Agency proposes new rule to eliminate overlapping state and federal investigations, and reduce delays in addressing complaints and violations
by steve fiscor, editor-in-chief
The Trump administration has made considerable headway in its vigilant efforts to reduce the regulatory burden on the industry. For the mining business, most of this change is taking place at the Environmental Protection Agency (EPA) or the Department of the Interior (DoI). Last year, for example, Interior Secretary David Bernhardt moved the headquarters for the Bureau of Land Management (BLM) from Washington, D.C., to Grand Junction, Colorado, to place administrators closer to the land they manage and to fill vacancies at BLM. The DoI has also announced reforms to improve the permitting process by specifically stating guidelines for environmental reviews. They are not rubber-stamping applications, but they are now giving applicants an answer within one year of submitting paperwork.
While coal operators are not permitting many new mines on federals lands, these reforms are helping them in other ways. During mid-May, the Office of Surface Mining (OSM) Reclamation and Enforcement unveiled a proposed rule to improve the processing of Ten-Day Notices (TDNs). A DoI bureau, OSM allows primacy states, or states with environmental regulatory authority, 10 days to address a reported mining complaint or violation. By providing a timely review and direct coordination with primacy states when a violation is identified, the agency hopes remediation will occur more quickly, reducing any associated safety hazards and eliminating duplicative state and federal investigations that can cause unnecessary delays in addressing concerns or potential violations. This proposal, the agency said, will help ensure both public safety and protect the environment.
“This proposal will streamline our processes and ensure that states play a primary role in generating solutions to mining issues on the ground; a win-win for the American people in coal country,” Bernhardt said.
OSM carries out the requirements of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) in cooperation with states and tribes. The agency’s objectives are to ensure that coal mining activities are conducted in a manner that protects citizens and the environment during mining, to ensure the land is restored to beneficial use after mining, and to mitigate the effects of past mining by aggressively pursuing reclamation of abandoned coal mines. SMCRA authorizes OSM to use TDNs to notify state regulatory authorities when a potential violation exists at a mine site. OSM may issue a TDN based on its oversight or in response to a citizen’s complaint. The state regulatory authority is then given 10 days to respond.
In addition to the clarification of the TDN process, OSM intends to enhance coordination with state regulatory authorities to better identify and implement corrective actions. The agency said it would also address state regulatory program issues as provided in 30 CFR Part 733, which provides the factors to be considered in deciding whether to substitute federal enforcement for state programs or to withdraw approval of state programs.
Revising the Rule
Citizen groups have used the TDN complaint policy with OSM to resolve issues, and environmental activists have attempted to use it to create havoc for existing western coal operations. The proposed rule would specify that, if a citizen alerts OSM of a potential violation, OSM will directly coordinate with the state regulatory authorities. This direct coordination, OSM said, will allow it to determine if the states have already investigated the potential violation, which promotes the sharing of resources, improves public safety, saves time, and eliminates duplicative efforts, resulting in a more effective implementation of SMCRA.
“For years, the states and our bureau have often duplicated investigations into potential violations at mine sites,” Acting OSM Director Lanny Erdos said. “I share Secretary Bernhardt’s commitment to fix this waste of resources so that we can work more efficiently to protect the health and safety of Americans in coal country.” Erdos would know. He spent 30 years as an administrator for the state of Ohio’s regulatory authority.
Erdos said the new rule is designed to end a practice that costs the federal government and states time, money and effort. Discussing duplicative investigations, he explained that, in many cases, OSM did not know the other agency was looking at the same thing. “This lack of communication is a perfect example of why people grow frustrated with the government… including me,” Erdos said.
When he was appointed to this job, Erdos said one of his top priorities was to stop wasting resources. “This new rule would require OSM and the states to work more closely, communicate better and engage with citizens faster,” Erdos said. “That may sound like common sense, but for years, this has not happened, and it is time to change. We think making it easier for citizens to file a complaint and receive a faster response is the right thing to do.”
