Republicans take coal’s fight to OSMRE

April 7, 2011 by Ken Ward Jr.

Today’s hearing before a House Natural Resources subcommittee was titled, “Effect of the President’s FY-2012 Budget and Legislative Proposals for the Office of Surface Mining on Private Sector Job Creation, Domestic Energy Production, State Programs and Deficit Reduction“.

But from what I could tell, a better name might have been, “Let’s hold a hearing so the Republicans can trash the Office of Surface Mining over a draft study that the coal industry leaked to the press.”

I couldn’t tell from the Webcast, but it looked like the Democrats didn’t even bother to show up. And gosh, you would think that Rep. Bill Johnson, R-Ohio, would have learned somewhere along the way to let someone else finish a sentence once in a while.

The whole thing almost made me feel a little sorry for OSMRE Director Joe Pizarchik … almost.  Because let’s face it, his agency is just taking its medicine after leaking that draft Environmental Impact Statement on the stream protection rule and then declining to go on the offensive about some of the possible benefits in terms of reduced environmental damage, well, does anybody really think OSM is handling this whole thing very well?

Even Joe Lovett of the Appalachian Center for the Economy and the Environment and Gene Kitts of International Coal Group agreed that the buffer zone rulemaking has become a fiasco.

If the issues underlying all of this weren’t so serious, you could almost laugh about how transparent the GOP’s efforts were in setting up and then carrying out this hearing.

I’m not saying that how OSMRE designed its EIS, and how it was being carried out — and certainly not what the environmental and economic impacts of the buffer zone rulemaking — aren’t issues for congressional and public oversight.  But for anybody who thinks congressional hearings are not real efforts at fact-finding  and are just partisan political theater, this particular hearing sure backs up that thinking.

One bright spot, though, is that the prepared testimony from Kitts and Lovett does provide some clear and fairly concise explanation of where the coal industry and environmental groups are coming in the continuing debate over whole mountaintop removal will be regulated.

In his testimony, for example, Gene explained:

Permit delays and regulatory uncertainty are thwarting capital investment that will create and sustain the high-wage jobs needed and valued in our coal communities. At a time when our nation is recovering from a deep recession and requires low-cost and reliable fuel to remain globally competitive, agency policies are crushing these job-creating enterprises that will be the engine for our economic growth and prosperity.

And as for OSMRE specifically, Gene explains that the industry’s view is the Obama administration’s efforts for the agency to play a larger oversight and enforcement role are misplaced and contrary to SMCRA:

To all, with perhaps the exception of OSM, the statutory language and structure is clear—“exclusive” means just that, it does not mean parallel or concurrent jurisdiction with OSM. Thirty years of case law establishes the following principles of SMCRA: (1) the law sets out a careful and deliberate allocation of authority of mutually exclusive regulation by either OSM or the state, but not both; (2) in a state with an approved program that authority rests with the state; (3) states are the sole issuers of permits in which OSM plays no role; (4) OSM does not retain veto authority over state permit decisions; and (5) OSM intervention at any stage in a state permitting matter unlawfully frustrates the deliberate statutory design and allocation of authority.

On the other hand, Lovett described the growing scientific consensus about the environmental and community impacts of mountaintop removal across Appalachia:

The coal-rich mountains of central Appalachia are home to generations-old communities and contain beautiful hollows through which thousands of pristine and ecologically rich mountain streams flow. Mountaintop removal mining carelessly lays waste to our mountain environment and communities. The deforestation is not only an ecological loss, but a permanent blow to a sustainable forest economy in a region in desperate need of long-term economic development. Mountaintop removal has already transformed huge expanses of one of the oldest mountain ranges in the world into a moonscape of barren plateaus and rubble.

Disregarding human and environmental costs, mountaintop removal coal mining as currently practiced in Appalachia eradicates forests, razes mountains, fills streams and valleys, poisons air and water, and destroys local residents’ lives. Toxic mine pollution contaminates streams and groundwater; hunting and fishing grounds are destroyed. Because the large-scale deforestation integral to mountaintop removal takes away natural flood protections, formerly manageable storms frequently inundate and demolish downstream homes. The toll on coalfield communities is tremendous.

As for OSMRE?

