OSM: ‘Poor stepchild’ of the Interior Department

November 17, 2011 by Ken Ward Jr.

For the coal industry, discussion of the proposed merger of the U.S. Office of Surface Mining and the Bureau of Land Management is mostly just another opportunity to bash the Obama administration and any efforts it makes to better regulate things like mountaintop removal.  Katie Sweeney, general counsel for the National Mining Association, told today’s Senate committee hearing on the subject:

Another way the department can marshal scarce resources absent consolidation is to ensure agencies truly focus on mission-essential activities. OSM has strayed from that path with its recent policy of reviewing state-issued permits in primacy states and second-guessing state permitting decisions. This emphasis on massive increases in oversight of state programs has proven to be unnecessary, duplicative, and a waste of millions of taxpayer dollars. OSM’s own annual evaluation reports demonstrate that the states have consistently done an excellent job in regulating coal mines.

OK … well, Ms. Sweeney must be reading different OSM oversight reports than I am.

I wonder if she’s read last year’s OSM report on West Virginia’s Department of Environmental Protection, which outlined some of the same old problems WVDEP has had for years:

– WVDEP staffing — WVDEP listed 268.05 full-time equivalent positions, but had 33 vacancies. According to OSMRE:

The number of vacancies continued to increase primarily due to retirements. Most of the vacancies are in permitting and inspection and enforcement.

Given the continued decline in total WVDEP regulatory staffing and the number of vacancies, OSM continues to make staffing a priority issue with the state. State officials acknowledge that they have made some progress in filling vacancies and they hope to fill 9 positions in the near future. In the past, state officials have admitted that they have had difficulty hiring and retaining technical staff.

– Acid mine drainage inventory — WVDEP and OSMRE continue to struggle to put together an updated list of bonded permits with appreciable water treatment costs:

The remaining tasks relate to approximately 190 permits that require additional investigation to more accurately characterize water treatment costs and flow and water quality data for approximately 15 to 20 percent of the sites. Furthermore, additional information is needed regarding pumped discharge rates at underground mines; flow and chemistry data to estimate water treatment costs; and to complete a comprehensive reporting system.

– AMD Prediction — Back in 2007, OSMRE and WVDEP completed a review of underground mining permits where acid mine drainage had developed and found that data could be used more consistently by state permit reviews to predict, prevent and address AMD. The report also noted that the state’s Cumulative Hydrologic Impact Assessments, or CHIAs, should be required for significant underground mine expansions … WVDEP agreed to update its CHIA guidance, but has not completed the project yet.

– Approximate original contour — Another OSMRE oversight report found that the state needed to do more to ensure that mining operators follow the regrading plans approved in agency permits.

– West Virginia’s Alternative Bonding System — The state’s special reclamation fund is expected to remain solvent until 2038, but then go into the red largely because of water treatment costs.

I wonder if Ms. Sweeney knows about the improvements to permits for the Brushy Fork Slurry Impoundment that were made only because citizens frustrated with WVDEP went to OSM for help. Do you think she paid much attention to OSM reports that found problems with off-site impacts and slurry spills at mining operations here in West Virginia? Maybe she missed this OSM report about flyrock problems that weren’t being properly handled by WVDEP.

Looking back at those reports is interesting, especially given the context provided during today’s Senate hearing by our good friend, West Virginia University law professor Pat McGinley, who told lawmakers this:

Historically Secretaries of the Interior have treated OSM as a poor stepchild of the Department – an agency with a narrow focus on only one mineral and on enforcement rather than federal public land management. The agency has long been significantly underfunded, as Director Pizarchik recently conceded. However, the burial of an underfunded half-alive OSM in the behemoth bureaucracy of BLM is beyond any prior marginalization of the agency.

Many coalfield citizens who understand the role of OSM under SMCRA feel that Secretary Salazar’s issuance of Order 3315 shows a fundamental disrespect for them and their communities. I suspect, however, that the decision to issue this Order was grounded in a failure to recognize and appreciate the mission of the long beleaguered OSM.

Let me briefly explain. Over the years since enactment of SMCRA those whom I represent have at times been very critical of regulatory and policy decisions made by OSM political appointees. Nevertheless, the field personnel and technical experts within OSM have frequently taken citizen complaints and concerns seriously. These front-line OSM inspectors, geologists and mining engineers have been crucial in OSM’s efforts to implement SMCRA’s mandate to protect those who live over and near coal mines from environmental and socio-economic injuries that accompany violations of SMCRA.

There are numerous examples of OSM’s field inspectors and technical experts using their expertise to prevent mining operations that would have harmed coalfield communities and families. These professional OSM staffers also have, in some situations, been permitted to use their expertise to develop facts that allow coalfield families who have suffered injuries to have their rights vindicated through SMCRA-created administrative or judicial remedies. These efforts of front-line men and women of OSM are accomplished using their skills, expertise and savvy garnered from years of working cooperatively with coal operators and state program regulators.

Sadly, one can examine Secretarial Order 3315, DOI news releases and the statements of agency officials without finding a reference to the OSM mission regarding coalfield communities. Whether grounded in disrespect of coalfield citizens or ignorance of OSM’s mission and its’ impact in the coalfields, Order No. 3315 dishonors the letter and spirit of the SMCRA and should be withdrawn. Perhaps, at the highest levels of the Department of the Interior the controversy triggered by this ill-considered and cavalier administrative decision will give rise to a new understanding and appreciation of OSM’s mission – and renewed respect for coalfield citizens.

One Response to “OSM: ‘Poor stepchild’ of the Interior Department”

  1. Lump of Coal says:

    Leave it up to Mr. Ward to make every effort to put down the coal industry and to make sure that any report issued by a federal agency is highlighted in such a fashon as to make our state agencies look inept!

    Staffing at WVDEP is directly related to salaries, why work at WVDEP for one third of the money that can be made in industry? Those who choose to do so are constantly maligned by the very folks that Mr. Ward supports as the saviors of our state. No matter how hard they try to follow a rule or law, there is a legal battle to follow!

    The AMD inventory has been on the books since the early 90’s, updated whenever there is a whim from OSM. Same folks that are tasked with making the inspections on all mining sites are also required to do the inventory and all within the 37.5 hr work week that is mandated. Forget that a new parameter gets added to the list to be monitored based on the “peer reviewed” science that comes down from the same group of suit filers.

    Lets predict AMD from potential mine sites, based on what parameter? Based on WV water law or on the same “peer reviewed” studies? Lets predict impacts on the stream, on the watershed, how about on the Mississippi River?

    Lets measure Approximate Original Contour! Do we use the mapping required by the regulations or do we use the definition decided by the Sierra Club or another one of those “peer reviewed” studies?

    The Alternative Bonding System needs a review while we are here. What would OSM do if they forfeited a permit in Tennessee? Would they treat the water to meet the standards set forth by the EPA or the suit filers or the enviro groups?

    Maybe Ms Sweeney has a little insight into the facts surrounding the rules and regulations regarding mining and what was intended by Congress when SMCRA was written and just maybe, she might not have the same “tilt” to her narrative as Mr. Ward!

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