Coal Tattoo

Who is Glenda Owens, and should she run OSM(RE)?

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From what I hear, President Barack Obama may be close to nominating a longtime Interior Department bureaucrat named Glenda Owens to be director of the U.S. Office of Surface Mining Reclamation and Enforcement.

Now, Obama’s got a lot on his plate.  Who knows if he’s even got this little agency on his radar screen at all. Maybe OSMRE  isn’t a big priority. But if the president really opposes mountaintop removal, favors green jobs and cares anything about the nation’s coalfield communities, Obama will take this appointment (not to mention the nomination of someone to run the federal Mine Safety and Health Administration) very seriously. 

But coalfield residents don’t think that’s what’s happening. Earlier today, they started a call-in campaign to try to encourage Interior Secretary Ken Salazar to appoint either West Virginia University law professor Pat McGinley or Lexington, Ky., lawyer Joe Childers to run — reform, reinvigorate or rejuvinate might be better words — OSMRE. For coalfield residents and environmental advocates, picking someone promoting someone from within OSMRE is almost as bad as Obama turning to an industry lawyer or lobbyist for the post. (See previous posts on this topic here, here, here and here).

I don’t really know Owens. She’s a longtime government employee, and is currently serving as acting OMRE director. Between 1985 and 2001, she was an assistant solicitor (lawyer) representing OSMRE from within the Interior Department. After that, she joined OSMRE as a deputy director and has been with the agency since. So, she joined the government during a Republican administration, stayed on through the Clinton years, and then rose to a powerful position under Bush II.

Maybe given the importance of this job to the coalfields, it is worth taking a look at a few things we do know — from the public record available — about what Owens has done and said about strip mining issues. So here goes:

— In mid-2001, environmental groups were pressing OSMRE to take over the part of West Virginia’s mining regulatory program that cleans up strip mines abandoned after the federal law was passed in 1977. The program was greatly underfunded, and leaving thousands of acres of scarred land unreclaimed and miles of polluted streams untreated.

In her role as acting OSMRE director, Owens wrote to the state, and made it appear her agency was playing tough. But what she really did was give the state more time — exactly what it was looking for — to avoid implementing a tougher tax on the coal industry.

The result?

U.S. District Judge Charles H. Haden II issued a scathing ruling, blasting OSMRE for the continued delays in enforcing the reclamation laws:

The direct consequences of [OSMRE’s] decade-long delay have been examined here before: Thousands of acres of unreclaimed strip-mined land, untreated polluted water, and millions (potentially billions) of dollars of state liabilities.

The indirect results, however, may be more damaging, a climate of lawlessness, which creates a pervasive impression that continued disregard for federal law and statutory requirements goes unpunished, or possibly unnoticed. Agency warnings have no more effect than a wink and a nod, a deadline is just an arbitrary date on the calendar and, once passed, not to be mentioned again.

Financial benefits accrue to the owners and operators who were not required to incur the statutory burden and costs attendant to surface mining; political benefits accrue to the state executives and legislators who escape accountability, while the mining industry gets a free pass.

— In early 2002, then-President George W. Bush proposed major cuts — a reduction of more than one-fifth — in spending to clean up abandoned coal mines.  Rep. Nick J. Rahall called the Bush budget proposal, “a declaration of war on the people of Appalachia.” But Owens, then acting OSMRE Director — defended the proposal:

President Bush’s budget supports our regulatory and AML programs plus those of 24 states that receive federal funds from the Interior Department for their surface mining programs. The surface mining program has already accomplished an impressive amount of reclamation, and we will continue to work with states to address what remains to be done.”

–  Later in 2002, Owens helped the Bush administration lead the charge against a ruling by Haden to try to limit mountaintop removal, by enforcing the “fill rule” in the Clean Water Act to block most valley fills.

Among the interesting things Haden did with that ruling was to say that valley fills were allowed only where coal operators proposed them as part of a post-mining development plan for flattened land. But that was the very portion of Haden’s ruling that Owens chose to criticize in a sworn affidavit federal government lawyers filed when they asked Haden to suspend his ruling pending an appeal:

Typically, those post-mining land uses are established not on the site of the fill, which is solely for spoil disposal, but at the location of the former mining operation.

— Through 2002, 2003 and 2004, Owens was apparently heavily involved in Bush administration efforts — led by former mining lobbyist and Deputy Interior Secretary Steven Griles (who later went to prison on corruption charges)  — to subvert the mountaintop removal Environmental Impact Statement to help coal operators obtain strip mine permits more quickly.

— As I wrote earlier, Owens testified in a July 2007 congressional hearing — held by Rahall to commemorate the 30th anniversary of the federal strip mine law — that OSMRE was working on a definition of “approximate original countour” to help guide reclamation enforcement.  Here’s that testimony again:

Rahall:

…in 1998 I publicly expressed concern with a report that the majority of mountaintop removal mines in West Virginia were given permits without AOC variances. A great deal of litigation and policy changes have taken place since that time. However, my concern remains. And I touched upon this in my opening remarks. And that is, to what extent are mining operations that are viewed as mountaintop removal technically not categorized as such? They may use a combination of point removal, area mining, and contour cuts. And for all intents and purposes have the character of a mountaintop removal operation, but have not received an AOC variance, and have not submitted a post-mining land use plan that includes those higher uses that would benefit the economies of coalfield communities, the better post-mining uses to which I referred. I would expect your agency has looked into this matter as part of its oversight. Would you care to comment?

Owens:

Mr. Chairman, that is, in fact, correct. OSM is very much aware of the issues associated with mountaintop mining. As you mentioned, there has been litigation on the issue since 1998. We have engaged in rulemaking, and in fact currently we are working cooperatively with state and Federal regulators in the development of guidance on certain issues related to mountaintop
mining, such as AOC, the variances, the post-mining land uses, and return of mined land to useful and productive hardwood forestry. We have also engaged in a national rulemaking on two of the issues associated with mountaintop mining: extreme buffer zone and excess spoiled fuel rule. We have a proposal that is in final review, and it should be published in the near future. 

Rahall:

Well, I would only respond that it has been a little over 10 years I think since we last had our oversight hearing, where I asked a similar question and got a similar answer.

Owens:

Well, I wasn’t here 10 years ago. But I can tell you that I was in the Solicitor’s Office at that time, and I was involved in the litigation on mountaintop mining. I know that it has been a struggle getting through these issues because of the controversies and the confusion that the regulation has wrought, which is why OSM now feels that a national rulemaking on these issues is appropriate.

Rahall:

But does OSM have a definition of AOC, approximate original contour?

Owens:

We do not have a definition at this point. We are, in fact, working on a definition, looking into whether the definition at this time is appropriate.

Rahall:

Thirty years, and we are still looking for a definition of AOC.

It’s been nearly two years since that hearing. Perhaps if Owens is nominated by Obama to run OSMRE, lawmakers can ask her again during her confirmation hearing …