Chapter 11
Cite as 16 E. Min. L. Inst. ch. 11 (1997)
The Surface Mining Control
and Reclamation Act of 1977:
New Era of Federal-State Cooperation
or Prologue to Future Controversy?
Edward M. Green
Lisa A. Price1
Crowell & Moring
Washington, D.C.
Patrick C. McGinley
West Virginia University College of Law
Morgantown, West Virginia
D. Michael Miller
American Electric Power Service Corporation
Lancaster, Ohio
G. Milton McCarthy
Alabama Surface Mining Commission
Jasper, Alabama
Synopsis
§ 11.01.
§ 11.02.
§ 11.03.
§ 11.04.
§ 11.05.
§ 11.06.
§ 11.07.
§ 11.08.
Introduction. ....................................................................... 392
Prelude to SMCRA. ........................................................... 393
SMCRA’s Themes — Cooperative Federalism or
Command and Control Central Government? .............. 402
SMCRA Implementation During
The Carter Administration: 1977-1980. .......................... 405
The Reagan Administration’s “Regulatory Reform.” ... 413
SMCRA Administration and Enforcement
Under the Reagan and Bush Administrations. ............... 415
Meaningful Reform or a Race to the Bottom:
The Surface Mining Control and Reclamation
Amendments Act of 1995. ................................................. 420
Conclusion. ......................................................................... 428
1 Jean Wheelock, a legal assistant at Crowell & Moring, provided invaluable assistance
in the preparation of this article.
EASTERN MINERAL LAW INSTITUTE
§ 11.01
§ 11.01.
Introduction.
The journey of the Surface Mining Control and Reclamation Act2
(SMCRA) from bill to statute was nothing short of turbulent, marked by
years of debate, both in the halls of Congress and in the Nation’s coalfields,
before President Jimmy Carter finally signed the bill into law on August 3,
1977. Earlier, in 1974 and 1975, Congress sent two bills3 to President
Gerald R. Ford who vetoed both because he believed that the legislation’s
potential to adversely affect coal production and costs, and
correspondingly, to contribute to rising inflation, outweighed the
environmental protection afforded by the bills at a time when the United
States was still feeling the shock of the Arab oil embargo.4
Now, nearly two decades after SMCRA’s passage, the issues
underlying the statute still ignite passion in those who find themselves on
opposite sides of the Act’s allocation of power to the states and the federal
government, as well as in those coal mine operators and coalfield citizens
2 30 U.S.C. § 1201 et seq.
3 S. 425, 93rd Cong., 2d Sess., 120 Cong. Rec. 40,054 (1974); H.R. 25, 94th Cong., 1st
Sess., 121 Cong. Rec. 13,385-86 (1975). SMCRA has an extensive legislative history.
For a concise recitation of that history, see Anthony Pye, “The Supreme Court Rejects
Constitutional Challenges to the Surface Mining Control and Reclamation Act of 1977,”
48 Brook. L. Rev. 137, n.40 (1981). For a more detailed account, see Comment, “The
Surface Mining Control and Reclamation Act of 1977, 9 St. Mary’s L.J. 863 (1978). See
also Comment, “A Summary of the Legislative History of the Surface Mining Control
and Reclamation Act of 1977 and the Relevant Legal Periodical Literature,” 81 W. Va. L.
Rev. 775 (1979).
It is also noteworthy that interest in federal regulation of surface coal mining existed
as early as 1940, when Senator Everett Dirksen of Illinois introduced a bill that proposed
to require restoration of mined land to its approximate original contour. See Uday Desai,
“The Politics of Federal-State Relations: The Case of Surface Mining Regulation,” 31
Nat. Resources J. 785, 787, n.7 and accompanying text (1991) [hereainfter “Desai”]. See
also “Regulation of Strip Mining: Hearings Before the Subcomm. on Mines and Mining
of the Comm. on Interior and Insular Affairs, House of Representatives, on H.R. 60 and
Related Bills,” 92nd Cong., 1st Sess. (1971).
4 Indeed, one of the authors (then serving as surface mining counsel to Interior Secretary
Rogers C.B. Morton) vividly recalls sitting in the Senate gallery watching the debate on
S. 425 on October 9, 1973. Interrupting normal business, senator after senator rose to
express concern about the growing energy crisis. After exhausting themselves on that
topic, senators returned to debate of the surface mining bill and (despite predictions of
lost coal production from the industry) the Senate promptly passed S. 425 by a large
margin — 82 to 8. 119 Cong. Rec. 33,333 (1973).
392
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.02
who often appear to be caught in the middle. In these times of growing
interest in reducing the federal government’s power in favor of returning
that power to the states, SMCRA provides an interesting case study of
how federal and state governments respect each other in the face of a
Congressional mandate to cooperate.
To paraphrase Lord Byron, the best prophet of the future is the past.5
Thus, this chapter will briefly examine the events leading to the enactment
of SMCRA and its implementation by Presidents Carter, Reagan, Bush,
and Clinton with the goal of illuminating the road ahead for what remains
a controversial and contentious statute.
§ 11.02.
Prelude to SMCRA.
The first state to regulate surface mining6 was West Virginia, which
enacted such legislation in 1939.7 A handful of states followed suit but
the resulting legislation has been characterized as “mild” and merely an
attempt by the mining industry to convince localities with surface mining
within their borders that steps were being taken to safeguard the
environment from the effects of mining.8 The states themselves had an
economic disincentive to pass such legislation, preferring instead to protect
5 George Noel Gordon, Lord Byron, “[t]he best of prophets of the future is the past.”
Journal, January 28, 1821.
6 The authors use the term “surface mining” as a short description for the definition of
“surface coal mining operations” found at § 701(28) of SMCRA, 30 U.S.C. § 1291(28),
which includes “surface mining operations and surface impacts incident to” underground
coal mines.
7 1939 W. Va. Acts, ch. 84 (repealed 1965).
8 See, e.g., 1954 Ky. Acts, ch. 8; 1947 Ohio Laws, 730; Pa. Laws 1198. See also John
D. Edgcomb, “Cooperative Federalism and Environmental Protection: The Surface Mining
Control and Reclamation Act of 1977,” 58 Tul. L. Rev. 299, 305-308 (1983) [hereinafter
“Edgcomb”]. As an example of the coal industry’s successful lobbying to defeat
conservation-minded state regulation, the author cites the Virginia General Assembly’s
enactment in 1972 of legislation “essentially drafted by the Virginia coal industry” which
created a regulatory agency, the Division of Mined Land Reclamation (DMLR), within
the Department of Conservation and Economic Development. The new agency was charged
with the authority to implement and enforce regulations promulgated by the Department.
Because DMLR received no appropriations from the general revenue fund, it was forced
to exist on permit fees which were insufficient for the agency to carry out its mission. Id.
at 307.
393
§ 11.02
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the surface mining industry within their borders. Should a state pass
regulations to protect against the adverse environmental consequences of
coal mining, the operators in that state would face increased costs
associated with mining. Coal operators in a neighboring state, forbearing
cost-increasing regulations, would be able to produce coal at a cheaper
cost.9
At the same time the states were reluctant to pass effective surface
mining regulations, it was also the case that the surface mining industry
was growing. In 1963, surface mining accounted for 33 percent of coal
production in the United States, with the bulk of coal mining utilizing
underground mining techniques.10 By contrast, in 1971, coal output from
surface mining matched underground production.11 By 1973, surface
mining had attained a level of 60 percent of the nation’s coal production.12
With surface mining on the rise, its associated environmental impacts
increased.
It was only a matter of time before the growing environmental
movement began to focus on the adverse impacts of surface mining, the
most obvious being the scarring to the mountainsides of the Appalachian
coal fields. Less visible, but significant, were the associated byproducts
of surface mining — water, air, and noise pollution. For example, the
potential for water pollution arises due to acid drainage associated with
rainwater runoff through some coal beds.13 Surface mining strips the earth
9
Edgcomb at 308.
10 Id. at 302.
11 National Mining Association, Facts About Coal (1995) at 7.
12 Edgcomb at 302. As compared to underground mining, surface mining was believed
to offer distinct advantages. First, in earlier years, surface mining allowed a greater recovery
of mineral — 90 percent or more — than did deep mining — less than 50 percent. Id. at
302, citing, Brooks, “Strip Mining Reclamation and Economic Analysis,” 6 Nat. Resources
J. 13, 17, n.16 (1966). Today, longwall mining has reduced the discrepancy between
recovered mineral — current longwall techniques allow for up to 80 percent recovery of
mineral. Facts About Coal at 23. Second, surface mining is less labor-intensive, employing
the use of enormous and efficient equipment with fewer miners necessary than in
underground mining. Third, coal extracted by surface mining is easier to process and to
clean than deep-mined coal. Thus, both production and processing costs were viewed as
significantly lower in surface mining than in underground mining. Edgcomb at 302. Today,
surface mining accounts for about 63 percent of total coal production with
undergroundmining representing 37 percent of production. Facts About Coal at 22-24.
