WEST VIRGINIA RECORD

CHARLESTON – A state environmental group is seeking an injunction against the U.S. Department of Interior over a rule that would prevent certain three-year-old mining permits from expiring.

Coal River Mountain Watch filed a complaint against the DOI and the Office of Surface Mining Reclamation and Enforcement on Oct. 21 in U.S. District Court for the Southern District of West Virginia. Secretary of the Interior Sally Jewell and OSM director Joseph Pizarchik are also named as defendants.

The rule violates the Administrative Procedure Act and the Surface Mining Control and Reclamation Act, CRMW argues.

“OSM’s de facto rule grants mining permit holders new rights, not found in SMCRA or SMCRA’s implementing regulations,” the complaint says.

“Defendants failed to publish notice of the proposed rule in the Federal Register containing ‘a reference to the legal authority under which the rule is proposed’ or ‘the substance of the rule.’

“Defendants also failed to allow ‘interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments,’ in violation of section 553 of the ACA.”

CRMW is upset with how a permit given to Marfork Coal Company in 2008 has been handled.

Marfork received the permit for the Eagle No. 2 Mine in Raleigh County, but it expired because the company did not commence mining activity within three years of its issuance, the complaint says.

After CRMW notified the state Department of Environmental Protection that the permit had expired, the DEP sent a letter to the company stating that it needed to request an extension prior to the three-year anniversary date of the permit’s issuance, the complaint says.

However, Marfork asked for an extension, and the DEP granted it. The DEP said, pursuant to a 1993 internal policy, that it was required to provide notice to a permit-holder of a permit’s pending expiration within 10 days of that date.

CRMW filed a complaint with the Office of Surface Mining Reclamation and Enforcement. The Charleston field office of OSM said nothing in West Virginia’s approved state program required DEP to provide notice.

But on Aug. 20, OSM deputy director Glenda H. Owens overturned that decision.

“(If) mining operations do not commence within three years [of a permit’s issuance], and no extension is granted, the permit will not terminate automatically; rather, the permit remains valid until the regulatory authority take an affirmative action to terminate it,” she wrote.

CRMW says there are 143 active permits that should have already expired because of a failure to commence mining within three years. It adds that there is mining at more than 100 mines after their permits should have expired.

“OSM’s 2013 de facto rule has thus far allowed WVDEP to overlook a total of 246 permit violations,” the complaint says.

CRMW is represented by Star City attorney Sarah J. Surber.