Later today, the U.S. Senate will almost certainly vote to approve a resolution to block a last-minute Obama administration rule aimed at replacing the long-controversial stream “buffer zone” rule. The House passed the resolution yesterday afternoon. Once that resolution makes its way to the White House, President Trump will sign it.
Presumably, it won’t take long after that before all of the coal miners in West Virginia who have lost their jobs over the last few years will get called back to work.
Well, at least that is what coalfield political leaders, industry officials — and now the most powerful man on the planet — would have residents of places like Boone and Logan counties in West Virginia believe.
Simply put, it was President Obama’s attempt to drive a final nail into the coffin of an industry that made America great. Look, enough is enough. This war on coal has to come to a stop, and I think this election set the tone for that. Now that we finally have a President who understands the painful impact of excessive and unnecessary regulations,
It is time to give the families of the coalfields all across America a chance to get relief from the unelected bureaucrats in Washington.
Here’s Rep. Evan Jenkins, R-W.Va., during that same floor debate:
Stopping this rule matters to West Virginians, to our miners, to our families, to our consumers. We produce 95 percent of our electricity from coal. It is reliable and it is affordable … My State can’t afford to lose any more jobs, and I know that goes for other coal States.
It fell to Rep. Raul Grijalva, a Democrat from Arizona, to bring some reality into the discussion:
… If there is a war on coal, it is being led by the natural gas industry who produces a cheaper product at a lower cost. And if there is any trouble that coal is in, it is directly attributed to the free market and that competition.
Coal industry officials and citizen groups are both gearing up for tonight’s start of a series of public hearings on the latest proposal to replace the stream buffer zone rule.
The hearings start this evening in Denver and end on Sept. 17 here in Charleston. The full schedule is here.
This afternoon, the National Mining Association had a phone call with reporters to emphasize the industry’s belief that “the rule is just the latest in a series of costly and unnecessary regulations that will harm mining communities as well as the larger economy, while contributing very little to the environmental protections already ensured by state and federal agencies.”
Meanwhile, the Ohio Valley Environmental Coalition is telling its supporters that the public’s help is needed “to make sure this critical rule overcomes industry opposition.”
Coal operators would have to conduct expanded monitoring and perform additional environmental restoration, but would be freed from the threat that a 32-year-old ban on mining activities within 100 feet of streams might be used to stop them from dumping waste rock and dirt into streams, under a proposed rule unveiled Thursday by the Obama administration.
The Interior Department’s long-awaited proposal acknowledges the growing body of science that links mountaintop removal and related large-scale surface mining to severely damaged water quality, the elimination of rich and diverse forests and increased risks of serious illnesses, including cancer and premature deaths.
However, Interior’s Office of Surface Mining Reclamation and Enforcement backed away from again establishing a “buffer zone” around streams, a requirement that was never really enforced, allowing mining companies to bury hundreds of miles of streams across Appalachia beneath huge waste piles called “valley fills.”
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.
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.”
Here’s the news that the U.S. Office of Surface Mining Reclamation and Enforcement waited until after the close of business on Friday to put out: The agency lost “two or three boxes” — I guess they’re not sure which — containing more than 18,000 public comments on the Bush administration’s changes to the stream “buffer zone” rule made in 2008.
When OSM discovered and verified the inadvertent loss of some public comments that were part of a mass mailing, it moved quickly to advise both the court and the group that submitted the comments in 2007. OSM retained a sample of the comments and a record of the number of comments received. The sample adequately represented the group’s position, and OSM addressed the comments’ substance in promulgating the 2008 Stream Buffer Zone Rule. The addition of substantially identical comments would not have influenced the rule’s content. However, OSM takes seriously the need to retain all public comments, especially those under a litigation hold, and OSM Director Joe Pizarchik has ordered the immediate development of new controls under which public comments submitted in the future will be safeguarded.
OSM staff charged with maintaining the rule’s Administrative Record examined the submission and selected a representative sample that reasonably represented the comments. This sample was retained apart from the boxed comments. When the office used to store the comments became overcrowded, the boxes were moved to an adjacent office. More than five years later, OSM directed that the adjacent room be cleaned out. Sometime in 2012, the boxes of duplicate comments were inadvertently discarded.
