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COALEX STATE INQUIRY REPORT – 152

March 29, 1990

Steve Blodgett

The Hopi Tribe

Division of Mining & Reclamation Enforcement

P.O. Box 123

Kykotsmovi, Arizona 86039

TOPIC: CHALLENGES TO CUMULATIVE HYDROLOGIC IMPACT ASSESSMENTS 

(CHIAs)

INQUIRY: The Hopi Tribe is interested in obtaining all available information on challenges to 

CHIAs prepared by OSM. We are specifically interested in CHIAs that have been challenged for 

technical inadequacy, political bias, incompleteness, or other deficiencies.

SEARCH RESULTS: Research was conducted using the COALEX Library and other materials 

available in LEXIS. Copies of the Interior administrative decisions, state cases and federal 

opinions discussed below are attached.

INTERIOR'S OFFICE OF HEARINGS AND APPEALS DECISIONS

NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC), et al. v OSM, 4 IBSMA 4, 

IBSMA 81-83 (1982).

NRDC contested OSM's approval of ARCO's federal permit application. NRDC alleged that the 

application had been "improperly and illegally approved", in part, because the Director of OSM 

had not made independent findings that ARCO would meet all the requirements of SMCRA. The 

Board ruled as follows on the procedural questions:

1. OSM, not the states, has the responsibility to review and approve or disapprove a permit 

application regarding federal land. "[A]nyone seeking to mine coal of Federal lands shall 

first obtain a permit. Federal lands are defined as any land, including mineral interests, 

owned by the United States (except for Indian lands)." The mining permit obtained from 

the State of Colorado covered the non-federal portions of the minesite only. 

2. NRDC has standing in this matter. The rules encourage public participation in the 

permitting process "so the regulatory authority might fully consider all of the 

circumstances surrounding a permit application in order that only permits with 

appropriate conditions might be issued." The burden of proving that the federal permit 

was improperly or illegally issued rests with the NRDC. 

The Board referred the case to the Hearings Division to determine whether OSM had properly 

reviewed the application when it issued a mining permit to ARCO. [See immediately below.]
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC), et al. v OSM, 

ATLANTIC RICHFIELD CO. AND STATE OF COLORADO, 89 IBLA 1, IBLA 83-757 

(IBSMA 81-83) (September 27, 1985, as amended by November 18, 1986 decision).

As a result of the hearing held in response to the Board's order [See the case above.], the ALJ 

ruled that OSM "was sufficiently advised in all areas to support its approval" of ARCO's mining 

permit. NRDC appealed; they succeeded in proving some of the issues raised and failed on 

others:

1. The Board ruled that the party applying for a mining permit, not OSM, was responsible to 

provide certain information in the application: 

a. the description of the ground water basins or systems; 

b. the description of the baseline data; 

c. OSM was responsible for obtaining probable cumulative impact (PCI) data (later 

called CHIA) from appropriate governmental agencies; if the information is not 

available, the permit applicant must gather and submit.

2. OSM was not required to include certain areas in the PCI assessment as a control 

watershed "in the absence of a regulatory requirement for such information." 

3. OSM "failed to take some pre-permit actions." Most relevant was OSM's failure to assess 

the probable cumulative impacts of "all anticipated mining in the area on the hydrologic 

balance". The Board stated that "no permit shall be approved unless there has been 

compliance with all the requirements of the Act and the State or Federal program." The 

imposition of stipulations to the permit as a means to satisfy unfilled requirements was a 

violation of the Act. 

The decision by OSM to issue the permit was affirmed in part. Further briefing was ordered 

"concerning the appropriate relief".

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al. v OSM AND WEST ELK 

COAL CO., 94 IBLA 269, IBLA 83-757 [IBSMA 81-83] (November 18, 1986, amends 

September 27, 1985 decision).

West Elk, substituting for Atlantic Richfield, sought two permit revisions. As part of its review 

process, the state undertook a new PCI assessment for each of the revisions. NRDC did not 

"challenge the sufficiency of the PCI assessments before the state because they were relying on 

their opportunity to contest that determination in OSM's mining plan review process, but OSM 

never provided that opportunity." The Board ruled that the state's public comment procedures on 

permit revisions and OSM's mining plan review operations were a coordinated process as 

"contemplated by the cooperative agreement to avoid duplication of effort". [The cooperative 

agreement which went into effect (1982) after the initial permit request (1981), "changed the 

responsibilities of the parties to that agreement."] The Board stated that further action "in the 

form of relief for the original PCI assessment deficiency is not warranted because the State has 

performed new PCI assessments with which NRDC et al. did not take issue."

