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Congress Set To Overturn Obama-Era Surface Mining Regulations

Southwings and Vivian Stockman

Congress is enacting a little-used provision this week to turn back Obama-era regulations on coal mining near streams. The House of Representatives is expected to vote Wednesday on legislation that would block the Stream Protection Rule, and the Senate is expected to do the same Wednesday evening or Thursday.

House and Senate Republicans are targeting the Stream Protection Rule using the Congressional Review Act, which allows lawmakers to block new rules that aren’t passed by Congress within 60 days of them going into effect. The Obama Administration spent eight years writing the rule, which is an updated version of a Bush-era regulation, but it wasn’t finalized until late December.

The Stream Protection Rule tightens regulations on surface coal mining. It requires coal companies to prove their mines won’t cause damage to the hydrologic balance outside the permit area — like problems with groundwater and surface water. It requires more biological monitoring, and expands a 100 foot buffer zone around streams to include ephemeral streams.

When regulators finalized the rule, a statement from the federal Office of Surface Mining Reclamation and Enforcement said it would better “improve the balance between environmental protection and providing for the Nation’s need for coal as a source of energy.” But Republicans in Congress and representatives from the mining industry disagreed, calling it unnecessary, burdensome and regulatory overreach.

For Bob Logan, formerly an aquatic biologist who served as Kentucky’s Department for Environmental Protection deputy commissioner and commissioner for about a decade in the 1990s, more biological monitoring about how streams are affected by surface mining is a good thing.

“To a lot of surface mining folks, the only stream that matters is something you can put a boat on with a motor on it,” he said. “If you can’t ski in it, swim in it or fish in it out of a boat, it’s not really a stream, it’s just a drainageway.”

But in fact, he said, the intermittent and ephemeral streams which may seem insignificant are a big part of the ecosystem. Logan compared it to cutting the fingers off a hand.

“And when you look over a period of time how many we’ve lost in this state, it adds up considerably,” he said. “If that stream was there and you put 400 feet of rock on it, or 150 feet of rock on it…what that does, the fauna that’s lived there, they’re gone. Now, they may reinvade from downstream or the upper reaches of the habitat, but it takes a long time. And when you’re constantly doing it day in and day out, it has a significant effect on the functionality of that stream system. Just like taking those fingers and taking a joint off at a time, how does that change your hand and the way it functions? Same thing with streams, in a basic way.”

Back to 1983 Rules?

Earlier this week, Senate Majority Leader Mitch McConnell blasted the regulation on the Senate floor.

“We’ve heard individual voices against this regulation, we’ve heard union voices in opposition like the United Mine Workers of America, and we’ve heard from groups like the Kentucky Coal Association who recently wrote to me about its negative impact: ‘The undeniable truth,’ their letter read, ‘is that… [this rule] will have a real impact on the real world. It will cause real harm to real people, who support real families in real communities,'” he said. “This regulation is an attack on coal families. It jeopardizes jobs and transfers power away from states and local governments.”

But even without this rule in effect, coal jobs have plummeted in Appalachia. Kentucky’s Energy and Environment Cabinet released its latest quarterly coal report earlier this week; the state’s coal production saw a 30 percent drop from 2015 to 2016, and hit the lowest amount since 1939. Declines were seen in both the Western and Eastern parts of the state, and in both surface and underground mining. And none of this could be attributed to the Stream Protection Rule, which wasn’t yet in effect.

Rather, the job losses of the past decade happened under previous iterations of the rule: one that was passed in 1983, and another in 2008. The 2008 Buffer Zone Rule explicitly allowed operators to place excess spoil from mining operations in streams, which environmental groups argued was prohibited in the 1983 rule. They challenged the rule in court and won, and the 2008 rule was vacated in 2014.

Now, after the House and Senate invoke the Congressional Review Act to overturn the Stream Protection Rule, surface mining will be operating under the 1983 rules. And as outlined in the terms of the CRA, any rule substantially similar to the Stream Protection Rule can’t ever be promulgated without an act of Congress.


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