HR 1644 - 5.14.15

Statement for the Record

Office of Surface Mining Reclamation and Enforcement

Department of the Interior

House Committee on Natural Resources

Subcommittee on Energy and Minerals

H.R. 1644, STREAM Act

May 14, 2015

The Office of Surface Mining Reclamation and Enforcement (OSMRE) appreciates the opportunity to submit a Statement for the Record on H.R. 1644, a bill to amend the Surface Mining Control and Reclamation Act of 1977 (SMCRA). OSMRE opposes the bill, as it would delay for a period of at least three years OSMRE's anticipated proposal of a Stream Protection Rule aimed at updating thirty year old regulations and science, and significantly delay any other rule proposal pursuant to OSMRE's responsibilities and authorities under SMCRA.

Background

Congress gave OSMRE its regulatory authority and responsibilities in 1977, when it passed SMCRA. At that time, Congress mandated that OSMRE strike a balance between protecting the environment and providing for the nation's energy needs. Specifically, Congress established the bureau to carry out two basic functions: First, OSMRE is responsible for ensuring that coal mines operate in a manner that protects both people and the environment, and that the land is restored to a condition capable of supporting the same uses as prior to mining. Second, OSMRE is responsible for establishing and administering an Abandoned Mine Land program to address hazards to people and the environment that were created during more than two hundred years of inadequately regulated coal mining that occurred before SMCRA's enactment.

Under SMCRA, most coal-producing states have primary responsibility, also known as “primacy”, to protect people and the environment from the adverse effects of coal mining. States with primacy have demonstrated that their state regulatory programs satisfy the minimum statutory and regulatory Federal standards established in SMCRA and OSMRE's regulations. OSMRE provides assistance to, and oversight of, primacy states to help ensure proper regulation of coal mining and the protection of people and the environment. We also continue to ensure the reclamation of high-priority abandoned mine sites, and are reducing the number of remaining dangerous abandoned mine sites nationwide.

In December 2008, OSMRE published a final rule that modified the circumstances under which mining can occur in or near streams. The 2008 Stream Buffer Zone (SBZ) Rule was challenged by ten organizations in two separate complaints filed in Federal District Court for alleged legal deficiencies. In February, 2014, a federal district court vacated the 2008 rule and reinstated the prior rule, the 1983 stream buffer zone rule. On December 22, 2014, OSMRE published a ministerial notice in the Federal Register to remove the provisions of the vacated 2008 rule from the Code of Federal Regulations and reinstate the prior regulations, which were written in 1983. The regulations reinstated by the court are over 30 years old. During this period, there have been significant advances in scientific knowledge and mining and reclamation techniques. As a regulator, OSMRE simply seeks to advance their obligation and effort to update and modernize rules to reflect current knowledge and technology to better protect people and the environment, provide industry more certainty, and remove legal vulnerabilities by addressing court decisions.

H.R. 1644

H.R. 1644 requires the Secretary of the Interior, in consultation with the Interstate Mining Compact Commission, to contract with the National Academy of Sciences to conduct a detailed, comprehensive study of the effectiveness of the OSMRE's permanent regulatory program and the 1983 stream protection rule that is now in effect. The legislation requires the Board of Earth Sciences and Resources to submit a report containing the results and findings of the study along with any recommendations for changes to the Committee on Natural Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate within two years after initiation of the study. H.R. 1644 also prohibits the proposal or issuance of any new regulations until one year after the publication of the Board of Earth Sciences and Resources report. Taken together, these provisions effectively prohibit the issuance of a Stream Protection Rule for a period of at least three years from enactment.

A three year restriction on OSMRE's ability to propose a regulation based upon modern science and the outreach efforts already undertaken constitutes a significant impairment of OSMRE's ability to accomplish the mission and responsibilities Congress gave it in SMCRA, and would deprive the American taxpayers of the benefit of years of work OSMRE has undertaken since 2009 to develop and propose a modern rule on stream protection. As OSMRE proceeds with development of the proposed Stream Protection Rule, we are combining on-the-ground experience with peer-reviewed scientific literature to modernize our rules. We will use the best available technology and science to improve mining practices in order to minimize and mitigate environmental damage from coal mining. Our proposed revisions will provide solid benchmarks for companies to meet, and will be based on the latest accepted scientific methods. Clear and uniform standards will provide greater predictability and regulatory certainty to the mining industry, and can better protect affected communities.

The proposed rule that more effectively incorporates modern science will enable the coal industry to do a better job of reclaiming the land and restoring natural resources, and in many cases, will lead to that work being done in a more economic and efficient manner. The proposed Stream Protection Rule is aimed at better realizing all purposes of and more completely implementing the requirements under SMCRA. These goals are fully consistent with Congress' mandate and OSMRE's mission, while also retaining much-needed, well-paying jobs, and generating revenue in the nation's coal-producing regions. Failure to advance this existing rulemaking will result in the prevention of restoration to hundreds of streams, continued deterioration of water quality for thousands of stream miles, sustained regulatory uncertainty and unquantifiable public health implications.

H.R. 1644 also requires OSMRE, 90 days prior to the publication of any draft, supplemental, final, or emergency rule under SMCRA, to publish in the Federal Register and online all scientific products relied on in developing any proposed or final rule under SMCRA or any economic or environmental assessment. As currently drafted, portions of the bill text are ambiguous and could be interpreted to require additional 90 day publication periods at several stages during any rulemaking process under SMCRA. Such interpretations would create significant impediments to an efficient rulemaking process. In addition, the bill would require OSMRE to make publicly available all underlying raw data and background information of the authors of scientific studies for all “scientific products receiving Federal funds.”

For the reasons stated we oppose H.R. 1644. We believe the development of the Stream Protection Rulemaking is the approach that will best result in regulatory improvements that will more completely implement the law, make use of the best available science and technology, provide for a more sustainable coal industry and its jobs, better protect streams nationwide, serve as the most efficient means of leveraging the government's resources on an effort well underway, and provide greater clarity and regulatory certainty to the mining industry and affected communities.

Conclusion

Thank you for the opportunity to submit this Statement for the Record.