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June 2002, VOL. 20, NO. 2

IMCC 2002 Fall Meeting to be Held in Annapolis

The 2002 Fall Meeting of the Interstate Mining Compact Commission (IMCC) is scheduled to be held November 19-20 at the Historic Inns of Annapolis in Annapolis, Maryland.

IMCC's standing committees will meet all day on Tuesday, November 19. A reception is scheduled for that evening. On Wednesday, November 20, the Executive Commission Business Meeting will take place.

More information regarding the meeting and registration will be mailed to IMCC member states in September. Contact: Beth A. Botsis, phone: 703.709.8654, or E-Mail: bbotsis@imcc.isa.us.

Kentucky Hosts IMCC's 2002 Annual Meeting

The Interstate Mining Compact Commission (IMCC) held its 2002 Annual Meeting April 21-24 at the Marriott Griffin Gate Resort in Lexington, Kentucky. Approximately 60 people were in attendance. Along with state government representatives from the IMCC member states and some non-member states, there were several federal government and industry representatives in attendance.

An evening welcoming reception kicked off the Annual Meeting on Sunday, April 21. On the morning of April 22, Kentucky's Governor Paul Patton opened the General Session by welcoming attendees to the Commonwealth of Kentucky. Following the welcome, speakers and topics heard during the General Session included: Barry Thacker of the Coal Creek Watershed Foundation, Inc. who spoke on "Community Outreach and the Abandoned Mine Land (AML) Program - A Unique Partnership Opportunity"; Dean Hunt, Esq. and William Gorton, III, Esq. spoke on "Bonding and Financial Assurance in Today's Regulatory Environment"; and Brad Frisby, Esq. of the National Mining Association spoke on "Historic Preservation - Where Does it Begin and End?" A "State Issues Roundtable Presentations and Discussions" session was held in the afternoon. Attendees enjoyed a "Night at the Races" dinner event on Monday evening, complete with mock horse racing and "play money" betting.

IMCC Standing Committees met throughout the day on Tuesday, April 23. The annual Reclamation and Education Awards Banquet took place on Tuesday evening, with several of the award winners in attendance.

On the morning of Wednesday, April 24, the Executive Commission Business Meeting concluded the Annual Meeting.

IMCC Hosts In-Stream Aggregate Extraction Forum

The Interstate Mining Compact Commission sponsored an In-Stream Aggregate Extraction Forum on April 24-25, 2002 at the Marriott Griffin Gate Resort in Lexington, Kentucky. The forum commenced the afternoon of April 24, following the conclusion of IMCC's 2002 Annual Meeting, and was attended by 25 state and federal government and industry representatives.

Speakers addressed several topics during the forum including: "Geologic Factors and Extraction Methods Associated with In-Stream Aggregate Mining"; "Environmental Impacts, Prevention of Impacts, and Reclamation"; "New Mining and Reclamation Regulatory Approaches in Ohio"; "Mining and Reclamation Regulatory Approaches in Virginia"; "Permitting Conflicts Associated with In-Stream Aggregate Extraction"; "Evaluation and Permitting of In-Stream Aggregate Operations in Pennsylvania"; and "Gravel Extraction v. Land Use and Land Rights". In addition, three panel presentations focused on: "Nature and Components of Existing State Regulatory Programs"; "Federal Agency Interaction - Current Regulatory Requirements"; and "Current Issues Related to In-Stream Aggregate Extraction: Mining and Reclamation Practices; Permitting Concerns; Federal/State Interaction; Others".

MSHA's New DVD Safety Training Program

The Mine Safety and Health Administration (MSHA) has released its first interactive multimedia training program on DVD. Intended as a safety training aid for the mining industry, the MSHA-developed DVD is titled "Haul Road and Dump Site Berms." Videos, still photos, and discussions comprise the DVD which addresses specific hazards and preventative measures concerning surface haul road and dump site accidents and fatalities. The discussion topics identify critical safety information, along with best practices and federal standards and policies regarding surface haulage safety. A short multiple-choice quiz is included for the purpose of evaluating the program's effectiveness with each user.

