Coal Tattoo

Coal Tattoo exclusive: About that OSMRE study …

When last we left our friends at the U.S. Office of Surface Mining Reclamation and Enforcement, the AP’s Tim Huber was reporting in dramatic fashion the leaked conclusions of an agency study that appeared to prove the coal industry’s worst fears about the Obama administration’s crackdown on mountaintop removal mining:

The Obama administration’s own experts estimate their proposal for protecting streams from coal mining would eliminate thousands of jobs and slash production across much of the country, according to a government document obtained by The Associated Press.

My buddy Tim took some heat from environmental groups for not providing them a copy of the document he was quoting from and for not explaining in more detail how the results were reached. Some mountaintop removal opponents and other OSMRE critics suggested the study was leaked to Tim by the coal industry or by the industry’s friends deep within the OSMRE bureaucracy.

But hey, AP got the scoop. And the story produced exactly the sorts of reactions you would expect from the coal industry and its friends among the region’s elected officials.

The National Mining Association told AP:

OSM’s preferred alternative will destroy tens of thousands of coal-related jobs across the country from Appalachia to Alaska and Illinois to Texas with no demonstrated benefit to the environment.

West Virginia Sen. Joe Manchin,  not to be outdone by the industry,warned he would “do everything in my power to block this wrong-headed proposal” which he said “poses a threat to our country’s energy supply.”

Fast forward a few days … to last night, when the West Virginia Department of Environmental Protection — after initially turning down my request — complied with the state’s public records law and provided me with a copy of portions of the OSMRE study that had been provided to WVDEP for comment.

I’m posting a copy of Chapter 4 of the document here. That appears to be the portion that was the basis for the AP story.


Kendra Barkoff, a spokeswoman for Interior Secretary Ken Salazar, just called, to complain that this blog post didn’t have OSMRE’s “statement” higher up in the text … so I’m moving it here:

The current draft of the EIS isn’t OSM’s, and doesn’t reflect our input or reviews. The document is a very early working draft. We have not adopted the numbers that are in the draft or any other aspects of the draft.

In addition, Barkoff told me that neither OSMRE Director Joe Pizarchik nor anyone else from OSMRE or Interior would be answering question about this issue today.

So everyone understands, this is a draft chapter of an Environmental Impact Statement that OSMRE is putting together to analyze various alternatives for the Obama’s plans to rewrite the old and very controversial “buffer zone rule,” that — if enforced — prohibited mining activities within 100 feet of perennial and intermittent streams.

What’s it say? Well, let’s break it down.

In his story last week, Tim summarized what he thought was the bottom line for OSMRE’s preferred alternative action this way:

The office, a branch of the Interior Department, estimated that the protections would trim coal production to the point that an estimated 7,000 of the nation’s 80,600 coal mining jobs would be lost. Production would decrease or stay flat in 22 states, but climb 15 percent in North Dakota, Wyoming and Montana.

OK … that part about 7,000 jobs is essentially right, at least as far as it goes, though I’m not sure where the beginning and ending jobs figures come from.

Under the OSMRE preferred alternative, the agency report projects that total coal-mining jobs nationwide are expected to drop from about 97,000 to about 90,000. And yes, those 7,000 jobs would be lost in the coalfields of Appalachia, where the damage from mountaintop removal is driving citizen demands for tougher regulation.

But would the proposal “slash production across much of the country” or — as Sen.  Manchin claimed — “pose  a threat to our nation’s energy supply“?

Well, production in Appalachia would drop by about 13 percent, or nearly 50 million tons. In Illinois basin, yearly production is projected to increase slightly, from 99 million tons to 101 million tons.  Production in the Colorado Plateau would drop slightly, from 90 million tons a year to 88 million tons a year. But in Wyoming, Montana and North Dakota, production would increase by 15 percent — or by 81 million tons a year, easily making up the lost production in Appalachia.

Nationwide, coal production would increase from 1.17 billion tons a year to 1.19 billion tons a year under the OSMRE preferred alternative.

A graphic from the OSMRE study depicts mountaintop removal.

And how about that line from the National Mining Association, the one that claimed the OSMRE study would destroy thousands of jobs “with no demonstrated benefit to the environment.”

In commenting on the OSMRE study, the West Virginia DEP made a similar argument to the National Mining Association, claiming in this letter that:

OSM’s EIS and proposal eliminates jobs and economic growth in the Appalachian basin. There is no demonstrable benefit to public health, welfare, safety or the environment OSM has identified.

Is that true? Well, I guess that depends on how you look at things.

The OSMRE preferred alternative (more about the various alternatives in a minute) is espected — according to the report — to reduce annual stream impacts of mining by 57 miles and reduce the land area impacted by 26,000 acres.

Now, let’s back up just a bit so nobody gets lost here …

Under the 1983 version of the stream buffer zone rule, no mining activities were supposed to be allowed within 100 feet of perennial or intermittent streams, unless coal companies got a variance, by proving the activities they proposed wouldn’t damage water quality. But nobody really ever enforced this rule, especially when it came to applying its provisions of the footprint of valley fills that actually bury streams.

When environmental groups and a federal judge suggested that maybe the rule did apply to valley fills and should be enforced, the industry was none too pleased. Eventually, the Bush administration essentially eliminated the rule in favor of a more complicated regulation OSMRE said was aimed at reducing the size of fills. The Obama administration tried to get rid of that rule, but a federal judge said it hadn’t followed proper procedures for public input and the like. Finally, OSMRE announced it was going to formally rewrite the rule and perform this EIS.

