On September 26, 2011, a Congressional hearing of the U.S. House Energy & Mineral Resources Subcommittee of the Natural Resources Committee was held in Charleston, West Virginia to examine the Office of Surface Mining and Reclamation’s (OSM) Stream Protection rulemaking and its impact on jobs. This hearing was held as part of the Committee’s investigation into OSM’s decision to re-write the revised Stream Buffer Zone Rule issued in December of 2008.
II. Background of the Stream Buffer Zone Rule
Prior to the 1977 passage of the Surface Mine Control and Reclamation Act (“SMCRA”), rock removed to access coal seams by surface mining methods was often not returned to mined areas and simply dumped downhill of mined areas where it choked nearby streams and contributed sediment to downstream areas. Although SMCRA required the return of most spoil to mined areas and placement of “excess” spoil into stable spoil disposal areas, it expressly recognized need to place excess spoil in “fills” located in small headwater streams in steep-sloped Appalachia. 30 U.S.C. §1265(b)(22)(D) (authorizing fills in watercourses so long as drains are constructed). These fills are also regulated by the Corps of Engineers under §404 of the Clean Water Act. 33 U.S.C. §1344. OSM had long limited disturbances within 100 feet of most streams (known as the “Stream Buffer Zone Rule”) unless closer disturbances would not violate water quality standards or adversely affect the water quantity, quality or other environmental resources of the stream. 30 C.F.R. §816.57. Until a 1999 federal court ruling (Bragg v. Robertson), the Stream Buffer Zone Rule (“SBZ”) was never interpreted to restrict valley fills or the ponds constructed to control sediment from these fills—because those activities were expressly authorized by SMCRA as primary measures to control sedimentation. 73 Fed. Reg. 75814, 75814-75818 (Dec. 12, 2008). In Bragg v. Robertson, however, a federal district court judge in the Southern District of West Virginia ruled that the 1983 SBZ prohibited valley fills.
The Fourth Circuit ultimately vacated the district court opinion in 2001. However, because it ruled that district court never had jurisdiction, it did not address merits of the SBZ rule dispute—leaving application of SBZ rule to fills in a state of confusion. In order to clarify the confusion, OSM proposed an initial rule in 2004 clarifying that SBZ rule is a sediment control measure that does not prohibit valley fills. 69 Fed. Reg. 1036 (Jan. 7, 2004). OSM later conducted EIS and re-proposed an expanded rule in 2007. 72 Fed. Reg. 48890 (Aug. 24, 2007). In December of 2008, OSM issued a clarification of the stream buffer zone rules after a five-year process that included 40,000 public comments, two proposed rules, and 5,000 pages of environmental analysis from 5 different agencies. The final rule codified coal surface mining practices that had been in effect for over 30 years by clarifying that the SBZ does not prohibit excess spoil fills but requires the applicant to demonstrate that it has minimized the length and number of valley fills and because fills are expressly authorized by §404 of the Clean Water Act. 73 Fed. Reg. 75814 (Dec. 12, 2008).
After anti-mining groups challenged OSM’s 2008 SBZ rule in federal court, OSM attempted to simply cast the rule aside by admitting “serious legal deficiencies” and requesting the Court to remand and vacate the rule. National Parks Conservation Association v. Kempthorne, 1:09-cv-00115 (D.D.C.). By Memorandum Opinion and Order dated August 12, 2009, Judge Kennedy refused to allow the Agency to simply withdraw the rule without following established statutory procedures for repealing an agency rule. OSM entered into a settlement agreement with the plaintiffs whereby it agreed to issue new regulations replacing the 2008 SBZ rule.
On June 11, 2009, the Secretary of the Department of the Interior, the Administrator of the U.S. Environmental Protection Agency (EPA), and the Acting Assistant Secretary of the Army (Civil Works) entered into a memorandum of understanding (MOU designed to reduce the environmental consequences of surface coal mining operations in six Appalachian states. 75 Fed. Reg. 34667 (June 18, 2010); 75 Fed. Reg. 22723 (April 30, 2010). The June 11, 2009 MOU committed OSM to making revisions to key provisions of current SMCRA regulations, including the Stream Buffer Zone Rule and Approximate Original Contour requirements.
III. The Hearing
The following members of the House Energy and Mineral Resources Subcommittee attended the hearing and gave opening statements: Chairman Lamborn (R-Colo.), Mr. Johnson (R-Ohio), and Mrs. Capito (R-W.Va.). Congressmen Lamborn and Johnson stated that the Obama Administration’s own estimates projected the direct loss of 7,000 jobs nationwide as a result of the new rule. Congressman Johnson also suggested that the Administration had colluded with environmental groups by practically inviting them to sue OSM over the 2008 version of the SBZ. Congresswoman Capito touted the economic benefits of coal mining to the State of West Virginia and discussed the potential adverse impacts of the proposed change.
Governor Tomblin criticized EPA and other regulatory agencies for relentlessly pursuing an anti-coal agenda. He also questioned whether the changes to the SMZ rule were consistent with Congress’s mandate in SMCRA to “assure that the coal supply essential to the Nation’s energy requirements and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.”
Thomas Clarke, Director of the West Virginia Department of Environmental Protection criticized OSM and EPA for seizing regulatory authority that legitimately resided with the States. Mr. Clarke pointed out that, in making quantum shifts in regulatory policy that are Congress’ business to make, OSM was creating unnecessary regulatory uncertainty. Mr. Clarke defended West Virginia’s own regulatory scheme and criticized EPA’s failure to adequately involve the states in preparing its Environmental Impact Statement related to the rule. The following individuals also testified in opposition to OSM’s actions:
- Jason Bostic of the West Virginia Coal Association
- Roger Horton, West Virginia Co-Chair Mountaintop Mining Coalition
- Michael Carey, President Ohio Coal Association
- Katharine Fredriksen, Senior Vice President Environmental & Regulatory Affairs CONSOL Energy, Inc.
Anti-mining activists, Bo Webb and Maria Gunnoe spoke in favor of OSM and EPA revising the SBZ.
This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.