09.17.15

Capito Statement on Latest Anti-Coal Regulation Slated for Public Hearing in Charleston Today

“I am deeply concerned with the impact this proposal will have on West Virginia’s economy at a time when the impacts of other regulations and market forces have devastated many of our state’s communities.” -Senator Capito

WASHINGTON, D.C. – U.S. Senator Shelley Moore Capito (R-W.Va.) expressed her concern with the Department of Interior Office of Surface Mining Reclamation and Enforcement’s proposed Stream Protection Rule in a written statement that was submitted to the Department prior to its public hearing in Charleston, West Virginia this evening.

“I am deeply concerned with the impact this proposal will have on West Virginia’s economy at a time when the impacts of other regulations and market forces have devastated many of our state’s communities,” Senator Capito writes in the statement. “All this proposed rule will do is ensure employment for Washington bureaucrats.”

Estimates indicate that the proposed rule will cost more than 220,000 jobs in Appalachia and a loss of $4 to $5 billion in federal and state revenues without improving the existing protection of waterways.

“This stated purpose of this rule is to protect streams. Yet instead, this rule adds more bureaucratic red tape with almost no direct benefit. This proposed rule amends or adds to 475 existing rules, drastically increasing the regulatory burden.”

In addition to voicing concern, Senator Capito commends the Department of the Interior and the Office of Surface Mining Reclamation and Enforcement for holding a public hearing in Charleston, an area that will be the significantly impacted by the proposed rule.

“[The Department of Interior’s visit] is a welcome counterpoint to the EPA, which time and again has chosen not to hold public meetings in West Virginia, despite my repeated requests to come to our state and listen to the people whose lives will be harmed by new, unnecessary regulation. I thank you for coming to listen to the view of West Virginians who will be personally impacted by this rule. I hope you will take the concerns that you hear seriously as you consider a final rule.”

The public hearing is taking place today at the Charleston Civic Center from 5:00 – 9:00 p.m. To learn more about the public hearing, click here.

Full text of Senator Capito’s written statement on the proposed Stream Protection Rule:

“First, I would like to commend the Department of the Interior and the Office of Surface Mining Reclamation and Enforcement (OSM) for holding this public hearing in Charleston, and in other locations which stand to be the most directly affected by the rule.  It is a welcome counterpoint to the EPA, which time and again has chosen not to hold public meetings in West Virginia, despite my repeated requests to come to our state and listen to the people whose lives will be harmed by new, unnecessary regulation.  I thank you for coming to listen to the view of West Virginians who will be personally impacted by this rule. I hope you will take the concerns that you hear seriously as you consider a final rule.

“I am deeply concerned with the impact this proposal will have on West Virginia’s economy at a time when the impacts of other regulations and market forces have devastated many of our state’s communities.

“This stated purpose of this rule is to protect streams. Yet instead, this rule adds more bureaucratic red tape with almost no direct benefit. This proposed rule amends or adds to 475 existing rules, drastically increasing the regulatory burden. It will impact not just surface mining, but underground mining as well.

“Streams are currently adequately regulated through multiple existing Clean Water Act (CWA) programs.  The CWA has several programs that protect streams from discharges from industrial activities including mining. Existing CWA programs include those under Section 402 (National Pollutant Discharge Elimination System (NPDES) permitting), Section 404 (Army Corps of Engineers stream and wetland permitting) and Section 401 (state water quality certification).   EPA has significant engagement in both state 402 programs and the Army Corps of Engineers’ 404 program.  Both State and Federal Fish and Wildlife agencies participate in all of the permits involving streams.

“The only stated purpose for the proposed rule is outside the scope of the OSM’s authority under the Surface Mining Control and Reclamation Act (SMCRA). In 2009, OSM published an advanced notice of proposed rulemaking which stated that the new rule was necessary to implement the interagency action plan set forth in a Memorandum of Understanding (MOU) between The U.S. Department of the Army, the U.S. Department of the Interior, and the U.S. Environmental Protection Agency.[1] This MOU is centered on incentivizing the development and use of certain energy sources over others and asks that OSM take actions to this effect, which is beyond the agency’s authority under SMCRA.

