How SMCRA Enforcement Works

Inspections

    SMCRA requires regular inspections of every “inspectable unit”, which includes mine sites as well as coal processing facilities and loading facilities that are located near the mine site.   Inspections must generally occur without prior notice to the coal operator, and must average at least once each month.  Complete, on-site inspections must occur at least quarterly, but the other, “partial” inspections can be conducted by aerial surveillance.[3]

Citizen Complaints and the Right to Accompany an Inspector on the Mine Site:  In addition to the regular inspection program, if OSM has any reason to believe that a violation of SMCRA exists, including because of a written complaint[4] by a private citizen, then OSM must notify the relevant state agency, if there is one.  If no state agency exists, or if the state fails to take appropriate action to correct the violation within 10 days, then OSM must immediately conduct its own inspection and take appropriate action to cause the violation to be corrected.  When an inspection by a state or federal agency occurs as a result of a citizen complaint, the complaining party or a representative is allowed to accompany the inspector on the mine site during the inspection.[5]  If the complaining party chooses not to accompany the inspector then OSM must maintain their confidentiality.[6] Bear in mind that because states with approved SMCRA programs are required to have laws that are consistent with SMCRA, they must have similar provisions allowing complaining parties to either accompany the inspector on the mine site, or have their names kept confidential. 

Enforcement Tools

Notice of Violation (NOV):  SMCRA imposes mandatory enforcement requirements on government inspectors.  Under SMCRA, whenever an inspector determines that any permittee is in violation of the law, the inspector “shall issue a notice to the permittee … of the violation.”[7]  Thus, the law provides that when an inspector sees a violation the inspector must cite the operator for it.  Not surprisingly, inspectors are sometimes reluctant to cite an operator, especially for minor or technical violations that can be corrected quickly, often while the inspector is still on the mine site.  Use discretion in deciding how far to push this mandatory enforcement obligation.  It is especially important that this obligation be preserved for more serious violations of the law. 

    An NOV must be in writing and must include a time period to abate the violation, which may not exceed 90 days.  An extension of time to abate the violation may be granted for good cause, but the total abatement period may not exceed 90 days except in narrow circumstances.[8]  If the operator fails to abate the violation within the period authorized under the NOV then the inspector must “immediately order a cessation” of that portion of the mining relevant to the violation.[9]  This is sometimes referred to as a “failure to abate cessation order.”  SMCRA provides that a civil penalty may be assessed within 30 days from the issuance of any NOV.[10]   A “failure to abate cessation order” requires the imposition of a minimum penalty of $750 per day for each day the violation continues.[11]  Under the federal rules, penalty assessments are based upon a point system that takes into account the statutory standards for penalties, which include the operator’s history of past violations, the seriousness of the violation, any risk to public health and safety, the operator’s negligence, and the operator’s good faith in achieving rapid compliance.[12]   The operator is entitled to a hearing before an administrative law judge on the issue of whether a violation occurred and/or on the amount of the proposed penalty.[13]  These are “public” hearings.  This means that private citizens can attend the hearings and can ask to participate as a party if they are directly impacted by the alleged violation and they would like to offer evidence relevant to the case.

Cessation Order (CO):  In addition to the “failure to abate cessation order”, an inspector must issue a CO whenever the inspector finds “a condition, practice, or violation” at a mine site that “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….”[14]  This order requires a cessation of that portion of the mining operation causing the imminent harm.  Cessation orders require the imposition of a civil penalty.[15]  Keep in mind that the statute covers any condition or practice causing imminent harm, even if you can’t show a violation of SMCRA.

Show Cause Orders:  If OSM or the relevant state agency determines that a pattern of violations exists at a particular mine site, and that such violations result from an unwarranted failure on the part of the operator to comply with SMCRA, or that the violations are deliberate, then the agency must issue an order to show cause why the operator’s permit should not be revoked.[16]  The operator may request a public hearing, but if the operator fails to offer a good explanation for the unwarranted pattern of violations then the agency must suspend or revoke the permit.

CITIZEN PARTICIPATION IN INSPECTIONS

    If you continue to have problems and the state and federal agencies refuse to order an appropriate remedy to address the problems, prepare yourself for further action. First, educate yourself about the mine. Review the mine's permit. The permit contains maps for the entire mining operation as well as for the area permitted for mining at that particular time. Examine the appropriate maps to learn the basic layout of the mine. Note the location of sedimentation ponds and other water impoundments, stockpiles of topsoil and fill areas.

