How a proposed rule can help communities hold coal companies accountable >

Photograph of the Hobet mine taken during a 10-day notice inspection.

The federal surface mining agency has proposed a new rule that, if finalized, will restore community members’ ability to ensure coal companies follow the law.

The Surface Mining Control and Reclamation Act protects communities and the environment from adverse impacts of coal mining in several ways — by imposing requirements for mining operations and reclamation of the land after mining, by creating the Office of Surface Mining Reclamation and Enforcement to oversee coal companies, and by empowering community members to make sure the law is enforced. Under the law, citizens can file lawsuits for violations of SMCRA. Another procedure for community member participation in enforcement is known as the “10-day notice procedure.”

SMCRA states that when the secretary of the Interior is informed by any person of a coal mining violation, the secretary shall notify the regulatory authority, which then has 10 days to take action to correct the violation. Violations can include polluted water running off a mine or a company’s failure to regrade and revegetate land after mining. In practice, when a community member identifies a violation at a coal mine and the state agency has not taken appropriate action to address the violation, the community member can notify OSMRE. Then the state agency would have 10 days to properly address the violation, or OSMRE would step in to ensure the violation is addressed.

In 2020, under the Trump administration, OSMRE issued a rule to change some key portions of how the 10-day notice procedure is implemented. First, it allowed OSMRE to request additional information from state mining agencies before performing an inspection. This created unnecessary delays in oversight. Second, it exempted systemic violations by state regulators — such as issuing a defective permit that violates the law — from the 10-day notice procedure. These changes allowed state regulatory agencies to evade accountability for coal mining issues identified by community members.

In early 2021, Appalachian Voices, Citizens’ Coal Council and the Sierra Club challenged the Trump-era rule in court. The rule violated SMCRA by creating likely delays beyond 10 days before OSMRE would undertake an inspection and by sidestepping the process entirely for systemic violations by regulatory agencies. OSMRE also failed to conduct an environmental analysis of the proposed rule as required under the National Environmental Policy Act. We asked the court to vacate the portions of the rule that violate SMCRA. The case is still pending.

Now, OSMRE has issued a new rule to address the problems created by the 2020 rule. The proposed rule limits OSMRE to reviewing information provided in the complaint and within the agency’s own files at the time the complaint was submitted, rather than allowing requests for additional data from state regulatory authorities. It treats all community complaints as requests for federal inspection and allows community members to accompany federal regulators on inspections. It includes “permit defects” created by state agencies as matters that can be addressed through the 10-day notice procedure. And it provides stricter timelines and types of actions that qualify as appropriate responses.

The new rule allows for an appropriate balance between community participation, state autonomy and federal oversight. If the proposed rule is finalized in its current form, it will help community members and organizations like Appalachian Voices ensure that mining regulations are enforced.

Sign our petition in support of the new rule!

When community members contact Appalachian Voices regarding likely impacts from mining, we typically investigate the situation ourselves to determine the likelihood of mining impacts. Our coal impacts team has over three decades of combined experience investigating mining impacts to land, rivers and well water. We always encourage community members to notify state agencies of potential violations. When we believe that a state agency has not taken an appropriate and lawful action, we can help community members send a 10-day notice request to OSMRE. Below are some 10-day notice procedures Appalachian Voices has taken part in.

Well water impacts from the Hobet Mine in West Virginia

In 2014, a community member contacted Appalachian Voices regarding a foul smell from a selenium treatment pond at the Hobet Mine in West Virginia. Patriot Coal, the company that owned the mine at the time, had recently installed a bioreactor pond to treat selenium discharging in wastewater from the mine. The smell from the pond was a normal part of the process, where biological organisms such as bacteria are used to…