In this Oct. 16, 2000 photo, 250-million gallons of coal slurry floods Coldwater Fork, which was spilled after the bottom fell from a 72-acre retention pond upstream several days earlier in Martin County, near Inez, Ky., flooding 28 miles of two streams. (AP Photo/Lexington Herald-Leader, David Stephenson)
It’s been bizarre over the last few years to watch the coal industry and its friends in Congress try to pain the federal Office of Surface Mining Reclamation and Enforcement as a major solider in the Obama administration’s “war on coal” (see here and here, just for example). As if the election of a different president could somehow turn an agency that’s spent more than three decades as the “poor stepchild” of the Interior Department into the strong advocate for environmental protection and the rights of coalfield citizens that Congress had envisioned.
Over the course of this 12 year review, the industry has responded to previous issues in a prompt and professional manner when provided with an opportunity for an open dialogue with OSM, but that opportunity was not provided in this situation. The agency never requested any information from the industry that may have satisfied their concerns nor did they contact the industry to make them aware of the pending release of these reports, or today’s media event. Sensationalism has never advanced meaningful dialogue and progress with respect to developing a path forward.
Sensationalism? First of all, it’s quite something to hear the publicists and lobbyists who make a nice living off the inflammatory and deceptive “war on coal” campaign against regulation of the mining industry call anything sensationalism. Come on, guys. But the other thing is, while it was unusual for OSM to hold a press conference to release this report, agency officials handled this in anything but a sensationalistic manner.
I’ve been to press conference that were all about sensationalism. Several events years where minnows were dumped into a jar of poison water to show the effects of acid mine drainage come to mind. But this one? Roger Calhoun, OSM’s Charleston field office director was very measured in both tone and content, being careful to explain that his agency didn’t find any imminent threats to public safety, but simply believes the WVDEP needs to do more to make sure such threats don’t develop. And the OSM report itself is anything but sensationalistic. It’s written in dry technical terminology that would make it hard for any member of the public to really be sure what a serious issue we’re talking about here.
There are some unanswered questions and gaps in data … The information they are suggesting needs to be available in the files and available for consideration by the DEP , we can’t argue that the information shouldn’t be there. I’m not going to argue for less information.
And it’s not like OSM rushed into this thing … they’ve been working on an examination of the potential for coal-slurry dams to “breakthough” into nearby underground mine workings for more than a decade, since the October 2000 disaster at Massey Energy’s operations in Martin County, Ky. They’ve released at least two preliminary reports on the issue. Industry officials know what OSM was looking at, and they had plenty of opportunities to reach out to OSM and make whatever points they wanted to make.
In its statement, the Coal Association made these claims about coal-slurry impoundments:
These structures are some of the most highly engineered and regulated structures found anywhere in the world, with detailed engineering and geo-technical analysis associated with their design, operation and maintenance.
If that’s true, then the plan announced by OSM and WVDEP — for the state to require companies to submit more proof that they’ve minimized the potential for breakthroughs — shouldn’t be a problem. You would think the industry would by pleased to provide that information, and ease everyone’s concerns, instead of making unfounded complaints about “sensationalism” by OSM.
Word just in this afternoon about a potentially major decision by the U.S. Office of Surface Mining Reclamation and Enforcement …
OSMRE officials here in Charleston have determined that the West Virginia Department of Environmental Protection was wrong in its decision to retroactively extend a Massey Energy/Alpha Natural Resources mountaintop removal permit along the Coal River Valley in Raleigh County, W.Va. I’ve posted a copy of a letter from OSM Charleston Field Office Director Roger Calhoun to WVDEP mining Director Tom Clarke here.
Essentially, the letter says that OSM is taking this action because WVDEP’s policy to allow such “retroactive” permit extensions or renewals is not part of the state’s federally approved program for regulating West Virginia’s surface coal-mining industry.