THE HOPI TRIBE v OSM AND PEABODY COAL CO., Docket No. TU 6-3-PR (1986).
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OSM approved two revisions to Peabody's permit which authorized construction of a dam, a 

sediment control structure to replace four existing smaller structures and relocation of an existing 

airport at the mining complex. An environmental impact statement (EIS) was prepared in 1972 

following the passage of the National Environmental Policy Act (NEPA). The extensive 

technical and environmental assessment prepared in connection with the original permit approval 

resulted in a finding of no significant impact (FONSI). Peabody submitted a permanent 

application package and an EIS and a cumulative hydrologic impact assessment were being 

prepared. "Against this background" and on the basis of the testimony presented, the ALJ 

concluded that there would be no "measurable or significant impact on downstream users" and 

"OSM's approval of the two permit revisions was proper".

FRANK STEBLY v OSM, Docket No. DV 7-2-PR (1987).

OSM approved the permit for a preparation plant to wash coal on a permitted minesite. Stebly 

contended that OSM's EIS was inadequate and "its Finding of No Significant Impact (FONSI) 

was erroneous" in violation of NEPA. 

"The requirements of NEPA are satisfied if all environmental considerations are explored. The 

burden of the party challenging the agency's decision is to show that it was based on a clear error 

of law, a demonstrable error of fact, or that the analysis failed to address substantial 

environmental issue of material significance."

The ALJ determined that "the environmental assessment did identify and consider all the 

environmental issues" raised by Stebly, including ground water quality, surface water quality, 

surface water quantity, etc. Stebly did not "introduce any factual evidence that contradict's 

OSMRE's findings." Stebly's application for permit review was dismissed. 

STATE CASE LAW

CITIZENS ORGANIZED AGAINST LONGWALLING v OHIO DEPT. OF NATURAL 

RESOURCES, 41 Ohio App 3d 290, 535 NE 2d 687 (Ohio Ct App 1987).

A group of landowners appealed the Ohio Reclamation Board of Review's decision approving 

Southern Ohio Coal Company's permit to mine using the longwall coal mining method, alleging 

that the permit application failed to "include measures required by law to protect the 

hydrological balance of the region" and specifically, it failed to "protect individual water users' 

rights." The court agreed with the Board that (1) omission of borehole data "did not flaw the 

permit application"; (2) although flawed, Southern Ohio Coal's hydrologic determination and the 

Chief of the Division of Reclamation's CHIA were adequate; (3) a longwall coal mining 

applicant may "provide alternative sources of water" rather than protect the "quantity of water". 

However, due to a number of problems found with Southern Coal's water replacement plan, the 

court remanded the case to the Board with directions to require Southern Coal to draft a new 

water replacement plan.
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VILLAGE OF PLEASANT CITY v DIV. OF RECLAMATION, No. CA-835, slip op (Ohio 

Ct App 1987).

The village appealed the issuance of a mining permit to R.V.G., Inc. arguing that the CHIA and 

hydrologic determinations were inadequate; in particular, that the strip mining would interfere 

with the quantity and quality of the water available through the village's water well supply. The 

court affirmed the Reclamation Board of Review's decision to grant the permit, ruling that the 

decision was not "arbitrary, capricious, or otherwise inconsistent with law". A copy of the 

Board's decision was incorporated into the court's opinion. 

OOTEN, et al. v FAERBER, AS COMMISSIONER, WEST VIRGINIA DEPT. OF 

ENERGY, AND MAGNET COAL, INC. 383 SE 2d 774 (W Va 1989). 

The court reversed lower court and state administrative decisions which would have reinstated an 

area previously deleted from a surface mining permit because Magnet Coal had not met both of 

the required conditions: (1) mining and reclamation, including revegetation, had to be completed 

on a "significant portion" of the approved area; and (2) further determination of the possible 

effect of mining on the deleted area had to be made ("the proposed operation may cause stream 

pollution, landslides, flooding....").

FEDERAL DECISIONS

NATIONAL WILDLIFE FEDERATION (NWF), et al. v HODEL, 839 F 2d 694 (DC Cir 

1988).

NWF challenged parts (c) and (d) of the definition of "anticipated mining" under 30 CFR 701.5, 

arguing that they restricted "the inquiry to those mines for which data was available" and 

contradicted [SMCRA] sec. 507(b)(11) which states that no permits shall be approved until 

hydrologic information on the "general area" is "available and incorporated into the application".

The court upheld the Secretary's regulations, describing the regulations as: "a basic policy tradeoff between holding up or denying current mining permit applications until additional data about 

possible future mining in the area is generated, and risking the possibility that future mining in 

that same area may be delayed or precluded because the full extent of mining activity was not 

fully anticipated and proper hydrologic safeguards were not required....If any material damage 

would result to the hydrologic balance from the cumulative impacts of a newly proposed 

operation and any previously permitted operation, the new operation could not be permitted."

THE FOLLOWING FEDERAL DECISIONS RULE, IN PART, ON THE ADEQUACY 

OF ENVIRONMENTAL IMPACT STATEMENTS AND COMPLIANCE WITH NEPA 

REQUIREMENTS. THESE ARE NON-COAL CASES.

LOUISIANA ENVIRONMENTAL SOCIETY (LES) v BRINEGAR, SECRETARY, 

DEPT. OF TRANSPORTATION, 407 F Supp 1309 (WD La 1976). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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LES argued that new hearings were necessary because a new drainage system incorporated into 

an approved design for a bridge across Cross Lake was a "major design change". LES also 

alleged that the final EIS was illegally delegated to the Louisiana Highway Department. The 

court agreed with the Secretary that the drainage design change was one "which is routinely 

incorporated into segments of interstate highways". Regarding the EIS, the court found that it 

"was prepared in consultation with state and federal agencies. Furthermore, the record is clear 

that the federal defendants did not merely rubber stamp the State's work...it was the federal 

defendants critical analysis which prompted the preparation of the Supplement." 

MINNESOTA PUBLIC INTEREST RESEARCH GROUP v BUTZ, 541 F 2d 1292 (8th Cir 

1976).

The appeals court reversed the district court's ruling permanently enjoining commercial timber 

cutting in the Boundary Waters Canoe Area "as it relates to existing sales. With respect to future 

sales, the permanent injunction will remain in force until the Forest Service files its new Timber 

Management Plan and related EIS". The EIS prepared by the Forest Service for existing sales 

"complied with both the procedural and substantive requirements of NEPA."

Regarding the review of a federal agency's efforts to comply with NEPA, the court held that "the 

test of compliance with the procedural provisions of Sec. 102(2)(C) is one of good faith 

objectivity. The touchstone of our inquiry is reason.... [T]he EIS need contain only sufficient 

information to permit a reasoned choice of alternatives."

ENVIRONMENTAL DEFENSE FUND, INC. v COSTLE, 439 F Supp 980 (ED NY 1977).

In construction of a Long Island sewage treatment plant, the court held that the U.S. 

Environmental Protection Agency and the New York State Department of Environmental 

Conservation had "not acted arbitrarily or in violation of the law in adopting outfall sewering for 

the present time...rather than the recharge method of disposing of treated wastewater...the final 

solution remains for future advances in technology permitting the application of recharge." The 

court found the EIS somewhat, though not fatally, flawed due to the absence of even "'rough' 

estimates of the hydrologic impacts." The federal defendants were directed to prepare a 

supplement to the EIS addressing the effect of the outfall sewering on the local shellfish industry 

and "a comprehensive program for preventing, reducing, or eliminating the pollution of 

navigable waters and ground waters and improving the sanitary condition of surface and 

underground waters".

STATE OF MISSOURI, ex rel. v DEPT. OF THE ARMY, CORPS OF ENGINEERS, 526 

F Supp 660 (WD Mo 1980).

In this challenge to the Army Corps of Engineers' operation of a hydroelectric generator in a dam 

of the Sac River near Stockton, Missouri, the court found that the project EIS and supplemental 

EIS had met all of the procedural requirements of NEPA: although adverse effects have been and 

will continue to be felt downstream, these were properly documented and discussed and fell 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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within state regulatory requirements (e.g., the increase of the level of suspended solids due to 

erosion remained within state water quality limits).

