16 april 2014 osm oversight issues c - dinsmore · granted summary judgment to the defendants. it...

April 201416

OSM Oversight Issueshristopher B. (Kip) Power,Dinsmore & Shohl, presentedOSM Oversight Issues to the

West Virginia Mining Symposium.The Federal Surface Mining Control

and Reclamation Act of 1977(SMCRA) is a comprehensive environ-mental statute with the goals of pro-tecting the environment during min-ing and restoring land to a conditioncapable of supporting the same orhigher uses. The basic premise is thatdue to the diversity in terrain, biolog-ic, and other physical conditions, pri-mary responsibility for regulating coalmining should rest with the states.“Primary governmental responsibili-ty” for regulating environmentalaspects of coal mining “should restwith the states,” 30 USC para1201(f), the purpose of SMCRA is to“assist the states in developing andimplementing” a mine regulatoryprogram, 30 USC para 1202(g). Itshould be either state-regulation orfederal regulation, but not both simul-taneously. Pennsylvania Federation ofSportsmen’s Clubs, Inc. v. Hess (ThirdCircuit 2002); Sierra Club v. Secretaryof Interior, et.al, (DC ND 10/22-13).“In contrast to other “cooperative fed-eralism” statutes, SMCRA exhibitsextraordinary deference to thestates.” Bragg v. WVa CoalAssociation (Fourth Circuit 2001).

SMCRA provides the minimumnational standards. State laws mustbe “in accord with” SMCRA and regu-lations and must be “no less effectivethan” OSM regulations. Reviewingproposed state programs alsoinvolves EPA, Secretary of Agriculture,and other federal agencies. TheInterior Department must hold atleast one public hearing; obtain the“written concurrence” of EPA as to theAir and Water Quality Standards.Approval or rejection of a proposedstate program is subject to review infederal court. With regard to amend-ments to a state program, OSMapproval must be obtained (federalrulemaking).

There are a number of basic ele-ments in federal oversight. The Officeof Surface Mining Reclamation andEnforcement (OSM) makes regularand special inspections of mine sitesin primacy states and files state regu-latory authority (SRA). In response tocomplaints or focused on periodicissue-based reviews, performance issummarized in an annual oversightreport. The Interior Secretary hasresidual authority to take over imple-mentation of the state program, sub-stitute a federal program, or takeenforcement action directly.

Other basic elements of federaloversight include immediate cessa-tion order. This is where there is immi-nent danger to the health or safety of

the public or conditions presentingsignificant, imminent environmentalharm. “Ten-Day Notice” is for situa-tions not requiring cessation orders;for complaints, if facts as allegedwould constitute a violation, OSM isrequired to find that it has “reason tobelieve that a violation, condition, orpractice exists” that warrants aninspection. SRA must take appropri-ate action or show good cause for fail-ure to take such action. If the OSMField Office finds that SRA has nottaken appropriate action or showngood cause, SRA may request a for-mal review (OSM Deputy Director).Any person who may be adverselyaffected may seek a review. If theOSM Field Office finds that SRA hastaken appropriate action or showngood cause, any person who may beadversely affected may request infor-mal review (OSM Deputy Director). Anadverse decision by the DeputyDirector may be appealed to theInterior Office of Hearings andAppeals. There is no prejudice to rightto bring a citizen’s suit under SMCRAParagraph 520.

On June 11, 2009, EPA, OSM, andthe Army Corps of Engineers complet-ed a Memorandum of Understandingimplementing the “Interagency ActionPlan on Appalachian Surface CoalMining.” This indicated that OSMwould plan to “reevaluate” its over-sight of state permitting, stateenforcement, and regulatory activi-ties under SMCRA. OSM will “removeimpediments” to its ability to requirecorrection of permit defects inSMCRA primacy states.

On November 18, 2009, an OSMbriefing paper was issued entitled“Oversight Improvement Actions.”This described more oversight inspec-tions, more independent inspections(current OSM regulations require jointOSM/state inspections where practi-cable, and the states so request. Theuse of the Ten-Day Notice procedureto correct permit defects (note: ques-tionable legal authority) was includ-ed.

