Officials at the Wyoming Department of Environmental Quality are frustrated by a proposed federal rule that they say could cost the state more than $1 million a year in lost revenue and $500,000 in implementation.
The stream protection rule, developed by the Office of Surface Mining Reclamation and Enforcement (OSM), would force companies to return streams and banks that have been adversely affected by mining back to their former condition.
Federal regulators have waded into Wyoming policies on a few fronts recently. The agency that is now proposing the stream protection rule announced last month that it would begin crafting a rule to make self-bonding more challenging for coal mines. Self-bonding is a contentious practice that Wyoming regulators have consistently defended.
The rule would require operators to collect data before mining to enable a fair comparison of the post-mining impact and apply clean-up strategies to seasonal streams and those that only contain water after rainfall.
But as proposed, the rule includes a number of clean-up obligations that don’t make sense in arid regions with sparse vegetation, like replacing 100 feet of riparian plants on either size of a reclaimed stream, said Todd Parfitt, director of the Wyoming Department for Environmental Quality.
One of the Wyoming regulators’ main concerns is the cost, he said. The federal agency estimated lost revenue to Wyoming, based on coal that could not be mined under the new rule, at $360,000. The state’s Department of Revenue, in comparison, calculated the cost at a steeper $1.6 million a year.
“The difference was they didn’t include ad valorem tax. They didn’t include mineral royalties to the state, to the federal government, abandoned mine lands fee collections and black lung fee collections,” Parfitt said. “They missed the mark.”
However, the streams rule is not just about lost revenue, Parfitt said. It’s about how federal agencies work with states.
“This began back in 2010. We signed an agreement with OSM, that we would be a cooperating state, along with 10 other states. They came up with an early version (of the rule) that we commented on in January 2011.” Parfitt said. “That is the last communication we had with OSM until sometime mid-2015, when they went out to public notice.”
In 2011, the Western Governors’ Association protested the rule process in a letter to then Secretary of the Interior Ken Salazar. The proposed rule was clearly constructed for Appalachia, where mountaintop mining occurs, and should not apply to Western states, they argued.
“Certainly [the rule process] is very concerning because it creates a trust deficit that doesn’t need to be there,” Parfitt said.
Industry voices are largely opposed to the rule.
Cloud Peak Energy Resources, which operates the Antelope Mine outside Gillette, voiced its concerns during the public comment period, said Rick Curtsinger, spokesman for the company.
“All of Cloud Peak Energy’s operations are located in the Powder River Basin,” the company wrote. “This semi-arid region produces most of the nation’s coal. OSMRE’s one-size-fits-all approach is ill advised because of the significant differences in rainfall, chemical and geological conditions as well as different mining methods for the different mining regions of the U.S.”
However, not everyone in the West shares that view.
The Western Organization of Resource Councils has voiced its support for the proposed rule.
“Many of the regulatory changes proposed in the stream protection rule are reasonable, well thought-out and necessary,” the organization said in a statement. “Our organizations have repeatedly called for some of the same proposed policies during the past years and decades.”
Existing rules lack clarity and states fail to properly enforce them, the organization maintains.
“Coal mining companies have repeatedly damaged surfaces and groundwaters, which are vital and necessary for meeting the future water needs of our communities in the West,” the group said
For the Wyoming regulators, there is still a desire to collaborate with federal officials on a streams protection rule that would be acceptable to both groups, Parfitt said.
“Engage with the states, make a rule that makes sense, is scientifically defensible and is appropriate for the different regions of the U.S.”
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- On August 29, 2016