In his letter to Clarke, Calhoun concludes that WVDEP’s actions on this permit were “arbitrary, capricious, and an abuse of discretion.” The letter gives WVDEP five days to file an appeal with OSM’s regional director. If Calhoun’s determination ultimately wins out, then OSM could launch a federal inspection and ultimately take action, under the Obama administration’s 2011 policy to get OSM back in the business of more closely examining potential defects in state agency permit decisions.
Photo from iLoveMountains, via House Democrat report
We’ve covered here before the ongoing — and rather cooked-up — controversy over the federal Office of Surface Mining Reclamation and Enforcement’s efforts to rewrite the stream buffer zone rule into something that OSMRE Director Joe Pizarchik insists on calling the “stream protection rule” (see here, here and here).
At the hearing Committee Members specifically questioned the amount of taxpayer dollars being spent to expedite a rewrite of a rule completed in January, 2009 after five years of extensive environmental and scientific review to complete. According to Pizarchik, the Obama Administration has already spent $3.7million to pay for a contractor that was terminated and awarded Industrial Economics a contract for over $1 million to finish rewriting the rule. Pizarchik was unable to say how much of OSM’s own man-hours have been invested into the process.
When asked by Chairman Lamborn how much more taxpayer money will be needed to finish the rule, Pizarchik replied, “I don’t know specifically how much more…”
However, the total cost of the rulemaking process is assured to be even more expensive.
Director Pizarchik also admitted OSM will miss their June 29, 2012 deadline to finalize the rule, which was set by a settlement agreement between the National Parks Conservation Association and the Interior Department, which could lead to additional litigation and spending more money.
Republicans on the House Natural Resources Committee, who oppose a new Stream Protection Rule, are now investigating OSM’s relationship with a contractor, Polu Kai Services (PKS), that was hired in June 2010 to prepare an Environmental Impact Statement (EIS) for the rule. OSM and the contractor mutually agreed to end their relationship in March 2011 before the EIS was complete. Committee Republicans allege that the Obama administration and OSM acted improperly in seeking this separation agreement and in managing the contract.
The Department of Interior has provided more than 12,000 pages of documents to the Committee in response to Republican requests for documents related to this matter. Democratic Committee Staff reviewed these documents at the request of Ranking Member Ed Markey (D-MA) to assess the validity of the Republican allegations. The documents do not support these allegations and in fact show the allegations are untrue.
But frankly, the meeting was pretty much a waste of time — and this is coming from somebody loves the very notion of getting the public together and making our government officials sit and listen to us for a while.
Turnout was pretty low, and only a couple of the 15 people who signed up to speak actually took advantage of their 3 minutes of fame to give OSMRE and BLM officials a piece of their mind about the proposed merger plans. The industry’s lobbyists — Jason Bostic of the West Virginia Coal Association and Bryan Brown of FACES of Coal were both there — declined to say anything at the meeting, telling officials their groups would submit written comments later.
A representative of Sen. Joe Manchin read part of a prepared statement. Someone from Sen. Rockefeller’s office said something, but she was so quiet about it even the court reporter couldn’t hear her. My old buddy Lewis Halstead from the West Virginia Department of Environmental Protection was there to listen, as were officials from several coal companies, including Alpha Natural Resources.
Vivian Stockman of the Ohio Valley Environmental Coalition was about the only person who had much to say, offered a pretty weak statement of support for OSMRE, saying:
We find ourselves in an awkward position of advocating for an agency that has often fallen short of its duties.
Perhaps if OSMRE could have gotten a couple of the local television stations to show up the politicians would have turned out as well and the industry lobbyists would have taken advantage of the chance to make with the “war on coal” narrative that they’re somehow seeking to make this OSMRE-BML deal sound like it’s a part of.
In a related move on Monday, Interior Secretary Ken Salazar announced he was delaying a report on his proposed merger of OSM with the Bureau of Land Management from Dec. 1 to Feb. 15. A prepared statement said the move was aimed at allowing more input from interested parties.
