that such threshold has already been exceeded, which has in feet occurred.
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"[selection of Alternative D (Restricts fills to ephemeral zone
"(TJeast direct impact on the aquatic ecosystem." |t|. at 2,
75 acre watersheds)" has the
The record shows flat OSM vetoed fill restrictions te«K tfcey would reduce
environmental Impacts. The civilian head of tt» U,S, Anny Corps of Engineers stated in a
March 11,2003 email that "OSM is very sensitive about the message that [valley fill] thresholds
result in improved environmental quality, IF that were the case, then the real message is that [a]
200 [acre threshold] would be better, 100, better yet and 0 fills, best of all." March' 11,2003
email from George Dunlop to CMp Smith, Ex, 68, Attachment "Instead, the foots needs to be
on stream protocols and the relative quality for etch stream." & The MTM/EES Executive
Committee admitted that this approach is counterintuitive: "Even without scientific datt on the
relationship of fill size to indirect Impels, it is intuitive to justify a minims! threshold based on
Sht concept that 'smaller fills ate better than larger fills' with respect to direct impacts on aquatic
habitat buried by fills," Ex. 65, Agenda, p. 3.
The failure to consider fill restrictions also casaot be justified on economic grounds. The
DEIS wplains that "in most situations (he restriction would change ttte price of cod to less than
one dollar per ton," and that "[t]he price of electricity would continue to rise approximately l to
2 percent across the scewrios; the impacts due to restrictions .will have .Hate effect on price."
DEIS App. O, p. 6 (summary of Phase n Economics study by Hill and Associates) (emphasis
added). Even after adjusting the model inputs to be more favorable to the coal industry, U»e
change in the price of coal rose to only two dollars a ton. & «t 7. The DEIS also observes flat
"KP* most resBictive scenario {limiting fiBs to 33-acre watersheds] would, uadef the wntst
condition, cause up to a 20 percent reduction in direct coal mining employment in the f©j$on,n
Id. at 6 (emphasis added). However, "jc]oal mining earnings within West Virginia are 5% of
total state income (3% of employment); just over 1% of total earnings and employment in
Kmtue!
-------
terrestrial disturbance, the study area estimated forest impact is 1,408372 acres which equates to
11,5% of the study area." DEISIV.C-t. Further, "(habitat changes will occur... [involving] a
shift from a forest dominated landscape to a fragments! landscape with considerably more
mining lands and eventually grassland habitat," (DEIS App. I, p. 93), and this "change in these
habitats could put a number of species in peril." DEIS App. I., p. v. For example, "forest loss in
the West Virginia portion of the study area has the potential of directly impacting as maay as 244
vertebrate wildlife species." DEB App. I, p. 86. These alterations of the ecosystem are profound
and permanent "Results from this study support the thesis that fundamental changes to the
terrestrial environment of the study area may occur from mountaintop mining." DBS App. I, p.
v (emphasis added). "Memtaiatop mioinf and valley fill activities significantly affect the
landscape mosaic... The result is an area drastically different from its pre-minirtg condition."
0EIS App. 1, p. 23 (emphasis added). Further,
IR]e-establishing native hardwood forests oa reclaimed mines is still experimental We
don't know .what, the long-term success will be. Evan if hardwood forests can be re-
established, it should be intuitively obvious tot they'll be a drastically different
ecosystem from pre-mining forests tarjjscta&»Bg. if not thousands of years...
6/26/01 Tibbott e-mail, Ex, 5, p, 1 (emphasis added),13 See also DEIS IV.A-4 (reforestation
"may take hundreds of years").
In the face of this serious and enduring environmental destruction, the DEIS does not
consider any restrictions on deforestation. Instead, the alternatives considered in the DEIS
include only meager attempts to "encourage" reforestation, although forestry post mitring land
use (PMLU) would remain purely voluntary under ail of the alternatives, and actual reforestation
could take hundreds of years, if it can be achieved A all. Currently, disincentives and barriers to
reforestation are the norm. "fT]he use of grasses and legumes serves as the low cost, low-risk
option for bond release. Even when the reclamation plan calls for the planting of trees, excessive
compaction of the rooting medium, which severely reduces tree growth, is the norm." DEIS
ID.B-9. "The predominant PMLU has included a Mas towards salvaging... soil materials that
provide favorable chemical conditions for the j^owth of grasses and legumes, but have a negative
impact on forest regeneration." DHStB.B-n.'6 Current soil practices prevent reforestation and
"See also, DEIS FV.D-5: "[T]he permanent nature of filling would suggest that
MTM/VF impacts to biofic interactions in headwater stream systems... may constitute a[n]
irreversible impact to this system in the study area." (emphasis added). See also, Bx. 6, p. 6:
"Unless reclamation practices are changed drastieaEy, it can be assumed that this forest to
grassland conversion is, for all practical purposes, permanent. Even if reclamation practices are
changed, we ronst still consider the recovery of a functional mesoahytie forest ecosystem as a
long-term ecological experiment with uncertain results." (emphasis added).
1SS« also, Ex. 6, p. 4 (''Current reclamation practices result in conditions that discourage
the re-establishment of trees,"); jd, p. 5 ("The study found no evidence that native hardwood
26
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violate OSM regulations, because the post-mining soil supports lower quality vegetation thaa did
the existing pre-mining soil. 30 C.F.R. § 816.22. "Pswtaotioa of soils that will support
commercial forestry as part of mountaintop mining requires selective overburden handling and
replacement procedures on a seal* that has never been carried out fa Appaladria." DEIS IHB-
15.
3, The Existing Alternatives tat the DEIS Regarding Deforestation Am
Inadequate and Ineffective
Despite this current lack of reforestation practices, the DEIS oaly considers owe
atornativiMh* compilation of a "Best Management Practices (BMP) manual" encouraging
voluntary reforestation, and briefly ponders hypothetical legislation that might require
reforestation. Regarding the "namml," the DEIS slates: "A BMP manual emphasizing the latest
cost-effective reforestation techniques could encourage forestry-related PMLUs." DEIS H.C-76.
However, the DEIS admits thM "the only difference between ttie No Action Alternative and the
development and use of BMP* as part of Alternatives 1,2, and 3 is ttet this action anticipates
broader acceptance and use of the BMPs to improve reclamation to a forest land use.*' DEIS
IV.C-8. Thus, the DEIS simply assumes that the "BMP manual" will effectively encourage
reforestation, without any support for this assumption and without aay requirement for forestry as
& PMLU, and in the lace of the acknowledged fact that reforestation is riot currently practiced due
to significant technolo^cal harriers and economic disincentives." FWS's Tennessee office
states that reforestation initiatives recently felled is Kentucky, aid "we do not believe
landowners or the mining industry wH! show significant support lor anything more than is
requited." 1/02/03 Tfbbott e-mail, Ex. 57, p. 1.
Regarding the "legMaUon," the DEIS states: "yiejiilMiye authority is astablistelbY
Compass or the states, tte SMCRA regulatory authorities wiH require reclamation with trees as
the post mining land use." DEIS H.C-83 (emphases added); see also, DEIS IV.C-8 f ...this
action, if implemented, would have legislative authorities enact changes to SMCRA..."). This
"action" is no action at all. The DEIS contains EO specific analysts or discussion of the
hypothetical "legation" or who, precisely, would "have legislative authorities" enact it
Further, the DEIS contains no explanation of why a forestry PMLU could not be implemented •
under existing authority."
forests, jnetaHag their hertactous msdarstay component, will eventually reeotenize large
fliountatetep sites using current recltmstioit methods.").
- "la feet, evea "flat land** PMLUs are not being completed. "This tavestipfion found that
many sites are not being developed as envisioned when PMWJ variances are granted, aid that the
supply offlat laud seems to outwdjpli the demaai" Ex. 6, p. 4.
"See, e.g., DHS HLB-15: "fTJlie earrttt regulatfaffls (wMeh have been in place since
May 16,1983) teqntK that selected overburden substitutes fer soil be 'equal to, or more suitable
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The consideration of alternatives addressing deforestation in the DEIS is insufficient to
meet the requirements of HBP A because the environmental consequences of past, present, and
foreseeable future deforestation are profound and permanent, and "BMP manual" suggestions
that technologically infeaslble and economically unattractive reforestation be voluntarily
undertaken are insufficient to address this serious environmental harm. Restrictions on
deforestation, either individually or cumulatively, should nave been considered as feasible
alternatives.
4. Restrictions
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action from this BIS." DEISH.B-16; B.C-S.
Section 404{e) of the CWA requires the Corps of Engineers to determine whether as
individual activity will have mote than Jmataal tapaca both individually onrf eumnlMively ia
conjunction wi$i other past, present, and reasonably ibreseetbld future activities in the same
category. Although the msmmm eumulMive impact threshold for permitting MTMWF
activities under NWPs has already be«n reached (as shown Wow in section tl.G.l .b.), fte Corps
must nevertheless deteraaae and establish where the individual and cumulative minimal impact
thresholds Ke.a
MTM/VF activities in AppaJacbJa clearly have had, are having, aad will continue t& have
significant cMmwIa^w adverse streets on the enviiojHriest Similarly, it is dear that the impacts
of Individual valley fills may be more than "miraffial," because the BEIS itself sMtes that "filling
or mining atom areas even in very.8a«ll .watersheds has the potential to impact aquatic
communitiesy some of which may be of Mgh ipiality or potentially support unique aipaSc
species.** DHS ffl.D-4 (anptatii added).
The DEIS illegally attempts to segment the required NEPA analysts by asserting that
establishment of minimal impact thresholds is *"an independent action from this EIS," (See, &&,
DEIS EB-16, H.C-5), sad thai such detenainafloas are best left to "oase-by-cise assessments,"
Ii The court ia Marble Mnartm Aadabon, iaeietv v. Mae. 914 F,2d 179 (9* Cir. 1990),
rejected a similar argument that the maintenance of a biological corridor need not be considered
is a timber sale EIS because fte- corridor issue was "a fbrest-ntenifig matter iad therefore
beyond the scope of [the BE}]." Id, at 182. Further, the "case-by-cuse" approach embraced by
the alternatives ia the DEIS is inherently aiecsmsterit with the requirement ia Section 404(e) of
the CWA flat activities permitted under NWPs straiot awe acre than raiaimal raanutotivB
SEJverse erTects. By segmenting e&ch permit applic^ion and considering it m isolarlmi &om all
other past, present, and reasonably Ibreseeabte fiitar* ai^lieatioss, it is mot possible to do a
meraingftil comuhtive impact (malysis. Rattier, all «f ftose other applications mast be included
ia the cumulative impact analysis on a prayaiamatie basis. The COB cannot restrict file
catnulstive impact analysis to a smaller subset of App«tecMt, such as t discrete watershed.
The DEIS acknowledges that the ISO-acre teeshold establtahed in ftigg is «a«fijl and
effective in reducing the size and smnber of valley fills because "[t]he COE Huntingtoa District
found [that] this condition contributed to conscious attempts by the regalated coal industry to
"EPA stated to June, 2002, -for example, thtt: "If Alternative B is to be selected,... a
minimum impact threshold must be developed Ihr the purposes 0f triggering a more rigoroas
permit review process trader CWA Section 404... The direct asd indirect agaatie impacts from
MTM/VF operatioM are arguably m&re this ttn:nimal, compEcatifig ttie HWP 21 issue..."
6/10/02 Hottnan e-mail, Ex. 29, Attachment fEPA lams - Mffl*VF HS*). EPA {tether
stated: "We believe NWP 21 minima] irapoet thresioids... (tadMduifly lad CBBinlatively) are
required." OT4/02tederiJ»dHofrmane-ma!ls,Est.31,32.
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avoid the IP process by kespfejg proposed fill sjms Mow the 25^-acre Jlffeshol4M DEIS S.C-S;
He filso, DEIS E.Cr73 ("Based
-------
locations under the No Action and Preferred (Aitsaafiw 2) Alternatives and it is anticipated thtt
the consequences to fill sl2® would continue.**). The DEIS muddies the waters even farther by
stating thtt under Action 12, applicable to all time action alternatives, "[t]he COE... would
compile data... [to] be used to determine the attest of cumulative impact areas for appropriate
resources sad ascertain whether a "bright-line" cumulative impact threshold is feasible for CWA
Section 404 MTM/VF permits." DEIS D.C-69.
Thus, the DEIS simultaneously asserts flat the Bust 250-aere threshold VMS tased on an
assumption that this BIS would determine a ailaifflal impacts threshold; that establishment of a
minimal impacts threshold is "tn-independent action from this HS;" that the Bnna 250-acre
threshold would continue to apply under Alternative 2, but oaly on an undefined 'YegfeaaT
basis; and ttmt under all fliree action alternatives the COE tad other agencies would "compile
data" to be used in order to determine whether a minimal impacts threshold is "feasible." This is
internally Inconsistent on multiple levels. Ifthe DEIS acknowledges that the BrMg agreement
included an "assumption" (hat this HS would establish a minimal impacts threshold, why does
the DBIS also ttsart that such «a seSon mast be "independent torn this HS"? If such a
determination is necessarily external to the BIS, why is the threshold applicable under Alternative
2? ff the threshold is applicable under Alternative 2, why is it only applicable on a "re$ontP
basis, rather than to the entire Appalachian region covered by the DEIS? What is fte "region" to
which the threshold would be applicable under Alternative 2? If this BtS determines SIM the
threshold should be applicable on a "reponal" basis under Alternative 2, why must the COE
simultaneously "compile data" in onter to determine whether such »threshold is "feasible™ (since
the "data compilation" under Action 12 is applicable to all three action alternatives)? If til fliree
action alternatives under this EIS contemplate "data compilation" in order to determine whether a
minimal impacts threshold is "feasible," why must the actual establishment of such a threshold
be "an independent action fam this HS**?
la any event, the DEIS is internally iaeontistent and should be clarified. Farther, -if the
250-acre individual threshold would continue to apply under Alternative 2, bat only to West
Virginia, then the DEIS ftils to articulate any rationale fat not applying the same threshold in tie
entire Appalachian region covered by the DEB. Further, Ike alternatives considered ia the DEIS
illegally segnent their consideration of the effects of MTM/VF operations, considering each such
operation in isolation ten all past, present, tad reasonably foreseeable future MTM/VF
operations, thereby iffiling to adequately consider the eummlative impacts of mountaiotop
removal mining and valley fills in Appalaehja. This "esse-by-esse" approach fails to fulfill the
fundamental purposes of NEPA aad fails to satisfy the recptenens of Seetioa 404(e) of the
CWA. For these reasons, any alternative selected should determine minimal impact thresholds,
both individually and cumulatively.
fi. The "No Fill" Alternative Should Be Considered
Federal case law discusses the NEPA rajutenent that agencies consider the alternative
of "total abandonment of the project." Although the cases deal with public land, and
32
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mountaintop removal mining would occur on private land, the streams which would be buried or
damaged by the valley fills Me "waters of the U.S." and tax therefore analogous to the "public
land" at issue in the "total project abandonment", oases. Therefore, fce MTM/VP DEIS must
consider a "no fill / no stream damage" alternative in order to present the decision-maker with
the full spectrum of possibilities. Although "raountaSntop removals" may not be logisticaUy
possible under the "no fill" alternative, that does not relieve the DEIS of the requirement to
consider the "no fill" alternative. As the courts have stated: "This requirement... seeks to ensure
that each agency decision maker has before tara aad takes Into proper account all possible
approaches to a particular projeet.. Only in that fashion Is it likely that the most intelligent,
optimally beneficial decision will ultimately be made." Calvert Cliffs' Coordinating Committee
v. U.S. Atomic Enemjaaramasion. **9 F-2d * 109>''14 (P-C- Cir-1971). Put another way,
"{s]uch an alternative... afford[s] the opportunity for scientific and public participation and
debate regarding the delicate balance between preserving natural resources and... [resource]
management" Menda of Bitteaoot. Inc. v. U.S. Forest Sendee. 900 F.Supp. 1368,1374
(D.MonL 1995). See also, All Indian Puefalo Council v. United States. 975 F.2d 1437,1444 (10*
Cir. 1992) ("NEPA requires a 'detailed" E1S 'to erasure that each agency decision maker has
before him and takes intopraptr account all possible approachss to a particular project
{iaeludjng-total abandonment of the proieafl which would alter the environmental impact and the
cost-benefit balance. "0 (citation omitted, italics to original, underlining added).34
In Friends of Bitterroot the court remanded an BIS to the U.S. Forest Service with
instructions that the agency was required to consider the "less environmentally damaging"
alternative of preserving roadless lands in order to provide wildlife corridors essential for
maintaining biological diversity. There, the USFS had not included any alternative which would
have excluded logging of roadless areas, argufag that such an alternatlva would not have satisfied
the "purposes" of the forest plan. The court rejected this argument, holding that the failure to
"consider all reasonable alternatives so as to ensure an BIS fosters informed decision making" by
"aJdresspftg] as alternative preserving existing roadless lands" compelled the court to remand to
the agency, the court's decision was based in part on comments by the Montana Department of
Fish, Wildlife & Parks that wildlife corridors were essential for maintaining biological diversity,
The court in Friends of attempt, first observed that:
*S*t «Z», MTM/VF DEIS Agenda for Bteeutive sad Steering Committee Meeting of
November 21,2002, which states:
-Lack of eaviromxjental contrast; is affil restriction comp&nent needed in Alternative I to
provided [sic] m&n emtromnentatty^roteestve alternative? ...
-OFA states ttmtNEP^ eomalimce not satisfied: alternatives need not be limited to
existing statutory authority — Saw&f a "no atlninf" t>r offer putrlctlvt alternative be
included?
11/18/02 Hodgkiss e-mail, Ex. 52, Attachment (underlining added).
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Section A - Organizations
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NEPA requires the prep*r»t5on of an HS,.. to ensure each agency considers all possible
approaches to a particular project fincladinf tntrt abaadaaaeftt of fee protect') which
would alts the environmental impact and the cost-benefit balance.
14 * 1371 (citation omitted) (emphasis added). The court continued:
P>]laintiS contend the Trail Creek BIS Ms to adequately analyze all reasonable
alternatives, ImetHd^g a less eaviroiiMestally damaging alternative that would
exclude logging and road building activity in existing roadless areas within the
Beaverhead National Forest... in order to preserve that tret's value as secure wildlife
habitat In response, defendants assert tt« alternative advanced by fte ptaintifls would
not have met the management goals... of the Beaverhaad National Forest Plan.
In the case stibjudice, the Forest Service examined seven alternate courses of
action... [Tjhe action alternatives all called far varying degrees of timber harvesting
in the Beaver I-akes roadless area. ...
[Tkthe atmt. defendants Maintain an alternative aimed at Bmervimf the
Beaver Lakes readiest area would he "Bototless." based upon theipialg of the
lieaverbead Forest Plan.... Idltfcndants position is contrary to NEPA's underlying
tenet, i.e., that agencies consider all reasonable alternatives so as to ensure all EIS
fastera toibrmed decision making. See. Idaho Conservation Leame v. Mumma. mpra.
956 F.2d at 1519-20.
The Forest Service cannot deny there is some benefit to be derived from
considering an alternative ftat preserves fee Beaver Lakes roadless area. Plaintiffs, as
well its the Montana Department of Fish, Wildlife & Parks, whose considerable
expertise in the area of wildlife management is undisputed, expressed concerns that
preservation of the Beaver Lake's roadless area warranted full consideration in the
Trail Creek NEPA process given the ana's Ugh security value for wildlife...
[Tjhe NEPA process would nave been properly served by development of an
action alternative that preserved roadless lands in the Trail Creek area. Such aii
alternative would have afforded the opportunity for scientific and public participation and
debate regarding the delicate balance between preserving natural resources and timber
management.
Accordingly, the SIS' failure to address an alternative preiarvfaif erirthtg
roadless lands to the Trail Creek area renders isic| compete this court to REMAND
this matter far farther administrative proceedings.
M- at 1373-74 (footnote and citations omitted) (emphases added).
Friends of Bittenoot is directly appEcabte to fte MTM/VF DEIS, where both EPA and
FWS have expressed grave concerns about tie lack of alternatives containing substantive
environmental and wildlife habitat protections. The DEB has Jkiled to consider any "no fill"
alternative, or, indeed, any alternative containing substantive restrictions oa the number, size,
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location, or impacts of valley tills, or substantive protectioas for forest ecosystems and riparian
habitat These failures tender the 0BIS inadequate so thai it must be remanded fi>r correction
and reissued for public comment
7. An "Environmentally Preferred" Alternative Should Be Considered
Similarly, an "environmentally preferred" alternative should be considered. 40 C.F.R. §
1505.2(b). At a June 18,2002 Steering Committee meeting to reconsider the alternatives
framework, EPA and FWS took the position that the DEIS must consider alternatives to reduce
environmental impacts. Ex. 33, Proposed Agenda, p. 8, As a result of this meeting, the Steering
Committee agreed on a revised framework which identified the "Environmentally Preferable
Alternative'' ("Alternative B"), which, among other things, "restrict[ed] fills to the ephemeral
zone...."1 Jd..at 11; 6/19/02 Hoffiuan email, Ex. 34, ProposedHS Alternative Framework. A
later drift further developed this into the "raost environmentally protective alternative." 6/26/02
Robinson email. Ex. 35, Attachment,
Subsequently, FWS proposed another '"envitonrBantallypmfetred' alternative,"
identified as "Alternative 4." 7/31/G2Tibbotte-«ail,Ex. 36. FWS* Alternative 4 would hive
applied the SSZ rale as written and applied the antidegrrfation policy to prohibit filling in
intermittent and peramiai strains (thus allowing fills only in ephemeral streams). M- The FWS
explained that this "environmentally preferred alternative:"
• Avoids setting undesirable CWA precedents (weakening the application of the
wtidegradation policy and the tpirit and intent of the CWA itself; allowing out-of-ktad
mitigation t-o buy down impacts that are clearly more than 'ramana!'; allowing the
issuance of KWI*s for activities that are clearly more than 'minimal'; issuing individual
permits for activities (hat etetrjy cause 'significant degradation').
• Most closely responds to the adverse aquatic and terrestrial impacts documented by the
HS studies.
• Industry has demonstrated that it can still mm coal even if fills are restricted to the
ephemeral awe.,,
• Allow* the use of toe 35-aoe scenario in the HS, giving ta at least one alternative
whose effects can actually be quantified in terms of environmental and economic
consequences.
14, Rationale, p. 1. "{T]he EPA and FWS Steering Committee tnernbas agreefd] that this
version [of the alternatives which included this 'alternative 4'] represenfrf] an accurate
portrayal of possible viable contrasting alteratives...™ 8/13/02 Robinson e-mail, Ex. 37, p. 1.
However, shortly fliasafter, the Steering Committee's decision was overruled by the
DEIS Executive Committee, UnrMaed higher-level agency "executives instructed the SC to
attempt to construct the alternatives for the BS ta » framework based largely on coordinated
decision uniting for SMC1A and CWA-wift no atecnatiw restricting fills." Be. 41,9/23/02
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Agenda, p. 1. According to FWS, its alternative "was subsequently voted down within the
Executive Committee in part because a decision appears to have been made that even relatively
minor modifications of current regulatory practices are now considered outside the scope of the
BIS process." 9/30/02Deasmore email, Ex. 42,FWS Comments, p. 1. Minutes of aMy 14,
2002 Executive Committee meeting show th»t a aew teee-atemative approach was adopted.
8/15/02 e-mail, Ex. 38, Executive Committee Discussion. As a result, tie prior alternatives
restricting valley fills were stripped ftom the DEIS. Instead, the new alternative framework
considered only process alternatives.
Thus, the DEIS irrationally dismissed every proposal for an "environmentally preferred"
alternative. Any record of decision regarding MTM/W operations in Appalacbia will be unable
to comply with 40 C.F.R. § 1505.2 because fte DEIS does not identify «ny "environmentally
preferred alternative" or consider any alternative which is distinguishable ftom any other
alternative in terms of environmental consequences.
F.
The DEB Violates NEPA Because It Presents Irrational Reasons for
Eliminating Reasonable Alternatives.
The 0EIS violates NEPA because it does not present valid reasons for the elimination of
reasonable alternatives ftom detailed analysis. The DEIS must present the reasons, in brief
discussion, fortlje elimination of alternatives from detailed study. 40 C.F.R. § 1502.14, By
failing to articulate valid reasons fcr the elimination of reasonable alternatives, the DEIS 6Ms to
satisfy this NEPA requirement
The DEIS identifies eight "alternatives considered but not carried forward." DEIS fl.D*l.
These eliminated alternatives were: 1} restriction of individual valley fill size based on (he type
of stream segments buried (ephemeral, intermittent or perennial); 2) restriction of individual
valley fill size based on watershed size (35,75, ISO, and 250 acres); 3) establishment of
"minimal impact thresholds" based on watershed size (75 or 250 acres) below which MTM/VF
operations could be permitted under NWP 21 rather than individual CWA1404 permits; 4)
resteicting individual valley fills based onunaxiaMBi "cumulative impact thresholds;" 5) fill
restrictions based on protecting hW-vtlue streams by designating all headwater streams as
"generally unsuitable" for valley fills pursuant to the CWA Advanced Identification of Disposal
Sites (ADID) process; 6) fill restrictions based on protecting M^i-vatae sUeams by designating
all headwater streams as "special aquatic tfoef pursuant to CWA § 404(b)(l); 7) fill restrictions
based on protecting high-value streams by preserving all headwater streams with an EPA
"advanced veto" pursuant to CWA § 404(c); tad 8) prohibition of valley fills in waters of the
U.S. based on the CWA's "antidegradation policy." DEIS DuB-1 - 9.
1. Even tf There Were Insufficient Information to Draw a "Bright Line"
Type of Restriction, Same Type of Individual or Cumulative
Restriction OB Valley Filling Must Be Considered
36
1-8
4-2
A» ttte DHS recognizes, flare are many potential alternatives fix letnfcttng valley fills.
They taOBBJe restrictions on fill sizes (35, 75., !50,or 250-acre watersheds), fill location in
different types of streams (ephemeral, intermittent or peremBil), the percentage of streams in a
particular watershed that can be filled, or the amount of steam lengtii fl»t eta be filled. The
primary argument advanced to the DHS for rejectiag these alternatives is feat there is
insufficient information at this time to dw a "bright tine" that works in way situation, and
variations between streams and watersheds make it difficult to apply any "bright line" to
differing indrridnal situations. The OSS states that "fsleientifie data collected for this BIS do
not clearly identify » basis (ie., a partaltr Bream segment, fill or watershed size applicable in
every situation) for esMbHshing programmatic or absolute restrictions that could prevent
"significant degradation.*" DHS H.0-8. Hie DEIS therefore posits that since one general rule
does not apply in every situation, the» is no basis Sat applying any general rule at til, and the
only iternitive is to apply a "ease-by-case* tnaryas to every indivKtaal situation. DEIS HJM
to n.D-9.43 TKie perfect is the enemy of the good, M the DHS sets up each individual restriction
like a straw rnan and then knocks it down by saying that one problem or another makes it
inapplicable in certain srtaatioiis. M-
"[WJMle mcoacrosive evidence rosy serve as justification ibr not cko&stng an alternative,
here it cannot serve as a justification for entirely felling to 'rigorously explore and objectively
evaluate all reasonable alternatives." The Fund for Animals v. Morton. Civil No. 02-2367
(D.D.C.), Dec. 16,2003 Men. Op., p. 37. Furthermore, eveo if there were insufficient
information to draw a "bright line," there is sufficient infisuBation to develop a "rule of ttaunb"
that protects environmental resources to most situations and retains enoujpi flestibility to adjust to
individual situations." That was the whole rationale beMnd the 250-scre limit on NWP 21
authorizations fa the Settlement Agreement No one taew enough to be sure that that was the
right line to draw, bat it was necessary to draw some line M the interim xaitil more information
was developed. Now, the government has ranch more information, but it is doing nothing to
draw that line more accurately based on flat new infornatioo. Instead, it is trying to ase the lack
of perfect information as the excuse for delay and for potentially eliwaftting the 250-acre limit
altogether.
The DEIS does not dearly state whether the ISO-ase limit will be retained. It suggests
that, as one alternative, the existing limit could be re&ined *
-------
If that Emit were abandoned, It woaH be «n arbitrary »nd unreasonable action, fa
Heartwood. Inc. v. U.S. Forest Service. 73 F. SappJd 9® (S-P.ffl. 1999),
-------
DEB II.D-9.
This ciains of no docioaerited harm is flatly erroneous. First, this claim completely
ignores the harm caused when steearns ate fHted or mined, and instead considers only harm
downstream from such fills or mining. The DBS admits elsewhere that "[wjhen streams are
filled or mined all biota living in the footprint of the fill or in the mined area are lost." DEIS
IBLD-2. Over twelve hundred miles of steams, or 2% of total streams, fall within this category,
M. "Headwater streams are destroyed by Sling." DEIS, App. J, p. 70. This degradation mast be
deemed si^trSeaat There is no evidence showing that bsried streaias can be recreated
successfully elsewhere on mined sites. M, "Past eflbrts at compensatory mMgafion have not
achieved a condition of no-net loss of stream area or functions." DEISffl.D-17. Consequently,
this loss is permanent and irreversible.
Second, there is no doubt that valley fills cause significant harm to downstream
watersheds. "The fisheries and technical studies in support of the MTM/VF EIS support Uiat the
functioas of these [headwater stream] systems may be impacted for considerable distances by
upstream fiUs." DEIS, App. 3, p. 70. "MTM/VF impacts of critical headwater stream systems
constitute otie.oftbemostraajor.forealg to this system in fee study area." id,, (emphasis added).
"Impacts from MTM/VF activities to the ability of headwater streams to maintain their nutrient
cycling function are of great consent." M. at 74 (emphasis added).
The EPA and FWS scientists who commented on the draft DEIS agreed with these
conclusions. "ERA'S Ctaemaati laboratory preptred te easting WV statistical evaluation that
concluded [there is a] strong correlation between mining ind downstream anpacte." Ex. 41,
9/23/02 Executive Meeting Agenda, p. 2. An EPA scientist similarly commented ftab
HPA's studies and other studies have fmmd (hat the strongest and most significant'
correlations are between biological condition and eendaetivity. We do know that the
stream segments downstream of some of the fills arc impaired, and we believe the
impairments are due to water chemistry changes, based on the strong correlations.
Ex. 55,12/20/02 Comments by H>A Wheeling Staff. An FWS scientist giraikrfy objected to the
"no significant degradation" statement, stating flat "If impaired aquatic life, and selenium above
water quality standards, resulttag in streams being placed on the 303(d) list don't constitute
significant degradation, what would?" 4/21/03 Eider email, Ex. 71, attached file:
ebfVcorfi!nents.wpd, p. 2.
The stream chemistry study cited by FWS fbotid that:
MTM/VF miiBag is associated with violations of the stream water quali^1 criteria &r total
selenium. Selenium violatioas were detected to each of the five study watersheds and all
were at sites in the category FHW, downstream from MTM/VF operations. No other site
categories had violations of the selenium limit
40
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DEIS App. D, p. 2. It also found that "[fjhe selenium data Indicate numerous violations of the
W«st Virginia stream water quaBty criterion related to MTM/VF mining,™ (y. at 47), and
explains that selenium is "highly toxic" in amounts "tlighily pester" than those found naturally,
and is "strOB$y bkmceunrakted in aquatic habitat" H- at 73. See generally section E.G.2. of
this letter. Consequently, the DHS's claim of tack of harm is erroneous and is not a valid basis
for eliminating alternatives to restrict fills.
3. Even If Su fflcicnt Information Were Not Available Now to Develop
Pill Restrictions, That Information Must Be Obtained, Because It Is
Essential to Choosing Among Alternatives, and the DEIS Does Nut
Demonstrate that th e Cost of Obtaining That In form ation Is
Exorbitant.
Even if sufficient information were not available now to develop fill restriction
alternatives, that information is essential and therefore must be obtained prior to making a final
decision. The CEQ reguittkms provide that "[i]f ttie incomplete information relevant to
reasonably foreseeable significant adverse impacts is essential to a reasoned choice among
alternatives and the overall costs of obtaining it are not exorbitant, the agency shall include the
information in the environmental impact statement." 40 C.F.R. § 1502.22(a). There i« no doubt
that information about the impacts of valley fills on headwater stream systems is of paramount
importance to choosing between altematiyes. Indeed, that was the whole reason for preparing
this BIS, The Settlement Apeement created the interim 250-acre fill restriction until information
and alternatives developed in this BIS could create a better one. As the OSS itself admits, **[t]he
250-acre general minimal impact threshold was intended as an interim threshold based on fee
asspaiptioa that this BIS would.firid the basis fbr.soiaeigjfaflf threshold for NWP 2i
applicability." DEIS H.C-73 (emphasis added). Now, the DEIS says tat, despite millions of
dollars arid four years of information-gathering devoted to the essential task of identifying this
tttematrw, the DEIS cannot find it
In -evaluating whether the cost of obteMng this infonnatkin is exorbitant, the cost must be
measured in terms of what has already been spent Obviously, the federal government believed
that that cost was not exorbitant, or else it would not have spent it The 0EIS does not assi^i a
specific figure to that cost, but m of February 13,2002, the government tad "spent or committed
about 4.5 million" dote to the DBS. 2/13/02 Hofteffl. anal!, Ex. 14. It is hard to imagine that
the cost of studies to resolve the strewn tone wfll b* more ton a small fraction of thit amount.
The "stream impact" jtudfes peffcnned to date are oajy a ftw of the total of JO studies that were
performed for the DEIS. At a minimum, Q» DEIS must be revised to explain how much more it
would cost to resolve tie stream impact issue. If that cost b not more then the amount already
invested aad spent, the ifrfonaatian must be obtained before a decision is made.
The federal courts have held that NBPA requires agencies to conduct research and
provide information whenever the infijtmatiott is "taportant," "significant," or "essential" to a
reasoned decision and the costs are not exorbitant in fight of the size of the project and/or the
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possible harm to the environment For extmpte, the coat m CaggonEwtoaaental Councily..
KfflsaiB, tn F.2d 414,495 (9* Cir. 1987) (citation omitted), held: "fa general, NEPA imposes
a duty on federal agencies to gitber information and do independent research -when missing
information is "important/ 'significant,' or 'essential' to a reasoned choice among alternatives,"
The court in Save Our Ecosystems v. dark. 747 F.2d 1240,1244 n. 5 (9th Cir.1984), similarly
explained:
[Tjhe duty to gather information and do research under section 15G2.22(m) should not turn
on whether the information is "essential" or "important" ... [GJeneral NBPA law
requires research whenever the fflfcrm»tion i» "significant" As long as the information is
"important," "significant," or "essential," it must be provided when the costs are not
exorbitant in light of the si^e of the project and/or the possible harm to tiie ejavh"onment.
Hie court continued:
We recognized in gOCATS that an agency may be required to do independent research
on the health effects of a herbicide. This is not a new requirement
In Foundation for North Ameriqm Wild Sheen v. U.S. Dent, of Atjricujftm. 681 F.2d
1172 (9th Cir.1982), fills court held an EIS inadequate because it foiled to address the
effect on bighorn sheep of opening a road when those effects ware uncertain. We said,
"the very purpose of NEPA's requirement that an EIS be prepared for all actions that may
significantly affect the environment is to obviate the need for such speculation by
insuring that available data is gathered and analyzed prior to the implementation of the
proposed action." 681 F.2d at 1179 (emphasis added). Similarly, in Warm Springs Dam
Task.Fo.rce..v.. Oribble. 62! F.2d 1017 (9
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WVDEP has argued that because SMCRA cannot supersede, amend, modiiy, or repeal
flje CWA, SMCRA cannot be construed to prohibit any activity that would be allowed by
the CWA. Tint aqmamt te-Mtoa merit....
SMCRA section 702 provides merely that SMCRA does not altar the existing regulatory
schemes adopted by Congress in the CWA and other environmental statutes. ...
When Congress has intended that one statute should take precedence over another statists
in the regulation of a particular activity, it has done so with language very differed and
much clearer than SMCRA section 702....
While WVDEP has asserted that it would create an impermissible statutory "conflict" to
read the buffer zone rule to establish a stricter standard than that established by the
404(bXl) guidelines, »ch a statutory construction does not create any such "conflict" as
that term is understood is tiie law. As the Supreme Court has held, two statutes can be
said to eonffiet only when it is impossible to comply with bofli See Freighttiner Cat), v.
Myridc. 514 U.S. 280,287 (1995). No such conflict arises if SMCRA is constraed to
prohibit some activities that would be authorized by the CWA, max it is possible to
cooply with both statutes by engaging in only those activities authorized by both statutes.
Where an activity is regulated under the CWA ind SMCRA - Le., a surface mining
activity that involve the discharge of pollutants from point sources into U.S. waters —
regulation of the activity is governed by the usual principles that courts apply to recoscile
overlapping statutes. Under those principles, "when two statutes are capable of
co-existence, it is the duly of the courts, ataert » eleariy expressed concessional
intention to the contrary, to regard each as effective, 'When there are two acts upon the"
same subject, the nde is to give efifeet to both If possible.™ Mortony. jyfiBJJB- 417 U.S.
535,551 (1974) (quoting United States v.BoidenCo.. 308 U.S. 188,198 (1939)). See
also 2A Sutherland Statutory Construction f 51.05 (44 ei 1984), An activity governed
by both the CWA and SMCRA must therefore safety the requirements of both statutes."
Brief for the Federal Appellants, 4* Cir., No. 99-2683, April 17,2000, pp. 45-49. Consequently,
this reason for excluding consideration of fill restrictions is erroneous as a matter of law.
G. The DEIS Violates NEPA Because It fails to Address or Remedy Continuing
Violations of federal Law.
1. "The DEIS Violates (be Clean Water Act Because It Assumes
Continued Use of Nationwide Penults, Even Though the DEIS' Own
Studies Demonstrate that the Minimal Cumulative Impact Ceiling for
!WP» Ha* Already Been Eweeded.
a. The CWA Prohibits Use of NWPs Unless tfce Permitted
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Activities Have Minimal Environmental Effects Both
Individually and Cumulatively.
In order-to satisfy fra monuments of Section 404 oftbe CWA, 33 U.S.C. § 1344, each
of the four ateraaflveg considered in the DEIS, including the "no action alternative" and the three
"action alternatives,* contemplate -the permitting of MTMAT activities under NWP 21 pursuant
to CWA Section 404(e).53 Section 404(e) of the CWA clearly reiju&es the Corps to d«emine
whefeer an activity will adversely tfifect the environment both individually and when considered
cumulatively with other such activities, !h other words, an activity that has only minimal impacts
by itself nevertheless may not be permitted under a NWP if the activity has more than miniiasl
impacts when considered cumulative^ wM> oter Existing and foreseeable future activities in the
same category. Section 404(e) states, in relevant part:
[T]he Secretary may... issue general permits on a State, regional, or nationwide basis for
any category of activities involving discharges of dredged or fill material if the Secretary
determines that the activities in such category are similar in nature, will cause only
minimal adverse environmental efflaets what performed separaetv. and will have only
minimal cumulative advene effect on fee anvitonmatt.
33 U.S.C. § 1344(e) (emphases added). "The plain meaning of this statutory provision is that
NWPs cannot authorize an activity unless the activity'has minimal impacts both individually cmd
cumulatively.
The legislative history contains language identical to that of the statute. Subsection (e)
w» idded to Section 404 of fee CWA as part of the 1977 Amendments (PdxL, 95-217, § 67(b),
91 Stat. 1600 (1977)). The House Conference Report makes clear that both the individual and
cumulative impacts of an activity roust be minimal to order to (ju&liiy for a NWP:
Section 67 erf the conference substitute... adds a new subsection (e) to section 404 which ,
gives the Secretary authority to issue general permits on a State, regional, or nationwide
"Under the "no action alternative,'' "Valley Fill impacts [are] assessed on [a] oase-by-
case basis to set NWP 21 or [fadividnal pennit (IP)] process; WV fills to lest than 250-acre
watershed[sJ[ar«]j6net«llyeB»bleft)rNWP21." DBtSB.B-19. The DEIS state* that one
"Proposal!] Common to Action Alternatives 1,2, and T (DEIS H.B-10) is fiat **[t]ne [U.S.
Army Corps of Engineers (COE)] would... evaluate whether programmatic 'bright-Sine"
thresholds, rather Saw ctse-by-ease minimal incfivMutl and euninlative impact determinations,
are feasible for CWA Section 404 MTM/W permits." 0EIS HB-11. The DEIS {tether explains
that nnder "action alternative 1" "general permit NWP 21 authorization would be applicable... in
limited citetimsiattces," «d flat "action alternative 2" recognizes that ''some proposals will
likely be suited for IPs, and others bed processed M [NWP} 21," and that "action alternative 3"
"is based on » procedural presumpttoa by the COE that most MTWVF applications would be
processed as general permits under NWP 21..." DEIS ES-S.
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basis for say category of activities involving discharges of dredged at fill material if the
Secretary determines thrt the activities are sbnilar in aatwe, sad case only minimal
adverse eavitoamental effects when txrformsd separately. mrf willhaye only minimal
8 adverse effect on the environment
H. Corf. Rep. No. 830, 95* Cong, 1" Sew. 100 (1977), reprinted In 1977 U.S.C.C.A.N. 4424,
4475 (emphases added). See abo, Sivaade Irr. DisL v. Stipo. 658 F.2d 762, 764 (10* Or.
1981): "[A] nationwide penult or authorization is oae the Secretary issues covering t category of
activities occaring throughout the country which involve discharges of dredged or fill material
which he determines will eanse osiy minimal advaae envfeaaaeMal efieete when performed
jjenamtehr. and which will have only minimal cimnuMye idveae effect on the enviroiBnent."
(Emphases added).
Consequently, federal agencies camaot adopt any alternative that would allow fee use of
NWPs for any MTM/VF activities which have more tfaaa minimal amtiktive environmental
impacts. It is not enough that impacts of individual mines nay not exceed the minims! tapacS
threshold, because the CWA rebukes tnuiifflal impacts both individually and cuitmlatiyely for
any action to be permitted nnder a NWP.
b. The DEIS Demonstrates That the Cumulative Impacts of
MTM/VF Activities in Appalachia Are Mew than Minimal.
Regarding stream and riparian itbittt destruction ("etanultSve aquatic iaipads"), the
DEIS states that "Direct impacts to 1,208 miles of streams is estirnMed based on the tot 10 years
of digital permit data If mining, permitting and mitigation treads stay the same, an additional
thousand miles of direct impacts cemM occur in the next tea yeas... The majority of Hie streams
directly impacted are headwater streams." 08JS App, I, pp. 66-67; s«s afeo, DBIS App. I, p. v.
Further, these numbers understate die total cumulative impacts because they refect oriy the
"directly impacted" (i «., buried) streams, and do not account for the streams which me
significantly "indirectly" impacted (e.g ., by toxic selenium levels or other impacts oa stream
chemistry, teatperature, flow, energy, sedunentaBon, or biota (DEIS ffi.0-1 to D4)34)
downstream (torn MTM/VF operations. DEIS App. I, pp. iii-iv,
Reprfing ckfijrestsition f cumahtive terasttitl impacts"), the DBTS demonsa«tes that
MTM/VFs have already «>Hverte4 and wJB coatinue to eoavert, huge portions of one of (he most
biologically diverse forest areas to the United States into grassland*. "When adding past, present
sad future terrestrial disturbance, the study area estimated forest impact is 1,408,372 seres which
equates to 11.5% of the study area," DEIS IV.C-1. The destruction of these nearly 1.5 million
acres of forest is profound and permaneBt because "Unlike traditional logging activities
associated with management of hardwood forest, when mining occurs, the tree, stump, root, and
"The indirect impacts from MTM/VF will contiaue reprdless of alternative selected by
decision makers." DEISIV.B-5.
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growth medium supporting the fotest we disrupted and removed in their entirety.™ DEIS rv.O t.
The FWS haj similarly couaaanted: "Most biologists would probably argue that the loss of the
natural forest IS probably irreversible, as the unique combination of flowing streams, ^pecies
diversity, organic matter, etc., has been lost At tke very least it is FAS. LESS REVERSIBLE
than timbering, which, at least leaves seed sources and native soils in place." 4/21/03 Rider «• -
mail, Ex. 71, attached file: cHVcomments.wpd, p. 1 (emphasis in original). Appendix I to the
DEIS - the "Cormtterw Impact Study™ prepared by EPA itself- states that "ftmdaiaental
changes to the terrestrial environment of the study area may occur ftom moxmtaintop mining,"
(DBIS App. I, p. v (emphasis added)), explaining:
Habitat changes will occur in the study ares and these changes will involve a shift from a
forest dominated landscape to a feagmented landscape with considerably more mining
lands and eventually grassland Babittt.
DEIS App. I, p. 93.
Moantaintop mining and. valley fill activities significantly affect the landscape mosaic.
Lzndeover changes occur as forests are removed, the topography and hydrology is altered,
and vegetation is eventually re-established Ibft. result is an area drastically different 6om
its tge-fttininp condition. Soil qualities are different, the vegetative community ha$ a
difierent structure aid composition, and habitats are altered.
H-, P- 23 (emphasis added). Further, FWS* Cindy Tibbott has stated, and EPA's William
Hoffman has agreed, that:
{R]e-«gtabHsaing native hardwood forests on reclaimed mines is still experimental. We
don't know what the long-ten success will be. Even if hardwood forests can be re-
established, it should be intuitively obvious that they'll be a drastically dtRjsrent
ecosystem fioa t*6"1"i'1Pg ftffeyts for generations, if not thousands of years...
Ex. 5 (emphasis added)."
M&« a&o, DEIS IV.D-S: "[T]h* pemmBgnlmttna of filling would surest that
MTM/VF impacts to biotic interactions in headwater stream systems ... may constitute a[n]
ifteveaibte impact to this system in flse study area." (emphasis added). See also, "Problems
IdentifiedA^onfinned/ioifetfed by Techaioal Studies, Be, 6, p. 6: "Large-seale surfeee eoal
tninhig wjjl result to the conversion of l«ge portions of one of the most heavily forested areas of
the country, also considered one of the most biologically diverse, to grassland habitat. Unless
reclamation practices are changed drastically, it can be assumed that this forest to grassland
converaion is, for all practical purposes, permanent Even if reclamation practices are changed,
we must still consider the recoveiy of a functional mesophytic forest ecosystem as a long-term
ecological experiment with uncertain results." See also, 6/10/02 Hoffman e-mail, Ex. 29, EPA
Issues - MtM/VF EIS: "Cumulative tenestrial impacts from MTM/VF activities are considered
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Ref arding wildlife destructiOE, the DEIS states (hat mountamtop removal mining
engenders a "change to... habitats (that) could put a number of species ia peril." DEIS App I. p.
v. EPA's "Cumulative Impact Study" finds that:
The southern Appalachians have been identified by the Nature Conservancy as one of the
hot spot areas in the United States for rarity and richness (Stem et at, 2000). This region
is known to have the MghealiaiteMl concentration of aquatic biodiversjty in the nation.
For Has reason, it is hypothesized that impacts which result in decreases in genetic
diversity, as measured by loss of species, loss of populations or loss of genetic variants,
would have a disproportionately large impact on tetottl anngtic genetic diversity of the
nation.
DEIS App. 1, p. 78 (emphasis added). The DEIS further explains:
Riparian habitats are generally ecolopolly diverse and toy often provide tebitat for
unique, or ecologically important species... The projected potential adverse impacts in
the West Vfeguik study area is 7,591 acres, or 3.2%. Approximately 55% af the
projected riparian habitat impacts occur ia first and second order streams which are
important habitat? to many species of... wMife.
DEIS App. 1, p. vi. For example, "forest loss in the West Virginia portion of the study area has
the potential of directly impacting as many as ^4^ ygrlejbrate wildl$e species." |£|, at 86
(emphasis added). "The potential adverse impact of loss of habitat for [three forest interior bird
species - Louisiana Waterthresh, Worm-eating W*rbkr, and Cerulean Warbler] has extreme
ecological significance in that habitats required by these species for successful breeding are
limited in the eastern United Stales." M. at 90 (emphasis added).3* "Loss of these species his
more ecological importance than providing habitat for grassland species considered rare in tfje
state because it suggests possible future eodangenaeat of &ome forest interior species..." id,, at
to be significant...*'
uSee also, Ex. 6, p. 5: "Populations of forest birds will be detrimentally impacted by the
loss and fragmentation of mature forest habitat in the mixed mesophytte forest region, which has
the highest bird diversiyia forested habila{s in the: eagtera United States. Frtgmentation-
sensitive species such as the cerulean warbler, Louisiana waterthrush, wotm»*attag warbler,
Uack-and-wMte warbler, and yellow-throated vireo will likely be negatively impacted as forested
habitat is lost and fragmented from MTM/VF." (emphasis added). Sw also, &: "The forests of
this particular geographic area are the core breeding area for a number of forest interior bird
species that have extremely limited breeding ranges, including the cerulean warbler, which is
currently under review by Ihe Fish and Wildlife Service for endangered species listing."
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91 .** Further, "MaJamamders are an nspertast ecological component in the niesic forests of the
study area... [and] are intimately associated with forest ecosystems..." |
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of NWP programs under the CWA with respect to aa mdangeted species of owl, acd to
determine that use of such N"WPs had no significant impart before authorizing projects under
those permits:
... Defendants' scope of analysis... is inadequate to measure the impact of implementing
the NWP program under which thousands of projects will be authorized. The kind of
impact statement required depends upon the kind of federal action being taken.
The court concluded: "At a mfaijnum, (bis Cotat must order the Defendants to take a 'hard look*
at the cumulative imam .of the WWP nroaam.... and determine Aat the use of these permits in
this reaion has ftp apiifieant Smpict." 14 at 1114 (emphasis added). Similarly, here, tbe drafters
of the DEIS must consider the cumulative impact of all past, present, and reasonably foreseeable
future MTM/VF operations to be authorized under NWP 21. "When all such cumulative impacts
are considered, the inescapable conclusion is that such impacts exceed the "minimal impacf1
threshold for authorization under NWP 21 for any MTM/VF operation.
Thus, tbe DEIS itself, relying on EPA's own study, dearly demonstrates that the
cumulative adverse environmental impacts of mountaintop removal raining in AppalaGfeia are
more than "minimal." The riparian and forest ecosystems ^Mch have already been and wll
continue to be destroyed ate among the most biologically rich and genetically diverse in the
nation. The magnitude of the destruction in terms of forest acreage, stream-miles, and tost
wildlife populations, habitat, and species is enormous. The destruction is permanent, causing t
"fundamental" shift fern a forest ecosystem to m "grassland habitat" Such mining is likely to
continue or increase in the futere. The evidence in this DEIS that MTM/VF Impacts are more
than minimal on a cumulative basis is simply overwhelming. Section 404{e) of the CWA
prohibits the use of KW^s unless the activity **wili have only minunai cumulative adverse effect
on the environment'" The DHS proves that meunlaintop removal mining activities cannot
satisfy this requirement in any case. The FW3 has similarly observed:
[H]ow will the Corps justify a "sipuflcaat degradation" determination? Corps issuance
of any permit mems that the Corps has determined that the project will not result in
"significant degradation" as defined by the 4G4(bXl) guidelines; the significant
degradation test trumps even the public Mteisst review and !he practicable alternatives
test To our knowledge, there is no other single industry or activity in the country that
receives Section 404 antaorrzation for the total etiramsfion of waters of the United States
on the scale that stream destruction occurs with moutttaintQp mining... Are we seriously
going to propose $»at some sort of "compentatory jaitiptjon" can tie fabricated that
would truly replace the lost junctions and values of the destroyed miles of streams, to the
degree that we could consider impacts to be less than minimal? How many miles of
stream loss a year are we going to he willing to accept under the cumulative impact test
required for nationwide permits? What precedents do these decisions set for attempts to
limit the loss of streams resulting ftom other types of activities authorized by otter
natioawides?
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\OI30ffi2 Tibbott ma&, Ex. 43.
Mvistaal pentsitt ttM be used tot HSXaiSS becwse every taine wiD eoattibate to
defcrestotioa »ad steam destaietiOB. fhewfcre, ao MTM/VF activities ate eligible fcr NWs,
and all of the alternatives considered hy fte DEIS as illegal because they all contemplate
praising fetare MTM/VF icS-wto unda- NWP 21 .
2. The DEIS Violates ike Clean Water Act, Because I ts Studies Show
fltat MTSOTF Acflvtttes Cause Violations »f the WV W»ter Quality
Standard for Selenium, But Hie DEIS Does Nothing to Address Thc.se
Violations.
The DSS shows that MTM/VF activities cau« violations of WQSs fcr selenium in West
Virginia. The DEIS ftils to propose any remedies fas those violations. Federal agencies cannot
take any action dot would violate WQSs. Therefore, all of the proposed aherwttives in the DEB
are illegal became they would permit activities which violate WQSs.
The DEIS states:
The data fesa this report mdieaia that MTM/VFs increase coscentmtioES of several
cfaeffiical parafflet&s M streams. Sties in &e HBed eategcsy had increased concentrations
of ... total selenium... Comparisons ts {Ambient Water Quality Criteria (AWQC)] *«re
performed with a subset of the total daa set is explained in USEPA (2002a). Selenium
caBcetitrtttoas fett the Filed category sites were ftrad to exceed AWQC fer selenium
at most (13 of 15) sites in this category. No Qfer site categories had violations of the
DHSIIJD4. ThsDBISaisreforecosetadiss: ^e existence of sdemmn at e«entrations to
excess of AWQC at aunt of the filled sites indicates a potential for impacts to the aquatic
environment tfri possibly to higher order oijpnisms flat feed on aqutiie organisms." DHS
m.D-7."
The "West Virginia Stream Chemistry Study," dated April 8, 2002 and set forth in
Appendix D to tbe DHS (hinlM^er "DEB Chem. Stud/% puts the mater more bluntly,
explaining flat "..AflWVF miring is associated with violations of tie stream water quality
criteria fcr total selenium. Selenium violations were detected in each of the five study
watersheds and ti were at sites to the eategaiy Filled, downstream ftom MTM/VF operations.
Nootte-sitecategorieshadvialifioiisoftheseleBiumBmit.'' DEB Chem. Study 2. THsstudy
sSa also, DEB fflD-l 8: "As discussed in fte USEPA Stream Chemistry Report,
several eheMkal parametets have beea found to be elevated in stream surface water downstream
from filfed/mteed area (USEPA 20G2»). Chemical parameters elevated in eKcess of ambient
water qaaEty BJtera may impafc the aquatic productive {sic] of constructed streams."
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also finds that "[t]he selenium dMa indicate numerous violations of the West Virginia stream
water quality criterion related to MTM/VF nsiniag." M. at 47.* todsed, ike EPA-reeommerufed
and West Virginia-adopted swam water quality criterion for Selenium is no more than 5 ug/L
(DBS Chem. Study 73), and selenium levels downstream from "Pilled sites" were up to 10 times
that amount. & at 75. Tlse study elaborates that selenium fa "highly toxic" in amounts "sH^itly
greater" than tho« found naturally, and is "strongly bioaccumtilated to aquatic habitat" U. at
The CEQ regulations provide that each BIS "shall state how... decisions based on it will
or will not achieve (he requirements of... other environmental laws and policies." 40 C JJt |
1502.2(d). Under NEPA, "each agency must mesh the requirements of NEPA with its own
governing.statttte as far as possible." Sierra Club v. .Sitter. 695 F.2d 957,967 (S*1 Or. 1983);
Calvert Cliffs. 449 F.2d at 1115 & n. 12. Here, UK CWA governs the establishment and
enforcement of state water quality standards. It coatajus "statutory commands the Corps must
integrate with the requirements of NEPA." Siglar. 695 F .2d at 967. Thus, the DBS in this case
must be reviewed not only for adherence to NEPA, but for adherence to the CWA's commands.
All federal agencies have an obligation under the Clean Water Act to comply with state
water quality standards. N«iaaglWitdlife gaderation (NWF)v. U.S. Army Corp of Engineers
CCOEX 132 F. Supp.2d 876,889 (D.Or. 2001). It is arbitrary and capricious for a federal ag«cy
to acknowledge thst such standards are being violated and ftat its facility is partly responsible for
such violations, but taU to take action to comply with Aose standards. H, at 8S5. As tie court
held in NWFv.COIg: "The compliance of the Corps with its tegat obligations order the [CWAJ
is a relevant raetoi" ift determining whether the final agency actions taken by the Corps in the
[Records of Decision (RODs)] were arbitrary and capricious... [uaderfhe APAJ." H. at 890.
While that case involved a dara operated by the COE, the same principle should apply to permits
issued by the COB for valley fills, since those jSBs are directly connected to violations of state
water quality standards for selenium.
Farther, pursuant to 40 C.P.R. § 1502.2S(b), the EB is requited to identity all federal
permits that the project requires in order to comply with federal kw. Therefore, a court
reviewing ti« Final BIS would be obligated to decide, under NBPA, whether the selenium
""See olio, 3/27/02 Bryant e-mail, Ex. 22: "Tie selenium data clearly show 'hot spots'
with higher conceatrttions of selenium in each of the five watersheds and located downstream of
"Filled" sites ONLY. There are 66 violations of the stream water quality criteria identified and
each is at a Filled site. No other category of site had violations of selerjluffil I don't believe
anyone needs a statistician to prove thtt MTM/VP mudBg causes violations of stream criteria fa
selenium. On top of that, the WV Geologic Survey data indicate that the coals in that region are
high in selenium." (capitalization in original). See rate, 1/02/03 Tibbott e-mail, Ex. 57:
"[BJelow fills file ambient water quality criterion for selenium concentration is exceeded
consistently..,'*
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discharges UK properly permitted tinder the CWA, including the state water qualify certification
under Section 401 of the CWA, As the eoort in Duboiav.. U.S..PepL of Agriculture. 502 F.3d
1273,1295-1296 (1" Or. 1996), explained:
Regardless of whether any of the remedies provided in the CWA would be available to
Bubois in Sght of Ms asserted failure to provide proper notice of his intent to sue, this
court would still have the authority and the obligation to decide, ondes: NBPA.. whether an
NPPES .penult-is, retmired in this case. This is because... NEPA requires the Forest
Service to identify in its MS all federal permits that .the protest needed in order to comply
wits applicable federal law.
(emphasis added).
Given the serious impacts of raining on water quality, an EPA official stated in November
2002 tot "I tm confident that the BIS will recommend father studies; and recommend
monitoring at a mtstrmam fbr selemtm, safates tn
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The DEIS states:
The information in Table HI.B-2 is corroborated by the experience of reclamation
personnel and is reflected in West Vjrpnia's recently proposed commercial forestry
regulations, to estimating the likely quaBry of reclamation to be obtained tinder these
regulations, we must recognize the fact that the current raguteioas (which have been in
place meg MOT IfUJm mrote that selected overbardetigubsttoteg for soli be "equal
ta^aonare suitable Bar sustaining vegetation than «hs existing tooaoil. and the faulting
soil medium is the best available in the permit atta. to support revegetation." Also, soil
materials.ate to.b» redistributed inAmaoner that prevents excessive compaction of the
materials. Be this as it may. the reality of reclamation in AppalaeMa is that selective
ovarbwriai hmffltng it »retv practiced bevosd ihttrequired JtaJceep highly toxic material
out of the rpotutg %prte: .excessive caMpactiori ?s commonplace... Production of soils that
will support commercial forestry as part of mouatajntop mining requires selective
overburden handling and replacement procedures on a scsle that has never bec-n carried
DEIS ffl.B-15 (citttiOE omitted) (emphases added).
Although the DEIS proposes a "mitigation measure" of producing a "best management
practices" manual which would "encourage" reforestation, the practices suggested by this manual
would be purely voluntary and the DEIS points to nothing to suggest that such practices would be
followed (as addressed more fully in section H.I.2. of these comments). The DEIS proposes no
remedies for this acknowledged, ongoing, systemic violation of ins OSM regulations. Therefore,
for the same reasons
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CFR 816.57 and 817.87 to clarify the SBZ requirements. These amended rales would
more closely align with the principal statutory basis for the rule [30 XJ.S.C. 1265(b)(IO)
and (b)(24)]. Exemptions toJhaSBZ requirements would only be granted upon a
demonstration by the coal operator, to the satisfaction of the SMCRA regulatory
authority, that encroachment into the SBZ is necessary and that disturbances to the
prevailing hydralogtc balance at the mine-site and in associated offstte areas have been
minimized.
DEIS H.C-34 to C-35 (emphases added).43
OSM's interpretation of the existing SBZ role is iacoirect, and is directly inconsistent
with the interpretation given by the United States before the 4* Circuit in Bragg. In its brie£ the
United States stated:
By specifying that mining activities must seek to protect water resources "at the mine site
and in associated ofisite areas," Congress made'clear flat water resources must be
protected where mining activities occur and not only at downstream portions away from
the mining sites. ...
By expressly and unambiguously applying to the steam segments where minus activities
are proposed, the buffer zone cannot be satisfied by a finding that the stream's
environmental resources are protected at some downstream point...
[Vjaltey fills that disturb irrtsmteeat or perearoal streams may be approved only if there
is a finding (hat activity will not adversely affect the environmental resources of the filled
[T]he district court comedy held that findings made to applying the CWA 404(b)(l)
guidelines cannot be used as a substitute for the foldings required by the stream buffer
zone rule.
Brief for the Federal Appellants, 4* Cir, No. 99-2683, April 17,2000, pp. 40-43. OSM's
interpretation of the SBZ rule is therefore erroneous as a matter of law, and is an arbitrary
"See also, DBS H.B-7, regarding the "No Action Alterative" f OSM initiated a
SMCRA regulatory program enhancement to amend and clarify the stream buffer s>r* (SBZ)
rules at 30 CFR 816.5? and 81757."); DHS HB-19, regarding the "No Action Alternative"
("SMCEA buffer zone (SBZ) subject to toterpretetion."); DHS H.C-1, regarding the "No Action
Alternative" ("Current SBZ rule-rflaldrjg (OSM)"); DEIS D.D-2, regarding "Alternatives
Considered but Not Carried Forward in this EIS," ("Use of the [existing] OSM SBZ rule was
considered to implement the alternatives establishing valley fill restrictions for certain stream
segments [but not carried forward],),
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reversal of its prior position.
AH three of the "tetion alternatives" also contemplate weakening or eviscerating the SBZ
rale. Regarding Alternative 5, the DEIS states: "SMCRA SBZ rale inapplicable to excess spoil
in waters of the U.S. due to CWA Section 404 analysis." DBS fl,B-tt. Regarding Alternatives
2 and 3, the DEIS states: "The No Action Alternative discusses ongoing rale-making to amend
aid clarify flie SBZ role. This action could also include later OSM consideration of additional
amendment to the SBZ role to increase consistency with the CWA Section 404 program, If
appropriate and supported by SMCRA." DBISEC-SS."
Thus, all four of the alternatives eoBsMered in Use DHS, iaehding the "no action
alternative,'' contemplate changes to the existmg SBZ rule that would either weaken ("no action
alternative*') or explicitly (alternative 1) or implicitly (alternatives 2 and 3} eviscerate ite rule.
The DEIS flierefcre fiwtwites Congressional will and illegally evades the requirements of NEPA
to consider "the alternative of so action" and compare the benefits of stream protection as it
exists with any contemplated ehasges. The DHS also illegally evades the SMCRA requirement
4M OSM prepare an EIS regarding significant changes to the SMCRA regulations: Finally, the
DEB's interpretation of the existing SBZ wte is iaeorreot and directly inconsistent with the
interpretstion adopted by the United States in Bragg.
I,
The DEIS Violates NEPA Because it Fails to Adequately Analy/e the
Effectiveness of Mitigation Measures.
• The DEB violates NEPA by Ming to adequately analyze the effectiveness of proposed
mitigation measures. Specifically, first, the DEES teles on the effectiveness of to-kind mitigation
while admitting that on-sJte stream reconstruction has never been suecessftlly accomplished.
Second, the DHS relies solely on a BMP manual to "encourage" mine operators to reforest their
lands, without showing that the manual, by itself, will have any meaningful impact on adoption
of PMLUs Hat involve reforestation.
"Implicit in NlPA's demand that an agency prepare a detailed statement on "any adverse
environmental effects which cannot he avoided should the proposal be implemented,' 42 U.S.C.
1 4332<2)(C)(ii), is an understanding that an J3S vM discuss the extent to which adverse effects
can be avoided." ^h^g v JrfejhowJ?alley Citizens Council. 490 U.S. 332, 351-52 (1989)
. . .. ,
(citation omitted), "A mere fisting of mitigation measures is insufficient to qualify as the
mmnnrf discussion required hy NBPA." Northwest Indian Cemetery Protective Assoc. v.
1, 795 F.2d 6S8, 697 (9* Or. 1986) (citation omitted). "Without analytical detail to
"While it is not clear what "additional snwadraenf might be considered tinder
Alternatives 2 and 3, it appears that such amendment would be satular to that considered under
Alternative 1 to make the SBZ rale "inapplicable to excess spoil in waters of the U.S. due to
CWA Section 404 analysis," since fte "addition amendment" would have UK same purpose to
"increase {SBZ rule] consistency with the CWA Section 404 program.**
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support the proposed mitigation jnetsures, we am not persuaded that ftey amount to anytiiing
more than a 'mere listing' of good management practices." Idaho BoQrtaM Congress v. Thoma
137F.3d3146,1151 (9*Cir. 1998).
In the present case, the DEIS itself demonstrates that its own reliance on in-kind
mitigation is not justified or aborted by the history of such mitigation attempts or its own
findings regarding the likelihood of success, and the proposed BLM manual is the epitome of a
"mere listing of good management practices" because its suggested practices *re non-mandatory
and unenforceable and the DEIS points to nothing to surest that the manual's existence will
increase forestry PMLUs.
1. The DEIS Relies on the Effectiveness of In-kind Mitigation While
Admitting That On-site Stream Reconstruction Bus Never Been
Successfully Accomplished.
The DEIS relies heavily on the future effectiveness of in-Mad*5 mitigation to reduce
environmental impacts. "The alternatives proposed, including the No Action Alternative, assume
successful mitigation through on-site reclamation and on-site and off-site mitigation." DEIS
IV.B-8. "In-kind mitigation must restore or create headwater stream habtat on fhe reclaimed
mine area to replicate the fitnctions lost from direct stream loss." 0BIS IV.B-9. "Jn most
situations, under all alternatives, some type of on-site restoration, as a component of reclamation,
would be included as part of or all of lie mitigation needed to replace lost Junctions from
headwater streams." M- "The functions of streams lost through filling oaa require substantial
mitigation as compensation," DB8H.C47, "Mitigation for lost stream junctions is important to
ensure that significant degradation to waters of the U.S. does not occur." DHSn.C-49, "Both
on-site and off-site mitigation are likely necessary to insure that only minimal individual and
cumulative impacts occur under all of flu alternatives considered..." DEIS IV.I-12.
FWS' reviewer of the DEIS commented that "...the ability of compensatory nutiption to
reduce impacts » minimal levels is the linchpin of each of the alternatives." 11/13/02 Tibbott e-
mail, Ex. 49, Comments, p. 1. But she stated that this mitigation "is an untested, unproven
concept, and many believe it can't be aceompttsheo'.** M- This is a "fetal flaw in our alternatives
framework." M. The FWS wvtew»rarfcer commented: "P]t is difficult if not impossible to
reconstruct free flowing streams OB or adjacent to mined sites... {due to] the inability to capture
sufficient groundwtter flows necessary to provide a constant source of flow for the new stream."
11/15/02 Tibbott e-mail, Bx. 50, Comments, p. 1. Set also, 1/02/03 Tibbott e-mail, Ex. 57, p. 2:
"It is unlikely that streams and the ecological functious they contribute to the watershed can be
replaced through mitigation..."
The DEIS' reliance on effective In-kind mitigation is wildly irrational and dtectly
""[T]here is a preference for onsite (on the same site as the habitat being impacted) and
in-kind (same habitat as that being impacted) compensation." DEIS n.O-50.
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contradicted by the DBIS's own findings regarding the history of such mftigatiori attempts and
the stMe of the existing technology. That it, raoctiontog headwater streams have never keen
sueeessrWly created in MTM/VF areas, and the technology to create them does not east Rather,
attempts to create flowing steams have resulted only in cresting standing ponds and "linear groin
ditches" (DEIS HI.0-2Q) which cannot replace the important Junctions of headwater streams,4' so
(fat mining companies often resort to simply paying feet to bury the headwaters and destroy the
stream ecosystems. The DEIS explains:
[RJecreating headwater streams onsite to fractionally replace those directly lost from
fitting operations is difficult and not often ondertaken as compensatory mitigation.
Experience with the technology required to create streams that match those directly lost
through valley fills is very limited. To recreate intermittent or perennial streams onsite3
the channel must intercept local groundwater. The potential channel locations and
elevations may not coincide with prevailing geologic structure (dip or hydraulic gradient)
making local groundwater horizons difficult to capture for establishing stream flow.
While proven methods exist for larger stream channel restoration and creation, fee state
olthe. art in creatiM smaller headwater streams onsite has %ot teaqhed the level of
tenradacMejmecMS tacpired for these efforts to be reasonably telied uport
txro&raMtBaticallv as an option for foil compensatory mitigation. Consequently, other
forms of compensatory mitigation are employed and other sites outside fhe footprint of
the fill are often tttilized to oSSet unavoidable aquatic impacts of valley fill operations.
Mitigation sites (on- or offsfte) require a conservation easement so that protection of the
aquatic resources is assured in perpetuity. Because raining companies often lease mine
sites and may net own or control oflfsite areas, this easement requireaiect can sometimes
pose a significant barrier to the location of suitable mitigation opportunities-either onsite
orofisite. These iactmg can also result in greater consideration of in lien fee
arrangerneats whereby mitigation is accomplished through monetary payment for aquatic
conservation/restoration projects identified by government resource agencies.
