The Stream Protection Rule: A Final Blow to America’s Coal Industry

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The Office of Surface Mining Reclamation and Enforcement (OSMRE) is expected to publish the final Stream Protection Rule in the coming months.  Despite the controversy, congressional hearings and substantial number of comments the draft rule received, industry and states expect that the rule will be finalized with little change from the published draft rule.  So what exactly does this mean for America’s coal mining industry?  In a nutshell, it will create additional obstacles to obtain permits and place additional costs on both industry and regulatory authorities.  The end result will be little environmental benefit at significant cost to those who depend on mining to make an honest living.  The most significant job and production impacts will be felt in Appalachia, a region already stricken by unemployment and poverty.

Coal mining is one of the most highly regulated industries today, right below firearm manufacturing and nuclear power facilities.  To a layperson unfamiliar with the current regulatory scheme, this Stream Protection Rule may seem to be a much needed change to the current laws.  After all, the Surface Mining Control and Reclamation Act (SMCRA) has been on the books since the late 1970s.  Is SMCRA so antiquated that a re-write of the regulations is necessary?  The short answer is no.  SMCRA has been interpreted, litigated and reinterpreted for nearly four decades by the courts and the regulatory authorities.  The Stream Protection Rule is such a significant change from the current regulatory environment that it will require another 40 years of interpretation, litigation and reinterpretation at great cost.  Since the passage of SMCRA, the mining industry has made great strides in implementing environmental protection measures and there are many mechanisms already in existence to enforce the laws.

The key provisions of the Stream Protection Rule include: defining “material damage to the hydrologic balance outside the permit area”; significant additional baseline data gathering for the mine site and adjacent areas; additional surface and groundwater monitoring requirements; specific requirements for the protection or restoration of perennial and intermittent streams; and additional bonding and financial assurance requirements.

While the provisions identified above may appear to have noble intent, the end result will decimate what is left of the coal industry for three basic reasons: additional costs will be placed on an industry already operating on extremely slim margins; uncertainty will abound for mining companies on the ability to obtain a permit and stay in compliance with the permit; and the surety industry will not issue reclamation bonds when there is a likelihood that those bonds will never be released even if reclamation is performed to specification.

One final point is that OSMRE has gone about this rulemaking in a “one size fits all” approach.  While nobody in the federal government will likely admit this, the SPR was designed to significantly reduce or eliminate Mountaintop Removal Mining in Appalachia.  But rather than looking to the states (who have “primacy” or primary responsibility for implementation and enforcement of SMCRA) that host Mountaintop Removal operations for regulatory solutions, OSMRE is attempting to impose these regulations nationwide.  A basic premise of the SMCRA program is states’ rights, the recognition of which is a clear directive of Congress in Title I, Section 101 of the Act:

“because of the diversity in terrain, climate, biologic, chemical, and other physical conditions in the areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing and enforcing regulations for surface mining and reclamation operations subject to this Act should rest with the states.”

Interestingly, if one takes the time to look over annual state oversight reports by OSMRE, it is difficult to find where OSMRE finds there are state regulatory program deficiencies.  Most states have implemented effective SMCRA programs tailored to meet the needs of the physical and regulatory landscape that is unique to each state.  OSMRE has demonstrated no need for a modification to the federal standards, and this attempt to impose such sweeping new standards without such a demonstration undermines the statutory scheme crafted by Congress four decades ago.

For more information on the Stream Protection Rule visit http://streamprotectionrule.com.

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