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March 2002, VOL. 20, NO. 1

IMCC 2002 Annual Meeting Registration Begins

Registration has begun for the 2002 Annual Meeting of the Interstate Mining Compact Commission (IMCC). The meeting will be held April 21-24 at the Marriott Griffin Gate Resort in Lexington, Kentucky. Plan to attend and partake of Kentucky hospitality in the heart of beautiful bluegrass country.

A welcoming reception will be held on Sunday evening, April 21 to kick-off the meeting. On Monday, April 22, a morning general session will be followed in the afternoon by reports from IMCC member states. A special "Night at the Races" event is scheduled for Monday evening. The IMCC National Reclamation Awards and Mineral Education Awards will be presented at the Tuesday evening banquet. Standing Committees of the IMCC will meet during the day on April 23, and the Executive Commission Business Meeting will take place on Wednesday, April 24, concluding by Noon.

Beginning on Wednesday afternoon, IMCC is also presenting an In-Stream Aggregate Extraction Forum. See the following article for more information on the Forum.

For registration forms or further information contact: Beth A. Botsis, phone: 703.709.8654, or E-Mail: bbotsis@imcc.isa.us.

IMCC to Present In-Stream Aggregate Extraction Forum

The Interstate Mining Compact Commission (IMCC) is presenting an In-Stream Aggregate Extraction Forum at the Marriott Griffin Gate Resort in Lexington, Kentucky following conclusion of the IMCC Annual Meeting. The forum is scheduled to begin at 1:00 p.m. on Wednesday, April 24, and will conclude by 5:00 p.m. on Thursday, April 25. A registration form and hotel information are included in this issue of The Compact.

For further information contact: Beth A. Botsis, phone: 703.709.8654, or E-Mail: bbotsis@imcc.isa.us.

Jeffrey Jarrett Confirmed as OSM Director

Jeffrey D. Jarrett of Pennsylvania was confirmed by unanimous vote of the U.S. Senate on Friday, January 24, 2002, as the 14th Director of the Interior Department's Office of Surface Mining Reclamation and Enforcement (OSM). President Bush announced his choice of Jarrett to head OSM in July 2001. Jarrett served as Deputy Assistant Director for OSM's Regional Office in Pittsburgh, Pennsylvania from 1988 to 1994 and most recently as Deputy Secretary for Mineral Resources Management of the Pennsylvania Department of Environmental Protection (DEP).

As Director of OSM Jarrett has policy and executive responsibility for developing and enforcing surface coal mining regulations under the Surface Mining Control and Reclamation Act (SMCRA). The agency operates with an annual budget of $306.5 million and a work force of 636 employees nationwide.

"I am greatly honored by the confidence that President Bush and Secretary Norton have shown in me, and by the support of the Senate," Jarrett said. "I intend to earn that confidence by providing strong, consistent leadership for the Office of Surface Mining."
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As Deputy Secretary for the Pennsylvania DEP, Jarrett was responsible for regulatory programs for surface and underground coal and industrial minerals mining, oil and gas exploration, deep mine safety, and abandoned mine lands reclamation. He also served as the Governor's representative to the Interstate Mining Compact Commission for Pennsylvania. Previously he served as Director of the DEP's Bureau of District Mining Operations. In that position he was responsible for the effective implementation of various environmental laws as they relate to the surface and underground coal and non-coal mining industries in Pennsylvania and for miner health and safety regulations at all surface mining operations.

On the federal level, Jarrett brings to the job of Director his extensive previous experience with OSM. He served as an OSM Deputy Assistant Director responsible for overseeing the effective implementation of SMCRA in the eastern states, the management of a number of state and area offices, administration of federal grants to the states for the operation of Abandoned Mine Land, oversight and management of regulatory programs, and technical assistance to the states.

Jarrett previously served as director of planning, division manager, and reclamation director for the cravat coal company and as reclamation supervisor for The Drummond Company.

A native of West Virginia, Jarrett received a B.S. degree in Human Resource Management from Geneva College in Pennsylvania and an A.A.S. degree in Land Stabilization and Reclamation from Belmont Technical College in St. Clairsville, Ohio.