DEIS n.C-SO (citation omitted) (emphasis added). The DEIS farther explains:
Stream creation on filled areas is very difficult in general due to the inability to oapnge
s*3frlciest grouadwatsr Hows necessary to provide a source. There is some suggestion
that perennial flow could be established on a contour between the £01 and the native rock
*The DBS acknowledges the intportattt and unique fitnctions of flowing headwater
streams: "When energy source is altered or removed in the upstream reaches, downstream
biological communities are also affected. The value of headwater streams to the river ecosystem
is emphasized by Doppelt, et al. (1993): "Even where inaccessible to fish, these small streams
provide high levels of water quality and quaoti^, sediment control, nutrients and wood debris for
downstream reaches of the watershed. Intermittent and ephemeral headwater streams are,
therefore, often largely resjpoasibte for jnaintaMng the quality of downstream riverine processes
and habitat for considerable distances.'" DEIS m.C-12. See generally, DEIS H.C-1 to C-12.
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bytheuseofsometvpeofinqjermeabtelker. However, no dem«Htratioa promts have
yet been .performed to validate this hypothetical design... [A]t best, itteams recreated on
mined lands would be expected to teve only intermittent flow... [SJeveral chemical
parameters have been fouud to be elevated in stream surface water downstream from
filled/mined areas. Chemical parameters elevated in excess of ambient water quality
criteria may impair the aquatic productive [sic] of constructed steams... Dining the
development of this EIS, technical representatives from OSM and fiom West Virginia
opportunity for in-kind replacement of streams with an intermittent or ephemeral flow
regime. To date, no drainage stractnres observed appear tq have successfully developed
iato a fatsctKMal headwater ijtreatn.
DEIS ffl.D-18 to D-19 (citations omitted) (emphasis added). The DEIS continues:
tTlo date functioning hadwater streams have not bem re.mated.an mined or filled taas
aiiaa of mine restoration or planned stream mMeatioH effggs. Most on-srse mitigation
construction projects have resulted in the creation of pahtstrine wetlands that resembled
ponds. Some of these created wetlands are isolated from other surface water systems
while others occur in drainage channels which connect to the original stream system at
some point. On some fills. liaeaMihaped wetlands may develop in groin ditches...
BaBtiOBS not restored include habitat for afluatie organisms that require tone eg Howinp!-
wafter conditions.
DBIS II1.D-20 (emphasis added). The DEIS further observes: "If future mitigation mirrors past
... reclamation practices..., successful restoration of habitat for organisms requiring lotic
(flowing) conditions may be very limited." DEB rV.B-9.*
Thus, the DEIS's reliance on the effectiveness of in4dnd mitigation is arbitrary and
capricious given its siasultaneoiB admission that on-site stream reconstruction has never beea
successfully accomplished and is not likely to be accomplished, and may in feet be impossible,
under any alternative. Where, as here, an agency Mis to support te conclusion that its proposed
mitigation measures will perform «s expected in the specific environment contemplated in the
BIS, the agency's consideration of mitigation measures is inadequate to me&t th© requirer0eats of
NEPA. BteMomitainsBiodtvmitvProjecty.Blaeteood. 161 F.3d 1208,1214(9*Cir. 1998).
2.
The DEIS Rdie> Solely en a BMP Manual to "Encourage"
Reforestation Without Any Analysis of Whether tt Is Likely to Do So.
"Furthermore, ths Corps has no authority under to Clem Water Act to use mitigation to
offset the loss ofjurisdictional waters of the United States, especially where the effect of this
mitigation offset is to convert jurisdictioual waters art as perennial steams to potentially non-
jurisdictioaal waters such as "groin ditches" or "wetlands isolated from other surface water
systems," DBISIB.D-20,
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In addition to stream reconstruction, the other mitigation tool envisioned by the DEIS is a
BMP manual, which would attempt to "enooatag^* reforestation, although forestry PMLUs
would remain purely voluntary under all of the alternatives. This proposed "mitigation measure"
is the epitome of a "mere listing of good management practices?' (Idaho Sporting Congress. 137
F.3d at 1151) which violates NEPA. Specifically, it faili to satisfy the NEPA requirement that an
HS adequately analyze the effectiveness of proposed mitigation measures. The DEIS contains
ao analysis of whether the manual will actually increase reforestation.
In the absence of such analysis, there is good reason to believe that it would not The
DEIS finds that reforestation is currently not the usual practice due to economic disincentives and
technological harriers.** As fte FWS has observed:
The BIS indicates flat Itadownas would be expected to support reforestation because of
rte long-term benefits. Because of ihe lack of success of the reforestation initiative that
was begun several years ago teKentaelgr, we do not believe landowners or the mining
industry will show significant support for anything more than is required. The EIS should
only provide realistic potential solutions.
1/02/03 Tibbott e-mail, fit, 57, pp. 1-2. The S>A similarly stated in June, 2002:
fPMLU] studies suggest that, in general, post-mining development has not occurred 4s
envisioned when variances are requested from the requirements to return the land to a
condition capable of supporting its prior ase. Actions to ensure that PMLU development
occurs as envisioned... must be included as commitments within the EIS.
6710/02 Hoffinan e-mail, Ex. 29, EPA Issues -MTM/VFHS; 6/14/02 Rider e-maU, Ex. 31. As
a result, the DEIS's reliance upon the supposed willingness of the mining industry to voluntarily
undertake costly reforestation is unrealistic and unsapported.
Currently, disincentives and barriers to reforestation are the norm. "[T]he we of grasses
and legumes serves as the low cost, low-risk option for bond release. Even when the reclamation
plan calls for the planting of trees, excessive compaction of file rooting medium, which severely
reduces tree growth, is the norm,™ DETSffl.B-9. "The predominant PMLU has included a bias
towards salvaging... soil materials that provide Javorable chemical conditions for the growth of
grasses and legumes, bat have a negative impact on forest regeneration." DHS HI.B-11.
"Production of soils that will support commercial forestry as part of mountaintop mining requires
selective overburden handling and replacement procedures on a scale that has agger been carried
"fa &ct, even "flat lt«F PMLUs we not being completed. "This investigation found that
many sites aie not being developed as eaviswaed when PMLtJ variances are granted, and that the
supply of flat land seems to outweigh the demand." Ex. 6, p. 4,
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out in Appalachia."" DEIS IH.B-15 (emphasis added). Cindy Tibbott (USFWS) has stated, and
William Hoffinaa (USBPA) has agreed, that:
I arn very concerned about naming all of the Alternatives without a 0% forest recovery
scenario ... [because] re-establishing native hardwood forest-; on reclaimed mines is still
ejfflgimentaL We don't know what the long-term success will be. Even If hardwood
forests can be re-established, it should be intuitively obvious that they'll be a drastically
different ecosystem from pre-mining forests for generations, if not thousands of years...
Ex. 5 (emphasis added).50
Despite this lack of current reforestation, to DEIS insists: **A BMP manual emphasizing
the latest cost-effective reforestatiott techniques could encourage forestty-related PMLOs."
DEIS H.C-76. However, the DEI$ admits that "the only difference between i» No Action
Alternative and the development and use of SMFs as part of Alternatives 1,1, and 3 is that this
action anticipates broader acceptance and use of the BMPs to improve reclamation to a ftasst
land use." DBS IV.C-8. Thus, tJ» DEIS simply assumes that the BMP manual will effectively
encourage reforestation, without airy support for tin* assumption and without toy requirement for
forestry as a PMLO, and in the face of the acknowledged fact that reforestation is not ounody
practiced due to significant technological barriers and economic disincentives. The DEIS's
analysis of (he BMP manual ss aproposed mitigation measure is therefore insufficient to meet
the requirements of NEPA.
J.
The DEIS' Analysis of the Economic Impacts of Mining Rcstriclious Is
Inadequate
The PHS does not contain any substantial analysis of the economic impacts of different
fill restriction alternatives. The United Slates spent large amounts of money on a two-phase
economic study. The Phase 1 stody by Resources Technology Corporation (RTC) analyzed the
impact of proposed regulatory changes on the amount of mineable coal reserves. That study cost
about $200,000. The Phase 2 stedy by Hill & Associates (H&A) used the RTC results to
estimate the market impacts on coal prices, cod production, electricity generation and electricity
pricing. That study cost over $300,000.
49S« also, Ex. 6, p. 4 ("Current reelaaafioti practices re»ult in conditions that discourage
the re-establishment of trees."^; 14, p. 5 ("The study found no evidence that native hardwood
forests, including their herbaceous ttnderstory component, will eventually recolonize targe
mountamtop sites using current reclamation methods.5*).
sS«e also, Ex. 6, p. 6: "Even if reclamation practices are changed, we must still consider
the recovery of a functional mesophytic forest ecosystem ss a long-term ecological experiment
with uncertain results."
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However, the Stewing Committee rejected those studies, thereby throwing away an
investeent of over oae-half million dollars, purportedly because (hey "»re no longer essential for
portraying the differences between the alternatives being analyzed to the HS. The committee
agreed that the studies would have beea relevant had the original restriction alteratives proven
to be viable alternatives, but since they are not viable, revising the studies is not essential for
completion of the HS," 9/10/02 HoStoan e-mail, Ex. 40, Attachment The Steering Committee
also believed that the findings in those studies "can be dismissed by credible agency
qualifications statements" in the DEIS. Ex. 41, Agenda, p. 2.
In fiet, what really happened is that the development agencies on the Committee rejected
these studies because they did not lite the results, which showed that fill restrictions would not
have serious economic impacts. The DEIS explains that the studies found that "in most
situations the restriction would change the price of coal to less than one dollar per ton," and that ,
"[t]he price of electricity would continue to rise approximately 1 to 2 percent across the
aeenarios: the impacts due to restrictions will have little effect on price." DBS App. 0, p. 6
(summary of Phase B Economics study by Hfll aad Associates) (emphasis added). Even after
adjusting the model inputs to be more favorable to the eoal industry, the change in the price of
coal rose to only two dollars a ton. M.at7. Morgan Worldwide Consultants, Inc. (MWCI)
conducted an analysis of the RTC Phase I and H&A Phase H economic reports. Ex. 60,
Attachment. The MWCI analysis stated:
This letter report prepared by [MWCIJ is an analysis fccused on wotfc completed
sine 1999 regarding the eeoaomic impacts of restriction on 1MIWVF] operations in
Appaladtfa. It also addresses the current attempt to essentially disregard ftis work and
replace it with unsubstantiated data to produce different results within the nejct two
months...
RTC... endetvored to estimate the eflset of various valley fill restrictions on the
quantity of coal potentially available from mtaiag s» objectively as possible, going to
great lengths tt piwrent toman bits... The results of Hai uaMased approach!] ae being
questioned, and 08M proposes to soleit ittpot from coal industry representatives. MWCI
is reviewed the Phase 1 work tad determined that it is premature to dismiss the results
porttayed in the Final Ptass 1 Report,,
The methodologies md results of tie H&A Phas* 2 work are not in question, but
H&A has been requested by GSM to conduct a sensitivity analysis using input solicited
ftorfl eoal industry representatives. MWCI ...questions the validity of information
supplied by coal industry representatives on such Short notice...
H-, p-1- The MWCI analysis continued:
As stated in the H&A Final Report, "...it is evident that the electricity prices are
quite imensitive to the MTWVF restrictions, showing differences of only 1 %-2%, or 3%
«t the mawBMm."... Consistent with tie results obtained wife eoal tannage ind direct
employment, the arttidpMed 1.15% increase in the base case fern S0.01971/KW-Hr in
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2002 to SO.G2276/KW-Hr in 2010 ovttshadows price enangw induced tsy potential valley
fill restrictions...
Both [RTC and H&AJ acted under the direction and guidance of the HS Steering
Committee..,, and there is no reason to question the intepity of the results obtained..
The E1S work to already spanned years, and RTC sad H&A have had the benefit of
input from many qualified professionals daring the preparation of their Phase 1 and Phase
2 reports, respectively. Rathe flan replacing these years of effort with a couple of
harried months to produce a different answer, spend the time and money understanding
and qualifying the results produced to date.
OSM summarily dismissed the MWCI Report, stating: "We just don't have sufficient
time to deal with this report ~ particularly when you consider all the comments on the E1S
Chutes that mast be addressed in the next two -weeks. I don't see that finalizing [the M WO]
report is a high priority task." 1/10/03 Robinson e-mail, Ex. 60.
A January 16,2003 memorandum identified a series of "key issues that we anticipate will
be raised when the DBIS is published for public review," including flue following: "As psit of
the studies conducted in conjunction with the DEIS were studies to assess the economic impacts
that would result from implementing actions considering limits on the size of valley fills.
Information from the economic studies... suggest that limits on the size of fflls will have only
minimai economic consequences on eotl and electricity prices. Since smaller fills would seem to
coincide with reduced enroonmeittsi! impacts, why is the current version of the DBIS not
recommending such limits?" Be. 62 (emphasis added). That is an excellent question, for which
the DEIS provides no adequate answer. The DEIS Executive and Steering Committee!, at the
insistence of OSM, summarily rejected the fmdisgs of the detailed economic studies—
commissioned by the Steering Committee itself and conducted over years of study at a cost of
over half a million dollars - because the results of the study did not support the OSM's "Vision"
of "streamlining" the MTM/VF permitting process. The GEQ regulations warn that« NEPA
document is not to be used to justify t decision already made. 40 C.F.R, f1 S02.2(g). Thus, "an
agency may cot define the objectives of to action to terms «o unreasonably narrow that only one
alternative... would accomplish the goals of the afency's action, and the HS would become a
foreordained formality." Cttfcamt Against Batlingtoa. 938 VM at 196; Mnddsihoot 177 FJd at
812-14. Because the Phase I and 0 economic studies contradicted the decision already made by
the OSM, the studies were summarily rejected- This rejection violates the requirements of
NEPA.
K.
The DEIS Underestimates Cumulative Impacts by Ignoring Valley Fills Prior
to 1985 and Failing to Include All Watershed Impacts
The valley fill inventory in the 0EIS is limited to the yeara 1985 to 2001, even though
states in the study urn. began permitting valley fills under SMCRA in 1981 and 1982. PHS
D11K.-14. The basis for the 1985 cutoff date is that "data from years immediately following
approval of a permanent program in a state shows a high level of permitting activity representing
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a 'repennittfflg' requSreaier* rather ttaa atefel MoBBatton on the trends of peuaittiag new
mines." Id.. Thus, the DBS assumes flat it is not possible to filter out "repermitted" mines prior
to 1985, and therefore had to exclude si mines permitted before 1985. However, the DEIS
filtered out ^epertrftted" mines ate 1985. J4 No reason is givea why the same filtering could
not have been done for repetmitted mines before 1985. As a result of this error, cumulative fill
impacts were underestimated.
In addition, those impacts were underestimated beeause the DEIS defined the watershed
impacted by a valley fill to include only "the aptajd area above each fill toe," DEIS ULK.-38.
This does not include the areas downstream or to other watersheds that are impacted by a valley
fin. 11/12/02 Ttbttott email, Ex. 48. FurteiBore, in measuring those impacts, the DEIS only
considered actual stream loss, and excluded ephemeral stream areas. DEB App. I, pp. iii-iv.
PWS commented that:
P]t is painfully dear that they are looking only at the fill footprint. First, 1 would say that
we must look at much more than the acres of stream logt or buried by fill. Stream loss
and other impacts can extend well upstream and downstream of the footprint of valley
fills asd sometimes even outside me dramags that is directly impacted. This type of trend
analysis does not provide a comprehermve or "final measurement for evaluating impacts
ftom valley fill construction*' and can predict only a fraction of *%e overall impact on the
environment"
-In sammtfy, this "fiE inventory" will grossly underestimate the acreage impacted by
valley fills and does nothing to consider how areas upstream and downstream will be
impacted.
Ex. 48.
L. The DEIS' Summary Dismissal of Blasting Impacts as Insign ificant Is
Erroneous, and Its Suggestion that Citizens File Nuisance Actions Is
Outrageous
The DBIS Suds that "blasting is not considered a "significant issue' and ao actions ate
eonsideredin this HS" to address it DHSILA-6. The DEIS claims that existing regulations are
adequate to protect coalfield residents ftom blasting impacts. M. It states (hat "when blasting
complaints occur, (be complaints are tovestigated and responded to as required" DETS ffl.W-6.
At fte same ttoe, the DEIS admits tat blasting, even within regulatory limits, "will continue to
havs periodic adverse effects on the quality of life of residents living to close proximity to the
rnira sites." M. However, rather flan consider changes to the regulations to eliminste these
adverse effects, the DBS instead advises coalfield residents to file lawsuits to abate the nuisance.
The DEIS is simply wrong that blasting complaints are being adequately investigated and
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resolved. A report by West Virginia's Legislative Auditor fcuad fliat WVDB"s Wasting office
vm$ not doing its job. W&st Virginia Legislative Auditor, Preliminary Perlbtmaaee Rsvi&w,
"The Office of Explosives and Blasting Is Not Meeting All Required Mandates," PE02-36-268
(December 2002). At the time ef the audit, 39 of 202 complaints filed with the blasting office
had not yet been assigned to an inspector. H., p. 13. Fifty-four of flje 202 claims w«e resolved.
M- Bat of the 148 open claijss, only five had beets seM to a claims adtatoistrator for resolution,
the audit found. M- Mote flan one-third of the open claims were more ttta a year old, the audit
said. M» at 14, "Citizens with opes claims could be living in hazardous conditions due to
damage sustained in a blasting incident,'1 the audit concluded. H- at 15-16. "In addition, fin
property values of individuals wtffing fat the resolution of claims could be affected mail ffce
damage of the property is corrected.** M.
Furthermore, tibe DEIS' suggestion that citizens should take their blasting claims to court
rather than try to resolve ten.through the HEP A process or SMCRA is outrageous. OSM's
preliminary report in February 2002 on blasting-related citizen complaints stated:
Tie performance standards in the blasting regulations were established to provide
protection against damage to typical homes th»t sue located ia the cod producing repons.
Both SMCRA and the regulations make it dear flat all private properly must be protected
ftom damage....
The regulations allow the regulatory authority to require aay and all blasts be monitored
using a blasting seismograph which monitors both ground vibrations and airblast. Often
themoratoring of blasts is oalv required M a reaction to citizen complaints,. The survey
also indicates that there is little proactive monitoring by either the regulatory authority or
the operator. In_areas watte flare will be continued Masting activity over a long period of
time and where there is a popalatSon concenteti9n them should also be frequent
monitoring of blasts itt crier to establish a record of the .intensity of ground vibrations md
airblast that is generated by the mine and extends loto the area around surrounding fsic]
the mine.
2/15/02 Robinson email, Ex. 16, Citizen Complaint Study iff HS, pp. 5-6 (etnphisis added).
Thus, here is a practical, sensible measure for reducing blasting complaints by monitoring their
magnitude and frequency. This information should then be made publicly available to coalfield
residents. Monitoring and disclosure can sarve the valuable Sanction of exposing excessive
blasting and thereby create an incentive for companies to reduce these impacts, in the same way
that public disclosure of the use of hazardous chemicals raider {he Emergency Planning and
Community RlghMo-KaowAet, 42 U.S.C.§| 11001 ef Kf.,Bis reduced use of {hose chemicals.
It is unjust to force citizens to go to court to obtain a judicial remedy when administrative
remedies are already available that could achieve toe same goal of reducing nuisance impacts.
M.
The DEIS Underestimates Impacts on the Cerulean Warbler by Ignoring A
Recent Study
3-5
In January 2003,4e FWS notified the Steering Committee ftat there was » new
December 2002 pear-reviewed study by Wetlctad aod Wood on cerulean warblers:
The issue of MTM/VF effects on cerulean warbler habitat is more important now than it
appeared to be at the time of earlier drafts of the BIS. The Southern Environmental Law
Center has petitioned the Ksh and Wildlife Service to list the cerulean warbler as
threatened and to designate critical habitat The Service's 90-dty finding on the petition
. listed raountftsitop mining as one of the threats to this species, and noted that
"unfortunately, the area of the country with the highest density of ceruteans is also in a
coal-mtotogregioa where mounttlatop removal mining is practiced."
1/22/03 Tibbott e-mail, Ex. 63. fVS sttted that "the methods used in the new study allow a
more accurate and precise estimate of bird abundance than were used in the EIS study, and
facilitate erahattrig the Mtotionship between bird
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the EIS tailsto disclose or analyze such opinions. ...
Accordingly, the Cowrt concludes that fhe... EIS violates NEPA by failing to disclose and
analyze scientific opinion in support of and in opposition to the conclusion that the...
project will reduce fee intensity of future wildfires in the project area...
Plaintiffs also assert that the EIS Jails to disclose and analyze scientific opinion that is
directly opposed to post-fire logging.... such as the Beschte report... Although the Forest
Service is not required to adopt the recommendations contained within the Beschta report
and may rely on other expert opinion instead, the... BIS fails, "not because experts
disagree, but because the F0S lacks reasoned discussion of major scientific objections."
See Moselet. 798 F.Supp. 1473,1482.
Accordingly, the Court concludes that theHS violates NEPA by fMling to disclose
scientific opinion that opposes post-fire logging.
199 F. Supp,2egulafory programs under SMCRA
would not jeopardize endangered species if those ptopsms were "properly implemented." DEIS,
p. rV.D-5. However, the DBS Mis to analy* whether, Sn fact, tboss program* have been
properly implemented. Indeed, preptrers of the DHS deleted the following passage from the
final document
fa reviewing the field-level coordinationj consultation, and reporting procedures carried
out by SMCRA and CWA regulatory authorities fa anthorioag mountaiatop mining
activities in Appalschia, the agencies have identMed a nuraber of the procedures
specified in SMCRA regulation* and the 1096 programmatic biological opinion that have
not been followed. Of particular concern is the inconsistent interpretation of the
requirements of the biological opinion by State regulatory agencies and some OSM
otBces. For example, kt many cases these State agencies have not provided sufficient
site-specific information to enable timely FWS review of project proposals, and they are
often unwilling to incorporate FWS recommendations for the protection of listed and
proposed species, partieaiarlywhen those recommendations pertain to indirect or
cumulative effects. In many instances, explanations and concurrence procedures have
also not occurred. Consequently, ths level of protection for listed and proposed species
envisioned ifl the programmatic biological opinion, or flat -would have been obtained
through project by project section 7 consultations with the federal regulatory authority,
does not appear to have been achieved.
4/21/03 Rider email, Ex. 71, attached file: chivrewrite.wpd. Thus, ftis passage indicates that the
1996 biological opinion is not wotting as jnttaded, and. therefore that the non-jeopardy of
8-1-2
protected species is not being assured. No reason is given for delating this passage. At a
minimum, such analysis of fix adequacy of the implementation of the 1996 biological opinion
must appear in the SB. Otherwise, the BIS is misrepresenting the actual level of protection
being provided to protected species.
O. The DEIS' Discussion of Antidegriidation Requirements Is Erroneous
The DEIS' discussion of antidfigradatiMrecrdiwMirts is erroneous in two respects. First,
(he DEIS fails to acknowledge flat Tier 2 antidegradatlOB reviews must be performed for each
individual authorization pursuant to aNWP 21 general permit QVEC v. Horiako. 279 F.
Supp.2d 732,757-62 (S.D. W.Va 2003). This means that each valley fill must undergo
antidegradation review prior to issuance of a 404 individual permit or a N WP 21 authorization.
The DEE fails to acknowledge this requirement DEIS D.C-3S, 42.
Second, the DEIS rails to acknowledge that valley fills cause sigfiificant degradation of
downstream waters. Those waters comprise two segments. Tbe fest segment is between the toe
of the valley fill aad the outlet of the downstream sedimentation basin. Valley fills cause a
violation of water quality standards in this segment This segment contAis high levels of
sediment from valley fill ronoft and is being used illegally for in-stream treatment. The stream
Sowing ftofa the toe of the valley fill is a conduit for pollution to the sedimentation basin, which
is constructed in the stream. The Clean Water Act "was not intended to license dischargers to
freely use waters of the United States as waste treatment systems.,." 45 Fed. Reg. 33298 (May
19,1980). In-stream impoundments remain waters of the United States. 40 C.F.R. § 122.2;
West Virginia Coal Affl'n V. Reillv. 728 F. Supp. 1276,1290 (S.D. W.Va. 1989), arTd. 932 F2d
964 (4* Cir. 1991).
The second sejjjneat is downstream from Use oatlet of the setBmentafioa basin. As we
have shown tbova, this Mgffiatt will fflaly contain high levels of selenium that viotaM water
quality standard*. As Brian Evans in the FWS' Southwest Virginia Field Office stated:
Even if EPA restricts consideration of impaete to the reach of stwam below the filled
reach, studies described in section HLD show ttat fills contribute to significant
degradation to the overall ekamieal, physical, tad biological integrity of adjacent waters.
For example, below fills the ambient water quality criterion for selenium concentration is
exceeded consistently, aatoral flow regimes are altered, and rnactdtnvertehrate diversity is
depressed.
1/2/03 Tibbott e-mail, Ex. 57, p. 2).
TMs violates the letter and spirit of the dean Water Act Section 301 (bXl)P) requires
compliance with state water quality standards, totaling intMegradatiaa requirements. 33
U.S.C. 11311(bXlMB). The Senate Report stated that "this legislation would clearly establish
that no one has ie right to pollute and that pollution contjaaes because of technolojpeal limits,
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not because of any inherent rights to use the nation's waterways for the purpose of disposing of
wastes." S. Rep, No. 414,92"*Cong,, l0Ses*,p.42(1071). "The me of any river, take, steam
or ocean as a waste treatment system is unacceptable." 14*7. This section "simply mean[s]
that streams and rivers are no longer to be considered part of the waste treatment process." 11S
Cong. Rec. 33693-94 (1972) (remarks of Sen. Muskie).
P. The DEIS Contains Several Serious Misstatemente af Fact.
First, te DEIS incorrectly states that "[wjatershed impacts directly attributable to mining
and fills could not be distinguished fi»m impacts due to other types of human activity," (DEIS
n.C-74),3' and that "the EIS studies did not conclude that impacts documented below MTM/VF
operations cause or contribute to sjpdficaut degradation of waters of the U.S." DEIS E.D-9.
However, as we have shown above, excess selenium was only found downstream from valley
fills, and selenium causes sigiificant degradation. Further, as FWS has observed:
[SJtudies described in section HLD show that fills contribute to significant degradation to
the overall chemical, physical, and biological integrity of adjacent waters. For example,
below fills the ambient water quality criterion for selenium conceatetion is exceeded
consistently, natural flow regimes are altered, and rnacroinvertebrate diversity is
1/02/03 Tibtatt e-mail, Ex. 57, p. 2.
Second, the DEIS wrongly assumes that stream burftl by valley fills "can be successfully
offset by a compreheasive »Mgation proposal" BBIS Et.C-23. However, such an assumption is
directly contradicted by the DBIS's own findings regarding the history of in-kind mitigation
attempts and the state of the existing technology. That is, functioning headwater streams have
never been successfully created in MTM/W areas, tnd the technology to create them does not
exist. See, «.g., DEIS n.C-50, HLD-18 to 20, IV.B-9. Farther, the proposed BMP manual's
suggested reforestation practices are voluntary and unenforceable, and the DEIS points to nothing
to suggest tiat the manual's existence will increase forestry PMLUs. See, eg., DEIS IH.B-9,11,
and IS.
Third, the DEIS incorrectly claims that 68% of mountaintop mining sites in We*
Virginia "were to be reclaimed to forestry-related land uses [Appendix O; (Yuill, 2002)]." DEIS
IV.C-5. In fact, Yuill reported the following percentages: fijrest/wildlife-36%; commercial
woodland-5%; woodland-27%. DEIS, App. O, Yuill Report, p. 13. The "forest/wildlife"
category, the largest of the three, includes the notorious "fish and wildlife habitat" land use. M.,
p. 34. That land we usually consists of grassland. As defined by OSM, it does not require any
forest component at all. 30 C.F.R. § 701.5 (definition of land use," subsection (h)).
"See also, DEIS IV.B-5: "...nor could data differentiate impacts of mining, fills or other
human activity in & watershed."
70
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furthermore, the BBS ignores its own prior technical findings fliat "[IJsrge-seale surface coal
nuniae will result is fl» movement of htge partkws of o»e of the most heavily forested tnsas of
the country, also considered one of the most biologically diverse, to grassland habitat." Ex. 6, p.
S. This, by haaping non-forestry uses with true forestry uses, the DEIS grossly overestimates
the actual forestry uses.
Fomth, the DEIS incorrectly asserts that "mountaintop miatag may not have a significant
impact on the biologie integrity of the terrestrial ecosystems,"* and that ample forest will remain
to maintain Mgh biological index scores for wildlife. DEIS IV.D-4. However, the DEIS states
that "[h]abitat changes will occur... [involving] a shift from a forest dominated landscape to a
fragmented landscape with considerably more mining lands and eventually grassland habitat,"
(DEIS App. 1, p. 93), and this "change to these habitats could put a number of species in peri"
H- at v. For example, "forest loss in the West Virginia portion of the study area has the potential
of directly impacting »s many as 244 vertebrate wildlife species." M- at 86. "The potential
adverse impact of loss of habitat for [three forest interior bird species - Louisiana Waterthruih,
Worm-eating Warbler, and Cerulean Warbler] has extreme ecoAogteal sigMUcance in that
habitats required by these species for successfifl breeding are lanited in the eastern United
States." M. at 90 (emphasis added). "Loss of these species has more ecological importance than
providing habitat for grasstend species considered rare tn flie sttte because it suggests possible
fiaure endangearuait of some fiaest interior species as opposed to the potential pin of some
disjunct grassland species populations.** M- at 91. Farther, w[s]alamanders are an important
ecological component in the mesic forests of the study area... [and] are aitirnately associated with
forest ecosystemsy acting as predators of small invertebrates and serving as prey to larger
predators." Id. (citations omitted). "AssmBing that 80% of the salamanders KB lost in Ae
projected forest impact areas, approximately 1,232,972,280 have toe potential of being adversely
impacted"* M. at 92-93 (citation omitted). Further,
Plhis BIS describes biotic interactions common inheadwater streams and various
vertebrate species including birds, salamanders (including newts), and mammals which
require interactions with the aquatic environment in order to maintain their life cycle.
Biotic communities have been demonstrated to occur in the uppermost reaches of
watersheds, even in ephemeral steam rones which flow only as a result of rafa or snow
melt Under all alternatives, the biota in these reaches ire at risk fiom valley fills. Filling
woujd eliminate all aquatic and aquatic-dependant interaction* that would formerly have
oceurad in the filled area... (T]he permanent nature of filling would suggest that
MTM/VF impact* to biotic interaction! in headwater steam systems, including
interactions linking terrestrial biota to the aquatic environment, may constitute a[n]
irreversible impact to this system in the study area.
DEIS IV.D-4 - 5 (emphasis added).
Fiffc, the DEIS incorrectly states that "mined sites may take as long as 120 years or more
to attain nature forest conditions." DEIS App. I, p. 92. However, Cindy Tibbot (USFWS) has
71
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staled, and WilBarn HofBnan (USEPA) has agreed:
{R]e-establjshing native hardwood fiwssts on reelitaed taines is Mill experimental. We
don't know what the long-term success will r>e. Even if hardwood tomato can be re-
established, it should fee intuitively obvious that they'll.!* a drastically different
ecosystem from nte-miaing forest! .far eefarationa. if not thnmnmA of yam,..
Ex. S (emphases added). The DEIS itself similarly observes: "fTlhe permanent nature of filling
would suggest thai MTM/VF impacts to biotie interactions to headwater stream systems... may
constitute a[n] in-evmibte. impact to Ms system in the study area." DHS JVJD-5 (emphasis
added). See also, Ex. 6, p. 6: "Unless reclamation prtcfees are changed drastically, st can be
assumed that this forest to grassland conversion is, for all practical purposes, tSXUUiSt- Even if
reclamation practices ate clanged, we mast still consider the teoo very of a functional mesophytic
forest ecosystem as a tong-tena eooioptal experiment with uncertain results." (emphasis added).
Finally, the DEIS incorrectly describes West Vitgtok's AOC+ protocol as a "fill
minimization analysis." DEIS IV.B-7. As OSM*s Charleston Field Office explained, this is
The Draft EIS tais-cteacterizes the AOC+ document as a fill mMmizBikm document
when in fict it is an opthnizan'on document that simply provides a process to determine
the volume of excess spoil and calculates the size of flie disposal area for the excess spoil.
It creates a 'model' rtttoesite, but the operator is not bound by the constraints of file model
when completing th© final mine plait The only constraint is that the amount of material
backfilled must equal the amount determined not to be excess by the AOCM- process. It
does loot limit the size or configuration of any particular fill.
12/12/02 Morgan email, Ex. 53. The Director of WVBEPs Division of Mining and Reclamation
criticized the DEIS became it "contains no guidance sfor detamjtoing whether fill sizes have been
minimized,* and contorted that the AGO- formal* used by that office is only designed to
achieve fill opttorization, Hot fill miBimizatton. 1/13/03 Crum letter, Bx. 61.
III. The Corps Is Illegally Taking Actions Before the Final SIS Is Completed
A. The Corps Has Made Commitments to Actions that Prejudice the Results of
the EIS
NEPA requires that, until •* 8.
NEPA requires that proposals "which are related to each other closely enough to be, in
effect, a single course of action shall be evaluated in a single impact statement." 40 C.F.R. §
1502.4(a). A NEPA document is supposed to analyze the impacts of "(ejonnected actions,"
including actions that are "interdependent parts of a larger action and depend on the larger actioa
for their juntifiottioa" Id. § 1508.2S(aXl)- In flu's instance, the larger action is federal regulation
of mountaintop mining. Restrictions oa stream filling are an "interdependent part" of that larger
action and therefore rrtust be analyzed together in one comprehensive EIS. In violation of this
requirement, the Corps is planning on analyzing fill thresholds completely outside of the NEPA
process.
4-2
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Conclusion
Pot these reasons, the DEIS frils to meet the legd requirements ofNBPA and other
federal statutes and must be corrected to address the deficiencies noted above and reissued fat
public comment.
4-2
Ltot ef Writes to Common ts by WVHC and OVEC on MTM/VF DEIS
No,
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1990
1/97
t»l
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ws/oi
lo/i «n
10/19/01
IS/02
lfi2«Z
1/3MB
mm
2/13/82
2/13/02
2/15/02
2/27/02
3/1/02
Agaiey
NPS
CEQ
EPA
HPA
FWS
BIS Steering
Team
0O1
FWS
EPA
EPA
EPA
EPA
BPA
BPA
Er-A
OSM
BPA
EPA
Description
Ftaal IIS, Yutas-Ctetky Riv«B Ndfloutl Prwerw, Excetpt
Coasideddg Oasulittv* Bflhcn Uads HEPA, Bxcsjrt
Pwlmtoaty Dnft, Moumthilap Mtatog/VmUqi Fill EIS, Ewarpis
Bmail fitiiE B^ect^t Ham^^" re: Did the status reports go out yet? wltb
Attat^mKBt: Meoatalatap Mltiia^Valley HU Statas topoti, Executive
Snaanuy, lamtsy 16, 2001
Email from CiiuSy Tibbolt re: MfM/VF EIS fiaumlsiive im|^ct assessiasW
Problems Identified/CGKllimed/fi^tt'ed l>y Te^b&lceil Smdles
Letter from 1, Steven Otilas to CEQ, OMB, EPA, COE re: Moaataintop
Mlniag/Valley Fills Issues
Email torn Dave Densmote rs: ^S Direction
Effisfl torn William Haffitw re: MTM/W Btieflng & OSM Vitioa, with
Attachment: Executive Summary, A Plan to Address Mouiitaintop Mining
Is$Me3 in App£l2j&&
Bmatt from WflUaat Hofeism rffi Alternative Framework
Email 6«B William Hoffla«a TO Mt Top corf call on 1/23/02
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Email from WilBam Hoffisas re: Ofie Pager tbr Whitsass/Noflea Meeting,
wMl Attachment- MouataiBSOp Mtemg/ValleyFiil Bsviroanaentai Impact
Statement
Enatt tea WBIamBoftaa K: OSM Action Descriptions
Email from Cisdy Tiebott re; Fsrpose & nsed/alEeraatives wrfte-t^>s, with
AttaehtMse I, Purpose snd Need fer Action and IV. Ateraitives
Email from Gary Brvastre: PRAFT Report
Email too WMHum Hofflnan «: Update, with Attachment: MTM/VF Status,
April 15, 2002
MoHutaintop Mining/ Valley Fill Kraft BIS, Aprfi 2002, Excerpt
EimB &om Mike Robinson re: Senior !&eeuHve CoisfereBce CaB-3ptn
Tuesday &21
Baal fiooi Mte Robinsoa re: Principals meeting
Fax from Steve QpBos re: 5/22/92 orelarence call
Fax from John Cradm to Steve Griles re: 1998 sctlbmcnl agrtcmcnt
Emdl S@m Mike K^toson re: E1S S&edag Cdfmtiittee ConfarMce CaU:
Todsy (S/10) 1 P.IH-, wiflj A«»<*i»eat: EPA !wi«- MTM/VF mS
^mfi fixm Dave DeHsmore re: FWS BIS ISSUES
Email &@m Bavid Rider fe: BPA Bxpectaiims
EinaiJ from William Hoffinsu re: EPA EspMaiions/Dispated Acf.o-.u:
Email StMi Mike Rd9l^e£)& re: A^mda and H^r^aut fer 6/1 8 SBS Issue, wi&
Attacteeot: Moimta^top MMo^Vsiey FIE BnvlronmeMal &tp3Ct SMtjsmeiit,
Semor Bxeciitlve Issue Resolution Meetkg, Interior Smit& Buildmg Ro^m
332, IUM IS, 2002, Proposed Agenda; Hffij^oatfisr SBS/Stseffcg Cf^rfilt^e
isstte Eesolutioa Meeli^ig, Rs^sh oa Teiaeogfefe&ce Meeting Decis&ms, M^
21,2002
&ma& &om Willam H3fl}i&n £n: out cf oMce, witli Attachment: Proposed BIS
Alternative Framework
Bmall irom Mike Esbiuscm re: Mockmp of Proposed sew AiterMtivg
l;mmc\vork. with Atta:hrriCrit: Moontamtop Mining/Valley Fill E1S Altemali vt
IFramawsrk (Jma 26, 2002 v.)
Email Ire® Cia^ tlblsott re: Revised steaativfis &amew)rk, wife
Attachment: Satlosale (br FWS "Altsriiatfve 4s (i.e., why ite is sot aa
aBer»tive Hat can't b« ehosea); Dnfi - MTM/Vatoy Mil EIS AItera«tiv«
Email from Mike Robinson re: Draft Proposed EIS Alternative
Fnaiework-TAquBte Issues; SBS taae, wiA Att«chm«t MTM/VaB«y BH
HS AlBrnatives (Atipra 13, 2002 version)
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Etna! tea Gregory Peck re: Executive ConffiKttee Discussion, with
ABKhmraE Altemstives' MM* fcr Draft MTM/VP H3S
Email from Dav» Oeasmore re: Bxplasation for Proposed Modification of
Alternative *1 , with Attachment: Background on FWS Proposed Modtteatiem
to Alternative 1
Imail &0m William Hoitemre: Steering Committee Meeti^s/ Conference
Call Sticaimiiea, with At^tchmetit: September $, 2002 Steering Committee
Conference C»8
Email from Mike Robinson re: Executive Conference Call Ager.da-9'23/G2. 9-
10 am, wih Attaimut MTM/VF HS Bxesotiw Meeting Agenda,
September 23, 2002 Coafeeiioe CaH
&Mil &om Dave Dessmsra re: FWS Coitimefits && Oapter IV, with
Atteetaeac FWS CosBMffi on 9/20/02 Daft of Chapter IV {AiterB«iv«)
Email &oia Iotas Forrea re: Remiao^r. ComnieEts on Di^ii ChE^te EV Rewrite
Up Bee Today, *lth Attachment: John Forrea's eommests on the Alternatives
Swton
Bmail §om Gregory Peck re: Dra& Exec. Comm. StB^mary, wltfi Attachment
DlscuMioa teamaty, MTM/VF HS Executive Coamittee, Ootooer 1 6, 2002 -
Slupardstown, WV
Eniail fiom Cindy Tibbott ra: AltorastivBi Format, \rithAttachmsat:
Alternatives discussloai
Email frorn Mik; Kobinsoc re: Aterr.ativcs Fc;ri!2t
BnaB from D»ld Wder »: MTM study
Bmail 4o» Cindy Tittott re: OSM's daft «n flE toveotory
Email ftom CiBdy Tibbott re: Ch^iters 1 &. H comments, with Attachment:
Keview of Chapters I and H-Ckdy Tifcbott
Bmatt foam Cindy Til^bott re: Sogpsted edits/editions ^r aquatic study sheet,
with Attachment: ComsBiits on Aip«8c Study QtaBBcaion Wrhe-Of^-CiWy
Tibbott
BataH ftom John Forren re: More on % Aquatic Sites
Email SwaK^kyHod^dss re: MTMtVf OHS Conference Call Tinisday
11/219-11 ain, wttfe Attetoest: Agenda, Mottstaktop Mitting/VaUey Fill
DEIS Executive CoaaaMee &. Steering Committee Confereaee Can
B«B«l from liows Morfaa * Co«m«»ts on Draft BIS
Letter from Lee Barclay re: Updated threatened tad endangered species
kfermasion !br the Kentucky aad Tetraessee portion of the Sou&era
Appalachian coal fields
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EPA
EPA
OSM
Einsil tern JoJm Potm re: ComcMsts on DltAFT HS for MTM/VF, witk
AtehmffiBfc Comments m the Draft E1S tat MTM/VP Coal MMiag (Dec
2002) ton ESt>, 0EP, Wh«Bng Stuff 12/2WH
Itnail fern K^ George RK Cc^imcats mi DRAFT BIS Sot MTM/W
Email from Cfo^y Tlbfeott ra: Comments feoas other FWS offices oa dra^ EIS
Email ttoio lohn Foirea »: BPA-OQC HEP* commeBtj OB MIWF EIS,
with Attachmmt: EPA OOC KEPA Commeats m MTM/VF EIS
fimnB ftorn Stew Nra»g«bo«oto: MTM lepl hsuej, vAA AttaduMnC OOC
water lor aKee ammtate on nnjuatttaJap Mlnii^ EJS 12/2S/02
Email from Mike Eobissaa ra: H&A ecoaomic am^sls, with Attachment:
Letter report from Mcs^n Wra-ldwide Coost^taats, l&c.
Lett^ &om M^feew Cwm m: MTM DEIS
Mo»tatatq) MiaiagrtMtey Ktt DBS, Badcgnjutid Intematioo fcr
Commimic^loss T^m
Emafi ftom Chdy Tifctott «: Hew Petra Wood Study
Emttt from Cbiy TibW re: New Pete Wood Study, with Asatawat:
Cerulean Warbler (Dcndroica Cenllea) M icrohabitat and Laiicape Level
HsbiM Ommcterlstlos h Sosten W«st Vlrglals k EelM!oa to Mbtmealntop
MhiBg/VimQ' Fflh, Fislit ftojea Report, Dscanber 2092, Absttia
Email torn Kafcy Hedgkiss re: MTM IIS Exeoflve Comratlee Call Tuwiay,
1Q*; 9-1 1 am:, wift Attacteent; MTM/VF EB Bteeative Committee Agenda
Email ftw Dwe ttensoow re: Re^i^Kned NWP 21 Setene fiir Alternative
2, ^ih Attachment: Proposal S» Miaiiaal SfBcts Threshold te NWP 2 1
Email faun CWy Bbbon IK Mts, w$lk Attachment: leserti fcr Chapters IH
asd IV (isftsrmatioQ on tiie aew stody &om Weskland aad Wood OH eendeaa
warblers)
Email torn Ka% HoeljWs! i« MTM ITS Executiw Committee Call, Frldsy,
. 3/14: 9-iO am, wMiAttxsteiwt: Email «: MTM Way Alttsel
Momtaintop Safteo Coal Mhtag Master SMtefif
Etaafl &om Olip Smith re: Efivised lai> oa Hew PCHs and Eafijrcement, wMl
Ataekmeaf Mffltatatotcp Surftce Coal Mining State aid W»y Forward, April
17,2003
Email S«m DavH Rider «: tt 14 edits, with AtaeteeBt DHS, OL IV J,
Thtateaed md BiiaageMd Species, pp. IV J-l to 1VJ-2
Bool Son Joto Porrea »: Briefing Outline, wit Attachment: Brieftg,
M0ua!8iBto8 Mlfiiflg/Vallsy Filte (MTM/VF) Ihaft Pro^ainmattc
litviroi^iei]tal luspact Stat^nent
Stnail from Mitoe Robinson re: Hostile Q&A, with Asacbmem: Uatitled
74
75
5-«03
12O2/03
COB
OSM
Briefing Brochure: Surface Cca! Mffllsg~~T1ie way forward
Letter to Jfea Heefeer re: FOIA request, wife Enclosure B; wMiheM documents
MTMA/F Draft PEIS Public Comment Compendium
A-347
Section A - Organizations
-------
_» — TO
num.'1 '.lit
y< ji/'i -i i'fk
Impact statei i flil-rrTm i -'
Wlmpactsofmilf®501;,
volumg-1 •••' --•—
EKHDHTI
KNAL
",-,-«, "" - '*"
This Fina; Environmental Impaft'Siaiemeia'IFEiS) evaluates a range of alternatives for managing .
mining activity, analy/jng cumulkivijimpBCIs, aid 'mitigating enviroBmenal impacts in Yukon-
Qariey Riven National Preserve (scetocalion of Ytikan-Cnalcy Rivets National Preserve. Alaska
map). Four alternatives, Including a proposed Minn, have been evaluated:
alternative A (post-1983 status quoAto action) - review and analyze mining proposals wing
3 qualitative cvaiuiiicn of cumulative tapaos
alternative B - review and-iinalyze mining proposals using a quantitative
cumulative impacts and rc'source protection goals
aitenatlvs C -'review and'snalyM ir.ining proposals using a quamioiive --valuaiion of
cumulative impacts and resource protection goals with the addition nf rcstrk^ons for mining
claims patented in the future and s strengthened mining claim aa)uis.,:..n program
alicmative D (proposcci action) - scqulsiiion of all patented aid valid tinpaimted mining
daims
On July 22, 1985, the U-S. District Court for trie District of Alaska enjoined the National Park
Service (NFS) from approving pians of operations far miring in three rational park system umis.
The court order resulted from Btiga^oa IHed by lite Natthern Ala^ca Environmental Center, the
Alaska Chapter of tile Sierra Club, and the Dcnaii Citizens Council (CM Case JSS-009). The court
order directed the NFS to emgre fall compUancc with the Natiorai Environmental Policy Act (!*L
91-190; NEPA) and Ihe NPS regulations for mining *nd mltUng claims (36 CFR Subpart 9A) before
taking setions to approve new mining operations ill park uMts. The court also retired Uie-NaUonal
Park Service to prepare an adequate environmental impact staiemcnts covering the ctitnulittive
impjcu of rnuHipIc mlntojr operations in Yukon-Charley Riven National Preserve. Ori Deeemher 4.
1985, this order was amended lo i&gufce the prepaiaiion of SR additional cnvironmcrua! impact
staiament fbr mintng in Denali Kaliorkl Fark and Preserve. A final judgment and injunction was
totted on Marci! 3, 19«1
TMs r^HS was prepared ^n te^xmse to the couft ocdcr. h addresses tite cumulaUve impact}! of
mining associated with managing mining activity, analyzing cumulative impacts, and mitigating
environmental impacts in the Woodchoppcr/CoaVSam Creek grid Fcanh of July Creek study arcs
of Yukon-Cnartcy Rivers Natiotul Preserve. This action coincides with lite need to evaluate the
minerals management prosr&ns lit !ta Yli!caa>Cltarlcy Kiveis, WrangeU-SL Elias, and Dcnaii NFS
unte to provide for adequate resource management and prelection, and is one element of a mint-nils
mamscmcra plan.
In developing this FEIS, numerous Issues were idenlificd through scoping for analysis. Some of
these issues include hydrologic cliangcs, water quality, impacts on wetlands, long-term aw^hon-
tcrm impacts, nonmining uses of palcr.icd ciiinia, reclamation, fish and wildlife habitat, riparian
habitat, threatened and endangered species, criteria for cnmulatlve elTccL« analysis, impaci thresholds,
tnagniftgde of impacts, ect^iot&ic impacts, access, impa&s of access, impacts on subsistence, heavy
tnctals contamination, abandoned mine lands, intpucts on scenic values, adminisMitivc costs for
mining claims, acquisition costs of mining properties, and wilderness.
MTM/VF Draft PEIS Public Comment Compendium
A-348
Section A - Organizations
-------
For purposes of analysis, a probable mineral development scenario was developed mid applied for
each alternative to project environmental iii^icts, file &c tlu*
Park Service. , ,
L'luicr stUematlvc A (post-19S5 siatus quo/no aclion), the Naiional Park Scr\'icc would rt-vieu
armly/c mining plains oroperaiioru subrniucd for proposed activity cm p;ucmct! and valid u
mining cbim;, according 10 applicibic regulations including 36 OFR Sub^mn 9A and tlw
provisions of 43 OFR Pan 36.- The National Paik Service would review mdtvidua! p!.im of
opcrauorLS on a case -by -case basis End prepare envirorroemai documcnis as nrqui n-d by Die N.utoiul
Envtmnmcnm] Policy Act fPL 91-190). Dcicmiinattans of sitc-spccinc and cumyimive minmu
impacts would be made quaJUaiivdy. -
Vlndcr ;i! ic motive B, the National Paik Service would review iind gnaly^* pmfx>s-cJ inmiii^ I'lans
of opcraiions according m spplicabia regulations. The National Fart Service wituld rvvicw pluitx m
ope nil ions on a comprehensive basis and prepare environmental ddcumeiUs -is nrtiMirctl by Uic
Niamnal Environmental Policy Act. Target"* resources wouM he itlcniilletl sod u^t-d a> UK* ioca!
point for i-valtiating the effccis of pmp0$cd mining activity. Resettle pmteciicn goals would he
csiuhlishcci where adequate resource infcnr.auon is available and used to ev.iiu;H.- cuniul;iitve
impacts. Resource proiection goals would be eslafciisbttJ fcr the following larjiei fL'stsurces1 aniic
grayling liitbiuti and riparian wil4!If9 hafsitst. Resomte protecrion goitls would he unK pan nl ihc
information used by the National B&ric Service In determining the uppmprbte action on » paiptvset!
mining plan of operations. If the resource protection goal for any tarfci resoyive caittuie Ix- me:
because of ihe potential effects of a proposed mining operation, the opcraior would have Uic t^timn
to perform mitigation to reduce the magntetle 0! tlie effect within the rc^iurce- prntt-eiitm gn»t or
otherwliw proied rcsonitc values, "a areas where resource protection goals have not K*t'» met
because of past ininiiwg activity, die operator would hove the option tc. perform miti}-;«it>ii ilia! would
avoid l\inher effects on specific resources or reduce rc^ouftx impacts, Remtirec prowcittm «t*»i$
would ms nc cst^>lished M this lime Jbr wclhnds, water quality, peregrine f^ecm, visunl i|b;i!ii>,
cultural resources, subsistence, wilderness values, recreation, local ecoitomy, ami pak-anii^oijk'jil
resources, in casss *tec il is not possible to approve a mining plan of rtperatiiws m oilier
circufusiam^s would not justify approval, the National Patk Service would pursue acqui^tUoii »f the
mining claims.
Aiiemative C is identical to alternative B wi^i two exct*ptions. As for alternative H, the National
Puff. Service would mvicw and analyze proposed mining plans of operations act-ordlng u> jippik-abte
regulations, "Hie NatSsmdil Park Service would review plans 61* operations on a CvunpreheEtsive tia^U
md prepare cnviromnentai doctimffiEas as required by the Natlana! Envimnmcnta! Policy Aci,
'Target*1 resaiirces would be identlfistt aitd used as- the focal point for evaluating UK* effect?. »i
proposed mining activity. Rcsoufcc protection goals would he established where adequa^ r^mircc
infnmiaiion is available and used to evaluate cumulative impacts. Resource pmicaion gtiuls would
be esublished for the following target resources: arctic grayling habitat and rtpsriai? wUdliic habitat.
I^Kiurcc protection goitfs would be f$&y part ot tf«s informalion used by Ute National Park Service
in determining the appmpii&te actl
-------
F-NVIRONMENTM. (
Alternative A
hahlBl. Additional impact! c
sediment transport, ard tew
Future plaxr mining and i
would discharge dredged i
section 404 of the Clean 1
UK section 404 pcmil ( '
ihabitil could be caused by increased erosion,
" i of Bw fscUttics.
foS"-
) both patented and unpatcffied claims which
_-._ —....Jlers of the U.S. would require a permit under
lr9i-SOO)..Tha U.S. Army Corps of Engineers administers
Possible nonmtnteg impact* ihsidfihc study arcal Include she coMsmmim at visitor use along
mining access roads and mill.. Because of Ihc luck of other overland travel reutes. vbton an: likely
to use mining roads, nan of which Mow area Item the Yukon River inland. Additional impact*
on water ijuality and fish tuBm from this type of u«c woaW-bc minimal.
Water Quality
Woodchopper/Owl/SiuB 'Cw3rStiiij> Area, Unite shenulivc A, land cover disuirhtnrr in the
siudy iae» from the Upse phecr mining opeftiiaiw prcdicicd by the mineral development saiuimi
would total 70 acres wiitiin UB Strom and riparian corridor. The dime operation* would affect
surface water quality la a tool of 31,3 streams mite. Impacts on ground and MjrU'c wuu-r ciniM
reduce the productive capjM'.iUa of aquatic and tcrrearial organisms tn the su»!\ anst
* *'J^
Woodchoppcr Creek - Placer muling ruw affected water quality in 12 I mite u> stream
from Die upper end of the disturbed ircas downsusam to the Yukon River. l)k«,ivoil
oxygen, pit. alkalinity, hsrdncss, sad IBM levels (except rate) at «aet within jrul
do«ww!»n of piwiBttW mined arcis as wWtln botn Uie I3>A t WSfti cnwtia lor pmtntun
of aquMic lite and ins drinxins wiier suimlsrjs for the atx of A'.istj. '/ji;c ti. r.uturalK
high in WoodclKJppcr Creek. Pclroteum products and uihcr ha/.ardouj rtnlenali UK imwiu
tn the wiicrshcd. However, no mci»irab!c evidence of -tn-ant cmv.amlmiionjioia thevc
nutoiWi was round during the 1986 waicr qui'iiy and lishcry surt-cy. I'asi yurua- diiturhrn;
xtiviiics sdjaccra to Woodchoppcr, Mincol, and Iron creeks have accelerated i-ln-am ml
nparian comdor erosion and tcdimcnt tnaispcn.
The sinele placer mining operation predicted by the mineral develormient sa-nani> wnild
impaa surface waicr quality In upproKimately 11..1 miles of stream. Future mining uituld
potentially modify 5.8 mllei of strcan ehanel end txmk within die claim* area nl dKturh
30 aoe> of soil and vegetation idjaccnt to the stream. Surface disturbing aciiviik". wttuu
aftcct water quality within file clainu.srca mi downstream to the Yukon River.
Coal Cr«k . Placer mSng hai affected water quiliiy in 8.7 miles of siwam tram the
upper end of the dUturbed. ircit do»Tutretm 10 the Yukon River. Dissolved oxygen, nil.
alkalinity, hardness, andictal levcln (e«cpt tint! of water within anil dnv.iwro.un ol
previously mined snuj'trewliMn both the EPA (1986) criteria for pitiledisn ol atjuUK lite
and the Jrinktoj water
C-rcelc. Petroleum [ "'
contomitutcd with
Creek. Howver, four
dciccuble
During the 1986
for the MM Of Alanka. anc it naiuralU hipli in Ctu!
ether hazardous maicrials are prcwm in the \uicr\jjcil Soil
' within }JiO (feet Of Beaton Pup. a small intumtf) «i CM!
wsicr sjtmpics coltcc'.ed ami salted in Mt> sttumed nn
nxovenble rccroiry at the (XOCX&ng/t dctn'tMe limit
_. .ey, no tncasurab'e evidence of stieam ointaninaiini I mm
found. But rerfKC disturbance adjacent to Ciia! Cm-v h»
input front nonpoii'.t runoff durtnv utmn jnJ lupi'.
'
Wine mloflg «
Creek., The single
would impact sarfsce
future mining would
within the claims' I
Surface (Jisturbinj
dowaarean to the
Sara and Ben
have been
93 railci of tlreira
River. Dissolved
within and
Zinc It nawraay
maleriols are
disturbance adjacent to
associated mend Inut frosn
'At CONSEQUENCES
Aluraative A
llrolicd u mining claims on Boulder
the mineral development scenario
[y 6-2 miles of slreara. In Boulder Creek,
than 0,8 miles of sueam ctennel n) bank
Of toil end vegetalion adjacent to the nmant,
quality within the claims area and
.. t mining activities In Ihc Sum Creek drainage
CfKi. Placer mining has affected water quality in
rend of the disturbed areas downstream to the Yukon
,,- hardness, txi meat levels (exccpi tine) of water
y'mlnjd areas am wWtin boih me EPA (1986) criteria
_J thsdrirJclni water standards for the tele of Alaska.
J Soa'creeks, Pclrolsum producis sna1 aher ha/anlnus
' thed^ However, no measurable evidence of stream
•wir found during the 1986 survey. Past surface
: and Severn! road crossings have elevated sediment and
t runoff during siurms and high Hows.
The single placer raining'opcrakon predicted by the mitten! development scenario would
Impact surface waier quality In approximately 13.8 miles of stream in Sam and Ben creeks.
These impacts would tic In addition m past impacts. Future raining would potentially modify
7.7 miles of stream channel and bank within the claims area and disturb 20 acrcs-of soil
and vegetation adjacent to the stream; Surface disturbance would affect water tjuality within
the claims area ml downstream ID (lie Yukon River.
Cumulative Impacts - The total cumulative impacts to water quality arc composed of both
past impacu and imparts predicted under this alternative. Past placer mining operation have
caused major motiifleaions of tlic original stream channel aid adjacent terrain, thus altering
the chemical and physical chanctcrisiics of wsicr draining UK study ana. These
modifications include removal of vegetation, removal of the organic mr-v. layer, increateti
exposure of subsurface roci god soil with high mineral content, and increased erusimi. Put
placer mining disturbance tacrciscd the depth of the pemiafros: table under 1,11ft acres
icsuliins in alxred surface aid trottndwter regimes. Pas! mining has affected water quality
wlihin and downsream of.lhe dlslurbed area ta 10,4 miles of swam, 'Hie combined effect!
of both pat Impacts and'lrapucls predicted under this alternative would affect 34.7 miles
of stream wiUiin end downstream of disturbance. Long-icrm impacu on water <|uality would
be ossocia!cd with lhc_con(lhued input of sediment Wo streams hem nonpntm ruanff of
disturbed areas durinj i
Conclusion - PaM minlr^'Ctlvitlcitave had sn impscl on existing water quality,- Tltew
impacu rave net caused the na'ural levels of various water quality paniir.c lers to fall ouisi Je
the acceptable limits forTJSh'the pral«llon of *9^ We (EPA 19S6) and the slate of
Alaska drinking vv^r.sianilsrds,1 Under.lhls sitcmatlvc. prcdicicd mining would further
impact water qialily^Howew; the three* operations predicted under this allem.Kivc would
be required to coraply ;with .aa slke and federal water rcgulaiions and NFS water protection
requirements. Potcniial devciopmaiti usodatcd with the noranining uses of patented claims
would have additional
mining and impacu under"
water quality. The cumulative Imntcts of past pbnr
' - ^^'
t
<\
MTMA/F Draft PEIS Public Comment Compendium
A-350
Section A - Organizations
-------
XL CONSEQUENCES
Alternative B
Under &is
wawr quality. and taw
tecOom). '
on wettanas Include degraded
resources and wildlife resources
OB wetlands in the two study areas. The
(tee aquatic and wildlife resources
would b» less thin tlwte for
Conclusion. Pan minia
_
mjjoriiy of these iEpaot'
sections). Lots of weilsndl
C and pester ttsa that for alternative D
of patented claims would lave an
alternative A. potentially
Potential developments
additional Impact on wolindi.:
IMPACTS ON AQUATIC
Impacts caused by pan']
Coal. Sara, and Rswli'af iM
individual operations desofte
on water quality and graylinj habitat for Woodchopper.
'&scrlbcd Wtar alternative A. Future impacts at
A could polcnlMly be Ihc sane for '.his aherralrvc.
Potential impacts caused by miifinjiopetalons under this attenntlve would be reduced by meeting
state ad feted water qtiality, sundardl and criteria, raainaining natural stream flows, and
implementing Hie wjtet resource pioteclion measures and operating stipulations saranun/ed in
appendix 14, "; ~< - ";
Under this alternative, in undetermined r.ambcr of unpatcntcd claims could fee patented without
patent restrictions. The impacts from nonmimnj developments on paeised claims, sudi as cabins.
subdivisions, or cQ(iM»crcJal lodges. CwM tesiit Is further degradation of water quality and grayling
habiiat Additional impacts oa water qttaUty and S*h habitat could be eauseil by increased em»)on.
sediment ir.inspon. and sewage IKOdacd with the specHion of the faeiliiics.
Puiure placer mining and nonmWaj developntjr.t activities on both patented and ur.p;ier.icd cl.unn
which ceuld ptace disd^d iati/ot 1$ maieittdi Uso study **ea wateis wosld be subject to section
404 of the Clean Wuer Act (W. 92-500)>Ttie U.S. Anny Corps of Engineers itgulatcs al! ter^-al
of dredge and fill rcuteriilj in pnseive waen (appcndln 16).
I'ussiblc nomildng impacts I
mining access roads and [rails. Because of U
» me mining roads, moa of V
on water quality Bid fish 1
Include the concentration of visitor one along
lack of other overland travel routes, visitors se bU-ly
from ffie Yukon River inland. Additional impae-.s
of u« would be minimal.
.-': <'*•*
Under jltcnutivc B. land cover disturbar.te in the
mininx «crivilies would tK lets Uun 70 acres. GmunJu-aici
within the atsturbcd wa. New mining activities wuuld
Woodchopper/Coal/Sam
study area UiM wot^d ft$^
tnd surface water quality
affect strcam wacr quality in
Cumulative ImpaeU
past impacts ad i
modifications include
10 wacr quality sic composed of Kith
ffiinittg opcrailcffis have
darnel aid" adjacent terrain, thus altering
of water draining the study area. These
' remov«3 of the orjanic muck kiyer, ihawin;
wilh high mineral ctmtcm. and
within 1,116 seres of disturbance
hii not taxed major changes in the study
* * from new mining woukt affect less
of stream. Potential impacts on surface
mining activities include: (1) altered
O) fewwstJ pH, <4) acsateated erosion and
(6) potaion from accidental spillage
.„. I tagaea on water quality would be
#,'sediment into mam rrom nonpoini-raffoff of
h"flows. Impacts on noewtwater and surface »aer
; of aquatic and terrestrial organisms in the study area.
an impici on existing water qtietliiy. These
various water quality parameters to fall outside
l.of aquatic fife (EPA 1986) and the state ol
this alternative, predicted wining would further
operations would be required to comply with oil
state and federal waserjreiuiiicia'and NTS water protection requirement).. Potential
dcvclorfficnts associated with the nOKmining uses of patented claims would have additional
impacts on water quality. The cumulative impacts of past placer miniejt ami tht» alternative
would be minor. Under this ahemitive, the impacts of mining on water quality would be
less than those for lllcmilive A. greater than those for alternative D, and ruumiall) «restet
than those for alietttativ& OC _ ~
Fourth «f Jaly CrstS ttatj/aS^lMf^/HiaeH* 8, land cover disturbmce in tlK^iudy area
that would result (tan new mining activities would be lev Wait 20 icns. Gmundwater and surlaie
wder quality would be affected within the disturbed area. New mining activities would at feet sunm
water quality in less ten 13.1 miles of imaa.
impacts to water qualiiy are composed of both
under this alternative. Past placer mining operation* have
"of the original maun clunncl aid idjaccnt terrain, thus altering
:\j:characteristics of water draining die study area. These
ill Of vegetation, removal of the orgnlc nock layer, thawing
*-'H'ittriHiHlt» ro«k and soli «*h H$Ii mineral content, and
tea affected water quality within % acres of diMurtunce and
' dliartuncir has not caused major changes In the iiuJy area
from new raining would affect leu than
of stream. Potential impacts on surface water
activities include: (I) altered water
towered pH, (4) accelerated cnijum and
Cumulative Impact! ••
*
caused major
the chemical and
modifications Include
of permafrost.
increased erosion. Pan
in 13.1 miles of
stream's natural
20 acres of land cover
and/or ground water cai
tf&ISpOft 61 IBqUMIn]
of oU. fuel. ur:other
issociattd with'the
Conclusion-r~Paa
ri tiubidlty, snd/or (6) rJouution front accidental spillage
a—'-•-^'tflBg^esn iitpacei on wiier quality would be
^' i^tt teso streams frotn nottpoint mnoff of
Impacts on ground and surface water could
.lad terrestrial organisms in the study area.
1 an impact on existing water quality. These
|*ar!oti»»»altrq»al»y pamsocK to Ml outside
itic I» fpPA 1986) and the state of
live, predicted mining would further
MTM/VF Draft PEIS Public Comment Compendium
A-351
Section A - Organizations
-------
term effects I
long-arm impaos t
by less than 05 I
reduction of i
potential for j
I be leu than allcmativc A. The
f would reduce irate grayling habitat
il be less than 3.0 11 Us. The aaual
,.,»' A, would depend on ihe siic specific
MLthe provisions of a specific pisn of
hablumet
protection i
•causer "
habltaffi
Undsrtnlja
grayling ha
i impicU to arctic grayling
I predicted under Uiis ahenttive. Past
(.percent of He prcminlnj loul. The
f 0,1 HUl ftew Ihe study Orel resource
l Ion of mote thin 0.1 HUt could
l lonj-lerm losses of ircUc «nyHng
HUi. Short-icrm hibiist lows would be
I of the tang- and shcn-icrm reductions In arctic
avoldafice of spawning and (ceding sm\t
structure* and reduced or eliminated fh>t!
i ef On rate titc (table !4).
populations boih il
-o'V,
Conclusion - Past mining aolvftissj'have had a substantial impact on aratc t}ra»tti»8 hrfnui
through ihe lea of 3,1 nabiui UT.IISV Major long- or shon-icrm impacts on grayling haMta
could occur if new teiniaf caused an additional toss of more thai 01 HUs Potential
developments associated with the nosnininj uses of patented claim could have additional
impaos
disturbance, and (3) a ftaw poteisial. for'defense of life and properly (DLP) bear mortality.
Include Ac commote of visitor use along
lack of other overland travel routes, visitor* ire likely
riparian area from die Yukon River inland. This use
Some sporadic, ihort-ierm reductions In available
Possible nonmining impacts
mining access roads and trails. Because of
10 ace raining roadi, most of
would nai result in 1
habitat near tonal ma mil*
krei Include disturbance due 10 increased visitor
lodges itong the Yukon River.
Possible fttnn Ir.pscB on
use. new lour boa operators.
Wooddupner/Coal/Sara
be used as one of te
Became of Mtt mteinj
goals for ripirisn w2dli£j-h»!
t, B, Kioarce pmtecdon goals would
3» In evtlunlng t mining plan of operations.
Ihe long- mi thon-lcrm resource protection
loul of S41 tost have «iready been
be «pproved wiihoui sppmpriatc md
to leucn Ihe iBraci on ripanan
diaarbed. Accordlnjly;'*
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' * dlsturtaKe lha would rwuli from new mining
thin 10 ami. Effective shon-tcm losses of
tepicu in tlicmitiv; B. ovcr-ihoic
mliijalion. proieolon of tensiuvc
wildlife babiia. The tonj-«nd
be less Ihan tSi»aalbt>Mtm
activity would red
habiui would te leu
In altciroave A,
areas, and the
MTMA/F Draft PEIS Public Comment Compendium
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Section A - Organizations
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wildlife tabiu: IK
I tltemaUve. Pan raining
{ a total -_f 3,625 met.
r tan fl* wotm or habim
tl fad. AddMofttl long-win
! Icu thin % MW. Effective
_ epoiouli! for defense of life and
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wUdUfe
.
rcproducti«Es
SR:
of wildlife an provided by riparian
tubfut componcr.li for Wick bear.
rcf Uwc ire Impotura prey speciei (or
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diversity, reduced number* of individual
through dc" "-' not AndoiMKM, reduced
'ovcnae of adjacent tuhitat. and Increased
i ti»ve already had t major. tonf-term Impact on r
wildlife habiui tbrajjli'Uie' km of MI tan. Because of paw .
drvetopmcnii mocitied.wiiii the nonmlning lues of faeooa claims could Have a
long.tcnn effecuon ripinu tubltu (Bui the inlmali tlut use it. Shon-ienn habiurtfdiictioni
torn nonmlning to!JJc(J,*illhou^i minor, would sdd to the eumifluive impmii be»kUS;u5u!il «ljq«iB. Ova* the ttnpMts on rifarian wildlife tahiw
K«Kijicd wltti UK topletStmiUCO ef Utonaive B would be lew than those niodMcd wiik
»lu:m»!ive A. Thll would ipall ftom On requiremcnl of potcreially cxlctwiv,; miiipaii lessen
•' iJd then-term cffecu thai would rcsull from new
lons-ierro vcgctttive disturtuncc tha would
wiiiH!fc hibitii by test Iran XI aevn,,
91 tcrci. The ihon-tcrra resource pniteciim
13 icro. Hie acunl redaction of MIBJCU
depend *OB (he site tpcclfic potential lor
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.composed*(AM||
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in^^»wwr'5rfV ^ ^rr'* 1 ^^^P^UJpf
Cumulative
Unqer the National
EnvironmenMI
Policy Act
Council on Enwonmeatal
Executive Office of the President
8SHDWT2
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gpQajigfr & Eft S" •?• •». Jl
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United States EPARegioaS
Environmental Protection Philadelphia, PA
"
October 2080
Mining/Valley Fill
Recycled/Recyclable
Printed with Vegetable Oil Based Inks
on 100% Recycled "Paper
(20% Post Consumer)
EXHIBITS
EXECUTIVli SUMMARY
Tim document is a preHmJBaty draft of the Mountain Top Mining/Valley Fill HS referenced ia the
Nodes of Intent published in the February S, 1999 edition of itse Federal Register (64 FK577S,
02/05/99). This is a "programmatic'' EIS in that ft evaluates broad federal actions such as the
adoption of new or revised agency program guidance, policies or regulations. The purpose of the
EIS, as stated k the above referenced edition of the Federal Register, is:
"to consider developingagsncypolicies, guMana, andcoordiaated agency decision-mating
professes to minimize, to the maximum extentpracticable, the adverse environmental effects
to waters of the Unites St<&es and to fish and wildlife resources affected by mowrtamtop
mining operations, tntdto environmental rttourots'ffiat could be effected by the size and
location of excess spoil disposal sites ia valley fills"
In the process of conducting this EIS, alternatives ate proposed to address the issues and concerns
which initiated the NEPA action, to order to fiiUy develop and evaluate the alternatives, relevant
general and technical information were gathered togette. Where data did not exist, studies were
initiated, whenever possible, to fill ifceinjbnnafioa gaps. With suitable background information in
hand and results from the technical studies, the alternatives were evaluated and their social,
economic, and eavirQnaie&tal impacts (aJca. environment consequences) were identified. The
draft report it being issued for public review and comment The preferred alternative will not be
determined until tlie fina! EIS is circulated for review aad comment.
