Coal Tattoo exclusive: About that OSMRE study …

February 2, 2011 by Ken Ward Jr.

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.


15 Responses to “Coal Tattoo exclusive: About that OSMRE study …”

  1. Thomas Rodd says:

    “any rule would be phased in over 10 to 12 years.”

    And that doesn’t include lawsuits!

    Talk about kicking the can down the road!

  2. Matt Wasson says:

    So let’s summarize:

    1. Despite all sensational reporting in the AP story and reactions from NMA and politicians, we have no idea what the economic/jobs implications of the Stream Protection Rule might be.

    2. What we do know is that OSM’s initial “preferred alternative” looks a heckuva lot like the Bush Administration’s approach to regulating mountaintop removal, with a few cosmetic tweaks to make it appear that OSM is serious about its job of protecting streams while it ignores all the science that has shown their concepts of stream reclamation and restoration are entirely ineffective.

    3. Whatever happens, NMA has shown its hand, which, unsurprisingly, is based on the wacky world of NMA economics in which any job that is affected by a government action is a job “slashed” whether or not it is replaced in another region or another industry or whether it would have been lost anyway due to dropping demand for coal.

    So basically, we haven’t learned a thing from all this. But thanks for setting the record straight, Ken.

  3. Ken Ward Jr. says:

    You’re welcome, Matt.

    I’d be interested in what folks think about the “major assumptions” that went into the OSMRE draft study (See page 4-250 of this document, ) and of the methodology for impact assessment that is discussed also starting on that page.

    Also of interest — when this story broke, and AP discussed only the jobs impacts from the study, why in the world wouldn’t OSMRE respond by saying: Hey, wait a second, why aren’t any of the potential environmental benefits included in that coverage?

  4. Matt Wasson says:

    I think Bob Mooney answered the latter question in the comment thread of your initial story, Ken. As Bob wrote:

    “So, does anyone think that OSM did not intentionally shoot itself in the foot to get out of its stream protection rule development (after spending hundreds of thousands on it)? If this is surprising to anyone, that is really surprising.”

    ’nuff said.

  5. Soyedina says:

    Has anyone figured out how the NMA got a copy of this, if there was a non-disclosure agreement?

  6. Bot Warble says:

    The NMA has cronies at all levels of the federal government and that’s where they most likely received them from. Heartwood documented in 2007 that NMA had been provided pre-planning documents of the Fish and Wildlife Service by FWS administrators while the new recovery plans for certain endangered species were being rewritten. The NMA was provided the documents by FWS, allowed to comment secretly on the direction of the new recovery plan (this is pre-EIS development for those same would-be plans). NMA then worked with OSM to get FWS to conduct OSM-sponsored hearings for the coal industry on how specific recovery plans might affect the industry, and this prior to any public comment even being afforded. That large corporations and their affiliates operate under a different set of “rules” than American citizens should be a given by now. BTW, to this date, several of those ESA recovery plans have yet to take any further steps forward and some of them, like for the Indiana Bat (which the coal industry is very interested in) are now over 30 years old.

  7. rhmooney3 says:


    This is much to do about nothing. The stream saver rule development will likely follow the worn path of the Ownership/Control and Valid Existing Rights rules. That is: being in decade-long court cases then gutted through gutted trhough a settlement agreement with the mining industry.

    OSM has existing authorities which it could better employ minimize disturbances to hydrologic balance and prevent material damage to offsite areas. (Personally, I have alway thought the stream saver effort was thumb twiddling.)

    I still have quite a few contacts within OSM. Fyi:

    Date: Sat, 29 Jan 2011
    From: ////
    Subject: Re: OSM says 9,000 jobs to be slasked by its streamsaver rulemaking

    The quotes attributed to unnamed OSM personnel were particularly damaging. The irony is that we learned during the past week that the production shifts and job loss numbers may have been merely placeholders that the EIS contractor was using in an effort to get comments that would result in more realistic numbers in the final version. I thought this article would be the final nail in the coffin for the rule, but as of yesterday, the only impact so far has been a delay in the schedule. My belief is that this delay ultimately will result in a lingering death rather than a quick kill, but we’ll see.

    P.S. About a month ago, the Sierra Club filed a FOIA (Freedom of Information Act) request for the stream protection development materials so it should have had those documents too.

    P.S.S. Once materials are provided to any state or anyone outside of OSM those materials are public documents — this is not true of documents leaked or otherswise obtained through inappropriate means.

  8. rhmooney3 says:

    In regards to that very old stream buffer zone rule (promulgated in 1983): Most of the state regulatory programs still have that version of the rule since only a few of the states amended the newer version into their program. (OSM has to evaluate and uphold the state regulatory program as those exist, not according to the federal regulations.)

    I would be remiss if I did not acknowledge the commitment and dedication of the OSM employees who are working extremely diligiently on the stream protect efffort, especially so, OSM Director Joe Pizarchik who been constantly involved in it.

    My sole concern is that the rulemaking will get killed in the courts or even done in before that by Congress. (A line-item in a Congressional bill can be very deadly.)

    Also, there is a lot of information here that should be taken into consideration:

  9. Matt Wasson says:

    Wow, Ken, you really asked the right question when you asked about reactions to the assumptions on page 4-250. You really don’t need to go further than the first one to realize that OSM’s entire exercise in projecting economic impacts is straight out of an alternate universe:

    “Nationwide coal production for electricity generation and other uses would remain constant in the immediate future (generally fifty years before realistic alternatives to coal for energy generation are viable).”

    To start with, here’s what real scientists have to say about that:

    “New research has shown that it is possible and affordable for the world to achieve 100 percent renewable energy by 2030, if there is the political will to strive for this goal.”