There’s an updated order from Secretary Salazar posted here, along with this statement from his press spokesman, Adam Fletcher:
In the weeks since Secretary Salazar directed OSM and BLM leadership to evaluate how certain functions of BLM and OSM might be consolidated to further strengthen the bureaus’ mining regulatory and abandoned mine land reclamation programs and achieve important efficiencies – without losing OSM’s independence as a regulatory body — some of the Department’s most senior officials have testified before Congressional committees; consulted with staff of the applicable committees as well as the Office of Management and Budget; and held employee meetings in Denver, Pittsburgh, Alton, Ill., and Washington, D.C., to discuss the proposed consolidation.
The discussions that have been conducted to date have been very productive. In particular, they have helped to identify efficiencies that OSM might gain by having BLM handle some of OSM’s administrative functions, in much the same way as some bureaus in the Department provide administrative support functions for other, smaller bureaus and offices. At the same time, it appears that some of OSM’s core functions might be strengthened by adding BLM’s abandoned mine reclamation program and BLM’s coal-related inspection responsibilities to OSM’s similar programs. Informative discussions also are underway regarding how best to maintain OSM’s independence over its regulatory responsibilities under the Surface Mining Control and Reclamation Act.
Regular readers know that I’ve been a little suspicious from the beginning about this controversy over the leaked portions of the federal Office of Surface Mining Reclamation and Enforcement’s “Environmental Impact Statement” on its efforts to rewrite the federal stream buffer zone rule (see previous posts here, here and here).
So it was certainly interesting this morning when a House Natural Resources subcommittee posted the witness list and then the prepared testimony of a couple of the subcontractors who worked on that study and apparently were involved in preparing the questionable estimates of the buffer zone rewrite’s potential economic impacts. Remember now that the mining industry and its political friends have made much of these estimates, and used them to continue their efforts to discredit and block Obama administration efforts to reduce the impacts of mountaintop removal.
Today’s witness list includes two speakers who worked for ESCI LLC, an engineering firm that apparently was a subcontractor for Polu Kai Services, which was working with OSMRE to write the EIS for the “stream protection rule,” or the agency’s proposals to rewrite the buffer zone regulation.
One witness, J. Steven Garder, president and CEO of ECSI, says in his prepared testimony that OSMRE officials tried to get contractors to change the results of their economic analysis to get different results:
A joint PKS and OSM team meeting was held in February in OSM’s offices in DC. During this meeting, OSM “suggested” that the PKS team revisit the production impacts and associated job loss numbers, and with different assumptions that would then change the final outcome to show less of an impact. The EIS team unanimously told OSM that it was not appropriate to change assumptions just to get a different answer. The team was also very concerned with the specific instruction from OSM to make the assumption that the 2008 Stream Buffer Zone (SBZ) Rule was in effect and being enforced across the U.S., which was not true. No state with an approved SMCRA program had promulgated the 2008 SBZ Rule, especially since the rule itself was subject to the litigation which brought about the SPR. If the PKS team assumed that the 2008 SBZ was in effect as part of the baseline existing environment, the nexus from the SBZ to the SPR would show less production, and therefore less job loss impact. The PKS team unanimously refused to use a “fabricated” baseline scenario to soften the production loss numbers.
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.
Here’s the news from the House Natural Resources Committee:
Today, the House Natural Resources Committee approved an amendment by voice vote, to H.R. 3404, offered by Rep. Bill Johnson (OH-06). The amendment was a rejection of the Obama Administration’s recently announced intentions to merge the Office of Surface Mining Reclamation and Enforcement (OSM) and the Bureau of Land Management (BLM). Specifically, the amendment keeps OSM and BLM separate, independent agencies in the Department of the Interior and under the purview of the Under Secretary for Energy, Lands and Minerals.
Rep. Johnson said:
I’m pleased the Committee approved my amendment to protect the integrity of these two separate but equally important agencies. The attempt to merge these two agencies is yet another action by the Obama Administration in its ongoing war on American coal. There are serious statutory concerns with the Interior Department’s unilateral decision to merge OSM within BLM that could ultimately affect thousands of hardworking coal miners.