The term "rnountaintop mining," as used ia IMs EIS generally refers td three different Muds of
surface coal mining operates (contour mining, area mining and moontatatop removal mining) that
result in its disposal of excess spoil in valley areas. These excess spoil disposal areas are known
as valley fills. This use of the phrase "mOBntafatop mining" contrasts with fl» SMCRA term
"mountaintop removal mining," which leplly refers toapartioular method of mining where a basal
coal seam is completely removed from one side of a mountain to the other.
During the course of sutfece coal mining, overburden is removed to reveal the underlying coal. The
overbw4entypicalfyincieasesiBvoliiaiedti)6^thet^ovMi5nM5essd«ietobK>kenrock. As raining
proceeds, completed areas are backfilled with previoaslyremoved overburden, but doe to limitations
on the steepness and heighrta which broken rock may be placed to achieve a stable slope, and the
steep topography of the region, excess spoil generally "results. Hauling to spoil away to other sites
is typically mot eeomosjteaUy feasible. If by chance, the active mining operations are adjacent to
abandoned mined hmds, excess spoil may be used for reclamation of mine "benches associated with
the formerly mined site. More frequently lhan not, however, such fortuitous circumstances do not
exist and it is necessary to construct valley fills to dispose of the excess spoil. These fills have
advantages and disadvantages. One advantage is that the dispoial area can be located very close to
fljs mining activities thereby mMmirfng hauling costs. Mining operations that involve sequential
ridges receive an addittoaalbenefitftomftsvalteyfills in thatfiHedtavtaes facilitate movingheavy
equipment from one ridge to Use next The valley fills generally result in an increase of level land
and depending on the post mining laud ase, ibis can a&o be advantageous. One major disadvantage
of valley fills is that the process destroys the portions of streams amd headwater areas they'cover and
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Executive Sninmary
Executive Summary
The amonot of ejteess spoil generated during mining is related to a number offactors meteHng took
type (sandstone "swells" more than shale during removal and fracture) and'mining method
(mountaintop removal mining typically has the highest overburden to coal stripping ratio). Esteess
spot! generation depends on other fectars as well (metading topography) and, as such, ti» quantities
generated are very site specific.
Excess spoil disposal capacity is a prime coasMetattaa to ft* evaluation of steep sloped sites for
poteatjil miring projects. Physical of regulatory restrictions to excess spoil disposal may restrict
the type and olsnt of surface mining. Stricter retpjireiBe&B would ik^or contour operations over
arraandmountamtopreBSCwalaiethodsoriai^it|TColadesii6cB mining of a site altogether. In this
case, underground raining becomes the only option for coal extraction. For ttellow or thin seams,
underground mining is frequently not a viable alternative and, eonseipently, restrictions to excess
spoil disposal may render some coal reserves immineable.
The study area selected for the BIS is aunique and richly diverse ecological environmest extending
over portions of West Virginia, Kentucky, Virginia and Tennessee. K is located withifli the
Appalachian Coalfield Region of the Appalachian Plateau physiographic province and Bituminous
Coal Basin. As die name implies, this region is known for the substantial deposits of coal that lie
beneath the surface. Physically, two factors must be coincident in order for moimtaintop mining to
occur and for excess spoil to be generated: steep terrain aad sufficient contiguous coat reserves
located close enough to the tops of mountains and ridges to justify large scale mining. Tn West
Virginia, this close combination exists In the southern half of the state aad is most frequently aligned
with the existence of the Coalburg coal seam. In Kentucky, Virginia and Tennessee, this combination
of factors also exists but delineation 5> not quite as simple because of more complex geology. The
boundaries of the study area described above were dictated by the presence of valley fills or the
potential for this method of spo2 disposal in the fatute.
The study area is unique in the world because otoraeteristieaHy northern species coexist with their
southern counterparts, and thus boast enormous richness and diversity. Individual watersheds and
mountain peaks within the Appalachian ecoregions have been isolated for millions of years. That,
in combination wife relatively onTdeavaontnental conditions, his provided a perfect getting for fte
evolution of unique species of plants, invertebrates, salamanders, crayfishes, freshwater mussels, and
fishes. These species include a great number of organisms, including terrestrial, aquatic, and plant
species, which at supported by tt» AppatacMan eeowgioss (Stein etai, 2000). to ftct, the southern
Appalachians toast the richest salamander (tarn to the world (Petraaka, 1999, Stein et al., 2060).
The Appalachian ecoregjoa fixwd, -which cover 85 percent of the study area, represent a fijrest type
that was once widespread to the northern hemisphere. These rich deciduous forests have beea
profoundly altered over fhe past fcw cantories and are becoming increasingly fceateaed. Cove
forests tend to dominate fhe steep-sided, mesic (relatively moist) hollows while pme-heafc
eoiamonifies dominate the more xerie (dry) ridges aadpeaks. Various oakfcrests dominate the flats
and more open slopes that are intermediate between, mesic aad. sseric conditions. The mixed
mesophyttc forest of the AppatacbiM coil fields rapports one of tie detest floral breeding bird,
mammal, aad amphibian communities of any upland eastern U.S. forest type (ffinkle et tl., 1989;
ES-2
cited inMcComb et al, 1991). It has been described as "the most biologically diverse ecosystem in
the souflieastsrn United States" (Hinkle et al., 1993), Pate, West Virginia is considered the
primary component of a major geographic area of importance to neotropical migratory song birds
in the Northeast
Increased concern about moantaiatop mining operations occurred in 1997 and 1998, both in the
media, by the Federal agencies, and in notices of intended litigation related to the subject. An
interageacy forum in 1997 hosted by EPA, called the Federal Regulatory Operations Group, or
FROG was hehtand an inWragency working team-was formed by OSM, EPA, COB, and FWS in
early 1998. Several stu'dies were designed to prepare a consistent fill inventory, look at stream
impacts, fill stability,and evaluate regulatory program inconsistencies inffiitigation and other mining
Press coverage of public issues with motmtaintop miaaig suiiaced beginning in Augustl997, in
television, periodicals, and newspapers, including U.S. News and World Report, ABCs "Night Line"
program, is well as the Charleston (WV) Gazette, Washington Post, New York Times, Lexington
(KY) Herald-Leader, and Louisville Courier-Journal. In 1998, OSM initiated oversight activity
evaluating how fee West Virginia, Kentucky, and Virginia SMCRA-delegated programs were
approving coal mines that proposed not to restore to "approximate original contour," which resulted
inmoreninnerousandlargervaSleyfills, EPA, began utilimgtfae CWA authority under the Section
402 (National Pollution Discharge Elimination System permit) to object to &e size and location of
valley fills because of impacts to streams. EPA 'also began to evaluate the applicability of the
existing framework under 1&e COB Nationwide1 versus Individual Permit a'lithorrty under CWA 404.
The notification by citizens and the West Virginia Highlands Conservancy of the intent to sue the
State(WVDEP)aaJFeder»i(COB)goveraa«HtinWestVirginiaoccarredJnearly 1998. Litigation
ensued in My 1998 [Bragg, at al. v. Robertson, et ai. Civ. No. 2:98-0636 [SD.W. Va]. Generally,
the lawsuit concerned allegations that valley fills associated with surfitce coal mining operations
result in the loss and degradation of West Virginia streams, and that the Clean Water Act (CWA)
and Sur&ce Mining Control aad Reclamation Act (SMCRA) were being improperly applied. The
pMntifis argued that the current practice ofvalley fillMg, both, individually and cumulatively, caused
more thanaminanal-impact to the "waters ofthe US." Under the CWA, activities causing more than
a minimal impact are not eligible for a Nationwide or General Penult under CWA Section 404, but
mast apply flie more rigorous standard* imposed taster flje CWA 404 Individual Penaitfiug process.
As part of this claim, fee plaintiffs alleged that the.COE also violated the National Environmental
Policy Aet (NBPA), by Ming to analyze the adverse and cumulative environmental impacts of
valley fills »dsraia«njinfag activities in West Virginia. toDecember 1998, the plaintiffs and (he
COB, EPA, OSM, FWS and fhe WVDH? agreed to settle the CWA portion of the case. The
settlement agreement covers two primary objectives, which are increased scrutiny of permits
involving valley fills and-perfonaance of an BB.
To aid in the objective of increased scrutiny of permits, a Memoraadum of Understanding (MOU)
Among the USOSM, USEPA, COE, USFWS, and WVDEP for the Purpose ofProviding ErTective
Coordination in the Evaluation ofSurfkceCoalMiBifig Operations Resulting In Placement ofBxcess
Spoil Fills in the Waters of the United States establishes a process for improving coordination in the
ES-3
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Executive Sianmaiy
review of pennltapplieiitions. Tie entire MOU is provided to an appendix to this EE3. The signatory
agencies entered iato the agreement with the gods ofennaneing cooperation *ad eornmuoieaiion in
order to ensure compliance with all applicable Meal and state kws, improving ttoe limes and
predictability of the permit process, md mjumiihdpg sdverse environraejjtal impacts ftom'surlk»
cod mining operations resulting in placement ofexem spoil fills in the waters of the United States.
The experience of the agencies resulting ftom the increased penult scrutiny have been considered
in the development of this EIS, Many of the efforts in this so-called "interim penaittiag" period
identified treas where the agencies, the regulated community, and the environment would benefit
from coordinated or clarified procedures, better baseBne data collection, improved analysis of
potential impacts, and different sequence of processes,
A separate bat related investigation was initiated ia June 1998 by West Virjrjnia Governor Cecil"
Underwood. OoveraorUaderwoodcreatedat»skfisK»tosft^tteeffectsof»ouiirtttopiiiirang.
Tbetask force was organized into the following three committees: • •
1) Impact to the Economy , -
2) tagset on the Environment , .
3) Impact on the People
The findings of the task force were published in December 1998, Therecotnrnendaiamstachided: •
I The need for more research on the environmental and economic effects of
mountaintop mining.
/ Establishment of astate office to regulatetiiaimpactofmoimtaintop-rcmovalminiag
onpeople. '''....
/ Establishment of a nationwide stream mitigation policy.
/ Discontinuing of fish and wildlife habitat as a postmining land use (PMLU).
/ Development of commercial fiweafltnd •* a preferred PMLU.
I Rigorouseaforcementof existing regulatory requirements, including water quality
and approximate ori^nal contour (AOC) guideliaes.
In preparation for conducting the EIS, the agencies invited comments and suggestions on the scope
of the analysis. Many people took advantage of the OBJortunifytopaitietpgJB in the public meetings.
The public vms also invited to provide •wtittea comments. Six hundred forty-cue people provided
verbil statements at the public BJeatmp while ninety-five written comment letters were submitted.
Scoping meetings were Wd in Samajersvilie, Charleston and Login, West Virgtoim.on February
23,24, and 23,1999, respectively. Concerns expressed in these pubic scopaig meetings described
economic and social impact concerns; policy and regulatory review issues; EIS process questions;
and a broad range of environmental impacts associated with momttaintop mining/valley fill
operations. Significant aquatic, terrestrial, and community impact concerns were raised during the
scoping sessions held for this EIS. femes of concern expressed In public comments received by the
EIS Steering Committee during the scoping process have been summarized iato the fisllowing
aquatic, tenestrial, and community impact issues.
Executive Summary
l&sw 1: Stream loss eadadyersesurfaaand^-oundwatgr tngxietsjrom valley fills totd other
mouniafyitGp mining operations.
Issue 2: Ability of milted area reclamation practices to restore stream habitat and aquatic
junctions impacted iy mining.
Issue 3: Effttttveness of'compensatory mitigation projects to make up for loss of stream
habitat aftd agttatic junctions.
Issue 4: Protecting watersheds from cumulative effects of ittotmtaintop miningA>aileyjitI
activities and other land disturbances.
Terrestrial Issues ...••• -
ham 5: Concerns that current momitaintop mining reclamation practices introduc^'and
increase exotic and imasive plant species.
Issw 6: Effects ofmomsatntop mining and resulting dtforemtitm/forestfra&nentatton on
plants and wildlife, including unique/endangered species, and on biodiversity and
sustainabilily.
ConuntHiity Issues ...
Issue 7: Sffiai of blasting on homa, water w*Hs, emd quality of lift.
Issue 8: PatmtMhsaUhriik^a^bomeAiaauiftimfSjraitilmtiHgan^titliermining operations
Ejjtasfrom meatttiintop muting oftflooAg ofdaimstream nommunttta
Valleyfitt stability.
Issw P.-
Issue 10:
Issue 11:
Aquatic Issues
BS-4
Ability for reclaimed nrfnetl land to provide as tcatumh: or social benefit to coal
field communitlas. '
Issue 12: Effects of'Mining on Seemry and Culttfatty Significant landscapes.
lisut 13: Economic Imposts of Reducing Miring
Issue 14: Environmental Justice
A programraatic review process was undertaken by the agencies shortly after Ae scoping process
was completed in order to assess tose program asm where improvements could be made, and
specificprogrammaticactionsweref
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Executive Summary
The Program Review Group, chartered by and including fte Steering Committee, developed flie
actions representing improvements to baseline regulator? programs. Ideas for government action IB
address the potential environmental impacts of moraMminlop mining and valley fills in the study area
were developed in a series of meeting flat centered around ttoee'doraains: aquatic; terrestrial; aad
community/huinan. Bteh domain covered all relevant values; for example, the-terrestrial domain
meetings coveted forests, and terrestrial biota. Pursuant to NEP A, values are'defined as aesthetic,
historical, cultural, economic, social, and health considerations relevant to tot proposed action and
the alternatives. The Program Review Group wait through a three step process where they: 1)
summarized existing Sato and federal policies andregulttions reteed to mountaintop rnirrfngA>aHey
filling; 2) brainstormed potential ciiangestoodstingpoKcles, regulations, and program coordination
to improve environmental protection; and 3) consolidated/summarized alternatives. The subsequent
actions, which are associated with one or wore action alternative being addressed within the BIS,
represent specific programmatic changes that could be undertaken to minitnize the environmental
impacts of motmttirrtop mining/valley fill operations.
Alternative A is the baseline alternative, which reflects agency policies, guidance, aad decision
making processes in effect priortc ths December 1998 settlementagresmenthetvvesntheplaintiffs
and the COB, USEPA, USOSM, USFWS, and "WVDEP. Presetaement conditions are how a^ncies
may have continued to operate if there were no lawsuit this alternative also reflects (he
enviroiimental consequences that would be expected to occur if the agencies were to revert back to
presettlement programs should the current Federal Court ruling in Bragg v. Robertson (Bragg, Civ,
No. 2:98-0636 S.D. WV) be overturned.
Alternative B would restrict fills to the uppermost reaches of the watershed, and recommend
improvements to other baseline regikwry programs governing mountaintop mining operations. For •
study purposes, the watershed sisse being evaluated ranges from 0*75 acres. Under this alternative,
specific action items have been proposed primarily in response to terrestrial and community impact
concerns raised during the scoping process. Several aquatic related action items have also been
proposed under this alternative, as effluent discharges from sediment ponds may still be anticipated
to occur downstream of the fills.
Alternative C would authorize (he placement of fill further downstream, possibly wrier the Corps
of Engineer's CWA Section 404 Nationwide Permit Program, provided certain fill rnteimHation
requirements are met(sach as AOCPlus Fill Optimization and/c*Secti«404(bXl)«widanee taste).
The current Federal Court irifagmBraggv.Robfflteon (Bragg, Civ.No. 2:98-0636 SJXWv") would
require one or more rule changes to allow fills within fee intermittent stream sme, For'gtody
purposes, the watershed size being evaluated ranges from 75 - 250 acres. This alternative differs
from Alternative B in that additional aquatic related action items have been proposed.
Alternative D is similarto Alternative A in that fills would not be restricted to any particular stream
segment, but it differs substantially ftom Alternative A in that many new progranunatic actions
would be implemented to reduce the aqaatic, terrestrial, and community iiapact concerns raised
during the scopingprocess. The current Federal Court ruling in Bragg v. Robertson (Bragg, Civ. No.
2:98-0636 S.D. WV) would also require one or more rule changes to allow fills witMa the
intermittent and/or pei«nnM stream zone.
IV. ALTERNATIVES
Significant aquatic, terrestrial, and community impact concerns were raised duriag the scoping
sessions held for this HS. A prograranftrtic review process was undertaken by fee agencies shortly
after the stsopmgprooess was completed in order to assess those program areas where improvements
could be made, and specific programmatic actions were formulated to address the identified concerns
and problem areas. The subsequent actions, which are listed under eaca action alternative being
addressed within the EIS, represent specific programmatic changes that could be undertaker; to
minimize the environmental impacts of mountaintop mtakgA'tltey fill operations. A description of
the problem'aisabeingaddressed by each action is included under each action item. The alternatives
were developed to consider U» Ml range of response options available to the agencies.
Alternative A is the baseline alternative, Which reflects agency policies, guidance, and decision-
making processes in effect priorto the December! 99$ settlemant agreement between the plaintiffs
and the Ct>E, USEPA, USOSM, USFWS, and WVDE3?, Pre-setflenieat conditions are how agencies
may have continued to operate if there were no lawsuit This alternative also reflects the
environmental consequences that would be expected to occur if the agencies were to revert back to
presettlement programs should the current Federal Court ruling in Bragyv. Robertson (Bragg, Civ.
No. 2:98-0636 S.B.WY) be overturned. . '
Alternative B woald restrict fills to the uppermost reaches of the watershed, and recommend
improvements to other baseline regulatory programs governing mouataintop mining operations. For
stady purposes, the watershed size being evaluated ranges ftom 0-75 acres. Under this alternative,
specific action itanu have beat proposed primarily in response to terrestrial and cornmafljty impact
concerns raised dnring the scoping process. Several aquatic related action items have also been
proposed under (Us alternative,1 as effluent discharges ftom sediment ponds nay still be anticipated
to occur-downstream of the fills.
Alternative C would tutorize the placement of fill finite' downstream, possibly under the Corps
of Engineer's CWA Section 404 Nationwide Permit Program, provided certain fill tnUmization
requirements are met(suchasAOCPtasFM Optimization andfor Section 404(bXl) avoidance tests).
The cunentFederat Court ralingia Smgg v, Robertson (Sragg, Civ. No. 2:98-0636 S.D. WV; would
require one or more rale changes to allow fills wJtUn the intemltteat stream zone. For study
purposes, the watershed size betag evaluated ranges ftom 75 - 2SO acres. This alternative differs
from Alternative B in that additional aquatic related action items have been proposed.
Alternative D is similar to Alternative A in that fills would not b« restricted to any particular stream
segment, but it difiers substantially ftom Alternative A in that raany new programmatic actions
would be implemented to reduce UK aquatic, terrestrial, and community impact concerns raised
during the scopingprocess. ThecurreatFederal CourtrulJDgin^nzg^v. Robals&R (Bragg, Gv.No.
2:98-0636 S.t>. WV) would also- requite one or more rale changes to allow fills within the
intermittent and/or perennial stream zone.
There are actions common to both Alternatives C and D. There are actions common to Altonatives
B, C, and 0. The actions comprising fte alternatives ate presented in Table IV.-l.
ES-6
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IV. Alternatives
It shotald be noted that ao alternative has been identified s$ a prefeted slte*fla4iv@ at fias time. The
preferred alternative and final set of recommended action items will not be teermfaed until the final
EIS is circulated fat public review and comment
Rebecca Hanmor
oma/01 Oftie ra
Tffi MSI? Joste aanetoH
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 111
1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
Dear Citizen:
I am writing you again to give an update on the environmental impact statement (BIS)
mining andvalley fills, TI»ftii»Fedsrf%«ei«swBEPA,ttieU.S.Ann5'Ojipofa^a»«a»,
the U.S, Office of Suffice hfiatag and the U.S. Ksfa ami Wildlife Sarvtee. The Division of
Environmental Protection is the lead agency fix the State Of West Virginia, and we have
established cooperative activities with the Kentucky and Virginia surface mining and
It was our mtention to publish the draft EIS in rtecember 2000. Regrettably, it \vill not
bapossibletopubiish the document at this rime because a few of the technical studies,
particularly the economic study of mining restrictions, are still incomplete. Instead, the agencies
have prepared a status report to provide a snapshot of the Federal and State initiatives that have .
been undertaken to dale, and to describe work remaining before the draft EIS can be released. •
<\il Executive Siirrmiary highlighting key findings within the .Status Report is attached. The
longer report will be ramie available on EPA's 'fill issue. Public
parti cipation is an essential part of the BIS process, and your continued interest and involvement
ate much appreciated. Should you have any questions on this topic, or on the agencies* findings
to date, please contact Bill Hoffinan at the above address. Bill can also be contacted at (215)
.814-2995wMHoffinatt.WilHffln@epi.gov. , , . •
Sincerely,
Bradley M Campbell
Enclo&tre
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Mountaintop Mining/Valley Fill Status Report
Executive Summary
January 16,2001
Introduction:
Surface coal raining in Kentucky, Tennessee, Virj^nia, and West Virginia is conducted by a
variety of mining methods and in different topographic seftsnjp. Surface mining in the steep
slope areas of these central Appalachian coalfield states is re&red to as ""mouataintop mining."
Typical surraee coal mining removes soU and rock (called spofl or overburden) above the cod
seam, and a portion of the overburden is returned to (he mining area to reclaim the site. Insteep
slope areas, because the solid rock material over the coal seam increases in volume when it is
broken, it is not possible to return all of the spoil to its original location after mining. The
portion that can't be returned to reclaim the mined area is called "excess spoil" In steep slope
Appalachia, excess spoil is often pkced in valleys adjacent to the mining area. Thus, excess
spoil disposal areas are often called "valley fills."
Concerns over the impacts front mountairtfop mining/valley fill operationf in Appalachte have
been the topic of much discussion in the media, the courts, and at the State and Federal level.
Widespread national and local media coverage of public issues surrounding these operations first
surfaced in August 1997. Teams consisting of staff torn the Environmental Protection Agency
(EPA), Office of Sur&ea Mining (OSM), Army Corps of Engineers (COB), and the fish and
WildHfe Service (FWS) •were formed im early 1998 to address concerns voiced over these types
of mining operations. Lstterto 199$, several citizens and the West Virginia Highlands
Conservancy sued the West Virginia Division of Environmental Protection {WVDEP) and the
COE. The suit alleged that valteyfills resulted in the loss and degradation of streams, aad that
the Clean Water A«t (CWA) and Surface Mining Control and Reclamation Act (SMCBA) were
being improperly applied. The four federal agencies and the WVDEP agreed to a partial
settlement of the suit in December 1998. The agencies agreed to prepare an Environmental
Impact Statement (EIS) to consider new guidance and policies to minimi™ the advene impacts
of mountaintop mining and valley fills. The agreement stated an intent to complete the EIS
within a nvo-year time frame. The agencies also agreed to increase scrutiny of new jj«nnit
applications for mountaintop minittg and valley fills until the EIS was completed. Permitting
requirements for fills in watersheds greater than 250 acres are more rigorous under these interim
procedures.
The EIS process initiated by the agencies included a review of existing information regarding the
economic and environmental impacts of mountaintop mining and valley fills, and meetings with
various academic experts. Certain data was found to be either lacking or inadequate to address
all EIS concerns, and a number of actions (studies and forums) were initiated to address these
data gaps. Concurrently, the agencies evaluated program requirements under the various Federal
and State laws and regulations, and assessed possible areas for improvement
In December 2000, the agencies concluded that fte draft HS could not be published within the
original two-year time frame because the technical studies, particularly the economic study of
mining restrictions, were still incomplete. Because of the delay in completing the draft HS, flic
agencies prepared a status report to update the pubic on the Federal and State initiatives that
have been undertaken to date, and to describe work remaining before release of the draft EIS,
The following section summarizes the highlights of file status report, which will be made
available on EPA's mourttaintop mining web page at www.eca.gov/reponS/rfltntor) at a later
Key Findings of Agency Initiatives:
/ The inventory of fills permitted Mace 1985 includes 5,858 valley filb proposed intheHS
study area (4,421 in Kentucky; 945 to West Virginia; 439 in Virginia; and, 53 in
Tennessee). Gary 4,057 of fliese proposed fills have been constructed as of late 2000.
This inventory indicates that the majority of valley fills proposed are in watersheds
draining areas less than 250 acres in size, ra Kentucky, 81% of fills were in watersheds
smaller than 75 acres; 14% were in watersheds between 75 and 250 acres; and 5% were
in watersheds larger ttan 250 acres. ta Virginia, 70% of fills were in wafosbedssraalter
than 75 acres; 26% were in watersheds between 75 acd 250 acres; and 4% were in
watersheds latter flian 250 acre. In West Virginia, 59% of fills were in watersheds
smaller than 75 acres; 34% were in watersheds between 75 and 250 acres; and 7% were
in watersheds greater than 250 acres. In Tennessee, 79% of fills were in watersheds
smaller than 75 acres; 19% were in watersheds between 75 aad 250 acres; and 2% were
in watersheds greater than 250 acres.
/ The agencies'experience with permitting indicates that mining companies can do more to
avoid filling tag stream segments. As jwrt of a consent decree, WVDEP adopted new
rdesformtarmizfagfteptaceniettofffimsfreaffl valleys. Siaee the December 1998
Settlement Agreement, 46 permits in West "Virginia were approved to place fill in streams
in watersheds smaller ten 250 acres.
/ Using a hydiologic technique developed by West Virginia to establish lie ephemeral
point in a stream, the mining technology team found that Hmithig valley fills to the
ephemeral stream segment caused significant or total loss of the coal resource for 9 of :1
mine sites studied, when compared to original mining plans. All of the coal resource was
lost for 6 of the 11 mine sites. As this was a hmitsd siudy on a small population of
miningsites, a broader study is being undertaken for the EIS to evaluate the economic
effects of limiting valley fills to various watershed sizes (35 acres, 75 acres, 150 acres,
and 250 acres). This study is still underv/ay, and no results are available at this time.
/ An extensive technical review concluded that valley fills are generally stable and massive
Mures are rare. Only twenty documented Mures occurred out of more than 4,000 fills
constructed sinse 1982. 'While fill fellures «e costly to repair, no loss of life »or
significant private property damage have resulted from these movements.
/ Hydrokjgic modeling studies of selected fills found that peak storm water flows are
sli$>% higher during and after ralfttog. Whether or not increased peak flows results in
flooding requires sit»- and storm-specific analysis. The agencies continue to assess fee
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proper level of flooding analysis required for permit applications and approvals.
Preliminary nydwtogjie results torn, a separate field stady indicate .that runoff m
water appear to be stored in valley fills. Tie study, to date, appears to show (hat fills tend
to increase the base flow of fee strewn and decrease ths peak flow daring » storm event.
Water temperature to streams in filed watersheds was less variable than to unfilled
watersheds. Substrate material was generally finer in streams in filled watersheds
compared to unfilled watersheds.
The studies for the EIS have evaluated the function and ^ueof'aeadwater streams in
steep slope AppafacMa. At as BBS-sponsored symposium, seleufets reported tast
headwater streams are extremely" BBpeflaa to fte health of the e«ire aqaatfc ecosystem
downstream. Biological sampling in West Vir^nia found aqwfcaiganjsmetatte
uppermost reaches of watersheds, even in "ephemeral" stream ames which flow only as a
result of rain or snow mejt. Bpbsmeral/lf8erjnitteKt and tatenajtteiit/pewaaial boundaries
were also found to be at tn«4 Id^tar points (le. in smaller .watersheds) ton previously
thought Studies conducted hy EPA showed impairment of aquatte organisms below
valley fills, which may be tbe result of adveae water ijuality changes. Monitoring
protocols were also developed by the agencies to improve chemical and biologieai data
collection and assessment at mining operations.
A symposium assembled ecological and stream restoration experts to explore aquatic
resource re-creation OB mine sites. Although opportunities exist to reshape mining land
forms to a more natural configuration and to incorporate state-of-the-art stream
restoration methods in mining reclamation, it is difficult to reconstruct free flowing
streams OB or adjacent to mined sites. Tlieiitfflealty rends from tteiflabillry to capture
sufficient groundwater flows necessary to provide a constant source of flow for fee new
stream. Only with careful and potentially costly planning and implementation will flows
be sufficientiy captured such that a new stream can be created on the rmied site.
Many published studies report that West Virginia and the Appsilachiao Highlands are
characterized by some of the best forest habitat in the United States. Loss of forest
habitat and/or forest fragmentation, because of mining or other man-made disturbances, is
a national, regional, end local environmental concern. In studies conducted for the E1S,
rr^earcheis examined plant succession on reclaiuied areas, soil health on mined sites, and
errects of mousstaistop srtlrrMg/valley fiU operations on herpetiles (e-g., snakes,
salamanders, &ojg$, etc.), birds, and sffiaH mammals. Rssearcfeers fomid th?& sur&ce
mining sigTuficanfly alters terrestrial ecology. Plants end wildlife that require forest
be necessary to more quickly establish forests and counter the effects of forest
Species such as the cerulean warbler, Louisiana waterthrush, worm-eating warbler, black-
and-white warbler, and yellow-throated vim will likely be negatively impacted as forest
habitat is lost and fragmented from mountaintop mining'valley fill operations. In
addition, the studies Ibtuid that fee natural return oflbrests Is motMtaintop siines
reclaimed with grasses imder hay and pasture or wildlife postmining ted uses occurs
veiy slowly. Full reforestation across a large mine site in such cases may not occur for
hundreds of years. State-of-the-art soil reclamation techniques and tree plantmgs would
Even before file Etwboainenttl Impact Stitfea»Jt, the West Virginia Governor's Task
Force foeused on the need to restore forests after mining, both for awiroamental
purposes aid m sn economic resomce. In technical studies conducted for this EUS, soil
scientists and foresters examined State and Federal regulations, policies, and practices;
relevant scientific literature; and talked with soils and forestry experts to assess the
eflfecttwneis of euaett reelatttitiom practices to promote 4« growth of tees on reclaimed
mined lands. The study determined that reclamation with trees has not been particularly
suocessfM. However, 4e stndy atee coaeteded tot state-of-the-art reclamation practices
exi«fl*»oM«rettenmwgo8sth*areii5>eriortoiBttive»BslbrgroiA West
Virginia adopted new rules for commercial forestry incorporating these state-of-the-art
reclamation practices.
The EIS process involves evaluating ways of addressing cumulative impacts from
multiple mining activities in the same watershed. Hie more headwater streams in a given
watershed which are filled, the more difficult it wil 1 be to protect the aquatic ecosystem
downstream. The same pornt can be made of lar.d disturbance and forest fragmenLition
Regulations require cumulative impact assessments in connection with approval of new
mines. However, ttie assessment of cumulative impacts has not been r
The Mining and Reclamation Technology Symposium included presentations on mining
techniques, equipment selection, mining cost analysis, cod -market forecast through 2020,
and panel discussions on alternative redaaarlon possibilities, ^}proxi?nate otiginal
contour, and post-mining land use. Pressntations by mining companies indicated that me
potential for new investment was highly dependent on the price of coal.
A nationwide study of sutfeje-minfag blasflag complaints undertaken as part of routine
OSM oversight characterized the nature of blasting complaints received in a one year
period. Within the HS study area, the vast majority of the 637 cotaplatots lodged pertain
to annoyance (76 percent), Mowed by vibsfion damage 03 percent), water wells (14
percent), dust and fumes (4 percent), and flyrock (2 percent). Following investigation of
the 637 complaints by the Ate regulatory authorities, only 59 of the complaints resulted
fa vtetafioiB of the approved regulatory progmms. Another jHSetertenwl study
monitored 11 surface rninmgbla* for the incidence of respirable dust and fumes fi'om
mcoffipiete combtistion. The monitoring generally fbtsnd that nsMser measure posed -
hazardous levels beyond 1000 feet from the detonation.
Is April 1999, EPA, C0E, 0SM.FWS, and WVDEP entered teoaMetnorandtim of
Understanding (MOU) to enhance cooperation and communication among the agencies in
order to ensure compBsaee wt8» all applicable Federal and State tows, improve timeliness
and predictability m me mining r^rmit process, and rmnimize adverse environmental
impacts fio» sur&ee coal jnMag and vafley fills. Progress has been made, btttfMl
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- enhance coordination between FWbol and state tteneie* to address Endangered Species
Act concerns earlier in fhe petjnitting cycle;
- improve coonHnatian of public participation requirements for both SMCRA and CWA
programs by combining public comment requests and hetrfaj^ whoever possible;
- use the SMCSA permit application process to provide insinuation that can satisfy
applicable CWA and National Environmental Policy Act responsibilities;
• develop water monitoring protocols for use by applicants for larger or jnaltipte-vaHey
fill permits flat, when implemented, w3I fidffl SMCRA and CWA requirements, allow
better permiBtag decisions, and improve assessment of aquatic iittpaets;
- increase coordination among the agencies to address flooding potential ftom suffice
mining; and
- develop unified guidance oa the appropriate types of compensatory initiation*
• Because of inconsistent state approval of post-musing land uses justMytng.aon-AQC
reclamation, OSM issued a national policy spelling out what lands uses were appropriate
and the type of deinowteatioa required by SMCRA for appfwal.
Alternatives to b« Evaluated in the Draft EIS:
As the stated purpose of the H§ Is to "consider developing agency policies, guidance, and
coordinated agency deoJsion-maldng processes to mtataiae, to the madman extent practicable,
to 'adverse environmental effect* to waters of the United States and to fish and wildlife resources
affected by mountaintop mining operations and to environmental resources that could be affected
by size and location of excess spoil disposal sites in valley SUs," the agencies formulated •
alternatives for the draft EIS that evaluate changes to the current restrictions on mountaintop
milling operations in varying degrees. The alternatives use watershed size as a fiame of'reference
as described below. This is considei-ed a definitive and practical ba^is for comparing the
not be restricted to any particular stream segment.
Alternative B would restrict filU to the uppermost reaches of the watershed, and
alternative wiUi»t be determked until the draft SIS h^
public comments have been considered.
• Alternative A is the baseline alternative, which reflecls agency policies, guidaiice, and
decision-uiaking processes in effect prior to the December 1998 settlement agreement
between the plajntiffl and tie COB, USEPA, USOSM, 0SFWS, and WVIM1, Pm-
settlement conditions arc how agencies may have continued to operate their regulatory
programs if there had not been a lawsuit This alternative also reflects the environmental
consequences that would be expected to occur if the agencies were to revert bock to
presettiement programs should tie eunent Federal Court ruling in Bngg'v. Robertson
(Bragg, Civ. No; 2:98-0636 S.D. WV) be overturned. Under Ms alternative, fills would
mining operations. For study purposes, the watershed size being evaluated ranges from 0
to 75 acres.
* Altenativ* C would aathoiize-flie plaseajent of fill fiather downstream, possibly under
fce Corps of Bagtoeer's CWA Section 404 ^Nationwide Permit Program, provided certain
fill tntoianzattom requirements are met (such as AOC Mas Fill Optimization tad/or
Section 404{b){l) avoidance tests). For itady purposes, the watershed size being
evaluated ranges from 76 to 250 acres.
* Alternative Dissimilar to Alternative A in flat 8Us would not be restricted to any
particular stream segment, but it differs substantially from Alternative A hi that many
new programmatic actions would be implemented to reduce the aquatic, terrestrial, and
community impact concerns raised during the scoping process. Alternative D reflects
most closely the restrictions on filling bat have been used during the interim permitting
process under the 1998 Settlement Agreement.
A number of specific progr aromatic actions have been developed to address aquatic, terrestrial,
and community impact concerns raised during the scoping sessions held for the EIS. None of
these actions, which are listed in the full status report, will be selected far implementation until
they have been fuily evaluated hi the draft EIS.
Pending Initiatives: •
/ A study of the eMnoajteefleets of rettrietmg Brining by watershed size (35,75, ISO, and
250 acres) is underway. Results will show the impacts on tax revenues, utility prices, iis
well as direct and indirect mining emploj-meat The anticipated costs for implementing
government actions for each of the BIS alternatives is also under evaluation.
/ A study dcsigced to assess the impacts of historic, current, and potential mountaintop
removal mining on ted use and development pattern in West Virginia is nearing
completion. Using a combination of remote sensing and geographic information system
(CIS) based analysis, the study v/ill show tlie market need for flat land based on
jroxinityaiiddaaegapnk*. A catalog* of actual versus proposed post-mining land
use for past mountaintop removal sites will be presented.
/ A future mining study is underway that will use G1S, combined \vith mining engineering
principles, to show areas of potential mountaintop surface mining in steep slope
Appaiachia.
/ A GSMȤed modeling effort is bejagcanied out independently by the Canaan Valley
Institute which includes assessing the ciomiilative impacts of present and future mining on
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a major-watered basis. The results of fcat effort will be aseftd fbr the eumatatit'e
impact sei-tion of the EIS. Land use changes will be modeled using specific
environmental indicators, such as percent headwater streams impacted, degree tf forest
fragmentation, etc.
A Grotiadwater Hydrology Workshop was held wMeh twolved discustioss of 4s
requirements for baseline data collection, %dtologie consequence analyses, aod typical
bydrologic impacts related to surface mining. Findings md conclusfons from the
workshop will be published on eonjwtet disk in the ant moodt
and 1 in Kentucky. Data analysis is ongoing.
/ Additional modeling ofstonnrunoffeffectsondowcstreamwater levels isur.denvayto
assess nobnution eonfipnsJirias of AOC -f- and teforegoatan ground eovw. A die in
Kentucky will be modeled ante several "during mining" scenarios as well .
/ OSM commissioned tv.'o research studies to evaluate the effect of blasting on weils and
non-traditional rcsidentia! construction. The studies may not be completed before
israaace of fhe draft HS, but result* should be avaiitbie prior to publication of the final
BIS. '
/ Stream chemistry samples ware collected by WVDHP mine inspectors at the same sites
used in the completed inacroinvertebrate analysis. Stream sampling began in October,
1 999 and results are available tarou^i May 2000. This sampling is expected to continue
through January 2001 . Quality assurance/data verification reviews wifl be conducted and
a report is anticipated to be available in Spring 2001.
/ Macroinvertebrate and water quality studies were performed in several watersheds
located in both West Virginia and Kentucky to assess the impact of mo'.intaintop
mining/valley fills on aquatic resources. While the results have been published for the
studies conducted in West Virginia, the results Sn Kentucky ate Dot expected to be
available until Spring 2001 .
Conclusion:
This summary was intended to update the public on fw».9i)v
To: "Stump, Jennifer M."
oc: Wilem Hofftnim/f^tAJSSPA/US^SfA, "KoS^mKm, Witt«am
00/26/01 10:59 AM
' Dantetjfc*msey@fws.9av
Subset; He: MTM/VF EIS cumuljMive Impact assessmant
ft!
for fl«iiding out the
plan £or
I am very eonoertKad about running ail of tlust Mtejaat-ives without a 0%
fop*«t ^covery seenasria, £of til® followit^1 reasons:
With all dud respect to Surgfcr's rettftarch, re-establishing nati
forests cm reclaimed ntlxt«s i» still exp«riB»mtal . we dcen*e 3«iow wJiat the
long-term suocesa will be.
if &ar«Swood forests c&o tee re-establisiied, it raiiotild be intuitively
obvious fchafc they'll be m dhr&ffltelttally (3i.££ar^dt ecosystem £;eom pfffis-aiiridLBg
for«»t.8 for gffiQerations^ i£ rwat thouaar«2s of yetaars, until leaf litt«r
builds up, au tmderstory and lisrbaceous plant coaamanity d«nrelopf and
hydrologic oonditiens can r«-eatablisli thssmsftlves . "Sbreat reooveory" in
your scenarios iiKpli«fts that we*^r« g*tt.ing back exactly what we lost.
t&e indtsatry IISMB shown & lot of opposition to itaplementing Surger ' a
r^eoasasasdations . 2f thay cot^pletely SMjilk at widespread ii^lemffintation (tx>
ths S0%, 7S%, or 100* lav^l), tfaeoi wa hav® no r«Bpresentattioa that will
depict tlie impacts o£ each valley fill restriction altenmtive.
West Virginia feallca of aie t»ed for fhe> flat aresas created by mines for
commarcial de'V^&api«nt purpos&s. Shis almost certainly conflicts wit& a
7S% and 100% reforestation scenario, a»d probably even B0%.
"ConteHf^ciraneotiS r®al^K»tieai* is sort of an oxymoron- when w«'ra talkiasr
about , trfeea ', If HKast of th* adalug1 i^aots Imsipien in the next 15 yeatts or
so, it will ba 404- yearai beyond recla$aation tintil w§ ba-ira pseu
-------
06/06/01
02!*« VH
>, "Rjfslmatm, wtlhalm
(\"Chtp\"!«
Subject!
cumulative
tftn/Vf ett
assesstaeat
«appro«cfl>.t»i>d» As w« diactuwd, tl» attaehsi
-------
This document HW prepared 'on Wednerfiy, August IS, 3801 «8 a w«klng toft fer internal taengency
disswioii* among ra«Bte»p«s«tin8»g«ei» of tkeEtS sewing tram. ItepdriniAiieguHnfcttem
contained in Ihis document have not been confmncd or endorsed by the EiSSlccr.ngIram or their respective '
ageaeiea. ' . .
potential cause and effect telationskqss, ie» can specific chemicals be lilted to the btelogjcsl
impairment Should such relationships be established, consideration should then 'be given to
developing or revising water quality otiferift'dMlfded to protect aquatic life. Consideration
should also be given to the types of controls that might be implemented to reduce these pollutant
jy. Streams- Water Quality
Preliminary results fiom this investigation found that a number of parameters were
elevated downstream of mining operation and &tt eron higher concentrations were found
downstream of fills. Differences varied by several orders of magnitude. Specific conductance
values differed by hundreds of uohm/cm2. Sojfete concentrations differed by the hundreds of
tng/L. ' Alkalinity, total calcium, mid total magnesium differed in the teas of rag/L. Chloride,
total potassium, and total sodium .differed in the mg/L range. The" preliminary Investigation also
found that raining activity in the study area does not appear to cause any difference in several
parameters. Those are: dissolved aluminum, dissolved iron, dissolved manganese, total
beryllium, total cadmium, total copper, total manganese, total mercury, total phosphorous, total
silver, and total zinc. Analysis is ongoing and the results are subject to change.
RecomMendatiqris: Water chemistry monitoring efforts should be continued to establish
potential cause and effect relationships, ie- can specific chemicals be linked to the biological
impairment. Should such relationships be established, consideration should then be given to
developing or revising water quality criteria designed to protect aquatic life. Consideration
should also be given to the types of controls that might be imfrtemerited to reduce these pollutant
1.
V. Wetlands; • '
Prnhiem This investigation concluded that -wetland resources do not seem to be a major natural
land cover type in the steep slope terrain of West Virginia. Tfte percentage of vegetated wetlands
(PF, PEM, PSS designations) in the five watersheds studied was found to be extremely low,
representing less than 1/10 of 1% of the -watershed in all case*. The majority of the NWI
wetlands in these watersheds, fiirthenaore, consisted of uavegetated wetlands, and appeared in
most cases to be sediment ponds (PUB designations) associated with mined sites.
The investigation also found that wetlands are becoming established in many sediment structures
located on the tops of mimed areas. The wetland functions being provided at the tea wetland sites
studied (mainly linear drainage structures and basin depressions) varied. .Many of the wetland
systems were providing excellent sediment stabilization functions, and a few were providing
good water quality (defined as nutrient retention) and wildlife fisnctioas. -
-2- •
This document was prepared on Wednesday, August 15,2601 as it working draft for interns! faterageacy
discussions among members representing agencies of die EIS steering tsam. The problems/recommendations
coataked in this document have not beea coafitmed or endorsed by the £13 Steering team or their respective
agencies.
HisommMndations: Opportunities appear to exist fcr the creation of functioning wetland systems
on rained sites. Planned wetlands, if incorporated into, the restoration design, can provide
valuable ftinetions by enhancing sediment st»HBzatioG, water quality improvement (nutrient
retention), and wildlife habitat on mined sites. As the structures studied were designed to control
sediment, we expected them to score highly in this regard. The defined water quality function,
on the other hand, is very much dependent on vegetative cover within the wetland system, and •
the low percentage of vegetative ©over at these sites appears to be the reason for their low scores
• in this regard. Wildlife scores are also highly dependent on the vegetative communities present,
the degree of interspersion, and other physical and biological features of the system.
yt. 'Aquatic Set/system Enhancement: ' . . •
Prabltm: This investigntioa/syraposlam found flat fc is dfflcult if not impossible to reconstruct
tree flowing streams on or adjieent to rained sites. The diffieolty.resits fioni the inability to
capture snfBcieat grotiadwater flows necessary to provide » constant source of flow for the new
strewn. Only in rare instances will flows be sufficiently captured sueh that a new stream can be
created on the mined site.
The investigation/symposium also found that it is possible to create fijnctioning wetlgnd systems
oa ntined sites, and that offsite restor&tior^enhsnceiaentoppofturiltieg do exist as a ineans of
compensating for lost resources.
%ecammemlatioas: While mitigation or compensation for strewn losses that generally tafces the
form ef restoring degraded streams at offsite locations will seldom replace the functions lost ia
the headwater areas, they caa provide or enhance other aquatic ecosystem functions, and may be
considered as possible mitigation measures in limited situations.
Ponds and wetland areas have been created on mining sites, in connection with sediment control
structures, and these areas do perform some aquatic fcnctions. However, it is common practice
to remove the structures alter the bonding period because of safety and/or long-term raanagernent
concerns. Consideration might be given to leaving shallow pond-wetland resources on site.
With respect to the mitigating, downstream efieets, the stream studies discussed above have
observed that certain chemical parameters are being elevated downstream from valley fill
operations, and that these water quality impacts may responsible for the advsnw effects that are
being observed in downstream biological communities. Further work is necessary, therefore, to
evaluate these poteatial cause and effect relationshrps tad to develop appropriate controls to
minimize such effects.
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Tfeis document was prepared on Wednesday, August 15j2SCH asaworidsgtfeaHlbriiite&aal ifcteragejsey
discussions among members represttttag agencies of the EtS •wring tsxn. The problems,'rKoir.mcnd2tions
csnt»ln«d in this document have not been amfinned or endorsed by fl» EB Ssering tnm or fceir respsctlw
.agencies.
'F/i • Post Mining Land Use
Problem: This investigation found that many sites are not being developed as envisioned when
PMLU variances an granted, tad that the supply of flat land seems to outweigh fl» demand.
Seeomtqendatidns: Greater consideration should be given to improving a site's iaftastraetare •
(access, water supply and other utilities, etc) if residential, commercial, of industrial PMLU is
the objective. • ' • •
mi- Soil Health/Forest Productivity
Problem: Current reclamation practices result in conditions that discourage the re-establishment
oftrees, • '' . •
• Requirements for erosion control have promoted Ine-use of vigorous herbaceous ,
vegetation that prevents 'the establishment of trees
• Requirements for erosion control and site stability have resulted in excessive compaction
of the rooting medium, preventing establishment and/or proper growth of tees
• Native topsoils, which contain "aB of the living matter tot makes the collection of sand,
silt and clay a living soil enable of sustaining plant life," are rarely salvaged.
• • , Variances to the requirement that topsol be removed, segregated,
stockpiled, and saved for redistribution aie routinely granted
• 'Recognizing that Ml topsail is not created equally, topsoil substitutes are
permissible, provided the new material can be shown to be as good as or
better than the original topsail... AJs is an area where on-the-ground
failures occur. The approved substitute material ts often whatever material
ends up on top, regardless of the pro-mining overburden ten.*
* . • When selective overburden handling does occur, there is a bias towards
salvaging fine-textured, high-pH soil materials that are good in an
agronomic sense; that is, they provide favorable chemical conditions for
the growth of graves and legumes. These materials have a negative
impact on
-------
This deoimfflia was pt^ared on
discussions among members tejseseiittef agencies of the EIS steerfeig te«t. T&« j
eoBBtajd ta this deaiBieat taw not been confirmed «r endorsed ty the EIS Steering team or their respective
agencies.
* The study was unable to document tatt grassland habitats on large-scale surface mines
are good for grassland birds, and left open the question that they may in fact be
population "sinks." Additional study is taking place this summer.
• ' MTM/VF results in a shift from a woodland raptor community to" a grassland raptor
comonnuty.
• * Salamander species decreased wMe snake species increased as * result pf MTM/VF.
Hcrpetofauna] species that require loose soil, moist conditions, and woody or leaf litter
ground covet generally were absent from reclaimed sites.
RecommmilatiarB
Minimizing soil compaction, establishing a diverse vegetative cover, and adding coarse woody
debris to reclaimed sies would provide habiM for some tepetofaunal species more quickly after
mining.
Other proUems inftrnd by the Mail/ rtsttlte
* Large-scale surface coal mining will result in the conversion of large'portions of one of
the most heavily forested areas of the eoantry, also considered one of the most
biologically diverse, to grassland habtet
• Unless reclamation practices ate changed drastically, it can be maimed that this •
forest to grassland conversion is, for all practical purposes, permanent
• EvenifredamaMonrracticesarectanged,weraust$tlUcoiBidsrlherecoveryofa
fonetiontl megophyfc forest ecosystem as a Jong-term ecological .experiment with
. uncertain results.
* . Various oflier potential post mining land uses, such as economic development
projects, may conflict wife reforestation efforts. • •
forest interior bird species'that have, extremely limited breeding aagei, including the
cerulean warbler, which is carreafly under review by the Fish and Wildlife Service for
endangered species listing. Even if the grassland habitat created by recltmation is
optimal habitat for grassland bad species (wbfeh may not be the case), this region is
outside of the primary breeding range of these widely-distributed grassland species.
TM» ddOBMBt WM prepared on Wedaexky, Augwt 15,2001 at a woiktag
-------
This document was j»repansct on Wednesday, August IS, 2001 as a working deaf for mfemal tsterateney
' dlscyssions among metabeis fepreseiitin§ ageacics of tlie EIS sieenag toarn. The profeteuis/recominBtidatioits
contained m this doetimeiit have not bees coa&me4 or eadotsed by the i!S Steering team or their respective
1 This document was |}rcparad an Weiiaesday, Atig ast t S, 2301 as a vrorkiitg dra& &? Sterna! ktersgemcy
. dlscttssioos smxmg membsm tepresestlRg agencies of the £!$ steerkg team. Hie prpblems/reeocnttieiKktioas
con^laed in Hits docomest have &st been ccmllmted or endorsed by t&e £i§ Steerbg team or iMr respective
R/ssammendatitin: Better eommuaieation between the coal operates and the citizens in the
community may significantly reduce these Wads of complaints. Sotne operators and regulatory
authorities have successfully held public meetings to inform and involve the public oa its
proposed blasting plans.
XV Blasting Dust aid Fumes (Dr. English study & Blasting Complaint Study)
Problem: Blasting tales and 'gagas ate byproducts of the explosive reaction of blasting agents
used on modem mining. Because the temperature of blasting gases and fumes is higher than
surrounding ait, most often these byproducts rise to higher altitudes and dissipate. Blasting dust
is heavier than air and drops from suspension a start distance from the site of blast. However,
both dust tad fames may aflect residential areas adjacent to the blast area under certain
meteorological conditions.
Recommendations: Blasting most not be conducted when winds will direct dost and tales
towards nearby populated areas or daring times of temperature inversions. Mining companies
typically retrain from blasting daring temperature inversions. Some mining operations use
windsocks located in various locations around the mine fa order to monitor wind speed and
direction. This has proven to be a low technology arid low cost solution to the dust, ftime and gas
concerns.
XVI Blasting Effects on Wtter Wells (J. ftiwfctes Presentation Qroundwmter Symposium)
Problem: The minor water fluctuations attributed to Wasting may cause a short term turbidity
problem, but dc- not pose any long term problems. This fluctuation would not cause well
collapse, as fluctuations from recharge and pumping occurs frequently.
Most of the long term impacts on water quality ate due to the mining (the breakup of fte rocks).
The mechanisms of these changes (via pyrite oxidation) are well known.
They increase the dissolved solids component especially sulfate, iron, manganese,
aluminum, and sometimes sodium. Occasionally, other minor metals show up.
XVII Oroundwater Impacts (R.Evans Presentation GroundwaWr Symposium)
Problems; Sul&tes, conductivity, total dissolved solids, and metals frequently increase ia the
groundwater as the result of mining .
Recharge to stress relief systems frequently changes spoil water storage and discharge. '
Reehai>ge of *%poii water* to streams rreo^ienlry increases the sui&ies, conductance, and total
dissolved solids. Metal contest may increase but will usually retam to pterninfag levels after
reclamation.
ReeommeitdattQms; Farther research is needed to study the relationship of geochemistry to post-
raining water quality.
Addition research is needed to study the flow path of ground water through mine spoil.
Problems Identified with fodgtam Coordination
XVIII State Programs with Federal Oversight ' '
£K4te.' Requests for interpretations and guidance Scorn the federal oversight authority by the
states are routinely given-little to no response. ' - •
1. AOC
2. Buffer Zone
3. Adverse or Minimal Impact standards or guidance,
4. Cumulative Impact!
5. Mitigation
froltle^: Lack of clearly defined terms to different Federal programs required for
pennlts/asttens «t Use s««e facility and their relatioaship to each other,
1. Waste vs. FUl ' .
2. Minimal impact vs. Adversely impacting.
3." Many different stream definffloas. • '.
ffoSfem; Lack of coordination between Federal programs for the same facility.
1.' CorapletgSMCRA permit reqofcedbefixeUSACE 404 permit reviewed.
' 2. Eadangsed Specifis commeiste received after SMCRA permit completed
3. USEPAobjeetierB under 402 after SMCRA permit Issued or 404 issued.
ffoMem: Lick of regulatory equality in the Federal programs from stete to state.
1 , Some state were required to get their 404 permits while others were allowed to slide.
-g-
-9-
MTM/VF Draft PEIS Public Comment Compendium
A-369
Section A - Organizations
-------
m
f, at-
ttti
Tki» document w> pnpmri on W«*»esday, Augost 15, 2001 as a woftttg int fa- injontl taKograey
dismssions among membew n^nssratfng agartw of the HS Meeriag team.
agencies.
_
2. Some states haw had been held to a high« degree or standard to the same USEPA
regions wMle others mi not Regulations not approved for changes in stancteds when
other states don't even have that standard in the same EPA Region.
3. USAGE not taplemeatteg same standards of requirements in VA, KY and WV for
404 permits,
United States Department of the Interior
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-10-
MTMA/F Draft PEIS Public Comment Compendium
A-370
Section A - Organizations
-------
- ftt «"
KM QMS «
./« «n u = is MX TW »t» IMS ni. .MMRM
~ .-1
To: Dave_0ensmorg@fws.gov
ee CMy_ll>MI0lM4iw, MUM RsWison «MR08lNSOeoSMa6.GOV»
fMfaMMt«*tot»flMa*afe*|i44
' William Hoffman
1*11/01 04:01 PM
Many o? us wiil be in M-iapo;(S tomorrow. WomJghtbeab-'e tosetupacal; around 1prn.
Dave__Densmore-©fws.QOV
0ffir»J3an8mem@*w* TO: feflfca RatslnsBn
Mike:,
s to say,- this is not a shining example of aur D&parti&eiit having
"spoken witn one vqiee, * since I can find no «Ti«te&oe ofi anyone at PWS
hatring rovietwed or ccmetirred with thia (tpsproach. Regairdl«ss, bases! on a^
initial r«^A«wt 1 fJU^ I osrmot «y|»|^3rt this ^i^rQ&ch, if t&z «o oth«r
reason tliaa. the ceeorci having amply dtmoastratffid that it has b&en. the
a&sence o£ fedterai oversight, not its ccwifounSling influence, that has
gotten us in the fix we ar« ia EBSM. tlaforttimately* we will have ao
opportunity to discass this furtfeex next week, sines® my antire office sill
be at a workshop at 8CTC. If folks con gat tog«thar this • aft«zrnoon or
t(KE^rro«, that mi^fet work better.
DO.
"'".i™,: •«-"•• —-.
"Mike
a^binson"
OJROBHISOItWJ
10/11/01
09:06 AH
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. X, . Wood^Slrdor . usacs . army *
,
,
,
,
e@ fws. gov>,
Kovacie"
,
,
,
,
cc: , "Al
Klsin" «J&KtEIM«OSI«E.BOv>, "Bill
, "Bav* Burtos"
, "Buck Miller*
EXHIBITS
MTMA/F Draft PEIS Public Comment Compendium
A-371
Section A - Organizations
-------
"Roger
"Robert a.
*, *81«Ma OWSM"
, "John Craynon"
, '"IiMxy Trainer"
•a.TWUMORiQSMRE.SOVi, "Mary Josi«
Blanohard" ,
Calhoun*
' Willinm Hottmsn
ton WOT 02W nil
To: iWM 8«*«o/OeWSiPAAI8@i»»A
Subject! MTWVF Sriefing & OSM Vision
Here's tho briefing we gave for the RA yestorday. It should come up If you dick on It, and it
. should keep working with each click. I've also included the "vision" tint OSM developed In
rasponsa to the Grilos letter.
fenn". <»PEKMIOSMRK.GOV»
Subject: SIS Direction
October2001IV.Briafifig1.0 OSMVislc.n.wp
OSM h£s r&eeiwd some executive direction from the Bepartwrnt of the
Interior on a overall th®» for the SIS to anfisraea. Attached is a sketch
of our thoughts on hesw w« can seco^pliali the stated ori^iftal intent o£ the
SIS'—botli impewing anirirofimsntal ptot^ction and- go^arnit^nt sfficiency.,
It's also in line ^«ith th« Pr«sidaat's dssi^sd direction for the enftrgy
policy, tha document w»a shared by Dtpaty S«s:retary Gril«s with many of
the principals ol our agencies this Monday »t a meeting with thffl
President'a _ council on Environmental O^^ii^V- I*d-lifce to have, an Els .
Ste©£ing CosHaittee call to ssqalain/discass this concept, and g«t your '
feedback aoiastim^ next w«®k £or an hoax/aotir and a half. Cotild you £et me •
know of .your availability for a call on, say Tuesday or
(Sea attached filas Bhiteliapsr.final.doc) '
WhtePapsrJInal.
EXHIBITS
MTMA/F Draft PEIS Public Comment Compendium
A-372
Section A - Organizations
-------
Executive S
A Plan to Address Mounraintop Mining Issues in Appalaehia
The ...Vbfami Streamline the regulation of vattey fills by
cmattng a "tme-fUep" permuting authority «> saOs/ji ell
pertinent statutory requirements.
Water Act (CWA, Sections 401 and 402) and die Surface Mining Control and
Reclamation Act (SMCRA) within their borders.
© The states permit surface coal mining and reclamation operations under this delegated
SMCRA auAorirv'-with oversight by the federal Office Of Surface Minin g (OSM) .
The states also peonit associated efHnent disctoges to the "waters of the United
States" from these mining operations oxter delegated CWA authority-wMi overact
by the Environmental Protection Agency (EPA). '
© The Corps of Engineers (COg) is responsible fa regulation of "discharges" of
"dredge and ffll" material (ovabunten, or excess spoil) fiom surface coal mining
operations under CWA Section 404.
© A setfementag-eemant in the Southern District Federal Court of West Virginia
(Jmgg v Robtrtson) provided «a interim ftamework for surfttee coal ratniftg permit
scrutiny by these agencies until a programrrjatie environmental impact statement (F,IS)
on steep slope, Appalachian ntouaatatop mining and valley fills is complete.' The
EIS purpose is to:
"Consider developing agency policies, guidance, and coordinated deoision-
making processes to miriimize, to the tnaximuin extent practicable, advei-se
environmental effects to waters of the United States audio fish and wildlife
resources from niountaintop mining operations and to other environmental
resources ftat could be affected by the size and location of fill material in valley
ffll sites."
© llieEBflnaljfzH(ltam«dvctibrenh>Ddii(envfaooam>td protection, advancing
government efficiency, and allowing for continued efficient production of energy
resources for the nation.
Statutory Concepts:
© UK CWA est&BafaedgeBwijtttodplegpBwidlBgthattapacts to the waters of the
U.S. must be no more ten minimal unless there is adequate mitigation (nor case
more than significant adverse effect unless there are no practical alternatives) to offset
the impacts. A project that proposes to affect these waters must demonstrate that
alternatives are considered; that the alternative chosen results in minimized impacts;
andthMnoiiia^aialtBrnjrtivetocoBduDlwgtheproJect-Bxisls. "Nationwide" or
"general" permits authorized fty the COE allow projects where net impacts are "toss
than minimal,* in accordance with CWA Section 404. Where impacts exceed this
threshold, a more comprehensive "individual" permit and National Environmental
Polity Act (NEPA) analyses are required.
© SMCRA seeks similar nuntaitatioa of impacts (to tte masdmtim extent practicable),
but its remikements earnot supersede the CWA.
Problem:
0 The j&agg settlement igreemeitt increased COE and EPA uwolvemsBt in the review
of coal mining permit applications, effectively creating independent state and federal
regulatory processes. Similar, overlapping, or different SMCRA and CWA statutory
pnvisions cause government iieffieiattey and economic iasttbflity within the volatile
Appalachian :conomy. This situation has improved, but not maximized,
VisionySolution:
We propose a comprehensive "ozse-stop" permitting authority within state government to
satisfy CWA mi SMCRA Programmatic changes to certain SMCRA regulations can
provide a ftamework to ensuw tte environmental protection envisioned by the CWA (as
well as SMCRA), aad promote government efficiency. These rale changes are subject to
the Administrative Procedure Act, and should be adopted only after opportunity for fall
public review and comment (and coaoarrence by EPA). The NB?A compliance
requirements fcr proposed SMCRA regaMons would be satisfied by concurrent
publication of the draft EtS with similar alternatives to the proposed regulations.
© OSM would establish penmtfMg requirements and perfoonana standards, through
tnlemakiag, to assure eosnpBanee with CWA 404. Subsequently, the state would
amend their programs to reflect these requksmests. These proposed rules would
include modification of the stream bufier zone rule, development of fill minimization
requirements to the CWA 404(bXl) guidelines.
o Currenfly, neiher SMCRA or state regulations oonteia provisions for the
eoastdeiedwhenplasiBBf aeoalmiw. Nor is it expttdt in OSM of state rules
that fill tsiotaisBtioB,eoMid«ra&GB* ate »te
-------
o The SBZ ride is viewed as more sariagent than CWA standard*. Ksvisienof
the SBZ rule mast be integrated witfc all otto- regulatory changes to reflect the
CWA 404 requirements.
© SMCRA rulemakiug would complement the ongoing COE ralemaking to define
overtrade!! material generated by surfeee coal tninrag as "fill" (for the purposes of
CWA Section 404).
® We propose to delegate toe CWA 404 program to flie SMCRA rsgalatey authority.
The CWA encourages delegation; which is possible foe 1) all types of dredge and fill
activities in the waters of the United States; ot, 2) certain limited but similar activities
(e.g., coal mining). Two stales obtained total delegation of tjie CWA 404 program,
and IS states en issue "state programmatic general permits." This proposal is
practical because:
o Tte SMCRA penmt is already the ptefcnn&rhydrologieal and biological
impact assessments, as well as engineering alternative analyses envisioned by
404(bXl) Guidelines.
o State SMCRA- and CWA-detofated program staff includes large, muW-
discipli nary groups of scientists and engineers familiar witt mining proposals
and their impacts. State program* have infrastructure in place for inspection
and enforcement. COK districts have more limited staff and mining expertise
to conduct permit review, inspection and enforcement.
o The state regulatory authority agenmes must routinely coordinate CWA 401
and 402 and SMCRA permit issuance. Integrating CWA 404 evaluations with
this current practice is a fundamentally efficient and reasonable process
control god for the Federal and state governments to embrace.
o Combining the existing stale CWA 401 water quality certificati on «thoiity
for mMgstton with state 404 delegation provides all the accessary components
for the states to review applications and issue permits that create less than
Benefits of the Vision:
® CWA 404 delegation to the stales introduces a nimher of effiekneics. "One-stop"
permitting fbr coal mining arid reclatuatlos operations will result in:
o earlier aad better public piz&eapa&m
o integrated regulatory programs under two federal environmental statutes
o streamlined processes with imjKOwd envfaoamental protection
o reduced processing times aid costs of permit applications.
reduced program administration costs
a singie entity \vithcoalminingrcgtilatoryexpertisc
a framework for efficient, environmentally responsible production of energj-
resources
clear environmental performance targets for industry and regulators based on
combined analyses of SMCRA and CWA performance standards •
o better basis for decisions and findings by state regulators
o allows states, which- know more about environmental resources within their
borders, local conditions, etc. to set priorities for mitigation
o comprehensive Endangered Species Act evaluation and consultation process
Refocusing of the EIS:
© The proposed vision accomplishes the stated rntent of the EIS. The F,TS, as currently
drafted, however, does not sufficiently consider options for centralizing and
streamlining coal mine permitting. The scope of the EIS should be narrowed to focus
OB mWnnziijg sad mitigating impacts to the waters of tfce U.S rather than the broad
scope currently contained In the draft
MTM/VF Draft PEIS Public Comment Compendium
A-374
Section A - Organizations
-------
' Wiltlam Hoffman
01/0*02 08:88 AM
To: FtehKarnpfm3/USEPA/US®B>A,.a«sO[y
P«ck/0C/USiPA/US®3>A, Saint Surtar»/DC/USIWyUS®e»A,
John Goodin/DC/'JSEPA/U3(slEPA. Brtrttf*
M»Hoty»C/USIPA/US@IPA. John Llshman/OC/US»A/US@EPA,
AsbtcM H««rrar/R3/tlSIPA/US®B>A, Ray
QeOfge/R3/USEPA/US@EPA, Kathy Hodgkl8S/R3/USIPA/US@SI*A
Subject: Alternative Framework
This cams right out of th® blue last night, Th»re has bwn absolutely no agency coordination (to
my knowledge), and it flys In the face of all of our previous agreements not to 'designate a preferred
alternative. It is also flM a N1PA or CEO requirement.
If anyone knows any badtflround.on this, I would appreciate being brought up to speed.
:— ft>rw«rd«i by Wffliam Hoftm»n/R3/UaiPA/US on 01/08/02 OS;*t AM
, Mish&fi* Robinson TQJ WMarfi Moffmsn/H3/USiPA/US@SPA, J9fuftip@gfn@t.coit>,
iri3Qn(s*8g!j*at> dvsrtt(3!iftcle®fna!t,£e33.iitate.wv.u8, Ftuint(tf@m3iUJBj$,8tat0.wv.U8,
01/07/02 08:12PM J»m*fcM.Towns««d9M02.us«<»,i!r«ny.rflIl,
ettark839e@aol.corn ' ' •
cc:
Subject: Alternative framework
Attached is a new Alternative £rasi®work Tafala for disctiasdon o»' tomorrow's
or ensuing day'» eoa£er«jo« calls. You will note that I .oado alternative B
the "proposed action," and ra-lffitter®d formor Alternative C to s and
fora** D to c. .
This is a result of discussions with our WML folks «md • in line with what -
33EPA and tiie C3SQ rtilas r&^uire—tfhicti we e&n explain tomorrow or
wfceaewr. I alao moima other action* to Tisr til beeaxaa timy didn't fit
tha overall tk«me of otzr alfeernafeiires. To &A &&1& to «x|>laia th4
alt«rmativ^s to eseecmtivas in our agencies/Separttmsss*, X mlso added a
statement cm JVltextiativ^ A for ®&«s!i action aa& a problem statement to
justify ea$& action.. %ede adtiitions are aot to be exmsidered coi^)l@t@ as
written, but just a sot&ewliat .illuatratiive or a mock»i^ of a proposed fortsat
that t believe tm ancmld oot^l&tffl for |>£as«ritatiot! "u^ otar ladders.B *l&%se
•ehang%s ar« based on feadSjacfc £rom OSM raana^a!itsnt on tM earlier fraiameorlc
datad 12/20'.
