11/23/2020 - Regulatory Rollback

Ten-Day Notice Rule for Potential Mining Violations

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Why it matters

Community members who live and work near mining operations can report suspected violations of mining laws and regulations to the Office of Surface Mining Reclamation and Enforcement (OSMRE). After receiving credible complaints, OSMRE issues a “ten-day notice” to state regulators which requires them to investigate and resolve the possible violation within 10 days. This process is OSMRE’s primary enforcement tool and it empowers watchdog groups and individuals to report potential violations. 

Current Status

Oct. 27, 2020 Department of Interior announces a final rule requiring OSMRE to consider “all readily available information, including any information that a State regulatory authority provides” before issuing a Ten-Day Notice. The new rule also differentiates Ten-Day Notice enforcement from oversight of state permitting programs. The Trump administration asserts that Ten-Day Notices generally apply to “site-specific violations” and not “state regulatory program issues.” This differs from the Obama-era approach of using Ten-Day Notices for all types of violations including state permit activity. 

History

Aug. 3, 1977 The Surface Mining Control and Reclamation Act of 1977 (SMCRA) creates the Office of Surface Mining Reclamation and Enforcement (OSMRE) within the Department of the Interior, with oversight responsibilities for state regulatory programs for coal mine permitting. SMCRA allows states to establish their own regulatory schemes which, if federally approved, are granted “primacy” or exclusive jurisdiction. Section 1271 of the SMCRA empowers the OSMRE to issue ten-day notices to state regulatory authorities for potential violations by mine operators reported through community complaints. State regulators then have 10 days to investigate the potential violation and take “appropriate action” or show “good cause” for non-action. If the state regulators fail to adequately respond within 10 days, the OSMRE may initiate a federal inspection and issue a violation or cessation order.

June 15, 1981 The US Supreme Court upholds the constitutionality of SMCRA. Hodel v. Virginia Surface Mining, 452 U.S. 264 (1981).  

Oct. 21, 2005 Assistant Interior Secretary Rebecca Watson overturns a Ten-Day Notice sent to West Virginia regulators for a mining permit issued to Mettiki Coal Company. The “Mettiki E Mine” decision says that once a permit is issued by a state authority with primacy, federal jurisdiction ends: appeals of such permit decisions fall within state jurisdiction.  

June 11, 2009 EPA, Interior, and the Army issue a memorandum of understanding for an interagency action plan on mountain top coal mining. Interior announces plans to “more effectively conduct oversight of state permitting, state enforcement, and regulatory activities” under the SMCRA. 

Nov. 15, 2010 OSMRE Director Joseph Pizarchik issues a memo to all OSMRE Regional Directors “[rejecting] the rationale set forth in the Mettiki decision.” He argues the SMCRA authorizes Ten-Day Notice issuances for “all types of violations, including violations of performance standards or permit conditions and violations of permitting requirements.” 

Jan. 31, 2011 OSMRE re-issues Directive 996, INE-35 (“Ten-Day Notices”) codifying Director Pizarchik’s Ten-Day Notice memo. This directive requires a Ten-Day Notice for “permit defects,” or violations in any permit related action by a state regulatory authority such as permit issuance or renewal.

Trump Era

May 3, 2019 OSMRE re-issues Directive 996, INE-35 (“Ten-Day Notices”), rescinding the previous version. Notable changes include a new emphasis on state regulatory authority primacy and the removal of “permit defects” as a category of violations. This change denies OSMRE jurisdiction to act on community complaints where the state regulatory authority has already issued a permit. Complaints concerning permit related action should go to state administrative and judicial bodies.    

May 14, 2020 Interior proposes a rule requiring coordination with state regulatory authorities prior to issuing a Ten-Day Notice when OSMRE receives reports of a potential violation.