House panel chairman sends second subpoena to Interior on coal rule

House Natural Resources Committee Chairman Doc Hastings, R-Wash., said April 12 that he will issue a second subpoena to the Department of the Interior after it failed to provide documents under a first, April 4 subpoena that asked for information on a rewrite of a coal production regulation, the 2008 Stream Buffer Zone Rule.

“For over a year the Interior Department has dodged legitimate questions and document requests to avoid being held accountable for decisions made in rewriting this coal production regulation and the highly unusual manner in which they are drafting the new rule,” said Hastings. “Their decision to flout a subpoena by reciting an already refuted excuse—that because they’re still writing the regulation they don’t have to comply with Congressional oversight—is either arrogant or a desperate attempt to avoid disclosing their actions. This is not a legal basis for them to refuse to provide these documents and recordings to Congress and they were duly informed of this fact over three months ago.”

Since Interior hasn’t, under the first subpoena, responded with a narrow and specific set of documents and recordings, Hastings said the second subpoena would seek a broader range of more comprehensive documents.

The 2008 Stream Buffer Zone Rule, issued in the late days of the George W. Bush Administration, gave the coal industry relatively wide latitude to dump rock and soil from mine sites within 100-foot buffer zones around streams. That is especially important for the coal industry in the rugged mountains of Appalachia, since mining is conducted on the slopes of the mountains and the rock and soil from the mine site just naturally tends to fall into the hollow below, which pretty much always has some form of stream running through it. The Obama Administration is trying to rewrite the rule in what critics claim is an improper way. Interior administers these rules through its Office of Surface Mining (OSM).

Alpha Natural Resources (NYSE: ANR), a major coal producer in Central and Northern Appalachia, said about the issue in its Feb. 29 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. 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.”

Alpha noted that in a settlement agreement with environmental groups that had filed legal challenges seeking to invalidate the 2008 rule, OSM agreed to issue a new proposed rule in 2011 and a final rule in 2012. However, OSM has not yet issued the proposed rule. Another issue is that 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 reported.

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.