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SMCRA: COOPERATION OR CONTROVERSY?
§ 11.02
of vegetation, causing erosion which creates sedimentation and siltation
of water courses around coal mining operations, with the potential for
negative impact to aquatic life and drinking water supplies. Mining can
also pollute or drain underground aquifers which serve as the source of
domestic and farm water supplies in many rural areas. The noise associated
with an active surface mine can be significant, with potential to cause
disruption to people and to wildlife in the vicinity. Moreover, during
mining, debris can fill the air as strata are blasted apart, earth is moved,
and coal is extracted.14 As these effects gained notice outside the coalproducing states of Appalachia and the Midwest, and as interest in and
concern about surface mining in the semi-arid Western states increased,
newly strengthened national environmental organizations, local
conservation groups, and coal field citizens began forging a coalition that
ultimately would achieve its goal of federal regulation of surface mining.15
Federal surface mining legislation was first considered in Congress
in 1968 when the Senate held hearings on three bills.16 While these bills
were unsuccessful, in 1971, President Richard M. Nixon called for
13 See generally, Patrick C. McGinley & Thomas Sweet, “Acid Coal Mine Drainage:
Past Pollution and Current Regulation,” 17 Duq. L. Rev. 367 (1978).
14 H.R. Rep. 95-218, 95th Cong., 1st. Sess. (1977) at 58-59.
15 The writings of journalists Ben A. Franklin of the New York Times and Ward Sinclair
of the Louisville Courier-Journal were instrumental in determining public sentiment for
SMCRA. See also Harry M. Caudill, Night Comes to the Cumberlands (1963)(a native
son of the Cumberland Plateau wrote movingly about the impacts of coal mining in that
area).
16 S. 3131, the Surface Mining Reclamation Act of 1968 was introduced by Senate
Interior and Insular Affairs Committee Chairman Henry M. Jackson (D-WA) on March
11, 1968. 114 Cong. Rec. 5931 (1968). S. 3126 was introduced by Senator Gaylord
Nelson (D-WI) on March 8, 1968. 114 Cong. Rec. 5848 (1968). S. 217 was introduced
by Senator Frank J. Lausche (D-OH) on January 12, 1967. 113 Cong. Rec. 297 (1967).
The battle lines between proponents of such legislation and industry were drawn early.
During the hearings on April 30, 1968, Harry M. Caudill, Chairman, Congress for
Appalachian Development and a spokesperson for the Sierra Club, noted “none of the
pending bills come near to meeting the challenge” of controlling surface mining. Surface
Mining Reclamation hearings on S. 3132, S. 3126 and S. 217 before the Senate Committee
on Interior and Insular Affairs, 90th Cong., 2d Sess. 90 (1968). Joseph S. Abdnor, of the
American Mining Congress, on the other hand, claimed federal legislation was
“unnecessary, undesirable, and impractical.” Id. at 98. Joseph E. Moody, president of
National Coal Policy Conference, Inc., said that the Nation “cannot afford” new legislation
395
§ 11.02
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legislation to control surface mining on the federal level and, in 1972, the
House passed such legislation.17 However, the Senate never took action
on its counterpart before the 92nd Congress adjourned. In 1973, the 93rd
Congress tried again. After extensive hearings, and after passing both
houses by large margins, President Ford pocket-vetoed S. 425 on December
30, 1974.18 He sent by letter to Congress 27 suggested changes to the
legislation.19
The 94th Congress doggedly tried again: the House and Senate
incorporated many of President Ford’s recommendations into H.R. 25.20
Congress sent H.R. 25 to the White House on May 8, 1975,21 but, again,
“which hamper[s] our ability to supply our own needs for fuels, minerals, and metals.”
Id. at 119.
17 H.R. 6482 was passed by the House by a 265-75 margin on October 11, 1972. 118
Cong. Rec. 35,031 (1972).
18 The Senate passed S. 425 on October 9, 1973. 119 Cong. Rec. 33,333 (1973).
However, the House version, H.R. 11500 (reported May 30, 1974) was not passed until
July 25, 1974, after six days of debate, on a vote of 291-81. 120 Cong. Rec. H7155 (daily
ed. July 25, 1974). S. 425 was sent to conference on August 1, 1974, and the conferees
met twenty times in an effort to work out the final measure, finally filing their conference
report on December 5, 1974. H.R. Conf. Rep. 93-1522. The House cleared the report on
December 13, 1974, and the same day, President Ford announced that he would veto the
proposed law. The Senate approved the report on December 16, 1974, amidst predictions
of its rejection by President Ford. President Ford followed through on his promise, pocketvetoing the bill on December 30, 1974. President’s Memorandum of Disapproval, 11
Weekly Comp. Pres. Doc. 4, 5 (Jan. 6, 1975).
19 Despite the case for environmental protection, other concerns defeated Congressional
attempts––beginning seriously in 1971––to pass a national surface mining control law.
The oil embargo of 1973, fuel prices driven upward by OPEC, high unemployment rates,
and the threat of rising inflation generally were concerns shared by most Americans, in
the forefront of the efforts to defeat federal regulation of surface mining. State Surface
Mining Laws: A Survey, a Comparison with the Proposed Federal Legislation, and
Background Information (June 1977) at 3 [hereinafter Survey].
20 The Senate Interior Committee reported S. 7 on March 5, 1975, 121 Cong. Rec.
5271 (1975) and the bill passed the Senate by a vote of 84-13 on March 12, 1975. 121
Cong. Rec. 6202 (1975). The House Interior Committee reported H.R. 25 on March 6,
1975, and that bill passed the House by a vote of 333-86 on March 18, 1975. 121 Cong.
Rec. 7069 (1975).
21 121 Cong. Rec. 13,709 (1975).
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SMCRA: COOPERATION OR CONTROVERSY?
§ 11.02
President Ford vetoed the legislation on May 20, 1975.22 According to
his veto message, President Ford believed the legislation was flawed
because of its potential to (1) cause 36,000 lost jobs; (2) impose higher
costs for electricity on consumers; (3) increase United States dependence
on foreign oil supplies; and (4) result in coal production losses of 40-162
million tons when such production was vital to the country’s economy.23
The Ford Administration predicted that in 1977 SMCRA would result in
a loss of coal production of 40 to 162 million tons which equated to six to
24 percent of that year’s expected coal production.24
While President’s Ford’s veto was sustained, proponents of national
legislation in the 94th Congress introduced H.R. 9725 on March 12,
1976.25 Virtually identical to the vetoed bill, it was reported by the House
Interior Committee to the Rules Committee on March 12, 1976, but died
there when it failed to receive a rule clearing it for debate by the full
House.26
Undaunted, however, House proponents introduced H.R. 13950 on
May 21, 1976. That bill, although similar in structure to the previously
unsuccessful ones, underwent changes in the House Interior Committee
before reporting. Those changes among other things, increased the
legislation’s implementation schedule in order to give small operators
time to adjust to the new federal regulatory scheme. The Administration
nevertheless announced its displeasure early with this bill, too, stating:
22 121 Cong. Rec. 15,421 (1975).
23 Id.
24 Id. Morris Udall (D-AZ)(then chairman of the Environment Subcommittee of the
House Interior Committee), for one, declared “[t]hose arguments are false,” and called
for a postponement of the House vote to override the President’s veto so that an unusual
joint House-Senate Interior Committee hearing could be held on June 3, 1975 to examine
the basis for the veto and to build a better foundation for an override. Surface Mining
Veto Justification Briefing: Hearing on the President’s Veto of H.R. 25 Before the
Subcomm. on Energy and the Environment and the Subcomm. on Mines and Mining of
the House of Representatives’ Comm. on Interior and Insular Affairs, 94th Cong., 1st
Sess. (1975). The hearing was contentious, but these efforts ultimately were in vain when
the President’s veto was sustained on June 10, 1975, as the House fell three votes short
of the two-thirds majority necessary for override. 121 Cong. Rec. 17982 (1975).
25 122 Cong. Rec. 6440 (March 15, 1976).
