NOTICE OF VIOLATION AND INTENTION TO SUE PURSUANT TO 30 U.S.C. 1270(a)(2) and M.C.A

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1 NOTICE OF VIOLATION AND INTENTION TO SUE PURSUANT TO September 19, 2011 Richard Opper, Director Department of Environmental Quality 1520 E. Sixth Avenue P.O. Box Helena, MT Ed Coleman, Bureau Chief Coal and Uranium Program Montana Department of Environmental Quality th Avenue, Bldg. B Helena, MT Steve Bullock, Attorney General Department of Justice 215 N. Sanders Helena, MT Ken Salazar, Secretary of the Interior Department of the Interior 1849 C Street, N.W. Washington DC Joseph Pizarchik, Director Office of Surface Mining Reclamation and Enforcement South Interior Building, Room Constitution Avenue, NW Washington, DC Al Klein, Region Director Office of Surface Mining Reclamation and Enforcement 1999 Broadway, Suite 3320 Denver, CO Pursuant to 30 U.S.C. 1270(b), 30 C.F.R , and Mont. Code Ann Montana Environmental Information Center and the Sierra Club (collectively the Citizens ) notify each of you that in the absence of timely actions that ensure performance of certain 1

2 statutory duties pursuant to the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C ( SMCRA ) and the approved Montana state regulatory program that implements that statute, 30 C.F.R. Part 926 ( the Montana program ), the Citizens intend to initiate a civil action or mandamus action pursuant to 30 U.S.C. 1270, Mont. Code Ann , or both of those statutes against Mr. Opper, Mr. Coleman, the Montana Department of Environmental Quality, or all or any combination of those persons. The Citizens intend to commence such litigation sixty (60) days from the date on which they mail this notice, or as soon thereafter as counsel may prepare and file the necessary papers. However, the Citizens reserve the right to file the contemplated civil action or mandamus action within the sixty day period if they determine that approval of any pending application for a new or significantly revised permit to conduct surface coal mining and reclamation operations would constitute an imminent threat to the health or safety of any member of MEIC or the Sierra Club, or would immediately affect the legal interest of any such member. The Citizens send this notice as a result of serious concerns that DEQ is not meeting its mandatory duties to ensure that Montana coal mines are designed to prevent material damage to the hydrologic balance outside their permit areas and in fact are not causing material damage to the hydrologic balance outside of the permitted mine area. As outlined in detail below, the Citizens have discovered that DEQ has a pattern and practice of failing to follow state and federal requirements to consider the effects of coal mining on ground and surface water before coal mining commences or is expanded so that DEQ can ensure that the mine is designed to prevent material damage to water quality and quantity. Of particular concern is DEQ s failure to consider whether the mines are causing or contributing to excursions from state water quality 2

3 standards, especially given the fact that many of the waters around the mines are already failing to meet state water quality standards. I. SMCRA AND THE MONTANA PROGRAM IMPOSE MANDATORY, NON- DISCRETIONARY ACTS OR DUTIES THAT YOU HAVE NOT PERFORMED. Pursuant to 30 U.S.C. 1211(c)(1) and (c)(2) and 30 C.F.R , States that obtain approval from the Secretary of Interior of state regulatory programs for implementing SMCRA have a continuing duty under federal law to implement, administer, enforce, and maintain the approved program in accordance with SMCRA, its implementing federal regulations, and the provisions of the approved program itself. In addition, Montana has elected to enter into a cooperative agreement with the Secretary of the Interior pursuant to which the State has obligated itself to regulate surface coal mining and reclamation operations on federal lands within Montana consistent with SMCRA, the federal lands program (30 CFR) Chapter VII, Subchapter D) (sic), and the Montana State Program. 30 C.F.R ( the Montana Cooperative Agreement ). Accordingly, SMCRA, the Montana Cooperative Agreement, and the Montana program collectively and severally impose on the Montana Department of Environmental Quality and the officials who control its actions (collectively DEQ ) a mandatory, non-discretionary duty to withhold approval of any application for (1) a new surface mining permit or (2) a significant revision of any previously issued surface mining permit unless and until the application affirmatively demonstrates and DEQ finds in writing on the basis of the information set forth in the application or from information otherwise available which DEQ documents in its approval papers that, among other things: (1) the permit application is accurate and complete; (2) the permit applicant has complied with all of the requirements of SMCRA and the 3

