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98–945 2017

S. HRG. 114–463 

THE DEVELOPMENT AND POTENTIAL IMPLEMENTATION OF THE OFFICE OF SURFACE MINING, 

RECLAMATION, AND ENFORCEMENT’S PROPOSED STREAM PROTECTION RULE 

HEARING 

BEFORE THE 

COMMITTEE ON 

ENERGY AND NATURAL RESOURCES 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

OCTOBER 27, 2015 

( 

Printed for the use of the 

Committee on Energy and Natural Resources 

Available via the World Wide Web: http://fdsys.gov 

(II) 

COMMITTEE ON ENERGY AND NATURAL RESOURCES 

LISA MURKOWSKI, Alaska, Chairman 

JOHN BARRASSO, Wyoming 

JAMES E. RISCH, Idaho 

MIKE LEE, Utah 

JEFF FLAKE, Arizona 

STEVE DAINES, Montana 

BILL CASSIDY, Louisiana 

CORY GARDNER, Colorado 

ROB PORTMAN, Ohio 

JOHN HOEVEN, North Dakota 

LAMAR ALEXANDER, Tennessee 

SHELLEY MOORE CAPITO, West Virginia 

MARIA CANTWELL, Washington 

RON WYDEN, Oregon 

BERNARD SANDERS, Vermont 

DEBBIE STABENOW, Michigan 

AL FRANKEN, Minnesota 

JOE MANCHIN III, West Virginia 

MAZIE K. HIRONO, Hawaii 

ANGUS S. KING, JR., Maine 

ELIZABETH WARREN, Massachusetts 

KAREN K. BILLUPS, Staff Director 

PATRICK J. MCCORMICK III, Chief Counsel 

HEIDI HANSEN, Counsel 

ANGELA BECKER-DIPPMAN, Democratic Staff Director 

SAM E. FOWLER, Democratic Chief Counsel 

SPENCER GRAY, Democratic Professional Staff Member 

(III) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Murkowski, Hon. Lisa, Chairman and a U.S. Senator from Alaska ................... 1 

Cantwell, Hon. Maria. Ranking Member and a U.S. Senator from Washington .................................................................................................................... 2 

Barrasso, Hon. John, a U.S. Senator from Wyoming ........................................... 4 

WITNESSES 

Schneider, Hon. Janice, Assistant Secretary, Land and Minerals Management, U.S. Department of the Interior ............................................................... 4 

Huffman, Randy, Cabinet Secretary, West Virginia Department of Environmental Protection ................................................................................................. 19 

Hecker, Jim, Environmental Enforcement Director, Public Justice .................... 31 

Parfitt, Todd, Director, Wyoming Department of Environmental Quality ......... 38 

Quinn, Hal, President and CEO, National Mining Association ........................... 45 

ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED 

Barrasso, Hon. John: 

Opening Statement ........................................................................................... 4 

Cantwell, Hon. Maria: 

Opening Statement ........................................................................................... 2 

Center for Biological Diversity: 

Letter for the Record ........................................................................................ 144 

Hecker, Jim: 

Opening Statement ........................................................................................... 31 

Written Testimony ............................................................................................ 33 

Huffman, Randy: 

Opening Statement ........................................................................................... 19 

Written Testimony ............................................................................................ 21 

Manchin III, Hon. Joe: 

Chart entitled ‘‘2013 State Net Energy Independence’’ ................................ 62 

Chart entitled ‘‘2012 State Net Energy Independence’’ ................................ 64 

Montana Coal Council: 

Letter for the Record ........................................................................................ 191 

Murkowski, Hon. Lisa: 

Opening Statement ........................................................................................... 1 

National Parks Conservation Association and the Southern Environmental 

Law Center: 

Letter for the Record ........................................................................................ 207 

Parfitt, Todd: 

Opening Statement ........................................................................................... 38 

Written Testimony ............................................................................................ 40 

Responses to Questions for the Record ........................................................... 126 

Quinn, Hal: 

Opening Statement ........................................................................................... 45 

Photo .................................................................................................................. 46 

Written Testimony ............................................................................................ 48 

Responses to Questions for the Record ........................................................... 131 

Salazar, Hon. Ken: 

Letter to Idaho Governor Butch Otter dated April 15, 2011. ....................... 285 

Schneider, Hon. Janice: 

Opening Statement ........................................................................................... 4 

Written Testimony ............................................................................................ 7 

Page

IV 

Schneider, Hon. Janice—Continued 

Responses to Questions for the Record ........................................................... 85 

Sierra Club, et al: 

Letter for the Record ........................................................................................ 210 

U.S. Senate: 

Letter to the Office of Surface Mining Reclamation and Enforcement 

(OSMRE) dated August 7, 2015 requesting an extension to respond 

to the proposed ‘‘Stream Protection Rule’’ .................................................. 287 

(1) 

THE DEVELOPMENT AND POTENTIAL IMPLEMENTATION OF THE OFFICE OF SURFACE 

MINING, RECLAMATION, AND ENFORCEMENT’S PROPOSED STREAM PROTECTION 

RULE 

Tuesday, October 27, 2015 

U.S. SENATE, COMMITTEE ON ENERGY AND NATURAL RESOURCES, WASHINGTON, DC. 

The Committee met, pursuant to notice, at 9:06 a.m. in Room 

SD–366, Dirksen Senate Office Building, Hon. Lisa Murkowski, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. LISA MURKOWSKI, 

U.S. SENATOR FROM ALASKA 

The CHAIRMAN. Good morning. The Committee will come to 

order. 

We are here this morning to discuss a very important topic, the 

Interior Department’s rule making to significantly revise its existing stream protection regulation under the Surface Mining Control 

and Reclamation Act (SMCRA). This proposed rule was published 

in the Federal Register in July. It has clearly risen to a level of 

controversy that I think we will hear reflected this morning before 

the Committee. 

This Committee has spent some time this year examining the 

Administration’s action and resulting Federal overreach. I think 

what we are seeing with this particular rule, again, is a rule that 

has generated a level of controversy and concern, and the purpose 

for this hearing this morning is to review and discuss it. 

For the proposed Stream Protection Rule, those affects have been 

quantified. There is, clearly, some disagreement in terms of our 

numbers here, so I think it is important that we look to some of 

what we have been given. The coal industry estimates that between 40,000 and 78,000 direct jobs could be lost. That is on top 

of the almost $29 billion in lost annual resource value and up to 

as much as $6.4 billion in foregone State and Federal revenue. 

Now for its part, the Interior Department concedes that the rule would cost industry $52 million in annual compliance costs but 

somehow calculates that into a loss of only a maximum of 590 jobs. 

So you have a wide, wide discrepancy in terms of number of jobs 

and the revenues that we are discussing. It is going to be interesting and, I think, important to get down to some accurate numbers. 

2 

To date, the Administration has reportedly spent over $10 million in taxpayer funds preparing for this proposal. I would like to 

find out, okay, $10 million—what have we seen as a consequence 

of that expenditure? 

The scientific studies that reportedly justify the proposed rule 

appear anemic at best. Studies with concentrated focus on a single 

geographic region are hardly a representative sample that can be 

applied nationwide. I doubt very much that the Interior Department bothered to conduct any research in Alaska where climate 

and permafrost alone will likely prohibit compliance with the new 

regulation, if finalized. 

I am concerned with what appears to be limited stakeholder involvement in the development of the proposal despite the Administration’s assurances to the contrary. Our state partners share responsibility for implementing SMCRA, and it is my understanding 

that they have been trying to engage with the Department on these 

issues for the past four years without success. 

Finally, I question the legal underpinnings of the proposed rule, 

particularly as the rule pertains to the Clean Water Act as well as 

the proposal’s ill-defined requirements that the states will have to 

enforce. I fear the end result of this process will be never ending 

litigation at taxpayer expense. 

We have a lot to cover this morning. We do have a series of five 

votes that begin at 11 o’clock, so it is my intention to try to move 

through all the witnesses, get through members’ questions and 

hopefully we will be able to wrap up before the votes commence at 

11 o’clock. 

With that, I turn to Ranking Member Cantwell for her opening 

comments. 

STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM 

WASHINGTON 

Senator CANTWELL. Thank you, Madam Chair, and thank you for 

holding this important hearing on the Stream Protection Rule. 

The Department of the Interior’s Office of Surface Mining Reclamation Enforcement has worked hard on this rule for six years 

to update regulations that really should have been on the books for 

the last 32 years, so I hope our conversation today can provide constructive input to Ms. Schneider and her colleagues at the Department of the Interior on the proposed rule. 

I know these issues are hard. I know that with any debate you 

have to start with scientific data that is available. I know for us 

in the Pacific Northwest we made substantial investments in hydropower after we learned the impacts on salmon. 

It took us decades of hard battles involving many stakeholders 

before we started mitigating the impacts on our main source of the 

environment and electricity. So if you look at the salmon runs 

today versus 20 years ago, the change is remarkable and very positive. We wouldn’t have gotten there, though, without everybody 

working together and major new investments. 

So as we look at these issues, we need to understand you just 

can’t pollute the environment and run. It is the ultimate test of 

fairness in the minds of many of my constituents that we make 

sure polluters pay for environmental damages. In my view, without 

3 

the Stream Protection Rule, we would be allowing the coal industry 

to continue business as usual. 

I have many concerns with our coal policy in general, but we’ll 

leave those for another Committee discussion. But you can say that 

typically we lease a ton of Federal coal for less, a dollar or less, and 

the taxpayer gets a dollar. Then years later we have to deal with 

about two tons of carbon dioxide from the one ton of coal. And the 

Government’s current best guess is that two tons of carbon pollution will cost the American public over $70 in damages. So what 

can we do to mitigate this issue? 

The Stream Protection Rule is first and foremost about water 

quality. It’s about holding the industry consistent baseline standards of protection and reclamation. When Congress passed SMCRA 

in 1977, the Clean Water Act was already on the books. But Congress understood that strip mining had a significant and growing 

impact that was in need of its own statute. 

So what we’re going to hear from Mr. Huffman shows that data 

in West Virginia alone, the incidents of valleys fills from mountain 

top mining increased from 330 in 1984 to 1,821 in 2009, resulting 

in over 680 miles of buried headwater streams. 

Our understanding of the impacts of mining has also changed. 

Biologists have found that streams downstream of valleys fill in the 

Appalachia support just half of the number of fish species they 

should. Scientists have also studied the long-term impacts and effects of mountain top mining approved under existing state programs. The results are in. A study found that ‘‘sustained ecological 

damage in the headwater streams draining valleys fills long after 

reclamation was completed.’’ Given these facts, Interior has an obligation to modernize its SMCRA rules. I want to emphasize that the 

Stream Protection Rule is important for the entire nation. Even my 

own state is dealing with the legacy of coal. 

There are over 250 abandoned coal mines in Washington, and 

these are from all over the state. We even have one in King County. There are more, probably, to be even mapped. As recently as 

2003, Washington produced over six million tons of coal per year 

from surface mines that are now being reclaimed, so it isn’t just 

coal country on the hook under these new regulations. I want to 

make sure that we’re doing everything we can to clean our waters. 

As we’re seeing the industry today, coal companies are not too 

big to fail. I think that will be part of the discussion this morning 

with over $3 billion of outstanding self-bonds we should all be worried about who picks up the tab. This was an issue in our state 

with ASARCO. When ASARCO went bankrupt, they left with backyards all through Tacoma torn up trying to get rid of pollution. 

Then they just literally walked off the job. So to me this is a very 

important issue to understand. Who is going to be responsible? 

Madam Chair, I think I’ll conclude there, and just say that I 

hope that during today’s hearing that we’ll have an important discussion on this. I know previously when President Ford vetoed a 

weaker bill they said well we’re going to lose all these jobs. We 

ended up in 1977 producing a stronger bill. In that bill saw an increase in coal production. So I think the issues are here. We want 

to get this right so that everybody can be assured that polluters are 

4 

paying and that we’re moving forward with clean water in the 

United States. 

Thank you very much. 

The CHAIRMAN. Thank you, Senator Cantwell. 

Before we begin the general introductions I would ask that Senator Barrasso introduce one of our witnesses today from the State 

of Wyoming. 

STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR FROM 

WYOMING 

Senator BARRASSO. Thank you very much, Madam Chairman. 

I would like to welcome to the Committee today Todd Parfitt, 

who is the Director of the Wyoming Department of Environmental 

Quality. He lives in Cheyenne, and he has spent the last 21 years 

at the Wyoming DEQ, and the last three years as Director. 

Many mistakenly believe that this rule, the subject of today’s 

hearing, will only affect coal production in Appalachia. That is simply not the case. This rule will cost thousands of jobs across the 

country, including many jobs in Wyoming. For that reason, I am 

very grateful that Todd is here to testify and to share his expertise 

with the Committee. 

Thank you, Madam Chairman. 

The CHAIRMAN. Thank you, Senator Barrasso. 

With that, we will begin with the general introductions. I would 

ask each of you to try to limit your comments to five minutes or 

less. Your full written statements will be included as part of the 

record. 

We are joined this morning by the Honorable Janice Schneider, 

the Assistant Secretary for Land and Minerals Management at the 

U.S. Department of the Interior. 

We are also joined by Mr. Randy Huffman, who is a Cabinet Secretary for the West Virginia Department of Environmental Protection. 

We have Mr. Jim Hecker, who is the Director of Environmental 

Enforcement Project for the Public Justice. 

Mr. Todd Parfitt, again from Wyoming, has been introduced by 

Senator Barrasso. He is from the Department of Environmental 

Quality. 

Finally we have before the Committee Mr. Hal Quinn, who is the 

President and CEO of the National Mining Association. 

Ms. Schneider, gentlemen, welcome to the Committee. With that, 

Ms. Schneider, if you would like to kick off here this morning? 

STATEMENT OF HON. JANICE SCHNEIDER, ASSISTANT SECRETARY, LAND AND MINERALS MANAGEMENT, U.S. DEPARTMENT OF THE INTERIOR 

Ms. SCHNEIDER. Thank you, Chairman Murkowski and members 

of the Committee and thank you for the opportunity to testify today 

on the proposed Stream Protection Rule. 

The proposed Stream Protection Rule includes reasonable and 

straight forward reforms to revise 30-year old regulations for coal 

mining. The proposed rule recognizes, as the Energy Information 

Administration (EIA) does in its forecast, that coal mining and 

coal-fired electricity production will be a part of our energy mix for 

5 

decades to come. And so the proposed rule is designed to keep pace 

with current science, technology and modern mining practices 

while also safeguarding communities from the long term effects of 

pollution and environmental degradation that endanger public 

health and undermine future economic opportunities. 

Every Reclamation practice contained in the proposed rule has 

been successfully implemented by a mine operator somewhere in 

this country. Through this proposed rule we are leveraging innovations of the industry by adopting best practices developed over the 

last 30 years to improve the regulations. I would like to stress that 

this is a proposed rule. It has been available for public review and 

comment for close to three and a half months including one extension of the comment period that was already granted. 

We have actively sought public comment in some of the most impacted areas of the country holding six public hearings last month, 

and to date there have been more than 94,000 comments received 

on the proposed rule. We will evaluate all comments received in detail in developing a final rule. 

In 1977 Congress enacted SMCRA which established a program 

to regulate coal mining. Over the years OSMRE has adopted four 

different sets of regulations on the topic we are discussing today, 

most recently in 2008. Last year, however, a Federal court vacated 

the 2008 rule due to Endangered Species Act violations and ordered reinstatement of the 1983 version of the Stream Buffer Zone 

Rule. That rule was adopted over 30 years ago, and it is the base 

for state programs today. 

We have learned a great deal over the last three decades about 

the impacts of coal mining operations and how to prevent it. We 

believe that the proposed rule strikes an appropriate balance between environmental protection, agricultural productivity and the 

nation’s need for coal as an essential source of energy while providing greater regulatory certainty for the mining industry. 

OSMRE’s outreach to stakeholders identified seven key areas for 

improvement to uphold the obligations SMCRA. The time allotted 

does not allow for me to elaborate on all of these key areas, but 

they are described in my written statement. I would like to highlight the key aspects of the proposed revisions. 

They include a better understanding of baseline conditions at 

mining sites, improved monitoring, clarity on what constitutes material damage to the hydrologic balance outside the permit area 

and enhanced materials handling and restoration requirements designed to take into account advances in information technology, 

science and methodologies over the last three years, excuse me, 30 

years. 

We have used a highly experienced team to develop the draft 

Regulatory Impact Analysis (RIA) for the proposed rule. Among the 

many benefits the draft RIA estimates that for the period from 

2020 to 2040 thousands of miles of streams will be in better condition if the proposed rule is adopted and nearly 60,000 acres would 

be reforested or reforested in an approved manner. 

Consistent with EIA forecasts the draft RIA finds that while coal 

will be a part of our energy mix well into the future, coal production is expected to decline even under the existing regulations. This 

is being driven by market conditions including the low price of natVerDate Nov 24 2008 08:00 Mar 10, 2017 Jkt 098945 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\TARSHA\HEARINGS\98945\E98945.TXT E98945
6 

ural gas which are anticipated to result in a further decline in demand for coal and reduced coal, annual coal production, of approximately 15 percent. 

The draft RIA estimates that over the same period the proposed 

rules economic effects are minimal. Annual coal production is anticipated to be reduced by only 0.2 percent and total coal production related job losses estimated at 260 jobs would be largely offset 

by increases in compliance related jobs estimated at 250 jobs. 

The draft RIA also estimates that industry compliance costs are 

small as is the rule’s impact on electricity prices for utilities. 

Thank you for the opportunity to appear before the Committee 

today and testify on the proposed stream protection rule. The proposed rule reflects what Americans expect from their government, 

a modern and balanced approach to energy development that safeguards our environment, protects water quality, supports the energy needs of our nation and makes coal filled communities more 

resilient for a diversified economic future for generations to come. 

I would be happy to answer your questions. 

[The prepared statement of Ms. Schneider follows:] 

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STATEMENT OF 

JANICE M. SCHNEIDER, ASSISTANT SECRETARY, 

LAND AND MINERALS MANAGEMENT 

U.S. DEPARTMENT OF THE INTERIOR 

BEFORE THE 

COMMITTEE ON ENERGY AND NATURAL RESOURCES 

U.S. SENATE 

ON THE 

PROPOSED STREAM PROTECTION RULE 

OCTOBER 27,2015 

Chainnan Murkowski and members of the committee, thank you for the opportunity to 

testify on the proposed Stream Protection Rule (SPR). 

Introduction 

The proposed Stream Protection Rule includes reasonable and straightforward reforms to 

revise 30-year-old regulations for coal mining in order to avoid or minimize impacts on 

surface water, groundwater, fish, wildlife, and other natural resources that residents of 

these communities will rely on for decades. The proposed Stream Protection Rule will 

accomplish what Americans expect from their government- a modem and balanced 

approach to energy development that safeguards our environment, protects water quality, 

supports the energy needs of the nation, and ma.kes coalfield communities more resilient 

for a diversified economic future for generations to come. 

The proposed rule keeps pace with current science, technology, and modem mining 

practices, while also safeguarding communities from the long-tenn effects of pollution 
8 


Insert offset folio 2 here 98945.002

and environmental degradation that endanger public health and undermine future 

economic opportunities, all while acknowledging, as the Energy Information 

Administration (EIA) does in their forecast, that coal mining and coal-fired electricity 

production will be a part of our energy mix for decades to come. 

Every reclamation practice contained in the proposed rule has been successfully 

implemented by a mine operator somewhere in the country. Through this proposed rule, 

we are doing no more than leveraging innovations of the industry by adopting best 

practices developed over the last 30 years to improve the regulations. 

I would like to stress that this is a proposed rule. It has been available for public review 

and comment for close to three-and-a-half months, including one extension of the 

comment period_ We have actively sought public comment in some ofthe most impacted 

areas of the country, holding public hearings in Denver, Colorado; Lexington, Kentucky; 

St. Louis, Missouri; Pittsburgh, Pennsylvania; Big Stone Gap, Virginia; and Charleston, 

West Virginia. After this robust outreach process, we are looking forward to reviewing 

the public comments and input on the proposed rule so that we may improve upon it 

through the use ofthe many thoughtful comments received. To date, there have been 

more than 40,000 comments received on the rule. 

Background 

Along with responsible oil and gas development and growth of clean, renewable energy, 

coal is an important part of our Nation's energy portfolio. The responsible development 

2 
9 


Insert offset folio 3 here 98945.003

of this important resource is a key part of America's energy and economic security. 

Coal-fired power plants generate more than one-third ofthe electricity produced in this 

country. Metallurgical coal is a critical element of the steelmaking process. 

In 1977, Congress enacted the Surface Mining Control and Reclamation Act of 1.977 

(SMCRA), which established a program to regulate coal mining. Congress recognized 

the importance of both coal production and protecting the environment from the adverse 

effects of coal mining. In 1979, the OSMRE published the original version of its 

permanent regulatory program regulations, and revised the regulations in 1983. Mining 

in or near streams has long been a controversial topic. Over the years, OSMRE has 

adopted four different sets of regulations on this topic, most recently in 2008. On 

February 20, 2014, however, a federal district court vacated the 2008 rule, finding that 

the failure to consult with the U.S. Fish and Wildlife Service on the rule violated the 

Endangered Species Act. The court ordered reinstatement ofthe 1983 version of the 

stream buffer zone rule. That rule was adopted over 30 years ago- it does not consider 

or take into account new scientific evidence, or the significant advances in mining and 

reclamation techniques that have occurred over the past 30 years. 

The regulations that OSMRE adopted in 1983 to implement SMCRA sought to strike a 

balance between coal production and environmental protection. Nevertheless, we have 

learned a great deal over the last three decades and it is clear that coal mining operations 

can, and often do, still adversely impact water quality for people, fish, and wildlife. 

Those impacts include loss of headwater streams, long-term degradation of water quality 
10 


Insert offset folio 4 here 98945.004

in streams downstream of a mine, displacement of pollution-sensitive native species by 

highly competitive non-native species that inhibit reestablishment of native plant 

communities, fragmentation of large blocks of mature hardwood forests, and compaction 

and improper construction of postmining soils that result in reduced site productivity and 

adverse impacts on watershed hydrology. 

By lessening these impacts, the proposed Stream Protection Rule would better achieve 

the purposes ofSMCRA, would assure that surface coal mining operations are conducted 

in an environmentally protective manner, would better protect society and the 

environment from the adverse effects of surface coal mining operations, and would help 

assure that mining will not occur where reclamation is not feasible. We believe that the 

proposed rule strikes an appropriate balance between environmental protection, 

agricultural productivity and the Nation's need for coal as an essential source of energy, 

while providing greater regulatory certainty to the mining industry. 

SMCRA established two primary programs: first, a regulatory program to protect society 

and the environment from the adverse effects of coal mining operations; and, second, an 

abandoned mine lands (AML) reclamation program to address the hazards and 

environmental degradation remaining from two centuries of loosely ret,TU!ated mining. 

These programs are important to protect public health and safety, promote the 

environmental well-being of the coal mining areas of the United States, and restore lands 

to economically viable conditions after use. Initially, OSMRE directly regulated coal 

mining and arranged cleanup of abandoned mine lands while states developed their own 

4 
11 


Insert offset folio 5 here 98945.005

programs under SMCRA. Today, as Congress envisioned, most coal mining states have 

the primary responsibility for the regulation of coal mining and reclamation of abandoned 

mine lands, which allows OSMRE. to focus on overseeing the administration and 

maintenance of the state programs and assisting the states and tribes in implementation of 

those programs. 

Goals of Proposed Rule 

In this proposed rule, OSMRE seeks to incorporate the best practices oftoday's coal 

mining industry from across the country while providing more comprehensive water 

protection than the existing rule and its predecessors, which focus primarily on streams 

and their buffer zones. Specifically, OSMRE's analysis and outreach to stakeholders 

identified the following seven areas for improvement to ensure regulatory certainty, and 

uphold the obligations of SMCRA in 2015 to protect public health and safety while 

promoting the environmental well-being ofthe coal mining areas in the United States: 

First, perennial and intermittent streams derive their flow from both groundwater 

discharges and surface runoff from precipitation events. Therefore, there is a need to 

define the point at which adverse mining·related impacts on groundwater and surface 

water reach an unacceptable level. SMCRA has always provided that no permit may be 

approved unless the regulatory authority finds that the proposed operation will not result 

in material damage to the hydrologic balance outside the permit area, but neither the Act 

nor the existing regulations define "material damage" or establish criteria for determining 

what level of adverse impacts would constitute material damage. The proposed rule 

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12 


Insert offset folio 6 here 98945.006

would require the regulatory authority to establish numerical standards for material 

damage and incorporate those standards into the permit. This definition tailors the rule to 

fit the streams of a specific region. 

Second, the proposed rule would require that the permit applicant collect adequate premining baseline data about the site ofthe proposed mining operation and adjacent areas. 

This will establish an adequate baseline with which the impacts of mining may be 

compared. The existing rules require data only for a limited number of water quality 

parameters rather than the full suite needed to establish a complete baseline against which 

the impacts of mining can be compared. The existing rules also fail to cover the 

complete hydrologic cycle, which limits the value ofthe collected data. Furthermore, the 

existing rules contain no requirement for determining the biological condition of streams 

within the proposed permit and adjacent areas, so there is no assurance that the permit 

application will include baseline data on aquatic life. 

Third, the proposed rule would provide for effective, comprehensive monitoring of 

groundwater, surface water, and the biological condition of streams during and after 

mining and reclamation. Proper monitoring enables timely detection of any adverse 

trends and allows timely implementation of any necessary corrective measures. Proper 

implementation of corrective measmes can prevent the mine operator from incurring very 

costly long-term water treatment obligations and would also protect community water 

resomces. The existing rules require monitoring of only water quantity and a limited 

number of water -quality parameters, not all parameters necessary to eva! uate the impact 

6 
13 


Insert offset folio 7 here 98945.007

of mining and reclamation. The existing rules also do not ensure that the number and 

location of monitoring points, or the length monitoring will continue, will be adequate to 

determine the impact of mining and reclamation. As a result, the proposed rule would 

require more comprehensive monitoring, and for monitoring data to be evaluated as part 

of any application for bond release. No bond could be released if the monitoring data 

show adverse trends that could result in material damage to the hydrologic balance 

outside the pem1it area. 

Fourth, the proposed rule would ensure the protection or restoration of streams and 

related resources. This includes the headwater streams that are important to maintaining 

the ecological health and productivity of downstream waters. The existing rules have not 

always been applied in a manner sufficient to ensure protection or restoration of streams, 

especially with respect to the ecological function of streams. The proposed rule would 

prohibit mining activities in or within 100 feet of perennial and intem1ittent streams 

unless the regulatory authority finds that the proposed activity will not preclude any 

premining, desi!,'llated, or reasonably foreseeable uses ofthe stream. If a mine operator 

chooses to mine through a peretmial or intermittent stream, the proposed rule would 

require the operator to restore both the hydrological form and the ecological function of 

the affected stream segments. 

The proposed rule also includes best practices intended to minimize the length of stream 

buried by excess spoil fills, and require that excess spoil fills be designed and constructed 

to be no larger than necessary to dispose of the excess spoil generated. Fill construction 

7 
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techniques that involve end-dumping would be prohibited as inconsistent with SMCRA, 

which requires that excess spoil be transported and placed in a controlled manner. These 

new standards would protect downstream water quality and the long-term stability of the 

filL In addition, an operator choosing to construct an excess spoil fill in a perennial or 

intermittent stream would be required to implement fish and wildlife enhancement 

measures to offset the environmental harm resulting from the fill. 

Maintenance, restoration, or establishment of riparian corridors or buffers, comprised of 

native species, for streams is also a critical element ofst:ream protection. In forested 

areas, riparian buffers for streams moderate the temperature of water in the stream, 

provide food (in the form of fallen leaves and other plant parts) for the aquatic food web, 

stabilize stream banks, reduce surface runoff, and filter sediment and nutrients in surface 

runoff. As a result, the proposed rule also would require that the operator establish a I 00-

foot-wide riparian corridor, using suitable native species, on disturbed lands along each 

bank of perennial, intermittent, and ephemeral streams, unless and until a conflicting 

postmining land use is implemented. 

F~fih, the proposed rule would ensure that operators and regulatory authorities make use 

of advances in information, technology, science, and methodologies related to surtace 

and groundwater hydrology, surfac.e-runoff management, stream restoration, soils, and 

revegetation, all of which relate directly or indirectly to protection of water resources. 

Sixth, the proposed rule would ensure that land disturbed by surface coal mining 

8 
15 


Insert offset folio 9 here 98945.009

operations is restored to a condition capable of supporting the uses that it could support 

before any mining, including both those uses dependent upon stream protection or 

restoration and those uses that promote or support protection and restoration of streams 

and related environmental values. Existing rules and permitting practices have focused 

primarily on the land's suitability for a single approved postmining land us.e and they 

have not always been applied in a manner that results in the constmction ofpostmining 

soils that provide a growth medium suitable for restoration ofpremining site productivity. 

For example, postmining soils must include a sufficient root zone to support those uses 

and soil materials must be placed in a manner that minimizes compaction. Trees and 

other desirable vegetation struggle to survive on thin, compacted soils. A corollary 

provision in the proposed rule would require that reclaimed minesites be revegetated with 

native species unless and until a conflicting postmining land use, such as intensive 

agriculture, is implemented. Soil characteristics and the degree and type of revegetation 

have a major impact on precipitation infiltration and surface-water runoff quantity and 

quality as well as on aquatic life and the ten·estrial ecosystems dependent upon perennial 

and intermittent streams. Nonnative grasslands on mined land throughout Appalachia are 

not as productive as the native hardwood forests they replaced. These existing 

reclamation practices reduce the region's future potential economic opportunities. 

Seventh, the proposed rule would update and codify requirements and procedures to 

protect threatened and endangered species and designated critical habitat under the 

Endangered Species Act of 1973 to help provide regulatory certainty for mining 

9 
16 


Insert offset folio 10 here 98945.010

operators. It also would better explain how the fish and wildlife protection and 

enhancement provisions ofSMCRA should be implemented. 

Regulatory Impact Analysis 

We have used a highly experienced team to develop the draft Regulatory Impact Analysis 

(RIA) for the proposed rule. The draft RIA estimates that, for the 21-year period from 

2020 to 2040, thousands of miles of stream will be in better condition ifthe proposed rule 

is adopted. 

In addition, the draft RIA estimates that nearly 60 thousand acres would be reforested or 

reforested in an improved mam1er under the proposed rule. These are expected to result 

in significant environmental and ultimately health benefits to local communities. 

Consistent with Energy Information Administration (EIA) forecasts, the draft RIA finds 

that coal production is expected to decline, even under the existing regulations, but coal 

will be part of our energy mix well into the future. The draft RIA also finds that market 

conditions such as the demand for coal and the availability and low price of natural gas 

and alternative sources of energy will result in a decline ln annual coal production of 

approximately 15 percent (162 million tons) over the 21-year evaluation period without 

any changes to the existing regulations. 

10 
17 


Insert offset folio 11 here 98945.011

The draft RIA estimates that over the same period the proposed rule would reduce annual 

coal production by 0.2 percent, result in an increase in coal prices of0.02 to 1.2%, and an 

increase of 0.01% in national electricity production costs for utilities. 

The draft RIA also estimates that industry compliance costs would average 0.1% or less 

of aru,'fegate annual industry revenues. 

This Administration understands and is sensitive to the importance of high wage mine 

jobs to rural communities. Moreover, we are aware of the shifting economic trends 

irrespective ofthis rulemaking -impacting the coal industry and are concerned about 

fitture generations and the resources that will be left behind for them to sustain the life 

they know. The draft RIA predicts that the proposed mle would have minimal impacts 

on employment, with an average annual reduction of 260 jobs related to coal production 

and an annual average increase of 250 jobs related to compliance with the proposed rule. 

This means production-related job losses would be largely offset by increases in 

compliance-related jobs resulting in a net loss of approximately 10 jobs. 

Public Participation 

Hearing directly from the public is an important component of the mlemaking process 

that we take very seriously. To that end, as noted above, the OSMRE conducted six 

public hearings between September I, 2015, and September 17,2015, in Denver, 

Colorado; Lexint,>ton, Kentucky; St. Louis, Missouri; Pittsburgh, Pennsylvania; Big Stone 

Gap, Virginia; and Charleston, West Virginia. 

11 
18 


Insert offset folio 12 here 98945.012

OSMRE also extended the comment period through Octo bet 26, 20 l5, to allow 

organizations and individuals additional time (for a total of almost 3 and a half months) 

to prepare and submit their comments. We will evaluate a!! comments received in 

developing a final rule. We have also conducted outreach to Congressional leadership, 

spoken to state officials, gone out in the field, and met with various stakeholders to 

discuss their concerns and found these interactions to be helpful and productive. The 

process bas been tremendously enhanced as a result of input from states, industry and 

NGOs. 

Conclusion 

Thank you for the opportunity to appear before the committee today to testify on the 

development of the proposed Stream Protection Rule, The proposal of this rule furthers 

the Administration's goal to establish a modem and balanced approach to energy 

development that safeguards our environment, protects water quality, supports the energy 

needs of the nation, and makes coalfield communities more resilient for a diversified 

economic future for generations to come. 1 would be happy to answer your questions. 

12 
19 

The CHAIRMAN. Thank you, Ms. Schneider. 

Mr. Huffman, welcome. 

STATEMENT OF RANDY HUFFMAN, CABINET SECRETARY, 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION 

Mr. HUFFMAN. Thank you, Chairman Murkowski, Senator Capito, good to see you again, and members of the Committee, good 

morning. Thank you for the opportunity to speak on behalf of West 

Virginia concerning OSM’s proposed Stream Protection Rule. 

As Cabinet Secretary for the West Virginia DEP, the agency responsible for regulating coal mining in the mountain state, I am 

very concerned about the impacts this rule would have on West 

Virginia and our nation. West Virginia has had laws addressing 

the environmental effects of mining since the 1930s and has been 

a primacy state for implementation of the Surface Mining Acts 

since 1981. This experience makes West Virginia uniquely qualified 

to speak about the proposed Stream Protection Rule. 

OSM worked on this proposed rule and the accompanying draft 

environmental impact statement and draft regulatory impact analysis for over five years. These documents, together, make up more 

than 3,000 pages of very complex material, material that represents, based on our initial review, the most significant rewrite of 

Surface Mining Act regulations since they first went into effect. 

The proposed Stream Protection Rule is an ill-conceived, unlawful overreach. It would effectively override a long-standing act of 

Congress and, therefore, should not be adopted without a Congressional mandate. When the Surface Mining Act was enacted nearly 

four decades ago, Congress stated that one of the expressed purposes of the act was to assure that the coal supply, essential to the 

nation’s energy requirements and to its economic and social well 

being, would be provided. 

Congress also said there must be a balance between the protection of the environment and agricultural productivity and the nation’s need for coal as an energy source. Yet, this proposed rule 

does not take that need into account. What OSM is proposing 

would impose costly, new regulatory burdens without any established necessity for them. That balance that Congress intended to 

remain in place would be erased. In its place would be a law that 

is contrary to the very spirit of SMCRA. 

One of the most obvious shortcomings of the rule is that it is full 

of unlawful conflicts with Federal and State clean water laws. The 

Surface Mining Act makes it clear that nothing in the act should 

be allowed to supersede, amend, modify or repeal the Clean Water 

Act or any state laws adopted to implement it. The Surface Mining 

Act is meant to take a back seat to both Federal and State laws 

when there are conflicts. 

The Clean Water Act gives the states primary responsibility for 

the development of water quality standards including designated 

uses of the waters of the state and water quality criteria based on 

such uses. The U.S. EPA, not OSM, can promulgate a water quality 

standard for a state and then only in limited circumstances. There 

are multiple instances throughout this stream rule in which existVerDate Nov 24 2008 08:00 Mar 10, 2017 Jkt 098945 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 C:\TARSHA\HEARINGS\98945\E98945.TXT E98945
20 

ing Federal and State laws related to water quality standards 

would be usurped. 

The rule also contradicts the primacy authority of states. For instance, the proposal would insert the U.S. Fish and Wildlife Service 

into state level permit decisions. It also unlawfully merges Clean 

Water Act and Surface Mining Act permit requirements which, we 

believe, would inevitably lead to OSM seeking oversight of those 

merged permits. 

Additionally, the permit process OSM seeks to establish with this 

rule violates the Surface Mining Act by eliminating the exclusive 

regulatory jurisdiction of the states. The Surface Mining Act provides for either state regulation of surface coal mining or Federal 

regulation, not both. 

Also, in developing this rule, OSM flouted the cooperating agency 

process. It enlisted the cooperation of ten state regulatory agencies 

including the West Virginia DEP in drafting an environmental impact statement, yet shortly after bringing those states on board, it 

excluded them from the process even though this rule will drastically affect how those states regulate mining. 

Essentially, OSM conducted the NEPA process for the Stream 

Rule for more than four years by itself in secret. The Federal agency was apparently not willing to consider comments or challenges 

by state regulators who were ready, willing and able to participate. 

The Stream Protection Rule is an unnecessary and, we believe, 

uncalled for political gesture. 

What prompted OSM to make these changes? There were no demands from Congress that OSM conform to congressional intent 

nor was there an outcry from state regulators demanding fixes for 

broken regulatory programs. There is nothing throughout the history of the Surface Mining Act to indicate a need for this radical 

rewrite of the regulations. 

In conclusion, we believe the proposed Stream Rule is actually illegal. It subverts Federal statutory authority and state primacy jurisdiction, and it upsets the balance Congress intended to create 

between environmental protection and coal production. Therefore, 

West Virginia DEP wholeheartedly believes OSM should withdraw 

this rule and abandon this rulemaking effort. 

Thank you. 

[The prepared statement of Mr. Huffman follows:] 

21 


Insert offset folio 13 here 98945.013

Randy C. Huffman 

Cabinet Secretary 

West Virginia Department of Environmental Protection 

Testimony Regarding the Development and Potential Implementation of the 

Office of Surface Mining, Reclamation, and Enforcement's 

Proposed Stream Restoration Rule 

before the 

United States Senate's Committee on Energy and Natural Resources 

October 27, 2015 

Madam Chair and members of the committee, 

Good morning. My name is Randy Huffman and I serve as the Cabinet Secretary of the 

West Virginia Department of Environmental Protection (WVDEP), the executive agency in West 

Virginia that is responsible for the environmental regulation of the mining industry. 

Thank you for the opportunity to speak on behalf of West Virginia concerning the Office 

of Surface Mining's (OSM's) Proposed Stream Protection Rule, published on July 27, 2015. 

This measure will have a huge impact on both the Mountain State and the nation, as coal mining 

provides a significant portion of the nation's energy supply and exports significant amounts of 

metallurgical coal, and this proposal will severely restrict the coal industry's ability to provide 

these invaluable services. 

West Virginia is uniquely qualified to speak to this issue, as we have been a "primacy 

state" since 1981, which means that WVDEP or its predecessor agencies have implemented and 

administered the Surface Mining Control and Reclamation Act (SMCRA) since then; with OSM 

providing oversight. Dating back to the 1930s, West Virginia has had a set of laws addressing 

the environ.1nenta1 ramifications of mining. In fact, SMCRA itself, passed by Congress in 1977, 

borrowed heavily from t.'le preexisting state programs of West Virginia and Pennsylvania. 

OSM worked on the proposed rule and its accompanying Draft Environmental Impact 

Statement (EIS) and Draft Regulatory Impact Analysis (RIA) for over five years. These 

documents together constitute over 3000 pages of complex, technical material that represents 

significant departures from the current regulations. 1 Additionally, there are references to over 55 

various "scientific" studies. Based on initial review of these documents, it is obvious they 

represent by far - the most significant rulemaking since promulgation of the permanent 

program regulations in 1979. This proposed rule involves a significant re-write of many portions 

of OSM's current regulations (and some regulations that are not within OSM's purview) in a 

number of critical areas that impact the implementation of SMCRA. 

OSM's proposed rule is an ill-conceived overreach that exceeds its lawful authority in 

many ways. First, it is a subversion of a long-standing act of Congress and, as such, it should not 

' 80 Fed. Reg. 44700 
22 


Insert offset folio 14 here 98945.014

be adopted without a new mandate from Congress. In enacting SMCRA almost four decades 

ago, Congress made an express finding that "expansion of coal mining to meet the Nation's 

energy needs makes even more urgent the establishment of appropriate standards to minimize 

damage to the environment .... "2 Accordingly, it established that one of the express purposes of 

SMCRA is to "assure that the coal supply essential to the Nation's energy requirements and to its 

economic and social well-being is provided and strike a balance between protection of the 

environment and agricultural productivity and the Nation's need for coal as an essential source of 

energy .... "3 

However, with this proposed Stream Rule, it is clear that OSM has lost its way and 

strayed from the roadmap Congress gave it in 1977. Thirty-eight years later, OSM is proposing a 

multiplicity of changes to the regulations that impose costly new regulatory burdens without any 

established record that would indicate its necessity. In the regulations adopted in the late 1970s 

and early 1980s, OSM drew a line between environmental protection and increased coal 

production that reflects the balance Congress meant to strike when it adopted SMCRA. Now, 

enveloped in the rhetoric of the 20 I Os, OSM proposed to redraw that line in a place that provides 

no balance at all, where no impacts from coal mining are acceptable. Congress called for 

balance in SMCRA. The Stream Rule will destroy this balance; it is contrary to the purposes and 

very spirit of SMCRA and, therefore, is illegal. 

One of the shortcomings of the Stream Rule is that it is full of unlawful conflicts with 

federal and state clean water laws. Section 702 of SMCRA provides that "[n]othing in this Act 

shall be construed as superseding, amending. modifying or repealing ... the Federal Water 

Pollution Control Act, as amended, [or] the state laws enacted pursuant thereto .... "4 Thus, any 

water quality protections provided in SMCRA cannot conflict with the Clean Water Act or state 

laws adopted to implement it. In this area, notwithstanding the Supremacy Clause of the 

Constitution, the express language of SMCRA makes it subordinate to both federal and state 

laws. SMCRA must yield to application of these laws where there are conflicts. Importantly, 

Section 303 of the Clean Water Act allocates primary responsibility for development of water 

quality standards to the states. 5 These water quality standards consist of designated uses of the 

waters of the state and water quality criteria based on such uses, 6 as well as an anti-degradation 

policy. 7 At a minimum, the designated uses t.~e states must consider in developing water quality 

standards include public water supplies, propagation of fish and wildlife, recreation, agriculture, 

and industrial use.8 The federal Environmental Protection Agency (EPA), not OSM, can 

promulgate a water quality standard for a state, and then only in limited circumstances and after 

following the process specified in the Clean Water Act.9 "Congress meant exactly what it said in 

2 30 u.s.c. § 120l(d) 

'30 u.s.c. § 1201(f) 4 30 u.s.c. § 1292 5 33 U.S.C. § 1313(a)-(c) 

'33 u.s.c. § 1313(cX2)(A) 7 40 C.P.R.§§ 131.6(d) and 131.12 8 Id. 

'33 U.S. C. § 1313(c)(3)- (4) 

2 
23 


Insert offset folio 15 here 98945.015

Section 702(a)(3) of the Act, that where there is an overlap of regulation, the Surface Mining Act 

is not to be interpreted as altering in any fashion the Federal Water Pollution Control Act."10 

Whatever the extent of OSM's authority to prescribe standards for regulation of water 

quality under such provisions of SMCRA as those requiring prevention of "material damage to 

the hydrologic balance outside the permit area" may be, it is clear that, when doing so, OSM 

cannot interfere with the application of federal and state clean water laws. The Stream Rule's 

proposed definition of this term contains two parts. Although the first part of the definition is not 

without problems,II the second part of the definition is particularly troubling, as it declares 

"material damage" to be any discharge that impacts a threatened or endangered species or 

adversely affects such species' habitat(s). If this part of the definition is intended to insert the 

federal Fish & Wildlife Service (FWS) into state-level permit decisions by allowing it to set 

water quality thresholds for the protection of threatened or endangered species, it is contrary to 

SMCRA in two ways. First, as discussed below, SMCRA vests exclusive regulatory authority in 

primacy states, and any attempt to insert FWS or any other agency of the federal government 

into the state's permitting processes contravenes SMCRA in this regard.~?. Second, state water 

quality standards are set at levels that are intended to protect propagation of fish and wildlife. In 

apPlying these standards, a state must support the most sensitive use.13 Accordingly, the second 

part of the definition is unnecessary, because protection of all aquatic life is a part of the 

designated uses protected by state water quality standards. 

The manner in which the Stream Rule would apply the material damage definition in its 

cumulative hydrologic impact assessment (CHIA) regulations is also problematic. The Rule 

calls for the preparer of a CHIA to develop criteria defining material damage in numeric 

concentrations.14 There is no requirement that these criteria correspond either to water quality 

criteria developed by state water quality regulators for protection of designated uses or to 

effluent limitations those regulators develop. State water quality regulators, not SMCRA 

regulators, have Clean Water Act authority to set water quality criteria and determine effluent 

10 In reSurface Mining Regulation Litigation, 627 F,2d 1346, 1366 (D.C. Cit. 1980) (rejecting effluent limitations 

and water quality standards OSM had promulgated that were more· stringent than those promulgated by EPA under 

the Clean Water Act). 11 First, the Clean Water Act sanctions the use of compliance schedules comprised of a set of "remedial measures 

including an enforceable sequence of actions or operations leadiog to compliance with an eflluent limitation, other 

limitation, prohibition or standard." See, 33 U.S.C. § 1362(17). TO the extent that a discharge is in lawful 

compliance with a Clean Water Act compliance schedule, it cannot be considered to be unlawful under SMCRA as 

precluding a designated use. Second, tho Clean Water Act regnlations allow a stste, under specified circumstances, 

to remove a designated use. See, 40 C.F.R. § 131.10(g). A removed use is no longer considered in permitting under 

clean water laws. Discharges that do not protect removed uses are lawful under clean water laws. The proposed 

definition would categorize such discharges as unlawful material damage under SMCRA; however, SMCRA does 

not permit this result See, 30 U.S.C. § 1292. Finally, as with the use removal example, there are locations where a 

state, with the blessing of EPA, has granted variances from water quality standards and approved mixing zones. A 

discharge that is lawful in accordance with a variance or mixing zone cannot be rendered unlawful by an OSM 

regulR'.ion. However, tl1at is what the proposed material damage defmition would do. 12 1n addition, any attempt to to insert FWS into the setting of such standards runs afoul of the states' rightful role in 

settir.g them under the Clean Water Act. 13 40 C.F.R. § 13l.ll(aXI) 14 See, 30 C.F.R. §§ 780.2l(bX6) and 784.2l(bX6) 

3 
24 


Insert offset folio 16 here 98945.016

limitations that will protect them. 1bis CHIA regulation amounts to a uswpation of the authority 

of state water quality regulators and, therefore, vioiates SMCRA.15 

The Stream Rule also requires .the CHIA to document that at no time in the life of a 

proposed mining operation will there be an exceedance of water quality standards in any stream 

outside the permit area 16 1bis contradicts the Clean Water Act in several ways. First, the Clean 

Water Act and state laws protect water quality downstream of a discharge point through the 

establishment of effluent limitations. It is with these effluent limitations that the permittee must 

comply at the discharge point, not water quality standards. Second, a permittee whose discharge 

is compliant with the effluent limitations in its clean water permit is protected from contentions 

that water quality standards are violated somewhere down stream by the "permit as a shield" that 

exists under federal and state clean water laws. Therefore, SMCRA cannot impose sanctions 

against a permittee who is entitled to the permit shield, because it would be superseding clean 

water laws by doing so. Third, this required documentation or finding would effectively prohibit 

new mining operations from being permitted on streams that are not meeting water quality 

standards in cases where the Clean Water Act may otherwise allow them. Where a stream is not 

complying with designated uses, the Clean Water Act requires the state to identifY it on a list of 

impaired streams prepared pursuant to section 303(d) of the Clean Water ActP As a 

consequence of such a fisting, the state must prepare a "total maximum daily load" (TMDL) for 

the stream, which establishes requirements for subsequent Clean Water Act permitting of 

discharges into that stream. 18 Discharges that can comply with the constraints imposed by the 

TMDL are lawful and may be permitted under the Clean Water Act Thus, a mining operation 

that is capable of complying with a TMDL would be lawful under the Clean Water Act The 

provision proposed in this rule would effectively ban such lawful operations, contrary to 

SMCRA.'9 

The Stream Rule's one-size-fits-all attempt to regulate biological condition and ecologic 

function is also squarely in conflict with state clean water laws. To the extent that biologic 

condition and ecologic function are not protected by numeric water quality criteria, there are 

narrative criteria to protect them which vary from state to state, with no two states' criteria being 

the same. States have developed assessment tools for measuring stream conditions under these 

water quality criteria, which also va.ry from state to st.ate. The manner in which these criteria are 

to be applied has been one of the more prominent issues in contention between EPA and state 

water regulators in recent years. OSM cannot make up its own standards and program for 

regulating in this area without unlawfully uswping the prerogative of state clean water regulators 

to determine what these criteria should be and how to apply them, subject only to EPA oversight 

within the limitations established in the Clean Water Act OSM's attempt to regulate biological 

condition and ecologic function, therefore, violates SMCRA.20 

15 30 u.s.c. § 1292 16 See, 30 C.F.R. §§ 780.2l(b)(8)(i)(B) and 784.2l(b)(8)(i)(B) 

l? 33 u.s.c. § 1313( d) 18 Id. 

,. 30 u.s.c. § 1292 20 Id. 

4 
25 


Insert offset folio 17 here 98945.017

OSM solicited comment on the possibility of establishing "corrective action 

thresholds."21 As we understand this concept, threshold concentrations for various pollutant 

parameters would be established at levels lower than applicable water quality standards or 

effiuent limitations. The permittee and regulatory authority would monitor discharge 

concentrations and, if an otherwise lawful discharge exceeded a corrective action threshold or 

there appeared to be a trend in that direction, the permit would require remedial action of the 

permittee. These thresholds would be enforced in the same manner as any other permit 

condition. Such a scheme would also run afoul of state laws under the Clean Water Act. As 

stated above, a component of state water quality standards is an anti-degradation policy. Antidegradation policies are used to establish the effiuent limitations or other clean water permit 

requirements to protect waters whose quality exceeds that necessary to protect existing uses, to 

keep such waters from being degraded. Such policies also specify the extent to which limited 

degradation of such high quality waters may be allowed. The "corrective action threshold" 

proposal would unlawfully attach additional regulatory consequences, beyond what is specified 

in a state's anti-degradation policy, to discharges into high quality waters. Again, SMCRA does 

not allow OSM to interfere with the operation of clean water laws in this manner. 22 

A last general comment regarding conflict of the Stream Rule with federal and state'clean 

water laws is that the WVDEP sees serious conflict arising from OSM's apparent intention to 

totally merge state NPDES permit requirements into SMCRA permits. State clean water 

regulators are subject to federal oversight by EPA under the Clean Water Act. OSM has no 

authority to oversee these regulators' actions under clean water laws. However, OSM can 

rightfully conduct oversight of state-issued SMCRA permits. It is inevitable that, as part of 

SMCRA permit oversight, OSM will unlawfully seek to oversee these "merged" provisions from 

state water quality permits. The merger ofNPDES and SMCRA permits OSM seeks is extreme 

overreach that SMCRA simply does not allow. 

Additionally, the permit process OSM seeks to establish with this rule violates SMCRA 

by eliminating the states' exclusive regulatory jurisdiction. The relationship between OSM and 

state regulatory authorities under SMCRA is much different than the co-regulator relationship 

that exists between EPA and states under other environmental statutes. The c-.ourts have 

recognized that: 

Under SMCRA, in contrast to [the Clean Water Act] Congress designed a 

scheme of mutually exclusive regulation by either the U.S. Secretary of 

the Interior or the State regulatory authority, depending on whether the 

State elects to regulate itself or to submit to federal regulation. Because 

West Virginia is a primacy state, its regulation of surface coal mining on 

nonfederal lands within its borders is "exclusive." See, 30 U.S.C. § 

1253(a); 30 C.P.R. § 948.10. This federal policy of encouraging 

"exclusive" State regulation was careful and deliberate.23 

t1 80 Fed Reg 44502 22 30 u.s. c. § 1292 23 Braggv. West Virginia Coal Ass'n, 248 F.3d 275,294 (4th Cir. 2001) 

5 
26 


Insert offset folio 18 here 98945.018

Further, "SMCRA provides for either State regulation of surface coal mining within its borders 

or federal regulation, but not both."24 As to permitting, the D. C. Circuit explained the exclusive 

jurisdiction states enjoy under SMCRA as follows: 

[T]he state is the sole issuer of permits. In performing this centrally 

important duty, the state regulatory authority decides who will mine in 

what areas, how long they may conduct mining operations, and under 

what conditions the operations will take place. See, Act §§ 506, 510. It 

decides whether a permittee's techniques for avoiding environmental 

degradation are sufficient and whether the proposed reclamation plan is 

acceptable. See, Act § 51 O(b ). 2

5 

The "careful and deliberate" policy of Congress to encourage states to operate regulatory 

programs has important consequences beyond the realm of SMCRA. For example, among other 

things, opting for exclusive state regulatory jurisdiction prevents day-to-day decisions on 

permitting and other regulatory matters by a state under SMCRA from triggering an EIS or other 

obligations under NEPA and avoids the obligation to perform a formal consultation with FWS 

under Section 7 of the Endangered Species Act with respect to such decisions. 

On their face, the Stream Rule violates SMCRA by eliminating the exclusive regulatory 

authority SMCRA confers on states.26 Subsection (e)(2) vitiates the exclusive state decisionmaking authority on permits that SMCRA granted by creating a formal process for FWS to 

review and approve the protection and enhancement plans (PEPs) that must be in every permit. 

Subsection (eX2)(iv) requires a state regulatory authority to obtain FWS's written approval 

before the state can issue a permit, effectively giving FWS (and the Interior Department) veto 

authority over state permit decisions. Subsection (e)(2)(iii) also contravenes the states' exclusive 

decision-making authority by inserting OSM and higher levels at FWS into the permitting 

process. It establishes a process to "elevate" disagreements between a state and FWS over a PEP 

to higher levels of FWS and OSM for resolution. The courts have said that SMCRA provides for 

regulation by either a state or the federal government, not both.27 OSM's attempt to insert itself 

and its sister Interior Department agency into state permitting decisions when OSM itself is 

specifically prohibited from such involvement- is patently illegal. 

Next, the Stream Rule is an unnecessary, uncalled for political gesture. From where does 

OSM get the impetus for its massive rewrite of the details of a mature regulatory program? Not 

from thousands of inspections in its role of oversight over the state regulatory agencies to which 

SMCRA gives exclusive regulatory jurisdiction. Not from 30-plus years of annual evaluations of 

state regulatory programs. Not from any demands from Congressional overseers that OSM 

conform to Congressional intent. Not from any out~.--ry from state regulators demanding fixes for 

broken regulatory programs. The combined administrative record developed throughout the 

history of mining regulation under SMCRA is totally devoid of any indication of a need for this 

24 Pennsylvania Federation of Sportsmen v. Hess, 297 F.3d 3i0, 31S (3d Cir. 2002) (quoting Bragg, 248 F.3d at 

289) (emphasis in original). 25 ln re Permanent Surface Afining Litigation, 653 F.2d 514, 519 (D.C. Cir. 2981) 25 Speciticaily, proposed 30 C.F.R. §§ 780.16 and 784.16 

z; Bragg, Pennsylvania Federation, supra. 

6 
27 


Insert offset folio 19 here 98945.019

radical rewrite of the regulations governing the way coal is mined in America Although OSM 

attempts to dress up this rule in the clothing of "advances in science, "28 this is just pretext, since 

a number of the studies referenced in the 2015 Draft EIS actually predate 2010. 

In reality, before OSM ever started culling the record laid out by the most prominent 

expert witnesses for environmental groups in their lawsuits against industry defendants for its 

"advances in science," it received direction from a new administration that had taken office less 

than five months earlier. The administration's first order of business for OSM, even before 

appointing an OSM Director, was to bring the new Secretary of the Interior, new EPA 

Administrator, and Acting Assistant Secretary of the Army together to sign a Memorandum of 

Understanding (MOU) dated June 11, 2009, which binds OSM, EPA, and the Army Coxps of 

Engineers (Coxps) to change the way they regulate coal mining in the Appalachian region. 

Among other things, it called for OSM to make "[r]evisions to key provisions of current SMCRA 

regulations, including the Stream Buffer Zone rule and Approximate Original Contour (AOC) 

requirements[.]" Concurrent with the MOU, the Executive Office of the President issued a press 

release in which Nancy Sutley, Chair of the White .House Council on Environmental Quality, 

explained the administration's puxpose in entering into the MOU was to "representO federal 

agencies working together to take the President's message on mountaintop coal mining into 

action[.]"29 Far from the adjustment of surface mining rules to take newly developed science 

into account that OSM portrays it to be, the Stream Rule is simply OSM's response, albeit six 

years later, to the expressed political will of a newly elected administration. If this rulernaking is 

fmalized, the courts will certainly recognize it as purely a politically motivated gesture when the 

inevitable legal challenges are filed and deal with it accordingly. 

Finally, in developing this rule, OSM flouted the cooperating agency process and 

excluded the states from participating in this rulernaking, even though this rule will drastically 

affect how those states regulate the mining industry. OSM correctly realized that its planned 

Stream Protection Measures rulemaking was sufficient in scope to require the preparation of an 

environmental impact statement (EIS) in accordance with the National Environmental Policy Act 

(NEPA). It also appeared to recognize that state assistance in this effort would be essential when 

it formally enlisted ten state regulatory agencies, including WVDEP, as cooperating agencies 

(CAs) in the summer of2010. The primary puxpose of involving CAs is to bring into the process 

knowledge, expertise, and familiarity with matters being considered. However, it soon became 

apparent that the states were brought into this effort merely as window dressing in OSM's effort 

to carry out its 2009 mandate, as described in the preceding paragraph. 

In contrast to the transparency and the hard look at environmental consequences EPA 

envisions, OSM's initial EIS efforts in the fall of 2010 were conducted in such a manner as to 

foreclose meaningful participation by cooperating agencies. OSM's schedule for the Stream 

Protection Measures EIS was totally inadequate for the undertaking involved. CAs on the EIS 

were not allowed to comment on Chapter 1 ("Puxpose and Need for Federal Action'') of OSM's 

preliminary Draft EIS. The time OSM allowed the CAs to comment on hundreds of pages of 

material in Chapter 2 ("Description of Alternatives"), Chapter 3 ("A..+fected Environment"), and 

Chapter 4 ("Environmental Consequences") was five, four, and nine business days, respectively. 

28 80 Fed. Reg. 44436 29 See, June I I, 2009 press release, attached hereto and incorporated herein by reference as Exhibit I. 

7 
28 


Insert offset folio 20 here 98945.020

OSM has either allowed the time commitments it made to tum what should have been an open, 

transparent EIS process into a sham, or it has intentionally designed a process so as to avoid a 

transparent, hard look at the consequences of its proposed actions. As a result, on November 23, 

2010, the CAs collectively sent a letter to OSM Director Pizarchik registering their complaints 

about the lack of meaningful opportunity to review draft EIS chapters, as well as the general lack 

of quality, accuracy, and completeness of the material OSM provided to the cooperating states. 

Shortly after OSM received the states' comments on Chapter 4, in January 2011, which 

repeated concerns similar to those expressed in the November 23, 2010 letter, OSM terminated 

its contractor for the EIS and, shortly thereafter, entirely ceased communicating with the states 

regarding this EIS and rulemaking. Trying to gain some degree of participation, on July 3, 2013, 

the CAs again collectively sent a letter to Director Pizarchik seeking to re-engage as CAs on the 

EIS. This was to no avail; the letter provoked absolutely no response from OSM. Finally, on 

February 23, 2015, the states again collectively sent a letter to Director Pizarchik, asserting that 

OSM was failing to properly conduct the EIS by failing to allow the cooperating agency states to 

have any role in it. In each of the three letters the states sent, they raised the possibility that 

individual states might terminate their participation as CAs, because OSM was failing to 

properly include them in EIS development.30 

Subsequently, West Virginia and other states, by letters dated from February 2015 to 

May 2015, informed OSM that they were withdrawing as cooperating agencies.31 From our 

discussions with other CAs, it is apparent they also felt disenfranchised by the OSM approach. 

The states all agree that the reasons for termination and withdrawal include very short review 

times, failure to provide reports and relevant data, substantial re"ision of the working draft 

without the input of the CAs, unwillingness to meaningfully engage the CAs, the overall quality 

of the work product, missing reference material and the overall expansive nature of the 

rulemaking effort. 

OSM provided no response to the eight withdrawal letters until it sent a letter on October 

7, 2015 requesting that West Virginia and other states re-engage as cooperators at this late date.32 

1bis October 7 lett.er contained no .specific recomtnendations or information as to how 

communication would be more effective between the states and OSM or any indication that the 

states would be provided an opportunity to meaningfully contribute to this extensive regulatory 

re-write. In sum, OSM's offer to re-engage the states seems, at best, disingenuous. 

OSM has failed to meet its obligations under NEPA in the most fundamental way. From 

January 2011 through publication of the Dra.ft EIS, OSM conducted the :!\'EPA process for this 

rule for more than four years under a veil of darkness, completely ignoring any need for 

transparency or to consider opinions other than its own. This contravenes Council on 

Environmental Quality (CEQ) regulations addressing cooperating agency status,33 which 

specifically implement the NEP A mandate that federal agencies responsible for preparing NEP A 

30 See, November 23, 2010, July 3, 2013, and February 23, 20151etters, attached hereto and incorporated herein by 

reference collectively as Exhibit 2. 

" See, various stlltes' letters, attached hereto and incorporated herein by reference collectively as Exhibit 3. 12 See, 1017/15 letter from OSM, attached hereto as Exhibit 4. 

"See, 40 C.F.R. §§ 1501.6 and 1508.5 

8 
29 


Insert offset folio 21 here 98945.021

analyses and documentation do so "in cooperation with State and local governments" and other 

agencies with jurisdiction by law or special expertise. 34 It also contravenes the interpretation of a 

lead agency's duties with respect to cooperating agencies made by the courts. As the U.S. 

District Court for the District of Wyoming has held in a case involving another bureau of the 

Interior Department: 

The purpose of having cooperating agencies is to emphasize agency 

cooperation early in the NEPA process. 40 C.P.R. § 1501.6 (2004). 

Federal agencies are required to invite the participation of impacted states 

and provide them with an opportunity for participation in preparing an 

EIS. 40 C.F.R. § 1501.7 (2004). "When a federal agency is required to 

invite the participation of other governmental entities and allocate 

responsibilities to those governmental entities, that participation and 

delegation of duty must be meaningful."35 

Cooperation must be meaningful, not perfunctory, as OSM' s treatment of the states was during 

the brief time it shared even limited EIS information in the fall of 2010. The cooperation 

certainly cannot be non-existent, as it was from January 2011 through publication of the Draft 

EIS, when OSM conducted the NEP A process for the Stream Rule for more than four years by 

itself in secret. Transparency has been totally absent in this process. The only opinions 

considered beyond those of OSM senior management were those OSM paid contractors to 

render, without the benefit of review, comment or challenge by long-term state regulators who 

were ready, willing, and able to participate. This is fatal to this EIS and rulemaking. 

The need for intimate state involvement in the EIS process for the Stream Rule is even 

greater than it would be in other NEPA scenarios, because OSM is undertaking a comprehensive 

re-write of a regulatory program that, by and large, it does not operate on a day-to-day basis. 

Since OSM finished approving state applications for SMCRA primacy in 1983, the states have 

amassed 766 years of combined experience as the frontline regulators under SMCRA's 

permanent regulatory program. In comparison, OSM has only 34 years of combined experience 

as a frontline regulator in this time, mostly through its operation of a federal regulatory program 

in Tennessee, a state t!J.at produces only 0.08% of the nation's coal.36 In the history of SMCRA's 

permanent regulatory program, OSM has essentially been relegated to the role of backseat driver, 

second-guessing difficult regulatory decisions the states must make in the heat of the moment 

every day. The absence of the important "hands on" perspective of the state agencies that 

actually carry out the regulatory program on a daily basis is painfully obvious throughout the 

proposed rule, the Draft EIS, and the Draft RIA. 

In conclusion, the proposed Stream Rule is illegal in several respects. It subverts federal 

statutory authority, and it upsets the balance Congress intended to create between environmental 

protection and increased coal production. It also eliminates exclusive state jurisdiction and is 

34 See, Memorandum for the Heads of Federal Agencies dated Janlllll)' 30, 2002 entitled "Cooperating Agencies io 

Implementing the Procedural Requirements of the National Environmental Policy Act'' 35 International Snowmobile Mjrs. Ass'n v. Norton, 340 F.Supp.2d 1249, 1262 (D. Wyo., 2004) (citations omitted) 36 Tennessee produced 839,000 short tons of coal out of the total of999,651,000 short tons produced io the Unites 

States as a whoie io 20 i4. See, http://www.eia.gov/coal!productionlquarterly/pdf/0121144q.pdfat page 3. 

9 
30 


Insert offset folio 22 here 98945.022

teeming with conflicts with federal and state clean water laws. Beyond these insurmountable 

legal problems, it is also ill-conceived. 

The consequences of OSM's refusal to include experienced state regulatory agencies in 

the development of both this rule and the RIA and EIS are present on every page. OSM began 

this process with only pro forma inclusion of states, and then spent almost five years entirely 

excluding them. This violates NEPA. By allowing only 91 days for co=ent on this massive 

(more than 3000 pages) re-write of SMCRA's core regulations, OSM has arbitrarily and 

capriciously subverted the purposes of the federal Administrative Procedures Act and SMCRA 

itself. 

Therefore, WVDEP wholeheartedly believes OSM should withdraw this rule and 

abandon this rulemaking effort. 

10 
31 

The CHAIRMAN. Thank you, Mr. Huffman. 

Mr. Hecker, welcome. 

STATEMENT OF JIM HECKER, ENVIRONMENTAL 

ENFORCEMENT DIRECTOR, PUBLIC JUSTICE 

Mr. HECKER. Chairman Murkowski and members of the Committee, thank you for the opportunity to testify about OSM’s proposed Stream Protection Rule. 

For the past 17 years I have litigated mountain top mining cases 

on behalf of environmental groups in Federal Courts in the Appalachia region. The cases have focused on the harm to streams 

caused by valley fills and mine runoff. I believe that a stronger 

stream protection rule is needed. 

The existing rules for protecting streams are over 30 years old. 

They do not incorporate the best available science. They are not 

preventing serious, persistent and unmitigated environmental 

harm. In Appalachia two of the most serious harms are stream 

burial and stream degradation. 

First, about 1,000 miles of streams in Appalachia have been buried by valley fills on mountaintop mining sites. Efforts to compensate for that loss have mostly failed. A recent peer reviewed, 

scientific study concluded that mitigation is not replacing lost or 

degraded streams or their functions. 

Second, mine drainage contains toxic chemicals like selenium 

and dissolved salts like sulfate that harm fish and aquatic life. The 

sulfate and dissolved salts in streams below valley fills are often 

30 to 40 times higher than the levels in un-mined streams. EPA 

found in 2009 that 90 percent of the streams below valley fills were 

biologically impaired. 

The excessive selenium is only being treated and removed at a 

fraction of mine sites. The elevated conductivity from dissolved 

salts is not being treated anywhere. This pollution will persist long 

after mining is completed. One recent study found that it has persisted for 30 years after reclamation. In short, the harms are serious and persistent, and mitigation is not working. 

Compounding this problem is the fact that several large coal 

companies have recently declared bankruptcy. One large bankrupt 

company listed a selenium treatment liability of $411 million that 

it did not plan to cover. These continuing costs for long-term treatment will fall on an already overburdened state bonding system 

that is—that cannot even handle existing problems. 

The OSM Stream Protection Rule contains four provisions that 

I support and would significantly improve the existing rules. 

First, the proposed rule requires more extensive monitoring of 

water quality and stream flow. This information is essential to establish baseline conditions and to monitor adverse affects after 

mining begins. 

Second, the proposed rule would improve two aspects of mining 

impact analysis, the requirement to avoid material damage and the 

requirement to conduct a thorough pre-permit analysis of hydrologic impacts. Existing rules do not define these requirements well. 

The proposed rule would require site specific numerical damage criteria and make those two requirements much more specific and enforceable. 

32 

Third, the proposed rule would require mine operators to restore 

both the hydrologic form and the ecological functions of streams 

disturbed by mining. Presently mines only have to restore form, 

just the structure of the stream, not the function, not the biological 

health of the stream. Restoring both will increase the chance that 

stream health is restored. 

Fourth, the proposed rule strengthens bonding requirements by 

requiring financial assurance that long term pollution discharges 

will be treated. 

There is one important area that I want to highlight where the 

proposed rule should be clarified and strengthened. The most important principle is making sure mining activities have to comply 

with water quality standards. Those standards are the foundation 

for protecting water quality under both the Clean Water Act and 

SMCRA. 

Coal mining states have often allowed mining companies to 

evade compliance with the standards for selenium and biological 

integrity. It is essential the proposed rule impose a clear requirement to comply with those standards and make that requirement 

directly enforceable by citizens. 

In conclusion, while I think that the proposed rule would be an 

improvement, it is not a complete solution to the problem. Many 

mountaintop mining impacts are permanent or of very long duration and the measure OSM is proposing would help but not completely fix that. The rule does not prevent stream burial and its 

proposed methods for reducing dissolved salts and sulfate are not 

likely to be successful. 

The best solution is not filling or mining through streams in the 

first place. 

Thank you. 

[The prepared statement of Mr. Hecker follows:] 

33 


Insert offset folio 23 here 98945.023

STATEMENT OF JIM HECKER 

ENVIRONMENTAL ENFORCEMENT DIRECTOR, PUBLIC JUSTICE 

BEFORE THE SENATE COMMITTEEE ON ENERGY AND NATURAL RESOURCES 

REGARDING OSM'S PROPOSED STREAM PROTECTION RULE 

October 27, 2015 

Chairman Murkowski and members of the committee, thank you for the opportunity to 

testify about OSM's proposed Stream Protection Rule. 

I have been a public interest attorney for 35 years and the Environmental Enforcement 

Director at Public Justice for the last 25 years. Public Justice is a national public interest law 

firm with offices in Washington, D.C. and Oakland, CA For the past 17 years, I have litigated 

mountaintop mining cases on behalf of environmental groups in federal courts in West Virginia, 

Kentucky and Virginia. Some of these cases were citizen suits to enforce permit requirements. 

Others sought judicial review of agency permitting actions. The cases have focused on the harm 

to streams caused by valley fills and mine runoff I have analyzed scores of water discharge 

permits, valley fill permits, and mining permits. I have also co-chaired trials in federal court 

where expert biologists have testified in detail about the harm caused by mountaintop mining. 

The existing OSM rules under the Surface Mining Control and Reclamation Act 

(SMCRA) for protecting streams are over 30 years old. They do not incorporate the best 

available science. They are not preventing serious, persistent and unmitigated environmental 

harm. A new and stronger stream protection rule is needed. 

There are four major kinds of harm from coal mining. First, mine waste is dumped in 

valley fills that directly bury streams. Between 1985 and 2001, 724 miles of streams were 

buried, and many more miles have been buried since then. OSM, 2008 FEIS at IV-145. EtJorts 

to compensate for that loss have mostly failed. A recent peer-reviewed scientific study 

synthesized information from 434 stream mitigation projects from 117 permits for surface 

mining in Appalachia. That study analyzed both stream restoration and stream creation projects 

and concluded that "the data show that mitigation efforts being implemented in southern 

Appalachia for coal mining are not meeting the objectives of the Clean Water Act to replace lost 

or degraded streams ecosystems and their functions." Palmer, 2014 Study, Abstract In fact, 

"97% of the projects reported suboptimal or marginal habitat even after 5 years of monitoring'' 

!d. 

Second, mine drainage contains toxic chemicals like selenium that causes f1sh to suffer 

birth defects and reproductive failure. It also contains sulfate and other dissolved salts that 

increase stream conductivity and harm aquatic life. Streams below valley fills often have 30-40 

fold increases in sulfate concentrations and conductivity levels compared to unmined reference 

streams. EPA found in 2009 that 90% of the streams below valley fills were biologically 

impaired due to elevated conductivity. EPA, 2009 Letter at 4. West Virginia's 2014 water 

quality report found that over one-quarter of the streams in central Appalachia are impaired by 

mine drainage and violate water quality standards. WVDEP, 2014 Report at 20. The excessive 

selenium is only being treated and removed at a fraction of mine sites, and the elevated 

conductivity is not being treated anywhere. This pollution will persist long after mining is 

completed. A recent peer-reviewed study found "that highly elevated ionic concentrations may 

persist for 30 years post-reclamation and that these chemical signatures result in damaged 

aquatic communities." Pond, 2014 Study at 930. 
34 


Insert offset folio 24 here 98945.024

Third, underground longwall mines have fractured aquifers and dewatered streams. 

Fourth, recent peer-reviewed studies have found that coal mining is strongly associated with 

elevated disease and mortality rates for residents in nearby communities. 

In short, the harms are serious and persistent, and mitigation is not working. 

Compounding this problem is the fact that several large coal companies have recently declared 

bankruptcy. In its bankruptcy filing, Patriot Coal Corporation listed a selenium treatment 

liability of 411 million dollars that it did not plan to cover. In re: Patriot Coal Cmp., Doc. 1428 

at 7. These continuing costs for long-term treatment will fall on already overburdened state 

bonding systems that cannot even handle the existing backlog of water treatment problems at 

abandoned mine sites. 

OSM's proposed stream protection rule contains several provisions that I support and that 

would significantly improve the existing rules: 

I. Enhanced Monitoring Requirements. The proposed rule requires more extensive 

monitoring of water quality and stream flow in areas impacted by mining, including 

requirements to monitor for selenium, conductivity and other pollutants, as well as the presence 

of important aquatic species. This information is essential to establish baseline conditions and to 

monitor adverse effects after mining begins to ensure that mining operations do not cause 

violations of water quality standards or "material damage" under OSM's new proposed 

definition. 

2. Improved Analyses of Mining Impacts to Surface and Ground Water. Under 

SMCRA, before the regulatory agency issues a mining permit, it must prepare a "cumulative 

hydrologic impact analysis" (CHIA) to ensure that the mining operation will prevent "material 

damage" to surface and ground water outside the permit area and will minimize such damage 

within the permit area. Existing regulations do not define the term "material damage," nor do 

they provide specifics regarding what baseline data must be collected or how "material damage" 

should be assessed. The proposed rule, in contrast, includes the first-ever definition of"material 

damage", and requires CHIAs to contain enforceable, site-specific, numerical material damage 

criteria for each parameter of concern. In addition, the proposed definition of material damage 

would prevent regulatory agencies from approving any proposed operation that is predicted to 

cause subsidence that would result in the dewatering of perennial or intermittent streams. This 

regulatory change would significantly limit damage from underground "lonr,>wall" mining, which 

often causes land subsidence and stream dewatering. 

3. Restoration of Stream Functions. The proposed rule requires mine operators to 

restore both the hydrologic form and ecological functions of stream segments disturbed by 

mining, consistent with the Clean Water Act. OSM has proposed a requirement that the restored 

stream be in good biological condition, i.e. sufficient to fully support aquatic life for existing and 

designated uses, as measured by an assessment of multiple biological and chemical indicators. 

4. Improved Bonding Provisions. The proposed rule strengthens bonding 

requirements, by requiring financial assurance that long-term pollution discharges will be 

treated. Current bonding rules do not address this huge long-term problem. 

While I support these aspects of the proposed rule, there are several other important areas 

that I want to highlight where the proposed rule is too weak and should be strengthened. Other 

areas are discussed in the comments that l filed with OSM yesterday: 

I. Stream Buffer Zones. The 1983 rule prohibits mining disturbance within a buffer 

zone that extends 100 feet on either side of intermittent or perennial streams, if the disturbance 

would adversely affect the environmental resources of the stream. 30 C.F.R. 816.57(a)(J). The 

2 
35 


Insert offset folio 25 here 98945.025

proposed rule would eliminate this buffer zone and allow mine operators to mine through and fill 

an unlimited length of streams. I believe the existing buffer zone requirement should be retained 

and the direct burial and destruction of streams should be severely limited. 

2. Compliance with Water Quality Standards. Water quality standards are the 

foundation for protecting water quality under both the Clean Water Act and SMCRA. Coal 

mining states routinely allow mining companies to evade compliance with water quality 

standards. Consequently, there has been essentially no state enforcement of the narrative water 

quality standard violations caused by conductivity pollution from mountaintop mines except for 

citizen enforcement by environmental groups. A federal judge has stated that West Virginia's 

refusal to enforce this standard is "an abdication of responsibility." OVEC v. Elk Run Coal Co., 

24 F. Supp. 3d 532, 549 (S.D W Va. 2014). Since states are doing so little enforcement, it is 

essential that the proposed rule impose a clear requirement to comply with those standards and 

make that requirement directly enforceable by citizens. OSM appears to intend to impose such a 

requirement, but the language in the proposed rule should be clearer. 

3. Standard for "Material Damage to the Hydrologic Balance Outside the Permit 

Area." In the proposed rule, OSM states that material damage only occurs if mining impacts are 

sufficient to "preclude any designated surface-water use under sections 101(a) and 303(c) of the 

Clean Water Act or any existing or reasonably foreseeable use of surface water or groundwater 

outside the permit area." This standard should be strengthened in two respects to make it 

consistent with the Clean Water Act. First, OSM should define material damage to include 

violations of water quality standards. Those violations are used as the basis for listing streams as 

impaired under the Clean Water Act. OSM' s definition fails to capture and remedy all activities 

causing impaired streams, and therefore is inconsistent with the Clean Water Act. Second, the 

word "preclude" suggests that the damage must be so severe that it is impossible to fish or 

recreate in a stream. EPA interprets the Clean Water to be violated if an activity partially or 

completely eliminates an existing use, or significantly degrades the aquatic ecosystem. That 

stronger EPA standard should be used in the definition instead of a standard based on preclusion 

of an existing use. 

Finally, I would like to address the issue of OSM' s authority to promulgate the stream 

protection rule. When it enacted the 1983 rule, OSM recognized that its authority to do so 

included both sections 102 and 201 of SMCRA. 48 Fed. Reg. 30312 (June 30, 1983). Under§ 

201, the administration of SMCRA is entrusted to the Secretary of the Interior, acting through 

OSM. 30 U.S.C. § l21l(c)(l). In§ 201(c)(2), Congress empowered the Secretary to "publish 

and promulgate such rules and regulations as may be necessary to carry out the purposes and 

provisions of[SMCRA]." !d.,§ 12ll(c)(2) (emphasis added). Thus, OSM's rulemaking 

authority is as broad as those "purposes," and is not limited to the specific "provisions" in 

SMCRA. 

In § 102, Congress identified thirteen purposes of SMCRA. Id., § 1202. The first and 

fourth are intended to protect the environment. Those purposes are to "establish a nationwide 

program to protect society and the environment from the adverse effects of surface coal mining 

operations" and "assure that surface coal mining operations are so conducted as to protect the 

environment." ld., § 1202(a) and (d). The second purpose is to protect surface landowners from 

mining operations. !d., § 1202(b ). The third and fifth purposes are to ensure adequate 

reclamation, including prohibiting mining in areas where reclamation is not feasible. !d., § 

1202(c) and (e). Thus, the first five purposes are all protective in nature. The purpose of mining 

coal to supply energy appears after these and is listed sixth. Even that purpose is framed as one 

3 
36 


Insert offset folio 26 here 98945.026

that seeks to "strike a balance between protection of the environment and ... the Nation's need 

for coal as an essential source of energy." !d.,§ 1202(t). Thus, Congress' primary goal was 

environmental protection, not development of coal resources. Nat '1 Mining Assoc. v. 

Kempthorne, 512 F.3d 702, 710 (D.C. Cir. 2008) ("protecting against the harmful effects of 

surface mining ... is the primary aim of the statute."). 

OSM has broad rulemaking authority to carry out these protective purposes, irrespective 

of the more specific environmental performance standards enumerated later in the section 515. 

A rule that protects the environment from the adverse effects of mining is consistent with the 

purposes of SMCRA and therefore is fully authorized by Congress. The stream protection rule 

could prohibit all mining in streams and be fully consistent with the purposes of the Act. 

Indeed, the third purpose is to "assure that surface mining operations are not conducted 

where reclamation as required by this Act is not feasible." !d.,§ 1202(c) (emphasis added). 

Thus, this purpose authorizes a prohibition on mining in areas where reclamation has failed or is 

not likely to succeed. Reclamation plans under SMCRA can be deemed to be a failure when 

they do not "comply with applicable air and water quality laws." !d.,§ 1258(a)(9). As I have 

noted above, there are widespread reclamation failures in Appalachia. 

In addition to § I 02, § 515(b) of SMCRA lists 25 environmental protection performance 

standards applicable to surface coal mining 30 U.S.C. § 1265(b). The first thing to emphasize 

about these § 515(b) standards is that Congress explicitly characterized them "as a minimum" 

level of protection, not a maximum. That phrase appears at the very beginning of§ 515(b). !d. 

Thus, those standards provide a floor, not a ceiling, for determining what is required. 

Furthermore, section 515(a) of SMCRA provides that permits shall require coal mining 

operations to meet "all applicable performance standards of this chapter, and such other 

requirements as the regulatory authority shall promulgate." !d.,§ 1265(a) (emphasis added). 

Because Congress explicitly authorized OSM in § 515(a) to impose "other requirements," the 

performance standards in § 515(b) are not exclusive and do not prevent OSM for imposing 

additional standards. 

The § 515(b) standards most relevant to the proposed stream protection rule are those in 

paragraphs 2, I 0, 22, 23 and 24 of§ 515. 

The tenth standard requires mining operators to "minimize the disturbance to the 

prevailing hydrologic balance at the mine-site and in associated offsite areas and to the quality 

and quantity of water in surface and ground water." 30 U.S.C. § 1265(b)(10). Similarly, the 

twenty-fourth standard requires mining operators to "minimize disturbances and adverse 

impacts." Jd, § 1265(b)(24). 

Under the prior Administration, OSM interpreted the word "minimize" to be the 

maximum amount of environmental protection that it was required to provide. So long as the 

mine operator uses the best technology currently available to minimize impacts to the extent 

possible, OSM argued that its obligation to reduce environmental impacts is discharged and 

nothing further is, or can legally be, required. See 73 Fed. Reg. at 75815-16, 75824, 75849; 69 

Fed. Reg. at 1043 ("SMCRA in most cases requires the mining operation to minimize, rather 

than completely prevent, adverse environmental impacts"). OSM assumed that placing mining 

spoil in streams is acceptable so long as the amount is "minimized." OSM then concluded that 

this "minimization" standard strikes the only "balance" that Congress could have intended in 

SMCRA, and that no other alternative measures to protect the environment need be considered. 

OSM, 2008 FEIS at 11-27 

4 
37 


Insert offset folio 27 here 98945.027

This interpretation is erroneous. As I have shown above, OSM has the statutory authority 

to require environmental protection standards that are stricter than minimization. It can prohibit 

mining where reclamation is not feasible or where OSM cannot assure that the environment will 

protected from the adverse effects of mining. Congress did not rule out other measures in 

addition to fill minimization if those measures are needed to ensure protection of the 

environment. 

The second environmental protection performance standard in § 515(b) is that mining 

operations must "restore the land affected to a condition capable of supporting the uses which it 

was capable of supporting prior to any mining, or higher or better uses ... so long as such . 

uses do not present any ... actual or probable threat of water ... pollution ... " 30 U.S. C. § 

l265(b)(2). Valley fills and other mining disturbances are degrading existing uses of waters and 

causing unmitigated water pollution. 

The twenty-third standard is that mine operators must "meet such other criteria as are 

necessary to achieve reclamation in accordance with the purposes of this chapter." ld., § 

l265(b )(23). This standard authorizes more protective criteria when reclamation plans have 

failed to control water pollution and caused violations of water quality standards. 

The twenty-second standard provides, in part, that excess spoil material may not be 

placed in "springs, natural water courses or wet weather seeps" unless "lateral drains are 

constructed from the wet areas to the main underdrains in such a manner that filtration of the 

water into the spoil pile will be prevented." 1\L § 1265(b)(22)(D). The prior Administration 

relied on this provision as evidence that Congress did not intend to prohibit the placement of 

valley fills in streams. OSM, 2008 FEIS at IT-26 to II-27. 

At most, this provision "recognizes the possibility of placing excess spoil material in 

waters of the United States." Kentuckians for the Commmm•ealth v. Rivenburgh, 317 F.3d 425, 

443 (4th Cir. 1977) (emphasis added) However, that possibility is only a minimum standard for 

fill placement. It does not preclude more stringent prohibitions on fill placement that may be 

necessary to carry out the purposes of SMCRA. Section 515(a) expressly authorizes OSM to 

impose requirements that go beyond the minimum standards in § 515(b ). Furthermore, as I have 

shown above, Congress gave OSM broad authority to protect against a range of adverse etTects, 

including water pollution, hydrologic imbalance, damage to wildlife, and the infeasibility of 

reclamation. The overriding goals of SMCRA are environmental protection and effective 

reclamation of sites to their prior or higher uses. 

References 

In re: Patriot Coal Corp., Bkrtcy. Case No. 15-32450 (E. D. Va.), Doc. 1428, Objections of the 

United States of America to Debtors' Fourth Amended Joint Plan of Reorganization. 

OSM, Final Environmental Impact Statement, Excess Spoil Minimization, Stream Buffer Zones, 

OSM-EIS-34, September 2008. 

Palmer & Hondula, Restoration as Mitigation: Analysis of Stream l'vfitigation for Coal Mining 

Impacts in Southern Appalachia. Environ. Sci. Techno!. 48: 10552-60 (20 14). 

Pond, Long-Term Impacts on Macroinvertebrates Downstream of Reclaimed Mountaintop 

Mining ValleyFills in Central Appalachia. Environmental Management 54(4): 919-933 (2014). 

U.S. EPA Region 3, October 16,2009 Letter to US Army Corps of Engineers re: Spruce No. l 

Surface Mine Permit. 

WVDEP, 2014 West Virginia Integrated Water Quality Assessment and Monitoring Report. 

5 
38 

The CHAIRMAN. Thank you, Mr. Hecker. 

Mr. Parfitt, welcome. 

STATEMENT OF TODD PARFITT, DIRECTOR, WYOMING 

DEPARTMENT OF ENVIRONMENTAL QUALITY 

Mr. PARFITT. Thank you and good morning, Chairman Murkowski, Ranking Member Cantwell and members of the Senate Energy and Natural Resources Committee. My name is Todd Parfitt. 

I am the Director of the Wyoming Department of Environmental 

Quality. 

I thank the Committee for inviting the State of Wyoming to 

share our perspective on the development of the proposed Stream 

Protection Rule by the Office of Surface Mining Reclamation Enforcement, or OSM. 

In Wyoming, we manage our natural resources exceptionally well 

providing for both environmental stewardship and energy production. As our Governor, Matt Mead, has stated, ‘‘It is a false question to ask do we want energy production or environmental stewardship. In Wyoming, we must and do have both.’’ 

In August 2010, Wyoming entered into a memorandum of understanding with OSM to become a cooperating state agency in the 

NEPA process on the draft environmental impact statement that 

OSM intended to prepare in support of the Stream Protection Rule. 

OSM entered into similar MOUs with nine other states. OSM provided Wyoming and other states the opportunity to review three 

draft chapters of the EIS, two in late 2010 and one in early 2011. 

Even though the review period was exceedingly short, Wyoming 

made efforts to review the documents and provide comments back 

to OSM. 

The initial review of those early chapters was the last involvement Wyoming was provided as a cooperating agency. The cooperating agency process provided OSM an opportunity to take advantage of the wealth of knowledge residing within the states to shape 

an appropriate and well-written draft EIS and draft rule. Unfortunately, OSM chose to disengage with the states and this opportunity was not realized. 

OSM’s lack of engagement is frustrating not only because the 

MOU was not honored, but also because the lack of engagement 

since January 2011 is in direct conflict with the commitment made 

by Secretary of the Interior, Ken Salazar, in an April 15, 2011 response to the Western Governors’ Association in which he states, 

‘‘All cooperating agencies will have an additional opportunity to review and comment on a preliminary draft EIS before it is published 

for public review and comment.’’ 

This never happened. The draft EIS and draft rule were published without the opportunity for review and comment that we 

were promised. Given the failure of OSM to effectively engage with 

the states, eight of the ten cooperating states withdrew from their 

MOUs and abandoned the cooperating agency process earlier this 

year. 

While tempted, Wyoming did not withdraw from its cooperating 

agency status. Wyoming did send a letter to OSM on May 22nd expressing serious disappointment with the process and concerns that 

the state’s views were being ignored. 

39 

I received a reply on October 19, 2015. The response letter extended an invitation to review draft responses to public comments 

received on the draft EIS and rules specific to our state and region. 

I find this to be a hollow gesture given the loss of trust experienced 

during the pre-draft process. 

Wyoming did not withdraw from the cooperating agency process 

because, amongst other things, we remained optimistic that OSM 

would honor their commitment and the commitment of Secretary 

Salazar. We were also concerned about potentially losing standing 

in any legal challenges that may arise out of the faulty NEPA process. 

Wyoming has reviewed the materials distributed by OSM on July 

27, 2015 and I will share a few of our main concerns. OSM has 

used a court order and an agreement with other Federal agencies 

that were into tackling a problem in Appalachia as an excuse to 

then pose unnecessary and costly overregulation across all coal 

mining states. The proposed rule is a one-size-fits-all regulation, 

imposing nationwide standards without consideration for the fundamental regulatory, environmental, ecological or economic differences amongst the states. 

The Regulatory Impact Analysis grossly underestimates the financial impact of implementing the new standards and grossly 

underestimates the impact of the proposed rule on Wyoming and 

Federal tax revenue, understating that impact by more than $1.3 

million per year. 

The proposed rule also imposes extensive monitoring and reclamation requirements without sound scientific justification. 

In summary, the failure of OSM to engage cooperating agency 

states throughout this process is reflected in the poor quality of the 

proposed rule and inaccuracies in the draft EIS and regulatory impact analysis. OSM should withdraw the rule and work in a meaningful way with the states to put forth a more appropriate proposal. I ask the Committee for any help that it may provide in securing that outcome. 

Thank you for the opportunity to provide Wyoming’s perspective 

on these important matters. I look forward to your questions. 

[The prepared statement of Mr. Parfitt follows:] 

40 


Insert offset folio 28 here 98945.028

Good morning Chairman Murkowski, Ranking Member Cantwell, and members of the Senate 

Energy and Natural Resources Committee. My name is Todd Parfitt. lam the Director of the 

Wyoming Department of Environmental Quality (WDEQ). I thank the committee for inviting the 

State of Wyoming to share our perspective on the development of the Proposed Stream Protection 

Rule by the Office of Surface Mining Reclamation and Enforcement (OSM). In short, we are deeply 

disappointed with the development of the proposed rule and the lack of engagement by the states 

in that process. We are also disappointed in the end result 

Before I provide further detail on those concerns,! want to provide some perspective on why this 

subject matter is important to Wyoming. Wyoming is home to Yellowstone National Park, Devil's 

Tower and many more special places. Our natural resources help make Wyoming a truly special 

destination. Our citizens and visitors expect those resources to have world class environmental 

stewardship. Wyoming's abundant mineral resources also provide its citizens and the State with 

the jobs and tax revenue necessary to thrive. In Wyoming, we manage our natural resources 

exceptionally well, providing for both environmental stewardship and energy production. As our 

governor, Matt Mead, has stated, "It is a false question to ask: Do we want energy production or 

environmental stewardship?" ln Wyoming. we must and do have both. 