26 1976 Cong. Q. 126.
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Unemployment in this country remains at unacceptably high
levels, but H.R. 13950 could foreclose substantial employment
in the coal industry and the communities dependent on it.
H.R. 13950 would add significantly to the costs of mining
coal and, to the extent that it would cause a decline in coal
production, it would require use of scarce higher priced fuel
alternatives to meet projected energy demands of the Nation.
The need for foreign petroleum would increase in the face of
a situation which today finds this Nation more dependent on
foreign sources than when the President vetoed H.R. 25 over
a year ago. We simply cannot afford unbalanced, inflexible
legislation which would stifle our efforts to double coal
production by 1985.27
The House Rules Committee, on September 15, 1976, voted against
a rule to allow floor debate on H.R. 13950 as it had on H.R. 9725.28
In addition to the Ford Administration’s continued assertions that
SMCRA would decimate the surface mining industry by imposing huge
costs on marginal mining operators, thereby pushing America toward
dependence on imported fuel, many states had long voiced their opposition
to relinquishing their right to regulate coal production within their
borders.29 States and the coal industry professed that another layer of
regulation was unnecessary in light of the evidence that by 1975, 38 states
had passed laws to regulate surface mining.30
27 Letter of Honorable Kent Frizzell, Acting Secretary of the Interior to the Honorable
James A. Haley, Chairman, Committee on Interior and Insular Affairs, House of
Representatives (June 22, 1976).
28 1976 Cong. Q. 128.
29 Uday Desai, “The Politics Of Federal-State Relations: The Case of Surface Mining
Regulation,” 31 Nat. Resources J. 785 at 790.
30 SMCRA advocates distrusted the states’ ability to enact and conscientiously enforce
surface mining and reclamation legislation. This was strongly disputed by the coal
industry. Professor Desai relates that:
[o]pponents of federal regulation were largely coal companies and coal
mining industry trade groups. They contended that most of the horrors of
surface mining had occurred in the past, that affected states were currently
doing an adequate job of regulation, and that the states should be given
398
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.02
Despite these protests, a study analyzing the results of a questionnaire
sent by the Senate Committee on Energy and Natural Resources in 1977
to states with regulatory programs concluded that State regulations were
less stringent than the proposed Federal legislation, and that enforcement
in those states that did have laws was lax and underfunded.31 Further, the
study noted the lack of uniformity in state regulation.32 One witness,
testifying before the Senate on March 2, 1977, observed that minimum
regulatory standards were critical so that states could compete fairly with
each other, without fear that neighboring states would refuse to pass surface
mining laws.33
more time. The opponents argued that conditions such as topology,
hydrology, and climate were so diverse throughout the nation that a uniform
federal law applicable to all states would be inappropriate and nearly
impossible to implement. They also argued that such sweeping legislation
would probably be unconstitutional and would result in a considerable
amount of costly litigation. They added that strict federal mining control
would constrain the domestic supply of energy and thus was inconsistent
with the long-range goals of a national energy policy.
Uday Desai, “The Politics Of Federal-State Relations: The Case of Surface Mining
Regulation,” 31 Nat. Resources J. 785, at 788 (1991).
31 Survey at 25.
32 In 1975, the Center for Science in the Public Interest conducted a survey of three
states with major coal production. It found, for example, with respect to Kentucky, that
the state had experienced a sharp increase in the issuance of permits to surface mining
operations, no staff had been hired to process the increase, and existing staff members
worked at low wages. State Survey at 21.
33 Survey at 20. Testimony of Mr. Robert A. Bohm, Assoc. Professor of Finance at the
University of Tennessee. One commentator has summarized the position of SMCRA
proponents:
[They] argued that a uniform national policy was essential to assure proper
reclamation nationally and to equalize competition among coal industries
in the various states, and that the existing state regulations were weak,
uneven, and largely ineffective. Proponents also argued that a problem of
such proportion, which impacted interstate commerce so greatly, should
certainly have a solution of national scope. In addition, most
environmentalists and local anti-surface mining groups were highly
suspicious of the willingness or ability of states to regulate surface mining.
They pushed for a strong federal regulatory role in the hope that it would
be less susceptible to industry manipulation than would state regulatory
programs.
399
§ 11.02
EASTERN MINERAL LAW INSTITUTE
This distrust of the states’ ability or willingness to implement
meaningful controls of the surface mining industry, coupled with a growing
concern about the environmental impacts of surface mining insured that
as the 95th Congress convened, its interest in surface mining legislation
would remain strong. Even more important, the White House had changed
hands and political parties. During the summer of 1976, as he campaigned
throughout Appalachia, Jimmy Carter promised to sign the legislation
rejected by his predecessors.34 Proponents of a national law were
encouraged by this support. Shortly after the 95th Congress convened,
the House Interior and Insular Affairs Committee reported H.R. 2 on April
22, 1977;35 the Senate Energy and Natural Resources Committee reported
S. 7 on May 10, 1977.36 As Senator Henry Jackson, Chairman of the
Senate Committee on Energy and Natural Resources summarized in 1977:
Manifestly, there is a need for establishing uniform national
environmental protection performance standards for the coal
industry. The time is long overdue when under State law
operators may be permitted to cast overburden downslope,
leave ugly highwalls behind, pollute streams with acid
drainage, ruin valuable farmlands, or in other ways add to
the environmental degradation of areas on or near the
operation. Equally important is the setting up of a strict
management system for federally-owned coal deposits. Taken
together, this a task only Congress can accomplish.37
Uday Desai, “The Politics of Federal-State Relations: The Case of Surface Mining
Regulations,” 31 Nat. Resources J. 785, at 788 (1991), citing, N. Shover, D. Clelland,
and J. Lynxwiler, Developing a Regulatory Bureaucracy: The Office of Surface Mining
Reclamation and Enforcement (1983); see also “Regulation of Strip Mining: Hearings
Before the Subcomm. on Mines and Mining of the Comm. on Interior and Insular Affairs,
House of Representatives, on H.R. 60 and Related Bills,” 92nd Cong., 1st Sess. (1971).
34 “Strip Mining: Showdown Near,” U.S. News and World Report (March 14, 1977) at
47.
35 123 Cong. Rec. 11,862 (1977).
36 123 Cong. Rec. 14,149 (1977).
37 Memorandum of the Chairman accompanying State Surface Mining Laws: A Survey,
A Comparison with the Proposed Federal Legislation, and Background Information (June
1977)(hereinafter “Memorandum”).
400
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.02
Officials from the newly-elected Carter Administration and
Congressional supporters worked hand in hand to present President Carter
with a bill even more stringent than those rejected by the Ford
Administration. The Carter Administration was able to rationalize
SMCRA’s environmental protection mandates as a policy consistent with
its stated policy of utilizing the country’s abundant coal reserves rather
than depending on foreign oil for its energy needs. Thus, the President’s
top energy aide, James Schlesinger noted:
Negative arguments have characterized the strip mining debate
for too long. Adequate safeguards of the land are not in conflict
with a policy of expanded coal production. . . . The modest
costs of reclamation should not noticeably inflate fuel prices.
It is money well spent in terms of benefits to the nation. And,
with expanded deep mining and more intensive reclamation
efforts, more, not fewer, jobs will result.38
Years of controversy over this legislation have increased the
uncertainties facing the coal industry and the prospects for relying on
more coal in this country.39
Chairman Jackson noted that [while Congress had been]
twice frustrated in its attempt to enact balanced and equitable
legislation when President Ford repeatedly vetoed the surface
mining reclamation bill, and although confronted with
unverified claims of the Ford administration as to coal
38 Because the Congress considered underground coal mining to have fewer adverse
environmental effects than surface mining, the national reclamation fee for coal produced
by underground mining was set at 15¢/ton as opposed to 35¢/ton for surface mined coal.
30 U.S.C. of 1232(a). Not to be confused by consistency of purpose or policy, however,
in February 1978, several months after passing SMCRA, the very same 95th Congress
passed the Black Lung Benefits Revenue Act of 1977 setting a tax of 50¢/ton of coal
from underground mines and 25¢/ton for surface mined coal. 26 U.S.C. § 4121(b) and
(e). This tax was differentiated on the notion that deep mine producers should bear the
brunt of financing black lung benefits for underground coal miners who were more likely
than surface miners to incur coal workers’ pneumoconiosis. Thus, to satisfy two different
societal goals, the 95th Congress imposed taxes/fees on coal mining of 60¢/ton for surface
mined coal and 65¢/ton for underground coal, a modest difference of 5¢/ton.
