House committee head subpoenas Interior over stream rule

In a move that the U.S. coal industry will like, House Natural Resources Committee Chairman Doc Hastings, R-Wash., on April 5 issued the first subpoena to the U.S. Department of the Interior for documents related to the committee’s investigation into the Obama Administration’s rewrite of the 2008 Stream Buffer Zone Rule.

The 2008 rule, written in the late days of the George W. Bush Administration, gives the coal industry pretty liberal ability to dump rock and soil from coal mine sites within 100-foot buffer zones around streams. The U.S. Office of Surface Mining, which is under the Interior Dept., had lately offered a much tougher version of that rule that provoked the ire of the coal industry.

The specific documents included in the Hastings subpoena will provide further information on why the Interior Dept. decided to rewrite this regulation and how the process to rewrite the rule is being managed. This subpoena seeks a portion of the documents previously requested from the Interior Dept., most recently in a letter from Jan 25. The specific documents sought in the subpoena include:

  • All recordings, and complete and unredacted transcripts of recordings, of meetings between the Interior and contractors regarding the rewrite of the rule.
  • Complete and unredacted versions of email communications previously provided to the committee and documents reviewed by committee staff in camera.
  • All documents related to the development of the Advanced Notice of Proposed Rulemaking and Notice of Intent to prepare a Supplemental Environmental Impact Statement for this rule.
  • Complete drafts of the Environmental Impact Statement (EIS) and the Regulatory Impact Analysis (RIA) as of Jan. 31, 2011, for the administration’s rewrite of the rule. This is to include complete current drafts of the EIS and RIA.

The subpoena deadline is April 12. The subset of documents included in this first subpoena are distinct and narrowly focused, which is intended to allow the department to produce them promptly, said a Hastings statement from April 5. Additional categories of documents, not included in the subpoena but previously requested as far back as February 2011, that are broader in scope and will likely produce a greater volume of responsive material are anticipated to be sought in the near future.

“The Obama Administration’s many attacks on coal as a low-cost American energy source are very clear, but they’ve refused to disclose information detailing their decisions and actions to rewrite this rule governing coal production,” said Hastings. “After more than a year of patiently requesting cooperation and documents from the Department of the Interior, a subpoena is now needed to force them to live up to the President’s own transparency promises. The administration’s rewrite could have dramatic ramifications for American jobs and energy production with many coal mines being forced to close and thousands of miners put out of work. A news report uncovered calculations by those hired by the government to conduct the rewrite that reveal it would cause over 7,000 lost mining jobs and economic harm in 22 states.”

Alpha sees stream rule as critical mining issue

Alpha Natural Resources (NYSE: ANR), a leading U.S. coal producer, particularly in the Central Appalachia region most impacted by the stream rule, said about this matter in its Feb. 29 annual Form 10-K report: “In December 2008, the OSM issued revisions to its Stream Buffer Zone Rule under [the Surface Mining Control and Reclamation Act of 1977]. The revisions allow disposal of excess spoil within 100 feet of streams if the OSM makes findings of impact minimization that overlap findings required by the [U.S. Army Corps of Engineers] in administration of the Clean Water Act Section 404 permit program.”

Alpha added: “In April 2010, as initial steps toward issuing a new Stream Protection Rule under SMCRA, the OSM commenced a pre-rulemaking information gathering process and solicited public comment on a notice of intent to conduct an environmental impact study. The OSM reports that the options under consideration for the new rule include requiring more extensive baseline data on hydrology, geology and aquatic biology in permit applications; specifically defining the ‘material damage’ that would be prohibited outside permitted areas; requiring additional monitoring during mining and reclamation; establishing corrective action thresholds; and limiting variances and exceptions to the ‘approximate original contour’ requirement for reclamation.”

In a settlement agreement with environmental groups that filed legal challenges seeking to invalidate the 2008 rule, the OSM agreed to issue a new proposed rule in 2011 and a final rule in 2012, Alpha noted. However, the OSM has not yet issued the proposed rule. In addition, legislation has been introduced in Congress in the past and may be introduced in the future in an attempt to preclude placing any fill material in streams. “Implementation of new requirements or enactment of such legislation would negatively impact our future ability to conduct certain types of mining activities,” Alpha added.

Arch Coal (NYSE: ACI), another leading producer, said about the rule in its Feb. 29 Form 10-K: “In 1999, a federal court in West Virginia ruled that the stream buffer zone rule issued under SMCRA prohibited most excess spoil fills. While the decision was later reversed on jurisdictional grounds, the extent to which the rule applied to fills was left unaddressed. On December 12, 2008, OSM finalized a rulemaking regarding the interpretation of the stream buffer zone provisions of SMCRA which confirmed that excess spoil from mining and refuse from coal preparation could be placed in permitted areas of a mine site that constitute waters of the United States. On November 30, 2009, OSM announced that it would re-examine and reinterpret the regulations finalized eleven months earlier. We cannot predict how the regulations may change or how they may affect coal production, though there are reports that drafts of OSM’s preferred alternative rule would, if finalized, curtail surface mining operations in and near streams — especially in central Appalachia.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.