Office of Surface Mining, Contractor Disagreement Rehashed - Business, Government Legal News from throughout WV

Office of Surface Mining, Contractor Disagreement Rehashed

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Government subcontractors testified in a Nov. 18 House hearing that the Office of Surface Mining Reclamation and Enforcement pressed its contractor for a job impacts analysis showing fewer coal mining jobs lost due to a draft regulation.

The testimony reiterated reports that appeared in The Wall Street Journal and other media outlets in March.

"OSM suggested that the (contractor's) team revisit the production impacts and associated job loss numbers, and with different assumptions that would change the final outcome to show less of an impact," said J. Steven Gardner, president of subcontractor ECSI, at the hearing.

OSM disagreed after the hearing in a brief written statement. Office spokesman Christopher Holmes said the subcontractor had been involved in an "early working draft."

The subject of the hearing was H.R. 3409, the Coal Miner Employment and Domestic Energy Infrastructure Protection Act, introduced Nov. 14 by Rep. Bill Johnson, R-Ohio. H.R. 3409 would prohibit the Secretary of the Interior from approving any new rules or regulations before Dec. 31, 2013 that could adversely impact employment in coal mines; cause a reduction in federal, state or tribal revenue from coal mining; or reduce the nation's ability to produce coal.

The OSM regulation under discussion at the hearing was a draft Environmental Impact Statement, or EIS, for a Stream Protection Rule that will replace the Bush-era Stream Buffer Zone rule.

As reported in March, the contractors who were hired to prepare the draft EIS, Polu Kai Services of Falls Church, Va., found that it would cost 7,000 coal-industry jobs, a preliminary calculation that became public in January.

OSM asked Polu Kai in February to change its analysis, according to Gardner's testimony. His company, ECSI, was a subcontractor to Polu Kai.

The disagreement, Gardner said, related to the proper baseline for calculating job loss.

OSM wanted the contractors to work from a scenario in which the Bush administration's Stream Buffer Zone rule was in effect everywhere, he said — essentially showing the difference between the existing regulation, if enforced, and the proposed regulation.

But because it has been challenged in court, the Stream Buffer Zone rule is not enforced everywhere. The consultants thought it was appropriate to calculate from the actual situation, which showed greater job loss.

OSM dismissed Polu Kai in March.

ECSI Vice President Joe Zaluski also offered testimony. No representative of the contractor itself testified.

OSM wants its process to be judged by the documents it eventually issues.

"OSM has not completed an EIS, nor has it offered draft rule language, so it is premature and misleading to characterize the work under way before it is properly offered for comment," OSM's Holmes said in the office's statement.

"When OSM completes the economic analysis now in preparation, it will be offered with all assumptions and calculations, including the analysis that supports OSM's recommendations," he said. "Because it remains a priority to develop our coal reserves while protecting the health of our waterways and the people that depend on them, OSM is committed to the development of a proposed rule and draft EIS, with an anticipated publication date of Spring 2012."

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