    You might want to take a look between the map as it now exists and the one that you were shown prior to permitting. (These maps are large. You may be charged to reproduce these maps; color maps are much more expensive than black and white ones.)

    If you notice any inconsistencies between the features on the maps and the operation as conducted on the ground, ask about them. Then try to answer the following questions about the mine.

• What type of mine is it — contour, area, mountaintop, open pit, or underground?
• What kind of equipment is being used for each phase of the mining operation?
• Is the operator using any special method to dispose of the spoil? Is he disposing of spoil outside of the mine workings? If so, is the spoil disposal area classified as a valley fill?
• Is the mine operating under any variations from normal perform­ance standards established for mining operations by the federal or state rules? The most common variances are the stream buffer zone variance and the approximate original contour (AOC) variance.  A buffer zone variance allows the operator to dump spoil within 100 feet of a stream.[19]  An AOC variance allows the operator to avoid restoring the mined-out areas to the slope that the mountain originally had before mining.  On what authority were such variances approved?
• Are there any streams running through the mine? If so, does the permit authorize the operator to mine through them? Are additional permits required under Clean Water Act § 404 (for the placement of dredged or fill material in streams) or § 402 (for the discharge of point-source pollutants)? (See “Additional Permitting Requirements Under the Clean Water Act” in Chapter 5.) How is the water from the stream system being diverted? Ask to review the NPDES permits.[20]
• Have state water effluent limitations been met? 
• Have any strata (layers) of overburden been identified as toxic-forming, acid-forming or combustible? How deep are these layers below the surface? How thick are they? What is the operator's plan for keeping these materials from contaminating the soil, any surface waters, or the groundwater?
• Is the operator separating and stockpiling the topsoil?[21] If not, why not?  Some operators apply for permission from the state agency to use a commercial topsoil substitute instead of saving and re-using the original topsoil.  Ask to see the operator’s permit to use a topsoil substitute. 
• Has the operator been monitoring for pollutants in the ground and surface water?[22] Is the monitoring program adequate? Are the monitoring wells in the appropriate location for the purpose of identifying possible violations of water quality standards or permits? What are the results of that monitoring? (You may want to read the operator's monitoring reports.)
• Has the operator identified all existing wells within or near the mining area? This must be done prior to issuance of the permit.  Frequently, wells and even homes are left off the mining maps. Has the operator dug new wells? Is the operator monitoring the quantity and/or quality of water in those wells? [23]
• Are explosives being used? If so, what are the blasting procedures? [24] 
• Were pre-blast surveys done for all homes in the area that requested them? Federal rules require the operator to notify all residents within a half-mile of the permit boundary of their right to request a pre-blast survey 30 days prior to blasting.[25] 

KEEP COMPLETE AND ACCURATE RECORDS

Controlling Water Pollution 

Toxic Drainage. Toxic drainage (including iron contamination) is often controlled by simply keeping the toxic-forming materials away from contact with air and water. For this to be accomplished, the permit application should have identified all toxic materials within the overbur­den or in the stratum immediately below the coal seam.[26] These materials should then be handled and buried in such a way that they will not come into contact with water and air.[27] If toxic drainage is occurring, you should expect that either the reclamation plan was inadequate or that the operator is not following the plan.  Rain that falls on pyrites or other acidic materials can liberate metals from overburden that should never have been exposed.  This could lead to a violation of SMCRA's performance standards or a Clean Water Act permit, and if so, the operator should be cited by an inspector.[28] In order to remedy the violation, the regulatory agency should require the operator to amend his reclamation plan or alter the method of handling the toxic material. In addition, although this should not be viewed as a long-term solution, the operator should be required to treat any water body contaminated by the toxic drainage.[29] If toxic drainage continues, additional violations should be cited.

