The U.S. Office of Surface Mining is currently writing a draft environmental impact statement that will fully evaluate whatever proposal on a new Stream Buffer Zone rule that the OSM comes up with, while at the same time identifying and evaluating a range of other potential alternatives, said OSM Director Joseph Pizarchik.
Pizarchik testified July 19 at a hearing of the House Natural Resources Committee that was stacked with majority Republicans looking for political blood. Committee Chair Doc Hastings, R-Wash., has issued repeated statements in recent months decrying the fact OSM has ignored subpoenas for documents related to the SBZ rule, a 2008 version of which allows coal companies fairly wide latitude to place rock and soil from mine sites within 100-foot buffer zones around streams.
Said Hastings in his opening statement for the hearing about this long-delayed rule: “Is the Obama Administration now waiting until after the election, when the President will have more ‘flexibility,’ to release its job-destroying regulation? What is the Administration planning to impose after November that it doesn’t want the American people to know about now? A pattern of secrecy has emerged from this Administration – an Administration that made bold promises of openness and unprecedented transparency. The Department has spent the last year and a half avoiding questions from this Committee about their rewrite and has failed to meet a single deadline for any document request.”
When OSM has completed its deliberative process, both the proposed rule and the accompanying draft EIS will be released and made available for public comment, Pizarchik said in his prepared testimony. “At that time, the Office of Surface Mining will welcome public and Congressional comment on whatever proposal is advanced by OSM, and on the adequacy of the draft environmental analysis that will accompany the proposed rule. Currently, however, there is no pending proposed rule and there is no completed environmental impact statement that evaluates a proposed rule and alternatives. Rather, the deliberative process is ongoing.”
In December 2008, during the final weeks of the George W. Bush Administration, OSM published a final rule. This so-called “Stream Buffer Zone Rule” was challenged by nine organizations in two separate complaints filed in federal court for alleged legal deficiencies, including the failure to properly conduct Endangered Species Act Section 7 consultation, Pizarchik noted. While the litigation was pending, the Obama Administration identified significant matters the 2008 rule failed to address.
2008 rule not up with the current science, Pizarchik said
“As a threshold matter, there have been significant advances in science and technology since the establishment of the 1983 rule which were not addressed in the 2008 Rule,” the head of OSM testified. “Incorporating the most up-to-date science, technology, and knowledge about the effects of surface coal mining is essential to developing maximally beneficial modern regulations. The 2008 Rule also failed to provide objective standards for important regulatory decisions, such as a requirement to collect all the information needed to establish a baseline and to assess the likelihood of impacts during and after mining or to assure proper reclamation. In addition, although [the 1977 Surface Mining Control and Reclamation Act] requires that each surface coal mining operation be designed to prevent ‘material damage to the hydrologic balance,’ the 2008 Rule provided no definition, criteria or guidance that would assist operators or interested parties in determining whether the statutory requirement is being met. Thus, in addition to the legal issues raised by a number of parties in their lawsuits challenging the rule, the 2008 Rule failed to set forth basic ‘rules of the road’ for operators and interested third parties that would ensure that SMCRA’s environmental protection standards would be met, despite clear evidence in the rulemaking record that some coal mining operations were having a deleterious impact on stream health and fish and wildlife.”
He added: “Furthermore, OSM’s existing rules allow for the practice of dumping excess spoil over the side of mountains, burying streams in valleys below. This practice must be consistent with the requirement, in Section 515(b) of SMCRA, that the mine operators transport and place all excess spoil material resulting from coal surface mining and reclamation activities in a controlled manner to allow for compaction, and in such a way to assure mass stability and prevent mass movement. Without ensuring such compaction, operators may cause impacts to additional valleys and streams that need not be affected by these mining operations.”
To address these concerns, the Interior Department published an Advance Notice of Proposed Rulemaking (ANPR) in November 2009 soliciting comments on ten potential rulemaking alternatives. The ANPR resulted in a large number of comments provided to OSM which indicated that technological advances not addressed in the 2008 Rule may enable industry to do a better job of repairing any damage by reclaiming the land and restoring natural resources for the benefit of communities that will remain long after the coal is gone, Pizarchik noted. “We determined that development of a comprehensive stream protection rule proposal, broader in scope than the 2008 rule, would be the most effective way to proceed.”