    And it gets even crazier when you compare their analysis to the analyses of real-world energy analysts. Here’s OSM’s production estimates for the Appalachian Basin under their five alternative scenarios:

    Alternative 1 (no change from Bush rules option): 390 million tons
    Alternative 2 (treehugging communist option): 298.5 million tons
    Alternative 3 (moderate tweaks to Bush rules option): 350 million tons
    Alternative 4 (cosmetic tweaks to Bush rules option): 373 million tons
    Alternative 5 (OSM’s preferred alternative): 341 million tons

    By comparison, the Energy Information Administration in their 2011 Annual Energy Outlook projects that Appalachian coal production will fall to 285 million tons by 2013 and remain in the 270-290 million range for the forseeable future.

    Translation: any one of the 5 options would lead to a higher level of coal production than what other branches of government project in Appalachia for the forseeable future.

    Upshot: the question isn’t about lost production or lost jobs in Appalachia, both will decline whatever OSM does. The question is whether those declines will occur at mines that destroy streams and employ fewer workers or mines that don’t destroy streams and employ more workers. The direction OSM is headed will ensure that the stream and job destroying mines will do just fine.

    Heckuva job, OSM.

  10. Matt Wasson says:

    All that said, I’d reiterate Bob’s point that there are some good hearted, well intentioned and hard working people at OSM and the garbage in these documents does not reflect the dedication and integrity of many of the individuals at that agency. Unfortunately, what’s lacking at OSM are people with a solid grounding in science and/or economics (aside from the alternate-universe versions of those subjects that they apparently teach at mine engineering schools). As a result, all the dedication and integrity in the world is not going to yield an EIS worth the paper its written on if that agency is charged with developing it.

  11. rhmooney3 says:


    OSMRE began in March 1978, more than three decades before your arrival at Appalacnian Voices — there is much that you do not know of it.

    A handful of people are still there from that year and a very large number of its remaining 515 staff have been there since the 1980s. (At one time there had been about 1100 in OSM and in the middle 1990s — under the Clinton Administration — about a third of those who remained were cut.)

    The pre-draft EIS materials being discussed are from a contractor.

  12. Matt Wasson says:

    Actually closer to 2 decades before my arrival, Bob – I’ve been here for 10 years and, while I have nowhere near your experience with the agency, I have become pretty familiar with its workings and with a lot of its individuals. A lot of them are top-notch folks, but I’d love it if you could point me toward a top-notch scientist at the agency.

    If there’s one thing I learned in the 6 years I spent getting my doctorate in ecology it’s how LITTLE we really understand about nature. What terrifies me about reclamation scientists, wildlife biologists and mining engineers is that many seem to think they know a lot about nature and how to manage it — and every time it’s put to the test by a Margaret Palmer or Emily Bernhardt, we find that they didn’t know the first thing about it and have allowed enormous and irreparable damage to be done.

    The EPA is a different animal — they are grounded in basic science and, to the extent possible, employ the precautionary principle when the science is not clear. I often disagree with EPA’s decisions, but their science is usually good. EPA should be doing the EIS and let OSM do what it does well, which isn’t science.

  13. Graybeard says:

    Having read the draft Chapters of the EIS I can tell you it is off base on the assumption of coal production. For one thing it assumes a shift to the Western Coalfields to make up for loss of production in the Appalachian region. They did not account for metallurgical (Met) coal production that will be lost. Western Coal is not Met coal quality and it can not replace it. Furthermore the Appalachian steam coal can not be replaced on a ton for ton basis by western coal. Appalachian coal is higher BTU and lower ash. Some power plants simply can’t burn straight Powder River coal. This would also result in more ash to be disposed off by power plants. If you are knowledgeable about mining you know that the preferred alternative will result in huge job losses. You simply can’t mine coal under that scenario. The contractor preparing the EIS simply has no idea about mining coal, what is possible and what is not. Assuming that eliminating surface mines will reduce the amount of mine waste water that has to be treated by publicly owned waste water treatment plants is a ludicrous assumption. Mine discharges do not pass through publicly owned waste water treatment plants. Yet that is listed as a benefit to the public. By the way the EIS is costing millions of dollars not undreds of thousands. OSM is wrting the Stream Protection Measure rule even before the draft EIS is completed. developing the EIS is just a formality that OSM is going through. It doesn’t matter what the EIS, studies used, etc. say the rule is basically being written by a mandate.

  14. rhmooney3 says:


    The EIS contractor is public record if their expertise is of interest to you — I’m sure they are qualified.

    Definitely, the rule development will cost several million — likely more when the attorneys have to defend it for many years.

    Met coal is the market now. A lot more of it is already being mined and much more will be mined very soon — met coal reserves is what made Massey Energy so valuable (for Alpha to buy controlling interest (54%) of it. West Virginia and Eastern Kentucky will be the beneficiaries; the met coal mines and ports in Alabama are close to their capacity. (There is a small amount of met coal mining out west, but nothing substantative.)

    Lastly, coal demand projections have always been off, especially so, in recent years. For example, the current high demand for met coal has a lot to do with the flooding in Queensland…something not projected.

    P.S. The huge rush to develop export facilities for western coal will definitely increase its production — the existing mines have a lot of unused production capacity.

  15. Matt Wasson says:

    Perhaps one of you can help us out with something. I know that all of Arch and Massey’s met coal mines are underground mines, which would hardly be impacted at all by this rule as I read it. My guesstimate has been that better than 90% of met coal in CAPP is mined underground, but I’ve been unable to get hard numbers. Does that sound right, or is more met coal mined underground than I think?

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