Today, the Interior Department’s Office of Surface Mining Reclamation and Enforcement published in the Federal Register its rulemaking notice concerning the stream “buffer zone” rule.
As we’ve mentioned before, by taking this route — instead of publishing a proposed rule for public comment — the Obama administration assures that no action (at least in the form of a proposed rule) will be taken on the buffer zone rule until at least early 2011.
Today’s notice seeks public input on how the Obama OSMRE should rewrite the changes the Bush administration previously made to this important strip-mining rule. See previous coverage here, here, here and here.
Today’s notice outlines eight possible alternatives for re-writing the rule, including:
– Proposing to apply the prohibitions and restrictions of the stream buffer zone rule to all segments of all perennial and intermittent streams and to the surface of all lands within 100 feet of those streams. One variation of this alternative could be to establish a rebuttable presumption that the placement of excess spoil or coal mine waste in an intermittent or perennial stream is prohibited because it would result in an unacceptable level of environmental damage. Another variation could be to prohibit placement of excess spoil or coal mine waste in perennial and intermittent streams and restrict placement in ephemeral streams.
– Proposing numerical limits on fill size, the percentage of a watershed disturbed by mining operations at any one time, or total stream miles covered by fills in each watershed. The 2005 final programmatic environmental impact statement on mountaintop mining and valley fills found that existing studies provided an insufficient basis to determine a bright-line threshold of the nature described in this alternative. We invite comment on whether scientific information is now available that might provide a sufficient basis for establishing numerical limits of the nature described in this alternative. We encourage commenters to suggest specific thresholds, together with the rationale for those thresholds.
– Proposing a quantitative or qualitative threshold beyond which further damage to water quality or aquatic life in a particular watershed would be prohibited.
OSMRE is accepting comments through Dec. 30, 2009. Comments can be submitted through the Federal Rulemaking Web site, for Docket ID OSM-2009-0009. Comments may also be sent to OSM at Room 252-SIB, 1951 Constitution Ave., N.W. Washington, D.C. 20240. The docket number should be included.
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This is another link:
http://edocket.access.gpo.gov/2009/E9-28513.htm
(Excerpt)
That section of SMCRA also provides that, after preparing the CHIA, the regulatory authority must make a finding as to whether the proposed operation “has been designed to PREVENT MATERIAL DAMAGE [Emphasis added.] to the hydrologic balance outside the permit area.”
When we adopted our hydrologic information regulations at 30 CFR 780.21 and 784.14, which implement section 510(b)(3) in part, we did not include a definition of “material damage to the hydrologic balance” or establish fixed criteria for that term “because the gauges for measuring damage may vary from area to area and from operation to operation.”
[That's BS -- from its very beginning OSM purposefully side-step it, just like not providing criterion for what constitutes Approximate Original Contour.]
We seek comment on whether understanding of the relevant hydrology and the associated technology have advanced since 1983 to the degree that there is now support for a definition that would include specific criteria and consistent measures for material damage to the hydrologic balance, and, if so, what that definition might be.
[Note: Preventing material damage to the hydrologic system is a requirement of the Clean Water Act; minimizing disturbance to the hydrologic balance is the lesser requirement contained in SMCRA -- creation of continual toxic mine drainage is not prohibited if measures were taken to minimize its creation.]
A lot of experienced and thoughtful people put a lot of time and effort into crafting the words in this notice. I appreciate those people and their work. Thanks!
I look forward to reading the comments on this notice that will be submitted to OSMRE during December. I hope the comments will be quoted from and linked to here at Coal Tattoo.
[...] Tomorrow is the deadline for public comments to be submitted to the federal Office of Surface Mining Reclamation and Enforcement for the agency’s advance notice of proposed rulemaking on the stream “buffer zone” rule. [...]