This amendment protects American jobs, ensures that the Obama Administration cannot skirt the laws passed by Congress, and guarantees these two agencies stay distinct entities within Interior Department while maintaining their individual, critical missions
Protects American jobs? Seriously now. This has to be one of the more baffling moves by coal’s friends among our nation’s political leadership. I have yet to hear anyone really explain exactly how it is that folding what little is left of OSMRE into the BLM for some administrative purposes amounts to a new front in the “war on coal.” Wouldn’t weakening OSMRE do more to get the federal government out of the business of overseeing coal, and isn’t that what the industry really wants?
… Lawmakers from both parties raised concerns about the merger. A number of Republican members including Representative Bill Flores of Texas questioned whether Interior has the statutory authority to merge the two agencies.
Representative Rush Holt of New Jersey, the committee’s leading Democrat, asked for assurances that the merger would not impact the agency’s oversight.
“OSM is a separate and independent entity. … It will remain an independent agency,” Pizarchik said, quoting a statement Salazar gave to employees last week.
And environmental groups in Pennsylvania are raising concerns about the proposal’s potential impacts on the federal Abandoned Mine Lands program:
The Foundation for Pennsylvania Watersheds, the Citizens Coal Council and other environmental groups are calling President Obama’s plan to fold the federal Office of Surface Mining into the Bureau of Land Management a threat to the $1.4 billion in federal funds due to Pennsylvania to reclaim abandoned mine lands and weaken surface mining regulation.
“(Pennsylvania) has developed a foward thinking, visionary program for restoring the more than 5,500 miles of dead streams utilizing funds collected, held and distributed by OSM,” said John Dawes, Executive Director of the Foundation for Pennsylvania Watersheds. “To move the Abandoned Mine Land Program and its finances into an agency whose main purpose is to lease federal lands would be a disservice to all Pennsylvanians working diligently to restore our streams and abandoned mine lands.
“Pennsylvanians worked very hard to secure the future of the Abandoned Mine Land Fund for the purpose of restoring land and streams in this state. We fear that BLM will have little interest in seeing the culmination of our hard work,” added Dawes.
“This scheme is illegal and defies common sense,” said Aimee Erickson, Executive Director of the Citizens Coal Council. While the many devils in the yet-to-be-released details of the Salazar OSM-BLM merger scheme already raise many serious and practical objections, the illegality of the proposed bureaucratic entanglement makes the proposal a non-starter.
OK … now let me make this clear: When I first heard that the Obama administration and Interior Secretary Ken Salazar were going to merge the federal Office of Surface Mining Reclamation and Enforcement with the Bureau of Land Management, I asked my source to repeat what they said … I thought for sure I had a bad connection on my cell phone.
The Obama administration wants to merge the federal Office of Surface Mining, which enforces and oversees federal and state regulations on the coal industry, with another federal agency … Late Wednesday afternoon, U.S. Interior Secretary Ken Salazar announced he is currently evaluating the best way to integrate OSM with the federal Bureau of Land Management.
We must always be looking for ways to make government work better, to build on our strengths, and to get the most out of the limited resources we have. OSM and the BLM have vital natural resource missions, tremendous public servants, and strong leaders who are helping us rethink how we better deliver services and how we can further strengthen our regulation, reclamation, and stewardship responsibilities. We will rely on the ideas and input of employees and many others at every step of the process, so that we ensure that an integration is successful and consistent with our authorities under the law.
Many questions to come to mind about all of this, but one thing is clear: The administration wasn’t ready to go public with this announcement, and was pushed into it by a story from Greenwire, which reported yesterday:
Rumors of an imminent announcement about the reorganization circulated among mining industry leaders and on Capitol Hill all day, and officials are reportedly vetting a draft order to accomplish the change. Interior Department spokesman Adam Fetcher is not commenting on the reports.
One source familiar with the deliberations cited cost savings and efficiency as reasons for the possible change, saying combining operations could cut down on administrative functions. Early critics of such a move say OSM and BLM have distinct functions.
