Ohio-2011-HR48-Comm Sub

As Re-Reported by the House Rules and Reference Committee

129th General Assembly

Regular Session

2011-2012

Am. H. R. No. 48

Representative Landis

Cosponsors: Representatives Adams, J., Thompson, Carey, Blessing, Combs, Hackett, Mecklenborg

A RESOLUTION

To express opposition to the revocation of the 2008 1
stream buffer zone rule and the implementation of 2
the environmental impact statement of the Office 3
of Surface Mining, Reclamation, and Enforcement in 4
the United States Department of the Interior. 5

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE STATE OF OHIO:

       WHEREAS, From 2003 to 2008, the Office of Surface Mining, 6
Reclamation, and Enforcement (OSM) in the United States Department 7
of the Interior conducted a five-year review of its regulations 8
related to stream buffer zones and surface mining. The process 9
included public hearings, the submission of public comments, and 10
the preparation of an environmental impact statement. The process 11
culminated in final regulations that added significant new 12
environmental protections regarding the placement of excess spoil 13
and clarified OSM's regulations related to stream buffer zones 14
pursuant to the Surface Mining Control and Reclamation Act 15
(SMCRA); and 16

       WHEREAS, OSM's 2008 regulations were consistent with the 17
decision from the Fourth Circuit Court of Appeals in Kentuckians 18
for the Commonwealth v. Rivenburgh, 317 F. 3d. 425, 443 (4th Cir. 19
2003), in which the court held that it is "beyond dispute that 20
SMCRA recognizes the possibility of placing excess spoil material 21
in waters of the United States even though those materials do not 22
have a beneficial purpose." In addition, the regulations helped to 23
significantly reduce regulatory uncertainty brought on by earlier 24
litigation that questioned the meaning of OSM's stream buffer zone 25
rule and whether it prohibited valley fills in streams; and 26

       WHEREAS, The Secretary of the Interior attempted to avoid a 27
public rulemaking process by asking a court to vacate the 2008 OSM 28
stream buffer zone rule without public comment as required under 29
the Administrative Procedures Act. However, the Secretary was 30
rebuked by a federal court in National Parks Conservation 31
Association v. Salazar, 660 F. Supp. 2d 3 (D.D.C. Aug. 12, 2009), 32
which ruled that the Secretary may not repeal the stream buffer 33
zone rule without following the statutory procedures for repealing 34
a rule, including public notice and comment; and 35

       WHEREAS, On June 11, 2009, the Secretary of the Interior, the 36
Army Corps of Engineers, and the United States Environmental 37
Protection Agency entered into a memorandum of understanding (MOU) 38
implementing an "interagency action plan." The plan was designed 39
to "significantly reduce the harmful environmental consequences of 40
surface mining coal mining in six Appalachian states...." In 41
addition, it suggested that coal mining jobs that would be 42
sacrificed should be replaced with "green" jobs promoted by the 43
MOU. OSM further committed in the MOU to consider revisions to the 44
2008 stream buffer zone rule; and 45

       WHEREAS, The Obama Administration admitted that before any 46
public comments were received on its proposals, it had "already 47
decided to change the [stream buffer zone] rule following the 48
change of Administrations on January 20, 2009." In addition, the 49
new rule is being called the "stream protection rule" and is much 50
broader in scope than the 2008 stream buffer zone rule; and 51

       WHEREAS, OSM has not justified why a new "stream protection 52
rule" is necessary and has not explained the problem that it is 53
attempting to correct. These concerns have been echoed by the 54
Interstate Mining Compact Commission, which is an organization 55
that represents state mining regulators and has substantial 56
expertise in SMCRA regulation; and 57

       WHEREAS, OSM is inappropriately rushing to complete the 58
rulemaking because it has committed to a self-imposed deadline of 59
February 28, 2011, to publish a proposed rule through a unilateral 60
settlement agreement with environmental groups. In addition, OSM 61
has limited public comment and participation by refusing to extend 62
the comment period on their advanced notice of proposed 63
rulemaking, by failing to adequately provide sufficient notice of 64
the alternatives being considered, and by conducting sham 65
"listening sessions" in which OSM has prohibited any public 66
speaking by those concerned about the rule; and 67

