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Introduced Version Senate Resolution 5 History

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SENATE RESOLUTION NO. 50

(By Senators Hall, Plymale, Sypolt and Browning)

 

 

 

Requesting the U.S. Congress oppose an unwarranted effort by President Barack Obama’s administration by withholding further funding for the Office of Surface Mining, Reclamation and Enforcement for the stream protection rule until such time as the agency justifies the need for new rules.

    Whereas, The Office of Surface Mining, Reclamation and Enforcement (OSMRE) is considering new sweeping regulations that would cut surface mining in production and jobs in the eastern part of the country by twenty-one to thirty percent, cut underground coal mining jobs nationwide by up to fifty percent, and risk eliminating over sixty-six thousand direct and indirect jobs nationwide; and

    Whereas, From 2003 to 2008 OSMRE conducted a five-year process including public hearings, the submission of thousands of public comments, and preparation of an environmental impact statement that culminated in final regulations adding significant new environmental protections regarding the placement of excess spoil and clarifying its regulations relating to stream buffer zones pursuant to the Surface Mining Control and Reclamation Act (SMCRA); and

    Whereas, OSMRE’s 2008 regulations were consistent with a final decision from the Fourth Circuit Court of Appeals in Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 442 (4th Cir. 2003), holding that it is “beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States even though those materials do not have a beneficial purpose” and such regulations helped to significantly reduce regulatory uncertainty brought on by earlier litigation questioning the meaning of the agency’s stream buffer zone rule and whether it prohibited valley fills in streams; and

    Whereas, The Secretary of the Interior attempted to avoid a public rule-making process by asking a court to vacate the 2008 OSMRE stream buffer zone rule without public comment as required under the Administrative Procedure Act, but was rebuked by a federal court which ruled that the secretary may not repeal the stream buffer zone rule without going through the rule-making process, including public notice and comment (see National Parks Conservation Association v. Salazar, 620 F. Supp 2nd 3 (D.D.C. 2009); and

    Whereas, OSMRE, in its own words admitted that before any public comments were even received on its proposals that it had “already decided to change the [stream buffer zone] rule following the change of Administrations on January 20, 2009" (see 75 Fed. Reg. 34,667 (June 18, 2010)) and the agency is calling the new rule the “stream protection rule” (SPR); and further that the stream protection rule is much broader in scope than the 2008 stream buffer zone rule; and

    Whereas, OSMRE has failed to justify why a new “stream protection regulation” (SPR) is necessary, nor explain the problem that the agency is attempting to fix and such concerns have been echoed by the Interstate Mining Compact Commission, an organization representing state mining regulators with substantial expertise in SMCRA regulation; and

    Whereas, OSMRE is inappropriately rushing to complete the rule making because the agency committed to a self-imposed deadline of February 28, 2011 to publish a proposed rule through a unilateral settlement agreement with environmental groups. In attempting to meet this artificial deadline OSMRE committed violations of the required National Environmental Policy Act process so flagrant that eight of the state cooperating agencies expressed their serious concerns about the draft environmental impact statement and objecting to its quality, completeness and accuracy, as well as calling the document “nonsensical and difficult to follow,” and ultimately threatening to pull out of the process; and

    Whereas, The coal mining industry is critical to the economic and social well-being of the citizens of West Virginia accounting for high wage jobs, millions of dollars instate and local taxes, and adding billions of dollars to the gross domestic product; therefore, be it

    Resolved by the Senate:

    That the U.S. Congress is requested to oppose an unwarranted effort by President Barack Obama’s administration by withholding further funding for the Office of Surface Mining, Reclamation and Enforcement for the stream protection rule until such time as the agency justifies the need for new rules; and, be it

    Further Resolved, That the Senate expresses its serious concern about the scope, the justification, and the substance of the OSMRE’s stream protection rule, as well as to the procedure and process that the agency has been using to implement these regulations and calls upon the agency to immediately suspend work on the environmental impact statement and the regulation until such time as the agency:

    (1) Clearly and publicly articulates why the 2008 regulation has not been implemented and provides specific details regarding each of its provisions and why the agency believes that they are insufficient;

    (2) Provides scientific data and other objective information to justify each and every provision of the new proposal;

    (3) Explains why the agency is contradicting its own annual state inspection reports which indicate good environmental performance and refute the need for this new regulation;

    (4) Justifies why a more limited approach would not achieve the objectives of the agency; and

    (5) Surveys all of the state regulatory authorities to determine whether they agree that such significant regulatory changes are necessary; and, be it

    Further Resolved, That the Senate hereby calls upon the House and Senate members in our state delegation in the U.S. Congress to oppose this unwarranted effort by President Barack Obama’s administration by withholding further funding for the Office of Surface Mining, Reclamation and Enforcement for the stream protection rule until such time as the agency justifies the need for new rules; and, be it

    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Senator Joe Manchin, Senator Jay Rockefeller, Congressman Nick Rahall, Congressman David McKinley and Congresswoman Shelley Moore Capito.

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