An Appalachian Saga Continues: U.S. House to Consider Strange Response to Ongoing Debate Over “Buffer Zone” Rule Applicability to “Mountain-top Removal” Coal Mining

In 1983, the Department of the Interior (“DOI”) under President Reagan promulgated what has become known as the “buffer zone” rule, prohibiting coal-mining operations from being conducted within 100 feet of an intermittent or perennial stream under the authority conveyed by the Surface Mining Control and Reclamation Act (“SMCRA”).[i] The impact of this rule was limited by the structure of the SMCRA, which allows states to self-regulate rather than have mining in their jurisdiction be regulated by DOI so long as they submit a plan complying with basic federal environmental requirements to DOI and the department approves that plan.[ii] At the time, the “buffer zone” rule was relatively uncontroversial and has been incorporated in all state regulatory programs approved under the SMCRA.[iii]

However, in 1999 it became apparent that the rule could significantly impact the ability of mining corporations to engage in “mountain-top removal” mining.[iv] In areas in which the slope of the land is steep (i.e. near the summit of mountains) mine operators are often unable to return broken rock and soil removed to reach the coal to the area from which it was removed.[v] Mine operators in “mountain-top removal” projects often deposit the resulting excess “spoil” in the upper portions of valleys through which streams frequently run.[vi] Unless the operator is able to obtain a waiver, such dumping clearly violates the “buffer zone” rule in effect in federally monitored areas and state-administered programs that have adopted the rule. Under the 1983 rule waivers required a showing that mining activities “[would] not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream.”[vii] As there is substantial evidence that dumping over valley streams frequently poses significant environmental and public health hazards, the “buffer zone” rule could pose a significant obstacle to these types of mining activities.[viii]

Despite the waiver standards, federal and state regulators often did and do grant waivers to “mountain-top mining” operations using various justifications.[ix] To date, “more than 2000 miles of headwater streams in central Appalachia have been buried by coal processing wastes and mine spoil,” even in the face of studies showing such actions degrade downstream water qualities and stream ecology.[x]

However, in 1999, a federal court held that this type of dumping was in violation of the “buffer zone” rule and was therefore illegal, touching off a national controversy that led to several legislative proposals.[xi] Although this decision was later reversed on 11th Amendment grounds[xii], the call for more permissive rules at the federal level continued and prompted the Bush administration to begin considering a regulatory change, which OSM promulgated in the final days of Bush’s presidency[xiii] This new rule significantly reduced the standard for approving waivers by removing the previously discussed requirements and instead requiring only a finding that “avoiding disturbance of the stream is either not reasonably possible or not necessary to meet the fish and wildlife and hydrologic balance protection provisions of the regulatory program.” [xiv]

Though it applied only to the few states and most Indian lands under federal supervision, environmental groups immediately challenged the rule, claiming the Office of Surface Mining (“OSM”) had violated the Endangered Species Act by failing to consult with the National Fish and Wildlife Service before issuing the rule.[xv] The Obama administration, which had already begun the process of changing the rule, did not challenge this assertion, asking that the rule be vacated, much to the chagrin of many pro-coal members of Congress.[xvi] After several rulings, agreements and other hurtles, the district court vacated the 2008 rule last month, reestablishing the 1983 framework for federally administered lands until a new rule is promulgated despite opposition by the National Mining Association.[xvii]

But the story doesn’t end there. On July 25, 2013, after extensive hearings in the House regarding OSM’s ongoing process of redrafting the “buffer zone” rule, Congressman Bill Johnson of Ohio introduced a bill designed to force states to adopt the 2008 Rule as part of their coal mining regulatory regime and halt OSM’s ongoing regulatory effort (ostensibly on the grounds that it has been wasteful and would jeopardize jobs in the mining industry).[xviii] The Committee on Natural Resources favorably reported the bill to the entire House on February 28, 2014 over the strenuous objection of opposition party members.[xix] Though obviously triggered by the ongoing litigation and the Obama administrations abandonment of the 2008 rule, this most recent legislative initiative is an odd response for several reasons.

