On July 16, 2015, the U.S. Department of Interior’s Office of Surface Mining Reclamation and Enforcement (OSMRE) announced the “Stream Protection Rule,” a proposed regulation governing what coal-mining operations must do to reduce impacts on streams from surface mining and from underground mining that has surface impacts. OSMRE’s Web site on the proposed rule is at http://www.osmre.gov/programs/rcm/streamprotectionrule.shtm; a link to the text of the proposed rule is available there.
The proposed rule—running to 1238 pages in its pre-publication form and accompanied by an Environmental Impact Statement (EIS) of similar length—is the latest in a series of regulatory and litigation developments since the 1977 passage of the federal Surface Mining Control and Reclamation Act. Some of those developments that led to the current proposal were the following:
*1983 OSMRE rule requiring a 100-foot buffer zone along streams;
*2008 OSMRE Stream Buffer Zone Rule allowing deposition of mining materials within the 100-foot zone, with certain requirements for reducing impacts;
*2009 Memorandum of Understanding among the Interior Department, U.S. EPA, and Army Corps of Engineers on reducing stream impacts of coal mining, simultaneously starting OSMRE’s process to develop the current proposed regulation; and
*February 2014 ruling by the U.S. District Court for the District of Columbia vacating OSMRE’s 2008 Stream Buffer Zone Rule and reinstating the 1983 buffer zone.
According to the OSMRE Web site (as of 7/21/15), the newly proposed rule, running to 1238 pages in its pre-publication form, is intended to do the following:
*“Define ‘material damage to the hydrologic balance outside the permit area,’ and require that each permit specify the point at which adverse mining-related impacts on groundwater and surface water would reach that level of damage.” *“Require mine operators to collect adequate pre-mining data about the site of the proposed mining operation and adjacent areas to establish an adequate baseline for evaluation of the impacts of mining and the effectiveness of reclamation.”
*“Adjust monitoring requirements to enable timely detection and correction of any adverse trends in the quality or quantity of surface water and groundwater or the biological condition of streams.”
*“Ensure protection or restoration of perennial and intermittent streams and related resources, ensure that mine operators and regulatory authorities make use of the most current science and technology, and ensure that land disturbed by mining operations is restored to a condition capable of supporting the uses that it was capable of supporting prior to mining.”
The proposal also addresses bonding on mining companies to set aside money for required restoration activities. According to the draft rule (p. 446), the proposal would “[add] provisions for the use of financial assurances to guarantee treatment of long-term discharges, [modify] the provisions governing alternative bonding systems, and [add] more specific criteria and procedures to the provisions governing bond release.”
The proposed rule’s announcement raised immediate objections from the National Mining Association, some elected officials from mining states like West Virginia, and others about its potential economic impacts. On the other hand, some environmental organizations criticized the proposal for allowing some variance, under certain conditions, from the 100-foot buffer requirement established in 1983; those conditions are described in the proposed rule on p.364 (part of the section entitled, “What additional requirements apply to proposed activities in, through, or adjacent to streams?”).
The proposed rule will be open for public comment for 60 days after the proposal is published in the Federal Register. Starting in September 2015, OSMRE will hold public hearings on the proposed rule in Charleston, W. Va.; Denver; Lexington, Ky.; Pittsburgh; and St. Louis.
Additional sources for this post and for more information:
Interior Department Unveils Proposed Stream Protection Rule to Safeguard Communities from Coal Mining Operations, U.S. Department of Interior News Release, 7/16/15.
National Mining Association Calls on Congress to Block OSM’s Costly, Unnecessary Stream Rule, National Mining Association News Release, 7/16/15.
Interior unveils rule aimed at protecting streams from mining, and Industry vows to fight ‘needless and conflicting’ stream rule, both from Greenwire, E&E Publishing, 7/16/15 (subscription required for access).