8 ELR 50001 | Environmental Law Reporter | copyright © 1978 | All rights reserved

A Step-by-Step Analysis of the Interim Federal Surface Mining Program

Mr. Williams (B.A. 1969, Davidson College; J.D. 1972, Vanderbilt University; Member, Tennessee Bar) was a staff attorney with the East Tennessee Research Corporation at the time this article was prepared. He is currently with the Solicitor's Office of the Department of the Interior. The viewsexpressed in this article are the author's own and do not represent the official position of the Department of the Interior or any other agency or department of the United States.

[8 ELR 50001]

The Surface Mining Control and Reclamation Act of 1977, signed into law on August 3, 1977, authorized the Department of the Interior to issue regulations implementing the Act's environmental protection provisions.¹ The Secretary of the Interior was required to promulgate interim regulations within 90 days of the date of enactment² and to issue permanent regulations within one year.³

On December 13, 1977, the Department promulgated the interim regulations,⁴ missing the statutory deadline by 42 days.⁵ These interim regulations will govern surface mining operations on non-federal lands until the approval of a state's regulatory program by the Department or the implementation of a federal regulatory program in that state.⁶ The Secretary will administer the regulations through his Assistant Secretary for Energy and Minerals and the newly created Office of Surface Mining Reclamation and Enforcement.⁷

Like the Act itself, the interim regulations attempt to balance the conflicting needs for increased coal production and maximum environmental protection.⁸ As a means of achieving this balance, they vest tremendous discretion in the Office of Surface Mining (OSM) to decide what requirements are appropriate in various circumstances. If exercised wisely, the wide discretion invested in OSM could provide adequate environmental protection without imposing inflexible requiements on coal operators. If exercised unwisely, it will renew the cynicism that environmentalists have long expressed concerning the lax enforcement of state surface mining laws or reinforce the operators' fears of unreasonable regulation.

This article details and analyzes the important provisions of the interim regulations. It describes the timetable and permit scheme they set forth, and highlights the most important environmental requirements they contain. It also discusses the enforcement scheme for assuring compliance.⁹

I. Scope of Interim Regulatory Program

The initial federal environmental performance standards will be enforced through permits issued by the state regulatory authority in each state which regulates surface mining.¹⁰ During the interim period, there will be no overlapping federal permit program, as under the Federal Water Pollution Control Act.¹¹ Issuance of a state permit to a mine operator binds the operator to compliance with [8 ELR 50002] federal as well as state performance standards.¹² Every operator who receives an "initial permit" from a state regulatory authority on or after February 3, 1978, must comply with the interim federal performance standards.¹³ Operators who received their permit from a state regulatory authority prior to February 3, 1978, do not have to comply with the interim federal performance standards until May 3, 1978.¹⁴

The only operators not required to meet the above timetable are those who establish their eligibility for the "small operator" exemption,¹⁵ which excuses them from compliance with most of the initial federal performance standards through December 31, 1978. To qualify for this exemption, an operator must comply with the following requirements: (1) the operator's "actual and attributed production"¹⁶ during the calendar year 1978 must be estimated to be less than 100,000 tons of coal;¹⁷ (2) in the case of a business organization, the operator must have come into existence prior to May 2, 1977, and must not have undergone "a substantial change in ownership" since May 2, 1977 (except due to the death of an owner);¹⁸ (3) the operator must have received his permit or renewed permit before August 3, 1977;¹⁹ and (4) the operator must submit an application for the exemption to the OSM Director in Washington on or before February 3, 1978, with a copy to the state regulatory authority.²⁰

The application for exemption must list all surface and underground coal mining operations conducted by each permittee, showing:

(1) Actual production for the year ending July 31, 1977, attributed to the permittee and the inclusive dates of operation; and

(2) Estimated production for the year ending December 31, 1978, attributed to the permittee and the anticipated dates of operation.²¹

To verify this information, the application for exemption must also include copies "of coal severance tax returns for coal produced during the year ending on July 31, 1977."²²

Any person (including interested citizens) aggrieved by the decision of the Director to grant or deny the exemption to an operator may appeal to the Office of Hearings and Appeals of the Department of the Interior within 20 days from receipt of the decision.²³ If the Director finds at any time that the exemption was erroneously issued or that the exempted operation has produced or will produce more than 100,000 tons of coal per year, he must revoke the exemption immediately.²⁴

An operator determined to be eligible for the "small operator" exemption is exempt from all initial federal performance standards, except the following: (1) the requirement [8 ELR 50003] of § 716.2(a)(1), that spoil or debris not be placed or allowed to remain on the downslope, where the operation is being conducted on natural slopes that exceed 20 degrees (or lesser slopes determined to require special protective measures);²⁵ (2) any general or special performance standard with which a permittee is required to comply by a state;²⁶ (3) the general requirements of § 710.11(a)(2) that an operator not engage in any operations which create an imminent danger to the health or safety of the public; or any operations which cause or can be reasonably expected to cause significant, imminent environmental harm to land, air, or water resources;²⁷ and (4) any obligations under state law, regulations, or permit.²⁸

In addition to the statutory "small operator" exemption, the regulations also create a limited exemption for a "pre-existing, non-conforming structure or facility which is used in connection with or to facilitate mining after the effective date of these regulations."²⁹ This exemption is available to all operators that meet the following conditions: (1) it is physically impossible to bring the structure or facility into compliance by the effective date; (2) the operator submits to the regulatory authority by February 3, 1978, a plan designed by a professional engineer for the reconstruction of the structure or facility; (3) the regulatory authority approves the plan; and (4) reconstruction is started and completed as soon as possible. No plan shall be approved unless construction is to begin on or before May 4, 1978, and is to be completed by November 4, 1978, at the latest.³⁰

Although the "small operator" and "non-conforming structure" exemptions are designed to ease the transition to compliance with the new federal standards, they will be of limited assistance to operators because they are hard to qualify for and they apply during a very limited period of time.

II. Important Initial Environmental Performance Standards

Parts 715, 716, and 717 of the interim regulations contain the initial environmental performance standards. It would be impossible to discuss thoroughly all aspects of these parts, and this article therefore outlines only the most important provisions.

The regulations impose a basic requirement that all areas disturbed by mining be restored "in a timely manner" either to "conditions that are capable of supporting the uses which they were capable of supporting before any mining" or to "higher or better uses."³¹ In the case of previously mined lands, the premining use which serves as a baseline for comparison with the postmining use is the use which the land supported prior to any mining.³²

If an operator proposes to reclaim land to a use different from the one prior to mining, he must meet certain criteria, and his proposal must be approved by the regulatory authority "after consultation with the landowner or the land-management agency having jurisdiction over State or Federal lands."³³ Among the criteria which must be met are: (1) compatibility of proposed land use with adjacent land use, and approval by the appropriate local, state, or federal land management agencies;³⁴ (2) specific plans showing the feasibility of the proposed land use, including a schedule showing how the proposed use will be "developed and achieved within a reasonable time after mining and be sustained;"³⁵ (3) assurance of the necessary public facilities, as evidenced by letters of commitment from other parties as appropriate;³⁶ (4) specific feasible plans for financing the proposed land use, including letters of commitment from other parties as appropriate;³⁷ (5) plans designed under the supervision of a registered professional engineer (or other appropriate professional);³⁸ (6) no actual or probable hazard to public health or safety or threat of water flow diminution or pollution;³⁹ (7) no unreasonable delay in reclamation;⁴⁰ (8) approval by appropriate fish and wildlife management agencies of measures to prevent or mitigate adverse effects on fish and wildlife;⁴¹ and (9) specific showing of suitability and commitment where the proposed land use is cropland.⁴² The regulatory authority must give the public and interested agencies 45-60 days to review and comment on the proposed postmining land use.⁴³

During mining and reclamation, an operator must comply with certain environmental performance standards. Part 715 contains the general performance standards applicable to all surface mines, part 716 the special performance standards applicable to certain types of surface mines, and part 717 the performance standards applicable to all underground mines. Portions of the federal requirements are identical to current state regulations. In some respects, though, the federal performance standards are innovative and stronger than most state laws. This article examines the innovative provisions in depth and presents a more cursory view of the other requirements.

