Senate Passes Surface Mining Reclamation Act

On October 9, 1973, the U.S. Senate overwhelmingly passed the Surface Mining Reclamation Act,¹ the first federal program of its kind for the regulation of coal surface mining activities and the reclamation of coal-mined lands. According to the terms of the bill, permits must be issued by a state regulatory authority before any person can engage in surface mining within a state. Each applicant for a permit must demonstrate that reclamation of the surface-mined land can be accomplished and the land restored to the "approximate original contour." Spoil piles and highwalls — the ugly, slide-prone cliffs often left after coal is extracted from slopes — are outlawed unless the "overburden" (earth above the coal seam) is insufficient to restore the approximate original contour. Criteria are established for designating certain areas of "critical environmental concern" as unsuitable for surface mining. The Senate bill now goes to the House, which is not expected to act until next year.

The Act provides minimum standards for coal surface mining and reclamation activities to be administered and enforced by the states, and by the Secretary of the Interior on public lands. Federal financial assistance and expertise will be provided to the states to improve regulatory and enforcement programs and to purchase abandoned or unreclaimed ruined areas for purposes of reclamation. Failure by a state to comply with the requirements of the Act will result in federal enforcement of a state program or establishment of a federal program under the authority of the Secretary of the Interior. In addition, the bill authorizes a study of means to improve techniques of deep mining.

The Act defines "approximate original contour" as that surface configuration achieved by filling and grading so that the mined area closely resembles the surface prior to mining and blends into the drainage pattern of surrounding terrain except where the retention of water is determined by the regulatory authority to be desirable or required. The definition has sufficient flexibility that the mined land can be restored, not only to its original state if that is most desirable, but also converted to other uses as long as they are environmentally acceptable and consistent with adjacent land uses. For example, mountaintop mining, which leaves flat plateaus on mountaintops, is permitted if it can be demonstrated that the flat land can be used for socially beneficial uses such as housing developments or a school.

The bill establishes an Office of Surface Mining, Reclamation and Enforcement in the Department of the Interior, and directs the Secretary of the Interior to publish within six months of enactment regulations setting forth the actions which a state must take to develop a state program. These regulations will include the listing of impermissible mining techniques, mandatory procedures for protecting the environment, and requirements for the information which an applicant for a mining permit must provide.

States must submit their plans within 12 months after these regulations are promulgated, and the Secretary must approve those plans before a state is eligible to receive federal grants and assistance and assume exclusive jurisdiction over surface mining and reclamation operations on lands within the state. State plans must include provisions for establishing the appropriate legal and administrative authority for their implementation, with sanctions under state law for violations; coordination with other federal or state permit-granting systems; and a system for designating areas as unsuitable for surface mining. Where a state program is more stringent than the federal standards developed by the Secretary for all public lands, the state's rules will be applied to public lands within that state.

As originally introduced in committee, the bill called for a moratorium on all surface mining until permits for mining and reclamation could be obtained under an approved state program. In view of the nation's energy demands, this provision was changed to allow for an interim permit program until a state program can be approved or a federal program is implemented.

Under an approved program, an applicant for a permit to surface mine makes three principal submissions: information about the mining operation, the land to be mined, and surrounding land; proof of public liability insurance; and, most importantly, a reclamation plan for the entire affected area. These requirements are to insure public notice, particularly to local governments and citizens, in order to have a meaningful hearing on the permit application. Before a permit is issued, "[A]ny person having an interest which is or may be adversely affected by the proposed surface mining … shall have the right to file written objections to any permit application …." The regulatory authority is required to respond to such an objection by holding a public hearing; once administrative remedies are exhausted, judicial review, pending which the challenged application may not be approved, is available.

Once the application is approved, no permit may be issued until a performance bond, in an amount sufficient to assure completion of the reclamation plan by a third [3 ELR 10164] party should the applicant fail to do so, has been filed. This bond cannot be fully released without prior public notice that a representative of the regulatory authority has inspected the site and found the required reclamation complete.

The heart of the bill is in the criteria established for reclamation operations. The applicant must demonstrate that reclamation of the area is in the first place feasible, and that the procedures proposed will be adequate, before the regulatory authority may approve the permit. Cost estimates and information on the land and on the proposed mining and reclamation techniques are to be set out in detail, both to allow a sound decision on the proposal and to facilitate computation of damages if the operator should default on reclamation.The description of the land must include an evaluation of the capability of the site to support various uses before and after mining and reclamation. The stress on potential and alternative uses of the land, rather than only the use to which the land is currently put, is a noteworthy provision; the bill requires that a decision on a permit may be made only after considering several uses of the land, consistent with local physical and climatological conditions and applicable air, water, and land use standards.

One of the most serious hazards of surface mining is its impact on water quality. Senator Frank Moss (D.-Utah), who has long taken particular interest in Western water problems, successfully amended the bill to require a detailed description of the procedures to protect the quantity and quality of water, the restoration of aquifer recharge capacity, and the protection of easily damaged valley floors. In the arid West, where much of the nation's strip mining now occurs, the loss of ground or surface water as a result of strip mining can have devastating effects even far from the site of the mining operations. This provision, like others in the bill, requires only that these issues be considered and does not establish fixed standards.

