May 11, 2017
On May 3, 2017, Murray Energy Corporation and five of its subsidiaries operating coal mines in West Virginia filed suit in West Virginia state court against The New York Times Company alleging that the Times published false and defamatory statements that injured the reputation and business of the Murray Energy. The subject statements were made in an op-ed article entitled “Money Talked…
February 13, 2017
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.…
January 26, 2017
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,…
January 13, 2017
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…
January 4, 2017
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…
November 28, 2016
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…
October 6, 2016
In July 2001, localized heavy rains produced severe flooding in the southern West Virginia coalfields. See July 29, 2006 Register Herald article. Groups like the Ohio Valley Environmental Coalition were quick to blame mining. Mass litigation against the logging and coal industries ensued and continued for another eight years.
In June 2016, localized heavy rains produced devastating…
September 14, 2016
The federal Office of Surface Mining (OSM) surprised no one on September 7 when it announced that it would commence rulemaking to revise its regulations governing the use of self-bonds at coal mining operations (81 Federal Register 61612). The announcement formally approves a petition filed in March by the predominantly Western environmental organization, WildEarth Guardians, to prohibit the use…
July 28, 2016
“A man always has two reasons for doing anything -- a good reason and the real reason.” J.P. Morgan
Whenever an agency proposes to change the procedures it follows to make decisions, it must offer a good reason for the change. When an agency proposes to make multiple changes in its procedures, there is almost certainly a real reason for its proposal. This is why EPA’s May 18 (81 FR31344) proposed…
July 14, 2016
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…
July 7, 2016
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…
June 23, 2016
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…
May 11, 2017
On May 3, 2017, Murray Energy Corporation and five of its subsidiaries operating coal mines in West Virginia filed suit in West Virginia state court against The New York Times Company alleging that the Times published false and defamatory statements that injured the reputation and business of the Murray Energy. The subject statements were made in an op-ed article entitled “Money Talked…
February 13, 2017
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.…
January 26, 2017
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,…
January 13, 2017
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…
January 4, 2017
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…
November 28, 2016
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…
October 6, 2016
In July 2001, localized heavy rains produced severe flooding in the southern West Virginia coalfields. See July 29, 2006 Register Herald article. Groups like the Ohio Valley Environmental Coalition were quick to blame mining. Mass litigation against the logging and coal industries ensued and continued for another eight years.
In June 2016, localized heavy rains produced devastating…
September 14, 2016
The federal Office of Surface Mining (OSM) surprised no one on September 7 when it announced that it would commence rulemaking to revise its regulations governing the use of self-bonds at coal mining operations (81 Federal Register 61612). The announcement formally approves a petition filed in March by the predominantly Western environmental organization, WildEarth Guardians, to prohibit the use…
July 28, 2016
“A man always has two reasons for doing anything -- a good reason and the real reason.” J.P. Morgan
Whenever an agency proposes to change the procedures it follows to make decisions, it must offer a good reason for the change. When an agency proposes to make multiple changes in its procedures, there is almost certainly a real reason for its proposal. This is why EPA’s May 18 (81 FR31344) proposed…
July 14, 2016
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…
July 7, 2016
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…
June 23, 2016
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…
