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January 2004, VOL. 22, NO. 1

Registration Begins for IMCC 2004 Annual Meeting in Virginia Beach

As announced in the October 2003 issue of The Compact, the Interstate Mining Compact Commission (IMCC) will hold its next Annual Meeting at The Founder’s Inn in Virginia Beach, Virginia on April 25-28, 2004.

The meeting will commence with a welcoming reception the night of Sunday, April 25. The IMCC Environmental Affairs Committee, Noncoal Section will meet on Monday, April 26 following a welcoming address (speaker TBD). The Coal Section of the Environmental Affairs Committee will meet on Tuesday, April 27. Resolutions and Finance Committees will meet the morning of Wednesday, April 28, followed by the Annual Executive Commission Business Meeting.

Registration forms, including hotel reservation information for the meeting are included in this issue of The Compact newsletter. Contact: Beth A. Botsis, phone: 703.709.8654, or E-Mail: bbotsis@imcc.isa.us.

IMCC Files Amicus Curiae Brief Re. Section 522(e) of SMCRA

The Interstate Mining Compact Commission (IMCC) recently filed an amicus curiae brief urging the Supreme Court to deny a petition by the Citizens Coal Council to review the decision in the Surface Mining Control and Reclamation Act of 1977 (SMCRA) “522(e)” case, Citizens Coal Council v. Norton. In arguing that the U.S. Supreme Court should not review the decision on Section 522(e). IMCC said its members “are greatly concerned about the severe reduction in coal production which would be the inevitable result of such a change in the administration of SMCRA and delegated state programs.” As a result, IMCC “supports the decision of the court of appeals, which upheld that regulation [interpreting 522(e)] and thereby avoided substantial disruptions in the administration of the state regulatory programs.”

The U.S. Court of Appeals for the District of Columbia Circuit last year denied two petitions for rehearing of the case by the Citizens Coal Council. In that case, the court upheld a regulation of the Office of Surface Mining (OSM), which said that subsidence from underground coal mining is not a “surface coal mining operation” subject to the prohibitions in SMCRA’s Section 522(e).

The National Mining Association also filed a brief in the case. For further information on IMCC’s brief, contact: Greg Conrad at gconrad@imcc.isa.us or phone: 703.709.8654.

BLS Statistics for 2002 Show Low Incidence Rate for Mining

The Bureau of Labor Statistics (BLS) recently released the report, “Workplace Injuries and Illnesses in 2002". The report includes data regarding nonfatal occupational injuries and illnesses for 2002 by industry division and employment size. Mining had a rate of 4.0 injuries per 100 full-time workers working 40 hours per week, 50 weeks per year, placing it second to “Finance, Insurance and Real Estate,” which had a rate of 1.7. Mining also had among the lowest incident rates for cases with days away from work, job transfer or restriction, registering better than private industry as a whole, including agriculture, forestry and fishing, construction, manufacturing, and transportation and public utilities. For more information, visit the BLS website: www.bls.gov/iif/home.htm.

Federal Wetland Regulatory Jurisdiction to Remain

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) recently said they would not issue a new rule on federal regulatory jurisdiction over isolated wetlands. The announcement relates to the 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. The Supreme Court’s decision in the case had overturned the Corps’ assertion of federal jurisdiction over certain isolated wetlands based on the presence of migratory birds. The agencies responded by issuing revised guidance to their field offices and reaffirmed federal jurisdiction over the majority of wetlands not impacted by the decision.

The agencies said after soliciting public comment to determine if further regulatory clarification was needed, they decided to “preserve the federal government’s authority” to protect wetlands. “The agencies will continue to monitor implementation of this important program to ensure its effectiveness,” they said.

MSHA Warns of Cold Weather Safety Hazards

In December, the Mine Safety and Health Administration (MSHA) launched its annual “Holiday Safety Initiative” to remind miners and mine operators about potential hazards in the workplace brought on by colder weather.