Wyoming is the number one exporting state of British Thermal Units (BTU) to the country, 

contributing 12% of all Btu's produced in the United States in 2013. Wyoming is also the number 

one producer of coal in the country, representing 40% of the nation's production with deliveries to 

power plants in 32 states. Wyoming's energy leadership is matched by its leadership in 

establishing and enforcing strong environmental regulations and enforcement programs to protect 

the environment that is so important to each of us who call Wyoming home. 

1 
41 


Insert offset folio 29 here 98945.029

Wyoming's dual interests in environmental stewardship and coal production is why the State has 

closely followed the development of the Stream Protection Rule from its inception. Wyoming 

supports reasonable, practicable and sensible efforts to improve stream protection. To that end, 

Wyoming was pleased when OSM reached out to states in 2010 extending an offer for us to become 

cooperating agencies in the National Environmental Policy Act (NEPA} process associated with the 

development of the proposed rule. In August 2010, the WDEQ entered into a Memorandum of 

Understanding (MOU) with the OSM to provide meaningful and timely comments on the draft 

environmental impact statement (E!S) that OSM intended to prepare in support of the Stream 

Protection Rule. OSM entered into similar MOUs with nine other states. 

The cooperating agency process provided OSM with an opportunity to take advantage of the wealth 

of knowledge that states have compiled over the past several decades implementing robust surface 

mining control and reclamation programs. That wealth of knowledge had the potential to shape the 

development of a meaningful, appropriate and well written ElS and draft rule. Unfortunately, 

because of the unwillingness of OSM to effectively engage with the states, despite the cooperating 

agency MOUs, these opportunities were not realized. 

Wyoming is very familiar with the cooperating agency process. We have served as a cooperating 

agency on numerous activities with the Bureau of Land Management This includes assisting in the 

development of resource management plans and the development of environmental impact 

statements on large scale projects. Wyoming has also served as a cooperating agency with the U.S. 

Forest Service and the U.S. Fish and Wildlife Service on several planning initiatives (most recently 

in partnership on sage grouse management), and also for the development of E!Ss for large scale 

projects. We know and understand the process and are fully aware of the staff and resource 

commitment that must be made to be an effective cooperating agency. Our past experiences have 

proven that federal agencies which actively participate in cooperating agency efforts end up with 

well informed decision documents for federal, state and local government partners. 

This is the type of relationship Wyoming expected when we entered into the cooperating agency 

MOU with OSMon August 24, 2010. Unfortunately, the OSM cooperating agency process failed to 

meet the principles established in the MOU, in stark contrast to the process Wyoming has enjoyed 

with other federal agencies over the past few decades. 

Initially, the process seemed to follow the spirit and intent of the MOU. OSM provided Wyoming the 

opportunity to review three draft chapters of the E!S: two in late 2010 and one in early 2011. OSM, 

however, provided minimal time to review those documents. Even though the review period was 

exceedingly short, Wyoming DEQ committed the necessary resources to review the documents and 

provide comments back to the OSM, while still adhering to our mandatory regulatory duties. The 

problem is that the initial review of those early chapters was the last involvement OSM allowed or 

provided Wyoming as a cooperating agency. 

Now, nearly five years later, OSM has, issued a draft EIS and draft rule spanning over 2,200 pages 

that in their own words is substantially different than the pre-drafts the states reviewed nearly five 

2 
42 


Insert offset folio 30 here 98945.030

years ago. Included are five new alternatives not seen by the cooperating states. OSM did not 

engage States or share how or if it considered the States comments and expertise. Wyoming has 

sent several letters to OSM, in addition to letters submitted by the Interstate Mining Compact 

Commission, requesting that OSM re-engage in the cooperating agency process and reiterating our 

willingness to participate. OSM disregarded these repeated requests. 

On April 26, 2015, OSM met with the cooperating agency states to update them on the status ofthe 

rule development. That meeting was just a broad overview and did not provide any opportunity for 

cooperating agencies to provide input. Those in attendance were told that the final draft E!S and 

proposed rule would look nothing like what states reviewed in 2010 and 2011. For example, OSM 

explained that it had a new contractor working on the documents and that the agency had added 

additional alternatives for consideration. Essentially, we were told we would not recognize the 

draft EIS or proposed rule as published, but were assured that they represent "much better work." 

Given the failure to effectively engage with the states throughout the development process, eight of 

the ten cooperating states withdrew from their MOUs and abandoned the cooperating agency 

process earlier this year. While tempted, Wyoming did not withdraw from its cooperating agency 

status at that time. Wyoming did send one last letter to OSMon May 22, 2015, however, expressing 

our serious disappointment with the process and our concerns that the states' views were being 

totally ignored by the federal government. OSM finally replied to that letter on October 8, 2015, 

which l received on October 19. In the letter, OSM thanked Wyoming for our prior, valuable 

contributions to the DE!S. The letter also stated the OSM values our continued participation in the 

process of developing a Final Environmental Impact Statement. Finally the letter extended an 

invitation to review draft responses to public comments received on the draft EJS and rule specific 

to our state and region. I find this to be a hollow gesture given the loss of trust experienced by 

Wyoming during the pre-draft process, including OSM's unwillingness to honor the MOU and 

engage with the states during the past five years. 

Wyoming decided not to withdraw from the cooperating agency process for several reasons. First 

we remain eternally optimistic that OSM wi!l realize the tremendous opportunity of honoring their 

commitment in the MOU with cooperating states and withdraw the draft EIS and draft rule. OSM 

should reengage with the states to develop a superior product than what has been put forth. 

Second, Wyoming is the largest supplier of coal to the country, providing 40% of the coal supply to 

the nation. We fully expect Wyoming coal to continue to be a major player in meeting the energy 

demands of the countJ:Y in the future. Finally, we were concerned that if all states pulled out of the 

cooperating agency process, states would potentially lose standing in any legal challenges that may 

arise out of the faulty NEPA process. But to be clear, the proposed rule was published without 

Wyoming ever hearing from OSM. 

To emphasize the long running frustration with the OSM process, l refer you to the testimony of the 

prior WDEQ Director John Corra before the House Energy and Mineral Resources Subcommittee on 

September 26, 2011. A copy of his testimony is attached for reference. Among the points he raised 

are: 

3 
43 


Insert offset folio 31 here 98945.031

"The OSM has used a court order and an agreement with other federal agencies that were 

aimed at tackling a problem in Appalachia as an excuse to impose unnecessary and costly 

over regulation across all coal mining states." 

e "We are unaware of any objective data, scientific or otherwise, that supports this level of 

change to SMCRA." 

These concerns, now four years old, are unchanged. Wyoming has reviewed the materials 

distributed by OSMon july 27, 2015, and we simply cannot support the proposed rule. As a 

threshold matter, OSM released thousands of pages of technical material for review and limited the 

public comment period to 91 days. There is no way members of the public could reasonably review 

the materials in that short time period and meaningfully comment on all aspects of the proposed 

rulemaking. But notwithstanding that limitation, Wyoming has prepared extensive comments on 

the portions of the proposed rule, draft EIS, and draft regulatory impact analysis (RIA) that we were 

able to review in the time allowed. Our cover letter transmitting those comments to OSM is 

attached for your reference. I'll highlight a few of our main concerns here: 

• OSM has undertaken a comprehensive rewrite of the core regulations implementing 

SMCRA, and has not limited itself to focusing on stream protection. 

• The proposed rule is a one-size-fits-all regulation that imposes nationwide standards 

without consideration for the fundamental regulatory, environmental, ecological or 

economic differences amongst the states. 

" The proposed rule fails to consider Wyoming's regulatory program and the best practices, 

including award-winning reclamation techniques, which our regulatory experts have 

developed over several decades of running the largest surface coal mining program in the 

country. 

" The proposed rule exceeds OSM's statutory authority and infringes on the authority and 

ability of states to implement SMCRA. 

• The RIA grossly underestimates the financial impact of implementing the new standards. 

The RIA estimates that the total financial impact on regulatory agencies in the Rocky 

Mountain Region (CO, WY, MT, ND), for example, to be $29,000 per year. For Wyoming 

alone, we estimate the increased cost to be closer to $550,000 per year. 

" The RIA grossly underestimates the impact of the proposed rule on Wyoming and federal 

tax revenue, understating that impact by over $1.3 million. 

'" The proposed rule imposes extensive monitoring and reclamation requirements without 

sound scientific justification. 

4 
44 


Insert offset folio 32 here 98945.032

In summary, the failure to consider cooperating agency comments in 2010 and 2011 and the failure 

to engage cooperating agencies throughout this process is reflected in the poor quality of the 

proposed rule and inaccuracies in the draft EIS and RIA. Wyoming does not believe that the 

proposed rule, draft EIS or RIA can be modi.fied, amended, or changed to overcome their many 

problems through the public comment process. OSM's only choice is to withdraw the rule and work 

with the states, regulated industry, and other members of the public to putforth a more 

appropriate proposal. l ask this committee for any help that it may provide in securing that 

outcome. 

Thank you for the opportunity to provide Wyoming's perspective on these important matters. l 

would be happy to answer any questions that you may have. 

5 
45 

The CHAIRMAN. Thank you, Mr. Parfitt. 

Mr. Quinn, welcome back to the Committee. 

STATEMENT OF HAL QUINN, PRESIDENT AND CEO, NATIONAL 

MINING ASSOCIATION 

Mr. QUINN. Thank you, Chairman. 

Good morning, Chairman Murkowski and members of the Committee. I appreciate the invitation to testify before you today on the 

Stream Protection Rule. 

I think that there is one thing clear from the testimony we have 

heard, and also from the history of this rule and what we see 

today. If truth-in-advertising laws applied to regulations, then the 

title ‘‘Stream Protection Rule’’ should be taken off the cover of this 

regulation. 

The process began focusing on a single rule called the Stream 

Buffer Zone Rule. It is four or five lines. Today we confront a thousand pages of proposed regulatory changes, changing 475 regulations, and adding more. This is over a dozen pages from the Federal Register notice containing the rule. A dozen pages simply list 

all the regulations that are proposed to be changed or added in single space in single type. That’s just the list of rules. 

This is not about stream protection at all. Many of the changes 

OSM is now attempting to make are duplicative. They show OSM 

attempting to hijack and interfere with the program missions of 

other Federal and State agencies, including the Environmental 

Protection Agency, the Army Corps of Engineers and, of course, the 

states, who have been the on-the-ground regulators for the past 30 

years for 97 percent of the coal production in this country. The rest 

of the changes reveal an agency desire to simply undo 30 years of 

regulatory history and many of which are just brazen attempts to 

amend the law itself. 

Reading the rule gives one the impression that somebody came 

into office and decided, ‘‘How would I have written the law had I 

been in Congress when it was being debated?’’ In addition, ‘‘How 

would I have decided many of the cases that have occurred under 

this Act before the Federal Courts had I been a Federal judge at 

that time?’’ 

I often hear about how this program needs to be updated. It 

hasn’t been updated in 30 years. 

This is a photograph of all, no, actually not all, but most of the 

regulatory changes over the past 25 years. This is a foot tall. 

[The information referred to follows:] 

46 


Insert offset folio 33 here 98945.033
47 

So, it is not as if this program has been stagnant for the last 30 

years. 

And, of course, the state regulatory authorities have been constantly innovating and updating their programs as we move forward. Not to mention that many regulations proposed to being 

added here relate to what EPA and the Army Corps already do on 

water quality. OSM is really trying to duplicate and interfere with 

their missions. 

When it comes to the need, a question that is often heard is, 

‘‘What is the need of this rule?’’ Over the past six years, the explanations offered by OSM have constantly changed. As each explanation has not withstood scrutiny, they’ve just rolled out another 

one. 

But one thing has been constant throughout this process. That’s 

the ever-continuing improvement on the ground. OSM’s old records 

show that 90 percent of the operations in this country operate 

without any adverse offsite impacts. In fact, as my testimony shows 

in a chart, 75 percent of the coal production occurs in states without any—their operations have no or virtually no—offsite impacts 

at all. 

So, I think, it’s an understatement to say this is not a rule designed to address a problem, rather it’s a rule that’s actually 

searching for one. 

So what will be the accomplishments under this rule? Well, from 

our perspective, there’s one thing that is certain, that’s separating 

more coal miners from their jobs. 

A study of this rule that we commissioned shows that at least 

43,000 coal miners will lose their jobs, and that total could rise as 

high as 78,000. You roll in the other jobs that depend on the coal 

industry because of services and products they sell the industry, as 

well as downstream industries that depend on the industry, and 

what it produces, that total could rise to over a quarter of a million 

jobs over time. 

This rule would also place off limits anywhere from a third- to 

two-thirds of the nation’s recoverable coal reserves. We’re talking 

about the reserves, the largest reserves of a single energy source 

in any country on the globe. 

One of the more stunning outcomes of this rule is that it would 

actually have a greater impact on underground coal mines. I say 

stunning because the original reason for the rulemaking was surface mining in three states, and SMCRA actually has the stated 

purpose to encourage underground mining. 

There is also one unintended consequence. This will, in our view, 

showcase why the agency has become increasingly irrelevant and 

unnecessary. States on the ground have been on-the-ground regulators for 30 years. In that time, on-the-ground performance improved and offsite impacts have diminished. So if there’s anything 

the agency in their proposal share in common is that they’re both 

looking for a purpose. We will just say that whatever midlife crisis 

the agency is going through, coal miners should not have to pay for 

it with their jobs. 

Thank you very much, Chairman. 

[The prepared statement of Mr. Quinn follows:] 

48 


Insert offset folio 34 here 98945.034

Testimony of Hal Quinn 

President and CEO 

National Mining Association 

before the 

United States Senate 

Committee on Energy and Natural Resources 

Hearing on the Office of Surface Mining's Proposed Stream Protection Rule 

October 27, 2015 

Good morning, I am Hal Quinn, president and CEO of the National Mining 

Association (NMA). NMA is the national trade association representing the producers of 

most of the nation's coal, metals, industrial and agricultural minerals and manufacturers 

of mining and mineral processing machinery, equipment and supplies. 

The Office of Surface Mining Reclamation and Enforcement's (OSM) so-called 

"Stream Protection Rule" (SPR) is not about protecting streams and all about protecting 

federal regulators' jobs at the expense of the jobs of our nation's energy providersAmerica's coal miners. How else does one explain a proposal lacking any purpose apart 

from duplicating and conflicting with state and federal laws that already address the 

same subjects? All of this is in the service of separating 40,000-78,000 coal miners 

from their high-wage jobs. OSM's regulatory accounting places lost coal mining jobs in 

the acceptable column because the agency believes some of those jobs will be 

replaced by new regulator and record-keeper jobs to comply with this massive burden. 

What is the Proposed Stream Protection Rule? 

What began as modest objective to address ambiguities surrounding a single 

rule for surface mines in one coal mining region has mutated into a massive rewrite of 

475 existing rules and the addition of many new ones for both surface and underground 

mines in all regions of the country. Both the additions and revisions largely hijack, and 

interfere with, the mission of other agencies under other state and federal laws. To be 

clear, this is not an exercise in aligning the SMCRA program with these other laws. The 

proposal demonstrates that OSM does not understand these other programs, how they 

work or apply to mining. As a result, OSM is sowing conflict and confusion into the 

fabric of an array of other laws and regulations that govern coal mining operations. 

Even within the confines of the Surface Mining Control and Reclamation Act 

(SMCRA), the proposal purposefully crosses lines drawn on the agency's authority and 
49 


Insert offset folio 35 here 98945.035

reach. The proposal robs SMCRA of its core federalism feature-vesting states with the 

authority and responsibility for developing and applying standards suitable to the vast 

diversity in terrain and physical conditions throughout the coal fields. Moreover, the 

proposal largely eliminates the law's distinctions between surface and underground 

mining by applying for the first time provisions that are only intended for surface mining. 

The proposal also diminishes the choices of landowners for developing and using their 

land after reclamation. It establishes OSM as a federal zoning czar by empowering it to 

dictate how reclaimed mined lands will be used notwithstanding the desires of the 

landowners. 

OSM's proposal is a text book example of an agency ignoring and frustrating the 

very objectives set forth in President Obama's Executive Order for Improving Regulation 

and Regulatory Review (Exec. Order 13563). In every respect, OSM's proposal 

purposefully defies the President's regulatory directive to: 

• Reduce burdens and maintain flexibility and freedom of choice 

• Avoid redundant, inconsistent and overlapping requirements 

• Promote predictability and reduce uncertainty 

• Specify performance objectives rather than the manner of compliance 

• Rely upon objective information 

• Promote economic growth and job creation. 

If you support these fundamental principles for sound and balanced regulations, I urge 

you to consider joining Senator Dan Coats and twenty-one of your colleagues in cosponsoring S. 1458, the "Supporting Transparent Regulatory and Environmental Actions 

in Mining Act of 2015." 

What is the Purpose or Need for this Proposal? 

Since the beginning of the SPR rulemaking odyssey six-years ago, OSM's 

proposal has been a rule searching for a problem. OSM claims now that the proposal is 

needed to reflect advances in science, mining and reclamation techniques over the past 

30 years. Yet, the SMCRA regulatory program has been continually updated over the 

past 30 years at both the federal and state level. Indeed, the program was updated in 

2008 to address key features OSM now desires to unravel. 

The claim that new science is the justification for this rule cannot be reconciled 

with the agency's reasoning when it embarked on this rulemaking in 2009. In a notice 

soliciting comments about the need for any rulemaking, new science was not 

mentioned. Rather, in responding to state and industry comments explaining the lack of 

any need for a rulemaking, OSM candidly admitted "[W]e already decided to change the 

rule following change of Administrations on January 20, 2009."1 The proposal has 

nothing to do with new science and everything to do with new politics. 

1 75 Fed. Reg. 34,667 (June 18. 2010). 

2 
50 


Insert offset folio 36 here 98945.036

OSM's claim that the purpose of the rule is to minimize adverse impacts of 

mining rings no less hollow. OSM's own annual reports show continuous performance 

improvement with 90 percent of active operations free of any adverse off-site impacts2 

In 15 states accounting for almost 75 percent of the nation's coal production, 95-100 

percent of the operations in those states have no adverse off-site impacts. 

Percentage of Mines Free of Off-Site Impacts 

100 

95 

90 

85 Q) 

QO 80 "' .... 

c:: 75 Q) 

u 

lU 70 Q. 

65 

60 

55 

50 

Source: OSMRE Annual Evaluation 

The evidence demonstrates a lack of need for this proposal and an insatiable 

appetite for destroying coal mines and putting more miners out of work. 

What will the Proposal Accomplish? 

The SPR proposal will push 40,000 and perhaps as many as 78,000, miners into 

the unemployment lines. They would join the more than 40,000 coal miners who have 

already lost their jobs since 2011-largely as a result of other unbalanced regulatory 

policies prematurely closing coal power plants. If we include the jobs at risk in sectors 

that supply products and services to the industry, as well as jobs attached to industries 

2 United States Department of the Interior. Budget Justifications and Performance Information. Fiscal Year 2016: 

Office of Surface Mining Reclamation and Enforcement. pp 30. 

3 
51 


Insert offset folio 37 here 98945.037

that rely on household consumption, the total employment losses rise to a range of 

113,000 to 281,000. 

As one might expect, OSM's projects lower job losses. However, it is important 

to note that OSM's estimates are based upon "hypothetical mines." NMA's analysis 

uses data from actual operating mines-36 mines (surface and underground) located in 

all coal regions of the country and operated by companies representing two-thirds of the 

nation's annual coal production3 NMA's analysis also shows other devastating 

economic outcomes from the proposal: 

• A 27-64 percent loss in recoverable coal reserves. The potential sterilization 

of coal resources will be substantially greater at underground mines than 

surface mines-a stunning outcome considering that: (1) the rule was 

originally intended to address surface mining in Central Appalachia; and, (2) 

one purpose of SMCRA is to "encourage the full utilization of coal resources 

through the development and application of underground coal technologies." 4 

• Annual value of lost coal production of at least $14 billion and as much as $29 

billion 

• Annual forgone tax revenue in the range of $3. 1-$6.4 billion. 

Bad policies carry bad consequences. The proposed SPR is yet another example of a 

series of unbalanced regulatory policies-ones that destroy high-wage jobs, make our 

industries less competitive and increase the cost of energy for households and 

businesses. 

If this proposal accomplishes anything, it is making a compelling case for why the 

agency is increasingly irrelevant and unnecessary. Under the watchful eye of state 

regulators with more than 30 years of actual on the ground experience administering the 

program for 97 percent of all coal production, adverse impacts have diminished. As a 

result, OSM is left grasping at the missions of rival state and federal agencies to feign 

relevance. Coal miners should not have to pay with their jobs for the agency's mid-life 

crisis. 

3 Ramboll Environ, Economic Analysis of Proposed Stream Protection Rnle (Oct. 2015) 

'30 U.S.C. § 1202(k). 

4 
52 

The CHAIRMAN. Thank you, Mr. Quinn. Thank you all for your 

comments here this morning. 

Let me start by trying to divine, a little bit better, where we are 

when we are talking about the estimate of costs and the impact to 

jobs. Both Ms. Schneider and you, Mr. Quinn, have touched on this. 

Ms. Schneider, the Interior Department estimates the proposed rule will cost industry $52 million in annual compliance. Interior 

calculates 41 to 590 coal-related jobs would actually be lost. Then 

you contrast this with what the industry is claiming which, as you 

have indicated, I think you said, Mr. Quinn, 43,000 jobs in that 

range to potentially 78,000 jobs. 

You have both ends of the table. This is a huge divergence in 

terms of numbers here. How do you reconcile what industry has 

suggested versus what Interior has suggested? 

Ms. Schneider and then Mr. Quinn? 

Ms. SCHNEIDER. Chairman, thank you for that question. 

I’ve had the opportunity to take a look at the report that was 

issued by the National Mining Association yesterday. Based on my 

review it assumes, the analysis appears to assume, that the proposed rule would prohibit long wall mining. That is not correct. 

And all of the numbers on job losses appear to flow from very conservative estimates that long wall mining would not be allowed. 

There are also a lot of estimates with respect to ephemeral, the 

impacts of ephemeral streams that, I think, are also assumptions 

that result in an extraordinary overestimate in the job losses as 

well as other impacts associated with coal production. 

The rule does not propose to do those things. And obviously, you 

know, we’ll take a closer look at the material that they provided 

and we’ll be in a position to make any clarifications. But I think 

that’s really the basis for it, the distinctions. 

The CHAIRMAN. Okay. 

Mr. Quinn, your response to that? 

Mr. QUINN. Well there are two differences between the studies. 

The OSM study actually is based on hypothetical mines. Mines 

that they actually hypothetically came up with and then they spin 

their view of what the rule means. 

Our study is based on actual mines. We went out to 36 actual 

operating mines in every part of the country, underground and surface. So it is based on actually going to the mines, talking to the 

engineers and talking to the management people about how this 

rule would apply. The ranges are there because the low range is 

what would be the least problematic interpretation of the regulations and questions. The higher one is potentially where we’d see 

subjective judgment used. And there’s often, in this regulation, 

some vague terms that will do that. 

The only thing else I will add is that I’m, and I think the industry and others will be, very skeptical of any numbers coming out 

from the agency. After all, this was an agency that fired a contractor who was the first contractor on this project because they declined to change assumptions to lower the job impacts to begin with 

on an earlier rule, which was much more modest than this rule. 

The CHAIRMAN. Let me ask another question of you, Ms. Schneider. This is the concern that I have heard expressed coming from 

folks in Alaska. Under the proposed rule, a mine permit would be 

53 

void retroactively to the date of issuance if the issuance is found 

to have been based on substantially inaccurate baseline information. What I am told is that this is absolutely frightening, that it 

brings about immeasurable liability issues and considerable uncertainty. 

Let me ask how you define the test or threshold for substantially 

inaccurate information? As you are addressing that and your understanding of and your response to the concern that this injects 

a level of uncertainty that is immeasurable and that liability issues 

are also immeasurable, know that the Governor in Alaska has indicated in comments to your office that he is concerned that the permit nullification clause may remove administrative due process 

that is afforded to operations in Alaska. So how do you respond to 

all of this notion that a permit could be void retroactively if it is 

determined it was based on substantially inaccurate baseline? 

Ms. SCHNEIDER. Senator, thank you. 

I was not aware of those concerns. I will obviously take a very 

close look at the comments that the Governor and the State of 

Alaska has supplied on the proposed rule. 

Again, we are not—we want to make sure that there are not unintended consequences, and we’ll look very closely at all of the comments that have come in when we look at the issues that you’ve 

raised. 

The CHAIRMAN. Would you not agree that when the Department 

can, in effect, retroactively act on a permit, a valid permit, that has 

been issued and you have operations moving forward, that that injects incredible uncertainty? 

Why would I, as an operator, have any confidence going forward 

if I have a Department that could basically, at any point in time, 

come forward and say, well there is substantially inaccurate information and we have not defined what substantially inaccurate information might be. It seems to me that is something that is not 

just the Governor of Alaska weighing in. I think this is an issue 

where there is genuine concern about what this actually may 

mean, and the implications going forward. 

Ms. SCHNEIDER. Senator, we’ll take a very close look at that language. I would add that in the primacy states it would be the state 

agencies, the regulatory authorities. 

The CHAIRMAN. Right. 

Ms. SCHNEIDER. That would be making that interpretation, not 

the Department. 

The CHAIRMAN. That was, I think, going to the Governor’s concern that this may remove the administrative due process that is 

afforded to the State of Alaska on this and that somehow or other 

this provision, this opportunity, for the Department to void retroactively would somehow or other usurp that. So I think that is 

something we need to look at very, very critically because this is, 

I mean, you effectively wipe everybody out. They are not going to 

move forward with—— 

Ms. SCHNEIDER. And Senator, I would say that’s certainly not our 

intent. We’ll take a very close look at those comments. 

The CHAIRMAN. Let’s go to Senator Franken. 

54 

Senator FRANKEN. Okay, well we have, obviously, wide disparities in what the effect, the judgments of the witnesses and what 

this rule would do. 

It seems to me, looking at the history of this, Mr. Huffman, you 

said that West Virginia has regulated its own mining industry 

since the 30s. Is that right? 

Mr. HUFFMAN. Sorry, I certainly would hesitate to overstate what 

we did between the 30s and 1977. We’ve been a primacy state recognized by OSM under the Surface Mining Act since 1981. Some 

regulatory issues were handled prior to that, but not as robust as 

the Surface Mining Act, sir. 

Senator FRANKEN. So now the Surface Mining Act, because I— 

SMCRA was opposed by the industry back in the 70s right? Am I 

right, Mr. Quinn? 

Mr. QUINN. Not the entire industry, but many parts of the industry, yes. 

Senator FRANKEN. Yes, vehemently. In fact, as I recall, President 

Ford vetoed it. 

Mr. QUINN. Correct. 

Senator FRANKEN. And the veto was upheld. So previous to 

SMCRA I remember visiting West Virginia and I went to Keystone, 

West Virginia where a friend of mine is and the water was black. 

Is that right, Mr. Huffman? Would you say, would you characterize the water as being black? 

Mr. HUFFMAN. I would characterize the environmental protections during that time as being minimal, yes. I can’t speak to the 

color of the water in Keystone in the 70s. 

Senator FRANKEN. Sure, sure. I can and it was black, and yet the 

mining industry was opposing this enough so that the President vetoed this legislation and the veto was upheld. So, Mr. Hecker, your 

opinion of this is that this rule is not strong enough. Is that correct? 

Mr. HECKER. That’s correct. 

Senator FRANKEN. Okay, so we are trying to protect the water 

and such, but we are trying to make sure that this industry can 

produce coal because, as Ms. Schneider said, this is an important 

industry in our country. I think we all agree with that, and it still 

is and will be for quite a while. 

How many jobs are there? How many coal miners are there in 

the industry nationwide? Coal miners? 

Mr. QUINN. Currently there’s a little over 100,000, 40,000 less 

than two years ago. 

Senator FRANKEN. Okay. And you would say this could, out of 

100,000, that it could cost 78,000, up to 78,000? 

Mr. QUINN. Over time, potentially, yes. 

Senator FRANKEN. So, three quarters of the—does that make 

sense to—I mean, there is such a wide disparity. It just seems like 

three quarters of all mining, of all coal miners, would be displaced 

by this rule. 

Mr. Hecker, you have had a lot of experience and all of you have 

experience in this industry, but I want to hear your point of view 

on this. 

Mr. HECKER. I don’t believe that’s a fair estimate. But I haven’t 

done the analysis. 

55 

Senator FRANKEN. Okay, that is fair. 

Let’s talk about the bonding. We have a mining project, very different, in Minnesota, a copper, nickel mine that is being proposed. 

People worried about if it goes south, if something bad happens 

who is going to be able to pay for it. 

Tell me about the bonding problems here in terms of companies 

going bankrupt and not being able—but they have bonded themselves, right? Does this address that, Ms. Schneider? 

Ms. SCHNEIDER. The proposed rule would strengthen some of the 

bonding requirements. The rule itself is not focused on fixing all of 

the bonding issues. We’ve seen some very serious issues develop in 

Wyoming recently with respect to self-bonding or the process of 

self-bonding allows companies to essentially guarantee their liabilities based upon the magnitude of their assets. 

Over the last five years there’s been a precipitous decline in 

stock values for a lot of these companies that have self-bonded. And 

recently Alpha Resources has declared bankruptcy. And so we’ve 

been working with the State of Wyoming in the bankruptcy court 

on that issue. There are over $400 million of liabilities associated 

with that company alone in Wyoming, as I understand it. And 

there are billions of dollars of environmental liabilities that are 

self-bonded by the agencies. This is a very serious issue that we are 

looking very closely at now in the Department, and we are going 

to be working closely with the states to make sure that the states 

have the tools they need to address these situations. 

Senator FRANKEN. Thank you and thank you, Madam Chair. 

The CHAIRMAN. Thank you. 

Senator Capito, you may proceed. I also understand you wanted 

to help introduce a witness. 

Senator CAPITO. Yes, I am going to introduce, but after his statements, Secretary Randy Huffman, who has been with the Department of Environmental Protection in West Virginia for over 20 

years. He was appointed by now-Senator Manchin, to be the Cabinet Secretary in May of 2008. He is a great West Virginian with 

three sons, and he is also a colonel who serves in the West Virginia 

National Guard. So welcome. We have seen each other on many occasions, so it is nice to see you here today. 

I think Secretary Huffman and I, we have met on more than a 

few occasions on a lot of these matters. These hit very, very close 

to home in West Virginia. We have suffered great job loss up to 

this point, and some of the numbers that I see in the studies are 

quite frightening. 

I would like to start with the similarities between Director 

Parfitt and Secretary Huffman’s statements on the state primacy 

issues, basically the confusion that is going to be coming about 

with where does the state come in? Where does the EPA come in? 

Where does the Clean Water Act come in? If the state is supposed 

to have primacy, shouldn’t the state be making the primary decisions? 

Secretary Huffman, how do you see this? You mentioned it in 

your statement. How do you see this rolling out if this rule were 

to come out as it is, in terms of trying to regulate at the state 

level? 

56 

Mr. HUFFMAN. Well, Senator, I hope I don’t butcher this. Todd 

or someone else may be able to help understand the primacy question. 

The Surface Mining Act is very different than the Clean Water 

Act in how it is regulated in this country. Under the Clean Water 

Act, the state and the EPA are co-regulators, meaning that anytime that the state is failing or if the state and the EPA have some 

disagreement, or if the EPA chooses to use discretion that the state 

didn’t use in whatever way, they can come in and take action on 

their own either in the permitting process or the enforcement process. 

The Surface Mining Act is very different. The Surface Mining Act 

operates under the idea of primacy, which means we make applications to the Office of Surface Mining with our set of rules and processes and procedures and guidelines, and the Office of Surface Mining approves or not. 

Senator CAPITO. Right. And what you said in your statement and 

also the Director from Wyoming said was that basically OSM did 

not enlist heavily with your opinions on what direction to go here. 

Mr. HUFFMAN. Well, I might. I would say that we received that 

primacy approval from OSM in 1981. There have been many program amendments, some initiated by OSM, some initiated by us, 

to change the program to what it is today. But we are the on-theground regulator. 

Senator CAPITO. Right. 

Mr. HUFFMAN. We do this every day. It’s the way the Surface 

Mining Act is designed. It’s not a criticism of OSM. They’re not 

built to do this. 

Senator CAPITO. Right. 

Mr. HUFFMAN. They’re not built to regulate. They have oversight 

responsibilities under the way this program operates. Enlisting the 

cooperation of the states would have been really the only logical 

thing to do. 

Senator CAPITO. That did not happen. 

Mr. HUFFMAN. No, it didn’t. 

Senator CAPITO. Mr. Parfitt, would you like to just quickly respond and then I want to move to another question. 

Mr. PARFITT. Yes. So under the Clean Water Act, as was mentioned, there is a differentiation. Our concern is that you would 

have this crossover with the way the rule is drafted that you would 

have confusion over who has authority. 

Senator CAPITO. Right. 

Mr. PARFITT. Over making Clean Water Act decisions. And, more 

importantly, there’s reference to the Clean Water Rule or Waters 

of the U.S. in the draft, which is problematic to us considering that 

there are 31 states that are opposing that currently. 

Senator CAPITO. Right. 

Mr. PARFITT. And it’s in litigation. 

Senator CAPITO. Right. Okay, thank you. 

We have heard a lot of talk about bankrupt coal companies. We 

are seeing it in West Virginia. We have thousands of miners who 

have already lost their jobs, and a lot are going to be laid off at 

Alpha, Patriot and others. 

57 

I cannot let this opportunity go without echoing the President’s 

statement when he was campaigning in 2008. He said if you attempt to build a new coal-fired power plant, we will bankrupt you. 

This is what has happened in our state. 

So Mr. Quinn, I would like to ask about the discrepancy on the 

jobs which obviously is an enormous concern to us, all of us, who 

have large employment in this area. Also, did you have anything 

you wanted to add in terms of underground mining and long wall 

mining? Obviously that is a large part of your study. 

Mr. QUINN. Yes, Senator. That’s why the impacts, ironically for 

this rule, are even greater for underground mining is because underground mining is more labor intensive. They are applying some 

concepts to underground mining for the first time, and then they’re 

changing the concepts in terms of how we assess and how wide of 

an area we assess, hydrologic impacts. 

So the bottom line is this is going to take longer to get permits. 

It’s going to increase the likelihood they’ll be denied. It’s going to 

create a lot of regulatory uncertainty and risk. A company is going 

to have to say when they go to expand their existing operations, 

is it really going to be worth the investment to do so with all of 

those risks at hand, not to mention the permit nullification provision that the Chairman mentioned, which is completely unlawful 

and unprecedented. 

If there’s a question about information that was provided, there 

is a process and the states, I think, use it all the time. They go 

to the operator and say, hey, give me a permit revision. We don’t 

think that information is accurate. It’s not a punitive approach 

about let’s shut you down retroactively. 

Senator CAPITO. Well, we have already seen the Administration 

retroactively cancel. 

Mr. QUINN. Yes, we have. 

Senator CAPITO. At least one major permit in our state. 

Mr. QUINN. And again, it looks like they always want to copycat 

EPA, and do their job as well. 

Senator CAPITO. Thank you. 

The CHAIRMAN. Senator Cantwell? 

Senator CANTWELL. Thank you, Madam Chair, and thank you so 

much, again, for all the witnesses being here. 

I have been following along with staff some of this discussion as 

it relates to the self-bonding issue. I don’t know if Mr. Parfitt and 

Mr. Huffman, but the State of West Virginia has revoked Alpha’s 

self-bonding status. Obviously Wyoming basically agreed in Bankruptcy Court. I think it is basically a 15 cents on the dollar agreement. Why are two different parts of the country treating this issue 

two separate ways, and Ms. Schneider do you have any comments 

on that? 

So first let them explain why they are doing this. 

Mr. HUFFMAN. Senator, it’s actually the State of Wyoming that 

has revoked Alpha’s self-bonding status, so I’m going to let him 

speak to that. 

Senator CANTWELL. Okay, West Virginia has not. 

Mr. HUFFMAN. That’s correct. 

Senator CANTWELL. Okay. 

58 

Mr. PARFITT. Okay, so with regard to Alpha, Wyoming did revoke 

the self-bond eligibility for Alpha in the spring. We followed the 

same process that OSM follows in terms of the rules for being able 

to qualify for self-bonding. In our review at that time, we made the 

decision that Alpha no longer qualified for the self-bond, and we 

had requested at that time per the rules for a replacement surety. 

In between that time frame, Alpha filed for bankruptcy, in Chapter 11. As part of that process with the Bankruptcy Court, as you 

pointed out, and I wouldn’t characterize it maybe the same way, we 

secured a $60 million super priority in the Bankruptcy Court, and 

then we did not waive the rest of the obligation for the bond, which 

was over $300 million. I’ll just point out $411 million is the amount 

of the bond requirement that exists for those two mines. 

What we did was position ourselves better than where we were 

previously which would have been at the end of the line for the entire $411 million by placing $60 million in a super priority, at the 

front of the line, for reclaiming funds. 

Senator CANTWELL. Then what would happen if those assets in 

bankruptcy were acquired in the future? How would you guarantee 

that you get your revenue? 

Mr. PARFITT. Senator, if you might repeat the questions. I’m not 

sure—— 

Senator CANTWELL. So one of my concerns—we saw this same 

play in Washington State as it related to our Sarco being bought 

by a group in Mexico and then basically leaving the U.S. taxpayer 

without the cleanup responsibility. They got to buy the assets, but 

they did not acquire any of the responsibility. 

So I was questioning. Now I like your strategy of saying let’s 

make sure we get the cleanup responsibilities and let’s get in position to get that. Now I am saying, after the bankruptcy, if their assets are acquired, how are you going to make sure that you get the 

rest of the money out of the $300 million? 

Mr. PARFITT. So Senator, if Alpha were to transition the facilities 

to another entity, they would be required to come up with a secured bond to continue the operation. I would also point out that 

the other advantage of the position that we’re in now is that Alpha 

is allowed to continue to operate, the over 1,000 jobs are continued 

to be. Over 1,000 employees are continued to be employed, and 

they have maintained their required reclamation throughout this 

whole process. They are not behind on their reclamation. They are 

still operating and reclaiming in accordance with their permit conditions. 

Senator CANTWELL. Mr. Huffman, did you have any comments? 

Mr. HUFFMAN. We are working with Alpha. Not all of their bonds 

are a self-bonding type. They have other bonding instruments in 

West Virginia. I’m not sure of the percentage. But we have two 

things to help us get those kinds of assurances. 

First of all, we’re in negotiations with them to develop a plan for 

how they will eliminate their self-bonding, and move to other bonding instruments so that we take away some of that uncertainty 

that comes up when a company fails and the only assets you can 

get are the ones that failed that can be problematic. 

The other thing that West Virginia has that’s unique is in our 

bonding program, is that that program is subsidized with a trust 

59 

fund that’s funded through a coal tax. We do actuarial studies and 

make recommendations to the legislature for increases to that tax 

in order for the fund to be capitalized, and that’s working very well 

for us. 

Senator CANTWELL. Okay. 

I see my time has expired, Madam Chair. Maybe, I could get 

from Ms. Schneider what we need to do in general on this issue of 

assurety for cleanup? That is all. For the record, that would be 

great. 

Ms. SCHNEIDER. Senator, we completely agree with your position 

that the taxpayers should not be saddled with the bill, and so we 

are looking at all possible avenues to make sure that the appropriate financial assurances are in place, looking at developing tools 

to assist the states to do just that. 

Senator CANTWELL. Thank you. 

The CHAIRMAN. Senator Daines? 

Senator DAINES. Thank you, Chair Murkowski and Ranking 

Member Cantwell, for holding this hearing today. 

I see the so-called Stream Protection Rule as yet another front 

to this Administration’s war on affordable energy and good paying 

jobs. This Administration is shutting down coal-fired power plants 

here in the U.S. They are killing good paying jobs for union workers and tribal members in my home State of Montana while stifling 

investments that could lead to innovation to make coal cleaner here 

in the U.S. 

Let’s just set the stage here for a moment. You know when you 

ask, sometimes, a kid in the city where does milk come from they 

will say the store? You ask a kid from Montana where his milk 

comes from they will tell you a cow. Similarly when a kid is plugging in their phone to charge it, if you ask him where his electricity 

comes from he might say that plug, but the reality is it probably 

comes from coal. In fact, in the United States about 40 percent of 

electricity comes from coal. In my home State of Montana, it is over 

50 percent. 

We have a Tesla charge station in my hometown of Bozeman. I 

am a big fan of innovation and technology. I am a chemical engineer. That is what I am trained in. I love technology, and what 

Elon Musk has done is amazing with Tesla. When you plug that 

Tesla into a charging station in Montana, probably in the back of 

that Tesla it ought to say, ‘‘This Tesla powered by coal’’ because 

that is where that electricity is coming from. 

As we think about the global situation, the United States consumes about ten percent of the coal in the world. This needs to be 

looked at from a global perspective. Said another way, 90 percent 

of the coal in the world is consumed outside of the U.S. 

Japan is building 43 coal-fired plants. I used to have an office in 

Tokyo. After the big quake, they had to replace their nuclear energy there in Fukushima. They are replacing it with coal-fired 

plants. 

China is building a new coal-fired plant, one every ten days, likely for the next ten years or more. 

So I think the right answer is to continue to work with the coal 

industry to encourage innovation because that will help take U.S. 

innovation technology around the world to help ensure that we proVerDate Nov 24 2008 08:00 Mar 10, 2017 Jkt 098945 PO 00000 Frm 00063 Fmt 6633 Sfmt 6633 C:\TARSHA\HEARINGS\98945\E98945.TXT E98945
60 

tect our streams and protect our air and protect, certainly, the 

overall environment in the world. 

Earlier this month a customer of Crow Tribe coal, the Crow Tribe 

are in Montana, the Sherco coal plant in Minnesota, this month announced it would need to shut down two units which would cut off 

a significant portion of the customer base for the Crow coal. I am 

on the Indian Affairs Committee with Al Franken. We talk about 

what is going on in Indian Country. 

If they lose these jobs, the unemployment rate is going to go from 

about 45 percent to north of 80 percent because they mine coal on 

the Crow Reservation. The tribe relies on these coal-fired, Midwest 

utilities for most of its non-Federal revenue and for good paying 

jobs at what they call the Absaloka Mine. 

Ironically, some of the first impacted by the President’s Clean 

Power Plan are those who can least afford it where poverty is 

rampant in places like the Crow Tribe, in places like West Virginia. 

Moreover, the Administration is doing little to facilitate domestic 

supplies on the global market as we struggle with approval for coal 

export terminals in the U.S. because some of the coal that comes 

out of Montana is much cleaner coal than coal that is in Indonesia. 

Again, looking at this globally from an environmental stewardship 

view, we should incentivize and encourage U.S. coal and U.S. coalfired plants. 

Now the Administration is trying to stop low cost energy and 

good paying jobs at the mine itself with the Stream Protection 

Rule, and still the Administration wants coal producers to pay 

more royalties through changes to evaluation and potential increases in coal royalty rates. But here is a question. Where are we 

going to replace these tax revenues when there is no more coal industry in the U.S.? 

The Administration’s efforts with the Stream Protection Rule 

seem to be a solution in search of a problem, especially to mines 

in the West. I would encourage the other members of this Committee to come out to Montana and look at the way we mine coal. 

I have been out there in our treasured landscapes. I am an avid 

elk hunter, mule deer hunter, antelope hunter, fly fisherman. We 

need to protect our landscapes and our streams. 

Our outdoor lifestyle is critical to our way of life because our outdoor industry is a $6 billion industry in consumer spending per 

year for our state’s economy, so it is important that coal producers 

are good stewards of the land. 

We have won a lot of awards on reclamation at the sites in Montana. I would encourage, again, members to come out and see it for 

themselves, what it is like after the mining is completed. Look 

what is going on with sage grouse habitat where we are mining 

coal. More wildlife enjoy the lands now than when they were there 

before the mines existed. That is a fact. Again, you are entitled to 

your own opinion, but we have to come back and look at what the 

facts are. 

Mr. Quinn, I am running out of time. But I cannot help but wonder what is the purpose of this new rule and should we be worried 

about unintended consequences, impacts on responsible mining 

going on in the Powder River Basin, especially compounded with 

61 

other assaults on this industry, its affordable electricity, and jobs 

that it supports from other angles in the Administration? 

Mr. QUINN. Absolutely, Senator. But for all states, actually, even 

eastern states that were originally supposedly the focus of this 

rule, here’s what this is an exercise in. This is an exercise in going 

back to a failed experiment of using design standards to apply nationwide. That was abandoned when we went to performance 

standards, which was what was contemplated in the act to begin 

with. Allow the states to flush it out, to apply them to the particular needs and also work with their companion agencies dealing 

with clean water, and blend it all in together. So here we have a 

nationwide, one-size-fits-all, go back to the future to these old design standards. It’s going to be problematic across the board, not 

just in the Powder River Basin. 

Senator DAINES. Thank you, Mr. Quinn. 

The CHAIRMAN. Senator Manchin? 

Senator MANCHIN. Thank you, Madam Chairman, and thank all 

of you for being here. 

I have a chart here. We are going to hold this chart up and basically show you what we are doing within America right now. 

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63 

And what he just said, you know, you are entitled to your opinion, you are just not entitled to your own facts. 

The facts are that we only have 13 states in the United States, 

this is as of 2013, that are energy independent. They are basically 

what we would call net-energy independent states, producing more 

energy than they consume. 

Look at all the states in the blue or dark blue or really dark blue 

that show how dependent they are on energy from somewhere else 

than their own state. They are not producing what they consume. 

If you start looking at that, and then you look at what would 

happen with this new rule if it goes into effect. Look at what happens now. 

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Source: EJA 2012 final SEDS data 

Total 

(all energy sources) 

Rli">mr,vinn Coal From the Coal pmrl,rinn 

Independent States Become Net 

NC GA 

IL IN 

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65 

We lose five of those states from being net-energy states. Now we 

only have eight. 

If you start looking at the type of consumption that the states 

and the people that are complaining most about not using the fossil 

or the coal that we have and trying to use it by creating more technology to use it cleaner, basically, they are consuming ten times 

more than they are producing. I do not know how we effectively operate or compete as a nation when we have so many states depending on so few states for the energy they are getting. It is just a fact. 

I mean, as we transition there should be a logical transition, not 

just a desire to say, okay, we do not like this anymore. 

So I would ask this question. What would this country look like 

if there was no production of coal for the next 90 days, just 90 

days? Just tell everybody what the country would look like and 

how many Americans would be in jeopardy if there was no coal for 

90 days? 

Mr. Quinn, and then I will go to Mr. Huffman on this rule basically because I know Randy. I have worked with him for many, 

many years. But try to do it, what would you say? 

Mr. QUINN. Well, I would say it would make a great movie but 

it, well, if you are talking about 40 percent of your electricity. 

Senator MANCHIN. The country cannot function, can it? 

Mr. QUINN. We’re talking about a major input into the steel industry. We’re talking about major industry, we’re talking about the 

whole country grinding to a halt. 

Interesting perspective on your map, Senator. I think it’s a great 

way of showing another perspective for what will happen is some 

of these blue states become even deeper blue because they are depending on the export of electricity from those red states. And so 

those get even deeper blue and more expensive in terms of their 

energy costs. And that’s what’s happening under—— 

Senator MANCHIN. Well the people who get hurt the most are the 

elderly and the poor who pay the higher prices and cannot afford 

it. 

Mr. QUINN. Absolutely. 

Senator MANCHIN. We are driving the prices to the point there 

has to be a balance. All we are looking for is that balance. 

Mr. QUINN. The diversity of our electric grid anchored by coal 

saves American consumers about $93 billion a year and reduces the 

volatility of their power bills by half. 

Senator MANCHIN. Well, here is the thing. 

Mr. QUINN. 90 days without it. 

Senator MANCHIN. Yes. 

Mr. QUINN. You can see the impact. 

Senator MANCHIN. I will go to Mr. Huffman right now. Randy is 

from West Virginia and, like you say, he is Secretary of the DEP. 

Randy, on this SMCRA rule that we have had since 1981, of all 

the things that have happened because West Virginia has taken 

the lead on some of this stuff, what is this new rule, the Stream 

Protection Rule? 

First of all, identifying what a stream is? 

Mr. HUFFMAN. Well—— 

Senator MANCHIN. What would it have in our production? 

66 

Mr. HUFFMAN. Senator, we could get into the weeds of the rule 

and the thing that’s most problematic for me as a regulator because we regulate more than just mining. We regulate all industrial activities in the state, and we are responsible for the Clean 

Water Act and the Clean Air Act. 

And what we see here and what I see is a regulator. The Surface 

Mining Act expressly prohibits establishing water quality standards, for example, because it conflicts with the Clean Water Act. 

The Surface Mining Act defers to the Clean Water Act. And, it is 

expressly written in the Surface Mining Act to do so. 

We’ve heard testimony here today talk about, and others talk 

about, establishing numeric, as an example, established numeric 

water quality standards, numbers, on these mining discharges 

under the Mining Act. It’s illegal. You can’t do it. And I mean, so 

there’s a fatal flaw, in my view, of this proposed rule before we 

ever get into the debate of whether it’s necessary or how much of 

it is necessary. 

Senator MANCHIN. How does the rule affect our State of West 

Virginia, not only just all the mining communities around the country, but our State of West Virginia because of our terrain? 

Mr. HUFFMAN. We are concerned that there’s going to be a great 

sterilization of a lot of reserves due to the inability to do long wall 

mining. And I know that’s been debated here some today and the 

mine through of headwater streams from surface mining activities. 

Those two things, I mean, you don’t have to go very far to hit something that is defined as a stream. So we’re concerned that it could 

sterilize the reserves. 

Senator MANCHIN. Basically this rule takes an awful lot of the 

resources this country has had and it has depended on over the 

years basically out of any type of production. 

Mr. HUFFMAN. Yes, we believe it does. 

Senator MANCHIN. It will affect, well I don’t mean that, we are 

already affected in our state drastically by some of these rules. 

Mr. Hecker, do you all at least look for some type of a balance 

to a transition that might be going on and realize that you just 

cannot turn it off from fossil as far as what we are doing, and the 

rest of the world is using more fossil than ever before? 

Mr. HECKER. I’m not advocating stopping the mining of coal. 

What I’m advocating is that all industries, the coal industry included, should have to meet minimum Federal floor of compliance 

with water quality standards. Currently that is not happening. 

Senator MANCHIN. Can I just have one follow up? I am so sorry. 

The CHAIRMAN. Quickly. 

Senator MANCHIN. Do you agree on the definition of streams? 

What is a stream or what would be water? What they should regulate or not regulate but basically overreaching to the point to where 

streams that do not have any activity, do not run all year long and 

maybe drainage ditches and this and that should be controlled, too, 

to where you have no ability whatsoever to operate? 

We have a challenging terrain in West Virginia. If you are saying 

that the Stream Buffer Rule, should it be an active stream with 

water in it, that has aquatic life in it and also is basically providing 

water for the citizens? There is a definition of a stream, I guess, 

there. 

67 

Mr. HECKER. I think the Clean Water Act definition should 

apply. And they’ve been well established over the years and what 

ephemeral, intermittent and perennial streams. We think all three 

types of streams as defined in the Clean Water Act should be covered under this pool. I mean that’s not an expansion. That’s just 

using existing law. 

Senator MANCHIN. Alright. 

I have follow up, but I will do it later. 

The CHAIRMAN. Senator Lee? 

Senator LEE. Thank you, Madam Chair. 

Many of my colleagues have already talked about, in great detail, 

the potentially disastrous effect of the new Stream Protection Rule. 

In Utah, one of our operators estimates that the regulation will reduce its own recoverable reserves by 30 to 50 percent in all three 

of its long wall mines, and notes that reductions of such large magnitudes would render those mines uneconomical. They would end 

up having to be shut down. Now, this Utah case study is not 

unique. It is rather illustrative of how the Stream Protection Rule 

could impact the entire coal industry. 

Estimates on how many jobs this will cost vary widely. According 

to the Administration, it is relatively low, but according to another 

study the Stream Protection Rule could eliminate between 40,000 

and 78,000 coal mining jobs nationally. 

So how did we get here? What process produced this? Well, in 

September 2010 the Utah Division of Oil, Gas and Mining entered 

into a Memorandum of Understanding (MOU) with the Office of 

Surface Mining Reclamation and Enforcement. The Memorandum 

of Understanding created a cooperative partnership between the 

two agencies regarding the preparation of the Environmental Impact Statement associated with the Stream Protection Rule. Since 

signing the MOU, however, the Office of Surface Mining has failed 

to involve the Division of Oil, Gas and Mining in the rulemaking 

process. 

For instance, although the draft Environmental Impact Statement was released in July of this year, the Office of Surface Mining 

has not contacted the Division about the EIS since January 2011. 

Furthermore, the Office of Surface Mining never allowed the Division sufficient time to review the EIS. In one particular instance, 

the Office of Surface Mining provided for the Division’s review of 

a 961 page draft chapter of the EIS, but gave the Division only five 

business days to reply. Reviewing a document of that size is, itself, 

an onerous task, but reviewing it and responding to it within a 

five-day period is really, really difficult. 

Mr. Parfitt, let me start with you. Does the State of Wyoming 

feel like it was adequately consulted during the drafting of the 

Stream Protection Rule? 

Mr. PARFITT. No. And as I’ve stated, we made several attempts 

to participate in the process. We have written letters through the 

Interstate Mining Compact Commission requesting that OSM engage with the states. And we did not, we were not given the opportunity for additional participation, like Utah, since January 2011. 

Senator LEE. Okay, so Utah was not alone in that regard. 

68 

What about you, Mr. Huffman? Does the State of West Virginia 

feel like it was adequately consulted during the drafting of the 

Stream Protection Rule? 

Mr. HUFFMAN. No, Senator. In fact, it gave the appearance that 

there was just an attempt to fill the squares as they went through 

the process so that they—because they had to enlist us as cooperating agencies. And once they did that, for four years we were just 

left out without any contact at all, even though we reached out to 

them, they never responded until after this proposed rule was published in July of this year. 

Senator LEE. So a token gesture at the outset, but not much 

after that. 

Mr. HUFFMAN. Yes, sir. 

Senator LEE. Ms. Schneider, is it the policy of the Office of Surface Mining to exclude states when drafting regulations and to 

enter into Memoranda of Understanding that it intends to violate? 

Ms. SCHNEIDER. No, sir. Back in 2010/2011 there was coordination with the states. The MOUs were entered into. During that 

process we got a lot of, as I understand it, a lot of very good comments from the various states including the need to develop a more 

regionally specific analysis. OSMRE took those comments back and 

developed a proposed rule. 

We have actually had more meetings with the states than some 

of the testimony would suggest. We met with the states back in 

April at the IMCC meeting in Baltimore. We have had meetings on 

Endangered Species Act compliance associated with stream protection with the states, provided them with a draft MOU that we’re 

working on right now. We’re meeting with the states at IMCC in 

Santa Fe today. I am aware that the director has reached out to 

a number of the states to try and continue to engage them in this 

process. I have as well. I have an open door policy. I am happy to 

meet with any state that would like to meet with me, and I would 

very much encourage the states to re-engage in this process so that 

we can spend more time working with them. 

Senator LEE. Okay, I am out of time. 

Let me just say in closing, it is nice to know that the Office of 

Surface Mining thinks that it engaged states in a meaningful way 

in this process. None of the participating states feel the same way, 

and none of the participating states share the Office of Surface 

Mining’s assessment of its own actions. 

A letter written on February 23, 2015 signed by the states of Alabama, Indiana, Kentucky, Montana, New Mexico, Ohio, Texas, Virginia, West Virginia, Wyoming and Utah stated, ‘‘in large measure 

OSM simply chose not to pursue further involvement of the cooperating states in the process in direct contravention of the states’ 

Memorandum Of Understanding with the agency.’’ I find that very, 

very troubling to say the least. 

Thank you, Madam Chair. 

The CHAIRMAN. Thank you, Senator Lee. 

Senator Warren? 

Senator WARREN. Thank you, Madam Chair. 

So we are talking about updating an old rule that was written 

to protect streams that are near coal mining and over in our work 

coal companies and their friends deny that there is a problem with 

69 

coal mining leaking filth into the streams or burying creeks in 

waste. So I want to start at that point. 

Mr. Hecker, you have spent decades working on the relationship 

between coal mining and the condition of nearby water. Based on 

your years of study can you summarize what is known about the 

impact of mining coal on nearby waters? 

Mr. HECKER. Sure, the peer reviewed scientific research shows 

three things. 

First, mountain top mining increases the surges of selenium 

which causes fish deformities and harms fishery production. In 

West Virginia alone 438 miles of streams are impaired by excessive 

selenium. 

Second, mountain top mining in valley fills increase discharges 

of dissolved salts which increase stream conductivity and cause biological impairment. Sensitive aquatic species are lost and only pollution tolerant species survive. Again in West Virginia, over 5,000 

miles of streams are biologically impaired by excessive conductivity. 

Third, as the scope of mining increases in a watershed the cumulative impacts of these two types of stream impacts also increases. 

One study, again, peer reviewed, published in a scientific literature 

recently found that a stream becomes impaired when more than 

5.4 percent of the land in a watershed is mined. Some watersheds 

in West Virginia have more than 50 percent of their land impacted 

by mining. 

Senator WARREN. Wow. So in your view, does the existing rule, 

the rule we have right now that the Department of the Interior is 

trying to update, sufficiently protect water sources? 

Mr. HECKER. No, it does not. It does not reflect any of the current science that I just spoke about like selenium and conductivity. 

Senator WARREN. Alright, so I think the science is clear on what 

you are saying here. The damage that coal mining can cause to 

surrounding waters, to the wildlife that depend on those waters, is 

well documented and it is serious. I am glad that the Administration is taking this action, although I think the rule could be improved, particularly by safeguarding areas immediately surrounding streams and making sure that water quality standards 

are actually enforceable. 

While the rule is a step in the right direction, let’s not kid ourselves about the scope of this rule, what kind of impact it is going 

to have on the coal industry. There are huge problems that this 

rule does not even try to address. 

For example, peer reviewed studies have found that surface coal 

mining is connected to higher levels of cancer, birth defects, heart 

disease and a long list of other health problems for those who live 

nearby. One researcher found that after controlling for other factors, increased mortality rates in regions with mountaintop removal translates to about 1,500 additional deaths every year. Many 

of these serious problems stem from the effect of mining on air 

quality and not just water quality. So let me ask, Assistant Secretary Schneider, does the Stream Protection Rule attempt to address the impact of mining on air quality? 

Ms. SCHNEIDER. Senator, this is a rule about water quality primarily. The Congress in 1977, after passage of the Clean Water Act 

70 

in 1972, looked at the situation and felt that more needed to be 

done. This proposed rule seeks to further the purposes of SMCRA 

as set out in that statute by Congress. 

Senator WARREN. So Assistant Secretary, I am not trying to give 

you a hard time about it other than to say there is also a problem 

with air quality and does this rule do anything about that? I am 

just talking about how limited this rule is. 

Ms. SCHNEIDER. Senator, you are right. I mean, the rule is narrowly constrained toward the water quality—— 

Senator WARREN. Okay, so this is a very narrow rule. It is not 

doing anything about air quality. 

Let me ask one more question about climate change. We know 

that coal mining and other forms of fossil fuel extraction put more 

greenhouse gases into the air which increases climate change. Is 

this proposed rule designed in any way to reduce the greenhouse 

gas impact of coal mining? 

Ms. SCHNEIDER. Senator, this is not a greenhouse gas rule. It is 

not designed for that purpose. 

Senator WARREN. Alright. 

So it seems to me that a strong stream protection rule will make 

a real difference in protecting areas immediately surrounding coal 

mining, but this rule does not cover some of the most devastating 

public health effects of mining and it does not cover climate 

change. The industry reflectively attacks even the most limited efforts to address these problems, and they are doing that with the 

newly proposed rule. But updating a 30-year old rule is the least 

of what we should be doing. It is a modest step in the right direction, but a step that still does not address some of the most severe 

health and environmental consequences of coal mining. 

I thank the Administration for taking these steps, but I urge the 

Administration to do more. 

Thank you. 

Ms. SCHNEIDER. Thank you, Senator. 

The CHAIRMAN. Senator Barrasso? 

Senator BARRASSO. Thank you very much, Madam Chairman. 

Ms. Schneider, I want to follow up on Senator Lee’s questions related to the National Environmental Policy Act, NEPA. 

NEPA requires every Federal agency to assess the environmental 

impacts that would result from its actions like approving a permit 

or issuing a new regulation. A Federal agency assesses environmental impacts in what is known as the environmental impact 

statement. Prior to issuing an environmental impact statement, a 

Federal agency is required to consult with other agencies including 

state agencies, which have special expertise with respect to the action under consideration. 

The Federal agency preparing the environmental impact statement is called the lead agency. The other agencies are called cooperating agencies. Under NEPA, the lead agency is not only required to consult with cooperating agencies, it must ensure that 

the participation of the cooperating agencies is meaningful. 

When the Office of Surface Mining began developing the so-called 

Stream Protection Rule, it identified ten state agencies as cooperating agencies. The Office signed agreements with each of these 

state agencies in which it pledged to provide them with copies of 

71 

the key or relevant documents underlined in the EIS, Administrative drafts of the EIS and a reasonable time for review and return 

of comprehensive comments. That is what you promised. However, 

between January 2011 and the issuance of the proposed rule in 

July 2015, the Office of Surface Mining did none of this. For four 

and a half years, the Office of Surface Mining shared neither drafts 

of the EIS nor documents related to the EIS. During this time, it 

engaged in no meaningful consultation whatsoever with the agencies. It ignored the states’ repeated requests for consultation, and 

in response, eight of the ten states, the agencies felt they had no 

other choice but to withdraw as cooperating agencies. 

Now, you have overseen the Office of Surface Mining since May 

2014. Why is the Office of Surface Mining allowed to make a mockery, a mockery, of its obligation under the National Environmental 

Policy Act? 

Ms. SCHNEIDER. Senator, as we’ve discussed previously, three 

chapters of the Administrative Draft EIS were distributed to the 

cooperating agencies. They were put up on a share point for them 

to access. We did receive very meaningful comments from the 

states. They were extremely helpful in developing the draft EIS. 

The draft EIS is now out on the streets. We are looking forward 

to reviewing the comments from all of the states that have come 

in on the draft EIS and moving forward with them in a more cooperative and collaborative process. I strongly believe that it’s important to engage the states. 

I personally have worked for two states in my career, for the 

State of Colorado, excuse me, the State of Florida and the State of 

Oregon, so I understand the importance of state perspectives. And 

I will commit to you that we will continue to engage the states as 

we move forward. 

Senator BARRASSO. Let’s be clear. That sharing was done before 

January 2011. I want to know where this law allows your agency 

to go dark for four and a half years, and how is this consistent with 

the President’s claim that his Administration is the most transparent Administration in history? 

Ms. SCHNEIDER. Senator, there was a lot of information provided 

to the Office of Surface Mining. They are, candidly, under 

resourced and they are trying to do the best work that they can. 

In—since 2000, I would note that they have been reduced in 

terms of FTEs by about 30 percent, so we are trying to engage as 

best we can. 

Senator BARRASSO. These seem like lame excuses to me. 

I would like to turn to the Office of Surface Mining and draft 

Regulatory Impact Analysis or the RIA. The Regulatory Impact 

Analysis estimates the cost of a rule or an industry as well as the 

Federal Government or the states. 

Office of Surface Mining states that the total annual cost of the 

Proposed Stream Rule to the states within the entire Rocky Mountain region is $29,000. 

Now Mr. Parfitt has testified. On its face he says the figure is 

laughable. He says the State of Wyoming spent more than that to 

simply read and analyze the proposed rule and associated documents, an effort that is not even remotely close to being finished. 

He goes on to say that the Office of Surface Mining grossly underVerDate Nov 24 2008 08:00 Mar 10, 2017 Jkt 098945 PO 00000 Frm 00075 Fmt 6633 Sfmt 6633 C:\TARSHA\HEARINGS\98945\E98945.TXT E98945
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estimates the impact of the proposed rule on Wyoming and Federal 

tax revenue by more than $1.3 million a year. 

Wouldn’t you agree that the Office of Surface Mining’s annual cost estimate of $29,000 for the entire Rocky Mountain region is, 

on its face, ridiculous? 

Ms. SCHNEIDER. Senator, no, I would not. 

We have used a set of highly qualified experts to develop our regulatory impact analysis. They’ve put together, I think, a very robust analysis of what the costs and estimates are going to be. Administrative costs, for example, are estimated at one cent per ton 

of coal mined on average. The analysis was peer reviewed by PhDs 

from a host of different—— 

Senator BARRASSO. Ph.D.s who have no practical experience in 

what is going on. Mr. Parfitt, I would like you to respond to that. 

Mr. PARFITT. Yes. So the $29,000 for the entire Western region 

we, as you mentioned, thought was unrealistic. We did our own assessment just for Wyoming, and estimated that it would cost 

$550,000 a year just for Wyoming alone to implement that rule. 

The other key factor is that in terms of the lost tax revenue to 

the State and to the Federal Government was estimated at 

$360,000 a year. But that did not take into account mineral royalties that are paid to the State of Wyoming and also the royalties 

that are paid to the Federal Government. So there would be an additional cost of $291,000 to the Federal Government. Also there 

would be additional costs to the program and to the black lung fee. 

Senator BARRASSO. Thank you. 

Thank you, Madam Chairman. 

The CHAIRMAN. Thank you. 

Senator Hoeven? 

Senator HOEVEN. Thank you, Madam Chairman. 

I just want to be careful here in front of my esteemed colleague 

from West Virginia. 

Senator MANCHIN. I am waiting on the second round. 

Senator HOEVEN. Wonderful, okay. 

Thank you, Madam Chairman. 

Secretary Schneider, my first question goes to why this rule is 

being applied nationally? The Office of Surface Mining has continued to frame this proposed rule as addressing environmental impacts from coal mining in the Appalachian region. So why is this 

rule being applied nationally? 

Ms. SCHNEIDER. Senator, when we look at the impacts of coal operations we see impacts in Appalachia, yes. We also see impacts in 

other parts of the country. 

SMCRA does provide that we should not develop rules that 

might result in unfair competition between the states. What we’re 

trying to do is set minimum national standards that would set a 

base. The states, of course, are free to regulate, the ones with primacy, are free to regulate on top of that if they so choose. But 

that’s the basis for why we’re choosing to develop a nationwide 

rule. 

Senator HOEVEN. So one-size-fits-all even though you have different geology and different practices and different types of mining 

in different parts of the country. That does not make sense, does 

it? 

73 

Ms. SCHNEIDER. Well, we’re very interested in looking at these 

regional differences, and I would note that we’ve received comments from 13 states on the proposals. We’re going to take a very 

close look at those. If there are appropriate regional differences 

that should be made, we’re certainly open to considering those 

sorts of distinctions. 

Senator HOEVEN. Well, I am very pleased that you said that because according to the Office of Surface Mining’s 2015 Annual 

Evaluation Report for North Dakota, the agency concluded that the 

state, ‘‘has an effective program with no issues that need corrective 

action.’’ I’ll read it one more time, ‘‘has an effective program with 

no issues that need corrective action.’’ 

It goes on to say the state has done an appropriate job of tracking and assessing reclamation success, and that it conducts the appropriate number of thorough and complete inspections. I might 

point out we are number one in the country among all states in 

land reclamation; therefore, it does not seem reasonable to apply 

this rule, and additional rules and requirements, to North Dakota. 

Wouldn’t you agree? 

Ms. SCHNEIDER. Well, what I would say, particularly with respect 

to the annual evaluations and the budget information that Mr. 

Quinn identified, those numbers are based on the existing program, 

right? So if there is an issue that would not be considered a violation of the existing program. They’re not captured by those numbers. It’s a bit of a chicken and egg sort of example. 

The selenium, I think, is a perfect example of that. Many states 

you’re not required to look for selenium. It’s not considered to be 

a violation of state standards under their existing programs. And 

therefore, the numbers that are reported to us in the annual evaluations don’t capture those as being a problem. 

But what we do know, when you look at the scientific evidence 

is that there continued to be significant problems associated with 

water quality as a result of coal mining operations. That’s why we 

think it’s appropriate to propose this rule for folks to comment on 

and for us to further evaluate. 

Senator HOEVEN. But you are open to addressing the circumstances that I have outlined where we are meeting all the requirements and acknowledged that there are differences and that 

you cannot apply a one-size-fits-all. Is that correct? 

Ms. SCHNEIDER. I think that is right. I mean we do think we do 

need to have minimum base standards so that we make sure that 

there isn’t the adverse competition that I talked about. But I do 

recognize that there are differences in geology and in terrain and 

it’s important to take those into consideration as we move forward. 

Senator HOEVEN. I think that is very important because you 

have not hosted meetings in the Western states—at least in Wyoming or North Dakota. You have had meetings in Colorado, Kentucky, Missouri, Pennsylvania, Virginia and West Virginia. So Colorado is the only Western state. All the rest are Eastern states 

since it is primarily an Appalachian region issue. 

So I want to know—are you going to then come out to North Dakota and other places before you start applying standards that 

apply for different type of mining in a different part of the country? 

74 

Ms. SCHNEIDER. Yeah. I’m happy to come out to North Dakota. 

I’ve been there previously, but I’m more than happy to come and 

take a look at how things are being taken care of on the ground 

there. 

Senator HOEVEN. And then what about the comment period? We 

had asked for a 120-day comment period, and you have only extended 30 days. What about that issue to make sure that these 

issues are addressed fairly? 

Ms. SCHNEIDER. The comment period is now closed. We’ve received over 94,000 comments on the proposed rule and the other 

materials. We think that, you know, the materials have been available for review for over, for about three and a half months now. 

We think that’s an adequate time and I think the response that 

we’ve gotten demonstrates that. 

Senator HOEVEN. Well that will depend on whether you apply 

the one-size-fits-all or in fact you are willing to work with regions 

like ours that are meeting all the requirements and even by your 

own review, doing an outstanding result, No. 1 in land reclamation 

in the country. 

So again, how do you then make sure that that is accomplished 

if you go ahead with your rule at this point? 

Ms. SCHNEIDER. Well certainly one of the things we’d like to see 

is make sure that all the states are engaged in a robust manner, 

and I would encourage all of them to become cooperating agencies 

again. I would like to commend the State of Wyoming for staying 

at the table. 

Senator HOEVEN. So your commitment is to come out and meet 

with our industry before you issue the rule? 

Ms. SCHNEIDER. Yes, sir. 

Senator HOEVEN. Alright. 

Thank you, Madam Secretary. 

The CHAIRMAN. We will begin a second round here for purposes 

of the Committee’s information. 

I would encourage you, Secretary Schneider, to do the same in 

Alaska. 

Ms. SCHNEIDER. I would be happy to—— 

The CHAIRMAN. Our USGS estimates show that over 50 percent 

of the U.S. coal reserves are in Alaska. As you know, we do not 

have the same level of operation that you might have in some of 

the other states because of our geography and our remoteness, but 

I think it speaks very clearly to some of the issues that we face as 

a state, that again, it is the geology that is different. What happens 

in Alaska is entirely different than what happens in the Powder 

River Basin or what happens out in Appalachia. I would concur 

with my colleague from North Dakota that a one-size-fits-all application just simply does not work, cannot work. 

Let me ask you, Mr. Quinn, and this is kind of along the same 

lines here in terms of recognizing the diversity that we have within 

the coal industry and recognizing some of the regional differences 

that we see. As I mentioned, the reserves, the known reserves in 

Alaska, are enormous. But, we also have issues as they relate, of 

course, to our waters and the fact that about 50 percent, actually 

a little over 50 percent, of the state is considered wetlands or jurisdictional waters. The implications there for our rule, such as this, 

75 

I think, are considerable. Are you aware of any state-specific analysis that has been conducted alongside this rule that would give 

me, as one of the two Senators from the State of Alaska, some comfort that what they have been doing within the agency shows an 

understanding and a recognition of that difference? 

Mr. QUINN. No, Senator. I cannot. I am not aware of any, particularly in Alaska. But I think the same concerns should go to any 

Senator, Senator Hoeven in North Dakota and others, because unlike our study that went actually out to the mines. They went and 

studied, and measured impacts based on hypothetical mines 

they’ve built. 

It’s nice that they’re committing now to go out to the coal states, 

but that was something they probably should have done before 

they even put pen to paper. And as you’ve heard from the states 

here and through the correspondence, they basically went into a 

four-year dark calm period and didn’t even communicate with the 

states. So no, I cannot. 

Of course, Alaska has huge challenges. We talk about the diversity of terrain and physical conditions just across the United 

States. I mean, Alaska is just a microcosm of that as well in terms 

of the weather, the physical terrain. So it’s so unique in Alaska as 

well as there, SMCRA has a requirement for a special study of 

these provisions in Alaska which this rule may have to reopen to 

all that. 

The CHAIRMAN. Well, again, when you think about this whole 

one-size-fits-all approach, I think so many of us are saying this is 

not reasonable. It is not rational. The proposed rule requires 

monthly reporting of data before you can get the permit. 

Okay, well, come and talk to me about how you are going to get 

that monthly reporting of data when several months out of the 

year, maybe more than several months out of the year, it is frozen. 

Mr. QUINN. Right. 

The CHAIRMAN. Or you are dealing with permafrost. How do you 

account for these characteristics in a state that is entirely different? Yet this is where your proposed rule, Ms. Schneider, is taking us. Again, you have indicated a willingness, and you have said 

you are open to considering distinctions with Senator Hoeven. You 

are saying it is not necessarily going to be a one-size-fits-all application. But it started out with, effectively, a rule that was directed 

toward one part of the country and now it has become this nationwide approach. I think it has all of us more than a little bit concerned. 

Let me ask very quickly, and this will be my last question, about 

how this rule is going to affect mine operators’ ability to obtain a 

permit and what it might mean just in terms of timing or delays. 

I will ask you, Mr. Parfitt, Mr. Huffman, if you have anything that 

you would like to contribute on that, your analysis in terms of what 

it is going to mean for obtaining a permit? 

Mr. PARFITT. Well, I think this gets back to the point originally— 

this was a rule that was to address issues in Appalachia. It doesn’t 

take into consideration regional differences, so the one-size-fits-all. 

And so I think it will be more complicated, as you’ve pointed out, 

in terms of collecting the baseline data. 

76 

We have a similar issue, maybe for different reasons, with 

ephemeral streams in an arid state, collecting monthly data to collect your baseline isn’t always a practical thing to do. So I think 

it would slow the process down, for sure, and it would be more costly. 

The CHAIRMAN. Mr. Huffman? 

Mr. HUFFMAN. Madam Chairman, I think that our experience 

with when the Federal Government is involved in the permitting 

process, it’s a moving target that only gets hit whenever they want 

it to be hit. And that’s the problem, I think, with the way this rule 

is drafted—it inserts the Federal agencies into the permitting process rather than just that of an oversight responsibility. I don’t 

know that we could ever land the plane if they didn’t want it to 

land. That’s just my opinion. 

The CHAIRMAN. Senator Portman came in while I was asking my 

questions and he has not yet had an opportunity to participate in 

the first round. If you would like to ask your questions? 

Senator PORTMAN. Great, thank you, Madam Chair. 

I apologize. I was at another hearing, but I really wanted to be 

here today, and I appreciate the witnesses and the testimony you 

have already given. Secretary Schneider, thank you for being here. 

I think we all agree on this panel that we need to take steps to 

protect the environment. The question is balance, and the question 

is the economy. What is the impact on jobs, in particular? 

Our concern in Ohio, of course, is that we are a state that is dependent on coal for our electricity, about 70 percent of our electricity comes from coal. We also mine coal, and we move coal. We 

see in a state that, you know, depends greatly on the coal industry 

for jobs that this will have an impact that will be very negative on 

jobs and on production. 

Your Office of Surface Mining has said the rule is going to cost 

the industry millions of dollars but also decrease coal production by 

1.9 million tons. You say it is going to cost between 41 and 590 jobs 

annually. Mr. Quinn has an analysis that shows it is going to result in 40,000 to 78,000 coal miners losing their jobs. That is a 

pretty big disparity, but even with the DOI estimate we see the impact on the economy. 

So I would just ask you this, how did you estimate your cost on 

jobs and energy production and why do your figures differ so dramatically from studies done from other independent sources? 

Ms. SCHNEIDER. Senator, thank you for the question. 

The way we handled the analysis is we engaged a series of experts as consultants to assist us with doing the work. 

I will take issue, take the opportunity to take issue, with Mr. 

Quinn’s characterization of our analysis as using hypothetical 

mines. We developed models based actually on input from the 

states that we needed to look at regional differences. And so we developed model mines to help support the analysis and look at what 

the various provisions of the rule might do and how it might 

change and affect mines that were, essentially, standard recognizing that every mine is different in, you know, even in each state 

all the mines are a little bit different. 

So we tried to standardize it so that we could have an apples to 

apples comparison across the country. We used actual data to deVerDate Nov 24 2008 08:00 Mar 10, 2017 Jkt 098945 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 C:\TARSHA\HEARINGS\98945\E98945.TXT E98945
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velop that information. So we looked at topography, geography, 

coal production by mine type, etcetera, etcetera, in developing these 

analyses. 

That is the basis of the work that the experts have done. That 

work was peer reviewed, as I mentioned before, by professors at, 

for example, the Colorado Department of Mines, etcetera. So these 

are robust economic analyses done by the consultants. 

I have had a chance to review the work that was done and issued 

by the National Mining Association yesterday. It appears as though 

that work assumes that long wall mining will stop as a result of 

the proposed rule. That is not the case and therefore the numbers 

in their report are not accurate. 

Senator PORTMAN. Well, I would like to hear from Mr. Quinn on 

this. I have been with some of our miners over the last year. Ohio 

has different kinds of mines, as you know, including long wall. I 

was down 300 feet below with some miners recently talking to 

them about the impact of this rule. 

I will tell you, I do not know about your model mines, but on the 

real mines, there is a deep concern about what is going to happen 

to them, their families, their communities and areas of our state 

that already have relatively high unemployment. 

Mr. Quinn, maybe you could talk about why there is such a disparity? 

Mr. QUINN. Well, I think you hit it right on the head, Senator. 

Actually their report does say it is hypothetical mines. Yes, they 

are modeled, the 13 models, I believe. 

Our study is based on 36 actual, real mines operating, going to 

the mines, taking the provisions and then a range of different applications from the most—the least burdensome to potentially, the 

most burdensome. So that’s why you see a range in our numbers 

on impacts of employment, impacts on value, a loss of production 

and sterilized reserves. I will also say that, I take—I’m confident 

in this study. I take comfort in our past studies. 

When the EPA mercury rule came out, EPA said it would only 

require five gigawatts of power. We had an independent analysis 

done that said 55 gigawatts. We were actually low and the Department of Energy said it’s going to be 60, 60,000 megawatts of power 

taken off. 

So we’re not prone to just overestimate for the sake of overestimating. I just think that the regulatory accounting cost and benefits at the government level of late has been very wanting and has 

proven to be very wanting as well. 

Senator PORTMAN. Yes. 

We do not have a great track record do we, not looking at the 

cumulative effect. 

The other thing that concerns me about this rule is the lack of 

coordination with Ohio. I know a number of states have raised this. 

Probably you have heard this today, but basically we feel like we 

were left in the dark, you know, for a period of four plus years 

until the rule came out. That lack of communication with the operating agencies makes it very difficult for these states. They have 

challenged the proposed rule in part because some of the definitions are unworkable, and because they believe that it superseded 

some of the state’s regulatory authority. 

78 

So my question to you this morning, Secretary Schneider, is do 

you intend to work with the states to ensure that the rule provides 

the states with adequate flexibility and jurisdiction to be able to 

implement and enforce this rule? 

Ms. SCHNEIDER. Yes I am, Senator. 

Senator PORTMAN. Are you working with my State of Ohio? 

Ms. SCHNEIDER. I would like to. 

Senator PORTMAN. We would like you to also. 

Look, my time is expired. Again, we look at this as another example of where the overreach is causing more problems for our 

economy, and specifically jobs, and electricity costs in Ohio than it 

needs to if it was done in a way that focused on the costs and the 

benefits. That is our concern with this. 

Even your own analysis shows a significant decrease in coal production, jobs lost and compliance costs. We just need to be sure we 

are using the right figures and that we are approaching this in a 

smart way. 

Thank you, Madam Chair. 

The CHAIRMAN. Senator Cantwell? 

Senator CANTWELL. Thank you, Madam Chair. 

I have enjoyed this discussion of my colleagues and their various 

states. I, too, mentioned my state and the fact that we had 250 

sites that we wanted to make sure were afforded protection of clean 

water. I always find it interesting that sometimes people go to the 

argument that states should regulate something that is regulated 

by the Federal Government that we want input, but I am pretty 

sure that the Surface Mining Control and Reclamation Act requires 

you to make sure that there has been a diagnosis and a prevention 

of material damage to the hydrological balance outside of the permitted areas. Is that not correct? That is what you are charged 

with doing? 

Ms. SCHNEIDER. Yes, Senator. 

Senator CANTWELL. And isn’t it such that the science that we are 

now looking at, I mean, that the current regulations do not basically enable the science to be dealt with? Science is telling us there 

is pollution and we have a problem and you have to fix it. You are 

required by law to do that, is that not correct? 

Ms. SCHNEIDER. Right. Well, that term is not defined by SMCRA, 

and it’s also not defined by the 1983 regulations that folks are operating under. When OSMRE actually adopted—— 

Senator CANTWELL. So basically you are out of compliance? 

Ms. SCHNEIDER. Well, what is happening is it’s almost as we 

know it when we see it sort of a standard. It’s like putting up a 

no speeding sign without putting a number. So folks don’t really 

know what causes material damage to the hydrologic balance. 

That’s why we are suggesting, as part of the proposed rule, that 

there be clear standards for what constitutes material damage. We 

think it will provide a lot of regulatory certainty for operators and 

be a much more straight forward way of doing business. 

Senator CANTWELL. But you are required to do that, to basically 

in the offset areas, ‘‘minimize disturbances and adverse impacts on 

operations of fish, wildlife and related environmental values.’’ 

Ms. SCHNEIDER. Correct. And you know, for the last 30 plus 

years we have deferred to the states. We have encouraged the 

79 

states to adopt numeric standards, and they’ve not done so. As part 

of this we are underscoring that need. 

Senator CANTWELL. But it is all about clean water, correct? 

Ms. SCHNEIDER. Correct. 

Senator CANTWELL. Okay. But the agency in this process has 

sought to incorporate the best available science in these proposed 

regulations. Is that correct? 

Ms. SCHNEIDER. That is correct. 

Senator CANTWELL. How have you done that? 

Ms. SCHNEIDER. We did a robust draft Environmental Impact 

Statement in which we sought to gather the best in scientific literature and the latest in state-of-the-art of current science, and 

that is reflected in our analysis. Obviously we’re taking comment 

on that. If there are studies that have not been included we hope 

that they are included as part of the comment process. 

Senator CANTWELL. I mean my understanding is that there was 

a completed literature review of science of headwater streams and 

published a report summarizing the findings of more than 1,200 

peer reviewed articles. 

Ms. SCHNEIDER. That’s correct. 

Senator CANTWELL. So, for example, one study found the adverse 

impacts from surface and underground mines on water quality in 

the Appalachian streams extended to an average of 6.2 miles downstream from the mine. Those are the kinds of reports, right? So basically, your analysis based on science was about categorizing the 

mining impacts, how far downstream they went? 

Ms. SCHNEIDER. Right. I mean what we’re seeing is that existing 

regulations are not addressing the impacts. We’re still continuing 

to see adverse impacts associated with mining operations. It’s one 

of the reasons Mr. Hecker is still in business. 

And you know, we think it’s important that we have appropriate 

balance, but that we make sure that the work that is being done 

to mine coal in this country is being done in as environmentally responsible manner as is possible. 

Senator CANTWELL. But it is all based on science? 

Ms. SCHNEIDER. It is all based on science, that’s correct. 

Senator CANTWELL. Okay. 

So I think to my colleagues, I know that they are concerned 

about the impacts in their state, but we also have to be concerned 

about the impacts in their state and it has to be based on science. 

I don’t know what else we can base it on. It has to be based on 

science. 

Thank you, Madam Chair. 

The CHAIRMAN. Senator Portman, did you have any further questions? 

Senator PORTMAN. No. 

The CHAIRMAN. Senator Manchin? 

Senator MANCHIN. Thank you, Madam Chairman. 

Ms. Schneider, has any improvement been made at all? Do you 

see any improvement made over the last 30 years? 

Ms. SCHNEIDER. I think there have been improvements made. I 

think what we’re saying is based on our review of the science and 

on the ground situations that we’re aware of that further improvement can and should be made. 

80 

Senator MANCHIN. Well, I think your only report states that mining impact performance shows continuous performance improvement with 90 percent of active operations free of any adverse offsite impacts. 

Ms. SCHNEIDER. Well as I mentioned those reports are based on 

data that the states provide to us. They’re based on the state’s existing programs, so they don’t take into account—violate or—issues 

that are occurring on the ground that would not be viewed as violations under the existing state programs. 

So it’s, you know, it is a little bit of this chicken and egg sort 

of a situation. What we do know is that the science shows that 

there continue to be adverse impacts notwithstanding the state 

programs that we have on the books. 

Senator MANCHIN. Improvements have been made. I would say 

I know that Senator Warren’s questioning and Mr. Hecker’s response basically has West Virginia in the crosshairs. I guess we are 

the ones. We are the poster child right now. 

Secretary Huffman, I think you have been on the front lines for 

quite some time. 

I would ask Mr. Hecker, Ms. Schneider and all that, if you lived 

in West Virginia, would you think there is a war on coal? If you 

lived in West Virginia and your family or your community basically 

is trying to make improvements and trying to do things with what 

they are supposed to be able to do what is reasonable, would you 

think that there is a continued attack of war on coal? 

Mr. HECKER. No. I think—— 

Senator MANCHIN. You do not think there is a war on coal in 

West Virginia? 

Mr. HECKER. The effort is to make the coal industry like every 

other industry, satisfy the minimum Federal requirement of compliance with water quality standards. And that is what my litigation—— 

Senator MANCHIN. Any improvements West Virginia—— 

Mr. HECKER. There are widespread violations of those standards 

and the rule would level the playing field so the coal industry has 

to meet the same standards that other industries do. 

Senator MANCHIN. But I am saying have you not seen any improvements whatsoever? 

Mr. HECKER. Pardon me? 

Senator MANCHIN. Have you seen any improvements in water 

quality? 

Mr. HECKER. Sure there have been improvements. The problem 

is that the standards don’t match the impacts on the ground. Selenium and conductivity are unregulated. And they weren’t even—no 

one was even aware of them until we brought an action to require 

an EIS. 

In 2003 the scientists went into the field and they said, look, all 

these problems were here we didn’t know about. And so since then 

the science has just exploded. And now there’s a consensus that 

these are the worst issues, said worst harms. 

Senator MANCHIN. Secretary Huffman, basically as they have 

identified what they consider to be the gravest problems that we 

have, how have we identified that in West Virginia, and what acVerDate Nov 24 2008 08:00 Mar 10, 2017 Jkt 098945 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 C:\TARSHA\HEARINGS\98945\E98945.TXT E98945
81 

tions have been taken? Is it even feasible to meet the standards or 

requests they are requiring? 

Mr. HUFFMAN. Well there are continuous improvements being 

made. Those improvements are made over time as a result of the 

agency, through science, through even the impacts of third party 

lawsuits. We make adjustments to the program. 

Selenium is a water quality standard, and it is what it is. It’s the 

toxicity and the damage being caused by selenium has been—is 

overstated and it’s being used inappropriately to express damages 

in the coal fields that simply are not occurring. And that’s an example of the dishonesty in this debate. 

It’s hard to get to a place where the coal miner on the ground 

who feels like his job or whose job has been impacted, it’s hard to 

look him in the eye and convince him that there’s not some deliberate action against him when he knows that that selenium is not 

killing anything. So there’s not a—it’s frustrating to not get a—to 

not be able to make a practical application. 

So anytime, so now anytime that these issues come up on us 

from outside of our state, there’s a tendency to resist everything. 

It’s hard, it’s just difficult to have that honest debate about what 

really is wrong. 

Senator MANCHIN. You think it has all been because of a target 

on mountain top mining? 

Mr. HUFFMAN. I think because of what mountain top mining is 

and what it represents and what people believe it to be, I think 

that that was the target, initially. Unfortunately, the other types 

of coal mining are suffering the consequences. 

Senator MANCHIN. Being from West Virginia, I know you were 

born and raised the same place I was born and raised, it is hard 

not to believe there has not been a war on coal. Do you see that, 

basically, a lot of these regulations that are coming out that are 

targeting our state? 

Mr. HUFFMAN. Oh yes, absolutely. 

We’re, you know, being in Appalachian highlands, the highest of 

the Appalachian highlands, and that’s—these rules are focused on 

that region, absolutely. 

Senator MANCHIN. So you see that. 

I mean, the push back that we get and just trying to find it reasonable. They make it look like that in West Virginia we don’t care 

about water or don’t care about air. I have not found a person in 

my state that does not care, that’s not just the environmentalists 

that wanted the clean air and clean water, but also they want to 

have a balance to where they can make a living and provide the 

energy. 

It would be different if the country did not need it. The country 

is depending on what we do. 

Mr. HUFFMAN. It’s very insulting because our Federal counterparts do, I think, believe that we don’t get it. We absolutely do get 

it, and that’s part of the frustration in dealing with—— 

Senator MANCHIN. Well, it is just beyond me. Understanding how 

this country, Ms. Schneider and Mr. Heckler, all of you believe that 

you can go without the resources that we have been providing and 

we are trying to do that in a better way. We really are. We just 

82 

cannot hit a moving target, and the technology is not there to do 

what you want done. 

I think that has been proven, but you all still double down. You 

go to court and you fight it out in court and it just exacerbates the 

whole problem. No one seems to want to come to a balance where 

we can provide between the environment and the economy, and I 

think that’s our biggest frustration. 

The CHAIRMAN. Senator Manchin, thank you. 

We will go ahead and conclude today’s hearing. We have votes 

that have started, as I mentioned. 

You mentioned the word, Senator Manchin, several others have 

as well, that what we are seeking to do is try to find a balance. 

I think we recognize that coal is our most affordable source of energy power in this country, has been for decades and still remains 

so in much of the country. It is not for lack of resource that we are 

not accessing it. It is because of what we are seeing with regard 

to many of the regulations. We recognize that natural gas and 

those low prices are having an impact. 