Recent Haden Decision re. Valley Fills Threatens West Virginia Economy

In a recent court decision, District Court Judge Charles Haden essentially prohibited the use of valley fills in Appalachian surface coal mining operations. According to testimony submitted for the record by expert witnesses before a Senate subcommittee recently, the decision is "probably already impacting the West Virginia economy" in a harmful way, and could result in the loss of nearly 16,000 jobs if fills are made permanently unavailable. The job loss is projected to occur over the next five years as existing permits expire, according to Professors Mark Burton and Michael Hicks of Marshall University in Huntington, West Virginia. In addition, economic output in the state would be reduced by more than 4 percent.

These and several other experts presented written testimony for the hearing conducted by the Clean Air, Wetlands and Climate Change Subcommittee of the Senate Environment and Public Works Committee. The information they offered was taken from June 2000 and February 2001 studies that were performed at the request of the West Virginia legislature. The studies analyzed the potential economic impact of Judge Haden's valley fill decisions on the state. The Marshall University study said that "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...". The initial study found that, depending on the form of judicial implementation, the Haden decision could reduce economic activity within a nine-county study region by as much as 8 percent in the immediate future and projected that annual West Virginia tax revenues would decline by as much as $268 million. In addition, county tax collections would fall by $83 million annually.

According to Burton and Hicks, the West Virginia economy "is still dependent on coal as a major source of commercial activity. The loss of surface coal production would create statewide 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."

Court Stays Decision on SMCRA Section 522(e)

On June 5, 2002, the federal district court in Washington, D.C. granted a motion by the National Mining Association (NMA) to stay the court's March 27, 2002 decision declaring invalid the Department of Interior's (DOI) rule interpreting the applicability of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) Section 522(e) to underground mining operations. That DOI rule codified the longstanding interpretation that Section 522(e) prohibitions on surface mining within or nearby certain designated areas and structures do not apply to underground coal mining beneath those areas and structures. Accordingly, pending a decision by the court of appeals on whether the district court decision is correct, the Section 522(e) prohibitions will not be applied to underground coal mine subsidence.

In granting the stay, the court viewed the balance of equities as favoring maintaining the status quo pending appeal. Specifically, the court referred to declarations made by members of industry describing the major reductions or terminations of operations that would result if the prohibitions of Section 522(e) are applied to subsidence from underground coal mining. All of these operations were permitted and commenced with the understanding that mining beneath areas and structures listed in Section 522(e) was permissible. The court further noted that the risk of harm to plaintiff's interests was mitigated by the existing statutory and regulatory provisions that require minimization of damage where feasible, and the repair or compensation of damage where it does occur.

Briefing before the U.S. Court of Appeals for the D.C. Circuit is expected late this year. IMCC plans to file an amicus curiae brief in the appeal presenting the states' perspective on the matter.

OSM Approves West Virginia Bonding Plan

The Office of Surface Mining (OSM) recently announced that it is approving West Virginia's plan to amend its alternative bonding system (ABS). The decision, published in the May 29Federal Register, ends the process started by OSM last June that would have replaced West Virginia's state bonding system with one run by the Federal Government if the state did not take action to amend its bonding processes and address the funds deficit.

West Virginia's amendments to the bonding system include: an increase of the state's special reclamation tax rate from 3 cents per ton to 14 cents per ton, with 7 cents of the tax to be lifted in 2005 when it is estimated that the fund's deficit will be eliminated; the establishment of an advisory council to help assure the long-term effectiveness of the program and address future deficits; and the removal of the 25% cap on funding from the fund for water treatment at bond forfeiture sites.

OSM will closely monitor the implementation of the new provisions to ensure that the ABS program remains effective and financially stable. Jeff Jarrett, Director of OSM, said that he believes allowing West Virginia to administer its own bonding system will provide more environmental protection than if a federal program were put in place.

OSM is also considering writing new rules to address funding treatment of acid mine discharge at bond forfeiture sites. Any new rules that come out of this effort would require West Virginia to evaluate the need to readjust its ABS to ensure the state program is as effective as any new federal standards.

OSM Seeks Comments on AMD Bonding

The Office of Surface Mining (OSM) recently announced that the agency is seeking comments on bonding issues regarding treatment of long-term acid mine drainage (AMD) that develops as a result of surface coal mining operations. The advance notice of proposed rulemaking seeks comments on how OSM "can best address the proper level of treatment and number of years to use in calculating financial assurance amounts for AMD, appropriate financial mechanisms to cover treatment costs, and suggestions of appropriate enforcement in cases where financial assurance is not fully adequate for the long term, but AMD is still being treated," according to Jeff Jarrett, Director of OSM. Comments are due July 16.
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