The Strip Mining Law: Conflicting Goals Underlie Balanced Regulatory Requirements

Ever since the first bill was introduced in 1940, attention has focused on the need to devise legislation that adequately addressed the environmental problems associated with strip mining for coal. With final approval of the Surface Mining Control and Reclamation Act of 1977,¹ Congress and the Administration share the belief that the 37-year legislative effort to adopt a comprehensive program governing coal surface mine operations is now complete.² Previous bills were viewed simply as environmental protection measures, butthis legislation is intended to be the product of congressional recognition of the need to encourage industry to meet the increased coal production called for in the National Energy Plan.³ The reality, however, is a compromise law that contains several loopholes in its environmental protection provisions but still leaves industry dissatisfied and suspicious that numerous statutory ambiguities make protracted citizen-initiated litigation inevitable.

Conflicting Goals

Congressional inability to pass legislation satisfactory to all sides stems from the conflicting goals of heightened coal production and maximum environmental protection. Industry representatives have consistently argued that the nation cannot afford the production losses that they project will result from prohibitions on mining in national forests, prime agricultural lands, and alluvial valley floors as well as from strict enforcement of rigorous reclamation standards that supposedly would make mining in various hilly areas prohibitively expensive. Industry thus claims that its ability to meet the National Energy Plan's ambitious 1985 production level of 1.225 billion tons⁴ requires that no area of the country be automatically excluded from development. A report prepared for the Council on Environmental Quality and the Environmental Protection Agency disputes this contention by concluding that enforcement of strict environmental safeguards and prohibitions would only affect "between 8.1 and 24.0 billion tons, or between 1.9 and 5.5 percent of total reserves."⁵

Though no specific data exists to support industry views on the precise effect of the 1977 Act on industry's ability to meet suggested production levels, voluminous information exists on the environmental impacts of surface mining. Environmental advocates can cite geological and hydrological studies showing that, in arid Western regions where any change in water availability or quality can alter the ecological balance, special care must be taken to prevent adverse impacts from mining. They assert that efforts must be made to ensure that surface water and groundwater are sufficiently available after mining ceases to support vegetation and wildlife and that steps be taken to prevent the migration of toxic chemicals into local water supplies.

The reclamation goals of environmentalists are more ambitious than just insulation of the environment from toxic materials and the prevention of contamination of water supplies. In their view, the future productivity of a mined area depends on the degree of its restoration. In frming areas, special efforts must be taken to prevent concentration of dissolved mining salts that otherwise would hinder future agricultural development. The continued ability of the soil to support vegetation and crops depends on the restoration and maintenance of typical soil types and mixtures. Consequently, the replacement soil must not be so fine-grained as to be subject to wind and water erosion. Moreover, if the mining occurs in an alluvial valley floor, steps must be taken to prevent the streambed erosion that may destroy wildlife habitat and agricultural land. The central tenet of the environmental advocates has been that the result of strip mining should be the restoration of areas so as to preserve previous uses unless other uses provide greater environmental benefits.

The Regulatory Scheme

The basic thrust of the Surface Mining Control and Reclamation Act of 1977, whch takes the regulatory structures of the Clean Air Act and the Federal Water Pollution Control Act Amendments as models, is to control coal strip mining through federal and state permit programs that meet a number of detailed statutory requirements. The Interior Department must issue interim regulations within 90 days⁶ and begin controlling surface mining in all states within six months.⁷ Final regulations governing the shape of both federal and state permit prorams are due in a year.⁸ Failure of a state to gain federal [7 ELR 10161] approval of its proposed permit program within 18 months will result in federal promulgation and implementation of a permit program in the state's stead until a state-drafted plan is finally approved by the Secretary of the Interior.⁹ The Act authorizes the Secretary to make grants to assist the states in developing, administering, and enforcing their permit programs.¹⁰

The Secretary is also charged with establishing a federal permit program within one year for surface coal mining and reclamation operations on federal lands.¹¹ This program is to incorporate the requirements of an approved state program for federal lands within that state. Although formal delegation of permitting authority over operations on federal lands to the states is not allowed, a cooperative agreement for joint federal-state regulation of surface mining on such lands is permissible in states that have received federal approval for their permit programs.

On a more general level, the Act expressly disclaims any intention to preempt state laws or regulations which provide for more stringent environmental controls on non-federal lands than do the relevant federal standards.¹² Also, the law applies only to coal; the Act disavows regulation of surface mining operations for other minerals pending further studies.

