Federal OSMRE Proposes Revisions To Strengthen Stream Protections From Coal Mines

The State Journal
16 July 2015
By Sarah Tincher, Energy Reporter

The U.S. Department of the Interior has unveiled a long-awaited rewrite of a decades-old rule to protect streams from the being damaged by coal mining.

The proposal aims to update the original 1983 rule, which required a 100-foot “buffer zone” adjacent to streams. In 2008, Office of Surface Mining Reclamation and Enforcement (OSMRE) finalized the Stream Buffer Zone Rule to clarify OSMRE’s interpretation of the original rule, explicitly allowing excess soil to be placed in streams, though it also added new requirements designed to reduce the adverse environmental impacts of doing so.

But the revision was met with opposition from 10 environmental groups in two lawsuits led by Coal River Mountain Watch and the National Parks Conservation Association. And in February 2014, the U.S. District Court for the District of Columbia vacated the 2008 Stream Buffer Zone Rule.

Now, after years of drafting the rule, the July 16 proposal would revise OSMRE regulations to clearly define “material damage to the hydrologic balance outside the permit area,” and require that each permit specify the point at which adverse impacts from mining would cause material damage to the hydrologic balance outside the permit data.

The proposal, which will be available for public comment for 60 days, would require coal companies to test and monitor conditions of streams they might impact before, during and after mining. It also strengthens requirements for mine operators to collect pre-mining data about the site of a proposed mining operation to establish an adequate baseline for evaluation.

The rule would also require coal companies to restore streams and return mined areas to a condition capable of supporting the land uses available before mining activities.

But the provisions are expected to come with a price — especially for Appalachia.

In its 1,267-page Draft Environmental Impact Statement, the agency projected annual compliance costs for the preferred scenario to reach $52 million nationwide, with Appalachia seeing the highest costs at $24 million. The Illinois Basin comes in second, with a projected $14 million price tag on the rule.

Appalachia could also see annual coal production drop by 900,000 tons annually under the preferred scenario.

The 1,238-page rule was quickly met with opposition from several coal industry groups and their Congressional supporters, including several West Virginia lawmakers.

“This Administration’s long list of overreaching regulations is absolutely crippling West Virginia families and businesses,” said Sen. Joe Manchin, D-W.Va. “This proposed rule would have a devastating impact on our families, jobs and economy, and it fails to strike an appropriate balance between the economy and the environment.”

And the National Mining Association was one of the first organizations to condemn the proposal.

“This is a rule in search of a problem,” NMA President and CEO Hal Quinn said in a statement. “It has nothing to do with new science and everything to do with an old and troubling agenda for separating more coal miners from their jobs.”

Conversely, several environmental groups urged the Obama Administration to adopt stronger protections in the final rule.

“The people of Central Appalachia have waited a long time for robust federal action to protect their streams and communities from the damages of surface coal mining,” said Thom Kay, a legislative associate for Appalachian Voices. “At first glance, the draft appears to improve some drastically outdated provisions of an ineffective rule. But it’s not worth cheering for the rule as long as it allows companies to continue dumping their mining waste in our streams.

“We will continue working with citizens to ensure the agency’s final rule presents the strongest possible protections."

But many West Virginia lawmakers and policymakers expressed a lack of support for the proposal before it was even released.

In May, West Virginia lawmakers, including Manchin, Sen. Shelley Moore Capito, R-W.VA., and Rep. Alex Mooney, R-W.Va., worked to introduce the STREAM Act, which aimed to require OSM to use existing funds to conduct a study of industry impact. It would then prevent implementation of a new rule for one year after completion of that study to allow for congressional, industry and public review.

The West Virginia Department of Environmental Protection also backed out of its agreement with OSMRE to cooperate in drafting the federal Stream Protection Rule, citing a ““lack of communication and engagement” with West Virginia. Several other agencies also terminated their role as cooperators in drafting the analysis, including the Utah Division of Oil, Gas and Mining, the New Mexico Mining and Minerals Division, the Kentucky Department for Natural Resource, the Railroad Commission of Texas and the Alabama Surface Mining Commission.

The West Virginia Department of Natural Resources, however, remained on board with OSMRE in drafting the analysis.