In March 2010, the parties to the litigation over the Stream Buffer Zone rule entered a settlement agreement in which the department agreed, in line with the comments received on the ANPR, to propose a new rule to replace the 2008 rule. This settlement did not prescribe any specific provisions that must be included in either the proposed or final rule.
The 2008 rule in effect only in non-primacy states under OSM’s direct mine permitting authority
“While this ongoing rulemaking takes place, the 2008 rule remains in effect on lands for which OSM is the regulatory authority (i.e., in Tennessee and Washington, and on Indian lands),” Pizarchik wrote. “For those states that have assumed primary responsibility—or ‘primacy’—for their own surface coal mining programs, the provisions approved in existing state programs govern mining in and near streams. In all primacy states, existing state programs are based upon the 1983 stream buffer zone rule. While the 2008 rule has not yet been adopted by any primacy state, the 2008 rule is the current federal regulation and has replaced the 1983 rule in OSM’s regulations.”
Given concerns expressed about unreleased elements of a prior environmental analysis, Pizarchik said OSM is taking the extra step of subjecting economic analysis of the potential impacts of a variety of potential rulemaking approaches to robust peer review. He is referring to a leaked report from an OSM contractor that predicted massive coal mining job losses due to the proposed rule. OSM will welcome full scrutiny of the regulatory approach that it ultimately determines is most appropriate, along with the comprehensive analysis that will accompany the proposal, he added.
He noted that SMCRA requires that surface coal mining and reclamation operations be conducted to minimize disturbances to fish, wildlife, and related environmental values “to the extent possible using the best technology currently available.” OSM is considering revisions that will provide solid benchmarks for companies to meet, and that will be based on the latest accepted scientific methods.
The ANPR published on November 2009 contained a brief description of additional possible rulemaking options. It includes, for example, the fact that while SMCRA prohibits “material damage to the hydrologic balance outside the permit area,” the phrase has never been defined in OSM’s regulations. “We are considering ways to provide a clear definition that can be applied uniformly across the country and to ensure that the law is fully implemented to protect water resources both within and beyond the area covered in the mining permit; to protect drinking water; and to protect water quality and resources for recreation, wildlife, and scenic values,” Pizarchik added.
The ANPR also invited the public to identify additional provisions in the regulations, such as the requirement for coal operators to return mine sites to their approximate original contour, that OSM should consider revising. SMCRA requires that mine operators reclaim mined areas to closely resemble their original pre-mining shape and size. Research and on-the-ground practice have demonstrated that careful restoration of post-mining areas can limit, and, in many cases, eliminate, harmful levels of pollution from mines. “Uniform regulations that result in carefully reclaimed areas will create opportunities for continued productive use of the land and water after coal mining ends,” Pizarchik wrote.
The draft EIS that OSM is developing in support of a proposed rule will examine a range of alternatives. In addition to analyzing the significant environmental issues associated with any proposed Stream Protection Rule and its alternatives, the EIS will evaluate the economic impacts of each alternative, and will provide OSM with critical information needed to inform its regulatory decision-making and the public, Pizarchik said.
Pizarchik said OSM has given the committee all the documents it legally has to
Pizarchik also touched on the subpoenas that have been such an issue for Hastings. He said the Interior Department, the parent of OSM. recognizes the important role of congressional oversight. “At the same time, as the Department has explained on many occasions, attempts to conduct congressional oversight of an ongoing rulemaking effort, while deliberations are ongoing, raise substantial separation of powers concerns,” he added. “By attempting to insert itself into an ongoing Executive Branch deliberative process, the Committee threatens to impede the ability of OSM to accomplish its statutory duties. The Committee’s requests for internal, deliberative, pre-decisional communications concerning OSM’s ongoing development of a rulemaking proposal go to the heart of the relationship between the Legislative and Executive Branches and the separation of powers in the Constitution.”
In the case of the Stream Protection rulemaking, the department has provided the committee with “many meaningful accommodations,” including over 13,500 pages of documents responsive to the committee’s requests and subpoenas, multiple offers for in camera review of additional documents (some of which the committee has yet to accept), briefings, and testimony before the committee on several occasions, Pizarchik said.
“To be clear, the Department is not refusing to comply with the Committee’s requests and subpoenas,” he added. “To the contrary, the Department has been working diligently to satisfy the Committee’s core oversight interests, consistent with the important confidentiality and independence of the deliberative process in which the Department is engaged to develop a Stream Protection Rule proposal.”