       WHEREAS, The coal mining industry is critical to the economic 68
and social well-being of the citizens of Ohio, accounting for over 69
51,950 high-wage jobs in the state, averaging over $62,600 a year, 70
and over $2.8 billion in labor income and adding $4.7 billion to 71
the gross domestic product; now therefore be it 72

       RESOLVED, That we, the members of the House of 73
Representatives of the 129th General Assembly of the State of 74
Ohio, express serious concern about the scope, the justification, 75
and the substance of OSM's stream protection rule and about the 76
procedures and processes that OSM has been using to implement the 77
rule; and be it further 78

       RESOLVED, That we, the members of the House of 79
Representatives of the 129th General Assembly of the State of 80
Ohio, strongly urge OSM to immediately suspend work on the 81
environmental impact statement and the stream protection rule 82
until OSM does all of the following: 83

       (1) Clearly and publicly articulates why the 2008 stream 84
buffer zone rule has not been implemented and provide specific 85
details why OSM considers the rule to be insufficient; 86

       (2) Provides scientific data and other objective information 87
to justify each provision of the new stream protection rule; 88

       (3) Explains why OSM is contradicting its own annual state 89
inspection reports, which indicate good environmental performance 90
and refute the need for the new stream protection rule; and 91

       (4) Justifies why a more limited approach using the 2008 92
stream buffer zone rule would not achieve OSM's objectives; and be 93
it further 94

       RESOLVED, That we, the members of the House of 95
Representatives of the 129th General Assembly of the State of 96
Ohio, request the Governor and the members of the Ohio 97
Congressional delegation to oppose the unwarranted effort by OSM 98
to revoke the 2008 stream buffer zone rule and the implementation 99
of the environmental impact statement and to call upon the Obama 100
Administration to withhold funding for OSM until OSM justifies the 101
revocation of the rule as described above; and be it further 102

       RESOLVED, That the Clerk of the House of Representatives 103
transmit duly authenticated copies of this resolution to the 104
President of the United States, the Speaker and Clerk of the 105
United States House of Representatives, the President Pro Tempore 106
and Secretary of the United States Senate, the Secretary of the 107
Interior, the members of the Ohio Congressional delegation, the 108
Governor, and the news media of Ohio. 109

WHEREAS, From 2003 to 2008, the Office of Surface Mining,	6
Reclamation, and Enforcement (OSM) in the United States Department	7
of the Interior conducted a five-year review of its regulations	8
related to stream buffer zones and surface mining. The process	9
included public hearings, the submission of public comments, and	10
the preparation of an environmental impact statement. The process	11
culminated in final regulations that added significant new	12
environmental protections regarding the placement of excess spoil	13
and clarified OSM's regulations related to stream buffer zones	14
pursuant to the Surface Mining Control and Reclamation Act	15
(SMCRA); and	16

WHEREAS, OSM's 2008 regulations were consistent with the	17
decision from the Fourth Circuit Court of Appeals in Kentuckians	18
for the Commonwealth v. Rivenburgh, 317 F. 3d. 425, 443 (4th Cir.	19
2003), in which the court held that it is "beyond dispute that	20
SMCRA recognizes the possibility of placing excess spoil material	21
in waters of the United States even though those materials do not	22
have a beneficial purpose." In addition, the regulations helped to	23
significantly reduce regulatory uncertainty brought on by earlier	24
litigation that questioned the meaning of OSM's stream buffer zone	25
rule and whether it prohibited valley fills in streams; and	26

WHEREAS, The Secretary of the Interior attempted to avoid a	27
public rulemaking process by asking a court to vacate the 2008 OSM	28
stream buffer zone rule without public comment as required under	29
the Administrative Procedures Act. However, the Secretary was	30
rebuked by a federal court in National Parks Conservation	31
Association v. Salazar, 660 F. Supp. 2d 3 (D.D.C. Aug. 12, 2009),	32
which ruled that the Secretary may not repeal the stream buffer	33
zone rule without following the statutory procedures for repealing	34
a rule, including public notice and comment; and	35

