OSM unveils stream buffer proposal; enviro groups kind of like it, NMA hates it

Many coal-producing states dropped out of the U.S. Office of Surface Mining’s drafting of a new buffer zone rule proposal, but OSM and its parent the Interior Dept. on July 16 unveiled the draft rule with much fanfare (and lukewarm environmental group support).

Secretary of the Interior Sally Jewell, Assistant Secretary for Land and Minerals Management Janice Schneider, and Office of Surface Mining Reclamation and Enforcement (OSMRE) Director Joseph Pizarchik released these proposed regulations to prevent or minimize impacts to surface water and groundwater from coal mining. The proposed rule would protect about 6,500 miles of streams nationwide over a period of 20 years, preserving community health and economic opportunities while meeting the nation’s energy needs, Interior said.

In recent weeks, a number of coal-producing states, including West Virginia and Wyoming, dropped out of the writing of this proposed rule, saying that OSM was largely ignoring their input. The National Mining Association, which represents major coal producers, said on July 16 that it wants Congress to step in and stop this rulemaking.

“This proposed rule would accomplish what Americans expect from their government – a modern and balanced approach to energy development that safeguards our environment, protects water quality, supports the energy needs of the nation, and makes coalfield communities more resilient for a diversified economic future,” said Jewell. “We are committed to working with coalfield communities as we support economic activity while minimizing the impact coal production has on the environment that our children and grandchildren will inherit.”

The proposed Stream Protection Rule would include reasonable and straightforward reforms to revise three-decades-old regulations for coal mining in order to avoid or minimize impacts on surface water, groundwater, fish, wildlife, and other natural resources, Interior said The proposed rule, which reflects updated science, would replace the 1983 regulations. Once the public has had an opportunity to provide comments and the rule is finalized, it will better safeguard communities from the long-term effects of pollution and environmental degradation that endanger public health and undermine future economic opportunities for affected communities, Interior added.

“The proposed rule would also provide the mining industry with something it has asked for time and again – regulatory certainty,” said Assistant Secretary for Land and Minerals Management Janice Schneider. “The rule would make it clear which requirements apply to which types of streams, and how to determine what types of streams are present. Because of this clarity, companies can better prepare and plan.”

Guided by the best-available science and utilizing modern technologies, the proposed rule would require companies to avoid mining practices that permanently pollute streams, destroy drinking water sources, increase flood risk, and threaten forests. The proposed rule would require coal companies to test and monitor the condition of streams that their mining might impact before, during and after their operations. This feature would provide baseline data to ensure that operators could detect and correct problems if or when they arise.

The proposed rule would also require companies to restore streams and return mined-over areas to the uses they were capable of supporting prior to mining activities, and replanting them with native trees and vegetation unless a conflicting land use is implemented. Through clear, measurable standards, the proposed rule would promote operational accountability to achieve the environmental restoration required when operations were permitted. Moreover, economic impacts were thoroughly analyzed and the proposed rule is projected to have a minimal impact on the coal industry overall.

“In developing the proposed rule, we conducted extensive public outreach and were informed by the interests of coal country residents and others, including those directly and indirectly employed by the industry and those living with the impacts of mining on a daily basis,” said OSM’s Pizarchik. “That is why we are having a robust public comment process—to provide all stakeholders the opportunity to provide input on the proposed changes.”

The proposed rule is accompanied by a Draft Environmental Impact Statement (DEIS), evaluating the environmental issues associated with the proposed rulemaking, including alternative regulatory approaches, and a Draft Regulatory Impact Assessment (RIA) evaluating the economic impacts. The proposed rule, upon publication in the Federal Register, and the associated DEIS and Draft RIA, will be open for public comment for a period of 60 days.

OSM will hold public hearings on the proposed Stream Protection Rule in five cities across the country beginning in September. Hearings will be held in Pittsburgh, Pennsylvania; Lexington, Kentucky; Charleston, West Virginia; Denver, Colorado; and St. Louis, Missouri. The times and venues of the public hearings will be announced at a later date.

Enviro groups say the proposal is good, but not good enough

Several environmental groups, including the Sierra Club, issued a July 16 statement in guarded support, saying: “These proposed ‘stream protection rules’ affect the ability of mountaintop removal mining companies to destroy or bury waterways near surface mining operations. Although today’s proposal includes some improvements to the current regime, it weakens other critical protections for Appalachian rivers and streams. Notably, the proposal weakens the ‘Stream Buffer Zone’ rule, which prohibits harmful mining activities within 100 feet of Appalachian streams. Appalachian community groups and conservation groups are calling on the Obama Administration to adopt stronger stream protections in the final rule.”

