A BRIEF REVIEW OF SMCRA The Surface Mining Reclamation and Control Act (SMCRA) establishes minimum federal standards for the regulation of coal mining. Using the federal standards as a guide, each state where there is (or may be) surface coal mining may propose a state regulatory program to control mining. SMCRA requires the Secretary of the Interior to approve any state program that meets or exceeds the federal standards. This procedure allows individual states to gain primary control over the regulation of surface mining.
The federal government must establish its own program for any state that fails to submit a program, or that submits an inadequate program. All of the major coal states have received federal approval of their state programs. However, a federal program was implemented in Tennessee when citizen groups uncovered serious problems with the state's administration of surface mining controls. Today, Tennessee remains the only significant coal mining state with a federal program.
SMCRA requires that each state program contain certain performance standards with which all operators must comply. These performance standards set levels of environmental damage that are deemed unacceptable and in some cases, they actually tell the operator how a mining operation must be conducted to protect the environment. SMCRA also requires each state to adopt certain provisions to govern permitting and bonding, inspection and enforcement, and to establish procedures for designating certain lands unsuitable for mining. This chapter provides an overview of the basic requirements established by SMCRA in each of these areas. Later chapters of the handbook contain more detailed discussions of the statute.
Scope of the Act
SMCRA covers all surface coal mining operations in the United States as well as the surface effects of underground coal mining. In addition, SMCRA covers coal preparation and processing facilities, coal waste piles, and those coal-loading facilities that are located at or near a mine site. The only exceptions to the Act's coverage are for: (1) operators who produce less than 250 tons of coal per year; (2) operations that extract coal solely for a landowner's personal (noncommercial) use; (3) operations that extract coal secondarily to the extraction of other minerals (the coal may not exceed 16.6 percent of the total minerals removed); and (4) operations in which the extraction of coal is incidental to government-financed construction.
Permitting and Bonding
SMCRA requires that all operators obtain a valid permit from the state regulatory authority in order to mine. To obtain a permit, an operator must submit extremely detailed information. For example, the operator must describe the characteristics of the affected land and its ecology; the operator's legal status, financial situation, and past history of complying with the law; and plans for the proposed mining and reclamation operations. Based on the information submitted, an operator must show that he can meet all the requirements of SMCRA and can successfully reclaim the land in compliance with the standards of the Act and its implementing regulations. An operator may also need to obtain additional permits under other laws, such as the Clean Water Act. The permitting process is described in detail in Chapter 5.
The operator also must obtain adequate bonding and insurance. Bonding is intended to ensure that sufficient money will be available to the regulatory authority to pay for the reclamation of the affected land, if the permittee fails to live up to the terms of the permit. The operator's insurance must be sufficient to cover any personal injuries and property damage that may result from the operation.
Performance Standards
SMCRA requires the operator to restore the affected land to a condition capable of supporting the uses it could support before mining, or to “higher or better uses.”[1] The operator must also:
If a site's annual rainfall exceeds 26 inches, the operator must ensure that the land remains successfully revegetated for five years after all seeding, fertilizing, and irrigation has ended. If the annual precipitation is less than 26 inches, the operator is responsible for successful revegetation for 10 years. Some 15 other performance standards apply to all surface mines. For example, standards are established for blasting, for wildlife protection, for road construction and maintenance, and for disposal of excess spoil material. In addition, special performance standards apply to particularly vulnerable areas — alluvial valley floors in the West, prime farmland (most commonly found in the coalfields of the Midwest), and steep slope areas (which dominate Appalachia). Performance standards are described in detail in Chapter 6.
Inspection and Enforcement
A mine must also comply with all permit conditions and provisions of the approved state regulatory program, and SMCRA generally allows state standards to be more stringent than federal standards.[2] Moreover, a mine operator may not conduct operations in a manner that would pose an imminent hazard to public health and safety or to the environment, even if no other violation of the law results.