Prohibitions and Reclamation Requirements

Congress was aware of the dangers posed by coal strip mining when it adopted a statement of purposes for the 1977 Act: society and the environment are to be protected from adverse effects; strip mining is to be avoided unless reclamation is feasible; and reclamation is to occur as contemporaneously as possible with the mining operation.¹³ Yet Congress was also aware of the need to provide a coal supply essential to the nation's energy requirements. Consequently, the statement of purposes summarizes the guiding legislative principle as follows: a balance is to be struck between "protection of the environment and agricultural productivity and the nation's need for coal as an essential source of energy."¹⁴

Congress did decide that a small portion of the nation's coal lands should be completely protected. Strip mining is generally forbidden in national forests, wilderness areas, wildlife refuges, the national trails system, near wild and scenic rivers, and national recreation areas. But such mining will be allowed in national forests in the West if the Secretary finds that there are "no significant recreational, economic, timber or other values which may be incompatible" with strip mining.¹⁵ This statutory exemption is somewhat unclear, leaving mining permit applicants substantial leeway to argue that forest reserves should be opened to mining if reclamation plans are designed to prevent adverse impacts.Congress also required that states establish a procedure so that other areas could be designated unsuitable for surface coal mining if the state regulatory authority determines reclamation is not technologically and economically feasible.¹⁶ A state's decision to ban mining in certain regions depends of course on its willingness to forego a source of royalty revenues.

The Act not only accords special treatment to various federal land categories, but it also establishes specific performance standards for surface coal mine operations.Fundamental to environmental concerns is the belief that adverse impacts can best be prevented if land is regraded to closely resemble the general surface configuration prior to mining. Consequently, mining operators are required to restore the land to its "approximate original contour."¹⁷ In addition, the operator must establish on the regraded site diverse vegetation cover native to the area to prevent erosion.¹⁸ Finally, recognition of the problems presented by mining waste disposal has resulted in standards that require avoidance of toxic mine drainage and prevention of off-site flows of suspended solids.¹⁹ In order to assure that the relevant reclamation requirements are met, a permit applicant will be required to furnish a reclamation bond of at least $10,000 before his permit is issued.²⁰

Acceptance of industry concerns over the costs imposed by strict reclamation requirements led the conferees hammering out the compromise between the House and Senate versions to establish significant exceptions to the environmental standards. Industry spokesmen and some state governmental officials had argued during hearings on the bill that the requirement of restoration of approximate original contour was inappropriate in Appalachia. Although acknowledging statements of local residents that mountaintop removal might cause more flash floods, Congress nevertheless had to deal with industry objections to the high costs of restoring hilly terrain. The compromise reached was that while spoil removed from the mountaintop is to be retained to the "maximum extent possible," operators may create a level plateau on the mountain as long as the land is capable of supporting postmining uses.²¹

Favorable resolution of the mountaintop removal controversy was not enough to ease mining operators' criticism of harsh restrictions on mining on steep slopes in the east. The contour mining procedure used in the Appalachian region results in the gradual terracing of a mountain. When the slope of the hill becomes too great for removal of the overburden to be economical, a final cut into the slope is made. The highwall that remains usually presents a landslide hazard. Though the conferees partially acceded to House language by requiring that vertical highwalls be covered, the conferees approved a compromise that permits highwalls to remain on proof that the variance granted from the approximate original contour standard will render the land suitable for a residential, commercial, industrial, or recreational postmining [7 ELR 10162] use.²² This variance procedure is certain to generate litigation, for environmentalists will argue that any retention of a highwall poses an erosion and landslide threat that will prevent any safe postmining use. Congressional attempts to modify necessary environmental protection standards in order to alleviate industry's cost concerns thus has resulted in a variance procedure which, if upheld, virtually guarantees some environmental degradation.

Other Protections and Loopholes

Congressional concern over energy needs produced a discretionary approach in designing environmental standards in other areas as well. The original House language banning mining in alluvial valley floors was revised to allow mining if it will not prevent or interrupt farming. Although no estimate has been made of the percentage of coal under alluvial valley floors that can be mined under this narrowly drafted prohibition, Congress has made certain that no diminution of production will occur since lands precluded from mining due to the restriction can be exchanged for federally owned coal lands elsewhere as long as the operator has made substantial legal and financial commitments to develop the land. In addition, a grandfather clause excludes from this lax mining prohibition existing mine operations which are either currently producing in commercial quantities or already have state permits,²³ and mines owned by operators who produce less than 100,000 tons of coal annually are almost completely exempted from regulation under the Act until January 1979.²⁴