Republican committee leaders are calling the hearing, “Jobs at Risk: Community Impacts of the Obama Administration’s Effort to Rewrite the Stream Buffer Zone Rule.” The witness list hasn’t been posted publicly yet, but I understand it includes West Virginia Coal Association officials, Tom Clarke from the West Virginia Department of Environmental Protection, and our old buddy from the United Mine Workers union, Roger Horton — who has said publicly that EPA efforts to reduce the impacts of mountaintop removal amount to “state-sponsored terrorism” or breaking into people’s homes at night.
So, it’s clear that this hearing will provide another opportunity for a clear-headed, thoughtful, and reasonable discussion of the impacts of mountaintop removal on Appalachia and the industry’s role in the region’s economy.
Citizen groups weren’t very happy earlier this week, when OSMRE Charleston Field Office Director Roger Calhoun informed them of his decision on the Brushy Fork coal-slurry impoundment. As we reported:
Federal regulators this week backed off any separate enforcement action at a huge Raleigh County coal slurry impoundment, but disputed West Virginia’s conclusion that the facility used “the most conservative design” and that concerns about the site are unfounded.
The U.S. Office of Surface Mining Reclamation and Enforcement concluded that state officials had acted properly in policing the Brushy Fork impoundment, in part because the West Virginia Department of Environmental Protection has promised more stability testing at the site just upstream from Whitesville.
But this whole thing is worth another look — and not just because the Brushy Fork impoundment is big and scary, and deserves all the scrutiny regulators can give it. This story is also about what local OSMRE officials can and can’t do — and how OSMRE has tied its own hands in these situations.
Keep in mind first what has happened here on two of the major issues citizens have raised about Brushy Fork:
— Regarding whether blasting at the nearby Bee Tree Mine could damage the impoundment, OSMRE officials don’t believe it will. But, OSMRE also forced the state Department of Environmental Protection to revised its permit for Bee Tree, to require monitoring and blasting limits at the impoundment site. OSMRE’s Charleston Field Office went after this issue under a new agency policy, instituted in November 2010, that brought back the ability of local OSMRE officials to investigate potential permit defects in decisions made by state regulators.
Now, this isn’t exactly a ban on mountaintop removal … They won’t get written up by national bloggers or prompt thousands of comment emails from activist groups. But these are not small things, especially in the world of OSMRE, an agency that’s never come close to living up to the promise of the law that created it (see here and here).
I asked Tom Clarke, director of the WVDEP’s Division of Mining and Reclamation, if he thought OSMRE’s review had improved his agency’s work on Brushy Fork and other impoundments, and after a long silence, he finally said:
… There probably have been some improvements ..
Harold Ward, one of Clarke’s top assistants, was more circumspect:
… It’s not always pleasant, but it is beneficial.
At the same time, it’s worth it for everyone who cares about strip-mining issues to understand why OSMRE couldn’t do anymore … why in effect, Roger Calhoun’s hands are pretty well tied up.
My standard of review of a state response to an alleged violation is explained in 30 C.F.R. 842.11, which requires that ‘… a response by a state regulatory authority that is not arbitrary, capricious or an abuse of discretion under the state program shall be considered appropriate action.’
Surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders.
Despite claims from some quarters that State reclamation laws have improved so significantly that Federal mining standards are no longer needed, the hearing record abounds with evidence that this is simply not the case. For a variety of reasons, including the reluctance of the State to impose stringent controls on its own industry, serious abuses continue.
The economic importance of the coal industry to at least some of the mining states produces powerful pressures on state legislatures and regulatory agencies to accommodate coal interests.
So given that, why can’t OSMRE do more? Why can’t Roger Calhoun overturn a state decision unless he finds that decision to be arbitrary and capricious?
Well, it’s not because the law says so … SMCRA itself describes what OSMRE can do this way:
Whenever, on the basis of any information available to him, including receipt of information from any person, the Secretary has reason to believe that any person is in violation of any requirement of this Act or any permit condition required by this Act, the Secretary shall notify the State regulatory authority, if one exists, in the State in which such violation exists. If no such State authority exists or the State regulatory authority fails within ten days after notification to take appropriate action to cause said violation to be corrected or to show good cause for such failure and transmit notification of its action to the Secretary, the Secretary shall immediately order Federal inspection of the surface coal mining operation at which the alleged violation is occurring unless the information available to the Secretary is a result of a previous Federal inspection of such surface coal mining operation.