“Appalachian communities rely on the rivers and streams covered by these protections, and today’s proposal doesn’t adequately safeguard those communities,” said Sierra Club Beyond Coal Senior Director Bruce Nilles. “The state governments in Appalachia have simply failed to protect our communities, and, and water from the destruction of mountaintop removal mining. We need the federal government to create thoughtful stream protections that ban valley fills and ensure an end to this destructive practice.”

OSM’s proposal does contain some positive elements, say these groups. The proposed protections would require increased monitoring and data collection, provide some additional protection to downstream waters, and marginally increase the responsibility of mine operators to restore harmed areas. Additionally, the new OSM rule has clarified the term “material damage” in the 1977 federal surface mining law. The 1977 law prohibits coal mines from causing “material damage” to surface waterways and groundwater.

“After working for years to get the stream buffer zone enforced, only to have it taken away by the previous Administration, we have worked feverishly to get the stream protection rule as it is now called to do what its name implies: protect the streams in mining operations,” said Teri Blanton of Kentuckians For The Commonwealth. “We are hopeful it lives up to its name; if not, we intend to make sure our waterways are protected by working to ensure the stream protection rule does, indeed, protect.”

“It is the responsibility of the Office of Surface Mining and state authorities to protect drinking water and wildlife habitat from the catastrophic effects of mountaintop removal mining. This proposal, though it does encourage increased safety monitoring and stream restoration, just doesn’t do the job,” said Senior Staff Attorney Jane Davenport at Defenders of Wildlife. “What we need are strong and well-defined mining rules that ensure the health of our nation’s lands and waters.”

“This has been an issue since the Bragg court challenge in 1998. Though hints of proposals through the ensuing years have never quite lived up to what a well-enforced 100 foot buffer zone would have done to end the destruction of headwater streams, it is long overdue that OSM make some attempt to clarify what is meant by stream protection.  We can only hope that this proposed rule moves us forward,” said Cindy Rank of the West Virginia Highlands Conservancy. 

In a 2008 attempt to weaken stream buffer protections, the Bush Administration in its late days in office  proposed a similar change, replacing the highly protective buffer zone requirement—which clearly prohibits harmful activities within 100 feet of streams—with a much weaker version, the environmental groups said. The version adopted by the Bush administration only called on mining companies and states to “minimize” direct disturbance to the extent deemed “reasonable”—a requirement many argue was so vague it was effectively unenforceable. The Bush rule was thrown out by a federal court in February 2014 because the Bush Administration had failed to consult with appropriate wildlife agencies about whether weakening the rule would jeopardize endangered species. The strong Stream Buffer Zone Rule has been in effect since then, but enforcement by state authorities remains uneven.

“This proposal doesn’t go far enough to protect streams and communities. In the final rule, the Obama Administration should change course and preserve the buffer that protects streams from direct mining damage,” said Earthjustice attorney Neil Gormley. 

The environmental groups said they will also carefully scrutinize how the proposed rule may affect other types of “destructive” coal mining operations around the nation. Communities in various parts of the country have been severely harmed when longwall mining operations cause land to subside; strong protections are also needed to protect communities from other destructive methods of coal mining.

NMA calls on Congress to rein in OSM

The National Mining Association said July 16 that this is the latest in a series of costly and unnecessary regulations from an administration that appears determined to “destroy coal mining communities.” NMA urged Congress to block this rule, which it said will cause further job losses in a high-wage industry, adds nothing to environmental protections already ensured by state and federal agencies and responds to no new evidence of water quality damage.

“This is a rule in search of a problem,” said NMA President and CEO Hal Quinn. “It has nothing to do with new science and everything to do with an old and troubling agenda for separating more coal miners from their jobs. The agency’s own reports on existing state regulatory programs show the vast majority of mine sites are free of any offsite impacts, and the agency has produced no evidence to justify more regulations, let alone redundant ones that interfere with state agencies mining and water quality laws.”

Contrary to conventional wisdom, the regulation is not confined to Appalachian surface mines but would apply to all mining operations nationwide, NMA noted. It was developed without the benefit of state agency experts who have publicly criticized OSM’s disdain for the viewpoints of those who either operate or regulate coal mines, the mining group added.

“By ignoring state officials, OSM has made a mockery of the administration’s pledge toward greater transparency,” Quinn said. “What OSM has made transparent is the need for Congress to bridle an agency and a rule that is more about extending its bureaucratic reach than improving environmental performance.”

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.