OSM Website Back On Line

The Office of Surface Mining's (OSM) web site www.osmre.gov recently came back into operation following a two-month interruption due to a court-ordered shutdown of the agency's internet connections.

The web site was launched in the fall of 1996 giving anyone with Internet access a direct link to information about the Surface Mining Control and Reclamation Act (SMCRA) and its implementation, at any time. It is a one-stop information resource that contains a wide variety of information about OSM. The web site provides: laws and regulations (SMCRA, state and federal regulations with an historical listing of changes, legislative history, etc.), policy documents and directives, phone and office directories, news releases, news clips, events and activities, abandoned mine land information, including online connection to the inventory of abandoned mine hazards, research results appropriations and budget reports, program statistics, a photo library, educational pages, and links to state programs and related web sites. The site is updated daily.

FY 2003 Interior Budget Request for OSM

The Interior Department's budget request for the Office of Surface Mining Reclamation and Enforcement (OSM) for fiscal year (FY) 2003 includes $238.6 million for state and federal programs to protect the environment during coal mining, assure prompt reclamation after mining, and clean up abandoned mine lands (AML). Included in this amount is $4.2 million to reflect a government-wide legislative proposal to shift the full cost of the Federal Government's pension system and employee health benefits program for current employees to their employing agencies. Without the legislative proposal, OSM's FY 2003 request is $279.4 million. (Funding totals discussed below exclude the legislative proposal.)

OSM's net FY 2003 budget request includes: $105.4 million for the Regulation & Technology account, and $174 million for the AML account. The request will also enable OSM to continue directly administering federal regulatory and reclamation programs in states that do not operate their own surface mining programs, and on federal lands and Indian lands. Another component to the OSM budget is a continuing obligation under the Energy Policy Act of 1992 to provide interest from the AML Fund to the United Mine Workers of America Combined Benefits Fund to defray health care costs for retired miners and their dependents whose companies have gone bankrupt or are no longer in business. OSM's mandatory transfer to the fund for FY 2003 is estimated at $70 million.

Regulatory program grants to states are budgeted at $57.6 million in the FY 2003 request. OSM matches dollar for dollar the funds states use to operate programs for issuing coal mine permits, inspecting surface coal mines, enforcing environmental standards, and assuring reclamation of surface coal mines.

State and Tribal AML reclamation grants, including Clean Streams grants to assist in the clean up of streams in the Appalachian Coal Region are budgeted at $142.1 million in the FY 2003 request. AML state reclamation grant funding is reduced by a total of $17 million for FY 2003; however, $2 million in carryover funds from the federal AML emergency program will be transferred to the AML state grant program resulting in a total AML grant level of $144.1 million. Funding support for Clean Streams grants continues at the FY 2002 level of $10 million. The request also eliminates one-time funding of $500,000 for the state of Pennsylvania's acid mine drainage demonstration project. State reclamation grants for the AML program still continue to provide sufficient funding for states to start new reclamation projects and complete ongoing ones. Carry-over funding from prior years is also available to support AML projects. OSM pays 100 percent of state and Tribal costs for reclaiming lands that were abandoned unreclaimed or inadequately reclaimed before the enactment of SMCRA in 1977. The AML program is funded by production fees of 35 cents per ton of surface mined coal, 15 cents per ton of coal mined underground, and 10 cents per ton of lignite.

In 2003, OSM will carry out the Secretary's management strategy, implementing the President's five government-wide initiatives for strategic management of human capital, competitive sourcing, improved financial performance, expanded electronic government, and budget and performance integration.

Senate Confirms Two Assistant Secretaries in Interior Department

The Senate recently confirmed two positions in the Department of the Interior: Becky Watson as Assistant Secretary for Lands and Minerals, and Harold Manson as Assistant Secretary for Fish, Wildlife and Parks.

Interior Secretary Norton described Watson as "an outstanding attorney and public administration professional. She will bring vast experience in protecting natural resources and listening to all voices to find common ground in public issues." Part of Watson's responsibilities will include overseeing the Bureau of Land Management, the Minerals Management Service and the Office of Surface Mining.