Sediment control. The operator must have sediment control devices to "prevent additional contributions of sediment to stream-flow or to run-off outside the permit areas to the extent possible using the best technology currently available."[30] There are several clues you can look for to determine if the operator is complying with this provision. The primary sediment control device is usually one or more sedimentation ponds. (These are also called siltation structures.) A sedimentation pond is a structure designed to collect surface runoff from a mine site and hold the collected water long enough for the sediment to settle to the bottom of the pond. Compliance with the sediment control standards can be checked by reviewing the following aspects of a mining operation:

• Sedimentation ponds must meet certain technical size require­ments. Check your state regulations to see if the ponds comply.[31] If no pond exists, find out why not. (Some extremely small opera­tions can obtain exemptions from this requirement.)
• Generally, ponds should not be located in intermittent or perennial streams (streams that flow most of the year). In some cases, however, especially in Appalachia, operators receive permits to construct ponds in stream beds even though such ponds may be illegal under the Clean Water Act. The operator must obtain specific approval from the regulatory agency to locate the pond in a perennial stream. If the operator claims to have been granted the right to place a pond in the stream, ask to see the permit provision authorizing it and try to determine whether the operator is meeting all of the conditions in the permit approval, including any effluent limits established for discharges from the pond.
• Check the pond for its capacity to hold additional sediment. If too much sediment is allowed to build up, water flowing in will not drop its pollutants, but carry them into the receiving stream. Do you see "islands" of sediment under the surface of the pond? If so, a violation may exist.
• Note whether the sides of the pond have been graded, vegetated and stabilized to prevent slides or excessive sediment contribu­tions. Bare or eroded banks may contribute additional sediment to the pond and reduce its ability to handle sediment from the mine.
• Locate the dam that holds water in the pond. Is the water flowing over the top of it? If not, can you see indications that water has been flowing over the top of it?  Are there any breaches or cracks in the walls of the impoundment?
• Look for puddles of water below the dam which would indicate that water is either seeping through the dam or has been flowing over the top. If no standing water is evident, check for large deposits of silt or clay which would indicate that water was once standing in that spot.
• Locate the two spots where water flows into and out of the pond. If these two places are in a straight line, a violation may exist, since the water might simply flow from intake to discharge without standing long enough to settle out pollutants.
• Look at the pipe through which water is discharged from the settling pond. Is there any evidence of water seeping out around the pipe? Is the soil around the pipe badly eroded? In either case, the pipe may be functioning improperly and a violation may exist. If there’s a discharge pipe, the operator needs an NPDES permit, which is a permit from the state to discharge substances into a waterbody.[32] There are different standards for different substances. The outflow must be tested regularly.  The water in the stream below the discharge pipe must meet ambient water quality standards.[33]  Also check anti-degradation standards for your state to see if variations are allowed.
• If water is draining from the pipe, does it appear to be clear? If not, the pond is probably not functioning properly, and a violation may exist. (If you are visiting the site on a citizen complaint inspection, be sure that the inspector takes a water sample at any place where you suspect a violation, including the discharge pipe.)  A total dissolved solids tests should also be performed if it appears that too much sediment is in the receiving stream or exiting the pond before it reaches the stream.
• Look for emergency spillways. These spillways will resemble ditches or concrete drains and are designed to carry water away if the pond is in danger of overflowing. The ditches themselves should be clear and unobstructed, but there should be vegetation on the sides to control erosion.  All sediment ponds must be designed by a registered engineer and must withstand a 10-year, 24-hour precipitation event.[34] Certain types of larger impoundments must satisfy additional requirements set out in the regulations.[35]  You will probably need to consult with an engineer to determine whether problems exist with a large impoundment.
• Is all the water that runs off the mine going into settling ponds?  Or can you see drainage channels that do not lead to settling ponds?  If so, a violation probably exists.
• Are there control devices (such as a rock-lined channel) where the water is discharged from the pond to prevent erosion and enlarge­ment of stream channels? These devices are required where necessary.

    Other devices may be used at various points on the mine site to control sediment — such things as straw barriers, riprap, vegetative sediment filters (strips of grass or other erosion-resisting vegetation used to prevent sediment from leaving the mine site), dug-out ponds, and sediment traps (small, temporary basins formed by excavation and/or enlargement to interrupt sediment and water runoff). The state regulatory agency can tell you whether the mine you are monitoring is required to have any of these devices and if so, where they should be located. Keep in mind, however, that the operator is required by SMCRA to use the "best technology currently available" to control sediment runoff.[36] If you suspect that the technology employed is not the best available, be sure to ask the regulatory authority about it.