What was the purpose of the OSM2009 proposals? There is no recordof inadequate state enforcement ofapproved SMCRA programs. Therewas a reduction in the total number ofmines of 50 percent since 1990.There is a reduction in the number ofcitizen complaints under SMCRA of90 percent. So the oversight propos-als based on June 2009 MOU arebased on what?

The case of NMA v. Jackson (DCDistrict of Columbia) was filed July2010. This challenged the legality ofthe June 2009 MOU and EPA pro-grams and memoranda affectingunprecedented expansion of theClean Water Act Paragraph 404

Permitting Requirements and ReviewProcedures. On July 3, 2012, theMemorandum Opinion and Order wasissued striking down the final guid-ance, and confirming the limited rolefor EPA in SMCRA matters. Appealswere filed by EPA, the Corps ofEngineers, Sierra Club et.al, and theoral argument is scheduled forFebruary 10, 2014. There were otheroversight cases. Sierra Club et.al. v.Secretary of Interior et.al. (DC NorthDakota) challenged implementationof North Dakota mining program thatwere approved more than 30 yearsago. On October 22, 2013, an ordergranted summary judgment to thedefendants. It held that long-standinggeneral presumption against judicialreview of agency decisions to declineto take enforcement action applies tothe Secretary of Interior’s enforce-ment powers under SMCRA. TheSecretary or OSM Director will onlyreplace the state program in extreme-ly serious situations, yet the samelevel of discretion was determinedwhether to substitute federal enforce-ment of the state program, whether toprovide for implementation of a feder-al program, and whether OSM has“reason to believe” that a violation ofthe state program exists.

Montana EnvironmentalInformation Center et al v. MontanaDEQ alleged improper implementa-tion of CHIA provisions of approvedMontana program under SMCRAbased on challenges to interpretationof “material damage” and failure touse water quality standards asthresholds. SMCRA Citizens SuitProvision allows adversely affectedperson to file civil action against stateregulatory authority “…to the extentpermitted by the 11th Amendment tothe Constitution” where there is analleged failure to perform any manda-tory act or duty under SMCRA. OnJanuary 22, 2013, the Court grantedthe defendants motion to dismiss. Itwas held that the 11th Amendment’ssovereign immunity bars the suit. Anyduties involved in making a “materialdamage” determination are discre-tionary, not mandatory. The Plaintiffs’claim is not right (no currently pend-

ing permit application or issuanceinvolving the issues). This is on appealto the 9th Circuit and is fully briefedas of December 30, 2013.

Power turned to recent OSM over-sight matters with regard to WV DEP.With regard to three-year “not startedpermits, on June 8, 2012 the OSMdetermination was that WV DEP failedto show good cause for not enforcing,revoking the permit. This was basedon alleged failure to make “notice”policy a part of the approved programand based on the absence of authori-ty for retroactive extensions of non-started permits.

On August 20, 2013, the OSMDeputy Director overturned theCharleston Field Office and finds thatWV DEP showed good cause for fail-ing to take enforcement action. Thisaffirms the OSM position that permit-ting issues are subject to citizen com-plaint and OSM oversight. “The scopeof review under the deferential arbi-trary and capricious standard is nar-row and OSM should not substitute itsjudgment for that of WV DEP.” It reliedon the general juris prudence disfa-voring “automatic forfeitures” andupheld the practice of giving noticeand opportunity to respond.

Federal citizen suits challengingOSM determination include CoalRiver Mountain Watch v. Sec. of theInterior (DC District Court), answerdue January 31, 2014, and Coal RiverMountain Watch v Sec. of the Interior(Southern District West VirginiaCourt), answer due January 31, 2014.Both of these cases were filed onOctober 21, 2013. They challenge theDeputy Director’s determination as a“de facto Rule” that was required togo through APA rulemaking process.It is unclear if a national or “state spe-cific” rule (though OSM allegedly sentthe determination to field offices forreference). The alleged impact on theability to file unsuitability petitionsand allege 143 active permits onwhich mining has not commenced areillegally still in effect per WV DEP pol-icy and OSM illegal “rule.”