As you can imagine, exactly what constitutes “appropriate action” under this part of SMCRA has been the subject of a lot of debate. And in July 1988, the Reagan administration — in response to a mining industry regulatory petition — added this language to OSMRE’s rules for interacting with state agencies:
For purposes of this subchapter, an action or response by a State regulatory authority that is not arbitrary, capricious, or an abuse of discretion under the state program shall be considered “appropriate action” to cause a violation to be corrected or “good cause” for failure to do so.
Industry supports of the rule cited court cases, like one from 1981, in which a federal appeals court said:
Once a state program has been approved, the state regulatory agency plays the major role, with its greater manpower and familiarity with local conditions. It exercises front-line supervision, and the Secretary will not intervene unless its discretion is abused.
Of course, they didn’t always cite the following passage of the ruling:
But ultimate responsibility for guaranteeing effective state enforcement of uniform nationwide minimum standards lies with the Secretary, and his duty to disapprove proposed state programs that he considers ineffective may not be obstructed by a policy of judicial deference to the state agencies proposing those programs.
In their book, McElfish and Beier wrote that the “arbitary and capricious” standard should be eliminated from OSMRE’s rule:
Oversight that applies a judicial deference standard to state action undermines OSMRE’s capacity to protect the public and the environment.
OSMRE Director Joe Pizarchik has made much of his efforts to improve oversight of state programs. But nowhere in his plans do I see any proposal to rewrite that standard and untie the hands of agency staffers like Roger Calhoun.
Existing headwall of culvert that drains into Bingamon Creek.
Actions by the West Virginia Department of Environmental Protection to force the clean up of a coal-mining spill at a Harrison County coal refuse recovery site have gotten a little bit of media attention in recent weeks.
But there’s a whole lot more to this story, according to a new report put together by the U.S. Office of Surface Mining, Reclamation and Enforcement. And in taking its own actions at this site, OSMRE officials at the agency’s Charleston field office are taking advantage of a new Obama administration policy aimed at improving federal oversight of state mining regulators.
The 38-page report, available here, says that not only were there on-the-ground pollution problems at the Coal Valley LLC site near Enterprise, but also that the WVDEP played a role in those problems by issuing a permit that did not comply with the state’s federally approved program for regulating surface mining operations.
Among the more serious problems:
— The company initially got approval to dispose of runoff by dumping it through a borehole into an old underground mine that had already filled up — meaning there was really no place for the new discharge to go.
— OSM investigators found that the DEP-issued permit had no real concrete and feasible plan for how old coal waste materials from the site would be removed safely, without creating a dangerous new impoundment.
— There was no detailed analysis of the potential for activities of the site to cause localized flooding, and no plan for treating existing acid mine drainage at the site.
“Our big issue with this site is that they don’t have a plan that works for controlling runoff,” Roger Calhoun, director of OSMRE’s Charleston field office, told me this afternoon.
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 administration’s budget summary for Interior outlines a proposed 10 percent cut in the OSMRE budget, from $163 million to $146 million. A more detailed budget document, called the appendix, explains that Obama is proposing to cut OSMRE spending on regulatory matters from $127 million to $118 million and spending on abandoned mine cleanups from $36 million to $27 million.
At the same time, the administration is again proposing a more targeted approach to spending on the Abandoned Mine Land, or AML, program.
We’ve talked about this proposal in past years when it was proposed as part of the Obama budget. The idea is to stop sending coal production taxes intended for AML cleanups to western states — primarily Wyoming — that have certified that they’ve already cleaned up their abandoned coal mines.
The Interior Department describes the proposal this way:
For abandoned coal mines, DOI currently charges industry an abandoned mine land (AML) fee and allocates receipts to states based on production, rather than on reclamation needs. The Administration proposes to target these coal AML fee receipts at the most hazardous sites through a new competitive allocation process with State participation.