4 Montana program; and (3) based on an assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance, the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. 30 U.S.C. 1260(b)(1), (b)(3); 30 C.F.R (c)(1), (c)(5); Mont. Code Ann (3)(a); ARM (5), (6)(c). As part of every cumulative hydrologic impact assessment ( CHIA ), SMCRA, the Montana Cooperative Agreement, and the Montana program require DEQ to, among other things: (1) base the agency s designation of the cumulative impact area for the proposed or revised operation on a scientific, data-based analysis of the area within which impacts that likely will result from the proposed operation may measurably interact with impacts of all anticipated mining on surface and groundwater systems, in accordance with 30 C.F.R (cumulative impact area), , (e), , (f), and ARM (31), ; (2) specify all anticipated mining within the cumulative impact area according to the standards stated in 30 C.F.R (cumulative impact area) and ARM (31); (3) define, for each lawfully designated cumulative impact area, the threshold limits or ranges of cumulative hydrologic impact which, if exceeded, would constitute material damage to the hydrologic balance, in accordance with the requirements of ARM (67), (1)(e), (f), , (6)(c) (as those regulations must be interpreted in light of 30 C.F.R or , and 48 Fed. Reg. 43,973 (Sept. 26, 1983)); and 4

5 (4) include among such threshold limits or ranges, at a minimum, each numeric water quality standard applicable to each water resource within the cumulative impact area, in accordance with Mont. Code Ann Among other things, the water quality standards applicable at Montana coal mines prohibit pollution... of any state waters, which include ground water, as well as the placement of wastes where they will cause pollution of any state waters. Mont. Code Ann (1)(a), (33). Pollution is broadly defined as: (i) contamination or other alteration of the physical, chemical, or biological properties of state waters that exceeds that permitted by Montana water quality standards ; or (ii) the discharge, seepage, drainage, infiltration, or flow of liquid, gaseous, solid, radioactive, or other substance into state water that will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, or welfare, to livestock, or to wild animals, birds, fish, or other wildlife. Mont. Code Ann (29)(a). Specifically, water quality standards applicable in Montana streams include specific numeric limits on concentrations of the following pollutants, which, among others, are commonly associated with wastewater discharges from surface coal mining and reclamation operations: Arsenic Beryllium Cadmium Copper Cyanide Hexavalent chromium Iron Lead Mercury Nickel Selenium Silver Zinc. Montana Circular 7. Chloride is another pollutant of concern for which the federal Safe Drinking Water Act standard applies. 40 C.F.R Surface coal mining and reclamation 5

6 operations also change the hydrology of the area, which, among other impacts, has caused increases in total dissolved solids and sulfates as well as changes in specific conductance. II. MONTANA DEQ S PATTERN AND PRACTICE OF FAILING TO CARRY OUT EACH OF THESE MANDATORY, NON-DISCRETIONARY DUTIES. Despite the statutory and regulatory requirements just described, Montana DEQ has engaged in a pattern and practice of unlawfully approving applications for new or significantly revised permits for surface coal mining and reclamation operations without performing CHIAs in accordance with the requirements of SMCRA, the Montana Cooperative Agreement, or the Montana program. Specifically, Montana DEQ has from the initiation of the Montana program to the date on which the Citizens mail this notice approved applications for new or significantly revised permits: without analyzing the specific area within which impacts resulting from the proposed operation may measurably interact with the impacts of all anticipated mining on surface and groundwater systems, and then using that analysis as the basis for determining the cumulative impact area for the proposed operation, in violation of the mandatory duty imposed upon the agency by 30 U.S.C. 1260(b)(3), ARM (67), (1)(e), (f), , and (6)(c); without making a written determination of all anticipated mining in the cumulative impact area, in violation of the mandatory, non-discretionary duty imposed upon the agency by 30 U.S.C. 1260(b)(3) and ARM (67), (1)(e), (f), , and (6)(c); without first predetermining each of the threshold limits or ranges of cumulative hydrologic impact that constitute material damage to the hydrologic balance in the 6