I think part of our role here as an energy committee is to make 

sure that as we are accessing our energy resources, as we are acting as that energy super power, which I know, we are as a nation, 

we need to act as one. How do we do so in a way that is responsible, that does achieve the balance between accessing resource, 

providing for the jobs and the economic benefit while also showing 

stewardship for our land, our air and our water? 

I think that we can do that. I do not think that these are mutually exclusive goals, but I think that we need to be careful as we 

try to advance regulations with an assumption that what works in 

one part of the country is equally applicable in others. I think we 

need to make sure that regulations that we impose are rational 

and reasonable, and are not onerous in their overall impact. 

I know, Ms. Schneider, that a bipartisan group of some 33 Senators has asked the Office of Surface Mining to extend the public 

comment period by 120 days. Before we close, I would ask that you 

reconsider opening the comment period to account for a more complete set of comments. I think the fact that you have 33 members 

making the request is pretty significant. I would certainly hope 

that the Office of Surface Mining and you, yourself, would look to 

that and act accordingly. 

Ms. SCHNEIDER. Thank you, Senator. 

Certainly we take the views of Members of Congress very seriously into consideration. We do think that the almost three and a 

half months to review the rule and provide comments is sufficient. 

We have received over 94,000 comments on the rule, and so it 

would be very difficult for us to reopen the comment period at this 

time. 

The CHAIRMAN. I would suggest that you give due consideration 

to those 33 members and perhaps others who have not signed it. 

As Mr. Quinn pointed out, this is not just a couple pages of regulation. This is extraordinary in its size and its scope. Again, the impact on people around the country from Alaska to the East Coast 

is considerable. So I would appreciate that courtesy. 

Senator CANTWELL. Not to create a debate here at the end of our 

hearing because I do think we got a lot of information out there, 

83 

but I think the counter to that is how long have we waited for 

them to actually implement what is science and an inadequate law 

to give definition to what needs to be there for hydraulic impact. 

There are many places in my state where we have seen the impacts 

of this and we have some of the most beautiful streams in the 

country. We want them to be cleaned up, and we want them to be 

protected. So I guess the counter to that would be how long have 

we waited already? I think we have waited a long time to get clean 

water protected under this act. 

I thank the Chair for allowing me to make that comment. 

The CHAIRMAN. With that, the Committee stands adjourned. 

Thank you. 

Ms. SCHNEIDER. Thank you, Chairman. 

[Whereupon, at 11:12 a.m. the hearing was adjourned.] 

(84) 

APPENDIX MATERIAL SUBMITTED 

85 


Insert offset folio 40 here 98945.040

U.S, Senate Committee on Energy and Natural Resources 

October 27, 21H5 OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to the Honorable Janice Schneider 

Questions from Chairman Lisa Murkowski 

In2009, OSM entered into an MOUwith EPA and which 

if the Courts rejected OSM's 2008 rules, OSM would simply issue 

guidance clarifying the 1983 regulations. Despite the clea!·language in the MOU 

and a court order on the 2008 regulations not being ruled until20l4, OSM has been 

Wlllrk:!nQOU a new rule for six years. SMCRA plainly states that OSM is granted 

>nl1ti111tritv to promulgate rules as 11U{}' be necessary to carry out SMCRA. Given that 

the agencies that t•egulate water (USACE and EPA) wen: supportive of existing 

regulations remaining while being better exphlined, and many states have annual 

inspection reviews by OSM that document excellt~nt results in zero to little off-site 

impact, "continued improvement" under the existing t·egutations, and the like, whnt 

spedficnlly m!cessitated the prot>oscd rule? 

Response: The 2009 M.OU entered into by the Department of the Interior, EPA and the 

U.S. Army Corps of Engineers identified both short-term and long-term commitments for 

each agency. The MOU specifies that, at a minimum, the Department \Vill consider 

"[r]evisions to key provisions of current SMCRA regulations, including the Stream 

Buffer Zone Rule and Approximate Original Contour (AOC) Requirements.'' Section 

l02(a) ofSMCRA states that one ofthe purposes of the Act is to "establish a nationwide 

to protect society and the environment from the adverse effects of surface coal 

op,erations;" and under section 102(1') to "strike a balance between protection of 

the environment and agricultural productivity and the Nation's need for coal as an 

essential source of energ_y." 

To comply with the MOU, the Department reviewed existing OSMRE regulations under 

SMCRA and determined, among other things, that coal mining operations continue to 

have adverse impacts on streams, fish, >Vildlil"C and related environmental resources, 

dt'Spite the enactment of SMCRA and the adoption of Federal regulations implementing 

the law more than 30 years before. Further, based upon all ofthe available infmmation, 

OSMRE determined tl1at development of a comprehensive, nationally-applicable stream 

protection nile would be the most appropriate and effective method of achieving the 

purposes and requirements of SMCRA, while maintaining a level playing field among the 

states. 

!l.!!S!:ll!.!L:~' Given the States' assertion of lack of involvement in the resulting rule, 

are you confident of OSM.'s appt•opriate adherence to coordination and 

consideration of stnkeb.oldel' input pursuant to the Administratin Procedure Act 

and the National Environmental Policy Act'! 

Re,~ponsll: Yes. The rulemaking process began with an Advance Notice of Proposed 

Rttlernaking, stakeholder outreach meetings, nine public scoping meetings and two public 

comm.;;at '\)eriods on the scoping for the draft environmental impact statement (DEIS), 

The seoping process generated over 20,500 comments, including input from the states. A 
86 


Insert offset folio 41 here 98945.041

U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to the Honorable Janice Schneider 

number of state agencies, including state SMCRA regulatory authorities, participated as 

cooperating agencies in the early development of the DEIS for the stream protection rule. 

These states provided meaningful input and comments that were used to prepare the 

DEIS. In addition, the DEIS was made available for all cooperating agencies and the 

public to review and provide input on during the public comment period. The public 

comment period was extended to provide interested parties, including the states, more 

time to review and comment on the DEIS. OSMRE conducted six public hearings in 

Colorado, Kentucky, Missouri, Pennsylvania, Virginia and West Virginia during the 

public comment period. Ultimately, OSMRE received approximately 95,000 comments, 

including hundreds of pages of comments from state SMCRA regulatory authorities, on 

the DEIS and the proposed stream protection rule. Also, on October 8, 2015, OSMRE 

offered all former cooperating state agencies the opportunity to reengage as cooperating 

agencies in the development of the final EIS. 

We have continued to engage in discussions with the state SMCRA regulatory authorities 

to better understand their comments regarding the proposed stream protection rule. In 

addition to meetings with the state SMCRA regulatory authorities in conjunction with 

Interstate Mining Compact Commission meetings, I and/or OSMRE officials either met 

with or held telephone or video conferences with Wyoming on November 20, 2015, and 

January 8, 2016; Ohio and Maryland on December 2, 2015; Oklahoma on December 3, 

2015; Indiana and Pennsylvania on December 10, 2015; Virginia on December 11, 2015; 

Illinois on December 16, 2015; North Dakota, Utah and Montana on December 17, 2015; 

Alaska on January 14, 2016; and West Virginia on February 10, 2016. Six additional 

opportunities to meet and collaborate are scheduled in April 20 16. 

Question 3: There was a great deal of testimony that the States recommend 

discarding the entire proposed rule and starting over. This is an extreme measure 

recommended by a number of parties, including regulators. Additionally, a number 

of those requests came from states with stellar operation and reclamation 

performances as indicated by your own OSM. Given so many stakeholders have 

posited that $10M of their taxpayer dollars should be scrapped to start anew, what 

is your response to this overwhelming opposition? 

Response: Our primary purpose in proposing this rule is to strike a better balance 

between "protection of the environment and agricultural productivity and the Nation's 

need for coal as an essential source of energy." 30 U.S.C. 1202(t). OSMRE has invested 

considerable time and resources in developing a proposed stream protection rule that will 

better protect the water resources needed by current and future generations for drinking, 

recreation and wildlife from the adverse effects of coal mining, while balancing 

protection of those resources with the Nation's need for coal. State practices have helped 

shape the proposed rule, which incorporates many of the states' best practices for coal 

mining and reclamation operations. The proposed rule has been informed by and 

developed to reflect advances in science and technology. Many commenters support the 

proposed rule and encouraged us to proceed with a final rule. This rule will update 30-

2 
87 


Insert offset folio 42 here 98945.042

U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSlVPs I'roposed Stream Protection Rule 

Questions for the Record Subtnitted to the Honm·able .Janice Schneider 

year-old regulations and address important stream. protection issues in a manner 

consistent with SMCRA., while providing regulatory to operators. 

Military instaUat.ions in Alaska heavily on coat Us! belli Coal Mine 

installations witbin Alaska a total of approximately 485,000 tons of 

annually, The Army alone currently has significant coal requirements at ten of 

its installations. Did OSM reach out to the l)epartment of Defense or other relevant 

agencies tn ascertain whethe1· this rule might affect coal supplies to our 

installations and national security assets across the country? 

Kesmmse: OSMRE Is with the U.S. Army Corps of Engineers on the 

proposed stream protection rule. Given the very modest estimated impacts of the 

proposed rule {Jn coal production nationwide (a reduction of less than 0.2% according to 

the draft regulatory impact analysis). we do not anticipate any on the availability 

of coal to military installations and national assets. 

:!.!.!!5\~!!..:i!' ln your testimony, you indicated that "(e)very rechunation practice 

contained in the proposed rule has been successfully intplemented by a mine 

operator somewhere in the country." Please provide the followiug information by 

co!upleti,ng a chart as described as follows. Please list in t•ows down the vertical axis 

contained in the proposed rule." Then, in columns 

hori7ont>ll axis, can for the following information to be provided in the 

to each "reclamation practice": 

a. A citation to tbe reclamation practice in tbc proposed rule; 

b. The "mine opemtor" that bas "successfully implemented" tile practice; 

c. Contact infm•mation for that mine operator; 

d. The location in the United States where that }Waetice bas been 

"successfully 

c. The time period over which fhe practice was implemented; 

f. The definition of "success" for the implementation of the practice; and 

g. To the extent you have information concerning the cost of implementing 

the practice at that location a summary of such information and the 

source of that data. (Wit.b respect to information called for in column g, if 

you do not have iufomtation regarding cost, please complete that cell of 

the matrix with the statement thllt you do not have cost information fnr 

this tmtctice.) 

Response: A list of best practices to the ptoposed rule is attached. 

Anticipated costs of implementing the proposed rule can be tbund in the draft regulatory 

impact analysis. 

~lE.l:!!!.!.W!.' You indicated in your testimony that your agency is "keep(ing) pace 

current science" in developing this rule. While the t·ulc references scientific 

3 
88 


Insert offset folio 43 here 98945.043

U.S. Senate Committee on Enel"g)' and Natural Resources 

October 27, 2015 Hearing: OSlWs Proposed. Stream Protection Rule 

Questions for the Record Submitted to the Honor:thle Janice Sclmcidet· 

studies, which purport to support individual assertions in the rule, the studies 

teferenecd \'f'ere generally conducted in ot referencing one geographic area or 

Given the number of comments during the testimony that suggest several 

clements of the rule cannot be implemented in other regions of the country: 

a) Please provide relevant secondary studies OSM relies upon that would 

supp<wt the assertions by the agency that the studies are relevant and 

applicable nationwide. ~'or example, where tlte .Federal Register suggests 

a study in Appala.chia supported a pmiion of tbe rule, please provide 

secondary studies that demonstrate that the same findings were 

determined to be evident in other parts of mining country such as Alaska 

and Wyoming. 

ResJ>onsc: All non-copyrighted studies that OSMRE relied upon are refeiTed to in the 

proposed rule, DEIS or draft RIA and are available on www.regulations.gov. Several 

commenters provided or referenced additional studies, which we are evaluating as we 

develop the final rule and EIS. Public comments arc also available on 

vVVv'W.regu!ations.gov. 

OSMRE a! so relied on 30 years of regulatory experience, extensive coordination with 

states, and the research on best The proposed rule provides the tlexibi!ity 

needed to accommodate the of streams and conditions found across the country, 

to account for regional differences, and to accord adequate deference to state regulatory 

authorities. 

b) One of the studies J'cferenced in the rule is not readily 11vailable nor has a 

copy been furnished. Please provide a copy of tbe Environ study 

referenced at Footnote 17 of the Federal Register public:ttion of the 

proposed rule, 

Attached is a copy ofthe requested study, published in a scientific journal: 

Hall, D. Beeson, and R. Lockwood, 2014. of Stream Communities 

Following Surface Coal Mine Reelamtttion, Environment and Natural Resources 

Research, Voi 4, No.3; 2014. Available a! 

accessed 

c) Where have the mining practices (ollwr than the reclamation pt·aetices 

referenced in Question 5), which arc driven by the science ami tedmology 

referenced, been used in practice to Jn·otect streams as contemplated by 

the rule? Example: As required by the projJoscd rule, where bas benthic 

4 
89 


Insert offset folio 44 here 98945.044

U.S. Senate Committee on Energy and Natural Resources 

October 27, 2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to the Honorable Janice Schneider 

sampling been performed to measure the biological conditions of 

ephemeral streams? 

Response: With regard to the specific example mentioned in this question, attached is a 

document used in Ohio entitled "Field Evaluation Manual for Ohio's Primary Headwater 

Streams," which describes various protocols for benthic sampling and characterization of 

headwater streams, including ephemeral and intermittent streams. Also, the Forestry 

Reclamation Approach, which is used extensively in Appalachia and certain other areas 

of the country, reduces surface run-off to streams and improves site productivity. 

OSMRE is considering all comments received in response to this issue and will structure 

the fmal rule accordingly. 

As noted in the response to Question 5, we are attaching a list of examples of various best 

practices related to the proposed stream protection rule. 

Question 7: You indicated in your testimony that the proposed rule is "reasonable 

and straightfonvard." Mr. Parfitt in his testimony, as a regulator representing the 

state that produces 40% of the US coal resources, indicated that his office- with all 

of its human resources -was unable to fully respond to the rule in its entirety 

because of the enormity and complexity of the rule. Other than providing a blanket 

adjective, please iUustrate the rule's "straightfonvardness" and how mine operators 

and state regulatory agencies could rely on the rule to be straightfonvard. Please 

explain how smaller regulatory offices- offices that do not have the resources that 

Wyoming has - can interpret the rule as straightfonvard? 

Respose: In addition to modernizing 30 year old rules, the proposed rule restructures and 

reorganizes the existing rules in a more logical and user-friendly fashion. If adopted and 

implemented, the rule will enable regulatory authorities to execute their responsibilities in 

a more direct fashion. We are continuing to review comments on the proposed rule and 

will make revisions and clarifications, as appropriate, in a final rule. 

Question 8: Please provide an unredacted copy of the Office of Inspector General 

on the Stream Protection Rule that was the source of controversy between the 

Committee on Natural Resources ofthe United States House of Representatives and 

the Office of the Inspector General. (OIG Report 'Investigative Report of OSM 

Environmental Review dated December 20, 2013) (for purposes ofthis Question and 

Question 9 and 10 to follow, "the OIG Report"). If the Department of the Interior 

seeks to assert a claim of privilege related to the OIG Report or any portion of the 

OIG Report, please identify the portions of the document as to which the 

Department asserts a privilege and the basis for the assertion of privilege as to each 

such portion. 

Response: The Office of the Inspector General (OIG) report, dated December 20,2013, 

titled "Investigative Report ofOSM Environmental Review," contains information 

5 
90 


Insert offset folio 45 here 98945.045

U.S. Senate Committee on Energy and Natural Resources 

October 27, 2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to the Honorable Janice Schneider 

regarding the ongoing rulemaking process related to the stream protection rule. The 

Department is enclosing a copy of the report. Deliberative information is redacted as its 

release could compromise the independence and integrity of the still ongoing rulemaking 

process. Protecting the ongoing rulemaking process has been a long-standing bipartisan 

Executive Branch practice. Nevertheless, to date, the Department has made 26 separate 

document productions in response to various congressional oversight requests on the 

stream protection rule through which the Department has provided over 1,300 documents 

consisting of more than 15,000 pages. This is in addition to offering testimony, briefings, 

and numerous additional efforts to accommodate the congressional interest in this topic. 

The Department is happy to engage in a dialogue with the Committee with respect to 

information that would accommodate the Committee's oversight interests without 

impinging on the rulemaking in progress. 

Question 9: Please provide in chart form a list of documents withheld by the Office 

ofthe Inspector General, if any, that are related to the OIG Report, a short 

description of the document including whether the document relates to estimates of 

the impact of the Stream Protection Rule or any of its predecessors since 2008 on 

jobs or the economy, and the relationship ofthe document to the OIG Report. If the 

Department of the Interior seeks to assert a claim of privilege with respect to any of 

the listed documents, please provide on the chart the asserted privilege and the basis 

for the assertion. 

Response: The Department is not aware that the OIG is withholding documents related 

to its 20 13 report, nor is the Department aware of any current Congressional request to 

the OIG related to the report. However, deliberative information within the 2013 OIG 

report and its attachments was redacted pursuant to the Department's identification of 

important Executive Branch interests in protecting the independence and integrity of the 

ongoing rulemaking process. 

Question 10: Please provide a log of communications (in person, electronic, or written) 

regarding the contractor or contractors previously or currently retained to study and/or 

make projections concerning the impact of the Stream Protection Rule or its predecessor 

proposal on jobs or the economy. If the Department of the Interior seeks to assert a claim 

of privilege with respect to any of these communications, please so indicate and provide, 

with respect to each indicated communication, the basis for the claim of privilege. 

Response: OSMRE does not maintain a log of communications with the contractors 

currently or previously retained to support the proposed stream protection rule. 

Question from Senator John Barrasso 

Question: On April15, 2011, Secretary Salazar sent a letter to Governor Otter on 

the Office of Surface Mining's ongoing stream protection rulemaking. Secretary 

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U.S. Senate Committee on Energy and Natural Resources 

October27,2015 Hearing: OSI\·I's Proposed Stream Protection Rule 

Questions for the Record Submitted to the Honorable .Janice Schneider 

Salazar's letter states that: "All cooperating agencies will have an additimtal 

oppm·tunity to review and comment on a Preliminary Uraft EIS before it is 

pubfi~·hed.for public review and commem" (emphasis added). Pl.ease explain in detait 

personnel at the Department of the Interior failed to honor this specific 

commitment to the cooperating state agencies? 

Res1>onse: The rulemaking process with an Advance Notiee of Proposed 

Rul.cmaking, stakeholder outreach nine public scoping meetings and two public 

comment periods on the scoping for the draft environmental impact statement (DEIS). 

The scoping process over 50,000 comments, including input from the states. A 

number of state state SMCRA regulatory participated as 

cooperating development of the DI.US for the stream protection rule. 

These states provided input and comments that were used to prepare the 

DEIS. In addition, the DEIS \Vas made available for aU cooperating agencies and the 

public to review and provide input on the public comment period. The public 

comment period was extended to provide interested parties, including the states, more 

time to review and comment on the DEIS. OSMRE conducted six public hearings in 

Colorado, Kentucky, Missouri, Pennsylvania, Virginia and West Virginia during the 

public comment period. Ultimately, OSMRE received approximately 95,000 comments, 

including hundreds of pages ofcommcnts from state SMCRA regulatory authorities, on 

the DEIS and the proposed stream protection rule. Also, on October 8, 2015, OSMRE 

ofl:ered all fonner cooperating state agencies the opportunity to reengage as cooperating 

agencies ln the development of the final EIS. 

We have continued to engage in discussions with the state SJV£CRA regulatory authorities 

to better understand their comments regarding the proposed stream protection rule. In 

addition to meetings with the state SMCRA regulatory authorities in conjunction 'Nith 

Interstate lVJining Compact Commission meetings, I and/or OSMRE officials either met 

\Vith or held telephone or video conferences with Wyoming on November 20, 2015, and 

January 8, 2016; Ohio and Maryland on December 2, 2015; Oklahoma on December 3, 

2015; Indiana and Pennsylvania on December 10, 2015; Virginia on December 11, 

!llino!s on Deeember 16, 2015; Nmth Dakota, Utah and Montana on December 17, 2015; 

Alaska on January 14, 20 16; and West Virginia on February 10, 2016. Six additional 

opportunities to meet and collaborate are scheduled in April 2016. 

Question from Senator JctTF!ake 

The Navajo Generating Station ("NGS") in Coconino County, Arizona 

greatly benefits the Navajo Nation and Hopi Tribe, The sole source of NGS fuel is 

coal from the Kayenta ntinc on the Black Mes~l. More than 85% ofNGS employees 

and over 90'% of Kayenta mine employees are members of the Navajo Nation or 

Hopi Tribe. Payments from the NGS comprise 88% of the non-federal tribal budget 

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U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to the Honorable Janice Schneider 

ofthe Hopi Tribe. Because NGS and the Kayenta mine play such a large role in the 

economy ofthe Northern Arizona tribes, it is critical that the drafting process for a 

rule with as wide a scope as this proposed rule include adequate consultation with 

those that it wiU affect. Please describe the Office of Surface Mining's consultation 

with the Bureau of Indian Affairs, the Navajo Nation, and the Hopi Tribe in 

drafting the proposed rule. 

Response: The Department of the Interior Policy on Consultation with Indian Tribes 

(DOl, 2011) and OSMRE Directive REG-18 (OSMRE, 2013), set forth considerations 

and guidelines for consultation and collaboration between the U.S. Government and 

American Indian and Alaska Natives. Because of the coal reserves on tribal lands, 

OSMRE invited the Hopi, Navajo, Crow, and Ute Mountain Tribes to be cooperating 

agencies in preparation of the DEIS. However, the tribes chose not to become 

cooperating agencies. 

On May 12, 201 0, Director Pizarchik met with the Chairmen of the Hopi and Crow 

Tribes and the President of the Navajo Nation to initiate government-to-government 

consultation on development of the stream protection rule and the DEIS. The tribes in 

attendance requested to be kept informed on the progress of the rulemaking and 

development of the DEIS. 

Director Pizarchik again met with tribal leaders in Washington, DC, on December 1, 

20I 1. At that time, OSMRE provided additional information on the elements under 

consideration for the alternatives in the DEIS and discussed the potential impacts to the 

Indian lands SMCRA regulatory program. 

Subsequent to publication of the DEIS, proposed rule, and draft regulatory impact 

analysis, OSMRE offered further government-to-government consultation to discuss the 

stream protection rule. 

At the request of the Navajo Nation, OSMRE Director Pizarchik met with leaders of the 

Navajo Nation on January I3, 2016, at Window Rock, Arizona, to consult regarding the 

proposed rule. In addition, OSMRE will continue to provide status updates on the stream 

protection rule at each of the regularly scheduled quarterly consultation meetings with the 

tribes. 

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OFFICE OF 

INSPECTOR 

U.S. DEPARTMENT Of THE INTERIOR 

REPORT OF INVESTIGATION 

SYNOPSIS 

On December 6, 2011. we initiated this investigation after news outlets reported in November that the 

Office of Surface Mining Reclamation and Enforcement (OSM) pressured contractors working on an 

environmental impact statement (ETS) to !ower their estimate of the number of potential job losses 

associated with a proposed rule to protect streams located near coal mines. OSM then allegedly ended 

their contract when they refused. 

If adopted, the proposed Stream Protection Rule would place more requirements on coal mining 

companies to protect streams near mine sites from the environmental effects of mining. OSM hired 

engineering and environmental firms as contractors to work on the EJS, which examined the 

environmental benefits of the proposed rule as well as potential socioeconomic effects, including costs 

to the coal mining industry and job losses. 

We initially focused our investigation on two allegations: that OSM pressured the contractors to change 

their calculation methods to lower the number of job losses, and that OSM ended the contract because 

the contractors refused to do so. We also examined the accuracy of a figure, leaked to the media before 

these allegations surfac.;d, showing that some 7,000 jobs would be lost ifthe new rule was implemented. 

As we conducted · · that a new contractor · · roject was also 

• We investigated 

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 detennined that 

there would be high costs to the industry and significant job losses, newer OSM employees involved in 

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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 ofthe 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 new contractors hired 

While we found that OSM only began to seriously consider terminating the EIS contract after the job 

losses were leaked, interviews and internal communications indicate that OSM's dissatisfaction with the 

contractors' work product and overall performance occurred well before then. Rather than terminate the 

cotttntct, OSM decided to simply not renew it. 

ln addition, we were unable to determine the accuracy of the 7,000 job losses estimated ln the EIS. 

While the OSM Director testilied before Congress that calculations used by the contractors were mere 

"placeholders," the numbers that went into that !1gure were not fabricated; they were based on the 

contractors' knowledge. Career OSM employees have questioned certain aspects of the contractors' 

methods of analysis. however, and the contractors themselves acknowledged that because of the 

projett's rushed schedule, they were unable to do the full analysis they would have preferred. 

We are providing this report to the Principal Deputy Assistant Secretary for Land and Minerals 

Management for any action deemed appropriate. 

BACKGROUND 

Mining Oversight 

Surface coal mining often involves removing the ll1p of a mountain in order to recover the coal 

underneath {Attachment 1). The process creates an immense amount of excess dirt and rock, known as 

"spoil," which is typically dumped in nearby valleys and can damage or bury the streams that !low 

through them. These mining activities are primarily regulated by the U.S. Department of the Interior's 

(DOl) Office of Surface Mining Reclamation and Enforcement (OSM) under the Surface Mining 

Control and Reclamation Act of 1977, and by the U.S. Environmental Protection Agency (EPA) and the 

Army Corps of Engineers under the Clean Water Act. 

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As part of the regulations implementing the Surface Mining Control and Reclamation Act, OSM 

adopted requirements for a I 00-foot "buffer zone" around streams as a means to protect the stream 

channels from erosion from nearby mining activities. OSM modified the Stream Buffer Zone (SBZ) rule 

in 1979, 1983, and most recently 2008 (30 C.F.R. § 816.57). The 2008 rule replaced the 1983 rule, but 

there is ongoing dispute as to which rule better protects the environment. Some OSM personnel have 

said the 2008 rule is stronger. Environmental groups criticized the 2008 rule, however, saying it 

weakened environmental protections, and several organizations filed suits challenging its validity. 

In April2009, the Secretary of the Interior asked the courts to vacate the 2008 rule (and thus restore the 

1983 rule), stating that OSM neglected to consult with the U.S. Fish and Wildlife Service pursuant to the 

Endangered Species Act. Instead, the courts denied the U.S. Government's motion, in part because it 

would have allowed OSM to, in effect, repeal its own regulation while bypassing the Administrative 

Procedures Act. 

The Secretary entered into a settlement agreement on March 19, 20 I 0, with the environmental groups 

involved in the civil actions, stating that OSM would "make best efforts" to develop a new rule that 

would be broader in scope than the 2008 SBZ rule (Attachment 1). OSM later titled this new rule the 

"Stream Protection Rule." 1 

The Environmental Impact Statement (EIS) for the Stream Protection Rule 

The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321- 4370h, requires Federal agencies 

to prepare detailed EISs to assess the environmental impact of any major Federal actions significantly 

affecting the environment and present alternatives to them (Attachment 3). On May 27, 2010, OSM 

hired Potu Kai Services (PKS) to conduct the work for the Stream Protection Rule EIS (Attachment 4). 

According to the statement of work, PKS was to prepare a draft and final EIS for the proposed 

rulemaking and alternatives or options for the rule. PKS was also to prepare a regulatory impact analysis 

(RIA), which is required by the Office of Management and Budget (OMB) per Executive Order 12866 

and OMB Circular A-4 for economically significant rules. The RIA would examine the associated costs 

and benefits of the Stream Protection Rule, including potential job losses (Attachment 5). PKS hired 

three subcontractors to assist with the EIS/RIA project: Engineering Consulting Services, Inc. (ECSI), 

and Morgan Worldwide, both based in lexington, KY, and MACTEC, based in Atlanta, GA 

(Attachments 6 and 7). 

Media Coverage and Congressional Testimony 

On January 26, 20 II, the Associated Press reported that the proposed Stream Protection Rule would 

eliminate thousands of jobs and cut coal production across the country (Attachment 8). The news 

agency appears to have obtained an unauthorized release of a draft copy of the EIS, which predicted 

7,000 job losses associated with the new rule (Attachment 9). 

On March 8, 2011, DOl Deputy Secretary David Hayes testified before the U.S. House of 

Representatives Committee on Appropriations (Attachment 10). He told the committee that DOl 

disagreed with the contractors' economic analysis and was looking at "completely revamping it.'' Hayes 

also stated that if the contractors' new drafts were not adequate, DOl planned to terminate the contract. 

1 A timeline of the major events of this case and a list of the people involved begin on p. 22 of this report. 

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OSM Director Joseph Pizarchik testified before the Bouse Committee on Natura! Resources on April 7. 

20 !I, stating that OSM and the contractors had ended their relationship a few weeks earlier, on March 

24, 20 ll {Attachment II). He said OSM did not end the contract because the job-loss numbers were 

high. On November 4, 20! I, Pizarchik testified again before the committee, stating that the contractors' 

numbers were "fabricated," were based on "placeholder" numbers, and had "no basis in fact" 

(Attachment 12). 

Steven Gardner, the president of ElS subcontractor ECSI, testified on November 15, 20!1, before the 

Committee on Natural Resources (Athtdtmenl 13). He stated that at a meeting in February 2011, OSM 

employees had "suggested" that ECSI and the other contractors revisit coal production impacts and job 

losses associated with the Stream Protection Rule. He said OSM specifically asked the contractors to 

change the assumptions that went into the calculations; doing so, he said, would create a "fabrico:ted" 

scenario that would show less impact !lnd "soften" production losses. He told the committee that shortly 

alh:r the contractors refused to change their amtmptions, they received a notice from OSM that the 

contract with PKS would not be renewed. 

Fox News posted an article on its Web site on November 18,201 !, titled "Contractors Claim 

Administration Pressed to 'Soften' Job-Loss Estimates From Mining Rule" (Attachment 14). The 

article repeated Gardner's testimony that after contractors refhsed to soften the job·loss numbers, they 

learned that OSM was not renewing their contract 

DETAILS OF INVESTIGATION 

We initiated this investigation on December 6, 201 l, after news outlets reported thnt contractors 

working on the E!S for the Stream Protection Rule were pressured to lower their estimate of job losses 

that could result from adoption of the rule, and that OSM ended their contract when they refused to do 

this. We investigated these two allegations and examined the accuracy of the EJS' estimated 7,000job 

Aswe a 

Lowering the Job-Loss Number 

As we conducted our investigation, we found that the job-loss number leaked to the media appeared in a 

draft of the EIS, but the numbers used to generate it came from the economic analysis in the RIA 

(Aitachmenfs 15 and 16). In preparing an RIA, agencies must establish a "baseline," or the agency's 

"best assessment of what the W(lr!d would be like absent the action, and then compare that to the 

proposed rule and to a range of alternatives sa the impact of the rule can be assessed. 

To establish a baseline for the Stream Protection Rule, OSM aod the contractors needed to look at recent 

coal production numbers, as well as determine the rules and regulations that were in place and being 

enforced at the time. This establishment of the baseline for comparing the Stream Protection Rule is at 

the heart of the allegations. 

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During his November 15, 2011 testimony (and a subsequent interview with our office), Gardner stated 

that OSM employees told the contractors in February 20 II that to anai:Yze the economic effects of the 

Stream Protection Rule--<:omparing the baseline to the proposed rule--<:ontractors needed to assume 

that the 2008 SBZ rule was in effect and being enforced across the United States (A«adlments 17 and 

18, and see Attachment 13). This was not the case, however, because although OSM had adopted the 

2008 rule, it was in litigation; therefore, the 1983 rule was still being enforced. In our initial interview of 

OSM Regulatory Analyst Dennis Rice, he also noted that because the 2008 rule was immediately 

challenged in court, OSM did not notify the States, which had primary responsibility for regulating mining, 

to amend their programs and enforce the rule (Attachments 19 and 20). 

The contractors with ECSIIater told us that if they assumed that the 2008 rule was in effect as part of 

the baseline, rather than the 1983 rule, it would show the Stream Protection Rule having less of an 

impact on jobs (Attachments 21 and 22). In essence, they said, the more-stringent 2008 rule, which had 

a steeper cost to industry, more closely resembled the proposed Stream Protection Rule than the 1983 

rule did; therefore, using the 2008 rule as the baseline would lead to less-dramatic results. In his 

interview, Rice also confirmed that the 2008 rule appeared to be stricter than the 1983 rule (see 

Attachments 19 and 20). 

Contractors' Allegations of Pressure by OSM 

Steven Gardner told us that since the beginning of the EISIRIA project in summer of201 0, the OSM team 

lead, Chief of the Regulatory Support Division John Craynon, told the contractors to use the "current 

regulatory regime" as the baseline for comparing the new rule and projecting coal production and job losses 

(see Attachments 17 and 18). In most States, this would have been the 1983 SBZ rule. After the job-loss 

number was leaked in January 2011, however, the contractors were told to apply the 2008 rule "as it might 

have been enforced" to the baseline. Gardner said it was clear that OSM was "unhappy" about the leaked 

job-loss numbers, which he believed "came right on the heels" of one of the President's job-creation 

speeches. 

Gardner said that although the Chief of the OSM Knoxville Technical Division, Bill Winters, had 

previously discussed using the 2008 SBZ rule as part of the baseline, this was the first time that OSM 

suggested this change to the contractors. Gardner said the impact of making the change would have been 

significant in lowering the job-loss number. 

We interviewed ECSI Executive Vice President Joseph Zaluski about the baseline used for the RIA (see 

Attachments 21 and 22). Zaluski said Craynon initially told contractors to use 2008 coal production 

numbers, which were produced under the 1983 rule, as the baseline for comparing the Stream Protection 

Rule. Once OSM realized the impact that the new rule would have on jobs, he said, OSM wanted to change 

that assumption. Zaluski said OSM stated "late in the program" that the contractors should have been using 

the 2008 SBZ rule as the baseline (and thus asswning that the coal production numbers were produced 

under the 2008 rule). To do so, he said, was "an absolute lie." He explained that the 2008 rule was stricter 

than the 1983 rule, and OSM wanted to "pretend" that companies had mined under tougher regulatory 

conditions than they actually had. Comparing the 2008 rule to the Stream Protection Rule, as opposed to the 

1983 rule, he told us, would show the Stream Protection Rule having less of an impact on the coal mining 

industry and fewer job losses. 

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Zaluski said he got the "clear message" from Winters and Counsel to the OSM Director Dianne Shawley 

that they wanted the baseline change to lower the proposed rule's impact on coal production and job losses. 

When asked for any documentation that this was their intent, however, he could provide none, saying this 

was simply the impression he got from their conversations. "It was clear that they wanted to soften the 

impact," he said. "No question." 

ECSl Senior Vice President Edmundo Laporte said that OSM asking the contractors to change the baseline 

created an ethical dilemma for them. He eltplained that the contractors had to compare the Stream 

Protection Rule to the "status quo,'' or what was happening at that point in time. Based on their ''moral 

principles as citizens" and their "duties as professional engineers," he said, they could not lie to the 

community. Laporte told us that after the job-loss numbers were leaked to the press, he informed Winters 

and OSM's Chief of the Ecological Services and Technology Transfer Branch Lois Uranowski that the 

contractors would need to add a disclaimer to their work stating that the analysis was hypothetical. Laporte 

said Uranowski told him he could not do so; he said that she told him instead that he would need to ''use 

weasel words." 

We also interviewed Jose Sosa, formerly a part owner of prime contractor PKS, the project manager of 

the EIS/RlA contract (Attachments 23 and 24). Sosa reiterated many of the statements made by 

Gardner, Zaluski, and Laporte, stating that if the contractors changed the baseline to the 2008 rule, it 

would be "skewing" the numbers. 

Evolution of the Baseline Used in the Analysis 

Through email reviews, we were able to determine that in November 20 I 0, OSM told the contractors to use 

the 1983 SBZ rule as the baseline for calculating production and job losses associated with the Stream 

Protection Rule: 

• On November 3, 2010, OSM's Dennis Rice emailed OMB Policy Analyst Jim Laity, whose role, 

according to OMB, was to review draft rules and RIAs, about the baseline for the RIA 

(Attachment 25). Laity responded that for any RIA the baseline would be the eltisting requirements 

absent a new rule, but told Rice that since the 2008 rule was not in effect, "it is somewhat 

ambiguous what would be the status quo." Rice later responded to Laity that OSM would "instruct 

the EIS contractor to develop a baseline, which would consist ofthe costs and benefits of the 

[Surface Mining Control and Reclamation Act of 1977] regulatory program as it eltisted before 

adoption of the 2008 rule" (i.e., using the 1983 rule). 

• On November 5, 2010, Rice emailed MACTEC employee Don Iannone, copying Craynon and 

other OSM team members, stating that the "status quo," in which the States "have not yet adopted 

or implemented the 2008 rule,'' was the baseline to which the RIA alternatives and options must be 

compared (Attachment 26). 

• On December9, 2010, Craynon emailed Gardner, reinforcing that the baseline would not include 

the 2008 rule (Attachment 27). 

After receiving information on the costs of the rule to the coal mining industry, however, OSM employees 

requested that the contractor use the 2008 rule as the baseline. 

OSM team members appeared to know about the contractors' predictions of the high cost of the new rule to 

the coal mining industry on December 9, 2010 (Attachment 28). OSM Environmental Protection 

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Specialist Harry Payne f01warded an email to Winters and Uranowski stating that the "bottom line" was 

that the Stream Protection Rule would cost the coal mining indus!Iy about $1.3 billion to implement, with 

$900 million in Appalachia alone. He said that approximately one third of the production in Appalachia was 

projected to move elsewhere. 

The following month, Shawley began to ask questions about the baseline. On January 4, 2011, she emailed 

Craynon, asking: "Question- does our economic analysis assume implementation of the 2008 rule •.• as 

the 'status quo' .•. ?I realize that the 1983 rule is currently in place ... and that the 2008 rule is only 

applied in TN and on Indian Lands" (Attacl!ment 29). Four minutes later, she asked Cmynon ifOSM knew 

the "cost of compliance" for the 2008 rule and the 1983 rule. (Attacl!ment 30). 

We reviewed a recording of the February I, 20 II meeting to discuss the baseline. The meeting began 

with Shawley discussing OSM's concerns about the contractors' work (Attachments 31 and 32). She 

stated that most of the contractors' analysis was focused on the coal indus!Iy and the benefits of the 

proposed Stream Protection Rule had not been assessed. 

Zaluski later asked Shawley whether the contractors should be using the 2008 rule as the baseline for the 

economic analysis. Shawley responded that OSM was "looking at going from one rule to the next rule" and 

was "not looking at conditions on the ground." She later stated that OSM's status quo was that the 2008 rule 

was "on the books." When Zaluski disagreed with this, Shawley stated: "Joe. it's not the real world. This is 

rulemaking." 

Zaluski told Shawley that he wished he had heard her viewpoint much eatlier in the process and that her 

direction was a "marked change to this whole program." Gardner said he was "in shock" and that her 

direction was "a sea change" from what the contractors had been doing. He said that predicting what the 

job-loss numbers would be as if the 2008 rule had been implemented was a ''hypothetical exercise." 

During the meeting, Cmynon appeared to defend OSM's new position and said the contractors needed to 

consider "a world" where the 2008 rule was being implemented, which was a more programmatic 

approach. Zaluski said the contractors would basically have to ·"make up" how much coal could have been 

produced in certain States, because most States were not enforcing the rule. He said the EIS was "a lie" and 

that he would not sign off on it He also wondered if changing the baseline would cause the job losses to 

completely disappear. 

After the meeting, the contractors began to email each other, speculating on OSM's intentions about 

changing the baseline. On February 5, 2011, Gardner emailed the team about concerns that OSM was !lying 

to "steer'' the contractors to a "desired outcome" that could not be supported (Attachment 33). Laporte 

emailed Zaluski and Gardner on February 6, 2011, saying it was cleat that OSM wanted an EIS showing 

minimal impact "for political reasons" (Attacl!ment 34). 

On February 8, 2011, PKS forwarded to the subcontractors OSM's list of"high priority'' items, which 

included the direction to use the 2008 rule as the baseline condition "to make all baseline comparisons" 

(Attacl!meat 35). The same day, OSM issued a cure notice (used to infonn the contractor that a failure is 

endangering contract performance) to the EISIRIA contractors, with one of the issues being the 

contractors' failure to use "30 C.F .R. Chapter VII in its entirety," including the 2008 rule, as the baseline 

(Attachment 36). The document later referred to the RIA baseline as the 2008 rule. PKS responded to the 

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cure notice on February 23, 20 II, stating that the first time OSM had voiced any concern about using the 

1983 rule as the baseline was alter the job-loss numbers were leaked in January 20 II (Attuhment37). 

We obtained emails showing disagreements within OSM about the baseline issues. On February 16,2011, 

OSM employees discussed whether the RIA baseline should be the 2008 rule or the 1983 rule (Attachment 

38). Shawley emailed the OSM team that the RIA needed to consider the incremental cost from the 2008 

rule to the Stream Protection Rule, "not going back to '83." Andy DeVito, Chief, Division of Regulatory 

Suppon, responded that when he and Dennis Rice talked to OMB, they agreed that the baseline would be 

the status quo, meaning the 1983 rule. 

On March 3, 2011, Shawley and DeVito again debated the baseline (Attachment 39). Shawley wrote in an 

email: "Andy- The EIS is wrong. The RIA is wrong." She told him the EISIRIA was an analysis of what 

OSM had "on the books" and the changes being proposed and the States' implementation of the 1983 rule 

did not need to be considered. The following day, Shawley emailed Winters and Payne, stating that she had 

spoken with OMS's Jim Laity and he preferred that the 2008 rule be the baseline (Attachment 40). 

Response to AllegaTions 

We interviewed John Craynon, former OSM Chief of the Regulatory Support Division, now Program 

Director for the Appalachian Research Initiative for Environmental Science at Virginia Tech, about the 

baseline issues (Attachments 41 and 42). Craynon said his initial direction to the contractors regarding 

the baseline for comparing the Stream Protection Rule was to use 2008 coal production numbers (the latest 

year of data available at the time), produced under the 1983 rule, and the States' current mining 

requirements. 

Craynon explained that the job-loss number was leaked the day alter the President gave his State of the 

Union address in January 2011. He said OSM Director Joseph Pizarchik called him to his office and told 

him he was concerned that the President had just given a speech indicating that jobs would grow in this 

administration, and the next day it came out that something the OSM Director was doing was going to have 

the opposite effect, which Pizarchik said was "very uncomfortable politically." Craynon said that Pizarchik 

told him that "obviously something needs to change." 

Pizarchik questioned Craynon on how the number was developed, and Craynon told him the number was 

based on "good engineering practice and best professional judgment." That day, he said, he attended a 

number of"damage control" meetings with Pizarchik, OSM Deputy Director Glenda Owens, Shawley, and 

OSM Senior Advisor Mary Katherine Ishee to look at how the numbers were calculated. Craynon said these 

individuals told him during these meetings to "figure out a way that the assumptions could be changed so 

that the numbers didn't look so bad." 

According to Craynon, during one of the meetings, Shawley suggested that applying the 2008 SBZ rule to 

the baseline, rather than 1983, throughout all of the States would show the Stream Protection Rule having 

less of an impact on the industry. Pizarchik supported Shawley's suggestion, he said. Craynon disagreed, 

however, because OSM and DOl did not want to actually implement the 2008 rule (based on the fact that 

DOl had asked the couns to vacate the 2008 rule), and because using it as the baseline created a 

"hypothetical future." 

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Craynon said Shawley also sent him an email the last week of January 20 II stating that he needed to ensure 

the contractors did a better analysis of the positive contributions of the Stream Protection Rule to the 

environment and ensure that the assumptions about the impacts to coal production "are changed so that the 

numbers don't look so bad." Craynon said he believed that Pizarchik and Shawley ''were trying to cook the 

books." Craynon was unable, however, to provide a copy of this email. We subsequently reviewed 

Craynon's and Shawley's Government email accounts and were unable to locate the email in question 

(Attachment 43). 

We informed Craynon that his comments at the February I meeting appeared to endorse the baseline 

change. He replied that just before the meeting, he had been heavily criticized for his management of the 

project, so at the meeting, he was "probably very resigned to try to get the job done" (see Attachments 41 

and 42). 

We interviewed Nancy SloanhotTer, former OSM Procurement Chief and the contracting officer on the 

EISIRJA contract (Attachments 44 and 45). SloanhotTer confirmed the baseline was a "huge issue" that 

caused many problems between OSM and the contractors. SloanhotTer remembered attending meetings 

where Zaluski asked whether the 2008 rule should be used as a baseline to project job losses, given that the 

rule was still being litigated. Sloanhoffer said Craynon finally told the contractors at one point to ignore 

using the 2008 rule as part of the baseline because no one had embraced it 

Sloanhoffer also attended the February I meeting with the contractors to attempt to resolve issues with the 

contract. She said Shawley told the contractors they needed to use the 2008 rule as the baseline, 

contradicting Craynon's previous guidance. SloanhotTer said the contractors "were dumbfounded" because 

this was the first time they were told to do so. 

Stephanie Varvel!, OSM Senior Program Analyst and the contracting officer's representative on the 

EISIRJA contract, believed Winters and Shawley wanted the contractors to use the 2008 rule as the 

baseline (Attachments 46 and 47). Her impression was that this direction ultimately came from Pizarchik. 

When asked if using the 2008 rule as the baseline was an effort to lower the job-loss finding, Varvell said 

she had never heard this but did hear that the job-loss number "was going to be hard to overcome." 

OSM's Chief of the Division of Regulatory Support, Andy DeVito, confirmed that earlier in the RIA 

process, he and Rice had asked OMB for guidance on how to determine the baseline (Attachments 48 

and 49). DeVito explained that for OSM, the status quo was the 2008 rule for Tennessee and 

Washington and the 1983 rule for the other States. He informed Shawley of this in March 2011. We 

showed DeVito the emails between him and Shawley in February and March 2011, in which she appeared 

to advocate using the 2008 rule as the baseline, and he said that a credible argument could be made for 

using the 2008 rule because that was the rule on record. When told that other people we interviewed said 

that using the 2008 rule as the baseline would not show as many job losses as the 1983 rule because of 

stricter requirements in the later rule, DeVito agreed with that conclusion. 

DeVito stood by his initial opinion that the baseline for the RIA should be the 1983 rule, stating that it was 

"a more honest approach." He then said "honest" might not be the right word-that using the 1983 rule 

would be more "accurate." He stated that he did not know Shawley's intent or motivation in wanting the 

baseline changed to the 2008 rule. 

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We interviewed Bill Winters, Chief of the OSM Technical Division, who took Craynon's place as the 

EISIRIA team lead in late 2010 (Attachments 50, 51, 52, and 53). Winters said that when OSM told the 

contractors to use the 2008 rule as a baseline, the contractors believed OSM had made the job losses 

"disappear." Winters said this was not true, however, because the 2008 rule mimicked what companies 

already had to do to comply with the Clean Water Act. WinteiS defended using the 2008 rule as the 

baseline, stating that even though the rule was being litigated, it was "on the books" in 30 C.F.R. Chapter 

VII, which was why he wanted it to be used. Winters later stated that he believed the baseline issues were 

settled in December 2010 and provided a draft of the RIA, which noted that the RIA baseline used "2008 

data for analysis purposes to reflect the current regulatory environment, including the 2008 Stream Buffer 

Zone Rule and other existing regulations applied to the coal mining industry" (Attachment 54). 

Agent's Note: During our interview of De Vito, we asked him about this reference to the 2008 SBZ rule in 

the RiA, and he said this may have been referring to the State of Tennessee's implementation of the 2008 

SBZ rule (see Attachments 48 and 49~ 

We also interviewed Lois Uranowski, Chief of the OSM Ecological Services and Technology Transfer 

Branch, Division of Technical Support, who said the 2008 rule needed to be used as the baseline for the 

RIA (Attachments 55 and 56). She explained that the 2008 rule had already been analyzed through a 

previous ElS, and OSM needed to move forward from that point. She said the cost for implementing the 

2008 rule was already being incurred by industry, or was going to be. Uranowski agreed that using the 2008 

rule as the baseline, as opposed to the 1983 rule, would show less of an impact on coal production and job 

losses, but she stated that OSM employees were not trying to lower the job-loss numbers and were only 

worried about ensuring the contractors' product complied with regulations. 

In a second interview, Uranowski discussed her alleged telephone conversation with Edmundo Laporte, in 

which she reportedly told him to use "weasel words" when he wanted to add a disclaimer about using the 

2008 rule (Attachments 57 and 58). Uranowski said she did not recall the conve!S8tion but acknowledged 

she may have used the phrase ''weasel words" during a conve!S8tion with him. She said she had worked as 

a consultant, and consultants would not use the word "hypothetical" in their reports to describe an analysis. 

Uranowski stated, however, that she did not mean that Laporte should not tell the truth in the report. 

We also interviewed Glenda Owens and Mary Katherine Ishee about Craynon's allegation that meetings 

occurred where they discussed lowering the job-loss number (Attachments 59, 60, 61, and 62). Both 

Owens and Ishee said that during these meetings, senior OSM officials were trying to determine what 

the figure was based on. Ishee stated that OSM "obviously" wanted to get the job-loss number lower at 

some point, but her conversations involved determining the accuracy of the numbers and then looking at 

whether certain provisions of the rule were "worth it." She said she never heard anyone suggest 

"doctoring" the baseline. 

We interviewed Pizarchik about the decision to have the contractors change the baseline to the 2008 rule 

(Attachments 63 and 64). He said he did not know who made the decision, but he believed the 2008 

rule needed to be the baseline because it reflected the current regulatory status. Pizarchik said he had no 

expectations regarding the job-loss number calculated by the contractors, so the number was a shock. He 

realized, however, that the contractors had not looked at the benefits of the Stream Protection Rule, 

including job increases for positions like aquatic biologists. 

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Regarding the allegations that he met with OSM officials after the job-loss number was leaked and told 

them that the number needed to be lowered, Pizarchik recalled meetings where he and other officials 

discussed needing to understand the basis of the number. Once they understood that, he said, they could 

find ways to lower the job-loss number based on changing provisions in the rule. He denied that OSM 

pressured the contractors to change how the job-loss number was calculated in an effort to lower the 

figure. 

We asked OSM and DOl officials, including Sylvia Baca, Deputy Assistant Secretary for Land and 

Minerals, if senior DOl officials or the Executive Office of the President had any influence on the 

baseline (Attachments 65, 66, 67, and 68, and see Attachments 63 and 64). We found that Diane 

Shawley had been detailed to the Council on Environmental Quality, under the Executive Office of the 

President, from August2009 to May 2010, and that members of the Council attended meetings with 

OSMon the Stream Protection Rule. We did not find evidence, however, that the Council or senior DOl 

officials improperly influenced the baseline or the job-loss numbers. 

When we spoke to Shawley, we asked her when she first learned of the production losses and industry 

costs assessed by the contractors (see Attachments 67 and 68). She said that prior to December 22,2010, 

OSM realized that if what the contractors put forth could be substantiated, the economic effect of the 

Stream Protection Rule would be bigger than OSM expected. We showed Shawley the email from her to 

Craynon on January 4, 2011, asking whether the baseline for the RIA was the 2008 rule or the 1983 rule 

(see Attachment 29). Shawley acknowledged that at that point, she did not have an opinion on the issue. 

Shawley said her intention in later recommending that the baseline for the RIA be the 2008 rule was to 

have an EIS that complied with NEPA regulations. She provided a detailed summary and legal analysis 

of her reasons for wanting the baseline to be the 2008 rule, as well as her notes from various meetings 

on the EISIRIA (Attachment 69). Although the 2008 rule was not in effect, the summary document 

outlined that OMB required that the baseline "reflect the future effect of current programs and policies." 

The document stated that OSM had a regulatory obligation to evaluate the contractors' analysis, and 

OSM's questions regarding the baselines and alternatives to the Stream Protection Rule were "driven 

by" NEPA and DOl responsibilities, and Federal statutory and regulatory requirements. Shawley also 

confirmed that she had discussed the matter with OMS's Jim Laity, and said that he told her that he 

preferred that the 2008 rule be the baseline. 

We informed Shawley ofCraynon's allegation that after the job-loss number was leaked, OSM officials 

discussed lowering the number and Shawley suggested using the 2008 rule as a means to do that (see 

Attachments 67 and 68). Shawley did not agree with this statement She stated that OSM realized OMB 

would never accept the published job-loss number, so OSM needed to understand where the numbers 

came from. 

We asked Shawley if her desire to use the 2008 rule as the RIA baseline was an effort to lower the job· 

loss number. She replied that it was simply an effort to obtain accurate information. We later asked her 

this question again, and she responded: "1 don't think it was .... It was not my job to deal with the jobloss numbers," but she later acknowledged that she knew that changing the baseline to the 2008 rule 

would lower the job-loss number. 

We interviewed Dennis Rice about the baseline issues, including his initial communication with Laity 

(Attachments 70 aud 71 ). He said he originally believed OSM needed to use the 1983 rule as the 

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baseline for the RIA and that Laity approved this. Rice explained that the 1983 rule was the easier 

baseline because the contractors could use actual data and "wouldn't have to manipulate them in any 

way." Rice said that if he were under time constraints, as PKS was, he would want to use the 1983 rule 

and "the actual numbers that were out there." 

We showed a copy of Shawley's summary supporting her decision to use the 2008 rule as the baseline to 

Rice, and he said her arguments appeared accurate and valid. We also showed him OMB guidance on 

baselines, provided by Shawley, which stated that agencies "should incorporate the agency's best 

forecast of how the world will change in the future." Rice said he had never seen this guidance 

document. He said that because Laity approved the original method, he still believed that it was valid, 

but based on the OMB document, Shawley's position to use the 2008 rule was the better option. 

OMB declined to make Laity available for an interview, but it agreed to answer a list of questions we 

submitted for him (Attachments 71. aud 73). OMB's response explained that the baseline for the RIA 

was the "state of the world absent the regulatory action being considered." It also stated that some 

interpretation by agencies might be applied to baseline conditions, and when rules and regulations were 

in litigation, the baseline or status quo could be "a legitimate source of uncertainty." The response stated 

that in those cases, multiple baselines could be used. 

OMB stated that Laity advised Rice that using the 1983 rule as the baseline appeared "reasonable and 

consistent with OMS's guidance." Using the 2008 rule as the baseline would also be reasonable, 

according to OMB, since the 2008 rule could be implemented if the Stream Protection Rule was not 

promulgated. However, it said there was "value in showing the public what costs and benefits" would 

result from the Stream Protection Rule, starting from the present, and this could "get lost" using the 

2008 rule because true costs had not been incurred (since it was never implemented). From OMB's 

response, it does not appear that Laity expressed a preference in using the 2008 SBZ rule as the baseline, 

as Shawley indicated; he felt there were reasonable arguments for using both rules. 

OMB also stated that Laity did not recall having baseline discussions with anyone besides OSM staff. It 

further stated that OMB was not trying to influence the job-loss number. Laity believed OSM genuinely 

tried to determine the best way to conduct the analysis in an ambiguous situation and was not selecting 

analytical assumptions to achieve any particular result. 

We interviewed John Morgan, the president of subcontractor Morgan Worldwide, who calculated the 

costs associated with the Stream Protection Rule and actually configured the baseline (Attachments 74, 

75, 76, aud 77). Morgan said he used 2008 coal production data as the baseline for his analysis, which 

included the 1983 rule, and then looked at current industry practices, including what was required for filling 

streams under the Clean Water Act. When asked about OSM's directive that the 2008 rule should be 

applied as the baseline, Morgan said, the contractors were "very clear" that the 2008 rule could not be 

applied. 

Liz Edmondson, Morgan's staff attorney, who was also present for the interview, stated that using the 

2008 rule as the baseline would be difficult since the rule had never gone into effect due to litigation and 

there was no way to know how long the legal case would continue. Edmondson and Morgan stated that 

because of newer Clean Water Act requirements, mining operntors were already expected to comply with 

the major aspects of the 2008 rule, so the baseline issue was a moot point. Regarding the arguments 

between OSM employees and the contractors at the February I, 2011 meeting, Edmondson said OSM 

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might not have known about the Clean Water Act requirements and how they minored 2008 mle 

requirements, 

Both Morgan and Edmondson said OSM employees were not purposely trying to lower the job losses by 

using the 2008 rule as the baseline, Both believed OSM was trying to get an accurate depiction of the 

effects ofth11 proposed mle. 

Although the PKS contract with OSM ended in Marth 20 II, Edmondson and Morgan subcontracted with 

Industria! Economics, the contractor on the EISIRIA projec4 in June 20 ll and have continued 

PKS Contract Initiation, Pcrforman<XJ, aud Conclusion 

We also investigated the allegation that OSM tenninated the contract with PKS when the contractors 

refused to change the job-loss numbers. We examined contract documents, reviewed emails, and 

questioned OSM and contract employees about the contract process, PKS' work product, and any 

problems that occurred during the contract 

Contractlniliation 

Fonner OSM Procurement Chief Nancy S!oanhoffer said OSM decided to award a fim1, fixed-price 

contract to i'KS on May 27,2010, because it rated similarly to its competitors and PKS' price was 

$1 million lower (see Attachments 44 and 45). At OSM's recommendation, PKS subcontracted with 

Morgan Worldwide, MACTEC, and ECSL Sloanhoffer said ECS! was well known for working with the 

coal industry and Morgan Worldwide was known for its environmental work. She said that using ECSI and 

Morgan as subcontractors provided OSM with a balance that represented both environmental and con! 

advocates. 

OSM later added additional tasks to the contract, bringing its total value to $4,981,670 {Attachment 

79}. The initial deadline for completing the draft EIS was November 19, 20 l 0, with three !·year options 

that could later be exercised. 

OSM made several additional modifications to the contract for public scoping meetings. According to 

S!oanhoffer, this extra work was added because a dispute occurred between OSM and the contractors as to 

whether OSM had done official scoplng meetings on the E!S, as requited by NEP A (see Attachments 44 

and 45). Pizarchik later approved the addition of more meetings, which Sloanhoffer said changed the 

contract substantially, 

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OSM continued to issue modifications to the contract for developing alternatives for the proposed 

Stream Protection Rule. Another modification involved the development of a "conceptual" RIA and 

draft EIS. During her interview, OSM Physical Scientist Li-Tai Bilbao, the original contracting officer's 

representative, provided insight into these last two modifications (see Attachments 6 and 1). She explained 

that OSM did not initially provide defined alternatives for the proposed rule, which the contractors needed 

to begin their work. According to Bilbao, John Craynon directed the contractor to prepare the conceptual 

RIA to save time even though Bilbao said there was "no such thing" as a conceptual RIA. Stephanie 

Varvell, who had replaced Bilbao on the project, stated that the change to a conceptual document later 

caused problems when OSM realized that it was not going to receive a product (see Attachments 46 and 

47). 

The "conceptual RIA" issue appeared to contribute to performance issues with the contract. Craynon 

stated during his interview that tight deadlines set by Pizarchik for the EISIRIA, and the fact that the team 

did not have the specificity of what was being proposed in the new rule, prompted him to direct the 

contractors to prepare a conceptual RIA, meaning they would use the rulemaking concepts to develop the 

document (see Attachments 41 and 42). Craynon said the conceptual RIA was explained to Pizarchik and 

possibly the Acting Assistant Secretary for Land and Minerals Management's office, but he did not know if 

they really understood what it meant. 

Pizarchik also stated during his interview that he may have approved a conceptual RIA, but he later 

found out that such a document did not exist (see Attachments 64 and 65). 

Contract Peifo1'mance 

Numerous individuals involved in the EJSIRIA contract, including OSM employees, attorneys with the 

DOl Office of the Solicitor (SOL), and State government employees, expressed concerns with the 

contractors' work as a whole: 

• On September 10,2010, Varvell emailed SloanhotTerthat she was concerned because the 

contractors were requesting more extensions (Attachment 80). She stated that she had nothing 

good to say about the contractors, and that they lacked project management skills and were 

disregarding OSM's requirements. 

• OSM Hydrologist Marcelo Calle emailed colleagues on October 28, 20 I 0, regarding certain 

sections of the EIS, stating that the contractors "did not do their homework" (Attachment 81 ). 

• On November 9, 20 I 0, OSM Hydrologist Debbie Dale emailed other OSM employees about her 

review of the surface water section of the E1S (Attachment 82). She wrote that the section was 

the "most poorly written 'professional' document" she had ever seen, and that it lacked clarity, 

content, organization, and grammar, adding that the section "contained info that was totally 

irrelevant" and lacked data that should have been included. Dale commented: "If this had come 

from one of my entry-level students (when I taught college hydro), I would have failed them." 

• Tom Bovard, Assistant Solicitor, Branch of Surface Mining, SOL, emailed OSM employees on 

January 19, 2011, expressing significant concerns with the contractors' work, particularly their 

focus on the Stream Protection Rule's impact on coal production, rather than the physical 

environment (Attachment 83). 

• The West Virginia Department of Environmental Protection sent Craynon a letter dated January 

26, 2011, stating that Chapter 4 of the E1S, as with previous chapters, "leaves a lot to be desired" 

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(Attachment 84). The letter stated that for a document that was supposed to support a rule 

"anticipated to make sweeping changes" in every technical aspect of coal mining, the document 

displayed "very little depth of understanding" of technical issues. It further stated: ''The 

characterization of this document as 'junk' is not just one person's observation." 

Interviews with OSM, EPA, and some contract employees revealed the same concerns with the contractors' 

products: 

• Varvell said that OSM was concerned about the quality of the work after it received drafts of the 

EIS (see Attachments 46 and 47). For example, she said, sections of the EIS did not appear to be 

coordinated. 

• Bill Winters said that OSM was getting "smoke and mirrors" after it received drafts from the 

contractors and had conversations with them (see Attaclunents 50 and 51). He later stated that there 

were holes in the RIA and he was not sure the contractors knew what they were doing. PKS had 

experience doing project-specific EISs but not programmatic ones such as the proposed Stream 

Protection Rule, he said, which was much broader in scope. 

• Lois Uranowski said she and other OSM employees began getting more involved in the EIS process 

toward the end of20 I 0 because they believed it was "a train wreck about to happen" (see 

Attachments SS and 56). She stated that when OSM employees first received the contractors' 

product, they thought it was a "piece of garbage" and that OSM had wasted time and money. 

• Mary Katherine Ishee said PKS did not have the depth of experience to manage the contract 

well, which contributed to problems with the work (see Attachments 6 I and 62). She said the 

company had never done a project as ambitious as the EISIRIA for the Stream Protection Rule. 

She explained that working on a tight time frame for something so highly visible offered plenty 

of opportunities to "fall down." 

• We also interviewed EPA's Timothy Landers, Environmental Protection Specialist, and 

Matthew Klasen, Special Assistant, Office of Water, who were involved in the EISIRIA review 

process (Attachments 85 and 86). Landers said the EIS chapters provided by PKS lacked focus 

and did not appear to be coherent. Klasen said that it appeared that someone had "dumped" a lot 

ofinformation in the chapters he reviewed. He said a lot of the tables and maps seemed out of 

context and lacked a coherent structure, and described the chapters as disjointed. 

According to Pizarehik, he received information at some point through the process for the E!SIRIA that 

Craynon was not accurately portraying how work was progressing with the contractors (see Attachments 

63 and 64). He said he realized Craynon was not delegating tasks and had difficulty meeting deadlines. 

Pizarchik said he removed Craynon from the E!S team (in late 20 I 0) and that Craynon later took a job at 

Virginia Tech. 

Contract Conclusion 

We reviewed emails related to OSM ending the contract with PKS and its subcontractors. We found that 

emails began to cireulate within OSM about terminating the EISIR!A contract after the Associated Press 

reported that 7,000 coal mining jobs would be lost as a result of the Stream Protection Rule. 

On January 26, 2011, an OSM employee emailed Shawley a link to the Associated Press article, and the 

following day, Shawley emailed Pizarehik, stating: "We should fire the EIS contractor. And put that on 

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the front page!!!!" (Attachments 87 and 88) Several hours later, she emailed SOL Assistant Solicitor 

Jim Weiner that OSM was considering its options for terminating OSM's contract with PKS 

(Attachment 89). Shawley attached an "EIS options" document to the email, listing the pros and cons of 

continuing the contract. terminating the contract for convenience, or terminating the contract for cause. 

She noted that terminating the contract for convenience might look like retaliation. On February 5. 2011, 

Shawley emailed Winters that OSM could "salvage the EIS" with John Morgan, "reject the RIA, and cut 

loose PKS" (Attachment 90). She said OSM could then attempt to sole-source the RIA contract to 

Morgan. 

The cure notice OSM sent PKS on February 8, 2011, stated that PKS' failure to deliver draft chapters of 

the EISIRIA that met the contract's requirements had placed the entire project in jeopardy (see 

Attachment 36). The cure notice stated that unless PKS submitted a draft EISIRIA that cured the 

deficiencies, the Government might elect to terminate the contract for default. 

PKS' response to the cure notice stated that OSM could not terminate the contract since the deficiencies 

were not PKS' responsibility or fault (see Attachment 37). PKS added that it had been frustrated with 

OSM's direction and approval process, highlighting OSM's failure to properly conduct public scoping 

meetings at the outset and provide the contractors with a list of alternatives for the new rule, all of which 

delayed PKS' work. The response also stated that high turnover rates ofOSM project leaders and 

contracting officials compounded delays and caused internal disputes at OSM. It further stated that 

many of the alleged deficiencies in the cure notice were inconsistent with previous direction and 

approvals provided by OSM employees. 

On February 25, 2011, Sloanhoffer issued a stop-work order to PKS, thus ceasing all contract tasks (see 

Attachment 79). 

We obtained a document, dated March 7, 2011, and labeled ''Attorney Work Product Prepared in 

Anticipation of Litigation," in which Shawley recommended that OSM attempt to partially terminate the 

contract with PKS (Attachment 91). She wrote that while OSM could make a case for terminating the 

entire contract, there were benefits to retaining PKS to do some remaining work. She recommended that 

OSM contract with a nationally recognized finn to prepare a new RIA. 

On March 16, 2011, Sarah Zaffina, Attorney-Advisor, Acquisitions and Intellectual Property Branch, 

General Law Division, SOL, sent SOL and OSM employees a recommendation summary on ending the 

contract with PKS (Attachment 9:Z). The document stated that PKS' response to the cure notice failed 

to provide assurance that it could fully perform under the contract; however, based on new information 

provided by the contractors, it appeared that OSM employees were also involved in the contract 

performance issues. SOL recommended that OSM make a last attempt to work with PKS "in a limited 

fashion" but de-scope the contract and remove all substantive work related to the EISIRIA. It stated that 

OSM could finish the EIS in house andre-compete the RIA. The document stated that this approach 

would mitigate public relations issues related to ''terminating the contract because OSM did not like the 

leaked numbers." 

We interviewed Zaffina, who said that SOL and OSM discussed letting the contract expire and not 

exercising the options because this was ''the least obtrusive way" (Attachments 93 and 94). She said 

OSM did not want to contend with the litigation of terminating for cause and the potential oflosing in court. 

Zaffina said she found that OSM employees contributed to problems with the contract. which was one 

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reason the contract could not be tenninated. According to Zaffina, OSM also did not want to tenninate the 

contract for convenience because of problems with the contractors' perfonnance. 

When asked about her statement in the SOL summary about OSM not liking the leaked numbers, Zaffina 

clarified that tenninating the contract would be "a public relations disaster" because the contractors would 

allege that OSM tenninated them due to the leaked numbers. Although Zaffina said that this was OSM's 

biggest fear, she noted that a primary reason for tenninating the contract was that OSM did not have any 

faith that the product would be usable, even if the contractor was given more time to work on it. 

During her interview, Varvell said she suggested to Sloanhoffer that mther than tenninate the contract for 

convenience, OSM should simply end the contract and not renew the option year (see Attachments 46 and 

47). She said she told Sloanhoffer that OSM did not have "absolutely clean hands on this." In the end, she 

said, both OSM and the contractors agreed to end the contract. 

The contract ended on March 24,2011 (see Attachment 79). OSM paid PKS $3,700,269 for its work on 

the contract-$1,281,40 I lower than the original price-including all tasks. Winters sent a "Lessons 

Learned" document to OSM employees for review on March 31, 20 II (Attaebmeot 95). The document 

stated that the accelemted timefmme of the EIS/RIA caused a number of problems and drove poor 

decisions, resulting in "unacceptable work product quality." 

Why the Contract Ended 

DOl employees we interviewed who were involved in the EISIRJA project stated that the PKS contract 

did not end because of the disagreement over changing the baseline for the economic analysis (see 

Attachments I 5, 16, SO, 51, 55, 56, 67, and 68). Most of these individuals outlined problems with the 

contmctors' perfonnance and their lack of experience doing progmmmatic EISs, as documented 

previously. The contractors also acknowledged that they did not have experience doing progmmmatic 

EISs such as the one developed for the Stream Protection Rule (see Attachments 23 and 24). 

OSM employees admitted contributing to problems in getting the work done, including the tight 

deadlines imposed, the new work added at the beginning of the project, and the conflicts in direction 

provided by different OSM employees throughout the project. Pizarchik acknowledged the probability 

that both OSM staff and the contmctor made some bad judgments (see Attachments 63 and 64). 

OSM employees acknowledged that the leak of the job-Joss numbers to the Associated Press brought 

visibility to problems with the contractors, which spurred discussions of ending the contract. Ishee, for 

example, stated that had there been more time, more money, and less publicity surrounding the project, 

the issues probably would have been worked out (see Attachments 61 and 62). Shawley also said that 

had the numbers not been leaked, and had DOl officials not become focused on the contractors' work, 

"it would have been something that OSM dealt with in the back-and-forth of review of this [EIS!RIA] 

document" (see Attachments 67 and 68). 

We also questioned Shawley about her email that OSM should "fire" the EIS contractor (see Attachment 

88). Shawley stated that she had simply been venting (see Attachments 67 and 68). When asked about 

the email between her and Winters, in which she said OSM could "cut loose" PKS and pursue a contmct 

with John Morgan, Shawley said cutting PKS loose meant ending the contmct, not firing the company 

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(see Attachments 67, 68, and 90). Shawley said OSM was considering sole-sourcing the RIA contract to 

Morgan, but eventually contracted with Industrial Economics, with Morgan as a subcontractor. 

Some DOl employees also acknowledged the political implications of getting the rule out before a · 

presidential election year. When asked if OSM ever considered extending the deadlines for the contractor 

to finish the work, Zaffina said she originally proposed going back to the courts about the 2008 SBZ rule 

and getting a continuance, but there was "some feeling that this needed to be done this election year" (see 

Attachments 93 and 94). Ishee also recalled the election being mentioned, but did not feel that it was 

"unduly a concern here" (see Attachments 61 and 62}. We asked Shawley about this issue, and she said 

there was a general concern that the Stream Protection Rule was a priority of the Administration, and 

OSM "wanted to get it done" (see Attachments 67 and 68). Pizarchik acknowledged that the longer the 

EIS/RIA was delayed, the more uncertainty it created, and he wanted the Stream Protection Rule to be 

finished during the President's first term (see Attachments 63 and 64). He said, however, that he still 

wanted a good product. 

The Accuracy oftbe Job-Loss Number 

We examined the accuracy of the job-loss number reported by the Associated Press. In his April 7, 2011. 

testimony before the Committee on Natural Resources, Pizarchik stated that the contractors' job-loss 

numbers did not "have a sound basis" (see Attachment II}. On November 4, 20 II, he testified that the 

contractors' numbers were "fabricated," were based on "placeholder" numbers, and had "no basis in 

fact" (see Attachment 12}. 

The Contractors' Metlwds 

According to ECSI President Steven Gardner, the EISIRIA team had numerous discussions trying to 

determine how it would analyze the impacts of the various Stream Protection Rule alternatives (see 

Attachments 17 and 18). One thought was to develop a "model mine" and then analyze the effects the rule 

would have on a typical mining operation, but the team did not have enough time to do this. Gardner said 

that he, John Craynon, and John Morgan proposed doing an "expert elicitation process," where the 

contractors would analyze the production shifts themselves and then validate their findings by soliciting 

information from mining companies. 

Gardner said they planned to provide the rule alternatives to the mining companies to solicit the 

information. He did not believe this would be an issue since OSM had stated from the beginning that the 

contractors would be seeking input from industry. ECSI was ready to send information packages to the 

companies on December 15, 20 I 0, when Gardner decided to check with Craynon again to ensure that he 

approved soliciting input from the coal industry. Gardner said that Craynon told him not to provide the 

documents to industry because they revealed too much of the proposed rule. Because of this, he said, the 

team was "left with" just the expert elicitation numbers. 

Gardner said the production impacts that the expert elicitation team calculated in association with the new 

rule were provided to MACTEC to input into a software model called IMP LAN, which then computed that 

7,000 jobs would be lost. Gardner said that in the time fhune given for the project, this was the best analysis 

that could be done. He added that the number was lower than he had expected. 

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Case Number: jPl·Pl-t2-0095-I 

Craynon also stated that the initial plan for the E!SIR!A was to obtain input from the coal mining industry 

on the general provisions of the rule alternatives and their eifect on a typical mine (see Attachments 4 l and 

42). He said that an industry survey would be the basis for getting realistic numbers on what the rule would 

do. Cravnon said that Plzarchik knew he planned to take this approach, but Pizarchik changed his mind 

when tl;ey discovered that leaks of info1111ation had occurred at different points during the ElS process. 

Craynon stated that they then had to figure out a different way to conduct the E!S. He said he decided to 

have the contractors conduct a professional elicitation with a panel of expert~ as a methodology to develop 

the best estimate of coal production shifts associated with the different alternatives. Craynon said the 

contractors gave their best professional judgment of how each provision of the rule would affect coal 

production, and then calculated a percentage change, 

Morgan said he developed the figures for the RIA that were eventually used to calculate the job losses in the 

EIS (see Attachments 74, 75, 76, and 77}. He described them as an initial approximation, but acknowledged 

he may have used the word "placeholder" to describe them to OSM staff. The numbers were based on his 

review of historic mining data and his knowledge of mining regions lllld what the proposed rule 

components and effects would have, he said, Edmondson, Morgan's staff attorney, explained that Morgan 

planned to go back and get supporting documentation to back up the costs and make them as accurate as 

possible. 

Agent's Note: The job-loss number was leaked 10 the media before Morgan cauld do this. 

Morgan estimated that his error range for the cost to industry was 20 to 25 pereent and 10 percent for the 

coal production shift calculation, He said he would "stand behind" his numbers. He said Pizarchik's 

comments about the inaccuracy of the numbers was a "knee-jerk reaction to a very good sound bite" in the 

press about job losses, "which played into the politics at the time." 

Morgan also told us he disagreed with the use of the IMP LAN software used to compute the job-loss 

numbers and said he expressed disagreement with using it from the beginning. He explained that his 

concern was that llv!PLAN model was too simplistic. 

OSM Emplayees' Views of the Contractor's Approach 

'!'fe also interviewed OSM employees on their views ofthe contractors' methods and the accuracy of the 

JOb-lo~s numbers. Uranowski disagreed with the expert elicitation approach (see Attachments 55 and 56}. 

She smd the contractors were not able to explain how they came up with their findings from this method. 

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Case Number: \Pl-PI-12·0095-1 

She later said that Craynon seemed to be unilaterally approving decisions on the EISfRIA without soliciting 

input from others. 

Winters said that OSM and the contractors agreed to use the expert elicitation process because the timeline 

for finishing the EIS was tight (see Attachments 50 and 51). Later in the ElSfRIA process, however, the 

contractors were unable to describe how they arrived at their fi!1lll numbers, he said. Winters said OSM also 

questioned the contractors' use of the 1M PLAN software modeL 

When asked about the contractors' original plan to solicit the coal mining industry for input, Winters said 

that OSM did not like that idea because it feared operJtors might inflate their costs. OSM consequently told 

the ~ontractor not to solicit infcnnation from the industry, and that operators would have a chance to voice 

their concerns once the rule was published. 

Winters did not believe the numbers used by Morgan for the RIA were fabricated. He thought they were a 

"first-pass estimation." Nonetheless, he said, the job-loss number was inaccurate because the data used to 

produce it were flawed and the contractors did not consider any environmental benefits that might result 

from the Stream Protection Rule. 

Similar to Winters and Uranowski, Pizarchik told us that the contractors could not explain how they 

came to their conclusions (see Attachments 63 and 64 ). Without having that type of information, he said, 

he could not explain to anybody in DOt or in the Administration how the numbers were derived, 

"let alone" defend the conclusions in any future litigation. 

We asked Pizarchlk where the term "placeholder," which he used to describe the numbers used by 

Morgan to calculate coal production losses and costs to industry, came from. Pizarchik said his staff 

informed him that the contractor had used a "placeholder" number. He said he understood the word 

meant that the number had "no basis to the fo1mula" and "no basis in reality." 

Issues With the New Contract 

On April 19, 2() 11, OSM requested approval from Assistant Secretary for Land and Minerals 

Management Wilma Lewis to re-compete the work on the RIA (Attachment 96). The new RIA 

contractors, which included Industrial Economics, Morgan Worldwide, and Ventures Analysis 

contractors have 

(see Attachments 74 

We interviewed Emily Medine, a principal of EVA, which specializes in coal, natural gas, a!ld 

environmental issues (Attachments 97 and 98). According to Medine, she began working on the RIA fer 

the proposed Stream Protection Rule in the summer of2011 after EVA began subcontracting with 

Industrial. 

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21 

Case Number: (Pi-P!-12-0095-1 
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Case Number: 1-Pl-12-0095-1 

•••••••••••. She 

§UBJECTS 

Edmondson on this 

requirements for 

again explained 

for the new RIA, and this 

L Joseph Piznrchik, Director, OSM. 

2. Dianne Shawley, former Counsel to the OSM Director and currently Senior Adviser for Enforcement 

Programs, Bureau of Safety and Environmental Enforcement. 

J}ISPOSITION 

We are providing this report to the Principal Deputy Assistant Secretary for Land and Minerals 

Management for any action deemed appropriate. 

April30, 2010 

May27,20l0 

November 3, 2010 

January 4, 2011 

January 26, 2011 

TIMEUNE OF EVENTS 

OSM announces that it will develop the Stream Protection Rule after the 

courts denied a 2009 request by Secretary Salazar to vacate the 2008 SBZ 

rule. 

OSM hires PKS and several subcontractors to create the EIS and RIA for the 

draft Stream Protection Rule. 

OSM Dennis Rice emails OMB Policy Analyst Jim 

for comparing the Stream Protection Rule 

would be the "status quo,'' not 

EIS/RIA Team Lead John Cmynon emails one of the contractors reinforcing 

that the RIA baseline would not include the 2008 rule. 

OSM Environmental Protection Specialist Harry Payne emails OSM 

ElS/RIA team members Bill Winters and Lois Uranowski that the "bottom 

line" was that the Stream Protection Rule was going to cost the coal mining 

industr about $1.3 blllion to im lement. 

OSM Counsel Dianne Shawley asks Craynon if the baseline assumed 

implementation of the 2008 SBZ rule and if he knows the cost of industry 

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March 16,2011 

Mardll4, 20H 

April7,lOU 

April19, :z~n 

November 15, 2011 

Case Number: jri-PI-l2-0U95-I 

Deputy Secretary David Hayes testifies that DOl disagrees with the 

contrnctors' analysis, and if the new drafts are not appropriate, DOl would 

terminate the contract 

SOL Attorney-Advisor Sarah Zaffina recommends that OSM de-scope the 

contract, finish the EIS in house, and re-com ete the RIA. 

OSM submits a request to re-compete hires 

Industrial Economics, subcontracting with Morgan and EVA, to 

erform the work. 

ECS! President Steven Gardner testifies that OSM employees had 

"<'""'"''NI" that ECSI and other contractors usc the 2008 SBZ rule as the 

which he describes as a "fabricated" scenario. 

NAMEUST 

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Case Number: jPI-PI-Il-0095-Ij 

Name Title 

Landers, Timothy Environmental Protection Soecialist, Environmental Protection Agency 

Laporte, Edmundo Senior Vice President, Engineering Consultine: Services. Inc. 

Medine, Emily Princioal, Enerliv Ventures Analvsis 

Mor211n. John President, More:an Worldwide 

Owens, Glenda Deputv Director, Office of Surface Mining, U.S. Deoartment of the Interior 

Payne. Harry Environmental Protection Specialist, Office of Surface Mining, U.S. 

Denartment of the Interior 

Pizarchik. Joseph Director, Office of Surface Mining, U.S. Department of the Interior 

Rice, Dennis Regulatory Analyst, Office of Surface Mining, U.S. Department of the 

Interior 

Salazar, Ken Former SecretarY; U.S. Department of the Interior 

Shawley. Dianne Former Counsel to the Director, Office of Surface Mining, and currently 

Senior Adviser for Enforcement Programs, Bureau of Safety and 

Environmental Enforcement, U.S. Deoartment ofthe Interior 

Sloanhoffer, Nancy Former Procurement Chief and Contracting Officer, Office of Surface 

Mining, U.S. Deoartment of the Interior 

Sosa, Jose Former Part Owner of Potu Kai Services 

Unsworth, Robert Principal, Industrial Economics 

Uranowski, Lois Chief of the Ecological Services and Technology Transfer Branch, Division 

of Technical Support, Office of Surface Mining, U.S. Department of the 

Interior 

Varvell, Stephanie Senior Program Analyst and Contracting Officer's Representative, Office of 

Surface Mininl!, U.S. Deoartment of the Interior 

Weiner, Jim Assistant Solicitor, Office of the Solicitor, U.S. Deoartment of the Interior 

Winters, Bill Chiefofthe Knoxville Technical Division, Office of Surface Mining, U.S. 

Department of the Interior 

Zaffma, Sarah Attorney-Advisor, Acquisitions and Intellectual Property Branch, General 

Law Division SOL 

Zaluski, Joseph Executive Vice President, Eneineerinl! Consulting Services, Inc. 

ATTACHMENTS 

I. Memorandum from the General Counsel of the Office of Inspector General to the Program 

Integrity Division, analyzing the 2008 Stream Buffer Zone rule and related litigation, dated 

January 31,2012. 

2. Agreement to Settle Cases Seeking Judicial Review of the 2008 Stream Buffer Zone Rule, dated 

March 19, 2010. 

3. National Environmental Policy Act background, www.epa.gov/regionl/nepa 

4. Contract documents for the Stream Protection Rule Environmental Impact Statement, including 

contract modifications and the statement of work. 

5. "Regulatory Impact Analysis: A Primer." 

6. JAR lnterviewofLi-Tai BilbaoonJanuary23,2012. 

1. Transcript of interview with Li-Tai Bilbao on January 23,2012. 

8. Associated Press article dated January 26. 2011. 

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9. Draft Environmental Impact Statement, Chapter 4, Environmental Consequences, dated January 

12,201 L 

I 0. Transcript of U.S. House of Representatives Committee on Appropriations hearing on March 8, 

2.011. 

ll. Transcript of U.S. House of Representatives Committee on Natural Resources hearing on April 

7, 20ll. 

12. Transcript of U.S. House of Representatives Committee on Natural Resources hearing on 

November 4, 20! L 

13. Testimony of Steven Gardner before the U.S. House of Representatives Committee on Natural 

Resources, dated November 15,201 L 

!4. Fox News article, dated November 18,2011. 

!5. IAR Interview of Harry Payne on January 26,2012. 

! 6. Tronscripl of Interview ofl-!arry Payne on January 26, 20 12.. 

17. IAR- Interview of Steven Gardn.:r and Jeffrey BaiJxl on AprH 10, 2012. 

18. Transcript ofintervlew of Steven Gardner and Jeffrey Baird on April 10, 20!2. 

19. IAR-InterviewofDennisRiceonJanuary 10,2012. 

2.0. Tmnscrlpl ofinterview of Dennis Rice on January 10,2012. 

21. IAR -Interview of Joseph Zaluski and Edmundo Laporte on Aprilll, 2012. 

22. Transcript of interview of Joseph Zaluski and Edmundo Laporte on April II, 2012. 

23. IA.R -Interview of Jose Sosa on February 17, 2012. 

24. Transcript of interview of Jose Sosa on February 17, 2012.. 

25. Emails between Dennis Rice to Jim Laity on November 3, 2010. 

26. Email from Dennis Rice to Donald Iannone, copying other OSM team members, dated 

November 5, 20l0. 

27. Email from John Craynon to Steven Gardner, copying other contracts, dated December 9, 2010. 

2&. Email from Harry Payne to Bill Winters and Lois Uranowski, dated December 9, 2010, 

29, Email from Dianne Shawley to John Craynon, dated January 4, 201 I. 

30. Email from Dianne Shawley to John Craynon, dated January 4, 20 II. 

3 L !AR- Review of February 1, 20!1 audio file. 

32. Transcript of February l, 20 II meeting. 

33. Email from Steven Gardner to contractors, dated February 5, 20 ll. 

34. Email from Edmundo Laporte to Steven Gardner and contractors, dated February 6, 20 ll. 

35. Email from Jose Sosa to contractors, dated February 8, 2011. 

36. Cure notice to PKS, dated 8, 2.01 l. 

37. PKS response to cure notice, 23, 201!. 

38. Emails between Dennis Rice, Andy DeVito, Dianne Shawley, and Bifl Wintl:!rs, dated February 

l6, 20! I. 

39, Email from Dianne Shawley to Andy DeVito, dated March 3, 201 1. 

40. Email from Dianne Shawley to Bill Winters and Harry Payne, dated March 4, 2011. 

41. lA.R -Interview of John Craynon on April26, 20!2. 

42, Transcript of interview of John Craynon on April 26, 20 12. 

43. !AR~Reviewofemai!s, dated June !3, 2012. 

44. !AR-lnterview of Nancy Sloanhoffer on January 1 !. 20!2. 

45. Transcript of interview of Nancy Sloanhoffer on January ! , 2012. 

46. IAR -Interview of Stephanie Varveii on April II, 2012. 

47. Transcript ofinterview of Stephanie Varvel! on April ll, 2.012.. 

48. lAR- Interview of Andy DeVito on June 27, 2012.. 

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49. Transcript ofinterview of Andy DeVito on June 27,2012. 

50. JAR- Interview of Bill Winters on January 25, 2012. 

51. Transcript of interview of Bill Winters on January 25, 2012. 

52. JAR -Interview of Bill Winters on June 12, 2012. 

53. Transcript of interview of Bill Winters on June 12, 2012. 

54. Conceptual Regulatory Impact Analysis Summary, Office of Surface Mining Stream Protection 

Rule, page 12, dated December 23, 20 I 0. 

55. JAR- Interview of Lois Uranowski on January 26, 2012. 

56. Transcript of interview of Lois Uranowski on January 26,2012. 

57. JAR- Interview of Lois Uranowski on July 2, 2012. 

58. Transcript ofinterview of Lois Uranowski on July 2, 2012. 

59. JAR-Interview of Glenda Owens on July 16,2012. 

60. Transcript of interview of Glenda Owens on July 16, 2012. 

61. JAR-Interview of Mary Katherine Ishee on July 13,2012. 

62. Transcript of interview of Mary Katherine Ishee on July 13, 2012. 

63. JAR- Interview of Joseph Pizarchik on July 16,2012. 

64. Transcript of interview of Joseph Pizarchik on July 16,2012. 

65. JAR- Interview of Sylvia Baca on July 18,2012. 

66. Transcript of interview of Sylvia Baca on July 18,2012. 

67. JAR-Interview of Dianne Shawley on August 8, 2012. 

68. Transcript of interview of Dianne Shawley on August 8, 2012. 

69. Documents provided by Dianne Shawley. 

70. JAR- Interview of Dennis Rice on August 21, 2012. 

71. Transcript of interview of Dennis Rice on August 21, 2012. 

72. Questions for Jim Laity and answers from the Office of Management and Budget. 

73. JAR- Conversation with Thomas Hitter on July 12, 2012. 

74. JAR- Interview of John Morgan and Liz Edmondson on April 11, 2012. 

75. Transcript of interview of John Morgan and Liz Edmondson on Aprilll, 2012. 

76. JAR- Interview of John Morgan and Liz Edmondson on August 29, 20 I 2. 

77. Transcript ofinterview of John Morgan and Liz Edmondson on August 29, 2012. 

78. Contract with Industrial Economics for the Stream Protection Rule Regulatory Impact Analysis, 

dated June 17, 2011. 

79. JAR- Review of contract, dated April23, 2012. 

80. Email from Stephanie Varvel! to Glenda Owens and Nancy Sloanhoffer, dated September 10, 

2010. 

81. Email from Marcelo Calle to team members, dated October 28,2010. 

82. Email from Debbie Dale to team members, dated November 9, 2010. 

83. Email from Tom Bovard to team members, dated January 19,2011. 

84. Letter from the West Virginia Department of Environmental Protection to John Craynon, dated 

January 26, 20 II. 

85. IAR- Interview of Timothy Landers and Matthew Klasen on January 13, 2012. 

86. Transcript of interview of Timothy Landers and Matthew Klasen on January 13,2012. 

87. Email from Peter Mali to Dianne Shawley, dated January 26, 20 II. 

88. Email from Dianne Shawley to Joseph Pizarchik, dated January 27, 2011. 

89. Email from Dianne Shawley to Jim Weiner with "EIS Options" document, dated January 27, 

2011. 

90. Email from Dianne Shawley to Bill Winters, dated February 5, 20 II. 

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Case Number: jPI-PI-11-0095-1 l 

91. "Attorney Work Product Prepared in Anticipation of Litigation," dated March 7, 2011. 

92. Email from Sarah Zaffina to Dianne Shawley, Jim Weiner, Nancy Sloanhoffer, and Stephanie 

Varvell and "SOL Recommendation" document, dated March 16,2011. 

93. lAR-lnterview of Sarah Zaffina on July 2, 2012. 

94. Transcript of interview of Sarah Zaffina on July 2, 2012. 

95. Email from Bill Winters to Dianne Shawley, Lois Uranowski, Harry Payne, and Paul Ehret with 

"Lessons Learned" document, dated March 31, 20 II. 

96. Letter from Joseph Pizarchik to Wilma Lewis, dated April 19, 2011. 

97. IAR-Interview of Emily Medine on January 26,2012. 

98. Transcript of interview of Emily Medine on January 26, 20 12. 

99. National Mining Association v. Environmental Protection Agency and Sierra Club. 

I 00. IAR- Email from Matthew Klasen on January 30, 2012. 

I 0 I. Interview of Robert Unsworth and Leslie Genova on February 2, 2012. 

I 02. Transcript of interview of Robert Unsworth and Leslie Genova on February 2, 2012. 

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Examples of Best Practices related to the proposed Stream 

Protection Rule 

OSMRE Appalachian Region 

West Virginia 

Underground Mine Post Mining Hydrologic Evaluation (2012): WVDEP modified a policy 

to clarify that underground mines had to have monitoring data that would reflect whether the 

mine would discharge problematic water (quantity or quality) after the mine is closed. This was 

implemented because it sometimes takes decades for the mine voids to fill and unpredicted 

discharges have occurred. 

Storm Water Runoff Analysis (2006): WVDEP developed regulations requiring operators to 

model storm water flow on the mining area to demonstrate that mining would not increase peak 

flow discharge when compared to pre-mining conditions. 

Approximate Original Contour Guidance (2004): The West Virginia Department of 

Environmental Protection, as a result of a litigation settlement, developed a guidance document 

that provides a consistent engineering method for determining how much material must be 

stacked back on the mountain and how much may be placed in valley fills. The method was 

developed with, and agreed to by, the environmental groups that were plaintiffs in the litigation 

and members of the coal industry: 

Valley Fill Construction (2000): WVDEP developed regulations eliminating end-dumping of 

hollow fills and required "bottom-up" construction in lifts. (Note: WV allows up to 50' lifts) 

Ohio 

On the Oxford D-2266, Beagle Club permit located in Belmont County near St. Clairsville, Ohio, 

the operator voluntarily skipped mining approximately 2000' of headwater stream and riparian 

areas. Mining was completed in the spring of2010. Despite the mining disturbance of several 

thousand feet of intermittent and perennial streams and several wetlands, with the headwaters 

intact, re-establishment of the riparian areas and geomorphically designed stream reconstruction, 

species health came back almost instantly. Also, tree survival rate in the reconstructed riparian 

was about 95 percent due to the use of alluvial type soils. 

Oxford's Jockey Hollow West Mine, permit D-2255, located in Harrison County, near 

Moorefield, Ohio, demonstrates where the forestry reclamation approach was used to promote 

successful tree planting. The area was surface mined in the 1950s and 1960s. The former 

mining company mined the #9 coal seam and proceeded to take one contour cut along the #8 

coal seam, leaving water-filled pits and exposed highwalls. Oxford's mining operation 

eliminated these AML features. The pre-mining land use was undeveloped and the post-mining 

land use is undeveloped with trees planted on 60 percent of the affected areas. 
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Insert offset folio 76 here 98945.076

The State of Ohio owns the property which the Ohio Department ofNatural Resources, Division 

of Wildlife manage as part of the Jockey Hollow Wildlife Area. Oxford worked with DMRM, 

OSMRE, and other partners including Ohio University, the Ohio Division of Wildlife, the Wild 

Turkey Federation, the American Chestnut Foundation, and several others to make this project a 

success. Oxford planted the area in two phases, with the first phase planted on the southern 

portion in the spring of2008. In this area, they planted a mixture of hardwood trees, including 

3,000 American chestnuts. The planted chestnuts included two types of hybrid trees (15/16ths 

and 7/Sths pure American) and a pure American chestnut variety. The northern half of the mine 

area was planted with another 2,000 American chestnuts in the spring of2009. Approximately 

5,000 chestnuts were planted at the Jockey Hollow site, making this site the largest planting of 

chestnut trees on mined lands in the eastern coal fields. 

Tennessee 

The State of Tennessee has adopted statutes and regulations designed to protect water 

quality. Tennessee Code Annotated, Section 69-3-108, was amended in 2009 to require that for 

activities related to the surface mining of coal or the surface effects of underground mining, with 

limited exceptions, no coal mining or disposal of spoil or coal waste materials may occur within 

100 feet of the ordinary high water mark of a stream. Under the Responsible Mining Act, if the 

State determines that surface coal mining at a particular site will violate water quality standards 

because acid mine drainage from the site will not be amenable to treatment with proven 

technology both during the permit period or subsequent to completion of mining activities, the 

state NPDES permit must be denied. Thus, in effect, no valley fills, mining activities, or in 

stream ponds are permitted under the Clean Water Act in Tennessee. 

Kentucky 

Kentucky's Approximate Original Contour/Fill Minimization Protocol is also known as the "Fill 

Placement Optimization Process." These guidelines provide coal mining companies a set of 

consistent and reasonable engineering processes they can use when their proposed operations 

could impact the headwater streams in Kentucky. This engineering protocol was spearheaded by 

the Kentucky Department for Natural Resources (DNR) and included extensive state and federal 

collaboration with special representation from both Kentucky's environmental and coal industry 

to comply with the requirements of both SMCRA and the Clean Water Act. 

An engineering team representing Kentucky DNR, U.S. Anny Corps of Engineers, the Kentucky 

coal mining industry, a Kentucky environmental group and the U.S. Office of Surface Mining 

Reclamation and Enforcement developed the excess spoil fill design protocol. The protocol 

meets SMRCA's stability and AOC requirements and the alternatives analysis for minimizing 

stream impact required by the CW A. The protocol maximizes the amount of coal mine spoil 

returned to the coal mined area while minimizing the amount of coal mine spoil placed in excess 

disposal sites, i.e. "valley fills." In tum, this minimizes the impact to aquatic and terrestrial 

habitats in watersheds below the mining operation. 
122 


Insert offset folio 77 here 98945.077

University of Kentucky Robinson Forest- Guy Cove Project 

In 2008 construction began on a multi-faceted geomorphic reclamation project on this l 00 acre, 

first order watershed, mined in the early 1990s. The project includes the Forestry Reclamation 

Approach, stream creation, and a passive treatment system to restore the form and function of a 

mined first order water-shed. This study, named the Guy Cove Project, is being conducted by 

the University of Kentucky in partnership with the Kentucky Department of Fish and Wildlife, 

the Kentucky Department for Natural Resources, OSMRE, and the Army Corp of 

Engineers. Itutilizes a multi-stmtegy approach with three remediation procedures: 

• valley-fill reconfigumtion with the creation of a surface-flowing intermittent and four 

ephemeral streams; 

• reforestation using the Forestry Reclamation Approach; and 

• creation of a bioreactor-wetland treatment system. 

The objectives of this Restoration Project are to: 

Recreate headwater stream functions in an economically feasible manner (perennial 790 

feet, intermittent 2,495 feet, and ephememl I ,555 feet); 

Attenuate runoff events to reduce peak discharges and increase base flows; 

• Promote surface expression of water and enhance wetland treatment efficiency to 

improve water quality; 

• Improve habitat through the development of vernal ponds and a hardwood forest; 

• Establish an outdoor classroom for demonstrating design principles, construction 

techniques, and measurement of system performance; and 

• Educate a myriad of stakeholders including consulting and mining engineers, land 

reclamation design professionals, the regulatory community, environmental advocacy 

groups, and students. 

WEEP BERMS 

Middle Fork Development Corpomtion 

263 Acre Surface Mine in Magoffin County 

Approved mining methods: Area and Remining. 

Post Mining Land Use is Forestland using Forestry Reclamation Approach 

Experimental Practice replaces the natural berm with a stable engineered earthen berm. 

The constructed earthen berm will collect runoff and allow passive infiltration and seepage that 

diffuses runoff or "Weeps" into the natural forested area. Weep berms have been designed to 

better mimic the pre-mining hydrology. Middle Fork used surface mine permit 877-0191 as a 

demonstration mine to prove that a surface mine can be designed and mined to minimize impacts 
123 


Insert offset folio 78 here 98945.078

from specific conductivity and metals from entering the waters of the United States. The mining 

and reclamation plans, put forward by Dr. Richard Warner with the University of Kentucky and 

Mr. Greg Higgins with Middle Fork, included the following: I) isolation of spoil that would 

normally increase specific conductivity; 2) reduction of spoil exposure to weather by mining and 

reclaim in a very contemporaneous manner; 3) use of the Forest Reclamation Approach (FRA) to 

reduce surface runoff; and 4) installation of check dams and weep berms to remove the sediment 

and create a diffuse discharge that replicates the forest hydrology and environment. The new 

mining techniques were compared to existing mining methods to illustrate the benefits that 

included elimination of excess spoil disposal in valley fills, elimination of instream or on bench 

sediment ponds because of the diffuse flow, elimination of stream loss because fills and instream 

ponds weren't necessary to control and treat runoff, and a reduction in runoff because of the 

FRA approach that minimizes compaction and promotes loose dumping of mine spoil to promote 

infiltration. 

Under the Surface Mining Control and Reclamation Act and the implementing Federal 

regulations (30 CFR §785.13), a variance from environmental protection performance standards 

for experimental or research purposes, or to allow an alternative postmining land use, may be 

undertaken if they are approved by the regulatory authority (Kentucky Department of Natural 

Resources) and the OSMRE. For the weep berms to be installed on this project, a major revision 

addressed the experimental practice and the request to waive the Federal and State requirement 

to maintain a natural berm. OSMRE approved the Experimental Practice for Middle Fork permit 

number 877-0191 in the spring of2013. 

OSMRE Mid-Continent Region 

During the 1980's, the Illinois Department of Mines and Minerals (state regulatory authority) 

approved under SMCRA the mining and restoration of three of the largest perennial stream 

relocation projects as a result of surface coal mining. Several Illinois surface mines, the state 

regulatory authority, the Illinois Department of Conservation and the Southern Illinois University 

of Carbondale's Cooperative Wildlife Research Laboratory (CWRL) developed a plan that 

accounted for the restoration of both hydrologic and biological function as part of the 

reclamation of the plans that allowed for mining through Bonnie, Galum and Pipestone Creeks in 

Perry County, Illinois. Currently restored to their same locations these streams were subject to 

reassessment as part of an Applied Science project funded by OSMRE between the years 2011 

and 2013. This study, conducted cooperatively by the U.S. Geological Survey and the Southern 

Illinois University- Carbondale's CWRL, examined the streams water quality, fish and 

macroinvertebrates, stream stability, hydraulics, riprarian wildlife habitat and wetland soil 

quality. These were compared to nearby unmined Little Galun1 Creek. 

Overall, the study concluded that based on most of the stream water quality, wetland soil quality, 

hydraulic and stream stability, and wildlife habitat parameters measured, the streams and riparian 

systems have been restored to a level comparable to that of an unmined area. The report did note 

that there were a few parameters that will take longer to recover such as canopy cover and soil 

quality in deeper horizons and iliat certain sections of the restored streams channels show 
124 


Insert offset folio 79 here 98945.079

instability having not yet established equilibrium. In summary the restorations provided wide 

accessible floodplains with wooded riparian corridors and sinuous streams were a large 

improvement from the straight-line diversion channels that were common historically. While 

riparian processes were relatively quickly restored and water quality was maintained at near premining conditions, in-stream processes and form will take longer to recover. 

As a demonstration ofBMP's, the Indiana Division of Reclamation, took extraordinary 

precautions to protect the hydrologic balance in relation to the Hymera Mine located in close 

proximity to the town of Hymera in Sullivan County, Indiana. The Indiana Division of 

Reclamation placed numerous conditions on the operations which focused on maintaining water 

levels in existing abandoned underground mine workings in an effort to prevent subsidence and 

adverse impacts on nearby lakes and streams. Specifically, the conditions aimed to prevent 

dewatering of the old works which could increase the likelihood offurther subsidence and ensure 

protection of the hydrologic balance and prevention of offsite impacts. Safeguards that were 

placed in the permit required the operator to: set trigger elevations on the water levels in the 

underground mine pools and monitor these levels on a daily basis; fully delineate the old mine 

works in the vicinity; size coal barriers sufficiently to minimize seepage and prevent drainage 

from the existing mine pools; and have a plan in place to immediately investigate any inflow into 

the mine pit and backfill if found to be from the mine works. 

OSMRE Western Region 

Montana, Wyoming, New Mexico 

Surface mining and reclamation activities in Western Region states typically occur in semi-dry 

areas; such as, the Powder River Basin in Montana and Wyoming, and the San Juan Basin in 

New Mexico. 

Streams in these regions can quickly go from zero flow to flood events after storms. Flood 

events can impact mining and reclamation operations as well as damage property and the 

environment. 

Mine operators in these areas recognize the importance of understanding the hydrologic 

characteristics of streams. As such, some operators typically exceed SMCRA requirements for 

the collection of baseline hydrologic monitoring data. Currently, our regulations require baseline 

hydrologic monitoring data (quality and quantity) on surface water and groundwater sufficient to 

demonstrate seasonal variations and water usages. Some regulatory agencies have interpreted 

these requirements as meaning conducting only two baseline sampling events, one during a lowflow event and another during a high-flow event. We believe that an operator needs more than 

two sampling events to adequately characterize baseline hydrologic conditions (quality and 

quantity) in the permit and adjacent areas. Hence, in the proposed SPR, we require the operator 

collect 12-monthly samples for surface water and groundwater monitoring sites deemed 

necessary to characterize baseline hydrologic conditions (quality and quantity) in the permit and 

adjacent areas. 
125 


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Arizona 

At the Kayenta Mine Complex in northern Arizona, Peabody Western Coal Company 

implements surface water monitoring stations with telemetry to remotely collect surface flow 

data to capture the complete hydrologic event. The hydrologic information is not only 

valuable for mine plan operations, but enables the regulatory authority to make more informed 

decisions on the Cumulative Hydrologic Impact Assessment prepared by the regulatory 

authority. 

Managing the highly variable flow events in the Western Region is also accomplished through 

adherence to Approximate Original Contour (AOC) requirements using landfonning reclamation 

principles. Restoring to the pre-mining drainage pattern manages the volume of water during 

the precipitation event, and erosive forces are dissipated by reclaiming mined through streams 

with sinuous channels. Stream reclamation using landforming principles occurs at several mines 

in the Western Region. The SPR proposes that the post-mining drainage pattern of all streams be 

similar to the pre-mining drainage pattern to ensure stability, minimize downcutting, and 

enhance fish and wildlife habitat. Western Region operations where landforming reclamation 

principles are applied include the New Mexico San .Juan Mine, and McKinley Mine and Navajo 

Mine on the Navajo Reservation to name a few. 

The Western Region coal mining and reclamation operations are large, and may influence multiuse aquifer systems. For example, coal bed methane development is comingled with coal mining 

operations in the Wyoming Powder River Basin. As such, a robust hydrologic monitoring 

program is employed to enable the regulatory authority to discern the hydrologic impacts 

associated with coal mining. Additionally, mine operations in the Powder River Basin 

independently formed an organization to collectively monitoring and evaluate regional 

hydrologic impacts. The SPR proposes increased baseline groundwater monitoring, and 

monitoring during mining and reclamation to allow the detection of hydrologic impacts prior to 

rising to a level of Material Damage. Other examples of multi-use regional aquifers in 

proximity to coal mining operations include the Black Mesa Navajo aquifer in northern Arizona, 

and the Star Point Sandstone aquifer in central Utah. 

Award Winners related to the proposed Stream Protection Rule 

2007 Active Mine Reclamation Award Winners 

Foundation Coal West, INC., Belle Ayr Mine, Caballo Creek Channel Reclamation, 

Wyoming 

Noting the importance of water in this semi-arid area, reclamation began before the Surface 

Mining Control and Reclamation Act (SMCRA) was signed in 1977 and has resulted in 3.3 miles 

of reclaimed stream. It has been built to replicate the pools and runs of a typical prairie stream 

system enabling fish and wildlife to survive in all but the driest conditions. As the stream 

restoration continues furthering the perennial designation, reconstruction of a small recreational 

lake is planned. 
126 


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U.S. Senate Committee Energy and Natural Resources 

October 2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Todd Parfitt 

!.WSi~UJ. There was a great deal of testimony during the hearing regarding the 

Clean Water Act. Will you please explain how the proposed rule relates to or 

interacts with the Administration's Clean Water Rule, specifically, and the Clean 

Water Act, generally? 

The proposed Stream Protection Rule relies extensively on the definition of "waters of the 

United States" promulgated by the U.S. Environmental Protection Agency and U.S. Army 

Corps of Engineers in the Administration's Clean Water Rule. The Stream Protection Rule 

specifically incorporates the Clean Water Rule's definition of "waters of the United States" 

in proposed revisions to 30 C.F.R. § 701.5 (definitions). See 80 Fed. Reg. 44,436,44,586-88 

(July 27, 2015). The Stream Protection Rule then restricts surface mining activities in 

"waters of the United States" unless those activities are performed in compliance with the 

Clean Water Act. See, e.g., 80 Fed. Reg. at 44,515, 44,549, 44,552. The express connection 

between the new definition of "waters of the United States" as articulated in the Clean 

Water Rule and the proposed Stream Protection Rule creates uncertainty for state and 

federal regulators and the regulated community because the Administration's Clean Water 

Rule has been stayed by two federal courts in response to litigation brought by 31 statesincluding Wyoming- and dozens of other parties. The District Court for the District of 

North Dakota and the Sixth Circuit Court of Appeals have both issued preliminary rulings 

indicating that the states are likely to succeed on their claims that the Administration 

violated the Clean Water Act and the Administrative Procedure Act when promulgating the 

Clean Water Rule by asserting jurisdiction over waters and dry land that are traditionally 

regulated by the states pursuant to state law. The proposed Stream Protection Rule relies 

on the Clean Water Rule to regulate activities in ephemeral drainages and other lands that 

historically have not been subject to Clean Water Act jurisdiction. Until the litigation over 

the Clean Water Rule has been resolved, the Office of Surface Mining Reclamation and 

Enforcement (OSM) should not rely on that Rule as a basis for its regulatory authority. 

The proposed Stream Protection Rule also infringes on other matters that are 

appropriately regulated under the Clean Water Act. For example, the proposed rule 
127 


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Chairman lisa Murkowski 

November 17, 2015 

RF: Stream Protection Rule 

Page 2 

effectively creates new water quality monitoring requirements beyond those that may be 

required by the states under their delegated Clean Water Act program authorities. The 

proposed rule requires operators to perform baseline and performance monitoring for a 

list of potential pollutants that may not be applicable to all sources, and to assess the 

biological condition of all surface waters potentially impacted by mining activities. See, e.g., 

80 Fed. Reg. at 44,606-7. These requirements are intended to be administered in addition 

to any other applicable requirements imposed by state or federal authorities under the 

Clean Water Act While additional monitoring may be appropriate and desirable in certain 

contexts, the decision to impose such requirements should be made by the delegated Clean 

Water Act administrators in each state, not the SM CRA permitting authorities. 

The proposed rule also attempts to transfer enforcement responsibility for Clean Water Act 

violations to the SMCRA permitting authority. For example, the proposed rule authorizes 

the SMCRA permitting authority to bring an enforcement action against an operator under 

SMCRA for failing to obtain Clean Water Act authorizations prior to conducting regulated 

activities. See, e.g., 80 Fed. Reg. at 44,515. Clean Water Act permitting conditions would 

also be incorporated into SMCRA permits pursuant to tbe proposed rule, enabling the 

SMCRA permitting authority to bring enforcement actions against operators for alleged 

Clean Water Act violations. See id. OSM does not have the authority to enforce the Clean 

Water Act pursuant to SMCRA. Indeed, qulte the opposite is true, as OSM itself has 

recognized in the past: "Nothing in SMCRA provides the SMCRA regulatory authority with 

jurisdiction over the Clean Water Act or the authority to determine when a permit or 

authorization is required under the Clean Water Act ..• In addition, nothing in tbe Clean 

Water Act vests SCMRA regulatory authorities with the authority to enforce compliance 

with tbe permitting and certification requirements ofthat law." 73 Fed. Reg. 75,814, 

75,842 (Dec. 12, 2008). The proposed rule infringes on state authority under the Clean 

Water Act, and creates a dual system of enforcement for Clean Water Act violations that 

would be confusing, inefficient, and repetitive for regulators and the regulated community. 

Question 2: Much of the rule purports to be supported by science. Indeed, Ms. 

Schneider indicated significant scientific development since the last OSM 

rulemaking. 

a. Do you believe that the science upon which your current state regulatory 

implementation (relies upon) is deficient? If not, why not? 

No. There is no basis to suggest and OSM has not identified or provided any evidence that 

the science that Wyoming relies upon for regulatory implementation is in any way 

deficient. The Wyoming Department of Environmental Quality's (WDEQ) Water Quality 
128 


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Chairman Us" Murkowski 

November 17, 2015 

RF: Stream Protection Rule 

Page 3 

Division Watershed Assessment program has not identified any known surface water 

quality impairments for which coal mining is an identified source of pollution. Further, 

Wyoming coal companies have received numerous national OSM Director awards for 

reclamation, including successful reclamation of streams. Had OSM been transparent and 

honored their commitment to allow cooperating agency states the opportunity to review 

and comment on the draft EIS and draft rule prior to releasing them for public comment, 

OSM's inaccurate and faulty assumptions could have been identified and corretted prior to 

publication of the proposed rule. 

b. In your estimation, is the science referenced and used as justification for 

determinations in the proposed rule sound? 

No. First, as other witnesses testified, the science is based on Appalachian states and not 

based on conditions of arid western states. The science used by OSM does not account for 

regional or natural variability in stream types, water quality condition, natural vegetation 

types, climate, groundwater and surface water hydrology, or mining methods. The 

approach taken by OSM in the proposed rule does not recognize the current legal 

framework and guidance documents reflecting recognition of hydrologic and reclamation 

changes at the lOO'h meridian. For example, alluvial valley floor protection is only applied 

west of the lOO'h meridian. Likewise, the bond release clock is 5 years east of this line and 

10 years for the west, which is a recognition of the arid and semi-arid environment in the 

western United States. 

Second, most ephemeral streams in the West have no riparian vegetation because by their 

ephemeral nature, they lack the natural hydrology for maintaining riparian vegetation. In 

addition, many perennial and intermittent streams naturally do not have 100 feet of 

riparian vegetation on each side of the stream channel due to hydrology and valley type. 

Requiring establishment of 100 feet of riparian vegetation on each side of a stream as a 

reclamation standard, regardless of natural hydrologic or riparian conditions, has no 

scientific basis. 

Third, baseline monitoring of an entire suite of water quality parameters, as mandated by 

the proposed rule, may be valuable in understanding what parameters of concern may be 

present, However, requiring continued monitoring of that full suite of pardmeters, 

regardless of whether a parameter is ever detected or is detected consistently at low levels, 

has no scientific basis and will not result in water quality improvements or protections. 

The result is increased regulatory and financial burdens without corresponding 

environmental benefit. 
129 


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Chairman Usa Murkowski 

November 17, 2015 

RF: Stream Protection Rule 

Page4 

Finally, OSM has never informed the WDEQ, nor does OSM have the basis to assert, that the 

streams in Wyoming are not adequately protected. Open and transparent communications 

with cooperating agency states would have provided OSM with the appropriate sound 

science that is missing in the proposed rule. 

c. Do you have specific concerns regarding the scientific justification in areas 

such as the biological monitoring or elsewhere in the proposed rule? Uyou 

have concerns, please dar:ify them. 

The proposed rule has several requirements that have no scientifically defensible 

justifications, such as requiring biological monitoring and the development of biological 

index values of intermittent and ephemeral streams. The WDEQ's Water Quality Division 

has been conducting bioassessments using multimetric bioassessment protocols on 

perennial streams and rivers for over 20 years and has one of the nation's most robust 

bioassessment programs, with numerous peer-reviewed publications. lt is widely 

recognized in peer-reviewed scientific literature that the highly variable and naturally 

harsh conditions of intermittent and ephemeral systems in the West support native 

biological communities that are spatiotemporally variable and naturally tolerant to a broad 

range of environmental conditions. Thus, the use of biological communities from 

intermittent or ephemeral waters as diagnostic indicators of anthropogenic stress is 

limited at hest; the cost and resources required to develop indices, in addition to actual 

monitoring of these highly variable systems, would be substantial. Biological monitoring of 

any stream with less than perennial flows imposes a regulatory burden that will provide 

little to no scientifically defensible data as it pertains to the implementation of the 

proposed rule. 
130 


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Chairman lisa Murkowski 

November 17,2015 

RF: Stream Protection Rule 

Page 5 

While not specifically asked in Senator Murkowski's follow-up questions, l would like to 

provide further clarification regarding my statement in response to Senator Cantwell's 

question about Wyoming's stipulated agreement in the Alpha Chapter 11 bankruptcy 

proceedings. Specifically, I would like to clarify my statement that we "would have been at 

the end of the line for the entire $411 million" reclamation obligation. 

As I stated in my testimony, Wyoming secured a $60 million (actually $61 million) super 

priority in the bankruptcy court, which is guaranteed and in front of all other secured and 

unsecured claims. Thus, Wyoming is in a better position if Alpha were to go into Chapter 7 

bankruptcy and default on their reclamation obligation. Wyoming has also retained its 

rights for the remainder of the bond obligation ($350 million) as an unsecured debtor and 

would work to secure our best position amongst the other secured and unsecured debtors. 

Wyoming is not at the "end of the line" for any of the self-bond obligation. 

Thank you for the opportunity to provide further input and clarification to the committee 

on this important matter. 

Todd Parfitt 

Director 

Wyoming Department of Environmental Quality 
131 


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U.S. Senate Committee on Energy and Natural Resources 

October 27, 2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

Questions from Chairman Lisa Murkowski 

Question 1: For years legal questions have pla!:,>ued the Department's rule making effort 

under SMCRA. Are you concerned that the proposed rule as drafted presents issues 

concerning the Agency's legal authority? Are there significant legal deficiencies 

presented in the rule that you find troubling? 

Response: 

OSM' s proposed Stream Protection Rule (SPR) suffers from a number of legal 

deficiencies. This massive overhaul of OSM' s existing program attempts to supersede 

and modify other laws and programs already in place in direct contravention of Section 

702 of SMCRA which clearly prohibits OSM from doing so. The proposed rule also goes 

beyond the authority conferred upon OSM by SMRCA and several provisions violate due 

process. ln addition to these unauthorized provisions, the SPR establishes standards that 

are technically and economically infeasible. All of this is set against a backdrop in which 

OSM has failed to even provide adequate explanation for the proposed changes in 

violation of the Administrative Procedure Act and Supreme Court precedent. 

SMCRA does not provide OSM with the authority to regulate matters within the scope of 

other federal laws. Rather, Section 702 of SMCRA establishes SMCRA' s subservience to 

other laws enacted to govern areas otherwise impacted by mining operations. Section 702 

requires that in order to regulate under SMCRA, the area of regulation in question (l) is 

not already not subject to regulation under another federal law; and, (2) that SMCRA 

clearly conveys OSM independent authority to regulate that matter. Many of the 

provisions of the proposed SPR fail one or both prongs of this test. The most prevalent of 

these concern the overlap, duplication, and conflict with existing requirements under the 

CW A and the ESA. 

Conflict and Duplication with the Clean Water Act 

A number of central provisions proposed in the SPR directly address issues expressly 

covered under the Clean Water Act (CWA), such as stream use designation, water quality 

assessment, criteria development, and mitigation requirements. SMCRA's prohibition 

against superseding the CW A and its implementing regulations, these provisions are also 

outside the scope of OSM' s expertise, conflict with President Obama's Executive Order 

13563, and will lead to a conflicting and unworkable permitting regime not contemplated 

in either the CW A or SMCRA. 

Several provisions within the SPR exceed SMCRA's authority by overlapping and 

conflicting with existing CW A requirements. Among the more problematic provisions is 

the proposed definition to the SMCRA term "Material Damage to the Hydrologic 

Balance outside the Permit Area." Under the SPR, SMCRA regulators must determine 

"reasonably foreseeable" stream uses and the requisite biological index values to support 
132 


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U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

those uses, establish numeric material damage criteria for "parameters of concern," and 

eliminate impacts that preclude CWA or SMCRA-developed uses. This effectively 

attempts to confer upon OSM and state SMCRA regulators the authority, wherever they 

disagree with the decisions made by a CW A authority, to assign additional stream uses 

and develop separate water quality criteria and standards, despite the fact that SMCRA, 

unlike the CW A, provides no statutory mechanisms to do so. 

The definition for the term "Biological Condition" under the SPR would require SMCRA 

regulators to make a separate determination of the ecological health of a stream to assess 

whether there has been material damage to the hydrologic balance outside the pennit area 

and whether an operation is being conducted to minimize adverse impacts on fish, 

wildlife, and related environmental values. This conflicts with numerous CW A 

mechanisms designed to ensure the ecological health of streams (e.g., aquatic life and 

biological criteria, which ensure protection of in-stream organisms and the biological 

integrity of surface waters). 

Provisions determining "Ecological Function" under the SPR require permittees to 

restore the physical and biological functions of mined-through stream segments. This 

provision conflicts with Corps' dredge and fill permitting program, which establishes 

mitigation requirements, including on-site stream restoration, based on factors such as 

objectives, site selection criteria, site protection instruments, baseline information, 

ecological performance standards, adaptive management plans, and financial assurances. 

These are just a few examples of provisions conflicting with the CW A within the SPR 

which violate Section 702 of SMCRA and render the rule impermissible. 

Conflict, Duplication and Exceedance ofESA Requirements 

Similar to OSM' s duplication and attempted usurpation of existing CWA programs, the 

proposed SPR also conflicts with the ESA. Several provisions would significantly expand 

the existing fish and wildlife resource information requirements to include species 

proposed to be listed as threatened or endangered under the ESA. The ESA itself applies 

protective measures to listed species, not proposed species, and the inclusion of this in 

depth analysis and information for species for which a determination has not yet even 

been made violates Section 702 of SMCRA by exceeding ESA requirements. Here, as is 

the case with all ESA related restrictions promulgated under SMCRA, OSM may only 

require compliance with existing law. SMCRA does not provide independent authority 

to establish threatened and endangered species programs. 

The current regulations acknowledge the proper role for OSM and include findings and 

performance standards which mirror that which is necessary under the ESA. By 

expanding application to species proposed for listing in these sections, OSM attempts to 

impose a restriction based on the ESA where neither the ESA nor SMCRA provide 

authority for this restriction. Specifically, the ESA's provisions related to the prevention 

2 
133 


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U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

of jeopardy to species and destruction or adverse modification of habitat apply only to 

species listed as threatened or endangered, not for species propose to be listed. 

Proposed Sections 779.20(d)(l)(i)/783.20(d)(l)(i) depart from the existing rules by 

requiring the regulatory authority to provide the site-specific resource information 

mentioned above to the FWS whenever that information includes species listed as 

threatened or endangered under the ESA, critical habitat designated under the ESA, or 

species proposed for listing as threatened or endangered under the ESA. Under the same 

Sections, if the regulatory authority does not agree with recommendations provided to it 

by the FWS with respect to listed threatened and endangered species, the proposed rule 

establishes a dispute resolution process to appeal the decision of the Service, "through the 

chain of command of the regulatory authority, the Service, and OSMRE for resolution." 

This "process" is negated however in the subsection immediately following where 

proposed 30 CFR 779.20( d)(2)(iv) states that the "regulatory authority may not approve 

the pennit application until. .. the regulatory authority receives written documentation 

from the Service that all issues have been resolved." 

This written documentation of approval required of the FWS before a protection and 

enhancement plan can be accepted- and a SMCRA pennit granted- amounts to FWS 

veto authority for any permit where the FWS does not approve of all recommendations 

made in the protection and enhancement plan related to listed threatened and endangered 

species. Even ifFWS approves a plan, if the Service fails or chooses not to issue a 

written documentation of such approval there is no legal mechanism in the proposed SPR 

to compel written approval, and thus the permit application could not be approved. 

Likewise, nothing in the ESA would compel such an approval as the proposed framework 

is an OSM creation, based on a false reading of SMCRA authority, and wholly separate 

from any authority or obligation of the FWS stemming from the ESA. 

To give some perspective on scope, this veto authority would apply to all mining 

operations that fall within the habitat range for the Northern Long Eared Bat, which 

covers most of the eastern and central United States, effectively giving the FWS final 

authority to disapprove of any mining operation in the Appalachian and Interior regions. 

In the West, the host oflisted species habitat ranges that checkerboard the Rocky 

Mountains would similarly place FWS in the driver's seat with respect to SMCRA pennit 

approval and disapproval. 

This raises a host oflegal and practical problems which require the removal of these 

portions of the proposed rule. SMCRA vests OSM and state regulatory authorities with 

exclusive jurisdiction over the approval and issuance of SMCRA pennits. This authority 

cannot be ceded to FWS by means of an interagency conference created by an OSM 

regulation. To do so not only exceeds any authority provided to OSM in SMCRA, it runs 

counter to Congress's purpose in enacting SMCRA in the first place- to establish a 

nationwide program governing coal mining operations administered by the Department of 

the Interior through OSM. It also violates operator's due process rights by allowing FWS 

3 
134 


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U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

to unilaterally deny a permit to mine without taking any action at all and without 

providing the applicant with an opportunity to appeal. 

Beyond SMCRA Authority and Constitutionally Defective Provisions 

One of many examples of proposed provisions with potential for significant 

consequences for operators is section 780.19 (k) which dictates that any permit with 

"substantially inaccurate" baseline information such as a missing chemical analysis, 

whether material or not, is void from the date of issuance. There is no basis whatsoever 

in SMCRA that gives OSM the authority to declare that a permit is "void" by operation 

oflaw, much less to do so without due process. The proposed rule calls for the collection 

and analysis of hundreds or thousands of bits of data and information. Much of the 

required data and information is vaguely defined. 

In the preamble to 780.19, OSM defines "substantially inaccurate" as including 

something as simple as a missing chemical analysis. OSM applies this definition 

regardless of whether or not the "substantially inaccurate" data or information results in a 

problem or violation. This proposal would render the permit void, retroactively, by 

operation oflaw, if in the opinion of OSM or the regulatory authority, or some court, 

there is a piece of missing information or data, even if it resulted in no harm or violation. 

The retroactive nullification of a permit would subject the mining company, and its 

owners, officers and controllers to numerous criminal, civil, and regulatory penalties. 

This proposed provision eviscerates operators existing due process rights and results in 

automatic permit nullification without any required finding of harm or damage. 

SMCRA specifically provides a procedure for requesting new information or correcting 

information and revising permits. The SMCRA provision authorizes the states to request 

a revision from the permittee, but provides advance notice and an opportunity for a 

hearing to protect the permittee's due process rights. OSM' s proposal bypasses those 

longstanding statutory procedures and the agency never addresses why they are 

inadequate to address the issue it suggest, but never explains why, is a concern. 

Lack of Any or a Reasoned Explanation for the Comprehensive Rewrite of the Program 

Finally, OSM has failed to supply a reasoned analysis for its decision to change course 

from the rule if proposed in 2008 (2008 Rule), and pursue the significantly different rule 

the agency now proposes. In 2008, OSM proposed a narrower Stream Buffer Zone rule 

aimed at achieving a targeted set of objectives for steep slope coal mining in Appalachia. 

After providing a series of incoherent purposes for the new rulemaking over the past six 

years, OSM arrives at perhaps the most vague and unsupportable of all- Namely that 

"primary purpose in proposed this rule is to strike a better balance between protection of 

the environment and agricultural productivity and the Nation's needs for coal as an 

essential source of energy" based on the "our experience during the more than three 

decades since adoption of the existing ret,>ulations." 

4 
135 


Insert offset folio 91 here 98945.091

U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

Contrary to this stated purpose, this has not been OSM's "experience" in the more than 

three decades since the adoption of the existing regulations, rather, OSM's experience is 

reflected in the Annual Evaluation Reports it prepares to evaluate the effectiveness of 

state regulatory programs in achieving the goals of SMCRA. These reports show, 

unequivocally, that OSM's experience over the past three decades has been a continued 

trend in state programs working with operators to ensure reclamation success and 

avoidance of off-site impacts, nationwide. Last year, for example, OSM's own 

evaluations show that 90 percent of operations were free of any offsite impacts. These 

include not only offsite impacts of the type the proposed rule purports to address, but any 

minor offsite impact of any kind. 

These reports also routinely include highly positive narrative reviews of each state's 

SMCRA program. Now, OSM appears to abandon its documented experience with state 

regulators and refer to some other "experience" not reflected in any ofOSM's documents 

or supported by any other source. 

As the U.S. Supreme Court has held, while "the scope of review under the "arbitrary and 

capricious" standard is narrow and a court is not to substitute its judgment for that of the 

agency. Nevertheless, the agency must examine the relevant data and articulate a 

satisfactory explanation for its action including a "rational connection between the facts 

found and the choice made." Here, the facts found not only fail to support the choice 

made, they directly conflict with it. 

Question 2: We discussed in the hearing some of the differences in biological, 

topographical, geographical and climatological differences that may present challenges to 

implementing the proposed rule. We also discussed one of the key principles noted in 

SMCRA a number of times: SMCRA is designed and authorized to allow for flexibility 

in the regulation of the Act because of many of the above-referenced unique 

characteristics. Testimony at the hearing suggested the rule is too rigid in its design to 

afford implementation in diverse locations across the country. One example provided: 

colder climate regions are frozen parts of the year, which would make monthly baseline 

monitoring impossible. Please give us a few additional, specific examples of instances in 

which the rule is not implementable in Alaska and two alternative geographic locations in 

the US, and clarify why they are not implementable. 

Response: 

The following are some of the more significant potential implications for coal mining in 

Alaska, and they pose grave concerns for the feasibility of meeting the proposed revisions 

to permitting, operating and reclamation standards: 

5 
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U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

Slope Stability: Freeze/thaw cycles and extended winter conditions with deeper 

penetration of the active mining zone, sometimes combined with hydraulic 

pressure build-up, should be addressed. 

Compaction: Normal methods of testing and achieving soils compaction during 

winter and transition months will not always work. Adjustment of these methods is 

needed to accommodate year round operations. 

Permafrost Soils: Permanently frozen soils may require special treatment for 

stockpiling and reuse depending on engineering properties and moisture content 

Normally this is addressed on an individual basis due to the many variations in soil 

types, etc. that occur. 

Seasonal Frost: The depth, temperatures and extent of seasonal frost penetration 

varies greatly depending on solar exposure, groundwater conditions, geographic 

location such as interior or coastal influences, local streams or drainage and many 

other factors. Concerns to be addressed may include stability of structures, road or 

haulage ways and excavation techniques to name a few. Individual engineering 

treatment is normally required to address these localized conditions. 

Aufeis Occurrences: In colder climates, winter aufeis may occur in or adjacent to 

streams creating a damming effect and possible interruption of adjacent excavation 

or road building activities and spring runoff When encountered these require 

special engineering and construction attention using arctic techniques. 

Frost Riving: Frost riving problems exist in many south 48 states in addition to 

Alaska. The only difference may be in the longer winters providing conditions for 

greater penetration of the bedrock and more severe temperature extremes. 

Spring thaw: After the long winter, spring arrives and thaw begins, affecting road 

load restrictions, runoff issues and related problems. Weather events and a 

relatively sudden warming trend of spring affects the strength of near surface soil, 

requiring special engineering attention during this time. 

Section 708 of SMCRA directed a special study on special conditions in Alaska which 

would require modifications to SMCRA to accommodate the conduct of coal mining 

operations in Alaska. Many of the concerns identified in the study were addressed by 

changing the regulations from strict design standards to more flexible performance 

standards capable of being applied in a reasonable fashion to the diverse and unique 

conditions. OSM' s SPR is a step backwards by imposing strict and inflexible design 

standards, but OSM never addresses how that implicates the accommodation of 

operations in Alaska and its unique conditions. It very well may reopen the need to 

amend SMCRA to address this concern and restore regulatory certainty for the 

development of Alaska's vast coal resources. 

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Insert offset folio 93 here 98945.093

U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

Alaska and other areas: 

There are a number of provisions in the SPR which are practically infeasible and could 

not be implemented on the ground. Proposed 30 CFR.29(a)(1) requires "An explanation 

of how you will handle surface water runoff in a manner that will prevent peak 

discharges from the proposed permit area, both during and after mining and reclamation, 

from exceeding the pre-mining peak discharge from the same area for the same size 

precipitation event." As written this provision would not allow for the deviation in the 

peak rate of runoff at any time during the either the mining or reclamation phases. This is 

physically impossible because variables affecting the peak rate of runoff are constantly 

changing during a mining project and the peak rate cannot be kept static, or the same as 

the pre-mining peak rate of runoff at all times during mining and reclamation. As 

interpreted, this rule would result in a violation that could not be cured at every SMCRA 

site and effectively result in cessation of most or all mining operations. This is infeasible 

Alaska as it is in other mining regions. 

Western United States: 

Monthly baseline monitoring is equally infeasible in the arid west where, when taking 

ephemeral streams into account, monthly monitoring is not possible most of the year. In 

addition to overlapping and conflicting with existing CW A requirements, the SPR' s 

monitoring program and proposed application to ephemeral streams completely ignores 

western water systems and could not be complied with in most western mining areas due 

to lack of flows. 

Appalachia: 

In mountainous regions such as Appalachia, the treatment of sediment basins by 

proposed Section 816.5 7 would prove unworkable. Specifically, proposed 816.5 7 would 

prohibit construction of sediment basins in a stream, or use an intermittent stream to 

convey affected area drainage, despite the fact that under certain conditions and subject to 

permitting requirements such constructs are permissible under the CW A. The later 

condition is especially problematic as existing drainages regularly carry affected area 

runoff to basins in the downstream watershed. It is difficult to conceive of how this rule 

would allow normal drainage control practices to proceed. The effect would be to require 

construction of many additional drainage control diversions and additional sediment 

basins with associated costs multiplied. Further, this restriction all but prohibits the only 

mechanism an operator has to comply with the newly proposed requirement to control 

peak rate of runoff. Prohibiting the use of drainages for sediment pond construction will 

require more diversions and sediment ponds to be constructed across the site, resulting in 

additional environmental impacts. The segment of intermittent the stream would then be 

left without a source of runoff denying water to that segment of the stream. All regions 

currently have sediment pond structures located in intermittent streams. The rule would 

7 
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Insert offset folio 94 here 98945.094

U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

require that literally thousands of ponds currently in intermittent be removed from 

existing mines at renewal. This would create a tremendous disturbance for no 

environmental benefit, and the requirement is unworkable, particularly in Appalachia. 

lllinois Basin: 

Paragraph 780.19(b )(6)(iv) requires extension of baseline sampling until 12 consecutive 

months without severe drought or abnormally high precipitation. Review of the Palmer 

Drought Severity for the period of January 2010 July 2015 indicates that for Illinois 

Basin facilities the maximum time period between periods with severe drought (<-3.0) 

and or abnormally high precipitation (>3.0) never exceeded a period of 10 months. This 

suggests that the applicant could be collecting monthly baseline sample data for 

approximately 5 years without ever meeting the proposed 12 consecutive months without 

severe drought or abnormally high precipitation. This is an unrealistic burden that could 

greatly delay potential projects and unnecessarily drive up costs. 

Questions from Senator Joe Machin Ill 

Questions: An analysis of the EIA' s latest State Energy Data, for year 2013, places 

Wyoming and my State of West Virginia as the two leading net excess energy producing 

states in the nation. There are only 13 states in the nation that produce more energy than 

they consume, states that could be referred to as "net energy independent 

states". Wyoming produces nearly 20times the energy it consumes, while West Virginia 

produces 5 times the energy it consumes. These 13 states, like the original 13 colonies 

play a crucial role in our nation's independence, in this case energy independence. 

Conversely, 29 of our states consume more than 2 times the energy they produce. 10 of 

these states use more than 5 times the energy they produce and 5 of these states use more 

than 10 times the energy they produce. Yet some of these high-consumption states are 

among the leading advocates for removing coal from our nation's energy portfolio, 

pursuing what is increasingly recognized as an "all of the above ground' energy policy. 

A previous review of the same ElA data for 2012, indicated that if coal was removed 

from the energy production of these 13 net energy independent states, then 70% of the 

excess energy produced by these states would disappear and 5 of these states, including 

West Virginia, would cease to be net energy independent. 

My first question to you, Mr. Quinn, refers to the National Mining Association's estimate 

of lost recoverable reserves of coal, if the SPR is put into place. The NMA has estimated 

that 84% of recoverable reserves in Appalachia, 60% of recoverable reserves in the 

Interior region and 53% of Western recoverable reserves would become unrecoverable, 

with an overall decrease in the national estimate of recoverable coal reserves of 63%. 

• Can you project how serious these levels of decreased recoverable reserves 

would be for regional economies? 

8 
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U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

Response: 

The impacts to surface and underground mining operations resulting from the SPR would 

result in between 40,038 and 77,520 directing mining jobs lost and between 112,757 and 

280,809 (30 percent to 75 percent of current employment levels) mining and linked sector 

jobs lost according to an independent analysis based on 36 actual operating mines. 1n the 

Appalachian region, direct mining job losses are expected to range from 30,115 to 52,566 

of the existing 64,215, a loss of between 46% and 81% of all Appalachian coal miners. In 

the Interior region job losses range from 4,931 to 14,638 of the existing 20,305 direct 

jobs, and in the Western region, 4,993 to 10,317 of the existing 18,792. 

Changes in the coal mining sector will also indirectly impact industries that provide 

inputs to coal mining. In addition, the change in output and employment means fewer 

workers will be earning an income, leading to additional impacts occurring in industries 

that support household consumption. Together, these impacts are known as the direct, 

indirect, and induced impacts to a regional economy. Based on the calculations of an 

analysis by Ramboii-Environ, Inc., for every $1 contributed (or subtracted) to GDP from 

coal mining production directly, the total impact is $2.51, The coal industry has backward 

linkages from coal mining to exploration and mining support services, construction 

services, coal mining itself, finance, petroleum and coal product manufacturing, rail 

transport, non-residential property operators and real estate services, wholesale trade, 

transport support services and storage and professional, and scientific and technical 

services. 

Similarly the coal economy has forward linkages to electricity generation, iron and steel 

manufacturing, non-ferrous metal ore mining, iron ore mining, coal mining itself, cement, 

lime and ready-mixed concrete manufacturing, non-metallic mineral mining, pulp, paper 

and paperboard manufacturing, basic non-ferrous metal manufacturing, grain mill and 

cereal product manufacturing, oil and gas extraction, and rental and hiring services. 

The results of this study indicate that if the full 27 percent reduction in coal production 

were to fully occur in the immediate future and result in the estimated $13.9 billion 

reduction in coal production, the total loss in contribution to GDP could be $27.7 billion. 

If the full 64 percent reduction in production were to fully occur in the immediate future, 

the associated loss of $28.7 billion in coal production could result in $58.7 billion 

reduction in the total contribution to GDP. 

These losses extend beyond the staggering number of jobs lost, and significantly impact 

revenues derived from coal production on which states and local governments depend to 

support regional economies. Expected federal and state revenue lost from the SPR ranges 

from $3.1 billion to $6.4 billion. These funds are particularly significant for rural 

communities where coal revenues provide a vital source of funding for education and 

critical infrastructure. 

9 
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U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

End users of the coal reserves stranded by this rule-America's energy consumers who 

rely on coal for nearly 40% of the nation's energy supply, would be forced to pay the bill. 

These increased costs on families and businesses would further drive up their costs and 

create an incalculable reverberation throughout regional economies already hard hit by 

this Administration's onerous policies which discourage affordable energy. lliS Energy 

conducted a study that found the nation's diverse electric grid anchored by coal base load 

generation saves American's $93 billion annually and reduces the volatitily of their utility 

bills by half. OSM' s proposed SPR is yet another in a series of regulations over the past 

several years (including EPA power plant rules) that will make our electric grid less 

diverse, less reliable and more expensive. 

• Why would these decreases occur under the SPR? 

Response: 

The SPR fundamentally alters the way surface and underground mining are regulated in 

the United States, and the rule amounts to a near complete program re-write ofOSM's 

existing rules. It does this in a way that conflicts with existing legal requirements to the 

detriment of state regulators and in a manner that would significantly delay or make 

impossible many mining operations across the country. By amending or modifying 475 

existing rules under the program, there are a multitude of individual provisions which 

could prohibit mining operations across entire regions and taken together, the massive 

rulemaking would cripple the mining industry. With that in mind, the projected impacts 

related to lost reserves, value of coal lost, and direct and indirect jobs loss are premised 

on an in-depth analysis of several key elements of the SPR: 

I) Proposed Definition of Material Damage to the Hydrologic Balance: this new 

definition duplicates and conflicts with existing requirements under the CW A. At 

a bare minimum, it requires operators to comply with the same requirements 

twice, adding significant costs and delays to projects and rendering some projects 

infeasible due to restrictions on time and available funds. To the degree that the 

SPR and CWA programs conflict, disagreements between implementing agencies 

would delay indefinitely or render impossible mining operations. 

2) Baseline Data Collection and Analysis: Significant new baseline data collection 

would be highly costly and in some cases, impossible to obtain. For example, part 

780.19 proposes changes that would establish additional sampling requirements 

from each location at equally spaced monthly intervals for 12 consecutive months. 

As previously discussed, collection of this information is impossible in the arid 

west when such samples are not available and in cold regions when frozen 

groundwater prohibits its collection. Inability to do so would put operators out of 

compliance and result in massive costs and jobs losses as a result. 

10 
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Insert offset folio 97 here 98945.097

U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

3) Monitoring During Mining and Reclamation: The SPR would establish 

monitoring requirements designed to identify conditions that could lead to 

material damage to the hydrologic balance. The sampling protocols greatly 

increase time and expense over existing methods. These processes add significant 

costs to operations and for the large number of operations on narrow budget, these 

costs can make the difference between project viability and infeasibility. 

4) Restrictions on Mining Activity in or Near Streams: In addition to the monitoring 

requirements previously mentioned, the SPR renders mining within 100 feet of 

perennial, intermittent, and ephemeral streams practically impossible. Due to the 

vast number of streams of all types in the East, and significant number of projects 

near ephemeral streams in the West, these prohibitions make obtaining a SMCRA 

permit impossible for many otherwise viable operations, and result in enormous 

economic impacts as a result. 

5) Fish and Wildlife Protection and Enhancement: The SPR's requirements for the 

collection and submission of information related to both proposed and listed 

species under the ESA in the new, greatly expanded "adjacent area" would add 

immense costs to completing a SMCRA permit. Worse still, the veto authority 

conferred upon FWS for any permit impacting listed species would result in the 

denial of many projects which are otherwise compliant with both SMCRA and the 

ESA, while mining operators and link sector industries are left to pay the tab. 

6) Restrictions on the Use of Bonds: The SPR would prohibit the use of self-bonds 

to cover any reclamation costs for aspects of mining operations affecting streams. 

Because streams restoration is the most costly aspect of many reclamation 

projects, operators would be forced to find an alternate source to ensure 

reclamation coverage in a market already highly strained to provide that. The end 

result would be less reclamation completed and more jobs lost. 

• How quickly could regions begin to see the economic impact from such 

decreases? 

Response: 

When OSM issue a final rule it will then request states to amend their programs to reflect 

the new federal standards. This may take a year or two. The rule would be immediately 

effective in any state with a federal program such as Tennessee. However, the impacts of 

the rule will begin to affect companies' plans and operations long before states adopt the 

state versions. 

The entire coal mining industry business model is highly capital-intensive and requires 

significant investments with extended lead times to plan for future mining operations. 

These long lead times must be made in today's environment based on current 

11 
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U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

expectations and the outlook for the future in terms of regulatory risk. Mining involves 

making complex operational, engineering, and permitting and property acquisition 

decisions many years in advance. 

Well before any final rule goes into effect, coal companies must begin assessing how the 

changes will affect the remaining life of existing mines, development of new mines and 

acquisition of new coal reserves for expansion of existing mines or development of new 

"greenfield" operations. The increase in permitting expenses, unit costs of production 

and auxiliary costs for reclamation from the new standards as well as the diminishment of 

recoverable reserves will all affect the economic viability of continuing or commencing 

operations. Permit delays due to more cumbersome and vague standards will also 

decrease the net present value of any investment and increase the minimum rate of 

return-or hurdle rate-to compensate for the higher regulatory risk. These 

considerations will also increase cost of financing projects as well. 

Operations of all types and sizes will be affected long before any final rule goes into 

effect. But smaller operations will be hit especially hard since they must open new mines 

more frequently to off-set the depletion of reserves at existing mines. In sum, smaller 

operators will be trying to navigate this new and uncertain regulatory maze on a more 

frequent basis to continue producing coal at the necessary levels to meet contract 

commitments. 

The difficulties experienced by coal companies under this proposal will quickly trickle 

down to the supporting industries that manufacture, sell and service mining equipment 

and technology as operators decide to reduce their risk exposure by not purchasing new 

equipment. Landowners will also see reduced and/or deferred royalty and rental 

payments from coal companies coping with higher regulatory costs or due to the 

sterilization of reserves that will not be mined. 

Question from Senator Jeff Flake 

Question: The Navajo Generating Station ("NGS") in Coconino County, Arizona 

greatly benefits the Navajo Nation and Hopi Tribe. The sole source ofNGS fuel is coal 

from the Kayenta mine on the Black Mesa. More than 85% of NGS employees and over 

90% of Kayenta mine employees are members of the Navajo Nation or Hopi Tribe. In 

your testimony you cite an economic analysis performed by the National Mining 

Association. Can you elaborate on NMA's analysis with specific attention paid to the 

effects on surface mining on tribal land in Arizona? 

Response: 

The analysis NMA commissioned was conducted on the basis that individual mine data 

would be held confidential business information, and only aggregated to protect such 

confidentiality. However, using the aggregated data for impacts on surface mines in the 

12 
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U.S. Senate Committee on Energy and Natural Resources 

October 27,2015 Hearing: OSM's Proposed Stream Protection Rule 

Questions for the Record Submitted to Mr. Hal Quinn 

western region as a surrogate, impacts to the Keyenta mine fueling the Navajo Generating 

Station could include impacts in the following ranges for: job losses between 26 and 55 

percent; and a decrease in recoverable reserves ranging from 13 and 53 percent. NMA's 

economic impact analysis of the coal mining industry in Arizona (2012) shows that coal 

supports 7,640 direct and indirect jobs and contributes over $1 billion in the state GDP, 

and over $200 million in tax revenues. All of these would be gravely diminished under 

OSM's rule. 

13 
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Insert offset folio 100 here 98945.100

October 26, 2015 

Submitted Via Regulations.gov & Electronic Mail 

Janice M. Schneider, 

Assistant Secretary Land & Minerals 

Management 

Office of Surface Mining Reclamation and 

Enforcement 

Administrative Record, Room 252 SIB 

OSM-2010-0018 

OSM-2010-0021 

1951 Constitution Avenue, NW 

Washington, DC 20240 

Daniel Ashe, Director 

Patrice Ashfield 

US. Fish and Wildlife Service 

1849 C Street, NW 

Washington, DC 20240 

dan_ ashe@fws.gov 

patrice_ ashfield@fws.gov 

Dr. Kathryn Sullivan 

Under Secretary of Commerce for Oceans and 

Atmosphere & NOAA Administrator 

Cathy Tortorici 

1401 Constitution Avenue, NW 

Room 5128 

Washington, DC 20230 

kathryn.sullivan@noaa.gov 

cathy.tortorici@noaa.gov 

Re: Stream Protection Rule Docket ID: OSM-2010-0018, Proposed Stream Protection 

Rule, 80 Fed. Reg. 44,436 (July 27, 2015) and Docket ID: OSM-2010--0021 Draft 

EIS 

Thank you for the opportunity to comment on the Office of Surface Mining Reclamation and 

Enforcement's ("OSMRE") proposed stream protection rule under the Surface Mining Control 

and Reclamation Act ("SMCRA"), 80 Fed. Reg. 44,436. These comments are submitted on 

behalf of the Center for Biological Diversity, the Alliance for Appalachia, Black Warrior 

Riverkeeper, Citizens Coal Council, Coal River Mountain Watch, Concerned Chippewa Citizens, 

Defenders ofWildlife, Delaware Riverkeeper Network, Frac Sand Sentinel, Friends of Hurricane 

Creek, Heartwood, Indigenous Environmental Network, Kentucky Heartwood, Kentucky 

Waterways Alliance, National Parks Conservation Association, Save the Hills Alliance, Inc., 

Sierra Club, Southern Appalachian Mountain Stewards, Southern Environmental Law Center, 

Tennessee Clean Water Network, The Clinch Coalition, West Virginia Highlands Conservancy, 

West Virginia Rivers Coalition, and WildEarth Guardians ("Commenters"), and focus on: the 

need for a I 00-foot buffer to protect fish, wildlife, habitat and our waterways; compliance with 

the Endangered Species Act ("ESA") during coal mining; Commenters support for SMCRA 

regulations that are more protective of fish, wildlife, and habitats; and Commenters' suggestions 

and comments upon other proposed regulations. 

It is imperative that OSMRE maintain the 1983 stream buffer rule and the I 00 foot buffer that 

rule put into place. This measure is particularly imperative for protecting aquatic dependent 

wildlife and the waterways that species and our communities rely upon. We ask that for mine 
145 


Insert offset folio 101 here 98945.101

sites with ESA-listed or proposed species in the mine site, the adjacent area, or ten-miles 

downstream, OSMRE clarify that no variances from the 100 foot buffer will be allowed. 

For too long, OSMRE and state regulatory authorities have operated their SMCRA programs 

outside the requirements of our ESA due to the illegal and wholly inadequate 1996 Formal 

Section 7 Biological Opinion and Conference Report on Surface Coal Mining and Reclamation 

Operations Under the Surface Mining Control and Reclamation Act of 1977 (the "1996 BiOp"). 

It is past time that OSMRE reinitiate Section 7 consultations under the ESA on the SMCRA 

program as a whole, consult on the stream protection rule, and then commit to Section 7 

consultations on all SMCRA permits that may affect threatened or endangered species in 

OSMRE operated SMCRA programs and to ensuring that states with primacy under SMCRA 

obtain incidental take permits ("liPs") and prepare habitat conservation plans ("HCPs") for all 

state-administered SMCRA programs under ESA Section 10. Without ensuring that its 

regulations require adherence to this process, as well as the obtainment of incidental take 

authorizations under either Section 7 or Section 10 at the permit or state level, OSMRE will 

continue to violate the ESA and its obligations. 

The current regulation needs to emphasize protection over restoration, especially given the 

history of failed restoration attempts under SMCRA. We commend OSMRE for improving 

wildlife protections in the stream protection rules. Our comments stress the need for a "may 

affect" or "may impact" threshold as a trigger for wildlife protections and encourage OSMRE to 

adopt further protections for wildlife and habitats affected by coal mining activities. 

I. Coal Mining Alters and Harms the Environment and Threatens Fish, Wildlife, and 

Habitat 

We thank OSMRE for recognizing that the current implementation of SMCRA has failed to 

protect our waterways, wildlife, and natural ecosystems from coal mining and related pollution. 

In particular, we are concerned about the impacts of coal mining activities authorized under 

SMCRA and related state laws on species protected as threatened and endangered under the 

ESA1 We emphasize the need for Section 7 consultations with the U.S. Fish and Wildlife 

Service ("USFWS") and National Marine Fisheries Service ("NMFS") (together, the "Services") 

under the ESA on the regulatory changes OSMRE adopts, as discussed further below. 2 

As the Environmental Protection Agency ("EPA") found in 2005, the Appalachian Coalfield 

Region has been extensively mined, with an estimated 1,200 miles of headwater streams 

impacted between 1992 and 2002, and 724 stream miles covered by valley fills from 1985 to 

2001 3 Many additional miles of streams have been impacted since the EPA's study. The net 

results of the impacts of coal mining have been significant water pollution, loss of natural areas, 

and great reductions in biological diversity in mined places. We provide the following additional 

information to support the need for more protective SMCRA regulations, and to ensure that 

1 16 U.S.C. §§ !531-1544. 2 16 U.S.C. § 1536(a)(2). 3 USEPA (2005) Mountaintop mining/valley fills in Appalachia. Final Programmatic Enviromnental Impact 

Statement Region 3. Philadelphia. 

2 
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Insert offset folio 102 here 98945.102

mining operations are conducted so as to minimize disturbances and adverse impacts on fish, 

wildlife, and related environmental values and to achieve enhancement of those resources 4 

A. Current Operations Demonstrate the Need for More Protective SMCRA 

Regulations To Ensure Wildlife Protection 

The Powder River Basin in Montana and Wyoming is well known as a sacrifice zone that pumps 

out coal for domestic and foreign use. Once home to wide ranging elk herds, pronghorn, mule 

deer, prairie falcons, bobcats, mountains lions, and greater sage-grouse- as well as providing 

habitat for hundreds of migratory birds- today the region is largely dotted with coal mines, 

roads, and other coal-related facilities. While wildlife still hang on the brink of extirpation in a 

few areas in this region, the basin evidences how SMCRA and other environmental laws have 

failed to strike a balance of protecting environmental values while authorizing coal production. 

Appalachia is another sacrifice zone, where biodiversity and human health are being devastated 

for coal production. Home to the greatest freshwater biological diversity in the U.S., Appalachia 

is a true species hot spot. Yet, coal mining is contributing to the alanning loss of biological 

diversity in the Appalachian Mountains. This has been evidenced by the vast upswing in aquatic 

dependent species requiring ESA protection in the Southeast region. The USFWS's findings in 

protecting such species illustrate that coal mining is a significant threat leading to species 

listings. Further, already listed species in the region are also experiencing ongoing declines due 

to downstream impacts from surface mining, such as sedimentation, and existing regulations are 

utterly failing to protect species from these impacts. 

For example, in listing the Cumberland darter as endangered, the USFWS found that sediment/ 

siltation is "the most common stressor of aquatic communities in the upper Cumberland River 

basin" and the "primary source of sediment" is "resource extraction"- i.e., coal mining and 

logging. 5 The USFWS identified "water quality degradation" and the addition of "high 

concentrations of dissolved metals and other solids that lower stream pH or lead to elevated 

levels of stream conductivity" as another "significant threat" to the Cumberland darter 6 

Likewise, in listing the blackside dace, the USFWS recognized "that impacts associated with the 

development of [coal and timber] resources in the past has caused the loss of many blackside 

dace populations."7 

Coal mining was also identified as a threat to, and among the reasons for listing, rayed bean and 

snuffbox mussels. The USFWS found that "low pH commonly associated with coal mine runoff 

can reduce glochidial encystment rates, thus impacting mussel recruitment" and that 

adverse impacts from heavy-metal-rich drainage from coal mining and associated 

sedimentation have been documented in portions of historical rayed bean and 

snuffbox habitat in the upper Ohio River system in western Pennsylvania, West 

4 30U.S.C. ~§ 1265(b)(24) and 1266(b)(ll). 5 Endangered status for the Cumberland Darter. Rush Darter. Y cllowcheek Darter, Chucky Madtom. and Laurel 

Dace. Final Rule. 76 Fed. Reg. 48,722, 48.732 (2011). 6 76 Fed. Reg. at 48,732. 

• Determination of threatened species status for the blackside dace. Final Rule. 52 Fed. Reg. 22,580 (1987). 

3 
147 


Insert offset folio 103 here 98945.103

Virginia, and southeastern Ohio. Likewise, coal mining has impacted rayed bean 

habitat in the upper Tennessee River system, Virginia, and snuffbox habitat in 

eastern Kentucky (lower Ohio and Mississippi River systems in southeastern 

Illinois and western Kentucky; upper Cumberland River system in southeastern 

Kentucky and northeastern Tennessee; and upper Tennessee River system in 

southwestern Virginia). 8 

Similar conclusions were reached in listing the sheepnose and spectaclecase mussels 9 Water 

quality degradation from surface coal mining also contributed to the need to list the diamond 

darter in West Virginia, 10 the addition of the Kentucky arrow darter to the candidate list, 11 and 

the proposed listing for the Big Sandy and Guyandotte River crayfishes. 12 

8 Determination of endangered status for the rayed bean and snuffbox mussels throughout their ranges. 77 Fed. Reg. 

08632 (2012) (intemal citations omitted). 9 Determination of endangered status for the Sheepnose and Spectaclecase mussels throughout their range, final 

mlc. 77 Fed. Reg. 14914 (20 12). In addition, the FWS designated 27 miles of the main stem of the Big South Fork 

and 9 miles of the New River in Tem1essec as critical habitat for three endangered mussels: Cumberhmd elktoe, 

oyster mussel, and Cumberlandian combshell. 60 Fed. Reg. at 53.148. 10 U.S. Fish and Wildlife Service (FWS). (2013). Endangered species status for diamond darter, final rule. 78 FR 

45079 ("While the overall percentage of the entire Elk River watershed subjected to mining activities may be smalL 

watersheds of some Elk River tributaries, such as Leatherwood Creek, arc highly dominated by mining activity and 

include mining permits encompassing 81 to 100 percent of the sub watersheds (WVDEP 20 lib, p. 37). Mining is 

likely a significant factor affecting the water quality of streams, such as Leatherwood Creek that arc principle 

tributaries to the Elk River. The effects of these Inining activities conducted both within the Elk River mainstcm and 

in Elk River tributaries, coupled with the effects from other activities described in Factor A, arc continuing threats to 

the diamond darter.''). 11 U.S. Fish and Wildlife Service FWS. (2010). Candidate Notice of Review. 75 Fed. Reg. 69.224 ("The 

subspecies' habitat and range have been severely degraded and limited by water pollution from surface coal mining 

and gas-c:>..'Ploration activities; removal of riparian vegetation; stream channelization; increased siltation associated 

with poor mining, logging. and a1,'1icultural practices; and deforestation of watersheds. The threats arc high in 

magnitude because they arc widespread across the subspecies' range. In addition, the 1nagnitude (severity or 

intensity) of these threats, especially impacts from mining and gas- exploration activities. is high because these 

activities have the potential to alter stream water quality pennanently throughout the range by contributing sediment. 

dissolved metals, and other solids to streams supporting Kentucky arrow darters. resulting in direct mortality or 

reduced reproductive capacity. The threats arc ilmninent because the effects are 1nanifcsted immediately and will 

continue for the foreseeable future.''). 12 U.S. Fish and Wildlife Service. (2015). Endangered species status for the Big Sandy and Guyandolte River 

Crayfishes, proposed mlc. 80 Fed. Reg. 18,726 (''Coal mining-The past and ongoing effects of coal mining in the 

Appalachian Basin are well documented, and both underground and surface Inines are reported to degrade water 

quality and stream habitats. Notable water quality changes associated with coal mining in tins region include 

increased concentrations of sulfate, calcium. and other ions (measured collectively by a water's electrical 

conductivity); increased concentrations of iron, magnesium. manganese, and other metals; and increased alkalinity 

and pH. depending on the local geology. The common physical changes to local waterways associated with coal 

mining include increased erosion and sedimentation, changes in flow, and in many cases the complete bnrial of 

headwater streams. These Ini11ing-relatcd effects are commonly noted in the streams and rivers within the ranges of 

the Big Sandy and the Guyandottc River crayfishes. The response of aquatic species to coaiJnitring-induced 

degradation are also well documented. commonly observed as a shift in a stream's macro invertebrate (e.g .. insect 

lan·a or nymphs, aquatic wonns, snails, clams, crayfish) or fish community stmcturc and resultant loss of sensitive 

tct-...:a and ~m increase in tolerant taxa. As mentioned above. coal mining can cause a variety of changes to water 

che1nistry and physical habitat therefore, it is often difficult to attribute the observed effects to a single factor. It is 

likely that the observed slrifts in commmrity stmcturc (including the e,\1irpation of some species) arc, in many cases. 

a result of a combination of factors.,. (internal references omitted)). 

4 
148 


Insert offset folio 104 here 98945.104

The biological impacts of coal mining are not limited to the Powder River basin and Appalachia, 

but are felt in coal mining areas throughout our country. For example, two recent projects in 

Utah also highlight the on-going failure to address impacts to species that are vulnerable to 

habitat loss. In Sanpete and Sevier Counties, Utah the Bureau of Land Management ("BLM") 

has decided to lease and allow the underground mining of the Greens Hollow Federal Coal Lease 

Tract, a 60 million ton tract, on the Manti-La Sal and Fishlake National Forests. This 

underground mine fails to comply with the scientific guidelines developed for the greater sagegrouse. Among other things, these guidelines specify that no new coal leases shall be granted for 

underground mines unless "all surface disturbances" are placed outside of the priority sagegrouse habitat area. Nevertheless, the Greens Hollow mine includes "ventilation shafts (one with 

a fan), intake shafts, utility boreholes, a power transmission line, and associated road access" 

within priority sage grouse habitat. Likewise, near the town of Alton in Kane County Utah, the 

BLM has approved a 3,581 surface acre coal mine decided to obtain 44.9 million tons of 

recoverable coal reserves called the Alton Coal mine. The mine would result in surface 

disturbance within on-half mile of grouse leks, disruptive activities within 2 miles ofleks, and 

surface disturbance in sage grouse winter habitat. Thus, on-going coal mining activities are also 

impacting species that have been recognized as vulnerable to such activities. 

B. Specific Pollutants Released from Coal Mining Operations that Adversely 

Affect Wildlife, Including Sensitive, Threatened and Endangered Species 

1. Condnctivity 

Coal mining may result in detrimental changes in the pH and conductivity of waterways the 

ability of water to pass an electrical current, affected by the presence of inorganic dissolved 

solids such as salts- and these changes are a major concern both under the Clean Water Act 

(CW A) and for aquatic dependent species. Such pollution is a great concern for local 

communities and fish and wildlife impacted by coal mining pollution, including species 

protected under the ESA. 13 

a. The Final Rule Must Clarify that the Available Science Does Not 

Support a Conductivity Benchmark Above 300 ~tSicm for Fish 

In discussing the impacts of mining activities on aquatic ecology, the preamble to the proposed 

rule explains the importance of imposing SMCRA permit restrictions to address conductivity and 

TDS. See 80 Fed. Reg. at 44,439-41. The preamble discusses the aquatic life benchmark of 300 

11S/cm established by EPA, but notes that 

13 Black T. R. Jones. B. K. & Mattingly, H. T. (2013). Development and validation of habitat models for the 

threatened Blackside Dace. Chrosomus cumberlandcnsis. at two spatial scales. Southeastern Naturalist. 12(4). 27 -48; 

Brenee'L. M., Price. S. J.. Bonner, S. L & Barton. C. D. (2014). Mountaintop removal mining reduces stream 

salamander occupancy and richness in southeastern Kentucky (USA). Biological Consen·ation, 180. IIS-121: 

Zipper. C. E., et aL (2014). Freshwater mussel population status and habitat quality in the Clinch River. Virginia and 

Tennessee, USA: A featured collection. JAWRA Journal of the American Water Resources Association. 50(4), 807-

819; Jolmson. B. R., Haas. A, & Fritz, K. M. (2010). Use of spatially explicit physicochemical data to measure 

downstream impacts of headwater stream disturbance. Water Resources Research, 46(9). 

5 
149 


Insert offset folio 105 here 98945.105

A recent study suggests that a similar benchmark for fish would be somewhat 

higher because adverse impacts on the populations and diversity of fish species 

begin to appear at conductivity readings between 600 and 1,000 J.IS/cm. 

80 Fed. Reg. at 44,441 (citing Hitt, N.P. and D.B. Chambers. 2014. Temporal changes in 

taxonomic and functional diversity offish assemblages downstream from mountaintop mining. 

Freshwater Science 33(3):915-926.). For the reasons enumerated below, the Hitt and Chambers 

2014 paper should not be interpreted as providing an adequate basis for a permitting agency to 

find that a benchmark above 300 J.IS/cm is adequately protective offish species. 

First, no sites sampled by Hitt and Chambers actually exhibited conductivity levels between 170 

J.IS/cm and 686 J.IS/cm, and only one site sample site exhibited a conductivity level between 600 

J.IS/cm and lOOO J.1S/cm14 The measures of taxonomic and functional diversity for the sampled 

sites show that the site conductivity level of 686 ll S/cm was associated with markedly different 

species richness and total abundance compared to sites exhibiting conductivity levels at or below 

170 J.IS/cm." Hitt and Chambers explain that the observed taxonomic differences reflect impacts 

on those fish species most dependent on invertebrates for food. 16 Obligate invertivores 

constituted about 50% of total fish abundance at a site with elevated conductivity in sampled 

years 1999 (1440 J.IS/cm), 2000 (686J.1S/cm), and 2001 (1838 J.IS/cm), and subsequently 

decreased to about 15% in 2011 (1,750 J.IS/cm), whereas the reference site with a conductivity 

between 96 J.IS/cm and 125 J.IS/cm consistently had >50% obligate invertivores. 17 Thus, the raw 

data show adverse impacts to fish occur at 686 J.IS/cm, but does not show that no impacts occur 

beneath that conductivity level. 

Second, Hitt and Chambers' assertion that "the transition from reference to exposure fish 

assemblage composition occurred at conductivities between -600 and 1000 J.IS/cm"" is based on 

the overlap of the respective 95% confidence ellipses for the elevated conductivity and reference 

sites. 19 According to Hitt and Chambers, "the 95% confidence ellipse intersection of reference 

and exposure assemblages was associated with conductivities between -600 to 1000 J.IS/cm." 

Considering the very limited number of sample points in the study (six for the elevated sites and 

four for the reference sites) and the fact that only one sample actually had a conductivity between 

600 and I 000 J.IS/cm, all that the Hitt and Chambers study supports is the conclusion that more 

research is required to evaluate the conductivity levels that cause significant changes in the 

diversity of fish assemblages. The conductivity range of 600-1 OOOJ.IS/cm as a potential threshold 

in Hitt and Chambers is based on a regression estimate (general additive model surface) that 

spans the ten sample units rather than empirical observations of a potential threshold. In other 

words, this result is answering the question, "What conductivity would be expected for each site 

given the observed fish community at all of the sites?" rather than, "What community is expected 

given the observed conductivity at the sites?" Importantly, and despite this critical distinction, 

11 See Hitt N.P. and D.B. Chambers. Temporal changes in taxonomic and functional diversity of fish assemblages 

downstream from mountaintop mining. Freshwater Science 33(3). at 918 (Sept. 20U). 15 See id. at 918. 920. 16 See id. at 921. 17 See id. at 918. 921. 18 Id. at 923. 

id. at 923. citing Fig. 2A. Figure 2A shows the 95% confidence ellipses.Id. at 919. 

at 919. 

6 
150 


Insert offset folio 106 here 98945.106

Hitt and Chambers do not provide errors for this regression estimate in their results. Because that 

information is missing, we cannot tell if the statistically supported range of conductivity values is 

closer to, say, 590-1110 JJS/cm (i.e., a regression estimate with very low error) or 100-

1500J.1S/cm (i.e., a regression estimate with very high error). The fact that their control site with 

the highest conductivity (170JJS/cm) had much higher community diversity and biomass than the 

exposure site with the lowest conductivity (686J.1S/cm) suggests that the regression estimate has 

high error and that the true threshold is substantially lower than 600ftS/cm. 

Third, the Hitt and Chambers study is limited to four study sites in the Guyandotte River basin, 

West Virginia and to the 34 fish species present at those sites." The results are not necessarily 

applicable to sites with different physical and biological characteristics. Fish assemblages 

composed of different species might respond very ditTerently to conductivity levels. 

Fourth, the point at which fish assemblages change in response to conductivity levels does not 

necessarily correspond to the point at which individual fish species experience significant 

adverse impacts due to elevated conductivity. Individual fish species may suffer significant 

adverse impacts below the conductivity level at which a significant change in the fish 

assemblage occurs. As Hitt and Chambers suggest, impacts to the fish species in their study 

appeared to be linked to the availability of invertebrate prey." EPA suggested a protective 

benchmark of 300 JJS/cm "based on a scientific detennination that maintaining conductivity at or 

below this level should prevent the extirpation of95 percent of invertebrate genera, such as 

mayflies, dragonflies, damselflies, and aquatic beetles, in central Appalachian streams." 80 Fed. 

Reg. at 44,441. 23 This benchmark thus provides a prophylactic against impacts to aquatic life by 

ensuring that a diversity of organisms at the bottom of the food chain will persist. By setting a 

benchmark with respect to invertebrate extirpation, the EPA benchmark ensures that other 

species dependent on those invertebrates for food will be protected from potential adverse 

consequences stemming from food chain disruption." Hitt and Chambers specifically note that 

"[a]dditional research is needed to assess how reduced diversity of macroinvertebrate 

assemblages affects their total biomass and how this, in turn, affects prey selection by stream 

fishes."" Thus, in the absence of such research, setting a protective benchmark for fish above 

300 J.IS/cm is inappropriate. 

The EPA benchmark not only represents the synthesis of considerable research on the impact of 

elevated conductivity levels on macroinvertebrates, but also has been independently corroborated 

21 at 919. 

!d. at 923. 23 The Draft EIS for the proposed Stream Protection Rule makes clear the reasons why macroinvertebrate extirpation 

provides a bencluuark indication of the potential for adverse impacts to overall stream health, and hence "material 

damage to the hydrologic balance." As the Draft EIS ex-plains. "the abundance and diversity of macro invertebrate 

species is ... indicative of the relative health of a stream" See DEIS at page 4-89. Macroinvertebrates are 

commonly used to gauge stream health because they: "Are affected by the physicaL chemicaL and biological 

conditions of the stream": "Cannot escape pollution and thus do show the effects of short- and long-term pollution 

events": "May show the cumulative impacts of pollution": "'May show the impacts from habitat loss not detected by 

traditional water quality assessments": and "Differ by genus and species in their tolerance ofpcllution." See DEIS at 

page 4-89. 24 Furthennore, as discussed below. a 300 rtS/cm benchmark based on invertebrate extirpation is likely not 

consen;alive enough to prevent adverse impacts to all fish species. 25 Hitt and Chambers at 923. 

7 
151 


Insert offset folio 107 here 98945.107

by other researchers. In July 2012, a group of prominent scientists published a peer-reviewed 

paper analyzing 30 years of stream data in a 390-square-mile region in southwestern West 

Virginia. 26 This study concluded that the extent of surface coal mining in that region is highly 

correlated with elevated conductivity and harm to the ecosystem. Using the same water quality 

data used by EPA, but a different statistical method for analyzing that data, they independentlf 

derived a threshold of 308 iJ.S/cm for biological impairment related to increased conductivity. 7 

The final rule should clarify that the limited data provided by Hitt and Chambers (2014) does not 

in itself support the use of conductivity benchmarks above 300 iJ.Sicm in permitting decisions. 

b. Even a Benchmark of 300 f.IS/cm is Not Likely to 

Prevent Adverse Impacts to Sensitive Species, Including 

Federally Listed Fish 

The final rule should clarify that permitting agencies must take into account the potential for 

adverse impacts to individual species when assessing the potential for "material damage to the 

hydrologic balance." As EPA scientists have acknowledged, because the EPA benchmark is not 

protective of all genera-as 5% of invertebrate genera will be extirpated under the benchmarkand protects against extirpation rather than a reduction in abundance, the 300 iJ.Sicm may not 

fully protect sensitive species or higher-quality, exceptional waters 28 EPA scientists have 

suggested that for fish, a benchmark based on probability of reduced abundance rather than 

extirpation should be explored29 The best available science shows that a number of aquatic 

species, including federally listed fish and mussels, suffer adverse impacts at conductivity levels 

beneath 300 iJ.Sicm. Furthermore, with respect to federally listed species, the potential for 

"material damage to the hydrologic balance" must assess whether conductivity levels will cause 

"take" of any individual members oflisted species as per the definition of take under the 

Endangered Species Act and the regulations thereunder. 

A number offish species experience adverse impacts even at elevated conductivity levels below 

300 iJ.Sicm. Individual blackside dace (Phoxinus cumberlandensis syn. Chrosomus 

cumberlandensis), an ESA-listed fish species native to small streams in the Cumberland River 

drainage basin of Kentucky and Tennessee, are more likely to persist in stream reaches with 

June-August conductivity below 240 iJ.S/cm30 Analysis of blackside dace records conducted by 

or, Bemhardt et aL How Many Mountains Can We Mine') Assessing the Regional Degrndation of Central 

Appalachian Rivers by Surface Coal Mining, J. Envtl. Sci. Tech. ~6(15), 8115-22 at 8120 (2012). 27 See Bernhardt eta!. (20 12); see also Pond ct aL Long-Tcnn Impacts on Macro invertebrates Downstream of 

Reclaimed Mountaintop Mining Valley Fills in Central Appalachia. Envirorunental Management (July 2014) ( 

"Bemhardt et al.'s (2012) study also corroborated the modeled conductivity bench-mark (i.e .. hazard criterion= 300 

11Sicm) developed by 

U.S. EPA (20llb) with a TITAN-based threshold value of283 11S/cm."). I 28 See Susan M. Cannier eta!., Derivation of a Benclunark for Freshwater Ionic Strength. Environmental 

Toxicology and Chemistry 32(2), at 263. 269 (2013). 29 See Susan M. Cannier et aL A Method for Deriving Water Quality Benchmarks Using Field Dat<L Enviromnental 

Toxicology and Chemistry 32(2), at26l (20!3). 30 Tyler R. Black eta!., Ecology and Conservation of Blackside Dace. (Phuxinus cumberlandensis). a Threatened 

Stream Fish in Kentucky and Tcnness. USA, Society for C{)nservation Biology (2008). In 2005, a study reported 

predictive logistic regression models which found indhidnals of tllis species were most likely to occupy stream 

segments of suitable habitat wherever conductivity is< 2-Hl f!S/cm. Jones. B. K.. "Predictive habitat models for 

8 
152 


Insert offset folio 108 here 98945.108

the Tennessee Field Office of the US. Fish and Wildlife Service (FWS) concluded that 

"blackside dace are most likely to be present and abundant in suitable habitat where specific 

conductivity <!50 f.!S/cm and are least likely to be present or abundant where specific 

conductivity >350 f.!S/cm" and that "86.6% of all blackside dace found since 2003 have been in 

streams below [the 240 f.lS/cm] threshold."31 The FWS has recognized that the "best available 

info[rmation]" for the blackside dace indicates that adverse effects occur at concentrations of240 

>tS/cm conductivity32 

The Kentucky arrow darter (Etheostoma sagitta .1pilotum), a species recently proposed for listing 

as threatened, see 80 Fed. Reg. 60,692 (Oct. 8, 2015), is sensitive to elevated conductivity within 

the same range. 33 Surveys for this species found that "89 percent of streams supporting Kentucky 

arrow darters had conductivity values below 200 f.!S," and only a single population is known to 

occur where conductivity exceeds 250 f.!S/cm."34 The U.S. Fish and Wildlife Service proposes to 

list the Kentucky arrow darter as threatened based on threats that include harm from elevated 

conductivity due to coal mining. The proposed rule summarizes the findings of observational 

research recently conducted to evaluate the sensitivity of Kentucky Arrow darter to elevated 

conductivity levels: 

Recent range-wide surveys of historical sites demonstrated that Kentucky 

arrow darters are excluded from watersheds when conductivity levels exceed 

about 250 [f.l]S/cm. The species was observed at only two historical sites where 

conductivity values exceeded 250 [f.l]S/cm, and average conductivity values were 

much lower at sites where Kentucky arrow darters were observed (115 [f.l]S/cm) 

than at sites where the species was not observed (689 [f.l]S/cm). A similar 

phenomenon was reported by Black et al. (2013, pp. 34-35), who developed and 

validated a habitat model for the federally threatened blackside dace (Chrosomus 

cumberlandensis) in the upper Cumberland River drainage. 

conservation of the threatened blackside dace (Phoxinus cumberlandensis)." Unpublished MS thesis, Temtessee 

Technological University, Cookeville, Tennessee (2005), In 2007, scientists used independent data to confirm Jones 

(2005) findings that the probability of occurrence ofblackside dace increases in stream segments where conductivity 

is< 240 rtS/cm. Black, T., and Mattingly, H.T.. Conservation status of the threatened blackside dace in selected 

Cumberland River streams." Unpublished final project report subtnitted to Tennessee Ecological Services Field 

Office and Kentucky Ecological Services Field Office, US Fish and Wildlife Service. Cookeville. Tennessee and 

Fmukfort. Kentucky (2007). 31 E-mail from Kenneth McDonald, U.S. Fish & Wildlife Serv .. Tennessee Field Office, to Michael Griffitlt U.S. 

EPA, (May 23 2013. 10:11 EST). 32 Email from Mary E. Jemriugs, Field Supervisor, U.S. Fish & Wildlife Sen· .. Cookeville. Tenn. Field Office to Lee 

Andrews. Field Supervisor. U.S. Fish & Wildlife Serv .. Frankfort, Ky. Field Office (Mar. 4. 2010. 07:51 EST) 

(stating that "the best available info indicates that anytlting over 240 can be adverse to lblackside dace]''). 33 U.S. Fish & Wildlife Serv., Species Assessment for Kentucky Arrow Darter, 8-9 (Aprill6. 2012). available at 

http:/ /ecos.fws.gov/docs/candidate/assessments/20 l3/r4/EOBF _VOl. pdf. 34 Anthony L. Velasco. et aL KY- Con!ributors to Specific Conductance: Au Investigation of Fishery Decline in 

Eastern Ccalfield Streams at 2-3 (July 1, 2010) (research proposal submitted to the Field Supervisor. U.S. Fish & 

Wildlife Serv., Frankfort. Ky. Field Office): U.S. Fish & Wildlife Serv., Species Assessment for Ken!ucky Arrow 

Darter, at 9 (April 16. 2012), avai/ahle at http://ecos.fws.gov/docs/candidate/assessments/2013/r4/EOBF VOI.pdf. 

9 
153 


Insert offset folio 109 here 98945.109

80 Fed. Reg. at 60,977. The proposed rule also describes modeling efforts to estimate the 

conductivity levels at which statistically significant declines in abundance would be anticipated: 

Nonlinear regression techniques were used to evaluate significant thresholds and 

associated confidence intervals for Kentucky arrow darter abundance related to 

conductivity levels. As a contrast to Kentucky arrow clatter, Dr. Hitt also 

evaluated blackside dace occurrence in this regard. 

Nonlinear regressions indicated a distinct decline in Kentucky arrow darter 

abundance at 258 [~]S/cm (95 percent confidence intervals 155-590 [~]S/cm), 

above which abundances were negligible. Nonlinear threshold declines for 

blackside dace were observed at 343 [~]S/cm, and 95 percent confidence intervals 

bounded this relationship between 123-632 [~]S/cm. Boosted regression results 

indicated that stream conductivity was the strongest predictor in separate analyses 

of Kentucky arrow darter and blackside dace abundance. 

80 Fed. Reg. at 60,985. Thus, the modeling indicates distinct declines in species abundance at 

258 ~S/cm (Kentucky arrow darter) and 343 ~S/cm (blackside dace), which indicates that 

impacts to individuals occur at conductivity levels below those thresholds, and is consistent with 

the observational data showing that the species are unlikely to be present where conductivity 

levels exceed 250 ~S/cm and 240 ~S!cm, respectively. The FWS also noted that while, "the 

overall conductivity level is important in determining the Kentucky arrow darter's presence and 

vulnerability ... the species' presence is more likely tied to what individual metals or dissolved 

solids (e.g., sulfate) are present. Determination of discrete conductivity thresholds or the 

mechanisms through which fishes are influenced will require additional study." ld .at 60,977. 

Researchers have also observed that a species of mussels listed as endangered under the ESA 

experience adverse impacts at conductivity levels below 300 ~S/cm. A recent study on juvenile 

northern riffleshell mussels (Epioblasma torulosa rangiana) in the Allegheny River, 

Pennsylvania, found that the highest specific conductance that resulted in no adverse effect 

compared to background levels after 63 days of exposure was 247 ~S/cm, with a confidence 

interval of 148-370 ~S/cm.' 5 

Similarly, researchers have documented that adverse impacts to juvenile salamanders in the 

Cumberland region may occur at conductivity levels over I 00 ~S/cm. Schorr et al. found that 

dusky salamander (Desmognathus ji1scus) larvae abundance was consistently low in stream 

reaches with conductivity >100 ~S/cm, but was variable in reaches with conductivity <!00 

~S/cm, where abundance appeared to vary with pH changes (between pH 4.7 and pH 7)36 

The comments submitted by Sierra Club et al. set forth in great detail that conductivity-related 

concerns will not be resolved by the proposed rule. We incorporate those comments herein by 

"Kathleen A Patnode. et al., Effects of High Salinity Wastewater Discharges on Unionid Mussels in the Allegheny 

River. Pennsylvania. Journal ofFish and Wildlife Mm1agement 6(1), at 61 (June 2015). 36 Schorr et al.. Effects of stream acidification on lotic salamander assemblages in a coal- mined watershed in the 

Cumberlru1d Plateau. J. Freshw. Ecol. 28, at 350 (May 2013). 

10 
154 


Insert offset folio 110 here 98945.110

reference, and would add that that OSM must set (and enforce) numeric limits on conductivity 

whether or not a state CW A agency does so. 

2. Selenium 

We thank OSMRE for recognizing that selenium can be a harmful pollutant associated with 

surface coal mining. We point out that scientific literature documents a fine line "between 

essentiality and toxicity" of selenium37 A host of research documents the deleterious effects of 

elevated selenium and its derivatives on freshwater dependent species 38 Among this research are 

studies documenting that EPA's current criterion of 5 f!g/1 is insufficient to prevent selenium 

from reaching toxic concentrations for species in waterways 39 Thus, we encourage OSMRE to 

rely upon EPA's latest information regarding the formation of a new criteria for selenium under 

the Clean Water Act as this rulemaking process moves forward 40 

Dr. Dennis Lemly, an expert with the U.S. Forest Service at Wake Forest University, cautions 

that selenium pollution is an increasing global problem: 

Once selenium contamination begins, a cascade of events is set into motion that 

can quickly lead to irreversible ecosystem disruption. However, this cascade of 

events need not happen if adequate foresight and planning are exercised 41 

Thus, we reiterate our thanks for OSMRE's recognition of this pollution problem and provide the 

references cited herein as additional support for the need to protect against selenium pollution in 

these regulations, and when authorizing coal mining and related practices. 

Arnold. M. C., Lindberg, T. T., Lin, Y. T., Porter, K. A, Hsu-Kim, H., Hinton, D. E., & Di Ginlio. R T. (2014). 

Bioaccumulation and speciation of selenium in fish and insects collected from a mountaintop removal coal miningimpacted stream in West Virginia. Ecotoxicology, 23(5), 929-938. 38 Debmyn, A M .. & Chapman, P.M. (2007). Selenium toxicity to invertebrates: will proposed thresholds for 

toxicity to fish and birds also protect their prey?. Environmental science & technology, 41 (5), 1766-1770: AdamGuillemrin, C .. Fountier, E .. Florimri, M., Camilleri, V .. Massabuau, J. C., & Gamier-Laplace, J. (2009). 

Biodynamics, subcellular partitioning, and ultrastructural effects of organic selenium in a freshwater bh·alve. 

Enviromnental science & technology, -'13(6), 2112-2117: Orr, P. L, Guiguer, K. R, & RusseL C. K. (2006). Food 

chain transfer of selenium in lentic and !otic habitats of a western Canadian watershed. Ecotoxicology and 

envirornnental safety, 63(2), 175-188: Conley, l M., Funk, D. H .. Cariello, N.J., & Buchwalter, D. B. (2011). Food 

rdtioning affects dietary selenium bioaccumulation and life cycle perfonnance in the mayfly C.cntroptilum 

triangulifer. Ecotoxicology. 20(8), 1840-1851: Lcmly, D. A (2009). Aquatic ha71!rd of selenium pollution from 

mountaintop removal coal mining. Informally published manuscript, Biology, Wake Forest University, WinstonSalem. North Carolina; Young. T. F., Finley, K., Adams. W. L Besser, L Hopkins, W. D., Jolley, D., ... & Umiue. 

J. (2010). 3 What You Need to Know about Selenium. Ecological assessment ofselenilllll in the aquatic 

environment, 7. 39 Hanrilton. S. J. (2002). Rationale for a tissue-based selenimn criterion for aquatic life. Aquatic Toxicology, 57(1), 

85-100: Conley, J. M., Funk, D. H., Hesterberg_ D. H., Hsu, L. C., Kan. J., Lin, Y. T., & Buchwalter. D. B. (2013). 