As the Assistant Secretary of Fish, Wildlife and Parks, Harold Manson will direct the operation of national parks and wildlife refuges totaling over 176 million acres of public land. He will also be responsible for enforcing federal wildlife protection laws, such as the Endangered Species Act. Manson recently served as a judge on the Superior Court of California for the County of Sacramento. Prior to that he was general counsel in the California Department of Fish and Game from 1993 to 1998.

IMCC/OSM Meetings on Subsidence and Historic Preservation

The Interstate Mining Compact Commission (IMCC) recently held a series of very productive meetings with the Office of Surface Mining (OSM) on subsidence and historic preservation in Washington, D.C. The first meeting focused on a letter from Acting OSM Director Glenda Owens to IMCC regarding actions OSM was contemplating taking in response to recent litigation challenging the agency's subsidence regulations. The three issues discussed at the meeting were pre-subsidence surveys; replacement of water supplies; and identification of cause of subsidence. IMCC presented its views and positions on each of these issues for OSM's consideration as the agency determines whether to proceed with a formal rulemaking to address the issues. The second meeting involved a draft prototype programmatic agreement between OSM and the Advisory Council on Historic Preservation regarding the procedures to be followed pursuant to the requirements of 36 CFR Part 800 with regard to the issuance of coal mining permits by state regulatory authorities. Essentially, the programmatic agreement would provide the legal basis for OSM delegating to states with approved regulatory programs the functions necessary to assure OSM's compliance with Section 106 of the National Historic Preservation Act. IMCC provided OSM with a marked-up version of the agreement and discussed the basis behind the suggested changes. OSM agreed to consider the changes as it prepares a final draft of the prototype agreement for submission to the Advisory Council. Additional input from the states is expected following the Advisory Council's review of the agreement.

Supreme Court Denies Certiorari in Valley Fills Case

On January 22, 2002, the U.S. Supreme Court denied a petition for certiorari in the valley fill litigation brought by several citizen and environmental groups in West Virginia (Bragg v. West Virginia Coal Association, No. 01-619). Last year the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia vacated the 1999 ruling in theBragg case by Judge Haden of the U.S. District Court for the Southern District of West Virginia, which barred the disposal of excess spoil in intermittent and perennial streams. The Fourth Circuit decision turned on the issue of whether a Surface Mining Control and Reclamation Act (SMCRA) citizen suit against West Virginia was barred by the state's immunity from suit in federal court under the 11th Amendment to the U.S. Constitution. The appeals court concluded that SMCRA's unique text and structure dictated that once a state obtains primacy through the approval of its state law and regulations, it is state, not federal, law that governs in that state. Accordingly, the court of appeals held that the 11th Amendment bars such suits under SMCRA's citizen suit provision since citizens may not sue in federal court to compel a state official's compliance with state laws. The environmental and citizen groups who challenged West Virginia valley fill rules requested the U.S. Supreme Court to review the appeals court determination on citizen suits. The Supreme Court denied the environmental/citizen group petition for certiorari without comment.

Citizens Sue OSM Re. Failure to Approve WV Program Amendments

The same environmental group that brought the litigation in West Virginia challenging the state's valley fill rule (see preceding article) and that also sued over the state's bonding program last summer have brought a lawsuit against the Office of Surface Mining (OSM) for failure to approve nine program amendments submitted to OSM by West Virginia. The lawsuit also challenges OSM's failure to bring an action under Section 733 to withdraw approval of the West Virginia state program due to the states' failure to submit an additional 15 program amendments. The litigation was filed with the U.S. District Court for the Southern District of West Virginia on January 2. OSM has been working with the state of West Virginia to address the outstanding program amendments and was scheduled to file a response with the court on January 22. Many of these amendments involve issues that the state has had pending with OSM for many years and on which OSM has failed to act. The subject of the amendments range from blasting to prime farmland to sediment ponds to water replacement.

To obtain a copy of the complaint contact: Greg Conrad, phone: 703.709.8654 or E-Mail: gconrad@imcc.isa.us.

