As President Barack Obama enters his last month in the White House, his administration has finalized a midnight hour rule that would add another level of regulatory burden on coal miners in the United States.
A product of the Office of Surface Mining Reclamation and Enforcement, a bureau within the United States Department of Interior, this “Stream Protection Rule” is being advertised as a means to ensure that surface and groundwater flows remain in balance in and around a coal mine.
“This updated, scientifically modern rule will make life better for a countless number of Americans who live near places where coal is being mined,” said OSMRE Director Joseph Pizarchik. “We are closing loopholes and improving our rules to more completely implement the law passed by Congress.”
While the Department of Interior is touting this rule as an improvement to regulations previously passed on Capitol Hill, Alaska’s senators say the in-house regulation is another example of the Obama administration bypassing the legislative branch in an effort to place added regulatory burdens on miners.
“The Obama administration has abused the rule-making process for eight years to subvert the law to meet their policy objectives,” Sen. Lisa Murkowski, R-Alaska, said. “The stream buffer rule … is yet another example of this administration’s unilateral efforts to bypass Congress and the states to impose rules that will have severe impacts on the economic well-being of our country – in this case by shutting down coal mining in several regions of the U.S., including Alaska.”
Alaska ignored
Usibelli Coal Mine Inc., which operates Alaska’s only currently producing coal operation, says the Stream Protection Rule is a “one-size-fits-all” regulation that attempts to address concerns in the eastern U.S. and apply them across the country, an approach that does not work for an area as unique as Alaska.
“Clearly, the Obama administration’s stream rule was not crafted with Alaska in mind. It appears to be a rule targeting the Appalachian region, and was then smeared across the country all the way up to Alaska. The stream rule completely ignores Alaska’s unique conditions and disregards the need for special considerations with respect to surface coal mining operations in our state,” said Usibelli Coal Mine President and CEO Joe Usibelli, Jr.
In fact, OSMRE said the rule is the outcome of a 2009 memorandum of understanding between the Department of the Interior, Environmental Protection Agency, and Army Corps of Engineers to address environmental concerns related to surface coal mining operations in six states in central and northern Appalachia.
While the Stream Protection Rule was primarily crafted to clarify rules surrounding valley fill, a mining technique used in the Appalachia that involves depositing overburden removed from hilltops in an adjacent valley and then re-contouring the landscape after mining is complete.
“Regulations need to keep pace with modern mining practices, so we worked closely with many stakeholders to craft a plan that protects water quality, supports economic opportunities, safeguards our environment and makes coalfield communities more resilient for a diversified economic future,” said U.S. Secretary of the Interior Sally Jewell.
Sen. Murkowski, however, said Obama and Jewell cut out important stakeholders – state governments, which have an act of Congress right to contribute to such rules.
“This rule was written behind closed doors, ignores nearly all input from state regulators, and is specifically intended to put coal miners out of work,” said Alaska’s senior senator.
Joe Usibelli, Jr. says the new rule deprives states of Congress granted control over coal programs.
“The Surface Mining Control and Reclamation Act allows states to have primacy over their coal programs. However, the stream rule robs states of their discretion,” the third generation leader of the Interior Alaska coal company explained. “The state of Alaska is better suited to determine Alaska’s unique coal mining conditions than a bureaucrat in Washington D.C.,” Usibelli added.
Killing the rule
Published in the Federal Register on Dec. 20, the Stream Protection Rule is scheduled to take effect on Jan. 19, the day before Obama leaves office.
Both Alaska senators have said they will work with colleagues to kill the midnight hour rule.
“By issuing this rule, the Obama administration is cementing its lawless legacy of failing to consider the concerns and comments raised during the rulemaking process, in favor of pushing its ideologically driven eight-year war on coal” said Sen. Dan Sullivan, R-Alaska. “I hope that my colleagues in Congress and the incoming administration can work swiftly to kill this last gasp of bureaucratic overreach. We need to reduce and modernize regulatory requirements, not create a maze of duplicative, conflicting, and industry killing regulations.”
One way to kill the rule is the Congressional Review Act, which allows Congress to overturn rules issued by federal agencies by passing a joint resolution of disapproval, which would prevent the law from taking effect.
“I will continue to fight this rule with every tool available, including, but not limited to, filing a Congressional Review Act resolution," Rep. Morgan Griffith, R-Virginia, vowed. "This rule is so unpopular that there will probably be many in Congress who will wish to lead this CRA resolution, and I will either join with other members to file a resolution or I will file it myself.”
Senate Majority Leader Mitch McConnell, R-Kentucky, said he will introduce a CRA resolution of disapproval when the new Congress convenes.
“I will continue to do all I can to fight back against the Obama administration’s repeated and gratuitous attacks on our coal miners whose only crime is working hard to maintain a reliable source of energy and provide for their families,” the Kentucky senator promised.
If Congress fails to get the votes needed to overturn the Stream Protection Rule, it is expected to be among the regulations on the chopping block when President-elect Donald Trump takes office.
“I’ve proposed a moratorium on new federal regulations that are not compelled by Congress or public safety, and I will eliminate all needless and job-killing regulations now on the books,” Trump said when he introduced his economic plan is September.
“We’re going to put our great miners and steel workers back to work,” the incoming president added.