I'll talk to you folks tomorrow at i pm, oa ttw sa^ dfal-up niaiber that
we've be®n tisin$. if you've misplaced the ntunbar, 0ivm 0)fi a omll
412.9J7.28S2 «nd I'll fiv« it to you. MKS
Aiiernativa Fnmemk.1.?.OUwpd.
To: Baine Suriano/DC/USEP/VLISgEPA
' William Hoffman
OiaWZlttBAM Jarr^HsvaraTDC/USffAWSeEPA. Joseph
Mortgomery/DC/USEPAAJSeEPA, Steven
NeugL-borcn/DC/USEPA/US@EPA
Sut$»et rteMtTopeonf cation 1/2W2at 1 Plug ' :
Just to clarify- OSM does agree that the terrestrial impacts are an Issue that win be "addressed" h the
EIS- they are, however, claiming that the terrestrial issues are Insignificant, and that the terrestrial issues
should take a back seal in the EIS analysis. We have developad "tiered" actions in me EIS. The first t;er
• includes actions we vrtl Implement but (hat are slightly different depending on the alternative that gets
selected. For example, enhanced monitoring wi!l be required under every alternative in the EIS. but (he
monitoring will be more comprehensive under the alternative that allows 19(8 into perennial streams than
for the alternative that rastnofs fills to the ephemeral zone. The second tier includes actions that wii: be
Imoleinented the same under every alternative- such as enhanced permit coordination procedures. The
third tier includes actions that would be nice to do, but no commitment is being made to do them. Furttw-
because tier 3 is a "wish list* so to speak, the EIS would not evaluate the environmental consequences of
their implementation with the same degree of analysis- since they never may be- implemented. The
current problem Is that OSM is trying to put at the actions related to terrestrial concerns into Tier 3- which
reduces the scope of analysis significantly.
More importantly- end the focus of our concern- Is that OSM is also daiming that even If they conceded
terrestrial issues to be significant SMCRA does not give them the authority to do anything about it. They
have even gone se far as to say that SMCRA ojojjfbjjs. them from taking actions In tie uplands to require
reforestation, because that is a deal that get* worked out between the landowner and tie mining operator
under the PMLU agreement (that they must approve before a variance is granted????). If the PMLU is lor
pastes- they argue that they cannot require the landowner to do something else (l>ut again- they have to
approve the PMLU as a variance from returning the tend to iis previous condition). In a nutsheil, we are
arguing that if the prernining area Is forest, then the operator must get a variance to return It to anything
else but forest* and that SMCRA does not prohibit hem from taking actions to ensure the land it returned
to forest.
Eialne Surteo
Bairn Suifario
To: VWIIam HOfrwn/ftMJSePAWSeB'A, Joseph
Peck/DaiiSEPAAJSgEPA
OK OW Rwfer/BCWSEPA/USeePA, James H»«a*OC/U8EPA4JSeiPA
Subject Mt Top con! cs!l on 1/23M2 at 1 PM
Par my earlier anal summarized below it looks lite mart fbitts are avafcble at 1 PM on W«d, 1/23. If you
have not sent me the #wa need to oai! you at please do so.
Ores - If you are unable to participate please ask someone else from your staff to sii in and have twm
send me their phor»». Thks.
The BS workgroup know* ftay have to ad*n*s impacts So terrestrial nnutoM, but OSM maintains they
do not have to address It ta the attemaBvts shea «wy do not have the authority to take aetien. CEQwill
Blvs them more IT* on th* count V»8elv«ul(lntftir*ofte«r«rWwri«tau»8rIBesithasofflBially,DUt
we are entitled to * reasoned discussion about auftoray and prenibiBens of taking actions to address
EXHIBIT 10
EXHIBIT 11
MTM/VF Draft PEIS Public Comment Compendium
A-375
Section A - Organizations
-------
«(GV
wjjjan, Hoffman
01/31*210:18 AM
To: Elaine Suriano/DC/USEPAAJS^EPA
Subgeetr Rsi Draft nates of our 1 /2S/02 post CEQ sKset^sfonj^ '
,nnarv of 1/29/02 mtg... dAriritog JftaaiCBD qpfate on Mt Top SB
Thanks- looks OK to me. W& hatffc an Internal meeting with the RA to discuss tfte Issues on Feb
4th. 1 wli! keep you Informed as appropriate.
BUI
Maine Suriano •
To: Joseph Mor,t3ome.-Y/DC/IJSEP/vuS@EPA, Gregory
Psck/DC/USEPA/UseEPA, Miohaei Castle/R3/USEPA/US@EPA,
Elaine Suriano
01/30/02 06:50 PM
Ho«miln/Bi/U8S"A/US9B>A
Subject: draft rt&ttts of eur 1/29/02 post CEQ d&eusshsft
I have attached * summary of our 1/29/02 post CEQ mtg. Pie ass review and edit if necessary.
My notes were Just bullets and I did not get everything down. So, **sl free to modify per your
notes.
epsfarmwpd
Office of Federal Activities
Environments! Scientist
Ph"202/§64-7-182, Bt-S«4-0072
Joe Montgomerj', Biatne Suriano. Mike Castle, Kathy Hodgkiss, Bill Hoffman, Greg Peek
H"A steff convened a meeting to dSssass aact steps 0wn fl» iw»s diseussed a fli* CEQ w^
aud oflier ftetan q)tijeetiags. Does anyone know the status of the 404(c) «e&»
related to tliis case?
While Nationwide 21 was discussed it does not appear that the EIS will 'OB shedding much light
oaftoseissaej. DofliecoaHnfliastetEPAMaiedoiiNstioiiwideSI haw my relevance to the
MTTopHS?
Some of our next steps depend on where the workgroup goes .from here. It may be useful for this
group to have another discussion in a few weeks. •
EXHIBIT 12
MTIVWF Draft PEIS Public Comment Compendium
A-376
Section A - Organizations
-------
' WiBfam HeffcniBi
«A.
«( (3V oa;o7«a o$:<»7 AM
Rebecca:
To; Rebecca Har.mer/R3/USEPA;US@EPA
oertnetft WTWBVatey W B1S||
The length of time Don and Tom have allotted for this meeting indicates its Importance. They want
to be briefed on all the finer details involved with the SIS, is- the tech study results and the
alternatives/action items we've developed, so they can understand the policy choices now before
them and the Agency. Don fs having a meeting the following day with OSM leadership- where vie
can expect OSM to promote their vision, their desire to pick Alternative 3 as the preferred -
alternative In the draft EIS, and perhaps their desire to eliminat* terrestrial action items from being
actively considered in the HS as oat policy response options. Shortly after thaw two meeting*,
we will take the show to HQs- where dedtions will probably b« made on the direction w« want to
take as an Agency.
If yoyr call doesn't happen or ends early-1 would really like you to be there W ooMlbte to back me
up. Thanks!
Sfenkamp/R3/USEPA/UE@>F.PA, Tom Voitaggio;n3/USEPAWS!9EFA, William
ee (optional):
(M/08/02 Oi:44 PM
To: Kathy Kodokiss/RS/USEPA/USdSEPA
ec; WMam Hoffman/R3/USEPA/US@EPA
Subject: Ra: Declined: MTM/VtAty Fill tISg
Kathy, I appreciate very much b®!ttg invited to this meeting and regret having to decfine. I am om
of Die co-chairs of the Ches. Bay WQ Subooirpt. and we have a subcommittee conference ca§
sohtduM Monday from 2:00 until 4:00. If the call ends early, i wffi come to tile EIS meeting if it's
still going on. Please tot nic know If there is a change in schedule. Thanks, Rebecca
You have declined this request
Ydu have declined this request"
Begins:
fads:
02/11/2002 02:30 PM Local Tims
02/11/2002.04:80 I'M toosl Tims
; Conflicting dates:
! THJflt
I Location: RA's conlarenca room
; Chain Kathy Hiidgklss/R3AJSEPA/US
! fo Irequiroa): Bob Miikus/R3/U5EPA/USglEPA, Donald Ws!sh/R3/USEPAAIS@EPA, Michael
! dstMnaAJBffAAtMVA, Mlohaef Ku«k/i3/USiPAWS0B>A, Bay 0»an«/R3WSB>MI8*SPA,
i • Rebscoa Hatimsr/R3/USEPA;US@EPA, Hich Ka(rpf/fl3/USEPA/U3@EPA, Tom
EXHIBIt 13
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02/13/02 10:17 AM
To: SMBdry Peck/BC/USEPA/UietWV
Subject: Re: 8$
a
We've spent or committed about 4.5 miiiion. We wil! spend another SOOK'to finish up- depending
on how the public comment period goes. . • ....
Gregory Peck
@f*gory Peek
02/12/02 03138PM
To: wlfam Hoffmsn/H3/USE?A/US@£PA
CK
Subject: BS
DOJ is writing their brief in this Wvanburg case and would like to know how much the government
(all agenciesHiss currently spent on the EIS and how much we expect to spend to complete .the
final BS. Round numbers are fine.
If you could let me know asap I would appreciate It.
Hops all i* well in phfily,
Greg
' WilSsm Hoffman
Oa/13«H 08:6? AM
To: KMhy Hodskiss/R3;USE?ArtJS@EPA
: Next Stttpa
K»thy:
How do you want to handle setting up the HQ meeting. I doubt that the EtS decision tree has ever
been on snyon'e radar screen down there, and It has probably always teen presumed to be the
Reglon't call. W« Have bean trying to set something up for months without tuoeesf which mifht
be an indicator of their interest level. Qreg l*eek has been the main po£nt of contact on the issue in
OWOW primarily with respect to the court case and the fill rule, but he has had wry little
Involvement In the BS. Jim Sorfis- who is no longer with the agency- was representing OFA until
Elaine Suriono got involved a month or so ago, I am also 95% confident that none of the current
AA's have been Involved- other than the 1 or 2 meetings that Tracy Meeban may have attended on
the fill rale. That being the case, we may really confuse them if we 30 down there seeking input
on who is the deeisionmaker. its true that MeCabe took the issue with him to HQs, but it was his
issue more then MQs issue. Its also tree that it affects two EPA Region's, hut Region 4 has not
been very involved in the BS deeisfonmakirtg process to this point either. It might be best for us to
approach HQ's (with R4 in attendance???)- as if we are merely seeking their input before Don
decides which way to proceed. I would also suggest including both OFA and Water in the'meeting,
since both have an Merest in tin outcome.
In any case, here's some issues I think we should take with us when we go to headquarters:
1. VISiOM: My biggest concern is that OSIM seems to be understating the "environmental criteria"
aspects of the Section 404IU1 guidelines that aim be satisfied before a decision to issue a permit
can be made. OSM seems to be focusing sotey on procedural aspects, which, if satisfied, will
always lead to permit issuance; ie- if the applicant minimizes the amount of flit, develops mitigation
measures, and evaluates alternatives, a permit wilt always be issued, even if the impacts continue
to be significant. If OSM focuses soley on incorporating the procedural aspects of the Section
404{b)1 guioelines wifttout including the "environmental criteria*, the Section 404/SMCBA merger
wiil be incomplete. The reason this is troubling to me is a statement made during our discussions
in DC a few weeks ago by an OSM attorney which suggested that if an operator meets the
performance standards in the SMCRA regulations they get a permit, and that permits wilt not be
denied based upon environmental effects as long as the operator is meeting those performance
standards. We must make sura that the SMCRA rule changes incorporate performance standards
that look at both process and environmental effects (material damage In OSM lingoi if the one stop
permitting process is to work. (I'm sure that the public comment process will make sure that
happens whether or not we persuade OSM to tighten up their language now).
t. PREFERRED ALTERNATIVE: I see us heading towards the selection of Alternative B as the
preferred alternative In the EIS. If we decide to do Ml, we need to characterize why we would
support such an alternative as a PR strategy. We must make It dear that the regulatory review
process will be significantly improved under Alternative B, and that tt a result. Impacts will be
minimized. We might also want to suggest that picking Alternatives C or D would end up creating
alot of small flls that could have mom Imptets to the headwater system than the one or two larger
ones that might be permtted under art Alternative's construct.
3. MULTIPLE R6QION ISSUi: Under Section 309 of the CAA, EPA Is supposed to comment on the
BS. As R3 has ten the lead in preparing the IIS, perhaps R4 should be the lead in preparing the •
Agency's comments on it.
EXHIBIT 14
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IWlto Roiiinwn
.QOV>
02/1 5/02 02:24 PM
To: JtHmy Aipw-ma/UWA/USeSPA, Oresory
Peck/OCj'JSEPA;US@EPA, Stny Sr,'Snt;R3/USEPA;US{5EPA,
Mteh»et CanMKUIttVAMHNM, K«*y
HaffmttB/BSWWA/USSWA, EMn> Syftano/OCWSB»AA)S9EPA,
"Benjamin Tuggtell@fw8i§atf, Jstumfs@gfnm,eeffl,
Charles. K.St3ri;<3HQ02.IJSACE. ARMY. MIL,
Kathurin3.[..Trott!aHQ02. USAGE. ARMY. MIL, g,;onr»d@imcc.isa.us,
.e.fcy,us, fodl@mtm.sfate.va.us,
!sv0mme,stat«.vs.tis, Andrew D0Vito
, AI Kleia , Dma HaftM
, Dan Ross
, Buck Miller
«3MIU£R®OSMW.OOV>, J*H CoNw
, John Craynon
< JCRAYNOM®OSMRi.aOV> ,• Larry Trtlnor
, Mary Josio Blanchatd
, ?,1ike Robinson
, Roger Calhoun
, *Rob«t A. Tm"
, Vann Witavor
Sut^ect: p1tl2®n Complaint Study for E1S
Attaohsd in the subject doeuraant for >»«* in tke draft EIS,
Blasting Related Citizen Complaints
within the Mountaintop M ininf^Valley Fill
Environmental Impact Statement (EIS) Study Area
Introduction
Individual citizens and citizens groups have expttmed concern for many years that the various
$&te fegalaiozy authorities do not serve the interests of the citizeas oa btotjng dam^e
complaints. As a result of these concerns, fa PY1999, fee OSM Executive Council directed the
fbfflisiiGB of SR OSM blasfteg team to cotujact a n^lonal study, collecting aad analysing citizens
complaints elated to sur&ce' coal mtee blMticg.
Background
The Surface Mining Control and Reclamation Act of 1977 (SMCRA) was designed to protect all
structures outside the permit area from damage relating to ground vibrations, air blast and
flyrack,aswell«»p«>tecsti»gaB citti»n»fi<»iiDJwyasarasaltofbtestBSg. Peopte often feel-fte
house shake and htai rattling caused by ground and air vibration levels well be!ow those levels
that cause damage to sti-uctures. In the experience of OSM and otl:cr regulatory authorities
damage is rarely found where blasting vibrations are kept within the regulatory limits. Very
often the citizen does not complain tliat a .syeciyic blast resulted rn s/>eaj?c damage. The
complaints are often that the citizen is "feeling" the blasting and that the blasting is doing some
non-specific damage to public or private property.
The investigation of a blasting complaint requires a person with specialized technical training in
blasting, seismology, acoustics and construction engineering. Becauseof the complexities in
eachcomplaintandtheiiniqiier-essmtlieprocesseachregulatoiyauthoriry exercises in dealing
with these complaints, it is difficult to compare one regulatory authority with another or with
relating one region of the country with another. Where comparisons could be made without
destroying the quality of the data, those comparisons were made and conclusions were drawn.
For the purpose of this EIS, only the data relating to Cental and Southern West Virginia, Eastern
Kenmcky, Southwestern Virginia, and Terrnessee was used.'fhe reason for this is tliat these .are
the only coal producing areas where Mountainlop Mining is conducted. Mountaintop mining
may mclude moimteintop removal (MFR) mining, where many coalseams are completely
extracted from the upper reaches of a mountain. MTO is usually associated with cast type
blasting. Cast blasting lues large amounts of explosive agents, not only to fracture the rock
ovafyJBg file coal, tat also to move the ftactmed rack go tot handling by meehanfal excavators
is miataized. Cast blasting it not a new concept in mining (Le$sltt«* History-Committee on
Interior and Insular AfMts; House of Representatives; 92 Congress; September 21,1971).
EXHIBIT 16
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The following blasting complaint data was gathered for the period 7/98 to &99:
Ana
Somatwestern VA
Central and Southern WV
Eastern JCY
TN •
Total Blastim? Related Cuinulainh
87
339
iftS
6
Data Summary:
1. Nationally, the greatest number of complaints were lodged in central and southern West
Virginia and eastern Kentucky (53,2 percent and 32 percent, respectively). Southwestem '
Virginia and 'Tennessee fellow wife 13.6 percent «ad one percent, respectively.
2. Annoyance/ noise which »late to concerns to excessive vibration (house shaking) accounted
for about 70 percent of the complaints in the foot state am.
.3. Alleged damage to structures (residential dwellings) accounted for about 25 percent of the
4. Alleged complaints of damage to domestic water well systems accounted for about 2 percent
of the complaints.
5. Complaints of excessive dot and fumes accounted fin (bout ] percent of the complaints.
6. Complaints of flyrock accounted for 2 percent of the blast related citizen complaints. Flyrock
has the greatest potential for causing damage to property and injury or death to persons who
reside in the mining areas.
The data do not indicate that excessive dxist and fumes are a sigrdficant problem with a complaint
percentage rate of only 1 percent The fumes are by-products of Use explosive reaction aid ate
asually released at a temperat\rre somewhat higher than the ambient air temperature of the
mining environment. Fusses from the explosive reaction will rise and expand adiabatically as a
result of flris differential temperature gradient This adiabatic process will usually force these
gases to higher altitudes and away from die residential areas.
The dust and femes are also toted on by the winds aloft and dissipate over short distances. It is
always a good blasting practice to conduct blasting at the most advantageous meteorological
periods. On occasion, temperature inversions will cause the fumes and dust to stay close to the
ground and possibly drift off site. Large mining operations often use wind socks located in
various locations around the mine in order to monitor wind speed and direction. Using this,
information, the mines will blast only during periods of hi$i wind directed away from populated
areas. TMshasproveatorjealow-technolo^ffldlow^ostsolatioatothedtistandftiines
concerns of the nearby residents.
Complaints of flyrock, material traveling through the air or along the ground outside the permit
area makes up only 2 percent of the blasting complaints. Although flyrock accounted for jut
over 2 percent of the complaints, flyrock has the greatest potential for causing death and injury to
persons as well as damage to private property.
The primary cause of flyrock is inadequate blast design, fates to pay attention to detail when
loading blast holes or changing geology. Proper supervisory controls, training of blasters (both
certified blasters and the blasting crew) and tie establishment of set procedures are the best
methods to eliminate flyrock. To protect the public, the blaster is responsible for clearing the
blast area («ny p&ce flyreck might be expected) prior to the detonation.
Water Wdl Onmtte and Quality
Two percent of the complaints in the study area were related to domestic water wells. Scientific
studies have determined that there is an extremely low probability of causing damage to a
domestic water well by Masting activities associated with mining, quarrying or road construction.
When a water well is damaged by mining activity, quarrying or road construction, it is almost
always caused by sn ittterrttptJon of the aquife—either by draining the aquifer, or cutting off the
recharge to the aquifer as a result of the mining exoavatton. Problems wtth the quality of well.
water a*e ataosl always the result of an iaojetae In dissolved solids at the well from groundwaw
percolating through the rabble zone of the backfill area-
Even mough ground vibrations hiduced by blasting has not been shown to cause chaiiges to the
quality or quantity of well water, OSM is currently undertaking an additional study of bbstwg
efjeets on water wells, •
Annoyance inch
WBMlowsrattfe,ftytten8fleoMWren,ete. tfafixtUMUtjrthe law does not allow OSM to prevent
annoyance. Peoples hontssmay be shaken by fte bfastiag, which is annoying to most people,
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but mines ate not allowed state the house tad cause property d»mage. Both pound vibrations
and air vibrations cause homes to shake.
Ground vibrations eater it house through'the ground aad akblast tteagh the roof or building side.
As a result the house will respond or state. A typical bouse wil respond 1 to 3 time* ft« ground'
vibration level. TlieMgher shaking is caused when the vibration fiwjaency of the ground matches
the natural frequency of the house, causing it to resonate. The natural frequency of typical homes
is between 4-12 Hertz. In otter worts whan ft* frequency of the ineoratag vibrations rostish the
natural frequency of the house, the house wffl ring. The Beater the diflerenee k frequencies
between the vibration of the ground and tha house, the less the house responds. ThfaMpiifieantly
impacts people's perception of the blast depending on how the house is built and how it Is
constructed It«lsoejqjtatowhyft«sa!n«'«HttK^onwfflco»e.acomplaii*atoiieBOugebutnotflie
neighbors (Le. the.neighbat house has a different natural frequency)
the sitizws kfte community.
reduce complaints, OSM experience is flistftg coalfield citizens (ypieaUy destetnofetaBwnation
from (he regulatory authority and the mine operator. The reguWoms require, at a mMmtim,
information notice to citizens such as blasting wanaiag signs aod wanatag signals, pre*bl$£ting
surveys, pre-permit public involvement and a comment period fa the citizen to express their
poncerns.
Seme operators and regulatory authorities have held public meeting) in order to involve the public
and inform them on what they can expect to experiencing living near the mining operation. This
would include' a dialog oti blasting and the possible effects on die community. Exchanges of
information prior to mining and blasting may reduce the number of annoyance complaints.
Allegations ofbjast damage to property were lodged ta 25 % of the complaints. Property damage
could be broken windows, cracked wails, broken bricks, waUseparan'ocs, doors sticking, chimney
cracks, foundation cracks, drivew-ay cracks, roof leaks, etc. When damage is alleged, the regulatory
authority is requited to evaluate the damage potential.
Scientific investigations by various investigative groups, including the U. S. Bureau of Mines has
related Uie oojurrence of damage at rj-pical structures to the intensity and frequency (in cycles per
second) of bla=tinducedvibraSoas. This data has acciimulated over a period of more than 60 years.
An analysis of data collected by the Bureau of Mines shows that BO damage1 (threshold, minor or
'There KB three classifications of damage-nreshoU -LoosenJag of paint, snail plaster
cracking at joints, lengthening of old cracks,' M«o^-Loosening and filling of plaster, Ml of loose
• mortar, hairline'to 3-mm cracks. M/or-Gtads of several nan in walls, structural weakening, 611
rn^or) 1§ sacpeotsd *t ground vibrafion levels at or below 0.5 into; (ips). 'wTflun » 95 percent
confidence toarvd, m^or damage cannot be expected Wow about 2.34 ips; aid minor damage can
not be expected below about 1.SO ips. Aitblast Mow 134 dB has never been doeanwBted.
OSM sttd oftec state rspihtory aafhorittes, thwu^wut almost 25 years of SMCRA control, have
not found conclusive evidence of damage to typical structures at ground vibration and ajrbkst levels
below the performance standards of the ttsgaMoBS, However, OSM is currently conducting
research on the effect of blasting vibrations and airblast on mobile, log, and other types of non-
tradirional residences.
Conclusions
Based upon the results of the survey, annoyance is the chief source of citizen complaints about
blasting.The survey cor.ductedcouldnotcapture whether each complaint wasalegitimate complaint
of damage, or a complaint of concern that damage has occurred or may occur. Many citizens
complaint! take several years before final resolution. Some complaints lesult hi regulatory litigation
against the mine or tort litigation by die citizen in state courts before final'resolution.
Complaints that are lodged with the regdatoiy authorities may be resolved in a more timely manner
by lodj^ngule complaint instead mm me iffimancc company that represents me coal mine operator.
Section 507 (f) otSMCRA requires that each permit ^jpficaat obtain public liability insurance. This
policy most provide for personal injury and property damage protection as a result of surface coal
mining, and includes damage or injury flat an the result of the use of explosives. Insurance
cooipanies 3re reqt&ed by stale law and regulation to investigate' e&cb allegation of dani&ge or
injury. Should a claim of damage or injury be denied, the insurance company most have a rational
bases to rejecting any cl aim. Any decision by an insurance company is subject to civil litigation in
the appropriate state court
The regulatory authorities can ttotte«pi»ethe«»l mine operator to make eompensatioa for damsges
or reqroire me operator to repak any damage that is alleged to have been caused by blastuig.'Ihe
regulatory authorities em (and some have), advised the citizen to contact the insurance company
directly or they have required the operator to refer a claim to their insurance company.
Tae performance standards rn the blastingregulatiotis\w.re established to provide protection against
damage to typical hones that ate located in the coal producing regions. Both SMCRA and the
regulations make it clear that all private property must be protected from damage. This includes the
typical sanauM as weH as any Boi<}«e stastews that may be mote sensitive to damage because of
• constructed of poor quality building materials.
of masonry. (U.S. Bureau of Mines RI8307)
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The regulations allow the regulatory authorities to reduce the peak partide velocity asd airblast
standards when blasting activity mey impaet feese type stricture*. This is to say, that a one inch per
second peak particle velocity that would be safe for a properly coEstnicted typical home may aot bo
the appropriate vibration level for a historic structure where the walls and ceding are eade of plaster.
OSM baa not seen many cases where the regulatory authorities have established a lower vibration
or airbtost standard on a site-specific basis to tailor the performance standards in order to protect
unique structures. The regulatory authorities do not wantto appear arbitrary or capricious ia setting
a lower standard and may not have the expertise to evaluate the structure in order to get that lower
The survey also indicates that the states with the largest number of mines located in populated areas
ako have the greatest number of complaints.
The regulations allow the regulatory authority to require any and all blast) be monitored using a
blasting seismograph which monitors both ground vibrations and aiibiast. Often the monitoring of
.blasts is only required as a reaction to citizen complaints. The survey indicates that there is little'
proactive monitoring by either the regulatory authority or the operator. In areas where there will be
continued blasting activity over a long peiiod of time and where there is a population concentration
there should also be frequent monitoring of blasts in order to establish a record of die intensity of
ground vibrations and abblast that is generated by tie mini: and extends into the area around'
surrounding the rrtine.
' WiBimn Hoffman
02/27/02 01:42*1
To: Ton Weibomm4/USEPA/US@EPA
Re; 83 to bf!0f Bed Qrumfotes on Mountalntop Mining S3 Status z
issues en 3/SES
Tom:
We asked for this meeting so the HA could let HQs know that we am close to a decision point on
the SIS, and to make sure that everyone is comfortable before any positions are taken* OSy has
been pushing hard to avoid requiring reforestation end f*MLU controls, and to create a one-stop
permitting process for mining with the State SMCRA agency as the regulatory agency for CWA 402
and 404 permitting. They are beginning to understand that assumption isn't likely arid that there is
no such thing as partial assumption- so they are now focusing on SPQPs for mining.
They are going to propose rule changes at the same time the BIS goes out that wouid incorporate
404IW1 analyses into SMCRA regs and which would modify the stream buffer rule to permit fills
under this "enhanced" State review process. As such, they are pushing for the selection of
Alternative 8 in the EIS as the preferred alternative (fills would not ha restricted to any particular
watershed siza or segment- but decisions would be mad* ease-by-oase under an improved
regulatory scheme). Until the administration changed, we had agreed not to select any alternative
as preferred, and to wait to see how the public reacted to the different options. That's att changed
now under the current OSM regime.
As a minimum, we want HQs support for Incorporating the reforestation and PMLU controls we've
developed, and support to pull the ^iWI^ 21 minimal impact line back to the ephemeral or
intemiittfirit zone (the CO€ may be wifHrtg to out! deck £0 the ephemeral line). If we can
successfully use these as bargaining chips with OSM In return for our supporting the selection of
Alternative B- we will be satisfied. Fulling NWP 21 back to the ephemeral line would also ease our
problems with an SPGP.
Attached is an electronic version of the presentation we wHI bs §Mns- One of the figures In the
presentation shows that over 50% of the historic vafley fits have teen in watersheds ler,s than 75
acres In size {> 3500 filis). This figure might help convince the COE and OSM that there would still
be plenty of fills for the state to work on if the NWF/SPC3P were keyed to :the
ephemeral/intermittent zone.
Call to discuss as you feel the mad.
Bill
If
WiBten J. Hoffman (318301
Environmental Services Division
U.S. Environmental ProlBctlon Agenoy
16SO Arch Street
Philadelphia. PA 19103-2029
<21« 814-2996
Tom Welborn
EXHIBIT 17
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Mountaintop Mining EIS
Current Issues- Why We are t
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Mountaintop Mining EIS
Mouiitairitop Mining
' Is It ' ; • •" ;
-\VHprp OoP1? It Orrnr
Vf sIVlw .i.-'V/V'O .11 VxWV/vll
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cuts
BOX COT DBTOU3M4KNT COTS
CASf/OOZE PROOtJWnOK CUTS
VMJXV FttJU
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oeaiion
mountaintop-minable
coat reserves
Area of detail
Clay-
Kanawha-
Linco
Wayne
ebster
Nicholas
Fayette
aleigh
Mingo
Logan
Bourn Charleston, WV Dafly/Vbtl
W 8»olo0ic & Economic Survey
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Recent WV
Surface
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Mountaintop Mining EIS
1999 to
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Mountain top Mining EIS
I Agency Principals (DOJ, EPA,
IOSM, COE, rVVS, OMB, CEQ)
EIS Stterteg Committee
, OSM; COB, iws, ws
I The Three Tracks |
of the
Technical • Program
Studies
EIS
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Landscape Ecology (Cumulative)
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Tons-AI I Study Regions
-•-ISO-ACRE CASE
BASECASe-10%RC
BASE CASE -15% ROt*-2SO-ACRe CASE
75-ACRE CASE -*-3S-A€ftE CASE
Weighted Avg. Coal Prices
Study Regions (Full Scale)
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Avg. Wholesale Electricity Price - All
Study Regions (Pull Scale)
2001 2002 2003 2MJ4 2006 2008 2007 2008 2009 2010
BASE CASE - 16% ROI -B-25Q-ACRE CASE
rS-ACRECASE -*-3S-ACf?£ CASE
WO-ACRE CAS
BASE CASE-10% ROI
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Mountaintop Mining EIS
[S Alternative Framework
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MountaintoD Mining EiS
—70 actions were tentatively identified by the EIS
Steering Committee to enhance:
*• inter-aenc coordination
*•• public health and safety
*• protect eriviro.tifncnt.a1 valu
These action?
uidance
new/revised:
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Mountainton Mining
'urrent Issiies/CJptioi]
MTM/VF Draft PEIS Public Comment Compendium
A-411
Section A - Organizations
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MTM/VF Draft PEIS Public Comment Compendium
A-412
Section A - Organizations
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To; Mtohsst CMt!e/R3AJ2EPA/'J2@EPA
Swbjeett US Attsmatfves Ptijs S. Can*
s aa elee^o^a vattion of what wa IKR tsgfiths? y«a!s! fecal
peiBt for iwew and comment
EIS Stalin Report (January 1, 2001)
sta^4tIi§toDpe|fca^(lallefiiafiw
would be iekcfesd prior to dfafi BIS
De#eap*d to select Alt B
Selection of Alternative C (Restricts fills to iuterciitteDt zone < 250 acre watershixis}
studies
Stale S
6S$ 3to
saining
Cm
sasall fills, wWcit may Jssve-greate
oittsslsite faiptcit
Will stmiize several of the lowti' coal
¥iaMe, cissatiisg takings clalias
MTMA/F Draft PEIS Public Comment Compendium
A-413
Section A - Organizations
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S?!M:tioo of AltcmativcD (Restricts fills to ephcir-CTiilzose < 75 acre watersheds)
Pro
Least (Enact impact QB
ecosystem
Most support frois tae eaviicHJiBCiitsi
Coia
small fills, whi
-------
MouaiMHtep Mkite|A^^ey Ffll Bnviroimifidtal Impact Si^sm^t
Background:
la response to a lawsuit iled In 1398, sa Baviraraaeigal laipset St&effiaat (BIS) is
eunmMly Wng pmjMttd by B?A, GSM, FWS, CCS, and tfce Slate of West VfrgBU* to
evaluate pro0ssHastlo actions to mkjmfera impacts from mouaastoop mlaSag/vaHey 11!
operations |a Ajspslaebia. Mo agency has IbrmaBytswi designated as tfeelssd" ageaey.
All ate coasldMd "»4«« Is going a Me too far.
Witom 4. Hoffman {3ES30}
EnvSrenmentai Services Division
UJ. Enviroratifents! Proteotten Ageney
1650 Arch Streat
Phiisdelp^ia, PA 131C3-2029
(215)814-2995
— Forwarded lay Wllara Ho«wao/ft3/USEPA/US en 03/12^3 03:42 PH —
To: £>B*«S Hants* •£OHAPm3S®tOSItf)M.GOV>
Hftrtss ,
\ mink ymi did a great job of consolidsting the 'esssncfi- of terrastrial action itams 43, 43, 47, and
S3 into 4?. I
ESHIBIT20
MTMA/F Draft PEIS Public Comment Compendium
A-415
Section A - Organizations
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Subject: Putpssafi
03C28/02 11:14 A
pss Is b»«k oa-liss«, *e sea can T*fcuasi «u# fax machine to aasd-jtetirffiBsaat.
On one o£ our lout calls, ? ws» 60 make aura all of you Md an cleacromic
copy of eiie puzposft and aeedE eaotioa and ttit«raativ«a **rie«"«p> so y«m cai
adit *t will. Kssi?a tteSy aea.,
files I.A.Pus^oas o£ the Sts.wpd) (Sees atBatjfeed file:
I. PtJMPOSE AND NEED FOR ACTION
A.
Sarfscs coal mining in Ac Appalachian coalfield sales of Kentucky, Tsmiessse, Vn'giniii, and
Wea Virginia is conilucttd by a varists- ol rmmngmstlioJs and m different topograpl-Jcscltmgs.
For the purposes of this EIS,''moraitaintepmiirmg"M'U be cOMidr-ed In irc:ludt all types of
swfacc coal mir.mg in tte steep icrrain of the central Araal:«:hiancoalti=lds- Removal of
overfeuhlea aad imvdmrdeii (rook abovo sod between coat seams) dumlg Moud£aiBtt3p giiafeg
ojjemHoM i^dts HI gcaeraiiflE of excess spoil tweause file broken Kick will not all fit book onto
tbemioedates. The ©teess spoil is typlcsjly disposed of IK stream valleys in engineered earthsa
as4 lode stsuctuies known as *
A eumber ef &dsra! aad Stete agssjdes icguiatc mouataiEtef mialag \md^ ttte mahodtf of
several differea statutes. The U.S. Office of Surface Mining (OSNf) is rcsponsiblo for the
natioiMlaaiiiimsi-arioiiofiiijSmfeeNimmgControlar.dRedamalion Actof 1977(SMCRA),
but OSM has del=gatcrltli=SMCR,A regulatory program to all of the Appalachian (xalBeld
the U,S. Anj^ Cdq« of
Htigkeeta (COB) mguls&ES the disetege of fiE m^erM into wategs <^the UMted States under
Section 404 of ttaClsan Water Act (CWA). COE authorization of fills can occirreitliCT via a
Naiioswide Permit (&r ^yects &t indNldiially <^ e&mulaUvQly bave rndy mlnbml adverse
effects oarheiqiWicein-iruiTmsnt) or v-isiridividaal Section 404 pcrmils. "IteU-S.
Bavinjnmeattl ItoaelSoii Ageaey (H"A) rtgrfMcs poteMooK* dlsttegestonntcwiaKter
Section 402 of the CliKn Water Act, although this program his also Ijccndslsgated to each of the
AppDtochian coalfield Sates. Ttxj U.S. FL* and WildBfcSenice(FWS)adininisters the
Eadtmgsred Species Act, OTd via the Fish and Wildlife Coordination Act, advises federal
regubtoiyagecdcs on fish and wIdlifcrraoirfCeiHuca associated \vith any fcdeKtlly^rriitted,
coustrocted, or 'licensed wst^ development projects, and land development projects tiiat affect
Licrcased public aadgoveirilnentog-'ncy concern about monntairnoprninineoperatiocs and
iriKate^vsMbstajpffliiaJyiegiaatiKlMsageaiJi 1997 A,COE,«aiFWSto««rlyl»8, SevealswdhswradeMgnedto
prepjreacousistcntnllinveatory, and evaluate stream impacts, fill stability, and ref-nlatory
prograta iaooiisist^Ksies in mi^atioa and ofear rfiid»fi pco^m requiremoats.
Mevirfon, periodicals, md rawsp^iers, including U.S. tttm aid ffarU Report, ABC's "Nigfct
Liaa* propMn, as w«41 a the Charleston (WV) en»»«, Washington P«I, New York 71««,
lxKiBgt
-------
If f B'lj ff »*•!
I § i** !
III
s£3I?,
§a^S^^
; s,s I« s
"S 8,1
f
rtl If I!
88 9 ft»l I >B !•>«•» itfi
[|
^
•«I1
n »
if *•
-«
it
-------
adversely aSfeeted by jgmwtststDp aiiHlBg and valley fill opeiaSiiw in (fee steep slope
AppalaeMmcoal feys. TfaejoktfMCllA^CWA program goals envis
|m>posai i^ Ifseiud® sppogrfase fslm isiaaBJi^ ^ isdamMi^
iitrpoct thresholds salij gMdauce on feest management pcacticss; sdaquata baseline ds& collection;
sufficient impact asalyA with avoidance sad rajamrisEaiiaii c£»isid«$loi]s; md snitafeta !@vels of
Butigatioii fbt tmavoi^ble i
IV. AtTEKNATIVBS
A maafesr of ^iviiiomamKal and
&e scop* of ^e MS was Bmrowe4 as
tliese i^^gs have bees gfto^ed auo elev^^JHja! categories:
w«re raised 4tnliig fise BIS scoping
&3la&diestsym
a sisslt of tl^ e
Bkstbig, dmt, and ftoss
1
J.
4.
S.
«.
7.
8.
9.
10.
11.
The ElSagendejcvibaJsdtha State 2nd fedaralprograntsrsgulaiingsMp slope mining
activilics to idenlifywa5's:a which the progErascouid be improved to address the eleven issues
Md to tetter mordmatethsSMCR A and CWApamit processes. Specific programmatic acSom
were foraiukitai to addiciM each of the issues, end were (^otjped into four SLU of !»ssib:e
alteroativra Jar«led A through D, presented in Table XXX [(Nlike's"moun>jiintopmimn(yval!ey
fiS HS aitcmative fiamtfVBOrk oveEvie*^]. It sfesuld fee aoted that m> al&KmaivB has beea
identified as a "preferred atemativs" it this tirce. The preferred altcrostive and final jet of
rccominerjed action items %vill not be daiiiminedurjtil the final EIS is pubiijhed.
'fhe most significjmt distinction between the four alternatives is how each one addresses Issue 1.
"Direa toss of stte&as and stream impstomt*' The qucsliea of wte(t portions of ftstxaam can
be legally filled under SMCR,\ authority wisceotral to tie /Sragyuiioiemontawsiiit UK
District Co^feiaion in that caKesKbiishcdtha the SMCfc'i stream buffet yorieregulotiorj! a:
30 CFR 816.57 snd 817.57 do not allow mfeing activities (including valley 611s) within 100 teet
ofistttnitt^torpered^lstteaa^, TbeFotirfeCte^tGoart of Affwaislaficr vacated tile
District Cowt's doeision, bat t»i groiiHfis osfektett to Si0 a^iliasMliiy of &m stoemi bufe zone
rate. Because of the atmosphere of icsulatoryvmcerBmtysutroundirigthijL'iSue, and the
impomiKe of allowable valley fill azo to !run«viabii;^an
-------
Alternative A, the "no aedoft" alternative, represents tie SMC&A atjd CWA programs as they
were tseiflgimpkffleated prior to the Sm^g-t* Robertson setttemea! agreement in DeeembKr
1998. Attha*toe,tfaemws!fce&eHsm^^
program iffipWEsaais fe&ve Weft ^complMhed while the BIS to been ia progress, and that
additk.nal pro^arn chrmges arc currenUy 'Jnder consideration by Stele agerKies that ar^ m>t
captured in Alternative A,
Alternative B, vAMs not imposing My ptedeleimffieil limits oa size, loeaHoo, or number of
valley filis,, would require a much m&re detailed analysis of altemaiwes and eavirearaea^l
impacts. V?Jley fills coidd be allowed in any segment of a &tieani,d;pendmgoa a thorouvJi,
pmrat-by-pemift evdo^oa tti
addition, agplicssis would have to coaeluGt an alternatives analysis to demoasBate that they haw
avoided and rainimi/cd impacts to waters of the U.S. to the extent practicable. Mitigation within
ihc same watershed would be.reqaked Ijjr unavoidable impacts,
Alternative C wottld restrict the locatkat of valley fills to epljemetai sud mteEQsitteiit postloas of
streams. Forpufi^sesofpi^etmgifceeaviroffiBmtdaiidew
result if this altercatsva were selected, a 0- to 250-acte iv&t&cs&ed size mige was ased to
mpi^eM the maadiGHiijallowabiev^H^y fill si2». tike AlteieaJive B, ptfomt appUt3ants wotild
be reQuiicd to coi»io(% baseline data collecfen fflad aaaltemaiives saaiysl$, $&d provide
DsMgaiioa fof tasavoldablc kopscts. . * .
AittrnsnVcD would res trie t The location of v^leyfilb to the cphciner^iwrdon of slit^^^ Pot
pw|K^sofpt^i^gtheeimtoMimit^aiideeoaoi3^coJB«^
alternative \varn sefectad* a 0- to 75-aope watorsfcsd ^2e faage was used to repfeseat tjss
tafixiaiias allowable valfey fiO size. UMertodtefMtive,basdlmdata<^Becdoixal£enHiilves
analysis, aad mi%atios requirem«ats wosld be I*sft9tringftat
RecMsewjnfi^ionexbts about the ^^
l(^a% pennit fl»s pkcismeat of excess spoU ift stteaajas. Alternatives B,C,aadDwoald all
regulations (30 CFR 816.57 and SI 7. 57) to allow fee disposal of excess spoil &om steep -lope
minmg nperatiocs into streams pto^
CWA Section 404 pract-sa. BP A and the COE would likewise change cxisfeg CWA
Scctf(m404mgakti0MtO|jwii!bittiieplaccm^tofexcassspoUi^
-------
fcw
-fSV 04/16/02 02:09 PM ***•* t******
) put these buffets together to update tho RA on wham wa am on tht MTMA/F issue.
K
WSiiom J, Hoffman [3E330I
EnviforHflBiitsI Services Division
U.8. EnvJranraftntrf Pro»ett»ft Agwwy
1350 Arch Stroll
PhilaJSphia, PA 19103-2029
(JUS 814-28M
MIWVF BIS Status
Apii115,20«2
ft is our usstelsfl&ig ^3at flie A(ii^aistB£SC(r was fcdsifed last Msnds^ re^rdiilg fee SB rule and
has tatlcaisdlbst she does a®tw8M to sigB&e tide sn*U several aciow are token to
dcmoDsatile 6st EPA, COE, and OSM aie working together to mminizc «»! impacts, namely:
filigmnerd »ift EP A's Section 4040))! guidelines, and
'
•XHIBITM '
These issues aEgB i»iti the
&e MJWVF BIS (Altftmafive B):
issues coae^isiBg flie seleefioa of a pmteped alteB^Jve in
t review pttcess, ^A hM gtstfid imt a i
tte^eW aMtstbed0vd0pedfisrHWI*21 so tills is*few|>«>cesacsa be triggered
zoue rale win aeed
TMs woaMoaase an adverse !n3|j»ttte^hoMibr p^rots, aad %*isg the
.'s Section 404(b)l guMoises.
The EIS Steering Committee met list wctk in sn attempt to resolve the issu-s- OTiil: some
progress was msd& M ^jn^i&| to degas a tet^ew ^oeess for tke Sectlm 404 penm^, the issue
was not resolved- OSM is also stii! contemplating me approach they »"int to u>ke witi tjie
SMCRAmlepropOKil (sj.it relates to ailvsrse impact).
study, Tlffi Committee agreed to ga i
as Ilkety to have a. gssster iffl|ssct on
dernoDStiste why these results sre likely to occor, and other studies (Marshall University, mine
tech teal^ etc) wodd also be tiasi to demoEstistc the adverse impact? that have been projected to
occur from resnictrag fills, Tlje flaws would be corrected in the find EIS, .and if me fmdirigs me
ofcer than as tatfuettA, a sneplswntal HS wfuti bs pi^aaad in oriw to ^vette|>ubfcfl«
^(mpfWeoppoituiiiQrtocoiniiwt. The «aly otto o|*ls» is to eoaectt&B flaws befee issuing
fte daft HS, wtJA -wiuU deli^ Its nbto a iBhtaia of feur atUJtta«l moBflw to Fai/Winter
2001
MTMA/F Draft PEIS Public Comment Compendium
A-420
Section A - Organizations
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IV. Alternatives
CHAPTER IV, ALTERNATIVES
A. INTRODUCTION
A masker of environmental md Obmsmmty impact concerns were railed dstiag ihss BIS scoping
sessions and tbirogfe tie pabBe ccaEwatif poe&ss, Vssaous technical studies, symposia, or
workshops ware-cGSKtetaed to evaiwte tbess ^sojalBg eoKceras; as a tesait of the evalomion,
the scope of t&e BIS was flammed, as reqstired by NB$*A, to addjffiss tue most signifieast issues.
Etteeet loss of streams sad stream ij
EtTectivt^css of miti^Mon
Camaktiive Impacts to s^ralia sad swasaM habltaa
1.
1.
3.
4.
5,
6.
7,
8,
9.
10.
11.
The EIS ageaeka evatasaed Has State ami M^I ^egi«ai
j disst, aiid tones
Fkiodisg
Benefits of reclikni-d land
Scenery
ecM^BBgbs the S^ICRA md C WA parmit pcccea^is.
To accomplish tfc« goal of the proposed action d^oihed in Section A of Chaffer {, the following
alternatives were developed to consider feo fell saa®e of ws^jonse optKmsavailsliletofli»agtaicifis
JNo ebsages to flas SMCSA fflsJ CWA pmgraim la <^feel in 1998
Valley fills could be allowed not only ia ejihamesai and Intermittent stream
segments, but could possibly be located la psseanM strcams-dispesiiient
on a detailed, permlt-by-pcttnlt ba^sllne data oollcctoa asd tfeomugh, site-
specific, sigmficsat aifvefse Impact analyses—iacMiag consklenitioa of
ait(m3aiivesfbravoidaaceaiM!E3iaimizaii
-------
IV. Alternatives
IV. Alternatives
Alternative C would restrict the loeaJksi of valley filla to ephemsaal and ba»»itteitf |KWtJons of
streams. For poiposss of predicting Hie oaviromtKJtal and eeosonsifi consfflEpeaces (hut weald ,,
result if Ih&ate^ww^ n^srcseitt
tl^ maximum anowa^vaB^M^ze. fJ^Ateeim^WS,pfflradt^kafltowmildlMHSQ^^
coaduct baseline data collection sad aa Mteaatlves analysis, aod pro-^de raMpgoa for unavoidable
impacts,
AhemativeD iwsuM i^trfet lie loeattei of ViUkySlktoteephememlpmtltmof stmaias. FffiC
purposes of pr«w«er
aad mintog oompm^-so long » Sw MC fc MgSiK ut better 4att pe-iBioing conditions,
The 8MCRA j»gas» tas not prasttibed deWW tedinijyM nccwuaty to meet ifae«
t^dffinatisil perfoitB^ce s&Bdsrds because of Sis wide diversity of ecmditiQKSlhKxig^KKit
the natioa's coalfields. Ho\revcr, reclarrution science arid prsctice have docrnncnted
Bt Acofflpendtamof the "brat science"
in red«matioB tedmohw would be ext««Mly useiU to pennit des«i6|Kiient and oa-te-
IV-3
IV47
MTMA/F Draft PEIS Public Comment Compendium
A-422
Section A - Organizations
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SawlsmlutBggle
r5S/i?ymog.ii aw
63/17/02 Ofell AM
Dians,
this is s FYl, call State Colfa®* and find out this IS 2!! about please. !'rn going to las eat next v/eek
so we have to put togetiar a game plan to get us eevefagft. tteks.
iiNT
••— Forwarded fcy SSRJaffiJis Tygg]^ARL/R9/FW$/D(l! on Q5/17/2GQ2 0&Q3 AM •<•-
ja.gov>,*
amsff.9. _
4ii.epa.fiav>,
I'm qt&Maj&iPS to follow tip fsosa ottr dQ ntcacinf <
tftaar* an. iasm« resolsitisan prmfeaa waa proposad to Jwva t&e SffiSars of'our
> a^taaoies (assd Katt Crum Crom WVSJES*) otaet. wij^i i^b
i firat ui«etia§/csll wotsldu'C be so WBsffllva -iasuess,
i s procc^a to a*e how ao4 «keE our «xecativ*8 wont die :
Ccsumittee to $£O2«s& die issusa *a e&s't B«em to j
"" ~" 7 tias J
to ac i«ait& nay we
tp EOT
i us« tiwi sssas dial-in
•*» o£flo», t
E tit* p«w«»a for rataiug ismtso
i dirtaceiqO bsoic fee ttS. I pxopQjftft '
ma^J«c par" usual—677.216.4412, access OW*» 8€fifiS4#
I've ij««n asked Joy &1 Kl
ateiaiattafcera, eftat™t^
! Ite&t
..tQ eoataoc your iregion«l
if ^» c«» bave tM0
y ?g^ ...,y«fl -g^ga^Llg.an,' a 6£file« for
ffl«iftiriiF1Jq3i ^37«m€ ISSk" SJII 'SSS
sa«raed to be available so tax, jmt seill a*e*S coofiaiaeioTi oa a f««*. t am
also tpyioS Co s«e SQ Poliey folks on tlMS eall C«,g-, Kaav goala
JEro« <^M, ' "
!gle .JF?«S};
$,&. It Ms bean ffagt^stad tbse
i weak a£t«r next IB
Kaav go
r' " (dM!^
(both 080»J/ftim I
fasm tb« COS ffl4;g|j «_JMT t«
Mike JtoHiwm* <3HROBBOSO@OSMREOOV>
..
Bate PH, May 17, 3026:11 AM
Subject: Re: Principals aiecling
Dave» Malt—I EeceivBd isot^ (see^jd baa^ ttsoogh »t)AVB VAMJE UNDE* |>.st«(i.wv.us> 05AJ/OI OS^SPM »>
Mte;
ASer ^3eaMflg to Matl fius morning it is ffi^ asatetadiBg that ad&er Matt Ccuamt nor Mike
CM«gtaflh»®»odv««aimvi«^ontotlaj)Siidi>elsB»e,
EXH1B112I5
MTM/VF Draft PEIS Public Comment Compendium
A-423
Section A • Organizations
-------
'*es/jja/S2 • 18:38 PAX 482S148S8?
U.S. Department of the Interior
OFHCI OF tSE nmrnr SICKSTARY
1849CStreftt,NW
Washington, »C 28240
Ota) 1884873
901)1884291
DAT* May 17,2002
TO:
FAX:
Jeff Jama/Pat ' Bm&BfiiM«ffx>ri
Steve WiUiams/aarctts NSchacl Callaghsn/'Jodie
Dominic I2zo/Va!erie BfflLeary
219-3106
208-6965
703-«W-7401 "
564-0488
304-5S8-6S76
456-6546
tKOM: Steve Qtittt, Deputy SecteBry
Number of Pages 0nclndteg cover): 1
The pwpose of this fax is to confirm that the 30-rriimite conference call to
discuss the Mountain Top Mining'Vailey FiU EIS is scheduled-for
y, W 22,2002,« 2 fOL
Tto eaD-in ««««« is 2Q2/482-730S - &e acrass co* ft 1057.
Each participant in the conference call nMds to call 202/4S2-730S.
Sie system answras, y®! wfOhcaf atone. Bttplriff ikelem6.mtie!e flte Ac&gss
Code. Caller is now connected.
Ifyouhaveanyquestiocs, please call Doris Johnston at 208-6291.
maau (.ami SW-J
(l»a) I14-OM7
HO. D? FfcttES:
EXHIBIT 27
MTM/VF Draft PEIS Public Comment Compendium
A-424
Section A - Organizations
-------
So* VftOrSsil^.WZJ, OT024:13PM
C« a»,a,vl.Et53: Ward, Mar, B»Ui;WiZyns:
-------
Ite Robinson-Re: EIS S!eefii-sCo-Tim:iioaCo!-Aycna!Ca»: Today (6HO) 1p.m.
From;
To:
S ubject:
Mtel»ns<»is«r,t spades uroynimpuctsd? Km
WQ sSsndsrds? If FWS bdieves Section 7 consilta-jon/ooortlinaeon
arm'trarklnaandwadonUvsnftohBvedupitejtionofefrortbttvrtiOn
SNKWcoordlnseon^davA 404 [»rrnrt consultation, what Is needed? Tha
Onoe CWA and ESA framework to recufsda coal mfning are gs'mjnfeed, then
(andoniythanlcanOSUalisrnpttobetl-fi-piaiforTn-forcooriSnotod
.
OSUsre decided, our vision is oSrf the lahle and muirtbscc.Tie •future
B. We cannot change our b-jffer
has nsvBf dona bsfere as pen of seal mfciing raqoframefits for NWF* or
PS.
MTMA/F Draft PEiS Public Comment Compendium
A-426
Section A - Organizations
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3551
^ike Robinson - EPA fc!S '.ssiias.vypd
If cur framcA-ork changes, then the data r.
alternatives may change. We inay not ne«d to lljftfie economics aid
eumutBtt¥6 impact ahiAes, bttt address »te»e araas h«om« other manner.
Our principals warn supposing pretty adamant Siat e»ey dontwafSto
spend $1 M to fix studias. is aiew sonia other gsnaraS apiweach to
satisfy NEPA hi t^Q arcai-Kcfcp tfiSnkin'..,..
Plessa dial the nonna! oonSsrenca mimUsr at 1pm today 877^16,4412,
. A taadageocyshauld be desigB£?««3atiii/fjrt
K)a«!stiQfi process iastiailfitJ to jesolva iasaas.
ff selection ofaJtefiatis
CM b; made, Acidiri-nwJ EbmtLng will
aiso be osed to ifste-bStt wiso!i|)irojectB $fa<&3 cottM sssamo one-stop p
aCWA404Sta^
Poift Mining Ltod Use (PMLU) studiBS saggest S?a)tt in gssraal, post™ ffitnfaig
e^e^^&
Acttea
the rulmy in tb= recent KYlQwswtiS'jpfccU
MTMA/F Draft PEIS Public Comment Compendium
A-427
Section A - Organizations
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, ,
,
'
.,
Wed, Jun 12, M02 10:06 AM
FWS HS BSOTS
Folks: . . ....
A quick summary of FWS "issues11 for discussion aftd/or inclusion is next
week's agenda. Ipsttliesefaitliefarmofcpiestifltissstheyffijglabe
portrayed oa die agenda:
J. Porpose: 00 we all agree thatthe Purpose of Etiis document (in the
N1PA sesse) remains as stated in previous drafts? If we agree aiat It is, .
ftMsdamentally, to "develop coordiaated deeisiosaiajdfil to minimize impacts,"
what is the relative emphasis placed on "dedsiaamajcifig" Versus "mimsmziiig
JKHJSCtS*1? •• -
2. Alternatives: Based oareceat events, ds we seed fi> change the •
ftarneworkfcrBISaltaaathws? Caawt all agree «m*a8 it will be? If
,
• DHS,andwUcliorBwBJtl>e?
3. Nationwide Permit Thresholds: If we are gotag to ideBtifv an
altemaSvc tbat «4 mow
moi£y to run soise Sxes of these studies, md publism a more d
doeument?
6. What process do we ibllow to resolve disagreements oa any of the above?
Needless to say, we profeabh' esist get feoogh all of these ia a day, so we
will need to decide Aiek of these (and those of Ost oior agencies) rai^H
be cootrollii^ file process, and start there. _____
DD.
EXHIBIT 30
A) Klein - EPA Expectations
frtam
TO!
Date:
Subject EPA Expectsttom
cat
r Al KM
, Mto Roljjnson
DaveHartra, • •
In r^oMe to your rfttpiest fer ^sncy nssgor expedstlem fer.ftt
agenda:
We ftilly support thspresi* purpose st3temc-nt
EPA Expectations of tteBS
to b» significant, e!«tera a high fc-v-elrf public interest
Post Minfcg toBd use {(*Ufl smite suggest Mat, to general, post-
mirilr^ dev^epmsnt has not occurrM ss any^at^d i^ien variances am'
reques&ti ftwn ti» iHQi^amfflias to isEBm the lantf to 8 GondB&n
capable of supporting Its prtorufM. Aalore to ensure that mat
dsve!opiii8nt ooctffs ss envtstorifio ttsv^ bssn dsv^^^fi^ yn6 must 03
induced as eammteisits wajftj tt» MS. Hjeaa iBctnawes ara
uphald.
KaiBnwMt Perafit TlimshekUi We IW NW 21 n*ft)al ttipsct
tftreshokts' te de!6i«9tB suflaca coal mft*% excess spas <&ehaiges
in rateiscf the U.S. (Ir.dMduaBy and currrfaBueV) are required.
GonsStKS definaions of straam ssgmertts {^hensial, feitsmstei^
paimM) am! flekl rmBwls fhr *B»«ltis »• stgments am
necessary.
A CT/A end SHa^penr«(^riireton process shouWbalnstltated
trough formal HOU to evaluate Joint parr.ittl^g Interests on a
Oim>r,t Contracts:
It feB^iasSsrstaftd&tgthasfiw currant contract end on 8/27/02.
work could be added only If a modMcafionlsproceaed by mfcHuly
by 8/27/02). A 90-day •extension- pcssiMSy (ID 11/27/02) Is a
contjnu^of^ervica-daise which rneansttiewoit that muldha«ba«i
performed wShla tfte coaBBct perksd was dstey^i duat» etomstaaoM
beyond tfte con!?ol of either ttsacontractw or ^A. Tttemarano
prospects to extend beyond 11/27/02 and any new contracts are a
atttiSHmo.
K3SH1BJT31
ta\Looal!420^ 7/14O003
MTMA/F Draft PEIS Public Comment Compendium
A428
Section A - Organizations
-------
r William Hoffman
EPA continues to support fhe ralglnsi purpose for fie ElS'es slated in #te Federai Register &oSos of ' '
intent Our&cpec$8Uc«it- mimfig d^elopffi^s
has not occurred as ssvi$iffirMKl when variaas^s are rei|aestal fea» file fcqutremeitts to
^tion<^iE^Iec^ffi^jp^tfa^;ii(s|Ki<^iiBi&. Actions to ensure tot PMt0
t &tcw$ m cBvisloEed hsve been developed, afid tatast be inftladed as
mitoente witbja the ^S. *R«Bas Incentives am «^jeds% in^mtaat if the rtdiag in fl^s
recent KY lawsuit is apheld.
Natte»i4e Pert^t tfer^io!^: We believe NW? 21 minimal inxpaKa feesholds to
suif&ce coaJ minlag excess spoil discharges in waters of the U.S. (individually and
cumulatively) are
The tairr«!it period of p«dbmiam3e.£m fl^ cmitnt BIS DeBveiy Q^tera (J2) expire on 8/27/02,
Hew work/dollars eaa be added to erne of fisose Delivery OrderB if a mtwIifieatiGa is developed by
July 1, 2002 m& processed 6y mid-Jtily (tofe lias to be twsew&le opportunity to be able to
cofi^icte the weric by 8/27^)2). A 90*day "ex^ajsios" pmstbili^ to 1 1/27/02 ssists if it caa b«
stoowii that the work was delayed due to ciicuuistajjces beyond the control of eitfeer'tiie contractor
ot ^»A- Than are so prospects to extend beyond 1 1/27/02 under fte existrag BFA HEPA
coffiUaa ffi6 ftte dafee for fflteing into a new "mission*1 cou&act is uncertain at this time.
WStom J, Hoffitisn {3ESKS)
^^n@ Director, .
Biviiwmwffi^ Services DMstoo
U.S.
Agftnfia and feartSeoi fer 6/i 8 SES tame Reiotoioa
Elaine Swii^io
O^Bce of JPftdenU ActlvM^
Ph-202/^54-7162, Fx-564-0072
WasbiR^em DC 20460*0001
QS/37«S 03:26 FM -
for fi/1 8 SES Issue
EXHIBIT 33
MTMA/F Draft PE1S Public Comment Compendium
A-429
Section A - Organizations
-------
Resolution Mtg. osMTM/VF BIS
Please sea attached WP document in preparation for next wsek's
meeting, as discussed in earlier JS/lG 12:39 p.m.) e-maii.
6.18 Issue Res Mtg.wpt
llre^lAfetoit^tlJcOTtete
Moantalatep Mining/Valley FHI Environmental topact Statement
Senior Extcatfw Issue Resolution Meeting
Interior South Bunding Room 332
Jime IS, 2082.
ASSHfiA
9:00 ^.m.
9:10 a.m.
IstrotJactlons
iPoip<*se of Meeting
9:15 a.ni.
9:20 a.m.
9:56 a-m.
^«r l^i^ Settlcm^it A^uaaant to Coataitre with IHe 0S
Uke3y Ctitidan (rfDHS by Public
IPafeHc ex|«!ctaticnas for golttticms an
oraacqsts aft®1 34- years jiot mM '
May entices fer not aeWi-esglng all mfeiag
iS er all resource
Does net ddve cprfcker iE^sleme»tetJos of jififfidM gGvaramest ^tions to
solve MTM eoatr^V6«!y ('will require time and S for additional studies and
3 0:00 a.«i, femes •wftli Existing Alternative Framewmfe
» No Stfjeriag Coe&fitfttee consoasmt
* Flawed tecteical studies
HadenH decision
e
-------
* *»ft toanwni Daifciw been pntpw«3 merely &K diieissWiw w-noag fl* SB*BC$HI jsapsrlns **
i shwtMnw b«r«e«£il tma# th* FQU to tbw U «8 ( 3 ) sonfe*: KM? pubSe t»d Q) Apisfe open diitagfee b«wasii
'IWA'i*^. • ?8ge 2
Meunfalntop Mtsliig/Vslky Fill Environments! Impact Statement
Senior Extretfve Issue Rrsohitioo Meetfag
Imerior Soath BtiiWing R&m 332
3 0:1 5 a.m. Propped New Alternative Piaraeworic
Summary Description of Concept (see handout)
Discussion of Baseline (ftd action) Alternative
/ Pre-Hadtsj I decision (ffli4rar% poslUos}
/ Post-lffipK^vemfstts (lusfw NWF 21, Fffl R«!e» etc.)
Advantages of the aew fiismework:
t^ Detains w
-------
EtRAFT - tfeii
MtMA^ BS-
gen-eminent sia
draft tetmwa fte» taa bffim {
sfeoaM iral b* rele*S3d unaer »« FQ1A in (hat it nfll (1) swi&s* the pittite and
MTM/W HIS.
HANDOUT FOR SES/$TEER1NG COMMITTEE ISSUE RESOLUTION
MEETING
Meiratalntop Mining/Valley Mi
EnviroBmentai Impact Statement
Issue Resolution Process Conference Ca
1j 2002-3:00 p.m.
MEEXIMfi
Roll CalMntroductions
Statement of ctmfeeaee call otsjecti ve-Mtiate Issue Kescfetia
atios of issue resolution working group (the groep on this call is too
large to be effective); what size group should engage?
Decision*—1 SES voting -members tern eaeh agency with sujyport £
- BIS Steering Cotmnlttee (EISSC);
- I NE?A member torn &A, OFA;
- Facilitator preferable
" process Discussion:
Range of Iss
Decision — osns^asns aj^Krosch; one vote per agency for decision
making on isstie nssolattot (all decisions are mifcijeet lo f
How ape issi«ss p
Decision —
* HSSC prepares position papers
* EISSC fffese&ts position papeis to SES/Policy gJWip
* BISSC sffiEwens ^tiesSoiiS/disCiissBs; caa convene to SC
meeting In breakout rasm (if seeessary); avaJlafek for call-back
^
Page 5
Meuntatofop Mining/Valley Fill
Environmental Impact Statement
Issue Resolution Process Conference Call
May 21, 2002-3:0
MEB1IHS
s executive
dIrcetScHi or assJgmaeQt to ESSC for moire analysts,
documentation, or development of issue paper for princiimls;
ccwwsys to ESSC naxt steps
How soos/ofteu/whem to meet?
face-ttvfeise off^iite me^Jtsg {allow enough time
evelop position ps^ers, SES/PoMoy member to
. Ssbseqaeat m^tinpt TBD tmoathly coittensice call c* as oeed
d 1^ EISSC??]
Tedimcal shidy limitations (c,g., fflissmg piece^ fix Haws now/late1,
$$$,*.) ' ^ - -
s of tecbcical study findings {indicators v. "bright lines,"
etc.).
Appropriate glteni^ive fl^raeworis (contrast, what's baseline, Hadea
ntlmg, etc.)
Adequacy of study Bndiii|js to support alternatives
S te dispute (camulative tcmsstrial, JPHtXJ, AML -Raiding, fill v
tlso of DHS $sr KEPA co^npJiaaice for agency actions (OSM rales,
HWP21, WQ ataateds, ete.)
Frefewed ^Itematl'w; ^eomensas, agency choice, eto.)
EISSC grooad nd^ SJT opewition (leadership, facilitation,
Biembersyp, voting, FOIA reieas&scoordjiaitjoa, etc.)
MS Schedule
Adjomn
MTMA/F Draft PE1S Public Comment Compendium
A432
Section A - Organizations
-------
DRAFT • This
MTM/wm.
nl sKrff who
l &*& Mcwma *# to* ten ji
h«mmi*«k1^1«teih*raAfo
Stf*js*Hsja OK MTM/VF £18.
\y fee iSiieuisiass among llw Agencfe* yi
s»v&Be ihe ptflsliE aari {2} *!*"& op™ .JiBtesa^xa'-sar.
Page«
II. Whv are wettefng this EIS in %M ef reeect events?
The December 23, 1 998, settlement agreement voluntarily entered into by the UJS. Army Corps
of Engineers (COE), West Virginia Department of Environmental Resources (WVDEP), and the
plaintiffs in the lawsuit aptioned Bragg, et al. v. Robertson, et a!.. Civ, No. 2;98-0636 (Smgg,
SD.W.Va.) settled all claims brought against the Federal de&ndant (Le. flic CO1) for thea;
alleged failure to carry oat their statutory duties under &e Clean Water Act (CWA) and the
National Brmronmenta! Policy Act ("NET A"). Even thoagi, a similar lawsuit flKeataddans for
the Cofflraoiiwealtb. Inc. v. RivmbHiffo civ. No. 01-0770 (KFTC, S.D. W.Va.}) was Sled agatast
the COE by a new sst of plaintiffs* and s sutnmary judgement for the plaintiffs was granted by
the court, there is no breach of the December 23, 1998, settlement agreement and the parties
continue to be obligated by the terms of t
Paragraph 7 of the December 23, 1998, Bragg settlement agreement established long-term relief
by committing the U.S. BuvirofflMmtal Protection Agency (EPA), the COE, the Office of Sisi&ee
Mining (GSM), the US. fish sad Wildlife Service
No changes to the SMOlA and CWA pftjgraiias ifl effect in 1 998
Depending on the outcome of a detailed, permit-by-permit baseline data
collection; thorough, site-specific, significant adverse impact analyses;
and, consideration of alternatives fbr avoidance and minimization, valley
fills could be aJJewed in ephemeral, intermitteatt and perennial stream
segments. Mitigation of unavoidable impacts would re^tiite in-kind
replacement of aquatic: Ibnc6ons and values within the watershed.
Valley fills could be located In ephemeral and interaaittent streams.
POTEt-4>y-per>nit baseline data collection an4 site-^edfic alternatives
analyses would be requited (although not necessarily as rigorous as in
Alternative B) to demonstrate that avoidance and minimization Were
considered. Mitigation options 'for unavoidable impacts woald be
somewhat mom varied imd thus more flexible than under Alternative B.
Valley fills could be located only in the ephemeral portion of streams.
Femrit-4)y^3Kjnit baselbae data colleetios would be more limited thfca
under Alternative B, and alternative analyses would demonstrate that
sunimizatioa of downstream or indirect impacts were considered
MMgatiofi could Include compensation in lieu of in-kind replac*si«ERt of
lost aquatic fuuctioa'aad value.
Consensus does not exist among the agencies on this framework. Some agencies befieve that the
technical studies do not provide adequate data and analyses to support selecting an alternative
based oa watershed size testricMoas. Several key technical studies seeded to support the existing
alternative irarnework are flawed and can oaly serve as indicators for ffioviraaincntal aad
economic consequences. Much additional tittie and money would be required to correct these
deficiencies. Some agencies qmestjon the scope of analysis of the DEIS, suggesting that fee
purpose of fhft BIS is to evaluate not just Slls, bat the impacts of MTM as well. Others have
been concerned about the lack of analysis on mining through streams, coal waste and other MTM
impacts on WOUS. Several agendas ieel that the fbcus of the current alternatives is weighted
too heavily toward aquatic iispacts and too light on terrestrial impacts. Fh>a|)y, the recesi Haden
n decision in ^TCuadermmes the basic assumptions of the alternative framework by bringing
into question the applicability of CWA 404 regulatory program for all 1sut certain types of valley
MTM/VF Draft PEIS Public Comment Compendium
A-433
Section A - Organizations
-------
l tt«fi Hcsaiom of bafier sme rule '
2) fill jnaterial deferftfofi
3) using ESA to prevent duplication of efforts
4) coordinated decision making, tod
5) timely process to resolve diftereiKes betweea ageacies"
Army Corps ofMngittesrs
The COE believes the following issues should be addressed by the HS:
"1, GIS-bss^&vinMfla^atalXEcoaoimc'&spact Model ~i
it is flawed baeauss it 'over estimates the ccoaoffliG iaipacti of regulation, arsci under estimates
impacts to sqtiatic resources [not ready to stippoft decision making; credibility issue also]
2. Stream Impact Analyses - macmbenthic and fisheries studies incotjclasive; chemistry study
identified potential iwies associated with seleaiuffi but mo«s study is needed to oamtder distance,
time, amounts; limited data/samplljig sets thus far; not rl|se fe impact Msei^meBt or decision
making)
3. Scope of Amlysk £oitieaj issae fbr the Corps]
• Corps scope of saalysls Is limited to the aquatic environment - we do not regulate mining
per say, and.it is iffl^jropriste to try to flex the Corps jurisdiction tip-slope (OSM seeds to
change their regulations to better address terrestrial and social impacts)
DHS carraatly only evaluates alternatives ibcttsed on the afttatie enviromneat ~ Ais is only
half the auswer-altsmatives need to be formulated that address terrestrial asd social impacts
thai are not ihe Corps responsibility; right now there Is redoudaney in "waters'* and a void
tip-slope (OSM needs to chaage their-tcfulatioiis to better address teifesttia! mA social
OSM staff reported at a May 15, 20S2, meeting at CBQ that altsmatives were developed is
efflisideradraij of the authorities, fending, and existing programs of the agencies. Array
pointed oat and EPA sad CBQ seemed to agree that the H1PA documents should identily
broad ranges of alternatives, Including dtemative$ that recommend new or modified
aafborities, ftffldiug iftoreases, or program changes.