Prime agricultural land is another category for which Congress felt the danger of adverse water quality impacts required some attempt to adopt a formal prohibition on surface mining.²⁵ Subject to a grandfather clause for existing operations, the Act prohibits mining in these areas unless the appropriate regulatory authority finds that the permit applicant has the technical capability to restore the land in a reasonable time so that it will give equal or higher yields than those of non-mined prime farmlands in the surrounding areas.²⁶ Like the alluvial valley floor provision, the exemption from the general statement of prohibition for farmlands provides a substantial loophole which may enable industry to mine fragile areas. The prospective coal mine operator faces a minimal burden in obtaining permission to mine in agricultural lands; he need only show by non-site-specific data such as agricultural school studies that as a general rule reclamation will permit equivalent yields to be obtained after mining.²⁷

The statute also addresses the problem of land mined before enactment of the statute. An Abandoned Mine Reclamation Fund, financed by a levy on coal produced from both surface and deep mines, is to be established and used for the restoration of abandoned surface mine areas, the sealing of abandoned deep mine entries, the planting of surrounding lands to prevent erosion, the prevention of water pollution caused by acid mine drainage, and the control of subsidence caused by underground mine operations.²⁸ At least in the regulatioin of inactive mines, Congress accepted fully the environmental position since reclamation would in no way interfere with coal production.

The law provides similar protection for existing water rights. The operator of a surface coal mine must replace the domestic, agricultural, or industrial water supply of a landowner if it is contaminated, diminished or interrupted by his mining activity.²⁹ The landowner's nuisance remedies in such circumstances are also preserved, but this provision appears to create a federal cause of action in addition to a water user's pre-existing remedies under state laws. One further provision worth noting is a grant of authority to the Secretary to enter upon private property in an "emergency" which constitutes "a danger to the public health, safety or general welfare" and take all necessary restoration and reclamation measures to abate the adverse effects of coal mining practices.³⁰

Though Congress had to resolve the substantive environmental problems raised by coal mining, it also needed to resolve certain legal problems that industry argued would result in production delays. First, efforts had to be made to establish a system enabling the owner of subsurface rights to mine surface land owned by another. When a private individual owns land where the federal government owns the subsurface rights, surface owner consent must be obtained before the permittee can mine federal coal. If the coal is owned by another private owner, resulting disputes are to be resolved by appropriate state law. The applicant must show, however, that surface mining was contemplated at the time of the conveyance of mineral rights.³¹

Application of NEPA

The National Environmental Policy Act's³² environmental impact statement requirements are explicitly waived with respect to a number of the Secretary's actions under the strip mining law, including issuance of the interim performance standards, approval of state permit programs, and both promulgation and implementation of federal permit programs.³³ The Senate Committee Report explained these NEPA exemptions by cryptically observing that these actions "require only a yes-or-no decision by the Secretary without consideration of a wide range of options contemplated by Congress when it enacted [NEPA]."³⁴ An unstated reason may have been the concern that the time required to prepare EISs for these actions [7 ELR 10163] and subsequent litigation challenging their adequacy might bring implementation of the strip mining law to a standstill. Nevertheless, preparation of an impact statement is specifically required in conjunction with issuance of the final regulations governing federal and state permit programs.

The Outlook

The general consensus of the coal mining industry is that the bill contains numerous drafting defects that virtually compel disruptive litigation.³⁵ Numerous challenges are expected to even the lowest level administrative determination that reclamation plans either meet statutory goals or are capable of being implemented because of evidence that the prospective operator has the requisite technical expertise to restore the land.³⁶ Further, numerous suits will probably be filed challenging the adequacy of state plans, and reclamation and mining operation regulations. Industry spokesmen thus have claimed that the harshness of the environmental restrictions, coupled with the numerous citizen suits that are expected to be encouraged by broad standing and attorney fees provisions,³⁷ "will result in no production until the late 1980s."³⁸

Industry statements that production delays are inevitable achieve special importance when weighed against substantial congressional efforts made to weaken those environmental standards which industry originally claimed would automatically impede production. Ironically, in seeking to meet industry concerns, Congress provided a series of exemptions which industry now views as being so poorly drafted as to guaranteed delay.³⁹

These same provisions are also viewed with displeasure by environment advocates who argue that the compromise standards unnecessarily sacrifice environmental protection in the name of accelerated coal development. While the Act seeks to prevent adverse water impacts, sufficient loopholes remain for mining in fragile areas. The possibility of streambed erosion and water pollution remain when mining operators are offered a simple procedure for obtaining exemptions from alluvial valley floor restrictions. Unless the Department of the Interior adopts strict impolementing regulation, the simple showing of noninterference with farming provides statutory justification for companies that wish to strip these valleys. The same problem of loosely-phrased exemption provisions enable companies to mine prime agricultural farmland. Finally, the provisions covering contour mining in Appalachia remain sufficiently flexible as to guarantee continuation of mining practices that have produced major problems of erosion, floods, and landslides.

