13 Coal States Sue USA to Block Clean Water Rule

By RYAN KOCIAN and DANIEL W. STAPLES

WASHINGTON (CN) — Ohio and a dozen other coal-mining states have brought a federal complaint against the United States, challenging a Stream Protection Rule they call a “one-size-fits-all rule” that will hurt the coal business and violate states’ rights.

Set to take effect on Jan. 19, the Stream Protection Rule was published in the Federal Register just last month. The Office of Surface Mining Reclamation and Enforcement, or OSM, said its revisions to the Surface Mining Control and Reclamation Act of 1977 reflect 30 years of advances in science, mining and reclamation, aiming “to improve the balance between environmental protection and the nation’s need for coal as a source of energy.”

“This final rule will better protect water supplies, surface water and groundwater quality, streams, fish, wildlife, and related environmental values from the adverse impacts of surface coal mining operations and provide mine operators with a regulatory framework to avoid water pollution and the long-term costs associated with water treatment,” the rule states.

But in their federal lawsuit Tuesday, Ohio and 12 other states call the update “an unprecedented and overreaching effort by the Office of Surface Mining to end coal mining and to displace the states as the primary regulator of that practice.”

“The rule effectively makes mining impossible in vast areas of the country, despite the fact that coal is one of the nation’s base fuel supplies for electric power generation, further harming the states and their citizens,” the states say.

Though the update was 30 years in the making, the actions by regulators came at a tense time politically as reinvigorating the coal industry had been a cornerstone of President-elect Donald Trump’s campaign last year.

It is unclear whether Trump’s administration will repeal the rule, but an act of the Republican-controlled Congress could undo the regulations. In his confirmation hearing for the office of interior secretary, Rep. Ryan Zinke said he would repeal the rule.

The Jan. 17 complaint led by Ohio names just two defendants: the OSM and its governmental parent, the Department of the Interior.

“This rule fundamentally and impermissibly rewrites the Surface Mining Control and Reclamation Act by substituting a mandatory federal top-down, one-size-fits all rule for what the Act designates as primarily the states’ responsibility in regulating coal mining and reclamation operations based on local conditions and state experience,” the complaint says.

Joining Ohio as plaintiffs are Alabama, Alaska, Arkansas, Colorado, Indiana, Kentucky, Missouri, Montana, Texas, Utah, West Virginia and Wyoming.

They say the OSM tried to enforce a “stream buffer rule” from 1979 to 2008, to limit coal mining near streams, but the 2008 version of the rule was vacated. A version of the rule from 1983 remains.

Since then, the OSM has “shunned the states’ participation” in amending the stream buffer rule, the states say.

When the OSM proposed the new rule on July 27, 2015, the draft was hundreds of pages long and revised nearly the entire Surface Mining Act. In its published form, the rule is 380 pages long.

Regulators say that the changes will improve water quality in 263 miles of intermittent and perennial streams a year, restore 22 miles of those streams, and improve the reforestation of 2,486 acres of mined land per year.

For the states, however, it is unduly burdensome for the rule to carry requirements at all four stages of the mining process: permit application, the permit issuance, mining itself and post-mining operations.

The rule requires permit applications to consider not only species listed as threatened or endangered, but also species proposed for such listings. It forces states to follow a universal definition of “material damage to the hydrologic balance outside the permit area” and requires state agencies to enforce Clean Water Act permits, authorizations, and certifications when there is non-compliance by the applicant or permittee.

Before the Dec. 20, 2016, publication date, the states say the office limited its contact with states to phone calls and regional group meetings. “To the best of the states’ knowledge, the office conducted few state-specific meetings,” according to the complaint.

The states cite a laundry list of problems with the Stream Protection Rule in their 69-page lawsuit.

They say OSM exceeded its statutory authority by enhancing protections for threatened and endangered species and species proposed for listings. They say the rule imposes “arbitrary and heavy burdens” on the states and miners, including increased data collection and analysis and sampling requirements.

Violations of the Surface Mining Act are apparent, according to the complaint, in the final rule’s “content requirements for a cumulative hydrologic impact assessment and the Final Rule’s definition of ‘material damage to the hydrologic balance.’”

The states also say OSM exceeded its authority by extending it to areas within 100 feet of a perennial or intermittent stream unless certain conditions are met.

“Congress found in the Surface Mining Act that ‘coal mining operations presently contribute significantly to the nation’s energy requirements’ and that it is ‘essential to the national interest to insure the existence of an expanding and economically healthy underground coal mining industry,’” the complaint states. “The rule ignores this command, and instead, makes mining impossible in vast areas of the country.

Likewise the OSM allegedly failed to account for differences between underground mining and surface mining in the rule. As a result, according to the complaint, the rule “will interfere with the growth of longwall mining by creating permit-application requirements that are difficult or impossible to meet.”

“The rule effectively requires that permits be denied when longwall mining might in some way adversely impact the quantity or quality of surface water or groundwater,” the complaint continues.

Ohio and the other states say the rule creates overlapping regulatory authorities. “The Final Rule infringes on the authority of other agencies responsible for regulating the Clean Water Act and requires states to take enforcement action under the Clean Water Act and the Endangered Species Act, all in violation of the Surface Mining Act,” the complaint says.

Other issues with the rule highlighted by the states are the revegetation and reclamation requirements. “The rule violates the Surface Mining Act by requiring restoration to pre-mining land-use capability rather than adhering to the Act’s focus on the post-mining land use,” the complaint states.

Infringement on their sovereignty aside, the states say the rule will carry financial harms, including “the loss of severance tax revenue resulting from the rule’s prohibition on mining in vast areas of the country and the significant regulatory costs imposed on mining operations.”

The states want the rule enjoined and struck down.