“The draft proposed rule includes requirements that are clearly outside the scope of the Surface Mining Control and Reclamation Act (SMCRA), the federal statute under which this draft rule was promulgated.   For example, the draft rule creates new Endangered Species Act restrictions requiring: 1) a cumulative impact analysis on currently listed threatened and endangered species must be conducted prior to project approval, and 2) a new permit requirement to make a finding that the proposed project would not jeopardize a proposed threatened or endangered species. This is particularly onerous due to the volume of species that are proposed for listing by Fish and Wildlife Service (FWS) following mega-petitions for listing by environmental litigants.  Many of these species do not meet the standards of the Endangered Species Act for listing and are ultimately not listed.  However, during the proposal phase, they could still be used to lock up thousands of acres and halt mining plans.

“More than 40,000 coal mining jobs have already been lost since 2011.[2]   An independent analysis of an earlier and less aggressive version of this rule estimated that between 55,120 and 79,870 direct mining jobs were at risk, with the majority being in the Appalachian region.[3]  The same study estimated the total number of jobs at risk of loss, including mining and linked sector employment is between 133,441 and 273,227 (29% to 59% of current employment levels), with Appalachia losing as many as 220,003 jobs.[4]

“When OSM began working on this proposal six years ago, it was described as a minor regulation.  It has since morphed into an over 2,500 page rule that is economically devastating and redundant.  Based on an outside analysis, this proposal would cause an overall decrease of between 30.4% and 41.5% in recovery of demonstrated coal reserves. This would result in an annual loss in coal production valued at $14-20 billion and losses in federal and state revenues of $4-5 billion.[5]

“West Virginia currently has the sad distinction of leading the country in unemployment. There were reports earlier this week on the precarious condition of our state unemployment fund, due largely to the loss of mining jobs and jobs related to the mining sector.  We cannot continue to sustain these losses, particularly for a redundant rule that adds nothing to existing protection of our waterways.  All this proposed rule will do is ensure employment for Washington bureaucrats.

“In addition to the job losses and economic impacts, OSM also failed to adequately consult with the cooperating state agencies, including West Virginia, when drafting this proposed rule. As a result, all but two of the original states who were cooperating signed a letter in February 2014 which outlined how OSM continually shut states out of the drafting process for the Environmental Impact Statement as required by law under the National Environmental Policy Act (NEPA) and MOU’s with the states memorializing this obligation[6].  “[W]e assert that OSM has not provided for meaningful participation by the cooperating agency states in the preparation of the EIA and it seems unlikely that the agency will do so . . .”[7]

“State regulators perform 97 percent of the regulatory activity, and despite signed legal agreements with OSM, they were shut out of the rulemaking process.  Further, based on OSM’s own evaluations, states routinely show 90 percent of active operations being free of any off-site impacts.[8]  State regulators are already accomplishing what OSM says they are trying to do with this rule.

“I encourage OSM to consider my comments about the harm that the proposed rule will do to West Virginia and the country.  I also urge OSM to reconsider extending the comment period on this rule beyond the additional 30 days that was granted earlier this month. The proposed rule will have far reaching impacts, and sufficient time for states, stakeholders and industry is needed to address those issues.”

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[1] 74 Fed. Reg. 62664 (November 30, 2009)

[2] Department of Labor, Mine Safety & Health Administration Part 50 Data. 2015 data are preliminary.

[3] Environ International Corporation, Economic Analysis of Proposed Stream Protection Rule Stage I Report (2012) at ES-1.

[4] Environ International Corporation, Economic Analysis of Proposed Stream Protection Rule Stage I Report (2012) at ES-1.  

[5] Environ International Corporation, Economic Analysis of Proposed Stream Protection Rule Stage I Report (2012) at ES-1. 

[6] Letter to Hon. Joseph g. Pizarchik, Director, Office of Surface Mining, February 23, 2014.

[7] Letter to Hon. Joseph g. Pizarchik, Director, Office of Surface Mining, February 23, 2014, p. 2.

[8] United States Department of the Interior, Budget Justifications and Performance Information, Fiscal Year 2016: Office of Surface Mining Reclamation and Enforcement, pp 30.