With regard to Selenium/waterquality standard complaints, a groupof five letters from environmentalgroups are directed towards activemining operations and “active per-mits.” There are alleged in-streamconcentrations of Selenium down-stream from mining sites that exceedWV DEP water quality standards andtherefore violate the state program,but are not being enforced. None ofthe corresponding NDPES permitsinclude Selenium water-quality-based effluent limits. One additionalletter is directed towards bond forfeit-ing site, “Keenan Trucking.” This is thesame basic allegations as toSelenium violations in the receiving

stream and the remedy would be WVDEP issuance of the violation to itself.The WV DEP response of April 22,2013 says there is no reason tobelieve that a violation exists because“(a) there are no Selenium effluentlimits in the NPDES permits, so themining regulation requiring compli-ance with effluent limits does notapply; and (b) the WV Code 22-11-6(2012) NP DES permit shield provi-sion precludes an allegation of viola-tion where Selenium is not identifiedwithin the permit. The complainantswere advised of their right to appealWV DEP’s refusal to undertake aninspection or issue a violation to theWest Virginia Surface Mine Board,but chose not to do so. The KeenanTrucking site is no longer a “surfacemining operation” and therefore maynot be subject to a citizen request forinspection per WV Code 22-3-15.

OSM has made a number of deci-sions. On July 2, 2013, Active Permits,OSM found WV DEP had taken“appropriate action” to address theviolations, by requiring operators todetermine if they are dischargingSelenium, and if so requiring thatNPDES permits be modified toinclude effluent limits. The finding is“predicated on WV DEP followingthrough” on its commitment in a time-ly fashion. OSM specifically rejectsWV DEP’s position that the state per-mit shield statute precluding a findingof a possible violation, opting to relyon EPA interpretations of federal per-mit and shield provision, and notingthat two federal citizen’s suits areaddressing this issue. OSM rejectsWV DEP’s position that OSM has noauthority to interpret and apply theWater Pollution Control Act require-ments, because NPDES permitwriter’s duties overlap with CHIA writ-ers, and OSM has provided federalfunding to WV DEP on that basis.

OSM rejects WV DEP position thatfour-day sampling is required to indi-cate a possible violation of the fiveug/l Selenium chronic aquatic lifestandard. OSM reminds WV DEP thatit agreed to “consider” water qualitystandards when making materialdamage determinations, as part ofthe revised “material damage” defini-tion approved by OSM in 2008. OnJuly 23, 2013, in Keenan Trucking,OSM found WV DEP had not takenappropriate action to cause the viola-tion to be addressed. It rejected WVDEP’s position that the site was nolonger a “surface mining operation”because no proof was submittedshowing that the site was reclaimedto the required standards, e.g. show-ing any post-mining discharges com-plied with water quality standards.OSM cited the IBLA decision that“expressly rejected the notion that

C

Christopher B. Power

17April 2014

enforcement obligations of OSM or astate agency ends with bond forfei-ture.” WV DEP has filed at least an ini-tial request for informal review of theJuly 2, 2013 decision. It is unclear ifWV DEP has filed an informal reviewrequest or otherwise challenged theJuly 23, 2013 decision re: KeenanTrucking.

On June 23, 2013, the OSM deter-mination was made on the Part 733

Petition. The petition was filed bymany of the same groups that filedcitizen complaints leading to therecent Ten-Day Notices. OSM com-pleted the first step in the reviewprocess with verification of the allega-tions. It denied the request by thepetitioners to withdraw approval ofthe parts of the WV DEP program andimmediately substituted federalenforcement. It found that 14 of the

19 allegations “do not warrant furtherevaluation.” The five allegations thatwill be subject to further processingare: failure to address potential flood-ing risks from mine permitting; failureto issue SMCRA violations for NPDESviolations; failure to regulateSelenium pollution; failure to proper-ly define the impacted areas in CHIAstudies; and failure to properly imple-ment soil removal and reclamation

measures. The next steps are formalevaluation by OSM of the five allega-tions determined to merit further con-sideration. If a determination is madethat WV DEP is not effectively admin-istering the state program, writtennotice must be provided to WV DEPspecifying what areas are deemed tobe deficient, the basis for those con-clusions, and a timeline for remedialactions. WV DEP may request an

informal conference within 15 days ifOSM continues to believe there isinadequate implementation of thestate program, that provides publicnotice and conducts a public hearingwithin 30 days after any informal con-ference, to receive testimony, writtenpresentations, and comments.

For further information, e-mailchristopher.power@dinsmore.com.

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