A. General Performance Standards for Surface Mines

1. Backfilling and Grading

Perhaps the central requirement of the Act is that mined land be restored to its "approximate original contour."⁴⁴ An operator must backfill and grade all spoil [8 ELR 50004] material "to eliminate all highways, spoil piles, and depressions," so that the postmining graded slopes "approximate the premining natural slopes."⁴⁵ The method for measuring the natural slopes of an area is carefully prescribed in the regulations.⁴⁶ Final graded slopes may exceed premining slopes only "where the mining is reaffecting previously mined lands that have not been restored to the standards of this section and sufficient spoil is not available to return to the [premining] slope."⁴⁷

Cut-and-fill terraces, an important tool in controlling water runoff and preventing erosion, are considered compatible with a return to approximate original contour. However, they must meet certain specified construction requirements.⁴⁸ Small depressions are allowed to remain, too, if their purpose is to minimize erosion, conserve soil moisture, or promote revegetation and if they do not exceed certain size limitations.⁴⁹

Where the volume of available spoil is insufficient to achieve approximate original contour, an operator must attain "the lower practicable stable grade," eliminate the highwall, and meet certain other specified requirements.⁵⁰ Similar requirements are applicable where the volume of spoil is more than sufficient to achieve approximate original contour.⁵¹ Rills and gullies deeper than nine inches shall be filled, graded, or otherwise stabilized prior to revegetation.⁵² All final grading shall be done along the contour to minimize subsequent erosion unless the grading would be hazardous to equipment operators.⁵³

2. Topsoil Handling

The segregation, protection, and eventual replacement of topsoil is a key to good reclamation. It is required by very few state laws.⁵⁴ The Act and regulations, however, provide strong protection in this area.⁵⁵ Topsoil must be removed from an area "before any drilling for blasting, mining, or other surface disturbance."⁵⁶ The topsoil must be "immediately redistributed … on areas graded to the approved post-mining configuration."⁵⁷ If no such graded areas are available, the topsoil must be "segregated, stockpiled, and protected from wind and water erosion and from contaminants which lessen its capability to support vegetation."⁵⁸

All of the A horizon of the topsoil shall be removed, and under certain circumstances the B horizon or portions of the C horizon or other underlying layers may be removed also, if they have "comparable quality for root development."⁵⁹ Selected overburden materials may be used "instead of, or as a supplement to, topsoil where the resulting soil medium is equal to or more suitable for vegetation" and certain analyses are submitted in support of this opinion.⁶⁰ Before topsoil is replaced, the regraded land must be "scarified or otherwise treated to eliminate slippage surfaces and to promote root penetration."⁶¹ Stockpiled topsoil must be seeded or planted with "an effective cover of nonnoxious, quick growing annual and perennial plants during the first normal period for favorable planting conditions."⁶² If it cannot be revegetated promptly, it must be protected by other methods such as snow fences, chemical binders, or mulching.⁶³

3. Water Quality Standards

Although many states have water quality requirements governing discharges and runoff from coal mines, the effluent limitations and monitoring requirements in the interim regulations are stronger than those of most states. In certain respects, they are even stronger than the Environmental Protection Agency's (EPA's) effluent limitations guidelines for the coal industry.⁶⁴

All surface drainage from the disturbed area, including areas undergoing reclamation,⁶⁵ must be passed through a sedimentation pond or series of ponds before leaving the permit area and must meet certain specified effluent standards⁶⁶ which are almost identical to EPA's effluent limitations.⁶⁷ The table of effluent limitations contains two limits for each parameter: "maximum allowable" and "average of daily values for 30 consecutive discharge days." Compliance with each limit will be determined by "representative sampling."⁶⁸ In its General Comments preceding the regulations, the Department of the Interior noted that "the number of samples or duration of sampling appropriate for each discharge" will vary, "depending on the discharge characteristics and the purpose of the sample," but "[e]nforcement actions can be brought on the basis of a single sample."⁶⁹

The only discharge not subject to these effluent [8 ELR 50005] limitations is an "overflow or other discharge of surface water from the disturbed area within the permit area demonstrated by the permittee to result from a precipitation event larger than a 10-year, 24-hour frequency event."⁷⁰

Compliance with the interim regulations and receipt of a permit from a state regulatory authority does not relieve an operator of his obligation to obtain a national pollutant discharge elimination (NPDES) permit from EPA (or the appropriate state agency) under the provisions of the Federal Water Pollution Control Act, although the Department of the Interior noted in its General Comments that "[r]eduction of the number of permits is desirable whenever permissible."⁷¹ Every operator is also required to conduct a surface-water monitoring program which meets certain specified requirements⁷² and to report his findings to the regulatory authority within 60 days of sample collection, although he must report violations of permit conditions immediately upon receipt of the analytical results.⁷³ Monitoring must be continued while disturbed areas are being reclaimed, to determine when the quality and quantity of runoff without treatment are adequate to allow removal of the water quality or flow control systems.⁷⁴

4. Controls on Blasting

Blasting is one of the most critical problems associated with surface mining, yet relatively few states have attempted to regulate it. Blasting often causes serious off-site damage to buildings, cisterns, wells, and other property belonging to persons who have no financial interest in the mining operation.⁷⁵

The regulations contain several important measures to minimize the off-site effects of blasting, including the following: (a) requirement of a time schedule for blasting approved by the regulatory authority when more than five pounds of TNT (or its equivalent) will be used;⁷⁶ (b) requirement that blasting operations be conducted by trained personnel;⁷⁷ (c) requirement of a preblasting survey at the request of a resident or owner of a manmade dwelling within one half mile of any part of the permit area, to determine the condition of the dwelling and to document any preblasting damage, with special attention to the quantity and quality of water in wells and other water systems;⁷⁸ (d) publication of the blasting schedule in a local newspaper 10-20 days before beginning a blasting program and distribution of the schedule by mail to local governments, public utilities, and all residences within one half mile of the blasting sites described in the schedule, containing certain specified information;⁷⁹ (e) public notice of any changes in the blasting schedules to include new areas or materially change the proposed frequency of detonation;⁸⁰ (f) blasting during daylight hours only,⁸¹ and not at times different from those stated on the blasting schedule (except in emergencies);⁸² (g) requirement that airblast not exceed 128-decibel linear-peak at any manmade dwelling or structure within one half mile of the permit area;⁸³ (h) prohibition on blasting within 1,000 feet of certain types of buildings, within 50 feet of certain wells and transmission lines, and within 500 feet of underground mines not totally abandoned (except where lesser distances are approved by the regulatory authority);⁸⁴ (i) requirement that the maximum peak particle velocity of the ground motion in any direction not exceed one inch per second at the immediate location of any building outside the permit area;⁸⁵ and (j) maintenance for at least three years of extensive blasting records, including certain specified data on each blast.⁸⁶

The blasting regulations will not prevent all off-site damage from blasting, but they force coal operators to acknowledge the potential damage that may result from their blasting activities and to take steps to prevent this damage, such as using a smaller charge than they might otherwise use. Furthermore, the regulations require that citizens be warned of the imminence of blasts and provide injured parties with useful data to prove what company caused damage to them or their property.

5. Stream Channel Diversion

Some states allow the temporary diversion of streams in order to permit the original channel to be disturbed for mining purposes. Few states, though, have regulations governing this process. Under the interim regulations, diversions of perennial or intermittent streams must be approved by the regulatory authority and must comply with all local, state, and federal statutes and regulations. [8 ELR 50006] Diversions must also comply with stated requirements in the interim regulations regarding channel design, erosion control, and protection of fish and wildlife habitat.⁸⁷ All temporary diversion structures must be removed, and the affected land reclaimed, after mining.⁸⁸

Unless mining through a stream is specifically authorized by the regulatory authority, no land within 100 feet of an intermittent or perennial stream may be disturbed by surface mining and reclamation operations. The area not to be disturbed must be designated as a buffer zone.⁸⁹

The decision to permit or forbid stream diversion is, therefore, still a state decision. But where it is allowed, it must be done in accordance with federal regulations.

6. Sediment Control Structures

Sediment is the worst pollutant generated by surface mining. Most states require the use of sediment control structures during mining and reclamation, but few have sediment control regulations as detailed as the interim federal regulations.

A variety of sediment control measures are allowed, including sedimentation ponds, diversion structures, sediment traps, straw dikes, riprap, check dams, vegetative filters, dugout ponds, chemical treatment, and other similar measures.Sedimentation ponds, whether used individually or in a series, must meet certain requirements,⁹⁰ including: (a) at least a 24-hour detention time and a surface area of at least one square foot for each 50 gallons per day of inflow;⁹¹ (b) an additional sediment storage volume equal to 0.2 acre-feet for each acre of disturbed area within the upstream drainage area;⁹² (c) permanent pool or self-dewatering ponds;⁹³ (d) properly located spillway systems which can safely discharge the peak runoff from a 25-year precipitation event;⁹⁴ (e) removal of sediment from sedimentation ponds when the volume of sediment accumulates to 80 percent of the storage volume required;⁹⁵ (f) special construction standards for sedimentation ponds with an embankment of more than 20 feet in height or a storage volume of more than 20 acre-feet;⁹⁶ (g) design and certification by a registered professional engineer;⁹⁷ (h) examination of all sedimentation ponds for structural weakness, erosion, and other hazardous conditions pursuant to Mining Enforcement and Safety Administration standards;⁹⁸ and (i) eventual removal of the sedimentation ponds and revegetation of the affected land after reclamation is completed, unless the ponds are approved as permanent impoundments.⁹⁹

The regulations governing sediment pound construction are more detailed and less flexible than most operators would prefer.¹⁰⁰ However, the extensive sedimentation of Appalachian streams has demonstrated that strict controls are necessary to prevent sediment runoff from surface mines.

7. Control of Acid and Toxic Materials

Next to sediment, the most troublesome pollutants from surface mines are acid and toxic materials. Most states require selective placement and burial of acidic and toxic materials. In fact, the interim regulations are a juxtaposition and averaging of the requirements of several states — stricter than some, less rigid than others.

The interim regulations require that all exposed coal seams remaining after mining and all other acid-forming, toxic-forming, combustible waste materials be covered with a minimum of four feet of nontoxic and noncombustible material, or if necessary, be treated to neutralize toxicity. Where necessary, the regulatory authority may specify thicker amounts of cover using nontoxic material.¹⁰¹

All toxic materials from mine sites must be buried or treated within 30 days if they are subject to wind and water erosion.¹⁰² All waste materials from coal preparation plants must be buried or treated within 90 days after cessation of the filling of the disposal area.¹⁰³

Backfilled materials must be selectively placed and compacted where necessary to prevent leaching of toxic-forming materials into surface or subsurface waters.¹⁰⁴ An operator must prevent or remove water from contact with toxic-producing deposits.¹⁰⁵

Boreholes, shafts, wells, and auger holes must be cased, sealed, or otherwise managed to prevent pollution of surface or ground waters. Boreholes which extend beneath the coal into water-bearing strata must be plugged permanently, unless approved for use in monitoring.¹⁰⁶

If the pH of waters discharged from the disturbed area is normally less than 6.0, an automatic lime feeder or other neutralization process must be installed to treat the water. If the mine produces less than 500 tons of coal per day, the regulatory authority may approve the use of a manual system instead of the automatic process.¹⁰⁷

[8 ELR 50007]

8. Ground Water Controls

The blasting and earth-moving involved in surface mining often disrupt the ground water system in the mined and adjacent areas. Since local residents frequently depend on wells for their water supply, it is essential that coal operators minimize the adverse effects of mining on the ground water system. Few states have addressed this problem, so the interim federal regulations are breaking new ground on this subject.

The interim regulations provide that reclamation of disturbed areas must restore "approximate premining recharge capacity" and must "minimize disturbance to the prevailing hydrologic balance at the mined area and in associated offsite areas."¹⁰⁸ Backfilled materials must be placed so as to minimize adverse effects on ground water flow and quality and to minimize off-site effects.¹⁰⁹

The regulatory authority shall require every permittee to monitor ground water levels, infiltration rates, subsurface flow and storage characteristics, and quality of ground water. When mining and reclamation operations may affect the ground water system, ground water levels and quality must be periodically monitored using sufficient water wells. If necessary to prove compliance, an operator may be required to drill additional wells or undertake additional hydrologic tests.¹¹⁰ If an operator affects a person's water supply through contamination, diminution, or interruption proximately resulting from the surface mine operations, he must replace that person's water supply.¹¹¹

The regulations will not prevent the water level in some wells from being lowered by mining, but the ground water monitoring requirements will force coal operators to give close scrutiny to water levels, hopefully preventing problems from becoming severe. The monitoring data will enable an injured party to more easily identify the operator who damaged his well, and the regulations create a new federal requirement that an operator replace a water supply which is diminished or interrupted due to his mining operations.

9. Water Impoundments

Like most state laws, the interim regulations permit permanent water impoundments to be left at a mine site after reclamation if they are authorized by the regulatory authority and meet certain specified construction and safety standards.¹¹²

10. Signs and Markers

Most states require some identification at every mine site. The interim regulations likewise require several types of identifying markers at mine sites, including: (a) signs identifying the mine, its owner, and its permit number, placed at all points of access to the permit area;¹¹³ (b) perimeter markers, identifying the perimeter of the permit area;¹¹⁴ (c) buffer zone markers, identifying all land within 100 feet of an intermittent or perennial stream;¹¹⁵ (d) blasting signs, identifying the areas where blasting will occur and explaining the blasting warning and all-clear signals;¹¹⁶ and (e) topsoil markers, identifying the areas where topsoil has been segregated and stockpiled.¹¹⁷

Because coal operators often mine outside their permit area inadvertently, the perimeter markers and buffer zone markers may assist in preventing this problem. Topsoil markers should help heavy equipment operators avoid unintentional contamination or burial of topsoil.

11. Access and Haul Roads

The interim regulations governing access and haul roads to mine sites echo the requirements of most states. Such roads must be constructed, maintained, and reclaimed to prevent additional contributions of suspended solids to streamflow and run-off outside the permit area, to the extent possible. After mining is completed, all access and haul roads must be reclaimed and revegetated, unless retention of a road is part of the approved postmining land use.¹¹⁸

Roads must be located on ridges and flatter slopes where possible. Stream fords are prohibited unless specifically approved by the regulatory authority "as temporary routes across dry streams that will not adversely affect sedimentation and that will not be used for coal haulage."¹¹⁹ Roads may not be located in active stream channels or constructed in a way that increases erosion or causes flooding.¹²⁰

Roads must be constructed according to certain specified grade restrictions¹²¹ and must be adequately drained according to certain specified drainage suidelines.¹²² They must be "surfaced with durable material" (not including acid- or toxic-forming substances),¹²³ and must be routinely maintained by wetting, scraping, or surfacing.¹²⁴

12. Disposal of Excess Spoil and Waste Materials

Like most state regulations, the interim federal regulations provide for the disposal of excess spoil and waste materials. Certain conditions¹²⁵ must be met, including certification by a registered professional engineer,¹²⁶ disposal on moderately sloping, stable areas,¹²⁷ and removal of topsoil and organic material from disposal areas and eventual replacement on top of the spoil.¹²⁸ Periodic inspection of the fill by a registered [8 ELR 50008] engineer or other qualified professional specialist is also required.¹²⁹ Excess spoil, but not waste material, may be placed in valley or head-of-hollow fills if certain specified requirements¹³⁰ are met, including those listed above and construction standards for rock underdrains,¹³¹ terraces,¹³² and slopes.¹³³

13. Revegetation

All state surface mining laws require revegetation of disturbed areas. Though the interim regulations place more emphasis on the use of native species than most state laws, they authorize the regulatory authority to grant whatever variances are appropriate to achieve successful revegetation.

Specifically, the regulations require a permittee to establish on disturbed land "a diverse, effective, and permanent vegetative cover of species native to the area of disturbed land or species that will support the planned postmining uses."¹³⁴ The vegetative cover is required to be "of the same seasonal variety native to the area of disturbed land,"¹³⁵ unless the regulatory authority approves the use of introduced species after "appropriate field trials have demonstrated that the introduced species are of equal or superior utility for the approved postmining land use, or are necessary to achieve a quick, temporary, and stabilizing cover."¹³⁶

Seeding and planting must be conducted "during the first normal period for favorable planting conditions after final preparation."¹³⁷ Areas that have been graded must be "seeded with a temporary cover of small grains, grasses, or legumes to control erosion until an adequate permanent cover is established."¹³⁸ Mulch is required to be used on all regraded and topsoiled areas "to control erosion, to promote germination of seeds, and to increase the moisture retention of the soil."¹³⁹ The regulatory authority must approve "species selection and planting plans."¹⁴⁰

Success of revegetation is measured by comparison with "reference areas" approved by the regulatory authority.¹⁴¹ The reference area must be "representative of geology, soils, slope, aspect, and vegetation in the permit area."¹⁴² The regulations do not specify how large the reference area may be or how far it may be from the mined area.

To show successful revegetation, the ground cover of living plants on the revegetated are must be at least 90 percent of the ground cover of the approved reference area for at least two growing seasons. Exceptions to this requirement may be made for previously mined areas not reclaimed properly, areas to be used for industrial or regarding, and areas to be used for agricultural cropland purposes.¹⁴³

Because the regulations are nationwide in scope and because of the wide variation in species of plants and trees throughout the country, the regulations do not specify the particular species that must be planted in particular areas, as do the regulations of many states. The requirement of a 90 percent success rate is adequate to ensure good revegetation, though, and is stronger than the requirements of most states.

14. Refuse Dams

Because of the Buffalo Creek, West Virginia disaster in 1972 and the general problems associated with refuse dams, Congress mandated that they receive special attention.¹⁴⁴ Accordingly, the interim regulations provide that plans for dams constructed of waste materials must be approved by the regulatory authority prior to construction,¹⁴⁵ and must meet certain specified construction requirements.¹⁴⁶ The dams must be periodically inspected during construction and certified upon completion by a registered professional engineer.¹⁴⁷

All dams must be routinely inspected during their operation by a registered professional engineer or someone under his supervision,¹⁴⁸ and certified annually to minimize the possibility of failures.¹⁴⁹ After mining, the dams must be removed and the disturbed areas revegetated and stabilized, unless the regulatory authority approves retention of such dams.¹⁵⁰

B. Performance Standards for Surface Mining in Special Areas

1. Steep-Slope Mining

The regulations contain special requirements for mining on natural slopes that exceed 20 degrees (or "lesser slopes that require measures to protect the area from disturbance, as determined by the regulatory authority").¹⁵¹ These requirements do not apply, however, where mining is done on a flat or gently rolling terrain with an occasional steep slope.¹⁵²

The most important requirement of this section is stated as follows:

Spoil, waste materials or debris, including that fromclearing and grubbing, and abandoned or disabled equipment, shall not be placed or allowed to remain on the downslope.¹⁵³

[8 ELR 50009]

In addition, land above the highwall must not be disturbed unless the regulatory authority finds "that the disturbance will facilitate compliance."¹⁵⁴ Also, woody materials may be buried in the backfilled area "only when burial does not cause, or add to, instability of the backfill."¹⁵⁵

Quite obviously, this section of the regulations provides special relief for the Appalachian area, where much of the mining takes place on steep slopes. Refraining from placement of spoil on the downshope will aid stability and lessen erosion on the disturbed slopes. For Appalachian citizens and coal operators, this is the most important provision in the regulations.