MSHA stressed the importance of conducting thorough pre-shift mine examinations in order to prevent coal mine ignitions and explosions. The agency also warned miners and operators in the metal and nonmetal industry about freezing and thawing actions, among other effects, which may cause hazardous conditions. The agency sent hazard alerts directly to every mine operation in the country over several weeks. In addition, the agency distributed an audio message from Assistant Secretary Dave Lauriski to radio stations around the country, which alerts operators to help workers keep their focus on hazards.

New EPA Air Regulations Will Effect Coal-Based Power Generators

In December 2003 the Environmental Protection Agency (EPA) proposed two new sets of regulations affecting U.S. coal-based power generators – the “Interstate Air Quality Rule” to reduce sulfur dioxide and nitrogen oxides and separate proposals to reduce mercury emissions.

In describing the agency’s actions, EPA Administrator Mike Leavitt said, “While we continue to believe that the Clear Skies Act is the best approach to reducing power plant emissions, and we are committed to working with our congressional sponsors to move this landmark legislation through Congress, we must move forward with these steps now.” The agency noted that, “taken together, these rules will require utilities to spend tens of billions of dollars to reduce the emissions of these pollutants.”

According to Leavitt, EPA’s mercury proposal would include two alternative control plans, one of which will be a “proven, market-based cap-and-trade approach that has demonstrated its ability to cut emissions faster and at less cost.” The proposed cap-and-trade alternative would cut mercury emissions from coal-based utilities to 15 tons by 2018, a reduction of 70 percent from current levels. (Coal-based generators currently account for approximately one-third of man-made mercury emissions in the U.S. and 1 percent of total global emissions.)

According to EPA’s description, the Interstate rules would reduce power plant emissions in two phases. Sulfur dioxide emissions would drop by 3.7 million tons by 2010 and by another 2.3 million tons after 2015. Nitrogen oxide emissions would be cut by 1.4 million tons by 2015. Emissions would be permanently capped under the proposal.

Mining Industry Emphasizes Need for National Energy Bill

The National Mining Association (NMA) responded to a package of measures announced in December 2003 by the Environmental Protection Agency (EPA), by urging passage of the National Energy Bill. “Proposals to further reduce emissions of mercury, sulfur dioxide and nitrogen oxides at U.S. coal-based utilities will be very costly and underline the need for quick Congressional passage of the National Energy Bill,” said NMA President & CEO Jack Gerard.

“NMA supports further reductions in all the emissions targeted by the EPA proposals. But power generators will need the financial tools included in the Energy Bill so they can continue to provide affordable and reliable electricity to American consumers and manufacturers while meeting higher environmental standards. Passage of the Energy Bill must go hand-in-hand with implementation of these proposals,” Gerard emphasized.

The Energy Bill provides for accelerated depreciation of pollution control equipment and includes the Clean Air Coal Program that makes available federal funds, loans and loan guarantees to comply with environmental regulations at power plants. The measure also provides for continued support of the Clean Coal Technologies program (CCT), including tax incentives for advanced CCT.