To help ensure compliance with the law, SMCRA requires at least one complete, on-site inspection per quarter and one partial inspection per month without advance notice to the operator. Partial inspections may include aerial surveys, so long as they are conducted in such manner that violations can be detected. SMCRA also provides for special inspections when citizens complain about hazards or violations at a particular mine. When an inspector detects a violation, SMCRA requires the inspector to take enforcement action. Moreover, the inspectors are vested with full legal authority to shut down a mining operation where violations pose an imminent threat to the public or a significant, imminent threat to the environment.[3] If the violation does not cause imminent danger to the health or safety of the public, or significant imminent environmental harm, the inspector must, by law, issue a notice of violation (NOV).[4] If the violation is not abated within the time established by the inspector, the inspector must issue a cessation order (CO) and impose whatever affirmative obligations are necessary to remedy the violation.[5] Corporate officers or agents may be assessed civil penalties (or face criminal prosecution) for willfully and knowingly failing to halt violations of SMCRA. Finally, no permit may be issued for any operation that is owned or controlled by any person, corporation, or other entity with outstanding violations of SMCRA. The federal government maintains a computer data base of outstanding violations, and citizens can ask the government to check this data base when questions arise about individual operators. In states with approved programs, the federal Office of Surface Mining (OSM) must conduct a sufficient number of oversight inspections to ensure that the state is doing its job. OSM does not have authority to take enforcement action during these inspections — but if staff note violations during oversight inspections, or if the office otherwise has reason to believe that violations have occurred — OSM must notify the state. If the state fails to act within 10 days from the date it receives notice of a violation, OSM is obligated to reinspect and take enforcement action. The inspection and enforcement provisions of SMCRA are discussed in more detail in Chapter 6.
Designating Lands Unsuitable for Mining
When Congress enacted SMCRA, it decided that coal mining should be banned completely on certain lands. Thus, the law flatly prohibits mining on lands where reclamation under the Act's standards is not technologically or economically possible,[6] and on certain categories of federal land, including lands within the National Park System, the Wild and Scenic Rivers System, and the National System of Trails. Mining is also prohibited within 300 feet of occupied homes, churches, public buildings, and public parks — and within 100 feet of cemeteries or public roads.[7] (Public roads, however, may be relocated after notice and an opportunity for a public hearing.) Finally, mining is prohibited whenever it will adversely affect a publicly-owned park or place included on the National Register of Historic Sites, unless the agency having jurisdiction over the park or site approves the proposed mining operation. The only exception to these prohibitions is for valid existing rights (VER).[8] The VER exception was established to protect private property rights against infringements by the government that would otherwise be considered unconstitutional. (See box.) At a minimum, it seems clear that a party cannot invoke the mining prohibitions contained in the statute if, for example, the home, road or park was built after the mining operation was approved. VALID EXISTING RIGHTS (VER) Under the Fifth Amendment to the United States Constitution, the government may not take private property for a public use without paying the owner of that property "just compensation."[9] Over the years, the Supreme Court has held that a "taking" under the Fifth Amendment includes not only physical invasions of private property, but also regulations that are so onerous that they substantially diminish the value of the property. Although the development of the law in this area is murky, not all regulations that adversely affect property values result in a declaration that private property has been taken. In some circumstances, for example when the government adopts regulations to prevent activities that may harm society at large, regulations have been upheld, even where they dramatically reduce property values. In prohibiting mining on certain lands, Congress was aware of these constitutional issues and sought to avoid the takings problem by declaring that enforcement of the prohibitions would be subject to "valid existing rights" (VER). In other words, the prohibitions simply don’t apply to someone who has VER. On several occasions, the Office of Surface Mining has tried to offer guidance as to what constitutes VER but these efforts have long been mired in controversy and litigation. In January, 2008, however, the Federal Court of Appeals for the D.C. Circuit, which is charged under SMCRA with reviewing rules that are national in scope, issued a decision[10] upholding an Interior Department interpretive rule requiring an operator claiming VER to: (1) produce a legal document vesting him with right to mine the land at the time it became subject to SMCRA and (2) prove either that the landowner at that time had made a good faith effort to obtain all necessary mining permits or that the coal was immediately adjacent to – and necessary to ensure economic viability of – a surface mining operation existing at SMCRA's enactment. While this decision appears to resolve the issue for now, citizens should recognize that the VER concept is inherently ambiguous and will likely remain the subject of future litigation and administrative review.
SMCRA also gives the states discretionary authority to designate certain other lands as unsuitable for mining. These include lands where surface mining:
Later chapters of the handbook flesh out this brief overview of SMCRA. The next chapter reviews the rights of citizens to participate in the implementation and enforcement of the Act, both at the state and the federal levels.
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