MTM/VF Draft PEIS Public Comment Compendium
A-434
Section A - Organizations
-------
lheKnAfeshM^^
B. ?*8* 10
4. Need to Complete the DEIS JThs ase of this documetst to Army and the Carps, if it does not
include evaluations of all of the ejmrornnental nri|3sets of MoantaiBtap Minmg/Valley Pills, is
mkuitnai, Wearepro^e^ingwithdev^opingGOM^ewywifih^
jurisetictional extent, 2) z streaKi assessment protocol, 3} mlitgaticiB reqmrejseiats and 4} minimal and
cumulative impacts thresholds, Unless this document can serve as s& umbrella document that can
be tiered ofT of wider NEPA, it does not serve a fission for our agasey. The Corps will sot &gr$e
to a set sise restrictions on the me ofNWF 21 , bat Is working diligently oil cG&sJsteocy for its use.
5 . Preferred AJternati ve - The drafl letter ficm Mr. (Mies $301) to the ftindpsk of the Steering
Committee focuses OB the issue of whether or sot the BEES slrauid identify a preferred alternative^
and recommends that "at amMmiaa, thjs requires idesfiijealjoiiof a preferred alternative". Based
on issues 1 -4 summarized above, ft is premature to make* ft{§ wry tmportet deea'sioa,
BOTTOM1JHE: DBISisn0t^c«|)^l8toAimyinitsoiHJiEBt8tate. 11^ OS-based model shoidct
be i^doac^ additional srtalysis on s^teiimB inEpstK^s should be sBecos^lis
alternatives seed to be MfflfitififNl sod evaluated in accordance with NEPA.
delaying i^lease of the DEIS until these actions sax completed (8-12 months?)-**
Office of 'Surface Mining . • _ , ' .
m "Provide a ddbed, efSdest, asd stable #e§gatatoy fcrawwk to assure ©
Clean Wafer, Surface Mining Octroi m& Reckmafioa, ami Endafigered Species Acts
Finalize Che M.TM/VF11S so that tfeffi^rHggsBttleiseiit :agree»eat is satisfied/ and closed out
and th&t accessary prograimnatie chaag es can aetaally be implemeetetl by tfee agencies to
realize on the ground imjirovCTtiiBnts aa3 eliBaaaafie fte eamsn ateno^tiere of
MTV/WSS. 11*1,
ri^roUmMHi^nf^^teetlK^yk mil W
lS. page H
Avoids, minimizes md Hiitigate impacts to aqustjc and o%er
msoureaKi, to the extort allow^ fey 1^^^ law, whBe still providing for the natioB*s
considerable ccergy needs.
OariSess CWA statutory Mid i^a!at0ry ccccepis sucii as impact thresholds, h0w 63
vrfue strea»i8, and acceptable mitigation prscticea that will offset t
izsjjacts
Provide, wfeara possible widiln SMC3-EA aothtsity,
consisiiait wiffi the CWA
Cooi^Isttes taplementatiaij of a^EEffiy |KsrmiMBg »d ov^sigM program so as to
slrmisa^ redUBdast rrn^ev^ of jaroposak lay different a^aicies where statutory or
regulatory requii^aentB overiap,
AsstEpes best science is utilked to doctEmsnt the si^dfisanee of impacts objectively
for agency decision l
The EIS St«ritig Coimnitt^bas tentatively a^eed to analternstive framework, consisting df three
No Action Alternative (A)- Administering die respective programs in accord with the
programs' controls and Intei-agency dedsion csateig processes in jtJace prior to December
23, 1999. ("This baseline may be opes &sr discusssoa because of some agencies'
n of regulatory 'changes since 1998 to address MTM/VT? issues),
i8^
have been identified so far to reduce impacts identified by the technical studies conducted
for the EIS, this altsrtiati vo would reijrescnt the suite of sdsons that would resist is the most
envirosmaMiy-jjrofective aJtematSve 0.e^ restridiiig Slfe to tb«- ephemeta! zone,
devdof)m«nf of ?MLt| criteria and bonding requirements to a^syie planned devclopmeait
occurs, development of improved referaststaan techniques wfeeje'reforestatioB is the
i^woved PML0, iittpraved peisnitreview and craordjnstion procedures, etc,(St& footnote 1).
Note that fbs roost «&ivirorimeiital!y-pr0teetrve altetaative cxchidiHi economics and
administrative difficulty frons comsidejatios,
Alternative C (Ageccfes' Prefcircd Alter native) - Fmm the 60+asaio»s that have been
Identified so fer to reduce Impacts, fee salts of actions titat have been deteimised to b$niost
'eiSdeat aad e^setlve ways of improvifig the regulatory programs to address scoping
concerns, ttos suite of actions takes economic aad admisjistratlve-ooasidomtions into
account The technical studies will provide indicators in snpport of analysis of flic relative
environmental aad economic effects of Alternative B actions and justification for selection
of preferred actions for AHemstJve C. Action agei^y(ies) msy fee afforded deikeace on
whetbef or if a particular joefiiod of Ktioa hnpleineatatktH is listed under ti^is Alternative
C1.
flfe Issue * TJie qaesHoB wss'raised
-------
^FO^
lfi- Page 12
The EIS Steering Committee recommendsthat theprefeutsd Alternative C (gaite ofpreferml aetjeijs)
be identified m the draft EIS, which wiM be released to the public. Based on public comments, the
suite of preferred actions njny change:
»> actions identified feat not selected in Alternative B may be added to the suite of
some actions may be deleted from the pv&rred suite; and
oih«3T actions stay
The timing and m&ssis of impleasestatios of ttse individual action recojumcBdatiQes will be tte
responsibility of the action agensyges), Ajgmey imptoienfation of actions may inquire additional
infottnatiofl (study and/or analysis) 'mS NE&A coispHafice to sajspkmasi tlte aiBsTtaaJioH In the
MTM/VFB1S. - • - • - • .
D
a
D
D
O
D
st ase tilts advantages of the proposed ESS alternative ihaaewcKKk?
Ssdividual actions will be-selected oa their merit; opposed to attempting "lump" many
unfslated actions under a single aUraaitee.
The importaee of any ese HS study becomo Ie^ impoytairt thas ^e* ov«caH iislicittioDs
presented by all studies, No additional studies or supplement of additional studies will fee
Mifilmsl delays in moving &rwsrd with dm^E HS.
Maintains cimtfit list oC actiass iix » "repac^ca^ud1* fttBnfiWoi3^ wMdi wifi m«t« g
public f erceptloH thst fje I3SS h&s bam radically altered fiwa d?aft versjom released and
General agreement among die HS ageaoy representatives on the revised fiamework,
Deference to the- action ageney, if decided, lieifis Steering Conmiiaee disagreetaeat
are 1he disadvanlagfis of tbe prosed fi-aigewoik?
A minority of members, iisei that t!bc iiew fena^«5rk 4o<®-ii6t meet the NBPA neqaimme^s
by providing a contrasting choices aisong several clear and di^fbict viitfele ajteraatives
On tfie otfeer hand, ether agendes OB the EJS Steraii^ Committee fe$ tJiat all 60 pc^Ic aette
have some poteaUfil sseiit and fell dlsdosiare wiU sltow that a wide OTige of $olutton§ were
considered M potential govenamesfit aeti&&$ ia the BIS, The Alternative B analysis will sfeow wl^
a paiticidsr action Is not listed m Ae p^fetiBd suites of Alternative C.
John (3ood|n
06/2CH2D02 OfeU M4
Kathy HodgWss (R3 WOD) hss committed to weskjy phoim mite at S;00am on Tfiursdajs wUh iha WD
We've moved! Pias&e net® tet aU «y eorstac! ifsformailan excajit my e-msS acidre* has diadQed,
EffecU-e Ma.'ch t1, 2002, f can be reac^w! at
plMfte; 20SS^S6-1373
fex: ^2-£®fr.13?8
rutting address:
'- «so^t>
1200 Pennsylvania Awmie, N.W,
.C, 20480
EPA West - Room€106R
1301 CoftstrnjiJon Avwwe, N.W.
WashinQton, D.C. 20004
This train is leaving the station so if we MVB any Issues *e letter gist them raised very soon. Can
^x»^ this today or swserrow?
, S Is tt«a most
e asaa find/of ficonoiniJi eonsi£3erattens|, sad C worf<3 be tn« e^rseicis pfeferred altaniaiivs
su^ccf action i:-ma. The action ilems vvcjid bs itstsd by environriierctat issue area much es v/c did for
. t pteswe Aften^Stfe 0 wi fee vety sSmlter to the current S; aneJ feat B wtti IMS a
, er^fiftOMl monitors, ai-^sfe*M<^d irtSgeSon, ^c &to}. fi& sfxly* posattfe acUerts
woafd be etesertaecf as po£eniia! scSans in the body of the aiEernstfves fin^lysls, would fa© anaJyzed
EXHIBIT 34
MTMA/F Draft PEIS Public Comment Compendium
A-436
Section A - Organizations
-------
^
«Brfim^tteFOUiB»Mtt'^{l)effi)ito
separately in ths EiS, and 'would em) up in eSh&r Alt B or C, or would be disnslssed by the agencies.
For planning purposes, 00 4QO£"8 mw teak 3 w»t proba&iy direct GF to; e)'Attend & masting (OF ceB)
with th6 SfeerSng CorrHHiftKe during the week of July Sfli so the new allef native structure can be hid oat
more formally; b) Reorgdfite® && SIS usifig the B&w sSamsSve construct provk38«l by ths Agancieg during
tie July meeting; c)' Submit 0 revised working draft during the weak of AugusM2th; d) Reeeive comments
and/or meet witi the Agencies during the week of August 19th to revise) the document; and, e) submit a
concurrence copy by August 27th.
ft is my yftdersteiiding thai IF the .fpnttacter cant matt the detes due to circumstgnces beyond its control
ftha agendas eforil get the atiamative structure or their wmments to the contactor fn a t}m®Jy manner),
the- period of performance can be extended pest August 2?&.
, Antfy- fe Si!s enougih ftsr you to gel the now Tssk gfting conftscfejsBy? I sm out until Monday. Elaine can
probably help darify B^ie tf you cant reach #m. Stey iurasd ewfywm!
Mo Action Alternative - AeUnlslstering the respective programs in accaitf with the
Iffogreon fitsitruJs a^ inierage»cy decision maikii^ processes in place prior to December
23, 1S99. (This baseline amy be opeji fbr (fisci^osa because ojf some ageecies'
implraiMmtatioa of w^aktory changes since 1999 to address MTM/W i^ues),
this alternative, the impacts of ffioiaifaiistoi) mBuag/valley 611 opera&ms would t>&
deactibK} based apmi tl^ tecb&ieal stacfiiM <^»duct«ai to date by the ag
Hoffswi <3ES2^) '
Eiwironmenta! Services Division
U;S. ErsviRHiftwitE^ ProtesSon Agency
A!le«fie s®K io tettelh wifc£t BBS t^fesy or *arly tomorrow. I will be out'&t th*
office fdr a psrojeet in Alaska startiag Friday >ftma 21, I will be ta- t&a •
field without Hiy lapfec^p. 2 will not b« cheeking e-maii «»til July 2- t will
try periodically to check t«y voice mail inssBa§es but this will ba s|>orat|ic»
-SKisa', isc. '
207 Baiiate Rve. CZB^p Hill, Pft 17011
(717) 763-7323
nHtivt C (Apndes* Preferred Alternative) - Ff&m the 6G+actlon$ tti^ haws teen
identified so far to reduce Impsete, tbe suite of actions that Imve been detenHfeed to ibe
roost dScient and effective ways of Improvi^feere^latoryfKro^amsto address
sceprag coocems. This suite of actions takes economic asd admiisifitiaiive considerations
inte account, the teclimcal studies will provide indicators ift support of analysis of th®
relative etmrosmeaital and ceanomk «ff«ct* of Altsnsuivc B actikms and jtistiSc'ation for
selection pf preferred actions fbr Alternative C.'
The ESS Steei^ag CbmEBittee TecoBam«E»ls that the pffclto'ed Ate3^iv« C {sate of praftered
actions) be idenii&ed is feft draft El$i which will be n^fKEsed to tfee public. Bass^l on public
comments, the guile sfprefeircd acfious m&y change:
in Altonative B may be added to fee suite of :
some sstims may be deleted fejm tise preferred milte; and
other aeiioas may be modified
The timiag aRd
of teplemfastat^ of QMS individual action f
-------
To: ifalns ©Mfiano®C/USEPWUS@HPA, Gregory
•7/2002 08:39 AM ^
Suf^acfc .Stock-up of Proposed now AltemaBwe
Kattiy Hodgidss, Ac§ng Dfraste-
Bn^toransnl^ Service Di\%tor» -
U^. EPA Region 3
218814-3161
— Forwafdati by Ksihy HodgkiM^^^PA/US on £^®r«2 88:38 AM — ' •
m Hoffman To: i
, Rider,Ds*4d@EPA.GOV@a:jA.
..,.
Sybjsct; Moek-up of Proposed new Memstlve Framswortt
For the caii this morning, fhHs matrix Is pretty dose to representing how the actons woutci Soofc under She
new framework. Some of fhs Bdtes from 0 may sSI need to ^ pufi&d bb C ^snd It appeere BiatOSM
Dave Rider said he sow & presentsfkm yesterday on the KV stream sssessmwt pratoeoi itist ths COE te
floaSng as ihe tod for eteteH-mMng if NWP21 allies ^K) saki R looked pmtty 0ood, Hifes rm*es mis mom
eomfortabte with the wording of those relsW actions in the matrix,
Have fen on the ea8 today,
you! b« hsMns on ttie csBi
Sound flke more hjn Uian
•Actog Dfmetor, CKStee d Bnvfttenmsnia! Progiwm,
EnvSromasntal Services Dtvfston
si Protection Agency
PA i9-tCS-202&
WSItem Hoflrrwi^3/USEPA/US on
Mike Robinson
sov*
...
. AJ KtaM «AKLSN@OSMRE'.GOV>, Dave Nsri03
*DHARTOS@!G
John Cmynon <
Subject; MooJ<-up of Proposed nawMemativeFramaworSt
Attached is our promised prelitd.n»ry attempt to take a reasonable facstimila of '
existing acti^os ftsoss tlas June 2002 Aitetsativa {Chaistiar IV) £U«MB t
of tfae DEIS aftd "repackag*" fclutta in tha recently"propo&sd fraffiework
for trial by &he i5SS le»ue fteaoiution 03r0up. S"l**ae r*-view fefaa
big pxespared to diocasa' tttft doctiHKsat: or otber cq?ti^Ba at our raefttins next
Monday here ia Pittstmr^h,
Also cousidor w&e» you think about this doctimant that ther* are Can leasfeja
couple or thx** ofchejr iraya to preaost tlse &isemat.tvea framework» &e
dleotiijsed with CSQ cm MoMay, -che Ssaelime (pra-lS58} present«4 in th»
act ached docustent cotilfi be ffisrgeyS as part of'Alternative A, repiriBsentiiig
"•whatfis wa*v»s foft®a* 4md "wfeeTtt ws as% new;", ox,, ehe exas^a^e So Acftioa
Alteruafeive A could b* msx^Bd. with AXtersati-vs C £o repx^sast "•wtfiare we are
nowf ftj*d "^bas^i we ax* going •" 25ie other approach .was aa described by Btnah.
Saatr in th* Sgioktad O«d- ea**--* two-»tefi!5> approacht th« baseli»e btscomcs MI
alternative (althougli gaafflrslly iafeseible) ujjon which to compare the no
atctioa (Alt A), and Alt'a 8 antS C are eo^jared to A. If yoti followed that
explanation, cc«wiif9itul*t:iexn«i • If ao*, we'll sort it sat jiext w*«k.
Ple«s« not* that this former "Tier III" actiona ar» italicized and fcha
"disputed actions* arst io bold. •
EXHOEBtTSS
MTM/VF Draft PEIS Public Comment Compendium
A-438
Section A - Organizations
-------
Mountainiop Mining/Valley Fill FJS Alternative Framework
"•*-fwlreii»!)3SftfZBae''
(iMtpJj'ioSla'at
e«M) Spoil »J.
HWf Hid iwfivfdtfrf parroH (»)
tfeatpepc^ eo fflf
ofrteMySktM"
tv.^taL.r.tiMUt.ttM
aj' to mflwffitd rnSst to
COB B^tefM, it i £GtM»! rtfle,
rested p«ffii<
,3 «U. < V*"?^*'.
7*4?^
fee *f5rtpik«Sf*a ij
.
tpplletbte sm « Rafenrf «s
PA wll conltBta! to tMilffiiO: Ihu offecii of
orital* fof e*ts(«(«I eftcaiteti ar
toi lo(!fc«!)ite w
i of 40 Cffi 434, or
MTMA/F Draft PEiS Public Comment Compendium
A-439
Section A - Organizations
-------
Stream lespalrmeat {eoiii 4
lcouii)(j(effiicl«iby
i««tr«f *tf*u*sJ
^il
Alfcrta
*?•
SI
- af (W p'«««n5M In
t vm fiWA is
tows lbm«ss!paiIjirik<*flH«ihHM '
P8§e4ofl8
MTMA/F Draft PEIS Public Comment Compendium
A-440
Section A - Organizations
-------
wjeialieJ *ei*j)8!ting iMKifstly ffl
b, CSB,
J ote
Wniioms jtfdteSs !o uwto OstSMCRA pMSriftl
'
MTMA/F Draft PEIS Public Comment Compendium
A-441
Section A - Organizations
-------
* Protective Attentive) c -
(^» IJnamdafyie impacts
EffEEttveness at M if l^tlr,,.
iffeetmarasef
compensator milt g
001 fete eowsMtoiy
far oca! n^nine*£«wins to iatft
CWA «!!} of fJK^XBffS CWA 49*
iaitiKi
ts to ift«=
SMOU ratjawe* at
ind p*tfo(iB»Toe teds we pcd«! lo
OVA wSigftiHffl not w^irad, tj ito f,fc
s jS CWAfetsuflngrw
^IflCffitm pFBfreto, «l% An
COKwi! «*•
jehoittia end «ial)1!ili fiR
(a g., b««S^ M^J- tea-wot) «t w
Opee aatigititm nafBiieimii *fle
ffittinttehtg Btstfronmrnta! Effeets qTJMqgfc Surfae Cos! Mtty j%&$s *gjlfe ,; Qmn&Kfre !i>;;;r.ct Aw
TTiBf OS f* inmost (tj-NE?Ata
ISIDll $n& iM
7&fCOM
sowte fefceutiBihtive tfftteiSBB
jjsit mirfeg «ptj»toi(H-J
dorian wstfw> to tooa 814CRA p««h
P«gl!7ofl8
PageSoflB
MTMA/F Draft PEIS Public Comment Compendium
A-442
Section A - Organizations
-------
f*K«« ***»>•**« 91,
A iieclH&ntatt*:t)ttf!itfitBft 14
fta tatfttlittitlailifitlilia&viet nt
MTMA/F Draft PEIS Public Comment Compendium
A-443
Section A - Organizations
-------
-Tpr-strj-r
* , £T . AY*
Alternative (2QQ2))-Ji
;*' frateaf^'lltthiattvil
IB mot wxtU &e*nn«l M
OSM mcoopHiiiW wfiiSiE MHand«»vr**i
wiif toef^t gwWtltesi fde^iyb*
«; 2} naJusteg ssffl oooi(sw!ioa of
llttlw fewusfe «!B8»liBn, us
MTMA/F Draft PEIS Public Comment Compendium
A-444
Section A - Organizations
-------
"Atarrtt&B
Best MaragsmffFi Pr&eHceg (cottt A )
Pttfentf*! bettttta rkfc* nf
EPA is w^mniit*! Ib- Oean Aff (U
EPA is impaiMc toCfewt Alt
in of lelimls «nd iJFbteM
Wf8MP$
ra6trfBi,
4» «» eaaaftw* » fioaHnf-toasIstraa Wife
OSM-Jrilifin
pnH=i"l'»
colleelta im
PtjslSofH
MTMA/F Draft PE1S Public Comment Compendium
A445
Section A - Organizations
-------
fw MJIltws! as SMCRA SlSfs)
f SMCKA
fv,tu«(*t!
tf brmtRtns*Hd l*sii
to prltwEe ««!«itt, tow!
tkU jBlfltnc* wuW ntcttntti Oft
St«s*«t)' fo
ima «»{isr
jirt-p*r«tt«
«yw^cd trtt rtmtkti ttttetdjt\«ts& GSM
KtillS OU pS-tfrttB tlBfEcMHEln WtHf> >!ltC
MTMA/F Draft PEIS Public Comment Compendium
A-446
Section A - OrganizBtlons
-------
,
ma SPA. Re^wi. BSA
-
Bf t»tyi(«fflIH(!li«%*lia
^in«*«-«f'pcfmJt
a!iJoseur(lBnB(ra«(
A CWA led SMCRApe«™il
A CWA wd !»WiA pwmH
IB* efl
lieMCiAwilleaspfea
fitgafer t«^< fe f«e«(«t
J*irj-™
'
Fa^ 170/18
MTMA/F Draft PE1S Public Comment Compendium
A447
Section A - Organizations
-------
oe^my^
Hartm- «DHARTQ8eoSMR£.GOV>.
»,v«-iJB, geomaeieimcc.isa.ijs,
Heffniaw.Waaamaapafliatepa.gov1,
JamBsMTewr!36itttaMQ£. woe.Brmy.mit, *Jslf Cofwr"
«JCOKER, jatumpe
-
rkter,davis' wsifelosd
Actoowtedfes that CWA sad SMCEA really are c
-------
46i*i*8Citttt* oat? ttr fj*
COB
UwfSMcaAjMitwt«
«JtJBtati«lB^[aBfl(B
MTMA/F Draft PEIS Public Comment Compendium
A-449
Section A - Organizations
-------
tz
From:
To: a«M,Dlane; Oasiie, site; CoMad, S»j; Crum, Maataw D««mo»,0»v»;
Ha.-nilton, Ssm, HodgWss, Kaihy; HoKiran, BBI; Hunter, Russ; KamptW*; LHrtwt, Bi*ti; Parker,
uattt, p*a; RttitMn, Part; stak, Ktrfc SuSm, Bsftte; Tttoa, own
; Traa. KMhy; VireWJisto, Dove; Vtoait, Us; Wols*, Den
Tl^Ata 13, 200211:08 AM
Draft Proposed EISMoma»reFram2'jvork-/Viua'JcA=aon3;SESIseUe Resolution Ca8
Follow-up note: Evan though wi> have no rcsporaa as ot yet from Hit CCE about tlwtravallalxltty
tor (he *• proposirf tei» resolution wikMoe call, I ra0gMt Sat wo go «tioad with the oil
tomormw «t «:30 a.m. EDT. »lh« COE it availabls.rrn sure thil they y>«l Up Into tdediscuasksn.
PIMM usothe dtoHn r.wnbcr!77J16.4412 litd enter «c=8s« codn S6S664H.
Alao, tttsMlMl 61 «» tatont altsmiUvn frrmoword, with adijittorw and «tHs <• propossd b/ FWS.
NOTETOCOE: Theoter agency ex«=ufces sroir/ing to nail doivn l-ieirK.!orK)3:5 for the upcoming
•E^resolutfansaaonthoaltemaBvefratniaKjrk. Wednesday st 10:30 Is Ihoprelorarra!. Cansomsone
from thsCOEpisas*le!u3 know who MilbapsrtdpsSna from aieCOE on trie conference rail and what
the CO6 posfgot) te «n Sis ffidsffiig (rsmewortc,
P.S. to weryona-D^eDensmorc indicated fat ho wouMboproposi-g
^smoon for dSo;3Konv/ilh the KTOjfrjra that riiintrcduOTSffieroncept on
C:eCWA 404 prosrarn °n rhsbMlsri.stdiMian.iM beyond ephemeral streoms cause s:gr,ifci-,t
Attecf.ad is the l^stvorafan of prDpostJflSarrfltrjssW with everyone's adits recc-Md ID date.
Note to COB-** EPA srid FWS as»«j (StswnBea mM«»rs agwe tef 8* vwion apnseatan
accurate pert rdyairfpossibtevisbls contesting Eiwmstves-a'tho'jsh not nKraaarily that their
a«w*« «d jxtndpals ««l agne xffii Btrtr portions (1%, m«y can not «p«* to tMr ajendes' u«ri««
SES ana/or Prlndpole. OSM diasorecrrfint stems from our boti3f(suppor!od by SMCRASoctJon 702 and
paM DC. CKiirt Court diKlslcna on OEM Eesrnpts at reculations to establish aister-retatsttstandanK) that
.
strfadttKt the CWA 'Us r^tcypecT-BMSBZrijIsmth sows basis fcrresSicSng 58» to ephemeral, e
fftroagti 452, <04, or ofterwfee (9.9. aufi-tfEgradsSon, Us in pemrtRy or InSennleii! sgrogrmi cause
slanifcant degradation, sdvarx»v^ aulrarty, etc.), OSM might be able to support the aiiemative. As
ivfth FWS and EPA, I cannot «peak for my agent;/, but merely grvs my opinion ol whatltMnk my
»xi»j:w.s»n£lprMoips;smlaht say about ffiefra.nmvort
an ophta «t ih» «ram«»»* and »gte«i tmifa»«
-------
the can.
We will use the, normal oial-in numbor(87/.?l3.'l412.B66S=4i*) lor the can ne^lv.-efA.
TSwpffmsryagafK&foawwWbetosaaffeo^ $•
Snwf perries, ws may dhouw the nesd to hsv? a«o8w caR on «H*E*^h®-&!0ofi^awK«to(^s^a
the draK SIS (e.g., EiS-completion promas,^y«fes^fQfite^mm
study, dls puled actions, aefeedufa, ctc.).
AI.TF.RNATI VHS
««!*»"*.'
n* «k n
A tm tm gbtateBjiaii
fefn«Mi;ri»ftwiaw»&s>
.oflwUsSodSs**
Mv^nt^^Kf'IOL
MTMA/F Draft PEIS Public Comment Compendium
A-451
Section A - Organizations
-------
MTT'WAIiEY FILL E1S ALTERNA-miS
AUxr FILL ns ALTERXAITVES
COE '(SttBt
masted
4» Kwr « a> ite
*, mi CUE *» r^^
- - ' - '
55
..^
&«a«£lffii*wOa3t
MTMA/F Draft PEIS Public Comment Compendium
A-452
Section A - Organizations
-------
ALLS!1 JILL OS AtTKONATIVfS
*tqMfiMa
A ,
ssr
uitt*ti>«
•grs
DRAiT - DELIBERATIVE PROCESS - PRE-DECISIONAL
Alternatives Matrix for the DrsftMTMATPEIS
July 14,2002
ISSUE: raeinteragcncy Executive tommittee for the PEIS evaluating MTtvtVF met by
confetence call today to address the USFWSrecommendatioa to add a fourth altcnifltive. The
group decided to retain the cuirent three-alternative approach and work within the Steering
Committee to accomrnodate, as effectively as possible, the USFWS recommendations into
existing Alteroarivel.
BACKGROUNB:
• Thsiriteragency Steering Corrmiittee developing the MTMATPEIS is moving towards
the adoption of a"rcvised,thrce-altomativ^sframcwcrk as the basis for progressing vrfli
the PEIS. (a copy of the Alternatives Matrix under discussion is attached)
• When the revised three-altemafives framework v/as proposed, the XJSFWS recommended
that a fourth alternative be added to the framework, which is also attached. The Steering
Committee requested that tie ExeciraveComrnittee consider this recornrocndation and
decide whether a fourth alternative \vasappropriale.
EPA, Corps, ttd fl» WVDEP, fa Esocoflve Comainse decided to proceed Maderifce
thrce-altemative approach. In reaching this decision, the agencies also agreed that tlier-c
are valuable aspects of the FW'S proposal that should be further considered by the
Stfiering Committee for incorporation within existing Alternative 1.
JffiXT STEPS!
Alflwu^i it is not FWS prArence to proceed wifli only tee alternatives, flay agnsedto
take the ls^ in drafting potential revisions to existing Alternative 1 tliat incorporate fey
diwwsicm,
. TheBseeraKiveCoiiiinlttBBdiieettdtha
Steering Committee to complete the rovistans to the Aitenaive ftnnewo rkbytheeadof
next week. If Steering Committee consensus cannot be reached on revision to Alternative
* The agencies ako agreed to provide the Principals'ftimrnittec with tWssvimrnary of
• today's Exectrtive Committee discussion.
Attachment: 8/14/02 Draft Alternatives Matrix
MTM/VF Draft PEIS Public Comment Compendium
A-453
Section A - Organizations
-------
From! <*«k,Grefa«y@«!»ajaaa,«)a.gov>
To: MfflceRobisw««MROBlNS<3»)SMRE.OOV>
Date: Thu, Aug 15,2002 5:40 PM
Subject: Executive Committee Discussion
Attached is the final draft version of the summary of the Executive
Committee Discussion refelecttag comments I received. Please let me
know astp if there is something mat does not iaUhflilly refelect either
the discussion or your comments. M plan to get this to the - ..
Principals in advance of their scheduled call tomorrow.
I apologize for not tuning this around sooner. Ill reiterate that
Mike R, does 4is better than me!
(See attacked file: Execcomm.8-14.wpd)
Al Klein )<
CC:
, ,
>,
e_bowen@rws:gov>,
, ....u£>,
, -%c0Kad@imcc.isa.aS>, «Jamilton sana@fivs.g0v>,
, Jeff Coker <3C0H!R4JCS8MEE.0OV>,
^Calherme.L.TrottlpiqQ2,usace*my.rnfl>, ,
, , •^ncrarn
, •4>aol.Roflimraftittail.sJatej£
, «tanpf.rich@ejatnSl.epa,gov>,
Attachments):
Attachment Hie l.wpd
Attachment File 2.822
DRAFT - DEUBESA1WE PROCESS - KK-WSCISIONAL
Alternatives Matrix tor tie Draft MTMAT PEIS
July 14,2002
ISSUE: The iaerafeacy Executive Committee for the PBS evaluating' MTM/VF met by
conference call today to address the USPWS recommendation to add a fourth alternative. The
group decided to retain the current three-gtenative approach and work within the Steering
Committee to accommodate, as effectively as possible, fee USFWS recommendations into
existing Alternative 1.
BACKGROUND:
• The interagenoy Steering Committee developing the MTM/VF PETS is moving towards
tile adoption of a revised, three-alternatives framework as the basis for progressing with
the.BSS. (a copy of the Alternatives Matrix under discussion is attached)
• When the revised ftree-altematives ftamework was proposed, the USFWS recommended
that a fourth alternative be added to ihe franwwctk, which is also attached. The Steering
Committee requested that the Executive Committee consider this recommendation and
decide whether a fourth alternative was appropriate.
« After discussion among the agencies today, including representatives from OSM, FWS, '
EPA, Corps, and the WVDEP, fte Executive Committee decided to proceed under the
three-alternative approach, to retching this decision, the agencies also agreed that there
are valuable aspects of the FWS proposal that should be fcrther considered by the
Steering Committee for incorporation wrfiua existing Alternative 1.
NEXT STEPS:
• Althou^i it is not FWS preference to proceed with only three alternatives, -ftey agreed to
take the lead in drafting potssfM revisions to existing Alternative 1 that incorporate key
aspects of their reeoBBnend»tioas and reflect the mtertgency concerns raised in today's
discussion. Tie revised Alternative 1 wffibedteased at thereat meeting of the
Steering Committee sehedaled &r August 20*. The Executive Committee directed the
Steering Committee to complete the revisions to the Alternative Framework by fee end of.
nextwsek. IfSteeringCommitteecoasaaaBcannot'bereachedonrevision to Alternative
1 mat satisfy FWS concerns, FWS his indicated ftere intention to elevate this issue for
final resolution.
• The agencies also agreed to provide the Principals'Committee with this summary of
today's Executive Committee discussion.
Attachment: 8/1*132 Draft Alternatives Matrix
MTM/VF Draft PEIS Public Comment Compendium
A-454
Section A - Organizations
-------
* Dave Densaiwa
-lAViBtema9pall2ll.opa.gov,
Jamot.M.TcwhsendSHOa.usacG.amiy.mB,
.
iWer.davidetpfcgov, Sam HwtffionflfM/WSTOQWFWS,
As promised, attached tor ytwr tetter consMBSBon and discussion during tomorrows corsffflsfioe oaJ b
the fatkmalB for our proposed mot«a8on of AtemaHw il In the three-altBmattve framswork. Please lot
roe know if you have quesflons.»._.M).
ChdyTWx*
Cindy Tiftbon
08/2(V02 09:44 AM
To: Mm»P»rl«i«/FW»DOieRMS,Sttn
HaROIOnfFWraS/DOiamS, Bonjam-n
TuSgW ABUWWDOiOFWS, Dave
Do»ra«»msffWS/DOWItWS,0«»te.MdMsM
ridar.da\'idaepa.8!>v, 3uriEno.siainsaeps.gov,
Haft8».VM»meep«mail.ei»£s would process penmts for fills in epbsinctal streams in the
coalfields region through a nationwide (NV/21) or regional general perraiL Forpennit
a^lics^^ffls to plscs ovcttotei in l^a^ttffi!^ ^ paresuM sti^a^l teaches In &k legion, Ch6
Ccaps would ccmsid;Tnte-!pecificirrfonriation to determine if the project complies with the
Guidelines. Tt.ssita-speciiiccharacteristics would be clearly stated in an EPA/Corps public
notice advertising the advance identification. For example, a proposed fill in a stream classified
as '^or1' or ''impaired" bMcd on a biological assessmem of benthicmvenebratecomtruroities,
and for which restcrarioii of me w^terquaEty or physical r^oblemscammgtiieilnrMiitneEt is not
practicable, would be eligible for an indiwduai pennit. In other cases, an individual permit could
watershed (e.g., at the HUG 11 level). For other fills in intermittent or ptrcanM streams (e.g.,
roaderossirigs, scream diversions, etc.), permit would contiaua to ba processed as before.
EXHIBIT 39
MTM/VF Draft PEIS Public Comment Compendium
A-455
Section A - Organizations
-------
r WHllam Hoflsmn
08/1 OffiOOZ 10:62 AM
,,
jstump^gfrteteom, rhuttt@r£|mafl.t3ep.siat®.wv.u8, Tom
8l«nfc«ni«MJS6PAWSttlPA,
James.M,Townsaftd@Lf?LG2,ussce.^rmy.ffiii, Elaine
Ksth8H»«.t.Trott®HQ(a,USACEARMY.MtL,
OK John SoOfflnftWUSEPA/USfflSPA, Ctay Mffler/DCWSEPAAJSaEPA,
Dsvld Rider/RS/USEPA/USgEPA, John ForwnfraWSEPA/USiSEPA
. Subject StMrtng Committee MwffrtfConferenoe Can Summsrt«s
Attached you wSf find;
1. A meeting summary prepared by Gannett Fleming reflecting tl» deeteiara reached at ths.61S Steering
Committee Meeting held in Pittsburgh on September 4-S, 20G2, and
2. Notes from our Septemt»r 9, 2002 conferenee call rsfleeUrta: a) the Staertng Committee's position on
the need for a tfiW party review of tie economic studies; b) tr» EIS schedule-, c) budgetary needs to
complete the 6IS; and d) eommunteattons, . •
If you see anytilna that seems Inaccurate, please let me know ASAP!
Bin
E1S Meeting 08 04 O2.w|> EIS Conference Call 09C902.W
September 9,2M2 EIS Steering C»tt»ltte* Cenferemce Ctttt
Members Present: Katfay Trott, lim To-wusend, JeffCXiker, Dave Hartos, Dave VandeUnde,
Ross Hante, Dsve Doismore, Dave Rider, John Forren, Bill Hofltean,
Bltine Suriano
Discussion Topics . ......
1 . Indtpendmt Review of Ecoaftniic Stadia
The discussion revolved around: ») whether the flawed Phase t and II economic studies should
be iudadrf in the appendices of the EIS with the otHer completed technical studies, and V)
wteher an independent review is necessary to conflnn the flaws identified by the agencies.
a. The reasoa for act revising the flawed Phase I aid B economic studies centers on the fact that
the studies are no longer essential Sit portraying the differences between {be alternatives being
analyst in fl» HS. The coiaaiittee .agreed that to «odies would have been relevant had the
original restriction alternatives proves to be viable alternatives, but since they are not viable,
revising the studies is not ess«tial for the completion of the HS.
Even though the studies are no longer essential for portraying the differences between the
alternatives being analyzed in the EIS, wd even fl»u$> they are flawed, it is flie recommendation
of the BJS Steering Committee that they be included fa the Appendix with a detailed explanation
of their technical deficiencies and why ttey are not being revised (ie- they ate no longer essential
to the completion of fte B3S).. Since the studies were released under FO1A, the Steering
Committee believes that not including them in the Appendix would raise questions concerning
the integrity of the doeamsnt
b. The EIS Steering Committee does not see added value for this SS fa securing a third party
review to confirm the flaws in the Phase I and n economic studies. The agencies have sufficient
technical expertise to identify and describe the deficiencies to the discerning public. The
economic studies could be reviewed independently from the EIS if the Principals' determine the
need to satisfy lepl or public perception concerns.
2, EIS Schedule
Contractor Provides 0HS to EB Steering Committee
fcte«8»ey Review and Coneuirence
GPO Printing
Release EIS
Public Meeting/Hearing
Comment Period Ends
Compita'Sort Comments .
November 2002
December J002
January 2003
February 2003
March 2003
May 2003
July 2.003
EXHIBIT 40
MTM/VF Draft PEIS Public Comment Compendium
A-456
Section A - Organizations
-------
Prepare Response Document
Prepare FHS
Prepare Record of Decision
January 2004
March 2004
May 2004
3. Budget Need»
100k
Update aquatic statistical studies using infonnation on ages of fills, sizes of fills,
new landeover/taadtBe infonnation, etc.
125fc Additional OS work to digitize permits and landcover in VA and KY; and to
create stream coverages
500k Contractual needs- compile/sort comments; provide additional analyses; attend
and provide information at public meetings/hearings; prepare FEES
150k Third party review of Phase I and H economic studies
75k Plaintiffs experts per settlement agreement
4. Copigmmcatioia
The BS Steering Committee believes there is » need (wjflt DOJ concurrence) to create another
Bulletin describing the current status of the technical studies. The technical studies have been
described in previous Bulletins and periodic progress reports have been published on the EPA
website, but the ttttat of the studies ha net bsea updated for several yews. This Bulletin would
describe which studies nave been reviewed and finalized, wWch. studies are considered ilawed
*nd ttnreli Ale; and which studies are still in progress. Placement of the completed studies onto
the EPA web site to mitigate new F01A requests was discussed and dismissed.
The EIS Steering Committee speed to channel ill
-------
gate RoMnson -
MTM/VF EIS Executive Meeting Agenda
September 25, 2682 Conference Call
Dr^WDelfear^^^-^E^Deds^i^—D^ Hot Distributee-Page 1
9:00-9:05 &m. (NOTE: ParticipanU: Steering/Executive Committee members)
Infc-oducdoas; objective of call; snd adoptiun/rtvisicn of agenda
of eaJ: f& mafitiafa the currant Ft&rmry 2083 DglSpatilteiZtian st&s&tle (see etgeada Hem m
schedule below). ^^ff-Ssea/^GmMito
9:05-9:10
•Process Explsnation: Executive Reviev/
Decision Needed iy 9/Mt Apfsowl of KB AMajativw
M«»«a*wiK«i!^^W»*!ffi^»a»»«l«*edfe«i«aay|ytt«JBfc«
ls. The SC. a^ate based s>; executive dirttrion, ^Mrf&^M
ermt^tkatwmtdiatthetk&adwn&fflp^
imenfOMmi mdwr&mia} stremts,
9:10-9:16 am Dedsicn Needed: Executive Rstification of EIS Schedale
; A es&fcef 1ml cred&te agency qieafificatfons ststeat&tls fo tkt
rfodmjerat ^^ite%K^atfrevfeivw^m^cmfeia^/O5^^
tbsvah&tftiwstti^.^^^tirs&tfoex^nv&wtotk&ttt^^
thx timing, '/'done, 7heiim*n^>^K^ioi^aSmt^i^paftyr^e!^,ke&misa^'h^i
j&ribabiit&qfa Gtt jSr/T2^3jte^ as weS os fi^ mcim&yfm^HS^pras^m,
*v*!d precis. weting the F&rxay 2003 DEM JcaShx. Anindzpen&T.tKvi™ coxldte
ii on *gcs/5l2iscfn!tiacd other
iJ ffistarijaueas. Jtfti Jf Cfac&mati t^orat&ry prepared the ex&ting WV
imposts. Hmvver, the report MmOfl&s
seefol effect. 0^ to pwformbtgGfS making to
dtsturbattcg? upxtrwat ^mattUoHag $tatfot& to tiSew amtfyiSis of possible r
8*a$k&w^m&m&timtiwmdbm$ifo
compwtf to cor^lticns fcrtfcrcxce stream. However, EPA * Jakt&rataiy (or a contractor)
This effort can ixit be canpltted within tie ntxl
The $€ recommends approval of
SI 25k AdctirtDr,»IGISworfeforCDKra!fldvcIciPictSiady(CIS3aDab'5!sfc\VN',TN,VA,and
KY. ThsGFdraJl aS nas based on flaw^ economics sPjdyinfzrTKalwnard
Wrportfantftlie&S&a&arca. IheSCasrees that ^OSs&ou&TefteefflpoKS atlstates la
the ffl study artx. Kettucty ciigfai! footprints of suifax mining perniti; nncjf
MTMA/F Draft PEIS Public Comment Compendium
A-458
Section A - Organizations
-------
I-Mite'Robinson-
MTM/VF EIS Executive Meeting Agenda
September 23,2002 Conference CaU
Draft-DeUberatrye-PrB-Deoisional—Do Not Distribute-Page 3
bogey (rfaagtm) far WV.Kf, W, «?KJ, tut i il f * ti * it* *
FYI
WMem J. Hoflrnan (3E880)
Director, Offioa of Environmental Programs
Environmental Servlcs* Division
U.S. Environmental Protection Agency
1650 Arch Street
Phladslprtta, PA 18103-2029
(215)814-aS88 . •
— FonwreM by VWtora Hoffman/RS/USEPAWS on OW3W02 04:42 PM—
To:
OW38W2 042,3 PM
, ,
Ho««»B«a/US6PA/USeePA, John Forren/R3/USEPA/US®EPA,
Elaine SuriEno/OOUSEPA/USeEPA, yicha^
Oa««is/R»JSEPAW8®EPA. _•' "'"'"
rs^ov, Benja«fcwTugg!e@fws.gov,
Sublaet: PWStommaritoanChtparIV
Attached aare- P5rs consa^ftts on Chapter IV. These ceanffisnfcs are pritsarily
intended to s«R«sa3ri2e the views of tooth our steering atid Executive
Committee asesibears on the proposed framework* as it is -explained in this
chapter. Although the cofraaents are not especially favorable (we gave It
half a star), we do jtot intend to axcrue this issue further. Dt>.
(See attached filet MTM EIS chapter tv.wpd!
Savid Beflssore
Supervisor, Fesaeylvaaia Field office
T3.S. Fish and Wildlife Servioe
315 s. alias St., suite 322
State College, PA isaot-48SO
(814) 234-4090 X233 FRX< (814) 2S4-0748
KXJDBIT42
MTMA/F Draft PEiS Public Comment Compendium
A-459
Section A - Organizations
-------
EWS Comments on 9/20/02 Daft of Ch«nl«JV fAftsnaitives)
The Fish and Wildlife Service has reviewed tt>e September 20 draft of Chapter IV for the
MTM/VF E1S. We previously proposed a four-alternative scenario that included consideration
(not selection) of at least one alternative to.restriet, or otherwise constrain, most valley fills to
ephemeral stream reaches by employing the significant degradation or advance identification
(ADID) provisions of the 404(b)(I) Guidelines. Oar intent was to provide for consideration of at
least one alternative that "developed agency policies, guidance, and coordinated decision-making
processes" §sd minimized the impacts of mountaintop mining an4 valley filling ori waters of the
U.S. and fish and wildlife resources; a two-part goal established by the settlement agreement that
we believe the three-alternative approach failed to accomplish. Our proposed approach was
subsequently voted down within the Executive Committee in part because » decision appears to
have been made that even relatively minor modifications of current regulatory practices are now
considered to be outside tie scope of the E1S process. The current three-alternative framework
was adopted, but incorporated only a vejy limited ADID eon«|>t that does not meet our
objectives. The September 20 draft retains the deficiencies contained in the previous three-
alternative framework, and the full draft of Chapter IV confirms our concerns. Therefore, we
continue to object to the use of this approach. However, since the agencies are proceeding based
on adoption of this approach, we do not believe that elevating this is$ue for higher level review
would be helpful or productive. The following general comments are intended to provide you
only with our sense of how problematic the proposed alternatives framework has become.
Now that the basic concept has been more felly elaborated in the September 20 write-up, it is
painfully obvious to us that there are no differences between Oie three action alternatives that can
be analyzed in a NEPA context. Table IV-2 (Comparison of Alternatives) underscores this
fundamental shortcoming: Each of the three action alternatives offers only meager
environmental benefits (thus a "two-star rating," as with a budget hotel or B movie), and there is
no difference between- them — even in their degree of meagerness. The relative economic effects
of these alternatives are similarly indistinguishable. The reader is left wondering what genuine
actions, if any, the agencies are actually proposing.
Table W-1 states that the alternatives would "mMrata" the adverse effects of mountaintop
mining and valley fill construction; the "analysis of alternatives" section states that "all three
alternatives will result in Better environmental protection that wil fulfill the agencies BIS
objectives." As we have stated repeatedly, it is the Service's position that the ftree "action"
alternatives, as currently written, cannot be interpreted as ensuring any improved environmental
protection, as stipulated in 0»e settlement agreement, let alone protection that can be quantified or
even estimated in advance for purposes of a NEPA analysis. Without providing clear indications
of how the Corps would evaluate projects and reach deeision$ through either the nationwide
permit or individual permit processes, aid how fl» SMCRA agency would make its decisions
under Alternative 3, the public will not be able to deduce whether impacts to waters under any of
these alternatives would be any different than the no action alternative. Furthermore, the results
of implementing individual action items whose "actions'* do not produce an outcome ("will
continue to evaluate," "will work with the states to establish," "will continue to assess," "will
continue to refine"), and of developing "Best Management Practices" whose use will be
voluntary, tn> act likely to effect quantifiable, or even recognizable, improvaneats Jn
environmental protectioa.
As we have already discussed ai museum, NEPA regulations describe fhe Alternatives section
as "the heart of the environmental impact statement" which, in combination with the Affected
Environment and Environmental Consequences sections, should "present the environmental
impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues
and providing a clear bads for choice among options by the decisionmaker and the public."
Even after considering the necessarily broad, programmatic nature of this document, we have
clearly failed to meet these standards.
The HS technicil studies carried out by the agencies - at considerable taxpayer expense -- have
documented adverse impacts to aquatic and terrestrial ecosystems, yet the proposed alternatives
presented offer no substantive means of addressing these impacts. The alternatives and actions,
as currently.writtan, belie lour years of work and the accumulated evidence of environmental
harm, and would substitute permit process tinkering for meaningful and measurable change.
Publication of a draft BIS with Ait. approach, especially when iJie.ptihlie has seen earlier drafts,
will tether damage the credibility of the agencies involved.
MTM/VF Draft PEIS Public Comment Compendium
A-460
Section A - Organizations
-------
From:
To:
Date:
Subject!
Dave:
M,Oct4,2002 3:04 PM
He: Reminder Comments on Draft Chapter IV Rewite Up Due Today
(OcMth)
CCs ,
,
, ,
Attached below are jay comments, both la MS Word mi WordPerfect Bill
Hof&naa has not fcad the chance to review these cotBEoents, however.
Please let Me know if you have questions. 1 will be out of the office
Monday through Wednesday but can be readied through my ceU phone
(215-275-5345). Ttonla.
John •
(See attached file: PDEIScmtsJF.do«XSa! attached file:.PDElSsnts]F.wpd)
Attachments):
AttachmeBtKtel^oo
Att»4)«ent File 2.w»d
Attachment File 3. 322
William
Dave Hartos
To: MrnForren/R3/USEPA/US@H?A,
Hoffinan/83/USEPArtJS@EPA, David
Rider/R3/USEPA/US@BPA,
EMae Surian«DC/USEPA/US@EPA, Cindy Tibbott@ftra.gov,
10/04/02 10:42 AM dave_dBnsmore@fws,gov,jstmnp@Sn*ffiT.com,
Jaracs.M.Townser.d@M02.usace.army.mil,
Hdep.state.wv.us, Jeff Cofcer
, Mike Robinson
co:
Sabjeet: Remindw: Comments on Draft Chapter IV RnvJte
Up Due Today (Oet4tt»)
Dear Steering Committees et al.,
Just a reminder fiat comments ftom you or your executives i» due to me
today. Thanks!!
dave
EXHIBIT 43
MTM/VF Draft PEIS Public Comment Compendium
A-461
Section A - Organizations
-------
John Forren's comments en the Alternatives Section
These comments we teed on my review of the Alternatives Section and the DEIS in general:
GENERAL COMMENTS
1. Itbas b«en explained to me that the Principals haw made their decision regarding the
set of alternatives earned forward &r detailed analysis and we must move forward from
there. While I fMly understand the need to move forward, I do feel compelled to identify
some vulnerabilities as I see them so that we em be prepared for the potential reactions
from the commentators and litigators.
2., J-jgjJjfejJBtjUBMfiy- There should be a solid estimation to the BIS as to why EPA is
the lead federal agency aid not OSM or the Corps. Granted, EPA shares regulatory
authority relative to 404 with the Corps bat ia terms of the balk of the day-to-day
regulatory responsibility tot mountaintop raining activities, OSM or the Corps would
clearly be the letd from a public perspective. We need to be prepared for such
comments.
3. Rama .of Ajtematrvej. Therange of alternatives should be based on the purpose and
need for ft* action. Granted, we have to abide by the consent decree hot because this is a
DEIS and citizens have standing to sue under NEPA, we need to ensure we satisfy the
spirit and intent of NEPA, particularly and especially from a process standpoint where
courts have oita granted reEtftn platatjfls agttast the federal government As I
understand the general purposes, the action is intended to address regulatory deficiencies
and environmental impacts. Hie regulatory piece seems to b« adequately addressed
throughout these alternatives but it will not be clear to the public that any concrete steps
are being proposed among the alternatives that address directly the environmental
impacts.
The alternatives la the preHmtaary DEIS released to tie public under FO1A have already
set expectations that there will be similar concrete alternatives to address environmental
impacts in fte final DBS. Oaitsfeee, te set of alternatives studied in dettB in tins
DEIS do not represent the Ml range of alternatives and we should eiqjtato why
-------
• A. Introduction. "He first sentence to the fist paragraph meatas that the
agencies and public identified jraateroui environmental and community impact
concerns, However, in pjeseafiog the agencies' review of their t espeettw
regulatory programs, the second paragraph avoids Mention of the term
"environmental" but seems to imply it in suck phases as "adequate regulatory
controls" and "mfaimtee concerns and adverse effects of mountamtop mining." It
may seern minor but it 5s somettriag that jumped out at me.
Table JV-1 : This table more than any would Hfcely leave a reviewer feeling tot all
the action alternatives are essentially the same. Bvery one begins with, "...cross
program actions to minimize adverse effects..." There should be & better
explanation and use of key words to convey fiat each is unique. Ag on, this table
suggests that all the money and effort invested in this project resorted in little
more than better permit coordination.
B. Analysis of Alternatives: The first paragraph, 2"* sentence stales fliat each of
the alternatives will provide greater environmental protection than now exists.
However, a reviewer -would be hard pressed to find validation of this in the
discussion of eaeh alternative, Mush of the discussion of enhanced environmental
protection is in the abstract and left to the reviewer's imagination. We seed to
bolster the discussion of environmental 'benefits and clearly link these to each
atemtti ve set fcrth-in the document Perhaps a table should be included ten lays
out our projections for environmental beneSts as a. result of each alternative.
.
Alternatives section.
B. Analysis of Alternatives: The first pirapsph includes the statement that "the
principal distinction between (Me) the three proposed alternatives 5s which agency
will take the lead role..." A question that will sorely be posed by wrae in the
public is "They did an EIS to determine which federal agency should take the lead
role?*" This sentence agant highlights the limited range of atetaatiyes and should
be removed with more effort placed on distinguishing among the alternatives.
Altanan'vel,Page5:Tlie2SO-acreaat8holdisraentioaed. Is this threshold '
explained somewhere in the document? Abo, first sentence, "...thaw fill
proposed,..." should be "...tliose fills proposed..." Third sentence, "...the
an»unt...and the level-required by the 404Cb)(l) gttideltees is..." should be
"...guidelines are..." Are the Guidelines explained somewhere in the document?
Because the Section 404(b){l) (Mdeines ire regs published in (he federal
register, Guidelines should be capitalized v&en referring to Section 404(bXl),
which is done in some, but not all, pats of the documents.
Page 1 1, last paragraph, first sentence: Included "generally" in describing areas
unsuitable for fin in the context of ADIDs. . This sentence should be reworded to
10.
make clear that such designations wil; reduce the likelihood that aquatic disposal
would comply with the Guidelines.
Page 13, Stream faqMbmcBb Much like the other parts of the Alternatives
section, the bulk of this text should be elsewhere in the document, not with the
Alternatives discussion. In addition, more information is needed to explain why
causal relationships could not be identified. TMs first paragraph seems "naked"
and out of place in the discussion of alternatives.
Page 15, Stream Biomonitoang, "West Virginia: "Baselifle benfliic surveys are
normally always conducted..." "Normally" or "always" should he deleted as the
two are mutually exclusive.
Page 23, first paragraph. ITiis paragraph must set the record for length in the
Alternatives section. It is shy only one sentence fragment from filling the entire
page. Again, 1 don't believe the word "alternative" is used once in this lengthy
paragraph despite its placement in the Alternatives section.
Pag® 38, Airborne Dust, first paragraph, 2s1 sentence: "...did not ftad evidence of
flffltoffsite,.."Aouldtead"...didnotfirMevidence'thttoffsite™" Intoefitt
sentence, I'm not sure why Ae tens "identified" is used: "The most significant
sources of emissions for this category of activities ate identified removal and haul
•tracks." •
MTM/VF Draft PEIS Public Comment Compendium
A-463
Section A - Organizations
-------
From:
To:
Date , Ti»e,0ct22,2d2 1:57 PM
Subject: Draft Exec Comm. Summary
Folks,
Here's a summary of the recent Executive Cotafiiittee meeting in
Shepaerdstown WV. Please review and provide me witii comments as soon as
possible. . .
Thanks,
Greg
(See attached file: ECSummarylO-lS.wpd)
CC: •' , '3nffler.aane@eptmail.Bpa.gov>,
"Benjamin Tug|e@fto.gov>,,
.,
, ,
, LEWIS HALSTEAD ,
, Matt Cram ,
, , RUSS HUNTER
, •4ampCrich@wamaiiepa.gov>,
,
Attachnient(s):
Attachment Hte 1 .wpd
Attachment File 2.822
Deliberative Process - Pre-dccisional - Not tor Release
Discussion Summary
MTM/VF EIS Executive Committee
October 16,2002 - SUepherdstown, WV
I. Attendees:
AlKlein(OSM)
Made Sndol, TB& Stark (COE)
Mamie Patter (FWS)
Lewis Halstead (WTOEF)
Mike Casfle, C3reg Peck (EPA)
- Steering Committee Update: members of the taterageney Steering Committee updated
the Bxecutfve Committse (EC) on the status of k&y issues art tequested EC attention on several
matters. The following summary reflects the diseussioa of the EC in re^ionse to the update.
1 . Economic Studies: The HB agencies and one of the contractors (Hill and Associates)
responsible for developing ti» economic analyses fi»r the M1WVF BB, ttt scheduled to
conduct a public meeting in Nifco, WV on October 1 7, 2002. The agencies nave requested input
from key stakeholders in the BIS, including the environmental community and cod industry, on
the validity of key eonchMons oontaJDed in flse Phase I & Phase 2 economic studies. The
agencies are concerned that as a result of problems with the original analyses, including critical
assumptions used in the Phase I studies, that certain Aspects of the final economic report are not
valid. Ate a lengthy discussion, the EC recommended that a new Hill and Associates review of
the economic studies proceed as recently proposed by the Steering Committee hut, with the
counsel of the EC, that the focus remain on an evaluation of the current studies and tin
development of sensitivity analyses for these studies.
2. National Academy of Sciences Study: The Steering Committee Is been coordinating
with staff at the NAS to consider opportunities fcr a more formal NAS review of tfce economic
studies. TJnfortunately, the NAS has indicated that such a study would cost an estimated
$800,000.00 and could not be completed before the summer of 2003. Recognizing this expense
and fhtt the study would not be ready in ttae for inclusion in the DEIS, the EC recommends that
the Steering Committee rety on the ongoing Hill and Associates review with sttkeholdet
participation, and additional Steering Committee work, rather flan initiate the new NAS study.
3, EIS Alternatives Analysis: The Steering Committee has recognized the used to
continue to elarfiy the EtS alternatives framework (erasing on eflferts to improve the contrast
between the alternatives and 'to better quantify the environmental results that ate attributable to
theaternadves. While the EC remains oomniitted to ths existing three alternatives ftantewoA,
EXHIBIT 44
MTM/VF Draft PEIS Public Comment Compendium
A-464
Section A - Organizations
-------
the Committee agrees that additional eftbrts to better distinguish between the altanathws and to
improve the qtisntifieatiori and ^^ualificattoa of the eavteontaeatal benefits of each alternative
would contribute to a more eflfective BIS.
4. Resources/Schedule: The BC discussed the need to ensure the agencies hive
committed appropriate resources for completing the draft ESS on (he current schedule. The BC
has directed the Steering Committee to develop a critical pa& of the key tasks necessary for an
early spring 2003 completion of the 0BIS and to assign the resoutces necessary to meet the
schedule. The EC has recommended that an interageaey conference, including the SC & BC
representatives, be scheduled for the week of 10/21/02 to review? (he critical path development
and to provide focus on this issue, to monitor progress, and to identity or assign the additional
resources which may be needed.
HI. Next EC Meeting
The EC will reconvene in approximately two weeks.
LRUH"
falrt02.usaco.amsy.mil
1681/02 12:40 PM
.
ForrenJormeopiunaII.epa.gov
cc: 'Dava Dansffiom (E-mail)' , Dave Vandelmd!!
hto1fman.W3MmOefjamsll.epa.gov, Russ Huntar
w.us>, Townacnd, Jamas M IHJS"
, "Jaff Ookar (E-ir,ai!)'
,
Trott, KaDiaflna L HQ02" •
. . , LsaVlnoont
Rothmon ,
RiderJ^avidOc-pamaE.epa.gov, SuiirKio.EloinBeepamait.epa.gov
Subjsa: BE: AilomatSvo5 Format
Based m osr (SscussiMJS afeoat how the ateBfifii'sa a»y be raviied to ^iaw gsMarar dSrSsreoee, I todc die giMKnaiy
MptelVandicvisijdUbJi^orjmyLadcistjmiiirigofwIiatltiuiiklheMd. I tept thr Coi]>s
J our evaluation is limited to waters of US. ...
IT
— Qrigtad Message —
Prorn: Cindy_Tibt«tt@fws.gov rmsilto:Cm^l^p&cSov; Buss Hunters Jm TbwM^td (B
JrffCokcr (E-mail); Stump, Jennifer M.;KathyTrott (E-mail); Les
Vi&2eat;MlkeBf^is<»i;
SurianoJ31aiDclSciianaaiI.e
Hope j-ouha.dH better drive brsck flora Camp flilltlisn I dH last taght: I
could have done without the October snow.
John's Alan^ves-FomatgM me thiBktog about some of oar cBioissicms
tteweckabouthowniixhdcaiil-weticidtoputiatothcAlteroaaves.HitSI
e see flic st&difili fife.
MTMA/F Draft PEIS Public Comment Compendium
A-465
Section A - Organizations
-------
o>f *
(Soa attached IH& MTMAMFbmatwjsd)
Ctapia- H: ALTBRNATIVBS
A. Actions Considered to Address Issues ttotHied IB Saa$ng
This wouM be the section Ibkfog the scoping digeas^oa In &6
Bapose and Need section with the uray of &11 actions developed £o
B. Screening of Actions and Development of Atessdvas
Has wodd be the secHoa explaining why scmie gedoas warn set
asjjie, how seme actions were already aeeeaap8sl3fl& m& how fee actois
were asseiabied to beetle the difae alteraativas casried iforoaid fisr
detailed analysis.
C AKemjlivcsOtricdFoiward for DcttiM Analysis, including tic
Fbs$*19^ No Action Alternative:
B 1 (CWA Lead):
Alternative 2 (Joint AnthnritiK):
Alternative 3 (SMCRA JjLad):
D. Analysis of Alloifflivca
IMs sectioD In essence would cos&jn &e radsdng "Section O
DealeilDraeriptaiofAltemaaiw*
lobs,
Good outline. I especially Hked the VtTioAvhat/wherVhow approach, that's a good way to make
sure our explanation-is organized. However, wco/what/when/hownaturany leads one to look fer
To beWw apoiflt I kaow you're aB Ak of ieara^ the *WV in ftfe case is supposed to be *to
tntafaijB, to flie maxinim attfltt pruetJoHe, the aivet» etww»n«otal effects to waters of tt.e
United States and to &(h aid trfMttfe laKwrces afficted by aomttafattp ipfflJag tyearffaB, and
to mviroiirrimtal res om-ccstliat could be affected by the size and location of excess spoil
disposal sites in valley fills." In tic case of the dtcrnativcsfrarrKwork that we're working with,
'myT'isir^eadgoingtorKthepubHc'sresporaewhrntieyseethat, to accomplish the EIS
goal, aD we Veprormsed is altematire locations to hoaae the rablKr stamp that issues the
psnrats. Why oo earth would we even prepare an EIS oa such a non-event as tinkering with the
perrnit i5SBan« process, UNI^SS we alro My dcvekip and provide the detA on HOW each
one of Ibfi altcrastives is realty go^ fes msiSfi^zc ea^fetmaaestal ai
Mike and I argned yesterday over the need to provide dctafls on how ti;e programs would
evafeatepermiis under each of the alternatives. Mike said we don't cecd to go into the details
because it's a PROGRAMMATIC EIS. Everyone should re-read the scttlsment agreement it
doesn't restrict us to doing a PROGRAMMATIC BIS, it says we will prepare AN EIS. Bwaiif
we caU it a prograimnatic BIS, where is it written that prograratrjaticEIS's should offer only
CTgucalternatrv-cs-cspedany a progranmaticEIS that hrrolved four yeai^ of studies that
IstfflbcKev^weDecdto take a hypothetical mine racject and walk it tteoiigh each afternative, so
thM the pubfc (and evra the agendes, for that rratter!)underetaad the advantages and
disadvantages of each one. Take ammer^ojert thatpropcracsS njflcsofiaterrmttctitand
perennial stream fills in four difrerent valleys. 'Ilia streams in cacbvaBey contain good to
.
relative to regional reference streams. The eritn-e project, incaiding the associated mineral
ffisttacfcn aea, IBB! roaJs, etc., wffl iqwst one scpwe mfle of ij^eal A|)pAci&nterJwo
forest. Under AltCTnativel, the (>rrswfflpocess this as an icdividaal Section 404 rjer^
dA petml?. ^4at (piawtas do we need to Mswar ia onfer 6x w,«® ageacfe*, to tmdMtaHd
how the Corps would evaluate the permit, and what imintended consequents mi^ there be to
existing prograins? For ciarnpk, the que^onl'TOaAedrrarrytirEes but never get an answer to:
how wffl the &rps justify a "significant degradation" dctmranation? Corps issuance of any
m" M d*ed by fte 404^(1) g«ti
-------
s tot the total destruction of rites of steams,, what precedent does flat set fcr the
significant degradation test for the "big box? stores andshoppiB|riaa!k and housing
developments and all the other permit applicants &0t now 1
streams- would the Corps be rtffi able to require them to avoid the itreajns?
What would happen to thfeperajft fa. Alternative 2? TheCotpshastoraakeacese-oyKase
determtaation of the appUcabBfty ofNWP 21. How wffl ft do that -how wffl the "mtoinal
effects" caH he made? Ate we seriously going to propose that some sort of **cos^>ei3satofy
rrJiXigatJon" can be i^ricated flat would tr^ replace the lort fimctions and values of the
impact tort required for nationwide permits? Wto precedents
Dates rUNovlTlwm-SlPM ' m "'
Subject; Re: Alternatives Format
Cindy—Sony I didnt reply sooner, but Tm composing away on the OSM assignments for
completing Chapters I, H, and IV. Pins, when I returned fern Camp Hill, I found out that to
acting Regional Director for the balance of me week while our eastern and western SESers pass
thebaton.'
Fm concerned flat we cant maintain the 11/11 schedule deadline and conduct your proposed
exercise—although it does have merit The best we can do at this point is to tty between now and
11/11 to generally spell out the consequences of the actions on applicants' milling proposals more
thoroughly in our fleshing out of Chapter IV. I sttfflest ftit maybe between the 11/25 internal
draft and the camera ready copy ftse HS SC could (fiseass the possibility of exploring what you
propose and consider possibly beefing up the consequences chapter more with a few scenarios of
generic pennifc (targe and small-to take into account Les Vincent's comments).
P.S.-WU1 we stiD tee the Terrestrial Studies cover sheets) today? Did you receive the
outstanding studies from Handel and Stoufler? Tick, tick, tick. II
>» 10/30/02 03:13PM>»
Greetings all,
Hope you tod a better drive back firom Camp Hill than I did last al(ht; I
could have done without the October snow.
John's Alternatives Format got me ih&ikitig about some of our discussions
this week about bow much detail we need to put into the Alternatives, and 1
typed up some concerns — please see the attached file.
As a ibilow-up to ray comments, Td like to propose that we assemble ASAP,
maybe again at Camp Hill, if Jennifer can accommodate us, with a
facilitator, to walk a hjTXjtiielical mountaintop removal mine project
through each alternative. The exercise wouid help as define the
differences between the alternatives, and reveal any hidden "unintended
consequences" of the various proposals. Any thoughts?
(See attached file: altemativediseusslon.wpd)
Forren.John@epam
ail.epa.gov To: CifidyTibbott
, "Dave Deramore
10/30/02 11:21 . . (B-mail) ,
AM RideJ3avidto>amaa.epa.fov,Ilave
Hsrtos , Dave
VaudeUnde
EXHffiIT4«
MTMA/F Draft PEIS Public Comment Compendium
A-467
Section A - Organizations
-------
David Rider
11/07/200211:38 AM
TK SMHfe StMrnVFOAJSEFMUSaEPA
co: Dan Swasai«y/R3/USfel>A/US@6pA, John
Forwn0WUSBWUS
b&o@ogmre.gov>, , ,
, >
, ,
n.WilBaifi@epaaiail.epa.gov>, *OavB
Date: Tt»,Novl2,20!fin35 AM
Subject: OSM's draft on fill inventoty
I forwarded the fill invaitoiy daft to our Tirgtoia fidd -office. As
Roberta Hyltan is careftl to point out, their review i» based on looking at
ftisonepieceoftheBBoutofeoatejtt However, Iron the staadpoint of
the "fresh ey
-------
impacts over time and space?
—We have lots of problems with those sections purporting to use trends in
watershed acreages above valley fills to evatette the overall imjast of
fills. First of all, fee watershed acreages considered are those beginning
at the toe of the fill and naming to......well, (he document isnt quite
clear in some places on flu's point. Are they looking at ail upstream and
upland teem or just those drainsd by blue-fine streams? Even if acreages
considered include all areas upstream and upland of the toe of the filL
this in no way acconnft for the total ares impacted by valley fills. What .
about'downstream areas impacted by fills? What about impacts to streams
and areas outside of the drainage areas (Le., habitat ftagtnentttion for
some terrestrial species, limiting fte abuitty to recover species in oae
watershed by eluniaatuig them in another, etc.) , .
—This document has some problems with terras. It uses "watershed impacts"
when what it means is some narrowry defined acreage within a watershed.