OSM Issue Proposed Rules: Stream Buffer Zones, O&C, and State Program Amendments

The Office of Surface Mining (OSM) has recently published three proposed rules that are of importance to state regulatory authorities. The first, published on December 3, 2003 at 68 Federal Register 67775 proposes to make several changes to 30 CFR Part 732 governing the processing of state program amendments by OSM. The most significant change involves an amendment to 30 CFR Sec. 732.17(f)(2), which would allow the Director of OSM more discretion on how to respond to situations where the state program amendment is not approved by OSM, or if a state is late in submitting required information to OSM. The proposal authorizes the Director to make an evaluation of whether proceedings under Part 733 to take over that part of the state’s program proposed for amendment is justified, based on whether the Director has reason to believe that the state is not effectively implementing, administering, maintaining or enforcing its program. Comments on the proposed rule are due February 2, 2004. The second rule was published on December 29, 2003 at 68 Federal Register 75036. The proposal would amend OSM’s ownership and control rules in order to effectuate a settlement agreement entered into between OSM and the National Mining Association. The rule addresses such matters as the definitions of ownership and control (O&C); permit eligibility determinations; improvidently issued permits; challenges to O&C findings; and alternative enforcement. Comments on this proposed rulemaking are due February 27, 2004. The third rule proposed by OSM was published on January 7 at 69 Federal Register 1036 and addresses excess spoil and stream buffer zones. In the proposal, OSM states that the rule would require coal operators to demonstrate that, to the extent possible, the volume of excess spoil utilized in a mining operation is minimized; that excess spoil fills associated with a mine as designed will be no larger than needed to accommodate the anticipated volume of excess spoil from that mine; and alternative fill configurations are considered in order to develop an excess spoil disposal plan that causes the least environmental harm. OSM also said the proposed buffer zone rule change was needed to more closely align it with the laws governing fills, including OSM’s “long experience of implementing the rule.” The agency said the amendment will remove language from the rule “that has proved confusing, giving rise to conflicting interpretations, litigation and concern over potential conflicts with the Clean Water Act.” Comments on the rule are due March 8, 2004.

IMCC Comments on Draft EIS Re. Mountaintop Mining

The Interstate Mining Compact Commission submitted comments recently on a draft programmatic environmental impact statement (EIS) on mountaintop mining and valley fills in Appalachia prepared by several federal agencies. In its comments, IMCC noted “while the authors have come closer to the mark in the final draft, we still believe that the ‘no action’ alternative (which is our preferred alternative) does not accurately reflect the realities of today’s regulatory program.” IMCC therefore encouraged the federal agencies to recharacterize the no action alternative as an option that would continue the existing Office of Surface Mining (OSM), Environmental Protection Agency (EPA) and Corps of Engineers regulatory programs, including past and ongoing amendments to those programs. “We have seen a plethora of changes over the past several months in all three regulatory programs, many of which are being considered for adoption by the states, that reflect the ever-changing regulatory landscape associated with mountaintop mining and valley fills. It is essential that all three federal agencies continue to work cooperatively together, along with the states, to insure the implementation of comprehensive, realistic and legally sound regulatory programs that effectively protect the environment while maintaining and assuring an adequate supply of coal, our Nation’s most abundant energy resource.”

Supreme Court Upholds EPA Authority to Overrule States Under Clean Air Act

The U.S. Supreme Court recently ruled 5 to 4 that the Environmental Protection Agency (EPA) has the authority to overrule state air quality permitting decisions under the Clean Air Act. In the case, Alaska Department of Environmental Conservation (DEC) v. Environmental Protection Agency, the court said EPA was within its powers to require Teck Cominco’s Red Dog zinc mine to use Best Available Control Technology (BACT) to reduce emissions from a new diesel electric generator at the facility. The mine is the world’s largest zinc producer. In 1999, EPA found that the DEC in its permit approval allowed for lesser controls when the state’s own analysis found that using selective catalytic reduction at the site would be most effective and would not be economically harmful. The agency did not require that technology for the mine’s older generators. DEC argued that as the permitting authority, it alone could make the BACT determination. The state said complying with the ruling would cost the mine operators an additional $20 million upfront and an additional $1.5 million annually. The state went to court, backed by several western mining states, where the 9th U.S. Circuit Court of Appeals sided with EPA.

The four justices who dissented in the close decision said the ruling undercuts states’ ability to control their own environmental policies and threatens to give the federal government too much muscle in other areas. “The (Clean Air Act) is not the only statute that relies on a close and equal partnership between federal and state authorities to accomplish congressional objectives,” Justice Anthony M. Kennedy wrote for himself, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Editorial Note:

Please note that there were 3 issues of The Compact newsletter published in 2003 (Volume 21).
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