Bioconcentration and biotransformation of selenite versus selenate exposed periphyton and subsequent toxicity to 

the mayfly Centroptilum triaugnlifer. Enviromncntal science & technology, '17(14), 7965-7973. 10 See e.g, 80 Fed. Reg. 44,350 (July 20 15) (The 30-day average concentration of selenium in water docs not exceed 

3.1 [nricro]g/L in !otic (flowing) waters 1md 1.2 [nricro]g/L in lcntic (standing) waters more than once in three years 

on average). 41 Leinly. A D. (2004). Aquatic selenium pollution is a global en;ir01unental safety issue. Ecotoxicology and 

em·irornncntal safety, 59(1), 44-56. 

11 
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Insert offset folio 111 here 98945.111

We further reiterate the need for Section 7 consultations with the Services under the ESA 

regarding these impacts. As the USFWS explained in comments to EPA on its proposed 

revisions to the selenium criteria under the CW A: 

A large majority (>90%) of all species of freshwater fish listed under the 

Endangered Species Act (ESA) have not been tested for sensitivity to selenium 

toxicity. Assuming that ESA-listed species exhibit a distribution of sensitivities 

comparable to non-listed species (as several EPA-funded studies have indicated), 

it can be expected that in waters achieving EPA's newly proposed fish-tissue 

criteria about 5% ofESA-listed species would experience a 10% or greater level 

of reproductive toxicity. Also, it can be expected that some unknown additional 

percentage of ESA-listed species would experience a level of reproductive 

toxicity greater than 0% but less than I 0%. It's possible that a toxic standard more 

protective than an EC-1 0, such as EPA's (20 12) benchmark dose approach, might 

be required for waters that host untested ESA-listed species offish. 

Thus, consulting with the Services is imperative to ensuring that selenium pollution from coal 

mining is not impacting threatened or endangered freshwater dependent species, and for OSMRE 

to fulfill its duties pursuant to the ESA43 

3. Sedimentation 

Coal mining changes the hydrology of the mined area, altering where, when, and how sediments 

are added to the watershed. In Appalachia, an increase in the "frequency of very fine sediment in 

MTM relative to unmined streams suggests a potential mechanism for increased bedrock 

incision."44 The increase in fine sediment delivery may then be accompanied by "decreased 

coarse sediment delivery through accelerated bedrock incision."45 Increased downstream 

sedimentation resulting from coal mining also fills in the spaces between rocks that many species 

need to fulfill their life history requirements, including freshwater mussels, snails, darters and 

other benthic fishes, crayfishes, and aquatic salamanders. The impacts to aquatic dependent 

species from increased siltation and sedimentation are numerous, including both direct harm to 

species via gill clogging and injury, smothering, reduced visibility, and adverse changes to 

feeding, breeding, and sheltering substrates 46 Regulations to prevent excess sediments from 

reaching streams, such as strict buffers to protect waterways, are therefore warranted. 

Letter from Paul Souza, Deputy Assistant Director for Ecological Services to Gina McCarthy. Administrator of 

EPA re: Attention Docket No. EPA-HQ -OW-2004-0019 (July 28, 201.\) al3. 43 16 U.S.C. § 1536(a)(2). 

Jaeger. K. L. (2015). Reach-scale geomorphic differences between headwater streams draining mountaintop 

mined and unmined catclunents. Geomorphology. 236. 25-33. 45 Jaeger. K. L. (2015). Reach-scale geomorphic differences between headwater streams draining mountaintop 

mined and umnined catclunents. Geomorphology. 236. 25-33. 

" Sutherland. A. B., Maki. J.. & Vaughan. V. (2008). Effects of suspended sediment on whole-body cortisol stress 

response of two southern Appalachianmim1ows. ErimomL" monachus and Cyprinella galactura. Copeia. 2008( 1 ). 

234-244: U.S. Fish and Wildlife Sen·ice (FWS). Determination of endangered status for the Rayed Bean and 

Snuffbox mussels throughout their nmges. Fim1l Rule. 77 Fed. Reg. 08632 (2012).: U.S. Fish and Wildlife Service 

(FWS). Cumberland Arrow Darter Candidate Species Assessment Form (2013). 31 pp.: U.S. Fish and Wildlife 

Sen·ice (FWS). Endangered Species Status for the Big Sandy Crayfish and the Guyandottc River CrayfislL Proposed 

Rule. 80 Fed. Reg. 18710 (2015): Wheeler. B.A.. E. ProseQ A. Mathis. and R.F. Wilkinson 2003. Population 

12 
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Insert offset folio 112 here 98945.112

4. Cumulative Effects 

Scientific research is beginning to document the cumulative, synergistic effects of multiple 

pollutants interacting, resulting in increased harm to the landscape and its inhabitants. This 

research illustrates the need for more protective requirements for waterways with species listed 

or proposed for listing under the ESA, due to the cumulative effects that coal mining pollution 

has on these species and the waterways they depend upon47 Of note, selenium and sedimentation 

may work together to deliver selenium in forms more readily up-taken by species 48 

Sedimentation in general may act as a vector for delivering contaminants to streams, with 

particularly harmful effects on juvenile mussels that can readily ingest contaminants adsorbed to 

silt particles during normal feeding activities. This has been identified as a factor in recruitment 

failures of endangered mussels 49 As another example, combined levels of heavy metals can be 

severely toxic to freshwater invertebrates. 50 Mussels in particular are threatened by exposure to 

cumulative contaminants because they bioaccumulate and because juveniles exhibit heightened 

sensitivity to some contaminants. 51 Therefore, OSMRE should consider the potential cumulative 

impacts of coal mining activities on waterways and the species that depend on them in finalizing 

the stream protection standards. 

II. Allowing Mining Activities Within 100 Feet of Streams Threatens Wildlife, 

Including Federally-Protected Species, and OSMRE Should Require a Strict 100-

Foot Buffer 

We oppose any efforts to weaken or eliminate the 1983 stream buffer zone mle. The proposed 

rule sets forth in great detail the ecological benefits of a 100-foot buffer for coal mining 

activities, stating for example "that a vegetative filter strip width of 100 feet generally will 

attenuate sediment in runoff from disturbed areas," which is a major concern regarding the 

impacts of surface mining on nearby waterways. 52 Maintaining this buffer area is essential for 

protecting streams and the species that rely on them from the introduction of harmful pollutants, 

such as selenium, as well as elevated ionic chemicals and high conductivity, which can have 

declines of a long-lived salamander: A 20+ year study of hellbenders. C~yptobranchus alieganiensis Biological 

Conservation 109:151-156. 

" Black T. R., Jones. B. K.. & Mattingly. H. T. (2013). Development and validation of habitat models for the 

threatened Blackside Dace. Chrosomus cumberlandensis. at two spatial scales. Southeastern NaturJlist. 12(4). 27-48: 48 Lee, B. G., Lee. J. S .. & Luoma, S. N. (2006). Comparison of selenium bioaccumulation in the clams Cotbicula 

fluminea and Potamocotbnla amnrensis: A bioenergetic modeling approach. Environmental Toxicology and 

Chemistry. 25(7). 193 3-1940. Explaining that "The chemical species of Se in armerobic sediments include 

elemeutal Se. organoselenium. and selenoanions. Therefore, the bioavailability of Sc iu contaminated sediment 

could have significant temporal and spatial variability depending on the redox cycles of Se speciation." 49 U.S. Fish and Wildlife Service (FWS). Determination of endangered status for the Rayed Bean and Snuffbox 

mussels throughout their ranges. Final Rule. 77 Fed. Reg. 08.632 (2012) 10 Enserink. E.L., Maas-Dicpevcen. J. L., and Van Lceuwe!l C.J. (1991). Combined effects of metals: au 

ecotoxicological evaluation. Water Resources, 25(6), 679-687. 11 Naimo. T. J. (1995). A review of the effects of heavy metals on freshwater mussels. Ecotoxicology. 4(6). 341-

362; Cope. W. G., et al. (2008). Differential ex')Josure, duration, and sensitivity of mtionoidean bivalve life stages to 

euvironmental contaminants. Journal of the North American Benthological Society. 27(2), 451-462. 52 80 Fed. Reg. at 44,552. The proposed mle also notes that the preamble to proposed 30 C.F.R. § 816.57(a) 

explains the rationale for the 100-foot buffer zone width. !d. at 44.515. 

13 
157 


Insert offset folio 113 here 98945.113

adverse impacts on affected species, as discussed above. A I 00-foot buffer is also important for 

protecting headwater streams, which OSMRE states serve an important ecological function, as 

they "trap floodwaters, recharge groundwater, remove pollution, provide fish and wildlife 

habitat, and sustain the health of downstream rivers, lakes, and bays." 53 

Maintaining this I 00-foot buffer is therefore essential for protecting listed species from harm 5 4 

Several studies support the need for, and benefits ot~ buffers to protect streams and the species 

that rely on them from the harmful impacts of coal mining. A recent literature review of buffer 

studies concluded that overall a buffer of at least 100 feet is necessary to protect the physical, 

chemical, and biological integrity of streams 5 5 

SMCRA provides that to the extent possible, using the best technology currently available, 

surface coal mining and reclamation operations must be conducted to minimize disturbances and 

adverse impacts on fish, wildlife, and related environmental values and to achieve enhancement 

of those resources where practicable56 The best technology currently available for protecting 

streams from the harmful impacts of surface coal mining is sufficient buffers to prevent valley 

fills, runoff, and deposition of pollutants in waterbodies. While the proposed rule is premised on 

the maintenance of a 100-foot buffer which may even be insufficient to protect streams from 

degradation- in reality the rule would allow mining activities within this buffer zone, including 

in and through waterbodies. Allowing mining activities within 100 feet of streams puts species, 

including endangered and threatened species such as freshwater mussels and blackside dace, at 

great risk of harm. 

This basic means of preventing devastating harm to species and the environment is also possible 

and practicable. While a strict I 00-foot buffer may reduce the amount of minable land, there is 

nothing in the proposed rule to suggest that this would be untenable. Rather, the proposed rule 

establishes that the demand for coal is going down, and recent actions by the current 

administration (i.e. the Clean Power Plan) will further reduce demand for coal 5 7 Therefore, 

reducing the number of minable acres in order to protect vital waterways and imperiled species is 

not only reasonable, it is consistent with reality. In fact, it would be fundamentally inconsistent 

with the SMCRA mandate to "assure that surface coal mining operations are so conducted as to 

protect the environment" for OSMRE to allow coal companies to continue their wanton and 

!d. at 44.439. 5

'

1 We note. however, that maintaining a 100-foot buffer may still not be sufficient to ensnre that listed species are 

protected from hanu. The buffer may not address overland flow or settling pond discharges to watcrbodics outside 

the buffer area. which may impact streams and the species that rely on them. Whether or not OSMRE allows 

mining to occur within the I 00-foot buffer zone, it needs to avoid and tninimize impacts to threatened and 

endangered species. We therefore support OSMRE's proposed adoption of numeric limits on conductivity and other 

pollutants, which should be set at levels sufficiently protective of sensitive species, including endangered and 

threatened species, and enforced through the SMCRA permit itself where the NPDES pennit does not impose such 

numeric limits or does not impose numeric limits that are adequately protective of sensitive species. 55 Sweeney. B. W., & Newbold. J. D. (2014 ). Streamside forest buffer width needed to protect stream water quality. 

habitat, and organisms: a literature review. JA WRA Journal of the American Water Resources Association. 50(3 ), 

560-584. 

"' 30 U.S. C.§§ 1265(b)(24) and 1266(b)(ll) (emphasis added). 

See i.e. U.S. Energy Infonuation AdministratioiL Proposed Clean Power Plan mlc would reduce coal productioiL 

especially in tlte West (June 10, 2015). m·ailable at http://www.eia.gov/todayinenergy/detail.cfm0 id=21592 

14 
158 


Insert offset folio 114 here 98945.114

reckless devastation of streams and rivers by conducting mining activities within the I 00 foot 

buffer area. 58 

We therefore urge OSMRE to establish a firm 100-foot buffer, with no variances or exceptions 

allowed. Maintenance and protection of this I 00-foot area should be required for all mining 

activity, as well as excess spoil fill or coal mine waste disposal facilities. While we understand 

that the proposed rule is intended to further limit mining activities in this buffer zone, the on-theground reality is that providing any means for SMCRA regulatory authorities to authorize 

harmful mining activities within this buffer opens the door to continued harm to waterbodies and 

the species that rely on them. 

In fact, history has shown that regulatory authorities cannot be relied on to ensure that the 

environmental protections of the SMCRA regulations are being enforced. In West Virginia 

Highlands Conservancy v. Norton, 161 F. Supp. 2d 676, 684 (S.D. W.Va. 2001), the court 

detailed the damage done by OSMRE's refusal to properly oversee the inadequate West Virginia 

program. It noted many direct impacts and wide ranging indirect impacts, finding: 

a climate of lawlessness, which creates a pervasive impression that continued 

disregard for federal law and statutory requirements goes unpunished, or possibly 

unnoticed. Agency warnings have no more effect than a wink and a nod, a 

deadline is just an arbitrary date on the calendar and, once passed, not to be 

mentioned again. Financial benefits accrue to the owners and operators who were 

not required to incur the statutory burden and costs attendant to surface mining; 

political benefits accrue to the state executive and legislators who escape 

accountability while the mining industry gets a free pass. Why should the state 

actors do otherwise when the federal regulatory enforcers' findings, requirements, 

and warnings remain toothless and without effect? 

This suggests that providing any basis for mining activity within the buffer area will merely 

provide an excuse for regulatory authorities to continue to allow such activities to take place, 

even when they are harmful and inconsistent with the SMCRA statutory mandate to "minimize 

disturbances and adverse impacts on fish, wildlife, and related environmental values," to "protect 

society and the environment from the adverse etiects of surface coal mining operations," and to 

"assure that surface coal mining operations are so conducted as to protect the environment."59 

These provisions evidence that Congress's primary goal in enacting SMCRA was environmental 

protection, not the development of coal resources. Only by establishing an inviolable 100-foot 

buffer area can OSM provide assurance that harmful mining activities will be kept a safe 

distance from sensitive waterbodies and the species that rely on them. 

Rather than applying these clear statutory mandates to protect the environment, OSMRE has 

focused on the need to balance protection of the environment with the nation's use of coal 60 

Based on this compromise, OSMRE suggests that it must allow mining activities to continue to 

occur within the buffer zone, in order to placate an industry that seeks to profit from activities 

that harm our waterbodies and habitats, claiming that too many minable areas would be 

58 30 U.S.C. 1202(d). 59 30 U.S.C. 1202. 60 See Draft Environmental Impact Statement ("DEIS") accompanying the proposed rule at ES-36. 

15 
159 


Insert offset folio 115 here 98945.115

considered inaccessible if a true 100-foot buffer was employed. This, however, is unsupported 

and the facts establish that allowing mining activities within 100 feet of streams would be 

arbitrary and capricious. 

In discussing the basis for the 1 00-foot buffer area that OSMRE has established, the agency 

states that it considered a range of buffer sizes, from 25 feet to 300 feet 61 Had OSMRE only 

considered the need for protecting wildlife habitat, then perhaps a larger buffer would have been 

employed, since the analysis provided by OSMRE suggests that larger buffers are required to 

prevent harm to species. 1n fact, OSMRE admits that a 1 00-foot buffer "lies within the lower end 

of the range of recommended minimum widths for wildlife habitat and flood mitigation." 62 

However, OSMRE did not set the buffer based only on the need to protect wildlife or mitigate 

flooding; rather, OSMRE took into account the economic impacts of the buffer size, stating that 

"the 100-foot minimum width ... is an appropriate midrange compromise that strikes a balance 

among property rights and the various recommended buffer widths for relevant objectives, 

consistent with Section 1 02(f) of SMCRA."63 

It is therefore evident that the establishment of a 1 00-foot buffer area was a compromise that was 

premised upon a balancing of the need to protect the environment with the need to ensure that 

sufficient coal resources are available, as set forth in Section 102(f). OSMRE could have set a 

larger buffer- and perhaps should have based on the recommended buffer widths of up to 275 

feet for wildlife habitat, 225 feet for flood mitigation, and 175 feet for sediment removal that 

OSMRE refers to which would have been more protective but resulted in less minable 

resource; however, OSMRE conducted a balance pursuant to 1 02(f) and determined that 100 feet 

was an appropriate compromise. 

This completely undermines any argument that allowing mining activity within that 100-foot 

buffer is necessary in order to balance protection of the environment and the Nation's needs for 

coal. Pursuant to OSMRE's statements, it is readily apparent that this balance was already struck 

when the 100-foot buffer was established. It is therefore arbitrary and capricious for OSMRE to 

then reapply the 102(f) balance to the use of that butTer, and thereby allow harmful activities to 

occur in a buffer area that OSMRE admits is on the "lower end of the range of recommended 

minimum widths for wildlife habitat and flood mitigation." Using that same balance to sanction 

harmful activities within this essential buffer area is incongruous, since it superficially tips the 

balance towards the consideration for the need for coal production to allow violations of the 

buffer that was set using the I 02(f) balance. 

In addition, the proposed rule itself notes that a 100-foot buffer may not even be sufficient to 

protect waterways, stating that "mining activities beyond the 100-foot stream buffer zone can 

adversely impact the quality and quantity of water in streams by disturbing aquifers, by altering 

the physical and chemical nature of recharge zones as well as surface-water runoff and 

infiltration rates and drainage patterns, and by modifying the topography and vegetative 

composition of the watershed."64 Therefore, in order to "minimize disturbances and adverse 

impacts on fish, wildlife, and related environmental values," a strict 100-foot buffer at a 

61 80 Fed. Reg. at 44,494. 62 Id. 

()3 !d. 64 ld. at 44,443. 

16 
160 


Insert offset folio 116 here 98945.116

minimum must be employed, with no exceptions or variances allowed65 Such a buffer will also 

aid OSMRE in its obligation to conserve threatened and endangered species under Section 

7(a)(l) of the ESA66 

Failure to require a strict 100-foot buffer (along with other species-specific measures) when 

listed species or designated critical habitats may be affected by a mining project may violate the 

agency's duties pursuant to the ESA, unless appropriate permit-specific incidental take coverage 

is obtained from the federal wildlife agencies. Under Section 7 of the ESA, OSMRE must ensure 

that its actions (including the promulgation of these regulations) do not jeopardize the continued 

existence of listed species or destroy or adversely modify designated critical habitat67 Section 9 

of the ESA also prohibits OSMRE from causing the unpermitted incidental take of members of 

listed species, including via habitat modification or degradation that actually injures or kills 

members oflisted species68 Further, Section 9 prohibits regulatory authorities from issuing 

mining permits that lead to unpermitted incidental take69 

However, should OSMRE decide, despite the known harms to sensitive stream environments, to 

allow mining activities to take place within the I 00-foot buffer area, a limitation on such actions 

should be instituted to ensure against unpermitted incidental take of threatened and endangered 

species. This is necessary to protect the many imperiled species that rely on the forests and 

waterways that are being decimated by coal mining activities 70 

Studies and analysis indicate that threatened and endangered species that rely on the waterways 

impacted by surface coal mining, such as fish and freshwater mussels, are most susceptible when 

they are within ten river miles of mining proj ects71 The sediments and pollutants that harm these 

" 30 U.S.C. § 1266(b)(11). 66 16 U.S.C. § 1536(n)(1). 

" 16 U.S.C. § 1536(a)(2). 08 16 U.S.C. § 1538(a)(I)(B) (take prohibition); 16 U.S.C. § 1532(19) (definition of take); 50 C.F.R. § 17.31(a) 

(extending the "take" prohibition to threatened species); 50 C.F.R. § 17.3 (defining "hann" to include habitat 

modification where it actually kills or injures wildlife). 09 "Persons'' subject to the ESA's take prohibitions include state. county. or municipal agencies and/or officials in 

their official capacity. 16 U.S.C. §§ 1538(a)( 1); 1532(13). Courts have held state agencies liable for issuing permits 

that allow take of listed species without appropriate ESA incidental take coverage. Strahan v. Coxe. 127 F.3d 155, 

168 (1st Cir. 1997). 

'

0 The Draft Environmental Impact State CDEIS'') notes that: 

Of the 180 listed species that could be impacted, 3 are amphibiallS. 1 1 arc birds, 2 arc cmstaceans. 

33 are fishes. 2 are insects, 13 arc manunals. 60 arc mollusks. 49 arc plants. and 7 arc reptiles. The 

remaining list includes 60 species with designated critical habitat. The critical habitat of 39 of 

these 60 species occurs partially or entirely within the coal resources areas studied in tl1is EIS. As 

shown in appendix F. Tahle F-2 Critical Habitat Overlap with coal rcgiollS. 100% of the critical 

habitat for the Laurel dace ( Chrosomus saylori) occurs in areas with mineable coal. Siinilarly 82% 

of the critical habitat for the Cumberland clktoe (Alasmidonta atropurpurea), and 55% of the 

habitat for the spotfin chub (Erimonax monachus) occur in areas with mineable coal. The degree 

of overlap of critical habitat with mineable areas is less but still considerable (between 10-30%) 

for fifteen other aquatic species. 

DEJS at 3-246. 71 Anderson, R. M .. Layzer, J. B., & Gordon. M. E. (1991). Recent catastrophic decline of mussels (Bivalvia, 

Unionidac) in the Little South Fork Cumberland River, Kentucky. Brimleyana. (17). 1-8.; Layzer. J. B.. & 

Anderson, R. M. ( 1992). Impacts of the coal industry on rare and endangered aquatic orgartisms of the upper 

Cumbcrhmd River Basin. Kentucky Department ofFish and Wildlife Resources; Warren Jr. M. L., & Haag. W. R. 

17 
161 


Insert offset folio 117 here 98945.117

species are most prevalent within this ten mile area; therefore, we urge OSMRE to fulfill its ESA 

obligations by ensuring that mining activities do not take place within 100 feet of streams with 

no variance or exception allowed- when listed species or designated critical habitats are within 

ten river miles of a proposed mining project. We also emphasize that only considering pollution 

impacts ten river miles downstream may not adequately address comprehensive downstream 

water quality impacts such as cumulative sedimentation or biomagnification of contaminants. 

For this reason, we ask OSMRE to consult with the Services on this issue. 

It is readily apparent that mining activities have the potential to adversely impact listed and 

proposed species, such as freshwater mussels, reptiles, mollusks, fishes, and crayfishes through 

sediment loading. OSMRE's own statements indicate that allowing mining activities within 100-

feet of streams that contain freshwater mussels in particular could result in take, and even 

extirpation, offederally-protected freshwater mussel species. As the Draft Environmental Impact 

Statement ("DEIS") for the Proposed Rule notes: 

Mollusks are of particular concern within tbe Appalachian Basin region .. 

Freshwater mussels are in decline nationwide and particularly in the Southeast. 

According to Neves et a!. (1997): The current status and prognosis for the 

(2005). Spatia-temporal pattcnlS of the decline of freshwater mussels in the Little South Fork Cumberland River, 

USA. Biodiversity & CmlServation, 14(6), 1383-1400: Roup. R. E. (1993). Observations of long-term effects of 

sedimentation on freshwater mussels (Mollusca: Unionidae) in the North Fork of Red River. Kentucky. Transactions 

of the Kentucky Academy of Science. 5~(3-4 ), 93-97; U.S. Envirolllllental Protection Agency. (2002). Clinch and 

Powell Valley Watershed Ecological Risk Assessment. EPA/600/R-Ol/050: Ne"10JL T. 1., & Bartsch. M. R. (2007). 

Lethal and sublethal effects of mlllllonia to juvenile Lampsilis mussels (unionidae) in sediment and water-only 

exposures. Em·iromuental Toxicology and Chemistry, 26(10). 2057-2065: Vannote. R. L., & MinshalL G. W. 

(1982). Fluvial processes and local lithology controlling abundance, stmcture. and composition of mussel beds. 

Proceedings of the National Academy of Sciences, 79(13), 4103-4107: Pond, G. L Passmore. M. E .. Borsuk, F. A .. 

Reynolds, L., & Rose, C. J. (2008). Downstream effects of mountaintop coal mining: comparing biological 

conditions using family-and gclllls-lcvcl macroinvertebrate bioasscssmcut tools. Journal of the North American 

Benthological Society. 27(3), 717-737: Jenkinson. J. J. (2005). Specific gravity and freshwater mussels. Ellipsaria 

7, 12-13: McCann. M.T. & Neves. R.J.( 1992). Toxicity of coal-related contaminants to early life stages of 

freshwater mussels in the Powell River, Virginia. Virginia Cooperative Fish and Wildlife Research Unit. Dept. of 

Fisheries and Wildlife Sciences. Research Work Order No. 23 for U.S. Fish and Wildlife Service, Asheville Field 

Office. August 1992: KitcheL H. E., Widlak, J. C .. & Neves, R. J. (1981). The impact of coal-mining waste on 

endangered mussel populations in the Powell River, Lee County, Virginia. Report to the Virginia State Water 

Control Board. Richmond: Ahlstcdt. S. A, & Tuberville, J.D. (1997). Quantitative reassessment of the freshwater 

mussel fauna in the Clinch and Powell Rivers, Tennessee and Virginia. Conservation and management of freshwater 

mussels II. Upper Mississippi River CmlServation Conunittec, Rock Island. Illinois, 72-97; Burkhead, N. M., & 

Jelks, H. L. (20!ll). Effects of suspended sediment on the reproductive success of the tricolor sinner. a crevicespawrting 1ninnow. Transactions of the American Fisheries Society, 130(5), 959-968: Sutherland. A. B., & Meyer, J. 

L. (2007). Effects of increased suspended sediment on growth rate and gill condition of two southern Appalachian 

mi1mows. Environmental Biology of Fishes, 80(4). 389-403: Jones, E. B., HelflnaiL G. S., Harper. J. 0., & Bolstad. 

P. V. (1999). Effects of riparian forest removal on fish assemblages in southem Appalachian streams. ConserYation 

biology, 13(6). 1454-1465: Sutherland. A B., Maki, J.. & Vaughan, V. (2008). Effects of suspended sediment on 

whole-body cortisol stress respmlSc of two southern Appalachian minnows. Erimona.'< monachus and Cyprinclla 

galactura. Copcia, 2008(1). 234-244; Z3lllor. R. M .. & Grossman. G. D. (2007). Tmbidity affects foraging success 

of drift-feeding rosyside dace. TrallSactions of the American Fisheries Society, 136( I), 167-176: Newcombe. C. P., 

& Jensen. J. 0. (1996). Challllel suspended sediment and fisheries: a synthesis for quantitative assessment of risk 

and impact. North American Joumal of Fisheries Management, 16(~). 693-727; Newcombe, C. P .. & MacDonald, 

D. D. ( !991 ). Effects of suspended sediments on aquatic ecosystenlS. North American Joumal of Fisheries 

Management. II (l ), 72-82. 

18 
162 


Insert offset folio 118 here 98945.118

Southeast region's mussel fauna is grim. Of the 269 species in the Southeast, 13 

percent are presumed extinct, 28 percent are endangered, 14 percent are 

threatened, 18 percent are of special concern, and only 25 percent are considered 

stable at this time72 

The DEIS further notes that: 

As of 1997 up to 75 percent of the mussel species native to the Southeast had 

been ecologically impacted, and a significant concern remained regarding the 

vulnerability of these species due to their limited geographic distribution of many 

mussel species; many are endemic to small areas, and some limited to single 

watersheds (Neves et al., 1997). Therefore, these mussel species are extremely 

vulnerable to extirpation as a result of single catastrophic events. 73 

A I 00-foot buffer is therefore necessary to protect freshwater mussel species from harms 

associated with surface coal mining. As the proposed rule itself notes, "riparian (streamside) 

vegetation plays a critical role in maintaining or restoring the ecological function of a stream."74 

The rule further notes that a "study found that invertebrate populations in streams with forested 

buffers of 100 feet exhibited no change following clearcutting of the area outside the buffer zone. 

However, streams in watersheds in which clearcutting operations left narrower forested buffers 

experienced significant changes in the species diversity of invertebrate populations, with the 

extent of the changes correlating to buffer width."75 Therefore, by OSMRE's own admission, 

activities within I 00 feet of streams are likely to harm these species. 

A I 00-foot buffer is also essential for protecting headwater streams, which "trap floodwaters, 

recharge groundwater, remove pollution, provide fish and wildlife habitat, and sustain the health 

of downstream rivers, lakes, and bays."76 An intact buffer would therefore prevent excessive 

runoff and sedimentation of streams 77 This is crucial, since freshwater mussels are incredibly 

susceptible to sediment loading. Studies have shown that "one of the most ubiquitous factors that 

may adversely affect mussel populations is excessive sedimentation caused, in part, by poor 

land-use practices. Excessive sedimentation has been suspected as a cause ofunionid mussel 

declines since the late 1800s."78 

Excessive amounts of sediments, especially tine particles, that wash into streams can potentially 

affect mussels through multiple mechanisms. Fine sediments can lodge between coarse grains of 

DE!S at 3-258. 

!d. (emphasis added). 74 80 Fed. Reg. at 44.494. 

!d. 76 !d. at 44.439. 

According to the DEIS. ''Documented dom1stream effects to the hydrologic balance on biological resources 

include ... Changes in downstream sedimentation (e.g., the amount and particle size of sand. silt, and decaying 

organic matter deposited onto streambeds)." DEIS at 4-88. 

" Box. J.B., Massa, 1.. Sediment, land use, andfreshwater mussels: prospects and problems. J. N. Am. Benthol. 

Soc. at 100, 18(1):99-117 (1999). 

19 
163 


Insert offset folio 119 here 98945.119

the substrate to form a hardpan layer,79 thereby reducing interstitial flow rates. Silt and clay 

particles can clog the gills of mussels, 80 interfere with filter feeding, 81 or affect mussels indirectly 

by reducing the light available for photosynthesis and the production of food items 82 

In sum, OSMRE admits that a 100-foot buffer "lies within the lower end of the range of 

recommended minimum widths for wildlife habitat," and that even a I 00-foot buffer may not be 

sufficient to protect water quality. OSMRE further admits that a I 00-foot buffer is essential for 

preventing sedimentation of streams, which harms imperiled freshwater mussels, and that 

catastrophic events may extirpate these species. Therefore, by OSMRE's own information and 

admissions, it would likely harm, and even jeopardize the continued existence of these listed 

species, to allow mining activities within I 00 feet of streams that contain listed freshwater 

mussels, due to the impacts to water quality, and the inherent vulnerability of these species. The 

same applies for other species that rely on streams that may be impacted by coal mining 

activities, such as fish, reptiles, mollusks, and crayfish83 We therefore urge OSMRE to include a 

strict 100-foot buffer in the final rule, especially when listed species or designated critical 

habitats may be adversely affected. 

III. OSMRE Should Ensure the Protection of Resources Rather Than Relying on 

Demonstrably Ineffective "Restoration." 

We appreciate OSMRE including enhanced requirements for reclamation of mine sites, such as 

the use of native plants tore-vegetate mine sites and to require more natural plantings. However, 

it is critical that OSMRE focus on requiring protection of naturally occurring headwater, 

intermittent, ephemeral, and other streams as well as local vegetation rather than assuming that 

"restoration" will protect or allow for the recovery of natural areas 84 

To date, restoration efforts have largely failed when it comes to protecting water quality and 

species. For this reason, we ask OSMRE to focus on protection of riparian areas and waterways 

first (with a strict 100-foot buffer as discussed above), and to rely on restoration only in certain 

limited situations- i.e., when ESA-listed or proposed species or designated critical habitats are 

not present downstream or in the mine site area, and where it can be shown with sufficient 

GORDON. N.D., T. A MCMAHON, AND B. L. FINLAY -SON. 1992. Stream hydrology: an introduction for 

ecologists. John Wiley and Sons, New York. 80 ELLIS. M. M. 1936. Erosion silt as a factor in aquatic environments. Ecolo!,>y 17:29-42. 81 Aldridge, D. W. eta/.. 1987. The effects ofintennittcnl exposure to suspended solids and turbulence on three 

species of fresh-water mussels, E1wiromnental Pollution, 45: 17-28. 80 DAVIES-COLLEY, R. J.. C. W. HICKEY, J. M. QUINN. AND P. A. RYAN. 1992. Effects of clay discharges 

on streams: I. Optical properties and epilithon, Hydrobiologia, 248:215-234. 

" The proposed rule notes that "forested riparian buffers arc essential to prevent excessively high water 

temperatures in coldwater streams and to moderate temperature variations in other streams. One study found a fourfold decline in fish density in coldwater streams after removal of the forested riparian buffer." 80 Fed. Reg. at 

44,49-1. 

84 Commentcrs concur with and incorporate here by reference the cmmnent letter submitted by the Citizens Coal 

Council (sec Appendix B thereto) that the final regulations should not differentiate between pcrcnuial. intermittent. 

or ephemeral streams in terms of pennitting standards and protections. Given that ephemeral and intennittcnt 

streams may provide important lmbitat for listed species or contribute water to perennial streams occupied by listed 

species. there can be no justification for excluding any type of stream from the full suite of statutory and regulatory 

protections under SMCRA. 

20 
164 


Insert offset folio 120 here 98945.120

evidence that the functions and values of the impacted streams and native ecosystems can be 

fully restored. 

Numerous studies document the failure of restoration to protect water quality, species, and local 

communities from the impacts of coal mining. These studies are too numerous for us to list in 

total so we provide relevant excerpts of scientific conclusions: 

"" "Overall, the data show that mitigation efforts being implemented in southern Appalachia 

for coal mining are not meeting the objectives of the Clean Water Act to replace lost or 

degraded streams ecosystems and their functions" 85 

';.- "Mitigation actions being undertaken are primarily geomorphic projects to enhance 

perennial streams yet the majority of streams impacted are intermittent and fewer linear 

feet of stream have been restored than impacted. Compliance is primarily based on visual 

habitat assessments performed by the mining company or their consultants which 

typically report marginal or suboptimal habitat status post restoration. Projects were not 

required to meet specified biological or water quality standards yet for the projects that 

reported such data, most were impaired." 86 

Y "The disturbance caused by MTR!VF is drastically changing the central Appalachian 

landscape, compromising the natural ecological and functional state of both terrestrial 

and aquatic environments. The reclamation process, emphasizing soil compaction and the 

establishment of non-native herbaceous species, has hindered the establishment of native 

tree species on MTR sites (Zipper et al., 2011). These terrestrial impacts in combination 

with changes in water chemistry and stream geomorphology lead to long-lasting changes 

to terrestrial and aquatic ecosystem function (Simmons et al., 2008). Full recovery of 

species diversity in streams impacted by MTRIVF has not been documented" 87 

';.- "Indeed, the MTR!VF streams had, on average, 75% less forest cover than control 

streams" 88 

';.- "Reclaimed mine sites have soils containing unweathered rock that is heavily compacted 

to reduce erosion, resulting in altered water tables and disturbed flow paths (Bonta et al., 

1992; Bernhardt and Palmer, 2011). In particular, compacted soils lead to high rates of 

storm water runoff. Negley and Eshleman (2006) and Ferrari et al. (2009) found that 

MTRNF streams had tripled storm runoff and doubled flow rates compared to reference 

catchments." 

';.- "The extent to which these constructed channels provide important ecosystem services 

lost by burial of natural headwater streams as a result of mining is not well known. Fritz 

" Palmer, M. A., & Hondula, K. L. (20 14 ). Restoration as mitigation: analysis of stream mitigation for coal mining 

impacts in southern Appalachia. Enviromncntal science & teclmology, 48(18), 10552-10560. 

so Jd. 

" Brenee'L, M., Price, S. J., Bonner, S. J., & Barton. C. D. (2014). Mountaintop removal mining reduces stream 

salamander occupancy and richness in southeastern Kentucky (USA). Biological Conservation. 180. 115-121. 

" !d. 

21 
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Insert offset folio 121 here 98945.121

et a!. (20 l 0) reported significantly lower rates oflitter breakdown and higher levels of 

iron, manganese, sulfate, and conductivity in constructed channels draining VF 

watersheds than in natural channels draining forested watersheds. Petty et al. (2013) 

observed lower organic matter (OM) decomposition rates and higher levels of 

conductivity, dissolved solids, and dissolved organic carbon (DOC) in West Virginia 

MTR/ VF constructed channels than in nearby reference channels. Based on their 

database containing descriptions of 38,000 stream and river restoration projects, 

Bernhardt and Palmer (2011) stated that they did not know of a single case where a 

constructed channel recreated the hydrology or ecological functions of natural streams."89 

As these examples illustrate, "restoration" under SMCRA has failed to reclaim the functions and 

values of impacted waterways. 1n particular, it has failed in Appalachia to restore water quality 

and fish, wildlife, and other species. Moreover, as discussed below coal mining has been one of 

several threats that has led to the need to protect species under the ESA, indicating that 

reclamation efforts have not been successful in protecting species, and should not be relied on by 

OSMRE to fulfill its statutory mandate to protect the environment90 

Therefore, in light of the record before it, it is critical that OSMRE ensure that waterways 

affected by proposed mines with ramifications for species listed or proposed for listing under the 

ESA and their critical habitat are protected- i.e., through the use of 100 foot or more stream 

buffers- rather than rely on SMCRA "restoration" plans to justify destruction of these important 

habitat areas, since restoration plans may not adequately address impacts to imperiled species 

and their habitat. 

We are concerned, therefore, that OSMRE appears to rely so heavily on restoration to allow 

activities that will undoubtedly cause harm to the aquatic ecosystems and the species that depend 

on them. For example, OSMRE has proposed paragraph 780.28(d)(2)(iv), which would require 

that the applicant demonstrate that the fish and wildlife enhancement plan for the proposed 

operation includes measures that would fully and permanently offset any long-term adverse 

impacts. While we appreciate the effort to ensure that such impacts are addressed by the 

applicant, it is our position that these enhancement plans cannot adequately offset the lost 

functions and values that result from the impacts of mining activities, including fills and 

impoundments. As discussed herein, the preservation of buffers is essential to preventing the 

long-term harm associated with valley fills, which cannot be fully and permanently offset. To 

the extent that OSMRE seeks comment on whether the final rule could or should include more 

specific standards or criteria for determining the meaning of"fully and permanently offset,"91 

Commenters suggest that OSMRE clarify that this must go to the functions and values of the 

impacted waterway by fully restoring the biological condition, and that the applicant must show 

precisely what the potential long-term impacts may be, and how they will be addressed. We 

further urge OSMRE not to allow state regulatory authorities alone to determine the meaning of 

"fully and permanently offset" on a case-by-case basis. Rather, the regulatory authority should 

" Burke. R. A. Fritz. K. M., Barton, C. D .. Jolmson, B. R .. Fulton, S., Hardy, D ..... & Jack, J.D. (201~). Impacts 

of mountaintop removal and valley fill coal mining on C and N processing in terrestrial soils and headwater streams. 

Water, Air, & Soil PollutioiL 225(8), 1-17. 90 30 U.S.C. §§ 1202(d), 1265(b)(24) and 1266(b)(ll). 91 80 Fed. Reg. at 44.518. 

22 
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Insert offset folio 122 here 98945.122

consult with the Services- especially where listed or proposed species are present- to ensure 

that sufficient measures are being put in place to mitigate impacts. 

OSMRE also seeks comment on whether mitigation required pursuant to section 404 of the 

Clean Water Act may satisfy the "fully and permanently offset" requirement It is our position 

that it will not While Section 404 mitigation does focus on the need to offset environmental 

losses, and is only employed only after a proposed project has incorporated all appropriate and 

practicable means to first avoid and minimize adverse impacts (as should be the case here), it 

does allow for the use of mitigation banks and in-lieu fee programs. Moreover, the focus of 404 

mitigation is on the ability to restore impacted wetlands, with preservation only relied on in 

certain circumstances. As set forth above, the focus must be on preservation, rather than 

restoration. However, if restoration is to be relied on, then that restoration must not be through 

mitigation banks or in-lieu fees, since those mitigation methods do not ensure that the lost 

functions and values will be restored in a manner that addresses the impacts where they occur. 

IV. OSMRE Must Revise the Regulations to Clarify that Incidental Take Authorization 

Must Be Obtained Through an Appropriate Section 10 or Section 7 Process 

We disagree with the fundamental premise of the stream protection rule that OSMRE and state 

regulatory authorities can continue to operate under the pseudo-consultation process created by 

the 1996 BiOp and continue to push imperiled species toward extinction. It is essential that 

OSMRE specify that regulatory authorities must ensure, as part of the permit approval process, 

that potential incidental take oflisted species has been permitted through the ESA Section 10 or 

Section 7 process as appropriate. Specifically, for SMCRA programs run by OSMRE, the agency 

must engage with the Services in formal Section 7 consultations to obtain an incidental take 

statement ("ITS") for mining permit applications that may adversely affect listed species or 

designated critical habitats before it may approve such applications. For SMCRA programs run 

by the States, an ITP and HCP under ESA Section l 0 is necessary to authorize incidental take 

from any approved coal mining permit The failure of the proposed regulations to address the 

need for such incidental take authorizations and other issues discussed below, raises serious ESA 

concerns.92 

Regulatory authorities and mining permittees may not lawfully cause (directly or indirectly) 

unpermitted incidental take of listed species (including through habitat modification that results 

in injury or death of individuals belonging to such species). If they do so, they violate ESA 

Section 9. It is indisputable that unlawful incidental take ofESA-listed species may occur well 

before any jeopardy threshold is reached. Therefore, OSMRE must go beyond simply adopting 

the proposed "may affect" trigger in the material damage definition, as discussed below, and 

revise the proposed regulations to clarify that ESA incidental take authorizations are among the 

federal permits applicants must obtain and regulatory authorities must require before a permit 

can be issued93 

Separately in these comments. we discuss several ofthcse same provisions in the regulations and how they 

comport witl1 SMCRA. 93 We appreciate OSMRE requiring FWS input on PEPs and ot11er protections for fish. wildlife, and habitat, and 

discuss those provisions elsewhere in these comments. Hmvcvcr. ·we ·want to make c1car that strengthening those 

regulatory requirements. while necessary under SMCRA. is insufficient to meet the requirements of the ESA. 

23 
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Insert offset folio 123 here 98945.123

In the proposed regulations, OSMRE correctly states that Section 702(a) of SMCRA, 30 U S.C 

§ 1292(a), supports the proposed regulation providing for the coordination of SMCRA and CWA 

permitting processes under both the state and federal regulatory programs. 80 Fed. Reg. at 

44,478 (discussion of Section 773.5). Indeed, existing 30 CF.R § 773.5 already mandates that 

regulatory programs provide for the coordination of review and issuance of permits with 

applicable requirements of the ESA. In addition, OSMRE must recognize that, just as Section 

702(a)(3) of SMCRA explicitly states Congress' directive that SMCRA shall not be construed to 

supersede, amend, modify, or repeal the CWA, more generally Section 702(a) must be read to 

include the ESA in the set of statutes that SMCRA does not supersede, amend, modify, or 

repea1 94 

Because SMCRA cannot be construed to supersede, amend, modify, or repeal the ESA in any 

respect, it is plain that OSMRE does not have leeway under its regulations implementing 

SMCRA to relieve itself (as the regulatory authority), state regulatory authorities, or private 

parties such as mining companies from their legal obligations under the ESA to obtain 

appropriate incidental take coverage under Section 10 or Section 7 of the ESA as applicable. 

Equally importantly, OSMRE does not have the regulatory authority to supersede, amend, or 

modify the ESA and its implementing regulations by unlawfully delegating to itself or to state 

regulatory authorities the power to make a jeopardy determination, to quantify permitted 

incidental take, or to approve a permit that may result in unpermitted incidental take of listed 

species without ensuring that applicants have received appropriate ESA permits or 

authorizations. 

OSMRE must revise and clarify a number of its proposed regulations to ensure that they cannot 

be construed to modify or supersede the ESA' s independent statutory and regulatory 

requirements in any respect. This is particularly the case for the proposed regulations at 30 

CF.R. §§ 773.15, which specifies the findings regulatory authorities must make before 

approving permits; 773.17, which specifies the conditions the regulatory authority must place on 

each permit issued; 779.20, which specifies the information on fish and wildlife resources the 

applicant must include in the permit application; 780.16 and 784.16, which specify the 

requirements for fish and wildlife protection and enhancement plans; and 816.97(b)(1) and 

817.97(b)(l), which detail the permittee's obligations with respect to federally listed species 

under the performance standards. OSMRE must revise all of these sections before final 

promulgation to ensure consistency with the ESA and to clarify for regulatory authorities, permit 

applicants, and permittees that, as per proposed 30 CF.R § 773.5(a)(3), they are required by the 

ESA to obtain any necessary incidental take authorizations through Section 10 or Section 7. 

94 30 U.S.C. § 1292(a) ("Nothing in this chapter shall be construed as superseding, amending, modifying, or 

repealing ... the National Environmental Policy Act of 1969 ... or any of the following Acts or with any mle or 

regulation promulgated thereunder. including. but not limited to" a list of eight statutes. (emphasis added). See 

Defenders '!/Wildlife v. Jewell, Case No.3: U-cv-698-PLR-CCS 2015 WL 402680 at *5-6 (E.D. Tenn. Jan. 28, 

2015) (Section 702(a) language includes ESA): Ohio River Valley Envtl. Coal., Inc. v. Kemp/home, '173 F.3d 94. 

10 I (.\th Cir. 2006) (Section 702(a) language includes Administrative Procedure Act): Indiana Coal Council v. 

Lujan. 774 F. Supp. 1385. 1397 (D.D.C. 1991) ("Si!,mificautly. the list of statutes cited as examples in§ 1292(a) is 

not exclusive, and although the [National Historical Preservation Act] is not specifically listed, it is implicitly and 

presumptively included ... "). rev'd on other grounds sub nom.Indiana Coal Council v. Babbitt. No. 91-5397, 1993 

WL 184022 (D.C. Cir. Apr. 26. 1993). 

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Insert offset folio 124 here 98945.124

With respect to proposed 30 C.FR. § 773.15G), 80 Fed. Reg. at 44,589, Commenters object to 

the regulation as drafted as inconsistent with the ESA As argued below, the jeopardy test is the 

wrong standard. Not only would this standard invite the regulatory authority to make a 

jeopardy/no-jeopardy determination that the ESA does not authorize it to make (and that 

OSMRE is not authorized to delegate), it is also not the standard applicable to non-federal state 

regulatory authorities to ensure their own compliance with the ESA As stated above, state 

regulatory authorities are liable under ESA Section 9 for issuing state permits that authorized 

actions that could result in unpermitted incidental take of listed species. 95 Further, OSMRE does 

not have the statutory authority under SMCRA to promulgate regulations that can be construed 

to modify, amend, supersede, or repeal any provision of the ESA by purporting to change the 

ESA's statutory prohibitions or permitting requirements applicable to state-issued SMCRA 

permits. OSMRE must clarify that the standard applicable to regulatory authorities and to pennit 

applicants is that no unpermitted incidental take may occur as a result of mining operations and 

that all necessary incidental take authorizations can only be issued by the Service(s) under ESA 

Section I 0 or 7. 

Therefore, OSMRE must revise the text of proposed 30 C.F.R. § 773.15G) to remove the no 

jeopardy standard and specify instead that the applicant must atlirmatively demonstrate, and the 

regulatory authority must find in writing, that the applicant's operation has obtained all necessary 

ESA incidental take authorizations from the Service(s). Further, Commenters assert OSMRE 

should revise proposed 30 C. FR. § 773.17 to add a condition parallel to proposed § 773.l7(h), to 

state that permittees must obtain all necessary authorizations and permits in accordance with 

ESA requirements before conducting any activities that require ESA incidental take 

authorizations. 

With respect to proposed 30 C. FR.§§ 780.16(b) and 784.16(b), addressing requirements for fish 

and wildlife protection and enhancement plans developed for federally listed species, these 

sections should be revised to reflect that, while species-specific protection and enhancement 

plans are important under SMCRA, they are not a substitute for appropriate ESA incidental take 

authorizations, and that applicants are responsible for demonstrating to the regulatory authority 

that they have obtained or will obtain appropriate ESA incidental take authorization for any 

incidental take likely to occur under the permit 

With respect to proposed 30 C.F.R. § 780.16(e), concerning Service review of protection and 

enhancement plans, Commenters applaud OSMRE for requiring regulatory authorities to notify 

the Service whenever plans implicating listed species are submitted rather than waiting for the 

Service to request a copy of such plans. However, the proposed regulation as drafted purports to 

give the Service only an advisory role on commenting on such plans and purports to give the 

regulatory authority (or OSMRE) the final say as to whether any particular recommendation 

from the Service be incorporated into the final SMCRA permit, subject to a dispute resolution 

process that may be elevated to OSMRE96 Commenters take issue with any regulations that 

"Strahan v. Coxe. 127 F. 3d 155, 168 (1st Cir. 1997): Pac. Rivers Council v. Brawn, No. 02-243-BR, 2002 U.S. 

Dist LEXIS 28121, 2002 WL 32356431 (D. Or. Dec. 23. 2002): Seattle Audubon Soc :v. v. Surherland, No. 06-

1608MJP. 2007 WL 1300964 (W.O. Wash. May I, 2007): Animal Prot. Inst. v. Holsten. 541 F. Supp. 2d 1073 (D. 

Mitm. 2008). 96 80 Fed. Reg. at 44,600 (proposed 30 C.F.R § 780.16(e)(2). 

25 
169 


Insert offset folio 125 here 98945.125

would put the regulatory authority in the position of having final decision-making authority of 

whether and how to allow mining that will result in incidental take to proceed without 

appropriate incidental take authorization. 97 Moreover, regulatory authorities should not be 

allowed to prevent the imposition of measures that the Services have deemed necessary to 

minimize and mitigate the impacts to listed species. If regulatory authority or mining applicant 

refuses to include the measures that the Srervice has recommended, that suggests that the mining 

activities would have undue adverse impacts, and such activities must not be allowed to proceed. 

As OSMRE has already recognized via the proposed ref,>ulations applying to surface and 

underground mining permittees, "[n ]othing in this chapter authorizes the taking of a threatened 

or endangered species in violation of the Endangered Species Act of 1973, 16 U.S. C. 1531 et 

seq."98 As further discussed below, because the jeopardy standard applies only to federal 

agencies, not to private parties (or state agencies that issue permits to private patties), OSMRE 

must amend proposed the general performance standards found at 30 C.F.R. §§ 816.97 and 

817.97 at subsection (b )(l)(i) to remove the jeopardy language and clarify that permittees may 

not conduct any surface mining activity that is likely to violate ESA Section 9 without an 

appropriate incidental take authorization via ESA Section lO or Section 7. 

Furthermore, OSMRE cannot delegate to the regulatory authority the decision as to whether the 

permittee may proceed as currently specified by proposed 30 C.F.R. §§ 816.97 and 817.97 at 

subsections (b )(iii)(B) without clarifying that only the Services may authorize incidental take of 

listed species via ESA Section 10 or Section 7. OSMRE should clarify these parts of the 

proposed rule to make clear that the SMCRA regulations do not give the regulatory authority the 

final say on whether mining that may cause incidental take oflisted species. Similarly, proposed 

30 C.P.R. §§ 816.97 and 817.97 at subsection (b)(iv) must specify that permittees must comply 

with any terms and conditions and measures specified by the Services following issuance of a 

Section l 0 incidental take permit or Section 7 incidental take statement. 

V. Comments on Specific Sections of the Proposed Rules 

A. Impacts to ESA-Listed Species Should be the Trigger in the SMCRA 

Regulations and the Other Alternatives Should be Rejected. 

OSMRE requests comment upon the proposed definition of"material damage to the hydrologic 

balance" with respect to an appropriate trigger to include in the stream protection regulations for 

ensuring that listed species are protected in compliance with the ESA. OSMRE questions 

whether the trigger should be "jeopardy" of a species and "destruction or adverse modification" 

of critical habitat, rather than the proposed "impacts" test99 For example, in defining "material 

damage to the hydrologic balance outside the permit area," OSMRE proposes two alternatives. 

The proposed rule would include a trigger of"would impact threatened or endangered species, or 

have an adverse effect on designated critical habitat, outside the permit area in violation of the 

For similar reasons Commentcrs also object to proposed 30 C.F.R. § 779.20(d)(2), which parrots the language 

propcscd for§ 780.16(c)(2). 

"80 Fed. Reg. at 44,665 (proposed regulation 30 C.F.R. § 816.97(h)(l)(v): id. at44,690 (proposed regulation 30 

C.F.R. § 817.97(h)(l)(v)). 99 80 Fed. Reg. at 44,475 (material damage to hydrologic balance definition); id. at 44.502 (CHIA requirements). 

26 
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Insert offset folio 126 here 98945.126

Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.," while the alternative being considered 

is "would jeopardize the continued existence of threatened or endangered species, or result in the 

destruction or adverse modification of designated critical habitat, outside the permit area in 

violation of the Endangered Species Act of 1973."too 

We submit that any potential impact, i.e., adverse effect, to threatened or endangered species or 

their critical habitats is the appropriate trigger to utilize in the regulations to ensure consistency 

with the ESA. We therefore urge OSM to adopt the proposed language regarding adverse 

impacts to listed species or designated critical habitats, rather than changing the regulation to use 

jeopardy to define material damage to the hydrologic balance and as a trigger for addressing 

impacts to threatened and endangered species. 

A jeopardy or destruction/adverse modification test sets the bar too high. Section 7 is designed to 

prevent jeopardy and to minimize take of threatened and endangered species. This is done by 

using a "may affect" trigger for consultations. tot Thus, under Section 7 when an action "may 

affect" a species, instead of having no effect, then consultations result The reason for this 

threshold is that Sections 9 and 4(d) of the ESA prohibit the "take" ofESA-listed species, which 

"means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to 

engage in any such conduct"to2 The adverse impact determination that 0Sl\1RE has proposed 

for preventing material damage to the hydrologic balance when listed species are present would 

therefore be consistent with the "may affect" test to prevent harm that is employed under Section 

7 of the ESA. Additionally, we suggest that OSMRE substitute the term "adversely affect" or 

"adverse effects" for "impact" to track more closely the language of the ESA. This language 

should be used consistently in proposed 30 C.F.R. § 701.5 (material damage definition) and 30 

C.F.R § 780.21 (CHIA requirements). 

It would be inconsistent with the ESA for OSMRE to adopt a jeopardy standard to be applied by 

regulatory authorities (whether OSMRE itself or in states with primacy). Under the ESA, only 

the Services are authorized to determine whether an action will result in jeopardy to a species' 

continued existence or in the destruction or adverse modification of designated critical habitat. 

The required process and substance of a formal consultation are prescribed by the Services' duly 

promulgated regulationsl 03 and require analysis of the best available scientific data on a species' 

status and a determination of the effects of the action based on (inter alia) the direct and indirect 

effects of the action as added to the environmental baseline and considered with cumulative 

effects. Neither OSMRE itself nor any state regulatory authority is authorized by the ESA or 

SMCRA to make its own jeopardy or no-jeopardy determinations. OSMRE may not exceed its 

delegated authority to promulgate SMCRA regulations that effectively supersede, modify, or 

amend the ESA by purporting to authorize agencies other than the Services to make jeopardy 

determinations. Therefore, a "jeopardy" trigger would not only be under-protective of listed 

100 80 Fed. Reg. at 4c!A75. 101 FWS & NMFS, Consullation Handbook: Procedures for Conducting Consultation and Conference Activities 

under Section 7 of the Endangered Species Act (March 1998) (available at: 

https://www.fws.gov/ENDANGERED/esa-library/pdf/esa_section7 _handbook pdf) at 2-6. May affect is defined to 

mean ''when a proposed action may pose any effects on listed species or designated critical habitat" 102 16 U.S.C. § 1532(19). 103 50 C.F.R Part 402. 

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Insert offset folio 127 here 98945.127

species, it would be entirely inconsistent with the ESA and in excess ofOSMRE's delegated 

statutory authority. 

Without a doubt, ESA-listed species may be unlawfully taken well before jeopardy results. 

Thus, if the trigger for ESA compliance is a "jeopardy test," then it would open up OSMRE, 

States, and the coal industry to Section 9 take liability. This is because the regulations would 

only require conferral with Service in a jeopardy situation, and since only the Services can 

authorize take, the regulatory authority and permittee would be left without take liability 

coverage under the ESA even when threatened or endangered species are impacted- i.e., 

"taken."104 Therefore, having the trigger for ESA protections be "jeopardy," instead of the "may 

affect" trigger typically used for Section 7 consultations, would not ensure compliance with the 

ESA and leave regulatory authorities and coal companies open to ESA enforcement actions. 105 

Of course, the only way to ensure compliance with the ESA is to require Section 7 consultations 

on each SMCRA permit (or for state regulatory authorities to obtain permits under Section 10 of 

the Act for states with primacy). But setting a trigger in the SMCRA regulations of jeopardy 

would simply fail to protect a whole host of species from adverse impacts from coal mining. 

Therefore, we ask that you adopt a "may impact" or "may affect" (or more appropriately an 

"adversely affect") standard in the following regulations: 

30 C.P.R. § 701.5 (material damage to the hydrologic balance definition) 

30 C.F.R § 780.21 (CIHA) 

30 C.F.R § 816.97(b) 

30 C.P.R.§ 817.97(b) 

B. Comments Regarding the Proposed Changes to the PEP Regulations 

As set forth herein, Commenters believe that the reliance on protection and enhancement plans 

("PEPs") to establish compliance with the ESA is unlawful, and OSMRE should clarify in the 

regulations that the only way to avoid Section 9 take liability is for regulatory authorities to 

obtain incidental take coverage under ESA Sections 7 or 10 as applicable. We note, however, 

that PEPs may be useful in ensuring that species- and site-specific measures to protect species 

are included in permits. We have several concerns with the amended PEP regulations. 106 Our 

primary concerns are that: I) the list of"enhancement measures" in the regulation are inadequate 

to protect threatened and endangered species, critical habitat, and those imperiled species 

proposed for listing; and 2) that applicants can elect not to undertake enhancement measures 

when "implementation of those measures is not practicable." 107 

Further, OSMRE notes that "proposed paragraph ( c )(3) would specify that the fish and wildlife 

enhancement plan must require maintenance of an intact forested buffer at least 100 feet wide 

between surface disturbance and a perennial or intermittent stream to the extent possible. This 

106 Proposed 30 C.F.R. §§ 780.16. 784.16. 10' Proposed 30 C.F.R. § 780.16(d). 

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Insert offset folio 128 here 98945.128

requirement would apply only when the stream is located in a forested area." 108 Only requiring 

buffers "to the extent possible" and only in "forested areas" does not ensure protection offish 

and wildlife. As discussed above, although OSMRE recognizes that 100 foot buffers are a 

"midrange compromise" designed to obtain the objectives of Section 102(f) of SMCRA, activity 

in those buffers threatens streams and the species that rely on them. Again, meeting such 

objectives does not necessarily ensure protection of threatened and endangered species or ensure 

compliance with the ESA. 

We further appreciate OSMRE clarifying the process for resolving disputes between Service and 

a regulatory authority. Of critical importance is the regulatory amendment that makes clear "that 

the regulatory authority may not approve the permit application until all issues are resolved in 

accordance with this process and the regulatory authority receives written documentation from 

the Service that all issues have been resolved." 109 We appreciate the inclusion of this provision, 

which is critical for helping ensure the protection of ESA-listed and proposed species. Removal 

of this requirement would negate the system for protecting wildlife under the SMCRA 

regulations and leave the regulatory authority and mining companies vulnerable to ESA liability. 

We note, however, that as discussed herein our position is that state regulatory authorities should 

not be provided with any opportunity to refute or reject species-specific measures to minimize 

take that the Services establish, or rely on the PEP process in lieu of appropriate ESA incidental 

take authorization. Rather, the regulations should clarify that if the species-specific measures that 

the Service recommends are unable to be employed for a specific mine, the project would have 

unacceptable adverse impacts, and should not be allowed to proceed. Further, the PEP process 

can supplement but cannot substitute for appropriate incidental take permitting under ESA 

Section 7 or 10. 

Lastly, the definition of"adjacent area" is critical for ensuring that species downstream of the 

mining site and otherwise subject to air pollution and edge effects resulting from the permitted 

mine receive PEPs. We appreciate the regulations requiring applicants to list species beyond just 

the mine site and encourage OSMRE to ensure that the adjacent area includes those areas that 

will be impacted by pollution from coal mining so that PEPs are prepared when necessary. 110 

C. Commenter's Support Adding in Consideration of Species Proposed for 

Listing under the ESA 

We thank OSMRE for revising its regulations to require consideration of whether a mine 

application will have ramifications for species proposed for listing under the ESA. It is not 

enough for the regulations to apply to species listed under the ESA. By covering species 

proposed for listing, the reb>ulations will aid mining applicants in ensuring compliance with the 

ESA and that appropriate incidental take coverage is obtained. We encourage OSMRE to 

maintain these proposed changes in the following regulations: 30 C.F.R. §§ 773.15(j)lll; § 

108 80 Fed. Reg. at 44,493-44_496. 109 80 Fed. Reg. at 44A93-44A96. 

ll<l See 50 C.F.R. § 402.02. wherein the "action area" encompasses all areas that would be "affected directly or 

indirectly by the Federal action and not merely the inunediate area im·olved in the action." 

"' 80 Fed. Reg. at 44A79 Cwe propose to modify paragraph (j) to extend the finding to inclnde species that tllC 

Secretary has proposed for listing as threatened or endangered.''). 

29 
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Insert offset folio 129 here 98945.129

779.20(c)(l) (fish and wildlife information necessary for permit application); and§ 783.20(c)(l) 

((fish and wildlife information necessary for permit application). 

That said, there are several regulatory changes that reference threatened and endangered species, 

but fail to include species proposed for listing. We ask OSMRE to include species proposed for 

listing under the ESA in the following regulatory provisions: 

• 30 C.F.R. §§ 784.21 (CHlA) and 780.21 (CHIA) 

• The title of§ 780.16(b) and § 784.16(b) should be changed from "Protection of 

threatened and endangered species" to "Protection of threatened and endangered species 

and those proposed for listing." 

The amendment of these provisions is necessary to comply with the ESA. 112 Therefore, we 

support your proposal to include consideration of species proposed for listing and encourage you 

to do so in the four additional regulations referenced above. 

D. ESA-Related Criteria for Preventing Material Damage to the Hydrologic 

Balance and Undertaking Cumulative Hydrologic Impact Assessments 

In defining "material damage to the hydrologic balance" OSMRE notes that "SMCRA material 

damage criteria must be no less stringent than Clean Water Act water quality standards and 

criteria in all cases, but, in some situations, they may need to be more stringent to protect unique 

uses or to comply with the Endangered Species Act." 113 OSMRE further notes that "[m]aterial 

damage criteria for groundwater also would need to take into consideration the needs of any 

threatened or endangered species." 114 

Likewise, in undertaking a cumulative hydrologic impact assessment (CHIA), the applicant is to 

"[t]ake into consideration the biological requirements of any species listed as threatened or 

endangered under the Endangered Species Act when those species or designated critical habitat 

are present within the cumulative impact area." 115 The applicant is to apply criteria that take into 

account ESA-protected species' "biological requirements." 

We appreciate these recognitions by the agency; however, we recommend that in addition to 

having the applicant or State regulatory authority develop criteria to protect threatened, 

endangered, and proposing for listing species, that OSM require at least a l 00-foot buffer in all 

watersheds with ESA- protected species-no variances and no exceptions. As discussed in detail 

above, this is necessary to prevent harm to listed species and to fulfill OSM' s duties pursuant to 

the ESA. 

Further, OSMRE and the Services must require consultations and the issuance of an incidental 

take statement (or a habitat conservation plan and incidental take permit under Section 10 of the 

112 16 U.S.C. § l536(a)('l). 

"' 80 Fed. Reg. at 44,475. 114 Jd. 

115 80 Fed. Reg. at H.604 

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Insert offset folio 130 here 98945.130

ESA for states with primacy) for each mine application that the Service reviews to ensure that 

proper criteria are included in the mine plans to protect ESA-listed and proposed species. 

E. Aspects of the Proposed Rules that We Support for the Protections 

They Will Provide to Wildlife, Including Listed Species 

The proposed mle provides many enhanced protections for streams and the environment 

surrounding surface coal mining projects that will benefit wildlife, including the many listed 

species that may be affected by mining activities. The increased data collection, monitoring and 

site restoration requirements, along with increased protections for streams and the species that 

depend on them, are certainly a step in the right direction. While these measures will not mitigate 

the decades of wanton destruction from mining activities that have left many coal mining regions 

with degraded streams and harmed wildlife, severely undermining the protections of the ESA 

and the SMCRA mandate to protect the environment, we hope these new rules will serve to 

reduce further harm. We therefore support the following aspects of the proposed rule, and urge 

OSMRE to include them in the final rule. 

• We support the increased requirements for baseline data collection and monitoring of 

pollution from mining operations; however, as discussed further below, we believe that 

monitoring should be continuous, rather than monthly. 

• While we believe, as discussed above, that full restoration of the ecological functions of a 

stream impacted by mining activities is not possible, and therefore preservation of a strict 

I 00-foot buffer must be the goal of these rules rather than relying on restoration, we support 

the proposed requirements that would strengthen mine reclamation, including provisions that 

would require more complete restoration of stream form and biological functions, and the 

need to utilize native vegetation in reclaimed riparian areas. 

• We fully support the addition of a new required finding in paragraph 773.15(o), which would 

specify that, to the extent possible using the best technology currently available, the proposed 

operation has been designed to minimize disturbances and adverse impacts on ftsh, wildlife, 

and related environmental values, as identified in§ 779.20 or§ 783.20, and to enhance those 

resources where practicable, as required under§ 780.16 and§ 784.16, with the caveat that 

OSMRE must revise the proposed regulations as specified herein to clarify that mining 

permit applicants, permittees, and regulatory authorities must obtain or ensure the obtainment 

of all necessary incidental take authorizations via ESA Sections 10 or 7. 

We reiterate that the best technology currently available to protect stream resources and the 

species that rely on them is to require a strict buffer to keep mining activities away from 

streams. OSMRE should require a strict buffer as discussed above; however, ifOSMRE will 

allow mining activities within the buffer area, it should require more than a superficial 

showing that maintaining the buffer is not possible, but rather the applicant must have the 

burden of proving that maintaining the buffer is not possible. 

Moreover, the economic impacts of maintaining the buffer must not be the only consideration 

in determining whether maintaining the buffer is possible. Rather, OSMRE must comply 

31 
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Insert offset folio 131 here 98945.131

with its statutory mandate to protect the environment and "minimize disturbances and 

adverse impacts on fish, wildlife, and related environmental values." 116 We therefore ask 

that OSMRE provide more specific information on what is required to "minimize" harm "to 

the extent possible," and that the final rule recognize that the mere fact that further reductions 

in environmental harm would reduce coal recovery is insufficient to show that harm has been 

minimized or that further reductions are not possible. 

• We support the proposed change in § 774.15(b )(2) that would add paragraph (b )(2)(vii), to 

require that each application for permit renewal include an analysis of the monitoring results 

for surface water, groundwater, and the biological condition of streams and an evaluation of 

the accuracy and adequacy of the determination of the probable hydrologic consequences of 

mining (PHC determination). We further support the addition of paragraph (b)(2)(viii), which 

would require that the renewal application include either an update of the PHC determination 

or documentation that the findings in the existing PHC determination are still valid. 

Similarly, we support the revision to paragraph (c)(l)(viii), which would authorize the 

regulatory authority to withhold approval of a permit renewal application if monitoring 

results or the updated PHC determination indicate that the finding that the re1,>ulatory 

authority made under 30 CFR 773.15(e) that the operation is designed to prevent material 

damage to the hydrologic balance outside the permit area is no longer accurate. 

We believe that this is an important improvement over the existing regulations, which require 

almost no review for permit renewal. The result has been mine permits that are not utilized 

for many years, yet get renewed without any review of changed conditions, such as the 

listing of endangered or threatened species, or natural alterations to the land cover or other 

conditions that may affect the impacts of the mining activities on land and water resources, 

including the cumulative impacts of nearby mining activities. Mine operators should not be 

able to avoid the implementation of common-sense measures to minimize and mitigate 

impacts to the environment, including to listed species and their critical habitat, by sitting on 

permits. In order to ensure that the environment is protected, as required by SMCRA, permit 

renewals must incorporate more environmental review. We suggest that the proposed 

language be revised to incorporate additional requirements on biological surveys and 

monitoring to update information on sensitive wildlife species, including any listed species, 

to ensure that any permit renewal will adequately consider fish and wildlife impacts. 

• We support proposed paragraph 779.20(d)(J)(i), which would require that the regulatory 

authority provide the fish and wildlife resource information included in the permit 

application under proposed paragraph (c) to the applicable regional or field office of the 

Service whenever that information includes species listed as threatened or endangered under 

the ESA, critical habitat designated under that law, or species proposed for listing as 

threatened or endangered under that law. Under the existing rule, the Service must request 

this information from the regulatory authority rather than receiving it automatically. This will 

assist the Services in the implementation of species-specific measures to minimize and 

mitigate the potential for take of listed species from mining activity. All mining projects that 

threaten to harm listed or proposed species should receive ESA review (i.e. under Section 7 

or Section 10) to ensure that they will not result in unpermitted take or jeopardize the 

116 30 U.S.C. §§ 1202(!), 1266(b)(ll). 

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Insert offset folio 132 here 98945.132

continued existence oflisted species, and this regulation would provide the impetus for 

OSMRE and FWS to oversee the implementation of the ESA to prevent jeopardy to the many 

species impacted by coal mining activities. 

• We support proposed paragraph 779.22(b )(3), which would require that the permit 

application include a narrative analysis of the pre-mining productivity of the proposed permit 

area for fish and wildlife. This is essential to establishing a baseline on which impacts to fish 

and wildlife can be evaluated, and for establishing a reference for remediation of the area to 

pre-mining conditions. 

• We support the proposed requirement in§ 780.2l(b)(6), which would require that the criteria 

defining material damage to the hydrologic balance outside the permit area be expressed in 

numerical terms for each parameter of concern, that they take into consideration the 

biological requirements of any species listed as threatened or endangered under the 

Endangered Species Act when those species or designated critical habitat are present within 

the cumulative impact area, and that they identify the portion of the cumulative impact area 

to which the criteria apply and the locations at which impacts will be monitored. We further 

support the requirement that these numerical criteria be incorporated into the permit to ensure 

that they are enforceable. It is essential that criteria be developed, and that the biological 

requirements of listed species be considered in that process, in order to prevent undue harm 

to streams and the species that rely on them. 

• We support proposed paragraph 816.97(b )(l)(iii)(A), which would add a requirement that the 

regulatory authority issue a permit revision order under 30 C.F.R. § 774.10(b) when 

necessary to implement the results of the coordination process with state and federal fish and 

wildlife agencies following receipt of notification under proposed paragraphs (b)(l)(ii) and 

(iii). The incorporation of the results of the coordination process must be incorporated into 

the permit in order to ensure that protective measures are undertaken and enforceable. We 

note, however, that this coordination process may be insufficient to ensure that listed species 

are not jeopardized and are not subjected to unpermitted incidental take, and does not provide 

for incidental take coverage to avoid Section 9liability under the ESA. 117 

• We support the revised definition of"Adjacent Area" to include all areas outside the 

proposed or actual permit area within which there is a reasonable possibility of adverse 

impacts from surface coal mining operations or underground mining activities, as applicable. 

As noted herein, the impacts of mining activities on species, including ESA protected 

species, may be felt many miles downstream. Therefore, a definition of"Adjacent Area" that 

includes areas outside the permit area, and that recognizes the extent of harm to downstream 

communities, is warranted. 

• We support revised paragraph 773.17(e), which would require that the permittee notify the 

regulatory authority and other appropriate state and federal regulatory agencies of any 

adverse impact to the environment or public health or safety as a result of a noncompliance 

with any term or condition of the permit. As the rule itself notes, "Notification would allow 

33 
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Insert offset folio 133 here 98945.133

those agencies to take any necessary action to minimize the impacts of the noncompliance on 

the environment or public health or safety, consistent with the purpose stated in section 

102(a) ofSMCRA." 

However, we believe that permittees should have to notify the RA of monitoring results that 

indicate potential environmental harm, even if it is unknown whether that harm is "as a result 

of a noncompliance with any term or condition of the permit" This would unnecessarily 

limit the reporting requirement, potentially resulting in lost opportunity for corrective action. 

For example, pollutants could be coming from a nearby mine and thereby causing adverse 

environmental impacts, but another mine may be the first to register this issue in monitoring 

water quality. The proposed rule would not require that mine operator to report the finding if 

they have no reason to know there is a permit violation at another mine; however, if they 

alert the RA of the potential adverse impacts, it could lead to faster responsive action. 

Therefore, this reporting requirement should not be so limited. 

• We support revising existing 30 C.P.R. § 779.19 by adding more specificity and making 

submission of vegetation information mandatory rather than discretionary as under the 

existing rules. As the rule states, the changes proposed are needed to ensure that native plant 

communities are restored on reclaimed areas as required by section 515(b )( 19) of SMCRA, 

and while we agree that "Restoration or establishment of native plant communities is the 

most effective way of restoring or enhancing wildlife habitat," we note, as discussed in more 

detail above, that restoration must not be relied on to protect the important functions and 

values of headwater streams, which are irreparably harmed by coal mining activities. Rather, 

the OSIVIRE should require a strict buffer to protect streams- especially where imperiled 

wildlife are present or downstream- to preserve these important resources. 

• We support proposed paragraph 779.20(c)(1 ), which pertains to species listed or proposed for 

listing as threatened or endangered under the ESA We support the addition of a requirement 

that the site-specific resource infonnation include a description of the effects of future state 

or private activities that are reasonably certain to occur within the proposed permit and 

adjacent areas. This will allow for a more comprehensive analysis of the cumulative impacts 

of mining and other activities on listed and proposed species and their habitat We urge 

OSMRE to clarify that this provision would include impacts from not only mining, but all 

activities in the area that may impact these species, and also to require that this analysis go 

beyond the "adjacent area" to include all habitat areas within the region relied upon by 

affected species that may be impacted, such as downstream impacts. 

• We support proposed paragraph 779 20(c)(3), which corresponds to existing 30 C.P.R. § 

780.16(a)(2)(ii), and agree that expanding the list of examples of habitat of unusually high 

value to fish and wildlife to include areas that support populations of endemic species that 

are vulnerable because of restricted ranges, limited mobility, limited reproductive capacity, 

or specialized habitat requirements would be beneficiaL We urge OSMRE to further include 

potential habitat for ESA listed or proposed species on that list as well. 

• We support the proposed addition to § 780.16(b) that would expressly require that the fish 

and wildlife protection and enhancement plan contain a description of any other applicable 

34 
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Insert offset folio 134 here 98945.134

species-specific protection and enhancement plans, which would include any plans 

developed in accordance with the existing formal Section 7(a)(2) Endangered Species Act 

consultation pertaining to the approval and conduct of surface coal mining and reclamation 

operations under a SMCRA regulatory program. We further urge OSMRE to require that the 

applicant not only describe such plans, but show that it is in compliance with all applicable 

species-specific measures in any existing PEPs, and if not, to explain in writing why they are 

not able to comply with those measures. 

However, we must note, as discussed herein, that PEPs are not a substitute for ESA 

compliance, and we believe that the 1996 Biological Opinion and Incidental Take Statement 

are invalid and have been repeatedly violated, rendering them unable to provide take 

coverage for surface coal mining activities, subjecting both the state and private actors to 

Section 9 take liability from surface coal mining impacts. Therefore, regulatory authorities 

should not be relying solely on PEPs developed by applicants to ensure compliance with the 

ESA, but should be conducting Section 7 consultations or seeking Incidental Take Permits 

under Section 10 of the ESA for impacts to listed species (see below). Furthermore, OSMRE 

has failed to adhere to the requirements of the 1996 BiOp, and therefore has not complied 

with Section 7 of the ESA. OSMRE must therefore reinitiate consultation on the impacts of 

coal mining on listed species. 

• We support proposed paragraph 780.16(c)(3), which would specify that the fish and wildlife 

enhancement plan must require maintenance of an intact forested buffer at least l 00 feet wide 

between surface disturbance and a perennial or intermittent stream, although we believe that 

the escape clause of "to the extent possible" should be removed. We note that this 

requirement would apply only when the stream is located in a forested area; however, we 

urge OSMRE to make this applicable even in non-forested areas, where the removal of 

vegetation and soil disturbance may still cause undue harm to streams and the species that 

depend on them, through sedimentation and pollution. Moreover, we note that the proposed 

rule does not adequately support this buffer requirement, as it allows mining activities near 

and through streams. As discussed above, a strict 100-foot buffer is needed to protect streams 

and the fish and wildlife that depend on them. 

• We support proposed paragraph 780.16(d)(2)(ii), which would require that the scope of the 

enhancement measures be commensurate with the potential long-term adverse impact to 

those resources and that the measures be permanent in nature. OSMRE should clarify that by 

"commensurate," it means that enhancement measures must support the functions and values 

of the resources that have been impacted, to ensure that the biological condition is fully 

supported. We are concerned, however, by proposed paragraph (d)(2)(iii)(A), which would 

require that enhancement measures be implemented within the watershed in which the 

proposed operation is located, "unless opportunities for enhancement are not available within 

that watershed." We believe that if it will not possible to provide sufficient enhancement in 

the affected watershed, that would indicate that the project has unacceptable adverse impacts 

and should not be permitted. Relying on mitigation outside of the watershed allows for 

mining companies to simply pay to destroy natural resources, and therefore does not comport 

with the duty established by SMCRA to minimize disturbances and adverse impacts on fish, 

35 
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Insert offset folio 135 here 98945.135

wildlife, and related environmental values and to achieve enhancement of those resources 

where practicable. 30 U.S.C. §§ 1265(b)(24) and 1266(b)(ll). 

• We support proposed paragraph 780.2l(b)(8)(i)(A), which would require a determination 

that, during all phases of mining and reclamation and at all times of the year, variations in 

streamflow and groundwater availability resulting from the operation, as well as variations in 

the amount and concentration of parameters of concern in discharges from the operation to 

groundwater and surface water, would not adversely impact threatened or endangered species 

or designated critical habitat in violation of the ESA Commenters suggest clarifying 

language to specify that any such variations that may result in incidental take of listed species 

must be appropriately authorized through ESA Section 10 or Section 7. 

• We support proposed paragraph 816.97(b)(l)(ii), which would add a sentence clarifying that 

the requirement that the permittee report to the regulatory authority the presence of any 

federally-listed threatened or endangered species within the permit area applies regardless of 

whether the species was listed before or after permit issuance. We also support the proposal 

to expand this notification requirement to apply to both the permit area and the adjacent area, 

not just the permit area as under the existing rule. 

However, we note that OSMRE is considering whether to limit the notification requirement 

of proposed paragraph (b )(I )(ii) to the active mining phase of the operation; i.e., "whether 

the final rule should specify that the notification requirement expires at the time of Phase II 

bond release because of the typical lack of activity on the site after that stage of 

reclamation."ll 8 We urge OSMRE not to do so. The risk of harm to listed species comes 

before active mining (i.e. site prep, logging, haul road construction etc) and continues well 

after the active mining phase has been completed, due to ongoing polluted wastewater and 

related impacts. Therefore, the need to ensure that listed species are not harmed is 

continuous, and should not be limited to the active mining phase of a project 

• We support proposed paragraph 816.97(b)(l)(iv), which would expressly require compliance 

with any species-specific protective measures required by the regulatory authority in 

coordination with the U.S. Fish and Wildlife Service. This is very important, as there has 

been no formal consultation on specific mines because of reliance on the 1996 BiOp, which 

we believe to be invalid and in need of reinitiation. Therefore, species-specific measures to 

minimize take are not being included, and OSMRE cannot ensure that species are not being 

jeopardized as required pursuant to the ESA For example, several mines have been approved 

since the northern long-eared bat was listed as threatened, without PEPs being developed. 

This provision, while important, would not provide for protective coverage from Section 9 

take liability due to the fact that the 1996 BiOp is invalid; however, it is still essential that 

PEPs be developed and include all necessary species-specific measures to minimize take. 

• We support the proposed clarification stating "that nothing in our regulations authorizes the 

taking of a threatened or endangered species in violation of the Endangered Species Act" and 

that "[o]nly the U.S. Fish and Wildlife Service may quantify allowable take of species listed 

118 80 Fed. Reg. at 44565. 

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Insert offset folio 136 here 98945.136

as threatened or endangered." 119 Commenters assert that OSMRE must clarify that only the 

Service may permit (not just quantify) incidental take oflisted species, and therefore 

incidental take authorization may only be obtained through an appropriate Section l 0 or 

Section 7 process. 

• We support the proposal to redesignate existing paragraph 816.97(e), which contains 

miscellaneous provisions relating to protection offish and wildlife in general, as paragraph 

(d), and the proposed change for 816.97(d)(l) to remove the clause allowing the regulatory 

authority "to determine that is unnecessary to ensure that electric power transmission lines 

and other transmission facilities used for, or incidental to, surface mining activities on the 

permit area are designed and constructed to minimize electrocution hazards to raptors." We 

agree that there are no situations in which these precautions are not necessary or appropriate. 

F. Other Aspects of the Proposed Rules that Should be Clarified or 

Strengthened to Protect Wildlife 

While there are several aspects of the proposed rule that we support for the increased protections 

they will provide to wildlife and listed species, other facets of the proposed rule should be 

clarified or strengthened in order for OSMRE to fulfill its statutory mandate to "minimize 

disturbances and adverse impacts on fish, wildlife, and related environmental values," to "protect 

society and the environment from the adverse effects of surface coal mining operations," and to 

"assure that surface coal mining operations are so conducted as to protect the environment." We 

urge OSMRE to consider the following changes to the proposed rule, in order to ensure that coal 

mining is done in an environmentally responsible manner, and to avoid catastrophic harm to the 

environment, and to the many federally-protected species that may be adversely impacted by 

mining operations as well as to wildlife species that are not currently federally protected but may 

eventually warrant ESA listing because of the adverse and cumulative effects of coal mining 

under SMCRA. 

• The proposed rule includes a provision that would increase monitoring requirements in order 

to ensure that water quality is not adversely impacted by mining activities. While we fully 

support increased monitoring requirements, we urge OSMRE to provide for continuous 

monitoring to prevent events that would hann species, including species protected under the 

ESA. Only continuous monitoring would allow for "timely detection of an,r adverse trends 

and allow timely implementation of any necessary corrective measures." 12 Monthly 

monitoring, which has been proposed, will not provide sufficient data in a timely manner to 

accomplish that goal. 

OSMRE provides a perfect example of why this is necessary in the Draft Environmental 

Impact Statement (DElS) for the proposed rule: 

For instance, newly collected monitoring data on selenium may show elevated 

concentrations in water. A clearly defined corrective action threshold may 

119 80 Fed. Reg. at 44,565: proposed 30 C.F.R. § 81G.97(b)(l)(v)(" Nothing in this chapter authorizes the taking of a 

threatened or endangered species in violation of the Endangered Species Act of 1973, 16 U.S. C. 1531 et seq."). 120 80 Fed. Reg. at 44,439. 

37 
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Insert offset folio 137 here 98945.137

facilitate prompt changes in the mining operation to limit selenium contamination. 

This action may help avoid bioaccumulation of selenium in fish and in wildlife 

that consume fish (e.g., raptors). In this way, rule elements that improve water 

quality are also likely to benefit aquatic and riparian fish and wildlife 

communities. 121 

This only works, however, if the elevated concentrations are caught in time. A delay of 

several weeks, which the proposed rule may allow, could result in devastating harm. 

Moreover, this is avoidable harm. The technology exists to allow for continuous water 

quality monitoring, and the expense of these protective measures, while certainly not 

insignificant, is eclipsed by the cost to remedy the harm from a catastrophic event that is left 

undiscovered for several days or more if remediation is even possible. In the case of 

imperiled species especially those of which, such as freshwater mussels, that cannot avoid 

pollution fluctuations continuous monitoring could prevent extirpation of a species. 

Further, according to the DEIS, "as of 1997 up to 75 percent of the mussel species native to 

the Southeast had been ecologically impacted, and a significant concern remained regarding 

the vulnerability of these species due to their limited geographic distribution of many mussel 

species; many are endemic to small areas, and some limited to single watersheds (Neves et 

al., 1997). Therefore, these mussel species are extremely vulnerable to extirpation as a result 

of single catastrophic events." 122 The only way to ensure that an expeditious and efficacious 

response to catastrophic events will occur, thereby potentially protecting species from being 

extirpated, is by requiring continuous monitoring. Given the above, requiring continuous 

monitoring is essential in order to detect and timely address any adverse impacts that may 

cause unpermitted incidental take or even rise to the level of jeopardy. We therefore urge 

OSMRE to require real time, continuous monitoring of water quality at all mines. 

• We are concerned about the proposal to allow the regulatory authority to terminate 

jurisdiction over all portions of a mine site and all aspects of the operation, except treatmentrelated facilities and obligations, once the permittee posts an acceptable financial assurance 

under proposed 30 C.F.R. § 800.18 to guarantee treatment of all long-term discharges. 123 

If jurisdiction over the mine site is terminated, we are concerned that listed species will not 

receive sufficient protections. A situation may arise whereby a new species is listed 

following the termination of jurisdiction, yet activities on the site could still harm that 

species. Or it may turn out that the extent oflong-term hann was not known until later. The 

regulatory authority and mining operator may evade responsibility for incidental take during 

the reclamation or post-reclamation period if jurisdiction is terminated, but this would not be 

consistent with the tenets of the ESA. If the agency retains jurisdiction, requirements under 

the Section I 0 or Section 7 incidental take authorization could alter reclamation activities, or 

any other actions being taken on the site, thereby requiring necessary measures to avoid 

unpermitted incidental take of listed species. We therefore urge OSMRE to prevent potential 

121 DEIS at 4-97. 100 !d. at 3-258. 103 80 Fed. Reg. at 44.466. 

38 
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Insert offset folio 138 here 98945.138

harm to listed species by requiring that the regulatory authority retain jurisdiction until 

reclamation is complete and all long-term discharges have been fully remediated. 

• OSMRE should clarify what is meant by the following statement: "When mining through a 

perennial or an intermittent stream does occur, our revised standards would require that the 

permittee restore both the hydrological form and the ecological function of the minedthrough stream segment."124 Many sh1dies have shown that fully restoring the hydrologic 

form and ecological function of streams that have been impacted by coal mining is not 

possible, as set forth above. 

Even in studies which found that post-mining stream restoration was successful in restoring 

many of the ecological and biological functions of impacted streams, unavoidable water 

quality impacts have been shown to continue to pose a risk of harm to sensitive species. For 

example, O'Leary et al. found that while important hydrologic and biological functions may 

be restored following surface mining, increased sulfate concentration levels may adversely 

impact sensitive species, and if those "species are listed under endangered species legislation 

great care needs to be taken to determine if elevated sulfates can cause declines in such 

species or interfere with recovery efforts." 125 The rule further states that: 

Elevated electrical conductivity in streams can persist for many years after the 

completion of mining and land reclamation. This water quality characteristic can 

prevent or restrict recolonization by the species of fish and insects that inhabited 

the affected stream segment before mining began in the watershed. Studies in 

Appalachia of existing minesites have not found any ecologically significant 

improvement in electrical conductivity with either time or the extent of 

reforestation of the minesite126 

It is therefore not clear how or why OSMRE is willing to rely on stream restoration to protect 

species from harm. 

If OSMRE is to rely on restoration to allow mining activities within streams, it needs to 

provide much more of an explanation as to how the ecological function will be restored, what 

actions must be taken to mitigate the direct impacts to species from mining activities in 

streams, how OSMRE will determine whether the ecological function has in fact been 

restored, and what the ramifications are of a failure to properly and fully restore ecological 

functions in effected streams. 

• The proposed rule would add a new paragraph at 773.15(n), which would require that the 

regulatory authority find that the applicant has demonstrated that the operation has been 

designed to prevent the formation of discharges that would require long-term treatment after 

!d. at 4-1.440. 125 O'Leary. W.G. and Nawrot. J.R., Stream Reconstruction under SMCRA Burning Star #4: A Case Sudy, 

presented at the 2012 National Meeting of the American Society of Mining and ReclmnatiorL Tupelo. MS 

Sustainable Reclamation (Jm1e 8 15, 2012). R.I. Barnhisel (Ed.) Published by ASMR. 3134 Montavesta Rd .. 

Lexingto!L KY 40502, available at http://www.asmr.us/Publications/Conferenceo/o20Proceedings/2012/0406-

0Leary-IL.pdf 

126 80 Fed. Reg. at 44.441 (citations omitted). 

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Insert offset folio 139 here 98945.139

mining has been completed. The regulatory authority also would be required to find that the 

applicant has demonstrated that there is no credible evidence that the design of the operation 

will not work as intended to prevent the formation of discharges of that nature. 

We are concerned that this provision may be misused by regulatory authorities to permit 

mining activities that would in fact result in long-term discharges. More specific information 

should be included to specify what is meant by long-term treatment, how this determination 

would be made, and the ramifications if it turns out that the regulatory authority's finding 

was incorrect and such treatment is required. OSMRE should further clarify what is meant by 

"credible evidence," how that evidence would be provided (i.e. comments provided by 

interested parties/intervenors) and what would be required of the applicant and/or the 

regulatory authority if such evidence were presented. 

• Proposed paragraph 779.20(e) provides that "the regulatory authority !llilY require the 

prevention of adverse impacts to streams and watersheds in the permit and adjacent areas in 

order to protect exceptional environmental values. The proposed rule would require that all 

decisions be based upon scientific principles and analyses." While we support the prevention 

of adverse impacts and that such decisions be based on scientific principles and analysis, we 

urge OSMRE to require that such adverse impacts be prevented, rather than making this 

discretionary. If this language will remain unchanged, OSMRE should provide further 

guidance as to the circumstances under which such prevention would not be required, as this 

seems contrary to the requirements of SMCRA. 127 

• While we support the addition of paragraphs 780.16 (b)(! )(iii)(E) through (G) to better 

implement the environmental protection purposes in paragraphs (a), (d), and (f) of section 

102 of SMCRA, we urge OSMRE to include in (b)(l)(iii) that the applicant must also 

demonstrate that that the proposed use would not cause a change in any parameter (i.e. 

biological conditions) that would adversely impact species listed or proposed for listing 

under the ESA. 

• In the proposed rule, OSMRE invites comment on whether it should adopt a rule that would 

allow the approval of mountaintop removal mining operations that would damage natural 

watercourses within the permit area if the applicant can demonstrate that the damage will be 

fully offset by implementation of the fish and wildlife enhancement measures proposed under 

30 C.F.R § 780.16. 128 This would severely undermine the protective purpose of the rule and 

would be contrary to the SMCRA duty to "minimize disturbances and adverse impacts on 

fish, wildlife, and related environmental values." 129 As discussed herein, relying on offsets to 

protect fish and wildlife is simply untenable, and will allow for the continued wanton 

destruction of our waters and the species that rely on them. It has not been shown that such 

damage could ever be fully offset, and a provision such as this would merely provide an 

excuse for more valley fills that have been shown to be profoundly harmful to the fish and 

30 U.S.C. § l202(d) (requiring OSM to "assure that surface coal mining operations are so conducted as to 

protect the environment"). 128 80 Fed. Reg. at 44,530. 109 30 U.S.C. § 1266(b)(ll). 