First and foremost, the bill as proposed would not address the problems it cites as the justification for legislative action. As written, it would apply only to state administered programs, rather than those to which the 2008 rule actually applied (because all state-administered programs never changed from the 1983 “buffer zone” rule).[xx] Second, because the 2008 rule was vacated, its “lock-in” provision, preventing OSM from promulgating a new rule until it meets certain requirements (that would take the agency until 2021), the bill would have the effect of locking in the 1983 waiver requirements rather than the 2008 rule favored by the sponsors of H.R. 2824.[xxi] This lock-in provision is particularly striking, because OSM has not yet even announced what the new rule would be and is still considering the 2008 formulation as one of ten possible options (though it is unlikely to be selected, given the Obama administration’s stance on the issue).[xxii]

Third, given the current majority’s strong focus on protecting state’s rights, the proposed bill is a largely unprecedented incursion on the discretion granted under the SMCRA. [xxiii] Rather than allowing the states to choose which “buffer zone” rule to include in their legislative program, H.R. 2824 would force states to utilize the more lenient waiver requirements included in the 2008 rule, even as it locks in the more restrictive 1983 formulation on the federal level.[xxiv] This removal of discretion is particularly odd, because (as was discussed above) most states have not blocked “mountain-top removal” operations using the “buffer zone” rule, so there is seemingly no need to remove their regulatory discretion in order to protect the mining interests about which the majority in the House in concerned.[xxv]

The bill itself is likely doomed to failure considering the current partisan make-up of the Senate and the need to obtain President Obama’s approval. However, as a part of an extended back and forth between all three branches of government, H.R. 2824 and its history provide an interesting case study of the interaction between those branches, corporate interest groups, and advocacy groups in the American political system, even if it this particular tale carries with it a touch of oddity. Moreover, the dissonance between the stated aims of the bill and its provisions give rise to questions about the motivations behind its proposal and, at a different level, about Congressional understanding of the regulatory scheme at issue.

 

-Ben Reese is a General Member on MJEAL. He can be Reached at benreese@umich.edu.

 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Patrick McGinley, Collateral Damage: Turning a Blind Eye to Environmental and Social Injustice in the Coalfields, 19 J. Envtl. & Sustainability L. 305, 338 (2013).

[ii] 10 U.S.C.A. § 1253 (West, Westlaw through P.L. 113-74).

[iii] H.R. Rep. No. 113-364, at 2 (2014).

[iv] Mickey Webster, Note, Recent Developments in Surface Mining: An Examination of Black Mountain and Bragg v. Robertson, 15 J. Nat. Resources & Envtl. L. 267, 280 (2001).

[v] Nat’l Parks Conservation Ass’n v. S.M.R. Jewell, No. 09-00115 (BJR), at 3 (D.D.C. Feb. 20, 2014) [hereinafter February Decision].

[vi] Id.

[vii] Id. at 12 (citing 30 C.F.R. §§ 816.57(a), 817.57(a)(2008)).

[viii] H.R. Rep. No. 113-364, at 13-14 (2014).

[ix] Webster, supra note iv, at 288-89.

[x] McGinley, supra note i, at 340-41.

[xi] Bragg v. Robertson, 72 F. Supp. 2d. 642, 660 (S.D.W.V. 1999), vacated, 248 F.3d. 275 (4th Cir. 2001); Webster, supra note iv., at 285-87.

[xii] Bragg v. W.V. Coal Ass’n, 248 F.3d. 275 (4th Cir. 2001).

[xiii] Excess Spoil Coal Mine Waste and Buffers for Perennial and Intermittent Streams, 73 Fed. Reg. 75817-18 (Dec. 12, 2008).

[xiv] February Decision, supra note v., at 12.

[xv] Stream Protection Rule; Environmental Impact Statement, 75 Fed. Reg. 34666 (June 18, 2010).

[xvi] Id.

[xvii] February Decision, supra note v., at 17-21.

[xviii] H.R. 2824, 113th Cong. (2013); See generally H.R. Rep. No. 113-364 (2014). Actually, the majority’s assertions about the costliness of the process are especially ironic as OSM estimates the series of hearings and document requests the Congressional investigation motivating the bill required took up over 19,000 staff hours at a cost of  $1.5 million. H.R. Rep. No. 113-364, at 13 (2014).

[xix] Id.

[xx] H.R. 2824, 113th Cong. (2013)

[xxi] H.R. Rep. No. 113-364 (2014).

[xxii] McGinley, supra note i, at 339.

[xxiii] H.R. Rep. No. 113-364, at 2 (2014).

[xxiv] Id.

[xxv] Webster, supra note iv, at 288-89.

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