Monthly Archives: July 2015

OSM Proposes Stream Protection Rule

By Lesly A.R. Davis

spring of waterOn July 16, 2015, the Department of Interior, Federal Office of Surface Mining Reclamation and Enforcement (“OSM”) released a  proposed regulation to prevent or minimize impacts to surface water and groundwater from surface coal mining.  The proposed rule, known as the Stream Protection Rule, replaces the controversial Bush era Stream Buffer Zone rule which was the subject of litigation and overturned by the courts in 2014.  Development of the Stream Protection Rule has taken years and has been the subject of much controversy and criticism.  OSM claims that the new rule will better protect streams, fish, wildlife and the environment from the adverse impacts of surface coal mining and the surface effects of underground mining.  The proposed rule is intended to clearly define the phrase “material damage to the hydrologic balance outside the permit area” and calls for, among other requirements, the collection of pre-mining data and the imposition of additional  monitoring and restoration requirements.  According to OSM, the proposed rule is intended to update its regulations to reflect best available science and experience over the last thirty years.  Industry strongly criticizes the rule as another burdensome and costly regulation which is unnecessary in view of the substantial regulations already in place as enforced by both federal and state regulatory authorities.  Public hearings on the proposed rule will be held within the 60 day public comment period in Charleston, Lexington, Pittsburgh, St. Louis and Denver.  An advanced copy of the proposed rule is available on OSM’s website along with a Draft Environmental Impact Statement.

EPA Finalizes Waters of the United States Rule

By Max E. Bridges

On May 27, the EPA finalized the “Clean Water Rule” which defines the scope of waters protected by the Clean Water Act. The rule is intended to clarify and implement Supreme Court decisions interpreting  the reach of Clean Water Act provisions controlled by the phrase “waters of the United States.”

Those decisions have produced considerable confusion over what waters the EPA and the Corps of Engineers can regulate. The final rule gives the federal government an expansive jurisdiction, but is less ambiguous than the proposed rule because it relies more on distances and less on imprecise terms and descriptions. The New York Times estimates the rule will apply to about 60% of the nation’s waters.

The Clean Water Rule identifies seven different categories of “waters of the United States” (“WOTUS”): traditional navigable waters, all interstate waters (including interstate wetlands), the territorial seas, impoundments, tributaries, adjacent waters, and on a case-by-case basis, waters with a significant nexus to downstream waters. The last three categories are the most controversial and will be discussed in greater detail.

The EPA defines a ‘tributary’ as a water that contributes flow to a WOTUS and is characterized by three physical indicators: a bed, bank and ordinary high water mark. But there’s some ambiguity in how Continue reading EPA Finalizes Waters of the United States Rule

EPA Publishes Coal Combustion Residuals Rule

By Max E. Bridges

On April 17, 2015, the EPA published a final rule in the Federal Register regulating the disposal of coal combustion residuals (CCRs) as solid waste under subtitle D of the Resource Conservation and Recovery Act (RCRA). The EPA established national minimum criteria for existing and new CCR landfills, existing and new CCR surface impoundments and all lateral expansions, consisting of design and operating criteria, groundwater monitoring, corrective action, closure requirements and post-closure care. Power plants must record compliance with these requirements in the facility’s operating record and on a publicly available website.

Except in limited circumstances, any existing unlined CCR surface impoundment that is contaminating groundwater above a groundwater standard must stop receiving CCR and either retrofit or close. The rule also requires the closure of any CCR landfill or surface impoundment that cannot meet the criteria for location restrictions or structural integrity. The rule does not regulate CCRs that are beneficially used.

The final rule was welcomed by many in the industry, who had feared the costs of a hazardous waste designation. Environmentalists are concerned with the lack of federal oversight. The final CCR rule can be found here.