40 
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Insert offset folio 140 here 98945.140

wildlife in the vicinity ofMTR sites. We therefore urge OSMRE not to provide for reliance 

on offsets as an excuse for burying headwater streams. 

• Proposed paragraph 816.57(b)(2)(ii)(B) would clarify that a stream flowing through a 

restored stream channel or a stream-channel diversion need not contain precisely the same 

biota or have the same biological condition as the original stream segment did before mining, 

but it must have a biological condition that is adequate to support the uses that existed before 

mining and that would not preclude attainment of the designated uses of the original stream 

segment under section lOI(a) or 303(c) of the CWA before mining. 

We are concerned that this regulation will not protect newly listed threatened or endangered 

species that are not designated or otherwise protected under the CW A in some fashion. We 

therefore urge OSMRE to require that streams be restored to protected designated uses and 

any newly listed or proposed for listing species. 

• We ask that OSMRE include a requirement in the regulations that regulatory authorities 

make permit applications and related materials available on their web sites. This will aid the 

public in reviewing and providing comment upon proposed mining activities. By failing to 

provide the public with essential information e.g., mine applications in a readily available 

manner OSMRE and the regulatory authorities are hampering the public's ability to 

participate in the permit review process and to timely file objections under 30 U.S.C. § 

1263(b ), which is a statutory prerequisite to an administrative appeal of the permit and to 

ultimate judicial review. Therefore, we ask that you include a provision requiring the on-line 

posting of mining applications. 

VI. Comments Regarding OSMRE's Section 7 Consnltations 

A, Comments on the Need for and Scope of Section 7 Consultations on the 

Stream Protection Rules 

We appreciate OSMRE initiating Section 7 consultations on the stream protection regulations. 

The following are key issues to address prior to or during these consultations: 

First, we ask that consultations on the stream protection rule address the numerous instances in 

which applicants can obtain variances, forego compliance with enhancement measures, and 

otherwise not meet SMCRA' s environmental protection goals, including minimizing "adverse 

impacts of the operation on fish, wildlife, and related environmental values .... " 130 This is 

especially relevant where SMCRA-permitted surface coal mines may result in the incidental take 

of!isted species and/or adverse impacts to designated critical habitats. Although we support 

those proposed regulatory provisions that afford the Services the opportunity to comment upon 

species enhancement plans and to make recommendations for stream butTers and other protection 

and enhancement measures insofar as non-ESA-listed species or species proposed to be listed 

under the ESA are concerned, the SMCRA regulations cannot shield regulatory authorities from 

their statutory obligations to comply with ESA Section 9' s prohibitions on unpennitted 

incidental take (and Section 7's obligation to ensure against jeopardy where OSMRE itself is the 

130 30 U.S.C. §§ l202(d), l265(b)(24) and l266(b)(ll). 

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Insert offset folio 141 here 98945.141

regulatory authority) for listed species. Where a proposed mining permit may result in incidental 

take of listed species, it is appropriate that the Services ensure that sutftcient stream buffers and 

other measures to avoid, minimize, and mitigate the impacts of incidental take are required 

through the Section 10 incidental take permitting process (or the Section 7 consultation process 

where OSMRE is the regulatory authority). Therefore, as argued above, OSMRE should revise 

its regulations to provide that regulatory authorities must require mining permit applicants to 

demonstrate that they have obtained appropriate incidental take coverage for any listed species, 

and consultation with the Services should proceed based on this revision to the regulations. 

Second, while we appreciate OSMRE including a provision recognizing that only the USFWS 

(and presumably NMFS) can issue incidental take statements under the ESA, we note that there 

is no mechanism proposed under the current regulatory changes to ensure that OSMRE, state 

regulatory authorities and/or permittees are obtaining incidental take coverage either under ESA 

Section I 0 or Section 7, and therefore "take" oflisted species from coal mining activities is not 

being adequately quantified or tracked. Without this information, USFWS cannot develop an 

adequate baseline for making jeopardy or no jeopardy calls. Currently, the regulations provide 

for USFWS providing comments upon, and recommendations for, measures to include in 

enhancement plans; 131 however, as discussed above, OSMRE must amend its regulations to 

clarify that the PEP process must be a supplement to and not a substitute for an independent ESA 

Section 7 or 10 incidental take authorization process. OSMRE's consultation with the Services 

must proceed on the basis of this revision. 

Third, we ask that during consultations OSMRE and the Services address the proper scope and 

definition of"Adjacent Area" in proposed 30 CF.R § 701.5 and "cumulative impact area" in§§ 

780.21, 784.21, to ensure these definitions are sufficiently protective ofESA listed and proposed 

species. 132 The impacts from coal mining pollution often reach far beyond the boundaries of the 

mine site- especially in the aquatic environment. For instance, cumulative water quality 

degradation, through sedimentation in particular, is jeopardizing numerous species of federally 

protected freshwater mussels. As a result, it is imperative that these definitions take into account 

species downstream, 133 in the zone of influence of air pollution, 134 and that are impacted by the 

131 Proposed 30 C.F.R. §§ 780.16. 130 We suggest that these tenus should be consistent with "action area" as defined by 50 C.F.R. § 402.02, wherein 

the "action area'' encompasses all areas that would be "affected directly or indirectly by the Federal action and not 

merely the immediate area involved in the action." 133 Price, J. E .. Zipper, C. E., Jones, J. W., & Franck, C. T. (2014). Water and sediment quality in the Clinch River, 

Virginia and Tennessee, USA. over nearly five decades. JA WRA Journal of the American Water Resources 

Association, 50(4), 837-858; Zipper, C. E., et al. (2014). Freshwater mussel population status and habitat quality in 

the Clinch River, Virb>inia and Tennessee, USA: A featured collection. JA WRA Journal oft he American Water 

Resources Association, 50(4). 807-819: Ahlstedt, S. A .. Fagg. M. T .. Butler, R. S., & ConnelL J. F. (2005). Longterm trend information for freshwater mussel populations at twe!Ye fixed-station monitoring sites in the Clinch and 

Powell riYcrs of Eastern Tcm1essee and Southwestern Virginia 1979-2004. Final Report. US Fish and Wildlife 

Service, Cookeville. TN, 38501; Ahlstedt, S. A.. & Tuberville. J. D. (1997). Quantitative reassessment of the 

freshwater mussel fauna in tl1c Clinch and Powell Rivers, Tennessee and Virginia. Conservation and management of 

freshwater mussels II. Upper Mississippi River Conservation Committee. Rock Island, Illinois, 72-97; 

n' Kurth. L M., McCawley. M.. Hendryx. M .. & Lusk. S. (2014). Atmospheric particulate matter size distribution 

and concentration in West Virginia coal mining and non-mining areas. Journal of Exposure Science and 

Em·iromncntal Epidemiology. 24(4), cl05-41 l. 

42 
186 


Insert offset folio 142 here 98945.142

edge effects and watershed-level cumulative degradation created by the mines. 135 

Fourth, while we appreciate OSMRE's move toward requiring compliance with water quality 

standards through numeric criteria imposed as part of the effort to avoid material damage to the 

hydrologic balance and in assessing the cumulative hydrologic impact of the mine, we have 

concerns that many existing water quality standards are not sufficiently protective of ESA-listed 

and proposed species and their habitats and that additional measures will be necessary to ensure 

compliance with the ESA. Indeed, EPA has neither routinely consulted upon its national criteria, 

nor upon its approval of state water quality standards. As a result, OSMRE cannot assume that 

compliance with CW A standards will protect ESA-listed and proposed species. Likewise, 

preventing "material damage to hydrological balance outside the permit area" is not the standard 

for determining ESA compliance. We appreciate OSMRE thus far acknowledging this reality but 

we are concerned about OSMRE leaving it up to the regulatory authorities to develop numeric 

criteria to protect ESA species. We encourage OSMRE and the Services to consult on this issue 

and to consider requiring at least 1 00-foot buffers at mine sites where mine pollution may reach 

ESA-Iisted and proposed species and their critical habitat, as discussed above, as well as to 

ensure that the final regulations clearly require the imposition by the regulatory authority of 

numeric criteria that ensure protection for listed species and their habitats that may be affected 

by mining activities both onsite and offsite. 

Finally, while formal programmatic consultation is required on OSMRE's revised stream 

protection regulations, it would be improper and unlawful for any incidental take statement to be 

issued as part of the biological opinion. 136 Numerous different ESA-protected species and their 

designated critical habitats are likely to be adversely affected. It remains unclear whether 

sufficient protections will be implemented under the rule to ensure that listed species are not 

jeopardized by cumulative impacts. The proposed rule depends on site-specific determinations 

for mitigation of harm, such as whether avoidance of direct stream damage is a "reasonable 

alternative," and only limits harm from activities such as valley fills the extent to they can be 

"minimized." Similarly, maintenance of a 1 00-foot forested buffer is only required "to the extent 

possible." Requiring individual mining operations to minimize harm to the extent possible does 

not ensure that listed species will not be jeopardized by the cumulative impacts of mining 

activities. Further, the biological opinion cannot possibly analyze or quantify incidental take for 

future-listed species that will be adversely affected by coal mining. 

Petty. J. T.. Fulton. J. B., Stmger. M.P .. MerovichJr. G. T .. Stiles, J. M.. & Ziemkicwicz, P. F. (2010). 

Landscape indicators and thresholds of stream ecological impainnent in an intensively mined Appalachian 

watershed. Journal of the Nortl1 American Benthological Society, 29(4), 1292-1309: Lindberg. T. T.. Bemhardt, E. 

S .. Bier, R., Helton, AM .. Merola. R. B .. Vengoslt A, & DiGiulio. R. T. (2011). Cumulative impacts of 

mountaintop mining on an Appalachian watershed. Proceedings of the National Academy of Sciences. 108(52). 

20929-20934. 

136 It is well-settled that progmmmatic biological opinions do not reqnire an incidental take statement where fhose 

opinions explicitly mandate future site-specific consultations for take authorizations. See Gifford Pinchot Task 

Force v. USFWS, 378 F.3d 1059, 1067-68 (9th Cir.) am. by 387 F.3d 968 (9th Cir. 2004); Forest SerF. Employees 

.fiJr Envtl. Ethics, 726 F. Supp. 2d at 1224-1225: W Watersheds Project v. BUvf. 552 F. Supp. 2d 1113. 1139 (D. 

Nev. 2008); Swan View Coal., Inc. v. Turner, 824 F. Supp. 923, 934-35 (D. Mont. 1992). Here, should the Services 

issue a no-jeopardy opinion on OSMRE's regulations. it should not be accompanied by an incidental take statement 

because all incidental take (including any resulting from OSMRE-issned SMCRA permits) should only be 

authorized, if at alL via a Section Ill pcnnit or Section 7 consultation. 

43 
187 


Insert offset folio 143 here 98945.143

There is no feasible way that the Services can predict, let alone quantify, the amount of 

incidental take of currently-listed species that will result from coal mining throughout the 

country under these regulations in the years to come. Further, the biological opinion cannot 

possibly analyze or quantify incidental take for future-listed species that will be adversely 

affected by coal mining. Rather, incidental take can only occur, and can only be analyzed an 

appropriately permitted, at the site-specific and species-specific level. Therefore, consistent with 

the Services' revised regulations defining "framework programmatic action," the programmatic 

consultation on OSMRE's revised SMCRA program should acknowledge that it is a framework 

programmatic consultation under which any incidental take will be subsequently authorized 

under a permit-specific Section 7 or Section l 0 process. 137 

As advocated throughout these comments, OSMRE must revise and clarify the current and 

proposed regulations to make it clear that the regulatory authority (or mining company) is 

responsible for seeking appropriate ESA permits. OSMRE cannot pass through incidental take 

coverage for individual SMCRA permits via its formal consultation with the Services on its 

revised SMCRA regulatory program. Commenters assert that permit applicants must obtain, and 

regulatory authorities must ensure that permit applicants and permittees have obtained, 

appropriate incidental take authorizations via Section 10 or Section 7 of the ESA for each coal 

mining operation permitted under SMCRA to avoid ESA Section 9liability. Consideration of the 

site-specific, species-specific impacts of each proposed permit and the avoidance, minimization, 

and mitigation measures necessary for each operation is the only appropriate mechanism for 

permitting incidental take under the ESA. Without substantial revisions to the proposed 

regulations as drafted to implement this requirement, the Services cannot issue a no-jeopardy 

opinion on the stream protection regulations. 

B. OSMRE Must Consult with NMFS on the Stream Protection Rule 

OSMRE notes that if species under NMFS jurisdiction are likely to be impacted by surface coal 

mining, then OSMRE must consult on these ret,>ulations with NMFS. 138 Due to the potential 

impacts to species underNMFS' jurisdiction, we ask that OSMRE include NMFS in its Section 7 

consultations. For example, Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) in the New 

York Bight Distinct Population Segment and shortnose sturgeon (Acipenser hrevirostrum) are 

potentially impacted from coal mining pollution generated in the anthracite coal mining region of 

Pennsylvania, which flows into the Delaware River. 139 Potential reinitiation of surface coal 

mining in North Carolina could lead to impacts to the Carolina Distinct Population Segment of 

Atlantic sturgeon. Likewise, pollution from surface coal mining in Texas may affect the lower 

Jr See 80 Fed. Reg. 26.832 (May II, 2015) (adding definition of "framework programmatic action'' to 50 C.F.R. § 

402.02 and adding 50 C.F.R. § 402. l4(i)(l)(6) on incidental take statements not being required at the programmatic 

level where subsequent actions resulting in incidental take will be separately consulted on). 

~'8 80 Fed. Reg. at 44,484. 139 2014 ANTHRACITE SURF ACE MINES - SUMMARY PRODUCTION INFORMA TlON BY COUNTY 

(Available at: 

http :1/files.dep.state. pa. us/Mining/BureauOfMiningPrograms/BMPPortalFiles/ Annual_ Reports/ AnthraciteAnnualRe 

ports/20 14/20 14 AuthraciteSurfaceMines _ProductionSummarybyCounty. pdf) 

44 
188 


Insert offset folio 144 here 98945.144

Rio Grande River and the Gulf ofMexico. 140 Therefore, this rulemaking "may affect" species 

under NMFS' jurisdiction, and consultation with NMFS is required. 141 

Moreover, NMFS has previously been involved in consulting on other federal agencies' actions 

pertaining to surface coal mining. For example, in adopting Nation Wide Permit 21 for surface 

coal mining, the Corps consulted with NMFS on the permit and several others authorizing 

dredge and fill of waterways throughout the U.S. 142 Thus, for all these reasons, we ask that you 

consult with NMFS. 

C. The 1996 BiOp is Not Lawful and Has Contributed to the Need to Protect 

Numerous Species under the ESA, Therefore a New System for ESA 

Compliance is Necessary for the SMCRA Program 

We note that OSM has indicated in the draft EIS that it has decided to initiate formal 

consultation on the current program. 143 OSMRE must reinitiate Section 7 consultations on the 

SMCRA program as a whole for several reasons. The 1996 BiOp, upon which OSMRE 

attempted to rely for its last batch of SMCRA regulatory changes, is unlawful and a new formal 

consultation is necessary to meet OSMRE's ESA Section 7 obligations. 144 The SMCRA 

program as a whole has long operated well beyond the requirements of the ESA. In a federal 

district court opinion on OSMRE's previous version of the stream buffer zone rule, Judge 

Rothstein pointed out that the agency's failure to consult on the new rule, in reliance on the 1996 

BiOp, was arbitrary and unlawful because the 1996 BiOp could not have considered new 

information on the impacts of coal mining on streams and aquatic life that post-1996 studies 

revealed, nor could it have considered the cumulative impacts of coal mining post-1996, 

therefore OSMRE's reliance on the 1996 BiOp could not provide a rational basis for avoiding 

consultation on the rule. 145 The net result of surface coal mining authorized under the re&>ulations 

14'

1 Current Map of Mine Sites (available at: http://www.rrc.state.tx.us/media/2473/coal-mine-map-I0-13.pdl). 141 Under the ESA. the term "may affect" is broadly constmed to include ·'[a]ny possible effect, whether beneficiaL 

benign. adverse. or of an n.ndctennincd character," and thus the consultation requirement is easily triggered. 

Jnteragencv Cooperation Ei1dangered Species .1 ct olf9 7 3, as :!mended, 51 Fed. Reg. 19,926 (Jn.ne 3. 1986). 142 NMFS, Anny Corps Authorizations of Dredged and Fill Material or other Stmctnres or Work into Waters of the 

U.S. (Nov. 24. 2014) (available at: http://www.mnfs.noaa.gov/pr/consultation/opinions/usace-nwp404-

reinitiatedll2420 14.pdl) 143 DEIS at 4-88 (indicating that OSMRE is considering reinitiation of consultations on the program as a whole). 144 The 1996 Biological Opinion fails to include any assessment, let alone a thorough assessment based on the best 

available scientific informatioll of affected species and habitats or the cumulative impacts of the activities it 

authorizes. Because the Service failed to fulfill any of the applicable requirements of the Section 7 consultation 

regulations. 50 C.F.R. Part 402, its entire no-jeopardy conclusion was arbitrary and unlawful. Further. the 

accompanying incidental take statement. which pennitted unlimited incidental take of all then-listed and all futurelisted species, fails to quanti(v permitted incidental take or provide a reasonable prox·y for such quantification and 

thus fails to provide sufficient triggers for reinitiation of consultations. rendering the opinion arbitrm:y and unlawful 

See Forest Service Employees for Em,iromnental F:thics v. U.S. Forest Service, 726 F. Supp.2d 1195 (0. Mont. 

2010). 

115 Nat'/ Parks Conservation Ass'n v. Jewell, 62 F. Supp. 3d 7. 16 (D.D.C. 2014) ("For example, 'several studies 

have found a relationship between coal-related contaminants and toxicity to mussels.' Another threat to mussels 

from coal mining is blackwater releases from coal processing plants. In addition, as quoted above. OSM specifically 

noted that if a species 'lacks individual mobility'-a phrase that aptly describes mussels-'land clearing and 

excavation activities may result in a direct take. • Moreover, it was clear to OSM that 'riparian buffer zones are 

import aut terrestrial habitats. • With respect to valley fills. OSM recognized that 'fw ]hen streams are filled or mined 

45 
189 


Insert offset folio 145 here 98945.145

addressed in the 1996 BiOp has been a great loss of biological diversity, particularly in 

Appalachia, but in other regions of the country as well as detailed above. For the following 

reasons, OSMRE can no longer rely on the 1996 BiOp, and must reinitiate Section 7 consultation 

on the SMCRA program. 

1. Non-compliance with the 1996 BiOp creates the need for new 

consultations 

OSMRE, State regulatory authorities, and USFWS have failed to create "species-specific 

measures" to protect threatened and endangered species from the impacts of coal mining as 

required by the 1996 Bi0p. 146 Not only is the reliance on PEPs to establish compliance with the 

ESA misplaced, as discussed herein, but to date guidance for preparing the requisite PEPs for 

threatened and endangered species have only been developed for two species-Indiana bat and 

blackside dace. We are unaware of the USFWS signing off on any other species-specific 

measures. However, we do note that at times certain regulatory authorities have attempted to 

create their own guidance and/or species specific measures, thereby doing an end run around 

USFWS147 In other words, the system constructed in the 1996 BiOp to prevent jeopardy to listed 

species not only is insufficient, it has not even been followed. As a result, there is a clear need 

for reinitiation of consultations. 148 

2. Changes to the regulations relied upon in the 1996 BiOp create the 

need for new consultations 

OSMRE is now proposing to alter several of the SMCRA regulatory provisions that were relied 

upon in the 1996 BiOp to reach the conclusions therein. This was precisely one of the bases for 

Judge Rothstein's decision, referred to above, finding that OSMRE's reliance on the 1996 BiOp 

to avoid consultation on the change to the stream buffer zone rule was arbitrary and 

capricious. 149 These proposed changes, whether beneficial, detrimental or both, trigger 

reinitiation of Section 7 consultations because the agency action at issue has changed, and the 

basis for USFWS' previous no jeopardy determination is no longer valid. We support OSMRE 

revising these regulations but note that their revision triggers the need for new consultations on 

the SMCRA program as a whole. 

through[.] all biota living in the footprint of the fill or in the mined area are lost.'") (internal citations to the record 

omitted). 

" 6 1996 BiOp at 13. 

"" Letter from Marvin E. Moriarty, NE Regional Director, U.S. FWS to Tom Shope, Regional Director 

Appalachian Regional Office OSMRE (April!, 2009) (expressing concern over Virginia Department of Mines. 

Minerals. and Energy's recent publication of' its own aquatic species-specific guidance). 1

'" Courts have found that a violation oftl1e terms of an ITS obligates the action agency to reinitiate consultation, 

and "lwfhen an agency violates the terms of an ITS. a private party may bring a citizen suit alleging tlml by virtue of 

tllis dolatioJL the agency's failure to reinitiate consultation yiolates the agency's statutory duty under ESA section 

7(a)(2)." South rub a River Citizens League v . .Vat 'I Marine 1'/sheries Serv .• 629 F. Snpp. 2d 1123. 1133 (E.D. CaL 

2009). 

149 Nat'/ Parks Conservazion Ass'n v. Jewell, 62 F. Supp. 3d 7, 19 (D.D.C. 2014) CITJhe [new] Rule changes [the 

prior] Rule. and therefore. changes one of tl1e grounds on which the 1996 Biological Opinion's "no jeopardy" 

conclusion is based. It follows tlmtthe 1996 Biological Opinion cmmot provide a rational basis for avoiding 

consultation on the [new] Rule.") (emplmsis in original). 

46 
190 


Insert offset folio 146 here 98945.146

3. The 1996 BiOp is unlawful and OSMRE and the Services Cannot 

Follow this Flawed Model 

Even if the measures of the 1996 BiOp were being followed, the opinion is insufficient at 

ensuring compliance with the ESA. The 1996 BiOp does not require reinitiation of consultations 

when new species are listed or critical habitat is designated. 150 This is directly contrary to the 

Section 7 regulations. 151 Likewise, the 1996 BiOp does not require that take of threatened and 

endangered species is quantified or tracked in any way. This is also directly contrary to the 

Section 7 regulations and means that the baseline for makingjeof,~rdy or no jeopardy calls is 

lacking, espec1ally for spec1es that occur pnmanly m coal fields. · Add1twnally, there 1s no 

mechanism for addressing cumulative impacts to species or ensuring that activities on state or 

private lands within the same areas as coal mines are not cumulatively impacting ESA-listed 

species, again as required by the Section 7 regulations. Given the utter failure of the 1996 BiOp 

to comport with legal requirements and protect threatened and endangered species, it is time for 

new consultations that do not suffer from the same legal flaws as the 1996 BiOp. 

CONCLUSION 

We appreciate the opportunity to submit comments on the proposed stream protection rule and 

on OSMRE' s need to comply with the ESA for this rule and in otherwise administering the 

SMCRA program and overseeing and permitting coal mining. Please contact us if you have any 

questions regarding these comments. 

Sincerely, 

f\~Q_ ('(\~ \<') 

Jateh M. Margolis sbJt Attorney I (802) 310-4054 

Tanya M. Sanerib 

Senior Attorney I (971) 717-6407 

Tierra Curry 

Senior Scientist I (971) 717-6402 

Center for Biological Diversity 

p 0. 11374 

Portland, OR 97211 

150 The 1996 BiOp provides two pathways to reinitiation of Section 7 consnltalions. It states that reinitiation is 

necessary where: '"(I) new infonnation reveals that the agency action may affect listed species or critical habitats in 

a manner or to an extent not considered in tllis opinion, or (2) the agency action is modified in a manner that causes 

an adverse effect to listed species or critical habitat that was not considered in this opinion." 1996 BiOp at 14. 151 50 C.F.R. § 402.02. 152 16 U.S.C. § !536(b)(4)(C)(i): 50 C.F.R. §§ 402.14(i)(1)(i), 402.14(i)(3) and402.14(i)(4) (requiring that 

incidental take statements specifY the impact. i.e .. the amount or extent, of incidental take allowed and requiring 

FWS to monitor the impacts and reinitiatc consultation if the amount or e"1ent of take exceeds the allowed take). 

47 
191 


Insert offset folio 147 here 98945.147

2301 COLONIAL DRIVE • HELENA, MONTANA 59601 

(406) 442-6223 • FAX: (406) 449-6623 • EMAIL: MTCOAL@AOLCOM 

October 19, 2015 

Office of Surface Mining Reclamation and Enforcement 

Administrative Record 

Room 252 SIB 

1951 Constitution Ave, NW 

Washington, DC 20240 

RE: Docket ID OSM 2010-0018 

Dear Director Pizarchilc 

The Montana Coal Council (MCC) writes to urge the Department of !he Interior's (DOl) Office of 

Surface Mining Reclamation and Enforcement (OSMRE) to abandon its efforts to develop new 

rules related to stream protection. MCC is a statewide trade organization that represents and 

advocates for 6 Montana coal companies. Montana coal mines produce 42 million tons of coal 

annually, and we are extremely concerned about OSMRE's efforts to bring sweeping changes to 

a program that has worked well to protect the environment for over 30 years. 

We are particularly concerned about how these rules may be applied in the western United Slates 

where successful stream reclamation has been practiced for decades and there have been no 

problems identified with the current process or the quality of reclamation. 

all approach is ill advised because of the significant differences in rainfall, 

conditions as wen as different mining methods for the different mining regions of the 

OSMRE has not demonstrated a need for this rule 

Throughout the proposed rule OSMRE has made reference to various issues !hallhe proposed 

rules are mean! to address. Except for vague references to droughts in the western U.S., all of 

these many references are to Appalachian issues and are applicable specifically to mining in that 

region. This raises several concerns about the need for nationwide standards. 

The application of nationwide requirements to address what appear to be concerns within one 

region suggests that the rule has been developed by people with no expertise outside of the 

Appalachian region. This is supported by !he fact !hat OSMRE did not tap stale regulatory agency 

resources and the incredible expertise that has been developed in each state to appropriately 

address environmental concerns. 

The OSMRE has a number of rules which apply 

Alluvial Vailey Floors and a!l<aline discharges, 

Appalachia concerning stream protection. 

in the western-U.S., including regulation of 

could jus! as wall write focused rules !or 
192 


Insert offset folio 148 here 98945.148

There are also existing rules concerning removal mining, steep slope mining, and 

underground mining !hat could have been simply to address deficiencies. OSMRE 

to be restricting surface mining in response to issues in the above listed mining types 

was not intended by Congress. 

through streams followed by stream reconstruction and reclamation has occurred 

the west and the mid~west. These efforts have been reported to state and federal 

for decades. Numerous awards have been given by OSMRE and 

awards "excellence in surface mining", for these accomplishments and 

efforts. Despite of this history and demonstration of success in minimizing impacts and 

successfully reclaiming streams, !he OSMRE proposes this rule-making. 

Furthermore, in current SMCRA rules, the term restoration is limited to definite measurable Items 

such as salvage of a!! topsoil. Under the proposed rules, restoration is often used for terms which 

are often hard to measure. Restore means to return to the original state. Reclamation is a 

preferred term as in the current SMCRA rules. This is also apparent in the title for the Office of 

Surface Mining Reclamation and Enforcement 

Ephemeral Streams 

We note that OSMRE is if the new rules should also be applied to ephemeral 

channels, The answer to is an -no. Montana mines ate located in a semiarid 

region dominated ephemeral streams. Many streams in the western U$: are 

technically swales no defined high water mark. here are different to other 

areas !hat experience Ephemeral channels in west simply do 

not exhibit the aquatic of and perennial streams. Those 

charac!Eristics are not environment and it is not feasible to try to reclaim 

those characteristics were no! present pre-mining. Developing bioloaica! 

criteria is unnecessary for ephemeral that permanent biota. In to 

streams, many of the reservoirs frequently dry up summer and, therefore, do not 

permanent biota. Current are place to monitor that the reclaimed 

<>nl><>no"'r"' streams will support the land use. f>,dditional biological 

parameters are unwarranted in light existing water quality and quantity requirements, 

techniques in the Powder River Basin uti!lze truck shovels. Efficient 

nn,,r,.tlm'"' require that the pits be liner ephemeral streams become 

'""""'''"~h~o these types of operations will no economic or efficient because of the 

number of eohemera! channels that intersect bisect these This will make these 

operations uneconomical due to economies of scale and of capital investments 

of equipment and facilities in failed mine economics. 

Coal in the west is leased from the federal government and the right to mine !his coal 

must be obtained through BLM's process requires !hat a bonus bid be paid of coal 

leased at the time the lease is awarded. In the case of an active coal mine, the under these 

channels was considered recoverable the BLM evaluation and the bonus bid has been 

paid for this coaL Bonus bids in the last years have ranged from $0.85 to $1.35 per ton. 
193 


Insert offset folio 149 here 98945.149

Assuming an price of $1.00 per ton would mean !hat the 

paid $1.5 billion for the right to mine the coal under these channels prior 

obtaining the OSMRE federal mine permit. This will litigation to recover bonus bids paid 

for coal that may no be mined under the This will also result in a loss o! 

revenue to BLM and and state governments due to the laking of coal reserves. This rule 

also has the significantly impact the State and local tax revenues as coal under these 

channels the 

Section VII. "Protective measures for ephemeral streams" 

The cited EPA Connectivity Report provides poor guidance for large stream m~;naomne1rot 

reclamation in most of the United States since the report is written from a PrE!-d;ev~~lo!oment 

perspective and appears to consider that anthropogenic alteration of the hv•1rn;lnr•v 

impairment The current hydrosphere is a mix of native lands and lands nelrm,~mmtllv 

by anthropogenic activities over many hundreds of and it is this we now 

inhabit and operate in. Many of the wetlands and are now protected in the country are 

of activities combined with the natural environment Furthermore, the 

Connectivity appears to have been written alongside the proposed rule and did no! 

precede it. How can proposed rule be crafted based on the findings of this report if this is the 

case? 

Unlike the headwater ephemeral streams in Appalachia with limited pre-mining impacts 

addressed in the section, many western U.S. mines operate in large ephemeral drainages with 

significant anthropogenic impacts upstream and downstream of the mines, The mines must 

reclaim these drainages to address the pre-mining situation, not an idealized pre-anthropogenic 

situation. 

The proposed rule states, "We also are considering 

equaf protection to sfre8ms". This is in direct conflict 

Justice Alito 

permanent, 

are described 

Section IX. Conflict with existing regulations 

The definition changes are focused on Appalachia, have little relevance to mines outside of 

Appalachia, and may be confusing to employ outside that region. 

.. The approximate original contour definition change is focused mainly on mountaintop 

removal and it has no relevance to mining in most of !he U.S. 
194 


Insert offset folio 150 here 98945.150

The Cumulative Impact Area definition changes are focused on small eastern mines 

operating in headwater drainages and it has little relevance to mines operating in most of 

the U.S. 

• Under the section titled Ecological Function, the Permittee would be required to restore 

ecological function of perennial and intermittent streams including physical and biological 

functions. This is based upon a functional assessment guidebook that the USAGE 

developed for ephemeral and intermittent streams in Central Appalachia. 

• Corps of Engineers definition. The notice says the USAGE has ultimate authority to 

determine at which point an ephemeral stream becomes an intermittent or perennial 

stream, however, this is not true of each state where the USAGE rarely gets involved in 

such decisions and it appears to be a holdover from the central Appalachian MOU. The 

USAGE cannot make a call on stream classification for a non-jurisdictional stream. On 

the question on whether any determination USAGE makes will be controlling for 

purposes of SMCRA, we strongly disagree since they do not have all of knowledge 

required in many circumstances and do not have authority in non-jurisdictional areas. 

However, we agree that snowmelt flowing on a hillside is not an ephemeral stream since 

the location of the channel in snowmelt events is a highly seasonally dependent variable. 

• Excess spoil changes are primarily focused on mountaintop removal and thick 

overburden mines and have little relevance outside of Appalachia. 

• We agree with the intermittent stream definition change since for mines operating in very 

large ephemeral drainages as are common in the western-U.S., the intermittent 

classification previously employed arbitrarily without respect to groundwater levels 

brought expectations that were impossible to meet in reclamation. We feel that the 

definition needs to be clear that groundwater source is from an aquifer and not man 

made anomalies such as upstream reservoirs, groundwater pumped to the surface, or 

irrigation return flow. 

Material damage outside of the permit area. This change assumes a greater knowledge 

of biological activities than is generally available in most of the United States and 

appears focused on a number of impacted streams in West Virginia and other sections 

of Appalachia where large studies have been underway for years. In many intermittent 

and perennial streams in the western U.S., bio-assessments would be very expensive 

and highly seasonally dependent with many studies required during a year to get an 

accurate picture of the biological activity on the stream. The studies would have very 

little value since the stream function, use, and quality are being reclaimed under 

SMCRA, CWA, and state regulation and there are no baseline studies to use as 

reference and stream conditions are highly variable in arid and semi-arid areas from 

aerially and from stream to stream. Many states have established studies only on major 

rivers of focus important to human health and/or fish and wildlife. Index scores would be 

available for only some of those streams and those scores would have little relevance to 

the relatively minor streams where coal mining is conducted. We also believe that 

temporary impacts should be excluded from such impact studies if no long-term impacts 

will occur. 

• Perennial stream: As with ephemeral and intermittent streams, the USAGE rarely gets 

involved in such decisions in many states nor would they have the expertise to make 
195 


Insert offset folio 151 here 98945.151

such a determination.*As OMSRE points out in the new !he adjacent HUC-12 

watershed is MUCH larger than the area necessary or appropriate to establish baseline 

conditions for most coal mines and therefore should abandon such language . 

., OSMRE states that a "2002 OSMRE reference document on baseline data recommends 

that the adjacent area for surface water include both the surface-water runoff drainage 

area for the proposed operation and at least the next higher-order drainage area. 

OSMRE only generally references the 2002 OSMRE document, no Iitie is given and 

therefore no ability to find and to read in contex1 its recommendations; therefore they 

should not be used. 

® Bifurcation ratios range from 2 to 4, assuming a value of 2.6 applies to the West, Using 

Horton's law of stream numbers, a mine located a 3'd order drainage would have 3 

contributing 2r<l order streams and 7 1st order streams. To study in context the baseline 

of the next highest order stream (4Y' order) would mean the inclusion of 4 additional 2"" 

order streams and 10 additional 1'' order streams. By applying Horton's law of stream 

areas, a mine occupying a 3'd order stream area of 9 square miles would require the 

study of 18 square miles of drainage for the next higher order stream. This is in essence 

the same as applying the HUC-12 study which OSMRE already agree.s is much larger 

than is necessary or appmpriate. Therefore the use of !his metric should be abandoned. 

" The definition of "Adjacent Area" is proposed to be broadened .nc!ude AlL areas 

outside the proposed or actual permit area within which there is a reasonable possibility 

of adverse impacts from surface coal mining. This broad definition is even more 

encompassing than requiring at a minimum the adjacent HUC-·12 watershed, which 

again OSMRE states is much larger than is necessary or appropriate. Therefore the 

existing definition should be maintained. Western states have successfully studied, 

mined and reclaimed under the existing definition as supported by OSMRE awards and 

recognition for successful reclamation for western coal mines. 

We note that in the preamble to the rule, OSMRE intent is to define "the point at which adverse 

impacts from mining cause material damage to the hydrologic balance outside of the permit 

boundary," OSMRE follows With a reference to the need to establish selenium and conductivity 

standards. This propose! is an example of the inappropriateness of attempting to apply specific 

standards across the nation and without the recognition of regional differences. Many unaffected 

streams ln the west have conductivities and selenium concentrations above OSMRE's proposed 

levels. This is due to the seml~arid climate and natural occurrence of dissolved anions and 

cations. Similarly, selenium occurs naturally and may exist In higher concentrations in some 

areas. Given these circumstances, it will be impossible to mee! such a specific standard many 

cases. OSMRE must ensure that any assessment of material damage considers the natural premining conditions. Where a water quality standard is already exceeded as a result of natural 

conditions {as opposed to impacts from the proposed mining activities), a new mining activity that 

does not lower the quality of the receiving water below its natural state does not constitute a 
196 


Insert offset folio 152 here 98945.152

violation of a water quality standard and therefore, does not result in "material damage." We 

suggest that OSMRE specifically clarify that mining operations are not obligated to improve 

hydrologic conditions to a condition better than what existed before mining. 

OSMRE's ~roposal to expand the scope of "material damage" is unwarranted 

The proposed rule attempts to the definition of "material damage to the hydrologic 

balance outside the permit area" definition shDuld remain consistent with the purpose of 

reclamation. The entire basis of reclamation under SMCRA is to restore the mined land to an 

equal or better land use. SMCRA does not presume that the land be identical physically to 

the land before it was mined. SMCRA intended for 11umans to CDntinue to be able to use 

the land in the same manner it was used mining, unless an alternate (higher or better) 

land use is proposed. For example, if the land outside the area supported a rancher prior 

to then the material criteria should be based on whether any changes to 

the balance would not ranching to continue on lands outside the permit 

Any other definition of material damage is inconsistent with the purpose of SMCRA. 

OSMRE's new definition is too as what is reasonably foreseeable is a su<Jl"'''""'"' 

determination. It is unreasonable apply a standard at the present time to some future 

use that may or not occur. At most the definition should be modified to protect any future 

uses that are "r"'""'''"'~<'" 

Another issue that OSMRE should address related to the corrective action thresholds is that there 

may be other activities besides coal that occurs on and near !he mine permit area that can 

impact the balance outside permit area. The alternatives must take this into 

consideration, mines should not be held to a material damage or corrective action standard 

that cannot separate aut non-coal mining impacts. 

Part 179: Surface Mining Permit Applications-Minimum requirements for information on 

environmental resources and conditions, 

Section 779.24: The new rule would require the applicant identify all directional and horizontal 

oil and gas drllllng to determine hydrologic consequences. This new rule would be very difficult 

to comply with since the oil and gas drilling information is often confidential and of questionable 

detail since oil and gas operators try to limit release of information due to the competitive nature 

of the business. Unlike Appalachia and the eastern U.S., horizontal oil and gas drilling in the 

western-U.S. is almost always practiced in deep zones well below coal mines and potable 

water aquifers and the information about horizontal drilling would have little meaning for the 

mines other than the vertical well portion being an obstacle for surface operations and the mine. 
197 


Insert offset folio 153 here 98945.153

Part 780, Surface Mining Permit Applications 

Revegetation Plan. Proposed m"""nrar;h 

or develop and certify all revegE>tat·ion 

trees and shrubs .. This is an unnecessary requirement 

requiremerlt is needed. 

Section 780.19: Baseline hydrology, geology, and aquatic biology information 

Paragraph (E) Biological condition information for streams: This change assumes a greater 

knowledge of biological activities U1an is generally available in most of the United Stales and 

appears focused on a number of impacted streams in West Virginia and other sections of 

Appalachia where large studies have been underway for years. In many intermittent and 

perennial streams in the western U.S., bio-assessments would be very expensive and highly 

seasonally dependent with many studies required during a year to get an accurate picture of the 

biological activity on the stream. The studies would have very little value since the stream 

function, use, and quality are being reclaimed under SMCRA, CWA, and state regulation and 

there are no baseline studies to use as reference and stream conditions are highly variable in 

arid and semi-arid areas from aerially and from stream to stream. Many states have established 

studies only on major rivers of focus important to human health and/or fish and wildlife. Index 

scores would be available for only some of those streams and those scores would have little 

relevance to the relatively minor streams where coal mining is conducted. 

orc>oo;ses to eliminate the provision allowing to waive the 

aprJI!c:aticln include analyses of each stratum in geologic column 

and a provision that allows regulator to waive requirement that 

the pef111it application analysis for pyritic sulfur in coal seam. Both of these changes are 

geared !o specific situations in Appalachia and should not be applied nationally. 

Section 760,23: Plans for the monitoring of groundwater, surface water, and the 

biological condition of streams during and after mining 

Paragraph (C) Biological Condition Monitoring Plan: As stated previously, this change 

assumes a greater knowledge of biological activities than is generally available in most of the 

United States and appears focused on a number of impacted streams in West. Virginia and other 

sections of Appalachia where large studies have been underway for years. In many intermittent 

and perennial streams in the western U.S., blo-assessments would be very expansive and 

highly seasonally dependent with many studies required during a year to get an accurate picture 

of the biological activity on the stream. The studies would have very little value since the stream 

function, use, and quality are being reclaimed under SMCRA, CWA, and stale regulation and 

!here are no baseline studies to use as reference and stream conditions are highly variable in 

arid and semi-arid areas from aerially and from stream to stream. This rule should not be 

applied nationally. 
198 


Insert offset folio 154 here 98945.154

Section 780.26: Impoundments & mfuse piles 

These proposed rules are very focused on Appalachian issues with their focus on 

breakthroughs into underground workings refuse piles. The rules would seem to require a large 

amount of additional and unnecessary design, permitting, and construction work for small 

impoundments that have little risk of failure or to the public. 

Paragraph (C): Permanent and Temporary Impoundments: It is stated that the permit 

application requires submission of the completed portions of the MSHA impoundment plan, but 

doesn't eventually require the full plan. This seems like an unnecessarily confusing and 

meaning!es.s requirement since the incomplete plan is useful only to the permittee and the 

MSHA reviewer. Either the completed MSHA impoundment plan should be submitted by 

revision or the requirement should be eliminated. Since the MSHA plan is already well reviewed 

and regulated by the agency and many of its procedures do not have to do with the 

environment, it is preferred that the proposed OSMRE regulation be eliminated. 

Section 780.28: What additional requirements apply to proposed activities in, through, or 

adjacent to streams? 

Paragrnph (b)(S}(i) 

The inclusion of ephemeral streams in this paragraph does not make sense for the Western 

mines. Most ephemeral channels are swa!es and do not have riparian zones; therefore how 

would a 100 feet wide riparian corridor be established? in addition, this corridor would be wider 

than most of reclaimed ephemeral channels. 

Paragrnph (C): What additional requirements apply to an application that proposed to 

mine through or divert a perennial, intermittent, or ephemeral stream?: The proposed 

paragraph (c)(i) would require that the proposed post-mining drainage pattem of perennial, 

intermittent, and ephemeral stream channels to be restored after the completion of mining be 

similar to the pre-mining drainage pattern. The proposed rule would allow the regulatory 

authority to approve deviations from the pre-mining drainage pattern when necessary to ensure 

stability, to promote enhancement of fish and wildlife habitat consistent with sections 515{b)(24) 

and 516(b)(11) of SMCRA, (429) or to prevent or minimize excessive down cutting (deepening) 

of reconstructed stream channels. This proposed rule is generally unnecessary in most states 

and is subject to a great amount of subjectivity and misinterpretation by regulators. While major 

channel post-mining drainage patterns generaHy follow pre-mining patterns, !here may be 

reasons to change the minor channel drainage pattern to accommodate coal removal. minimize 

re-handling of backfill, and conduct contemporaneous reclamation. In addition, many pre-mining 

areas across the area are conducted in areas where stream channels are severely altered due 

to anthropogenic activities and resulting erosion that should not be reproduced in the 

reclamation process. 
199 


Insert offset folio 155 here 98945.155

The limitation of lntenmittent or perennial diversions that will remain for more than 2 years 

approximating pre-mining channel does not make sense for the Western stales. It would be 

better to control the energy through controlled drops than the increased length. Again, this rule 

appears to be written more with the Appalachian area in mind, not the semi-arid western United 

States. 

Section 780.29: Surface-water runoff control plan: The reason given for the proposed 

changes in this section is !hat uncontrolled surface runoff can cause flooding downgradien! of 

permit boundary. This type of impact is probably limited to areas where the during and postmining landscape are significantly altered compared to the pre-mining state as in steep slope 

areas of Appalachia. The proposed changes to the rules should be limited to areas where they 

are applicable either through geographic or slope based restrictions~ 

!n many areas there have been methods developed to estimate peak discharges that do not use 

synthetic stonns. Why is the OSMRE limiting the method of estimating the peak discharge 

when there are other accepted methods? As OSMRE knows, peak discharge estimates are 

based upon empirical models and methodology that require the engineer to fit the appropriate 

methodology to study area being evaluated. Restricting the use of all other empirical methods, 

unnecessarily and inappropriately restricts the engineer from applying !he most appropriate 

empirical method. 

Section 130.35: Minimization and disposal of excess spoil: The reason for the proposed 

changes in this section is given as disposal of excess spoil and coal mine waste involves filling 

of substantial portions of stream valleys especially in central Appalachia. The goal of the 

excess spoll minimization and fill size optimization requirements of proposed paragraphs {b) 

and (c) is to minimize fill footprints and thus minimize disturbances of forests, perennial and 

interm!ttent streams, and riparian vegetation, consistent with the requirement in sections 

515(b)(24) and 516(b)(11) of SMCRA (449) to minimize disturbances and adverse impacts on 

fish, wildlife, and related environmental values to the extent possible using the best technology 

currently available: The applicability of the proposed rule changes should be limited to where 

appropriate through geographic restriction. 

Section 180.37: Access and haul roads: The need for this change appears to address 

concerns in central Appalachia and are unnecessary in most parts of the country where 

adequate regulation exists for construction of access roads and such roads are often important 

for landowners during and after mining. 

Section !!00.14: Additional bond requirement: This proposed rule adds the biological 

condition of perennial and intermittent streams within permit area to list of factors authorities 

must consider in setting bond amounts~ The calculations must the bond needed to 

restore stream function, but there is no listing of stream type, but this should also be stated as 

perennial and intenmit!ent streams only. Moreover, the new proposed rule is designed to 

address specific Appalachian issues and should be restricted to where it is needed or applied 

under existing rules. 
200 


Insert offset folio 156 here 98945.156

performance bonds for stream reclarr1ation. but no clear reason 

The current bonding program would for this 

for streams necessitates a be drawn 

reclamation" Because difficulties in creating this 

we fail to see the value in this proposal. 

Section 800.1!!: Firu:mcial guarantees for treatment of long-term discharges: Proposed 30 

CFR 800.18 would establish performance bond and financial assurance requirements that 

would apply whenever any discharge from a surface or underground coal mine or other facility 

regulated under SMCRA requires treatment and r_ontinues or may reasonably be expected lo 

continue after the completion of mining, backfilling, grading, and !he establishment of 

revegetation" The references in this section are lo experience Pennsylvania and Tennessee 

and the rule is designed to address specific issues in Appalachia and the new rule should be 

restricted to mines in that area~o 

Section 800.42: Bond release criteria: These proposed rules are focused on Appalachia and 

should be restricted to where needed" They are also counter-productive towards the goal of 

releasing lands and restoring use" By including a provision stating that restoration of perennial 

and intermittent streams is part of the backfilling and grading process would meaninglessly and 

severely limit bond release for many mines since these areas are often the haul roads for the 

mines and there is no point in restoring a perennial and intermittent stream until the upstream 

drainage area is reclaimed" The provisions appear to have been written by someone unfamiliar 

with large scale coal mining or interested in restricting mining~ 

Pari ll1S: Petmanent Program Performance Stam:lards.Surface Mining Activities'""'"'"'""' 

Page 159): Consolidates requirements to mark zones for perennial and int<>rrnitmr•t 

streams. 

Section 816,22: Handling of topsoil, subsoil, and other plant growth media: This section 

claims to improve implementation of current rules, implying that they're not being followed 

everywhere very welL It would seem that enforcement of the current rules would also be 

possible" 30 CFR 816"22 revised form, provides additional background on !he basis and 

purpose ior the proposed revisions" In addition, Forest Reclamation Advisory No" 8 (one of the 

publications implementing and supporting the Forestry Reclamation Approach) states tha! deep 

soli is required for productive tree growth and that ~'salvaging and re-spreading only the upper 

lew inches or horizons of soil is unlikely to restore pre-mining capability unless additional 

materials suitable for reforestation are added""' This is not true of forests everywhere and Forest 

Reclamation No~ 8 is a document concerned only with reclamation of Appalachian 

forests, yet the proposed rule implies it is to be used everywhere and doesn't lists its limitations" 

The use of these proposed rules should be limited to Appalachia" 
201 


Insert offset folio 157 here 98945.157

Proposed {0): This section pertains to modification of the groundwater monitoring 

plan. is asked whether OSMRE should establish a minimum sampling frequency or place 

other restrictions on the regulatory authority's ability to modify monitoring requirements. There 

should not be a minimum sampling frequency and OSMRE should not place a restriction on the 

SMCRA regulators ability to modify monitoring requirements as the state regulators have the 

knowledge and experience of the mine sites and many mines have decades of monitoring 

results that justify reduced monitoring. The lack of ability of mines and regulators to reduce 

monitoring is counter-productive since it results ln large amounts of meaningless and similar 

data and makes monitoring much more expensive than it needs to be without real quantifiable 

benefits. It also results in less monitoring welts since people are unwilling to add more than the 

minimum if i! means that intensive monitoring will continue indefinitely. 

Proposed (E): OSMRE proposes to modify the existing language to specify that the 

regu!aiory must require additional monitoring when information available to the 

regulatory indicates that additional monitoring is necessary to protect the hydrologic 

balance, detect changes, or meet other requirements of the regulatory program. This 

is already done in many states and simple enforcement of the existing rules would suffice. 

Section 816.36: Surface water monitoring: 

"'""'""~"h (a)(2) includes the 

through 

orc.oo,ses to revise existing ~<muuc''-"" 

arrl!wmllrll r:rm•oArninra the meaning release" and clarify that moJlili1rir•o 

must amount posted for the monitored area has been fully 

released under proposed 30 CFR 800A2(d}, not just partial or Phase I or II bond release. The 

underlying assumption I$ that ba$e flow would develop $tream flow during groundwater 

recharge. This will not occur at many mines in the Midwest and west and surface water 

monitoring does not need to continue indefinitely data that is essentially ambient 

stream flow and data until final bond release may take decades for a large western 

surface mine. It much more productive to concentrate monitoring where it does the most 

good. Therefore, this proposed rule should be removed. 

OSMRE proposes to remove existing 30 CFR 81EL41(e)(3)(il) 

may a permit revision that would allow 

that monitoring is no longer 

oroool;ed rule states, As 

m~•mt•Dnrlo before the entire 

nrnl~n.o.•>N30 CFR 800.42(d) 
202 


Insert offset folio 158 here 98945.158

preserved or restored the biological condition of perennial and intermittent streams within the 

and adjacent areas. At mines in the west and there will be no baseflow lo 

and surface water does not need to continue data that 

is essentially ambient stream flow data until final bond release may 

decades for a large western surface mine. much more concentrate monitoring 

where it does the most Therefore, this proposed rule be removed or limited 

geographically. There also not be a minimum and OSMRERE 

should not a restriction on the SMCRA regulators 

The state have 

many mines have decades monitoring results that 

ability of mines and regulators lo reduce m"n'""'r'" 

sites and 

monitoring. The lack of 

cmJmer-<C>roau<::nve since i! results in 

amounts of and similar data and 

noods to be real of the knowledge base. results in less monitoring 

sites since mine are to add more than the minimum monitoring required if it means that 

intensive monitoring will indefinitely. 

Mconiltori!no the biological condition of streams: The proposed rule would 

and reclamation until the entire bond amount for the 

prcrpo~!ed 30 CFR This rule should be 

is designed for. There no need to 

the various phases of bond 

esjoec:ially given expense of biological 

monil<)rirla environments. Final bond release 

western surface mines. far better to concentrate 

<mr,nrl.,.nt areas agreed to by the operator and the SMCRA regulator. 
203 


Insert offset folio 159 here 98945.159

those materials. The 

two methods These restrictions be 

nrrohiP·m~ they are meant to address or addressed by existing rules or 

where ln alkaline environments such as many coal mining areas in the 

western it is unnecessary to place acidic and low-acid base potential (ABP) material in the 

backfill surrounded by below the predicted water table, or 

treated with alkaline Backfilling of 

acidic and low ABP material outside four graded surface has been 

conc!uc!ed for many decades with no low pH groundwater formation in the Powder River Basin 

and many other locations and confirmed by pre-mining testing and actual backfill monitoring. 

This method improves !he efficiency of mining significantly, thereby reducing emissions, 

without harm to the environment and limits exposure of backfill to air during the h;>ocl<tlllm,n 

process, 

The many numerous studies referenced in existing permit documents in adjacent states are 

among the best peer-reviewed studies for backft!l water quality in the country, The studies 

discuss actual backfill water quality rather than laboratory studies of column leach 

testing, These studies often show that there are no low pH backfill waters at Powder River 

Basin mines and that the water quality observed in backflll wells is a function of the backfill 

material at and surrounding the well, and the quality of the recharge water. Water quality results 

from initial resaturatlon and from subsequent data observed in backfill wells across the Powder 

River Basin show low dissolved redox-sensitive constituents, indicating that oxidation is low in 

the deep backfilL 

The high alkalinities and moderate PHs across the Powder River Basin are apparent in the data 

and show that no unbuffered acid formation is taking place in the backfill and acidic conditions 

do not exist. If unbuffered acid formation was taking place or acidic conditions existed, 

bicarbonate levels would also be very !ow, alkalinities would be trending towards negative 

levels, and abnormally low PHs would be observed in the water. None of these conditions are 

observed in the Powder River Basin data. 

Section 816.40: The proposed rules seem to envision a situation 

where the damage to a supply is clearly caused by a coal mine. In many areas 

of the western U.S. where groundwater is an important source of water, there are residences 

and livestock operations are across the landscape, and there are causes 

of water supply interruption well failure, oil and gas operations, and landowners 

and wells, The proposed rule put the sole responsibility for temporary and 

""''"'"n""'twater on the coal mine in the event of a claim, There are rules in most states 

for of water caused by another water user or water rights holder. 

prc•po1sed rule should be or state that the of the protected water 

must be clearly caused by the coal mining operation. are also likely few situations 
204 


Insert offset folio 160 here 98945.160

where coal mines have not willingly and voluntarily replaced water rights that can be 

conclusively caused by their actions. 

Section 816.43: Diversions and other channels that convey water: This proposed rule 

seems to be needed only due to the failure of certain structures in Appalachia. Enforcement of 

the current rules or modification of tile rules of certain states would seem to suffice instead of 

modification of rules forthe entire country. 

Section 1115.49: lmp01.mdments: 

requirements by 

impoundments. "'""""","'" "'""'""'"~".h 

Section 816.51: Activities in, through, or adjacent to a perenrlial or an intermittent 

stream: These rules are desf9ned to address certain issues in Appalachian streams and should 

not be applied nationally~ All of the references pointing to the need for the rules are 

Appalachian. paragraph 

through or diverted is in a degraded the permitlee 

measures !o enhance the form and ecological function of the segment part of the restoration 

or diversion process. This provision is to ensure that stream segmsn!s degraded by 

prior mining or other human activities are improved to the fullest extent possible, not 

restored to existed mining This migh! be a 

relatively simple process in a small headwater stream. but in a large stream channel such as 

one that exist at a mine site in the western U~S. with .,;,,lfir·,.n<anthro.po!ltmlc 

impacts upstream and downstream of the mine, it might be impossible to determine the predisturbance state~ In addition, it may also not be good to try to recreate the pre-mining state in 

cases where signific-ant erosion occurred prior to mining. 
205 


Insert offset folio 161 here 98945.161

The use of the HUC-12 classification is too fine for use at many western coal mines where 

would include minor swales. The major ephemeral drainages at many western mines would fall 

in the HUC-8 or HUC-10 classification. 

Section !H6.111: Revegetating the area disturbed by mining: 

Many of the proposed changes in this section should be applied by a state by state basis with 

encouragement of state rules, policies, procedures as they do not apply nationally and would 

be inappropriate outside of Appalachia. 

The proposed rules make numerous references to wildlife, wetlands and water quality standards. 

We do not that there are several other laws that relate to coal mining. The 

coal fully understands this and has with these since their 

we view this as an to OSMRE's into areas where 

they little expertise. We also find the the regulations 

to be convoluted. Furthermore several of these are and will 

almost be changed. We recommend for that OSMRE remove these and limit the 

scope of !he to those clearly mandated by 

Case law 

standards as 

(CWA). 

defines that OSMRE does not have the authority to establish water 

§ 702(a}(3} does not provide authority to supersede the Clean 

Ill advised for OSMRE to attempt to develop a nation-wide E-permilting requirement. ... 

The western states 

would be entirely 

seleniferous rocks and soils can lead to 

and surface waters. Many healthy streams, 

waters that may periodically or permanently have del:ec1lable 

levels. Often these waters provide the only source of water 

environment For these reasons, a national standard is 
206 


Insert offset folio 162 here 98945.162

OSMRE should also leave water quality standards and 

Act regulator at a mine site. These r~"1"1rnr,; 

implement and attainable 

Com:!usion 

AoJClmnri:•t"' Clean Water 

'"'"'"'l<>rlr,., necessary to 

The Montana Coal Council does not believe that a complete rewrite of the stream protection rule 

is warranted. However OSMRE continues to moves MCC believes that its new 

protection measures should be focused on intermittent perennial streams as these 

stream types have an aquatic or component to protect OSMRE should 

that its new measures are on intermittent and perennial stream only. 

consistent OSMRE's revised stream buffer rules of 1983. When OSMRE revised the rule in 

1983, the reason for limiting the rule to and intermittent streams was because 

the earlier referencing "streams with a community" was and difficult 

This, according to the "led to on the part of to 

amorphous and community standard. In response to challenges 

several environmental groups, the district court the agency's reasoning 

that "it is this type of justification, based on experience and expertise 

a change." 

The proposed rules wm serve only to further burden the coal mining industry and we do not believe 

they will result in any environmental improvement to the Nation's streams. We urge the Office of 

Surface Mining Reclamation and Enforcement to abandon this effort and let the program continue 

!o deliver the successful reclamation and stream protection results !hat have occurred over !he 

last 30 years. 

Thank you for your consideration of these comments. 

MCC appreciates consideration of these comments, as well as the comments you may receive 

from our membership and the National Mining Association. 
207 


Insert offset folio 163 here 98945.163

October 26, 2015 

The Honorable Lisa Murkowski 

Chairman 

U.S. Senate Committee on Energy and Natural Resources 

304 Dirksen Senate Building 

Washington, D.C. 20510 

The Honorable Maria Cantwell 

Ranking Member 

U.S. Senate Committee on Energy and Natural Resources 

304 Dirksen Senate Building 

Washington, D.C. 20510 

Dear Chairman Murkowski and Ranking Member Cantwell: 

Southern 

Environmental 

Law Center 

The National Parks Conservation Association (NPCA) and the Southern Environmental Law 

Center (SELC) thank the Committee for the opportunity to provide written comments for the 

"Hearing on the development and potential implementation ofthe Office of Surface Mining, 

Reclamation, and Enforcement's (OSM) proposed Stream Protection Rule." Please accept these 

comments for the hearing's official record. SELC is a regional non-profit organization, working 

in six states in the Southeast to champion the special resources of the South: clean water, 

healthy air, mountains, forests, rural countryside, and the coast. NPCA is the only independent, 

membership organization devoted exclusively to advocacy on behalf of the National Park 

System. 

Our organizations have a strong interest in the rule making that is the subject of this hearing, as 

the rule proposes much-needed revisions to regulations for coal mining operations under the 

Surface Mining Control and Reclamation Act (SMCRA). The final rule will significantly impact 

public health, rivers and streams, national parks, and communities in the regions in which we 

work. 

Mountaintop removal mining in Appalachia and surface coal mining have devastated both the 

thriving natural ecosystems ofthe Appalachian Mountains as well as entire communities. 

Mountaintop removal mining generates some of the most damaging, large-scale environmental 

impacts of any industrial activity in the country. It is responsible for the destruction of over 500 

mountains and approximately 2,000 miles of stream channels across Central Appalachia. The 
208 


Insert offset folio 164 here 98945.164

current regulations have been inadequate to prevent this ongoing, massive devastation. They 

must be reformed. 

Our organizations support several components of OSM's proposed Stream Protection Rule, 

including improvements in baseline data collection, enha need monitoring and bonding 

requirements, and restoration of stream functions, among others. And while our groups 

support the rulemaking moving forward, there are several other important areas where the 

proposed regulations are too weak and should be strengthened. We oppose the proposed 

elimination of the existing stream buffer zone rule. In addition, while we are in general support 

of including a definition for "material damage to the hydrologic balance," the proposed rule 

falls short in certain respects. We support the requirement that mining operators must comply 

with water quality standards and believe that the language of the rule should be cia rified to 

avoid any ambiguity. 

The proposed rule contains some important elements that are an improvement from current 

regulations. These include, among others, the following: 

Enhanced Monitoring and Baseline Conditions: We support OSM's proposal to require more 

extensive monitoring of water quality and stream flow in areas impacted by mining, as well as 

improved biological monitoring. This information is critical to assessing adverse impacts from 

mining. This includes monitoring for selenium, conductivity and other pollutants, as well as the 

presence of important aquatic species. 

Improved Bonding Requirements: We support OSM's proposal to strengthen bonding 

provisions to require financial assurances for long-term treatment of pollution discharges. 

Restoration of Stream Functions: We support in principle OSM's proposal to require mining 

operators to restore both the hydrological form and ecological functions of streams that are 

impacted by mining. This requirement is consistent with the federal Clean Water Act. 

However, the available evidence indicates that the ecological functions of streams that have 

been damaged or destroyed by valley fills or mined-through cannot be restored or recreated. 

The proposed rule should prohibit or severely limit stream destruction in the absence of clear 

proof ofthe success of any remedial measure. 

Conversely, we believe the proposed rule must be changed or clarified in certain key respects. 

OSM Should Retain the Stream Buffer Zone Rule: We oppose OSM's proposal to eliminate the 

1983 stream buffer zone rule that prohibits mining within 100 feet on either side of perennial 

or intermittent streams. Retention, and enforcement, of the rule is critical to halt the massive 

destruction of Appalachian streams and aquatic life from valley fills. 

OSM Should Strengthen the Definition of Material Damage to the Hydrologic Balance: While we 

support the important concept of defining "material damage" to the hydrologic balance, that 

definition should be modified to clarify that its language is consistent with the Clean Water Act, 
209 


Insert offset folio 165 here 98945.165

that it does not authorize violations of water quality standards, and that it supplements rather 

than replaces the statutory requirement to avoid acid or other toxic drainage at the minesite 

and in associated offsite areas. 

Additionally, there are other areas ofthe rule we support and others in which the rule should 

be strengthened. Our organizations have joined with other colleague groups in submitting 

detailed comments to the docket (OSM-2010-0018). 

This rulemaking represents a major shift from the current regulatory program, which has been 

inadequate for too long. Our organizations are overall supportive of OSMs efforts to improve 

and modernize the regulations that govern mountaintop removal mining. The proposed rule 

contains important improvements to the current regulatory system, but OSM should go further 

to protect communities and the environment from the ill effects of mountaintop mining. 

Thank you for considering our views on this important rule. 

Sincerely, 

Chad W. Lord 

Senior Director, Water Policy 

National Parks Conservation Association 

Navis A. Bermudez 

Deputy Legislative Director 

Southern Environmental Law Center 

cc: Members ofthe U.S. Senate Committee on Energy and Natural Resources 
210 


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SIERRA CLUB * OHIO VALLEY ENVIRONMENTAL COALITION 

KENTUCKIANS FOR THE COMMONWEALTH * WA TERKEEPER ALLIANCE 

SOUTHERN APPALACHIAN MOUNTAIN STEWARDS * APPALACHIAN VOICES 

STATEWIDE ORGANIZING FOR COMMUNITY EMPOWERMENT 

WEST VIRGINIA HIGHLANDS CONSERVANCY * PUBLIC JUSTICE 

COAL RIVER MOUNTAIN WATCH * KENTUCKY WATERWAYS ALLIANCE 

EARTHJUSTICE * APPALACHIAN MOUNTAIN ADVOCATES 

YOUGHIOGHENY RIVERKEEPER * CLEAN WATER ACTION 

SOUTHERN ENVIRONMENTAL LAW CENTER * GREENPEACE USA 

NATIONAL PARKS CONSERVATION ASSOCIATION * HEARTWOOD 

NATIONAL WILDLIFE FEDERATION * CENTER FOR BIOLOGICAL DIVERSITY 

ENVIRONMENTAL INTEGRITY PROJECT * SUNCOAST WATERKEEPER 

ENVIRONMENT AMERICA * TENNESSEE CLEAN WATER NETWORK 

WEST VIRGINIA RIVERS COALITION * ALLIANCE FOR APPALACHIA 

APPALACHIAN CITIZENS LAW CENTER * COOK INLETKEEPER 

FRIENDS FOR ENVIRONMENTAL JUSTICE * WILDEARTH GUARDIANS 

HOOSIER ENVIRONMENTAL COUNCIL * PRAIRIE RIVERS NETWORK 

POWDER RIVER BASIN RESOURCE COUNCIL * TUALATIN RIVERKEEPERS 

MONTANA ENVIRONMENTAL INFORMATION CENTER 

LEAGUE OF CONSERVATION VOTERS * CENTER FOR COALFIELD JUSTICE 

DEFENDERS OF WILDLIFE * FRIENDS OF HURRICANE CREEK 

CENTER FOR JUSTICE * BLACK WARRIOR RIVERKEEPER POTOMAC 

RIVERKEEPER * UPPER POTOMAC RIVERKEEPER SHENANDOAH 

RIVERKEEPER * MOUNTAIN WATERSHED ASSOCIATION 

KOOTENAI ENVIRONMENTAL ALLIANCE * THREE RIVERS WATERKEEPER 

GALVESTON BAYKEEPER * SPOKANE RIVERKEEPER 

October 26, 2015 

Via mail, email, and the Federal eRulemaking Portal 

Re: Proposed Stream Protection Rule, 80 Fed. Reg. 44,436 (Dkt. No. OSM-2010-0018) 

Draft Environmental Impact Statement (Dkt. No. OSM-2010-0021) 

Draft Regulatory Impact Analysis (Dkt. No. OSM-2015-0002) 

Dear Director Pizarchik: 

The above-listed groups submit these comments on the Office of Surface Mining 

Reclamation and Enforcement's (OSMRE's) proposed "Stream Protection Rule," 80 Fed. Reg. 

44,436 (July 27, 2015), as well as the accompanying Draft Environmental Impact Statement 

(DEIS) and Draft Regulatory Impact Analysis. The proposed rule extensively revises the national 

minimum standards for coal mining operations under the Surface Mining Control and 

Reclamation Act (SMCRA). 

The practice oflarge-scale surface coal mining in Central Appalachia, known as 

mountaintop removal mining, is a national disgrace. This extremely destructive form of coal 
211 


Insert offset folio 167 here 98945.167

mining devastates both the thriving natural ecosystems of the Appalachian Mountains as well as 

entire communities of residents who have lived on their homesteads for generations. 

Mountaintop removal mining generates some of the most damaging, large-scale environmental 

impacts of any industrial activity in the country. It is responsible for the destruction of over 500 

mountains and approximately 2000 miles of stream channels across Central Appalachia. 

The above-listed groups thank OSMRE for recognizing that the current approach to 

regulating surface coal mining is inadequate and is allowing massive environmental devastation 

in Appalachia and other areas of the country. We support several components of the proposed 

Stream Protection Rule, including improvements in baseline data collection, monitoring, and 

bonding requirements. But OSMRE must go further to protect Central Appalachia's people and 

environmental resources. OSMRE should adopt a stronger alternative that preserves and 

strengthens existing provisions that protect stream channels from direct damage. OSMRE's 

reasons in the proposal for not preserving and strengthening stream-channel protections are 

seriously flawed. 

If OSMRE declines to preserve and strengthen stream-channel protections, it must, at a 

minimum, strengthen the proposal with regard to protection of downstream water quality. 

Current regulations prohibit violations of water quality standards established under the Clean 

Water Act (CWA). OSMRE must clarify that the new regulations contain the same requirement 

to protect water quality standards and must ensure citizen enforcement of that requirement. If it 

does not, the net effect of the "Stream Protection Rule" could be to weaken the protection of 

streams. 

ii 
212 


Insert offset folio 168 here 98945.168

TABLE OF CONTENTS 

L WE STRONGLY SUPPORT SEVERAL IMPORTANT ASPECTS OF THE 

PROPOSED RULE, BUT ADDITIONAL IMPROVEMENTS ARE NEEDED .............. .! 

A. Sections 780.19, 780.23-Fiow and Chemical Monitoring of Streams ................. ! 

B. Section 780.19-Biological Monitoring of Streams ... ·············· .2 

c. Section 780.21-Content Requirements for CHIAs ..... ............... 2 

D. Sections 773.15(e)(2), 784.19, 800.42(d), 817.121,817.41,817.42-

Prevention of Stream Dewatering and Groundwater Pollution Caused by 

Underground Mining Operations... . ............ .4 

E. Section 816 57(b )(2)-Restoration of Stream Functions ... . ............ 7 

F. Changes to Part 800-lmproved Bonding Provisions .. 

IL OSMRE SHOULD RETAIN THE 1983 RULE PROVISION THAT CREATES 

A PROTECTIVE STREAM BUFFER ZONE AND ENFORCE THE SMCRA 

PROVISION THAT PROHIBITS DAMAGE TO NATURAL 

. ... 8 

WATERCOURSES. . ............. 9 

A. Coal Mining Causes Serious and Extensive Direct Damage to Streams ................ 9 

B. OSMRE Has Long Recognized the Importance of Protecting Stream 

Channels from Direct Disturbance... . ............. !! 

C. OSMRE's Reliance on Stream Re-Creation and Restoration to Mitigate 

Stream Loss Has No Scientific Basis.. .. ........... 12 

D. OSMRE's Failure to Protect Stream Channels Is Inconsistent with 

SMCRA.. . ............ 16 

TIL IN REJECTING A MORE PROTECTIVE ALTERNATIVE, OSMRE IGNORED 

RELEVANT AND IMPORTANT CON SID ERA TIONS AND VIOLATED 

NEPA... .. ........... 19 

A. OSMRE Failed to Consider that Coal Demand Is in Structural Decline .............. 20 

B. OSMRE Failed to Consider that Coal Mining Is a Net Economic Drain on 

Appalachia. . .. ..... 22 

C. OSMRE Failed to Consider that Surface Coal Mining Is Associated with 

Serious and Widespread Public Health Problems in Appalachia. . .. .......... .23 

iii 
213 


Insert offset folio 169 here 98945.169

D. OSMRE Failed to Analyze the Effect of the Proposed Rule on Climate 

Change.. .. ...... 25 

E. OSMRE Incorrectly Assessed the Baseline No Action Alternative.. .. .......... 34 

F. OSMRE Failed to Consider the Alternative of Enforcing Current 

Requirements... .. .......... 36 

IV. AT A MINIMUM, OSMRE MUST AT LEAST CLARIFY AND 

STRENGTHEN THE PROPOSAL WITH RESPECT TO PROTECTION OF 

DOWNSTREAM WATER QUALITY. . ............ 37 

A. OSMRE Should Confirm that Section 816.42 Requires Compliance with 

Water Quality Standards and Is Directly Enforceable under SMCRA. .. .......... .37 

B. OSMRE Should Confirm that Sections 8I6.7l(a)(7) and 8I6.57(b) 

Require Compliance with Water Quality Standards and Are Directly 

Enforceable under SMCRA.. .. ........... 4I 

C. OSMRE Should Interpret the SMCRA Savings Clause to Allow Direct 

Enforcement of Water Quality Standards under SMCRA. .. ......... .42 

D. OSMRE's Standard in Sections 7015, 780.2I(a)(8), 780.24(b)(iii), 

780.28(b)(2), 784.2I(b)(8), 784 24(b)(iii), 784.28(b)(2), 8I6.36(d)(2), 

8I6.57(b)(2), 8I6.7I(a)(6), 8I6 8I(b)(7), 8I7.36(d)(2), 8I7.57(b)(2), 

8I7.7I(a)(6), and 817.8l(b)(7) for Protecting Stream Uses from Material 

Damage Should Be Clarified and Strengthened.. . ......... .44 

V. OSMRE SHOULD STRENGTHEN REQUIREMENTS IN§ 8I6.38 TO AVOID 

CREATION OF ACID-FORMING AND TOXIC-FORMING MATERIALS ............. ..47 

VI. OSMRE SHOULD REQUIRE RESTORATION OF BOTH THE FORM AND 

ECOLOGICAL FUNCTIONS OF EPHEMERAL STREfu\1S.. . ........... ..48 

VII. OSMRE' S PROPOSED METHODS FOR REMEDYING DISCHARGES OF 

ELEVATED CONDUCTIVITY FROM Mlt·mS HAVE NO SCIENTIFIC 

BASIS.. . ........... .49 

VIIL OSMREMUST STRENGTHEN THE RULE'S REVEGETATION AND 

REFORESTATION PROVISIONS .. 

IX. OSMRE SHOULD STRENGTHEN THE SELF-BONDING PROVISIONS IN 

'"''''"''''52 

SECTION 800.23. . ..... 55 

X. OSMRE SHOULD STRENGTHEN REGULATORY PROTECTION OF 

DWELLINGS AND OTHER STRUCTURES FROM DAMAGE DUE TO 

COAL MINE SUBSIDENCE.. . .. 55 

iv 
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Insert offset folio 170 here 98945.170

XI. OSMRE MUST PRESERVE THE RJGHT OF THE OWNER OF A 

SUBSIDENCE-DAMAGED DWELLING OR SIMILAR STRUCTURE TO 

CHOOSE BETWEEN REP AIR OR MONETARY COMPENSATION; THE 

AGENCY MAY NOT LAWFULLY AUTHORJZE COAL MINE PERMITTEES 

TO CHOOSE... . ............ 57 

XII. OSMRE SHOULD CLARlFY THE EFFECT OF ITS PROPOSED 

REGULATIONS ON lJNDERGROUND MINING OF PRJME FARMLAND ............ 59 

XIII. PHOTOGRAPHS OF THE HARM FROM MOUNTAINTOP REMOVAL 

MINING... . .......... 62 

XIV CONCLUSION... . ............ 70 

v 
215 


Insert offset folio 171 here 98945.171

I. WE STRONGLY SUPPORT SEVERAL IMPORTANT ASPECTS OF THE 

PROPOSED RULE, BUT ADDITIONAL IMPROVEMENTS ARE NEEDED. 

As several commenters explained in December 30, 2009 comments on OSMRE's 

advance notice of proposed rulemaking, OSMRE has broad rulemaking authority to protect the 

environment from mining impacts. Docket No. OSM-2009-0009-2720. The specific performance 

standards in SMCRA authorize more restrictive rules than the existing ones. The existing rules 

are not preventing serious, persistent, and unmitigated environmental harm from occurring. We 

therefore agree with OSMRE that it needs to improve many aspects of its mining regulations, not 

just the buffer zone rule. We also agree that the proposed rule should define material damage to 

the hydrologic balance, require collection of better chemical and biological monitoring data both 

before and during mining, ensure protection and restoration of streams and related resources, and 

establish enforceable numerical standards. 80 Fed. Reg. at 44,443, 44,479. We highlight below 

the most important changes in the rule that we support. 

A. Sections 780.19, 780.23-Flow and Chemical Monitoring of Streams 

We support OSMRE's proposal in section 780.19 and 780.23 to require more extensive 

monitoring of stream flow and chemical parameters, including total dissolved solids, major 

anions and cations, selenium, aluminum, and conductivity. This information is essential to 

establish baseline conditions and monitor adverse impacts after mining begins. 

However, we disagree with OSMRE's proposal in section 780.23(b )(2)(iii) to not require 

monitoring of point-source discharges for the same listed parameters that must be monitored in 

streams. 80 Fed. Reg. at 44,506. Monitoring at both point-source and in-stream locations is 

necessary to determine the connection between mining discharges and downstream conditions. 

This connection is necessary to establish a mine operator's liability for causing or contributing to 

violations of water quality standards. See OVE(' v. "Elk Run Coal Co., 24 F. Supp. 3d 532 

(S.D. W.Va. 2014); OVEC v. Fola Coal Co., 82 F. Supp. 3d 673 (S.D.W.Va. 2015). At a 

minimum, mining point sources should be monitored for selenium, pH, iron, aluminum, 

manganese, conductivity, and the four anions/cations that are characteristic of discharges from 

valley fills in Appalachia (calcium, bicarbonate, sulfate, and magnesium) 1 These are typically the 

most harmful components of mine discharges and cause most of the mining-related impairments 

on state§ 303(d) stream impainnent lists. For example, West Virginia's 2012 Final Integrated 

Water Quality Monitoring and Assessment Report found that the most common impairments 

associated with mine drainage are low pH, high concentrations of iron, aluminum, selenium, and 

manganese, and biological impairment as measured by low West Virginia Stream Condition 

Index scores (which are related to elevated ionic chemicals and high conductivity). 

Recommended Change to§ 780.23(h)(2)(ii): For all monitoring locations including point 

source discharges, the plan must require that the following parameters be measured at each 

location at least every three months, with data submitted to the regulatory authority at the same 

frequency: 

1 See EPA, A Field-Based Aquatic L!fe Benchmark for Conductivity in Central Appalachian 

Streams p. 26 (2011), http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=233809. 
216 


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B. Section 780.19-Biological Monitoring of Streams 

We support OSMRE's proposal in section 780.19(e) to require biological monitoring of 

benthic macroinvertebrates to the genus level. "Compared with family-level taxonomic data, 

genus-level assessments more accurately represent the composition and diversity of the aquatic 

community in WV's flowing streams."2 We also support OSMRE's proposal in that section to 

require annual use of a multimetric bioassessment protocol and stream condition index score to 

determine whether mines are causing harm to stream uses. EPA has used that same method to 

determine stream impairments on West Virginia's § 303(d) lists, and has found that a West 

Virginia Stream Condition Index (WVSCI) score below 68 indicates impairment. A federal court 

has also ruled that such a score is evidence of stream impairment and a violation of biological 

narrative water quality standards. OVEC v. Elk Run Coal Co., 24 F. Supp. 3d 556; OVEC v. Fola 

Coal Co., 82 F. Supp. 3d 673, 679. 

C. Section 780.21-Content Requirements for CHIAs 

We support OSMRE's proposal in section 780.21 to require cumulative hydrologic 

impact assessments (CHIAs) to contain enforceable, site-specific, numerical, material damage 

criteria for each parameter of concern. Congress recognized when it passed the Clean Water Act 

in 1972 that objective, numerical limits on discharges are essential for effective monitoring and 

citizen enforcement. S Rep. No. 414, 1972 U.S. Code Cong. & Ad. News at 3745 ("an objective 

evidentiary standard will have to be met by any citizen who brings an action under this section"). 

Objective criteria are equally essential for effective SMCRA enforcement. 

OSMRE correctly recognizes that "SMCRA material damage ctiteria must be no less 

stringent than Clean Water Act water quality standards and criteria in all cases." 80 Fed. Reg. at 

44,475 (emphasis omitted). A court decision supports the conclusion that the material damage 

criteria must specitically include the State's water quality standards. See Ex. B, Ohio River 

Valley Environmental Coalition, Inc. v. Castle, No. 3 :00-CV-58 (S.D.W. Va. June 15, 2000) 

(Memorandum Opinion and Order at 13) ("Given the use of the term 'material damage' and its 

context in the statute, Congress intended that [the West Virginia state regulatory authority under 

SMCRA] set out in writing the current condition of the water's quality and the limits and ranges 

above which damage will be considered material. Those limits must include the State's water 

quality standards applicable to the hydrologic resources found within the cumulative impact 

area."). 

OSM also correctly recognizes that under the current CHIA regulations, "[t]he lack of 

standards or content requirements for the CHIA, coupled with the lack of a defmition of material 

damage to the hydrologic balance, is an impediment to stream protection under SMCRA because 

there are no objective criteria to apply." 80 Fed. Reg. at 44,501. All too many "material damage 

findings" in CHIAs ultimately have proven incorrect because the operations those findings 

2 Ex. A, Gregory J. Pond et al., Calibration and validation of a regional6; and seasonally 

stratified macroinvertebrate index for West Virginia wadeable streams, Env't. Manit. Assess. 

185 1515-40, 1533 (2013). 

2 
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Insert offset folio 173 here 98945.173

endorsed actually did cause or contribute to damaging excursions from water quality standards 

once mining actually began. OSM's proposed requirement that each CHIA's "no material 

damage" finding be supported by a written determination that the hydrologic impact of each 

proposed mine "will not ... [r]esult in an exceedance of applicable water quality standards in 

any stream located outside the permit area" (proposed 30 C.F.R. § 780.2l/784.2l(b)(8)(i)(B)) is 

a very significant, positive step toward correcting the problems that have developed under the 

current CHIA regulations. 

While we support the preamble's discussion of the need to include water quality 

standards or more stringent alternative standards as site-specific material damage criteria for 

each mine, the proposed regulation itself lacks language requiring that result. The texts of 

proposed 30 C.F.R. §§ 780.21/784.21 do not expressly require each regulatory authority to 

include each applicable water quality standard or more stringent alternate criteria among the 

material damage criteria used to evaluate the design of each proposed mine. Compare 80 Fed. 

Reg. 44,475 ("SMCRA material damage criteria must be no less stringent than Clean Water Act 

water quality standards and criteria in all cases, but, in some situations, they may need to be 

more stringent") with 80 Fed. Reg. 44,604 (text of proposed 30 C.P.R. § 780.21 (b )(6), which 

does not mention applicable water quality standards). We request that OSM revise the 

regulatory text to correct this flaw and thereby ensure that each federal regulatory program and 

approved state regulatory program fully reflects OSM' s stated commitment to the use of either 

applicable water quality standards or more stringent alternative standards as material damage 

criteria in the CHTA process. As experience with OSM's 1983 rulemaking shows, failure to 

require in the text of the agency's CHIA regulations that each regulatory authority include 

applicable water quality standards among the material damage criteria for each proposed mine 

can and will result in the regulatory authorities' failure to ensure that each proposed mine is in 

fact designed to prevent excursion from water quality standards once mining begins. 

We further note that the current proposal differs from the position that OSM announced 

in the 2008 rulemaking that approved West Virginia's current definition of"material damage to 

the hydrologic balance outside the permit area." In that instance, OSM interpreted SMCR.A to 

allow state regulators to perform CHTAs without using effluent limits, water quality standards, or 

any other numeric criteria to define material damage. See, e.g, 73 Fed. Reg. 78,970, 78,974 

(Dec. 24, 2008) (stating that while OSM's 1983 regulatory preamble "agrees that the regulatory 

authorities should establish criteria to measure material damage for the purposes of CHIAs," (I) 

"the [existing] CHIA regulation does not mandate that the States do so" and (2) "OSM has not 

put States on notice, under 30 C.F.R. Part 732, ... that30 C.F.R. 816.42 or 817.42 must be used 

for such criteria"). OSM expressly disagreed that effluent limitations and water quality standards 

formulated under the Clean Water Act constitute predetermined material damage criteria for use 

in the CIDA process. 73 Fed. Reg. 78,977. Instead, OSM insisted that "States have considerable 

discretion in establishing their CHTA process and establishing criteria for making the required 

material damage finding, including the extent to which they utilize CWA standards or criteria in 

doing so," id, and therefore "water quality standards and coal mining effluent limits do not 

constitute predetermined material damage criteria unless the State, at its discretion, decides to 

apply them that way," id at 78,978. 

3 
218 


Insert offset folio 174 here 98945.174

We understand the proposed CHIA regulations to reverse the policies that OSM 

announced in approving West Virginia's current definition of"material damage to the hydrologic 

balance outside the permit area." Accordingly, we ask that in finalizing its proposal, OSM 

acknowledge its contrary interpretation of SMCRA in past rulemaking and fully explain its 

rationale for the policy change. As the Supreme Court of the United States has made clear, while 

"[a]n agency's view of what is in the public interest may change, either with or without a change 

in circumstances," Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 

(1983), "the agency must explain the evidence which is available, and must offer a 'rational 

connection between the facts found and the choice made.'" !d. at 52 (quoting Burlington Truck 

Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). 

To satisfy the requirements of State Farm and to forestall any mistake or confusion 

concerning the mandatory use of either applicable water quality standards or more stringent 

alternative standards as material damage criteria, OSM should expressly state in the preamble to 

the final regulation that the agency abandons the contrary interpretation on which it based the 

2008 approval of West Virginia's current material damage definition. We further urge OSM to 

explain that the failure of state regulators in West Virginia and other States to analyze whether 

each proposed surface coal mining operation has been designed to prevent excursion from 

applicable water quality standards has resulted in the issuance of mining permits to numerous 

operations that subsequently caused or contributed to damaging excursions from water quality 

standards. 

Recommended change to 780.21(b)(6) and 784.21(b)(6): Insert a new 780/784.21(b)(6)(v) that 

provides: (v) Include each applicable federal or state surface water or groundwater quality 

standard or, for one or more pollutants, any more stringent numeric water quality standard that 

the regulatory authority determines to be necessary to protect designated, existing, or reasonably 

foreseeable uses of potentially affected water resources. 

D. Sections 773.15(e)(2), 784.19, 800.42(d), 817.121, 817.41, 817.42-Prevention 

of Stream Dewatering and Groundwater Pollution Caused by Underground 

Mining Operations 

We support OSMRE' s statement relating to section 784.19 that the regulatory authority 

"may not approve any proposed operation that is predicted to cause subsidence that would result 

in the dewatering of perennial or intermittent streams." 80 Fed. Reg. at 44,525/3. As OSMRE 

recognizes, "[s]ubsidence resulting from longwall mining can cause a loss of part or all of the 

streamflow." Jd/2. The DEIS cites documented cases of stream dewatering in Pennsylvania, 

Utah and West Virginia that have persisted for years. DEIS at 4-52,4-54 (July 2015). We agree 

that SMCRA "does not justify allowing underground mining operations or subsidence resulting 

from underground mining operations to dewater or degrade a stream to the extent of precluding 

an existing, reasonably foreseeable, or designated use of that stream." 80 Fed. Reg. at 44,476. 

On this issue the proposed rule is in line with an important Pennsylvania court decision 

that upheld the prohibition oflongwall mining beneath a stream after earlier longwall operations 

in the same mine dewatered two neighboring streams. See Umco Energy, Inc. v. Dept. r~f 

Environmental Protection, 938 A.2d 530 (Pa. Comm. Ct. 2007). We urge OSM to approve the 

reasoning of the Umco decision as a correct implementation of state laws that effectuate 

4 
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Insert offset folio 175 here 98945.175

SMCRA's provisions for protection of water resources from the adverse effects of underground 

mining operations. 

We also support OSM's proposed expansion of the definition of the term "adjacent area" 

to include the area within which "there is a reasonable possibility of adverse impacts from 

surface coal mining operations or underground mining activities" rather than, as under the 

existing definition, the areas "where adverse impacts could reasonably be expected to occur". 

80 Fed. Reg. 44,467. Instead of requiring pre-mining information only for areas where adverse 

impacts of coal mine subsidence are almost certain to occur, the proposed rule would require 

infonnation for land areas and buildings wherever adverse impacts are reasonably possible. This 

is an important improvement that promises to help SMCRA regulators and the owners of 

damaged land or buildings establish whether coal mine subsidence has caused the damage. 

SMCRA expressly mandates that OSM regulate the effects of surface coal mining 

operations on groundwater. 30 U.S.C. §§ 1257(b)(ll) (requiring that the determination of 

probable hydrologic consequences in each permit application address "the quantity and quality of 

water in surface and ground water systems"); 1258(a)(13) (requiring that the reclamation plan 

included in each permit application describe in detail the measures to be taken during mining and 

reclamation to assure the protection of the quality and quantity of surface and ground water 

systems, both on- and off-site"); 1265(b)(10) and 1266 (b)(9) (requiring SMCRA permittees to 

"minimize the disturbances to the prevailing hydrologic balance at the mine-site and in 

associated off site areas and to the quality and quantity of water in surface and ground water 

systems both during and after surface coal mining operations and during reclamation"); 

!266(b )( 4) (requiring SMCRA permittees to assure that surface disposal of mine wastes, etc., 

"assure that the leachate will not degrade below water quality standards established pursuant to 

applicable Federal and State law surface or ground waters"); and l267(b )(2)(B) (requiring each 

SMCRA regulatory authority to require monitoring of groundwater in certain circumstances). 

In our view OSM's mandate to regulate groundwater is sufficient to support development 

of federal groundwater quality standards applicable to surface coal mining and reclamation 

operations nationwide. In this rulemaking, however, we urge that OSM instead incorporate as 

minimum material damage criteria for groundwater each State's applicable groundwater quality 

standards, in States where such standards exist. IfOSM does so, both the duty of the regulatory 

authority to apply state groundwater quality standards as material damage criteria in the CHIA 

process and the duty of permittees to avoid causing or contributing to excursion from state 

groundwater standards would arise under both federal and state law. 

As with water quality standards formulated for surface water resources under the Clean 

Water Act, Congress most certainly intended that each SMCRA regulatory authority will 

withhold approval of the permit application for any proposed mine that will predictably cause or 

contribute to excursion from any applicable State groundwater quality standard. Moreover, in 

those States that have formulated groundwater quality standards to protect existing, reasonably 

foreseeable, or designated uses of groundwater, Congress certainly intended that SMCRA 

regulators respect and protect those uses no less effectively than they protect existing, reasonably 

foreseeable, or designated uses specified pursuant to the Clean Water Act. See 30 U.S.C. § 

1255(b) (preserving the effect of any state law "which provides for more stringent land use and 

environmental controls ... than do the provisions of this Act). Thus, where a State has adopted 

5 
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Insert offset folio 176 here 98945.176

groundwater quality standards, it would be arbitrary, capricious, and otherwise inconsistent with 

law for OSM to allow the regulatory authority to substitute the "best professional judgment" of 

its employees on that subject. Only where there are no applicable statutory or regulatory 

groundwater quality standards should OSM authorize SMCRA regulatory authorities to 

formulate material damage criteria for groundwater based on their "best professional judgment." 

The prohibition of stream dewatering should be included in the text of the rule itself. 

OSM should specifically state in section 773.15(e)(2) of the final rule that a regulatory authority 

cannot approve a pennit application unless it determines that the proposed operation is not 

predicted to cause subsidence that would result in the dewatering of any perennial or intermittent 

stream. OSM should further clarify that, in making this determination, the regulatory authority 

must consider whether previous similar operations have resulted in dewatering and, if they have, 

must provide a scientific basis for concluding that the new operation will not result in 

dewatering. Similarly, the requirement to include applicable state groundwater quality standards 

among the material damage criteria for each proposed coal mine should be included in the text of 

the rule. 

In addition, if subsidence occurs within the permit and adjacent areas, the proposed rule 

does not require sufficient corrective actions. Section 817.34 only requires permittees to 

"minimize disturbance" to those areas (which could allow dewatering), to "protect streams" in 

accordance with sections 784.28 and 817.57 (neither of which require actions to restore stream 

flow or protect the biological integrity of the dewatered stream), and to comply with the 

hydrologic reclamation plan in section 784.22 (which does not require any specific corrective 

action for dewatering). Furthermore, the performance standards related to subsidence in section 

817.121 only requires repairs to land, man-made structures, and water supplies, not restoration of 

the dewatered stream. OSMRE should strengthen section 817.121 to provide that, wherever 

possible, permittees must restore a dewatered stream in compliance with section 817.52(b )(2), 

which requires restoration of both stream form and biological function, and the regulatory 

authority must increase the bond pursuant to section 817.121 (g) to cover the cost of the 

restoration. In addition, OSMRE should state that Phase III bond release under section 800.42(d) 

cannot occur until the ecological function of a dewatered stream is restored under section 817.57. 

