Hearing Raises Questions about Legality of Mining Office Consolidation

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Criticisms leveled at Interior Secretary’s decision to move OSM into BLM.

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At a recent hearing of the Senate Committee on Energy and Natural Resources, witnesses and members of Congress criticized Interior Secretary Ken Salazar’s order from late October consolidating the Office of Surface Mining Reclamation and Enforcement (OSM) within the Bureau of Land Management (BLM).

Critics charge that the consolidation would improperly commingle regulatory and nonregulatory functions, as BLM’s responsibility for leasing coal reserves may come into tension with OSM’s responsibility for regulating mining operations.

Section 201(b) of the Surface Mining Control and Reclamation Act (SMCRA) authorizes OSM to use employees from the Department of Interior and other federal agencies so long as “no legal authority, program, or function . . . which has its purpose promoting the development or use of coal or other mineral resources . . . shall be transferred to the Office.”

The Department’s representative at the hearing testified that BLM’s leasing functions will be kept separate from OSM’s regulatory responsibilities.

But critics also argued that SMCRA’s legislative history demonstrates that Congress intended for OSM to remain separate from BLM. The 1977 Senate Report that accompanied SMCRA stated that OSM “ will be separate from any of the Department’s existing bureaus or agencies.”

Even if the consolidation withstands legal scrutiny, the recent criticisms at least prove a distraction for the Department.