39 S. Rep. No. 95-128, 95th Cong., 1st Sess. 107 (1977).
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EASTERN MINERAL LAW INSTITUTE
§ 11.03
production losses, rises in unemployment, and increase in
utility rates which would allegedly be the consequences of
the legislation, if passed, Congress is preparing once again to
send a bill to the White House.40
Despite continuing coal industry opposition, H.R. 2 passed the House
on April 29, 1977,41 and H.R. 2, amended, was substituted for S. 7 and
passed the Senate on May 20, 1977.42 This time there was no veto. In a
White House Rose Garden ceremony filled with enthusiastic supporters
of the new law, President Carter signed the bill into law on August 3,
1977. No coal mine operators were present.43
§ 11.03.
SMCRA’s Themes — Cooperative Federalism
or Command and Control Central Government?
Parallel to some other federal environmental regulatory laws, SMCRA
was designed as a “cooperative federalism” statute.44 Congress found
that “the cooperative effort established by [SMCRA] is necessary to
prevent or mitigate adverse environmental effects of present and future
surface coal mining operations.”45 It is important to note, however, that
SMCRA differs significantly from other federal environmental regulatory
statutes because it focuses solely on one industry, unlike most other federal
environmental regulatory statues like the Clean Air and Clean Water Acts
which focus on specific environmental problems attendant all industries.
Not withstanding SMCRA’s federal/state cooperative features, Congress
40 Memorandum at III.
41 123 Cong. Rec. 12,888 (1977).
42 123 Cong. Rec. 15,778 (1977).
43 Ben A. Franklin, “President Signs Strip-Mining Bill But Cites Defects,” N.Y. Times,
Aug. 4, 1977, at A1, A14.
44 Cooperative federalism is a term which has often been used to describe a core
component of most of the federal environmental regulatory statutes that have been enacted
by Congress since 1970. See, e.g., § 402(b) of the Clean Water Act, 33 U.S.C. § 1342(b),
authorizing state permit programs for the national pollutant discharge elimination system.
See also § 107(a) of the Clean Air Act, 42 U.S.C. § 7407(a), dealing with the state
implementation plans which specify how national ambient air quality standards will be
achieved.
45 30 U.S.C. § 1201(k).
402
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.03
made clear that in administering the Act, federal regulators are to “wherever
necessary, exercise the full reach of Federal constitutional powers to insure
the protection of the public interest through effective control of surface
coal mining operations.”46 These unique factors have created a level of
additional tension and conflict between states, federal regulators, the coal
industry, and coalfield citizens not experienced in the implementation and
administration of other cooperative federalism statutes.
Congress created a new Office of Surface Mining Reclamation and
Enforcement (“OSM”) to work with the states and to oversee
implementation, administration and enforcement of SMCRA.47 Thus, it
was OSM that was to assume the role of federal partner in SMCRA’s
cooperative federalism approach. Whether OSM is the senior partner to
its state junior partners is one of SMCRA’s contentious themes.
Congress intended that states have the option to assume “exclusive
jurisdiction” to administer and enforce SMCRA, subject to compliance
with minimum SMCRA statutory standards and compliance with OSM’s
implementing regulations.48 However, state assumption of “exclusive
jurisdiction over the regulation of surface coal mining and reclamation
operations” is, according to OSM’s interpretation of the Act, made subject
to direct OSM oversight and considerable enforcement power.49 The scope
of federal oversight and enforcement is another of SMCRA’s themes.
SMCRA requires that OSM first approve a state’s proposal to assume
primary jurisdiction over enforcement.50 Thus, the statute requires that
OSM review and give its approval only to those state regulatory programs
found to be in accord with the requirements of both the Act and OSM’s
regulations.51 The devil in the detail of OSM’s regulations is also one of
SMCRA’s themes.
46 30 U.S.C. § 1202(m).
47 30 U.S.C. § 1211.
48 30 U.S.C. § 1253.
49 See 30 U.S.C. §§ 1253(a), 1255, 2171, and 1273.
50 The assumption by a state of “primary jurisdiction” under SMCRA is often referred
to as assumption of “primacy.” The term “primacy” will be used occasionally herein as a
concise way to refer to a state’s primary jurisdiction to enforce the surface mining within
its borders.
51 30 U.S.C. § 1253(a)(1) and (7).
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EASTERN MINERAL LAW INSTITUTE
OSM approval of state regulatory programs is dependent upon specific
findings that a program include provisions for civil and criminal sanctions
at least as stringent as the sanctions contained in SMCRA.52 Also, state
regulatory programs must be found by OSM to have sufficient
administrative and technical personnel, as well as sufficient funding, to
enable the state to regulate mining in accord with SMCRA’s detailed and
comprehensive requirements.53
A central facet of SMCRA’s themes is the requirement that state
regulatory programs be created pursuant to state law. The state law must
provide for the effective implementation, maintenance, and enforcement
of a permit system, consistent with the requirements of the Act and OSM’s
regulations.54 SMCRA also requires states seeking primacy to create a
process authorized and implemented under state law for designation of
certain lands as unsuitable for coal mining.55
The Act contains provisions authorizing federal takeover of all or a
part of a state’s OSM-approved regulatory program when it fails to
implement, enforce or maintain it as required by SMCRA. In such cases,
OSM is required to enforce part or all of such program or to assume
exclusive federal jurisdiction over all coal mining and reclamation
operations within the state.56
Unlike other federal environmental statutes, SMCRA is directed only
at a single industry: coal mining.57 Moreover, SMCRA instituted an
extensive and — what many environmentalists and federal regulators
52
53
54
55
56
57
30 U.S.C. § 1253(a)(2).
30 U.S.C. § 1253(a)(3).
30 U.S.C. § 1253(a)(4).
30 U.S.C. § 1253(a)(5).
30 U.S.C. §§ 1254(a)(3) and 1271(b).
See Harold P. Quinn, Jr., “Coal Resource Development and Land Use Planning: The
Demands of SMCRA,” 3 WTR Nat. Resources & Env’t 24 (1989)(“The Surface Mining
Control and Reclamation Act of 1977 . . . presents each coal company with a significant
challenge in the quest to remain competitive. Unlike environmental legislation directed
at the impacts of many industries upon one natural resource, SMCRA focuses upon one
industry and its effect upon several resources. Mine planners and managers find the full
array of their development and production considerations directly influenced by SMCRA’s
prescriptions that cover everything from coal recovery to land management practices.”).
404
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.04
interpreted to be — permanent federal regulatory presence to deal with
problems previously within the sole domain of the states. The presence of
significant regional differences in topographical, geological and
hydrological conditions and the corresponding need for coal mining
operations to be tailored to those conditions added to the unique character
of the SMCRA federal-state regulatory scheme.
§ 11.04.
SMCRA Implementation During the Carter
Administration: 1977-1980.
The strong opposition to SMCRA’s enactment by some coal industry
and state political interests continued after a short honeymoon period, as
the Carter Administration’s OSM, under the leadership of Interior Secretary
Cecil Andrus, attempted a boldly aggressive two-pronged effort to launch
the new legislation.58 OSM swiftly became the target of a new wave of
criticism as it attempted to (1) activate the statute’s mandated concurrent
federal-state enforcement during the interim implementation phase; and,
(2) create a totally new, complex and comprehensive permanent regulatory
program. It became quickly apparent that none of the passionate emotions
created during the debate leading to passage of SMCRA were soothed by
enactment. Instead, they were merely transferred to OSM — made even
more intense, in some respects, by expectations both real and perceived.
OSM from the outset found itself an agency under assault by its
stakeholders — often by all of them at the same time.
58
See, e.g., Uday Desai, “The Politics of Federal-State Relations: The Case of Surface
Mining Regulations,” 31 Nat. Resources J. 785, at 791 (1991). Professor Desai notes
“[I]n the months immediately following the passage of the Act, there was general support
for OSM from all major groups. At 1978 House oversight hearings, a panel representing
the National Governor’s Association and consisting of state reclamation division officials
. . . expressed full support for OSM and appreciation for the opportunity to participate in
the OSM’s drafting of regulations.”
Professor Desai also comments that the coal industry generally supported
OSM’s initial work: “The President of the Mining and Reclamation Council
of America had nothing but praise for the Office of Surface Mining.” Id.
Citing Implementation of the Surface Coal Mining Control and
Reclamation Act of 1977: Oversight Hearings Before the Subcomm. on
Energy and the Environment of the Comm. on Interior and Insular Affairs,
House of Representatives, 95th Cong., 2d Sess. 11-20, 29 (1978)(statement
of Ben E. Lusk, President, Mining and Reclamation Council of America).