WHEREAS, On June 11, 2009, the Secretary of the Interior, the	36
Army Corps of Engineers, and the United States Environmental	37
Protection Agency entered into a memorandum of understanding (MOU)	38
implementing an "interagency action plan." The plan was designed	39
to "significantly reduce the harmful environmental consequences of	40
surface mining coal mining in six Appalachian states...." In	41
addition, it suggested that coal mining jobs that would be	42
sacrificed should be replaced with "green" jobs promoted by the	43
MOU. OSM further committed in the MOU to consider revisions to the	44
2008 stream buffer zone rule; and	45

WHEREAS, The Obama Administration admitted that before any	46
public comments were received on its proposals, it had "already	47
decided to change the [stream buffer zone] rule following the	48
change of Administrations on January 20, 2009." In addition, the	49
new rule is being called the "stream protection rule" and is much	50
broader in scope than the 2008 stream buffer zone rule; and	51

WHEREAS, OSM has not justified why a new "stream protection	52
rule" is necessary and has not explained the problem that it is	53
attempting to correct. These concerns have been echoed by the	54
Interstate Mining Compact Commission, which is an organization	55
that represents state mining regulators and has substantial	56
expertise in SMCRA regulation; and	57

WHEREAS, OSM is inappropriately rushing to complete the	58
rulemaking because it has committed to a self-imposed deadline of	59
February 28, 2011, to publish a proposed rule through a unilateral	60
settlement agreement with environmental groups. In addition, OSM	61
has limited public comment and participation by refusing to extend	62
the comment period on their advanced notice of proposed	63
rulemaking, by failing to adequately provide sufficient notice of	64
the alternatives being considered, and by conducting sham	65
"listening sessions" in which OSM has prohibited any public	66
speaking by those concerned about the rule; and	67

WHEREAS, The coal mining industry is critical to the economic	68
and social well-being of the citizens of Ohio, accounting for over	69
51,950 high-wage jobs in the state, averaging over $62,600 a year,	70
and over $2.8 billion in labor income and adding $4.7 billion to	71
the gross domestic product; now therefore be it	72

RESOLVED, That we, the members of the House of	73
Representatives of the 129th General Assembly of the State of	74
Ohio, express serious concern about the scope, the justification,	75
and the substance of OSM's stream protection rule and about the	76
procedures and processes that OSM has been using to implement the	77
rule; and be it further	78

RESOLVED, That we, the members of the House of	79
Representatives of the 129th General Assembly of the State of	80
Ohio, strongly urge OSM to immediately suspend work on the	81
environmental impact statement and the stream protection rule	82
until OSM does all of the following:	83

(1) Clearly and publicly articulates why the 2008 stream	84
buffer zone rule has not been implemented and provide specific	85
details why OSM considers the rule to be insufficient;	86

(2) Provides scientific data and other objective information	87
to justify each provision of the new stream protection rule;	88

(3) Explains why OSM is contradicting its own annual state	89
inspection reports, which indicate good environmental performance	90
and refute the need for the new stream protection rule; and	91

(4) Justifies why a more limited approach using the 2008	92
stream buffer zone rule would not achieve OSM's objectives; and be	93
it further	94

RESOLVED, That we, the members of the House of	95
Representatives of the 129th General Assembly of the State of	96
Ohio, request the Governor and the members of the Ohio	97
Congressional delegation to oppose the unwarranted effort by OSM	98
to revoke the 2008 stream buffer zone rule and the implementation	99
of the environmental impact statement and to call upon the Obama	100
Administration to withhold funding for OSM until OSM justifies the	101
revocation of the rule as described above; and be it further	102

RESOLVED, That the Clerk of the House of Representatives	103
transmit duly authenticated copies of this resolution to the	104
President of the United States, the Speaker and Clerk of the	105
United States House of Representatives, the President Pro Tempore	106
and Secretary of the United States Senate, the Secretary of the	107
Interior, the members of the Ohio Congressional delegation, the	108
Governor, and the news media of Ohio.	109