    Another problem with sediment ponds is temperature.  Water that is held in place increases in temperature.  An operator must not damage aquatic life by releasing warm water from a sediment pond, especially when the receiving stream is a coldwater fishery or wild trout stream.  The operator’s NPDES permit should include effluent limitations for temperature.[37]

Controlling Impacts on Water Quantity

Impacts on Groundwater

    Groundwater lies below the surface of the land in zones called aquifers. Water is held in the aquifer by strata or a bed of material (often called a confining bed) that is relatively impervious to water. Mining can affect aquifers in at least three ways. First, a surface mine pit may intercept an aquifer, causing water to flow into the mine. This water must be pumped out of the mine and either into a surface stream or back onto the ground. If the water is being discharged into another waterbody or wetland area it probably needs an NPDES permit as described above.  Second, blasting can adversely affect aquifers by fracturing the rock strata below the aquifer and causing the water to migrate to lower strata. Finally, subsidence may damage aquifers above underground mine workings. The collapse of the strata above a mine fractures the confining bed and allows the water to migrate to lower depths. Such disruptions of the groundwater "regime" may reduce the natural pressure within the aquifer, thereby increasing pumping costs for persons who obtain water from the aquifer. Disruption from mining also may lower the water level within the aquifer, thereby reducing or depriv­ing some users of their supplies.

    In some areas, particularly in the Appalachian region where mountaintop removal is common, many aquifers are perched and shallow.  Mining through these areas will inevitably destroy these aquifers and make restoration of the hydrologic balance as required by SMCRA difficult or impossible to achieve.  Be sure that the state or federal officials take baseline data for all ground water wells in the vicinity before mining begins and that additional monitoring wells are drilled as needed to accurately determine the impacts from mining.  

Impacts on Surface Water

    Mining can affect surface water systems in much the same way that it affects groundwater aquifers. Blasting and subsidence can fracture the bed confining the stream in much the same way that it fractures the bed below an aquifer. Furthermore, surface and groundwater systems often are connected hydrologically, so that depletion of an aquifer can directly affect the quantity of water available in a stream. If mining is proposed below a surface stream, or in the vicinity of a stream, you should request that the flows of that stream be monitored so that the impacts from mining can be determined. Mountaintop removal mine operators often bury surface streams completely with “valley fills.” See the section “Controlling the Impacts of Excess Spoil Disposal” below for information on the laws governing valley fills. The headwater streams buried by valley fills are critically important because they contain unique aquatic life and provide organic nutrients to fish and other species downriver.[40]

The Need for Water Monitoring

    The best way to determine the impact of mining on groundwater supplies is through constant monitoring. As suggested in the previous chapter on permitting, you should attempt to obtain a wide range of data about your water resources before the application is approved. Other information on water resources may be available from the U.S. Geological Survey. Call or visit your local USGS office or visit the USGS website at www.usgs.gov and search for publications on water resources for your area.[41] 

Enforcing Water Standards Using the Clean Water Act

     Section 505 of the Clean Water Act (CWA)[42] authorizes citizens to file a lawsuit to enforce the Clean Water Act’s provisions.  Some important CWA provisions are described in Chapter 5 because they relate to permitting.  Operators must obtain permits, for example, if they intend to pollute or discharge waste into rivers or streams.  Therefore, a citizen could sue a coal operator under Section 505 for dumping coal slurry into a stream without a valid discharge permit (under either § 402 or § 404 of the Clean Water Act), or because the coal slurry contains pollutants like suspended solids that violate the effluent limits set forth in the NPDES permit.  If the agency issues a notice of violation and compliance order[43] against the operator and the operator continues dumping slurry, you can sue the coal operator for failing to comply with the agency’s order. 

    A citizen may sue any person or corporation (including any government agency) that is violating Clean Water Act standards or orders issued pursuant to the law by the EPA or the state.  Alternatively, a citizen may sue the EPA directly for failing to perform a mandatory act or duty under the Act.[44]  Before a citizen can file a lawsuit, she must notify the EPA or the state agency about the violation, and then wait 60 days to see if the EPA or state agency takes appropriate legal action to remedy the violation.  If the EPA or state agency initiates a lawsuit to enforce the effluent limit, you may not file a separate lawsuit but you may join the lawsuit initiated by the agency.[45] 

Controlling the Impacts of Excess Spoil Disposal

    Operators of mountaintop removal mines dispose of excess “overburden”—the material comprising the top of the mountain that is blasted to reach a coal seam—by placing it in “valley fills.” Valley fills are created by dumping the overburden into valleys adjacent to the mountaintop mine. [51]