In the abstract, the Surface Mining Control and Reclamation Act (“SMCRA”) is an imperfect but useful law. Since at least 2001, however, the Office of Surface Mining Reclamation and Enforcement has refused to enforce the Act. The failure of OSM to carry out its duties has had devastating impacts on Appalachia. Appalachian coal is “cheap” because OSM ignores its duty to enforce SMCRA and allows the coal industry to pass its costs onto workers, communities, local and state economies, and the environment. The mining industry naturally takes advantage of federal regulators’ failure to enforce the law.

I hope that that this Committee it will use the budget process to take action compel OSM to discharge its duties. I hope that it will require OSM to follow the clear science and the law. The absence of energetic oversight invariably leads to problems, particularly with agencies, like OSM, that have close ties with the industries they regulate.

5 Responses to “Republicans take coal’s fight to OSMRE”

  1. Fort says:

    Transparent ???
    The collusion between the NOG’s and the Obama Administration is becoming more exposed every day – as it was yesterday.

    Also, did you watch the Ben Cardin hearing last year when the Dem’s had complete control – the politics of “hearings” swings both ways !

    Do you always just trash the Republicans ?

    Lastly, there is now growing scientific consensus that streams are not becoming devoid of bugs as Gene mentioned. How many scientisits does it take to make a consensus ?

  2. Ken Ward Jr. says:


    I’m not sure what collusion you’re talking about — just as I wasn’t sure what collusion the GOP members were talking about, at least regarding the Obama administration OSMRE and NGOs on the environmental side …

    It’s true that OSMRE entered into a settlement with some environmental groups over the buffer zone rule … We covered that in this Coal Tattoo post, … But this was hardly some closed-door deal. The environmentalists had sued the agency, the agency decided to write a new rule, and they entered into a publicly disclosed settlement to put off litigating the Bush administration buffer zone rule until the Obama OSMRE publishes a new version … they could fight it out in the courts later. Given the administration’s intention to publish a new rule, litigating the old one seemed like a waste of time.

    I did watch the Senate hearing from June 2009,

    You’re right that the hearing witnesses weren’t exactly balanced. The only person who defended current mining practices was Randy Huffman, secretary of the WVDEP. But, they actually had a scientist — Margaret Palmer — to testify about the science of mining’s water quality impacts, rather than a mining executive/engineer (Gene). (We covered Dr. Palmer’s testimony here, )

    As for the science, I’d be happy to have you point me to articles in the peer-reviewed literature that support the industry’s views on this … the National Mining Association recently issued a press release about a study they paid for … but that work has not yet been peer-reviewed and published in the scientific literature. Still, we covered it in Coal Tattoo so readers would be aware of it,


  3. JoeH says:

    Rush Holt, a liberal dem from NJ, did in fact show up, and gave opening remarks at 06:30. He was the ranking member present. I gather only 3 committee members showed up, however. I love their quorum size: 2!

  4. hebintn says:

    The rhetoric about “Permit delays and regulatory uncertainty” we hear often. But, when relatively innocuous definitive rules on conductivity are instituted by the EPA the rhetoric turns to, “Oh, the rules are too restrictive, blah, blah, blah.” It’s obvious to me that the industry doesn’t give a rip about the rules. Any rules that get in their way is too much.

    I personally would like to see other much more restrictive and costly testing done. I’d like to see requirements for Se, Hg, Cd, As, Fe, and other metal testing. This would go much further than simple conductivity testing and would be a cost and prohibition to the coal industry. I think the EPA really bent over backwards allowing conductivity in lieu of much more expensive metals testing.

    With the potential for GOP proposed budgets interfering with regulator agencies doing their jobs I think we should explore the possibility of agency sanctioned volunteer labor being at the disposal of regulatory agencies. I’m a retired analytical chemist and I would love to give some of my time to help the effort. I’ll bet you there are thousands of folks like me but they haven’t been given the opportunity.

  5. rhmooney3 says:

    OSM set itself up for this failure.

    That OSM continues working on this “corpse” is even worse.

    There is no way that OSM will ever be able withstand legal challenges to this rulemaking.

    Joe Pizarchik is now beginning his 18th month as the OSM Director — few have lasted much longer.

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