Finally, in the past, OSMRE has allowed permittees to delay restoration of de watered 

streams for years in the hope that the condition is temporary and will naturally reverse itself with 

or without human assistance. OSMRE should strengthen section 817.121 to put a maximum time 

limit on restoring a dewatered stream to its pre-mining condition. 

Recommended change to definition of "material damage to the hydrologic balance outside 

the permit area" in§ 701.5: Add a new subparagraph (c) that provides: (c) Exceed applicable 

State or Federal water quality standards or criteria, including applicable State groundwater 

quality standards. 

Recommended change to§ 773.15(e)(2): Determine that the proposed operation has been 

designed to prevent material damage to the hydrologic balance outside the permit area, and that 

that proposed operation is not predicted to cause subsidence that would result in the dewatering 

of any perennial or intermittent stream; 

6 
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Insert offset folio 177 here 98945.177

Recommended change to 780.21(b)(8)(i)(B) and 784.21(b)(8)(i)(B): Result in an exceedance 

of applicable state or federal water quality standards in any stream or groundwater located 

outside the permit area. 

Recommended change to§ 817.121(c): Repair of damage to swjace land~ and waters. To the 

extent technologically and economically feasible, you must correct any material damage 

resulting from subsidence caused (i) to surface lands by restoring the land to a condition capable 

of maintaining the value and reasonably foreseeable uses that it was capable of supporting before 

subsidence damage occurred and (ii) to surface waters by restoring the waters to the condition 

required by § 817.52(b )(2). If a permittee has attempted but failed to repair surface lands or 

waters for a period to two years without achieving complete success, the regulatory authority 

shall deem repair of the damage to be technologically and economically infeasible and shall 

require the permittee to perform appropriate mitigation work. 

Recommended change to§ 817.121(g): Adjustment of bond amount for subsidence damage. 

(I) When subsidence-related material damage to land, structures, facilities, or surface waters 

protected under paragraphs (c) through (e) of this section occurs, or when contamination, 

diminution, or interruption to a water supply protected under§ 817.40 of this part occurs, the 

regulatory authority must require the permittee to post additional performance bond until the 

repair, compensation, replacement, or restoration is completed. 

(2) The amount of additional bond required under paragraph (g)(l) of this section must 

equal the- * * * 

(iv) Estimated cost to restore the waters to the condition required by § 817.52(b)(2). 

E. Section 816.57(b)(2)-Restoration of Stream Functions 

We support OSMRE's proposal in section 816.57(b)(2) to require permittees to restore 

both the hydrological form and ecological function of disturbed stream segments. This would be 

consistent with the § 404(b )( l) Guidelines under the CW A, which also require consideration of 

both structure and function. 40 C.F.R. § 230. ll(e). More specifically, we support the proposal in 

section 8!6.57(b )(2)(ii)(B) and (C) that would require the restored stream to have a biological 

condition that is adequate to support the uses that existed prior to mining, as measured by a 

multimetric bioassessment protocol and a stream condition index score sufficient to fully support 

existing and designated uses. The bioassessment protocol should use a genus-level assessment of 

aquatic taxa, like the Genus Level Index of Most Probable Stream Status (GLIMPSS) instead of 

a family-level assessment like the West Virginia Stream Condition Index (WVSCI), because a 

genus-level assessment can better track environmental stress and do so in different seasons and 

bioregions. A family-level assessment is less accurate and less sensitive because a family of taxa 

could be present due to the persistence of an individual belonging to only one of its many genera 

that are common in the region impacted by mining. See Pond et al. (2013). 

For example, in West Virginia's mountainous regions, this would mean that if the premining stream had a WVSCI score of 68 or above and a GLIMPSS score of 53 or above, then the 

post-mining stream must be at or above those same thresholds, which are the minimum scores a 

stream must achieve to support a non-impaired macroinvertebrate assemblage under the WVSCI 

and GLIMPSS protocols. A similar approach is already being used by EPA and the U.S. Army 

Corps of Engineers in some recent permits. The§ 404 permit for the Loadout, LLC's Nellis 

7 
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Insert offset folio 178 here 98945.178

Surface Mine requires post-mining mitigation stream channels to meet a WVSCI score of 68. See 

Ex. C, Reevaluating Mitigation for Dave Fork and Wilderness Fork, and Response to Plaintiffs 

Comments, Especially Those Concerning Stream Creation at 22, Ohio Valley Environmental 

Coalition v. U.S Army Cmps of Engineers Civ. No. 3:08-00979, Doc. 290-1 (S.D. W.Va. 2013). 

Similarly, the October 29, 2012 WV/NPDES Permit No. WV1029690 for Consol of Kentucky's 

Buffalo Mountain Surface Mine contains a narrative permit condition providing that a WVSCl 

score of 68 is an "acceptable future biological condition" and that "[a] WVSCI score below 68 

shall be a violation of this permit until such time as a biological score from the comparable 

season (spring/summer) at the same station reaches acceptable future biological condition." Ex. 

D, Permit, p. 174. 

Despite our support for the principle that permittees must restore the form and function of 

streams, however, there is no scientific evidence that functional restoration is feasible as a 

practical matter for streams that are filled or mined-through, as explained in Part 2.C. below. 

F. Changes to Part 800---lmproved Bonding Provisions 

OSMRE proposes several important improvements to the bonding provisions in 30 

C.F.R. Part 800. We support OSMRE's proposal to require financial assurances for treatment of 

long-term pollution discharges in § 800.18 . 80 Fed. Reg. at 44,532. OSMRE makes clear that 

these financial assurances should not be any form of bond, but should consist of trust funds or 

annuities held by the regulator or accessible to the regulator. !d. at 44,533. 

We also support OSMRE's proposal to make the following changes to bonding 

provisions: 

• Replacing § 800.11 (e) with § 800. 9, which would prohibit the use of alternative 

bonding schemes for long-term treatment or for restoration of the ecological function 

of a stream. !d at 44,535. 

• Revising § 800.14(a) to ensure that regulators consider the biological conditions of 

perennial and intermittent streams when setting bond amounts. ld at 44,536. 

• Revising § 800.40, which pertains to bond release. !d. at 44,539. This would require 

regulators to consider monitoring of groundwater and surface water, including 

biological parameters, when deciding whether to release any part of a reclamation 

bond. 

• Adding § 800.42, specifying criteria for bond release. !d. at 44,539-40. This would 

prohibit a regulator from releasing a bond if monitoring reveals "adverse trends" that 

may result in material damage; prohibit bond release until long-term treatment of 

pollution is financed; require consideration of degree of difficulty of completing 

remaining reclamation; specify that the "backfilling and regrading" required under 

Phase l bonding includes restoration of the form of perennial and intermittent 

streams; specifY that Phase I bond release must ensure that sufficient reclamation 

bond funds remain to pay for costs of restoring stream function; and clarify that the 

statutory language allowing release of 60% of a bond with Phase l bond release does 

not stand alone, and that a regulator must ensure that sufficient bonding remains to 

cover full costs of remaining reclamation, including restoring ecological function in 

streams. Id at 44,540-41. 

8 
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Insert offset folio 179 here 98945.179

H. OSMRE SHOULD RETAIN THE 1983 RULE PROVISION THAT CREATES A 

PROTECTIVE STREAM BUFFER ZONE AND ENFORCE THE SMCRA 

PROVISION THAT PROHIBITS DAMAGE TO NATURAL WATERCOURSES. 

OSMRE proposes to eliminate or weaken two provisions that protect stream channels 

from direct damage. The first is a provision of the current regulations (adopted in 1983) that 

prohibits mining disturbances within a buffer zone that extends 100 feet on either side of any 

intermittent or perennial stream, if the disturbance will adversely affect the environmental 

resources of the stream. 30 C.F.R. § 816.57(a)(l) (1983). OSMRE's proposal would allow 

mining disturbances within the buffer zone regardless of the extent of direct damage to the 

stream's environmental resources. See proposed 30 C.F.R. § 816.57 & 816.71. Streams that are 

mined through must be "restored" under the proposal, but streams buried under valley fills need 

not be, regardless of how many miles of streams are buried. !d. 

The second stream-channel protection provision at issue is a statutory requirement that 

prohibits damage to "natural watercourses"-i.e., streams-by operations that receive a variance 

from the "approximate original contour" (AOC) requirement. 30 U.S.C. § 1265(c)(4)(D). Noting 

that the statutory term "no damage" is not further defined, DEIS at ES-14 & 2-9, OSMRE 

proposes to determine that the requirement of no damage to natural watercourses is satisfied if 

the proposed operation will not increase the water pollution leaving the permit area, worsen 

flooding outside the permit area, or harm water quantity outside the permit area in comparison to 

the same operation without the variance. 80 Fed. Reg. at 44,529/3. Thus, under the proposal, 

operations with AOC variances are permitted to bury and directly damage unlimited miles of 

natural watercourses so long as the damage to the watercourse does not alter downstream 

hydrology in these specified ways. In addition, operations with AOC variances are permitted to 

increase pollution, worsen flooding, and disrupt water quantity, so long as the damage is not 

worse than would result without the variance. 

In the final rule, OSMRE must change course and restore these regulatory and statutory 

stream-channel protections. OSMRE should also make clear that both requirements are 

performance standards directly enforceable by citizens. 

A. Coal Mining Causes Serious and Extensive Direct Damage to Streams. 

Coal mining operations cause serious and extensive direct damage to ecologically vital 

streams. Federal agencies have given varying estimates of the number of miles of streams buried 

by valley fills, but all of the estimates are more than 1000 miles. In 2005, EPA, the Corps and 

OSMRE estimated that 724 miles of streams were buried between 1985 and 2001. Ex. E, U.S. 

EPA, 2005 Final Programmatic Environmental Impact Statement on Mountaintop Mining/Valley 

Fills in Appalachia (PElS) at 4. In 2008, OSMRE estimated that 535 additional miles of streams 

were buried between 2001 and 2005. Ex. F, OSMRE, Final Environmental Impact Statement 

(HS), Excess Spoil Minimization, Stream Bz!tfer Zones (2008) at lV-145. In the 2015 DE IS for 

this rule, OSl'viRE estimates that 764.3 miles of streams were buried between 1984 and 2012, and 

an additional 279.5 miles of streams upstream from the valley fills were indirectly impacted by 

losing their ecological functions. DEIS at 4-51. In 2010, EPA estimated that surface coal mining 

operations have destroyed approximately 2000 miles of Central Appalachian streams by burying 

or mining through them. Ex. G, Press Release, EPA, EPA Makes Announcement on I\vo 

9 
224 


Insert offset folio 180 here 98945.180

Proposed West Virginia Mountaintop Coal Mines (Jan. 5, 20 10), 

http:/ /yosemite. epa.gov/ opa/admpress.nsf/0/8463 6183 A97CED2485 257 6A20069961 A. 3 

Each valley fill buries the streams below it, permanently destroying their chemical, 

physical, and biological integrity. 2015 DEIS at 4-91 ("the streams are eliminated along with the 

biota that once inhabited them (U.S. EPA et al., 2003; Pond et al., 2008; Palmer et al., 2010)."). 

"The uncontested evidence demonstrates that the burial of substantial portions of intermittent or 

perennial [streams] causes adverse environmental effects to the filled stream segments, as such 

fills eliminate all aquatic life that inhabited those segments." Ex. G, Brief for the Federal 

Appellants at 25, Braggv. W Va. Coal Ass 'n, 248 F.3d 275, No. 99-2683 (4th Cir. 2001). As 

explained by Judge Charles Haden II in granting an injunction against the Spruce No. 1 Mine in 

1999: 

When valley fills are permitted in intermittent and perennial streams, they destroy those 

stream segments. The normal flow and gradient of the stream is now buried under 

millions of cubic yards of excess spoil waste material, an extremely adverse effect. If 

there are fish, they cannot migrate. If there is any life form that cannot acclimate to life 

deep in a rubble pile, it is eliminated. No effect on related environmental values is more 

adverse than obliteration. Under a valley fill, the water quality of the stream becomes 

zero. Because there is no stream, there is no water quality4 

The effects of mining through a stream are equally devastating. Obliterating streams "adversely 

impact[ s] wildlife ... that depend on headwater streams for all or part of their life cycles," Ex. I, 

EPA, Spruce No. I Mine Final Determination 47 (2011). "[W]hen streams are mined through, a 

majority of the biota is lost (OSMRE, 2008; Pond et al., 2008)." 2015 DEIS at 4-91. 

Because of this harm from direct burial of streams, the U.S. Army Corps of Engineers 

(ACE) decided in 2012 to prohibit the use of Nationwide Permit 21 for the construction of valley 

fills, and to impose a 300-foot per-project limit on stream disturbance associated with surface 

coal mining operations. Final Notice, 77 Fed. Reg. 10,184, 10,204, 10,274 (Feb. 21, 2012). The 

Corps found that those limits were "necessary to constrain the adverse effects to the aquatic 

environment." !d at 10,204. "The 300 linear foot limit for losses of stream bed is generally 

necessary to ensure that [nationwide permit]21 authorizes only those activities that result in 

minimal adverse effects on the aquatic environment." !d. at 10,211. 

3 OSM has apparently created new estimates of total direct stream impacts under the Stream 

Protection Rule and its alternatives, including the no action alternative. The DEIS includes tables 

that detail several of the results of this analysis, including stream miles preserved and improved 

under each alternative. 2015 DEIS at 4-70 to 4-74. Yet the DEIS fails to disclose the estimates of 

total direct stream damage that presumably underlie this analysis. Both NEPA and basic 

transparency require OSM to disclose this information to the public through the environmental 

impact statement. 

4 Bragg v. Robertson, 72 F. Supp. 2d 642,661-62 (S.D. W.Va. 1999), rev'dsub. nom. Bragg v. 

W.Va. Coal Ass'n, 248 F.3d 275 (4th Cir. 2001) (vacating injunction issued against the state on 

ll th Amendment immunity grounds but affirming district court's entry of consent decree). 

10 
225 


Insert offset folio 181 here 98945.181

In contrast, OSMRE' s proposed rule imposes no limit whatsoever on the length of stream 

that can be buried or mined through. As we show below, that omission is directly inconsistent 

with the 1983 butTer zone rule and with 30 U.S.C. § 1265(c)(4)(D) 

B. OSMRE Has Long Recognized the Importance of Protecting Stream 

Channels from Direct Disturbance. 

The regulatory regime that OSMRE's proposed Stream Protection Rule will displace 

includes strong protection for stream channels. The current version of 30 C.P.R. § 816.57(a)(l) 

provides: 

No land within 100 feet of a perennial stream or an intermittent stream shall be disturbed 

by surface mining activities, unless the regulatory authority specifically authorizes 

surface mining activities closer to, or through, such a stream. The regulatory authority 

may authorize such activities only upon finding that-

(I) Surface mining activities will 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; 

As OSMRE has previously recognized, the current regulation, "[b ]y its plain terms, ... protects 

particular stream segments and does not allow mining activities, such as valley fills, in 

intermittent or perennial streams unless there is a finding that the activity will cause no adverse 

environmental effect in the affected stream segment" Ex. H, Brief for the Federal Appellants at 

41, Bragg v. W. Va. Coal Ass 'n, 248 F.3d 275 (4th Cir. 2001). 

OSMRE first adopted restrictions on mining within 100 feet of streams in 1977, stating 

that the regulation's main objective was to "protect[] stream channels." 43 Fed. Reg. 41,662, 

41,752/2 (Sept 18, 1978). The Department explained that the regulation prohibited direct 

impacts to streams from mining activities, stating, "[i]t should be noted that under the [buffer 

regulation], an operator could not mine through a stream unless it had been diverted around the 

area of disturbance." 43 Fed. Reg. 41,752/3. The Department stated that it expected to secure "a 

national beneficial impact on water resources by limiting coal mining to only operations which 

can be conducted in compliance with environmental protection standards[.]" Ex. J, OSMRE, 

Final Environmental Impact Statement (FEIS) at AIII-3 (1979). 

OSMRE adopted the current stream buffer zone regulation in 1983, confirming that 

"buffer zones are used to protect streams . . from gross disturbance of stream channels caused 

by surface coal mining and reclamation operations." 48 Fed. Reg. 30,312, 30,312 (June 30, 

1983); see also id at 30,313 ("[T]he primary objective" of the 1983 buffer regulation is "to 

provide protection for the hydrologic balance and related environmental values of perennial and 

intermittent streams."). OSMRE inserted the strong language restricting the discretion of the 

regulatory authority to authorize mining activity within the butTer at the specific request of a 

coalition of environmental groups. See id.. at 30,315-16 (extensive discussion of waiver 

language, including reasons for rejecting weaker formulations); Ex. K, Supplement to Final 

Environmental Impact Statement (1983) Volume I at VI-42 (explaining that OSMRE was 

"includ[ing] additional restrictions on the stream buffer zone exemption" in response to 

11 
226 


Insert offset folio 182 here 98945.182

comments of National Wildlife Federation et al.); Ex. L, ld Volume Il at 372 (comments of 

National Wildlife Federation et al.). Reasoning that "[s]treams are ... often valuable fish and 

biological habitats," OSMRE crafted the 1983 regulation to confer strong protection on what it 

viewed as the most ecologically valuable streams-perennial and intermittent streams. 48 Fed. 

Reg at 30,312-313 (June 30, 1983) 

In 2001, the United States submitted a brief to the Fourth Circuit confirming yet again 

that 30 C.F.R. § 816.57(a)(l) confers strong protection on stream channels. In that brief, which 

OSMRE joined, the United States confirmed that "valley fills that disturb intermittent or 

perennial streams may be approved only if there is a finding that activity will not adversely affect 

the environmental resources of the filled stream segment." Ex. H, Brief for the Federal 

Appellants at 41, (emphasis omitted). The brief explained: 

the burial of substantial portions of intermittent or perennial streams in valley fills causes 

adverse environmental impact in the filled stream segments and therefore cannot be 

authorized consistent with the buffer zone rule. The uncontested evidence demonstrates 

that the burial of substantial portions of intermittent or perennial [streams] causes adverse 

environmental effects to the filled stream segments, as such fills eliminate all aquatic life 

that inhabited those segments. 

I d. at 25. 

C. OSMRE's Reliance on Stream Re-Creation and Restoration to Mitigate 

Stream Loss Has No Scientific Basis. 

OSMRE claims that the Stream Protection Rule will reduce direct destruction of stream 

channels, despite the relaxation of existing stream-channel protections, based primarily on the 

requirement that operators restore stream channels that are mined through. 80 Fed. Reg. 44,436-

0l, 44,440. 5 But this claim rests on the unsubstantiated assumption that permittees can restore 

the hydrological form and ecological function of mined-through stream segments using available 

and proven techniques of stream restoration and re-creation. 80 Fed. Reg. at 44,440. OSMRE 

cites studies from southern Illinois purporting to show that this is "technologically feasible and 

attainable." Jd However, the Illinois studies involved "temporary diversion and eventually 

relocation (restoration) of perennial streams," not attempted restoration of streams that have been 

completely destroyed by mining-through or valley fills. OSMRE cites no studies from 

5 OSMRE also relies on a requirement to "minimize" direct harm to streams, but that 

requirement is so vague that it may be effectively unenforceable. In any event, minimizing direct 

harm to streams is already required by statute. 30 US. C.§ 1265(b)(IO); id. § 1265(b)(24). 6 Ex. M, Nawrot, J., W. G. O'Leary, and P. Malone. Illinois Stream Restoration-Opportunities 

for Habitat Enhancement: Policy, Principles, and Practices, in Proc. of the 2009 Geomorphic 

Reclamation and Nat. Stream Design at Coal Mines: A Technical Interactive Forum, !83-195 

(April 28-30 2009), 

http://www.osmre.gov/resources/library/proceedings/2009GeomorphicReclamationProceedings. 

pdf. As the proposed rule acknowledges, the second cited study involved "stream segments [that] 

were relocated in the 1980s to facilitate mining and then were restored in their approximate 

premining location." 80 Fed. Reg. at 44,440. 

12 
227 


Insert offset folio 183 here 98945.183

Appalachia on this issue, and the one study that is available is to the contrary. A recent peerreviewed study synthesized information from 434 stream mitigation projects from 117 permits 

for surface mining in Appalachia. Ex. N, Palmer & Hondula, Restoration as Mitigation: Analysis 

cifStream MitigationjiJr Coal Mining Impacts in Southern Appalachia, Environ. Sci. Techno!. 

48: 10,552-60 (2014). That study analyzed both stream restoration and stream creation projects 

and concluded that "the data show that mitigation efforts being implemented in southern 

Appalachia for coal mining are not meeting the objectives of the Clean Water Act to replace lost 

or degraded streams ecosystems and their functions." !d at 10,552. In fact, "97% of the projects 

reported suboptimal or marginal habitat even after 5 years of monitoring." !d. 

EPA's conclusions on this question are consistent with the findings of Palmer & Hondula 

and undercut OSMRE's assumption that stream restoration and reconstruction will be successful: 

Scientific research has demonstrated that replacement of streams is among the most 

difficult and frequently unsuccessful forms of mitigation. Even if stream structure and 

hydrology can be replaced, it is not clear that replacing structure and hydrology will 

result in true replacement of functions, especially the native aquatic community and 

headwater functions. 

Ex. I, EPA, Spruce No. I Mine Final Determination (2011) (internal citation omitted). 

OSMRE also assumes that constructing new stream channels is just as feasible as 

restoring existing stream channels. 80 Fed. Reg. at 44,440/2-3. OSMRE relies on a single vague 

sentence in a 2012 EPA report that "restoration of high-gradient, very small intermittent and 

ephemeral channels as part of stream mitigation projects is common in coalmining regions." ld, 

n. 18 (citing Hannan et a!., A Function-Based Frameworkfor Stream Assessment and 

Restoration Projects, EPA, May 2012, at 230). That study provides no support or citation for that 

statement, nor was the study designed to examine the success or effectiveness of stream 

restoration. The 2014 Palmer study shows that while these attempts at stream restoration may be 

common, they are often unsuccessful. OSMRE then extrapolates from that one vague sentence 

about stream restoration and states that constructing new stream channels should be just as 

feasible, and cites Appendix B of that same study. 80 Fed. Reg. at 44,440, n. 19. However, 

Appendix B describes a completely hypothetical stream reconstruction scenario, with no 

reference to actual on-the-ground results. Ex. 0, Harman at 336-40. Thus, the one and only study 

cited by OSMRE provides no factual or scientific basis to support OSMRE's conclusion about 

the feasibility of new stream creation. 

Mingo Logan's Mountain Laurel Mining Complex in West Virginia is a recent example 

of the failure of stream creation. Mingo Logan was required to construct two temporary stream 

channels to offset stream losses from filling Seng Creek to build a coal preparation plant. Neither 

constructed channel will hold water, and Mingo Logan admitted in its 2014 annual monitoring 

report to the Corps that "[i]t is doubtful that the temporary mitigation in the clear water ditches 

as they currently exist will ever be able to meet the success criteria proposed in the approved 

Compensatory Mitigation Plan." Ex. P, Mingo Logan Coal Co., Annual Update and Status 

Report, p. 3 (Nov. 2014). 

13 
228 


Insert offset folio 184 here 98945.184

The current state of the science on stream creation is summarized in the 2014 Palmer 

study cited above: 

There have only been a few studies that include an assessment of the effectiveness of 

stream creation. One of these examined two projects in North Carolina (U.S.) and based 

success on whether or not projects met regulatory success criteria at the time of 

construction; both met regulatory requirements however authors were not able to evaluate 

ecological status with such a small sample size. Another study evaluated five creation 

projects on reclaimed mine land in [West Virginia] and concluded that using ecological 

standards, created streams on mine land do not mimic natural streams. A third study 

reported that created streams do not produce biological outcomes comparable to 

unimpacted reference streams. Similar conclusions of inadequacy have been reached for 

channels constructed in other geographical regions. Currently, there are no scientifically 

validated methods for constructing a stream in an area that did not formerly have one and 

the feasibility of doing this has been challenged by the scientific community and the 

Corps and EPA who discourage stream creation in the 2008 [Mitigation R]ule. 

Ex. N, Palmer at 10,556 (internal footnotes omitted). The 2008 Mitigation Rule states that: 

We recognize that the scientific literature regarding the issue of stream establishment and 

re-establishment is limited and that some past projects have had limited success 

(Bernhardt and others 2007). Accordingly, we have added a new paragraph at 33 CFR 

332.3(e)(3) [40 CFR 230.93(e)(3)] that specifically notes that there are some aquatic 

resources types that are difficult to replace and streams are included among these. It 

emphasizes the need to avoid and minimize impacts to these 'difficult-to-replace' 

resources and requires that any compensation be provided by in-kind preservation, 

rehabilitation, or enhancement to the extent practicable. 

73 Fed. Reg. 19,594, 19,596 (ApriliO, 2008). Thus, OSMRE's conclusions about stream 

restoration and stream creation are not supported by scientific research. 

OSMRE's failure to demonstrate the feasibility of restoring mined streams on the mine 

site or recreating mined streams elsewhere off the mine site means that the proposed Stream 

Protection Rule cannot achieve OSMRE's announced goal of preventing long-term 

environmental harm to streams. It is arbitrary and capricious for an agency to rely on speculative 

and unproven mitigation measures and to fail to provide any explanation or analysis showing 

why those measures will be effective. OVEC v. Hurst, 604 F. Supp. 2d 860, 894 (S D.W.Va. 

2009). ("'am left with nothing but the Corps' unsupported belief in that conclusion .... [T]he 

Corps' statements are 'little more than its own promise to obey the law'") (internal citations 

omitted). 

In the absence of proven remedies to prevent or mitigate direct stream damage, the proper 

course is to prevent stream destruction in the first place. The first way to do so is to preserve and 

strengthen existing stream-channel protections, as described in part II. D. below. In addition, 

OSMRE should tighten the requirements of the proposed rule with respect to restoration of 

stream form and function so that operators are not authorized to damage streams without solid 

evidence that restoration is truly feasible. 

14 
229 


Insert offset folio 185 here 98945.185

The provisions in the proposed rule governing restoration of stream form and function are 

far too vague and permissive. OSM must specify in§ 816.57(b )(2)(i) that a restored stream must 

have form that is not just "comparable" but "equivalent" to the form of the pre-mining stream. 

OSM should delete the prefatory language in 816.57(b) about what the operator is not required to 

achieve. Such non-operative language is more appropriately confined to the rule preamble. 

Attempting to explain in the rule itself what is not required risks conflict with the affirmative 

requirements of the subparagraph and has serious potential to generate confusion for regulators, 

operators, and the public. OSM must also specify minimum requirements for restoration of 

stream function in§ 816.57(b)(2)(ii)(A). In doing so, OSMRE can draw on the extensive work 

already done by EPA and the Army Corps of Engineers in developing their joint regulations 

governing compensatory mitigation for losses of aquatic resources, including streams. Those 

regulations caution that "the scientific literature regarding the issue of stream establishment and 

re-establishment is limited," that "some past projects have had limited success"-an 

understatement, see supra part 1LC.-, and that streams are "difficult to replace." 73 Fed. Reg. 

19,594, 19,596/3 (April 10, 2008). They too require restoration of ecological function, and they 

define functions as "the physical, chemical, and biological processes that occur in ecosystems." 

33 C.F.R § 332.2. OSMRE should define restoration of ecological function to include the 

restoration of the physical, chemical, and biological functions of the pre-mining stream. 

It is also imperative that OSMRE clarify in § 780.28 that the regulatory authority cannot 

issue a permit in the first place without making a well-supported determination that these form 

and function restoration requirements will met To state the obvious, the detennination that 

stream damage is remediable should be made before the damage commences. 

Recommended change to§ 816.57(b)(2): 

(2) Restoration of form and function. You must restore the fonn and ecological function of the 

stream segment as expeditiously as practicable. You must do so either as part of the construction 

of a permanent stream-channel diversion or as part of the construction of a restored stream 

channel when the area in which the stream was located before mining is no longer needed for 

surface mining activities. 

(i) Form. A restored stream channel or a stream-channel diversion Heed Hot enaetly reJ9lieate tile 

ellaHHel moFJ9llology tllat eJdsted before miHiHg, bttt must, except as provided in paragraph (b)(4) 

of this section, it-rffitst have a channel morphology equivalent to the premining form of the 

affected stream segment in terms of baseline stream pattern, profile, and dimensions, including 

channel slope, sinuosity, water depth, bankfull depth, bankfull width, width of the flood-prone 

area, and dominant in-stream substrate. 

(ii) Function. (A) A stream flowing through a restored stream channel or a stream-channel 

diversion must have equivalent water flow and water chemistry to the pre-mining stream, 

perform the same physical, chemical, and biological functions as the pre-mining stream, 

and meet the functional restoration criteria established by the regulatory authority under§ 

780.28(e)(l) of this chapter. 

(B) The restored stream need Hot have J9reeisely the same biologieal eoHditioH or biota as the 

stream segmeHt did before miniHg, bttt the biological condition of the restored stream must be 

adequate to support the uses of that stream segment that existed before mining and it must not 

preclude attainment of the designated uses of that stream segment under section 101(a) or 303(c) 

of the Clean Water Act before mining. 

15 
230 


Insert offset folio 186 here 98945.186

(C) The biological condition of the restored stream must be determined using a protocol that 

meets the requirements of§ 780.19(e)(2) of this chapter. 

(D) Populations of organisms used to determine the biological condition must be self-sustaining 

within the restored stream segment. 

Recommended change to§ 780.28(c)(2)(iv): Incorporate the form and function restoration 

requirements of§ 816.57(b), as modified, into new subparagraphs C, D, and E: 

(iv) Demonstrate that you can restore the form and ecological function of the affected stream 

segment, as required by§ 816.57(b) of this chapter, using the techniques in the proposed 

reclamation plan. 

* * * 

(C) You must demonstrate that the restored stream channel or stream-channel diversion will have 

a channel morphology equivalent to the pre-mining form of the affected stream segment in 

terms of baseline stream pattern, profile, and dimensions, including channel slope, sinuosity, 

water depth, bankfull depth, bankfull width, width of the flood-prone area, and dominant instream substrate. 

(D) You must demonstrate that the restored stream channel or stream-channel diversion will 

have equivalent water flow and water chemistry to the pre-mining stream and be able to 

support the same physical, chemical, and biological processes characteristic of the premining stream. 

(E) You must demonstrate that the biological condition of the restored stream channel or streamchannel diversion will be adequate to support the uses of that stream segment that existed before 

mining and will not preclude attainment of the designated uses of that stream segment under 

section lOI(a) or 303(c) of the Clean Water Act before mining. The biological condition of the 

restored stream must be detennined using a protocol that meets the requirements of§ 

780.19( e )(2) of this chapter. Populations of organisms used to determine the biological condition 

must be self-sustaining within the restored stream segment. 

D. OSMRE's Failure to Protect Stream Channels Is Inconsistent with SMCRA. 

As noted above, the Stream Protection Rule should prohibit damage to ecologically 

valuable streams in the first place, not rely on mitigation and restoration practices that are 

ineffective. Yet OSMRE's proposal fails to preserve and strengthen existing stream protections. 

That failure is inconsistent with SMCRA, unreasonable, and arbitrary. 

OSMRE's rejection of stronger stream channel protections is unlawful and arbitrary, first, 

because it rests on an incorrect interpretation of SMCRA's purposes. OSMRE states it rejected 

stronger stream-channel protections because SMCRA requires that streams be sacrificed to the 

overriding goal of coal recovery. 2015 DEIS at ES-36 ("OSMRE determined that the impacts to 

coal production from this Alternative were so substantial that they ran counter to the mandate 

under SMCRA 102(f) to balance the need for energy with the protection of the environment."). 

In fact, SMCRA does not require OSMRE to maximize coal production at all costs, 

including the wholesale destruction of ecologically valuable streams. In enacting SMCRA, 

Congress recognized that surface mining operations were "destroying fish and wildlife habitats," 

"polluting the water," and "counteracting government programs to conserve soil, water, and 

other natural resources." 30 U.S.C. § 120l(c). Congress declared its intention "to protect society 

16 
231 


Insert offset folio 187 here 98945.187

and the environment from the adverse effects of surface coal mining" and "assure that surface 

coal mining operations are so conducted as to protect the environment." ld § 1201(k). These 

purposes plainly encompass the protection of stream channels from destruction or burial under 

mine waste. See 20 l5 DE IS at 1-11 ("Congress identified stream protection as a fundamental 

purpose of SMCRA"). 

Furthermore, although as OSMRE notes, Congress declared its intention to "strike a 

balance" between protection of the environment and assuring the coal supply essential to 

meeting the nation's energy needs, 30 U.S.C. § 1202(f), OSMRE has not shown-or even 

attempted to show-that strong stream protections would restrict coal production to an extent 

that would interfere with national energy needs. OSMRE admits that it did not even analyze the 

effects of an alternative with strong stream protections, and as a result OSMRE offers no 

estimate of its effect on coal production-apart from the vague claim that the effect would be 

"significant"-or any analysis of the effect on coal production in comparison to national energy 

needs. ES-36. 

Moreover, U.S. and international coal demand is experiencing dramatic structural 

decline, driven primarily by increased competition from natural gas and renewables and growing 

regulatory restrictions on coal burning. "[R]apid development of non-fossil fuel resources is 

occurring as much of the existing power generation fleet in the U.S. is aging and in need of 

modernization and replacement'' 80 Fed. Reg. at 64,662, 64,694. Future energy needs can and 

should be met with increased use of renewable energy, including wind, solar, and geothermaL 

Indeed, it is the policy of this administration to "supply[] the reliable, afl'ordable power needed 

for economic growth" through increased use of"abundant clean energy solutions." Ex. Q, 

Executive Office of the President, lhe President's Climate Action Plan, 6 (June 2013), 

https: //www. whitehouse. gov I sites/ d ef au! t/fil es/image/presi d ent2 7 sclim ateacti onpl an. pdf The 

nation's energy needs demonstrably do not justify the destruction of streams to access more coaL 

Strong stream-channel protections are fully consistent with other provisions of SMCRA 

The Act makes clear that its performance standards are "minimum" standards, 30 US.C. § 

1265(b ), and expressly authorizes the Department to promulgate "other requirements" and 

"prescribe" "other actions." Jd § 1265(a) & (b)(10)(G). OSMRE correctly recognizes that 

Section 1265(b )(24) applies to disposal of excess spoil and requires mining operations to comply 

with the environmental protection provisions of SMCRA, including the requirement to minimize 

environmental harm to streams. 80 Fed. Reg. at 44,519-20. A requirement that prohibited the 

filling of perennial or intermittent streams would therefore be consistent with SMCRA. 

Second, OSMRE's proposed rule is also inconsistent with 30 U.S.C. § 1265(c)(4)(D). 

That provision states that SMCRA performance standards applicable to operations that obtain 

approximate-original-contour (AOC) variances must, at a minimum, "require that ... no damage 

will be done to natural watercourses." OSMRE proposes, however, to adopt proposed 30 C.F.R. 

§ 785 .14(b )(9), which would allow these operations-often referred to as true mountaintop 

removal (MTR) mines-to damage streams, so long as the damage to the stream does not 

increase water pollution outside the permit area, worsen flooding outside the permit area, or 

disrupt water quantity outside the permit area to a greater degree than would result without the 

vanance. 

17 
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Insert offset folio 188 here 98945.188

Proposed 30 C.F.R. § 785.l4(b)(9) violates the plain language of30 U.S.C. § 

1265(c)(4)(D) because it would allow damage to natural watercourses. The proposed regulation 

would allow MTR mines to destroy miles of natural streams within the permit area, for example, 

by burying them under hundreds of feet of excess spoil or mining through them up to access a 

coal seam below, so long as the regulatory authority determined that the destruction of the 

streams will not produce specified downstream consequences (or even if the destruction of the 

streams will cause the specified downstream consequences, so long as the downstream 

consequences are not worse than would result without an AOC variance). Because the 

destruction of streams within the permit area plainly constitutes "damage" to "natural 

watercourses," this approach is contrary to the statute. See Lands tar Express Am .. Inc. v. Fed. 

Mar. Comm 'n, 569 F.3d 493, 500 (D.C. Cir. 2009) ("the agency cannot rewrite a statute"); 

I.eocal v. Ashcroft, 543 U.S. I, 12 (2004) ("we must give effect to every word of a statute 

wherever possible"). 

OSMRE attempts to justify this departure from Congress's clear command by asserting 

that SMCRA does not define either "damage" or "natural watercourses." 80 Fed. Reg. at 44,529. 

That is true but irrelevant. The fact that these terms are undefined does not give OSMRE free 

rein to adopt any regulation it likes. Rather, undefined terms in a statute must be given their 

ordinary meaning. Asgrow Seed Co. v. Winter boer, 513 U.S. 179, 187 (1995) (citing FDIC v. 

Meyer, 510 U.S. 471, 476 (1994)). The ordinary meaning of the language "no damage ... to 

natural watercourses" plainly encompasses the destruction of streams, regardless of whether the 

destruction of the stream has the specified effects on downstream water quantity and quality. 

OSMRE's proposed rule also violates 30 U.S.C. § 1265(c)(4)(D) by converting the 

requirement of"no damage . . to natural watercourses" from a performance standard into a 

mere "application and approval requirement[]." See 80 Fed. Reg. 44,636 (proposed 30 C.F.R. § 

785.14); id. at 44,579 ("We propose to move existing 30 CFR 824.ll(a)(9), which prohibits 

damage to natural watercourses below the lowest coal seam to be mined, to 30 CFR 785.14(b )(9) 

in revised form. We propose to do so because this requirement is really more of an operational 

design element (permitting requirement) than a performance standard."). This is incorrect. 

SMCRA includes the obligation not to damage natural watercourses among the "environmental 

protection performance standards" of30 U S.C.§ 1265. SMCRA further specifies that "[a]ny 

permit" for surface coal mining operations "shall require that such surface coal mining 

operations will meet all applicable performance standards of this chapter." ld. § !265(a). Section 

1265(c)(4)(D) itself confirms that the protection for natural watercourses is a performance 

standard. It provides that "the regulatory authority shall require that ... no damage will be done 

to natural watercourses." By articulating this requirement in terms of what the regulatory 

authority must require-not what the regulatory authority must determine, or what the applicant 

must show-the statute makes clear that this requirement is a performance standard. 

The contrast with the preceding paragraph-paragraph 1265(c)(3)-provides further 

confirmation. That paragraph speaks in terms of the circumstances under which the regulatory 

authority may grant a permit with an AOC variance. Id. § 1265(c)(3) ("the reh>ulatory authority 

may grant a permit [with an AOC variance] where ... ").If the requirements of the subsequent 

paragraph-paragraph ( 4)-were intended as additional administrative determinations, there 

would be no reason for Congress to list them in a separate paragraph, rather than including them 

in paragraph 3. Thus, under SMCRA, the prohibition on damage to natural watercourses by an 

18 
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Insert offset folio 189 here 98945.189

operation with an AOC variance is not simply an "application requirement," but a performance 

standard that must be incorporated into the operator's permit, as OSMRE has consistently 

recognized before now. 

Proposed 30 C.F.R. § 785.14(b)(9) is also unreasonable and arbitrary. OSMRE has not 

reconciled the proposed regulation with the plain language of the statute, as it must. Se. Ala. 

Med C'tr. v. Sebelius, 572 F.3d 912, 920 (D.C. Cir. 2009) (agency must explain how its approach 

"comports with the governing statute"). 

Recommended change: Retain the 1983 stream buffer zone provision. 

Recommended change to§ 785.14(b)(9): Delete unlawful language as shown below: 

(9) You have demonstrated that the operation will not damage natural watercourses within the 

proposed permit and adjacent areas. You may meet this requirement by demonstrating that the 

flFOflOSed Ofleration will comflly v.ith all of the follm,ing requirements: 

(i) The flFOflosed operation '.vill not increase the amount or concentration of parameters of 

concern in discharges to ground'<\ater and surface water from the proflosed flermit area, v.hen 

compared to the discharges that would occur if the operation were designed to adhere to 

apflFOlfimate original contour restoration requirements. 

(ii) The proposed operation will not result in changes in the sizse or frequeacy of peak flows from 

the proflOsed fleFRlit area that would cause an increase in damage from flooding, when cOmflared 

to the impacts that would occur if the operation were designed to adhere to apprmdmate original 

contour restoration requirements. 

(iii) The total volume of flow from the proposed peFRlit area, during every season of the year, 

v. ill not vary in a,, ay that would ad>·ersely affect aH~' eJlisting or reasonably foreseeable use of 

surface water or grouHdvrater or any designated use of surface water under section 101 (a) or 

303(c) of the Clean Water Act. 

Recommended change: Add a new§ 816.58 that provides: 

§ 816.58 What additional performance standards apply to mountaintop removal mining 

operations? 

If you conduct or intend to conduct mountaintop removal mining, as that term is defined in § 

701.5 of this chapter, you, the permittee or operator, must ensure that 

(I) the toe of the lowest coal seam and the overburden associated with it are retained in place as 

a barrier to slides and erosion; 

(2) the reclaimed area is stable; 

(3) the resulting plateau or rolling contour drains inward from the outslopes except at specified 

points; and 

( 4) no damage will be done to natural watercourses. 

TTl. IN REJECTING A MORE PROTECTIVE ALTERNATIVE, OSMRE IGNORED 

RELEVANT AND IMPORTANT CON SID ERA TIONS AND VIOLATED NEPA. 

OSMRE states in the preamble and DEIS that it considered alternative stream protection 

requirements that would have provided greater protection to streams, and rejected them because 

they would interfere with coal production. In making this choice between alternatives, OSMRE 

19 
234 


Insert offset folio 190 here 98945.190

has overlooked relevant and important considerations that support adoption of a more protective 

alternative. Choosing a less protective alternative without fully considering its costs is arbitrary 

and capricious and violates the National Environmental Policy Act (NEPA). 

Federal administrative agencies must engage in reasoned decisionmaking. Allentown 

Mack Sales & Serv. Inc. v. NLRB, 522 U.S. 359, 374 (1998). "Not only must an agency's 

decreed result be within the scope of its lawful authority, but the process by which it reaches that 

result must be logical and rational." !d. "It follows that agency action is lawful only if it rests 'on 

a consideration of the relevant factors."' Michigan v. E-TA, 135 S. Ct. 2699, slip op. at 2706 

(June 29, 2015) (quoting Motor Vehicle A{fi-s. Assn. of United States, Inc. v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29,43 (1983)). When an agency's discretion under a statute is broad, as 

OSMRE's is here, the agency must give adequate attention to the costs associated with its 

choice, including harms "to human health or the environment." !d., slip op. 2707. 

NEPA requires federal agencies to consider "the environmental impact of' all "major 

Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332. 

NEPA regulations promulgated by the Council on Environmental Quality, which are entitled to 

"substantial deference" by courts, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 

356 (1989), require consideration of all "effects" of the federal action, whether direct, indirect, or 

cumulative. 40 C.P.R.§§ 1502.16, 1508.8. NEPA does not dictate substantive environmental 

results, but it does require that OSMRE "not act on incomplete information, only to regret its 

decision after it is too late to correct." See Sierra Club v. Slater, 120 F.3d 623, 630 (6th Cir. 

1997) (quoting Marsh v. Or. Natural Res. Council, 490 US. 360, 371 (1989)). 

A. OSMRE Failed to Consider that Coal Demand Is in Structural Decline. 

OSMRE states that it rejected more protective alternatives because their alleged negative 

impact on the nation's energy needs would be too great. 2015 DEIS at ES-36 ("OSMRE 

determined that the impacts to coal production from this Alternative were so substantial that they 

ran counter to the mandate under SMCRA 1 02(f) to balance the need for energy with the 

protection of the environment."). In making this determination, OSMRE failed to consider the 

fact that the nation's demand for coal is in sharp, sustained decline brought about by structural 

changes in the way energy markets are functioning. 

Reductions in coal production that would be associated with strong stream protections are 

a drop in the bucket compared to the large-scale, economy-wide transition away from coal that 

OSMRE admits is under way. Central Appalachian coal deliveries to U.S. power producers are 

down about 33 percent in the last five years, with utilities turning more to natural gas and 

cheaper coals, or closing units entirely7 Even without any action by OSMRE, OSMRE predicts 

"declines in surface coal production ... in nearly all coal regions between 2020 and 2040, with 

annual production falling from 721 million tons to 610 million tons over the time period." DEIS 

4-33. OSMRE predicts overall underground coal production to drop from 358 million tons to 306 

million tons over the same period. !d. In other words, market forces and other regulations are 

7 Ex. R, SNL, After brief uptick, domestic demand for Central App coal resumes slide, Data 

Dispatch (September 4, 2015). 

20 
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Insert offset folio 191 here 98945.191

predicted to reduce annual coal production by over 150 million tons per year. By contrast, the 

most environmentally protective alternative analyzed by OSMRE is projected to reduce annual 

coal production by only 3.2 million tons. DEIS at 4-42. 

The U.S. electric power generation sector, which "accounted for about 90 percent of U.S. 

coal production in 2012 and 2013," DEIS 4-33, is steadily transitioning away from coal. 

According to the Obama administration's marquee energy initiative-the recently finalized 

Clean Power Plan-"[i]t is evident that, in the recent past, coal-fired electricity generation has 

been reduced, and projected future trends are for continued reduction." 80 Fed. Reg. at 64,725. 

Coal consumption by the U.S. power generation sector has fallen by 21 percent since 2007,8 

while renewable energy has become cost-competitive with fossil-fuel generation9 and grown 

rapidly as a result. 80 Fed. Reg. 64,729. Clean air and climate policies, including the Clean 

Power Plan, will only accelerate this transition. "Nationwide, by 2030, [the Clean Power Plan] 

will achieve C02 emission reductions from the utility power sector of approximately 32 percent 

from C02 emission levels in 2005" and coal's share of generation capacity will drop from 39 

percent today to "about 27 percent." !d. at 64,665. In other words, the U.S. electric power 

generation sectors' need for coal is projected to drop by about one third by 2030. Yet OSMRE 

predicts a decline in overall U.S. coal production of only "15 percent (162 million tons)." DEIS 

at 4-31. The upshot is clear: unless operators reduce coal production to a far greater degree than 

OSMRE forecasts, the current coal glut will only worsen as the supply of coal continues to 

drastically outpace declining demand from the power generation sector. 

The dramatic decline in coal demand is a global trend. Seaborne thermal coal markets are 

oversupplied, demand has weakened globally for the second year in a row, and the trend is likely 

to continue. The most optimistic forecasts, which predict modest growth in demand of 1 to 2 

percent annually, depend on the dubious assumption that Indian and Chinese demand for thennal 

coal imports will show moderate growth in the medium term. 10 But China's recent equity market 

collapse and currency devaluation, and India's promotion of domestic coal production11 and 

growing embrace of renewables and efficiency, all suggest continued weak demand ahead. 12 The 

8 Ex. S, Jonathan Chait, The Sunniest Climate Change Story You've Ever Read, New York 

Magazine (Sept. 7, 2015), http:l/nymag.com/daily/intelligencer/2015/09/sunniest-climatechange-story-ever-read.html. 

9 See Lazard, Levelized Cost of Enerzy Analysis Version 8. 0 (Sept. 20 14), 

https://www.lazard.com/media/!777/levelized cost of energy - version 80.pdf 10 Ex. T, Tim Buckley, 1hermal Coal Hits a N~w Low.-Where Do~s the Market Go From Here?, 

Institute for Energy Economics and Financial Analysis (Sep. 8, 2015), http://ieefa.org/thermalcoal-hits-a-new-low-where-does-the-market-go-from-here/. 

11 Tim Buckley, India's Electricity-Sector Transjbrmation, Institute for Energy Economics and 

Financial Analysis (Aug. 10, 2015), http://ieefa.org/india-electricity-sector-transformation!. 12 Ex. U, Tim Buckley, In China's Turmoil, Further Declines for Coal, Institute for Enerf,>y 

Economics and Financial Analysis (Aug. 26, 20 15), http://ieefa.org/in-chinas-turmoil-furtherdeclines-for-coal/. 

21 
236 


Insert offset folio 192 here 98945.192

world price for thermal coal, as measured by the Newcastle 5,500 kcal/kg benchmark, 13 hit a new 

low in August 20!5-$US42/ton-and is down 20 percent in the year to date. While most U.S. 

producers simply are not competitive at these prices, Columbian and Russian producers can push 

their marginal cost of production down to the low $US30/ton. 14 The U.S. Energy Information 

Agency recently summarized the export picture for U.S. producers: "'Slower growth in world 

coal demand, lower international coal prices, and higher coal output in other coal-exporting 

countries have allied to a decline in U.S. coal exports.",t 5 

By failing to consider the dramatic declines in U.S. and global demand for coal, 

regulatory changes unrelated to the proposed rule that will only speed those declines, or the 

availability of ready alternatives (renewables, natural gas, and energy efficiency) to meet the 

nation's need for energy in the event that demand for coal did somehow exceed supply, OSMRE 

has "entirely failed to consider an important aspect of the problem" when making its choice 

between regulatory alternatives. State Farm, 463 US. at 43. OSMRE has also arbitrarily relied 

on the nation's energy needs to reject stream protections that would not compromise the nation's 

ability to meet its energy needs. 

B. OSMRE Failed to Consider that Coal Mining Is a Net Economic Drain on 

Appalachia. 

OSMRE rejected the most protective alternative analyzed-alternative 2-in part due to 

predicted "Major Adverse impacts on socioeconomic conditions including, in particular, 

employment and severance taxes." especially in Appalachia. DEIS at ES-39 to ES-40, 4-20. In 

doing so, OSMRE unlawfully and arbitrarily failed to consider the major economic costs that 

surface coal mining imposes on Appalachia. 

Surface coal mining costs the economy of Appalachia more than it provides. Claims 

about the economic benefits of coal mining-including OSMRE' s-ignore the expenditures used 

to subsidize coal consumption and cover costs that are externalized by the industry. For example, 

in Kentucky this includes an estimated 

$239 million to address the industry's impact on the coal haul road system as well as 

expenditures to regulate the environmental and health and safety impacts of coal, support 

coal worker training, conduct research and development for the coal industry, promote 

education about coal in the public schools and support the residents directly and 

13 Ex. V, The Newcastle benchmark is a daily forward-looking price assessment based on the 

"net calorific value (heating value) of the coal in kilocalories per kilogram'' Platts McGraw Hill 

Financial, FOB Newcastle 5,500 NAR Coal, (undated), http://www.platts.com/priceassessments/coal/newcastle-5500. 

14 Ex. W, Surya Kanegaonkar, Platts Analytics: Thermal coal stand5 as a leading indicator to 

equities, Platts McGraw Hill Financial (Aug. 25, 2015), http://www.platts.com/latestnews/coal/houston/platts-analytics-thermal-coal-stands-as-a-leading-21 019611 

15 US. Energy Information Administration, Short-Term Energy Outlook at 10 (September 9, 

2015), http://www.eia.gov/forecasts/steo/archives/sep 15.pdf. 

22 
237 


Insert offset folio 193 here 98945.193

indirectly employed by coal [and] $85 million in tax expenditures designed to subsidize 

the mining and burning of coal. 16 

As a result the coal mining industry has a negative net impact on Kentucky's economy: m just 

one year (FY 2006), the total net impact of the coal industry on the state's budget amounted to a 

net cost to the state of $115 million. 17 

A similar report for West Virginia estimated that the net cost of the coal industry to the 

West Virginia state budget for Fiscal Year 2009 was about $97.5 million. 18 For Virginia, the net 

cost to the state for Fiscal Year 2009 was about $21.9 million19 And in Tennessee, the net cost 

to the state budget for Fiscal Year 2009 was about $3 million20 This money spent propping up 

the coal mining industry represents a loss to the public interest in supporting public 

infrastructure, health, and education, and a lost opportunity to achieve greater economic 

diversification. 

Significantly, the above studies do not account for the costs of illness and death that may 

be attributable to pollution from coal mining. 21 

C. OSMRE Failed to Consider that Surface Coal Mining Is Associated with 

Serious and Widespread Public Health Problems in Appalachia. 

Overwhelming scientific evidence links the practice of surface coal mining with 

elevated rates of serious health problems-including cancer, kidney disease, birth 

defects, cardiovascular disease, and pulmonary disease-in the coal-producing regions of 

Appalachia, and overall mortality rates are about 20 percent higher than the national 

average22 Significant cmTelations persist even after statistical corrections are made for 

age, smoking, alcohol consumption, obesity, poverty, education, availability of doctors, 

16 Ex. X, Melissa Fry Konty and Jason Bailey, The Impact ()[Coal on the Kentucky State Budget 

at 2, Mountain Association for Community Economic Development (June 25, 2009). 17 Ex. X, !d. at 1. 18 Ex. Y, Rory Mcilmoil et a!., Coal and Renewah/es in Central Appalachia: The Impact of Coal 

on the West Virginia State Budget at xi, Downstream Strategies and West Virginia Center on 

Budget and Policy (June 22, 2010) 19 Ex. Z, Rory Mcilmoil et al., lhe Impact of Coal on the Virginia State Budget at ix, 

Downstream Strategies (Dec. 12, 2012). 20 Ex. AA, Rory Mcilmoil et al., The Impact ()[Coal on the Tennessee State Budget at xi, 

Downstream Strategies and West Virginia Center on Budget and Policy (June 22, 2010). 21 See, e.g. Ex. X, The Impact of Coal on the Kentucky State Budget at 2 ("We do not include the 

many externalized costs imposed by coal including health care, lost productivity resulting from 

injury and health impacts, water treatment from siltation caused by surface mining, water 

infrastructure to replace damaged wells, limited development potential due to poor air quality, 

and social spending associated with declines in coal employment and related economic hardships 

of coalfield communities."). 22 See Ex. BB, Michael Hendryx, Summaries of articles showing public health consequences of 

Appalachian coal mining, p. 2 (Aug. 2012). 

23 
238 


Insert offset folio 194 here 98945.194

and other risk factors. Those correlations hold not only for men, who experience most onthe-job exposures, but for women and children as well. 

Within Appalachia, the most significant adverse health impacts are concentrated 

in the central portion of the region. The [Appalachian Regional Commission] report on 

disparities in health status and access to health care concluded that "[t]here is a 

discernable [sic] pattern oflarge clusters of high death rate counties in Central 

Appalachia." 23 

"Coal mining areas, however, show elevated age-adjusted mortality both before 

and after adjustment for covariates .... Age-adjusted mortality rates for Appalachian coal 

mining areas lag about 24 years behind national rates outside Appalachia."24 "After 

adjustment for all covariates, Appalachian coal mining areas were characterized by 1,607 

excess annual deaths over the period 1999-2004. Adjusted mortality rates increase with 

increasing coal production from I to 7 million tons."25 Indeed, "[c]ounties in Appalachia 

where coal mining is heaviest had significantly higher age-adjusted mortality compared 

to other Appalachian counties and to other areas of the country."26 Another study found 

that "hospitalizations for [chronic obstructive pulmonary disease] and hypertension are 

significantly elevated as a function of Appalachian coal production at the county level. 

The risk increases significantly as the volume of coal mining rises.'m 

OSMRE recently acknowledged the weighti, scientific evidence that surface coal 

mining is causing disease and death in Appalachia. 8 In light of that acknowledgment, 

there is no justification for OSMRE to fail to consider the public health consequences of 

its decision. Likewise, EPA's final action on the Spruce No. I Mine cited nine studies 

linking mountaintop removal mining and public health impacts. In its final decision EPA 

acknowledged that "[a] growing body of research suggests that health disparities are not 

uniformly distributed across the Appalachian region, but instead are concentrated in areas 

where surface coal mining activity takes place (Hendryx et a!. 2007, 2008, Hendryx 

2008, Hitt and Hendryx 2010, Hendryx and Zullig 2009)."29 EPA's 2011 Guidance cited 

23 Ex. CC, J.A. Halverson eta!., An Analysis (if Disparities in Health Status and Access to Health 

Care in the Appalachian Region at p. xxi, executive summary of report prepared for the 

Appalachian Regional Commission, Office of Social Environment and Health 

Research/Prevention Research Center (Nov. 2004). 24 Ex. DD, 1 Michael Hendryx, Mortality Rates in Appalachian Coal Mining Counties: 24 Years 

Behind the Nation at 8, Environmental Justice (No. I 2008). 25 Ex. DD, !d. at 5. 26 Ex. DD, !d. 27 Ex. EE, Hendryx et a!., Hospitalization Patterns Associated with Appalachian Coal Mining, 

Journal of Toxicology and Environmental Health (2007) 70: 2064-2070 at 2068. 28 Ex. FF, Washington Times via Associated Press, Officials want mining health effects to be 

closely studied, (June 6, 2015), http://www.washingtontimes.com/news/2015/jun/6/officialswant-mining-health-effects-to-be-closely/. 

29 Ex. I, EPA, Final Determination on Spruce No. I Mine at 96, Appendix 7- References (Jan. 

13, 2011) 

24 
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Insert offset folio 195 here 98945.195

some of these studies, as well as an additional study that examined the association 

between mountaintop removal mining and birth defects 30 

These health costs dwarf any economic benefits to Appalachia from surface coal 

production. Using the value of a statistical life lost of $7.5 million, the deaths attributable 

to surface coal mining in Appalachia represent a total cost of $74.6 billion. "In 

contrast, ... the direct (monetary value of mining industry jobs, including employees and 

proprietors), indirect (suppliers and others connected to the coal industry), and induced 

(ripple or multiplier effects throughout the economies) economic benefits of coal mining 

to Appalachia ... " are only $8.08 billion in 2005 US$31 

D. OSMRE Failed to Analyze the Effect of the Proposed Rule on Climate 

Change. 

Although OSMRE's choice between alternatives will have significant consequences for 

greenhouse gas pollution through methane emissions and coal combustion, OSMRE failed to 

analyze the greenhouse gas pollution consequences of the alternatives or disclose that pollution's 

social, economic, and ecological impacts. An agency must "consider every significant aspect of 

the environmental impact of a proposed action." Baltimore Gas & Elec. Co., 462 U.S. at I 07 

(quotations and citation omitted). To fulfill this mandate, agencies must disclose the 

"ecological[,] ... economic, [and] social" impacts of a proposed action. 40 C.F.R. § 1508.8(b).lt 

is well settled that where an agency action results in greenhouse gas pollution, NEPA and sound 

agency decisionmaking mandates that agencies analyze and disclose the impacts of that 

pollution. As the Ninth Circuit has held: 

[T]he fact that climate change is largely a global phenomenon that includes actions that 

are outside of [the agency's] control ... does not release the agency from the duty of 

assessing the effects of its actions on global warming within the context of other actions 

that also affect global warming. 

Ctr.for Biological Diversity v. Nat'! Hig/n.t•ay Traffic Sqj'ety Admin., 538 F.3d 1172, 1217 (9th 

Cir. 2008) (quotations and citations omitted); see also Border Power Plant Working G1p. v. U.S. 

Dep 't of Energy, 260 F. Supp. 2d 997, 1028-29 (S.D. Cal. 2003) (finding agency failure to 

disclose project's indirect carbon dioxide emissions violates NEPA). The need to evaluate such 

impacts is bolstered by the fact that "[t]he harms associated with climate change are serious and 

well recognized," and environmental changes caused by climate change "have already inflicted 

significant harms" to many resources around the globe. Massachusetts v. EPA, 549 U.S. 497, 52! 

(2007); see alm id. at 525 (recognizing "the enormity of the potential consequences associated 

with manmade climate change."). 

30 Ex. GG, Memorandum, EPA, Improving EPA Review of' Appalachian Surcface Coal Mining 

Operations Under the Clean Water Act, National Environmental Policy Act, and the 

Environmental Justice Executive Order, at 4 (20 11 ). 31 Ex. HH, Paul R. Epstein et al., Fidl cost accounting.fiJr the file cycle of coal, Annals of the 

New York Acad. of Sci. 1219 (2011) 73-98 at 83. 

25 
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Insert offset folio 196 here 98945.196

OSMRE admits that "the Action Alternatives could influence coal use at power plants 

and thereby affect the emission of greenhouse gases and associated social costs." DEIS 4-175. 

But OSMRE declines to estimate or quantity the impacts, claiming that the task would be 

"complex." !d OSMRE's failure even to attempt to characterize the differential climate impacts 

of its alternatives violates N'EP A. High Courmy Conservation Advocates v. U.S. Forest Serv., 52 

F. Supp. 3d 1174 (D. Colo. 2014). The failure undercuts both ofNEPA's twin goals: "ensur[ing] 

that agencies take a hard look" at a proposal's environmental impacts, and informing "the public 

so that they may play a role" in decisionmaking. Hughes River Watershed Conservancy v. 

Glickman, 81 F.3d 437,446-48 (4th Cir. 1996) (citing Robertson, 490 U.S. at 349). 

NEP A requires that agencies faced with uncertainty "evaluat[ e] . . impacts based upon 

theoretical approaches ... generally accepted in the scientific community." Robertson v. Methow 

Val!ey Citizens Council, 490 U.S. 332, 354 (1989) (quoting 40 CF.R § 1502.22(b)). See alm 

Mid States Coal. for Progress v. Surface Iransp. Bd, 345 F.3d 520, 549-50 (8th Cir. 2003) 

(applying 40 CF. R. 1502.22(b) to require agency to consider the climate change impacts of 

expanded coal consumption resulting from a new train line, despite uncertainty about the size of 

the contribution). 

Total fossil-fuel energy-related C02 emissions (including both stationary and mobile 

sources) are the largest contributor to total U.S. greenhouse gas emissions, representing 77.3 

percent oftotal2013 greenhouse gas emissions 32 Moreover 

Carbon makes up the majority of the mass of coal and other fossil fuels, and for every ton 

of carbon burned, more than 3 tons of C02 is produced. In addition, unlike many of the 

other air pollutants that react with sunlight or chemicals in the atmosphere, or are rained 

out or deposited on surfaces, C02 is relatively unreactive and difficult to remove directly 

from the atmosphere. C02's huge quantities and lack of reactivity make it challenging to 

remove from the smokestack 

80 Fed. Reg. 64,690. The upshot is clear: the national goal of reducing U.S. C02 emissions 

requires burning less fossil fuels, including less coaL 

The social cost of carbon protocol for assessing climate impacts is a method for 

estimating the damages associated with a small increase in C02 emissions, conventionally l 

metric ton, in a given year and represents the value of damages avoided for a small emission 

reduction (i.e. the benefit of a C02 reduction) 33 It is intended to include changes in net 

agricultural productivity, human health, property damages, and the value of ecosystem services, 

32 U.S. Environmental Protection Agency, "Inventory of U.S. Greenhouse Gas Emissions and 

Sinks: 1990 2013" (April2015) at Table ES-2, available at: 

http://epa.gov/climatechange/ghgemissions/usinventoryreport.html. 

33 Ex. II, EPA, Fact Sheet: Social Cost of Carbon at l, (Nov. 2013), 

http://www.epa.gov/climatechange/Downloads/EPAactivities/scc-fact-sheetpdf 

26 
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Insert offset folio 197 here 98945.197

all of which climate change can degrade. 34 As such, the social cost of carbon includes not only 

socioeconomic harm but also harm to the environment. The protocol was developed by a 

working group consisting of a dozen federal agencies, including the U.S. Department of 

Agriculture, with the primary aim of implementing Executive Order 12866, which requires that 

the costs and benefits of proposed regulations be taken into account. 

The Interagency Working Group's protocol was published in 201035 lt was then revised 

and updated in 2013. 36 The social cost of carbon protocol includes a range of values for the cost 

of each additional ton of carbon, based on varying discount rates. In this way, the protocol 

addresses uncertainty by providing a range of values to assess the cost of carbon.37 

Depending on the discount rate and the year during which the carbon emissions are 

produced, the Interagency Working Group estimates the cost of carbon emissions, and therefore 

the benefits of reducing carbon emissions, to range from $11 to $220 per metric ton of carbon 

dioxide. In July 2014, the U.S. Government Accountability Office ("GAO") confirmed that the 

Interagency Working Group's estimates were based on sound procedures and methodology38 

The interagency social cost of carbon protocol was developed to assist agencies in 

understanding the costs and benefits of rulemakings. It is thus appropriate to apply the social cost 

of carbon in disclosing the impacts of this rulemaking. The social cost of carbon is a simple tool 

that is easy for federal agencies to use and easy for the public to understand. Putting a dollar 

figure on each ton of C02 emitted as a result of a federal project places climate impacts in a 

context that both decision makers and the public can readily comprehend. It is backed by years 

of peer-reviewed scientific and economic research, it is designed to be updated to reflect the 

most current information, and it has already been used by federal agencies in both rulemaking 

34 Ex. JJ, Interagency Working Group on Social Cost of Carbon, Technical Support Document: 

Social Cost of Carbon for Regulatmy Jmpact Analysis Under Executive Order 12866 at I (Feb. 

20 I 0), https://www. whitehouse. gov/ sites/default/files/ omb/inforeg/for-agencies/Social-Cost-ofCarbon-for-RIA.pdf; see also Ex. KK, Cass R. Sunstein, The Real World of Cost-Benefit 

Analysis: Thirty-Six Questions (and Almost as Many All.lwers}, 114 Colum. L. Rev. 167, 171-73 

(Jan. 2014) (describing origins of interagency agreement on the social cost of carbon). 35 Ex. JJ, Interagency Working Group on Social Cost of Carbon at I (Feb. 2010). 36 Interagency Working Group on Social Cost of Carbon, Technical Support Document: 

Technical Update of the Social Cost r!fCarbonfor Regulatory Impact Analysis Under Executive 

Order 12866 (May 2013), 

https://www.whitehouse.gov/sites/default/files/omb/inforeg/social cost of carbon for ria 2013 

update.pdf. 

37 Ex. JJ, Interagency Working Group (2010) at I ("The main objective of this process was to 

develop a range of [social cost of carbon] values using a defensible set of input assumptions 

grounded in the existing scientific and economic literatures. In this way, key uncertainties and 

model differences transparently and consistently inform the range of sec estimates .... "). 38 Ex. LL, GAO, Regulatory Impact Ana~vsis: Development of Social Cost a_( Carbon E~1·timates, 

GA0-14-663 (July 2014 ), http://www.gao.gov/assets/6 70/665016.pdf. 

27 
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Insert offset folio 198 here 98945.198

decisions and project-level reviews under NEP A Therefore, OSMRE should use the social cost 

of carbon to disclose the impacts of its alternatives on coal use and carbon emissions 39 

It is important to note that the social cost of carbon protocol presents a conservative 

estimate of damages associated with the environmental impacts of climate change. As the EPA 

has noted, the protocol "does not currently include all important [climate change] damages."40 

The models used to develop social cost of carbon estimates do not currently include all of the 

important physical, ecological, and economic impacts of climate change recognized in the 

climate change literature because of a lack of precise information on the nature of damages and 

because the science incorporated into these models naturally lags behind the most recent 

research41 

Scientific reviews have similarly concluded that the interagency social cost of carbon 

estimates do not account for, or poorly quantify, certain impacts, suggesting that the estimated 

values are conservative and should be viewed as a lower bound. 42 Recent studies have reported 

significantly higher carbon costs. For instance, a report published in January 2015 found that 

current estimates for the social cost of carbon should be increased six times for a mid-range 

value of $220 per ton.•3 In spite of uncertainty and likely underestimation of carbon costs, 

nevertheless, "the [social cost of carbon] is a useful measure to assess the benefits of C02 

reductions," and thus a useful measure to assess the costs of C02 increases•4 

That the impacts of climate change, as reflected by an assessment of social cost of 

carbon, should be a significant consideration in agency decisionmaking is emphasized by a 

39 For more on the utility and necessity of using the social cost of carbon in NEPA analysis, see 

Letter ofCenterfor Biological Diversity eta!. to Council on Environmental Quality, pp. 4-10 

(Mar. 25, 2015); N. Shoaff & M. Salmon, Jnc01porating the Social Cost of Carbon into National 

Environmental Policy Act Reviews for Federal Coal Leasing Decisions, Sierra Club (April 

2015), 

http://content.sierraclub.org/environmentallaw/sites/content.sierraclub.org.environmentallaw/file 

s/SCC%20White%20Paper%20FINAL. pdf 40 Ex. TI, EPA, Fact Sheet: Social Cost of Carbon at 1. 

41 ld. 

42 See Ex. MM, Peter Howard, Omitted Damages: What's Missing.from the Social Cost of 

Carbon, Environmental Defense Fund, Institute For Policy Integrity, Natural Resources Defense 

Council (March 13, 2014) (providing, for example, that damages such as "increases in forced 

migration, social and political conflict, and violence; weather variability and extreme weather 

events; and declining growth rates" are either missing or poorly quantified in SCC models); 

Frank Ackerman & Elizabeth A Stanton, Climate Risks and Carbon Prices: Revising the Social 

Cost of Carbon (20 12) (concluding that the 20 I 0 Interagency social cost of carbon "omits many 

of the biggest risks associated with climate change, and downplays the impact of current 

emissions on future generations," and suggesting that the social cost of carbon should be almost 

$900 per ton of carbon); Frances C. Moore and Delavane B. Diaz, Temperature impacts on 

economic growth warrant stringent mitigation policy, Nature Climate Change (Jan. 12, 20 15) 

(identifying a central value of $220 for one ton of additional C02). 

43 See Moore & Diaz, Temperature impacts on economic growth at 2. 44 Ex. II, EPA, Fact Sheet: Social Cost of Carbon at I. 

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Insert offset folio 199 here 98945.199

recent White House report, which warned that delaying carbon reductions would yield 

significant economic costs 45 As the report states: 

[D]elaying action to limit the effects of climate change is costly. Because C02 

accumulates in the atmosphere, delaying action increases C02 concentrations. Thus, if a 

policy delay leads to higher ultimate C02 concentrations, that delay produces persistent 

economic damages that arise from higher temperatures and higher C02 concentrations. 

Alternatively, if a delayed policy still aims to hit a given climate target, such as limiting 

C02 concentration to given level, then that delay means that the policy, when 

implemented, must be more stringent and thus more costly in subsequent years. In either 

case, delay is costly. 46 

The requirement to analyze the social cost of carbon is supported by the general 

requirements of NEP A, specifically supported in federal case law, and by Executive Order 

13514. 

To this end, courts have ordered agencies to assess the social cost of carbon pollution 

even before a federal protocol for such analysis was adopted. In 2008, the U.S. Court of Appeals 

for the Ninth Circuit ordered the National Highway Traffic Safety Administration to include a 

monetized benefit for carbon emissions reductions in an Environmental Assessment prepared 

under NEPA. Ctr.for Biological Diversity v. Nat 'l. Highway Traffic Safety Admin., 538 F.3d 

1172, 1203 (9th Cir. 2008). The Highway Traffic Safety Administration had proposed a rule 

setting corporate average fuel economy standards for light trucks. A number of states and public 

interest groups challenged the mle for, among other things, failing to monetize the benefits that 

would accrue from a decision that led to lower carbon dioxide emissions. !d. at 1199. The 

Administration had monetized the employment and sales impacts of the proposed action. The 

agency argued, however, that valuing the costs of carbon emissions was too uncertain. !d. at 

1200. The court found this argument to be arbitrary and capricious. !d. The court noted that 

while estimates of the value of carbon emissions reductions occupied a wide range of values, the 

correct value was "certainly not zero." !d. It further noted that other benefits, while also 

uncertain, were monetized by the agency. !d. at 1202. 

More recently, the U.S. District Court for the District of Colorado reached the same 

conclusion for a federally approved coal lease. That court began its analysis by recognizing that a 

monetary cost-benefit analysis is not universally required by NEPA. High Country Conservation 

Advocates, 52 F. Supp. 3d at 1182, citing 40 C.F.R. § 1502.23. However, when an agency 

prepares a cost-benefit analysis, "it cannot be misleading." !d. (citations omitted). In that case, 

the NEPA analysis included a quantification of benefits of the project. However, the 

quantification of the social cost of carbon, although included in earlier analyses, was omitted in 

the final NEPA analysis. !d. at 1190-91. The agencies then relied on the stated benefits of the 

project to justify project approval. This, the court explained, was arbitrary and capricious. !d. at 

45 Council of Economic Advisers, The Cost of Delaying Action to Stem Climate Change, 

Executive Office of the President of the United States (July 2014), 

https://www.whitehouse.gov/sites/default/files/docs/the cost of delaying action to stem clima 

te change.pdf. 

46 !d. at I. 

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Insert offset folio 200 here 98945.200

1191. The approval was based on a NEPA analysis with misleading economic assumptions, an 

approach long disallowed by courts throughout the country. Id at 1191-92. 

The requirement to analyze the social cost of carbon is supported by the general 

requirements ofNEPA, specifically supported in federal case law, and by Executive Order 

13514. For all of these reasons, OSMRE must use the social cost of carbon as a way of 

disclosing the scope and nature of climate pollution impacts-including, but not limited to, the 

increase in climate pollution from coal combustion-on the human environment47 

Further, where that pollution is methane, OSMRE should use multipliers that reflect the 

latest science concerning the short- and long-term impacts of methane pollution. In 2014, the 

International Panel on Climate Change ("lPCC") calculated the global warming potential of one 

ton of methane as 34 times that of one ton of C02 on a 1 00-year time scale (up from 25 in 

IPCC's Fourth Assessment Report ("AR4") from 2007) and 86 times that of one ton of C02 on a 

20-year time scale (up from 72 in AR4) 48 Because methane remains in the atmosphere for an 

average of 8 to 12 years, the 20-year figure is the most relevant49 

These multipliers, however, will not likely capture the full social cost of methane 

pollution. The Interagency Working Group developed the federal social cost of carbon values to 

assess the social impacts of C02 emissions in particular, not all greenhouse gases. Advocates 

have urged federal policymakers to develop similar social cost frameworks for other greenhouse 

gases, but no such efforts have yet been undertaken by the government The need for a 

comprehensive social cost analysis for non-C02 greenhouse gases is especially pressing in the 

case of methane, which is the second-largest driver of climate change in tenns of overall 

emissions and is associated with many projects that entail federal action. Until the federal 

government develops a social cost of methane estimate, we urge the Council on Environmental 

Quality to instruct agencies to consider and address the available research on this topic when 

performing NEPA reviews for projects that may result in methane emissions. Notably, in 2012 

EPA economists Alex L. Marten and Stephen C Newbold published a peer-reviewed analysis 

47 Draft guidance from the Council on Environmental Quality fails to properly address the social 

cost of carbon. See letter of Center for Biological Diversity (Mar. 25, 2015) at 4-10. However, 

even the Council on Environmental Quality's draft guidance recognizes that where an agency 

chooses to disclose the economic and financial benefits of an action-as the Forest Service did in 

the Colorado Roadless Rule Final EIS at 315-327-the social cost of carbon represents an 

appropriate tool to disclose the costs of the agency's action, including the social cost of carbon. 

See 79 Fed. Reg. 77,802, 77,827 (Dec. 24, 2014). 48 Gunnar Myhre et aL, Climate Change 2013: The Physical Science Basis, "Ch. 8: 

Anthropogenic and Natural Radiative Forcing" at 714, IPCC (20 13), 

http://www.ipcc.ch/pdf/assessment-report/ar5/wgl/WGIAR5 Chapter08 FINAL.pdf(methane 

multipliers include climate-carbon feedbacks in response to methane emissions). 49 These figures for methane's global warming potential are more recent and more defensible 

than those used in, for example, AECOM' s "Technical Reference Document for the Colorado 

Underground Coal Mine Emission Inventory Tool," which assumes a global warming potential 

for methane of just 21. See AECOM' s "Technical Reference Document for the Colorado 

Underground Coal Mine Emission Inventory Tool," (Oct 2012) at 2-12. 

30 
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Insert offset folio 201 here 98945.201

estimating the social of cost of methane at a range of $450 to $2,300 per metric ton in 2015 50 

The study authors largely followed the methodology used by the Interagency Working Group to 

estimate the social cost of carbon, and their results should serve as a starting point for any 

climate impact analysis involving methane emissions. However, in light of developments 

following the publication of the Marten and Newbold paper (namely, the IPCC's upward 

revision of the radiative forcing capacity of methane and methodological changes adopted in 

2013 51 by the Interagency Working Group that increased the social cost of carbon estimates), the 

Marten and Newbold study would yield a much greater social cost of methane if repeated today. 

OSMRE should address the findings of the Marten and Newbold paper (and any other relevant 

research) while acknowledging that it significantly underestimates the true social cost of 

methane. 

OSMRE must also address significant new information concerning climate change. 

Recent studies demonstrate the need to keep the vast majority of the world's known reserves of 

fossil fuels in the ground if the planet is to avoid warming so severe as to have significant 

consequences for all life, including human life. The significant threat posed by climate change 

should inform OSMRE's choice between alternatives, which will have a significant impact on 

total U.S. coal production and consumption for the foreseeable future. Alternatives that result in 

higher supplies of coal over the next few decades will contribute to lower coal prices and higher 

coal comsumption, which in turn will feed our dependence on fossil fuels and add to climate 

pollution for decades to come. 

An increasing body of scientific literature indicates that to avoid the worst consequences 

of climate change, the vast majority offossil fuel reserves must stay in the ground. As part of its 

consideration of a rule that will govern the circumstances under which hundreds of millions of 

tons of coal may be mined for combustion, and certainly before rejecting more environmentally 

protective alternatives, OSMRE must inform the public and decisionmakers of the dramatic 

reductions in greenhouse gases that are required to avert global catastrophe. Recent scholarship 

affirms the urgency of keeping fossil fuels in the ground in order to avert the worst harms from 

climate change. For example, a recent peer-reviewed article published in the prestigious research 

journal Nature concluded that if we are to keep climate change below dangerous levels, 80 

percent of global coal reserves, half of all gas reserves, and a third of oil reserves must stay in the 

ground through 2050 52 The U.S. must leave between 92 percent and 95 percent of its coal 

50 See Alex L. Marten & Stephen C. Newbold, Estimating the Social Cos! ofNon-C02 GHG 

Emissions: Methane and Nitrous Oxide at 18, EPA (20 11 ), 

http :1 /yosemite. epa. gov lee/ epa/eed. nsf/ ec2c5e0aaed2 7 ec3 85256b3 3 0056025c/ 

f7c9fc6133698cc3 8525782b00556dei/$FILE/2011-0 I v2.pdf 51 See generally Interagency Working Group (2013). 52 517 Christophe McGlade & Paul Ekins, The Geographical Distribution ofF ossil Fuels Unused 

When Limiting Global Warming to 2 [deg] C pp. 187-190, Nature (Jan. 8, 2015), abstract 

available at http://ww.v.nature.com/nature/journal/v517/n7 533/full/nature 140 16.html. 

31 
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Insert offset folio 202 here 98945.202

reserves in the ground53 As President Obama affirmed recently, "climate change can no longer 

be denied-or ignored." 54 

Notably, there is international consensus that in order to avoid the worst impacts of 

climate change, global temperature increases must not exceed 2°C above preindustrial 

temperatures 5 5 To meet this threshold of safety, "deep cuts in global emissions are required."56 

In order to have better-than-even odds of meeting this target, "cumulative C02 emissions from 

all anthropogenic sources [must] stay between ... 0 and 1000 [gigatons carbon] .... An amount of 

531 [446 to 616] [gigatons carbon], was already emitted by 20 11."57 This means that, for the rest 

of the century, all nations on the planet can only emit approximately 4 70 gigatons of carbon. 5

R 

To meet this limit, "between two-thirds and four-fifths of the planet's reserves of coal, oil, and 

gas" need to stay in the ground 59 However, if unabated, "[b]urning all fossil fuels would produce 

a different, virtually uninhabitable, planet."60 A proposal to authorize the excavation of massive 

quantities of coal must be viewed in this context. Indeed, the purpose and need for this proposal 

is questionable given the dire consequences of "business as usual" with respect to coal mining 

and combustion. 

Other studies and reports that OSMRE must address to understand the alternatives in the 

context of climate change include: 

• The 2013 update of the Interagency Working Group on the social cost ofcarbon 61 This 

update increased the federal government's estimate of the costs of each additional ton of 

climate pollution, indicating both that our understanding of the costs of climate change 

has improved, and that the cost of climate pollution-by constraining our ability to enjoy 

a livable planet-is increasing. 

53 !d. at 189, Table l. 54 Barack Obama, President of the United States, Weekly Address (Apr. 18, 2015), 

https:/ /www. whitehouse. gov/the-press-office/20 15/04/17/weekly -address-eli mate-change-canno-longer-be-ignored-0. 

55 Copenhagen Accord,~ 1 (Dec. 18, 2009) ("To achieve the ultimate objective of the 

Convention to stabilize greenhouse gas concentration in the atmosphere at a level that would 

prevent dangerous anthropogenic interference with the climate system, we shall, recognizing the 

scientific view that the increase in global temperature should be below 2 degrees Celsius, on the 

basis of equity and in the context of sustainable development, enhance our long-term cooperative 

action to combat climate change."). 

56 !d.~ 2. 57 IPCC Working Group I, Climate Change 2013: the Physical Science Basis: Summwy for 

Policy Makers at 25 (20 13). 58 Stated in terms of gigatons C02, the remaining budget is approximately I900. IPCC, Climate 

Change 2014: Synthesis Report at 8-9, (2014). 59 Bill McKibben, Global Warming's Terrifying New Math, Rolling Stone (Aug. 2, 20 12); Bill 

McKibben, Obama and Climate Change: The Real Story, Rolling Stone (Dec. 17, 2013). 60 James Hansen et aL, Climate sensitivity, sea level and atmospheric carbon dioxide 37I Phil. 

Transactions of the Royal Soc'y, Oct. 28, 20 13; see also Global Carbon Project, Global Carbon 

Budget 2014 (Sept. 21, 2014). 61 See Interagency Working Group (2013). 

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Insert offset folio 203 here 98945.203

• The IPCC Fifth Assessment, completed in 2014, which provides additional evidence of 

the harms that are occurring and are likely to result from climate change62 

• The 2014 National Climate Assessment, which details the threat climate change poses to 

water resources in the American Southwest (including Colorado) and concludes that the 

elderly, children, the poor and the sick are all more vulnerable to climate-change-related 

health impacts 63 

• EPA's 2015 report detailing the latest information on U.S. anthropogenic greenhouse gas 

emission trends from 1990 through 2013 64 

• Two papers from late 2012, authored by Hansen et al., demonstrating the link between 

anthropo~enic climate change and extreme weather events, including extreme heat and 

drought.6 

A 2014 economic report, detailing the risks to business of existing, continued, and 

worsening climate change66 

• Two recent U.S. Department of Agriculture initiatives that respond to the threat of 

climate change67 Adopting a weaker alternative in the Stream Protection Rule will 

undermine these initiatives by worsening climate change. 

62 See IPCC Fifth Assessment report web page https://www.ipcc.ch/report/ar5/; see also lPCC, 

Climate Change 2014 !:>)mthesis Report, Summary jilr Policymakers (2014), 

https://www.ipcc.ch/pdf/assessment-report/ar5/syr/ AR5 SYR FINAL SPM.pdf. 63 Jerry M. Melillo et al., eds., Climate Change Impacts in the United States: The Third National 

Climate Assessment, U.S. Global Change Research Program, U.S. Global Change Research 

Program (2014), nca2014.globalchange.gov. 64 EPA, EPA 430-R-15-004, Inventmy of U.S. Greenhouse Gas Emissions and Sinks: 199(). .. 

2013, (Apr. 15, 2015), http://www3.epa.gov/climatechange/Downloads/ghgemissions/US-GHGInventory-20 15-Main-Text. pdf. 65 James Hansen et al., Perceptions (!fC!imate Change, 109 Proceedings of the National 

Academy of Science (Sep. 11, 2012); James Hansen et al., Increasing Climate 1\xtremes and the 

New Climate Dice, Columbia University (Aug. 10, 2012). 66 Kate Gordon et al., Risky Business: The Economic Risk~ of Climate Change, Risky Business 

Project (June 20 14 ), 

http://riskybusiness.org/uploads/files/RiskyBusiness _Report_ WEB_ 09 _ 08 _14.pdf. 67 See U.S. Dep't of Agric., USDA's Building Blocksfor Climate Smart Agriculture & Forestry 

-Fact Sheet, Off. of Comm. (undated), http://www.usda.gov/documents/climate-smart-factsheet.pdf (describing an "approach to support farmers, ranchers, and forest land owners in their 

response to climate change. The framework consists of 10 building blocks that span a range of 

technologies and practices to reduce greenhouse gas emissions, increase carbon storage, and 

generate clean renewable energy."); S. Dep't of Agric., Secretary Vi/sack Announces Regional 

Hubs to Help Agriculture, Ffirestry Mitigate the Impacts of a Changing Climate, Off. of Comm. 

(Feb 5, 20 14), 

http://www. usda. gov/wps/portallusdalusdahome? contentidonly=true&contenti d=20 14/02/00 16.x 

ml (describing a Feb. 5, 2014 climate initiative to "address increasing risks such as fires, invasive 

pests, devastating floods, and crippling droughts on a regional basis, aiming to translate science 

and research into information to farmers, ranchers, and forest landowners on ways to adapt and 

adjust their resource management"). 

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Insert offset folio 204 here 98945.204

• A recent speech by Secretary of the Interior Jewell in which she stated that the "federal 

coal program needs reform" and asked "[h]ow do we manage the [federal coal] program 

in a way that is consistent with our climate change objectives?"68 This question is of 

paramount importance for the Stream Protection Rule because it will affect decisions 

about mining and combustion of many millions of tons of coal, in addition to releasing 

millions of cubic feet each day of methane. 

OSMRE must also address whether the chosen alternative, and the additional coal 

combustion it facilitates, are in line with the goals of President Obama's Clean Power Plan. The 

Clean Power Plan calls for reducing power sector emissions to 30 percent below 2005 levels by 

203069 Additionally, in November 2014 the President announced a joint U.S.-China agreement 

aimed at reducing climate pollution that calls for even more aggressively cutting net greenhouse 

gas emissions to 26-28 percent below 2005levels by 2025. 70 

E. OSMRE Incorrectly Assessed the Baseline No Action Alternative. 

The essential foundation of a lawful and rational analysis of alternatives under NEPA is 

an accurate characterization of the no-action baseline. Ctr. for Biological Diversity v. U.S. Dep't 

~~Interior, 623 F.3d 633, 642-43 (9th Cir. 20 I 0). OSMRE fails this requirement by concluding 

incorrectly that the destruction of streams is permissible under the current regulations that the 

Stream Protection Rule will replace. 

The DEIS rests on the premise that the wholesale destruction of streams by valley fills 

and mine-throughs is permissible under the current re!,>ulations. "The No Action Alternative," 

OSMRE says, "does not prohibit mining through a stream or burial with excess spoil or coal 

mine waste." DEIS at ES-28. Accord id at 4-51 ("Excess spoil placement into streams is 

allowable under longstanding interpretations of our current regulations[.])"; id. at ES-12 

("OSMRE and most state regulatory authorities generally have applied the 1983 SBZ rule in a 

manner that allows the construction of excess spoil fills, refuse piles, slurry impoundments, and 

sedimentation ponds in all types of streams and their buffer zones"). The current regulations, 

OSMRE says, allow "substantial effects of excess spoil generation on streams ... to occur, 

particularly in Appalachia .... [This] can ... affect biological processes directly by burying or 

smothering aquatic organisms or their habitats, and reducing the amount oflight available for 

photosynthesis or activities requiring visibility. Excessive sediment reduces stream depth, which 

increases water temperatures and reduces the dissolved oxygen content." !d. at 4-51 (citation 

omitted). OSMRE concludes that these impacts would continue to be lawful "[u]nder the No 

Action Alternative." DEIS at ES-37. 

68 Sally Jewell, Secretary of the Interior, Address at the Center for Strategic and International 

Studies (rvlar. 17, 20 15), http//www.c-span.org/video/?324886-llinterior-secretary-sally-jewellremarks-energy -agenda~ 69 Ex. II, EPA, Fact Sheet: Clean Power Plan_(2014), 

http //www2.epa.gov/sites/production/fil es/20 14-05/documents/20 140602fs-overview. pdf. 70 The White House, U.S.-China Joint Announcement on Climate Change and Clean Energy 

Cooperation, Off. of the Press Secretary (Nov. II, 2014), https://www.whitehouse.gov/the-pressoffi ce/20 14/ 11/ll/us-china-j oint -announcement-climate-change. 

34 
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Insert offset folio 205 here 98945.205

OSMRE is wrong. The current regulations do not allow adverse effects on streams from 

filling or mining through streams. In fact, the current regulations plainly and unambiguously 

prohibit any mining activity within 100 feet of a stream that will have an adverse effect on the 

environmental resources of the stream: 

No land within I 00 feet of a perennial stream or an intermittent stream shall be disturbed 

by surface mining activities, unless the regulatory authority specifically authorizes 

surface mining activities closer to, or through, such a stream. The regulatory authority 

may authorize such activities only upon finding that-

(I) Surface mining activities will 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; and 

(2) If there will be a temporary or permanent stream-channel diversion, it will 

comply with§ 816.43 71 

30 C.F.R § 8J6.57(a)(l) (emphasis added). It is unlawful and irrational to use a less-protective 

regulation as the baseline for analysis under NEP A. Friends of Back Bay v. US. Army Cmps t!f 

F)Ig'rs, 681 F.3d 581, 588-89 (4th Cir. 2012) ("A material misapprehension of the baseline 

conditions existing in advance of an agency action can lay the groundwork for an arbitrary and 

capricious decision."); Friends cifYosemite Valley v. Kemp! home, 520 F.3d 1024, 1038 (9th Cir. 

2008) ("The baseline alternative should not have assumed the existence of the very plan being 

proposed.") (internal quotation marks omitted). See also Humane Soc. of the U.S. v. Johanns, 

520 F. Supp. 2d 8, 29 (D. D.C. 2007) (holding that rulemaking did not merely perpetuate the 

"status quo" for purposes of NEPA because "'status quo' refers to the legal or regulatory status 

quo," not to "whether an action, albeit legally different, will perpetuate the same effects"). 

OSMRE' s failure to correctly assess the no-action alternative infects its subsequent 

comparative analysis of the other alternatives. For example, OSMRE's conclusion that "all of the 

Action Alternatives (Alternatives 2 through 8) increase the stringency of the historic 

requirements that guide mining activities near streams and the placement of excess spoil and 

refuse," DEIS at 4-98, rests on the erroneous premise that the current regulations allow harmful 

mining activities in and near streams. Because the current regulations actually prohibit adverse 

effects on perennial and intermittent streams from mining activities within the buffer zone, 

OSMRE's assessment of alternatives 2 through 8 is erroneous and arbitrary. 

The reason why the current stream buffer zone rule has coincided with widespread 

destruction of streams is, of course, that OSMRE and the states have failed to enforce it But 

OSMRE should not adopt continued unlawful conduct and impunity as the no-action baseline. 