    Before beginning to construct a fill, the operator must remove all vegetative material from the area — as well as remove all topsoil— and then segregate, store or redistribute the topsoil as required by law.[52]  But, since it is far easier to just dump everything into valley fills in one fell swoop, operators often end up using a “substitute topsoil,” consisting of overburden other than topsoil to revegetate the reclaimed mine site.  Substitute topsoil typically supports grasses but not trees, and it is only allowed when it is “equal to, or more suitable for sustaining vegetation than, the existing topsoil, and the resulting soil medium is the best available in the permit area to support revegetation.”[53] Furthermore, unless a special exemption is obtained, fills must be constructed in four-foot layers or "lifts" and compacted before a new layer is placed in the fill.[54]

    If you are able to monitor the construction of a fill, be sure that the operator has first removed and segregated the topsoil and is regularly compacting the spoil in the fill. Keep records of your observations and report potential problems to the regulatory authority immediately. Once the fill is constructed, it will be extremely difficult to prove that irregularities occurred during construction.

    Fills must be located in the most moderately sloping and naturally stable areas available, and where possible, must be placed above a natural berm or bench, if such placement will make the fill more stable.[55] If the fill area contains springs, the engineer must design a system of courses or wet weather seeps in order either to divert the water around the fill or provide a drainage system under the fill.[56] The drainage plans must be designed to prevent infiltration of water into the excess spoil material disposed of in the fill.[57] Drainage systems usually will be necessary for any head-of-hollow or valley fill, and they must be approved by the regulatory authority.[58] Operators often disregard the rules for creating fills completely and simply dump the overburden down the nearest valley. The resulting burial of valley streams is one of the greatest abuses in the modern coal-mining era. Burying a stream quite clearly violates the stream buffer zone rule,[59] which generally allows a variance from the 100’ buffer zone requirement around streams where no adverse impacts would result. In December, 2008, the Bush Administration promulgated rules that exempted excess spoil fills from the buffer zone restriction.[60] Shortly after taking office, however, the Obama administration announced its intention to rescind the 2008 Bush rules.

    Where the fill materials are comprised of at least 80 percent durable rocks (such as limestone or sandstone, but not shale), less stringent requirements are imposed on operators.[61] They still must have the fill certified and must control the drainage to keep water away from the fill.[62]

    For most fills, spoil material must be transported and placed in a controlled manner.[63] This generally means that the spoil will have to be trucked or moved by conveyor to the fill area. End-dumping of spoil is generally prohibited.[64] Where an operator is mining multiple seams, how­ever, the regulatory authority has discretion to approve excess spoil disposal by dumping spoil down chutes from a higher bench to a lower pre-existing bench.[65]

    Obviously, however, you would be better off preventing slides before they occur. The first step is to look for spoil on the downslope (the area below the bench in a contour mining operation). If you see spoil on the downslope, find out when it was placed there, and try to determine the angle of the slope. (See box.) If the spoil was dumped over the downslope after May 4, 1978, and the slope is steeper than 20 degrees, the operator has violated the law, and you need no further information before calling an inspector.[67]

    If the slope is less than 20 degrees (a rare find in the Appalachian Mountain coalfields) it may not be illegal to dump spoil on the downslope. Nonetheless, as noted above, the federal regulations require that the disposal area be located "on the most moderately sloping and naturally stable areas available."[68] If the operator has failed to comply with this requirement a violation exists.  Of course, the company may also be liable – whether or not they had the correct slope – if the disposal activities cause a landslide resulting in spoil leaving the mine site.   

    Strip mine operators use explosives to shatter the overburden. Poorly-controlled blasting can result in extensive property damage. Foundations crack, windows break, wells lose water, porches separate from homes, and boulders fly through roofs. SMCRA contains detailed provisions on the proper use of explosives, which can help you to protect your property against blasting damage. [70]

    Only persons trained and certified by the proper state agency may conduct blasting operations, [71] and blasting may take place only between sunrise and sunset.[72] The mine operator must publish a blasting schedule in the local newspaper 10 to 30 days before blasting begins, and copies of the schedule must be provided to all residents within a half mile of the blasting area.[73] The schedule should contain the operator’s contact information and identify the specific areas, dates, and time periods in which blasting will take place, as well as methods to be used to control access to the blasting area and types of audible warning signals to be used before blasting.[74] While mining continues, the operator must republish and redistribute his blasting schedule at least every 12 months.[75] If the blasting schedule is violated, you can call the state agency and ask an inspector to investigate.

