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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC CRITICAL OF OSM RULE CHANGE WEAKENING STATE OVERSIGHT  Posted: February 2, 2004

National Citizens Coal Law Project

A Project of the Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail fitzKRC@aol.com

February 2, 2004

Andy DeVito by e-mail:

Office of Surface Mining adevito@osmre.gov

Reclamation and Enforcement

U.S. Department of the Interior

1951 Constitution Avenue, NW Washington, D.C.

Re: 68 Fed. Reg. 67776

Revisions to the State Program Amendment Process

Dear Andy:

These comments are submitted on behalf of the board and membership of the Kentucky Resources Council, Inc., which, through its National Citizens Coal Law Project, provides free legal and strategic assistance to coalfield citizens organizations and individuals across the nation.

On behalf of those individuals, and on behalf of the members of KRC who live, work, and recreate in areas affected by surface coal mining operations, these comments are submitted in opposition to the proposed revision to 30 CFR Part 732.

The proposed rule would revise the state program amendment process to eliminate the current mandatory obligation to commence proceedings to substitute federal enforcement for all or part of an approved state program in the event of a failure on the part of the state regulatory authority to amend the approved state program as directed by the Secretary.

The rule would significantly erode the accountability of the individual state regulatory programs, and is in direct and irreconcilable conflict with the intent of Congress that the state regulatory programs approved under Section 503(a)(1)-(7) of the 1977 Act be maintained, administered and enforced consistently with the Secretary’s regulations, and with the Secretary’s mandatory obligations under Sections 504 and 521 of the Act.

Background

The instant rulemaking is proposed against a backdrop of systemic failures on the part of the Secretary and her Office of Surface Mining Reclamation and Enforcement, to comply with the current regulatory mandate to commence Part 733 proceedings in the face of state refusal to submit required program amendments. Exemplary of the failure is the issue of the exemption of public roads from the “affected area” definition, where the Commonwealth of Kentucky has refused, over a period of years and in direct defiance of repeated OSM demands, to amend the state program in order to eliminate the “public use” prong of the “affected area” definition so as to conform to Judge Flannery’s decision, and yet OSMRE has failed to commence action to federalize that aspect of the state permitting program or to take other action required by current regulations.

Rather than undertake actions that are required under current regulations, the agency proposes to excuse this type of inaction and to thwart future judicial efforts to compel the Secretary to take action, by revising the regulation in order to shift the focus of inquiry from whether the state has failed to maintain currency with the counterpart federal regulation and SMCRA, to an inquiry into whether the “State is not effectively implementing, administering, maintaining or enforcing its approved State program” in a cumulative or “overall” sense.

There are two definitions of “oversight” – the first, to oversee; the second, to overlook. The proposed rule continues the lamentable transition of the agency from the historic role of monitor of state performance to one of an agency that has lost sight of its intended function. The proposal is irresponsible, in direct conflict with SMCRA, and is an abrupt reversal of agency policy for over 25 years without a rational and adequate basis – and one unlikely to survive judicial challenge.

The proposed rule

The proposed rule would replace current 30 CFR 732.17(f)(2), which provides that

(f)(2) If the State regulatory authority does not submit the proposed amendment or description and the timetable for enactment within 60 days from the receipt of the notice, or does not subsequently comply with the submitted timetable, or if the amendment is not approved under this Section, the Director shall begin proceedings under 30 CFR part 733 to either enforce that part of the State program affected or withdraw approval, in whole or in part, of the State program and implement a Federal program[,]

with a provision that would eliminate the mandatory requirement to commence proceedings under 30 CFR Part 733 with a test that would intentionally shift the focus away from the flagrant violation by the state agency of its mandatory federal obligation under Section 503(a)(1) – (7) to maintain state program laws and regulations consistent and in accordance with federal counterparts. The new test would excuse the state’s knowing and intentional violation of a request to amend the state program provided that the Secretary did not find the individual (or aggregate) violations by the state of it’s duty to maintain currency in the state program law and regulations rendered the overall implementation, administration, maintenance and enforcement of the approved program “ineffective.”

The proposed rule eviscerates the state program amendment process by removing the enforcement mechanism, and provides the recalcitrant state or tribal government with carte blanche to ignore program amendment obligation without penalty, since it is highly unlikely that any one regulatory amendment will tip the balance between effective and ineffective implementation, administration and enforcement of an entire program.

