Office of Surface Mining Seeks Comments on Oversight Policy – Our Response Should be Simple: Enforce the Law

Posted: Sep 23, 2018

The Office of Surface Mining has requested public comments on a general plan to make oversight more effective. Everyone who cares about the impacts of mining on our communities and the environment should take this opportunity to respond to OSM’s request.

Citizens throughout the country have been disappointed time and again over many years and through many different Administrations – Democratic and Republican – at OSM’s failure to engage in effective oversight. It may seem futile to expect that OSM will ever change. But we ought not – we cannot – concede this fight, especially not now when a new Administration seems open to setting a new course. Too many people in too many communities, and too many of our vital natural resources depend upon a better outcome. So what should we say?

OSM has acknowledged in their draft a “number of problems” but has suggested that these problems “centered on our regulations rather than our oversight policies and procedures.” Some of OSM’s examples were “the lack of clear contemporaneous reclamation standards…, the lack of a definition of material damage to the hydrologic balance, [and] the lack of clear standards in our definition of approximate original contour….” While OSM’s rules could undoubtedly benefit from some clarification, the problem with OSM’s oversight is not and never has been the lack of clarity in their rules. OSM has also suggested that it intends to increase the number of oversight inspections, intensify its oversight activities, and seek greater public involvement. These would all be positive developments. But the only way to make oversight more effective is for OSM to insist on strict compliance with the law. When violations are observed, and the States show that they are unable or unwilling to stand up to operators, OSM must take the appropriate enforcement action. Enforcement must be consistent and scrupulously fair, but it must also be certain where violations are identified.

While this proposed solution to the OSM oversight problem may seem simple, implementation will not be easy. A culture has evolved over many years of OSM acquiescing to the preferences of the states and the coal industry when disagreements arise. This culture is reflected even in the current announcement, which refers to the OSM’s ongoing policy of “providing customer service.” Historically, at least, OSM has hung to the belief that the coal industry and states are among its “customers.” See e.g., OSM Customer Service Report, 1996. Since, as we know, the customer is always right, it’s not surprising that OSM has been loathe to question industry and state policies. This has got to change if federal enforcement is going to be credible. Neither the industry nor the states can or should in any way be viewed as OSM’s customers. Coal operators are regulated entities. They should surely be treated fairly but OSM must insist on strict compliance with the law. The states stand in a somewhat different position than operators. OSM must work in partnership with the states, but they are not OSM’s customers either. On the contrary, if oversight means anything it means that OSM must be prepared to step in where states fall down on their obligations.

We can and perhaps should offer OSM comments about strategies for identifying and better addressing problems that arise at coal mining operations. But all these efforts and strategies will be meaningless unless OSM is serious about enforcement. I hope we can all unite behind this simple but powerful message.

- Professor Mark Squillace, Natural Resources Law Center - Colorado Law

Check out the helpful guide to submitting public comments on the Red Lodge Clearinghouse website.

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