The federal Office of Surface Mining Reclamation and Enforcement (OSMRE) is trying to sneak through a major revision to key parts of the surface mining regulations. The proposed rule change would gut critical provisions of the surface mining regulations that give impacted communities a voice in mine oversight.

Currently, if a citizen makes a complaint to OSMRE alleging a violation at a mine site, that agency must take the allegations as true and undertake a formal investigation, including a site inspection. This is known as the “ten day notice provision,” because under the current rules once OSMRE receives a credible complaint, it must initiate its investigation, including giving state regulators ten days to respond.

The proposed changes would eliminate the requirement that the Office of Surface Mining initiate its investigation once it receives a credible citizen complaint. Instead, the proposed rule would allow the Office of Surface Mining to avoid initiating its investigation altogether, thereby allowing federal and state regulators to dismiss citizen concerns without ever inspecting the mine. In addition, the proposed changes would exempt alleged violations by state regulators—such as issuing a permit that violates the Surface Mining Act—from this form of federal oversight. If allowed to take effect, the proposed changes would undermine the careful balance between state independence and federal oversight struck by Congress when it passed the Surface Mining Act in 1977.

The Office of Surface Mining has mischaracterized the proposed changes as a mere “clarification,” and provided only 30 days for public comment and no public hearings. 85 Fed. Reg. 28904 (May 14, 2020). In fact, the proposed rule change would gut one of the most critical avenues under which citizens can raise concerns regarding alleged violations. Even in normal times, 30-days would be far too short a time to allow the public to provide input on the proposed rulemaking. During the current pandemic, the short comment period will make it impossible for communities impacted by surface mining to share their concerns with the Office of Surface Mining.