2.Mountaintop Removal

Mountaintop removal operations are described in the interim regulations as:

[s]urface coal mining and reclamation operations that remove entire coal seams running through the upper fraction of a mountain, ridge, or hill by removing all of the overburden and creating a level plateau or gently rolling contour with no highwalls remaining.¹⁵⁶

Such operations are exempt from the requirement to achieve approximate original contour, if all other reclamation requirements can be met and the alternative land use criteria of Section 715.13(d) are met.¹⁵⁷ Special standards for such operations¹⁵⁸ include an outcrop barrier to prevent slides and erosion,¹⁵⁹ slope limitations,¹⁶⁰ drainage requirements,¹⁶¹ and spoil handling requirements.¹⁶²

All permits allowing mountaintop removal must be reviewed "not more than 3 years from the date of issuance,"¹⁶³ and the terms of the permit may be modified if the regulatory authority determines that "more stringent measures are necessary to prevent or control slides and erosion, prevent damage to natural water courses, avoid water pollution, or to assure successful revegetation."¹⁶⁴

3. Alluvial Valley Floors

The interim regulations provide special protection for alluvial valley floors west of the 100th meridian west longitude. The "essential hydrologic functions" of alluvial valley floors must be preserved throughout the mining and reclamation process. Prior to mining, an operator must provide detailed surveys and baseline data to the regulatory authority,¹⁶⁵ which must address the characteristics of an alluvial valley floor listed in § 715.17(j)(1) and demonstrate that all essential hydrologic functions will be preserved.

The basic protection for farmers owning land on alluvial valley floors is stated as follows:

Surface coal mining operations located west of the 100th meridian west longitude shall not interrupt, discontinue, or preclude farming on alluvial valley floors and shall not materially damage the quantity or quality of surface or ground water that supplies these valley floors unless the premining land use has been undeveloped rangeland which is not significant to farming on the alluvial valley floors or unless the area of affected alluvial valley floor is small and provides negligible support for the production from one or more farms.¹⁶⁶

The above requirements do not apply, however, to operations that were in production or had permits to mine on alluvial valley floors on August 3, 1977.¹⁶⁷ Also, if the Secretary of Interior determines that an operator had made "substantial financial and legal commitments," prior to January 1, 1977, in connection with surface mining operations on alluvial valley floors, the Secretary may exchange a lease of other federal coal deposits for the operator's present federal lease, or may exchange the fee title to other available federal coal deposits for the operator's present fee title to coal deposits.¹⁶⁸

4. Prime Farmlands

The interim regulations provide special protection for prime farmlands. The chief beneficiaries of this section of the regulations will undoubtedly be farmers in the midwestern states where thick coal deposits often underlie rich farmland.

To be classified as prime farmland, lands must meet two requirements: (1) they must have been "used for the production of cultivated crops, including nurseries, orchards, and other specialty crops, and small grains for at least 5 years out of the 20 years preceding the date of the permit application;"¹⁶⁹ (2) they must meet the technical criteria for soils prescribed by the Secretary of Agriculture.¹⁷⁰

Prime farmlands shall be identified on the basis of soil surveys submitted by the permit applicant. The requirement for submission of soil surveys may be waived by the regulatory authority if the applicant demonstrates that prime farmland is not involved, based on the existence of one or more of the facts listed in § 716.7(d).¹⁷¹ To determine whether prime farmlands are involved, the regulatory authority may require the submission of data on "irrigation, drainage, flood control, and subsurface water management."¹⁷²

The requirements of this section are applicable to any permit issued on or after August 3, 1977, where prime farmlands are involved. Permits issued before that date, and revisions or renewals of such prior permits, are exempted from the provisions regarding actions to be [8 ELR 50010] taken before a permit is issued.¹⁷³

Section 716.7(g) contains special environmental performance standards that must be met on prime farmlands in addition to the general performance standards of part 715.¹⁷⁴

Before granting a permit to mine prime farmlands, the regulatory authority must take several steps: (1) it must examine and approve a plan submitted by the permit applicant which includes certain specified data;¹⁷⁵ (2) it must consult with the State Conservationist (an employee of the United States Soil Conservation Service in each state), who will review the proposed method of soil reconstruction and suggest possible revisions;¹⁷⁶ and (3) it must find in writing that the applicant: (a) has the technological capability to restore the prime farmland within the proposed permit area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management; and (b) will achieve compliance with the special performance standards for prime farmlands.¹⁷⁷

C. Performance Standards for Underground Mines

Part 717 of the interim regulations contains the environmental standards governing underground coal mine operations. Although a few states have comprehensive regulations governing the surface environmental effects of underground mines, some states regulate only the water discharges from underground mines, and a few states have no regulations at all governing the environmental effects of underground mines. The interim federal regulations provide that where "any element" of underground mine operations is regulated by a state, the underground mines in that state must comply with the initial performance standards.¹⁷⁸

Section 717.11(a) contains several important definitions used throughout this part: surface operations,¹⁷⁹ underground operations,¹⁸⁰ permittee,¹⁸¹ and disturbed areas.¹⁸² The remaining sections of this part contain requirements very similar to the requirements for surface mines discussed heretofore. Accordingly, the sections are simply listed below, with a few pertinent comments about each.

(1) Section 717.12 — Signs and Markers. Only signs identifying the mine area are required.¹⁸³

(2) Section 717.14 — Backfilling and Grading. Upon completion of underground mining, surface work areas must be regraded to approximate original contour, and fill material must be backfilled and compacted. There is a limited exemption for roads and support facility areas existing prior to these regulations.¹⁸⁴ Provisions governing terraces,¹⁸⁵ steep slope operations,¹⁸⁶ rills and gullies,¹⁸⁷ acid- and toxic-forming materials,¹⁸⁸ and grading along the contour¹⁸⁹ are virtually the same as those for surface mines.

(3) Section 717.15 — Disposal of Excess Rock and Earth Materials. This section requires that excess rock and earth materials not used in backfilling and grading or disposed of in underground workings be placed in surface disposal areas in accordance with the provisions of § 715.15.

(4) Section 717.17 — Protection of the Hydrologic System. Provisions governing effluent limitations,¹⁹⁰ monitoring,¹⁹¹ stream channel diversion,¹⁹² sediment control measures,¹⁹³ acid and toxic materials,¹⁹⁴ ground water controls,¹⁹⁵ and access and haul roads¹⁹⁶ are almost identical to those governing surface mines.

(5) Section 717.18 — Refuse Dams. The provisions of this section are the same as those governing surface mines.

(6) Section 717.20 — Topsoil Handling and Revegetation. Though abbreviated greatly in detail, the provisions of this section are the same as those applicable to surface mines.

The underground mine regulations do not include certain requirements applicable to surface mines, such as blasting regulations, because the Act mandated that the Department of the Interior "consider the distinct difference between surface coal mining and underground coal mining,"¹⁹⁷ The regulations in part 717, though, are stronger than those of most states and will help remedy severe problems associated with underground mining that most states have ignored.

III. Inspections and Enforcement During the Interim Regulatory Program

Although the interim regulations do not create a federal permit system, they do provide for federal inspections and enforcement during the interim regulatory program. A state may continue to enforce its law, regulations, and permit conditions unless compliance with a state requirement would preclude compliance with federal regulations.¹⁹⁸ A state is also required to enforce federal performance standards by incorporating "terms [8 ELR 50011] in initial permits that comply with those standards."¹⁹⁹

A. Federal Inspections

Each state regulatory authority must submit to the federal Office of Surface Mining, within five days after its completion, a copy of each state inspection report "which contains observations of the condition of the mine site and relates to the obligations imposed by these regulations,"²⁰⁰ and copies of all initial permits (including the applications) issued on or after February 4, 1978, and of all revised or renewed permits (including the applications) issued on or after May 4, 1978.²⁰¹ Federal inspections will be based primarily on an analysis of the state inspection reports and on citizen complaints.

A mining operation is subject to federal inspection by OSM under these circumstances: (1) on the basis of not less than two consecutive state inspection reports indicating a violation of the Act, the interim regulations, or permit conditions required by the Act;²⁰² (2) on the basis of information provided by a state or by any person which "gives rise to a reasonable belief that the provisions of the Act, regulations or permit conditions required by the Act are being violated, or that a condition or practice exists which creates an imminent danger to the health or safety of the public, or is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources;"²⁰³ and (3) on a random basis, including at least one complete inspection each six months to determine an operator's compliance with all applicable standards in these regulations within the entire area disturbed or affected by mining.²⁰⁴

During a federal inspection, an OSM inspector may enter a mining operation upon presentation of proper credentials, without advance notice and without a search warrant, may inspect and copy any records, and may inspect any monitoring equipment.²⁰⁵

B. Citizen Complaints

Any person who "believes" that there is a violation of the Act, regulations, or permit conditions or that imminent danger or harm exists at a particular mine may report this information to an OSM office. Written or oral reports will be accepted. Written reports must be signed and must include a telephone number where the reporting party can be reached. Oral reports must be followed by a written and signed statement.²⁰⁶

To trigger a federal inspection, the citizen report must allege facts which, if proven to be true, would show a violation of the Act, regulations, or permit. Unless OSM has reason to believe the information is incorrect or determines that there would not be a violation even if the information were correct, OSM must conduct an inspection within 15 days of its receipt of the report.²⁰⁷

If requested, the identity of the person supplying the information to OSM will remain confidential.²⁰⁸ However, the person will be notified by OSM when the inspection will occur and may accompany the OSM official during the inspection if he so desires.²⁰⁹ During the inspection, the person must remain in the presence and under the control of the OSM inspector.²¹⁰

Within ten days of the inspection, OSM must notify the person in writing of the results of the investigation and any actions taken as a result thereof. If no inspection was made, OSM must explain to the person in writing, within 15 days of the complaint, why an inspection was not made.²¹¹ In either case, if the person disagrees with the action taken by OSM on his report, he may request the OSM Regional Director to review the complaint and action taken. The Regional Director must notify the person in writing, within 30 days, of the results of his informal review.²¹²

The regulations provide a good opportunity for citizens to participate in enforcement activities and also give adequate protection to those who wish to provide information but remain anonymous. They go much farther than most states in mandating citizen involvement in enforcement.

C. Enforcement Tools

1. Cessation Orders and Notices of Violation

If during a federal inspection an OSM inspector finds conditions, practices, or violations of applicable performance standards which create an imminent danger to the health or safety of the public,²¹³ or which are causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources,²¹⁴ the OSM inspector shall immediately order a cessation of mining operations (or "that portion of the operation relevant to the condition, practice, or violation").²¹⁵

The OSM inspector shall impose affirmative obligations on the operator to abate the condition, practice, or violation if the cessation of mining operations itself is not sufficient to abate the imminent danger or harm.²¹⁶ The affirmative obligations imposed must require abatement "in the most expeditious manner physically possible," shall include a time limit for abatement, and may require the use of "existing or additional personnel and equipment."²¹⁷

[8 ELR 50012]

Reclamation operations not the subject of the cessation order shall continue while the order is in effect.²¹⁸ The OSM inspector shall terminate the cessation order by written notice when he determines that the conditions, practices, or violations creating the imminent danger or harm have been eliminated.²¹⁹

Violations not creating an imminent danger or harm may also result in a cessation order if not properly abated. If an OSM inspector finds such a violation, he shall issue a notice of violation fixing a reasonable time for abatement.²²⁰ He may establish interim steps during the abatement period²²¹ or extend the time for abatement if failure to abate was not caused by the operator's lack of diligence,²²² but the total time for abatement as originally fixed and subsequently extended shall not exceed 90 days.²²³ If the operator fails to abate the violation within the authorized time, the OSM inspector shall order cessation of mining operations (or the relevant portion therof), and impose affirmative abatement obligations on the operator.²²⁴

Notices of violation and cessation orders shall be given to the permitteeor his designated agent, or if no designated agent is present at the mine site, shall be given to the person who "appears to be in charge of the mining or reclamation operation."²²⁵ Although service is complete upon delivery at the mine, a copy of each notice or order must be mailed to the permittee within 48 hours.²²⁶

Unless waived by the permittee, an OSM representative may conduct, within 30 days after receipt of the cessation order by the operator, an informal public hearing "at the minesite or within such reasonable proximity to the mine that it may be visited during the conduct of the hearing."²²⁷ Notice of the time, place, and subject matter of the hearing shall be given to the permittee, any citizen whose report led to the cessation order, and the state regulatory authority, and shall be posted at the appropriate OSM district or field office and the mine site, and (to the extent possible) published in a local newspaper.²²⁸ Oral or written arguments and any other relevant information may be presented to the OSM representative by any person attending the hearing.²²⁹

Within 15 days after the informal hearing, OSM shall in writing affirm, modify, or vacate the cessation order. The written decision shall be sent to the permittee, any citizen whose report led to the cessation order, and the state regulatory authority.²³⁰

Neither a notice of violation nor a cessation order may be vacated because of the permittee's inability to comply due to circumstances beyond his control (such as a labor dispute), but inability to comply may be considered in mitigation of the amount of a civil penalty or the duration of suspension of a permit.²³¹

No minesite hearing need be held where the permittee waives the hearing or where the condition, practice, or violation has been abated. If the operator waives his right to a hearing, the cessation order shall not expire until abatement has been completed.²³² If the operator does not waive his right to a minesite hearing and OSM fails to hold the hearing within 30 days of the cessation order, the order automatically expires at the end of the 30 days.²³³

The permittee, or any person having an interest which may be adversely affected, may also request review at a formal administrative hearing within 30 days of receipt of a cessation order or notice of violation,²³⁴ or within 30 days of its modification, termination, or vacation, although a request for formal review does not automatically stay the order or notice. The permittee and other interested persons shall be given written notice of the hearing at least five days before it is held.²³⁵ If the application for review concerns a cessation order, the decision on review must be issued within 30 days of receipt of the application for review, unless temporary relief from the order or notice has been granted.²³⁶

2. Orders to Show Cause

The interim regulations require the OSM Director to issue to the permittee an order to show cause why his permit should not be suspended or revoked if the Director determines that a "pattern of violations" exists and that such violations were caused by "unwarranted failure to comply"²³⁷ or were "willful violations."²³⁸ The Director may determine that a pattern of violations exists after considering the following facts: (1) the number of willful violations or violations caused by unwarranted failure to comply with the same or related requirements of the Act, regulations, or permit conditions during two or more federal inspections; (2) the number of willful violations or violations caused by unwarranted failure to comply with different requirements of the Act, regulations, or permit conditions; and (3) the extent to which the violations were isolated departures from lawful conduct.²³⁹ The Director must find that a pattern of violations exists when violations of the same or related requirements were found during three or more federal [8 ELR 50013] inspections within a 12-month period and were either caused by an unwarranted failure to comply or were willful violations.²⁴⁰

The order to show cause triggers a formal administrative hearing.²⁴¹ If after this hearing the Secretary of the Interior finds that a pattern of violations exists, the operator's permit shall be suspended or revoked, and he shall be directed to "complete necessary corrective measures and reclamation operations."²⁴²

3. Civil Penalties

The interim regulations contain detailed provisions governing when a civil penalty is assessed, how the amount is determined, and what procedures are followed. OSM is required to assess a civil penalty for each violation contained in a cessation order.²⁴³ OSM may assess a civil penalty for violations that do not involve a cessation order, after consideration of the following four factors²⁴⁴ and through the use of a point system.²⁴⁵

(1) History of previous violations. OSM shall assign one point for each past violation (whether or not it led to a civil penalty assessment) and five points for each past cessation order issued in the previous 12 months at that particular operation, up to a maximum of 30 points.Violations or orders which were vacated or are the subject of pending administrative or judicial review shall not be counted.²⁴⁶

(2) Seriousness. OSM shall assign up to 15 points based upon the probability of the occurrence of the event which a violated standard is designed to prevent, and up to 15 points based upon the extent of potential or actual damage to the public or the environment. The regulation contains further guidelines for determining points in these two subcategories.²⁴⁷

(3) Negligence. OSM shall assign up to 25 points based upon the degree of fault of the permittee in causing or failing to correct the violation. The regulation contains further guidelines for determining points in this category.²⁴⁸

(4) Good faith in attempting to achieve compliance. OSM shall add or subtract points based upon the degree of good faith shown by the permittee in attempting to achieve rapid compliance after notification of the violation. The regulation contains further guidelines for determining points in this category.²⁴⁹

OSM normally determines the amount of a civil penalty by converting the total number of points assessed for a particular violation to a dollar amount according to the table contained in § 723.13.²⁵⁰ If the total number of points is more than 30, OSM must assess a penalty.²⁵¹ OSM may "assess separately each day of any continuing violation."²⁵²

The procedure that OSM must follow in assessing a civil penalty is spelled out. Within ten days of service of a notice or order, the permittee may submit written information about the violation to OSM, which must consider this information in determining the amount of the civil penalty.²⁵³ Wthin 30 days of service of the notice or order, OSM shall serve the permitted by certified mail with a copy of the proposed assessment and the worksheets showing the computation of points.²⁵⁴

Within 15 days of receipt of the proposed assessment, the permittee may submit to OSM a written request for a conference to review the assessment.²⁵⁵ Notice of the time and place of the conference must be posted at the OSM field office with jurisdiction over the mine at least five days prior to the conference.²⁵⁶ The conference must be held within 60 days of the date it was requested.²⁵⁷

At the conference the permittee may present additional materials for consideration by OSM.²⁵⁸ Any member of the public may also "attend the conference and participate."²⁵⁹

Based on all relevant information, OSM may raise or lower the proposed penalty or vacate it entirely. A written explanation for every change in a proposed assessment shall be included in the file.²⁶⁰ A reduction by more than 25 percent or more than $500 must be approved by the OSM Director or his designee before it becomes final.²⁶¹

If the permittee agrees to the assessment finally made by OSM, the agreement shall be reduced to writing and signed by both the party assessed and an OSM representative. If payment of the penalty is not received by OSM within 30 days thereafter, OSM may enter the agreed upon amount as a final order of the Secretary of the Interior, or may rescind the agreement and reinstate the original proposed assessment.²⁶²

Instead of requesting a conference about the assessment, the permittee may, within 30 days of receipt of the proposed assessment, request a hearing before the [8 ELR 50014] Office of Hearings and Appeals by filing a petition and tendering full payment of the proposed assessment.²⁶³ If the permittee has requested a conference, that request suspends the running of the 30-day period for requesting a hearing under § 723.18(a), and the suspension shall continue until the completion of the conference. If the permittee is not satisfied with the outcome of the conference, he shall have 15 days after its completion to request a hearing.²⁶⁴

The Office of Hearings and Appeals shall conduct the hearing, and may determine whether a violation occurred. When determining the amount of the penalty, the Office shall use the point system and table of conversion, except where OSM had decided not to use it under the exception of § 723.15.²⁶⁵ Any director, officer, or agent of a corporate permittee who "willfully and knowingly authorized, ordered, or carried out" a violation or failure or refusal to obey an order is subject to the same civil penalties that may be imposed on the corporation.²⁶⁶

To collect civil penalties from operators who refuse to pay them after assessment, the Secretary of the Interior may request the Attorney General to file a civil action in "any appropriate district court of the United States."²⁶⁷