Reporting (hat a specific acreage is impacted is not the same thing as
evaluating what impacts are. For example, the title of toe table on page
HLK-28 is "Watershed Impacts by States." Actually, this table lists the
acreage of impact font the toe of the slope of a fiE to some unspecified
uphnd/apstream mark.
—on page IttJC-l?, flie document states, "Some valley fills may envelope
fsicj the majority of the watershed, and others are firmer
downstream. The watershed acreage is determined by measuring the
upland area above each fill toe." Does tbii wean that they include all
acreage upstream of (he point of the toe of the fill or do they stop at
ephemeral areas? Also, acreage upland/upstream of the fill does not
include tile total area impacted by a fill because il does aot consider
areas impacted do'ATistream of a fill or areas mother watersheds that may
have been irnjacted by the ffll. This sort of trend analysis is a gross
underestimation of the area impacted by fills.
-Page HLK-36 states, "The final measurement for evaluating Impacts flora
valley fill construction and prediotteg their overall impact on the
environment is stream loss and goes on to explain that ephemeral areas
were not considered. "Stream loss,* as reported in the reinaiadfir of (he
document is the valley fill footprint For the "stream taiacts* tables and
graphs at this pomt in the document, it is painfully clear that they are
looking only at the fffl footprint First, I would say flat we must look
atmwhmorettantheacresofstreamlostorbariedbyfill. Streamloss
and other impacts can extend well upstream and downstream of the footprint
of valley fills and sometimes even outside of the drainage that is directly
impacted. This type of trend analysis 4oes not provide a comprehensive or
"final measurement for evaluating impacts ftom valfey fill construction"
and can predict only a fraction of "fl>e overall impact on the environment"
—la summary, this "fill inventory" will grossly underestimate the acreage
impacted by valley fills and does nothing to consider how areas upstream
and downstream will be impacted.
_ 11/151200204:5?PM Sub) Fwd:C3japt»r».IS|lcomments
Cindy Ttobott's fatal flaw" comments on Chapters 1 *«3 II for your amusement.
— Forwarded by Gregory PwWDC/USEPWUS on 11/1S/200J 04:66 PM ——
Mike Kobiiwon ' To: Gregory PseWDC/USEPM)89EPA
Subject ftoK CtopHre I & II comments
fyi ' . •'
'— Message from Clndy_mtJoaflrVw.gov on We«, 13 Now 200210:53:32 -OSOO —
To: "Mike Robinson"
«:bcl@jnn».state,va,us, Chatles.K.Stark@i402.nstce.army.inil, dtve_densawre@!rws.gov, dvand
Porren.Jokn<§Jepafflail.ej>a.g0v, gcoftrad@imcc.isa.i2S, Holfii3an.Williani@epamail.epa.gov, Jam
jsturnp@gfeet.corn, KaAerfae.LTrott@hq02.usace.army.mil, lsv@rmne.state.va.us, Paul .Rotten
fhunter@nail.dep,state.wv.as, rider.david@epa.gov, suriajjo.eWne@epa.gov, Dave_0«smore@
S»bjectChaptersI&ncomment«> • '
attached filei cfcapeer comments.w
EXHIBIT 49
MTM/VF Draft PEIS Public Comment Compendium
A-469
Section A - Organizations
-------
Review of Chapters I and B - Cindy Tibbott
activities in the country that routinely elimiwte entire streams.
These chapter write-ups make it dear flat the ability of compensatory mitigation to reduce
impacts to minimal levels is fee linchpin of each of the alternatives. Because compensatory
mitigation for streams is an untested, unproven concept, and many believe that it can't be
accomplished, we have (another) fatal flaw in our alternatives framework. (Other fatal flaws
have been discussed in previous e-mails and meetings, and won't be repeated here.)
Throughout the document, the Louisville district protocol is offered as the solution to achieving
adequate compensatory mitigation. The document should note that it will take years to collect
and massage regional data to expand use of the protocol to areas outside of eastern KY. It took
four years to develop for that area, and most of the resource baseline data had already been
collected by KY Div. of Water. What happens in the meantime in the other states?
Chapter I, Section E, second parapaphi-Delete the last two sentences, as they are out of context
with the SMCRA discussion, confusing, and redundant with the y* paragraph, ,
Chapter I, Section E, third paragraph. Revise the test sentence to-read: "CWA Section 404 and •
the standards by which Section 404 permit applications are evaluated (the "4Q4(b)(l)
guidelines") requires applicants proposing to place dredged or fill material into waters of the
United States to demonstrate that they have considered upland alternatives that would avoid
streams, and that ftey have taken aB appropriate and practicable measures to minimize potential
harm to the aquatic ecosystem. However, the 404(b)(l) guidelines prohibit the issuance of a
Section 404 permit for a project that would cause or contribute to significant degradation of
waters of the United States."{Same language in Istue-B, Direct Stream Loss, Regulatory program
in 1998, second paragraph)
Chapter D, Section A, 3, b., ^paragraph, 2*1 sentence: change stream "class" designation to
stream breach" designation.
Chapter II, Section A, 3, e, 21*1 paragraph, end of second sentence: change stream "classification"
to stream "condition**.
Chapter H, Section B, 1 * sentence: Unclear- the Bragg decision occurred befete any alternatives
frameworks were discussed or developed... .
Chapter fl, Section B, b. Clean Water Act fil restrictions, 1 * sentence, change to "Several CWA
statutory or regulatory provisions were considered tt different times throughout the alternative
framework development process.....* •
Chapter E, Section B, 1) CWA aatidegradation, 1" sentence, change to "contrary to BPA's
. wMch. states that existing uses of waters must be i&sintairied and
protected/*,. (Delete "the CWA principle that nothing can happen to alter the existing use offhe
Nation's streams). The second sentence is an inappropriate argument, as there are no other
Chapter D, Section B, 2), fi»t sentence, change to "generally unsuitable for vallgy fills". Last
sentence: this is not a rebutable presumption just for ADID streams, but for any project to be
authorized via Section 404,
Chapter H, Section B, 2), third paragraph: A0JD doesn't confer a "special" designation
(somebody seems to be mixing up CWA terminology here).- ADID is just a warning about the
likelihood of a permit being granted or not As stated earlier in this section, it's not an outright
prohibition, so how can using it be "arbitrary and capricious"?
Chapter S, Section B, 2), fourth paragraph, last two sentences - are inaccurate and should be
deleted. The Corps can't issue a permit that causes significant degradation, no matter what the
public interest review says. " , •
Chapter H Section B, 3}, second paragraph: The entire argument advanced in this-paragraph is
inaccurate. Designating all headwater streams as tpeciai aquatic sites is no different than
designating all wetlands or all riffle-pool complexes as special aquatic sites as EPA has already
done in the 404 (b)(l) guidelines. Furthermore, since most of the streams that will be filled in
already contain riffle-pool complexes, we could argue that we're just clarifefag what'« already in
the 404(bXl) guidelines.
Chapter H, Section B, last paragraph. The statement that through mitigation, the filling of a
stream in its native state could result in overall watershed improvements is unsupportable and
should be deleted.
Chapter B, Section C, 1" paragraph, last sentence: Insert "regulatory" as in "Overall, these
statutory aid regulatory objective*..,"
Chapter H, Section C, introductory sections - Needs t major re-write by someone who
understands the Clean Water Act The CWA isn't about identifying it, filling it in, and providing
compensatory mitigation. It's about protecting and jflatetairaaig the chemical, physical, tad
biological integrity of the nation's waters, as in ALL waters, not just (hose with "specialAigh-
value environmental resources." All states are supposed to have Tier I protection for their waters
- it's called the "floor" of water quality protection under the Clean Water Act, and is supposed to
provide the "level playing field" ftor protection of waters.
Chapter H, Section C, 2.2CJ03 no action alternative, 6* paragraph, 4* sentence. Remove FWS
Cookevffle, TN staff as collaborator with the Louisville district in the development of the stream
protocol. Concerns expressed by CookeviBe in the development of (he protocol were ignored,
and they do not believe that the protocol is appropriate for use in determining compensatory
mitigation, as it is being presented in to EK.
Chapter H, Section C, Alternative 1, a. Regulatory Responsibilities, first paragraph, 5" line: add
MTM/VF Draft PEIS Public Comment Compendium
A-470
Section A - Organizations
-------
"unsuitable for filling unless demonstrated otherwise after rigorous review of site-specific water
quality and biological data"
Alternative 3,2) Process, 4* paragraph, second sentence. Revise to read: "The permit can be
denied if the project will cause or contribute to significant degradation, or if the proposal...."
(Also under Section 0, alternative 2).
Section C, Alternative 3, Regulatory Responsibilities, 3"1 paragraph, 1s sentence: change to ,
'VatereoftfieUSirjAj^ialacWateBdWbegiilta^erysrnallwmters&eds..." , .
Section D, Alternative 2, Action 1,1, second page, second asterisk item: Mitigation fcr "indirect
impairment anticipated (meets TMD1> if 303(d) listed stream)"? Neither a Section 404 permit
nor a SMCRA permit can be issued that would violate Sate water quality standards, so what is
this saying? «
Chapter D's subheadings need some re-formatting to make the major headings stand out better
(bold, for No Action Alternative, Aftemative-1, etc.), and the subheadings appear less prominent
(no bold for "Regulatory Responsibilities," etc.).
Remember that "mitigation" as used by the federal government is a term that, incorporates. . . .
avoidance, minimization, and compensation. In most cases where they are used throughout the
document, "mitigated** should be replaced wifli "compensated" and "mitigation" replaced with
"compensatory mitigation." ' . . . . .
Throughout the document, wherever FWS mvolvement with permit review is mentioned, it is
only in the context of endangered species. la most of these cases, FWCA coordination should
also be mentioned.
Throu^iout the document, "less than miaimtl" should be changed to "minimal."
The 404(q) process is mentioned throughout the document u EPA's avenue for objection to a
permit This should be restated as EPA's and FWS' avenue for objection.
From: — ^_..^_.
T«:
Date: Fri, Nov 15,2002 3:17 FM
Subject: Suggested edite-'editions for aquatic study sheet
(See attached file: aquatioqualificatloaseoraaients.wpd)
CC:
J
, <5sttimp@gfi«t,aHn>,
, «*ffiOBINSO@OSMRE,GOV>,
, ,
Attachmenfft):
Attachment Me l.wpd
Attachment File 2.822
EXHIBIT 50
MTM/VF Draft PEIS Public Comment Compendium
A-471
Section A - Organizations
-------
COMMENTS ON AQUATIC STUDY QUALIFICATION WRITE-UP - Cindy Tibbott
Headwater Streams
1" paragraph- Recommend replacing this paragraph with the following: "To help assess the
potential impact of stream fining activities on the aquatic ecosystem, a one-day invitational
meeting was organized by FWS. The purpose of the workshop was to assemble experts in steam
ecology to discuss the value of headwater streams and the possibility of setting acceptable impact
thresholds."
2— paragraph - Recommend replacing with flie following: "The proceedings provide valuable
information on the state-of-the-art of knowledge about headwater steams, which unfortunately
are little understood ontride of scientific circles. In &ct, meeting participants discussed the fact
fat historically, small streams hive been wider-protected fay regulatory agauaes becasae of'
ignorance about their values, AnirAslrywpresea^vedisciissedpoteBWopportuaitlesto
create wetlands and sfteam channels as part of rechmation. The stream experts raised concern
that many headwater streams are being eliminated by vaiey filing with no requirement for pre-
napact biological inventories, and that many species raay be unknowingly lost fan tie study
area's unique ecosystem. They ate> stressed the importance of small, forested headwater streams
and their associated biological commtmifles in providing organic production that leeds
downstream aquatic ecosystems. The experts concluded that although the state of sdentife:
knowledge is far enough advanced to be able to say flmt headwater streams are too important to
be destroyed, the state of knowledge is not &r enough advanced to be able to decide which
watersheds can be fiDed in and how many."
2"1 paragraph, 2ri sentence - Stauffer's final report states that moontttatop mining/valley flll coal
raining "has impacted" the condition of streams (not lias had a severe effect on th* condition of
Aquatic Ecosystem Enhancement
There's no summary information here. I suggest using the summary prepared for the J anaary
2001 status report:
• With respect to mitigating the direct stream loss tern valley fill construction, ft is
difficult if not impossible to reconstruct free flowing streams on or adjacent to mined
rites. The difficulty results &om the inability to capture sufficient gnundwater flows
necessary to provide a constant source of flow for the new stream. Only to rare instances
will flows be sufficiently captured such that a new stream can be created on the mined
site. '
• Therefore, mitigation or compensation for these losses must generally take fbe form of .
restoring degraded streams at offsite locations through a variety of techniques including.
riparian planting and habitat restoration, or by creating otto aquatic resources (ponds or
wetland areas) at onsite or offsite locations. While these aquatic areas will seldom
replace the fimetiora lost in the headwater areas, they can provide or enhance other
aquatic ecosystejs fiffictioms, tad may be considered ts possible rcitigatiori measures in
limited situations.
Ponds and wetland areas have been created on mining sites, in connection with sediment
control structures, and thete perform some aquatic fiHsctions. However, it is common
practice to remove the structures after the bonding period because of safety and/or long-
term atanagement concerns. Consideration might be given to leaving shallow pond-
wetland resources on site.
MTM/VF Draft PEIS Public Comment Compendium
A-472
Section A - Organizations
-------
. < Mike Robinson - More onSpAqinHle Sltm
-Mom .an .»p Atgjgjjg.
lisll
From: «Fofren.Jot»n
Ta M8» Robinson
Data: ' Fri.Nov 13,2002 9:59 AM
Subjc-ct: Mare on Sp AqusSc Sites
Just an update on our conference cai! yesterday afternoon v.ith Greg Peck
of our HQ office.
Greg disagrees thai the 50% restiiction on first order streams in ssccnd
order watersheds would effectively eliminate rntnlnaJn toe watersheds.
He further indicated he was one of the principal fiegottaicrs during the
settlement negotiations between the plaintiffs and government/industry
and disagreed wi* the notion tiiatindust^rfps waited out of the
negotisttons because a similar op'ion was proposed. Greg suggested
this option to address our goal of sharply defining tils differences
am ong the alternatives and to address cumulative impacts, which he feels
Is lacking among the alternatives now.
WeaSagreed, however, to press an under the existing schedule but to
continue parallel work on options to augment the alternatives fi»r
possible inclusion in the EIS during itie small window of time prior to
preparation of tha camera-ready copy, v.tiich would baC-.e preference, or
during preparation of the Final EIS as a last resort. Nothing would
preclude us from modifying the alternatives presented in the Final EIS
as a means of being responsive to comments aid concerns expressed during
the Draft EIS comment period. As a result, EPA Region 111 (123 committed
to draft a written proposal of this cumulative impacts threshold to
submit to EPA HQ and subsequently to Bw Steering Cemntltee for
consideration.
Although we would drop (he provWon In AttemaBw 1 to designate
headwater streams In to highlands as Special Aquatic Silos, Greg
suggests that we emphasize tfiatrrffto/pool complexes, which already are
identified as Special Aquatic Sites in ths4CMibX1>Qu!tlel«nes, are
typicsiiy found in these streams and that we use these complexes as a
means to leverage more rigorous permit reviews and cumulative Impact
assessments (of course ail of us, including Greg, we aware that
wetlands have this same designation, yet continue to be rapidly turned
Into fastland-, still, this would be a better approach tan simply
fallback to the IP-only reviews in AIM).
Whether or not tha "bright line" percentage threshold eventually becomes
part of Alternative 1,v/e should stii! include in A]tomatives1 and 2 a
commitment to develop a cumulative impact assessment protocol specific
to headwater streams.
Piease let me know your reactions.
John
CC:
,
«JCOKERaOSMREOOV>, <|8tump®gfnetaMi>,
, ,
EXHIBIT 51
MTM/VF Draft PEIS Public Comment Compendium
A-473
Section A - Organizations
-------
Kalhy Hodgkiss
11/18/2002 08:04 PM
,
Steins Sori8Ra/GC/USEPA/U8@£PA, John
Forrsn/RS/USEPAAJS^EPA, KatHy Hc4gNJSS#*3/US£P A/US® EPA,
Wfffiam Hetmafi/fWUSEPA/US@ePA, ©mgory
dvandetinde@ftiaii,d@p.state.wv.o8, rncrum® meltdesp .state .wv.us,
bd@mme.5iate,vs.uB, tsv@ffima .state, va.ua, At Klein
«AKt£JN@OSMRE.GGV>. Brent Wahtquiat
«BWAHLtHJl@QSMftEGOV>-, Dave Hartos
, JefS CoK«r ,
Thomas Shope
MTM/VF
877/21 6-441 2, 8B66S4t
t Steerteg Committee briefing tm status «t.PBtft (-60 mimaes)
Chapter 1 (Impose and Need) revised to;
-explain scoping issues considered and dismissed based on significance of issue or study findings
-explain alternative framework and fin restriction actioas thai were considered, but dismissed Irani
farther analysis (with reasons)
Chapter II (Alternatives) revised to:
-retain 3-AJtemativ$ framework endorsed by principals
-increase contra® of "Goverrnnetit EfficiencyCoordlnated Decision Makisfcg" scions; provide
new/revised tables showing contrast
-considered proposal fot "special aquatic sites;" earrmfly is unevenly created in Chapters I and H;
will used revision since concept is not accepted by EPA and/or COE HQ
-For EC consideration: EPA proposal for avoidance of 50% of first order Streams in 2nd order
watershed not yet fully presented, discussed, accepted or integrated
Chapter US (AfSscted Ea^TOtaent) i*vl^sd an
-incorporate at! ilnaBzed teclioic&l studies
Executive Committee Members ~
were pkced in earlier versious of DEES
s" narratives ibr those issues
in Chapter I that
We have scheduled a combined Executive Committee/Steering Committee Call this Thursday (see
proposed agenda below). Ptese let me know if you have comments or suggestions for the agerfda.
By now you should haw received Chapters 1 (Purpose and Meed) and 2 (Alternatives) of fee
DEIS (sent 11/12) and Chapter 4 (Environmental Consequences) (sent earlier today) vis email from Mike
Robinson. Please review thes© before the ctfl Chapter 3 (Affected Environment) la avaBstHe but the fiJes
are enormous and wilt require severe! emails to send. If you 3m interested in reviewing Chapter 3* please
let m© know and and I wi get the fBes to you. Please see t&ble of cortsnte In the Allowing attachment for
more info aboutwhat you wlB find in Chapter 3.
Chapter IV (Consequences of AKereatfves) prepared, bat:
-all sections not yet pat In consistent format or feviewed by SC and revised based cm comments
TABU OF CONTENTS -
Please cat! me If you have any questions or need additional Information, thanks, Kathy
Agenda
Mountaintop MMng/Valley Fill DEIS
Executive committee & Steering Committee Conference Call
November 21,2002 9:00 - ll:00sm
call in number: 877/216-4412, access code 86654#
I
11 latreductiem (-5 minutes)
Existing m& New Executive Committee Members:
-Kathy Bodgfciss, EPA ehaiipSFBon replacing Mike Castle
-Brent Wahlquist, GSM - Director - OSM - Appalachian Regional Coortlmatitig Cramer, replacing
-A3 KJeia (who will b* on the call too)
-Kirk Stark, COE, interim (COE EC raembsr Is vacaat)
'MaMsifc Parka1, FWS
*Itbtt Crum, WVDBP
Steering Committee R©M CaU
Issues Raised Dating Preparation:
-Lack of an\%oiunew^'I ccaitm^ £j a fi$ rssfristion cen^jsment n&e&ed in Attem&thm 1 to
most envir&nmen
-------
25 proper wording of baselifie and no action descriptions of program to Bmit liability
Schedule: targeting early spring (end of February) release of draft HIS:
-all SC efforts geared 10 providing Gannett Fleming (OF) materials for November 25 draft CD
•Chapters 1 and H-Wednesday 1V13; Chapter TV-Monday 31/18
•Other minor insertions ok though 11/20
-OF to forward CD with prelteirary draft of BS to «I1 reviewer! by the end of November.
-Agencies have December to perform MM! detailed review, including legal review, and to edit
the preliminary draft
-EPA to give GF a revised document on CD by 1/1QA03 for preparation of GPO camera-ready
version, 100 CDs, and agreed-iipon number of hard copies far agencies
Status of Economic Study Review by Bill ant Associates
Other Logistics:
-distribution process discussed: ....
*post on web sites when sent to GPO, official public comment period starts with Fit after
printing completed
*sertd retain post card with CD to all stakeholders involved in scoping for request for
executive summary or full "hard" copy
*send hard copies to selected libraries and BS agency offices within study area and
announce availability of document for public review at those locations hi FR
-Question to EC: Wk& win sign {surname) for each agency?
3>
-0 E*MtlwCdBirBMt»SMtoli (-« minutes)
Discuss results of EC re vis w of draft chapters
-Areas improvements/revisions needed
Discuss Schedule
- factoring in:
the results of this review
December window for SC revisions, legal review
Additional EC review
Surname review
Briefing principals
(-13 minutes)
12/1-SJ/02:
. 1/1/03:
1/1 0/03: •
1/31/03:
+ 4-Swsete
preliminary draft BIS on CD rnade available to agencies for detailed review and .
editirti (pending the oacome of a* nmlimiMry BC review)
window for flnal review a«d editing
week of 12/16: briefing for principals??
final steering committee and legal review changes provided to EPA
final edited materials to go ta Gannett Heffiteg
Gamtt Bering niwteescaiMrt-reiidy copy
QfOprintSnl
Discuss briefing principals on BUS status, decision*, issues Oat may arfce In public comments
!CAfl«n*rt1Z10a.wpc
Kalhy Hodgkiss, Acting Director
Environmental Services DMaton
U.S. EPA Ragtan 3
215/814-31S1
MTM/VF Draft PEIS Public Comment Compendium
A-475
Section A - Organizations
-------
! Mike Robinson - Comments on Daft EIS
From: Thomas Morgan
To: ' Coker.Jefli Harfos, Dave; RoWrMon,Mks
Date: Thu, Deo 12,2002 227 PM
Subject: Comments on Draft EIS
Mke,
Attached are the Charleston Held Oftee comments on the Draft BIS documents you sent out earlier this
week.
Our comments are contained to the two documents betotot • One lists to comments for Section II and
Table II-3 and tie ottier is a copy of Section W,D,, with our comments contained in str*e fcreugh and
rsdlines. Yotffl need to open fte SecBon NJD. sacBon h order tor 8» redfcss to show up.
The comments for Section I V.D.reWe to Ihe discussion of the WVAOC+document. TheDraftEIS
mh-charaotertes the AOC+ document as a HI mtnhstafon document when In feet it is an opthitesUon
ddeument that simply provides a process to (fefermlns the volume of excess spoB and c*wlatas Bra stes
of (he disposal area for the excess sped, tt creates a "model* mSiesKe, but the operator Is not bound by
the constraints of the model when comptetlna the tnal mine plan. Theonly constraint Is fiat the amount
of material backfilled must equal the amount determlnednot to t>e excess by the AOG+ proems, tt does
not limit the size or configuration of any parfcutar ffl.
A redllrw Is also Included w«h a note about the "ease study" site Included In the discussion. The use of
this particular mine site Is misleading In that adbal permit reviews generally do not see that swat of a
reducSon In excess spoil volume.
If you have any questions about our comments, let me know. Ill be out of the cflfes tomorrow but will be
bisk In on Monday morning.
Calhoun, Roger; McCaufey, Lynn; Supertesky, Mlchasl
United States Department erf the Interior
mot Aj» vmmst. SERVICE
Cookevilk. TO 38501
Daoea*ar20,2002
Ms. Bmbara Oten (3B30)
19103
Dear Ms. Okom:
"We received a letter ton Ms. Kathy Hodgkjss, Sated November 22, 2002, requesting that we
provide you with updated threatened and endangered species information for the Kentucky and
Tennessee portion of the So'Jthera Appalachian coal fields. A list of specie,? that maybe affected
by mining activities is included as an attachment to dot letter. Note that our data tee is a
compilationafcollectionrccordsmadeavailablebyvariousindividuateandrei-oiirceagencies. This
information is seldom based on comprehensive surveys of all potential habitat and thus is not
necessarily an exhaustive list of each coimty's endangered and tbreatened species. Note further that
maps. Please contact us if you would like to further pursue the assimilation of maps.
Measures for protection of aqustic species (i.e., fish, mvasels, and snails) focus on the maintcnsncc
of water quality. lite primary measures ate (1) retention of trees along streams in order to provide
an energy source and buffer water temperatures and 0} the preclusion of sediment transport to
icies require protection of wintering habitat (i.e., caves and abandoned
mine portals) and food sources, including streams. The Indiana bat, in particular, requires the use
of trees as roosting habitat, Stmidard measures for protection and enhancement of habitat for this
species, inctadmgmamteroarice of trees during and after mining, are presently being developed for
Kentucky and Tennessee.
Protection of some plants is secured through minimization of the disturbance of specific habitats.
For exarnple, riparian species such as Cumberland rosemary and Vrrgiaia spiraea require protection
plants'needs. TJkewise,maintenanceofabufferzone along sandstoneclifflincs benefits the species
that inhabit ftose areas (e.g., Cumberland sacdwort and white-haired goldeorod).
EXHIBIT S4
MTMA/F Draft PEIS Public Comment Compendium
A-476
Section A - Organizations
-------
We provided information to representatives of the USBPA and Gannett Rem!aj$,Iae., about species
of potential concern related to mining in July 1999 and January 2002. Several species listed at those
times were deleted from the attached fist, or from tome counties on the list For example, the rcd-
cockaded woodpecker is now considered extirpated from Kentucky. Distributions of some of the
species included in the July 1999 and January 2002 lists only rarely overlap with areas considered
to be within zones of potential mining impact. These species include the bald eagle, shiny pigtoe,
birdwing pearly mussel, oyster mussel, fine-rayed pigtoe, pink musket, cracking pearly mussel,
dromedary pearly mussel, cliibshell, fanshell, white wartyback, Anthony's river snail, Cumberland
etooe,Eggert'ssiinfIowar,Indiana bat, tan riffleshell, slender chub, yei!ov/finmadtom,spor5n chub,
andchaffseed. However, some of these species can be vulnerable to impacts in cases where mining
and associated activities encroach on them. The pale lilliput and Alabama lamp pearly mussel are
no longer considered extant within the area of this biological assessment.
On the other hand, species were also added to certain counties on the attached list. Some were added
because ofthOTrwentadditiora to tile candidate list, mcluding the Cumberland johnny darter, fluted
kidneysheli, and white fiingeless orchid. Recent expansion of mining activities hito new areas
wan^nted the addition of some (^ecies to this list, including the Cumberland bean pearly mussel,
green pitcher plant, SequatcHe caddisfly, large-flowered skullcap, and Virginia spiraea, the
duskytaild^rter, tan rifflesheU.niraiirjgbitrTalo clover, gray bat and Indiana bat were added to the
list because of recent expansions of known distributions into certain areas.
Thank you for this opportunity to provide further irrpuL Mease contact David Pelren of my staff at
931/528-6481 (ext. 204) if you have questions about these comments.
Sincerely,
Lee A. Barclay, PhJ3.
Field Strpervisor
Attachment
JohnFomsn
To: Gaiv BryantfRSAJSEPAAlSgEPA
*, Frank BBrsi*mSAJ8EPAAJ8®EPA.
^William
Ra:'ooi»mntion DWF? BS tor MTMWg
Thanks, Gary. Well get them included he final version as much as we can.
John • <._..... t> . -. .
Gary Bryant
1SB3/B2 02:28 PM
To: KsthyHowidWai ~"
Wiiliam Hoftm»n,'ft3,'USEP/UUS©EPA
K: Frank Boreak;R3/USEPWUS@EP.\ Jim Green/R;V;jSEPA'US©EPA.
Sufc^eefc Comments on DRAFT £1S fbr
The attached fiis tas oar comrner.ts em reviewing the Dec 2002 Interim Draft report Mounta'mtop
MininyVaUsy Fill Em/ironmenfa/ Impact Statement.
Pisase contact me If there are questions.
Thanks,
BXHrorrss
MTMA/F Draft PE1S Public Comment Compendium
A-477
Section A - Organizations
-------
COMMENTS ON THE DRAFT BIS FOR MTM/VF COAL MINING (Dec 2002)
ftom BSD, OEP, Wheeling Staff 12/2002
The body of the report has excellent scientific infena«tJon on the environmental impacts
of MTM/VF mining. Unfortunately, it appears that information was not vised in developing the
Alternatives. It is not clear why Alternative 2 is the prefaced alternative when the only major
difference among the three alternatives seams to be which agency leads tite permit process. The
summary of the alternatives listed on pages BS-2 m& 3 states that cross-program actions
minimizing adverse effects of moantaiatop mining and valley fill constroctioTi on terrestrial
resources and the public are identical in Alternatives 1,2 and 3.
A proposed implementation schedule should be included in this report for the key actions
like establishing intertfendy MOUs along with recommendations of how they would be fended.
This is one lesson that should be gleaned ftom effort to draft this BIS.
The fill inventory data base, which was used td estimate the miles of stream impacted,
does not support precise determinations. There is a comment on page 3K-22 * A total of 4,484
(67 percent) valley fills out 'of the 6,807 approved wore constructed or may be-constracted."
Since there is so indication of which fills woe built, and only 67% of the fills permitted are
actually built, this is very imprecise data, a feet not adequately mentioned in the estimates of
miles of streams impacted,
PeES-? -1 * paragraph - "These regulatory changes resulted in a decline ia the average number
of fills per year approved in the EIS study area ....*
COMMENT: This is not an accurate statement ts there,are many factors, fa addition to the
changes in regulations, at work in determining the number of fills per year - especially (he
cyclical market for coal.
Near the middle of this same paragraph there appears to be an error in the total stream
miles impacted (faring 1995-1998 (63 miles) and during 1999-2001 (30 rnBes), Table ni.K-g on
page JJK-49 would indicate that there were 206.74 miles of streams impacted during 1995-1958
and 107.2S miles of streams impacted during 1999-2001.
Near the end of that paragraph there is a sentence 'Similar environmental benefits are
ejcpected with the implementation of one of the three action alternatives proposed in the EIS."
COMMENT: The scientific information to the main report doss not indicate that MTM/VF
mining produces any environmental benefits, but in fact the impacts are detrimental to the
environment. It is more accurate to say that the implementation of one of these alternatives will
reduce the detrimental environmental impacts of MTM/VF mining.
Pefl~7S - 1s* paragraph - "None of the regulatory authorities in the study area. Including i»
OSM federal program m Tennessee, specify a preferential method for doing fee flood analysis."
COMMENT: This conflicts with U» statements on Pg m.G-9 2nd paragraph which indicate that
KY & WV have preferred methods for analyzing peak flow and flooding potential.
PeHIJ)-( - 3*** paragraph - "Selenium concentrations from the Filled category sites were ibund
to exceed the AWQC for selenium at all sites la this category."
COMMENT: This statement is in error, the statement in the Stream Report was that all the
excessive value! were at Filled sites. There are some Filled sites that do not have excessive
concentrations of ielenhm so the existing statement in This DRAFT report should state "... at
most sites in this category."
felllJt-?- y& paragraph - "to the USEPA (20Q2a) stream chemistry study, selenium was
found to exceed AWQC at Pilled sites only, and was found to exceed AWQC at all Riled site
included in the study."
COMMENT: TH» statement is in error, as noted m the previous comment The statement should
read"... exceed AWQC at most FBed sites..."
PeHLD-7 - 481 paragraph - "Whfle changes in water chemistry downstream ftom mined, filled •
rites have been identified, It ts not known If these changes are resulting In alterations to the
downstream aquatic communities or whether functions performed by the areas
downstream areas from mined, {filed sites are being Impaired.11
COMMENT: iKs should read," While changes in water chemistry downstream from filled sites
have been identified, it is Dot known which changes cause the impairment observed in the
downstream aquatic communities.' EPA's studies and other studies have found that fhe
strongest and most significant correlations are between biological condition and conductivity.
We do know that the stream segments downstream of some of the fins are impaired, and we
believe the impairments are due to water chemistry changes, based oa fhe strong correlations.
Please note that the biological conditions are considered impaired, and they are most strongly
correlated with water chemistry changes. Conductivity way be a surrogate for other water
quality parameters, that is true. It is also true we dont know the mechanism - why is hi^a
conductivity associated with impaired biological condition - for example, others have suggested
that the high conductivity inhibits ion regulation' - but we dont know That's what we dont
know,
Pg TO.O-6 - 3F* paragraph, last sentence - 'Again this did not result in any predicted overbank
flooding.''
Last paragraph list sentence 'Again, bank full capacity of the stream channel did not result*
COMMENT - Bank roll flows are generally considered a 2 year storm event The peak flows
calculations in these studies are 10 year storms and 100 year storms. It seems impossible for
-------
Kathy Horv«rde
-------
provide realistic potential solutions.
Ths projected forest cover conditions far various states should be further explained. Th« time
frames used for
protections and quality of forest cover in the E!S 15 not clear.
Thank you for this opportunity to review the latest draft of Uis Mountaintap Mining E1S.
• David Peiren
From Stfan Evans at our Souttmest Vltgnte FisU Office:
Tie Service is correct when it "suggested", as stated on page H-ll, mat vaUey fills m streams are
contrary to EPA's anti-degradation policy. It appears EPA is disregarding portions of drainage
netwoifa to make anti-dsgradarJon policy harmonious with valley fiUs. Why does EPA consider
'\..anti-degradation principakirte^rf the ovcraU integrity of the watershed downstream is
intact"? EPA does not explain why upstream portions of watersheds isolated and therefore
degraded by filled stream segments are not considered as part of ana-degradation policy.
Moreover, shifting lie emphasis on protection to the broad scale "general integrity of the
watershed" ofa™tes protection of smaller streams or stream reaches, which arc Waters of the
U.S. The potential to restore streams or nutigate stream impacb, sv.ch that pre-impact uses are
attained has not been demonstrated. It is imlikely that streams and tie ecological ftmctjons tliey
contribute to the watershed c^ be rqjlacrf through mitigation, nor is it [ikely that a no net loss
of streams policy could be implemented iii a mmner similar to wetland compeiisation. Even if
EPA restricts consideration of impacts to tJie reach of stream below tie filled react, studies
dcscnl>cd in section IEJ) show that fills contribute to significant degradation to the overall
chemical, physical, and biological integrity of adjacent waters. For example, below fills the
ambient water quality criterion for selenium concentration is exceeded consistently, natural flow
regimes are altered, and macroinvotebrate diversity is depressed.
Fram Bale Muffing*, StoOmtSt Vilgat Reid OSee
generally unsuitable for valley fills primarily because it would be at odds with the NEPA
requirement that alternative be reasonable. The narrative discussion includes "The ADID '
process was developed to identify particularly Eensitivo or high value aquatic resources". This
statement rmplies headwater streams in mining areas are not sensitive or high value aquatic
resources. To the contrary, all waters of the US are sensitive and high value aquatic resources,
othemise tie Congress through the CWA would have designated certain waters as not sensitive
or high value aquatic resources. The CWA objective is to restore and maintam the chemical,
physical and biological integrity of the Nation's waters. Additionally Virginia State Water
Control Law states all high quality waters will be protected and nil other state waters restored to
siichconditionof quality that any such waters will permit all reasonable public uses........
Specific sections of the CWA address identificaUon of waters not meetmg minimum water
quality standards (303d) but nowhere does the CWA designate or otherwise identify certain
waters that are not sensitive and high value aquatic resources. This exclusion of a list of waters
ttet are not Kmsidered sensitive or of Mgbvatoe reinforces the objective of the CWA, the State's
lav/s and in effect indicates Congress recognized all waters are sensitive and of high vaiuc. Any
finding of ADID or Cffl A or any other tool to assess water quality would have two conclusions
1) the waters subject to the ADID or other assessment process are impaired and therefore should
be restored and majntaiced per the objective of toe CWA. 2) the waters are not impaired and
therefore should be maintained per the objective of the CWA. Filling waters of the US with
mine waste irreparably degrades the chemical, physical and biologic?.! integrity of the waters and
permanently disposes such waters to be contrary to the objectives of the CWA, specifically,
restoration. Such action as filling streams not oaly insures the stream cannot be restored, it also
causes loss of tie biological integrity of the waters downstream because the energy inputs from
energy flow from upstream to downstream wets adversely impacts & biological community
including federal trust aquatic resources.
abThe discussion at b3. includes narrative that states "...not all headwater streams are
special; 404(b)(l) will most Ukely lead to avoidance of truly special sites; and the legal
vulnerability of such a designation or use of presumptions". Again, the CWA dees not include
listing certain streams as "not special" not sensitive or EotMgh quality. This is done for several
reasons among which an the objective of the CWA to maintain and restore the chemical,
physical and biological integrity.—... This in effect states flat Congress recognized certain
watersareormaybeimpairedby various causes, however remedies for the impairment
(maintain and restore) are set forth rn tie CWA. Scction303doftheCWA, for instance,
mandates the EPA or States to identify inrpaired streams and include them in the TMDLh'staiid
water quality standards planning. Section 401 remures a statement that a Natior.al Pollutant
Discharge Elimination System permit (section 402 CWA) win not cause a violation of water
quality standards. Section 402 requires all discharges be permitted, another tool to restore and
maintain. State and federal programs expend doUars to restore streams through such programs
as CRP, CREP, WBff, PWW and mole.
MTM/VF Draft PEIS Public Comment Compendium
A-480
Section A - Organizations
-------
From:
To: Cindy Tibbott , "Daw Densmore ^-
, , Oave Hartos
, Dave Vandeliade <3wdelinde@rnaiLdep.stste.wv,u8>,
Privileged and Confidential
.
>artiail.epa.gov>, Russ Hunter ->hunter@inail,dep.state.wv.us>, "Jim
Townsend (E-mail) , "Jeff Coker (E-mail)"
, "Kathy Trott (E-mmJ" , Les
Vincent , Mike Robinson , Paul Rotfanaa
, , "Stump, Jennifer M."
,
Date Tha, Jan 2, 2003 12:49 PM
Subject: EPA-OGC NEPA comments on MTM/VF BIS
FY1
--- Forwarded by John Forren/R3/0SEPA/0S on 01/02/03 12:51 PM --
James Havard
To: JotoPonen/R3/USBPA/US@EPA
01/02/03 12:41 PM cc: David Sider/R3/0SEPA/OS@EPA, Ksfty
HodgMss/RS/USJEPA/USgEPA, Marilyn
Kttray/De/0SEPA/US@EPA, Pamela
Lazos/R3/USEPA/US(§EPA, Steven
Neigeboren/DC/USBPA/tTS@BPA, William . ,
Hoffinan/RS/USEPA/USfflEPA, Gregory
PecMJC/lBEPA/US@EPA, Hatoe
Suriaco/DC/USEPA/US@EPA
Subject: OOC NEPA comments on MTM/VF EtS0oeutnent link:
John Forren)
These general fcormaent apply throB^iout (he document WMle we provide some examples of
whee the issues arise in tie detailed comments below, we do seek to identify each time these
issues arise. "' ' '••
1. The document as a wfeole is conflising and difficult to read.
2. Many grammatical enors/lypos
3. Many limes statements are ptosed in a negative or defensive manner which weakens the
document. . . .
For example: (ABsrajtflws dieter A. 1 paragraph 3)
Some individual actions were considered to 6e simitar to or adefressed by other actions
and were therefore dismissed.
Would be better written aa
Some individual actions v^ere detenained to be'similar to or addressed by other actions
and, therefore, were eliminated totm detailed study. .
4. ItisnotelewWhattiereftreijflspoajtfotcompartoiiis. Is it 1998 ot 2002? This
seems to make ahuge di&rencd as many actions have been taken in t
Here are comments flwn me and Marilyn Kutay. We both plan to be on the
1:30 call.
(See attached file: OOC NBPA Comments on draft BIS 12-02.wpd)
Attachments):
Attachment File 1 ,wpd
Attachment File 2.822
Do the Agencies all consider this an BIS required under NEPA. Or do the Agencies
want to spin thia as a voluntary BIS? If it is a voluntary E1S (even though done under a
settlement agreement), we woaU want to make changes to reflect that. Even if we
consider this voluntary, we'd still want to follow the regs and statutes to get the most
benefit out of doing preparing ft. [Note: EPA does not appear to be engaging to an
action hare for which NBPA compliance would be required.]
CBQ i«gs «t 1502.14(e) require agencies to Sadudejeasonabte alternatives not •wiflnn
lie jurisdiction of toe lead ageney. Further, CEQgoHatice provides:
An alternative that is outside the legal jurisdiction of the lead agency must Mill
be analy»d in the SB if it is reasonable. A potential conflict with local or
federal law does not necesotily reader an alternative unreasonable, although
such conflicts must be considered. Section 1506.2(d). Alternatives that we
outside the scope of what Congress has ajjproved or ftaded mast itill be
evaluated fa flie BIS if 4ey are reasonable, because tae HS may serve as the
basis for modifying the Conpasslonal approval or fending in Eght of NEPA's
goals and policies. Section 1500.1(a).
EXHIBIT 58
MTM/VF Draft PEIS Public Comment Compendium
A-481
Section A - Organizations
-------
to addition, CEQ guidance states: "A potential conflict with local oc fetal law does
not necessarily reader an alternative unreasonable, although such conflicts must be
considered,"
Therefore, it is important (hat we don't say lack of authority & our only reason for
not considering alternatives In detail. We should Include other reasons why
alternatives are not reasonable.
7. The use of "will" throughout the document causes corrfusioB. It gives the impression
that particular actions are going to happen. Better woriiag would be "If this alternative
were adopted, it would..." or "Under this alternative, COB would,,."
8. In several places the document acknowledged that the Agencies do not have important
information. It is important to keep in mind CEQ teg 150232 regarding incomplete or
unavailable information. That provision says that if incomplete fafonaafioa relevant to
reasonably foreseeable significant adverse impacts is essential to a reasoned choice
among alternatives and the overall costs of obtaining it are not exorbitant, the
Agencies must include tMs information in the EIS. If the costs are exorbitant,
1 502.22(b) provides specific procedures to be followed.
9. It's not dear whether there would be NEPA review oa subseijuent actions. For
example if the agencies enter into an M00, would that be suttee* to NEPA review?.
Also, some may argue tint it is difficult to assess the alternatives without seeing drafts
of the implementing MOUs, etc.
Executive Surarflarv
10. The Executive Summary does not explain why Alternative #2 is preferred,
11. If there were regulatory changes instituted following te Brag* settlement, will the
preferred alternative provide more environmental protection or is it providing the same
level of protection? The term "regtiiatay changes" sounds like agencies already
promulgated rules in this area. fftbJs is true, the EIS needs to explain how the changes
being considered with this EIS are djfiereai
12, Section C.ld.4.
"M»Tj> of the efforts tn tKs so-called "interim permitting" period Identified anas where
the agencies, the regulated community, and the errriromr.ent would benefit from
coordinated or clarjftetl procedures, better baseline data collection, Improved analysis'
of potential fiBpoee, and a different sequence of processes. "
The meaning of the term " 'interim permitting* period" is not clear. Does it refer to
permitting as done under fl» Bragg settlement, the interim guidelines orunder the
MOW
13. Section C.3.b.l
"Same studies completed attow conclusions to be drawn ami others suggest more
in-depth information is required."
What does IMs sentence mean? Should ft be "Some completed studies... This
sentence needs an explanation of what studies allowed conclusions to be drawn and
what additional information is needed
H. -Alternatives
14. Section A (First paragraph)
to accordance whh the National Environmental Policy Act, sipuficsnt issues identified
to the scoping process must be evaluated to'determine the ptofier focus of in the BIS,-
itt-feciafag tfae'gS," (he action -agencies inuit 1» direct their itlfetts to those Significant
issues are those that (1) relate to the purpose and need of the BIS, and (2) are tnriy
"significant" or important to the decisions being made, [Also, where does this definition
of "significant" come ftom? Do we have a cite?]
15. Section A.1 (intro, paragraph 2)
Pursuant to NEPA, "values" are defined as aesthetic, Mstoriccil,*eulturat; economic,
social, and health cotuidtratioits relevant to the proposed aetion and tht alternatives,
Do yon mean impacts? Neither NEPA not the CEQ legs define values.
16. Section A.1 (intro, paragraph 3)
UBS paragraph suggests that we considered other alternatives, but they are not
discussed in the EIS because they w«re "simitar to or addressed by other actions and
were therefore dismissed." The CBQ regs state that during scoping the agency should
"identify and eliminate fi-om detailed study issues [that].,. have been covered by prior
environmental review." (40 CFJt 1501.7(3)) If an issue already has been subject to
an environmental review, we should state what oat issue is and how it was addressed.
It's unclear what is raemt by "actions" does it mean alternatives? or issues?
17. Section AJJc
This section «ys that EPA is writfeg a BA under the ESA. What is EPA's relevant
action under fl«ESA? What nbout other Agencies? Will they consult on subsequent
actions?
18. Section A.3.1.
Make me Mowtog change: "N1PA Section 1Q2(2)(B) require* federal agencies to
'idenfliy and develop me&ods and procedures, to. consolation with [CEQ] which will
~ insure that presently unquantified environmental amenities and values may be given
MTMA/F Draft PEIS Public Comment Compendium
A-482
Section A - Organizations
-------
appropriate consideration in decision making..."" And tea we should discuss what
jMfocedsws ate steady imptee. Alternatively, we comld strike •fceiefwence to this
section. This section reads as a requirement to develop procedtares.
B.2 Fill Restriction Alternatives
C. Alternatives Da
19.
20,
It is not clear why we rejected an alternative that was not a bright line. We need a
reason otter than a lack of authority.. ,
Citations to court oases should include the complete citation. 'For example
District Court: 452 F. Sapp, 327 (1978); U.S. Court of Appeals: 627 F.2d 1346
(1980)] •
should be :
In a Surface Mia, toutatiomliagattoa, 452 FJupp- 327 (D.CD.C.,1978), affd in
part, rev'd ia part, S27 Fid 1346, (D.C.Ot. May 02, 1980)
21.
22.
23.
reasonable altematiwss. It i$ not necessarily true that the regs prohibit consideration of
other alternatives - if at alternative is not reasonable, ju»t ujr it was eliminated ftom
detailed study because it was not reasonable rafter thai saying snob. alternatives woald
violate the GBQ ngfc
The EIS must explain why this alternative was unreasonable in terms other thin conflict
with federal law ami/or lack of authority.
The paragraph beginning "However, it is OEM's position that, should the CWA oonttin
such a prohibition or bright-line standard. . . ." it very difficult to follow.
In 1tot paragraph, the following sentence steold be expiated., Why is this »? "OSM
and the state SMCRA authorities historically did not apply 4e stream buffer zoae rule
to Die area of stream disturbance beneath the fill, but to the downstream effect,
ofMe."
B.2.b.ltndB.2J>.2
24. Neither sectiou adequately describes why ths alternativs is unreasonable. The
paragraph beginning "Further, EPA and ttie GOB concluded that the general application
of AMD to class of streams (Le., headwater iteeams) would be somewhat arbitray and
difficult to administer ---- " is a start and should be made clearer and a similar analysis
could be used for ofter alternatives.
25, Is the part of this section that begins wi&*% summary W alternative ftamework..." a
summary of just tiris subsection? If it is meant to be a summary of all of section 2b,
then it needs to be in a separate subsection.
26. (paragraph 1) It is not etetr whether the 3 afternatives are significantly different from
tile status gtio. I thiak you aieaa that the proposed alternatives wotild maintain the
environmental benefits that resulted fe>m the regulatory changes made as a result of the
Brag; settlement. What happens to the regulatory changes? This makes it sowid fflce
they wBl go away.
27. If 1 998 k not the baseline for the "no action" alternative, why is it discussed here?
Wouldn't going tack to the way progaaw were operated in 1998 be an alternative Hat
was eliminated because ft is not viable? This discussion belongs in section B on
rejected alternatives.
CL2 No Action Alternative
28. In the summarj' of regulatory benefits, I don't see sny real simirrmr,' of tlic benefits. Are
there aay? If not, we shoold say that ibis alternative dow not provide aay regulatory
benefits. Does
-------
The ibliowsag two sentences seetn Hke &
"Bofli SMCRA and CWA place ahigh value OB strewn protection, bat both of these
programs recognize that incursions asd disturbances of streams may be unavoidable.
For example, there have been hundreds of mites of headwater stream buried by valey
fills in fde past decade in this HS study area,"
35. D.7.C Action 19.
This action would create a rebutable presumption that at least one headwater stream in a
system mm be pretend ot reconstructed. Didn't we reject rebtitable presumpttons for
all streams under b3? It is act dear why such a presumption fa reasonable here and
couldn't be reasonable under b.3.
36. D.9, Air quality -Someone from OGCARLO should review this section.
37. D.ll. Species,
Make the following change:
Section 1502.25(8} of fte CEQ rep ME?* requites, to the fiillest extent possible, that
an BIS be prepared concurrent with the consultation and coordination requirements of
UusESA.
38. D.ll. Action 25. Shouldn't Ais action only apply to EPA wherenrehave an action
requiring ESA compBaaee?
ffl. Affected Environment
39. fflj),l,£2. TMssmnrflarynotes ttet
"While changes to water chemistry downstream ftom mined, filled sites have bean
identified, it Is not known if these changes are resulting in alterations to the downstream
aquatic communities or whether functions performed by the areas downstream areas
from mined, filled sites are being impaired. Further evaluation of stream chemistry and
further investigation into the linkage between stream chemistry and stream biotic
community structure ar.d function are needed to address tine existing data gaps."
bthis information essential to a reasoned choice among alternatives? See 1502.22. If
it is, we need to got this informatton if the costs are not exorbitant. If li»y are
exorbitant, see the procednres of 1502.22(b),
IV Environmental Ccnseqaenees
40. B.2. Notes: "There fa »lack of information on the degree to wkfch length of stream
directly correlates witfc Ae amount of energy in the form of fine-particle organic
material or coarse-parttele orpme material leaving a p«&ailarteaeh of headwater
stream." This section also notes: "Few coBctasions regwdtag level of environmental
impacts ejqsected among Alternatives 1,2and3 can be made for this impact ftetor,"
b fliis information essential to a reasoned choice among atteraatiTOS? See 1502.22. If
it is, we need to get this infonnattom if the costs ate not exorbitant If they are
exorbitant, see the procedures of 1502.22{b).
MTM/VF Draft PEIS Public Comment Compendium
A484
Section A - Organizations
-------
Steven Neugeboren To: srusa^enrd.usdoi-gov, ryoungi3|enrd.us
-------
Privileged Attorney
Deliberativt/predecisimiat
Privileged Attoraejf/dient eommtBBcatiQn
- the discussion of anSdegradttlon as It relates to valley fite was pretty confusing to tne. It
obviously touches on a very Important and controversial tegal Issue. A tot of care needs '
to be given to whether this issue is discussed, and, If so, exactly how to do It so as to rat
encourage futum litigation. My strong recommendation is to delete all reference to this
Issue in the EIS. . ,
Sectlo'n b.2. - Advanced Identification
I was uncomfortable with how much of this discussion was presented. See rny markup •
for more detal In certain respects, the discussion was not accurate; in others, overstated
(e.g., I don't see how doing ADID for headwaters streams was on Its face at odds with
NEPA).
Section b.3 - Special Aquatic Stte Designation •
It was unctetr to me how existing regulations could support designafing a new class of
special aquatic site. Those arc currently listed in the regulation and are an exclusive list;
we could certainly add to that list, but doing so would require rulemsking, but thai doesnt
seem to be contemplated hem.'
Section II.C. • . •.
In general, I found this section fairly confusing and in certain respects an inaccurate
charaeterfatton of the CWA program*. In contrast, the mom detailed disutsfcn In section
li.D of the alternatives was more organized and accurate. 1 think same substantial work
would be needed on this section. Alternatively, do you all think that Ms section adds
much that isn't contained in the more defied d&cu&sion in section 0. From my vantage
point, section C eoulsl be deleted entirely *nd make tf» document more accessible and
accurate in general.
In any caw, I suggest an up front expltnsSon of how this section ts structured, and why
the analysis is organized as It is - e.g.. first regulatory framework and process, then
discussion of summary of regulatory and environemntal benefits. It would be helpful to
know why this structure was selected. Are these the criteria that NEPA requires us to
evaluate, or a similar explanation.
Section li.C.1 - The regulatory program In 1998
I'm fairly confused as to why the E1S discusses the situation In 1998, since that is not one
of the "alternatives." In ganersl, I found the inclusion of that section made it much more
difficult to understand the array of alternatives. I'd be interested In discussing why it is in
there. If tie purpose is to show tts Improvements that have been mads ovtr recent
years, perhaps there may be a more affective way to accomplish that
In any case, as written, much of thfe discussion appears to suggest (I assume
unhtentlonatly} that the program was Improperly administered prior to the Bragg
settlement, so I would suggest substantial revision to this section.
Section 1II.C.3 -Alternative 1:
If s unclear to me what the basis is for making the assumption in this alternative that
valley fills are generally more than minimal Impact This is so at odds with current
practice, ftat even suggesting it seems to Imply that determining minimal Impact Is a
policy, w opposed to a techniesWenvtenmental cat I'd be coneemesl that this
undermines Sie credfbfflty of the current program's minima! effect determinations. lt!s
also unclear to rne how this assumption relates to th» fact that the SMCRA
determinations win defer to the corps under this alternative.
Section IH.C. 5-alternative 3
As with alternative 1, ifs undear to me how the conclusion that vaHey fiBs will generally be
minimal relate to this alternative, since It uWmately turns on the facts. The document
states that R is because the Corps would require compensatory mitigation to make it
minimal, but Isnt Siis the case with any alternative, and in any c«e required by 404(8}
Itself and the current nationwide permit
38 - Stales' SMCRA auBierriy for eomoensatoiv mutation; One critical Issue Wat was not'
clearly explained was the ability of states to require compensatory mitigation under their
statutes. What was unclear was the extent to which OSM intends any new rules to
. require states to have that authority, and if not, how that wouW relate to the process at the
federal level. My guess based on the draft would be that OSM would not plan to require
that states revise their legal authorities to require evaluation of compensatory mitigation.
If that's the case, then how exactly would state SMCRA authorities take the lead on those
Issues? If I guessed wrong, then I Ihlnk the document needs to make more clear that
OSM intends to conduct rulemaking to require states to revise their authorities.
p. 36 - Coma reliance on Slgte 8MCRA dedginna - The discussion of alternative 3 needs
to make sure IT* not suggesting tat the Corps Is not delegating its authority to the
SMCRA permitting authority. Some of the discussion could be read as suggesting that.
While the corps can certainly rely on hfbrmatlon'generated by the state, the corps retain*
ultimate authority for ensuring compliance with 404, and that should be made dear.
There Is good language on this Issue In the fill rule final preamble describing how the
corps will rely upon decisions by states, including stale SMCRA authorities.
p. 37 -SireamtlBlneESAcorauriaten In the discussion of ESA, 1 think there is a legal
problem with asserting that addressing ESA concerns by the State SMCRA authority
would "hopefufry eliminate possibly redundant FWS consultation with the corps on the*
404 perm! This woukS be trut if the smcta proceeding eliminated all effects to spectes,
beneftebl or detrimental. However, if there were any possible effect remaining on the
species, I tWnk the corps obligation to consult would remain. Suggest changing the
wording to say It would "streamBrw'1 any consultation that may be needed by th« corps.
p. 40 - Action 1,1- Individual Bermltt tor vatev flit - this action states that the corps win
Issue Individual permits. As stated previously, there needs to be a factual, and not just a
policy basis, for such a conclusion, and It doesn't seem "reasonable* to suggest that all
valley fills pose more than minimal effects, in light of past practice and the
individualized nature of such determinations. I think this could, however, be done
through, modification of NWP, but I imagine that's not what"! contemplated.
MTM/VF Draft PEiS Public Comment Compendium
A-486
Section A - Organizations
-------
Privileged Attorney/client cormnunication
DeiiberativeArededaoial
Also, the IP placets is described, but no mention is made of public comment
Doesn't that need to be mentioned?
P.48 - Inconsistent stream definitions - the draft states that the agencies will look
at definitions of waters, including waters of U.S. nnder the CWA to enhance
consistency. Given the ongoing SWAKCC rulemaking, that statement and
commitment need to be run by politick management I Irankly doubt that the
agency leadership would want those issues addressed in this context
P. 51 - Relationship of SMCRA to CWA - the draft states that applying the
stream buffer zone mle to prohibit fills would contrary to section 404. This also
raises the question whether section 404 constrains DOl's authority, which as
noted above is an issue that should be run by DOJ,
Ghana in practise on fl|l j - draft states that the regulation of direct loss of
streams has changed in two ways since 1998, one of which is the fill rule. Thefill
rulemaking, however, states that it's generally consistent with agency practice, so
this language in the draft should be struck.
Corps practice under prior NWP - The draft also states that the new NWP 21
'requires project by project determinations of impacts and appropriateness of an IP.
While 1 realize the corps might not have been looking closely at projects under the
previous NWP, they were still receiving PCNs and, as a legal matter, determining
the applicability of 404. I'm concerned that this language could be read by some
as suggesting that the corps was not fulfilling its legal obligations by how it was
implementing the prior NWP, so it should be revised.
S2 - Afeanced.ldentification - APID does not, as indicated in the draft, change •
the threshold for impacts or information requirements. It has no regulatory effect '
whatsoever, but is only information about the likelihood that the guidelines will
be met at a future time. The standard for reviewing a permit an application at that
time is the same for any other proposed discharage. So the language here should •
be modified accordingly.
P.56 - Region HI permit objection colcy - There is a discussion of region Hi's
402 permit objection policy as it relates to valley fills which is some legal
concern. We have been very careful in how we have characterized that policy,
because of litigation around the issue of whether 402 or 404 covers valley fills.
I'm concerned that some of the language could be used to undermine current
agency positions, potentially is litigation. My preference would be for it to be
dropped. It doesn't seern central to the discussion in this section.
Privileged Attorney/client communication
60 - draft states that siting of fills hasn't been based on most environmentally
protective alternative. This statement again could be cited to argue that current
authorizations violate section 404, so it should be deleted.
60 - SMCRA authority fot fill minimization - there is a statement that SMCRA
t "appears" to provide statutory authority for requniag ffl minimization. 1 don't
think it's appropriate for an EIS to be tentative about one of the agency's statutory '
authority, especially where that authority is a prerequisite to some of the most
important actions considered ia the document. The DOI lawyers should be asked
to speak to this question so the document can be definitive.
62 - die fill minimization section discussion of the no action alternative only
discusses SKlCRA. Doesn't it need to also discuss 404?
68 - It.F.7 - Cumulative Srtmagjs - the discussion of the program in 1998 includes
a discussion of the relationship between anti-degradation and 404. As stated
previously, that is a legally complex and controversial issue, and 1 don't see any
benefit to teeing it up in the HS process. I strongly recommend its being-deleted.
The discussion also contains a background paragraph of basics on the TMDL
program. It's entirely unclear why this is being discussed here in this" s%ction, and
what its relevance is. Suggest either tielng it to better or deleting it It's not clear
to me at all why TMDLs would be.relevanf here (if it is relevant as background,
would seem relevant to the document «t a whole and not just cumulative impacts),
69 - Action 19 - rebuttable presumption that at least one headwaters stream must
be preserved.—I didn't see this very significant proposal discussed elsewhere.
This is quite a significant policy proposal, but is discussed only briefly, and the
manner in which it wouid be implemented is not mentioned. I think rulemaking
would probably be necessary, so this should be discussed tether internally, in
particular wifljOW.
74 - Ak Onalitv - this should be reviewed by an ate attorney in region 3 for
accuracy
791ESA - It is not accurate to say that a biological assessment is needed if
species are present; a BA is only required fot ^najor construction activities." I
think it's not clear that a BA is required hens. Since one is being prepared, I don't
think the document needs to be speak to whether it's legally required and
• language should be changed accordingly.
80 - ESA - the document states that file EIS "cannot" be published -until agreement
MTM/VF Draft PEIS Public Comment Compendium
A-487
Section A - Organizations
-------
Privileged Attorney/client commuiacatioa
Pgl|berativg/tiredecisionai
, is reached with FWS. I suggest chafing the language to "will not"-I don't see
the ESA as prohibiting proceeding with a programmatic" EEL Rather, we' intend to
.complete the consultation prior to issuing the HS, so I suggest changing the
lanpage accordingly.
Also, the discussion of the regulatory program tbBay in this section for souse
reason keeps referring to NEPA, 'ts opposed to ESA, Not clear why it's doing that
.since we're supposed to be discussing endangered species.
SECTIONjy - BMVIRONMEyTAL-CONSEOlIENCBS : •
Section A of Oat section discusses administrative costs far more than
environmental consequences. I don't know, but presume that such discussion is
warranted under NEPA. As an uneducated observes, tlie emphasis on cost was
notable, and I raise this only to wy that I can see outside parties citing this as an _
example of how the HS has failed to meaningfully focus on environmental
impacts.
A-7 - inconsistent definitions of streain daracterirt cs
I strongly suggest toning down the repeated discussion of haw much confusion
there is ita the public and regulated community ateut the programs. Such
discussion could be used to challenge permit authorizations and enforcement
actions. This is particularly true of the discussion of uncertainty in CWA
jurisdiction, -which should "be deleted.
B-4 ptreclStream Loss - states that "the agencies will formally make an AMD"
of watersheds. 1 assume we mean that we will "consider"' making such
identifications. Current language should be modified to make that more cleat.
D-l - fill Minimiation - Again, the document states,that until 1998 fill
nanhnizatioii wasn't required. Even if true, such statements could by used by
outside parties to suggest that those authorizations failed to meet the guidelines,
so suggest deleting, that
D-4 • the document states, as it taw elsewhere, that we believe AOC + satisfies
requirements for alternatives analysis under the- guidelines. This is a steang
statement. Is OW on board with it and saying it in this public way? Do we think
it satisfies alternatives analysis lequiremeEts, or just tninitttizatiott?
T>-6 - piscusMQtLofeQSte -1 -was very confused by the discussion of costs at the
end of this section. It's not clear why we are discussing it, and it is of such a
Privileged AttorBey/cMent oonBnunieatian
JMiherativetetedeeiaonal
general nature it didn't strike me is contributing to the discussion in this section
in a meaningftil way.
0-8 Fore.stan'on - The discussion of taking$ claims is not germane or appropriate,
and should be deleted.
H-2 Air Impacts - A very broad and strong statement h made that states"
regulation has "not been consistent with the intent of the CAA." Couple concerns
• first, states are not required to act in accordance with Ae "intent" of a statute,
only the requirement in it applicable to them. If we believe that states have failed
to meet ggpBciMe requirements,
-------
IMIKe Roblnton - RE: H&A economic analyste
Da Robinson - RE: H&A economic analysis
IsOD
From: Mike Robinson
To: "Cindy nbbott|p«.gov".ESCGW.lSMESC;
•Dave Dsnsmoreef»«^ov".ESCGW.ISMiSC; *dvanddl«ie®maI^sp.8tate.wv.u8',ESCQW.ISMESC:
"Hoffman.W«amftepaniaa.epa.ao»".ESCGW.lS!i/IESC;
'Jam«8.M.Tt»m»en()®LRL02jj8ao6.army.mr,ESa3W.ISMESC;
'Pe(*.Greaorv@«paman.^».90v".eSCeW,ISMESC; Hartos, Dave; FWWrER.CWVGW.ISMCWV
Date: Fri, Jan 10, 2003 3:01 PM
Subject: RE: H&A economic analysis
Bill, at al-Wiih everything else going on, IVe only had time to briefly skim John's report Apart from some
concerns with the draft (read an), my recommendation Is that we dont fimfee It at B* flme for teluston In
the DEIS. We just don't have sufficient time to deal with this report-partfeu!a,1y when you consider all the
comments on the EIS Chapters that must be addressed In the next two weeks. I don't see that finalizing
John's report Is a high priority task.
Further, the original purpose of John's report (as agreed upon by the EIS SC), was to provide his mining
engineering opinions to the SC on which sensfivity modeling input factors should bs evaluated by H&A.
These opinions were supposed to be shared with the SC and all stakeholders immediately following the
outreach meeting In October and prior to H&A sofciling feedback through Interviews. Since the need tor
Join Morgan's report was predicated on this approach, finalizing ft now. seems unnecessary and the value
of his report at this point Is likely moot The draft Morgan report has several inaccuracies regarJing the
agencies' positions on ths earlier reports. II is also Incomplete as to detailing all of the Issues that he SO
identified with respect to Inputs, methodology, and assumptions made in evaluating limitations of the RTC
study. Finally, the draft report was prepared before several meetings and discussions occurred to design
We recent Hi A sensitivity study approach. John Morgan was involved in all the discussions of the
approach to the H&A sensitivity study. Tr» report do« not ratal this Involvement or provide a
description of the mutual fl.e:, SC, John Morgan, and HSA) agrtenents on what the H&A contract
uWmsiety Involved.
' !n summary, to rectify these concerns \TOuld require commitment of resources that we don't have to spare
grven the cuirent schedule, i propose we focus on revisions of the DEIS for now. Ths bloom's off the
rose at this juncture.
Michael K. Robinson
Chief, Program Support DMsion
Appalachian Regional Coordinating Center •
Office of Surface Mining
US Bepartmentof me Interior
(412)937*2882 hx (412) 937-3012
3 Parkway Center
Plttsbursh, PA 1SZ20
»> 01707/03 Q1S4PM »>
Atlached is John Morgan's draft report following the economic meeting
that was held in Charleston last October. Please submit comments to my
attention AS AP so John can finalize the report. Thanks! .
V«!fim J. Hofftim (3ES80)
Director, Office of Environmental Programs
EnvirontnanM Services DMtten
U.S. BrwronmenW Pratooftm Agtney
1650 Arch Street
Philadelphia, PA 19103-2029
(2185814-2895
-— forwarded by William Hoftam/R3/US6PA»U$ en 01/07/03 01:34 PM
John Morgan
••JmofBanem
ldwMe.com>
To: VWthm Hoffman/R3WSSPA/US@iPA
Subject: RE: H&A economic analysis
01/07/03 12-J6 PM
M
Please find attached the draft document
John
—Orlghal Messtje—
Sent: Tuesday. January 07,200312:39 PM
To: John Morgan
Subject: RBH&A economic analysis
Jeff brought it up this morning. Sony for the confusion. If you could
senditelectronically.it would help me get it out to the rest of the
group for comments. Thanks!
William J. Hoffman (3ES30J . •
Dtsctor, Office of Environmental Programs
environmental Services Division
U.S. Environments* Protection Agency
1650 Arch Street
Philadelphia, PA 19103-2029
(218)814-2998
John Morgan
Hoffmsn/R3/US£PA/US@EPA
Idwid8.com> ee-
J
-------
j Mike Robinson - RE: H&A economic analysis
"Page3:[
(8 Robinson - RE: H&A economic ana!ysis_
01/07/OS 09:21 AM
Bill,
Tha draft report was Inducted wdh our invoice dated November 14, which
was addressed to A* A!pa*. fiw not sure «*o actually received It 8»
I understand Jeff ties boon reassigned (?).
We Have not finalized our report so please give ma guidance^
John,
— Ortgnal Message —
1" HoBnan.WllBiriitetamai.eM.goy •
Sent Monday, January 06, 2003 sai PM
To" john Morgan
Subset RE: Poia
i submitted an hKW draft of our report on (he Crwfosston
wBieurlfwokSBtorthBtsftort. Sireetwt submission wataw made
some small chanfles tesecf on dfscusatens wBi RTC. iwioomplateftfe
From:
T,
Sent: Monday, January 08, 2003 1 0:41 AM
To: John Morgan
Ce Terry Sarnnons (E-rrall)
Subj«* tot: Ftta
Thank$ JohnI
To whom old you (end Bie lnvotw??77
WSIiamJ.Hoffman(3ES30) ,
t%ectdr,.0^ce of Envlronmgnlal
Em*wimenlaISeivfcesDi«*lon '
U.S. Environmental Protection Agency
1650 Arch Street
Philadelphia, PA 19103-20%
(218)814-2988
John Morgan
<)morfan@mon3anwor To:
fUSEPA/us@r~ -
JowiQ6.com* cc"
Subject-RE: Fata
01A»03 0436PM-
Th8i*sJotin. l
0h«ori01fB
-------
;Mike RoMraon - RE H&A economic analysis
DRAFT
tdv»We.corn> co: "Terry Sammons
01/08/03 08:34 AM Subject Fda
BiH,
I tope you tad an enjoyable Christmas, and a Happy New Year to yew.
As we discussed before Christmas Terry Sammons and I would Ike the
opporbmlty to meet with you and your colleagues fia outllner the final
configuration of tie Fola 4 permit, tills Is the pern* that vw reviewed
with you kit year and Incorporates aw Innovaave stream restoration
and
landforrning,
I mm not sure who you would recommend that attends but It might include
rich
Karnpf and Dan Sw««y.
I would fc to propose a meeting date of January 14 or January 23 at
your
office in Philadelphia.
I look forward to hearing tern you.
John
(See attached foe: MWCI Analysis of MTR-VF ieonomtaMtoc)
Morgan Worldwide Conrallana, toe.
Analyjii of Mra/VF EJS Bconomic Impact Stttdies
October 22, 2002
Introduction
This letter report prepared by Morgan Worldwide Consultants inc. (MWCI) is an analysis focused OB
work convicted since 1999 regarding the economic impacts of restrictions on Mountaintop lifining
Valley Fill opsratioBs in Apftlsstm. R also addressee the eauent attejqpt to essentially disregarffliis
work and teplaoe it with unsubstantiated date to produce difierent results wi&in tte next two months.