I. The proposal is an abrupt departure from 25 years of agency policy

Since 1979, the agency has made an intentional distinction between the program amendment process and the assessment of the state’s effort in implementing the approved state program. The necessity of adopting revisions to an approved state program in order to maintain currency and to satisfy the Congressional goal of a national “floor” of surface mining regulation that was consistent across the states, is conceptually a distinct matter from the overall assessment of the effort of the state in implementation of the state program.

In adopting the 1979 permanent program regulations (which contained language similar to current 732.17(f)(2) but required the actual state program amendment, rather than a timetable for adoption, within 60 days of federal notice), OSM rejected the suggestion that the state program amendment process be folded into Part 733 – the very outcome now proposed by the agency in adopting the 733 standard of overall effectiveness in determining whether to act to sanction a state for knowing failure to maintain program currency:

The Office has decided not to move the amendment procedure

to Section 733. State program amendments are necessary to

address actual changes in the approved State program submissions

which may affect implementation, administration or enforcement of

that program. Part 733 is designed to address the States’ actual

implementation and administrative efforts. The regulations establish

that the amendment procedure in Section 732.17 provides for necessary

change to the program itself and not the State’s effort to run the program.

The program includes statutes, regulations, authority, procedures,

systems, personnel and physical resources and funding.

The proposed rule removes the only sanction provided by regulation for state failure to submit required program amendments, abruptly reversing thirty years of agency policy and undercutting the intent of Congress that uniformity in administration of the Act be maintained among the states across time.

II. The rulemaking fails to enunciate a rational and legitimate

basis for the abrupt departure from the previous regulation

As noted above, the proposed rule is an abrupt departure from the 1979 rulemaking establishing the commencement of Part 733 proceedings as the sanction for failure to submit a state program amendment when directed by the Secretary.

The existing regulatory language was adopted initially in 1979, 44 Fed. Reg. 15326 (March 13, 1979), and has existed in substantially similar form for the intervening 25 years. Amended in 1981 to provide additional flexibility to states by allowing submission of a schedule for adoption of state program amendments rather than the actual amendment within sixty (60) days after notification, 46 Fed. Reg. 7909 (January 23, 1981), the regulation has been modified in other respects since then but throughout the agency has not considered removal of the only sanction in the existing regulation. See: 47 Fed. Reg. 26366-26367 (June 17, 1982); 52 Fed. Reg. 4261 (Feb. 10, 1987).

The deletion of the requirement that the Secretary commence Part 733 proceedings in favor of allowing an overall assessment of the state program effectiveness erodes the accountability of states under the federal Act, and is in direct conflict with the purpose underlying the existing regulation.

The Secretary first proposed the program amendment process in 1979 in recognition that a formal state program amendment process, coupled with the prohibition against state program amendments taking effect until approval by the Secretary, was necessary

to ensure that a nationwide program is maintained after program

approval. This additional Section has been added because the

proposed regulations did not provide effective procedures for

assuring that the program would not be weakened after its initial

implementation.

44 Fed. Reg. 14967 (March 13, 1979).

The sole justification provided for the proposed revision to the rule is that the substitution of federal enforcement for all or part of a state program causes “disruption.” 68 Fed. Reg. 67777 (December 3, 2003). The example given for removing the enforcement mechanism, that of Iowa’s tardy amendment, is a poor example of governance-by-anecdote, and fails to justify the illogic of excusing a clear and knowing breach of a federal obligation by shifting the focus of oversight away from the violation and towards the “overall” effectiveness of the program as a mechanism to obscure rather than enforce the obligation and to blunt and dilute its adverse effect. If governance by anecdote is to be the analytical tool used, then the substantial public harm (measured in quality of life, litigation costs, health impacts) caused by OSMRE’s inaction in Kentucky in the face of state defiance of a request to modify the approved state program to incorporate the suspension of the “public road” exclusion for roads used or modified to support mining, trumps the example of the supposed lack of harm from delay in state program amendment in a state that has not mined coal in recent or distant memory.

III. The proposed rule violates SMCRA by converting mandatory

duties to act in the face of a failure of a state to adhere to SMCRA’s

requirements into a discretionary obligation

As previously acknowledged by the agency, a state administering an approved state program has a continuing federal obligation to maintain, administer and enforce all aspects of the program consistency with the Act and the Secretary’s regulations. 30 CFR 733.11 codifies and reflects this duty. The duty is actionable under the citizen suit provision of SMCRA.