7 cumulative impact area of each proposed operation, in violation of the mandatory duty imposed upon the agency by 30 U.S.C. 1260(b)(3), 30 C.F.R , (as interpreted at 48 Fed. Reg. 43,973 (Sept. 26, 19830), Mont. Code Ann , ARM (67), (1)(e), (f), , and (6)(c); and without determining whether the permit applicant s proposed operations may cause or contribute to an excursion from any applicable material damage criterion, including but not limited to an excursion or excursions from any applicable Montana water quality standard in any affected surface water resource, so as to determine rationally whether each proposed surface coal mining operation has been designed to prevent material damage outside the permit area in accordance with 30 U.S.C. 1260(b)(3), Mont. Code Ann , and ARM (67), (1)(e), (f), , and (6)(c). Consequently, DEQ has unlawfully approved mining permit applications based only on purely pro forma, irrational material damage findings in violation of the mandatory, nondiscretionary duty that 30 U.S.C. 1260(b)(3), Mont. Code Ann , ARM (67), (1)(e), (f), , and (6)(c) impose upon the agency. The unlawful pattern and practice of Montana DEQ with respect to performance of CHIAs is evident in the issuance of numerous mining permits and significant revisions to such permits, each of which adversely affects the Citizens due to one or more of the deficiencies identified in this notice. Such permits include but are not limited to: App. No. Mine Name Permittee 143 Savage Mine Knife River Coal Mining Co. 164 Spring Creek Mine Spring Creek Coal Co. 166 Absaloka Mine Westmoreland Resources, Inc. 7

8 Absaloka Mine Rosebud Mine Spring Creek/Decker Spring Creek/Decker Bull Mountain Mine No. 1 Big Sky Mine Absaloka Mine Spring Creek/Decker Westmoreland Resources, Inc. Western Energy Co. Spring Creek Coal Co.lDecker Coal Co. Spring Creek Coal Co.lDecker Coal Co. Bull Mountain Coal Mining, Inc. Big Sky Coal Co. Westmoreland Resources, Inc. Spring Creek Coal Co.lDecker Coal Co. At present, the likelihood that DEQ will similarly approve Western Energy Company's Area B Amendment pending application without pcrfonning a lawful CHIA and without making a reasoned material damage fmding threatens the Citizens' interest in usc and enjoyment of ground water and surface water surrounding Rosebud Mine, including East Fork Armells Creek, West Fork Armells Creek, and Rosebud Creek. III. ADDITIONAL REQUIRED INFORMATION Montana Environmental Information Center's address is: 107 W Lawrence St. #N-6, Helena, MT and its mailing address is P.O. Box 1184 Helena, MT 59624; its telephone number is (406) Sierra Club's address is 85 Second Street, 2d Floor, San Francisco, California 94105; its telephone number is (415) The names, addresses, and telephone numbers of the Citizens' legal counsel are shown below. The Citizens request that any person receiving this notice direct all inquiries and correspondence to the undersigned legal counsel. MONTANA ENVIRONMENTAL INFORMATION CENTER SIERRA CLUB - By Counsel - Western Environmental Law Center 208 Paseo del Pueblo Sur, Unit U.S.C. I 270(a)(2) and M.C.A

9 Taos, New Mexico Tel.: Fax: Walton D. Morris, Jr. Morris Law Office, P.C Pheasant Lane Charlottesville, Virginia Tel.: Fax: