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to report these emissions, secure required permits to allow these emissions, and to control these emissions
<br />according to state and federal clean air laws and regulations. In turn the company is violating its mining permit
<br />and other applicable coal mining laws and regulations." Complaint at 1. The Complaint also included the
<br />following documents:
<br />1. Cover letter dated October 20, 2017 from WEG to OSMRE and DRMS (17 pages);
<br />2. Exhibit 1–Air Pollution Control Division, Field Inspection Report, dated February 20, 2013, revised April
<br />4, 2013 (30 pages);
<br />3. Exhibit 2–Colorado Department of Public Health and Environment–Memorandum –Confidential
<br />Deliberative, dated September 26, 2014, updated January 7, 2015 (5 pages); and ,
<br />4. Exhibit 3 –Air Pollution Control Division, Field Inspection Report dated April 19, 2016, revised July 1,
<br />2016 (37 pages).
<br />Other Information Received Considered by DFB
<br />On October 20, 2017, the OSMRE and DRMS also received an email (copy attached) from MCC. Attached to the
<br />email was a letter dated January 11, 2017 to MCC from the Director of the Colorado Department of Public
<br />Health and Environment (CDPHE), who oversees the Air Pollution Control Division (APCD)—the Clean Air Act
<br />regulatory authority in Colorado. That letter explained that CDPHE, which includes the APCD, was not taking any
<br />enforcement action against MCC related to VOCs emissions. On October 24, 2017, OSMRE and DRMS received
<br />another email (copy attached) from MCC that contained excerpts from High Country Conservation Advocates v.
<br />United States Forest Serv. et at, 52 F. Supp. 3d 1174 (D. Colo. 2014) about VOCs emissions at West Elk.
<br />On October 30, 2017, DRMS responded to the WEG complaint. OSMRE was copied on the DRMS letter. The
<br />DRMS letter reiterated that the APCD had not made a determination that the West Elk Mine exceeded state and
<br />federal air quality standards for VOCs emissions. Further, DRMS asserted that it did not have any independent
<br />jurisdictional authority to make such a determination. Accordingly, DRMS concluded that an inspection was not
<br />warranted. On October 31, 2017, WEG filed a Request for Informal Review with the DRMS Director, with copy to
<br />OSMRE .2
<br />DFB Response
<br />On November 28, 2017, the DFB issued its own response to the Complaint. The DFB response concluded that:
<br />"[a]fter careful review of your complaint and available information, we do not have reason to believe a violation
<br />exists under SMCRA, the federal regulations, the federal mine plan, the Colorado state program or the state -
<br />issued SMCRA permit." DFB Response at 1. The DFB response explained that OSMRE and DRMS lack any
<br />authority to implement the Clean Air Act. Id. at 2. In reaching this conclusion, the DFB repeated the fact that
<br />SMCRA does not provide OSMRE with the authority regulate air pollution and that "[i]n Colorado, the
<br />Environmental Protection Agency, through the Colorado Air Pollution Control Division is responsible for
<br />administering the [Clean Air Act]." Id. at 2 (citing 30 U.S.C. § 1292(a)). Citing to the January 11, 2017 letter from
<br />2 Subsequent to the DFB's decision, the DRMS Director issued a finding on November 30, 2017, with copy to OSMRE. The
<br />DRMS Director also concluded that the alleged violations did not exist, and that DRMS lacked jurisdiction over VOC
<br />compliance matters.
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