    The size of each blast also is regulated. The operator must record information about each blast and must keep this information on file for three years.[76] Blasting records must be made available for public inspection on request.[77]

    You should become familiar with the operator's blasting plan. Record any blasting you see. It is a good idea to check the operator's records from time to time to see if they match yours.

    As noted in the discussion of the permitting process, if you live (or own a structure) within a half mile of a blasting area, you can and should ask the state for a pre-blasting survey of your property. The purpose of the survey is to "determine the condition of the dwelling or structure and to document any pre-blasting damage and other physical factors which could reasonably be affected by blasting."[78] [See box in Chapter Five for more information about pre-blast surveys.] The operator is required to perform a survey if you request one. If you live more than a half-mile from the blasting area, or if blasting has already started, you should still request a pre-blast survey.  Although your request may not be granted, you will still be on record as having requested a survey.  Your insurance company may also cover an independent survey if you think one is necessary.

    If a blast throws rock or other material on your property, you should take note of any damage that has occurred. If possible, record the exact time of the blast. Take pictures showing the damage in detail. Be sure to note the pertinent information about the camera, date, time, place, and the person taking the picture, as described previously in this chapter. It is illegal for a blasting operation to cause any damage to your home, even cosmetic damage. 

    According to regulations, flyrock from a blasting site may not travel more than one-half the distance to an occupied structure. [79] Therefore, any debris which reaches your property indicates a probable violation and you should file an immediate complaint with the state agency. You also should request an inspection. If your complaint has a reasonable basis, the state must inspect; if a violation is found, the inspector must issue a citation.

    If blasting is causing your house to shake, or some other problem such as loss of well water, ask the state agency to set up a seismograph on your property. A seismograph is an instrument sensitive to ground motion that can sometimes measure blasting accurately enough to determine whether an operator is violating the law.

    When the state agency sets up the seismograph, ask the official to explain its operation to you thoroughly, so that you can be sure it is working properly. Since mining companies have been known to cut back on their blasting during periods of monitoring, you should request that the operator not be told that blasting is being monitored. If the official agrees to this request, make a note of the official's name and the date. You also should confirm your arrangement in writing.

    With the aid of the seismograph, you and the state agency may be able to determine whether the blasting violates the law. Ask the inspector to issue a notice of violation or a cessation order for any illegal blasting activity. In case of doubt, you may want to go with an inspector to check the operator's blasting records. The inspector should compare the post-blasting damage to the pre-blast survey. It is not sufficient to simply assess the seismographic records to determine if damage should have occurred.

    If you have damage that did not exist prior to blasting, and the operator refuses to compensate you, take the company to small claims court. Check with your state regulatory agency to see if your state has a blasting office that can assist you with blasting claims.

     The operator is required to remove and save at least six inches of topsoil (or the most suitable subsoil as approved by the regulatory agency) before mining begins. [82] Watch for scrapers and bulldozers to see that they are removing at least six inches of the uppermost material.

    SMCRA requires the operator to either save the topsoil in stockpiles, or immediately distribute it on mined-out areas that have been regraded. [83]  If stockpiled, the soil must be protected from wind and water by the use of a snow fence, vegetation, or any other kind of treatment that preserves the soil and prevents erosion.[84] Thus, if you see wind blowing topsoil off the pile, you are probably observing a violation. Note also that stockpiles must be placed on stable sites within the permit area and cannot be moved until the material is redistributed on a regraded area without the approval of the regulatory agency.[85]

    After the coal seams have been removed, SMCRA requires the operator to put the spoil material back in place and grade the area to its approximate original contour (AOC), with all highwalls, spoil piles and depres­sions eliminated. Backfilling and grading (as well as other reclamation activities such as topsoil replacement and revegetation) generally must take place as soon as is practicable after mining.[87] This usually means that where mining occurs in adjacent pits, an operator should remove the coal from the first pit before opening the next pit in order to use the overburden from the second pit to backfill the first pit.

    During the backfilling and grading operation, SMCRA requires the operator to bury or otherwise treat all toxic and combustible materials to assure that they do not become sources of pollution.[88] If toxic materials are allowed to come in contact with surface water, the resulting drainage will likely be toxic, thus causing pollution of streams and other water bodies.

