Interior Continues Slow Process of Revoking Midnight Regulation on MTR

Advanced notice of proposed rulemaking won't result in rule until early 2011

In more regulatory activity, the Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSM) announced its intention to issue an advanced notice of proposed rulemaking by the middle of this month for the rule meant to overturn the Bush Administration's December 2008 change in the Stream Buffer Zone Rule under the Surface Mine Reclamation and Enforcement Act (SMREA), 30 U.S.C. § 1292. That rule, they promise, will be out as soon as early 2011.

According to this excellent summary of the history of the rule by the Kentucky Waterways Alliance, SMREA was supposed to work side-by-side with the Clean Water Act. In keeping with that, the stream buffer zone rule that was in place under SMREA since 1983 provided that “[n]o land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream.” 48 Fed. Reg. 30,312 (citing 30 C.F.R. § 816.57). And "[t]he rule further provided that the regulatory authority may authorize such activities only upon finding that surface mining activities will not cause or contribute to violation of applicable State or Federal water quality standards, and will not adversely affect water quantity and quality or other environmental resources of the stream."

This would have been a big problem for mountaintop removal (MTR) mining operations--had it ever been enforced against them. MTR, which became widespread in the 1990s, involves blasting off the entire top of a mountain to get to coal without the bother and expense of digging underground mines. Rather than pay to cart all this rubble away, MTR operators engage in so-called "valley fills"--literally dumping the mountaintop in an adjacent valley, and smothering the streams that inevitably run through those valleys with hundreds of tons of rubble. OSM always exempted valley fills from the Stream Buffer Zone Rule, until a 1999 decision by the U.S. District Court for the Southern District of West Virginia said that that was an impermissible interpretation. Although the Fourth Circuit overturned the decision on jurisdictional grounds, see Bragg v. West Virginia Coal Association 248 F.3d 275 (4th Cir. 2001), the coal industry was shaken by the possibility that it might not be able to continue decapitating mountains, and looked to the federal government for help.

The Bush Administration, as part of its broad efforts to push as much domestic energy exploitation as possible, continued to exempt valley fill operations from the Stream Buffer Zone Rule. (It also won a decision in the Fourth Circuit overturning the Southern District of West Virginia's attempt to enjoin the Army Corps of Engineers from granting permits under Section 404 of the Clean Water Act (CWA) for dumping rubble in adjacent streams. See Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003).) Meanwhile, the Bush Administration sought to change the Stream Buffer Zone Rule, lest the District of West Virginia's interpretation win wider acceptance in the courts. The Bush Administration finally undid the existing Stream Buffer Zone Rule on December 12 2008, clarifying that it did not apply to "permanent excess spoil fills and coal waste disposal facilities." See 73 F.R. 75,814 (Dec. 12, 2008). As the Missouri Attorney General explains, here, "[i]n other words, the [Bush] Rule would exempt giant valley fills and sludge-filled lagoons, which are illegal under the current rule if the valleys and lagoons are within 100 feet of an intermittent or perennial stream."

This was a huge setback to groups in Appalachia battling to save their mountains and valleys from the incredible destruction of MTR mining. Getting rid of the rule was on the list of priorities given to the Obama transition team by the environmental community. Unfortunately, the Bush Administration managed to get the rule issued more than 30 days before Obama took office on January 20, 2009, so it was already final. The National Parks Conservation Association sued to vacate the rule in the D.C. District court. In April 2009, the (Obama) Department of Interior filed a motion for voluntary remand and vacatur, on the basis that OSM erred in failing to do an ESA consult with the Fish and Widlife Service (FWS). They also asked for dismissal for lack of jurisdiction, on the basis that NPCA's cause would thereby be moot. The NPCA supported the government. But the motion was denied on August 12, 2009. "[G]ranting the Federal defendants’ motion," the court ruled "would wrongfully permit the Federal defendants to bypass established statutory procedures for repealing an agency rule" under the APA.

Friday's announcement of the ANPR, which was filed in D.D.C., here, is Interior's response: They are basically informing the district court that 'they're working on it.' The Sierra Club and other groups have decried the move, saying that Interior is on far too slow a timeline, and that a great deal of damage could occur before they finalize their replacement rule at this pace. [Update: You can read an NRDC staff piece, detailing what environmentalists would have liked to see, here.]

Though NPCA has issued no press release itself, it would appear that Friday's filing does nothing to change the fact that the original suit remains a continuing case or controversy. It could be that the most rapid route to vacatur would be for the case to proceed and for NPCA to succeed on the merits. The response of the environmental community would indicate, however, that they were hoping for Interior to commit to issuing a replacement rule, in compliance with the APA, before this could occur, and certainly before early 2011.

The New York Times reports on the case here. As that article notes, "[e]nvironmental groups' hope for quickly curbing mountaintop-removal mining now shift to U.S. EPA, which regulates the practice through Clean Water Act permits." Additional coverage can be found in the Charleston Gazette, here, and Dow Jones here.