Conclusions
RTC, with direction tram the BE Steering Committee, endeavored to estimate the effect of various valley
911 restrictions on the quantity of coal potentially available for mining its objectively as possible, going to
great lengths to prevent hmnan blaslrom sway&ig results one way .or another. The results of tlas
unbiased approached are bamg questioned, and OSMp-oposes to solicit input from coal industry
representatives. MWQ has reviewed the Phase! workmddetenBifledthiitisprermtaretodisrjissttie
results portrayed in the Final Phase 1 Report.
H& A, w-lth direction from Ac EIS Steering Comrmttcs, used the unbiased remits of the RTC Phase 1
Report as irjput lato their econoizietrie models in sa effort to ^edict&e regional econoimc impacts of
various valley fill restrictions on regional cod production and coal-derived power generation through
2010. Themcthodologie5andrcsultsofthcH&APhas=2workarenotinqucstion,butH&Ahasbein
requested by OSM to conduct a sensitivity analysis using input solicited ftem coal industry
representatives. MWCI does not question the integrity of Hil! & Associates, Inc., but questions the
validity of information supplied by coal industry representatives on such slsort notice. This is not to say
that co^Undustry represestjgrives will in^nn'onal^' provide bad information* but &at they probably do not
have defensible answers to effects on their respective End/or collective MTR reserve base and operating
costs.
eoftheHiase landHiase 2 results was to provide input into the Phase 3 work, a
much more detailed regional econometric modeling efibrt conducted by West Virginia University College
of Business and Economics. This Phase 3 study has been canceled. MWCI has not determined whether
01 not this Phos; 3 work should be conducted as originally envisioned.
MWd pats for flse following
1. Do not puri-ue the camentOSM direction of sensitivity analysis based upon input solicited from
oealtadwrryrepresentaSves. hste»drffhrowingoirtfheiiesBlts
-------
b,
DRAFT
acre restriction probably ht» the most meaning in sensitivily analysis sinta it appears to be on toe
"ksire edge" and cotdd go one way or ano&er in terns of Phase 2 output.
3. II" OSM and H&J\ have budgeted for two more model runs, MWCIsuggcsls that tiicmput
s targeted DIK
Tha delayed effect of rcsijicrtons as opposed to the instantaneous effect currently
assumed, using percentage reductions currently in piece; and
Ran the model assuming that mountaistop mining effectively halts, along die lines of the
tech team study which chimed that 92% of all nioimtaictop mining would cease m a
result of proposed valley fill restrictions. There is very little marpn for error in (his case,
and it would certainly bracket the range of possible outputs. Additional work associated
with this scenario is fc re-definition of all coal reserves at MTR sites in terms of
alternative mining methods.
If interviews vv-iLh coal iridiKiry representatives proceeds and the scnsitiwty analysis is carried out
with this input to Phase 1 modeling the following concerns need to be addressed:
a. Coal industry representative ire not likely to have probation reduction, add-baek
reserves, and effects on economics ibr their operations that correspond to 250, ISO, 75
«nd 35-»ore SB restrMoas, TheywfflrmwaWforvfctlevdofresfrictionwiB
materially affect their particular siuiafe'on, and H&A will need to correlate these levels of
restrictions to represent a 250, 150, 75 or 35-acre fBL
CuirentMTRoperaticms will not experience an Estantmeo-as change in operating costs,
but changes to equipment spreads as a result of M1"R reductions and mining method
selection will have an impact on operar&ig costs.
Changing too rsaayinjffitssliiiultaBeoiislyimght make it impossible to determine which
variable produced the largest impact on mode! outputs. Thki"e*3uke& very carefifl
consideration.
Before B&A actually runs the models again, present fee changes in input to menibersof
the steering committee we review.
b.
d.
Analysis of the Phasel Report
RTC prepared tiie Phase ! Report under guidance from the ETS Steering Committee regarding
msmrxioiopcs for estimating the Effect of Various Valley Fill Restrictions on the Quantity of Coal
Potentially Available for Mining. Ate this report was published RTC was criticized for its
methodologies by some members of the same Steering Committee. These criticisms suggested that:
1. RTC erred in base seani clevan'oiis iised in the regional GIS database with coal seirns identified
throughout West Virginia; and
X RTC over^timated the volmne of fill space available upon L-npicmer.tation of various restricticjns
at valley fill sizes, thus overestimating the residual quantity of coal amenable to MXR Mining
methods upon irnplementation of various restrictions in valley £11 sizes.
The intent of the RTC approach was twoiblt
* Produce a regional GIS database with coa! seams identified throughout West Virginia, and
combine this database with topographic inforniation to produce a theoretics] (virgin state) volume
of coal available lor mining. From this theoretical volume adjustments would be made to account
for coal already mined toot the ground, ia fte process of being mined, and coal reserve! made
inaccessible due to proximity to incorporated towns, rational parks, etc. Remaining theoretical
coal reserves would men be subjected to mining engmeeringparametcis to determine amoiauility
to Mountaintop Removal/Vail ey mi methods, thus creating a theojetical inountaintop mining
reserve base.
DRAFT
* Produce a regional GIS database with watersheds available to accept excess spoil generated by
Mounfcintop Removal mining meBsods. feflieBricoiisBainedcBeBotedtictianinwater&ediize
wm made, i.e. trejodfe Hiryden roHag, astoe permrttiaitnctiee.. Four watershed son
eonsframte were then tafosed on tee available watersheds; they wot ISO, 150, 75, and 35-«cre
Irmitatiojis. Fweiohot«hi»ri^corBtt»ir*RTCe«amtedtheperew&poftnountateop
mining coal resarvra effeeHvery stei&ed due to tasaf&ient valley fill storage capacity. Ergo the
coil could be mined economically if there were adequate vtUey fill canaoiry available, but a
portion of these economio reserves become uneconomic by MIR methods because there is no
way to dispose of all the excess tpoB.
Theoretical Momitaintop Mining Reserve Base
During the presentation of RTC's Base 1 reailta by OSM.on October 1 7, 2002, a slide was shown ofa
parfeMtar location where 4e RTC r«gioB«l coal seam approach wa« oompared wr4 West Virginia
Geologies] and Economic Survey (WVOES) detailed information. The differences to basal seam
• elevations as related to topography was pointed oia^ implying dirfeences in coal t-eservesand
physiographic features ti&t influence £he economics of MTR. methods whw ironing engineering
parame^s are>sppli0d to a cool seam or series of coal seams and associated mterburden and/or
overburden, ttis, according to fee <3SM represerAtive prwating KTC't work, is an illustraHm of the
flawed approach usedby RTC to create afteoretical motmtaajrop mining reservebase.
MWO is not convinced that a singular example of dlrlereaces obtained when comparing regionally-
derived data witi site-specific data is indicative of the entire Phase 1 level of accuracy. Drawing general
conclusions from such a specific oomparjion tt poor practfee. to fl» owe ilhafrated by flie OSM
prwenta time may very well be substantive errors one way or another, bia the US Steaing Committee
agreed with RTC flat on a rsfioaal teas, errors of omission wifl more or less equal errors of commission
and the overall integrity of the regioually derived database would serve the purposes of the intended
i%gi0nal analysis.
If OSM andAjr RTC wish to qualify tte Phise 1 resata or ^oantHy fls errors inherent to RTC*s approach
tteoastatfatiealryviuMsarapBngproeeduraiieedstobetaiiteoienJeA Thfa procedure would oertoialy
encompass more ton one or lor that matter several, comparisons of regionally-derived data with site-
spccific data. T!iis satistica'ly derived error would then be tlie basis for subsequent sensitivity aiialyses
rcgcrdmg input mto lie H&A models, ramer fen mtToducing unsubstantiated data solicited from coal
representatives as the basis Bsf sensitrvi^ analyses.
Furthermore, KTC sssets ^iat its me&odology has been employed since 1998, when ".. .an tnltM series of
seam occurrence, thickness, and quality maps were produced. Various geologists and coal operators
familiar mth coal operations throughout the state reviewed the maps. Interpolation bounds were
modified ami new data pointe were added based on these reviews. This doia was used to revise the map
output Th^ revised set of maps was subjected to public scnrtiny by way of their use for tea assess-mcTit
purposes. As n result, where appropriate, interpobtion bounds have been modified and new data points
have been added to agam revise and correct map output. Tnis is an annual con«ction process laid has
been completed twice." 'fnis is another indication that it is prematui'e to dismis-3 the results pratraycd in
fte Final Phase 1 Report.
Throretical Valley Fill Capacity
During the same OSM presentation M October 17, a slide was shown of the ISO-acre watershed modeling
results. ThesameOSMprescnteTproccedrftodcscribehowsomeofme ISO-acre watersheds identified
by RTC were nonsensical with respect to a watershed by definition and watersheds witliresiwct to
consideration as potential valley fill sites. RTC' s Phase 1 results indicated that for flic 250 and 150-am
size restrictions, less thin 10% of the available space is actually required for valley fill. It is unlikely that
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DRAFT
DRAFT
RTC's methodology is so fir off flat the isolated discrepancies pointed out by the OSM presenter win
explain away the remaining 96% of fill space available for valley fill according to ETC.
RTC responded to critiofatH of their watershed modeling methodology in the letter memorandum from
ETC to Mr. Bill Hoffinan dated 7/14/02. During OSM's presentation of RTC's result* on October 17,
2002 it was pointed out that some of the 150-aere watersheds crossed streams and thus were not valid
watersheds by definition, to RTC's 7/14/02 response to this criticism fttt issue was specifically
addressed wttereby stream buffers incorporated into the database "...spBt the fill in two and only &at
portion ftat touched the mine would be considered oseable." Furthermore, RTC responded to v*tioi»
watershed modeling incoraistendes wflh regards to regionally-derived data compared with site-speeific
information. Meed some watersheds -were withdrawn from consideration as valley filis by RTC when
conducting fliis comparison. More importanfly, bflwew, was fetohirfm of mtereheds previously
discarded by the same methodology when site-specific information indicated a potential valley fill site
had not been identified within flic regionally-derived database. Thus the assumption of errors of omission
approximating errors of commission on a regional basis was more-or-less validated. MWCI finds it
misleading that the OSM described how some of&e ISO-acre watersheds identified by RTC were
nonsensical with respect to a watershed by definWoa and as potential valley SB sites, without revealing to
the audience RTC's response to these criticisms.
Effect of KB Restrictions on MTR Reserves arid Coal Available by Alternative Mining Methods
The estimated effect on mount&intop mining reserves generated by RTC is summarized as follows:
Base case unconstrained (Prejudge Haydea) MTR cos! reserves: 1,111,223,494 tons
MIX Coal reserves economically tntaeablewMi a 250-acre restriction: $19,512,131 tons
MTR Coal reserves economically tnineable with a ISO-acre restriction: 852,829,517 tons
MTK. Coal reserves eeomartoaUy mineable with a 7S*ere restriction: 600,324,203 tons
MTR Coal reserves economically mineable with a 35-aore restriction: 252,053,489 torn
These figures represent MTR coal reserve reductions of 17,25%, 23.25%, 45.98%, and 77.32% tat the
250,150,75, and 35-acre cases respectively. The MTR percentage redwtiou mote were provided to
mu& Associates, Inc. for input into their models. Thrac percentage redactions apply to coal reserves
economically mineable by mounts&tep mining methods and do sot isolude coal reserves that can be
added back in at flu mountatoMp «tes by miaaia some of the same coal using alternative mining
methods. The togte here kteaMhoii^ 17.25% of fccotl is i» longer reco^
by MTR methods (for example), a certafe peremta|e of cool in this 17.25% can still be economicaBy
recovered using other mining methods including contour, highwall, auger, and/or deep underground
mining methods. This an inverse relationship was established at mountaintop mining sites whereby
consequential redactions in MIR coal reserves resulted in progressively increasing coal reserves
amenable to alternative mining mctliods at the same sites. Thisrsstitts in the following revised reduction
percentages for coal reserves at defined MTR sfes:
Total Reserve (MTR SHe§) Percentage
Unconstrained
250-Acre Restriction
ISO-Acre Restriction
75-Acre Restriction
35-Acre Restriction
Tons
1,942,384.821
• 1,788,828,988
1,701,837*28
1,481,821,884
1,201,118,213
Reduction
0,00%
9.05%
42.38%
23.71%
38.16%
possible new mines, albeit with a two-year delay to account &r engineering and permitting.
understands fiat these percentage reductions apply only to mountair.tup mining sites by definition, and ,
cod mining activities elsewhere in the region ate not represented here. Other sources of coal throughout
the region are included in the H&A proprietary database however, and it is these other sources that will
make up for some of te lost production capacity indicated above.
An alysis of the Phase 2 Report
The intent of the Phase 2 Repcrt is to estimate tie effect me afore-mentioned valley fill restricticns have
on me regicnal coal milling and coai-iired power generation fadastries. Hill & Associates, Inc. utilizes a
proprietary database consisting of all known currant coal producers and suppliers nation-wide, and nation*
wide coal reserves still in the ground subject to firture exploitation using proven technologies. H&A
applies proprietary production cost data. &om these current coal producers to generate cost carves
representing the supply and demand economics of current and future coal mining activities. With such a
comprehensive modeling mechanism H&A is comfortable with estimating the eftest on supply aad
demand economics when rarious inputs to the models are changed. These inputs include, but arc not
limited to: coal supply &offi various domestic and foreign producers, environmental controls imposed on
coal Ifced power generating plants, and rale of return assurrrp&ms for capital bvestment These inputs
are oted in this letter report due to their prominence in the H&A Phase 2 modeling effort. Outputs
supp ied by H&A modeling, essentially the results of Phase 2, include the following:
Coal tonnage
Direct coal employment
^uine capacity capital expenditures
Average coal price, fob mine
Average wholesale price (lambda costs)' of electricity
Megawatt-Boms t*f generation
Environmental clean-up equipment capital expenditures for utilities
Mectitcity capscity investments by type {construction, equipm&it, e&.)
Major coal mi&ittg costs by category
Average U.S. wholesale price (lambda costs) of electricity
In this letter report, and in the context of the US study region, we win ibcus on ihe results of the &st Hw
of these outputs.
Coal Tonnage
As states previously, H&A utfl&Bes coraprshesaive proprietary databases to estinmte the effect certtia
activities might have on te economics of defined regions. !n this case the region includes West Virginia,
Eastern Kentucky, and Virginia. One of the things the H&A models are capable of is accounting for
sub$titutio& if for some reason a coal producer drops out, a coal producers' cost goes up, or the demand
for a particular coal type chmgcs. Thus the percentage reductions obtained from fte RTC Phase 1 work
can be mputmto UK H4^rrK)de!s,ard the mmiels arc able to estiiriate increased production from one
producer to raala tip ibrtlw decreased prodtietion&om another producer. IMslocreased production may
come from tic sanK region, wruch is the tcpic of mterest in this case, OT it may corr.e from a source
outside the region as a response to classic sitpply and demMd economics. Hbte timt 1he H&A reserve
base pertaining to various nrteing methods is completely ditSrent and iadependent of the RTC tonnage
fibres used to derive percentage redactions.
For modeling purpose* the reserves no longer awtlsbte by meuntstotop njinfttg but added back in using
alternative mining methods were treated by H&.\ as coal reserves added to the supply database as
1 IB Qm contfflH 6f BBS fctar Mpert MWC1 mmm &al tawfcd* easts is * term (teserffctof fte oo» of fia ne«
pmfaeuA ft(K» £fXf*£a!tAt arils at fit flk
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DRAFT
DRAFT
fti this fashion H&A is able to take the RTC output wMch represents effects on coal production from
defined MTR sites and estimate the amount of lost production capacity feat is made *^j from the same
region. Not all of the lost laptscity maybe made up from the same region; if for example, it mate better
economic sense to import coal from outride theregJen. Tie {Mowing table shows ftr production lost ftora MBt mtoei hi {he one region.
As pat of fce H&A ou^«t it is e*Wttt iat «Sti or •without wlley fiE tejttiistions the nrtntog cupsoityof
fl» region is in fedtae. Between2001 and 2010 Bieaimnal cod produetlonftMnfterejion,u»lBf fhe
1 5% ROIuncorjitraincd base case, decreases by 25%. 'Ms appears to outweigh the regional peiccntage
reduotions shown alwve brought nboat "by possibte irarrioSom on Tjflley filb.
Oirect Coal Employment
fetpacts of potential valley fffi lestrictions on direct einployffifirit fer fibe coal indastxy were also provided
by H&A and are summarized below:
H&A Suranwry Employees 2001 - 2010
e-15%ROI
250-Acre Reatiiolion
150-Acre Restriction
7 5-Acre Restriction
SS^tetRftiirlcllon
Reduction In Employees Percentage Reduction
2001-2010 From Base Case
16383 4,078 0.00%
1S.7M 4^81 . 3.63%
18,778 4,735 3.69%
15,701 4,737 4.18%
15.1S6 S.011 7.82%
Once apiti it appears 3^t &ie szttidpatied decliiie in eotl pro&iction fitffi &ls tfiglos -ment levels drop from 17,845 in 8X11 to 13,767 in 2010, a reduction of almost 23%, Hie
aigjaet of reduced et*§>loyrtie£tt as shown above in the percentage rfidactiori Irom base case wiH
nevertheless feave a negative eeotffimic irapact on flie re^on, bat &r less of as ia^jact than redactions ia
We^ Virgmia coal industry en^loyimiit reduc^oss ra^erienced dmii^ tfee past 2i) yearsf1.
Mine capacity capital expenditures
Hill & Associates, Inc. also has the ability to estimate mirce capacity capital expenditures associate
• replacement equiptaent at existing operation and new equipment for new operations. THs output for the
EIS study region within the specified time fine is shown below.
H&AIWino Capacity CAPEX
BaseCase-15%ROI
ZSTMore RettteBon
150-Acre Restriction
75-Acre Resiriction
3S-Aet« RKMrfetion
Totals
Vests 2002-2010
»,138,120,000
$1,782,090.000
$1,72S,9«M»0
$1,920,400,000
$1^69,140,000
Percentage Reduction
From Base Case
0.00%
18.69%
W.31%
In the case of mine capacity capital expenditures a comparison of percentage decrease for the base case
between years 2002 and 2010 is not provided elue to the roberent varitoHity and cyclical natsre of capi^l
expenditures. However, the declining reserve base in the study region, as shown by the coal tonnage
results presented p^vicusly, sijg^c^s flmt for the base case 83 treated within fte Irarncivork of the H&A
modding, the level of mine capacity capital expenditures \vill decline accordingly. None the lets, {he
percentage reductions fiom base case shown abo-vc will obviously have a negative impact on regional
Average coal price, fob mine
Another output £rovid3d py H&A is the expected coal prices lor the variow options and at certain points
in time. ' This output is sumn^Bi^&ed Ddowi
HiA Summary Coal Price 2002 -2010 Reduction in Coal Pries Porcontsge Increase
Average Won 2002 -2010 From Base Case
BaseCsse-15%ROI S24J26 $0.83 O.OO%
mt-fiem RsttrWon • $24.75 $1.68 1.98%
150-Acre Reslriction $24.63 $1.66 1.78%
75-Acre Restriction S2S.01 S2.39 3.08%
3S-A»e RestrtaSon . $25.68 $3.63 5.54%
TMs output of the Hi^ modeling also shows tat v.itrdn the time frame specified, and vvithin the EIS
study region, the tee case price of coal declined by 3.40% before any consideration of effect from valley
fifl restrictions wEStaleea into account. l^epercentagetGdncrtos&ombasecaseasshowna^ove-wili
rjonetlielcsa have a negative impact on coal producers' bottom lines.
Average wholesale price (lambda costs) of electricity
.taothci' H&A Ptase 2 output is fee effect of the afoi^mentioncd volley fiDrrairictions on average
wholesale price (lambda costs) of electricity generated in the study region. The range of price
'diilereiitials is &is case is eoMideral^y less ^an dlfoeiiees Is coal tdmtages tnd direct er^loyraast, and
is surflnaariaed below for te period 2002 — 2010:
^MiM^ae.c^iniH'^^
jjrodncfeM teiasM fc Sw »»ms fee fiame liy $0%.
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Section A - Organizations
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H&A Average Wholesale Electricity Pries
2002 - 2010, US dollars pa- KW-Hr
Base Casa - 15% RC1
ISO-Acre Restriction
78-Acte testifcfion
36-AffB Restriction
DRAFT
Cost lncr«s»2002 - 2010
Average US Dote* put KW-Hr
0.02077 o.«»sa
0.02078 0.00308
0,02074 0.00294
0.02074 0.00317
0.02188 0.00156
Proentago Increase
From Bass CBM
0.00*
•0.08%
-0.18%
-0.14%
8.80%
-^ stated in fh= H&A Final Report, "..JtKSvidcntftat the der^dty prices are quite insensitive to the
MTM7VF narfrfctiixa, «k»>fag diSteaae* ofonly Ki-2%, or 3% at (he mmrimnin''
th.'Ji specific cornparisons made at difTercn! points in time v/iti the exception of tlw 3S-3 ere case.
Consistent v/ith results obtained with cod tonnage aid direct employment, &s anticipated 1.15% increase
to (fee hae etsc ftrao M,01971/KW-8r to 2002 to S0.02276«W-Hr ill 2010 mstOaifaWpaai changes
induced oy potential \-alleyfillrjsirictiorisnlaced on tl:e raountaintop mining scgmcrit of the regional coal
infa*y, witi &t aatg6n& beteg fla 35-aare cast
Tie work conducted hy RfC ajd H&A to to* wsntei ia flw jiMbolioa tf ftul Phase i «adHa««2
reports. Both con'jactors acted under the direction and guidance of the EIS Steering Comrnittec during
methodologies employed within the context of th;ElS study region. MWC1 rsali-zes the benefit of
corsdocting sensitivity analyses for the purposes of identifying which factors or input parameters, when
defciisfblc logic 01- rrasoning, becomes more of a what-if type analysis rafl:cr than a sensitivity analysis
conducted from ari accepted baseline. The E1S work has already spanned years, and RTC and H&A have
had the benefit oflnpm from niany qualified profrasionals during the plerjaraticm of their PhiBc] and
Phase 2 itpoits, respecth^ly. ^&eftimsT6pl8G^gilieseyea£sofe£^rtwi3iacra
to produce a diffaent answer, spend the firrffi and money imfestanding and qiialifying the results
Rcfcrjuces
HMs report &aw$ prlmaiily upon 3ie j^iUfm^ig soiffoes of iaformatJosi:
* Effect of Various Valley Fill Restrictions on the Quantity of Coal Potentially Available for
Mining, Final Report by Resource Technologies Corporation (RTQ dated 10/2W1. This it also
known as the Phase 1 Report;
FiiialRepMtpreptredbyHill&Associates.Inc. (H&A), dated 1»12'01. This is also known as
the Phase 2 Report;
Letterraemorandim&ornRTCtoMr. Bin Hoffinan, I JSEP A Region 3, dated 7/14/02, defending
methodologies employed by RTC during prepaiaoon of the above-mentioned RTC Fical Rcpcrt;
Presentation of the RTC Final Rerwrt by OSrVKE, and presentation of the H&A Final Report by
H&A at a meeting convened in Charlestcm, West Virginia on 10/17/02; and
Conference call between MWO, OSMEE, H&A, Bid OSBPA <»! 1W22AJ2.
DRAfT
At addition to these sources of infcrrr.ation used fat this analysis," reference is occasionally made to
previous work eonducted on to topio'of testriotions oaMountateop Mining VaHetyFiB qjerafloM in
Appalachia.
MTMA/F Draft PEIS Public Comment Compendium
A-495
Section A - Organizations
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Jaimary 13,2003
N0.661 P. 4/4
Pre-decisional
tteliberative Process
Not for Ue'.ease
their mvolvemcnt
JO Cnorfitatai fgview af cronit aonlioBrni-r One of (be critical issues in the
pomillics process is coorfinilioasroOES fee stslc and ftdcrelagoida Hasta*
regulatory sgenc^^ tic praCTtappH=mt«i4 the cittens who desire to psrticipate in
ito pe»ft review pocess »a4 tstefty oa flie legisSetof federal participation in the
review of application for afiuntaiajQp »s!o3BSft<3lley &S app3i6a2iG8£. Tbe DBIS
oawidy lacks reijafcitt (tebfl to <«s im*.
The foregoiaj Est higiligha k=y prograurastic issues raised by tie Sttts throajjau! fee IB
process. WMet^EIS should
wotiU be appropriate for the
We ars hopeful »^t tie work s«sioafto's»«efcwil!ajcccssfujly address fte concerns set fijift
C-v,
DivisiEnofMningandEeclanarion
MBCta
Steve Williims, Director
U.S.Ksh and WS^nife Service .
John Craden, Esq., DejMtyArastmt Attorney Genera!
MOWTAINTOF JBMNeA'AliEY OTX BHS
Background Information for Commonrcations Team
January 16,2003
Issue: What is the current schedule for issuance of the mountaintop mining/valley fit) draft
Programmstk EnvirotumraBl Impact S»em«t (DHS)?
Background:
• Mouatm&top rei&ova! 009! mi&btg is a sucS&oe mining technique practiced in the steep slope cosl
fields of central Appalachia ftat involves removing mountain ridges to expose coal seams and
placing the associated mining overburden (access spoil) in adjacent valleys. These exc-ss spoil
disposal sites are called "vailey fills."
• MotmtfiMtop mioing/valley fills occur i& steep tBrrai& *v^ier« there axe Hmit@d disposal
alteraatives. Cmis&iictHaaofvaHeyfUlsresultsiiifiiUnghcsdtt'aterstreaffls. Ths DEIS estimates
that as many as 725 miles of headwater streams have been buried under valley fills in
Appalacbia. Permitting revie\vs conducted under the Surface Mining Control and Reclamation
Act and the Cteim Water Act are being impleraeslBd to provide protection fbr human health and
the environment.
Two inv/suits in Federal District court for Southern V/est Virginia, 7!riJgf v. Sofertsun (1998)
and i£efxAft:£&mf J&r the C0tnm0ttweo8& v. SSvenbsffgh (2662), have hi^ilighted certain issues
related to Federal permitting of surface coal mining operations that result in valley fills. A key
issue in both cases has focused on the Corps authority to issue Clean Water Act permits to
discharge excess spoil Into waters of the United States as "fill material." Plaintiffs in each case
have alleged that the placement of excess spoil in waters is more properly regulated as "waste"
under CWA Section 402 and therefore, can not he permitted. In May, 2002, EPA and toe Coi-ps
issued a final rale defining the term "fill material" darirj-ing that excess spoil is properly
regulated by the Corps under CWA Section 404 consistent with the agencies' long-standing
interpretation
• In December, 1998,2S a provision of a settlement agreeinent in Bragg v.^otertson, El'A, COE,
OSM, FWS, «hd fl»e State of West Vir^Bia agreed to "prepare an EaviroamaMal Impact
Statement on a proposal to consider developing agency policies, guidance, and coordinated
agency deeisionmaking processes" to reduce the adverse environmental impacts from surface-
coal mining operations in Appalachia. The agencies further expressed their intent to complete the
HS "withta 24 monfts," i.e., January, 200!.
• Sheel998,«he§i«Mtah»veb9ffiiiwkfagt0gettffltoprep«
that has included several public hearings. In August, 2002, the Secretary of Interior indicated in
a statement to fcc press that the agencies intended to publish a draft EIS for public review and
. comment by February, 2603. (The agencies* schedule Ifer meeting this commitment Is attached)
• InMay, 2002, the Federal District com in £FTCv.^iV£ni-»7S*enjobed the Corps froraiscuiiig
"any fhrthsr Section 404 permits within the Huntington District that nave no primary'purpose or
EXHIBIT 62
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Section A - Organizations
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use but fl« disposal of waste, except dredged spoil disposal." As a result, the Corps has not been
approving new valley fills in the coal fields of southern W and eastern KY, except ta limited
circumstances where the fill is associated with a "constructive purpose," e.g,, a mad will fee built
on top of tJw valley fill. The Federal government has appealed this deelsion in the Court of
Appeals for the 4* Circuit. Previously permitted mining operates are not aflected by the
injuitctian.
• The Appeals court granted the government's motion ftr expedited review in (Ms case in
response to the concern that ongoing mining operations discharging excess spoil under the Corps
current Nationwide permit #21 wotud be forced to stop their operations when that national
perm it expires on February 11,2003. DOJ requested that Hie court mle on the sppeal before
February 11 so that ongoing mining operations couM be reaufliorized under the newly issued
Nationwide permit #21 te response to safety concerns and anticipated harm to mining companies
and meir employees associated with any disruption of ongoing operations.
Communications Issues: The following questions begin to identify the day issues that we anticipate will
be raised when Hie DEIS is published for public review:
* . The agencies committed in their 1998 settlement to complete tne HS in two years; why has the
HS taken so long to prepare? Is this DEIS fully eonjistent witti NEPA requirements and does it
fulfill the agencies' comraisneitts under the settlement ap-eement to identify actions to minimize
adverse environmental impacts associated with surface coal mining opefatio&s?
• In response to a 2001 FOIA request, an earlier version of ths DEIS and associated technical
studies wen released to the public and subsequently placed on the Charlcsum Gazelle's web
site. The c\ment draft is different in several important respects, including the cliaracterizition of
aheniarive actions being considered in the DEIS. (The earlier version focussed on evaluation of
alternative restriction! for limiting the size of valley fills as a way to limit environmental
impacts. The current version is focusing on alternative "progT^mtnatic" hmprove&eMs tmder
CWA and SMCRA to ensure more effective environmental protection. Why were these key
A key conclusion in the EIS is tliat discharges of excess spoil in waters of the U.S. associatad
with valley fills are properly regulated by flw Corps under C W A Section 4
-------
Cindy Tibbott
„*«,„.-««-.*««» A.,
0«22«003 09:38 AM
To: mrotJ&BE0@osmre.8av, dhsrto8@oainra.sav,
,»nsy.rtlil, [ooter®osrare.gov,
tf. P8cJU3regory@spsmffldl.epa.sov
cc: Davo Ds>nsmore«5/FWS/DO!@FWS. Diane
EoiVtsn,'ARLJS9/P,VS/DOI@rVVS
Sufcje*. Has Petra WxadSWy
Cathy VtfsaWand end Or. Petra Wood of the West Virginia Cooperative Research Unit (USGS - BRD), who
authored some of the terrssirial wildlife studies for thaEIS, have just released a study entitled "Ceruisan
warbler mlerohabUat and landscape-level ha&itat characteristics In southern West Virginia in relation to
rnounlaintop mining.'va!ley Sis."
Tne issue of MTM.VF effects on cerule-an v.-arblsr habitat is more important now than If appeared to i» at
the time of earlier drafts of the EIS. The Southern Environmental Lav Carter has psbtioned the Fish and
Wildlife Service to list rhecar^ean warbler as thrsstened and to designate critical habitat The Service's
80-day finding on the petition listed mountain.top mining as one of the threats So this species, and noted
that 'unfortunately, the area of the county wtti the highest density of ceruleans is also In a coal-raining
region %fidr% mountalntop removal mining is pfac&&4."
VW» may want to adU a senteno* or too to ths HS » uptjste flie fenat frsgmentatfondlsoutslon based on
the findings of this nev; study. Here are some quotas from the abstract Territory placement on ridges
v,' and habitat and landscape variables, Tf,ls study svas not funded
through tits EIS process, but through ths USGS' own "Species at Risk" program. The report has been
peer-reviewed and officially approved for release by USGS.
If the Stoning Committee agrees trot information about these results should be mentioned In tie DEIS, I
could vmte a couple of sentences and Sgure out v/here they should be placed in the document. I have an
electron ic copy of tlw report if anyone would like to read it; hm/ever, its a fairty large file 2nd! don't want
to overload the laptop computers of those of you in Washington.
From:
To:
Date:
Subject:
We4 Jim 22, 2003 11:20 AM
Re: New Petra Wood Study
(See attached file: FtoaJ_CBR.W_Rqpt_Jaa10.pdf)
"DAVE VANDE LMDE"
To:
.
Subject: Re: New Petra Wood Study
01/22/2003 10:12 AM
please fonvard aae a co|»y
David L. Vaafle Ijnde
West Virginia Department of Emnionnientil Protection
Division of Mining and Reclamation
lOMcJmktoEd
Nitaj.WestVirghui 25143-2506
Ph. (304)759-0510; Fax (304) 7S9-OS26
E-mail: dvandelJnde@m«S14^,state.wv.tis
Attachment Fik l.pdf
2.822
BXHUBITfiS
8X11181764
MTMA/F Draft PEIS Public Comment Compendium
A499
Section A - Organizations
-------
CERtnuBAN WAHBLBR (DBNDROICA CmwMA) MICROHAMTAT AND
LANDSCAPE-LEVEL HABITAT CHARACTERIOTICS IN SOOTBEBN WEST
VIRGINIA w RELATION TO MOBNTAINTOP MINING/VALLEY WLLS
final Project Report
December 2002
Submitted by:
CATHY A. WEAKLAND AND PETRA BOHAU. WOOD
West Virginia Cooperative Fish and Wildlife Research Unit
USOS Biological Resources Dwisiott
and West Virginia University, Division of Forestry
P.O. Box 6125, Morgantmm, WV 26506
Submitted to:
USGS Biological Resources Division
Speeies-At-Risk Program
CERULEAN WARBLER (DEXDRCUCA CEKULEA) MK:ROHABITAT AND LAXDSCAPE-LF.VEL BAMM
duRACizmsncs m SOWKESN WIST VIRGINIA » REumoN TO MOUNTAWTOP
MnnftG/VAUSYHLLS
CAravA. WEAK!AND AM) PET^BOHALL WOOD, West VirsiniaCooperaHve Fish and
Wildlife Research Bait, OSGS, BRD ad We* Virginia TJnfrertlly, BMston at Forestry, P. O.
Boi 6125, MorgsntowD, WV 26506
ABSTRACT
The Cerulean Warbler (Dendroica ccrulea) is a species of conservation concern in eastern
North America, where declines in its population have beoi doctmeated over &c last senrera!
decades. Both habitat fiagmcritation aid incrcsssd edge any negatively impact Cerulean Wajblur
popuktio&K A high proportion of this spedes' papuJatkra OCCIHS In S^ested areas of sotifiiem West
Vtrgima, where it may be tibzeateiied by toss and degradation of ibrested habitat £k>m tnountaintop
•miflin^valleyfills(MMVP). We«to»i»edt!jetofi«aoffi)resttagmaitatioo(iniiaracBta-thB
effects of fragment »fee and responae to edges) on Cerulean Warbler densities from a landscape
perspective using territory mapping techniques and geographic inibrrcatioa system (GTS)
technology. Specific objectives were: (1) to quaoti^ Cerulean Warbler territory density and indices
of reproductive success in forests fragmented by MTMVF raining and in relatively intact blocks of
forest, (2) to quantify landscape characteristics affecting Cerulean Warbler territory density, and (3)
to quantify territory^tvd characteristics of Cerulean Warbler habitat. The study area included
portions of 4 counties &i southwestern West Virginia. Territory density was determined using spot-
J&apping procedures, and r^mductive success was estimated using the proportion of mated males
as an index of reproductive peribrmanca We quantitled landscape characteristics (cover types and
fragmentation metrics) from digitized aerial photographs using Arcview15 with the Patch Analyst*1
extension and measured microliabtat characteristics on spot-mapping plots.
Territory density of Cerulean Warblers was pester in intact (4.6 ten/10 ha) than fragmented
forests (0.7 tcrr/10 ha), although mating success of males was similar in both (60%). Habitat
models that included both landscape and naerooabitat variables were the best predictors of territory
density. The best model indicated that territory density increased with increasing mag density,
percent canopy cover >6"-12ra and >24m, and distance Sam mine edge. Models for predicting
microhabitat use at the territory level were weak, indicating that microfaabitat characteristics of
territories were similar to habitat available on spot-mapping plots. The species did not appear to
avoid internal edges such as natural canopy gaps and open or partially-open canopy loads.
Territory placement on ridges was greater than expected and in bottomlands (ravines) and west-
facing dopes less than expected based on availability in both intact and fragmented forest. In
fragmented forest, 92% of territories occurred only in fragments with ridgetop habitat remaining.
Preference for ridges suggests that MTMVF may have a greater impact on Cerulean Warbler
populations than other sources of finest fragmentation since ridges arc removed in Ms mining
process. OeoeraUy, our data indicate that Cerulean Warblers are negatively affected by
•mountaintop mining from lots of forested habitat, particularly ridgetops, and from degradation of
remaining forests (as evidenced by lower territory density in fragmented forests and lower, territory
density closer to mine edges).
MTM/VF Draft PEIS Public Comment Compendium
A-500
Section A - Organizations
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Kathy Hodgkiss
01/27/2003 0126PM
To: Gregory Psek/DCftJSEPMiS^EPA, JWanlie_p®rNer^6ws^jov,
ce: Ondy Tftjb0tt@fws.gov, dsve
wsrti.tsudol8hqOJ
.amiy.mil
.)sv rtHinter@maSI.dep.6t8te.wv.us,
Owe HwtM «DHARTOS@OSMRE.GOV>, Jeff Cotet
-------
DRAFT, DELIBERATIVE, PKE-DBCIS1ONAL-DO NOT DISTRIBUTE OR CITE
« Press pawl 3/14.
» FR published, DEIS hard copies available, comment period begins 4/18
* Comment period closes mM-July
DRAFT, DBUBERATTVH, PRE-DECISIONAL--DO NOT DISTRIBUTE OR crre
MTM/VF EIS Executive Committee Agenda
Weekly Conference Call; ternary 28. 2002. 9 tm.
(Page 2) -
» Issue Resolution Needed;
if Air Quality Section
» . BIS description of existing statutory and regulatory controls is inaccurate,
incomplete, or unknown
• Smfce mines wen'tcmientlyconsidaBd a "major stationary
source™ requiring permits with preveBtative measures
• Apparen% no data eidsts that indicates whether or not suffice
J^IM produce more fljan 250 tons of a regulated pollutant to
oonSitBte a nnjor source under Title V of fee CAA
. • Is an enJforefiment approach (e-g., when an apparent violation
occurs) sufficient?
• CAA regulates fugitive dast through state air quality agency
. itnpfanentttton plan; SMCRA fugitive dust control through state
SMCRA jnining «g«ey--neither program tats established defined
limits for' fijgMve da*
• At wtet point is dart a ntdsMwe not covered by CAA or SMCRA
(i.e., «f opposed to » respfaible health issues)?
• Action creates &n umlunded mandMe for states to develop BMFs wMiout:
• Adequate researcb on scope of fugitive dust problem &om eastern
* Any federal standards for ru|ptive dost limits (i.e., dust not
coniidered re^iirable hazard > PM 2 J or PM10)
• BfTective/standardized monitormg^esting technology
Two options to proceed:
• Cytionl--R8vi»e-writeupsto«eouraielyrefleotexistfagprogr«m •
controls (or luck thereof) anil address WVDEP and oter states' .
concerns with an action description stating that additional study and
regdatory analysis we necessary to address this issue before BMl?s
conld be developed. The Sleeriag Comwittee is discusstng the
issues with EPA R3 Air Protection Division to see if this is
potable.
• Option MJxpMB that insufficient data exists for fliis EIS to address
the issue at this time, explain issue it beyond the scope of Has EIS
and whtt the federal government pteB to do to address outside of
the EIS, and remove the isiue fern the alternatives and
consequences section. The Steering Committee would need to
discuss wift EPA OFA how best to ftame the.discussion in the
MTM/VF Draft PEIS Public Comment Compendium
A-502
Section A - Organizations
-------
DRAFT, DELIBERATIVE, PRE-DBCISIONAL-DO HOT DISTRIBUTE OR CITE
scoping section.
DRAFT, DELIBERATIVE, PRE-DECISTONAL--DO NOT DISTRIBUTE OR CITE
MTM/VF EIS Executive Committee Agenda
gtekbt Conference Call: January 28.2002.9 tun.
(Page 3)
•£ Revise alternative framework to make NWP more streamlined and make NWP/IP
process more predictable
* Propose an action establishing a minimal impact threshold for NWP in
Alternative 2 (e.g., as a general matter, a 250-acre (or smaller) watershed
cutoff would define when individual permits are required)
• One suffiesied approach discussed by some SC members is to set
the minimal impact threshold for fills in 75-acre watersheds or less.
Fills in watersheds less than 250-aere watersheds, but more than 75-
acre watersheds, might be eligible for HWP—if assessment protocol
and mitigation determines net minimal impact can be achieved (if
not, IP required). Fills in watersheds greater than 250-acre
watersheds must be processed as IPs
• Even without scientific data on the relationship of fill size to
indirect impacts, it is intuitive to justify a minimal threshold based
on the concept that "smaller fills are better than larger fills" with
respect to direct impacts on aquatic habitat buried by fills.
* Allow mitigation determinations rbr rills below the selected minimal
impact threshold to be based on somethifig other than a functional stream
assessment •
' * Assume all streams are "high quality" and base mitigation oa as
estimated Ecological Integrity Unite (Elite) multiplied by the
jurfsdjctional stream length
• Require mitigation, foot-per-ibot of stream loss, such that ofisite
mitigation necessary to augratnt any onsite mitigation (in order to
net less than minimal) would restore/enhance other in-basia streams
and improve Cumulative Impact Area watershed health to some
established quality level
Pros
Provides more contrast in alternatives consistent wiflj NEPA wgs
Provides more substtntive proposals in DEIS
Meets public expectation that a new minimal impacts threshold
would be established with this HS. Counters possible perception
by environmental stakeholders flat the EJS is removing
"protections" afforded by interim threshold. Possible assertion by
environmental community without this change to Alternative 2
would be that the HS is recommending "rolling back"
environmental protection so that grjy, siase valley fill can be approved
under NWP. this assertion eoald be rebuked because fhe EIS is not
currently proposing such a position. The current HS proposes me
of COE ftactioaal stream protocol to determine which permit
MTM/VF Draft PEIS Public Comment Compendium
A-503
Section A - Organizations
-------
DRAFT, DELIBERATIVE, PRE-DBCISIONAL--DO NOT DISTRIBUTE OR CITE
process (NWP or IP) each application must follow. This approach
could result jn valley fills proposed in watersheds well below 250
acres requiring the IP process.
• More predictable NWP/B? process for applicants
• Less evaluation and data collection by applicants
• Less-involved review by COE and potential reduction of FTE
COM
According to (he FBI Inventory, 5471 of 6697 fills constructed
were in watersheds less than 75 acres
The DEIS fulfills the terms of the settlement agreement, meets the
stated purpose in the FR notice of intent to prepare an EIS, Bid
provides greater environmental protection and not just "looks at
how permits are processed," as has been portrayed by some critics.
No documented scientific basis exists to justify this threshold. HS
technical studies could not determine if fill size nattered other Ban
for direct stream loss impact. Other NWPs use much smaller
threshold for minimal impact (e.g., 1/4 acre wetland, 200 feet of
stream stabilization, etc.). Limited technical studies indiote that
perennial streams exist in watersheds much less than 2SO acres.
There may be some legal vulnerability regarding this threshold
owed on the arbitrary and capricious standards.
Plaintiifs in £mgg anticipated that 250-aeres was an interim
threshold and tfiat the EIS would provide a more refined (i.e.» '
smaller)
Assuming mitigation requirernents without characterizing streams
might result in less rigorous avoidance and miairriizatioa
• alternative analysis and siting of fill locations in less desirable,
higher quality streams.
The Corps may need to revise its Regulatory Guidance Letter 02-2
or establish a regional condition for NWP 21 formalizing these 404
permit thresholds.
A no-protocol mitigation standard needs to be developed for use in
NWP-eligible permits. Experience with the stream assessment
protocol may already provide a basis for selecting an appropriate
EIU for mitigation purposes.
Incorporation of this concept in the EIS will result in delays to the
EIS schedule of approximately 2 weeks, including time required
for interagency coordination and approvals.
Some states already require stream bio-assessments and therefore,
there would be little cost savings to flje applicant States require
various types of stream characteri2ations for such determinations
as 401 Certifications, anti-degradation, and SMCRA baseline data
collections.
DRAFT, DELIBERATIVE, PRE-DECISIONAL--DO NOT DISTRIBUTE OR CITE
MTIWVF Draft PEIS Public Comment Compendium
A-504
Section A - Organizations
-------
Dave Densmors
01/28/200302:01 PM
, Bef^amfn
Olsfte
cc: BrenlW=h:quist,
Charlas.K.Stark|§hqQ2^j8ace.army.ffi8, Cindy Hbbott@tag.gQV, Dgva
Harm* «DHAR1W90SMRE.GOV>,
dvandeMnde@mait.dap.state^v.ua, FbrranJohii@epamaiUp8.9Ov,
Hodgkiss.Kathygepaitiai!. 2pa.gov, Hoffman.Wgi2m@epainaB.epa.gOT.
James. M.To,vnsenii@M02.usJce.amy.nie. Jeff Cote-
, Kampf. Rich@epam2a;!!pa.gov.
Ki!!herir,e.L.TroS®HQ02,USACE.ARMY.MiL, wnfi_parkiraiMmov,
Proposal for Minimal Effects Threshold far NW? 21 (foUows a determination that
&vcidiiiicc asd miQi]nlZ3tloii hav& been aceomptfshed to tfsfi i&s^isiQiii extent
practicable)
..
Subject: Re-piopos«)NWP 21 Scheme for A»crra!iva2Q
In antidpaUon of our C2« on Thursday, vo would appreciate everyone taking anotfmr look at ihe attached
flow chart v/e proposed a year ago for a 75-acre minimal effects threshold for WWP 21. We Maw trade
ons minor change & dai% thid compenia§em womy workload car,r.ota!so be cited as a rationale for setting such a threshoM. The Corps cited this factor
in setting NWP thresholds in the 2001 Draft EIS for the NVVP program, and In the 2002 FR notice for
reissuanceoftheN'WPs.
We should add furtiisr that this approach rnekaa a more substantive aKempt to tackie the cumulativa
Impscl l^ue that weV@ baen gmpg^gng wlUt, and at least par^slly addresses Hie concern that smaller fgls
.lead to more nurrerousfJis.
Proposal for Minimal Effocti Threshold for NVfl';
David Densmore
Supervfsor, Pasn^wnia Ffefcf Oflo*
U.S. Hsh and VWfc Servlcs
315 S. Allen SL, Suits 322
Stele Cofefle, PA 16801-4^0
(814) 2344090 X233 FAX: («14) 234-0748
Are degraded streams
available in which valley fills
can be located?
Will the project, either alcae or in
combination with previous valley filling,
wsutt in >10% loss wiftin » HOC 11
watershed?3
.Yes.
Can compensatory mitigation that provides
Bill replacsmint of stream functions and
values4 be accomplisaed within the same
HOC 11 •watershed?
No-
NWP authorizaOon
MTMA/F Draft PEIS Public Comment Compendium
A-5QS
Section A - Organizations
-------
s fin iimretoiy indicates ibst Matoric«lly, most vattey fitts lwveb6eB<
2.7ferVA,3.2lbrWV),
3PiCTlom sasMis k developing areas fe the
^sii^ the l4>ti5svfflesttcam assessment protocol
v»
Cindy Tibbott
02/18/03 OS-.17PM
To: Sider.David@-pamail.cpa.gov
dvandslincie@ma!l.clep.state,wv.us,
Reld.Stsphcn@sp2m3il.ep3.gov, Forrsn.John@dpamail.epa.gov,
Hodgkiss.Ksthy@cpamail.epa.gov,
iarriOs.m.TGwnssntiglriOZ.usace.army.mll, jcoker@oimre.gov,
kathErine.L.Trott®hqD2.usace.army.mil,
kuray.marilyn@epamail.spa.gov, Unce.D.WoodauEacc.srmy.m
v, mrobinsb@osmm.gov,
Peck.6regory@3pamail.apa.gov, pmcdaniei@maii.dep.state.wv.us,
rhunter@mail.dsp.s*ate.wv.u5, Ridor.Davld@epamail.epa.eo».
Subject: EditsQ •
Greetings Dave at al.,
Attached is a file containing some inserts for Chapters III and IV (information on the new study
from Weakland and Wood on cerulean warblers), as well as some additional miscellaneous edits
I'd lite to offer.
In addition, I understand that there am MOUs faefng drafted between FWS and other federal
agencies to implement the 2001 Executive Order on migratory birds. The EO directs all federal
agencies to take actions to protect and conserve migratory birds. It would be an oversight If we
failed to mention it In the EIS. If the tarn agrees that this needs to be Included, I drafted a
paragraph. I dont knew at this point where It belongs In the EIS, and thought that those of you
who have besn editing would pwbtbly haw a better idea,
Let ms know If there are any questions....
ctrulean.wpd
EXHIBIT 67
MTM/VF Draft PE1S Public Comment Compendium
A-506
Section A - Organizations
-------
Revisions to JI.D.) -i, Impacts at MTM/VF on Fish Assemblages (first paragraph)
Two studies relating fish communities to potential impaett jfrom mining aal-m and/or miniii|
and valley filling are available for use in this EIS. The OSFWS MEM Fish Assemblage
Cfanetoizafaia Report (Stouflia1 ami Feiiai, 2002)'diilee%'addfmed this issue.
Revisions to "Summary of the USFWS Stream Fish Assemblage Characterization Report"
section
Summary sftlie VSPV8 Stream Fish Assemblage Ouraagrlzatlaa Itgxtrt
There is little historical information regarding stream fish populations in ths primary region of
MUuulKUJi top I'ftuioval/valiey fill eoal mining mountaintap mining. To address this data gap, ft*
VsS. FMi and Wiliflifi Service itewfaped a ptngfiim a study was designed' to santple the fish
communides at several pre-selectcd sample sites in the.......
mining tites in southern Wett Virginia, Weakland and Wood (2002) found th« cerulean territory
densities were lower to ftsjanented forests, and lower closer to mine edges, thai in intact
forested habitat Mountaintop .wiring may have a greater negative impact on cerulean warbler
populations than many oflser types of forest fragmentation because of this species' preference for
forested ridgetops, which are removed in the miring process fWeakltnd and Wood, 2002). In
addition, because the forested mountains of the study area contain the core breeding are* for this
species in North America (wwwjnbr-pwre.Bsp.fov/bbs/htm9fi/map617/ ra6580.html), forest
losses here may have a disproportionately greater impact on cerulean populations than forest
losses in other areas.
WeaSdand, C. A. and P. B. Wood. Ctrulem WarUer MterokaUtat and Ltmetscape-level Habitat
Characteristics in Southern West Virginia fe Relation to Mouiuoinlop Minlngtvattey Fills. Final
Project Report. USGS-Biologtcal Resources Division, West Virginia Cooperative Pish and
Wfldliffe Research Unit Morgantown, WV. 2001
Reviaonstoaiapl«n.C7.a.l. CWA. CWA Ride to Camttlaflve Impaet AnalvsM. last
paragraph
Under file CWA Section 404(q) Mtmutandum Memoranda of Agreemwt between flte BPA and
the COB and between fl»e Department of fte Interior (DOI) and tte COS (dated August 1 1 and
December 2 1, 1992, respectively) EPA and and/or FWS can elevate a proposed decision by the
COB to issus a CWA Section 404 permit if the proposal would impact an Aquatic Resource of
National Importance (ARN1), as defined by fttis the MOAs. The elevation is made to higher
authorities within btrto each asencies agency for resolution. FWS has-te spflna af ialtiattog'flii'8
dCTMUmptoctdttte for adverse lapicU MgaUB
Revisions to Chapter MJrJ Jt (Birds), paragraph S
Some argue that Moimtaintop mining has the pcteuii jl to has adverse effects on many forest
songbirds, in particular neotropical Migrants, through direct loss and Siagniexttatiom of mature
forest habitats. Forest-interic.r species like flu; Acadian flycatcher, American redstart, hooded
warbler, ovcnbird, and scarlet tanagcr were more afcundant have signiCcJctly liigli
(during at least one year of fte a two-year study) in intact forests than iragmcnted forests (Wood
and Edwards, 2001). Furthermore, cerulean waroleis, Acadian flycatchers, and wood thrush are
more likely to be tend to a forested area as distance from the mine increases (Wood and
Idwards, 2001; Weakland and Wood, 2002). These data suggest flul fortst-hjtoior bird species
In October 2000, the Southern Environmental Lw Center, on behalf of itself, 27 other
organizations, and seven scientists, formally petitioned the FWS to list the cerulean warbler as a
threatened (pecies and to designate critical habitat for die species pursuant to the Endangered
Species Act The petition, currently .being evaluated by FWS, fitted a rangewide decline in
cerulean populations of about 70 percent since 1966. As a test-interior species, it Is sensitive
to forest fragmentation. In a study of cerulean warbler habitat use in the victaity of mountaintop
Revisions to IVJFJ,!" paragraph
The avian fauna of the study area is rich and contains a number of species with interior forest
requirements for successful breeding. Large tracte of intact forest are rare in tl:c eastern United
States dm- tB'> lauiiberof laid UK dange jmieialM reasons. The cumulative impact study
(USHPA, 2002) estimated (by adding past impacts, impacts ftom permits issued in the last 10
years, and projecting 10 years into the future) that under the no action alternative,
1 ,408,372 acres (2,200 square mfles), or 1 1 percent of forest htbtat in Bie study «rea would be
lost due to mininig. 227,191' ftCi't^ j^^) uf total' IMS laeaa dlfsctly uupactoi in fee study at'&a IM
LliL Int. 10 yonii mid (tat Ml addiUoaJ 237,198' aucs uf tam* win be imujLlU la Ih, aeatt 10
ti'iio. These impacts would result fa fragmentation of the
forests......[contjnue with rest of paragraph]
Revisions to IV JJ, 3" paragraph
Although; the cuniulative impact study suggests that ample forest will reinamm the study area
under future conditions of Alternatives 1,2, and 3 to maintain relatively high PEC scores,
pjtoulijl adverse impacts to many forest interior bird species ate likely still pnMtbie. Take for
example those species with breeding ranges that are restricted to or confined mostly within the
study area. The cere of breefeg ranges for the Ixiuisiaiia waterthnish, wonn-eatmg warbler,
and ceruiean warbler K are within the study area. Disturbances associated with mountaintop
milling could potential adversely impact each of these species' breeding ranges. Researchers
have demnastrated that habitat loss does not have to be total to reduce wildUfe populations;
many species arc "area sensitive." In other words, these species require large blocks of habitat
of a certain minimum size. For example, almough fragments of forest may irmain after mining
is complete m a previously forested area, certain area-sensitive forest birds ("forest interior"
species) will be absent
MTM/VF Draft PEIS Public Comment Compendium
A-507
Section A - Organizations
-------
In addition to requiring large Wads af fijresttd tabitat game specks haw other sped*! habitat
requirements that ex»eerbate the toptos of fflounttintop misting on the ^jecies. The cerulean
warbler, a species of concern due to population declines, say tie especially affected not only
because it is a forest interior species, but also because of i& preference for forested ridgetops,
which are removed by aioimtaintop mining fWeskland and Wood, 2002). The Louisiana
watefthrash, & forest interior species, requires headwater streams which are eliminated by valley
filling.
Paragraph reflecting Executive Order 13186 (out rare where K fits in the document)
In January 2001, the President signed Executive Order 13186 directing federal agendes to
conserve migratory birds (see ht^i/AnigBtorybfeds Jtes.gov). The Executive Order dire* each
Fwleral agency taking actions caving or likely to have a negative impact on migratory bird
populations to work with the FWS to develop an agreement to conserve those birds. The
protocols developed by the consultation arc intended to guide future agency regulatory actions
and policy decisions; renewal of permits, contracts or other agreements; and the creation of or
revisions to land management plans. In addition to avoiding or minimizing impacts to migratory
bird populations, agencies are expected to take reasonable steps that include restoring and
enhancing habitat, preventing or abating pollution affecting birds, and incorporating migratory
bird conservation into agency planning processes whenever possible. By January 2003, Federal
agencies were to have developed and implemented a Memorandum of Understanding (MOU)
with FWS for the conservation of migratory bird populations. As of publication of this draft
EIS,MOUs with the federal EIS agencies are still in draft form. Because the Executive Order
doesnotapplytoactiorl?de!egatedtostates, if has limited appHcofaility in SMCRA permitting
actions in all of the study area states except Tennessee. Provisions of the Corps/FWS and
EPA/FWS MO0S implementing this executive orfac would apply in all of the study area's
From:
To:
, ,
-'-'hijOXusaca.aHay.nuC', , Brant Wahlqujst
MRB.GOV>, ,
02.asac8.annyjnil>
Wed, Mar 12,2003 10il8 AM
MTM BIS Execntive Committee Call Friday,3/14; 9-10am: 1-877-216-4412,
This is short notice but I hope you can be available for this
call. We need to talk abont how the Steering Committee proposes to
factor hi tile decision made by the Principals on Monday (see attachment
A) and what this means far file draft EIS schedule (to be determined).
Please let me know if yoa have comments or questions, thanks, Kathy
Attachment A: (See attached file; 2$WjresahM.pdf)
Kathy Hodgkira, Acting Director
Environmental Services Division
U.S.BPA Region 3
215/814-31S1
Tibbott@fws.80ir>, <,
, ,
l.dejp.stgls.wv.as>, Dave Hartos , Jeff Coker
>, ) ,
.>, ,
,
Attaebmentfs):
Attoohmeat.Kle l.pdf
Attachmeat File 2.822
BXHJBTT68
MTM/VF Draft PEIS Public Comment Compendium
A-508
Section A - Organizations
-------
FW'.MTM Way Ahead
Page 1 of2
Sudol, Mart F HQ02
From: Smith, Chip R Mr ASA-CW (ChjpiSmlth@HQDA_Afniy.Mif)
Sent: Tuesday, Man* 11, 2003 8:SS AM
To: Mark F Sudot Chartes K Stark; KatHertne L Trott
Subject: I^W: M1M Way Ahead
Here is the result of the Principafs meeting. The Cruder) (DOJ) Plan is to be
followed and the EIS revised accordingly. The Regional Conditions will be
launched as we intended after DOJ and Stoekdate coordinate. Work on protocols
and the CIS analysis of impacts should proceed as described tn the 6IS. The only
departure is we wanted to restrict the 250 acre interim threshold to West Virginia -
the Principals decided that the entire Huntington District made more sense so we
didn't have one District regulating differently in 3 States.
It is very important that Kathy get this information ASAP. Is there A way to gat it to
her thfe morning so she knows what is going on?
Stttte Ttmtet, Nan* 11, 2003 8O3 fiK
To! SroHh, Otip ft Hr ASV-CW
Cra Stadsdaie, £3dHM*O5C3ehrosfi,OwitiEMro
-------
OASA(CW)
April 4, 2003
OASA(CW)
April 4,2003
MOUNTA1NTOP SURFACE COAL MINING
MASTER STRATEGY
Contents
1. Key Elements Summary
2. Master Strategy Details
3. December 6,2002 Public Notice Expiration of NWP 21
Authorizations
4. January 10,2003 Public Notice PCN Requirements
6. January 10,2003 Public Notice Regulatory Guidance •
6. Letter (mitigation)
7. Example Notification Letters to Summit Engineering •
8, 1989 Army and EPA Enforcement MOA
9. Fact Sheet Summary of 1989 Army and EPA Enforcement MOA
Mountaintop Surface Coal Mining
Master Strategy Summary
KEY ELEMENTS SUMMARY
1. Notifications for New Authorizations Under Revised NWP 21
Held regular meetings, workshops, made presentations
Public Notices and Website Guidance
Over 100 conference ealte
Continue to be accessible and axpedWng permit processing
2. Processing N»w Aufliorizatlons Under Revised NWP 21
Hayden Decision and appeal affected ability to devatep guidance
NMA and mining company Strategy was to nd&ppiy Wntdng Issue would be
' resolved but legal reviews clearly demonstrated netd tor new authorizations
• New NWP 21 requires Statement of Findings, NEPA (EAs), 45 day comment
period, mitigation plans, which takes time but provides legal protection to all
parties
» Follow 8-Polnt Pian: performance bondsflettsrs of credit; integrate 401,402,404
and SMCflA reviews; Corps and States oo-host permitting workshops by State;
Corps Tiger Tsams to spetd up permit ppocstslng; hiteragancy permit review
teams for on-stop shopping; establish self-auditing program by State; use In Lieu
Fee Arrangements and Mitigation Bante; and, use lessons teamed for
sfreamiMna and consistency
3. MTM EIS Agency Commitments
Corps would implement 3 regional conditions
Corps would refine, calibrate, and implement stream protocols
250-acre threshold for status quo part of No Acfion Alternative
Corps would conduct independent analysis using Q1S database to evaluate
thresholds
4. MTM EIS Threshold Plan
280-acre threshold would be described as an Interim measure
part of No Aoten Alternative
discuss potertiaf 'management utility*
note that benefits could have resulted from other factors
Corps wiii not supplement EIS but have independent environmental
documentation tor any Mure thrashoid vs. protocol analysis
S. Regional Conditions to Maintain Status Quo
• establishes 250-acre threshold as on Interim measure pending results of Corps
independent analysis of thresholds vs. protocols
» requires consideration of nature and extent of aquatic resources and assessment
of potential cumulative impaote on aquatic environment
EXHIBIT 69
MTM/VF Draft PEIS Public Comment Compendium
A-510
Section A - Organizations
-------
• requires appropriate and practicable compensatory mitigation to offset Impacts to
waters of the U.S., and be based on nature of tie stream Impacted, and direct,
Indirect, and cumulative losses of waters of the U.S.
6. Stream Assessment Protocols
» Corps will refins, calibrate, and Implement In Appalachian Region State-by-State
O&SAfCW)
April 4,2003
« Appropriate environmental documentation and Public Notices
• Qoal Is for science-based protocols to replace interim non-science based 260-
acre threshold
7. Enforcement (Mitigation MOA)
• Januaiy 19,1989 Army and EPA Enforcement MOA
« EPA is lead for "impermitted" activities
• Corps is lead for violations at "permitted" activities
« Violations of both types a longstanding problem due to remoteness, lack of date,
insufficient staff and resources, reluctance to shut down operations, etc.
» violation estimates (data evolving): Kentucky • 70; Ohio * 54; and, West
Virginia »150
• Corps and EPA Ftegions 3 and 4 met March 27,2003, along with OSM, and
State staff to discuss issue and develop a plan of action, options Include
o Cease and Desist Letters which would shut down mines
o Establish a Saff-Auditing/Raporttng program to achieve compliance on a
voluntary basis by sending letters to mining companies with a deadilne
o Agendas will share date, records, photos, SIS, staff to refine estimates of
• the nature, scops,' and location of violations
o Agencies agreed to start a collaborative enforcement review
o OSM recommends efforts concentrate on ongoing activities that never got
404 authorizations in watersheds of SO acres or more and that wens
inftiatetf after the new NWP 21 came out in March 2002
o Best handled at th© local level as opposed to DC driven
Mountaintop Surface Coal Mining
Master Strategy Details
1. NQTifiC^TIONS FOR NEW AUTHOBiZATtpNg UNDERREVISED NWP 21. On.
May B, 2002, the U.S. District Court for the Southern District of West Virginia ruled that
the Huntlngton District could not permit new activities involving the placement of fill
material in waters of the U.S. unless those fills have a constructiva purpose. This
decision caused regulatory chaos and since the matter was under appeal, it took some
time for the government to determine how to proceed. The Corps issued three Public
Notices Informing mining companies felt new authorizations would be required, and
providing guidance on the new NWP 21 requirements:
a Louisville District has had regular meetings with mining companies since
1999; made presentations at the last 4 Mining Engineers of Kentucky Annual Meetings;
held workshops; and, opened field offices to be more accessible
b. Issuance of NWPs on February 11,1997
c. December 6,2002 remind*r that NWPs expired on February 11,2002 and
any further work in waters of the U.S. after February 11,2003 would require
reauthortzatfon
d. January 10,2003, providing additional guidance to coal companies and
consultants concerning the current NWP 21 requiraments (Regulatory Guidance Letter
02-2 on Compensatory Mitigation)
e. Public notices were also posted on the District's web page
f. Corps Districts had conference calls with mining companies and their
consultants (no logs kept, but averaged 3-4/day starting in November 2002); by
December 15,2X302, Huntington District had completed 100+ phont calls to mining
companies to further advise them of the ne«d to apply tor new permits
g. Numerous meetings have occurred with some mining companies, consultants
and coal associations in WV, KY and OH. Th« companies initiated some and the Corps
initiated soms
2. NEWAUtHQRIZATIOHS UND6R REVISED NVre_21
a. Issue: The National Mining Association is veiy concerned about the
informational requirements for obtaining new NWP 21 authorizations for existing
operations, and about the time it is taking to process PCNs. NMA also objects to the
sentence "The applicant must be notified of the determination' In writing before any work
MTM/VF Draft PEIS Public Comment Compendium
A-511
Section A - Organizations
-------
in waters of the U.S. may be conducted" that has appeared in letters back to mining
companies, NMA also hoped that the Corps couW use information already on file to
reduce requirements, but the Corps reports that the flies tor previously authorized
projects have We or no Information applicable to the new NWP 21 requirements.
b. Background.' The current situation regarding new authorizations was, !n part,
affected by;
(1) The Haden decision, which prohibited the Corps from authorizing valley fills.
(absent a constructive purposs), and the appeal process, created an uncertain
regulatory climate and prohibited the development of clear guidance tor obtaining new
NWP 21 authorizations until the decision was overturned In January 2003.
(2) The NMA took the position that the Corps could, under existing laws and
regulator®, simply grandfather or extend authorizations for ongoing mining operations,
and a strategy emerged whereby mining companies did not apply for new authorizations
In 2002, even tfwugh by Public Notice they had been encouraged to do so. NMA
assumed that its view would prevail or that the pressure on the Corps would result In a
solution other than having to obtain a new authorization. Several legal reviews (DOJ
and Army) were conducted and It was affirmed each time that the Corps had no legal or
regulatory basis for extending previous authorizations — new authorizations were
required under the reissued NWP 21 (with new PCN and mitigation requirements).
e. Applications: there are approximately 88 applications "pending" in the
Huntingdon District for Kentucky, Ohio, and West 'Virginia, and of those, 77 have been
determined to be Incomplete application**, In some cases, very Incomplete; working
with Incomplete applications is very Inefficient
d. NWP21: The new NWP requires that the Corps prepare a Statement of
Findings, do NEPA (EAs), hold 45-day comment periods, and require mitlgaflon plans to
ensure that Impacts are no more than minimal. Following the process provides the best
possible legal protection for both the Corps and applicants; ahortcuttlng the process
would leave mining companies vulnerable to legal challenge and could result In
shutdowns.
e. W»v FoMBr4 eight Point Plan:
(1) For those applications that am sufficiently complete to make appropriate
minimal effects determinations, the Corps intends to accept Performance Bonds and/or
Letters of Credit to allow some work to proceed, under permit conditions, white
mitigation plans are completed and approved. Also, temporary Impacts can be
conditioned separately so, for example, work could be done on "sediment ponds" while
the application process is completed for permanent Impacts (up to 120 days)
(2) Beinvigorate the 1988-99 Weragency effort to integrate 401,402,404, and
SMACRA permit revtewt and processes to streamline decision-making and minimize
irrformaflonal requirements
(3) Ask States to host and run permuting workshops In each of the 3 States so
that the Corps can e^laln tht new requirements and provide guidance on how best to
generate a complete permit application (Corps can be ready In 15-30 days)
(4) After the workshops, the Corps could be inundated wfth a slew of complete
applications. HQ would work with the Districts to establish "tiger teams" to assist with
the processing of NWP 21 PCNs, or accomplish other wo*, so that the NWP 21 PCNs
can be processed as quickly as possible
(5) Establish Weragency permit teams composed of regulatory and permit
decision makers from Corps Tiger Teams, EPA,. PWS, State DNR*« fcnd OSM, to review
PCNs concurrently and work together to resolve Issues In a "one-stop shopping"
streamlined process to reduce the application backlog
(6) Continue to pursue a plan to establish a self-auditing program for each State
to assist mining companies with efforts to come into compliance
(7) Explore options for developing and- using In-Ueu-Fee Arrangements and
Mitigation Banks for stream impacts
(8) Use the lessons teamed to establish a prospective streamlined process to
facilitate consistency of approach by all agencies so that Information developed to
satisfy requirements of one agency would be presented In a format that could be used
by other agencies for their respective requirements
3. MTM EIS A6ENCY COMMITMENTS
The Federal and/or state agencies cooperatively would:
• develop a joint application form as part of the MOA and FOP.
. develop guidance, policies, or Institute rule making for consistent definitions of
stream characteristics as well as field methods for delineating those
characteristics.
• continue to assess aquatic ecosystem restoration and mitigation methods for
mined lands and promote demonstration sites.
. work with Interested stakeholders to develop a "best management practices"
(BMPs) manual for restoration/replacement of aquatic resources,
. evaluate and coordinate current programs for controlling fugitive dyst and
blasting fumes from tnountaintop MTM/VF operations, and develop BMPs and/or
additional regulatory controls to minimize adverse effects, as appropriate.
MTMA/F Draft PEIS Public Comment Compendium
A-512
Section A - Organizations
-------
. develop guidelines for calculating peak discharges for design precipitation events
and evaluating flooding risk. !n addition, the guidelines would recommend
engineering techniques useful in minimizing the risk of flooding.
• based on the outcome of ongoing informal consultation, identify and Implement
program changes, as necessary and appropriate, to ensure that future mining is
carried out in full compliance with the Endangered Species Act.
The COE would:
• continue to implement the 3 regional conditions in WV and KY as described
in the MTU EIS No Action Alternative
• through a coordinated interagency process, make case-by-ease determinations
of the applicability of NWP 21 to MTM/VF projects.
• refine and calibrate the stream assessment protocol for each COE District where
MTM/VF operations are conducted to assess stream conditions and to determine
mitigation requirements as part of the permitting process.
