Opponents of a coming draft rule governing water pollution from a controversial mining method contend the Interior Department broke federal law by shutting states out of the rule-making process.
The charges from several states could affect whether a forthcoming Office of Surface Mining Reclamation and Enforcement proposal on mountaintop removal mining can withstand an expected legal challenge from coal-producing states.
“They are owed a certain level of communication which, to our understanding, hasn’t been provided,” Adam Eckman, associate general counsel with the National Mining Association, told the Washington Examiner.
The stream protection rule would tighten restrictions on mountaintop removal mining, which involves blasting peaks off mountains to access coal buried underneath. Industry groups and environmental sources following the rule believe it would update definitions on what qualifies as a stream, potentially subjecting more waters to regulation.
At center are 11 states that elected to be “cooperating agencies” under the National Environmental Policy Act, which requires assessments of projects and rules that would affect the environment. Since states are the ones that enforce the federal mining rules, they can choose to become the points of contact with the federal mining office during the process.
The states said they weren’t consulted enough when the agency was conducting its draft environmental impact statement — that analysis will inform a draft rule, which is scheduled for a spring release — and that the agency denied them access to data. Utah, Alabama and New Mexico already have decided to withdraw from the process.
“They don’t want their participation inappropriately characterized by [the mining office] in the final version of the [environmental impact statement],” Greg Conrad, executive director with the Interstate Mining Compact Commission, told the Examiner. “They don’t think there is going to be real opportunity of any kind to participate in any substantive way, so why take a chance of being misrepresented or mischaracterized?”
The Interior Department said that comments from the cooperating states have been acknowledged in the upcoming environmental impact statement.
“The cooperating state agencies provided [the Office of Surface Mining] with many valuable comments on the draft [environmental statement], and that input was helpful in drafting the latest version. [The Office of Surface Mining] again thanks the agencies for their input, and looks forward to receiving comments when the [environmental statement] and proposed rule are published,” mining office spokesman Chris Holmes told the Examiner.
Bill Price, a Charleston, W.Va., organizing representative with the Sierra Club, said he is not surprised states have been kept in the dark. He told the Examiner that the Office of Surface Mining Reclamation and Enforcement also has shut out environmental groups seeking stronger regulations since 2011.
“I don’t know that the mining industry has been cut out of it any more than we’ve been cut out of it,” Price said. “I don’t think anyone has been involved since 2011.”
The coal-mining industry contends the rule would make mining — particularly in Appalachia — uneconomical, costing jobs. But environmentalists have pushed for stronger regulations because they are concerned that sediment from the explosions enters and pollutes waterways, as well as fouling up the air in nearby communities.
“We feel that there needs to be a bright line around streams in Appalachia,” Price said.
The draft rule has been mired in political squabbles for several years.
A federal court last year rejected a 2008 update to the 1983 federal mining law. The court found that version, drafted during President George W. Bush’s administration, ignored evidence that mountaintop removal mining would hurt wildlife and endangered species.
Before that ruling, Republicans had criticized the Obama administration, which was rewriting the regulation as the Bush-era one went through the court system, when a 2011 Associated Press report found that the mining agency in a draft environmental impact statement estimated the proposed rule would cost 7,000 mining jobs.
The 11 states that participated as cooperating agencies said that there has been no opportunity for input since January 2011. The states said the agency has since “significantly revised” the analysis and that new alternatives are included.
“Based on our experience to date … we assert that [the mining office] has not provided for meaningful participation by the cooperating agency states in the preparation of the [environmental impact statement] and it seems unlikely that the agency will do so prior to release of the draft [environmental impact statement] and proposed rule this spring,” the heads of state energy agencies said in a Feb. 23 letter to agency director Joseph Pizarchik.