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EASTERN MINERAL LAW INSTITUTE
At the very beginning of the implementation of SMCRA, serious
problems arose related to SMCRA’s ambitious provision for an “interim”
pre-primacy program of joint state and federal enforcement based upon
OSM’s hastily promulgated yet complex interim program regulations.59
Only nine months after SMCRA’s enactment on August 3, 1977, all
surface mining operations regulated by a state were required to be in
compliance with the interim program requirements as set forth in OSM’s
interim program regulations.60
Equally ambitious was the requirement that within six months of
enactment of SMCRA, OSM was to implement a federal enforcement
program in the field that would remain in force until replaced by an
approved state regulatory program or a federal regulatory program for
the state.61
Even more complex, within one year of SMCRA’s effective date, the
Act required OSM to promulgate regulations defining the myriad details
of the “permanent regulatory program” to replace its interim program
regulations. The Act allowed only a very short phase-in period. The
constituents of the permanent regulatory program were specifically defined
by the Act.62
59 See 30 U.S.C. § 1252(c). The interim regulatory program was required to be based
upon and to incorporate most of SMCRA’s important permitting requirements for mining
control and reclamation.
60 30 U.S.C. § 1252(c); 30 C.F.R. §§ 710-725; 42 Fed. Reg. 62677-716 (1977).
61 See 30 U.S.C. § 1252(e).
62 SMCRA commanded that OSM’s regulations be based upon, and in conformance
with, Title V of the Act. See 30 U.S.C. § 1251(b). The permanent program rules and
regulations were the product of one of the most extensive rulemaking proceedings in
Department of Interior history. Two drafts were submitted for public comment; 57 public
meetings and 25 days of public hearings were held to encourage participation by state
and local governments, coal operators and their trade associations, coalfield citizens and
environmental organizations; 589 public comments were received by OSM during the
rulemaking; and 22 different task forces composed of over 100 technical experts from
more than 20 agencies evaluated, wrote, and rewrote the draft rules in preparation for
their final promulgation. See Edgcomb at 318, n. 105 (1984).
As for the coal industry, the National Coal Association and the American Mining
Congress formed an NCA/AMC Joint Committee on Surface Mining Regulations
composed of over 200 industry experts on the entire range of mining and reclamation
activities. One of the authors (in his capacity as counsel to the Joint Committee) remembers
406
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.04
The first evidence of criticism of OSM appeared as a debate over the
agency’s implementation timetable. Coal states and some in the coal
industry complained that while OSM had failed to meet SMCRA’s strict
implementation schedule, it had refused to extend the Act’s deadlines set
for state and industry action. 63 OSM and its supporters among
environmental and conservation groups objected to any relaxation of the
Act’s schedule for implementation.
Ultimately, OSM acceded to coal state demands and granted an
additional six months for primacy program submission. The six- month
extension did not satisfy coal state and industry critics, however. They
sought and obtained injunctive relief in federal court which granted an
additional seven months for state program submission.64
In retrospect, the short SMCRA-mandated time schedule for OSM
development “from scratch” of interim and permanent regulations was
clearly unreasonable. Congressional drafters of the legislation failed to
take into account the extensive, technical, scientific, legislative and
regulatory work involved in creating such a program. Furthermore,
Congress’ time table for implementation may well have exacerbated what,
at least with hindsight, could have been predicted to be a high probability
of coal state and coal industry resistance.65
Looking back on this period with the luxury of almost two decades of
reflection, opposition of the states and the coal industry to the intrusive
impact of strict federally mandated regulation into an essentially laissezfaire market surely should have been expected. Among the obvious friction
points were federal usurpation of state power to regulate a vital state
hand-carrying the industry’s multi-volume comments to OSM for filing only minutes
before the close of the comment period, only to be faced with an angry OSM official
who threatened not to accept them because the end of normal business hours was at
hand.
63 See “Implementation of the Surface Coal Mining Control and Reclamation Act of
1977: Oversight Hearings Before the Subcomm. on Energy and the Environment of the
Comm. on Interior and Insular Affairs, House of Representatives,” 95th Cong., 2d Sess.
at 20-21, 26, 27, 30, 50 (1978).
64 In re Permanent Surface Mining Regulation Litig., Inj. Order, 13 Env’t Rep. Cas.
(BNA) 1447 (July 25, 1979). See “The Surface Mining Act Revised: National Regulatory
Program Surmounts Judicial and Legislative Challenges,” 9 Envtl. L. Rep. (Envtl. L.
Inst.) 101199, 101200 (1978). See also Edgcomb, supra, at 317-318.
65 See Edgcomb at 317-318.
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§ 11.04
EASTERN MINERAL LAW INSTITUTE
industry, limitation of previously unbridled state police power to regulate
land use and nuisances, as well as the intrusive federal oversight and
enforcement demanded by the Act.66
Very quickly, the resistance to OSM’s timetable for implementing
SMCRA blossomed into a full-scale litigation attack on the Act and upon
the agency’s regulations. State and industry court challenges were directed
at numerous provisions of both OSM’s interim and permanent program
regulations as well as the scope of OSM’s regulatory authority.67
Twenty-two court actions challenging OSM’s interim regulations were
consolidated in the United States District Court for the District of
Columbia.68 Challenges to interim regulations included allegations that
the regulations arbitrarily failed to include a broad exemption and variance
procedure, and that, inter alia, strict water pollution control and stringent
detection and enforcement regulations went beyond the scope of power
vested by SMCRA in OSM. Most of these challenges were rejected by
the District Court which generally upheld OSM’s rulemaking efforts.69
Subsequently, nine separate lawsuits were filed challenging OSM’s
permanent program regulations. These actions were also consolidated for
review in the United States District Court for the District of Columbia.70
Coal industry and state challenges to the permanent program regulations
included assertions that OSM’s lengthy and detailed regulations violated
Congressional intent by usurping discretion allocated to the states. More
specifically, coal industry and state plaintiffs assailed the complex and
expensive permit application process OSM’s regulations imposed on both
state agencies and coal operators.71
66 See Edgcomb, at 311-326.
67 Court challenges to OSM regulations were also initiated by conservation and
environmental organizations.
68 In re Surface Mining Litigation, 452 F. Supp. 327 (D.D.C. 1978)(motion for summary
judgment and preliminary injunction); 456 F. Supp. 1301 (D.D.C. 1978)(motion for
summary judgment), aff ’d in part, rev’d in part, and remanded, 627 F.2d 1346 (D.C. Cir.
1980).
69 456 F. Supp. 1313-1315.
70 In re Permanent Surface Mining Regulation Litigation, 13 Env’t Rep. Cas. (BNA)
1447 (D.D.C. 1979).
71 These challenges were ultimately rejected in In re Permanent Surface Mining
Regulation Litig., 653 F.2d 514 (D.C. Cir.)(en banc), cert. denied, 454 U.S. 822 (1981)
408
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.04
At bottom, these challenges were based upon the coal state and
industry view that the states had primary governmental responsibility for
developing regulations under SMCRA.72 These attacks on the permanent
program regulations were largely rejected by the courts.73
Environmental organizations also challenged aspects of the permanent
program regulations. Most of their complaints were also turned aside by
the courts.74
Coal industry plaintiffs also filed suits for injunctive relief in
Pennsylvania, Ohio, West Virginia, Indiana and Kentucky, relying on an
obscure provision in SMCRA to successfully enjoin for one year the
implementation of OSM-approved permanent state programs.75 30 U.S.C.
§ 1253(d) provides in pertinent part:
for the purposes of this section . . . the inability of a State to
take any action the purpose of which is to prepare, submit or
enforce a State program, or any portion thereof, because the
action is enjoined by the issuance of an injunction by any
court of competent jurisdiction shall not result in . . . the
imposition of a Federal program. Regulation of the surface
coal mining and reclamation operations covered or to be
covered by the [enjoined] state program subject to the
injunction shall be conducted by the State pursuant to [the
interim program requirements of section 1252], until such
time as the injunction terminates or for one year, whichever
is shorter . . . .76
.72 In re Permanent Surface Mining Regulation Litig., 13 Env’t Rep. Cas. (BNA) 1586
(D.D.C. 1979).
