Citizen groups weren’t very happy earlier this week, when OSMRE Charleston Field Office Director Roger Calhoun informed them of his decision on the Brushy Fork coal-slurry impoundment. As we reported:
Federal regulators this week backed off any separate enforcement action at a huge Raleigh County coal slurry impoundment, but disputed West Virginia’s conclusion that the facility used “the most conservative design” and that concerns about the site are unfounded.
The U.S. Office of Surface Mining Reclamation and Enforcement concluded that state officials had acted properly in policing the Brushy Fork impoundment, in part because the West Virginia Department of Environmental Protection has promised more stability testing at the site just upstream from Whitesville.
But this whole thing is worth another look — and not just because the Brushy Fork impoundment is big and scary, and deserves all the scrutiny regulators can give it. This story is also about what local OSMRE officials can and can’t do — and how OSMRE has tied its own hands in these situations.
Keep in mind first what has happened here on two of the major issues citizens have raised about Brushy Fork:
— Regarding whether blasting at the nearby Bee Tree Mine could damage the impoundment, OSMRE officials don’t believe it will. But, OSMRE also forced the state Department of Environmental Protection to revised its permit for Bee Tree, to require monitoring and blasting limits at the impoundment site. OSMRE’s Charleston Field Office went after this issue under a new agency policy, instituted in November 2010, that brought back the ability of local OSMRE officials to investigate potential permit defects in decisions made by state regulators.
— Regarding the stability of the impoundment itself, OSMRE has pushed the state and Alpha/Massey into new testing to more fully investigate the potential for solid materials inside the site to turn liquid and cause major problems.
Now, this isn’t exactly a ban on mountaintop removal … They won’t get written up by national bloggers or prompt thousands of comment emails from activist groups. But these are not small things, especially in the world of OSMRE, an agency that’s never come close to living up to the promise of the law that created it (see here and here).
And make no mistake, state agencies in the coalfields don’t like it one bit when OSMRE takes steps to toughen its oversight of their programs.
I asked Tom Clarke, director of the WVDEP’s Division of Mining and Reclamation, if he thought OSMRE’s review had improved his agency’s work on Brushy Fork and other impoundments, and after a long silence, he finally said:
… There probably have been some improvements ..
Harold Ward, one of Clarke’s top assistants, was more circumspect:
… It’s not always pleasant, but it is beneficial.
At the same time, it’s worth it for everyone who cares about strip-mining issues to understand why OSMRE couldn’t do anymore … why in effect, Roger Calhoun’s hands are pretty well tied up.
Read carefully the language in Roger Calhoun’s letter to coalfield activist Joe Stanley:
My standard of review of a state response to an alleged violation is explained in 30 C.F.R. 842.11, which requires that ‘… a response by a state regulatory authority that is not arbitrary, capricious or an abuse of discretion under the state program shall be considered appropriate action.’
Now, take a look back and see what Congress wrote when it passed the 1977 Surface Mine Control and Reclamation Act:
Surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders.
Even more to the point, read the legislative history of SMCRA:
Despite claims from some quarters that State reclamation laws have improved so significantly that Federal mining standards are no longer needed, the hearing record abounds with evidence that this is simply not the case. For a variety of reasons, including the reluctance of the State to impose stringent controls on its own industry, serious abuses continue.
Or as James McElfish and Ann Beier wrote in their great book, “Environmental Regulation of Coal Mining: SMCRA’s Second Decade“:
The economic importance of the coal industry to at least some of the mining states produces powerful pressures on state legislatures and regulatory agencies to accommodate coal interests.
So given that, why can’t OSMRE do more? Why can’t Roger Calhoun overturn a state decision unless he finds that decision to be arbitrary and capricious?
Well, it’s not because the law says so … SMCRA itself describes what OSMRE can do this way:
Whenever, on the basis of any information available to him, including receipt of information from any person, the Secretary has reason to believe that any person is in violation of any requirement of this Act or any permit condition required by this Act, the Secretary shall notify the State regulatory authority, if one exists, in the State in which such violation exists. If no such State authority exists or the State regulatory authority fails within ten days after notification to take appropriate action to cause said violation to be corrected or to show good cause for such failure and transmit notification of its action to the Secretary, the Secretary shall immediately order Federal inspection of the surface coal mining operation at which the alleged violation is occurring unless the information available to the Secretary is a result of a previous Federal inspection of such surface coal mining operation.
As you can imagine, exactly what constitutes “appropriate action” under this part of SMCRA has been the subject of a lot of debate. And in July 1988, the Reagan administration — in response to a mining industry regulatory petition — added this language to OSMRE’s rules for interacting with state agencies:
For purposes of this subchapter, an action or response by a State regulatory authority that is not arbitrary, capricious, or an abuse of discretion under the state program shall be considered “appropriate action” to cause a violation to be corrected or “good cause” for failure to do so.
Industry supports of the rule cited court cases, like one from 1981, in which a federal appeals court said:
Once a state program has been approved, the state regulatory agency plays the major role, with its greater manpower and familiarity with local conditions. It exercises front-line supervision, and the Secretary will not intervene unless its discretion is abused.
Of course, they didn’t always cite the following passage of the ruling:
But ultimate responsibility for guaranteeing effective state enforcement of uniform nationwide minimum standards lies with the Secretary, and his duty to disapprove proposed state programs that he considers ineffective may not be obstructed by a policy of judicial deference to the state agencies proposing those programs.
In their book, McElfish and Beier wrote that the “arbitary and capricious” standard should be eliminated from OSMRE’s rule:
Oversight that applies a judicial deference standard to state action undermines OSMRE’s capacity to protect the public and the environment.
OSMRE Director Joe Pizarchik has made much of his efforts to improve oversight of state programs. But nowhere in his plans do I see any proposal to rewrite that standard and untie the hands of agency staffers like Roger Calhoun.