4. Criminal Penalties

Any person who "willfully and knowingly" violates a condition of a permit, or fails or refuses to comply with any order or final decision of the Secretary of the Interior, shall be punished, upon conviction, by a fine of not more than $10,000 or imprisonment for not more than one year or both.²⁶⁸ Any director, officer, or agent of a corporate permittee who "willfully and knowingly authorized, ordered, or carried out such violation, failure or refusal" is likewise subject to the same fine and imprisonment.²⁶⁹ Any person who knowingly makes any false statement, representation, or certification, or knowingly fails to make any required statement, representation, or certification, is also subject to these penalties.²⁷⁰

5. Injunctive Relief

The Secretary of the Interior may request the Attorney General to institute a civil action for a restraining order, temporary or permanent injunction, or other appropriate order whenever a permittee or his agent does one of the following: (1) violates, fails, or refuses to comply with an order or decision by the Secretary of the Interior; (2) interferes with, hinders, or delays OSM in carrying out the provisions of the Act; (3) refuses to admit an OSM representative to the mine or refuses to allow him to inspect the mine; or (4) refuses to furnish any information or report requested by an OSM representative, or to allow access to or copying of necessary records. The civil action must be filed in the United States District Court where the coal mining operation is located or where the permittee has his principal office.²⁷¹

6. Judicial Review of Administrative Actions

Any order or decision of the Secretary of the Interior in a civil penalty proceeding or other proceeding involving a formal administrative hearing under the Act is subject to judicial review within 30 days after its issuance in the United States District Court for the district where the coal mining operation is located.²⁷² The district court must review the petition "solely on the record made before the Secretary," and the findings of the Secretary are conclusive "if supported by substantial evidence on the record considered as a whole."²⁷³ The court may affirm, modify, or vacate the Secretary's order or decision, or may remand the proceedings to the Secretary for further action.²⁷⁴

7. Citizen Suits

A person "having an interest which is or may be adversely affected" may commence a civil action in the United States District Court for the district where the coal mining operation complained of is located.²⁷⁵ The action may be brought against any person alleged to be in violation of any regulation, order, or permit issued pursuant to the Act, or against the Secretary of the Interior where there is an alleged failure by him to perform a nondiscretionary act or duty.²⁷⁶

At least 60 days prior to filing a citizen's suit, however, the citizen must give written notice of the alleged violation to the Secretary of the Interior, the state regulatory authority, and the alleged violator.²⁷⁷ If the Secretary or the state regulatory authority "has commenced and is diligently prosecuting" a civil action in federal or state court to require compliance, the citizen's suit may not be filed, but the citizen may intervene as a matter of right in any pending federal court action regarding the alleged violation.²⁷⁸

In a citizen's suit, the court may, in its discretion, award costs of litigation (including fees for attorneys and expert witnesses) to any party. If a temporary restraining order or temporary injunction is sought, the court may require the filing of a bond or equivalent security.²⁷⁹

IV. Conclusion

Not everyone is happy with the interim regulatory program for surface mining. Forty West Virginia coal [8 ELR 50015] operators immediately challenged the constitutionality and legality of numerous sections of the Act and interim regulations in federal court.²⁸⁰ Other suits challenging the regulations have also been filed.²⁸¹

Even if the regulations are sustained by the courts, there will undoubtedly be a period of education and transition in which coal operators familiarize themselves with the new requirements. Because the Act was under consideration by Congress for so many years before final approval, however, and because operators have been on notice for years concerning the basic changes that would be required by the Act, the transition period should be brief, and the industry should not be allowed to drag its feet in achieving compliance with the new regulations.

1. Pub. L. No. 95-87, § 501, 30 U.S.C. § 1251, ELR STAT. & REG. 42410.

2. Id. § 501(a).

3. Id. § 501(b).

4. 30 C.F.R. Parts 700, 710, 715-718, 720-723, 725, 740, 795, and 830, 42 Fed. Reg. 62639-716 (Dec. 13, 1977). These regulations were prepared by a task force organized by the Department of the Interior and composed of more than 90 people from about 20 federal agencies, which began drafting the regulations in April 1977 in anticipation of the Act's passage. Proposed interim regulations were published on September 7, 1977. See 42 Fed. Reg. 44920-57 (Sept. 7, 1977). Public hearings on the proposed regulations were held September 20-22, 1977, in Washington, D.C.; Charleston, West Virginia; St. Louis, Missouri, and Denver, Colorado. The Department received over 300 written comments on the proposed regulations, evidencing the high degree of public interest in them.

The Act required the concurrence of other federal officials with respect to certain of the regulations, including the following: (1) the Administrator of the Environmental Protection Agency, with respect to air and water quality standards (§ 501(a)(B)); (2) the Secretary of Agriculture, with respect to provisions governing prime farmlands (§ 510(d)(1)); and (3) the Chief of the Corps of Engineers, with respect to coal mine waste piles (§ 515(f)).

The Secretary of Interior received the necessary concurrence from all three officials. See 42 Fed. Reg. 62639 (Dec. 13, 1977).

5. In recent testimony before the House Interior Committee's Subcommittee on Energy and the Environment, Water Heine, Director of the Office of Surface Mining Reclamation and Enforcement, attributed the delay to congressional failure to appropriate funds authorized by the Act. Heine opposed the suggestion that statutory deadlines be extended due to the lack of direct appropriations. He noted, however, that continued delays would hinder federal enforcement ability, encourage a wait-and-see attitude by industry, and disrupt the momentum of state planning. Oversight Hearings on the Implementation of the Surface Mining and Reclamation Act of 1977 Before the House Subcomm. on Energy and the Environment ofthe Comm. on Interior and Insular Affairs, 95th Cong., 2d Sess. (Jan. 19, 1978).

6. Pub. L. No. 95-87, § 515(a), 30 U.S.C. § 1265(a), ELR STAT. & REG. 42416.

7. Id. § 201, 30 U.S.C. § 1211, ELR STAT. & REG. 42403.

8. See Comment, The Strip Mining Law: Conflicting Goals Underlie Balanced Regulatory Requirements, 7 ELR 10160 (Sept. 1977).

9. This article does not discuss the following sections of the interim regulations:

(1) Part 725 - Reimbursement to States;

(2) Part 740 - Grants for Program Development and Administration and Enforcement;

(3) Part 795 - Small Operator Assistance; and

(4) Part 837 - Abandoned Mine Reclamation Fund.

This article also contains no specific discussion of the recently promulgated regulations governing coal mining operations on Indian lands (see 42 Fed. Reg. 63394-410, Dec. 16, 1977) or the proposed changes in the regulations governing coal mining operations on federal lands (see 42 Fed. Reg. 60890-95, Nov. 29, 1977), although both sets of regulations contain environmental protection provisions which are quite similar to those discussed in this article.

10. One problem that may hinder prompt development of state programs is the delay in granting federal funds for this purpose. Oversight Hearings, supra n. 5 (statement of Peter Pilsenberger, Reclamation Director, State of West Virginia).

11. 33 U.S.C. § 1342(a), ELR STAT. & REG. 42101.

12. It is unclear how this compliance requirement will be incorporated into state permits. The Act provides no guidance on this point. Section 502(b) simply provides that state "permits shall contain terms requiring compliance with the provisions set out in subsection (c) of this section."

The regulations provide no more guidance than the Act on this point. 30 C.F.R. § 710.4(b) of the regulations provides in part:

(b) The States are responsible for issuing permits and inspection and enforcement on lands on which operations are regulated by a State to insure compliance with the initial performance standards in Parts 715-718 of this chapter.

30 C.F.R. § 710.11(a)(3)(i) further provides:

(3) Performance standards obligations.

(i) A person who conducts any coal mining operations under an initial permit issued by a State on or after February 3, 1978, shall comply with the requirements of the initial regulatory program. Such permits shall contain terms that comply with the relevant performance standards of the initial regulatory program.

Several states are apparently taking the position that, until their state laws and regulations are changed, they cannot issue permits requiring compliance with stricter federal standards. Such a position is inconsistent with the intent of the Act.

13. 30 C.F.R. § 710.11(a)(3)(i), (c)(1).

14. Pub. L. No. 95-87, § 502(c), 30 U.S.C. § 1252, ELR STAT. & REG. 42410; 30 C.F.R. § 710.11(a)(3)(ii), (c)(2).

15. Pub. L. No. 95-87, § 502(c), 30 U.S.C. § 1252, ELR STAT. & REG. 42410.

16. The concept of "attributed production" is key to an understanding of the exemption. Section 710.12(f) provides that production from the following operations shall be "attributed to the permittee":

(1) All coal produced by operations beneficially owned entirely by the permittee, or controlled by reasons of ownership, direction of the management, or in any other manner by the permittee.

(2) The pro rata share, based upon percentage of beneficial ownership, of coal produced by operations in which the permittee owns more than a 5-percent interest.

(3) All coal produced by persons who own more than 5 percent of the permittee or who directly or indirectly control the permittee by reason of stock ownership, direction of the management or in any other manner.

(4) The pro rata share of coal produced by operations owned or controlled by the person who owns or controls the permittee.

The term "control" is not clearly defined in the regulations and will be subject to interpretation by the OSM Director in individual cases.

17. 30 C.F.R. § 710.12(c)(1). To determine that an operator's 1978 "actual and attributed production" is estimated to be less than 100,000 tons, the OSM Director must find that the operator meets one of two tests set out in 30 C.F.R. § 710.12(c)(2):

(i) Was in existence on July 31, 1976, and during the year ending on July 31, 1977, the actual and attributed production of that permittee was 100,000 tons of coal or less from all surface and underground coal mining operations; or

(ii) Came into existence after July 31, 1976, and prior to May 2, 1977, and the actual and attributed production from all surface and underground coal mining operations of that permittee in the average calendar month was an amount of coal which when multiplied by 12 yields a product of 100,000 tons or less.