Somewhere along the line, OSMRE decided to give some draft copies of portions of the EIS to state regulatory agencies like WVDEP. But in order to get those documents — and have the chance to comment on the proposal prior to the normal public comment period — state agencies had to agree not to disclose the documents.

Unfortunately for OSMRE, the West Virginia DEP can’t just make such an agreement — unless it can point to an exemption to the West Virginia Freedom of Information Act that allows it to withhold such records. Initially, WVDEP tried to do that. But after I argued that his agency couldn’t point to an exemption that allowed this secrecy, WVDEP Secretary Randy Huffman agreed to release the records to me. Randy was in a tough spot. He could either break his agreement with OSMRE, or risk violating the state FOIA. And given his displeasure with the way OSMRE was handling this study — and the fact that the National Mining Association had posted portions of the document on a members-only section of its Web site — Randy decided to release the stuff.

Now, as I said, understand that WVDEP and other state regulators in coal regions are none too happy with OSMRE — either with the process of this study or with the agency’s regulatory proposal or the study conclusions.  Here’s a letter, for example, in which the states complain:

… There are sections of the draft EIS that are often nonsensical and difficult to follow.

… We also have serious concerns regarding the constrained timeframes under which we have been operating in providing comments on these flawed documents.

… In many respects, the draft EIS appears very much like a cut-and-paste exercise utilizing sometimes unrelated pieces from existing documents in an attempt to create a novel approach to the subject matter … The result so far has been a disjointed, unhelpful exercise that will do little to support OSMRE’s rulemaking or survive legal challenges to the rule or the EIS.

Now, back to the study itself …

Here’s a copy of a draft of Chapter 1, which explains the purpose and need for the rulemaking and the study. And here’s a copy of Chapter 2, which outlines the alternatives being considered by OSMRE for rewriting its stream protection rules.

UPDATED: I’m posting additional chapters from the study here, here, here, here, here, here and here.

It’s worth noting here that the National Mining Association’s statement to AP said this:

Rather than analyzing how their proposed rule changes might improve the environment at active mines, OSM assumes that environmental improvements will only be made through direct reductions in coal mining production, rather than mitigation or remediation. There is no analysis to substantiate that claim because it is faulty on its face.

Is this true?

Well, if you read that draft of Chapter 2, you’ll see that OSMRE is analyzing five alternatives — including a “no action” alternative that would essentially allow mining to continue as it is now, as well as as an alternative that would continue to allow valley fills, but seek to reduce the impacts by improving coal company mitigation of stream form and function. The agency also is analyzing an alternative that would outlaw all valley fills and do away with the mountaintop removal variance to the approximate original contour reclamation rule. The resulting loss in coal production and jobs in Appalachian — as well as the resulting reductions in environmental impact — vary pretty widely among the alternatives. They could basically end surface coal mining or cause just a small reduction in jobs and coal production, depending on which might ultimately be adopted.

And how about those estimates of the economic impacts of the OSMRE proposals?

Well, for one thing, it appears that the idea behind the study is that any rule would be phased in over 10 to 12 years, and that the impact projections are based on that timeframe.

And the study draft makes clear that the analysis does not consider “other externalities potentially impacting coal production” —

That is, any projected increases in coal production from region to region are assumed to be possible and do not consider such things as transportation limitations, production limitations from equipment or labor forces, greenhouse gas (GHG) regulatory impacts to mining, etc.

So presumably, the OSMRE report does not consider the fact that Central Appalachian coal production is already projected to drop significantly over the next 10- to 20-years, regardless of the impacts of any regulatory changes.  So we don’t know if the impacts projected in the OSMRE study would happen anyway, or if they would be additional impacts on top of those caused by other pressures on the region’s coal producers.

In addition, the proposed impacts were apparently estimated based on input from a panel of experts — supposedly people from various perspectives with knowledge of the coal industry — and some modeling that, frankly, the OSMRE report doesn’t explain very well.

How has OSMRE reacted to this draft study being leaked, and to the reaction from the industry and its friends among coalfield politicians?

Well, to begin with, OSMRE Director Joe Pizarchik issued this “Dear editors and publishers” letter. Quoting from the AP story’s summary of the potential job losses, the letter the complains:

With great respect, this misrepresents the facts. The document to which the article refers is the first working draft of part of what could become the preliminary Draft Environmental Impact statement … OSM’s mission is to strike a balance between protecting the environment while assuring that the coal supply essential to the Nation’s energy needs is maintained.

… The purpose of preparing an Environmental Impact Statement (EIS) is to inform OSM — and, in turn, the public — about the best way to accomplish this balance.  As required by law, OSM will consider in the EIS a reasonable range of alternatives, which may vary from not revising the rule at all, to alternatives that may greatly restrict the way that surface coal mining is conducted. The alternative cited in the article is one of several being considered, and the potential job impacts cited in the article related to only one of the options that the Draft EIS will evaluate.

… The proposed rule that OSM intends to publish later this year will fully consider the importance of coal as an essential energy resource for this nation, as well as protect our valuable streams, and help ensure solid, well-paying jobs for the citizens of Appalachia and other coal-producing regions.

I’ve offered Pizarchik the opportunity to be interviewed and answer directly some questions about the draft EIS. So far, I’ve been told he is not available. His spokesman, Peter Mali, wanted me to add this prepared statement to any story we posted about the study:

The current draft of the EIS isn’t OSM’s, and doesn’t reflect our input or reviews. The document is a very early working draft. We have not adopted the numbers that are in the draft or any other aspects of the draft.