Environmental groups led by Coal River Mountain Watch filed lawsuits on Oct. 21 in two federal courts seeking declaratory and injunctive relief against the U.S. Office of Surface Mining for issuing a rule that amends West Virginia’s approved state mining program (called the “2013 de facto rule” in the lawsuit).
They said the de facto rule is in violation of the Administrative Procedure Act (APA) and the 1977 Surface Mining Control and Reclamation Act (SMCRA). Both the APA and SMCRA’s implementing regulations explicitly require OSM to publish notice of a proposed rule that amends an approved state program in the Federal Register and give the public an opportunity to comment, the lawsuits said. In a letter dated Aug. 20, OSM issued this de facto rule.
SMCRA and its implementing regulations clearly mandate termination of mining permits after three years if no mining activity has occurred under the permits’ authorization, the lawsuits said. “Contrary to the plain language of SMCRA and its implementing regulations, the 2013 de facto rule fails to automatically terminate permits after three years elapse without the commencement of mining activity under the permits’ authorization,” the environmental groups added.
Plaintiffs filed parallel actions in the U.S. District Court for the District of Columbia and the U.S. District Court for the Southern District of West Virginia. In the case of the D.C. court, that is based on the theory that the 2013 de facto rule is an action promulgating a national rule and therefore subject to that court’s exclusive jurisdiction. The West Virginia filing is because the complained-of activity is located there, with the complaint focusing on a permit for the Marfork Coal unit of Alpha Natural Resources (NYSE: ANR).
The plaintiffs said they intend to consolidate these two lawsuits if further information supports a characterization of OSM’s rulemaking as either “an action by the Secretary promulgating national rules or regulations,” or alternatively, “other action constituting rulemaking by the Secretary” limited in scope to West Virginia.
Lawsuits complain about broader policy, zero in on Marfork Coal
Marfork Coal has at least 65 permits for coal mining from the West Virginia Department of Environmental Protection (WVDEP), said the lawsuits. In June 2008, Marfork received a mining permit for the Eagle No. 2 mine (Permit No. S-3028-05) in Raleigh County, W.Va. In June 2011, Marfork’s Eagle No. 2 mining permit automatically expired because Marfork failed to commence mining activity under that permit’s authorization within three years of the permit’s issuance, the lawsuits claimed.
In January 2012, Robert Goodwin of Coal River Mountain Watch complained to WVDEP that Marfork’s permit for the Eagle No. 2 mine automatically terminated as a matter of law. Three days later, WVDEP sent a letter to Marfork informing the company that it needed to request an extension for the Eagle No. 2 mining permit prior to the three-year anniversary date of that permit’s issuance, which had passed in June 2011, the lawsuit said. In January 2012, more than six months after the permit was set to expire, Marfork asked to extend the Eagle No. 2 mining permit. On Feb. 9, 2012, WVDEP granted an extension of that permit through June 6, 2013. Coal River then complained to OSM. The WVDEP told OSM that under its policy, it must provide notice first to the company of a permit lapse and that the permit doesn’t automatically lapse on the expiration date.
The lawsuits said that up to Oct. 21, there has been no mining work at the Eagle No. 2 site.
“There are currently 143 active mining permits in West Virginia that should have already expired due to the permit holders’ failure to commence mining activity under the permits’ authorization within three years,” the lawsuits added. “WVDEP additionally has allowed mining to commence at over 100 West Virginia mines after the permits should have already expired. OSM’s 2013 de facto rule has thus far allowed WVDEP to overlook a total of 246 permit violations.”
The WVDEP database shows that Eagle No. 2 involves an unusually large area of 2,040 acres, located near Dorothy. The mine would work various coal seams, including the Powellton and Cedar Grove. The agency website confirms that this mine is “not started” yet, that a July 2012 notice of possible termination was sent to the company, and that in March of this year the permit was renewed, with a current end date of June 6, 2018.