Further, a record of poor enforcement cannot justify proceeding as if harm to streams is lawful, 

71 The referenced section 816.43 contains parallel language prohibiting stream diversions absent 

a finding that the diversion will "not adversely affect the water quantity and quality and related 

environmental resources of the stream." 30 C.FR § 816.43(b)(l). 

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Insert offset folio 206 here 98945.206

because a poorly enforced, protective regulation is not the same baseline as a regulation that does 

not even apply. States are under a legal obligation to enforce protective regulations, 30 U.S.C. § 

l265(a), and if states fail to enforce them, SMCRA requires the Department to step in. 30 U.S.C. 

§ 1271. More importantly, a protective regulation is enforceable by private citizens. 30 U.S.C. § 

l270(a) (authorizing citizen suits); 30 U.S. C. l276(e) ("Action of the State regulatory authority 

pursuant to an approved State program shall be subject to judicial review by a court of competent 

jurisdiction in accordance with State law"); Bragg v. W. Virginia Coal Ass'n, 248 FJd 275,297 

(4th Cir. 200 I) ("as part of its approved State program, West Virginia enacted a citizen suit 

provision that, parroting the language of its federal counterpart, gives affected individuals the 

right to sue in State court to compel the Director's compliance with the West Virginia Act.") 

(citing W.Va. Code§ 22-3-25). By conflating a poorly enforced regulation with a regulation that 

does not even apply, the Department ignores the important role of private enforcement in 

SMCRA's regulatory regime. See Friends of the 1\arth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

528 U.S. 167, 185 (2000) (admonishing that Congress' determination that private enforcement is 

effective "warrants judicial attention and respect"). 

Further, it would be arbitrary to conclude that the current stream buffer zone rule would 

remain poorly enforced in the future while simultaneously assuming that new protections 

adopted through the Stream Protection Rule will be well enforced. Certainly, OSMRE cannot 

assume that the enforcement of SMCRA's minimum standards will improve without explaining 

what concrete steps OSMRE will take to improve enforcement. 

F. OSMRE Failed to Consider the Alternative of Enforcing Current 

Requirements. 

If OSMRE were not required to use enforcement of the current regulations as the no 

action baseline, OSMRE would still be obligated at least to include it among the alternatives 

analyzed. Ctr.for Biological Diversity v. U.S. Dep't of Interior, 623 F.3d 633, 642 (9th Cir. 

2010) ("The existence of reasonable but unexamined alternatives renders an EIS inadequate.") 

(quoting Friends of Southeast's Future v. Morrison, 153 F3d 1059, 1065 (9th Cir. 1998)). Yet 

OSMRE has not. 

The DEIS analyzes nine alternatives, none of which corresponds to enforcement of 

current 30 C.F.R. § 816.57(a)(l). 2015 DEIS at ES-28. OSMRE says that alternative 2 is the 

most environmentally protective, but alternative 2 allows mining activities within the buffer 

zone--including coal mine waste disposal and mine-throughs-that will cause adverse effects on 

the environmental resources of intennittent streams. Alternative 2 is therefore less protective 

than current 30 C.F.R. § 816.57(a)(l), which prohibits adverse effects from such activities. 

OSMRE also describes several alternatives that it considered but did not fully analyze. 2015 

DEIS at ES-36 to ES-37. None of these correspond to enforcement of current 30 C.F.R. § 

816.57(a)(l). One of the alternatives OSMRE declined to analyze includes an absolute 

prohibition on all surface mining activities within l 00 feet of any stream, including ephemeral 

streams. This alternative is far stricter than the current regulation for two reasons: (1) it prohibits 

even mining activities that have no adverse effect on the stream and (2) it applies to all streams 

(ephemeral streams in addition to perennial and intermittent streams). Thus, OSMRE has failed 

not only to analyze the enforcement of current 30 C.F.R. § 816.57(a)(l), but even to 

acknowledge it as a possible alternative. 

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Insert offset folio 207 here 98945.207

OSMRE has legal tools at its disposal to improve enforcement of current stream 

protections, both through this rulemaking and by use of other authorities. First, it would go a 

long way towards improving enforcement if OSMRE simply disavowed the counter-textual 

interpretations of 30 C.F.R. § 816.57(a)(l) that it has sometimes embraced, and by which states 

have purported to authorize mining activities within the buffer zone even when those activities 

promise to inflict grievous "adverse effects" on streams. Second, OSMRE could improve 

enforcement of30 C.F.R. § 816.57(a)(l) by clarifying that it is a performance standard directly 

enforceable by citizens, not simply a permitting requirement-an issue on which there somehow 

has been considerable confusion, despite the fact that the provision is included in a regulatory 

subpart consisting of performance standards. Third, OSMRE could make a finding under 30 

C.F.R. § 730.11 that state program requirements implementing 30 C.F.R. § 816.57(a)(l) are less 

stringent than the federal minimum standard, which would allow citizens to enforce the federal 

requirement directly. Fourth, OSMRE could exercise its "ten-day notice" authority under 30 

U.S. C.§ 127l(a) to compel enforcement of30 C.F.R. § 816.57(a)(l) against operators that 

violate it. Indeed, OSMRE recently used that authority to review the consistency with 30 C.F.R. 

§ 816.57(a)(l) of a permit issued for a surface coal mine in Virginia 72 Fifth, OSMRE could 

impose a federal regulatory program on those states that fail to "implement, enforce, or 

maintain" their state programs consistent with 30 C.F.R. § 816.57(a)(l). 30 U.S.C. § 1254(a)(3). 

Sixth, OSMRE could exercise its authority under 30 U.S. C.§ 1271(b) to substitute federal 

enforcement in states that are failing to enforce stream-channel protections. 

Because OSMRE has ample authority to improve enforcement of the stream-channel 

protections that are currently in force, it has an obligation under NEPA to consider doing so as an 

alternative to a complete overhaul of the rule's stream-channel provisions. 

IV. AT A MINIMUM, OSMRE MUST AT LEAST CLARIFY AND STRENGTHEN 

THE PROPOSAL WITH RESPECT TO PROTECTION OF DOWNSTREAM 

WATER QUALITY. 

A. OSMRE Should Confirm that Section 816.42 Requires Compliance with 

Water Quality Standards and Is Directly Enforceable under SMCRA. 

Proposed Section 816.42(a) retains the current language in 816.42 that requires 

compliance with "applicable water quality laws and regulations." 80 Fed. Reg. at 44,549, 44,652. 

OSMRE approved the existing rule containing that requirement in 1982. 30 C.F.R. § 816.42, 

approved, 47 Fed. Reg. 47,216 (Oct. 22, 1982). At that time, OSMRE stated that this rule 

provides "that discharges must comply with all State and Federal water quality laws and 

reb>ulations. This includes applicable water quality standards." !d. at 47,220. 

72 See generally Ex. NN, OSM, Directive 967, Oversight of State and Tribal Regulatory 

Programs (Jan. 31, 20 ll) (reviewing and updating OSMRE policies, procedures and 

responsibilities for oversight of state regulatory authorities); Ex. 00, OSM, Directive 968, TenDay Notices (affirming that "OSM must issue a [ten-day notice] ... when it has reason to 

believe a violation exists," that "permit defects are handled like any other violation," and that 

"OSM must conduct a federal inspection ... [when the regulatory authority] fails to take 

appropriate action"). 

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OSMRE should confirm that this same interpretation applies to the new rule. Specifically, 

OSMRE should confirm that SMCRA permittees must comply with both the effluent limitations 

in their NPDES permits and with all water quality standards. In its 1982 preamble, OSMRE 

recognized that effluent limitations and water quality standards establish two different 

requirements. Effluent limitations "are those parameters that must be obtained at the end of a 

discharge, before mixing with the waters of the receiving stream, lake, or ocean." !d. Water 

quality standards "apply only to the waters of a stream, lake, or ocean," and "are instream 

standards that cannot be exceeded." !d. 

OSMRE should also clarify that this rule creates a performance standard that makes 

water quality standards directly enforceable under SMCRA. In a recent citizen suit seeking to 

enforce § 816.42 and its state program counterpart, a coal company argued that those standards 

are not directly enforceable under SMCRA, and that so long as the company complied with its 

NPDES effluent limitations, it was shielded from complying with water quality standards under 

both the CW A and SMCRA Ex. PP, OVEC v. Fola Coal Co., LLC, Civil No. 2:13-21588, Doc. 

78, Fola SJ Mem., p. 15. The company argued that the language in§ 816.42 supported its 

interpretation, because when OSMRE referred to the "applicable" standards of the CWA, 

OSMRE effectively incorporated the CW A permit shield and all CWA-based prerequisites to 

enforcing CW A-based standards under SMCRA Ex. PP, Id In effect, the company contended 

that if citizens could not enforce water quality standards under its NPDES permit under the 

CW A, then they could not enforce them as a performance standard under its SMCRA permit 

either. The district court in that case found that it did not need to address that argument, because 

the company's NPDES permit required compliance with water quality standards, and that permit 

condition was enforceable by citizens under the CW A !d., Ex. QQ, Doc. 94, Mem. Op., p. 12, n. 

3. However, West Virginia has sought to eliminate that NPDES permit condition, which could 

make the SMCRA requirement an essential alternative to enforce water quality standards. 

OSMRE should clarify that the word "applicable" water quality standards means those 

standards that are applicable to the receiving waters for the proposed operation and that have 

been approved by EPA. It cannot mean that an NPDES permittee can evade compliance with 

water quality standards under SMCRA simply by complying with the numerical effluent 

limitations in its NPDES permit. Water quality standards are the "floor" of federally required 

compliance under the CW A, and States "may not set standards that are less stringent than the 

CW A's." Dubois v. U.S. Dep 't. C!f Agric., 102 F.3d 1273, 1300 (1st Cir. 1996). See also In re 

Entergy Nuclear Vermont Yankee Discharge Permit 3-1199, 187 Vt. 142, 167-68 (2009) 

("Federal requirements for the content of state water quality standards represent a floor"). Nor 

can states set standards that are less stringent than SMCRA requires. Penmylvania Coal Ass 'n v. 

Babbitt, 63 F.3d 231,237-38 (3rd Cir. 1995). Thus, water quality standards provide the "floor" 

for compliance in state programs under both the CW A and SMCRA. 

This issue is of enormous environmental importance, because the Appalachian coal 

mining states have followed a pattern and practice of issuing NPDES permits that allow mining 

companies to cause or contribute to violations of water quality standards. In addition, West 

Virginia recently enacted two statutes that attempt to remove the existing narrative condition in 

NPDES permits that requires coal mines to comply with those standards, and prohibit the West 

Virginia Department of Environmental Protection (WVDEP) from incorporating such a 

provision in future permits. S.B. 317, H.B. 2283, 82"d Leg., Reg. Sess. (W.Va. 2015). Through 

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Insert offset folio 209 here 98945.209

these actions, West Virginia seeks to immunize the coal industry from its liability for impairing 

hundreds of streams in the state, and to quash successful citizen enforcement of permit limits 

needed to meet water quality standards. In May 2015, a West Virginia federal court held that, 

unless and until these two state statutes are approved by EPA, they have no effect under federal 

law and no effect on citizen suit enforcement. Ex. QQ, OVEC v. Fola Coal Co., Civ. No. 2:13-

cv-21588, Doc. 94, p. 12-16 (S.D W.Va. May 29, 2015). 

The two West Virginia statutes are designed to relieve coal mine operators of any 

obligation to address pollution from sulfates and total dissolved solids-typically measured as 

conductivity-from coal mine valley fills. OSMRE recognizes the serious harm caused by these 

two pollutants. It correctly proposes to add new requirements to monitor their concentrations 

downstream from mine sites, because of"concerns identified in scientific studies documenting 

the adverse impacts that elevated concentrations of those parameters have had on aquatic life in 

streams in the central Appalachian coalfields." 80 Fed. Reg. at 44,497. "Elevated concentrations 

of both these [alkaline] ions and sulfate ions are highly correlated with elevated electrical 

conductivity in streams, which is highly correlated with the loss or absence of pollution-sensitive 

species of aquatic insects and fish even when in-stream habitat downstream of the mining 

activity is otherwise intact." !d. at 44,441. 

The two West Virginia statutes target the important narrative requirements contained in 

WVDEP' s EPA-approved water quality standards, which, among other things, prohibit industrial 

or other wastes "in any of the waters of the state" that cause or contribute to "[ m ]aterials in 

concentrations which are harmful, hazardous or toxic to man, animal or aquatic life" or "[a]ny 

other condition ... which adversely alters the integrity of the waters of the State," and which 

further provide that "no significant adverse impact to the chemical, physical, hydrologic, or 

biological component of aquatic ecosystems shall be allowed." 47 C.S.R. §§ 3.2.e, 3.2.i. Other 

Appalachian states have similar narrative requirements in their water quality standards that 

protect the chemical, physical, and biological integrity of streams. 40 KAR I 0:031, Section 

4( I )(f) ("Total dissolved solids or specific conductance shall not be changed to the extent that the 

indigenous aquatic community is adversely affected"); 9 VAC 25-260-20(A) ("State waters. 

shall be free from substances attributable to ... waste in concentrations, amounts, or 

combinations which ... interfere directly or indirectly with designated uses of such water or 

which are inimical or harmful to human, animal, plant, or aquatic life"). 

West Virginia has defiantly refused to enforce these narrative standards in multiple ways. 

First, West Virginia has refused to accept the virtually unanimous scientific consensus that 

elevated conductivity causes stream impairment. In 2011, EPA fmalized a guidance document 

(approved by its Scientific Advisory Board) identifying ionic pollution from coal mines as a 

major source of harm to streams across Central Appalachia, and recommending a benchmark 

limit for conductivity of 300 ~S/cm. EPA, A Field-Based Aquatic Life Benchmarkjbr 

Conductivity in Central Appalachian Streams (2011). EPA's Benchmark establishes that when 

instream conductivity exceeds a level of 300 microsiemens per centimeter (~S/cm), there is a 59 

percent likelihood of stream impairment (a violation of the narrative water quality standard) and 

at 500 ~S/cm, there is a 72 percent likelihood. Benchmark at A-36. All of the peer-reviewed 

scientific studies published since EPA's Benchmark was issued have supported its findings. 

OSMRE cites and relies on the EPA Benchmark and the supporting scientific studies. 80 Fed. 

Reg. at 44,441. 

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Rather than following EPA's Benchmark and setting the recommended limit in NPDES 

permits for coal mines, West Virginia responded by issuing its own "Permitting Guidance for 

Surface Coal Mining Operations to Protect West Virginia's Narrative Water Quality Standards." 

That West Virginia guidance rejected EPA's recommended effluent limits on conductivity in 

favor of ineffective "best management practices." West Virginia also vigorously opposed a 

citizen challenge seeking to secure effluent limits on conductivity in a NPDES permit for a coal 

mine, eventually successfully overturning a ruling of its Environmental Quality Board on that 

issue in the state supreme court. Sierra Club v. Patriot Min. Co., 2014 WL 2404299 (W.Va. 

2014) 

Second, in 2012, the West Virginia legislature similarly sought to defy federal law and 

protect the coal industry by weakening existing state laws implementing the Clean Water Actincluding a state regulation establishing the following "condition[] appl[icable] to all 

WV!NPDES permits": "The discharge or discharges covered by a WV!NPDES permit are to be 

of such quality so as not to cause violation of applicable water quality standards." Ohio Valley 

F)zvtl. Coal .. Inc. v. Matfork Coal Co., 966 F. Supp. 2d 667, 671 (S.D.W. Va. 2013) (citing W. 

Va.Code R. § 47-30-S.l.f). The legislature passed SB 615, which sought to modify the Clean 

Water Act's permit shield so that coal mines would be shielded from enforcement if they 

complied with numeric effluent limitations alone, even if they violated the foregoing narrative 

permit condition requiring compliance with water quality standards. A federal court found SB 

615 to be federally unenforceable.Jd. 

Third, in 2012, in response to another recently passed state law, WVDEP abandoned its 

established stream assessment methodology and refused to use that methodology to list 

biologically impaired streams on its§ 303(d) list In 2013, EPA's Region 3 Office disapproved 

that action, applied the state's established methodology, and restored those streams to the list 

After those state actions were rebuffed, a West Virginia federal district court held in three 

citizen enforcement cases that coal mines violated the narrative penni! condition in their NPDES 

permits by discharging high levels of ionic chemicals that have greatly increased stream 

conductivity and caused biological impairment OVEC v. Elk Run Coal Co., 24 F. Supp. 3d 532 

(S D.WVa. 2014); OVECv. Fola Coal Co., 82 F. Supp. 3d 673 (S.D.W.Va. 2015); OVEC v. 

Fola Coal Co., 2015 WL 4772351 (S.D. W.Va. Aug. 12, 2015). In all three cases, the court 

applied the same standard of impairment that EPA used in 2013 to restore streams to the 303(d) 

list 24 F. Supp. 3d at 556; 82 F. Supp. 3d at 679-681; 2015 WL 4772351 at *3 n. 6. In addition, 

in all three cases the court deferred to EPA and applied EPA's Benchmark for protecting stream 

life from harmful levels of conductivity. 24 F. Supp. 3d at 559 ("The Court will thus properly 

defer to EPA's determination" in the Benchmark); 82 F. Supp. 3d at 684 ("the Court will 

continue to defer to the analysis and conclusions reached by the EPA"); 2015 WL 47723 51 at *6 

("EPA's Benchmark must be accorded deference"). Environmental plaintiffs have three 

additional citizen suits currently pending that seek to enforce the narrative water quality 

standards under both the CW A permit condition and the SMCRA rule requiring compliance with 

water quality standards. OVEC v. Fola Coal Co., Civ. No.2: 15-1371 (S D.W.Va.); OVEC v. 

Hobet Mining, LLC, Civ. No.3: 15-cv-4101 (S.D.W.Va.); OVEX' v. Pritchard Mining Co., Inc., 

Civ. No. 2:15-cv-12554 (S D.W.Va ). 

40 
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Insert offset folio 211 here 98945.211

The history of coal mine regulations in West Virginia demonstrates that compliance with 

water quality standards has been a consistent requirement under both the CW A and SMCRA. 

EPA approved the West Virginia NPDES program amendment requiring compliance with those 

standards in 1985 when West Virginia consolidated its CW A and SMCRA authority over mining 

permittees in one division of a state agency. 50 Fed. Reg. 28,202 (July 11, 1985). As a result, the 

state's CWA rule requiring compliance with water quality standards became consistent with the 

SMCRA rule that also requires compliance with water quality standards. "[T]he language 

concerning water quality standards may have been inserted into the [West Virginia] NPDES 

rules so that those rules would be consistent with the state's surface mining regulations, which 

were already in effect." OVEC v. Fola CoaT Co., 2013 WL 6709957, at *16 (S.D.W.Va. 2013); 

see also Marfork, 966 F. Supp. 2d at 683-84. 

OSMRE has an important role to play in this controversy, and the stream protection rule 

is the best way to address and resolve it. Section 816.42 must reaffirm the fundamental 

requirement that compliance with water quality standards is a consistent requirement under both 

the CW A and SMCRA, and those standards are directly enforceable under SMCRA as a 

performance standard. 

Recommended change to§ 816.42(a): Discharges of water from surface mining activities and 

from areas disturbed by surface mining activities must be made in compliance with all applicable 

water quality laws, standards, and regulations, including the effluent limitations established in 

the National Pollutant Discharge Elimination System permit for the operation under section 402 

of the Clean Water Act, 33 U.S.C. § 1342. 

B. OSMRE Should Confirm that Sections 816.71(a)(7) and 816.57(b) Require 

Compliance with Water Quality Standards and Are Directly Enforceable 

under SMCRA. 

Proposed Section 816.71(a)(7) states that excess spoil must be placed in a manner that 

will "[e]nsure that the fill will not cause or contribute to an exceedance of any applicable water 

quality standards." 80 Fed. Reg. at 44,556, 44,661. For the same reasons that we have given 

above relating to the similar requirement in § 816.42, OSMRE should confirm that this section 

requires compliance with water quality standards, and that the placement of excess spoil that 

subsequently results in a violation of water quality standards is a violation of a directly 

enforceable performance standard under SMCRA. For example, such a violation could occur if 

the water discharged from the base of the fill contains selenium concentrations in excess of water 

quality standards, or alkaline mine drainage causing downstream biological impairment. To 

clarify its intent, OSMRE should revise proposed 816. 71(a)(7) to eliminate reference to the 

"manner" in which spoil is placed, as such language could be misinterpreted to mean that this 

provision applies only to excess spoil ±!lis that are poorly designed or constructed, rather than 

reaching all excess spoil fills that have unacceptable effects on water quality. OSMRE should 

clarify its intent by converting proposed 816.71(a)(7) into a separate paragraph (b) providing, 

"You must ensure that excess spoil placement does not cause or contribute to an exceedance of 

any water quality standards." 

OSMRE should also clarify that the same requirement applies as a directly enforceable 

performance standard when operators mine through or divert streams. OSMRE should add the 

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same language given above to proposed Section 816.57(b ). OSMRE should also delete the 

prefatory language in 816. 57(b) about what the operator is not required to achieve. Such nonoperative language is more appropriately confined to the rule preamble. Attempting to explain in 

the rule itself what is not required risks conflict with the affirmative requirements of the 

subparagraph and has serious potential to generate confusion for regulators, operators, and the 

public. 

Recommended change to§ 816.71: Delete 816.71 (a)(7) and insert a new 816.7l(b) that 

provides: You must ensure that excess spoil placement does not cause or contribute to an 

exceedance of any water quality standards. 

Recommended change to§ 816.57(b)(2)(ii)(B): The biological condition of the restored stream 

must be adequate to support the uses of that stream segment that existed before mining and it 

must not preclude attainment of the designated uses of that stream segment under section 101(a) 

or 303 (c) of the Clean Water Act before mining or cause or contribute to an exceedance of any 

water quality standards. 

C. OSMRE Should Interpret the SMCRA Savings Clause to Allow Direct 

Enforcement of Water Quality Standards under SMCRA. 

The savings clause in Section 702(a) of SMCRA provides that "[n]othing in this Act shall 

be construed as superseding, amending, modifying, or repealing" the Clean Water Act, any rule 

or regulation adopted under the Clean Water Act, or any state laws enacted pursuant to the Clean 

Water Act. 30 U.S. C. § 1292(a). OSMRE mentions this provision several times in the proposed 

rule, but not in the context of§ 816.42's requirement to comply with water quality standards. 

The coal industry has relied on this savings clause to argue that§ 816.42 is unenforceable 

in situations where there is no applicable and directly enforceable CWA requirement to comply 

with water quality standards. In that situation, it argues that§ 816.42 is more stringent than 

CW A and therefore negated by the savings clause. The Sixth Circuit recently addressed this 

argument and reached that conclusion. Sierra Club v.JCG Hazard, LLC, 781 F. 3d 281,291 (6th 

Cir. 2015) ("To hold, in connection with the very same selenium discharges, that ICG is in 

compliance with Kentucky water quality-based effluent limitations for purposes of the CWA but 

in violation of those same water quality standards under the Surface Mining Act would create an 

inconsistency or conflict in regulatory practice, in direct contravention of§ 702(a)(3) [30 U.S. C. 

§ 1292(a)(3)]."). As we explain below, we believe that this case is wrongly decided. Unless 

OSMRE addresses and clarifies this issue, courts may hold that the proposed§ 816.42(a) is also 

made inoperative by the savings clause. 

If that occurred, the stream impairment caused by mining discharges could be 

irremediable. West Virginia has never established any effluent limitations for any ionic 

chemicals in NPDES mining permits, and it has given no indication that it ever will, 

notwithstanding the fact that every permit that it issues for a large-scale surface mine with valley 

fills will likely cause biological impairment and violations of narrative water quality standards. 

The evidence ofWVDEP's concerted efforts to avoid the implementation of narrative water 

quality standards is pervasive. WVDEP appealed an adverse ruling of reasonable potential in the 

Patriot case. It unsuccessfully sued to overturn EPA's Benchmark. Nat'/ Mining Ass'n v. 

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Insert offset folio 213 here 98945.213

McCarthy, 758 F.3d 243 (D.C. Cir. 2014). lt refused to identify conductivity as a cause of 

biological impairment in any impaired stream on its 303(d) list. It refused to adopt any TMDL 

relating to ionic chemicals or conductivity. It refused to apply its stream assessment 

methodology to biological impairment due to conductivity. As the court stated in Elk Run, this is 

an "abdication of responsibility by the WVDEP." 24 F. Supp. 3d at 549. "To credit the 

WVDEP's current position that there is no methodology for assessing West Virginia's biological 

narrative water quality standards ... -leading to no enforcement whatsoever-would be to. 

fail to enforce the CWA" Id. And West Virginia recently enacted two statutes that seek to 

undermine and evade two federal court rulings that, in reliance on EPA's owu decisions, found 

that mines are violating its narrative water quality standards. In these circumstances, there is no 

question that West Virginia has no intention of ever applying or enforcing its EPA-approved and 

federally-enforceable narrative water quality standards for biological impairment. Indeed, it 

wants to delete the existing NPDES requirement precisely because there are knowu water quality 

violations and because citizen enforcement of those violations has been effective. West Virginia 

is engaged in a deliberate and sustained effort to prevent enforcement of federally enforceable 

water quality standards because it wants to protect the mining industry while escaping both 

citizen enforcement and EPA oversight. 

As a legal matter, OSMRE must not allow this to happen. It should clarify that§ 816.42 

imposes an independent requirement to comply with water quality standards, and that this 

requirement is not inconsistent with the CW A, even if state-issued NPDES permits do not 

contain a condition requiring compliance with water quality standards. Water quality standards 

provide the "floor" for compliance with the CWA 33 U.S.C. § 131l(b)(I)(C). States cannot 

issue NPDES permits with conditions that fall below that floor./d § 1370. Nor can they 

backslide from existing requirements and fall below that floor./d §§ 1342(o)(3) (antibacksliding), 1313(d)( 4) (anti-degradation). Since water quality standards provide the "floor" for 

compliance under the CW A, a SMCRA rule requiring compliance with those standards cannot be 

inconsistent with the CWA and cannot violate SMCRA's savings clause. 

Three decades ago, OSMRE and EPA reached this same conclusion. SMCRA provides 

that regulations on environmental protection standards cannot be approved by OSMRE unless it 

has "obtained the written concurrence" of EPA "with respect to those regulations ... which relate 

to air or water quality standards promulgated under the" Clean Water and Clean Air Acts. 30 

U.S.C. § 1251(a)(B). When it enacted this section, Congress was concerned about direct conflicts 

between air or water quality standards, and it believed that the EPA concurrence procedure 

would be sufficient to address such conflicts. See H. Rep. No. 95-218, at 142 (1977). When 

OSMRE issued§ 816.42 in 1982, EPA expressly "concurred in the issuance of this regulation." 

47 Fed. Reg 47,216, 47,221. 

OSMRE also threatened to terminate West Virginia's state SMCRA program by "June 

15, 1982, unless West Virginia submits by that date copies of enacted regulations requiring that 

all water leaving the permit area meet Federal and State water quality statutes, regulations, 

standards or effiuent limitations." 47 Fed. Reg. 20,119, 20,122 (May II, 1982). ln September 

1982, after West Virginia submitted "regulations to require that water leaving the permit area 

will meet all applicable Federal and State water quality standards for the river, stream or 

drainway into which it is discharged," OSMRE removed that threat and approved that portion of 

West Virginia's program. 47 Fed. Reg. 39,821 (Sept. 10, 1982) EPA concurred that these West 

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Insert offset folio 214 here 98945.214

Virginia regulations were consistent with the CW A. !d. at 39,822; see also 50 Fed. Reg. 28,324, 

28,337 (July II, 1985) ("EPA concluded that the West Virginia program demonstrates the legal 

authority, administrative capability, and technical conformity to the Federal regulations 

necessary to maintain water quality standards promulgated under the authority of the Clean 

Water Act"). Thus, both OSMRE and EPA have previously found that a requirement to comply 

with water quality standards is consistent with the CW A and does not violate the savings clause. 

Indeed, OSMRE has stated that "Congress intended that surface coal mining and reclamation 

operation should not proceed unless all applicable water quality standards are achieved and 

maintained." 44 Fed. Reg. 14,902, 14,927 (Mar. 13, 1979). OSMRE should therefore confirm in 

its final rule that SMCRA's savings clause allows direct enforcement of water quality standards 

under SMCRA. 

D. OSMRE's Standard in Sections 701.5, 780.21(a)(8), 780.24(b)(iii), 

780.28(b )(2), 784.2l(b )(8), 784.24(b )(iii), 784.28(b )(2), 816.36( d)(2), 

816.57(b)(2), 816.71(a)(6), 816.81(b)(7), 817.36(d)(2), 817.57(b)(2), 

817.71(a)(6), and 817.8l(b)(7) for Protecting Stream Uses from Material 

Damage Should Be Clarified and Strengthened. 

OSMRE' s standard for protecting streams from material damage is based on the principle 

that material damage only occurs if mining impacts are sufficient to "preclude any designated 

surface-water use under sections lOI(a) and 303(c) of the Clean Water Act or any existing or 

reasonably foreseeable use of surface water or groundwater outside the permit area." 80 Fed. 

Reg. at 44,474. This language or language similar to it is contained in Sections 701.5, 

780.21(a)(8), 780.24(b )(iii), 780.28(b )(2), 784.21(b )(8), 784.24(b )(iii), 784.28(b )(2), 

816.36(d)(2), 816.57(b)(2), 816.71(a)(6), 816.81(b)(7), 81736(d)(2), 817.57(b)(2), 817.71(a)(6), 

and 817.81(b )(7). This standard should be clarified and strengthened in two respects. 

1. Material Damage Should Be Defined to Include Impacts that Cause or 

Contribute to Violations of Water Quality Standards. 

OSMRE rejects the view that "any exceedance of water quality standards or effluent 

limitations, no matter how minor and no matter what the cause, would constitute material 

damage to the hydrologic balance outside the permit area'' 80 Fed. Reg. at 44,474. As a result, 

under OSMRE's proposed definition in§ 701.5, material damage is untethered to violations of 

water quality standards. This is an unjustified reversal of the 1983 rule. The preamble to 

OSMRE's 1983 buffer zone rule stated that "OSM has not established fixed criteria [for defining 

"material damage to the hydrologic balance outside the permit area"] except for those 

established under [30 C.F.R.] §§ 816.42 and 817.42 related to compliance with waterquality standards and effluent limitations") (emphasis added). 48 Fed. Reg. 43,973 (Sept. 26, 

1983). In addition, the only judicial construction of the 1983 rule supports the conclusion that 

regulatory authorities must treat a violation of any applicable water quality standard as "material 

damage to the hydrologic balance." Ex. B, Ohio River Valley Environmental Coalition, Inc. v. 

Castle, No. 3:00-CV-58 (S.D.W.Va. June 14, 2000) (Memorandum Opinion and Order at 13) 

("Given the use of the term 'material damage' and its context in the statute, Congress intended 

that [the West Virginia state regulatory authority under SMCRA] set out in writing the current 

condition of the water's quality and the limits and ranges above which damage will be considered 

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material. Those limits must include the State's water quality standards applicable to the 

hydrologic resources found within the cumulative impact area."). 

OSM' s stated view misunderstands the nature of water quality standards formulated 

under the Clean Water Act. Every numeric water quality standard and water quality based 

effluent limitation is formulated with three factors in mind: (1) magnitude (the allowable level 

of pollutant (or pollutant parameter)- usually expressed as a concentration); (2) duration (the 

period, if any, over which the in-stream concentration must be averaged for comparison with 

criteria concentrations); and (3) frequency (how often the criteria may be exceeded). NPDES 

Permit Writers' Manual, EPA-833-K-10-001 (Sept. 2010) at 6-5. Thus, there are no "minor" 

exceedences of numeric water quality standards because those standards are formulated in a 

manner that overlooks de minimis exceedences of pollutant concentration limits that do not 

persist long enough or recur frequently enough to cause unacceptable harm to the waterbody in 

question. Simply put, each numeric water quality standard represents EPA's considered, sciencebased judgment of the dividing line between tolerable and unacceptable pollution of a water 

resource. 

It would be wholly inconsistent with the Clean Water Act for OSM or state regulators 

acting under SMCRA to substitute their judgment for EPA's concerning the tolerable amount of 

mining-related pollution in any surface water resource at either the design or operational stage. 

To the contrary, OSM's duty to refrain from construing its authority under SMCRA in any way 

that supercedes or modifies the Clean Water Act, 30 U.S.C. § 1292(a)(3), bars the agency from 

construing "material damage to the hydrologic balance" in a way that tolerates any excursion 

from numeric water quality standards or narrative ones, as well. Congress has mandated that 

CW A regulators draw the line between tolerable and unacceptable pollutant loads in the Nation's 

surface waters. Conversely, Congress clearly did not intend to allow State SMCRA regulators or 

OSM's own personnel to ignore the Jaw and science on which the CWA water quality standards 

are based and instead formulate their own judgments as to when pollution levels are too 

damaging to tolerate. 

OSM' s failure to define material damage in terms of any excursion from applicable 

numeric water quality standards makes OSM's proposed rule inconsistent with the Clean Water 

Act. States are required to list waters as impaired and place them on the biennial§ 303(d) List if 

water quality requirements "are not stringent enough to implement any water quality standards 

applicable to such waters." 40 C.F.R. § 130.7(b)(l). Thus, when mining impacts cause or 

contribute to violations of water quality standards, the impaired streams must be listed under§ 

303(d). OSM's definition of material damage fails to capture all of these impaired streams and 

therefore is inconsistent with the CW A. OSM should therefore amend the proposed definition of 

"material damage to the hydrologic balance outside the permit area" in§ 701.5 appropriately. 

Recommended change to definition of "material damage to the hydrologic balance outside 

the permit area" in§ 701.5: Add a new subparagraph (c) that provides: (c) Exceed applicable 

State or Federal water quality standards or criteria, including applicable State groundwater 

quality standards. 

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2. Material Damage Should Be Defined to Include Impacts that Partially 

or Completely Impair or Significantly Degrade an Existing or 

Designated Use. 

OSMRE does not define when a "preclusion" of surface water uses occurs. Neither 

section 101(a) nor section 303(c) of the CWA speaks of"precluding" a use. Section 101(a)(2) 

sets a goal of"water quality which provides for the protection and propagation offish, shellfish, 

and wildlife." 33 U.S C.§ 1251(a)(2). Section 303(c)(2)(A) requires States to adopt water quality 

standards that "protect" designated uses. !d., § 1313( c )(2)(A). Section 3 03( c )(2)(B) requires 

States to adopt criteria for toxic pollutants "as necessary to support" designated uses. !d., § 

1313(c)(2)(B). EPA's antidegradation regulation provides that existing uses "shall be maintained 

and protected." 40 C.F.R. § 13l.l2(a)(l ). "This means that the full use must continue to exist 

even if some change in water quality may be permitted." EPA, Water Quality Standards 

Regulation, 48 Fed. Reg. 51,400, at 51,403 (Nov. 8, 1983). "At a minimum, state water quality 

standards must satisfy these conditions." PUD No. 1 of Jefferson Cnty. v. Washington Dep 't of 

Ecology, 511 U.S. 700, 705 (1994). Thus, neither the CWA nor the implementing regulations are 

framed in terms of"precluding" an existing or designated use. The ordinary meaning of 

"preclude" is to prevent something from happening or make it impossible to happen. By that 

standard, "precluding a use" could mean that it must be shown that it is impossible for any fish to 

propagate in a stream. If so, that standard would be inconsistent with the CWA mandate to 

maintain and protect each existing use. 

In the section of its Water Quality Standards Handbook dealing with protection of 

existing uses, EPA uses a different standard than preclusion. EPA states that maintenance and 

protection of existing uses is "the absolute floor of water quality in all waters of the United 

States." Ex. RR, Handbook, § 4.4. "If a planned activity will foreseeably lower water quality to 

the extent that it no longer is sufficient to protect and maintain the existing uses in that water 

body, such an activity is inconsistent with EPA's antidegradation policy, which requires that 

existing uses are to be maintained'' !d. For aquatic life/wildlife uses: 

No activity is allowable under the anti degradation policy which would partiaffy or 

completely eliminate any existing use whether or not that use is designated in a State's 

water quality standards. The aquatic protection use is a broad category requiring further 

explanation. Non-aberrational resident species must be protected, even if not prevalent in 

number or importance. Water quality should be such that it results in no mortality and no 

significant growth or reproductive impairment of resident species. Any lowering of water 

quality below this full level of protection is not allowed. 

Id § 4.4.2 (emphasis added). In addition, EPA states that physical modifications to a waterbody 

cannot result in "significant degradation" to the aquatic ecosystem. !d. § 4.4.3. To be consistent 

with the CW A, then, OSMRE should replace the word "preclude" with "partially or completely 

eliminate or significantly degrade." Alternatively, OSMRE should define "preclude" to mean 

"partially or completely eliminate or significantly degrade." This would also make the rule 

consistent not only with federal anti-degradation rules under the CWA, 40 C.F.R. § 131.12(a)(l), 

but also with the standard for listing streams as impaired under§ 303(d)(1)(A), which requires 

states to identify waters which "are not stringent enough to implement any water quality standard 

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Insert offset folio 217 here 98945.217

applicable to such waters." 33 U.S.C. § 1313( d)( l )(A). That language similarly requires states to 

maintain and protect existing water quality standards and uses. 

OSMRE defines "existing uses" as "those uses in existence at the time of the preparation 

of the permit application." 80 Fed. Reg. at 44,475. That definition is potentially less protective 

than, and therefore inconsistent with, EPA's definition of "existing uses," which are "those uses 

actually attained in the water body on or after November 28, 1975, whether or not they are 

included in the water quality standards." 40 C.F.R. § 13 U( e). For example, if the permit 

application is prepared in 2016, and the affected watershed only had mining activity after 1975, 

the existing use in 2016 would likely be more impaired than the existing use prior to mining in 

1975. Preserving the "existing uses" at the time of the new 2016 mining application may only 

protect the existing level of impairment caused by prior mining in the same watershed. EPA's 

definition provides the minimum scope of protection required by the Clean Water Act and must 

be incorporated into OSMRE's rule. 

OSMRE invites comment on whether it should replace the term "existing uses" with 

"premining uses" for purposes of clarity. 80 Fed. Reg. at 44,475/1. We believe that "premining 

uses" is the better term, because hundreds of miles of streams in Appalachia are already impaired 

by mining. OSMRE's mandate to prevent material damage to the hydrologic balance outside the 

permit area demands that it extend protection to all water sources impaired by mining since 

SMCRA was enacted in 1977. Using the term "premining uses" is also consistent with 

OSMRE's proposal that previously degraded stream segments must be improved "to the fullest 

extent possible" as part of new stream restorations, "not just restored to the condition that existed 

before the current mining operation." 80 Fed. Reg. at 44,554/2. 

Recommended change to definition of"material damage to the hydrologic balance outside 

the permit area" in§ 701.5: Revise subparagraph (a) to read as follows: Partially or completely 

eliminate or significantly degrade any designated use under sections IOI(a) or 303(c) of the 

Clean Water Act or any existing or reasonably foreseeable use of surface water or groundwater 

outside the permit area; 

V. OSMRE SHOULD STRENGTHEN REQUIREMENTS IN§ 816.38 TO AVOID 

CREATION OF AClD-FORMING AND TOXIC-FORMING MATERIALS. 

In proposed§ 816.38, OSMRE would require permittees to "use the best technology 

currently available to handle acid-forming and toxic-forming materials in a manner that will 

avoid the creation of acid or toxic mine drainage into surface water and groundwater." 80 Fed. 

Reg. at 44,651. This proposed rule does not fully carry out the avoidance requirement in § 

515(b )(! 0) of SMCRA. It requires avoidance only to the extent that the permittee must "use the 

best available technology." The statute does not condition avoidance in that manner, and instead 

requires avoidance unconditionally. That is the holding in Rith Energy, Inc. v. OSM, Ill IBLA 

239 (IBLA 1989) As OSMRE acknowledges, that case "upheld OSMRE's refusal to approve a 

mining plan that sought to minimize, rather than avoid, [Acid Mine Drainage]." 80 Fed. Reg. at 

44,479. In that case, the Interior Board of Land Appeals (IBLA) agreed with OSMRE that "the 

statute, as properly read, requires the agency to minimize disturbance to the prevailing 

hydrologic balance by avoiding acid or toxic mine drainage. Minimizing the contact of water and 

toxic-producing deposits, as argued by petitioner [Rith Enerb'Y ], is not the standard." Ill lBLA 

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Insert offset folio 218 here 98945.218

at 249. By only proposing to require avoidance by using best available technology, OSMRE is 

repeating the error the IBLA rejected in Rith, and is setting an illegal standard based on 

minimization rather than avoidance. Requiring use of the best available technology is effectively 

the same as requiring only minimization, because that technology as a practical matter may not 

achieve complete avoidance. That result is prohibited by SMCRA. 

Recommended change to§ 816.38: You, the permittee, must handle acid-forming and toxicforming materials in a manner that will avoid the creation of acid or toxic mine drainage into 

surface water and groundwater. 

Recommended change to§ 773.15(n): Add a new subparagraph (3) as follows: The proposed 

operation will minimize the disturbances to the prevailing hydrologic balance at the mine-site 

and in associated offsite areas by avoiding the creation of acid or toxic mine drainage into 

surface water and groundwater. 

VI. OSMRE SHOULD REQUIRE RESTORATION OF BOTH THE FORM AND 

ECOLOGICAL FUNCTIONS OF EPHEMERAL STREAMS. 

Existing SMCRA regulations provide no protection for ephemeral streams. OSMRE 

recognizes that "ephemeral streams are an important component of headwaters streams" and its 

proposed rule includes some protections for ephemeral streams. 80 Fed. Reg. at 44,451. OSMRE 

invites comments on whether it should provide equal protection for all streams, regardless of 

whether they are ephemeral, intermittent, or perennial. !d. We believe it should. EPA's recent 

report on the connectivity of waters of the United States found that "[a]ll tributary streams, 

including perennial, intermittent, and ephemeral streams, are physically, chemically, and 

biologically connected to downstream rivers via channels and associated alluvial deposits where 

water and other materials are concentrated, mixed, transformed, and transported." EPA, 

Connectivity of Streams and Wetland.~ to Downstream Waters: A Review and Synthesis of the 

Scientific Evidence ES-2 (2015). Assigning less protection to ephemeral streams will encourage 

permittees to downgrade higher order streams into that category to try to reduce mitigation costs. 

That is already occurring under § 404 of the CW A. For example, the applicant classified only 

200 feet of streams in the Spruce No. I mine area as perennial, while EPA found that over 

20,000 feet of streams had been misclassified as ephemeral or intermittent when in fact they 

were perennial. Ex. l, EPA, Spruce No.1 Mine Final Determination, (Jan. 2011), Appendix 3, 

pp. 3-6. 

OSMRE proposes to require restoration of stream form only for ephemeral streams, not 

restoration of ecological functions. DEIS at ES-21, ES-23, ES-30, 4-97 to 4-98. OSMRE also 

proposes to limit the definition of the scope of material damage to perennial and intermittent 

streams. 80 Fed. Reg. at 44,588 (§ 701.5). However, as OSMRE recognizes, ephemeral streams 

serve important functions in watersheds, such as production and transport of food resources. 80 

Fed. Reg. at 44452; DEIS at C-2. Ephemeral streams also provide biological connectivity to 

intermittent and perennial streams. DEIS at C-2. "Intermittent and ephemeral streams are critical 

to biogeochemical processes that have watershed-scale impacts." Ex. SS, Emily S. Bernhardt and 

Margaret A. Palmer, The environmental costs of mountaintop mining valley fill operations.fbr 

aquatic ecmystems of the Central Appalachians, Ann. N.Y. Acad. Sci. 1223: 39-57, at 51 

(2011). For example, one study found that coarse benthic organic matter "was greatest in the 

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natural ephemeral streams and least in the constructed ephemeral channels on valley fills." EPA, 

Effects of Mountaintop Mines and Valley Fi/l5 on Aquatic Ecosystems of the Central 

Appalachian Coa(fieldY 7! (20 II); DEIS at 4-94. Some ephemeral streams also "provide unique 

habitat for a diverse population of insects and other animals, from macroinvertebrates to 

salamanders." Ex. SS, Bernhardt and Palmer 52 (2011); EPA 23, 87 (2011); DEIS at C-19. Fiftynine percent of the streams in the U.S. are ephemeral or intermittent. DEIS, p. 3-134. OSMRE 

provides no scientific reason for not restoring their functions. Failure to do so would mean that 

ephemeral streams could obtain failing scores on stream condition indices and be listed as 

impaired on§ 303(d) lists due to mining activities, without any requirement that they be restored 

to pre-mining functional conditions. The failure to restore those functions would likely result in 

violations of water quality standards and in significant degradation to waters of the U.S., in 

violation of the§ 404(b)(l) Guidelines at 40 CF.R. § 230.lO(b)(l) and (c). 

Recommended change to§ 701.5: Material damage to the hydrologic balance outside the 

permit area means any adverse impact from surface coal mining and reclamation operations or 

from underground mining activities, including any adverse impacts from subsidence that may 

occur as a result of underground mining activities, on the quality or quantity of surface water or 

groundwater, or on the biological condition of an ephemeral, perennial or intermittent stream, 

that wouldVII. OSMRE'S PROPOSED METHODS FOR REMEDYING DISCHARGES OF 

ELEVATED CONDUCTIVITY FROM MINES HAVE NO SCIENTIFIC BASIS. 

The proposed rule does not provide a scientific basis for its assertions that it is feasible to 

counteract increased conductivity from mining discharges by land management practices. Absent 

such a basis, OSMRE' s design for avoiding expensive treatment oflong-tenn pollution 

discharges will fail. The proper course instead is not to permit such mining activities in the first 

place. 

OSMRE recognizes that elevated concentrations of alkaline ions in mine drainage cause 

increased stream conductivity, which is highly correlated with biological impairment 

downstream from mine sites. 80 Fed. Reg. at 44,441. OSMRE also recognizes that this 

impairment persists for many years, and studies "have not found any ecologically significant 

improvement in electrical conductivity with either time or the extent of reforestation of the 

minesite." Jd OSMRE proposes to remedy this problem in three ways: (1) by "requiring that 

backfilling techniques consider impacts on electrical conductivity," (2) by "requiring that excess 

spoil fills be constructed in compacted lifts," and (3) by "incorporating elements of the Forestry 

Reclamation Approach into our soil reconstruction and revegetation rules." !d. 

OSMRE cites no scientific evidence that any of these three methods is likely to be 

successful. The first method is purely procedural. Section 780.28(d)(2)(v) "would require that 

the applicant demonstrate that the excess spoil fill or coal mine waste disposal facility has been 

designed in a manner that will not cause or contribute to a violation of water quality standards or 

result in the formation of toxic mine drainage." 80 Fed. Reg. at 44,518. OSMRE states that this 

requirement "is intended to ensure that discharges to surface water or groundwater from the 

excess spoil fill or coal mine waste disposal facility would not have a substantial adverse impact 

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on water quality or aquatic biota in receiving streams." !d. OSMRE offers no evidence that fill 

design has any effect on water quality. 

OSMRE's second method for reducing conductivity relies on compacted lifts of fill. 

While this practice is beneficial and should be required, it has been a standard practice and 

requirement for many years, and will not prevent elevated conductivity below valley fills. 

OSMRE was one of four agencies that produced the 2005 Mountaintop Mining/Valley Fill 

Programmatic Environmental Impact Statement (MTM/VF PElS). It states that "[h]ead-ofhollow and valley fills must be constructed in lifts of spoil no greater than four feet in thickness." 

Ex. TT, MTM/VF PElS at III.K-2. OSMRE regulation at§ 816.71(e)(2) provides that "[e]xcess 

spoil shall be transported and placed in a controlled manner in horizontal lifts not exceeding 4 

feet in thickness; [and] concurrently compacted as necessary to ensure mass stability and to 

prevent mass movement during and after construction." OSMRE's method for reducing 

conductivity is based merely on eliminating the regulatory language allowing states to grant an 

exception to this requirement. 80 Fed. Reg. at 44,559. OSMRE cites no evidence that these 

exceptions are widespread and can account for the discharges of dissolved solids and resulting 

elevated conductivity at virtually every mine site with valley fills. OSMRE' s theory that the 

exceptions are a major cause of the problem is unproven and implausible. OSMRE also cites no 

evidence to support its statement that "[i]ncreased compaction also should reduce discharges of 

total dissolved solids and other parameters of concern, thus minimizing the adverse impacts on 

fish, wildlife, and related environmental values .. . "!d. at 44,561. Given that compaction is 

already required by existing OSMRE rules, and recently constructed mines such as Fola's 4A 

Surface Mine in West Virginia (first permitted after 2001) have had discharges with elevated 

conductivity for the past decade despite using compaction, there is no plausible support for that 

statement. See Ex. UU, OVEC v. Fola Coal Co., LLC, Civil No. 2:13-5006 (S.D.W.Va.), 

Stipulation of the Parties pp.l2-25, March 4, 2015, ECF No. 53. Special condition 23 in Fola's 

NWP 21 authorization for that mine provided that "Compaction criteria must be established. 

Shot rock must be processed to reduce the lift thickness to ensure adequate compaction. 

Compaction must be tested as each lift progresses upward." Ex. WW, US ACE, NWP 21 

authorization for Fola Surface Mine No. 4A, Special Conditions, p. 8 (Oct. 24, 2003). Despite 

that requirement, conductivity in Fola's mine discharges is elevated and downstream waters are 

biologically impaired. 

OSMRE's third method for reducing conductivity is based on the Forestry Reclamation 

Approach for soils and vegetation. Specifically, OSMRE cites a single unpublished master's 

thesis to support the claim that this Approach can reduce conductivity by 50 percent. 80 Fed. 

Reg. at 44,441, n. 33, citing Kenton, "Influence of Spoil Type on Afforestation Success and 

Hydrochemical Function on a Surface Coal Mine in Eastern Kentucky" (2014). However, the 

experiment in that thesis did not involve valley fills. Instead, three spoil-type treatments (brown 

weathered sandstone, gray unweathered sandstone, mixed sandstone, and shale) were enddumped in 0.4-ha plots, and the runoff from those experimental plots was monitored. Kenton 

(2014). at 30. The results showed that the brown weathered sandstone generated less 

conductivity than the other soil types. !d. at 59-60. Based on those results, Kenton recommended 

using brown sandstone as the soil medium on the surface. That recommendation has little value 

for valley fill construction. Valley fills cannot feasibly be constructed solely of brown sandstone 

at every site if that is not what the local geology contains. The Forestry Reclamation Approach 

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may be beneficial, but it will not prevent mountaintop removal mining operations from causing 

damaging levels of conductivity. 

The reality is that increased conductivity is a function of the volume of exposed rock in 

the valley fill. During mining, the overlying rock layers are blasted apart to reach coal seams, 

and that rock is placed in valley fills. Water infiltrates into the fill and contacts the exposed rock. 

The water combines with the pyrite in the rock to form sulfuric acid, which generates increased 

dissolved solids, which causes elevated conductivity. See Ex. VV, Bernhardt eta!., How Many 

Mountains Can We Mine? Assessing the Regional Degradation of Central Appalachian Rivers 

hy Surface Coal Mining, Envtl. Sci. & Tech. 46(15):8115-8122 at 8115 (2012). OSMRE admits 

that "[p ]recipitation may infiltrate and percolate through the pile, which can result in an increase 

in the concentration of total dissolved solids leaving the site." 80 Fed. Reg. at 44,548. OSMRE's 

methods do nothing to reduce the volume of rock exposed to that infiltration. 

OSMRE also proposes to reduce infiltration by requiring placement of a low permeability 

layer below the lowest coal seam mined, thereby creating an aquitard to reduce infiltration of 

water into the valley fill and supposedly reducing generation of dissolved solids. 80 Fed. Reg. at 

44,547. There is no evidence that this has ever been attempted, or that it will work. OSMRE cites 

no studies or qualified expert opinions as to its effectiveness. In any event, if the aquitard does 

not enclose the entire surface of the valley fill, water will still infiltrate into the crushed rock 

layers between the surface and the lower aquitard, thereby generating alkaline mine drainage. 

OSMRE' s failure to demonstrate the feasibility of restoring mined streams, recreating 

mined streams, and preventing discharges with high conductivity-in combination with its 

failure to protect streams from direct damage in the first place--means that OSMRE cannot 

achieve its announced goal of preventing long-term environmental harm to streams. OSMRE 

acknowledges that SMCRA requires permittees to prevent material damage, protect existing 

uses, comply with water quality standards, and avoid the long-term costs of treating pollution. 

Proposed Section 773.15(n) "would require that the regulatory authority find that the applicant 

has demonstrated that the operation has been designed to prevent the formation of discharges that 

would require long-term treatment after mining has been completed." 80 Fed. Reg. at 44,479. 

"[A]pproval of a permit that would result in the creation of a discharge requiring long-term 

treatment would be inconsistent with SMCRA." I d. Yet, as we have shown above, the stream 

mitigation measures that OSMRE is relying on to restore or create streams are not effective. The 

measures OSMRE is relying on to prevent high conductivity are unproven. It is arbitrary and 

capricious for an agency to rely on speculative and unproven mitigation measures and to fail to 

provide any explanation or analysis showing why those measures will be effective. OiEC v. 

Hurst, 604 F. Supp. 2d 860, 894 (SD.W.Va. 2009). 

Absent such effective measures, OSMRE and the public will be left with mines that 

require expensive treatment of long-term discharges. Bonding systems are already under severe 

strain. While OSMRE correctly proposes to require permittees to post sufficient bonds to pay for 

that treatment, the forecasted long-term decline in coal production, combined with high industry 

debt loads, means that coal companies will lack the financial resources to post the large bonds 

that would be required to truly cover these treatment costs. This year has already witnessed an 

increasing number of bankruptcies in the coal industry, with filings by Patriot Coal, Walter 

Energy, and Alpha Natural Resources, in which the companies may be allowed to discharge their 

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liabilities. Before it adopts a rule that relies on coal companies to finance the long-term treatment 

of pollution discharges, OSMRE must ensure that such treatment is not only technologically 

feasible, but economically feasible. Otherwise, after mining companies default on their 

obligations, the U.S. Treasury and taxpayer will end up paying for needed long-term treatment. 

OSMRE must therefore prepare a financial analysis showing that the coal industry is capable of 

carrying out the duties that OSMRE assumes it can handle, or adopt stricter protections that 

prevent these damaging activities in the first place. 

The failure of mitigation measures to prevent elevated conductivity and biological 

impairment is illustrated by Fola's restoration attempts on Boardtree Branch at its Surface Mine 

No.3 in West Virginia. West Virginia has listed that stream on its§ 303(d) List as biologically 

impaired by ionic stress. Sierra Club, OVEC and WV Highlands Conservancy sued Fola for 

discharging ionic pollutants that caused or contributed to that impairment, in violation ofFola's 

permit condition prohibiting violations of narrative water quality standards. In its settlement, 

Fola agreed to improve the stream habitat first to try to achieve a passing WVSCI score and, if 

that failed, to install a treatment system. Fola completed the restoration in early 2014, which 

consisted of removing the precipitates on the bottom of the stream and reconstructing the stream 

channel and banks in accordance with Rosgen principles. Fola's most recent monitoring results 

show that despite Fola's efforts, the stream still has very high conductivity and failing WVSCl 

scores a year and a half later. See Ex. XX, Fola Boardtree status report and monitoring results. 

In the absence of proven remedies to prevent long-term pollution and the financial 

resources to treat it, the proper course is not to permit mines that create those problems in the 

first place. OSMRE gives lip service to this principle, stating that "[i]n no case should a permit 

be approved if the determination of probable hydrologic consequences or other reliable 

hydrologic analysis predicts the fonnation of a postmining pollutional discharge that would 

require continuing long-term treatment without a defined endpoint." 80 Fed. Reg. at 44,479, 

44,532. But OSMRE has failed to take the necessary steps to ensure that this does not occur. 

Instead, it is relying on nothing more than its unsupported belief that its required remedial 

measures will be successful. That is impermissible. Hurst, 604 F. Supp. 2d at 894 ("I am left 

with nothing but the Corps' unsupported belief in that conclusion .... [T]he Corps' statements 

are 'little more than its own promise to obey the law'"). 

VIH. OSMRE MUST STRENGTHEN THE RULE'S REVEGETATION AND 

REFORESTATION PROVISIONS. 

OSMRE correctly recognizes that the current regulations implementing SMCRA's 

revegetation and reforestation requirements are woefully inadequate. They have allowed the 

decimation of Appalachia's forests, with untold negative consequences for the region's wildlife, 

climate, and water resources. 

Central Appalachia is home to "globally si~nificant" forests, notable for their "spatially 

extensive character." Ex. YY, Riitters et al. 20007 · Between 1992 and 2012, however, an 

73 Ex. YY, Kurt Ritters et al., Global-Scale Patterns ofF orest Fragmentation, The Resilience 

Alliance (Sep. 29, 2000), http://www.ecologyandsociety.org/vol4/iss2/art3/. 

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Insert offset folio 223 here 98945.223

estimated 1. l million hectares of Central A~palachian forest, or 6. 8 percent of the total, has been 

impacted by mountaintop removal mining. 4 Forest fragmentation is even more pronounced. 

Surface coal mining in Central Appalachia "resulted in a loss of interior forest that was 

approximately 1.5-5.0 times greater than the total forest loss attributable to the practice."75 

This forest destruction has especially strong impacts on Appalachian communities 

because the mountain culture of this region is closely connected to the ancient, mixed deciduous 

hardwood forest and the species found only within that ecosystem. As the 2005 Programmatic 

Environmental Impact Statement noted, "The rugged terrain, the vast mixed hardwood forests, 

the narrow river valleys and the extensive coalfields have profoundly shaped the culture, 

economy, and quality of life of the region's residents. The land provides the livelihood, and 

forms the basis for a way oflife for much of the population." PElS, p. liLT. The cumulative loss 

of forested land resulting from mountaintop removal mining has had, and continuous to have, a 

profound impact on traditional mountain culture in Appalachia. 

Reclamation under the CUITent SMCRA implementing regulations has been a failure. "It 

is estimated that there are more than 300,000 ha across the eastern United States where 

reforestation on reclaimed mine sites has not met expected outcomes." Ex. AAA, Wickham at 

342. Wickham et al. describe the consequences: 

vegetation on mined sites showed little evidence of forest recovery and was dominated by 

nonnative grasses and trees. Edge forests lacked understory herbs that provide habitat, 

nutrients, and improve soil structure. The bird communities (both raptor and songbird) on 

reclaimed sites shifted toward grassland, shrub land, and edge-tolerant species at the 

expense of avian species that require large, contiguous blocks of mature forest, the native 

vegetation of the region. The abundance and diversity of species that depend on mature 

forest were reduced in the forest patches associated with reclaimed mines. 

Jd. at 343. 

While the Stream Protection Rule is an improvement over current regulations with 

respect to reforestation and vegetative cover, SMCRA requires that OSMRE strengthen these 

requirements further. SMCRA defines minimum requirements for reestablishment of vegetative 

cover after mining. The statute itself also spells out specific exceptions to these requirements. 

OSMRE may not create additional, extra-statutory exceptions by rule. New Jersey v. EPA, 517 

F.3d 574, 583 (D.C. Cir. 2008); Am. Methyl Cor]J. v. EPA, 749 F.2d 826, 836 (D.C. Cir. 1984) 

(quoting Nat'! Railroad Passenger Corp. v. Nat '1 Ass 'n of Railroad Passengers, 414 US. 453, 

458 (1974)) ("'When a statute limits a thing to be done in a particular mode, it includes the 

negative of any other mode.'"). 

74 Ex. ZZ, Emily S. Bernhardt and Margaret A. Palmer, The environmental costs !?[mountaintop 

mining valley fill operationsjiJr aquatic ecosystems oft he Central Appalachians, Ann. N.Y. 

Acad. Sci. 1223 39-57 (2011) at 39, 75 Ex. AAA, James Wickham et al., The Overlooked Terrestrial Impacts of Mountaintop 

Removal Mining, BioScience Vol. 63, No. 5, pp. 335-348 at 340 (May 2013). 

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Insert offset folio 224 here 98945.224

Specifically, 30 U.S.C. § 1265(b )( 19) provides that the regulations "shall require the 

operation as a m1mmum to ... establish on the regraded areas, and on all other lands affected, a 

diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area 

of land to be affected and capable of self-regeneration and plant succession at least equal in 

extent of cover to the natural vegetation of the area. " 

30 U.S C. § 1265(b )(19) & (20) expressly provide for two-and only two-exceptions to 

this requirement. First, "introduced species may be used" where "desirable and necessary to 

achieve the approved postmining land use plan." Second, the regulatmy authority may make 

exceptions to 1265(b )( 19) "when the regulatory authority issues a written finding approving a 

long-term, intensive, agricultural postmining land use." The statute provides for no other 

exceptions from these requirements. 

OSMRE' s proposed Sections 816.111 and 816. 116 are inconsistent with these statutory 

provisions, unreasonable, and arbitrary, in at least the following respects: 

• Section 816.lll(a) fails to require that the vegetative cover be "of the same seasonal 

variety native to the area of land to be affected," as required by 3 0 U. S.C. § 1265(b )(19) 

and § 1265(a). 

• Section 816.111(a)(3) would create an exception to the revegetation requirements for 

"rock piles, water areas, and other non-vegetative features" created under a fish and 

wildlife protection plan approved by the state. This exception would be contrary to 30 

U.S.C. § 1265(b )(19) and does not fall within either of the statutory exceptions. 

• Section 816.111(a)(3) would create an exception to the revegetation requirements for any 

"impervious surface" approved by the state regulatory authority "in support of the 

postmining land use." This exception would be contrary to 30 U.S.C. § 1265(b)(19) and 

does not fall within either of the statutory exceptions. It allows the regulatory authority to 

create exceptions to 30 U.S.C. § 1265(b)(19) for any approved postmining land use, 

while the statute limits such exceptions to circumstances where there is an approved 

"long-term, intensive, agricultural postmining land use." 30 U.S.C. § 1265(b)(20). 

• Section 816.116 would authorize the regulatory authority to develop "standards for 

revegetation success" that are contrary to statutory requirements. Because the statute 

itself defines the minimum requirements for revegetation, 30 U.S.C. § 1265(b )(19), 

OSMRE may not establish different requirements by rule. 

o Section 816.116(b) states that standards for success must be "adequate to 

demonstrate restoration of premining land use capability and must reflect" the 

revegetation plan. This is untethered from and inconsistent with the statutory 

standard of30 US.C. § 1265(b)(19) 

o Section 816.116(b )(4) states that standards for success must reflect the 

"postmining land use established under§ 780.24." This exception would be 

contrary to 30 U.S. C. § 1265(b )(19) and does not fall within either of the express 

exceptions. It would allow the regulatory authority to create exceptions to 30 

U.S. C.§ 1265(b)(19) for any approved postmining land use, while the statute 

limits such exceptions to circumstances where there is an approved "long-term, 

intensive, agricultural postmining land use." 30 U.S. C.§ 1265(b)(20). 

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o Section 816.116( c )(3) would exempt "land actually used for cropland" from 

revegetation requirements. This exception would be contrary to 30 U.S.C. § 

1265(b)(19) and does not fall within either of the statutory exceptions. 

o Section 816.116( d) states that the "ground cover, production, and stocking of the 

revegetated area will be considered equal to the approved success standard for 

those parameters when the measured values are not less than 90 percent of the 

success standard." That provision is inconsistent with 30 U.S. C.§ 1265(b)(l9), 

which requires "at a minimum," revegetation "at least equal in extent of cover to 

the natural vegetation of the area." Section 816.116(d) would authorize 

revegetation below the statutory minimum. 

o Section 816.116(g) would exempt areas "to be developed for industrial, 

commercial, or residential use" from the revegetation requirements. This 

exception is contrary to 30 U.S.C. § 1265(b )( 19) and does not fall within either of 

the statutory exceptions. 

With regard to reestablishment afforested riparian buffers, OSMRE acknowledges that 

the I 00-foot buffer width it proposes "lies within the lower end of the range of recommended 

minimum widths for wildlife habitat and flood mitigation, in the middle of the range for 

sediment removal and nitrogen removal, and exceeds the range recommended for water 

temperature moderation and bank stabilization and aquatic food web maintenance." 80 Fed. Reg. 

at 44,494. The minimum width for the buffer zone should be no less than the middle or average 

value needed to support any of those functions, and should therefore be increased to ensure at 

least average support for wildlife habitat and flood mitigation. 

IX. OSMRE SHOULD STRENGTHEN THE SELF-BONDING PROVISIONS TN 

SECTION 800.23. 

OSMRE proposes only minor changes to the self-bonding provision in § 800.23 related to 

the rating organizations used to determine corporate eligibility. 80 Fed. Reg. at 44,539. OSMRE 

should strengthen this section to provide that if any part of a corporation, including any 

subsidiary, does not meet the self-bonding requirements, no part of that corporation may qualify 

for a self-bond. 

X. OSMRE SHOULD STRENGTHEN REGULATORY PROTECTION OF 

DWELLINGS AND OTHER STRUCTURES FROM DAMAGE DUE TO COAL 

MINE SUBSIDENCE. 

We oppose OSMRE's proposal at 80 Fed. Reg. 44,577 to delete language in existing 30 

C.F.R. § 784.20(a)(3) that requires a pre-subsidence survey of the condition of all noncommercial buildings or occupied residential dwellings and related structures that might be 

materially damaged by subsidence, or have their reasonably foreseeable value diminished by 

subsidence. We also oppose OSMRE's proposal to remove all of existing 30 C.F.R § 

817.12l(c)( 4) except paragraph (c)(4)(v), thus eliminating the rebuttable presumption of 

causation by subsidence with respect to damage to structures located within the angle of draw 

from underground coal workings. OSM bases these proposals on an erroneous interpretation of 

the decision in National Mining Ass'n v. Babbitt, 172 F.3d 906 (D.C. Cir. 1999). That decision 

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requires revision of the regulations at issue, but it most certainly neither requires nor supports the 

proposed abandonment of pre-subsidence surveys or the rebuttable presumption of causation. 

A pre-subsidence survey can be a vital tool in proving that coal mine subsidence is the 

cause of damage to land or structures that occurs after underground mining operations begin. 

When OSMRE adopted the existing rule on pre-subsidence surveys, the agency explained that 

such surveys were necessary "to effectively implement the requirements of the Energy Policy 

Act," 60 Fed. Reg. 16,730 (1995), because the required information is "essential to establish a 

baseline against which the effects of subsidence may be measured," 60 Fed. Reg. 16,729. 

The D.C. Circuit found this explanation satisfactory. National Mining Ass 'n v. Babbitt, 

172 F.3d at 914. Nonetheless, the court vacated the regulation because OSMRE had defined too 

broadly the area subject to the rebuttable presumption of causation and within which each permit 

applicant must conduct its pre-subsidence survey. Id at 913, 915. The vacated regulations 

established the rebuttable presumption and required surveys not only within the so-called 

"shadow area" that directly overlies proposed underground mine workings but also within a 

larger area defined by each proposed mine's "angle of draw'' 

Nothing in the court's decision prohibits OSMRE from redrafting the existing regulations 

to apply the rebuttable presumption or to require pre-subsidence surveys only in the "shadow 

area." Indeed, OSMRE noted in suspending the regulations that the appeals court had clearly 

upheld the Secretary's authority to require a pre-subsidence structural condition survey of all 

protected structures. 64 Fed. Reg. 71,652, 71,653 (Dec. 17, 1999). 

Instead of abandoning the rebuttable presumption and the pre-subsidence survey 

requirement with respect to structures, OSMRE should redraft the existing regulatory language 

to tailor those provisions to the appeals court's decision. OSMRE' s best option would be to 

apply the presumption and require pre-subsidence surveys within areas defined by the "angle of 

critical deformation" that the appeals court appeared to find acceptable. We realize that doing so 

would require OSMRE to develop the scientific rationale for use of the angle of critical 

deformation as a basis for rebuttable presumption of subsidence causation, and we encourage 

OSMRE to do so. Alternatively and at a minimum, OSMRE should revise its proposed 

regulations to apply the rebuttable presumption of subsidence causation and require presubsidence surveys of protected features within each proposed underground mine's "shadow 

area". 

Recommended change to § 784.30(a)(3): Revise the subsection as follows: 

(a) Pre-subsidence survey. Each application must include: 

(3) A survey of the condition of all non-commercial buildings or occupied residential 

dwellings and structures related thereto, that may be materially damaged or for which the 

reasonably foreseeable use may be diminished by subsidence, within the land located 

immediately above the proposed underground mine workings; as well as a survey of the quantity 

and quality of all drinking, domestic, and residential water supplies within the pennit area and 

adjacent area that could be contaminated, diminished, or interrupted by subsidence. If the 

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applicant cannot make this survey because the owner will not allow access to the site, the 

applicant will notify the owner, in writing, of the effect that denial of access will have as 

described in§ 817.121(c)(4) of this chapter. The applicant must pay for any technical assessment 

or engineering evaluation used to determine the pre-mining condition or value of such noncommercial buildings or occupied residential dwellings and structures related thereto and the 

quantity and quality of drinking, domestic, or residential water supplies. The applicant must 

provide copies of the survey and any technical assessment or engineering evaluation to the 

property owner and regulatory authority. 

Recommended change to§ 817.121(1): Revise the subsection as follows: 

(f) Rebuttable presumption of causation !![subsidence within lands above underground mine 

workings; information to be considered in determination c:f causation in other areas. (i) If 

damage to any non-commercial building or occupied residential dwelling or structure related 

thereto occurs as a result of earth movement within an area immediately overlying underground 

mine workings, a rebuttable presumption exists that the permittee caused the damage. 

(ii) If the permittee was denied access to the land or property for the purpose of conducting the 

pre-subsidence survey in accordance with§ 784.20(a) of this chapter, no rebuttable presumption 

will exist. 

(iii) Rebuttal of presumption. The presumption will be rebutted if, for example, the evidence 

establishes that: The damage predated the mining in question; the damage was proximately 

caused by some other factor or factors and was not proximately caused by subsidence; or the 

damage occurred outside the surface area within which subsidence was actually caused by the 

mining in question. 

(iv) Information to be considered in determination()[ causation. In any determination whether 

damage to protected structures was caused by subsidence from underground mining, all relevant 

and reasonably available information will be considered by the regulatory authority. 

XI. OSMRE MUST PRESERVE THE RIGHT OF THE OWNER OF A 

SUBSIDENCE-DAMAGED DWELLING OR SIMILAR STRUCTURE TO 

CHOOSE BETWEEN REPAIR OR MONETARY COMPENSATION; THE 

AGENCY MAY NOT LAWFULLY AUTHORIZE COAL MINE PERMITTEES 

TO CHOOSE. 

OSMRE's rules have long required coal operators to repair or compensate the owner of 

any non-commercial building, occupied residential dwelling, or related structure that becomes 

damaged as the result of coal mine subsidence. 30 C.F.R. § 817.121(c)(2). Without any 

explanation, however, OSMRE proposes to rewrite the pertinent regulation in a manner that 

gives the coal mine permittee who damages property the right to choose between repairing it or 

compensating the owner. See 80 Fed. Reg. 44,695 (§ 817.121(d)). Under OSMRE's proposed 

revision of the rule, a person who suffers damage apparently would have no say on the subject. 

Depending on the circumstances, a citizen may strongly prefer repair to compensation or 

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vice versa. Ascertaining the correct amount of money necessary to compensate damage to 

property may require a citizen to hire a lawyer and prosecute lengthy judicial proceedings that 

can impose a substantial financial burden. If coal operators are allowed to refuse to repair 

damaged property, these factors may force many citizens as a practical matter to accept an offer 

of compensation that is inadequate to cover the lost value of their homes or other property. 

On the other hand, in different circumstances, a citizen may strongly prefer immediate 

monetary compensation rather than endure what can become a drawn-out series of half-hearted 

attempts to repair what turns out to be irreparably damaged property. Many citizens do not trust 

coal operators to repair their homes or other property promptly or competently. These citizens do 

not want an operator or its agents intruding on their lives any further than they already have. 

The Colorado Court of Appeals, in construing this aspect of the approved Colorado state 

regulatory program under SMCRA, rejected a coal operator's demand of the right to choose 

between repair and compensation after the operator damaged a homeowner's residence as the 

result of coal mine subsidence. That Court held instead that "the Colorado Surface Coal Mining 

and Reclamation Act and its associated regulations do not confer onto a defendant found to have 

caused subsidence damage to a plaintiff the power to elect which remedy to provide." Tatum v. 

Basin Resources, Inc., 141 P.3d 863, 871 (Colo. Ct. App. 2005) (citations omitted); see also 

Hancockv. Island Creek Coal Co., 2009 U.S. Dist. LEXlS 30841 (W.D. Ky. Apr. 10, 2009) 

(memorandum opinion and order on motion in limine) (recognizing a landowner's election to 

pursue compensation for land damaged by coal mine subsidence). 

OSMRE must revise the text of its proposed rule to make clear that the choice between 

repair and compensation rests with the person who has suffered damage, not the coal operator 

who has caused it. To foster prompt, inexpensive resolution of subsidence damage claims, we 

ask that OSMRE further clarify in the rule that the SMCRA regulatory authority must, upon 

request, promptly determine and inform each affected property owner and permittee whether 

repair of any specific subsidence-related damage is technologically feasible. 

Recommended change to§ 817.121(d): Revise the subsection as follows: 

(d) Repair or compensation for damage to non-commercial buildings and dwellings and related 

structures. (l) You must promptly repair, or compensate the owner for, material damage 

resulting from subsidence caused to any non-commercial building or occupied residential 

dwelling or structure related thereto that existed at the time of mining. Upon written request of 

either party, the regulatory authority shall promptly determine and inform you and each affected 

property owner whether repair of any specific subsidence-related damage is technologically 

feasible. 

(2) lf the owner selects the repair option, you must fully rehabilitate, restore, or replace the 

damaged structure. 

(3) lfthe owner selects the compensation option, you must compensate the owner of the 

damaged structure for the full amount of the decrease in value resulting from the subsidencerelated damage. You may provide compensation by the purchase, before mining, of a non58 
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cancelable, premium-prepaid insurance policy. 

(4) The requirements of paragraph (d) of this section apply only to subsidence-related damage 

caused by underground mining activities conducted after October 24, 1992. 

XTT. OSMRE SHOULD CLARIFY THE EFFECT OF ITS PROPOSED 

REGULATIONS ON UNDERGROUND MINING OF PRIME FARMLAND. 

OSMRE' s proposed regulations do not specifically address the potential adverse impacts 

of underground mining activities on the hydrologic balance of prime farmlands. These impacts 

can significantly reduce the productivity of prime farmland by (I) altering soil or groundwater 

hydrology or (2) modifying pre-mining topography in ways that erode or waterlog historically 

productive soil zones. Indeed, the draft regulatory impact analysis for proposed regulations 

confirms that coal mine subsidence has resulted in changes to drainage patterns, highly saturated 

soils, and surface ponding. Draft Regulatory Impact Analysis of the Stream Protection Rule, 

Appendix D at 36. 

To counter the threat that underground mining activities, including longwall operations, 

pose to the hydrologic balance of prime farmlands- and therefore to their productivity- the final 

rules that OSMRE adopts should revise current 30 C.P.R. § 785.17 to provide that (I) the 

required reconnaissance inspection must include a proposed mine's adjacent area as well as its 

permit area and (2) the soil survey, reconstruction, and pre-mining productivity mandates also 

extend to the proposed mine's adjacent area. Additionally, the final rules should require each 

proposal to undermine prime farmland to include the same prime farmland survey and 

information requirements for each proposed mine's adjacent area that the current rule requires 

with respect to its permit area alone. Accordingly, we urge OSMRE to revise all pertinent 

subsections of proposed 30 C.P.R.§ 783.21 to add the phrase "or adjacent area" each time the 

text contains the phrase "permit area". 

The text of the final rules should also require each permit applicant to identify prime 

farmland in the survey of the permit and adjacent area required by§ 784.30(a). More 

importantly, the final rule should revise the text of the regulatory definition of"material damage" 

(due to subsidence) to include any physical change that diminishes the productivity of prime 

farmland and to require each regulatory authority to include among the material damage criteria 

for any permit that proposes to affect or undermine prime farmland the productivity standards set 

forth at 30 C.P.R § 823.15. 

Recommended change to definition of"material damage" in§ 701.5: Revise subparagraph 

(b) as follows: 

(b) Any physical change that has a significant adverse impact on the affected land's capability to 

support any current or reasonably foreseeable uses or causes significant loss in production or 

income, including any physical change in prime farmland that significantly diminishes the 

productivity of such land in comparison with its pre-mining productivity; or 

Recommended change to§ 783.21: Revise the section as follows: 

Your permit application must include59 
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(a) The results of a reconnaissance inspection to determine whether the proposed permit area or 

adjacent area may contain prime farmland, as required by § 785.17(b )(!)of this chapter. 

(b)( I) A map showing the soil mapping units located within the proposed permit area and 

adjacent area, if the National Cooperative Soil Survey has completed and published a soil survey 

of the area. 

(2) The applicable soil survey information that the Natural Resources Conservation Service 

maintains for the soil mapping units identified in paragraph (b)( l) of this section. You may 

provide this information either in paper form or via a link to the appropriate element of the 

Natural Resources Conservation Service's soil survey Web site. 

(c) A description of soil depths within the proposed permit area and adjacent area. 

(d) Detailed information on soil quality, if you seek approval for the use of soil substitutes or 

supplements under§ 784.12(e) of this chapter. 

(e) The soil survey information required by § 785.17(b )(3) of this chapter if the reconnaissance 

inspection conducted under paragraph (a) of this section indicates that prime farmland may be 

present in the permit area or adjacent area. 

(f) Any other information that the regulatory authority finds necessary to determine land 

capability and to prepare the reclamation plan. 

Recommended change to§ 780.21 and§ 784.21: Add new subsection (iv) to each subsection 

(b )(6) as follows: 

(iv) If the proposed permit area or adjacent area includes prime farmland, the productivity 

standards set forth at 30 C.F.R. § 823.15. 

Recommended change to§ 784.30: Revise subsections (a)(!) and (2) as follows: 

(I) A map of the permit and adjacent areas at a scale of 1:12,000, or larger if determined 

necessary by the regulatory authority, showing the location and type of structures, renewable 

resource lands, and prime farmland that subsidence may materially damage or for which the 

value or reasonably foreseeable use may be diminished by subsidence, and showing the location 

and type of drinking, domestic, and residential water supplies that could be contaminated, 

diminished, or interrupted by subsidence. 

(2) A narrative indicating whether subsidence, if it occurred, could cause material damage to or 

diminish the value or reasonably foreseeable use of such structures, renewable resource lands, or 

prime farmland, or could contaminate, diminish, or interrupt drinking, domestic, or residential 

water supplies. 

Recommended change to§ 785.17 (to which OSM currently proposes no change): 

Revise subsections (b) as follows: 

(b) Application contents---Reconnaissance inspection. (!)All permit applications, whether or not 

prime farmland is present, shall include the results of a reconnaissance inspection of the 

proposed pennit area and the proposed adjacent area to indicate whether prime farmland exists. 

The regulatory authority in consultation with the U.S. Soil Conservation Service shall determine 

the nature and extent of the required reconnaissance inspection. 

(2) If the reconnaissance inspection establishes that no land within the proposed permit area or 

the proposed adjacent area is prime farmland historically used for cropland, the applicant shall 

submit a statement that no prime fannland is present The statement shall identify the basis upon 

which such a conclusion was reached. 

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(3) If the reconnaissance inspection indicates that land within the proposed permit area or 

proposed adjacent area may be prime farmland historically used for cropland, the applicant shall 

determine if a soil survey exists for those lands and whether soil mapping units in the permit area 

or adjacent area have been designated as prime farmland. If no soil survey exists, the applicant 

shall have a soil survey made of the lands within the permit area or adjacent area which the 

reconnaissance inspection indicates could be prime farmland. Soil surveys of the detail used by 

the U.S. Soil Conservation Service for operational conservation planning shall be used to 

identify and locate prime farmland soils. 

(i) If the soil survey indicates that no prime farmland soils are present within the proposed 

permit area or the proposed adjacent area, paragraph (b )(2) of this section shall apply. 

(ii) If the soil survey indicates that prime farmland soils are present within the proposed permit 

area or proposed adjacent area, paragraph (c) of this section shall apply. 

Revise subsections (c) and (c)(1) as follows: 

(c) Application contents· Prime farmland. All permit applications for areas in which prime 

farmland has been identified within the proposed permit area shall include the following: 

(1) A soil survey of the permit area and adjacent area according to the standards of the 

National Cooperative Soil Survey and in accordance with the procedures set forth in U.S. 

Department of Agriculture Handbooks 436 "Soil Taxonomy" (U.S. Soil Conservation Service, 

1975) as amended on March 22, 1982 and October 5, 1982, and 18, "Soil Survey Manual" (U.S. 

Soil Conservation Service, 1951), as amended on December 18, 1979, May 7, 1980, May 9, 

1980, September 11, 1980, June 9, 1981, June 29, 1981, November 16, 1982. The U.S. Soil 

Conservation Service establishes the standards of the National Cooperative Soil Survey and 

maintains a National Soils Handbook which gives current acceptable procedures for conducting 

soil surveys. This National Soils Handbook is available for review at area and State SCS offices. 

(ii) The soil survey shall include a description of soil mapping units and a representative soil 

profile as determined by the U.S. Soil Conservation Service, including, but not limited to, soilhorizon depths, pH, and the range of soil densities for each prime farmland soil unit within the 

permit area. Other representative soil-profile descriptions from the locality, prepared according 

to the standards of the National Cooperative Soil Survey, may be used if their use is approved by 

the State Conservationist, U.S. Soil Conservation Service. The regulatory authority may request 

the operator to provide information on other physical and chemical soil properties as needed to 

make a determination that the operator has the technological capability to restore the prime 

farmland within the permit area to the soil-reconstruction standards of part 823 of this chapter. 

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XIII. PHOTOGRAPHS OF THE HARM FROM MOUNTAINTOP REMOVAL 

MINING 

The forested, highly bio-diverse mountains of Central Appalachia. Credit: Chris JordanBloch/Earthjustice 

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Mountaintop removal mining. Credit: OVEC 

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Credit: OVEC 

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Credit: Chris Jordan-Bloch/Earthjustice 

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Hobet mountaintop removal mine, West Virginia (aerial view, 2012). 

Credit: Neil Gorrnley/Earthjustice 

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Blasting at a surface coal mine. Credit: Dmitri Melnik/Shutterstock 

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Credit: OVEC 

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The late Larry Gibson views the mountaintop removal mine near his home at Kayford Mountain, 

West Virginia. "There are some things money shouldn't be able to buy." 

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XIV. CONCLUSION 

For the foregoing reasons, all of the groups listed at the beginning of this letter urge 

OSMRE to strengthen the Stream Protection Rule before finalizing it. 

Jim Hecker 

Public Justice 

Jhecker@publicjustice.net 

Neil Gormley 

Earth justice 

Ngormley@earthjustice.org 

Walt D. Morris, Jr. 

Morris Law Office, P.C. 

W morris@charlottesville.net 

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THE SECR::TAIW OF THE !NTEP.lOR 

WASH'NGTON 

1l1c Honomb!c C. L. '"Butch'. Otter 

Governor of ldnh•J 

lloi.>e. Tdallo 83702 

APR 15 2011 

Thank you for your leuer of F~!brunry 27,2011. conccmlng th.: devdopm~nt of streil.l'l1 

fli'Oiection regulations and the supporting [)raft F.n\'irQnmt:ntlll impact Srax:!nll!l\t tr-JS) f>y 

the Office ofSurtacc 1\-fining Rcc!untat.ion ond Enforcement (OS!>.l). 

[ appreciate ~,aur interest in the pot~.:ntiul npplicution ofthls rule K• tht.: ..:oal-pmducing 

su;r.:s that !he W~:stem Gtwcmors' Association (WGA) represents. several <lfwhlch nre 

cuojl'.!mtinl;! ~tates in OSM' s Draft EIS development process. 

J want to assure) 1lu that 0&'11! hns not proposed a new Strenm Prmection Rule, m•r ha..; it 

~omplct1.:cl 11 Dmlt EIS that is: n«.-essa.ry to inform a proposed ruh:. 'The OSM is still 

gathering inftmnutirm, revit..·w'i!)g a preliminury dmft of HIS chapters, anJ considering 

~Jonuncnts recciv<.."<l fro111statell serving u::l E1S caopcr:~ting aaencic~. Tb1.1 OSM sl1arcu 

the C~~rly. commcl~>r-g.cncm\t:d cltuptcrs olthe Draf: EJS wilh !he cnop:mling states liS 

p.lrl t'f h.~ llll'ott w be more open and tl''ansptm:nt in its n.tlt:!llaklng process. '!11t:st: .:arty 

dralt~ are tmt at'ficia[ OSM documents and do not reflect thot !111kial \'kW:<: o!'OSM or the 

Dcp;tnmcnt o!'thc hm:rior. 

/Jun!: with. OSM Ditct:tor Jo~cph Pi:atrehik, l greatly uppreciute the conttibtl!i<,n> tbnt 

:'our member states h:ne ll'IOO<! in revicwin}! these early druli chap!crs. Tlw conm:tm!s 

they han: pmvidcd to OSM have been hdpfuland will :>trengtbcnth.: Druft ElS and th<: 

r>rorwred rule ns they arc further rdin(.-d. AH C~\opcrnting ag~:nci.:s will ha''l: :u\ 

tclditiona! opportooity to r.:Yic\\ and cnmmcnt nn n l'tclirninary Dr!tft £1:"-; bdhrc it i~ 

· puhlishl·d fut puhlic rc\ it•'' :md comnMlt. 

Tbt: Draft ms wi!l he b;ls.:d on reliable nnd UCCUr>!IC information. lt ... ,m contain ;l S~t ,,f 

altcm:lti\·cs thm <tre full) 1111!1ly1.cd, and will b~ made availubk through the !l(lmt<d HS 

prcx:css thr public review !ll1d comment. Together with !he Droft E!S. the propnscd rule 

wHJ provide the sdcntillc nnd poliey b!Ulis lor uny propo>cd regul!Jtricy ch<mgcs. 

Comment~ received on the propo.;:cd documents "ill be consider~o-d. consis!cnt v ... ith tllc 

n:quircmcn!s oflll..: Administrntive l'rocctlurc ;\ct (A? A) and the Nnticrnal En1riroomenml 

Policy t\ct (NEPA), bclhre OSM or tb.: Dcpnnmr:nl makes an) final ruh:mn.l.;:ing tlcci~ion!'. 

The OSM h<•~ afforded ~·xtensivc oppt;~rtunitk.-s for :;takaho!dcr p-.micipntion throughom 

the mkmmking and EIS Jc,dopmcnl prncesscs, far bc~'Ond what the APA Md NE11

A 

n:quin:. ln dtlin!) ;;a, OS:\Ilm.<; dcrMnstra1cd a commitment to d.:vck1ping re:t.~um!Nt:. 

lair. il!\d cfl<.-ctivc str<:am pr<I!~'Cilt>n rules through an open a!ld inc! us he rrm:css. 

Attachment a· Page 105 ot 191 
286 


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:·,;~,. \ ;s:.I i~ propr·:,;ing nt:\> stream protccth1ns bccuu:$c oi'its rc~por'-Slbiiity to pro~r.:c:: all <.11' 

1hc \.lltion ':; ~t.rewn~ !rom th..: udvcrs<:l .:ffi.:cts of surfhcc coal mininu. This rcsponsibilitv is 

u ·::iled K~ nny pnr!iculur region, nnd protective measures and swndurd~ nms1 b;; appiicd 

wherever there is tll.: potential for coalmin~-rehttcd stream damage. 

TI1ank y~lu for lihurlng yt,ur vh':ws on OSM' s stream pmlection rulcmllking dlbrt and the 

EIS development proccs:>. The public, the stales, and stakeholdel'S have bt:en crucial ··· 

.mcl 1.rill continue tube crucial~ to these efforts every step of the way. I look ltli"\Vard to 

!lw .:;:;ruinucd invnl\'o.mumt of thc WGA member states serving as con~ntting ngcnci<Js in 

OSM to mnkt: the Iough choices necessnry to protect our Nation's streams. 

-\ sin1irar rt:!.'Puns,· is bcing >~nt !Cl the llonmablc Christine 0. Gregoire, G<wcmor N' 

\\ usnington. 

Sinccrdy. 

K~s~ 
287 


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The Honorable Joseph Pizarchik 

Director 

August 7, 2015 

Office of Surface Mining Reclamation and Enforcement 

United States Department of the Interior 

1951 Constitution Avenue NW 

Wa>hington, DC 20245-0003 

Director Pizarchik: 

We request the OfHce of Surface Mining Reclamation and Enforcement (OSMRE) provide a 

!20 day extension to the 60 day comment period for the recently proposed ''Stream Protection 

Rule" (''proposed rule") that would drastically change the existing stream butTer zone regulations. 

The current 60 day comment pe.riod is insufficient for adequate review of and comment on the 

proposed rule, Draft Environmental Impact Statement, and Draft Regulatory Impact Analysis, 

which total approximately 2,500 pages of materials. Additional time is absolutely critical to ensure 

that affected states, stakeholders, and the public can reasonably analyze the complex impacts that 

will result from the proposed rule. 

The background and complexity of the proposed rule raise many potential issues that justify 

an extended comment period. OSMRE took more than six years to research and draft the proposed 

rule based on "advances in science,'' bnt is allowing states and the public only 60 days to digest and 

comment on this complex proposal. Further, despite this long drafting process, state cooperating 

agencies have not received significant outreach, background. or data on the proposal since 20! 1, 

contrary to the process originally envisioned in the 20! () Cooperating Agency Memorandum of 

Understating with these states. In addition, the proposed rule is much broader than the existing 

stream buffer zone regulations and will atl"ect every coal producing state-not just Appalachian 

states-while also changing hundreds of existing rules related to mining operations. Given this 

long closed door process in drafting the proposed rule, it is only fair for OSMRE to grant additional 

time-less than one tenth of the time OSMRE took coming up with the rule--to allow states and 

stakeholders to get up to speed and provide meaningful input. 

The Stream Protection Rule will also have far ranging impacts on mining states, the 

economy, and ratepayers. These impacts will likely be augmented by the Environmental Protection 

Agency's (EPA) carbon dioxide emission rules for new and existing power plants that will 

significantly harm the coal production and generation industries. EPA has substantially modified 

these rules since OSMRE used them to analyze the proposed Stream Protection Rule's costs and 

impacts further complicating review of the proposed rule's effects. Fully analyzing the interplay 

between these regulations and their potentiaHy devastating impact on the coal industry and economy 

as a whole will take far more than the allotted 60 days. OSMRE must allow for an adequate 

comment period of 180 days to ensure a full understanding of the proposed rule's cost and impacts 

before moving forward with these sweeping changes to the existing stream buffer regulations. 

Thank you for your consideration of this request 

Sincerely, 
288 


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289 

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