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.
Though federal regulators said the new rule would streamline coal mine investigations and uphold public safety, several concerned citizens — including the former director of the agency — leveled strong opposition to the revisions during a one-month public comment period, which closed Monday. The new rule would restrict citizen participation and compromise the integrity of coal mine oversight, opponents said. Many went so far as to urge the Office of Surface Mining Reclamation and Enforcement to withdraw the proposed rule.
The rule concerns what are known as “Ten-Day Notices,” notifications the federal government issues to state regulators if it receives a citizen complaint related to an alleged mining violation. The notice gives the state 10 days to promptly investigate and address any violations at a mine site.
The proposed new rule would clarify the investigative process and increase collaboration between the state and federal regulatory bodies, federal officials told the Star-Tribune in May. Under the proposed rule, before issuing a 10-day notice, federal regulators would first contact Wyoming Department of Environmental Quality to check if the agency had already launched an investigation into a potential violation. This way, officials can avoid doing duplicative work, according to the Office of Surface Mining.
But several citizens delivered a hefty dose of criticism in response to the agency’s proposed rule clarification. A vast majority of letters submitted during the public comment period outlined a fear that the tweaks to the rule would erode public participation.
The Citizens Coal Council, along with several organizations serving coalfield communities, staunchly opposed the proposed rule change in a 65-page comment. The opponents believe the amendments to the current 10-day rule would only delay investigations into possible mining infractions by adding an additional step, or what they called an “open-ended pre-notice process.”
This rule change, moreover, could slow down the issuance of 10-day notices to states, the groups maintained. Any delays risk exacerbating harm to the environment and the health of surrounding 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.
Former director of the Office of Surface Mining Joseph Pizarchik also contributed to the letter. He said the rule change may have come in response to “insufficient funding” from Congress. Rolling back federal regulators’ responsibilities and deferring to states could lighten their workload associated with enforcing coal mining laws, he reasoned.
“As a former State program official and former Director of OSMRE (Office of Surface Mining Reclamation and Enforcement) it is my conclusion that the only decent thing for OSMRE and DOI (Department of Interior) to do is to withdraw the proposed changes to the Ten-Day Notice Rules,” Pizarchik declared in a written comment.
During an interview with the Star-Tribune in the weeks following the issuance of the proposed rule change, Pizarchik said he worried the overhaul could affect the integrity of the response to citizen 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 the rule change would deliver a blow to public participation.
Shannon Anderson, a staff attorney for the group, opposed the new rule, saying it would also weaken federal oversight of state regulators and potentially compromise the thoroughness or expediency of investigations including but not limited to, damage from blasting, water contamination or lack of cleanup.
“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, the acting director at the Office of Surface Mining, disagreed with this characterization of the rule. Federal officials still have the authority to conduct their own investigations into alleged mining infractions to uphold the Surface Mining Control and Reclamation Act of 1977, if it so chooses, he said last month in a phone interview. Inspection protocols and requirements will stay the same under the proposed rule, too. He considered the change the opposite 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 portion of comments, including one submitted by the Interstate Mining Compact Commission, extended support for the new rule. Gov. Mark Gordon is a commissioner of the organization.
“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.
Not enough time
Other individuals participating in the public comment period requested an extension to the 30-day public comment period associated with the proposed rule change, due in part to the disruptions prompted by the COVID-19 pandemic. The rule was published in the Federal Register on May 15. The public comment period closed 30 days later on Monday.
“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 citizen organizations from across the country also demanded the agency both extend the public comment period to allow greater engagement on the issue and host public forums on the proposed rule in communities affected by coal mining.
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