18. 30 C.F.R. § 710.12(c)(2)(ii), (iii).

19. 30 C.F.R. § 710.12(b)(2). Any operator who renews his permit on or after May 3, 1978 must begin to comply with all initial federal performance standards on the date that the renewed permit becomes effective. 30 C.F.R. § 710.12(i).

20. 30 C.F.R. § 710.12(d). This deadline has been administratively extended to March 1, 1978.

21. 30 C.F.R. § 710.12(e)(4).

22. 30 C.F.R. § 710.12(e)(5). Obviously this requirement is applicable only in those states which impose a severance tax on coal.

23. 30 C.F.R. § 710.12(h).

24. 30 C.F.R. § 710.12(j).

25. 30 C.F.R. § 710.12(b)(1).

26. 30 C.F.R. § 710.12(b)(3).

27. 30 C.F.R. § 710.12(b)(4).

28. 30 C.F.R. § 710.12(b)(5).

29. 30 C.F.R. § 710.11(d)(2). The types of structures and facilities eligible for this exemption are not specified.

30. Id. The deadline for submission of an engineering plan has been administratively extended indefinitely.

31. 30 C.F.R. § 715.13(a).

32. 30 C.F.R. § 715.13(b).

33. 30 C.F.R. § 715.13(d).

34. 30 C.F.R. § 715.13(d)(1).

35. 30 C.F.R. § 715.13(d)(2).

36. 30 C.F.R. § 715.13(d)(3).

37. 30 C.F.R. § 715.13(d)(4).

38. 30 C.F.R. § 715.13(d)(5).

39. 30 C.F.R. § 715.13(d)(6).

40. 30 C.F.R. § 715.13(d)(7).

41. 30 C.F.R. § 715.13(d)(8).

42. 30 C.F.R. § 715.13(d)(9).

43. 30 C.F.R. § 715.13(d)(10).

44. Pub. L. No. 95-87, §§ 515(b)(3), 701(2), 30 U.S.C. §§ 1265(b)(3), 1291(2). ELR STAT. & REG. 42416, 42426.

45. 30 C.F.R. § 715.14.

46. 30 C.F.R. § 715.14(a)(1).

47. 30 C.F.R. § 715.14(b)(1).

48. 30 C.F.R. § 715.14(b)(2).

49. 30 C.F.R. § 715.14(d).

50. 30 C.F.R. § 715.14(g).

51. 30 C.F.R. § 715.14(h).

52. 30 C.F.R. § 715.14(i).

53. 30 C.F.R. § 715.14(k).

54. Environmental and Natural Resources Policy Division, Congressional Research Service, State Surface Mining Laws: A Survey, A Comparison with the Proposed Federal Legislation, and Background Information, Publication No. 95-25 (June 1977), at 15-19.

55. Pub. L. No. 95-87, § 515(b)(5), 30 U.S.C. § 1265(b)(5), ELR STAT. & REG. 42416.

56. 30 C.F.R. § 715.16(a).

57. 30 C.F.R. § 715.16.

58. Id.

59. 30 C.F.R. § 715.16(a)(2), (3).

60. 30 C.F.R. § 715.16(a)(4).

61. 30 C.F.R. § 715.16(b).

62. 30 C.F.R. § 715.20(g).

63. 30 C.F.R. § 715.16(c).

64. See 42 Fed. Reg. 21380-90 (Apr. 26, 1977).

65. EPA's regulations are not applicable after a surface-mined area has been regraded. See 42 Fed. Reg. 21384 (Apr. 26, 1977). In this respect, the Department of the Interior's regulations are stronger.

66. 30 C.F.R. § 715.17(a).

67. See 42 Fed. Reg. 21384-86 (Apr. 26, 1977).

68. 30 C.F.R. § 715.17(a).

69. 42 Fed. Reg. 62650 (Dec. 13, 1977).

70. 30 C.F.R. § 715.17(a)(1). This exemption is narrower than EPA's comparable provision, which exempts all overflows and bypasses of a structure designed, constructed, and maintained to control the runoff from a 10-year, 24-hour precipitation event, whether or not the overflow or bypass results from such a catastrophic precipitation event. EPA's emphasis is on the proper design and maintenance of the control structure, whereas the Department of the Interior's emphasis is on the magnitude of the precipitation event. See 42 Fed. Reg. 21385-86 (Apr. 26, 1977).

71. 42 Fed. Reg. 62650 (Dec. 13, 1977). Section 713(a) of the Act authorizes the President to "insure the coordination of regulatory and inspection activities" of various agencies, including those assigned responsibilities under the Surface Mining Act and the Federal Water Pollution Control Act. The President may execute this authority by executive order or by any other mechanism he determines to be appropriate.

72. 30 C.F.R. § 715.17(b)(1).

73. 30 C.F.R. § 715.17(b)(1)(v).

74. 30 C.F.R. § 715.17(b)(2).

75. For an analysis of the problems caused by blasting at surface mine sites, see Center for Science in the Public Interest, Strip Mine Blasting: A Study of Vibrational Pollution in the Eastern and Midwestern Coalfields (1977).

76. 30 C.F.R. § 715.19(a)(2).

77. 30 C.F.R. § 715.19(a)(3).

78. 30 C.F.R. § 715.19(b).

79. 30 C.F.R. § 715.19(c).

80. 30 C.F.R. § 715.19(d).

81. 30 C.F.R. § 715.19(e)(1)(i).

82. 30 C.F.R. § 715.19(e)(1)(ii).

83. 30 C.F.R. § 715.19(e)(1)(vi).

84. 30 C.F.R. § 715.19(e)(1)(vii).

85. 30 C.F.R. § 715.19(e)(2)(ii). An equation for determining when this limit is exceeded is found in 30 C.F.R. § 715.19(e)(2)(iv)-(v). Where the equation is not used, 30 C.F.R. § 715.19(e)(3) requires a seismograph record for each short.

86. 30 C.F.R. § 715.19(e)(4).

87. 30 C.F.R. § 715.17(d).

88. 30 C.F.R. § 715.17(d)(2).

89. 30 C.F.R. § 715.17(d)(3).

90. 30 C.F.R. § 715.17(e). Credit is allowed for diversion of overland flow away from disturbed areas, and similar sediment control measures.

91. 30 C.F.R. § 715.17(e)(1).

92. 30 C.F.R. § 715.17(e)(2).

93. 30 C.F.R. § 715.17(e)(3).

94. 30 C.F.R. § 715.17(e)(4).

95. 30 C.F.R. § 715.17(e)(5).

96. 30 C.F.R. § 715.17(e)(6).

97. 30 C.F.R. § 715.17(e)(7).

98. 30 C.F.R. § 715.17(e)(8).

99. 30 C.F.R. § 715.17(e)(9).

100. The chief criticism of the sedimentation pond regulations is that they are too strict.Industry spokesmen charge that the ponds will be difficult to build in winter, that other methods of sediment control are more effective, and that design specifications required by the regulations are impracticable in Appalachia. Oversight Hearings, supra n. 5 (Jan. 20, 1978) (statement of Buddy Beach, Manager of Environmental Department, Consolidation Coal Co.).

101. 30 C.F.R. § 715.14(j)(1).

102. 30 C.F.R. § 715.17(g)(3).

103. 30 C.F.R. § 715.17(g)(4).

104. 30 C.F.R. § 715.14(j)(2).

105. 30 C.F.R. § 715.17(g)(2).

106. 30 C.F.R. § 715.17(g)(5).

107. 30 C.F.R. § 715.17(a)(2).

108. 30 C.F.R. § 715.17(h)(1).

109. 30 .F.R. § 715.17(h)(2).

110. 30 C.F.R. § 715.17(h)(3).

111. 30 C.F.R. § 715.17(i).

112. 30 C.F.R. § 715.17(k).

113. 30 C.F.R. § 715.12(b).

114. 30 C.F.R. § 715.12(c).

115. 30 C.F.R. § 715.12(d), 715.17(d)(3).

116. 30 C.F.R. § 715.12(e).

117. 30 C.F.R. § 715.12(f).

118. 30 C.F.R. § 715.17(l)(1).

119. 30 C.F.R. § 715.17(l)(2)(i).

120. Id.

121. 30 C.F.R. § 715.17(l)(2)(ii).

122. 30 C.F.R. § 715.17(l)(2)(iii).

123. 30 C.F.R. § 715.17(l)(2)(iv).

124. 30 C.F.R. § 715.17(l)(3).

125. 30 C.F.R. § 715.15(a).

126. 30 C.F.R. § 715.15(a)(3).

127. 30 C.F.R. § 715.15(a)(2).

128. 30 C.F.R. § 715.15(a)(6).

129. 30 C.F.R. § 715.15(a)(9).

130. 30 C.F.R. § 715.15(b).

131. 30 C.F.R. § 715.15(b)(6).

132. 30 C.F.R. § 715.15(b)(8), (9).

133. 30 C.F.R. § 715.15(b)(5), (11).

134. 30 C.F.R. § 715.20(a)(2).

135. 30 C.F.R. § 715.20(a)(2).

136. 30 C.F.R. § 715.20(b).

137. 30 C.F.R. § 715.20(c).

