Welcome

Coal Complaints Rule Seen as Last-Ditch Move to Help Industry (1)

Oct. 27, 2020, 7:50 PMUpdated: Oct. 27, 2020, 8:49 PM

A final rule on Tuesday from the Interior Department is changing how citizens can report complaints about polluting coal mines, in what critics see as another administration attempt to help the ailing industry.

The announcement from the Office of Surface Mining Reclamation and Enforcement comes just a week before the presidential election, in which coal states like Pennsylvania and Ohio are likely to play a key role.

The final rule concerning so-called “Ten-Day Notices” sets a new standard that the office said is meant to streamline how citizen complaints are handled. Several coal mining groups and a Wyoming regulator said they back the change, which fits with President Donald Trump’s bid to support the coal sector.

Under the old rule, any person could notify the Office of Surface Mining about alleged mining violations, and the agency would then have to relay credible allegations to the state regulator. That started a 10-day clock for the state to either force a miner to fix the problem, or show good cause for not forcing action.

In its proposed form, OSMRE’s rule would insert an additional layer that lets the agency informally contact a state before sending a 10-day notice. The text of the final rule (RIN:1029-AC77) wasn’t yet available.

Speaking of the proposed rule, Peter Morgan, a senior attorney at the Sierra Club in Denver, said it creates a new, open-ended first step that would draw out the process and leave no paper trail, “so it would be hard for citizens to challenge.”

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

In a Tuesday statement, OSMRE said direct coordination with the states lets the agency “determine if the states have already investigated the potential violation, which promotes sharing of resources, saves time, and eliminates duplicative efforts, resulting in a more effective implementation of the Surface Mine Control and Reclamation Act.”

Tweak Around Margins?

Chris Holmes, an OSMRE spokesman, said in August that the rule doesn’t change the ability of citizens to report potential violations of any nature to the federal agency, or the relevant state regulatory authority.

In past years, he said, state and federal investigators “have unknowingly worked on the same potential issues, and this led to a wasteful duplication of time, effort, and money.”

In accepting the Republican nomination for president in August, Trump warned that Democratic presidential candidate Joe Biden wants to “abolish” coal production, “laying waste to the economies of Pennsylvania, Ohio, Texas, North Dakota, Oklahoma, Colorado, and New Mexico.”

But the latest move is just a tweak around the margins, with earlier efforts by the Trump administration having failed to save an industry in free fall, said Sean Hecht, an environmental law professor at the University of California, Los Angeles.

“It’s been true since the day he became president that a resurgence of coal is not something he can accomplish,” Hecht said.

Industry Backing

Rich Nolan, president of the National Mining Association, said in a statement that the final rule “ends prior overreach that eroded the primacy of the states” under the surface mining law.

Ashley Burke, a National Mining Association spokeswoman, added in August that “the practical effect was cumbersome and confusing program administration, interference with state primacy, and disruptive, unannounced federal inspections that often led to intergovernmental conflicts that put mining companies in the middle.”

“We see these changes as favorable and a recognition of cooperative federalism,” said Kyle Wendtland, land quality administrator in the Wyoming Department of Environmental Quality.

Important in Down Cycles

The proposed rule put the burden on citizens to include technical data when they file complaints to OSMRE, said Joe Pizarchik, who led the agency under former President Barack Obama. The previous rules only required citizens to notify the office, he said.

“The average person anywhere does not know how to read those documents,” said Pizarchik. “They don’t have a geological background, they don’t know how to read a hydrological assessment, and they really couldn’t understand the technical stuff.”

The changes offered by OSMRE are particularly important during coal busts like the one the U.S. is currently in, said Pizarchik, who now runs a consulting firm called Pizarchik Advancements.

“In those down cycles, some companies will start cutting corners and making choices to violate the law in order to reduce the costs,” said Pizarchik. “So the eyes of citizens are important in that period.”

‘Slap in the Face’

Environmental groups said they’ve used the 10-day notice provision to get states to do their job regulating coal companies throughout the country.

In Wyoming, a citizen complaint found that the state failed to secure funding for a bankrupt company’s potential mine cleanup costs, according to the Center for Biological Diversity. Citizens in Oklahoma found the state didn’t require a mining company to restore the land after mining was completed, the group said.

Residents of West Virginia used 10-day notices to relocate an elementary school from under a 2.8-billion-gallon coal slurry dam, it said.

“It’s really important states feel like somebody’s looking over their shoulder,” said Anne Hedges, deputy director and lead lobbyist for the Montana Environmental Information Center. “Because when that stops, states stop doing their job.”

Jeremy Nichols, climate and energy program director at WildEarth Guardians, said the rule change is a “slap in the face of citizens” who are trying to ensure oversight of mining laws.

(Updates with additional reporting starting in eighth paragraph.)

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com; Tripp Baltz in Denver at abaltz@bloomberglaw.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergindustry.com

To read more articles log in. To learn more about a subscription click here.