73 In re Permanent Surface Mining Regulation Litigation, 14 Env’t Rep. Cas. (BNA)
1083 (D.D.C. 1980)(mem. op.). This district court decision was largely affirmed by In re
Permanent Surface Mining Regulation Litig., 653 F.2d 514 (D.C. Cir.), cert. denied, 454
U.S. 822 (1981).
74 Id.
75 See 30 U.S.C. § 1253(d).
76 Id. (emphasis added).
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§ 11.04
EASTERN MINERAL LAW INSTITUTE
These suits were filed shortly after the Presidential election of 1980.
The plaintiffs alleged, in essence that they would be immediately and
irreparably harmed should the new Reagan Administration change the
permanent program requirements after the State had begun enforcing a
permanent program approved by the Carter Administration OSM.77
Industry and States also attacked the constitutionality of SMCRA in
five lawsuits,78 alleging numerous constitutional defects including
challenges based on the Commerce Clause, the Due Process Clause, the
Contract Clause, the Equal Protection Clause, the Tenth Amendment, and
the Just Compensation Clause.79 While these constitutional challenges
by state and coal industry plaintiffs found a receptive audience in several
federal district courts where judges granted sweeping injunctive and
declaratory relief,80 the Supreme Court of the United States reversed the
77 Essentially, the relief granted in these cases eased the way for Reagan Administration
revision of permanent program requirements and delayed state permanent program
implementation.
78 See generally Anthony Pye, “The Supreme Court Rejects Constitutional Challenges
to the Surface Mining Control and Reclamation Act of 1977,” 48 Brook. L. Rev. 137
(1981).
79 SMCRA provisions subjected to constitutional attack included: provisions requiring
return of mined land to approximate original contour and pre-mining productivity, 30
U.S.C. § 1265(b)(3) and (5); civil penalty assessment, cessation order, and appeal
procedures, 30 U.S.C. §§ 1268(a), (c), 1271(2), (3); prime farmland requirements, 30
U.S.C. §§ 1265(b) and (c), and 1257(b)(16); designation of certain lands as unsuitable
for mining, 30 U.S.C. § 1272 (a), (c), (d), (e)(4) and (5); permit application requirements,
30 U.S.C. §§ 1258(a)(2), (3), (4), (8), and (10), §§ 1260 (b)(1) and (2).
80 See Concerned Citizens of Appalachia v. Andrus, 494 F. Supp. 679 (E.D.Tenn. 1980);
Indiana v. Andrus, 501 F. Supp. 452 (S.D. Ind.1980), rev’d sub nom. Hodel v. Indiana,
452 U.S. 314 (1981); Virginia Surface Mining & Reclamation Ass’n v. Andrus, 483 F.
Supp. 425 (W.D. Va.1980), aff’d in part, rev’d in part sub nom., Hodel v. Virginia Surface
Mining & Reclamation Ass’n, 452 U.S. 264 (1981). But see Andrus v. P-Burg Coal Co.,
495 F. Supp 679, aff’d per curium, 644 F.2d 1231 (7th Cir. 1981); Star Coal v. Andrus, 14
Env’t Rep. Cas. (BNA) 1325 (S.D. Iowa 1980). See also Anthony Pye, “The Supreme
Court Rejects Constitutional Challenges to the Surface Mining Control and Reclamation
Act of 1977,” 48 Brook. L. Rev. at 142-143 (1981)(“The decisions of the lower courts
were inconsistent and reflected a fundamental tension between the demands of national
environmental policies and those of states and individuals unwilling to cede to the national
government rights and powers that they claim have always been reserved either to the
states or to the people.”).
410
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.04
lower courts, upholding the constitutionality of each challenged
provision.81
These numerous court challenges were generally unsuccessful on the
merits of the multitude of claims alleged. However, the extensive litigation
did cause lengthy delays, and these delays in SMCRA permanent program
implementation and enforcement had the unintended result of engendering
confusion and uncertainty between and among regulated entities, the
States, OSM, and citizens of the coalfields with regard to SMCRA
requirements. Indeed, the conflicts and confusion resulting from the
uncertainty spawned by SMCRA litigation continues to be felt today,
almost twenty years after SMCRA was enacted.82
In addition to Court challenges during OSM’s “Carter years,” some
coal mining states attempted to enlist the aid of Congress in efforts to
blunt what they believed was OSM’s usurpation of state authority. They
argued that the federal agency’s new permanent program regulations were
based upon an erroneously expansive interpretation of federal powers under
the Act which, in turn, had provided a legal rationale for OSM’s
overzealous and intrusive implementation of SMCRA.83 Some industry
and coal state interests also complained to Congress that OSM had ignored
81 Hodel v. Virginia Surface Mining and Reclamation Ass’n, 452 U.S. 264 (1981);
Hodel v. Indiana, 452 U.S. 314 (1981).
82 This comment is not intended in any way as an evaluation of the merits of the claims
made in these cases by the various environmentalist, citizen group, coal industry, and
state government interests that at one time or another have sought judicial relief against
OSM. The point here is simply that a multitude of SMCRA provisions and OSM
regulations have been in various stages of litigation for almost two decades. The unsettled
nature of OSM’s permanent regulatory program has obviously created uncertainty among
those who must either conform their behavior to the law or who rely upon proper
enforcement to protect their lives and property.
The authors also wish to point out that the litigiousness of the parties has certainly
been fostered by the judicial review provisions of SMCRA, especially 30 U.S.C. § 1276(a)
which requires that approval or disapproval of state regulatory programs or promulgation
of OSM regulations must be challenged in an appropriate U.S. district court “within
sixty days from the date of such action,” unless review is based “solely on grounds arising
after the sixtieth day.”
83 See “Implementation of the Surface Mining Control & Reclamation Act of 1977:
Oversight Hearings Before the Subcomm. on Energy and the Environment of the House
Comm. on Interior and Insular Affairs,” 95th Cong., 2d Sess. 11-25 (1978).
411
§ 11.04
EASTERN MINERAL LAW INSTITUTE
the important role SMCRA reserved for the States.84 Also, some coal
industry and state interests viewed OSM as “an agency in collusion with
environmentalists.”85
In 1979 and 1980, coal-state officials joined with industry interests to
advance proposed amendments to SMCRA to nullify OSM’s authority to
require state programs to be in “accordance” with federal permanent
program regulations. Labeled the Rockefeller Amendment (after its chief
supporter, then West Virginia Governor Jay Rockefeller IV), the proponents
argued that the Amendment would have reestablished the state lead
contemplated by SMCRA. Its detractors, however, believed that the
amendment would give the states such broad discretion that the minimum
national protections of SMCRA would be destroyed. 86 The Rockefeller
Amendment was passed in the Senate but never came to a vote in the
House.87 The effort was somewhat effective, however, in pressuring OSM
to back off a bit from its attempts to strictly construe federal power under
84 See generally, Terry D. Edgmon & Donald C. Menzel, “The Regulation of Coal
Surface Mining In a Federal System, 21 Nat. Resources J. 245 (1981); Robert J. Gage,
“The Failure of the Interim Regulatory Program Under the Surface Mining Control and
Reclamation Act of 1977: The Need For Flexible Controls,” 81 W. Va. L. Rev. 595 (1979).
85 See, e.g., “Congressmen Call for Investigation of OSM,” LandMarc, at 10 (May,
1980)(publication of Mining & Reclamation Council of America). See also “One Small
Coal Producer Advertises Against Government Regulations,” LandMarc at 9 (July
1980)(Pennsylvania coal operator Maynard Graham complaining that inspectors came
to his mine site and ordered him to cease operations because he was not adequately
bonded: “It seems to me that the federal government will not let up with its excessive
regulations until most of us coal operators are driven out of business. . . . The regulations
that we are charged with violating are all unconstitutional and can very easily be proven
so to a jury.”). See also Jim Zoia, “An Industry Under Siege,” LandMarc 5, at 6 (April,
1980)(“Yet what is OSM’s assignment? Industry asks: Is it to enforce the mandate of
Congress or to harass the coal industry with ‘nitpicking’ and ‘cookbook’ regulations
aimed at forcing small business out? Who should control the destiny of the surface coal
mining industry — the federal government or the free enterprise system?”).
86 Edgcomb, supra, at 332.
87 125 Cong. Rec. 23,991 (1979). For contrasting views on the Rockefeller Amendment,
compare Robert J. Shostak, “The Pit and the Pendulum: The Senate and S. 1403,” 82 W.
Va. L. Rev. 1221, 1230 (1980) with Dennis M. Abrams, “The Rockefeller Amendment:
Its Origins, Its Effect, and Its Future,” 82 W. Va. L. Rev. 1241 (1980).
