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Coal Update

Environmental

CRISIS MANAGEMENT: ARE YOU READY?

“Everybody has a plan . . . until they get punched in the face.” Mike Tyson.

In his prime, Mike Tyson created a crisis for opposing fighters. Many claimed to have a plan for dealing with Iron Mike, but the plan didn’t hold up under pressure.  And Mike knew it.

Planning for a crisis is difficult, but necessary. Crises by their very nature are unexpected, so you cannot plan a detailed response in…

OSM Announces Increase in Civil Penalties – But Not Where It Will Matter

Bad news: OSM announced an increase in the amount of civil penalties it will impose for two categories of violations. The first is a daily penalty for continuing violations which remain unabated, and the second for the maximum amount for an individual civil penalty. Good news: the increase will not apply in states which directly regulate mining, meaning most states where coal is actually mined.…

How the Congressional Review Act (CRA) Allows Congress to Undo Executive Branch Regulations

The Congressional Review Act (“CRA”) allows Congress to disapprove so-called “midnight” rules of an outgoing administration. But, disapprovals require congressional approvals and are subject to presidential vetoes—making them of limited utility where a rule was issued by an agency of a current president.  Thus, while Congress voted to disapprove several rules under the Obama administration,…

Fish & Wildlife Service and OSM Release Memorandum of Understanding on Endangered Species Act Issues Which Immediately Incorporates Stream Protection Rule

In combination with the release of the Stream Protection Rule (“SPR”), previously reported, the Obama administration released a Memorandum of Understanding (MOU) between the U.S. Fish and Wildlife Service (“F&WS”) and the United States Office of Surface Mining (“OSM”) which expands the role of the OSM in delegated state program oversight and the consideration of…

THE MSHA WISH LIST FOR THE NEW SECRETARY OF LABOR

Happy New Year! The Federal Mine Safety and Health Administration (“MSHA”) has been busy clearing out any lingering rulemaking or policy decisions before the end of the current Administration.

For the new MSHA Administration, here is our wish list of priorities:

  • Fill the vacancy on the Commission with a view towards establishing a check on the power and authority of MSHA.
  • Stop regulating through…

IT’S THE GIVING SEASON: OBAMA ADMINISTRATION LEAVES PARTING GIFTS FOR THE COAL INDUSTRY

Obamanation: 8 Years Later, OSM Finalizes Stream Protection Rule   

The United States Office of Surface Mining (“OSM”) has finalized its “Stream Protection Rule (“SPR”) (12/20/16). This was formerly known as the “buffer zone rule” and dates to the early 1980s. OSM adopted it originally as a means of keeping sediment out of streams. It prohibited land disturbance within 100…

AFTER THE ELECTION: WHAT COAL NEEDS MOST

My colleagues and I have the privilege of working with coal operators every day in the places where coal is mined in this country. From coal basins in Appalachia to Illinois to the Powder River Basin, we have had the pleasure of helping those who mine the coal that powers our homes and makes our steel.

In recent years, the challenges have been numerous, to put it mildly. Undoubtedly, many of those…

Fourth Circuit Rejects Sierra Club’s Health Claims in Mining Permit Appeal

The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.

On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio…

Do You Have a Permit for that Reclaimed Valley Fill? The Sierra Club Says You Need One

During surface mining, rock and dirt (known as “overburden” or “spoil”) is removed to access coal seams. This rock and dirt swells, leaving the mining operator with excess material after mining and regrading.  In the steep slopes of Appalachia, the only place to safely store this excess material is in valleys and hollows in the form of valley fills.

Typically, the valley fill material is…

Tenth Circuit Vacates District Court NEPA Rulings on Mine Permit Modifications, but Only After Finding Appeals Were Moot

In 2015, a district court in Colorado ruled that OSM had failed to discharge its NEPA obligations in considering applications to modify existing surface mining permits sought by Colowyo Coal Company and Trapper Mining, Inc.  The two mines at issue were the primary fuel suppliers for a power plant.  The court ruled that OSM had improperly failed to solicit public comment on its…

 

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