Despite unnecessary congressional weakening of the Act's provisions for environmental protection in response to industry protestations,⁴⁰ the Surface Mining Control and Reclamation Act of 1977 imposes generally strict environmental standards on coal strip mining activities and represents a vast improvement over the preexisting hodgepodge of inconsistent and inadequate state regulation. The scene now shifts from the halls of Congress, where consideration of the strip mining issue has focused for so many years, to the hills of Appalachuia, the expanses of the northern Great Plains, and the halls of the Interior Department, where implementationj and enforcement of the new legislation is about to begin.

1. Pub. L. No. 95-87, ELR 42401.

2. The first segment of the regulatory procedure was enacted in 1976 as the 94th Congress, though unsuccessful in passing strip mine legislation able to overcome presidential claims that regulation would hinder production, was able to establish standards dealing with site selection and leasing procedures. Federal Coal Leasing Amendments Act of 1975, 30 U.S.C. §§ 201-209, ELR 41443. See Comment, Interior's Flexible Approach to Strip Mining: Energy Self-Sufficiency Through Minimal Environmental Protection, 6 ELR 10198 (Sept. 1976).

3. EXECUTIVE OFFICE OF THE PRESIDENT, ENERGY POLICY AND PLANNING, THE NATIONAL ENERGY PLAN 63-69 (1977). See Comment, The National Energy Plan: Hitless After the First Inning, 7 ELR 10119 (July 1977).

4. THE NATIONAL ENERGY PLAN, supra note 3, at 95.

5. ICF, INC., DRAFT FINAL REPORT, ENERGY AND ECONOMIC IMPACTS OF H.R. 13950 ("SURFACE MINING CONTROL AND RECLAMATION ACT OF 1976," 94TH CONG.) (Feb. 1, 1977), reprinted in Strip Mine Control and Reclamation Act of 1977: Hearings before the Subcommittee on Public Lands and Resources of the Senate Committee on Energy and Natural Resources, 95th Cong. 1st Sess. 50 (1977).

6. Pub. L. No. 95-87, § 501(a).

7. Id., § 502(e).

8. Id., § 501(b).

9. Id., § 504(a).

10. Id., § 705(a).

11. Id., § 523(a).

12. Id., § 505(b).

13. Id., § 102(a)-(e).

14. Id., § 102(f).

15. Id., § 522(e).

16. Id., § 522(a)(2).

17. Id., § 515(b)(3).

18. Id., § 515(b)(19).

19. Id., § 515(b)(10).

20. Id., § 509.

21. Id., § 515(c).

22. Id., § 515(e).

23. Id., § 510(b)(5).

24. Id., § 502(c).

25. Id., § 701(20). The category includes lands so designated on the basis of the following factors: moisture availability, chemical balance, permeability, surface layer composition, susceptibility to flooding and erosion characteristics, and historical use for intensive agricultural purposes.

26. Id., § 510(d).

27. H.Rep. No. 493, 95th Cong., 1st Sess., (1977), reprinted in 123 CONG. REC. H6938, H6968 (daily ed. July 12, 1977).

28. Pub. L. No. 95-87, § 401(c).

29. Id., § 717.

30. Id., § 410(b).

31. Id., § 510(b)(6).

32. 42 U.S.C. § 4321 et seq., ELR 41009.

33. Pub. L. No. 95-87, § 702(d).

34. S. Rep. No. 95-128, 95th Cong., 1st Sess. 99 (1977).

35. Los Angeles Times, July 22, 1977, § I, at 4, col. 2.

36. Pub. L. No. 95-87, § 510(b).

37. Id., § 520. Standing is granted to "any person having an interest which is or may be adversely affected"; costs of litigation may be granted "whenever the court determines such award is appropriate."

38. Address by William E. Hynan, Vice President of Law, National Coal Association, before the American Bar Association Conference on Proposals for Federal Energy Reorganization, Washington, D.C. (June 9, 1977).

39. Los Angeles Times, supra note 35, quoting Carl Bagge, President, National Coal Association.

40. In signing the strip mine bill on August 3, 1977, President Carter announced his intention to seek "improvements" in the bill due to his concern "about some of the features that have been watered down." The President recognized the need to strengthen the environmental protection standards, and stated that he was "not completely satisfied" with the legislation.13 WEEKLY COMP. OF PRES. DOC. 1161, 1162.