412
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.05
SMCRA and its attempts to assiduously oversee state primacy
implementation.88
§ 11.05.
The Reagan Administration’s “Regulatory
Reform.”
The permanent regulatory program developed and promulgated by
OSM during the Carter Administration withstood a multitude of judicial
challenges and a serious effort to amend SMCRA. While OSM may have
been battered and badly bruised, it had nonetheless emerged largely intact
in 1981 when the Reagan Administration’s Interior Secretary James Watt
assumed control over the agency and charted a new path for SMCRA
primacy. This path proved to be as bold and aggressive as that of Jimmy
Carter’s Interior Secretary Andrus, but the Watt roadmap veered
dramatically in a direction precisely opposite from that taken by Andrus.
In January 1981, Secretary Watt triggered a full-scale reevaluation of
OSM’s permanent program regulations.89 OSM’s first Director in the
Reagan Administration, James Harris, explained that reinvigorating state
primacy would be the agency’s central theme during his tenure.90 This
reevaluation of OSM regulations resulted in the creation of a “rulemaking
calendar” scheduling numerous permanent program rules for revision.91
These rulemaking plans targeted hundreds of permanent program
88 See “Interview Nick Rahall,” LandMarc at 23 (February 1980). Representative Nick
Rahall (D-WVA), when asked to assess OSM’s performance to date, responded,
“[i]nitially, I think it was horrible . . . . Lately, and especially since the advent of the
Rockefeller Amendment and the Senate passage of S. 1403, I think there has been a
much stronger effort by OSM to work with the states and grant them variances when
they can.” Id. at 26. Interestingly, Rep. Rahall now is a vigorous advocate of strong
federal oversight of state primacy programs. See infra section VII. Furthermore, former
LandMarc writer Jim Zoia is now an aide to Rahall. See also Richard K. Vietor, “Strip
Mining in Washington: A Tougher Fight,” Environmental Politics and the Coal Coalition
(1980).
89 See, e.g., 30 C.F.R. Parts 730-732 (1981).
90 See Harris & Close, “Redefining the State Regulatory Role,” 12 Envtl. L.J. 921-30
(1982). Harris had been an official of the Indiana State regulatory authority that had
joined with the coal industry in challenging the constitutionality of the SMCRA in Indiana
v. Andrus, 501 F. Supp. 452 (S.D. Ind. 1980), rev’d sub nom., Hodel v. Indiana, 452 U.S.
314 (1981).
91 See National Wildlife Fed’n v. Watt, No. 82-0320 (D.D.C. 1982)(unreported decision).
See also 47 Fed. Reg. 1709-10 (1982).
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§ 11.05
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regulations for revision or elimination; the provisions under review
constituted approximately 60 percent of the regulations.92
One commentator has observed that “[m]any [environmentalists and
others] viewed the [Watt] deregulation and ‘new federalism’ rhetoric as
thinly-veiled proposals to return the industry to the dark ages of state
competition for mining business, which often resulted in ‘inoffensive’
state regulatory programs.”93
Implementation of many of the Reagan-Watt OSM’s regulatory
changes were challenged in court by environmental and conservation
organizations.94 While the coal industry and the coal states were generally
supportive of the Watt reevaluation, these groups had concerns about the
changes, too. Some challenges were upheld and the implementation of a
significant number of surviving regulatory revisions were delayed for years
in additional proceedings upon remand.95
Another OSM move under the Reagan Administration was seen by
environmentalists as undercutting OSM’s oversight authority. According
to one source “almost 50 percent of OSM’s experienced personnel” left
the agency after Secretary Watt’s 1981 reorganization efforts resulted “in
a significant state of disarray [at OSM].”96
92 Edgecomb, at 335, citing, 12 Env’t Rep. (BNA) 1341 (1982).
93 Id. at 334. Critics were concerned, for example, that the Reagan OSM’s proposed
changes in the permanent regulatory program eliminated or modified many of the
regulations’ citizen rights provisions. See e.g., 30 C.F.R. §§ 736.15, 760.1-.4, 761.2, 761.4
(1982)(citizen petitions to have federal lands designated as unsuitable for mining; 47
Fed. Reg. 25,300 (1982)(imposing heightened standing requirements for unsuitability
petitioners and vague notice and hearing requirements); 46 Fed. Reg. 59,482-84
(1981)(restricting citizen access to state surface mining control plans); 30 C.F.R. §§ 840.1.15, 842.1-.16, 843.1-.19, 845.1-.20 (1982)(deleting existing requirements that allow
citizens to accompany state inspectors on mine site inspections made pursuant to the
citizen’s complaint.).
94 National Wildlife Fed’n v. Hodel, 839 F.2d 694 (D.C. Cir. 1988).
95 See, e.g., National Wildlife Fed’n v. Watt, No. 82-0320 (D.D.C.), 12 Env’t Rep. (BNA)
1712-1313 (1982)(challenging regulation amendments as violative of the environmental
impact statement requirement of the National Environmental Policy Act, 42 U.S.C.
§4332(2)(C). Thus, environmentalist attacks on the Reagan OSM regulations and states
and industry challenges to the Carter OSM regulatory initiatives had the cumulative effect
of disrupting and delaying for years full implementation of SMCRA.
96 D. Lewis, “OSM: A Controversial Past, An Uncertain Future,” LandMarc at 16 (Sept./
Oct. 1985)(quoting L. Thomas Galloway, counsel for Appalachian citizen groups).
414
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.06.
§ 11.06
SMCRA Administration and Enforcement Under
the Reagan and Bush Administrations.
James Watt’s star burned brightly but quickly in the SMCRA galaxy.
He was forced to resign as Interior Secretary in 1983 amidst charges that
he was ineffective and a racist.97 Watt was succeeded by William Clark, a
close friend of President Reagan, whose primary responsibility was to
make SMCRA (and everything else at the Interior Department) a political
non-issue during the President’s campaign for reelection in November
1984. Having accomplished that goal, Secretary Clark returned to private
life and was succeeded by Donald Hodel, who served as Interior Secretary
through the end of the Reagan Administration. Perhaps as politically
conservative as James Watt, the relatively colorless Hodel diligently
attempted to carry out the Watt regulatory reform agenda, and with some
success.
By the time George Bush took the oath of office as President, OSM,
and indeed many of its stakeholders, had almost exhausted themselves as
a result of the violent wrenches in policy and direction in the first decade
of SMCRA’s implementation.
At the inception of his term, President Bush appointed Manual Lujan,
a veteran congressman from New Mexico, as Interior Secretary. Secretary
Lujan served during the entire Bush Administration, and although affable
and accessible, he cared little about SMCRA and OSM. Much of the
responsibility for OSM’s direction, therefore, rested on OSM Director
Harry Snyder, who, while attempting to walk a balanced path, tilted
initially to environmental interests and then toward industry, ultimately
alienating both groups.
OSM’s regulatory reforms and the agency’s administration and
enforcement during the Reagan and Bush Administrations brought mixed
reviews from Congress, coal states, environmentalists and the coal industry,
and, for the most part, the drumbeat of criticism of the agency from all
97 “What James Watt Said — and Did,” N.Y. Times, Oct. 11, 1983, at A30. Mr. Watt
described members of a federal commission he had appointed to study federal coal
leasing issues as “a Black . . . a woman, two Jews and a cripple.” See also Caroline Rand
Herron and Michael Wright, “Further Thoughts of James Watt,” N.Y. Times, Sept. 25,
1983, Section 4 at 4.
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§ 11.06
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quarters did not cease during this period. Environmentalists, conservation
organizations and coalfield citizen organizations were most unhappy with
OSM’s performance, and state regulators along with many in the coal
industry continued to find serious fault with both the agency and the Act
itself.98
One eastern coal company spokesman stated in 1985 that
[SMCRA] hasn’t had a well-charted course from the outset.
Jimmy Carter’s radical liberals wrote one (Act) that was off
base — almost unworkable and then Reagan had people
rewrite it and half of that was remanded after modest changes
were made. It’s like a ship without a rudder. Here it is, 1985,
and OSM is still changing things.99
That same year, more than four years after the Reagan Administration
took office with a promise of reform of OSM, eastern Ohio coal operator
Robert Gentile observed that “[w]hat has happened in the surface mining
industry is that a regulation form and structure have been developed, but
there is no substance.”100
From a different perspective, SMCRA’s principal supporter in
Congress, and its author in the House, Representative Morris Udall (DAZ) joined the chorus of voices raised in opposition to OSM’s oversight
of SMCRA. Testifying at a Congressional oversight hearing in 1985,
Representative Udall stated that “I cannot recall any time in my entire
congressional career when I have been faced with such overwhelming
evidence of bureaucratic incompetence and dereliction of duty as I see at
OSM today.”101 Representative Udall joined other critics in alleging that
serious lapses of administration and enforcement by OSM and the states
had occurred during the tenure of Secretary Watt.102
98 See, e.g., D. Lewis, “OSM: A Controversial Past, An Uncertain Future,” LandMarc
at 13 (Sept./Oct. 1985).