OSM and the States
The relationship between OSM and the states differs greatly as does the relationship between individuals at OSM and individuals
at the state level. There are few attorneys who understand litigation related to SMCRA well, and one is Holland & Hart’s John Martin. He has been involved in several cases over the years where OSM’s investigations have overlapped those of the state regulatory authorities. In general, Martin believes the rulemaking will provide some streamlining and clarify, in many instances, the approaches OSM has taken for several years.
“The most fundamental point is the notion that OSM is not simply a conduit for complaints and TDNs,” Martin said. “They are permitted explicitly to evaluate information and they do not take as true everything a complainant might say. That is the most fundamental change and that is a good change.”
OSM has traditionally taken the view that, when they get a TDN, they evaluate the information from the complainant, Martin explained. “In my experience representing coal operators, [OSM] considers what the primacy state says in response to the TDN and they do not make a decision on issuing a TDN until they have evaluated, as the statute puts it, all of the information available to OSM,” Martin said. “It is explicit in the statute. OSM has generally viewed this as something they always had the authority to do anyway. This only makes explicit that they need not accept all of what is alleged from the complainant as true in its decision as to whether they issue a TDN.” Martin said he does not view this necessarily as a change in practice, but it is a change to the extent that it makes OSM’s authority on that point explicit.
Primacy states take the TDN seriously. Martin said he has not noticed a significant difference in how the state regulatory authorities respond to TDNs. Obviously, the TDNs differ based on the complaint and the issues implicated. And, of course, there are significant differences between a large surface mine in Wyoming and a small mine in Kentucky. “When Kentucky gets a TDN, they take it seriously. They evaluate it carefully and they respond,” Martin said. “In Montana, we have seen the state evaluate the complainant’s allegations and go back to OSM to provide reasons why they thought the allegations were unfounded. To its credit, OSM decided not to issue a TDN based on this and other information.”
Martin believes the state regulatory authorities would prefer to handle the subject of a TDN themselves. “How they react to OSM varies with the issue, the state and the individual circumstances, but the states would likely say, let us handle this ourselves and here is how we would respond,” Martin said. “That is the way these differences tend to resolve themselves.”
There have been times when the states disagree with the sorts of things that are the subject of a TDN. The five-yearlong Premier Elkhorn
litigation is a prime example. Kentucky disagreed with the TDN. “A decision from a federal district court judge required an inspection and the state believed the TDN was unfounded. OSM insisted on moving forward and the agency found what it perceived to be a violation. Ultimately, that district court case was vacated, and the state revised its regulations in response to what OSM believed to be a violation.
“The commonwealth of Kentucky in good faith believed that the TDN was wrong and in good faith, nonetheless, responded and changed its regulations to clarify that its permitting regulations comported with the statute,” Martin said. “That is an overly simplistic explanation of a very complex regulatory case involving coal mining operations.”
In contrast, Martin had a much different experience with a client in Montana. “About 18 months ago, a group of NGOs filed a complaint with OSM and demanded a TDN related to aspects of Montana’s program,” Martin said. “Their dispute was about reclamation and whether the program was properly enforcing reclamation and bonding requirements under the statute.”
Martin responded on behalf of the client and, ultimately, OSM did not issue a TDN. The entity that requested it did not pursue further litigation. “Maybe they realized based on information from the state that there was no violation of SMCRA provisions,” Martin said.
These two examples illustrate how states have generally responded. In both cases, the state regulatory authority wanted to handle the matter. In one instance, the state was able to convince OSM that there was no violation and OSM accepted it. In the Premier Elkhorn case, OSM believed there was a violation and pursued it.
“From a coal operator’s perspective, this new rule from OSM is a step in the right direction. It will streamline the process and avoid unnecessary regulatory investigations. This brings the regulation closer to the limitations on federal oversight originally intended in SMCRA,” Martin said. “It is also inefficient for the state authority to spend time responding to a TDN when it has ‘exclusive’ authority to address the matter itself.”
The rule change will allow states to pursue investigations without parallel proceedings. It makes for a more efficient process, Martin explained, and it does not diminish in any respect OSM’s authority. Martin believes it is a good regulatory change.