EPA Publishes Final Rule on Effluent Guidelines for Remining

In a significant victory for both the environment and the states, the Environmental Protection Agency (EPA) issued its final rule on January 23 titled "Coal Mining Point Source Category: Amendments to Effluent Limitation Guidelines and New Source Performance Standards." The rule appears in the January 23, 2002 Federal Register at 67 Fed. Reg. 3369-3410. The rule is divided into two parts: the first establishes a new subcategory addressing pre-existing discharges at remining operations; the second establishes a new subcategory addressing drainage from coal mining reclamation and other non-active areas in the arid and semiarid western United States. Much of the remining portion of the final rule reflects the work of the Remining Task Force, which was a cooperative effort of federal and state representatives. According to IMCC Executive Director Gregory Conrad, "The work of both IMCC and the states is referenced several times throughout the preamble. It is very encouraging to see a productive end result from the years of work and the massive amounts of data and information that were provided by the states to EPA to support the rule."

With regard to remining, the final rule establishes a regulatory framework for implementing the 1987 amendments to the Clean Water Act, also known as the Rahall Amendment, which provided an exemption for remining operations from the levels set in the current effluent limitation guidelines for iron, manganese, and pH for pre-existing discharges from abandoned mine lands that pre-date the Surface Mining Control and Reclamation Act (SMCRA). However, a requirement that no discharge from the remined area may exceed state water quality standards, along with EPA's failure to develop implementing regulations, were major impediments to developing meaningful remining programs in most states. The final rule addresses these shortcomings.

The final rule expands the current definition of remining operations to include those sites abandoned both pre- and post- SMCRA, and expands the rule to provide alternative limits for solids in addition to iron, manganese and pH, adopting a net acidity test in lieu of numeric pH levels. Perhaps most importantly, the rule uses a more flexible pollutant loadings concept to measure exceedances as opposed to measuring pollutant concentration levels. Finally, the rule recognizes the appropriateness of a BMP-only permit, provided authorization is granted on a case-by-case basis and only under specific scenarios. This latter part of the rule was a major win for the states given that they had advocated incorporation of a BMP-based approach as being essential to the ultimate effectiveness of the rule.

The second part of the final rule establishes effluent limitations and performance standards for the Western alkaline coal mining subcategory applicable to alkaline mine drainage from reclamation areas, brushing and grubbing areas, topsoil stockpiling areas, and regraded areas at Western coal mining operations. The new subcategory will allow Western coal operators to develop and implement a site-specific sediment control plan using BMPs in lieu of numeric limits. The plan and its BMPs must be sufficient to control sediment discharges from reclamation areas and the other non-active areas mentioned above so that such discharges do not exceed pre-mined, undisturbed conditions. The plan required by the rule will allow use of BMPs in place of sediment ponds that are currently used in these areas, and will also allow earlier bond release.

With regard to the remining subcategory, EPA plans to develop a computer program to assist in the calculation of baseline and compliance, using the statistical procedures in Appendix B of the rule. In addition, EPA (in conjunction with OSM) plans to sponsor implementation workshops on smoothing the SMCRA/NPDES permit overlap and requirements inherent in both rules. EPA anticipates that such workshops may commence by late summer or early fall of this year. IMCC has volunteered to sponsor the workshops with EPA and OSM.

To obtain a copy of the final rules contact: Gregory Conrad, phone: 703.709.8654 or E-Mail: gconrad@imcc.isa.us.

IMCC Internet Connection Transition

The Interstate Mining Compact Commission (IMCC) is in the process of changing internet service providers. This shift may cause temporary disruption in our email service. A T1 line is in the process of being connected which will allow us much more dependable and speedy internet access in the days ahead. In the meantime, the previous provider has sold all of its dial-up accounts to EarthLink. IMCC staff email (gconrad@imcc.isa.us and bbotsis@imcc.isa.us) is currently being forwarded through an EarthLink address until such time as the T1 installation is complete. Though the EarthLink address will appear in the "from" line of any e-mails sent out from IMCC staff, the IMCC email addresses will not be changing permanently. We ask at this time that you continue to address email you send to the original addresses. If you try to contact us via e-mail and the mail is returned, or you do not receive a timely response, we suggest you call us to follow up at 703.709.8654.
Interstate Mining Compact Commission
445-A Carlisle Drive | Herndon, VA 20170 | Tel.703.709.8654 | Fax.703.709.8655