Coal Tattoo


It seems that at least some of the beltway media are expecting some serious news to come out of a hearing this morning before the House Natural Resources Committee, where Republicans are continuing to try to manufacture some major Obama administration scandal out of the Office of Surface Mining Reclamation and Enforcement’s bungling of the Environmental Impact Statement for its rewrite of the stream buffer zone rule.

The National Journal, for example, ran with the ridiculous headline, Explosions Coming Over Mountaintop-Mining Rule and a typical story reducing the matter — and all things related to mountaintop removal and coal mining — to the standard Democrats vs. Republicans story line.

If you missed the notice for the House committee hearing, here’s how the Republican leadership staff described their plan for the event:

For over two years, the Committee has been conducting an investigation into the rewrite of this coal production regulation. This unnecessary rewrite, carried out through the Office of Surface Mining Reclamation and Enforcement (OSM) at the Department of the Interior, proposed to dramatically alter a regulation that took over five years of environmental analysis and careful scientific consideration to complete. The Department’s process in rewriting this regulation has been rushed and unorthodox. After tossing aside the 2008 plan, the Department spent millions of taxpayer dollars and hired new contractors to complete a new environmental impact statement, even though one was already completed for the 2008 rule. Those contractors were dismissed after it was publicly revealed that the Administration’s new proposed regulation would cost 7,000 jobs and cause economic harm in 22 states. The Administration has spent five years and over $9 million taxpayer dollars working on this rewrite, but has failed to even publish a draft rule. In September 2012, the Committee released its own report on this issue entitled, “President Obama’s Covert And Unorthodox Efforts to Impose New Regulation on Coal Mining and Destroy American Jobs.”

For those who have forgotten, this all goes back to the big scoop that Tim Huber wrote for The Associated Press in January 2011, about the potential job losses outlined in a leaked documents from the OSMRE EIS.

It’s important to recall, though, that once the complete draft was made public, the findings were a bit more complicated than AP made them sound. As I reported at the time, the EIS draft not only touched on potential job losses, it also looked at environmental benefits of the OSMRE rulemaking:

Yearly Appalachian coal production would drop by 13 percent over the next decade, but annual impacts to streams and the land would be cut by 20 percent, under Interior’s preferred version of a new stream protection rule outlined in the draft report …

… In the draft report, OSM outlines potential alternatives that range from doing nothing differently to banning all valley fills and prohibiting mine operators from obtaining variances to the general “approximate original contour,” or AOC, reclamation rule.

The OSM “preferred alternative” would allow valley fills, but require mine operators to take steps to minimize the burial of streams. It would also place new restrictions on the use of AOC variances.

Under this alternative, the study projects nationwide coal production would increase slightly, as western mining in Wyoming, Montana and North Dakota make up for reductions in Appalachia. Total direct Appalachian coal jobs would decline from nearly 23,000 to just more than 15,000, according to the draft study.

At the same time, annual miles of streams buried by valley fills in Appalachia would drop from 71 to 57 miles. Annual acreage impacted by mining would drop from 33,000 to 26,000 in the region.

What’s happened now is that back before Christmas, the Interior Department’s Inspector General released a report on its investigation of this whole situation with the EIS, focusing on “media reports” — they cite a Fox News website posting that alleged the Obama administration pressed EIS contractors to reduce the job loss estimates — about this whole thing.

The IG report, available here, is certainly interesting reading, if a bit dense. Among other things, readers may find parts of it hard to follow, since the IG decided not to name many of the government officials it was investigating.

The report paints a picture of OSMRE officials, especially agency Director Joesph Pizarchik, responding poorly and politically to the AP report about the EIS job loss estimates. For example, there’s this passage:

The former Regulatory Support Division chief explained that the job-loss number was leaked the day after the President gave his State of the Union address in January 2011. He said Pizarchik called him to his office and told him he was concerned that the President had just given a speech indicating that jobs would grow in this administration, and the next day it came out that something the OSM Director was doing was going to have the opposite effect, which Pizarchik said was “very uncomfortable politically.” He said that Pizarchik told him that “obviously something needs to change.”

Then, there’s this:

On January 26, 2011, an OSM employee emailed Pizarchik’s counsel a link to the Associated Press article. The following day, the counsel emailed Pizarchik, stating: “We should fire the EIS contractor. And put that on the front page!!!!” Several hours later, she emailed a SOL assistant solicitor that OSM was considering its options for terminating OSM’s contract with PKS. She attached an “EIS options” document to the email, listing the pros and cons of continuing the contract, terminating the contract for convenience, or terminating the contract for cause. She noted that terminating the contract for convenience might look like retaliation.

Or, there’s my favorite:

ECSI’s executive vice president later asked Pizarchik’s counsel whether the contractors should be using the 2008 rule as the baseline for the economic analysis. She responded that OSM was “looking at going from one rule to the next rule” and was “not looking at conditions on the ground.” She later stated that OSM’s status quo was that the 2008 rule was “on the books.” When ECSI’s executive vice president disagreed with this, she responded: “It’s not the real world. This is rulemaking.”

Not for nothing, but perhaps if the folks at OSMRE, including Pizarchik and his handlers, had been more open and transparent about what was going on after AP broke its story, they might not have ended up in this mess now. Go back and read this, to see how OSMRE officials — rather than actually answering questions about the matter — spent their time demanding that say-nothing prepared statements be given more prominent play in media accounts of the situation.

Of course, West Virginia Sen. Joe Manchin can’t pass up a chance to pledge allegiance to the coal industry. So he’s gone along with a letter that demands the Interior Department abide by the OSM contractor’s original job-loss estimates.

Now, part of what this is about, if you read the IG report, is whether the EIS would use as a baseline 2008 coal production without enforcement of the never-implemented 2008 Bush administration buffer zone rule changes or as if those change had been implemented by OSM. The thought underlying the whole discussion is that if you had assumed the 2008 changes were implemented, coal production and jobs would have declined and therefore additional job losses from the new OSMRE rule Obama’s team was working on would have appeared smaller.

But it’s interesting to note that the Office of Management and Budget — certainly no big fan of environmental regulations — told the Interior IG that either assumption would have been acceptable. And, the IG report includes some interesting stuff from mining engineer John Morgan, part of the EIS contracting team:

We interviewed the president of subcontractor Morgan Worldwide, who calculated the costs associated with the Stream Protection Rule and actually configured the baseline. He said he used 2008 coal production data as the baseline for his analysis, which included the 1983 rule, and then looked at current industry practices, including what was required for filling streams under the Clean Water Act. When asked about OSM’s directive that the 2008 rule should be applied as the baseline, he said the contractors were “very clear” that the 2008 rule could not be applied.

Morgan Worldwide’s staff attorney, who was also present for the interview, stated that using the 2008 rule as the baseline would be difficult since the rule had never gone into effect due to litigation and there was no way to know how long the legal case would continue. Morgan Worldwide’s president and staff attorney stated that because of newer Clean Water Act requirements, mining operators were already expected to comply with the major aspects of the 2008 rule, so the baseline issue was a moot point.

Another House hearing on all of this will make for good political theater. But it seems unlikely to do much to address the clear science that shows mountaintop removal is damaging the environment, and certainly not the growing science that shows residents living near this kind of surface mining face greater risks of illnesses and death. Then again, I’m guessing that Sen. Manchin wouldn’t sign a letter that demanded the Interior Department do anything about those issues.