The Obama administration this afternoon proposed a long-awaited rule that promises to protect more than 6,000 miles of streams around the country over two decades from the impacts of both surface and underground coal mining.
The Interior Department Office of Surface Mining Reclamation and Enforcement’s stream protection proposed rule adds requirements for companies to monitor and test streams before, during and after mining. The rule will provide a definition of material damage to waterways.
The idea is to get enough baseline data to correct problems that may arise and ensure proper reclamation after mining is complete, and to protect water outside the mining area, Interior says.
The agency describes it as incorporating new information about mining’s impacts and following the 1977 Surface Mining Control and Reclamation Act. The rule would affect underground mining when it comes to its impacts on surface land and waterways.
The rule would require companies to restore land and waterways to pre-mining conditions and purposes, and to re-vegetate disturbed areas with native plants unless regulators agree to a different land-use plan. It also implements tougher bonding requirements.
A fact sheet for the rule said it would tackle mountaintop-removal coal mining by making sure mountains are restored to mountains. The mining act already requires reclamation to approximate original contour. The agency says the rule would prohibit the permanent destruction of Appalachian hardwood forests.
"This proposed rule would accomplish what Americans expect from their government," said Interior Secretary Sally Jewell, "a modern and balanced approach to energy development that safeguards our environment, protects water quality, supports the energy needs of the nation and makes coal field communities more resilient for a diversified economic future."
The stream protection rule dates back to the early months of the Obama administration, when agencies were cracking down on mountaintop-removal coal mining and OSMRE moved to scrap standards promulgated by the administration of President George W. Bush (R).
A federal judge in 2009 said the new administration could not simply undo the previous administration’s rule. Then, in a 2010 settlement agreement with several environmental groups, OSMRE promised to work toward finalizing a new rule by 2012.
For years, OSMRE’s rulemaking has been stymied by delays, problems with former contractors, and pro-coal advocates saying it will hurt mining jobs. For those advocates, the rule became part of what they see as the Obama administration’s war on coal.
Environmentalists went back to court, and in 2014, U.S. District Court for the District of Columbia Senior Judge Barbara Rothstein struck down the Bush rule, leaving in place 1983 standards.
Today, Janice Schneider, assistant Interior secretary for land and minerals management, described the new stream protection rule as giving mining companies the regulatory certainty they want.
"The rule would make it clear which requirements apply to which types of streams, and how to determine what types of streams are present," said Schneider. "Because of this clarity, companies can better prepare and plan."
Interior and OSMRE said the rule’s regulatory impacts were projected to be "minimal." OSMRE Director Joseph Pizarchik has been saying as much for several months.
Administration officials are also stressing that the rule is not yet final. Publication in the Federal Register will spark a comment period. Hearings are also planned in Pennsylvania, Kentucky, West Virginia, Colorado and Missouri, with dates and times forthcoming.
"That is why we are having a robust public comment process," said Pizarchik, "to provide all stakeholders the opportunity to provide input on the proposed changes."
Neil Gormley, an attorney for Earthjustice who works on coal mining cases, said he was pleased with the rule’s information-gathering and bonding requirements. But he says it’s still not enough to protect streams and communities.
Gormley said environmental groups want "a strong stream buffer zone provision" that can be "enforced with a tape measure." He added, "We’re hoping that the final rule will adopt a section along those lines."
Even though OSMRE says the rule would strengthen a 100-foot stream buffer, Gormley said the agency’s preferred regulatory option falls short of its ideal.
Beyond a stronger buffer requirement — one with few or no variances to industry — greens are also calling for stronger enforcement of the rules. Gormley has called it "uneven."
David Hayes, a former Interior deputy secretary and a fellow at the Center for American Progress said OSMRE proposing rulemaking alternatives will give the public more of a say.
"The proposed rule addresses key defects in the current rules — including bonding reforms so that taxpayers are not left footing the bill for environmental damage — and establishes clear baseline testing, monitoring and restoration requirements," said Hayes.
Mining companies are unlikely to accept the stream protection rule no matter what. The industry — which has been silent since the rule was issued today — didn’t think it was necessary in the first place and preferred the Bush-era standards.
Many states have also been skeptical of the rulemaking, especially because OSMRE did not share draft environmental impact statement documents in advance of this week’s release. States with their own strip mining programs will get to implement the new rule.
Yesterday, House Natural Resources Committee Republicans, who have been investigating and blasting the rulemaking for years, asked the Government Accountability Office to investigate OSMRE’s dealings with cooperating state agencies.
The proposal comes at an extremely tough time for the industry. Today, the New York Stock Exchange said it had started delisting procedures for Alpha Natural Resources Inc. because of the mining company’s low share prices. Arch Coal Inc. may see a similar move.
Jewell has long touted coal’s importance in U.S. generation. She has also expressed commitment to reforms and administration proposals to help mining communities diversify their economies.
"We are committed to working with coal field communities as we support economic activity while minimizing the impact coal production has on the environment that our children and grandchildren will inherit," Jewell said.