    The area must then be graded to closely resemble the original contour[89] and probably scarified or roughened in some fashion, so that topsoil will not slip once it is placed on the regraded area.[90] All final grading must be done in a manner that minimizes erosion. This generally means grading along the contour — perpendicular to the slope.[91]

    The regulations permit the operator to re-shape the mined area with terraces, if prior state approval is received. Check the permit to see if approval has been given.

    The final graded slopes must be protected from wind and water erosion.[92] There should be no significant rills (small channels caused by the erosive effect of water) or gullies on these slopes, and there should be no evidence of slumping or potential landslides. If these problems develop, the operator must re-grade the area and re-seed or replant it.[93] If rills or gullies have developed, which suggest that reclamation may fail, ask the state to require the operator to repair the damage before it becomes worse.

    Once an area has been graded, it must be covered with topsoil (or the approved, most suitable soil). This soil must be spread in a uniform thickness and adequately protected from wind and water erosion.

    The operator then must seed and mulch the graded area during "the first normal period for favorable planting conditions after placement of the plant growth medium." [94] All areas must be seeded with a temporary cover of small grains, grasses, or legumes (such as alfalfa), until adequate permanent cover is established.[95] If the area has been improperly prepared, you will probably see signs of gully erosion and should notify the state. You also should look closely at former stripped areas that have been growing for a year or so. Is vegetation poor in comparison with that in other parts of your region? If so, a violation may exist. Most likely, the spoil was handled improperly or seeding was inadequate. Ask the state to conduct an inspection.

Controlling Mountaintop Removal Operations

     Under the law, an operator may be permitted to remove the entire top of a mountain if he can meet certain requirements. Mountaintop removal (MTR) is defined as a mining operation that "will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge or hill by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining."[96] This practice is generally confined to the mountainous areas of the Eastern coal mining states. In addition to the previously noted valley-fill regulations, an operator must meet several requirements in order to get permission for mountaintop removal:

• The operator must establish a post-mining industrial, commercial, agricultural, residential, or public use for the mountaintop.[97]
• The final grade of the top of the mountain must be less than 20 degrees.[98]
• Water must drain toward the middle of the area (not down the sides of the mountain).[99]
• The outslopes (the slopes below the coal seam) of the area can­not exceed 50 percent without the approval of the regulatory authority.[100]
• To prevent slides, an outcrop barrier "of sufficient width" must be retained.[101]
• Damage to streams below the mountaintop must be prevented.[102] (This requirement is frequently violated by mountaintop removal operations, which construct valley fills that bury streams. The difficulties of enforcing against these violations are discussed briefly below.)
• All mountaintop removal permits must be reviewed every three years, and the terms of such permits can be changed to reflect site conditions.[103]
• All other standards of the law must be met.

     The detailed inspection checklist at Appendix C sets forth the extensive requirements for conducting a mountaintop removal operation. Where appropriate, the checklist contains references to the federal statute and regulations. Take this checklist with you when you visit a mine site and use it to help you identify potential problems at the site.

    As described at the beginning of this book, mountaintop removal mining is perhaps the most controversial method of coal mining. When SMCRA was enacted, however, mountaintop removal was not nearly as widespread as it is today. Efforts to control or limit mountaintop removal are described throughout this book, particularly in the context of Clean Water Act challenges described in Chapter 5.[104]

Controlling the Impacts from Subsidence

    Subsidence of the surface above underground mine workings can take the form of surface cracks or potholes and may not show up for many years. Most modern underground mining today, however, uses longwall mining methods that result in planned subsidence, which occurs soon after the coal is extracted. Planned subsidence occurs when operators allow the tunnel from which coal is extracted to collapse in a controlled manner, causing the surface of the land to sink.  Under SMCRA, the mining operator has the responsibility to “minimize material damage to the extent technologically and economically feasible to non-commercial buildings and occupied dwellings.” [105] Additionally, if the damage occurred after 1992, the mining operator must repair or compensate for any material damage to your residential property.[106] 

    In 2001, the West Virginia Supreme Court described the effect of subsidence on adjacent lands: “Because subsidence extends laterally beyond the area actually undermined, adjacent surface land is affected as well. Somewhat like the sides of a shallow trench dug in the sand on a beach tend to collapse inward, land adjacent to the undermined area may be dragged downward as the roof over a mined area collapses. When combined with the known depth of the mining activity, the angle of draw can be used to predict the general area where subsidence can be expected to occur.”[107]