The crucial feature of the bill is the elimination of highwalls, which isolate and disfigure land irreparably, and sometimes impede firefighters. By requiring back filling to the approximate original contour, the problem of isolation is dealt with adequately. Highwalls are already effectively forbidden in Ohio and Pennsylvania, and restricted in West Virginia.

The requirement of restoration to the original contour was bitterly opposed by the mining industry of mountainous Appalachian areas. Industry representatives argued that while Pennsylvania's terrain made the "modified block cut" practicable and restoration or original contours comparatively simple and inexpensive, in the steep hollows of Eastern Kentucky and West Virginia, it would be difficult and costly to retrieve and replace spoil. Trade journals have reported, however, that the use of new methods in mining operations in Tennessee, West Virginia and Pennsylvania has completely eliminated highwalls.

The bill also provides that where steep slopes are mined, as in parts of West Virginia, only spoil from the initial cut can be stored on the downslopes. This is designed to confine the effects of surface mining as much as possible in the permit area.²

Because excavated earth expands as it becomes fractured and less dense, the spoil material will have a greater volume than the overburden prior to mining. S.425 took this "swell factor" into account and provided for permanent dumping areas to be designated by the regulatory authority for that portion of the spoil in excess of reclamation needs. Experts claim, however, that engineering techniques exist to account for the "swell factor" in reclaiming the ruined land, and note that the bill does not prohibit storage of mine wastes, which are often physically and chemically unstable and an environmental hazard in times of flooding.

Despite the urgings of environmentalists and others, the Senate bill does not provide that consent of the surface owner must be obtained in order to strip mine coal. Existing laws on the rights of surface and subsurface owners vary from state to state. Generations ago, representatives of coal companies purchased mineral rights to vast tracts of land at a few cents an acre from farmers ignorant of the real value of their holdings. In West Virginia, the courts have construed these deeds to permit the subsurface owner to remove coal only by techniques in general use when the original contract was signed. The Kentucky Court of Appeals, on the other hand, has ruled that the "broad-form" deed gives the subsurface owner the right to use any technique, even if the result is the total destruction of the surface owner's property, although the bill provides for recovery of damages by the surface owner. This status quo is left unchanged by the Senate bill. The bill does include, however, an amendment offered by Senator Mansfield, prohibiting stripping on land to which the United States owns only subsurface rights. Rejection of the consent requirement was at least in part the result of uncertainty as to the constitutionality of depriving subsurface owners of rights for which they or their predecessors in interest had validly contracted. Some advocates of a stronger bill believe, however, that such a provision would have been sustained by the courts, and that without it, the bill was more in form than substance a measure to protect the environment.

Representative Ken Hechler, one of the staunchest congressional defenders of Appalachia's human and natural resources, denounced the bill as "production centered … It [3 ELR 10165] protests coal rather than the land or the people." He noted that a West Virginia official had proclaimed that his state was already in compliance with all but one of the bill's provisions, and observed sardonically that if this was true, the bill could not be very strong. The Congressman pointed out that the bill assigned the major responsibility for enforcement to the states, where mining laws now on the statute books are often enforced weakly if at all.

Representative Hechler went on to detail some of his objections to the Senate bill: while it prohibits the dumping of spoil on "steep" slopes, it fails to provide any definition of "steep"; it directs coal operators to minimize the damage from run-off "to the greatest extent practicable" but again fails to define its terms; it permits mountain-top mining; it fails to prohibit stripping in national forests and Indian lands; and "if all these other things don't work, the President is allowed to suspend all the requirements of the bill in a time he declares is an energy crisis." Hechler announced that he would vote against the bill in its present form, declaring that it "raises false hopes without effectively reducing the actual damage caused by strip mining."

Environmentalists who have worked closely with strip mine legislation take a more charitable view of the Senate bill. While granting the validity of many of Hechler's criticisms, they note that the bill represents a significant advance from the Senate's position on the issue a year ago, and express confidence that by the time of final passage, the bill will include both the reclamation requirements stressed by the Senate and a ban on stripping slopes steeper than 20 degrees, a provision for which there appears to be strong support in the House. They agree that environmental protection and concern for energy resources in the long run dictate that extensive deep mining of coal must replace strip mining, which produces a comparatively small amount of coal, high in sulfur, while often rendering much larger deposits unreachable by either deep or strip mining. Eventually, further legislation will be needed if strip mining is to be phased out altogether and the deep mining industry revitalized. For the time being, however, the current congressional action is a significant step in the right direction.

1. S.425.

2. Some of the most devastating environmental damage occurs as a result of surface mining on steep slopes where spoil is placed on the downslopes. Landslides, erosion, sedimentation and flooding are examples of the result of downslope storage. Most Appalachian states do restrict spoil placement on downslopes on the steepest slopes (over 30 degrees in West Virginia, where administrative regulations require total spoil management; over 33 degrees in Maryland; over 28 degrees in Kentucky and Tennessee).