The Secretary, in proposing to delink the obligation to submit a program amendment from the sanctions of initiation of 733 proceedings, violates several aspects of SMCRA, including Section 521(b), which is triggered any time that there is “reason to believe” that violations are resulting from a failure by the state to enforce a program or any part thereof effectively[.]” (Italics added). The failure of a state regulatory authority to promptly revise a state program when requested by OSMRE and to maintain currency is a state program violation triggering mandatory response by the Secretary.

Further, Section 504(a) demands federal response when any part of a state program is not being properly administered, precluding the “overall” or “aggregate” approach being proposed by OSMRE in this rulemaking.

The proposed rule is contrary to law for several additional reasons: first, as previously discussed, because it is an abrupt reversal of agency regulatory policy that eliminates a former regulation deemed necessary to assure proper implementation of the Act without replacing the removed provision with another equally permissible and effective mechanism for satisfying the Congressional goal; second, because the reason proffered for removing the existing provisions is not a legitimate basis for action and is contrary to legislative intent; and finally, because the proposed “remedy” is logically unrelated to the problem that the agency has identified.

Assuming for the moment that the administrative record demonstrated that the existing regulatory framework has been unduly disruptive or costly, nowhere in the legislative history of the Act is administrative inconvenience or cost of implementation a value permitted to be considered, or a value exalted over the goals of assuring consistent implementation of the federal Act among the states. Instead, throughout the legislative history and structure of the Act, the overarching goal of assuring consistency in adoption and implementation of the Act comes through.

The provisions of Section 504 provide flexibility in tailoring federal assumption of enforcement and administration of non-compliant state programs, but that flexibility is not broad enough to accord the Secretary the ability to ignore failures of state program amendment that affect part of, but not necessarily all of, a state program. In crafting the Section 504 transition regulations, Congress intentionally considered and established procedures for the transition from State to Federal programs “or vice-versa, in order to assure that coal operations can continue in an orderly manner.” H.R. Rept. No. 95-493 (95th Cong. 1st Sess. 102 (1977). Obviously the transition will be disruptive to the agency, but insofar as the Secretary is concerned, that “disruption” to the relationship with the non-compliant state is the Secretary’s job description under Section 504, and a disruption that the state regulatory authority can avoid by submitting a schedule for adoption of the amendment revision or by appealing a determination that it believes is in error. Inaction in the face of Secretarial mandate is not an option to be countenanced in the manner proposed, and cannot be consistent with Sections 504 and 521(b).

In terms of disruption, enforcing timely submittal of required state program amendments through the use of the Part 733 sanction is in fact less disruptive overall, since it assures that among the states, a fair and level ground is maintained – a goal important to Congress, which recognized that the implementation of federal minimum standards was essential to preventing recurrence of historic patterns of nonenforcement and favoritism of local industry by the individual states. H.R. Rept. No. 95-128, 95th Cong. 1st Sess. 129 (1977). Additionally, while the dilution of federal oversight to one of considering “overall” effectiveness as the component parts of a state program fail to maintain currency with federal changes, places the industry in a position of increasing conflict between state-issued permits and federal requirements, increasing as well the vulnerability of those companies to third-party litigation (and increasing the vulnerability of the state regulatory agencies to citizen suits to force state program amendments).

KRC opposes the extension of the 10-day period to 30 days as being unnecessary and unjustified. It is ironic that the agency has become less capable, in an era of simultaneous electronic submission of data, and less capable of timely transmitting and processing information.

Finally, KRC incorporates by reference as if fully set forth below, the comments submitted by Joe Lovett on behalf of the Appalachian Center for the Economy and the Environment opposing the rulemaking as a violation of the agency’s no discretionary duty under Section 504(a) of the Act and as a violation of the obligation of OSMRE to assess and take action where necessary to address inadequacies of a part of an approved state program, rather than obscuring failures to adequately implement parts of the program by utilizing the “overall” effectiveness as the standard for action under Section 504 and Section 521 of SMCRA.

Thank you in advance for your consideration of these comments. KRC urges you to reconsider and withdraw the proposed rulemaking in favor of more consistent application of the existing rule.

Cordially,

Tom FitzGerald

Director

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