What’s Next for Federal Laws That Protect Streams from Coal Mining?

A federal judge has overturned a controversial 2008 rule that environmental groups say didn’t adequately protect streams from coal mine pollution. But the rule’s intended successor has hit speed bumps in the regulatory process, and the Obama Administration has been accused of inaccurately estimating the economic impact of the rule. 

The Stream Buffer Zone rule went into effect in 2008, under President George W. Bush. It replaced a Reagan-era rule from 1983. 

The 1983 rule prohibited surface mining activities within 100 feet of a stream, essentially creating a buffer for mining activity. There were exceptions: if a company could show its mining activities wouldn’t violate state or federal water quality standards, it could get a waiver. 

But the rule’s replacement—the 2008 rule—gave more exceptions. “It exempted the most destructive surface mining activities entirely from the buffer rule,” said attorney Deborah Murray of the Southern Environmental Law Center. “So, for instance, it exempted valley fills, it exempted coal waste disposal facilities in streams.” 

The rule has been tied up in litigation for years, and last week, the federal district court in Washington DC invalidated it, reinstalling the 1983 rule.  

“I think it’s a significant victory for efforts to try to curb the worst excesses of mountaintop mining, surface coal mining generally,” Murray said. “The next step, though, is to try to actually enforce the 1983 rule so it’s not simply a paper exercise.”

The switch back to the 1983 rule will have no practical implications for Kentucky. This is one of the states that administers its own mining programs, and regulators here have continued to operate under the 1983 rule, because the 2008 rule has been tied up in litigation from the beginning.

But meanwhile, the federal government isn’t yet ready to roll out the stream buffer zone’s eventual successor: the Stream Protection Act.  

The Office of Surface Mining (OSM) has said it plans to finalize the Stream Protection Rule this year. But in the past three years, the rulemaking process has been dogged by accusations of political interference by Republicans. 

Some of those accusations were confirmed in an Inspector General’s report released late last year. The report found that once media reports leaked information that 7,000 jobs would be lost under the new rule, OSM directed the Lexington-based consulting firm working on the rule to use a different rubric to calculate the effect the rule would have on coal mining jobs. The end result was a smaller number of jobs lost. 

We found that OSM initially directed contractors to use one set of criteria to estimate coal production losses and job losses associated with the Stream Protection Rule. After the contractors determined that there would be high costs to the industry and significant job losses, newer OSM employees involved in the project asked the contractors to change a variable in the calculations. These OSM employees said they knew that this would lower the potential job-loss numbers but felt strongly that the change was correct. Many of the individuals we interviewed, however, including the contractors and career OSM employees, believed this change would produce a less-accurate number. The Office of Management and Budget, which oversees these economic reviews, originally approved the contractors’ first method, but subsequently reported to us that both methods were acceptable.

The report didn’t find evidence that there was undue political interference in the process.

One of the contractors in question was Lexington, Kentucky-based ECSI. ECSI President Steve Gardner responded to the report here. 

A draft rule and environmental impact statement for the Stream Protection Rule could be out by this summer. But for now, the 1983 stream rule will be in effect. Industry groups have 60 days to appeal the decision.

Erica Peterson

Erica Peterson reports on energy and the environment for WFPL.

@ericampeterson

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