Critics take aim at Office of Surface Mining’s stream protection proposal

The U.S. Office of Surface Mining’s proposed Stream Protection Rule came in for heavy criticism at an Oct. 27 hearing of the Senate Energy and Natural Resources Committee.

Sen. Lisa Murkowski, R-Alaska, who chairs the committee, said the proposed rule, which would severely affect coal mining activities adjacent to streams and other bodies of water, has been the subject of extensive controversy and likely will lead to extensive litigation if implemented as drafted.

“The administration’s actions and resulting federal overreach with this proposed rule is a real problem, with real-world effects,” said Murkowski. “The coal industry estimates that between 40,000 and 78,000 direct jobs could be lost – and that’s on top of the up to $29 billion in lost annual resource value and as much as $6.4 billion in foregone State and Federal Revenue. I doubt very much that the Interior Department bothered to conduct any research in my home state of Alaska where climate and permafrost alone will likely prohibit compliance with these new regulations, if they are finalized.”

Murkowski added: “In Alaska, the effects of this rule are absolutely frightening especially when it comes to liability issues and regulatory uncertainty. When the Interior Department can effectively retroactively revoke an issued permit, I question whether that violates due process – it certainly causes great concern for stakeholders who need regulatory certainty in order to operate.”

Murkowski encouraged the Obama Administration to come to Alaska to understand the state’s unique geology and terrain and noted that a “one-size-fits-all” regulation won’t work for Alaska and coal producing states in the lower 48.

Sen. Maria Cantwell, D-Wash., the ranking minority member of the committee, applauded Interior for what she called a long-awaited draft update to regulations under the 1977 Surface Mining Control and Reclamation Act (SMCRA) which would hold the coal mining industry to consistent baseline standards of protection and reclamation of streams near mining sites. Cantwell said that newly available scientific information requires changes in the way regulators conduct business. In the last 30 years, water pollution from mining in some waterways has increased. And studies have shown “sustained ecological damage” in streams “long after reclamation was completed,” including fewer fish species, she said.

“We need to understand that you can’t just pollute the environment and run. It’s the ultimate test of fairness in the minds of many of my constituents: that we make sure that polluters pay for environmental damages,” Cantwell stated. “In my view, without the Stream Protection Rule, we’d allow the coal industry to continue with business as usual. Given these facts, Interior has an obligation to modernize its SMCRA rules.”

In July, the Interior Department proposed this rule, which would revise the more than 30 year-old regulations. The extended comment period on the proposed rule closed on Oct. 26.

Cantwell added: “I have many concerns with our coal policy in general, but we’ll save those for another committee discussion. But you can typically lease a ton of federal coal for $1 or less. The taxpayers get $1. Then years later, we have to deal with almost 2 tons of carbon dioxide from that 1 ton of coal. And the government’s current best guess is that those 2 tons of carbon pollution will cost the American public more than $70 in damages.”

Cantwell said that data from the West Virginia Department of Environmental Protection shows that in West Virginia alone, the incidence of valley fills from mountaintop mining increased from 330 in 1984, to 1,821 in 2009, resulting in more than 680 miles of buried headwater streams. “So, our understanding of the impacts of mining has also changed,” she said. “Biologists have found that streams downstream of valley fill in Appalachia support just half the number of fish species they should. Scientists have also studied the long-term impacts and effects of mountaintop mining approved under existing state programs. The results are in. A study found that ‘sustained ecological damage in headwaters streams draining valley fills long after reclamation was completed.'”

Coal industry representative says job losses would be heaby, and unneeded

Hal Quinn, president and CEO of the National Mining Association (NMA), said in his Oct. 27 testimony: “The Office of Surface Mining Reclamation and Enforcement’s (OSM) so-called ‘Stream Protection Rule’ (SPR) is not about protecting streams and all about protecting federal regulators’ jobs at the expense of the jobs of our nation’s energy providers—America’s coal miners. How else does one explain a proposal lacking any purpose apart from duplicating and conflicting with state and federal laws that already address the same subjects? All of this is in the service of separating 40,000-78,000 coal miners from their high-wage jobs. OSM’s regulatory accounting places lost coal mining jobs in the acceptable column because the agency believes some of those jobs will be replaced by new regulator and record-keeper jobs to comply with this massive burden.”

Quinn added: “What began as modest objective to address ambiguities surrounding a single rule for surface mines in one coal mining region has mutated into a massive rewrite of 475 existing rules and the addition of many new ones for both surface and underground mines in all regions of the country. Both the additions and revisions largely hijack, and interfere with, the mission of other agencies under other state and federal laws. To be clear, this is not an exercise in aligning the SMCRA program with these other laws. The proposal demonstrates that OSM does not understand these other programs, how they work or apply to mining. As a result, OSM is sowing conflict and confusion into the fabric of an array of other laws and regulations that govern coal mining operations.

“Even within the confines of the Surface Mining Control and Reclamation Act (SMCRA), the proposal purposefully crosses lines drawn on the agency’s authority and reach. The proposal robs SMCRA of its core federalism feature—vesting states with the authority and responsibility for developing and applying standards suitable to the vast diversity in terrain and physical conditions throughout the coal fields. Moreover, the proposal largely eliminates the law’s distinctions between surface and underground mining by applying for the first time provisions that are only intended for surface mining.

“The proposal also diminishes the choices of landowners for developing and using their land after reclamation. It establishes OSM as a federal zoning czar by empowering it to dictate how reclaimed mined lands will be used notwithstanding the desires of the landowners.

“The SPR proposal will push 40,000 and perhaps as many as 78,000, miners into the unemployment lines. They would join the more than 40,000 coal miners who have already lost their jobs since 2011—largely as a result of other unbalanced regulatory policies prematurely closing coal power plants. If we include the jobs at risk in sectors that supply products and services to the industry, as well as jobs attached to industries that rely on household consumption, the total employment losses rise to a range of 113,000 to 281,000. As one might expect, OSM projects lower job losses. However, it is important to note that OSM’s estimates are based upon ‘hypothetical mines.’ NMA’s analysis uses data from actual operating mines—36 mines (surface and underground) located in all coal regions of the country and operated by companies representing two-thirds of the nation’s annual coal production.”

In other testimony from the Oct. 27 hearing:

  • Randy Huffman, head of the West Virginia DEP, said that OSM has “lost its way” and “strayed from the roadmap” that Congress gave it with the 1977 SMCRA law. He said this stream proposal should be withdrawn and abandoned.
  • Todd Parfitt, head of the Wyoming Department of Environmental Quality, which oversees the huge coal surface mines in the Wyoming end of the Powder River Basin, said that his agency hung in there as an advisor during the OSM rulemaking process even after the federal agency apparently stopped listening to the states. He said eight of ten cooperating states did drop out of the process earlier this year. He also said the rule goes well beyond stream protection and seeks vast new regulation of various phases of coal mining.
  • Janice Schneider, an assistant secretary at Interior, defended the proposal, calling it a series of “reasonable and straightforward reforms.” She stressed that this is only a proposed rule right now, and that Interior will take a look at comments on it, which number about 40,000.
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.