138. Id.

139. 30 C.F.R. § 715.20(d).

140. 30 C.F.R. § 715.20(e)(1).

141. 30 C.F.R. § 715.20(f)(1).

142. Id.

143. 30 C.F.R. § 715.20(f)(2).

144. Pub. L. No. 95-87, § 515(b)(13), (f), 30 U.S.C. § 1265(b)(3), (f), ELR STAT. & REG. 42417, 42418.

145. 30 C.F.R. § 715.18(b)(2).

146. 30 C.F.R. § 715.18(b)(3).

147. 30 C.F.R. § 715.18(b)(3)(viii).

148. 30 C.F.R. § 715.18(b)(4).

149. 30 C.F.R. § 715.18(b)(6).

150. 30 C.F.R. § 715.18(b)(8).

151. 30 C.F.R. § 716.2(a).

152. Id.

153. 30 C.F.R. § 716.2(a)(1).

154. 30 C.F.R. § 716.2(a)(2).

155. 30 C.F.R. § 716.2(a)(4).

156. 30 C.F.R. § 716.3(a).

157. Id. See notes 33-42 supra and accompanying text.

158. 30 C.F.R. § 716.3(b).

159. 30 C.F.R. § 716.3(b)(1).

160. 30 C.F.R. § 716.3(b)(2).

161. 30 C.F.R. § 716.3(b)(3).

162. 30 C.F.R. § 716.3(b)(5).

163. 30 C.F.R. § 716.3(c)(1).

164. 30 C.F.R. § 716.3(c)(2).

165. 30 C.F.R. § 715.17(j)(3)(i).

166. 30 C.F.R. § 715.17(j)(2).

167. 30 C.F.R. § 715.17(j)(2), (3)(ii).

168. 30 C.F.R. § 715.17(j)(4), (5).

169. 30 C.F.R. § 716.7(a)(1).

170. 30 C.F.R. § 716.7(b). These criteria were proposed by the Secretary of Agriculture at 42 Fed. Reg. 42359-61 (Aug. 23, 1977).

171. 30 C.F.R. § 716.7(c).

172. Id.

173. 30 C.F.R. § 716.7(a)(2).

174. 30 C.F.R. § 716.7(a)(1).

175. 30 C.F.R. § 716.7(e).

176. 30 C.F.R. § 716.7(f)(2).

177. 30 C.F.R. § 716.7(f)(1).

178. 30 C.F.R. § 717.11(a).

179. 30 C.F.R. § 717.11(a)(1).

180. Id.

181. 30 C.F.R. § 717.11(a)(2).

182. 30 C.F.R. § 717.11(a)(3).

183. 30 C.F.R. § 717.12(b).

184. 30 C.F.R. § 717.14(a).

185. 30 C.F.R. § 717.14(b).

186. 30 C.F.R. § 717.14(c).

187. 30 C.F.R. § 717.14(d).

188. 30 C.F.R. § 717.14(e).

189. 30 C.F.R. § 717.14(f).

190. 30 C.F.R. § 717.17(a).

191. 30 C.F.R. § 717.17(b).

192. 30 C.F.R. § 717.17(d).

193. 30 C.F.R. § 717.17(e).

194. 30 C.F.R. § 717.17(g).

195. 30 C.F.R. § 717.17(h), (i).

196. 30 C.F.R. § 717.17(j).

197. Pub. L. No. 95-87, § 516(a), 30 U.S.C. § 1266(a), ELR STAT. & REG. 42419.

198. 30 C.F.R. § 720.11.

199. 30 C.F.R. § 720.12(a).

200. 30 C.F.R. § 720.13(a).

201. 30 C.F.R. § 720.13(b).

202. 30 C.F.R. § 721.11(a).

203. 30 C.F.R. § 721.11(b).

204. 30 C.F.R. § 721.11(c).

205. 30 C.F.R. § 721.12. A case raising the issue of whether a similar warrantless regulatory search provision is constitutional is currently pending before the Supreme Court. Marshall v. Barlow's, Inc., No. 76-1143, prob. juris. noted., 45 U.S.L.W. 3690 (Apr. 18, 1977).

206. 30 C.F.R. § 721.13(a)(1).

207. Id.

208. 30 C.F.R. § 721.13(a)(2).

209. 30 C.F.R. § 721.13(b)(1).

210. 30 C.F.R. § 721.13(b)(2).

211. 30 C.F.R. § 721.13(c).

212. 30 C.F.R. § 721.13(d).

213. The term "imminent danger to the health and safety of the public" is defined in § 700.5.

214. The term "significant, imminent environmental harm to land, air or water resources" is defined in § 700.5.

215. 30 C.F.R. § 722.11(a), (b).

216. 30 C.F.R. § 722.11(c).

217. 30 C.F.R. § 722.11(d).

218. 30 C.F.R. § 722.11(e).

219. 30 C.F.R. § 722.11(f).

220. 30 C.F.R. § 722.12(a).

221. 30 C.F.R. § 722.12(c).

222. 30 C.F.R. § 722.12(b).

223. 30 C.F.R. § 722.12(d).

224. 30 C.F.R. § 722.13.

225. 30 C.F.R. § 722.14.

226. Id.

227. 30 C.F.R. § 722.15(a).

228. 30 C.F.R. § 722.15(c).

229. 30 C.F.R. § 722.15(d).

230. 30 C.F.R. § 722.15(e).

231. 30 C.F.R. § 722.17.

232. 30 C.F.R. § 722.15(a).

233. 42 Fed. Reg. 62668 (Dec. 13, 1977).

234. A request for informal review at a minesite hearing does not affect the 30-day period for filing a request for formal review. 30 C.F.R. § 722.15(f).

235. Pub. L. No. 95-87, § 525(a)(1), 30 U.S.C. § 1275(a)(1), ELR STAT. & REG. 42423. The Interior Department is expected to promulgate detailed regulations governing formal administration hearings under the Surface Mining Act in early 1978.

236. Id. § 525(b), (c).

237. This term is defined in 30 C.F.R. § 722.16(b)(3).

238. This term is defined in 30 C.F.R. § 722.16(b)(4).

239. 30 C.F.R. § 722.16(c)(2).

240. 30 C.F.R. § 722.16(c)(3). If the OSM Director finds that a show cause order "would not further enforcement," he is not required to issue the order.

241. 30 C.F.R. § 722.16(d)(1).

242. 30 C.F.R. § 722.16(d)(2).

243. 30 C.F.R. § 723.11(b).

244. 30 C.F.R. § 723.11(c).

245. 30 C.F.R. § 723.12(a).

246. 30 C.F.R. § 723.12(b).

247. 30 C.F.R. § 723.12(c).

248. 30 C.F.R. § 723.12(d).

249. 30 C.F.R. § 723.12(e).

250. 30 C.F.R. § 723.15 provides that the OSM Director may waive the use of the formula of § 723.13, either on his own initiative or at the request of the permittee, if he determines that "a waiver will further abatement of violations." A grant or denial of the waiver may be reversed by the Office of Hearings and Appeals if it finds that the Director has abused his discretion.

251. 30 C.F.R. § 723.12(a).

252. 30 C.F.R. § 723.14(b). 30 C.F.R. § 723.14 contains guidelines to help OSM decide when to follow this procedure.

253. 30 C.F.R. § 723.16(a).

254. 30 C.F.R. § 723.16(b).

255. 30 C.F.R. § 723.17(a).

256. 30 C.F.R. § 723.17(c).

257. 30 C.F.R. § 723.18(b).

258. 30 C.F.R. § 723.17(a).

259. 30 C.F.R. § 723.17(c).

260. 30 C.F.R. § 723.17(b).

261. 30 C.F.R. § 723.17(e).

262. 30 C.F.R. § 723.17(d).

263. 30 C.F.R. § 723.18(a).

264. 30 C.F.R. § 723.18(b).

265. 30 C.F.R. § 723.18(c).

266. Pub. L. No. 95-87, § 518(f), 30 U.S.C. § 1268(f), ELR STAT. & REG. 42420.

267. Id. § 518(d).

268. Id. § 518(e).

269. Id. § 518(f).

270. Id. § 518(g).

271. Id. § 521(c), 30 U.S.C. § 1271, ELR STAT. & REG. 42422.

272. Id. § 526(a)(2), 30 U.S.C. § 1276(a)(2), ELR STAT. & REG. 42424.

273. Id. § 526(b).

274. Id.

275. Id. § 520(a), (c)(1), 30 U.S.C. § 1270(a), (c)(1), ELR STAT. & REG. 42421.

276. Id. § 520(a).

277. Id. § 520(b)(1)(A). However, § 520(b)(2) of the Act allows a suit to be filed against the Secretary immediately after notification where the alleged violation constitutes an imminent threat to the citizen's health or safety or would immediately affect a legal interest of the citizen.

278. Id. § 520(b)(1)(B).

279. Id. § 520(d).

280. Amherst Coal Co. et al. v. Andrus, Civ. No. 77-2637, ELR PEND. LIT. 65531 (S.D. W. Va., filed Dec. 13, 1977).

281. See, e.g., Amherst Coal Co. v. Andrus, No. 78-0178 (D.D.C., filed Jan. 31, 1978); National Coal Ass'n v. Andrus, No. 78-0183 (D.D.C., filed Jan. 31, 1978). Section 526(a)(1) of the Act provides that the regulations "shall be subject to judicial review in the United States District Court for the District of Columbia."

8 ELR 50001 | Environmental Law Reporter | copyright © 1978 | All rights reserved