CITIZENS COUNCIL OF DELAWARE COUNTY v BRINEGAR, 619 F Supp 52 (ED Pa 

1985).

The Citizens Council challenged the approval of construction of a highway which had been 

conditioned on the completion of a supplemental EIS. The court ruled that the Federal Highway 

Administration (FHWA) "took a good, hard look at all the environmental consequences of 

building the highway" and, as NEPA requires, "set out information sufficient to reach a wellreasoned decision" to proceed with the project. In the supplemental EIS, the FHWA concluded 

"that there was no feasible and prudent alternative to building the highway in the Blue Route 

corridor." 

OREGON NATURAL RESOURCES COUNCIL (ONRC) v LYNG, 1988 U.S. Dist LEXIS 

17264, 18 ELR 21503 (D Or 1988).

The ONRC contended that the Forest Service violated NEPA by failing to prepare a 

supplemental EIS and address the cumulative impacts of the sale of timber from the Duck Creek 

area of the Hells Canyon Natural Recreation Area. Although a federal agency is required to 

"continue to gather and evaluate new information about the impact of its actions on the 

environment" after an EIS is released, the court, citing from the regulations, concluded that the 

agency need prepare a supplemental EIS only when there "are significant new circumstances or 

information relevant to environmental concerns and bearing on the proposed action of its 

impacts." The court found that cumulative impacts of the proposed sale were adequately studied.

ATTACHMENTS

A. NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC), et al. v OSM, 4 

IBSMA 4, IBSMA 81-83 (1982). 

B. NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC), et al. v OSM, 

ATLANTIC RICHFIELD CO. AND STATE OF COLORADO, 89 IBLA 1, IBLA 83-

757 (IBSMA 81-83) (September 27, 1985, as amended by November 18, 1986 decision). 

C. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al. v OSM AND WEST ELK 

COAL CO., 94 IBLA 269, IBLA 83-757 [IBSMA 81-83] (November 18, 1986, amends 

September 27, 1985 decision). 

D. THE HOPI TRIBE v OSM AND PEABODY COAL CO., Docket No. TU 6-3-PR 

(1986). 

E. FRANK STEBLY v OSM, Docket No. DV 7-2-PR (1987). 

F. CITIZENS ORGANIZED AGAINST LONGWALLING v OHIO DEPT. OF NATURAL 

RESOURCES, 41 Ohio App 3d 290, 535 NE 2d 687 (Ohio Ct App 1987). 

G. VILLAGE OF PLEASANT CITY v DIV. OF RECLAMATION, No. CA-835, slip op 

(Ohio Ct App 1987). 

H. OOTEN, ET AL. v FAERBER, AS COMMISSIONER, WEST VIRGINIA DEPT. OF 

ENERGY, AND MAGNET COAL, INC., 383 SE 2d 774 (W Va 1989). 
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U.S. Department of the Interior

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I. Excerpts from NATIONAL WILDLIFE FEDERATION (NWF), et al. v HODEL, 839 F 

2d 694 (DC Cir 1988). 

J. LOUISIANA ENVIRONMENTAL SOCIETY (LES) v BRINEGAR, SECRETARY, 

DEPT. OF TRANSPORTATION, 407 F Supp 1309 (WD La 1976). 

K. MINNESOTA PUBLIC INTEREST RESEARCH GROUP V BUTZ, 541 F 2d 1292 (8th 

Cir 1976). 

L. ENVIRONMENTAL DEFENSE FUND, INC. V COSTLE, 439 F Supp 980 (ED NY 

1977). 

M. STATE OF MISSOURI, ex rel. v DEPT. OF THE ARMY, CORPS OF ENGINEERS, 

526 F Supp 660 (WD Mo 1980). 

N. CITIZENS COUNCIL OF DELAWARE COUNTY v BRINEGAR, 619 F Supp 52 (ED 

Pa 1985). 

O. OREGON NATURAL RESOURCES COUNCIL (ONRC) v LYNG, 1988 U.S. Dist 

LEXIS 17264, 18 ELR 21503 (D Or 1988).