• compile data collected through application of the assessment protocol along with
PHC, CHIA, anti-degradation, NPDES, TMDLs, mitigation projects, and other
information Into a QIS database
. use these data to evaluate whether programmatic "bright-line" thresholds, rathsr
ttian case-by-case minimal individual and cumulative impact determinations, are
feasible for CWA Section 404 MTM/VF permits.
OSM, in conjunction with the SMCRA agencies would:
• consider rulemaking to replace the stream buffer zone ruls with requirements for
alternatives analysis and snvlronmental impact analysis similar to the
requirements of CWA Section 404.
« incorporate mitigatton/compensation monitoring plans into SMCRA/NPDES
permit Inspection schedules and coordinate SMCRA and CWA requirements to
establish financial Habllity (e.g., bonding sureties) to ensure *iat reclamation and
compensatory mitigation projects are completed successfully.
. develop guidelines (dentffylng state-of-the-scienca, best management practices
' (BMPs) for selecting appropriate growth media, reclamation techniques,
revegeiation species, and success measurement techniques for accomplishing
post-mining land uses involving trees.
. if legislative authority is established by Congress or the states, require
reclamation with trees as the post mining land use.
EPA would:
. as appropriate, develop and propose criteria for additional chemicals or other
parameters (e.g., biological indicators) that would support a modification of
existing state water quality standards.
consider, along with the COE, designating areas generally unsuitable for fill disposal,
referred to as Advanced Identification of Disposal Sites (ADIDV
*• MTM HS THRESHOLD PUN
a. 250 sore threshold would be described in the EIS as an interim (status quo)
measure in WV, and KY, because In the opinion of some it seems to have "a certain
utility" for environmental protection, pending the results of a separate science-based
analysis of thresholds to be undertaken by the Army.
b. The EIS discussion will note that WV finds "a management utility* In the 250 acre
threshold, and will also note that other events, such as WV changing Its mining
regulations, may account for all or part of the perceived "utility" of itie threshold.
c. The 250 acre threshold discussion will be included In the No Action Alternative
because it maintains the status quo on an interim basis and because the EIS does not
contain the science and data requited to establish this or any threshold.
d. Army will NOT supplement the MTM EIS to disclose the results of Its independent
analysis of thresholds because the MTM E!S does not contain the information
necessary to inform a decision on the appropriateness of thresholds, or what alternative
thresholds should b® considered.
5. RgQIONAl.CONDITIONS TO MA1NTA1M STATUS QUO. Districts in the
Appalachian region will implement the 3 Regional Conditions (or some minor variation)
immediately through the Public Notice process and complete any necessary
environmental documentation, [except perhaps KY because protocols have been in use
for a period of time]
a. Discharges of fill material authorized under NWP 21 comprising a valley fill or
a coal waste f slurry") impoundment may not, as a general matter, occur below the point
on a stream (as measured from the to® of the fill or slurry embankment) that drains a
watershed of 250 aorss or more. In specific circumstances, however, the Corps may
determine, after a project-specific evaluation, that valley fills or slurry impoundments
larger than 250 acres may be authorized under NWP 21 where Impacts would be no
more than minimal. This threshold is being establishad as an interim measure to ensure
impacts are minimal and shall be reevatuattd after completion of the stream
assessment protocols currently under development by the Corps and based on
consideration of information gathered foruse in the interagency environmental impact
statement on mountaintop removal coal mining.
b. In determining whether an activity may be authorized under NWP 21, the
nature and extent of aquatic resources affected by ths activity will be evaluated asjmrt
of the assessment of potential cumulative impacts on the aquatic environment.
MTM/VF Draft PEIS Public Comment Compendium
A-513
Section A - Organizations
-------
o. Each NWP 21 authorization for valley fills or slurry impoundments will include
appropriate and practicable mitigation td offset Impacts to waters of the U.S. The
appropriate mitigation will be based on consideration of the nature of the stream
impacted, and direct, indirect and cumulative loss of waters of the U.S.
6. STREAM ASSESSMENT PROTQC01.S. The Corps will continue work to develop
and implement stream assessment protocols In ths Appalachian Region, and before
making them permanent, on a Stste-by-State basis, will do appropriate environmental
documentafJ0rr(separate-from MTM E!S) and use the Public Notice process [except for
Kentucky where protocols were implemented in 2002]. Additionally, ths Corps will
undertake an independent analysis of the utility of thresholds using site-specific
verification data, and using a GfS-based evaluation process, evaluate whether the
interim 250-acre threshold should be made permanent, lowered, increased or
eliminated. White the Corps currently believes that the Stream Assessment Protocols
are the superior regulatory tool, this independent analysis wfli verify this assumption and
if it proves false, make new recommendations regarding thresholds. Any regulatory
changes would be accomplished by notice and comment rulemaking, as appropriate.
7. ENFORCEMENT- Enforcement is handled ih accordance with a Memorandum of
Understanding executed January 19, 1989. Paragraph "D." states that the Corps will be
the lead enforcement agency for all violations of Corps-issued permits, white the EPA
will be the lead enforcement agency for all unpermltted discharge violations. It is
common knowledge that there are violations occurring in ths mining Industry. Sites are
often remots, and neither agency has the staff and resources to look for violations,
however, if credible information is provided, the agencies should, and usually do, an
investigation in accordance-with the MOA. Ths Corps advises that some mining
companies have figured out that is significantly cheaper to pay administrative penalties
for violations than it is to request a new authorization and have to fund compensatory
mitigation requirements. Also, it is not meaningful to simply compare lists of mining
operations with SMCRA permits to lists of mining operations that have 404 permits.
Some operations do not require 404 permits, or they have completed their work in
waters of the U.S. and have let their authorizations expire. If ths Administration wants
to address this issue more aggressively, they we need to develop a consistent policy
and begin Issuing Cease and Desist Letters, which will shut down operations until
compliance is achieved (if it can be).
The Data
Ohio: approximately 108 mine sites with no 404 permit; assuming 50% (conservative) •
require a 404 permit, the Corps expects 54 potential enforcement cases
Kentucky: Data collected from March 18,2002, to April 3,2003, indicates that tie
Kentucky DSMRE has issued 87 mining permits. The Corps has authorized 6 and 10
are pending (18%) of the State's issued permits). Of the 87,54 are actively mining
without 404 permits (which may or may not b« needed). The Corps also reports 26
pending 404 applications that are not reflected in the above data since the SMCRA
authorization was before March 2002. A conservative- estimate would be 70 potential
enforcement cases considering SMCRA permits issued prior to March 2002.
Wtst.Vtetnla: Based upon phone contact on April 3,2003, the West Virginia
Department of Environmental Protection appears to be reluctant to divulge their data,
but based upon one seasoned employee's best professional judgment, there are 150
potential enforcement cases
' The. .W«y,.Fo.rw.art
a. Interagenoy meeting held on 27 March 2003 In Lexington, KY. Participants
included Office of Surface Mining, USEPA representatives from HQ and Regions 3,4
and 5, USFWS (Frankfort, KY office), KY Division of Water, KY Division of Surface
Mining Reclamation & Enforcement (KDSMRE), and the Army Corps of Engineers from
the division as well as Huntlngton, Louisville, Nashville & Pittsburgh districts.
b. Meeting requested by USEPA Region 4 (USEPA-R4) to discuss their desire to
Initiate a self-reportlng/seH-auciltviWn the coal industry in KY to bring violations into
compliance with the Clean Water Act..
e. For regional consistency, the Corps is also reviewing this issue in Ohio,
Tennessee, Virginia and West Virginia and will coordinate with USEPA Regions 3 and
5.
d. Discussed tfmtframe to begin initiative, what resources each agency had to offer
(GIS, databases, aerial photographs, manpower etc), and details on how to determine
the category (perennial, intermittent or ephemeral), extant and quality of waters that had
been impacted,
e. The potential number of violations was discussed but the Corps and State
stressed that further investigation w«s needed to gain an accurate understanding of the
extent of violations.
f. USEPA-R4 advocated sending out a tetter to coal companies with a deadline to
self-report unauthorized activities. USEPA-HQ advocated meeting and working w/ the
National Mining Association (NMA) to get active mines Into compliance.
g. All partk%»nts agreed that a date needed to be agreed upon to start the
enforcement review and written documentation should be prepared supporting this
decision. Dates suggested: March 10,2000- the date of KDSMRE Reclamation
Advisory Memorandum #133 regarding the need for Section 404 permits for fills in
waters of the U.S.; October 2001 - the data of a Corps memorandum to th« field
requiring compensatory mitigation on NWP 21 ;• March 2002 - the effective date of the
new NWPs.
MTM/VF Draft PEIS Public Comment Compendium
A-514
Section A - Organizations
-------
h. OSM reoomtnendad that the enforcement effort concentrate on those ongoing
activities that never got Corpt authorization (higher priority, that those activities working
under e>tptred Nationwide permits), in watersheds of 80 acres or more in sizs, that were
initiated after the effective date of the new NWP 21 (18 March" 2002).
i. Outcome of Martina: The Corps division and districts committed to
reviewing/comparing Corps and State lists of permitted cotl mining actMfes, within the
nsxt 30 days, to determine extent of enforcement issue, A Corps infra-agency
conference call would follow to discuss the issue.
I- Future Actions: Joint EPA/Corps memo that attains why a particular date was
selected for the enforcement initiative, Corps/USEPA conference call or meeting re:
enforcement issue in KY (and other states m necessary); Possible regional MOU/MOA
with USEPA-R4 (and other regions as appropriate) that further defines specific agency
roles and responsibilities in this Initiative (beyond 1989 Enforcement MOA). Also need
to involve the Department of justice in this initiative.
Attachments ^
December 6,2002 Public Notice -Expiration of NWP 21 Authorizations
January 10,2003 Public Notice PCN Requirements
January 10,2003 Public Notice Regulatory Guidance Letter (mitigation)
. Example Notification Letters to Summit Engineering
1989 Army and EPA Enforcement yOA
Fact Sh«et Summary of 1989 Army and EPA Enforcement MOA
From: "Smith, Chip R Mt ASArCW
To: "Duntop, Geotse Mr ASA-CW
Date: Tim, Apr 17,2003 7:57 AM
Subject: Revised Wo on New PCNs and Enforcement
See attached. Based on ow pre-sseetiag the otaerday I added into otir
8-point plan (wMch is now a 9-point pan) language on tin Coips and EPA
immediately sending out some sort of information letter or notice fiat is
neutral, encouraging mi.ning companies to contact us if they have questions
about compliance requirements. I also added in language about later on,
once we get better data, sending targeted letters lo operations ws have
reason to beSieveinay not be ifl e«Bpfi«j»e, Those letters would pwceedfte
woricshops we liope to aold to help criniug companies anderstandieommieats
and complete taeir appEestioBS, finally, in the enforcement section I
added a clearer statement about us sending oat Cease and Desist orders at
soae point (yet to be deteonined) but not antfl after the workshops and
self-auditing parts of the plan have lad a reasonable period to •work.
AlHiouA DGJ's view of all of this is not known, EPA (Peck) and Anny (Myself
and SadoR seemed to be In general agteement on iMsstr&egy when we met
the other day. '
I understand tha fliere will be ameetiBg today at BPA at 9:30 to discuss
Chip S
Office of the Assistant Secretary of the Aimy (Ctvil Wotte)
Assistant fijr Environment, Tribal and Regulateiy Affiirs
108 Arasy Pentagon 3B427
Washington, B.C. 20310-0108
703-693-3655 Voice
703-697-8433 F«
J:Sshared\smith,chip\Mountainiop MWng\MTM Master Strategy
CCs "BJHteaiy(E-m«il)", "Dave Vande IJnde
(E-mail)" , "Owg feck (E-mail)"
, "John Creden ffl-main" <5oBn.cmdeB@usdoj.gov>, Maifc f
Sudol -<:M»'k.F3udal@hq02.Bsace.anEyjnil>, Krajeriise L Trott
10
Attad»ent(rt:
Attachment rate IJhtm
AteicbmentFBeZdoc
Attacajnent File 3.doc
Attachment File 4.822
MTMA/F Draft PEIS Public Comment Compendium
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Section A - Organizations
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OASA(CW)
April 17, 2003
PJlountaintop Surface Coal Mining
Status and Way Forward
Authorizations - Exlafinn and N«W Pretests
Issue: The National Mining Association remains concerned about the informational •
requirements for obtaining new NWP 21 authorizations for existing operations, and
about the time ft is taking to procBss PCNs. NMA also hoped that the Corps oouid use
information already on file from previous authorizations to reduce requirements, but the
Corps reports tfiai the files for previously authorized projects have IttBe or no Wbrmatfon
applicable to tie new NWP 21 requirements regarding stream impact assessments and.
compensatory mitigation. Obtaining new authorizations for exiting operations is akin to
applying for an authorization for a new project The reason tor this is that there are new
requirements for obtaining an authorkmtion under the revised NWP 21. If the Corps
were to decide that all projects previously authorized under the old NWP 21 could be
processed without the naw NWP requirements, the Corps would be violating it's own
regulations and both tie Corps and mining companies would be vulnerable to lawsuits.
Applications: there am approximately 90 incomplete applications "pending" in the
Huntington District tor Kentucky, Ohio, and West Virginia.
Way Forward:
(1) Immediately send out a neutral information letter or notice explaining the need for
obtaining new authorizations under certain eircumstetnoas, and encouraging mining
companies to contact the Corps or EPA for information and advice.
(2) For those applications that are sufficiently complete to make appropriate minimal
effects determinations, Bw Corps intends to accept Performance Bonds and/or Letters
of Credit to allow some work to proceed, under permit conditions, while mitigation plans
are completed and approved. Also, temporary impacts can be conditioned separately
so, for example, work could be done on "sediment ponds" while the application process
is completed for permanent impacts (up to 120 days)
(3) Relnvlgorate the 19S8-99 fnteragenoy effort to integrate 401,402,404, and
SMACRA permit reviews and processes to streamline decision-making and minimize
informational requirements
(4} Ask States to host and run permitting workshops in each of the 3 States so that the
Corps can explain the new requirements and provide guidance on how best to generate
a complete permit application (Corps can be ready in 16-30 days). Before the
workshops, send out fetters to mining operations that the agencies believe have the
highest potential for requiring authorization to come into compliance.
(6) After the workshops, the Corps oouM be inundated wfth a stew of complete
applications. HQ would work with the Districts to establish "tiger teams* to assist wtth
the processing of NWP 21 PCNs, or accomplish other work, so that the NWP 21 PCNs
can be processed as quickly as possible
(8) Establish lnterag«ncy permit teams competed of regulatory and permit decision
makers from Corps Tiger Teams, EPA, FWS, State DNR's and OSM, to review PCNs
concurrently and work together to resolve issues in a "one-stop shopping" streamlined
process to reduce the application backlog
(7) Confeue to pursue a plan to establish a self-auditing program for each State to
assist mining companies with efforts to come Wo compliance
(8) Explore options for developing and using In-Lieu-Fee Arrangements and Mitigation
Banks for stream impacts
(9) Use the lessons learned to establish a prospective streamlined -process to facilitate
consistency of approach by all agencies so that information developed to satisfy
requirements of one agency would be presented in a format ttiat could be used by other
agencies for their respective requirements
Enforcement
Background
5 January 18,1889 Army and EPA Enforcement MOA
5 EPA is lead for "unpermKted* aoBvifies {4 categories)
5 Corps Is lead for vfolafions at "permittsd" acflvfSos
5 Violation* of botti types a longstanding problem due to remoteness, lack of data,
insufficient staff and resources, reluctance to shut down operations, etc.
5 Violation estimates (date evolving): Kentucky * 70; Ohio * 54; and, West
Virginia "150
yfav Forward
| Corps and EPA Regions 3 and 4 met March 27,2003, along with OSM, and
State staff to discuss Issue and develop a plan of action, options include
o Agencies will share date, record*, photos, QiS, staff to refine estimates of
the nature, scope, and location of violations
o Agencies agreed to start a collsbowflv* enforcement revtow
o OSM recommends efforts concentrate on ongoing activities that never got
404 authorizations In watersheds of 50 acres or more and that were
Mated aterthe new NWP 21 came out in March 2002
o Best handled at the local level as opposed to DC driven
o First, establish a Self-Audtting/Reporting program to achieve compliance
on a voluntary basis by sending tetters to mining companies with a
deadline
MTM/VF Draft PEIS Public Comment Compendium
A-516
Section A - Organizations
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After an agreed upon flme torssH-audMng, Cease and Desist Liters
would be sent to those mining operations tfat simply refuse to come Into
compliance
Mountaintop Surface Coal Mining
April 17,2003 Principal's Meeting
Agenda (4-11-03 draft)
5 Purpose of the Meeting (Leary)
o Regional Conditions (250 Acre Threshold/Stream Protocols)
o Conclusion of tie EIS
o Compliance Initiatives
o Enforcement Mttetivss
o CEQ Questions about dealing with permit application backlogs, impacts
on mWng companies unatole to comply, plan for identifying operators sffll
requiring authorization, enforcement options and timelines
5 Principals' Perspectives (ail)
S, Proposed Compliance Eight Point Plan (Dunlop) and Discussion
£ Consideration of Enforcement Initiatives (all)
5 Regional Conditions (Dunlop) and Discussion
5 Summary of Stream Protocols (Sudol)
5 Conclusion of the EIS
4 Summary of decisions and due outs (Leary)
Participants frnav bring staff)
Council on Environmental Quality - Bill Leary
Corps of Engineers - Mark Sudol
Department of Justice - John Cruder)
Department of Army - George Dunlop
Environmental Protection Agency - Ben Grumbles
Fish and Wildlife Service - Steve Williams
Office of Surface Mining - Jeff Jan-eft
West Virginia - Matt Crumm
MTM/VF Draft PEIS Public Comment Compendium
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: Mike Robinson - Ch 14 edits
from:
To:
Data:
Subject:
a,go»>, Jeff Cottar
Ulike Robinson - chivrgjffite.wpd
W. Environmental Consequences
J. THKEATENED AND ENDANGERED SPECIES
Nat
ml Resources and
*Sfe»«a^
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Ths EPA is fa the process of writing a Biological Assessment thst wfll identify federally lilted
^ecics wl'Jch sit likely to be advcisefy affected by mo-jntaintop mining and the EIS proposed
action, fmthtasatt, fee Ha pniiiminary findtess of the imirOEmcjitiil ogMssmtat this effort
indicate that str/end of the federally listed endangered and threatened species cited in AppcndiiF
may be aSected by msmiUintop mining. These spedesinchide the Indiana bat (jWyottslmfoib), .
blacksidc dace (Pkorinus cumbcrlaju!e,-tsis), Virgjnia Northern Eying squirrel (C.'
SlOalnia fasrjs), c'.ubsheil (fleurobena dmd), Qmberljnd bean pearly mussel
/roiate), little-ii'ijg pearly mussel (Pegira/afe/a), Northern rifflcshc!! (jEpioifo.nn<3
jparaz), bMwing pearly mussel {Conradilla caelata), Cumbexlsnd combshell
breviJeia), Cumberland elktoe (Alasmidonta alnptapiaea), Cumberismd
pigtoe (Fwcocafa cor f=>eantm(7fl. Alfeoiigh all of the listed species a Appendix F wfll be
coEsidered in the Biological Assessment, special attention will be givcu to the previously
considered in the BMogJcal Assessment. Information about ft* findings of the Biological
Assmment and the iateaa! wmaltatioa iwiB b« provided in &e Seal US,
EXHIBIT 71
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Section A - Organizations
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1 Mta Robinson - cbivrewriteAvpd
llt» Robinson - dilVeoinni8Ms.«ipd_
IV, Environmental Consequences
Action 25 specifics that, based on the outcome of the internal consultation wi&FWS,EPA,
COB, OSM, and their state eonfitetpafls will idetui^ aad HBjrtetBeat prognaa changes, zs
accessary afld appropriate, to enaam that SituM alining is carried w& la fill! compliance with the
ESA. This action would apply to any of tbe alternatives selected.
fficieni-tiic eperiac-infagmaiieB-to-emMiMimel
wth >' WS to rncgl Ihe requircmonU of fe»
o 'SM€SA ogssoy gnd- FWS-grto'to
i-1, 2, end 3 coll
g aro eagfod o
IV.AJZ. Irreversible and Irrcrritvnble Commitment of Resources, 3" paragrapli, third
sentence, "Consequently, the effects of MTMAT on aquatic resources are irreversible fer >
buried stream segment, but may net be significant to the hydrologic regime within UK
larger watershed." Corjsideriiig that tliraccurd^y of this Etatcnient depends on one's definition
of "hydrologic regmK," it should t» deleted. (For example, my definition of hydrologic regime
iHdudea natural fiiesaal and Sow fjeriotlN^y and &nd good tester quaHty.)
Same paragfupb, later: "Reelama&m tech&lqites eiist to equal or exceed natund Itorest
regeneration and prortiicSvity. ID fte cuses where these techniques are applied, the loss of
resduree imiy be no less reversible than timbering; aad In some eases productivity galas
surpassing forestation oa native soils." I am no; aware of attempts by Burger or anyone else to
develop a ratiiral forest-i.e., one with a diversity of commercid and non-comiiiin-eial species
andajjdeistorys|wcies,asop|Sc«Bd to oomiaeKasHyfearvfistaHe steads ! has created plenty of d:velcpabl:lsiid in
&s study area, costtBry to these statements.
MTM/VF Draft PE1S Public Comment Compendium
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-------
• chIVcatnm»nts,wfsd
Section I VB1 li Indirect stream impacts, 6" paragraph, list sentence: "No findings were
mate that (he impacts downstream of MTM/VF constitute significant dtgradattel of the
watershed.*1 If impaired aquatic Hfe,aad selenium above state water quality standards,
resulting in sttesnas being placed oa the 303(4) list don't constitute "significant de@Edstien,H
what would? "
Section I V.B.I .c. Mitigation, 2" paragspb. The lot sentence raids as if the COB and SMCRA
agoocics &i0 tfc® os&s rc£po£uiibl& Ifor doitK tfao inttf^stsoiL
1V.C. SfrRs & Vegetation. Direct hmacti. 3"1 paragraph. Tkisawjary of Bse terrestrial
Impacts data from file Landscape Scale Cum&Jative topacs stticly l«3$«s o& &9 deta on
distorbed land that existed priur to 1992 (Baseline condition). Because this impacts on the total
loss of foi«^ is fise area 0t*s pait of the trae ^S^MlM feoi^X ft should fee Indued.
Suggested language: "The cumtilatiYe impact study (USEP A, 2002) estimsfeil (by adding past
Impacts, itapaets &om permit issued Is tfee !s^ 10 years, and fleeting 10 yaats iato fee future)
&at nad^ tfle no action altematf*^, 1^108,3^ acres (2^60 sqimi^ talks), or 1 1 peic^nt of forest
habiGt in the stud)- area would be lost due to mining."
Section rVCl , 5° paragraph: " However, regardless of the tree species, the reduction In the
tine minimi to re-establish a forest community equal or better than tiiat which existed on
the disturbed areas prior to raising will also {trwide et&ir envi^Bame&ta! beneflti»n. For
the reasoss ^ated la om* cwim^^ sbove, few Biolo^sts liquid a^es that a "fbreat cotmnumry
equal or better auallhstw'nich existed" will develop on these sites, erenm hundreds of years.
Burger's "better than that wfelea existed" coseept,for tefbrest^ioa r«^s osry to fee ability to
. qafeldy produce marketable ttofear, sot a djvesse tenestrisl eco»)«toa.
SectlBii 1VP2. WHdBfe JPsmilatlBas. 7* aara^asfe: l*There wBI aisa likdy ae ga Increase la
game species such as whlletkil deer and tnrkej due to »n Incrtase in grasslands and the
divci-iificaUon of habitats." This hasn't besn studied Whitetail deer and turkey Desd forests
and are present in unmir.ed forests. The perception that they "increiise" with surface mining
all those dam Uecs in the way) as it has to do with any population response. The sentsncc should
Section IVIlb, Data collection & analysis, V pangraph, 3" lint: ".-demonstrations that
avoidance and minimization also include adequate mitlgatiail™". Avoidsace and
™.demoastraticais tot imjiaste to watss of ^e IMted States have feeeo avowed and minimized
to Ihe taaxiaram extent practicable, and that eempeasatory fflMptSon is oftod to o^to
unavoidable aquatic impacts...."
2003 0327PM
. Cln%_T(bbo8®f»«-go»,
To:
EPA, Dsvid Rlasr/R3/USePAAJS®EPA,
W«lam Hoflraan/R3AJSEPA/US@EPA
Subject BMSna OuSim
..
, Mto Robinson
-------
BRIEFING
Muuntaintop Mming/Valky FfB» (MTMATP)
Draft Programmatic Environmental Impact Statement
I. Context: Brief History of MTM/VF Issue
- Pre-1998 Federal Programs
-1998 Bragg Lawsuit against WV SMCRA Program sad Corps
- Settlement Agreement (Federal Claims only) .
HS
25d-acre limit on use of NWP 21 and Cumulative Impact Consideration
Inwagency MOA
II. Development of HS ..
- Initial direction - focus or> limiting size of valley fills
- Preliminary Version of OSS: FOIA
.- Change of Direction - fbcus on programmatic improvements
- Cost and Time/Delay Issues
III. Key Substantive Concluded/Directions in the DEIS
- Three Action Alternatives * Focus on "programmatic" improvements
- Technical Studies includes as Appendices - Key Finding
• - Economic Analyses
IV. Schedule
- Release of the DBS and Comment Period
- Anticipated Release of the Final HS
- Agencies with Records of Decision
- Implementation and Follow up
V. Anticipating Issues
-Process v. Environmental Protection
Where's the meat? What is being proposed that will improve environmental
protection? What proposals will place limits on MTM/VF?
- NWP2 i /thresholds/cumulative impacts
-Limits under SMCRA - Buffer Zone Rule
-Economic Analyses - Does Data Support More Limits on MTM/VF?
Technical Studies - Do Studies Show Significant Adverse Environmental Impacts?
luSACEARMY.ME>,,
DOR.trSACEARMYJffi>J
! -nsace.army,mil>,
From: "Mike Robinson"
To; , ,
<&rftch snow@fws.fov>, ,
<&the1rkeX.Tro«HQ02.USAC
Date: Mon, JOB 2, 2003 1025 AM
Subject: Hostile Q&A draft
Here's the "hostile" Q&A draft as last edited by Greg Peck, Some are not suited for -web posting,
but were developed in anticipation if they were asked on the teleconference with media on 5/29.
, _
— - - - "..epa.gov>,
.epa.gov>,
,gov>, ,
i.gdv>,
,
.8pa,gov>, , , ,
, "DmveHattosl', "JeffCoter"
Attachments):
AttaehmentFie Uoc
Attachment File 2J22
EXHIBIT 73
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Section A - Organizations
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Here to sot»0 hostile questions we can expect in some Ssim or aaothsr. At &e mammt I have g^ea any
thought to how one might respond to them, but FU tMok on it
Q. An earlier version of this BS, made public at the and of the Clinton Administration,
included limits on the size of valley fills. The Bush Administration, however, hat removed
those limits and made other changes aimed at watering down the environmental
restrictions on mountaintop mining. Given the devastating environmental impacts of
mountaintop mining, which have been documented time and time again, how can you
justify these changes?
White this EIS doss lot recommend msSrfcfcns on valley fife, the Bash Administration
tightened regulramtnts on i/a/fey ffife with the 2001 tmtithorlzstlon of a CWA Section 404
General Permit, Nationwide 21. This permit inquires ih»t, Ifamtdanceis not possible, •
stream Impacts bs minimized and aquatic functions be replaced or reatotKl through
mitigation. These regulmments also apply to any mining proposal processed as a CWA
Section 404 Individual Permit. £scn fill proposal Is evaluated on a case-by-case basis to
catalogue the aoysffc Impacts mdsetmSigeVon.
As the dotafr&m stu&es iww «xffnp&&d oitd &6 statutory requirements i-Bviewsd, tke agencies saw
no legal or technical basis «pyN£PA The aSwiMffwa In the BSsre fmnmd In the context of CWA, SMCRA, ESA,
and CM. While the ewsmfa coordination proposed by tha BS may clarity
requirements for the regulated community, application of the combined and
complimentary technical expertise of the agencies on coal mining proposals mil Improve
project design and lesson environmental impacts. None of the aforementioned acts
preclude coal mining. In Sot one of the main tenets of SMCRA is tml coal mining can M
conducted In an environmentally sound manner to meet the A/alfon's energy needs.
Q. What involvement did Steve Grilea, Doputy Secretary of the Interior, have In the
development of this EIS?
Mr. e/fcsvrasMsfedsartyinaoOlonaiEsJatoofftsB/SfcyOS
aonSrmattanofajfmtttOSHUreetBrJiffJafre& Other than tvctMng routine briefing
papers piapared by OSM for ffts Department Mr. GtHes has not Seen Involved In
finalizing the document
Q. nous tte Fish aod Wild life genie* endorse all the recommendations of (his EIS?
The Fish and MKeBfe Service Is * oo*ad »nd signatory of this draff EIS. They ham Mly
parttelpatmlln®epmpMatlonofthlaEIStromltsln0ipiian,
Q. Was the release of this EIS delayed by disagreements between the Corps of Engineers
and EPA? If so, what was the nature of the argument and how has it been resolved?
SM mtd th* COS are tllsetmiag ese offfie Isrms ofths 8m@g ae^emaRf agreem&nt (i.e.,
•Mter&had!t«^te;d!aFmP21p<:rmSs)ssaCOEReghntiCondVan,ippi;cai:oba^nd
anc/fo.:Iomf>oU>»ff,!5/aS. This ftscuKtoa hss not!tifn!ics:iSi'a^ayad fi'al!?e'.ion of Ihn EIS.
MTMA/F Draft PEIS Public Comment Compendium
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Section A - Organizations
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U. S, Amiy Corps of Engineers
Mountain Top Mining / Valley Rite (MTM / VF) Briefing Brochure
May-June 2003
Surface Coai Mining—
The wa^ forward
.'OVERVIEW OF SURFACE COAL MIM1N6
Coal is important to Americans.
America cannot meet its energy needs or advance its energy independence without ooel.
Thet). S. ratos on coal to maintain its economic strength and will oonSnu* to do so for the
foreseeable- future. Appataehis produces about 40% of trie naflon's coal (431.2 million tons)
annually, 50% of the electricity generated in the United States aomes from coal-fired power
plants, and -clean-burning Appalachian coal can greatly contribute to America's Clear Skies
initiatives. Coal mining provides Appalaohia witti 53,000 job» and approximately $1 .S billion
in direct annual tax revenues to local, state, and federal governments. However, at this
flm®, most If not all coal mining operations in Appalachia am economically stressed to tiro _
point of insolvency.
The Corps of Engineers, EPA and other federal and state agencies ere undertaking
vigorous coordinated efforts to.help bring mountain-top mining operations into full
compliance with- improved Clean Water Act regulations. Our goal is to implement a
science- and watershed- based regulatory regime .that is successful in providing the
regulated community with the most practical regulatory tools to assure Americans
the continued sustainable use of America's coal resources.
Surface mining 18 a significant part of the Appalachian coal industry.
Surface mfaraig as generally flic most ecoaoaSoal form of coal miBiag. Of the estimated 553
HlBan tons of recoverable ooal reserves ihst remain in the Appateclian region (over 100
yeajs sopply at the cuireiu rate of recovery), about one third caa be surface mined. The term
"monataintop mining and Yallay IBs" (MtM / W) describes & type of jur&ce miaiag that is
relatively conHQOa is Appalachia. la MTM /VPmiamg, the overburden of rock and dirt that
is removed fan sear-surface coal setms at flie top of steep Appalachian mountains and.
ridges is deposited to the adjacent -ravines and valleys,' "The SH'areas'^e referred to as
'Valley fills".
pioBcrs.iieViT2ioi.DMME
The U.S. Army Corps of Engineers issues permits for valley fite.
Valleys often inoiud* waters and watersheds that are partof headwater ecosystems. When
waters are imp»at«J, vstey Ms become subject to Section 404 of tt» Clean Water Act
(CWA) that regutetss fill mtterM placed into "witers of the United States". Tha Army Corps
of Engineers is the primary federal authority responsible for issuing Section 404 permits,
TWs is aecompflsfiad efther ijy a Ssoflon 404 Indivaoal permft (IP), or through ttw use of the
Section 404 general permit (GP) known as Nationwide Permit 21 (NWP215. TTieSecflon
404 program is Just one of several State and Federal permitting programs applicable to
surface coal mining.
EXHIBIT 74
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litigation against surface mining has often focused on the permiBng process, significantly
Kentuckbra tor tie Commonwealth, Inc. v. ftlvenburgh. <
An unprecedented Interageney effort is currently studying the permitting of suffice mining
and, as a result, steps have already been taken to improve those processes. These recant
actions are summarized in Section 11.
There are marry operations that require, but do nofryethave, arr NWP 21 authorization,
Due to the effects of litigation, recent actions to restructure the permMng program, and
other factors within the mining industry, the Corps currently faess a backlog of permit
requests to be processed. For example, only tweniy4!ve Nationwide Permit 21 (NWP 21)
permits have been issued In the Corps' Hunfington District shoe January 29, 2003. At
present the Corps' NWP 21 backlog consists of approximately:
> 90 'submissions received but determined to be incomplete
> 8 complete submissions advanced to Pre-sonstructlon Notification (PCN)' ..
> 15 submissions in post-PCN evaluate!
> 6 submissions evaluated and ready to issue
> 4 non-compliant operaflons under enforcement
>• Potentially' 200 ongoing operations that have not yet submitted applications for
permits '
Actions are being taken to address'the need for permits and to improve the NWP 21
authorization process.
Insights gained during the interagency programmatic review and other Initiatives have
yielded a greater understanding of how mining operations relate to tha various regulatory
programs. Future actons will provide Important environmental protections and enable
mining activities Jo continue within an efficient and effective regulatory structure.' These
actons will focus on:
> identifying and stopping un-permttted mining operations,
> identifying bottlenecks and streamlining the regulatory process for operator* that
- require pstmlts under multiple programs (Clean Water Act secSon 402 and sscSon
404- programs; the Surface Mining Conservation and Reclamation Act program; etc.),
and
> utilizing scientific assessment tools to determine 8» dsgree to which a water body's
ecological functions would be unavoidably impacted, and how those unavoidable
Impacts might be sufficiently mitigated.
Upcoming actions planned by the Corps and other agencies to address this problem are
summarized In Section HI.
The-*way forward* reflects the Corps' Intent to*.
> ensure that NWP 21 will continue to be available to accomplish sustainable usa of
coal resources;
> communicate our policies wilt clarity to tha regulated aornmyniry, and ensure that
those policies are practicable, predictable, and consistent
> assist the regulated community to comply with apply state-of-the-art technology and science to advance environmental stewardship;
> Implement a strengthened, more thorough permitting process to help permltees, tie
permitting agencies, and the courts avofi costly IIBgatBfi; and
> focus trie agencies' enforcement resources on uncooperative operators by directing
the most stringent enforcement options toward them and reserving lesser levels of
enforcement for cooperative mining operators,
SECTION II; RECENT ACTIQWS
Summary
Federal agencies, State, and local governments, in voluntary partnerships w«rt stakeholders
and In response to ItHgaion, have In recent mentis undertaken an unprecedented
collaborative- eftortto;
> Consider the prabisms associated with assessing t» cumulative effects of multiple
fills wttln a watershed, AKtoughth»«ffectofasingl»fllllnavall»ytiatcprr^ifis, ,
only an ephemeral stream may be "InsionBtanf , the overall effect of rnsny such fills
.may-not be,
> Require-approprfate and pracfcabte rnfflgaflon In all eases where vsatarbodies are
Impacted, even where tha impact Is consldwed to be minimal
>• Conduct a programmatic review of til permitting procedures and policies related to
surface mining to assure greatest efficiency and efficacy,
Examples
t-Fqitv-four Nationwide Parmlts were reissued. .
On January 18, 2002, the Corps reissued its forty-Jour Nationwide Permits. Nationwide
permits are general permits deslgnad to provide sfreamlinad authorizations for those
projectS'tfiat have no more than minimal environmental impacts. Eleven NWPs (Including
NWP 21 for Surface Coal Mining) end seven Qenera! Conditions were actually modified. •
Due to the modiftaaipns.-in ojrder to continue work in waters of tha United States, those
mining operations wISi previous authorizations under NWP 21 are required to t»
reauthorized snd to comply with new requirements for providing appropriate and practicable
compensatory mltlgaflon to replace aquatic functions lost as valley streams are filled with
mining' overburden {valley fifis).
ic MaHcia/02-248-21-l.ndf>
»• EPA's definition of fill material* vims adopted by tha Cam.
On May S, 2002, the US. Army Corps of Engineers and the U.S. Environmental Protection
Agency published in the Federal Register a final rule to harmonize differences befewaen
existing EPA and Army Corps of Engineers regulations by adopting EPA's effects-based
approach to the definition of She term "fill material." The Corps''!ongstanding ^primary
purpose" test has been replaced with sn-eftects based test - (hat is, fffl material is that
material placed in waters of the U.S. which has trie effect of either replacing any portal of a
water of We U.S. wtth dry land or changing tha bottom elevation of any portion of a water.
Examples of (ill material Include rook, sand, soil, clay, plastics, constructor! debris, wood
chips, and overburden from mining or other excavation activities, Including coal slurry.
. Regulatory Guidance letter 02-2 and the National WetlandgMtHiaten Action PMo
On December 24, 2002, the Bush Administration affirmed te commitment to the goal of no
net loss of our Nafion's aquatic resources" by undertaking a series of actions to improve the
• ecological performance of compensatory mitigation under tha Clean Water Act and related
programs. Implementation of the 16 action items contained in the National Weitands
Mitigation Acton Plan will help ensure affective restoration snd protection of the functions of
our Nation's wetlands. The specific acton ifama focus on achievftig ecologically sustainable
MTM/VF Draft PEIS Public Comment Compendium
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Section A - Organizations
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mitigation Informed by science, Improved Bocountahlty and psrformflrtca monitoring, and on
providing Information arid options to those who naed to mitigate for kisses of aquafc
functions, including mountain top coal mining operations.
< h^mmJil]3mMni»TOilMMitiiBfo^
«-The draft MTM I VF Programmatic Environmental Impact Statement was released. ,
On May 29, 2003, the second draft of this sxtensive, Interagency study was released. This
document provides a roadmap for agencies to cotaboratively Improv® the permit application
and review procedures. It also identifies the data needed to support quality decision-
making, where that data is available, and where it is lacking in the current process. The final
version of ihe-PBS will be completed before the end of 2003, after an opportunity for further
public review and -comment
*-Thf89 new Regional Conditions to MWP21Vj>afia establishap1.
In June, 2003, the-Corpa promulgated three new "regional conditions" to NWP 21 at an
interim measure. The Corps is committed to using science-based bio-assessment tools to
fully and accurately determine environmental impacts and to better determine rnrUa,stion
requirements. Where such tools ar» not already available to be used, the Corps has placed
three new conditions on the use of NWP 21 ttiat
1 ) establish a "ISO-acre watershed* ttireshold above which Individual permits, rather
than th« NWP 21 general permit, are required
2) require blo-tssessmerrts to aid In avoiding and minimizing aquatic impacts
wherever practlcaWs, and assessing cumulative impacts on the aquatic
environment, and
3! require appropriate and practicabio compensatory mitigation to offset.
unavoidable impacts to waters, and require that mitigation actions are based on
the biotfc and hydrotagic functions of the aquafc resources impacted,
/i^tfoj^ *
§iCTIONIJU UPCOMIN6ACTOMS
ftt aoainst i»n-cpfflg)vlng .mining operations
Racent EIS related data collection has given state and federal authorities "reason to believe"
that there are numerous non-psrmitted mining operate* taking, place throughout
Appaiachia. Identifying ttie operators who deliberately disregard regulatory requirements
has therefore become a hiflh priority. Th» EPA has statutory responsibility tor enforcement
aoSon against un-permittod operations. Similarly, identifying operators who are exceeding
their permitted authority or who are not mesfinfl their permit requirements is a high priority
that Is the responsibility of tf» Corps of Engineers.
'•Assistance to k«en cooperating mlnas i»rMncii9-6glni_PtenJ
Thens.is a 'baeWosf'Qf mining operaions *«t ars now technically ui>parrnitted because . .
their permits have expired and their submissions for new permits have not been fully
processed. Many of ttteseopsrtlons only teesn% submHted-thslr renewal applications,
due in part to the general confusion that fias existed -In the past year about permitting
requirements. Most applications that have been ree»iv«d am not complete by the new
standards.
LSIaafcn In the U.S. District Couftttfflt cows West Virginia and Kentucky caused many
operators to beiiav* that they would have to atMt operations at gorna existtng projects,
and that new muthortaflorts could not be provided. Also, due to court order, ths-Cqrfia'
HunlSngton DfeWct catdd festwno new permis -for surface coal mining operations unless flits
had constructive purposes from May S. 3002. to January 29,2003. Consequently, the •
regulatory envtronmant wss frauBhtwlii uncertainty, making it dlftott for the Federal
government to Issue dor fluidsncB for n»w autiortefions. Yet all old NWP 21
authorizations expired In February 2003, and eouW not be extended or grandfstharsd.
MTM/VF Draft PEIS Public Comment Compendium
A-525
Section A - Organizations
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To deal fairly wift cooperating operators who find themselves in this situation,.the Corps and
its partners are pursuing a NINE POINT education and voluntary comptenee strategy, but
reserve the right to use anforeemantlods for willful, flagrant, or repeat violators at any time,
The nine element of this action plan include:
.1) distribute an InformafionBt note explaining the need for obtaining new
autatetions under, certain drcomstances, and encouraging mining oompantes
• to oontsotthe Corps or'gfrAfcr information and advice -(May 20, 2003)
2) ;cofteeoraia vofth State* to hold, parmHng vnortetep».to explain the rww NWP
requirements.and provide guidance on how bast to genaraiB a complete permit
appllcmaon (Arts-July 2003)
3) establish- Corps Tiger'Teams, using personnel from ottl«r 'districts to augment
staff-in districts wrtar* needed, to ftxpsdfts processing of NWP 21 Pro-
Cbnstruete Notes. (June, 2003)
4) establish interagency teams to simultaneously, ratfiartttan sequentially, process
permit applications (June 2003)
5) implement a "selteidlf'program in assist mining companies witti efforts to coma
into compliance (May 2003)
6) usa Performance Sends and/or Letters of Credit to ?Ilow soms work to proceed
. under permit conditions, while mitigation plans are comptoted and approved
7) When appropriate, fcvilop anfl use In-Lteu-Faa Arrangements and Mitigation
Banks to facilitate wWgaion activities1
8) continue intemgency efforts to (a) Integrate the processing of 401,402,404, and ,
SMCRA permits to the greatest extent possible, and (b) ensure that the
information required In permit appllcaSons is limited to that intormaBon actually
necessary and useful to the agencies' decision-making process .
9) dtystop standard presentation formate for use by operates that require permits
from more than one agency, so that applicants'can submit commonly requfrsd
data in a feshtan that meets the naeds of all agendas rather than each agency
requiring its' own distinct presentation format
'•Development and adootton at Stream Agse««mant Protocols
The Corps, in partnership with other Federal and State as*"**,!* developing Innovative
stream assessment protocols that can tie applied to specific types of streams and specific
hydro-geologic areas. The-protocois will focus on the Idenflftcstton and measurement of
' owe and abiotic chtrsctaisttcs-of stream environments as indicators of stream heaBi and
function. Once coordinated wift tm States and putste, these new standards can replace the
non-science-based, ona-sizeJts-alt standards that have proven inadequate for assessing
the quality and functional value of streams and mHgafion projects. Stream Assessment • .
Protocols are an axceilent example-of a staff level WBafive-on the part of Corps'and state
environmental regulators to'devalop belter, science-based regulatory tools for greater
efficiency and effcacy.
1 .ndf >
United States Department of the Interior
OtnCB OF S0RB«S MBffiJG
SBCLAMffllOW AND WFOEC33fflNT
Appalachian 8«8iMis! Coot^Mting Center
Httstegh, PMms^vsnk 15220
is! 22 tea
Mr. JimHecte
Trial Lawyers for Pablo Justice
1717 MasMJCtasett Avenue, N.W. ««00
Wasbingtan, D.C, 20036
Re: OSM-2tW3-00042«)S-2003-00727/PWS-2003-OOT?l
Dear Mr. Hecter:
T%ls is to response to your Freedom of Jnfornalion Act (FOIA) request telatcd to flje
preparation of the Environmental Impact Statement (EIS) on mountaintop mining and
valley 611s to tie Appataefcion coalfields (64 Fed, Reg. 5800, Feb. 5,1999). TMs request
Is limited to iB&tmition received, seat, or originated stace April 15,2002. Specifically,
you requested:
1. Virittcn and eiectronic documents that are part of the administrative record for this
BIS;
2. Letters, memos, e-mails, tde&st® or otbercscoj* of oomnnmicatioiB between
employees or agents of your agency aid anyone oatstde lie executive teach of
the Unted'Sistes related to fte US;
3. LettaS, memos, e-B»Bs, teletees or oter records of ootnmumcationa sent by or
amoagmemb^s of the agencies of the EIS Steering Committee related to tbe BIS.
This i» flw Department of te Interior's CDOI) final response to your request and
supplements-our responses to you dated July 29, August 8, and October 30,2003.
Enclosure A lists the remaining documents we are releasing ia response to your request
Bnolosare B lists fte docaraents, and portions ttereot we are wifliholding fee the reasons
cited
Sue F«4iofl Uejimr No«te, Jtevestor 1, 2000, ?«a«m ftiamos m Use of Bi-U«u Fn totmemm" *»
CttofmnalKS MtiptitB ttnto SxaioB 404 of ffi« Ctoa W«r As aid SwtfM W of *e WVKS »d Itotots A« ft«-
>; Fsdiral nub
...
1955, f otal OaMaw ea ttt iK*Ii*aBal, Os» lad C^twiMi
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MTM/VB BIS K>IA
Eecpester; 1. Hedcer
Tbe following docenaems, or portions -ttaefeof, are being witMield for the reasoas died:
Exemption 5 0.S,C-SS2(b)<4): "T^aSe Seems, eoainwiM or Ssaseia! in&rtaaiioa obtafcied from a ijersoaal aad pdvlleged c
Exemption 5 XI.S.C.SS2{b)(,5); "loter-ageacy or iotra-ageney jsetsoraafla or boon which would not &e avatts&le by law to a patty
other tbaa an agency in litigation witti fee ageeey*
Exemption S U.S,C.5$2{b)Cg): "Personal laatfmadoa affeetifig an individual's privsey"
B-l. April 15,1008
B-2. April IS, 2002
B-3. April 13, 2002
&4, April 15,2002
B-5. April 16,2002
M. Apil 16,2002
B-7. April 21,2002
B-8, Aprtt23,MXB
B-9. April 24,2092
Fax SXBQ OaMessa SJaort, FWS, to BeEifaaiin Toggle, Sam Hamilton, Massfe Patfest , David
Densnsore of FWS; Sufejftct: McantaiEto|j Mi»is$ Draft EIS^Frefewed Altetnative. Entire
document wifl&ffiM (5 pages) under Hxcmptiaa (bX^) 8S deJibeistive process prfv0cge<3.
B-matt from Cafliieca %art, FWS* to Slurry Morpa and o&er FWS redpeais, Saliject:
Steve Griles* meeting 02 April 29 oa mmmtaifito^ ffliaiag E!S 0ncladfis as additioaal Aprffl
15 e-mail &om Sfceny Morgan to same teciptois OQ S&CDB subject). Es£ire documeat
Withheld (1 page) under Exemption (b)(5) :-^ deiit-Kraiive process pivQeged.
E-mail torn CatMeea Stet, FWS, w Maasie Parleer aod other FWS recipifists, Subject:
Stew Griles* taeeting os Apiii 29 - Morgan, FWS, with copies to nruitiple FWS recipient.
Entire (iociaaenE wfiWield (2 pages) uiuier Exeiaptioa (b)(5) as deHbeafive process
privileged.
E-mail from Maimc Paite, FWS, EO Sfeerty Morgau, Dave Deaiaaore, Sam Haioitoa,
CyaiMa Dotoer, PWS; SuJsject: Moiaaaisio|) Mining ConforeiKie call mining (Includes two
adilitioaal FWS e-mails, same subject), lutir* documeat wlibljeM (3 pa§es) under ExeirQHloa
MoastalitO|) Mining MS AlteraattveB, Bstire document wiih&eld (1 page) tmder Bxea^IiQa
(b)(5) as deliberative process privileged,
E-mail torn Story Rtoisa, FWS, to Dave Beasmore, Jeff Ustewsod, aM Stie Essig, .
FWS; Subject: Steve Oriies' meettog oa motmlaratop mMi^ (fectodes ^o addida^
e-in,iils, same subject). HrJirc documcn; withheld (1 page) tmricr ExempLion (b)(5) cs
B-m^l from Nancy Btodcrick, OSM-HQ, to Mike Robinson, OSM-ARCC, forwardiDg
e dociiffients. Entire dcKxtmsM witaheld (11 pages) under Exemption (b)(3) as
E-ma2 froai Sheriy MoKgan, FWS, to Dave Deasmom, Bes)2iala Tuggie, Sue E^ig,
and Jeff Undtnwood, FWS, rsgardingMTM conference CidI 0:1 Hridiy. KsUre document
(1 |mge) tmaer Bjaao^Hm O)(5)
TRIAL LAWYERS FOR PUBLIC JU3TICE, P.C.
January 21, 2004
Via ISitinil (forrcn.jolin@epa.gov)
Mr, John Forreti
U.S. Environmentat Protection Agency
Region 10 (3EA30)
J 650 Arch Street
Philadelphia, PA 19103
Re: Supplemental Comments on Draft Programmatic Environmenta) Impact
Statement (DEIS) on Mountaintop Removal Mining/Valley Fill Activities
id AppaJachia, aanoimeed at 68 Fed. Reg. 32487 (May 30, 2003).
Dear Mr. Forren;
The West Virginia Highl&»ds Conservancy and the Ohio Valley Environmental
Coalition submit the following supplemental comments on the Draft Environmental
Impact Statement (DEIS) for moutitaintop removal mining: attd valley fills in Appalachia
These comments supplement prior comments submitted on January 5, 2004.
We demonstrated in our initial comments that mountamtop removal mining and
valley fills (MTM/VF) arc associated with violations of the stream water quality criteria
for total selenium in West Virginia. We criticized the DEIS for falseJy claiming that "th«
EIS studies did not conclude that impacts doeuitietited below MTM/VF operations cause
or contribute to significant degradation of waters of the U.S." DEIS, p. H.D-9. We also
criticized the DEIS for failing to propose any remedies for those selenium violations.
A new study released by the U.S. Fish and Wildlife Service (FWS) confirms the
seriousness of the selenium problem, JDuri.tig the spring and summer of 2003, FWS
conducted a survey of selenium in fish, water, and sediments in streams in southern Wes
Virginia, In a January 16, 2004 letter to the West Virginia Department of Environmeota
Protection (attached), the Supervisor of FWS* Pennsylvania Field Office, David
Densmore, concludes that:
« Selenium was present in aJJ fish samples.
* Selenium concentrations in fish in three watersheds exceeded the toxic effect
threshold level for whole fish.
* Selenium is bioavailsfole in West Virginia streams, and violations of the EPA
selenium water quality criterion may result in selenium concentrations in fish that
could adversely affect fish reproduction.
5-5-2
800
OR, OC 200;
02) ?W-«6C
2O2) 232-72O3
Cofilttl dffioe
&«ser i%-«l
Z7S
1, CA 94612-3
fe(5IO)«a-8IS
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01/21/2084 10! it
JI-H-MM H-.W--I. MHMttimill IT WTItt
JM-JM-IUI
T-JII
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Mr. John Forren
January 21,2004
Page 2
• In some cases, fish tissue concentrations were near levels believed to pose a risk to fish-
eating birds.
to light of Hits study, the DEIS has no scientific basis for claiming that MTM/W
operations do sot cause or contribute to significant degradation of waters of the U.S. The FWS
study demonstrates that significant degradation is already occurring. BPA's 404(b)(l) Guidelines
prohibit activities that cause significant degradation of aquatic ecosystems. 40 C.F.R. §
23Q.10(c). Therefore, the DEIS must address this issue and propose remedies to eliminate all
existing and potential stream degradation due to selenium contamination from MTM/VF
activities.
Sincerely,
5-5-1
. Hecker
Counsel for the West Virginia Highlands
Conservancy and the Ohio Valley
Environmental Coalition
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A-528
United States Department of the Interior
Dawor,
West Virginia Department of &lvirotujKotsl Protection
414 Sumnxrs Street
CtarteftOB, WV JS301
Dttr M*. Tsoserr
During the*priag and smnmer of 2003, we oaductrf a Mrvqr of trfaA«n » feh, waiisr, aa4
sixJinemsia various watrrbodics in eoutheraWest Virgirja. Bccaiac tJ.S, Envtomntd
?roreclron Agency studies forTIS; draftUnvironhienUl Impact Statemra.t OB Mounuiitojj
Miniig/VaEey Fills found high jslraiumroncLTjtr^Jiins in waters downstrcsrn of vsllcjr Ells,
and salasium is hifily biaaccurnulativc and IOKC to fish and wildlife, we were inttrcsied in
determining whether the waterhorae sfteniura downsneam of valley Hlb is ascumdaimg & &h
tissues to eculosicallyreifvarit levels to addtion, bccaMSO mercury is MSOCtatcdwifii coal and
also Woaccaawte*, *e initially inctedsd nssraay in eur stejfal analysis.
We conducted our tarcpling May 26-30, and Aii(nin 19-21, WOS. Most of the streams wo
sampled wtreprrMHsVfiim-ipkd for ssienium in wgtci by EPA or WVDE? As a OMHUttteg
measure, wa did sot collect water sampiM to those locations; however, we AM coJect a sediment
simplest each tocatioa Whm sair^lins stream fish, we targciedprinarily creek chubs a:!d
biacknose dace. These species are fffidentbiojiccurttaiators of selenium (bioacamiuiatioa
ftcttai of 4,S45 and 4.SSSO, RSpmivefy, !*&son ft at. 2W), and woaM to expected to ««TWB as a
Food source for teds such as tie belted kingfiste and post blue ieroD. Ssitni'um in fish
consnmari by these birds could be transferred to offspring in bird eggs, resulting m embryo
aKUtt^y or deformity (Lemly 2002).
W« t!st> tta$tA SsKt Ljam aid $&& Fofk Laket ia W»yne County, and one 9tn»m in eaetiof
their w.itcrahcilj (Trough Fork and Miller't Fork, respectively). The East Lynn watershed is
hMviiymked, whiic the Bcec))T^srlt^t«Aed is relatively uo*sturbcd by niung. For the
late, we targeted bfersilJ, fargerooutb. boss, gizzard shad, and white crappia. Saajto tedudcd
Whole (tsh, fillet (left side, skin on, scaled), and eggs
Tiblc 1 provides r
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WW-KMTAfll it JWTfCt
M4-J44-I14I
MM f.tUrtM,-
Bwadx. Table 2 providss emikl for Bast Lyro a;id Bwch Fork Lakes, and Trough aad Mffler's
Ftwks.
MJBttatyBH^tWMCMdOMedanljrMitMitftowllwkHlfaM^. Mneny-wutraanaB
one toeimfifii napl* (creek dmb« ftam Stanley Pork), tart «w preeew to may of flxs lake ftfc
soinpte- Mercury was not tbifflrt in any of our scdimcal samples, or in any of four water
««lattis«tte«isw?!l«$,weiB4aot«ufcaiit
swpbi. Bee«»erfiheowK!<«a
tile August sueam 3atnp!ss for BKrcury aaafysk
tile August sueam 3atnpss or BKr
Selenium was present in all fish saniplcs As » gMidcliEC for e«ihiating the ecological
siSrifewee of the selmiiirn wncenmitiuns, we used Lc-mly (2002), Bas«l.Qn a sjmthajs and .
iatapretatiou of scientific literature, Lady tea Mlablished "toxit eiftrt thrcshol Ja for sfilauurr.
in a/orostic isosystems," vUeH be desaibes as "itvsli at which tnxic eR'ects bogm t« occur iii
seoaitive species of &h and aquatfc birds They sre not iCTtb that signifV the poto ai which all
spMies dfe ftoin selenium puiKuning" (p- 3 1)' l-cniiy'5 values and associated btobalcijj uffiscts
in fch sr« 8 pfm (dw) for diets' (reptoductive lailure), 10 pprn for eggs (rcpicxJucuvt tiiiurt);
»^4ppmforwbufetiJk(inQrtalttyofjuveiLnos snilrcproclxictivtMure) For rcprrxlucth'e .{
failure in bffds, Lcmly dies ? ppm in food chain orgaiiisnii
Cresk chubs and blackiiose tee collected &om Traco Branch, Sugartres Branch, and Stanley
Fork (whweHPA or WVDEPtirfprev»Rs!yidairiSedialeni«m witter oonccntrst:MW above tte
EPA chronic water quality crilerimi ol"5 jigfl) cojltaim.il seloiiwn at conccr.tratioiM above
i.ernly's 4 ppci toxic effect threshold Irvclibtwlmte fish. Our water sample ftom a vaSey fill
scdimentetion pond M tte head of Trace Brandt hollow contained 6,44 (ig/1 selRninra, and
Wiicgi'i! raptured to As pond contained 6.89 ppm ntetam. Selenium levels in fe!i stuoptet
ftoai tbe trace Braodi poni and SngKWee BOBS* W«B jmt Ixikrw fee 7 ppm artsftold -witeefor
reproductive failure in birds •
Kali from several sO'cans where other agenci« W documented stream selenium conceniracom
arcatcrthmtiieBPAciitOToncliJnot wceedthe1«n!ythTcjholdvnlucs. Aroons nsmy uostibl!
. . «aqptaaats«s to tWs ii eviteice Ihs aA* w«et quaBly paraja«a«, csi»«c«% »ulfttte8, e»n
iaterfare with sdraium uptake (Great IjkesEovironrnciiSal Center 2002). In studies related to
j.» »M «.. »»,,«,»,!«„„ tntftie. BPA UeaiSed higji sulfeto oa«s«irajxjaj w JB«^ tsn^ing
'locations.
lUfettWMS&.
No filb or fish eggs collected ftomBeeeli Fo* Uke eg Bast Dm Wt« cont»in«d teterinm «t-
ccmccntrations «bove Lciiily's thresholds Hownsw, tissue sslenium coucentratincs were
generally liiglitr in tie East Lyan soirrples, astd long^crra rnaoiJoriAg of tte situslioii is
advisable. Sdeniumcccc™traconsiri awiciiul) earnpSafronllxjlh TrougiForkaodMulcr's
Fork were low relative to other strearrs in our survey.
Nat? thii Load's ffllttvahiei u»
ST JUST1C!
T-»W
s in feh (hat coold^'eraclyaffnrf fish reproduction In some cases, fisia
tissus concearrafioDS were near kvtis bcl-cv-ed to pose a risk to Ssfa-eatilf, birds. It is likely that
twsibfc 4»«*istBS in sows of ttese »«««« woild be sJoaWy «js«iifBteated,the«%pMiBga
risk 10 Krds that depend upon aquatic inaects a$ 4 food mpply (c.ff. , Loukiaoi wmaUirush) .
Accoritoigly.wsbskeve that the potCTtial for release of sj^aiuiiiduriag and afta-ffliriing should
be assessed to etKure that fatorepniatsarB not itsusdwhsreth^ea a likelihood th^tsclojiiiiJi '
water qush'ry atandards wfl! be violated We we Hume tint Ike Went Virginia Geological Survsy
his analysed the sclcniuir. coutait of CM! in varioys locations (www.wvgs.wvnet edu/
/dtttastat/tci/Maps/SemEpniax.pf) If thuso feiulw can be cerrclatcd to the selenium water
irtTOWtsfor
permit applicants that
If yotttow aty «mtic«i «^«*« tto kfbasatiw, jtoM« «»Me» CWrTiMwtt of my ftsff *
SI4-2M-4090, ext 226.
Sinraa-ely,
Otrid Daumra*
Litorature
. 2002.
K'-.V--.-.- ' TIWBW«09;ML
, A.D, 2002. Selerfwi asi«sma« to aquatic ewsysfcmj;
la. Mw York: Spi^«-Vef% Mew Yi»k,6«i. 162pp.
MIMB, ». *„ J-M. L^jorte, nd S. Antes, 2000. f«Stori MWto!&lg ihe Woa«!i»ri«ttoof .
nweaty, Mtwie, >ete*i«. «
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Recommendations for Pre-Mine Assessment of Selenium Hazards
Associated With Coal Mining in West Virginia
prepared hy
A. Dennis l-cmly. Ph.D.
Senior Scientist in Aquatic Toxicology
January 5,2004
Selenium gained recognition among research scientists, regulator)' authorities, and
fisheries managers in the late 197ffs when the landmark pollution episode tank place al Belews
I^ake, North Carolina. Selenium released in the waste from a coal-fired power plant entered the
lake, killed the fish community, and caused residual impacts for many years after selenium
inputs wore stopped (Curnbie and Van Horn 197K; l^mly J985a, I997a. 2fl02a). The primary
l&wons learned from Betews l-ake were: 0} Even small increases in waferborae selenium can
lead to devastating effects on aquatic life, and (2) Once selenium hioaccuitmlation in the aquatic
food chain begins H is too late to intervene — pre-poliution assessment and management are key
to preventing impacts. The lessons from Belews l.ake were instrumental in the development of
USHPA's current national freshwater criterion for seleniam (5 u,g/L frnicrograrns per liter)).
Since the Belews lake episode, a tremendous amount of research on the toxicology,
environmental cycling, and hazard assessment of selenium has taken place (e.g., Frartkenberger
and Bngherg 1998, Ijemly 2002b), In addition to learning about its toxic potential, much
information has been gained on the sources of Jietaium and how it reaches the aquatic
environment, particularly with respect to coal mining and the coal industry (lenity 1985h. 2004,
Dreher and Fintelman 1992, Vance et al. 1998).
Need for Pro Mine Assessment
The lessons from Belews l.ake, supported by over two decades at" research findings from
many other locations throughout North America (Unity 1 W7b, 1999,2f)02b: Skorupa 1998a.
Hamilton 2004). underscores the need to take a preventive approach to selenium pollution rather
than attempting to deal with it after contamination has taken place. With respect to coal mining
this means pre-mine assessment. Failure to adopt this approach can only worsen the selenium
pollution and associated ecological risks that have emerged in West Virginia. Selenium-related
violations of the federal Clean Wticr Act need not occur if careful pre-mine assessment is used
to guide mine permit decisions. Clearly, much attention is focused on management and
regulatory authorities in the state, and it is imperative lhat environmentally sound actions be
taken in order to siem the escalating threat of widespread .selenium pollution. Using pre-miiK
evaluation can safeguard natural resources hy allowing site-specific risk assessment and risk
management to take place. This is the prudent, environmentally responsible course of action.
Background on Selenium
MTM/VF Draft PEIS Public Comment Compendium
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Section A - Organizations
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Adopting this approach will benefit the state and the mining industry by demonstrating thai all
activities arc being developed and implemented with the goal of preventing selenium pollution,
thereby minimizing water quality issues that may lead to litigation by federal agencies and
conservation groups.
Recommended Procedure
Geological assessment is the first step to understanding the environmental risk of
selenium at prospective coal mines. It is essential to determine selenium concentrations of coal
and overburden that are to be moved because once these materials are exposed to air and
precipitation they can leach substantial quantities of selenium (e.g., Davis and Boegly 1981,
Beaton et al. 1982), which begins the mobilization process and threat to aquatic life. Because
selenium concentrations vary widely in coal and waste rock at a mine site (evg., Heaton and
Wagner 1983, Desborough et al. 1999). a thorough representation of the geographic urea and
depth of disturbance must be made. This entails making a minimum of' one core drilling per 5
acres, extending into the coal bed that is to be extracted. Two samples (about 450 grams each)
are taken from each core: one consisting of overburden material and one of the coal itself. Each
sample is evaluated using a passive leaching test (see Heaton et al. 1982, Desborough et al.
1999). The first step is to crash the coarse sample with a hammer to produce approximately pea-
size or smaller material. The resultant material is mixed and some is put into n beaker with
deionized water (pH 5.0-6.0) in a ratio of 1 part sample to 20 parts water (use 5-20 grains of
sample and 100-400 milliliters of water). Let stand for 48 hours, decant and filter (0.45
micrometer mesh) the liquid, acidify it to pH <2.0, and analyze the liquid for selenium
concentration using a method with a detection limit <1 jig/L (pari-per-WIlkm). The results of
these tests will generate a spatial profile of selenium mobility at the prospective mine site and
allow a screening-level evaluation of hazards to aquatic life that an be used to guide subsequent
assessment and regulatory decisions.
Evaluating Selenium Concentrations
The traditional approach to evaluate waterbome selenium concentrations is to compare
them to the USBPA national freshwater criterion (5 jig/14- Concentrations exceeding the
criterion should be viewed as posing unacceptable risk to aquatic life because of the likelihood
of bioaecutimlatkm in the food chain. However, there is a growing body of scientific
information which indicates that toxic impacts to aquatic life can occur when selenium levels
reach 2 u.g/L, particularly if the selenium is predominantly in the selertite form (which is the case
for coal mine selenium), and the contaminated water enters a wetland, pond, reservoir, or other
impoundment (Frankenberger and Engberg 1998, Skorupa 1998a, Hamilton and l-emly 1999,
tartly 2002b). Because of these findings, a value of 2 ug /L has been recommended by several
selenium experts as the concentration limit necessary to protect fish and wildlife (Peterson and
Nebeker 1992, Maier and Knight 1994, Skorupa I998b, Hamilton and Lemly 1999,1 .emly
20021), Hamilton 2004), and USEPA has begun a review/revision process for their national
freshwater criterion (USEPA 1998, Hamilton 2003). Moreover, based on broad experience
dealing with a variety of selenium contamination issues, including coal mining wastes, the U.S.
Fish and Wildlife Service and a number of state water quality agencies have adopted a value of 2
Hg/L as their management or regulatory standard (see Engherg et al. 1998, Skorupa 1998b,
Hamilton and t^mly 1999). I recommend that 2 ug /L be adopted as the maximum acceptable
concentration of selenium in wastewater, drainage, and leachate associated with coal mining
activities in West Virginia.
Comprehensive Assessment
By examining (he results of the leach tests and applying a 2 u.g Sc/l. water quality
objective, field sites whose disturbance by mining would pose a hazard to aquatic life can be
quickly identified. If clear dangers are evident — i.e.. leachate selenium concentrations exceed
2 |ig/L — then it is desirable to examine the operational characteristics of the proposed mine in
the context of a 5-step comprehensive assessment that includes provisions for altering mine
operations, establishing TMDU for discharges and, in one scenario, not permitting the proposed
mine to be developed at all (see page 5). This approach will allow site-specific hazard
evaluation based on local hydrology and biological conditions, and provide a precise fine-tuning
of the screening-level assessment generated by the leach tests. The methods used for
hydrological, biological, and hazard assessment are techniques that have been field tested and
published in the peer-reviewed literature (Lemly 2fX)2h). Technical guidance is available for
those unfamiliar with specific components of the procedure (email contact dlemlyg'vt.edu).
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Comprehensive assessment will provide the information necessary for policy makers to reach
environmentally sound, scientifically defensible decisions on mine permit applications.
Environmental goals met
V
Mining is permissible
Goals not met
Mining is not permissible
Selenium content of coal and overburden
V
Leachate test
7
Selenium mobility eharaoteriiation
V
2. MIKE OPERATION ASSESSMENT
V
Waste disposal methods
V
Waste volume projection
V
Daily selenium load projection
V
3. HYDROLOGiCAL ASSESSMENT
?
Delineate and characterize Hydrologies! Unit (HU)
V
Estimate selenium retention capacity of HU
V
Projected selenium concentrations
V
4, BIOLOGICAL ASSESSMENT
V
Aquatic life [present in HU
V
Sensitivity to selenium
¥
Priority species
V
5. HAZARD ASSESSMENT
V
Determine hazard level of projected selenium concentrations
V V
High, moderate, or tow hazard Minimal or no hazard
V V
Determine allowable selenium toad (TMDL) Mining is permissible
V
Identify mine operations needed to meet load
V
Evaluate feasibility of mine in meeting environmental goals
References
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and reproductive failure. Proceedings of the Anniwl Conference of the Southeastern
Association of Fish and Wildlife Agenda 32: 612-624.
Davis, E.C., and W.J. Boegly, Jr. 1981. Coal pile leachate quality. Journal of the
Environmental Engineering Division, Proceedings of the American Society of Civil
Engineers 107: 399-417.
Desborough, Cj., E. DeWitt, 1 Jones, A. Meier, and G. Meeker. 1999. Preliminary
Minerahgical and Chemical Studies Related to the Potential Mobility of Selenium anil
Associated Elements in Phosphorw Formation Strata, Southeastern Idaho. U.S.
Geological Survey Open File Report 99-129. USGS, Denver. CO.
Dreher, G.B., and R.B. Finkelrnan. 1992. Selenium mobilization in a surface coal mine, Powder
River Basin, Wyoming, U.S.A. Environmental Geology and Water Science 19: 155-167.
Engberg, R.A., D.W. Weseot. M. Delamore, and D.D. Holz. 1998. Federal and Slate
perspectives on regulation and remediation of irrigation-induced selenium problems.
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Environmental Chemistry of Selenium. Marcel Dekker. Inc., New York, NY.
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Hamilton, S.J., and A.D. J^mly. 1999. Water-sediment controversy in selling environmental
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wn Coal Preparation Ptaftts. Technical Report LA-935IS-MS. l^os Alamos
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Lernly. A.D. 2002b. Selenium Assessment in Aquatic Ecosystems: A Guide for Hazard
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