The Surface Mining Control and Reclamation Act (SMCRA)¹ was enacted in 1977 to alleviate the widespread environmental impacts of surface coal mining operations.² To remedy a perceived lack of adequate state regulation, the Act imposes stringent uniform federal standards on mining operations, which will be enforced by states, if they choose to do so, and by the federal government where states decline. Central to the federal enforcement program are administrative civil penalties. Section 518(c)³ of SMCRA authorizes the Office of Surface Mining (OSM) to issue citations and, without going to court, to assess civil penalties against mine operators for violations of the Act. Section 518 is one of a handful of "modern" enforcement provisions in federal environmental statutes authorizing administrative civil penalties.⁴ Such provisions are intended to strengthen agency enforcement powers by making it unnecessary to go through the costly and slow judicial process before levying penalties.⁵ However, where judicial review is available before the administrative penalty must be paid, the process can still be dragged out over months or years in appeals. Section 518(c) addresses this potential problem by requiring those assessed to pay the proposed penalties into escrow prior to seeking a hearing to challenge their penalty liability.

The constitutionality of the penalty prepayment provision has been challenged by a number of coal mine operators. In early decisions, two district courts found the provision unconstitutional.⁶ However, on appeal, the Supreme Court vacated the district courts' decisions, ruling that challenges to §518(c) were premature since no penalty had been assessed in either case.⁷ Then, in rapid succession, several federal district courts upheld the constitutionality of the requirement.⁸ These decisions, while not the final word on §518(c), strongly suggest that it passes constitutional muster.