Business, Government Legal News from throughout WVHouse committee makes final document request in mining rule rewrite

House committee makes final document request in mining rule rewrite

Updated with comment from the Department of the Interior.

Lawmakers on the House Natural Resources Committee issued a final request for documents relating to the rewrite of the 2008 Stream Buffer Zone Rule, also known as the Stream Protection Rule.

Chairman Doc Hastings, R-Wash. And Energy and Minerals Subcommittee Chairman Doug Lamborn, R-Colo., submitted a letter to Secretary of Interior Ken Salazar requesting the administration comply with "repeated document requests that have gone unanswered. The letter states the two officials will move forward to compel production of the documents if they are not produced by the February deadline.

"This is a serious matter that impacts the livelihood of entire communities and the jobs of thousands of coal miners across the nation, and the Department's failure to fully comply with repeated requests for information can no longer continue. This letter provides notice of our intent to move to compel cooperation and production of documents specified in this letter should they not be provided in the time requested," the letter states.

The OSM published the finalized Stream Buffer Rule on Dec. 12, 2008, but the rule was challenged in U.S. District Court. A settlement agreement staying that litigation established a timeframe for revision of the regulations.

"We are in receipt of the Committee's letter," said Adam Fetcher, press secretary of the Department of the Interior. "To date, the Department and OSM have already provided multiple informational letters and briefings as well as 488 documents – totaling upwards of 12,600 pages for the Committee. Departmental and OSM witnesses have appeared before the Committee to provide testimony and answer questions regarding this matter on several occasions. We will continue to be responsive and engaged in the ongoing dialogue with the Committee in order to meet their oversight needs in a manner that respects the ongoing nature of the Department's deliberations and decision-making."

The OSM anticipates publishing a proposed rule and draft impact statement this year.

"OSM is currently completing an analysis of the environmental and economic impacts of the rule under development. Once the analysis is complete, there will be extensive additional opportunity for the public to review and comment on the proposed rule as well as the underlying analysis."

Under the rule as written by the Bush administration, companies could dump excess mountaintop removal materials in perennial and intermittent streams and within 100 feet of those streams when alternative options were not deemed reasonable.

Prior to the Bush-era rule was the 1983 rule enacted that required dumping within 100 feet of a perennial or intermittent stream to be justified with a finding that the activity would not adversely affect water quality and stream habitat.

Inquiry into the rewrite of the stream buffer zone rule began after an impact statement obtained by the Associated Press indicated rewriting the rule would cost 7,000 jobs in 22 states. The Department of the Interior wrote in one letter to the committee that the contracted impact statement was released prematurely and was not an official document expressing the views of the OSM.

The OSM has further added that the numbers from the impact statement were not accurate and that the OSM is seeking to create jobs.

One of the subcontractors charged with creating the impact statement testified to Congress that OSM officials had tried to get contractors to change the results of their economic study of the rule. One change suggested by OSM, one contractor testified, was to assume the 2008 Stream Buffer Zone rule was in effect and enforced across the U.S.

In one letter, the Department of the Interior notes that more than 10,500 pages of documents, requiring "extensive staff time and resources" have already been submitted to the House committee. The committee responded that most of those documents were publicly available and that "responsiveness is not measured by the number of pages produced."

The rewrite, the recent letter states, raises "serious questions" about how and why the rewrite was initiated. According to the letter, the original rule took five years of study and development to write, and Hasting and Lamborn express concern of the hastened schedule of the rewrite.

They also wrote they have concerns that political implications of the rule are "unduly affecting the process," and that the costs of the rewrite are excessive.

"The Department's response to this legitimate exercise of Congressional oversight authority has been extremely disappointing," the letter states. "Instead of prompt compliance, there is a pattern of dilatory tactics and non-responsiveness.  Not a single deadline for the production of requested materials has been met.  Despite months of effort, documents and communications requested multiple times have yet to be provided."

The letter states the Department of the Interior has failed to supply any documents, or provide any list detailing documents withheld and the reason for doing so.

"Based on information shared by the Department, we now understand there to be at least 43 digital audio recordings totaling 30 hours in combined length.  The Department has, by their own estimation, been aware of  these recordings for more than two months and still not provided them to us," the letter states. "It is alarming that the persons responsible for rewriting this Rule are the very same who failed to produce the audio recordings of their conversations months ago."

The letter also calls into question the motivation and competence of those at the department who have been asked to produce those recordings.

The letter also states that Department of Interior's "generalized claim" of executive eranch confidentiality interest is not a legal basis for withholding information from members of Congress. In an October 2011 letter from the Department of the Interior, the natural resources committee was advised to exercise oversight authority once the rule had been made.

"While we appreciate the Department's willingness to comply with Congressional oversight once it has successfully codified its rushed rewrite of  this federal regulation, we are not willing to wait until that time," the letter states. "… We will not wait until the Department has cemented this rule into place and thousands of jobs are on the chopping block before getting answers to our questions."

A March letter from the Interior responded to Hasting with assurance that there was no current rule in place, and once a draft had been written, it would be published for public comment.

Documents requested by the House Natural Resources Committee:

All  documents  regarding  the  March  2010  settlement  requiring  OSM  to  make  best efforts to sign a final  action on the proposed rule no  later than Friday, June 29, 2012; including  drafts  and  any  changes  to  the  settlement  with  the  litigants  or  ongoing discussions with the  litigants about the Department' s  efforts to  meet the terms  of  the settlement,  and  all  documents  related  to  attorney  fees  paid  as  a  result  of   the settlement.

- All documents including any drafts and briefing papers, related to the development of or analysis for the Advanced Notice of Proposed Rulemaking published on November 30,2009.

- All documents, including emails or memoranda, regarding the decision not to rely on the Environmental Impact Statement for the 2008 rule, and to conduct a new EIS.

- All  documents,  including  emails  or memoranda,  within  the  Department  and  OSM, between the Department and  OSM,  between  the  Department and/or OSM,  Office of  Management  and  Budget,  Council  on  Environmental  Quality,  Army  Corps  of  Engineers,  and  White  House  Staff,  and  between  OSM,  the  Department  and any contractors  or subcontractors (including but not  limited to  Polu Kai  Services, ECSI, Morgan Worldwide, Plexus, and MACTEC) regarding the baseline parameters for the EIS  and the RIA, specifically but not limited to  documents regarding:

a. The baseline and parameters that were provided to the contractors prior to  and including February 2011.

b. The  baselines  and  parameters  that  were  provided  to  the  contractors  after February 2011.

c. The decision to expand the scoping opportunities for the re-write of the Rule.

d. The  decision  to  use  the  2008  coal  production  numbers,  the  2010  coal production  numbers,  or  an  average  of  the  three  years  combined  in  creating assumptions for the EIS or RIA.

e. Whether the proposed rule would  cover only surface  mining or surface  and underground mining.

f. The implementation timeline of the Stream Protection Rule.

g. Assumptions that  the  2008  Rule was  in  effect  and  being  enforced  across  the United States.

Including  but  not  limited  to  communications  to/from  and  between  the  following individuals: Ellen Athas, John Craynon, Andy Devito, James Laity, Brent Means, Dennis Rice, Emily Sharp, Dianne Shawley, Nancy Sloanhoffer, Stephanie Varvell and William Winters.

A  complete  and  detailed  privilege  log  for  all  items  responsive  to  any  current  or previous request from the Committee that the Department continues to withhold from the Committee, regardless of  reason.