The federal agency tasked with upholding mining and environmental laws at the nation’s surface coal mines proposed a new rule last month aimed at strengthening coordination with state regulators when responding to citizen complaints of potential mining violations.
Although federal regulators argued that the new rule would streamline coal mine investigations and ensure public safety, a number of concerned citizens — including the former director of the Agency — were strongly opposed to revisions during a one-month public comment period, which closed on Monday. The new regulation would limit citizen involvement and undermine the credibility of coal mine supervision, the opponents said. Many have gone so far as to urge the Office of Surface Mining Reclamation and Enforcement to withdraw the proposed rule.
However, several citizens have given a heavy dose of criticism in response to the Agency's proposed clarification of the rule. The vast majority of the letters submitted during the public comment period indicated that there was a concern that the changes to the rule would undermine public participation.
The People Coal Council, along with a number of groups representing the coalfield areas, strongly criticized the proposed change of law in a 65-page statement. Opponents believe that the amendments to the current 10-day rule would only delay investigations into possible mining infringements by adding an additional step or what they called the "open-ended pre-notice process."
In addition, this rule change could slow down the issuance of 10-day notices to states retained by the organizations. Any delays risk exacerbating damage to the environment and to the health of the local communities, they added.
“This would significantly impair the ability of the communities who bear the brunt of coal mining’s negative impacts to seek enforcement of SMCRA’s provisions in cases where the state regulatory authority is — through intent or inadvertence — failing to maintain, implement, administer, and enforce the Act and the approved state program on a case-specific basis,” the Citizens Coal Council and others stated.
The letter was also contributed by the former director of the Office of Surface Mining, Joseph Pizarchik. He said the rule change may have come in response to Congress's "insufficient funding." Returning federal regulators' obligations and deferring to states could reduce their workload associated with the enforcement of coal mining legislation, he argued.
"As a former official of the State System and former Director of OSMRE (Office of Surface Mining Reclamation and Enforcement) it is my opinion that the only decent thing for OSMRE and DOI (Department of the Interior) to do is to withdraw the proposed changes to the Ten-Day Notice Regulations," Pizarchik said in a written statement.
During an interview with the Star-Tribune in the weeks following the announcement of the proposed rule change, Pizarchik said he was concerned that the reform would affect the credibility of the response to citizens' complaints.
“It’s a puzzle as to why (OSMRE) wants to burden the citizens when the purpose of the statute was to protect citizens and the environment,” he said. “... What I think that this will do is it will slow down how quickly OSMRE and the states respond to the citizen complaints. It makes the process more lethargic.”
The Powder River Basin Resource Council, a grassroots organization representing Wyoming landowners, also said that a change in the rule would be a blow to public participation.
Shannon Anderson, the group's staff attorney, opposed the new rule, saying that it would also undermine federal oversight of state regulators and potentially compromise the thoroughness or expediency of investigations, including but not limited to, blasting damage, water contamination or lack of clean-up.
“The proposed (Ten-Day Notice) rule change gives states unlimited time to review citizen complaints and makes federal responses to citizen complaints discretionary rather than mandatory,” Anderson said. “This all but eliminates the ability of citizens to protect themselves and others from coal mines that are operating in violation of the permit and regulatory standards designated to safeguard public health and safety.”
However, Lanny Erdos, acting director of the Office of Surface Mining, disagreed with the characterization of the rule. Federal officials still have the authority to conduct their own investigations into alleged mining infringements to comply with the 1977 Surface Mining Control and Reclamation Act, if they choose to do so, he said in a telephone interview last month. Inspection procedures and specifications will still remain the same under the new law. He found the move to be the reverse of a "regulatory rollback."
“If we determine that the state agency hasn’t acted properly or appropriately and not taken appropriate action, then we still have the authority to issue a 10-day notice,” he said.
A small part of the comments, including one submitted by the Interstate Mining Compact Commission, extended support for the new rule. Gov. Mark Gordon is the organization's commissioner.
“The states welcome OSMRE’s attempt to create a more efficient process for promptly achieving this purpose that is true to the legislative language and intent of SMCRA, without the bureaucratic paper chase that has been so time-consuming and harmful to the efficiency of both federal and state regulatory efforts,” the Interstate Mining Compact Commission wrote in its comment.
Other individuals participating in the public comment period requested an extension of the 30-day public comment period associated with the proposed rule change, partly as a result of the disruption caused by the COVID-19 pandemic. The rule was published in the Federal Register on 15 May. The public comment period was closed 30 days later.
“As a coal miner who worked in the (Powder River Basin) for over 39 years I oppose the rushing of the public comment period,” Lynne Huskinson, a former miner living in Gillette, stated in a comment. “The public has the right to seek accountability for mining violations and the proposed rule changes diminish that right. I’m requesting that the current comment period be extended to at least 90 days.”
Over a dozen citizens' organizations from across the country have also called for the Agency to extend the public comment period to allow for greater involvement in the issue and to host public forums on the proposed rule in communities affected by coal mining.
