Overview of Making Surface Coal Mining More Effective

RSS

PDF HELP

OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

REGULATING COAL MINES

RECLAIMING ABANDONED MINE LANDS

APPLYING SOUND SCIENCE

DOI Seal making oversight more effective OSM Seal

OVERVIEW

Statement on Oversight Review

On June 11, 2009, the Department of the Interior, the Environmental Protection Agency, and the Army Corps of Engineers entered into a memorandum of understanding (MOU) implementing an interagency action plan to significantly reduce the harmful environmental consequences of Appalachian surface coal mining. The MOU applies to surface coal mining operations in six States in central Appalachia: Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. Under the MOU, OSM committed to “reevaluate and determine how it will more effectively conduct oversight of State permitting, State enforcement, and regulatory activities under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).¹” Even though the MOU applies only to the six States in central Appalachia, any changes to our oversight policy would apply nationwide. Therefore, we are using this opportunity to take a comprehensive look at our oversight policies and procedures.

OSM Directive REG-8, Oversight of State Regulatory Programs, establishes the policies and procedures that govern our oversight of the implementation of state regulatory programs. The directive focuses on evaluation of the success of state regulatory programs in meeting SMCRA's environmental protection goals, achieving reclamation, and providing customer service. That approach allows OSM and the states to concentrate their limited resources on those program elements that present the best opportunity for environmental improvement and the best means of preventing adverse impacts on society and the environment. The directive also encourages OSM Field Offices and the states to reach consensus on oversight topics to be evaluated and how the evaluations are conducted. The paper, “What is Oversight?,” contains a description of the statutory and regulatory authority for oversight and OSM’s policy implementing that authority.

While our oversight policy fosters a cooperative effort with the states to achieve SMCRA’s goals, coal field citizens and environmental organizations, particularly in central Appalachia, have voiced concern that the policy is not sufficiently comprehensive, that it is too deferential to the states, and that it fails to strike the proper balance between coal production and environmental protection. With those concerns in mind, an OSM oversight evaluation team, which included executive leadership and senior management, took a comprehensive look at our current oversight requirements and policy, the way they are being implemented, and the results that have been achieved.

The OSM oversight evaluation team thoroughly reviewed the statutory and regulatory requirements for oversight and the policy guidance and procedures for conducting oversight, which are principally embodied in Directive REG-8. During this review, numerous opportunities for improving oversight effectiveness were identified.

Top of Page

We will revise our oversight policies and procedures to emphasize problem identification, resolution, and prevention. We intend to ensure that our core responsibilities, such as inspection and enforcement, are not secondary to other program areas. Some improvements will be implemented in 2009, others will be implemented in the next oversight evaluation year, which starts July 1, 2010, and still others, such as changes to our regulations, may take longer to implement.

Directive REG-8 authorizes the Director of OSM to select national priority review topics for each evaluation year. Selection of topics focuses attention on current issues and provides a basis to determine how all states are implementing a specific program requirement. Therefore, the Director has established two national priority review topics for the current evaluation year: calculation of performance bond amounts and approximate original contour (see the Acting Director’s letter, “National Priority Review Topics”).

We also plan to implement other changes to our oversight process, including:

increasing the number of oversight inspections;
implementing policies to promote increased consistency in inspections;
clarifying our authority and responsibility to conduct reviews of state permitting procedures and state-issued permits;
intensifying our oversight activities when necessary and establishing action plans to resolve issues;
seeking greater public involvement in the oversight process;
improving the quality and availability of data and information; and
examining our data collection requirements and performance measures to ensure that we are collecting and reporting appropriate and accurate data to Congress, the public, the media, and other stakeholders.

We intend to retain those elements of the oversight process that have proven effective and to change those elements that can be improved. We are seeking your input during this evaluation process.

One of the challenges we face, and one of the purposes of this evaluation, is to determine the most effective use of the limited resources available. Our full-time staff decreased from 1,089 in 1990 to 525 in 2008, a 52% decline. In particular, the number of active oversight inspectors decreased from 107 in the early 1990s to 47 in 2008, which is a 56% decline. During the same time, we experienced an increase in other program responsibilities.

The actions that we are taking and other changes that we are considering to make oversight more effective are summarized in Oversight Improvement Actions. Descriptions of issues, background, and potential solutions regarding the oversight improvement actions are contained in Discussion Papers that also are available for review. We are soliciting your comments on these solutions, as well as your views on other potential actions that could be taken to improve the oversight process.

Top of Page

What process did we use to develop our proposed oversight improvements?

In June 2009, the oversight evaluation team began collecting and analyzing data on past oversight activities, including trends in numbers of inspectors, inspections, inspectable units, permitted acreage, and hours charged to oversight activities. We thoroughly reviewed the statutory and regulatory requirements for oversight, our policy guidance and procedures for conducting oversight, and our oversight activities over the last two decades.

The team solicited comments from various stakeholders and citizens, including the mining industry, environmental organizations, and citizen groups with a known interest in the impacts of coal mining, to determine their issues and concerns with oversight and to glean ideas for improvement and methods of evaluating the effectiveness of oversight. The team also surveyed OSM employees engaged in oversight to determine their views on the following questions:

Which elements of oversight are working well and which elements are not;
Which oversight activities should be enhanced, modified, or eliminated;
How we should prioritize our use of resources to achieve maximum effectiveness; and
How our oversight policies and procedures should be revised to enhance effectiveness.

We presented the findings of the oversight evaluation team to the Oversight Steering Committee (OSC), which included representatives of both OSM and state regulatory authorities.² Under Directive REG-8, the OSC is responsible for evaluating the effectiveness of oversight and developing recommendations for improvement. State members of the OSC surveyed state regulatory authority employees to obtain their ideas and perceptions in a manner similar to the OSM survey of oversight employees.

Our outreach identified a number of problems that centered on our regulations rather than our oversight policies and procedures. Common observations in this category included the lack of clear contemporaneous reclamation standards, weaknesses in our temporary cessation regulations, the lack of a definition of material damage to the hydrologic balance, the lack of clear standards in our definition of approximate original contour, and the controversy surrounding the stream buffer zone rule. We intend to pursue suggestions for revising our regulations, as appropriate, consistent with the long-term objectives of the MOU, which requires that we consider revisions to key provisions of our regulations, including, at a minimum, the stream buffer zone rule and approximate original contour requirements.

¹ The MOU commits OSM to two other actions. The first item, providing policy guidance clarifying application of the 1983 stream buffer zone rule, is now moot because the court did not grant a motion to vacate the 2008 rule, which likely would have had the effect of reinstating the 1983 rule. The other item commits us to remove impediments to our ability to require correction of permit defects in states with primacy under SMCRA.