99 Id. at 16, 19. (parenthetical added).
100 Id. at 12. Robert Gentile later became OSM’s director.
101 John F. Seiberling, “How Effective Is the Federal Strip Mining Law?” 88 W. Va. L.
Rev. 509, 516 (1986).
102 Id.
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While the coal states and the coal industry continued to decry OSM’s
frequent intervention in state primacy program administration and
enforcement, others argued that OSM had abjectly failed to properly
oversee state primacy programs. One commentator succinctly summarized
this harsh criticism:
A large amount of regulatory leeway . . . is currently afforded
the states. After all, local governments have taken an even
weaker stand against strip-mining than OSM. Striking
examples of past state complicity with illegal activities include
local rules reducing the official size of mines to less than two
acres, approval of blatantly invalid on-site construction
exemptions, support of the ‘old boy’ network shielding wildcatters from prosecution, and a myriad of enforcement
failures. Indeed, the states’ records prove that their
management deficiencies go far beyond tight budgets. In light
of local governments’ feeble contributions to SMCRA
implementation . . . state enforcement programs warrant close
monitoring.103
OSM and state failures subject to such criticism were legion. For
example, it was asserted by L. Thomas Galloway (counsel for a number
of citizen and environmental groups) that under the state primacy programs
overseen by the Reagan and Bush administrations, 6000 mines were
abandoned without reclamation.104 One half of 2400 cessation orders
issued by state and federal regulators were never abated.105 Civil penalties
in the amount of more than $155 million were never collected.106
103 Lily Whiteman, “Recent Efforts to Stop Abuse of SMCRA: Have They Gone Far
Enough?” 20 Envtl. L. 167, 205 (1990)(hereinafter “Whiteman”).
104 See Tenth Anniversary of the Surface Mining Control and Reclamation Act of 1977:
Oversight Hearing Before the Subcomm. on Energy and the Environment of the House
Comm. on Interior and Insular Affairs, 100th Cong., 1st Sess. at 9 (1987)(hereinafter
“1987 hearings”).
105 Id. at 106.
106 Accounting and Financial Management Division, General Accounting Office Surface
Mining: Debt Collection, Interior’s Efforts to Collect Delinquent Royalties, Fines and
Assessments 2 (1987)(“Debt Collection”).
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Significant proportions of these statistics resulted from the behavior of
fly-by-night, judgment-proof, irresponsible coal operators who used
several seemingly innocuous SMCRA “exemptions” from regulation to
flagrantly escape SMCRA’s regulatory reach.107 Among these were the
“two-acre exemption,”108 the “on-site construction” exemption,109 the
“coal exploration” exemption exploited by “wildcatters,”110 and the
“incidental mining” exemption.111
107 One observer has commented upon the rationale underlying these exemptions:
. . . these special provisions made sense. Congress appreciated the relatively
negligible environmental threat posed by noncommercial extraction, legitimate
two-acre sites, and exploratory work, compared to the tremendous cost of
regulating such activities for both the government and the miners. Congress
apparently also realized that sites yielding minor proportions of coal as byproducts of other activities should not be treated like mines. Such operations
are more appropriately regulated by other environmental statutes. Despite the
worthy purpose and narrow focus of each SMCRA exemption, many dishonest
miners have hidden illegal and destructive activities under the two-acre,
incidental, and on-site construction exemptions.
Lily Whiteman, “Recent Efforts To Stop Abuse Of SMCRA: Have They Gone Far
Enough?” 20 Envtl. L. 167, at 171 (1989).
108 See 30 U.S.C. §1278(2). The exemption was intended to relieve those who operated
tiny mines to avoid the almost certain financial chaos that would accompany their being
required to comply with SMCRA permitting and reclamation requirements. See S. Rep.
No. 128, 95th Cong., 1st Sess. 98 (1977). To make their operations eligible for the twoacre exemption and thus avoid SMCRA regulation, unscrupulous coal operators artificially
segmented large and medium-sized mines into two-acre or less parcels. Because each
site satisfied the two-acre requirement, state regulators allowed the operation to escape
SMCRA regulation. Often each pit/mine would be run ostensibly by a different company,
which were in fact merely sham entities designed to confuse regulators and the public.
Failure to properly monitor two-acre exemption sites left 4000 small mines abandoned
without reclamation. See generally Whiteman at 171-76.
109 See 30 U.S.C. § 1278(3)(1982). This exemption was exploited by coal operators
who drew up sham plans for various types of development projects like shopping centers,
resorts and housing complexes. After obtaining state regulators’ approval the operator
would simply mine coal and never follow through on the construction plans, thus totally
evading regulation under SMCRA. OSM inspectors discovered such scams at eighty
(80) of one hundred (100) exempted construction sites they visited in Kentucky. See
“Swigart’s Decision on Exemptions Important Step Toward Primacy,” Lexington [Ky.]
Herald, Sept. 2, 1980, at A10, col. 1,2.
110 See 30 U.S.C. § 1262. “Wildcat” coal operations evaded SMCRA regulation by one
of two ploys: (1) a small group of miners mining an unpermitted site for several weekend
418
SMCRA: COOPERATION OR CONTROVERSY?
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Other highly controversial issues in which OSM managed to satisfy
none of its stakeholders included “ten-day notices,”112 “ownership and
control” rules, and the related “applicant violator” system.113
Thus as the era of the Reagan-Bush Administration closed at OSM,
the agency was under fire from all sides, with its morale and credibility at
an all time low.
nights, or (2) operators misleading the state regulators by claiming only to be engaged in
“exploration.” While SMCRA’s exploration exemption limits coal removal to two hundred
and fifty tons, wildcatters often mined tens of thousands of tons without being detected
by state or federal inspectors. In 1986 wildcatters netted approximately $52.5 million at
such unpermitted sites in Kentucky. See generally, Comment, “Recent Efforts to Stop
Abuse of SMCRA: Have They Gone Far Enough?” 20 Envtl. L. at 171-176.
111 See 30 U.S.C. § 1291(28)(A); 52 Fed. Reg. 20546 (1987). Congress intended that
the “incidental” exemption apply only to operations such as limestone quarries that extract
only a small amount of coal in proportion to other minerals mined. Lax state regulatory
agencies allowed the widespread abuse of this provision. In Oklahoma, for example,
coal worth almost $25 million was mined from one site where the operator fraudulently
utilized the “incidental exemption”; 800,000 tons of coal were mined under the incidental
exemption from a California site. See Whiteman at 175-182.
112 See 30 U.S.C. § 1271(a)(3), 30 C.F.R. §§ 843.12(a)(2), 842.11(b). These regulations
deal with OSM’s authority to issue notices of violation in primacy states. The ten-day
notice process refers to action by OSM to enforce SMCRA if the state, after such notice,
fails to take “appropriate” action or show “good cause” for such failure. See also Timothy
Gresham, “Federal Notices of Violation in Primacy States: Oversight or Overkill?” 3 J.
Min. L. & Pol’y 375 (1988). National Coal Ass’n v. Uram, 39 Env’t Rep. Cas. (BNA) 624
(D.D.C. 1994).
113 See 30 U.S.C. § 1260(c) which provides that no permit (new, revised or renewed)
will be granted by the regulatory authority if any surface coal mining operation “owned
or controlled by” the permit applicant is in violation of SMCRA or several other
environmental laws. The question of what constitutes ownership and control and the
efficacy of the applicant violator system (the computer system used by OSM to identify
“ownership or control” links) has bedeviled OSM and its stakeholders for the past 15
years. See also Thomas C. Means, “The Applicant Violator System: A Critical Evaluation,”
6 E. Min. L. Inst. Ch. 6 (1989); Thomas C. Means and J. Michael Klise, “The Applicant
Violator System Revisited: A Regulatory and Litigation Update,” 13 E. Min. L. Inst. Ch.
7 1992. See also Save Our Cumberland Mountains, Inc. v. Watt, 18 Env’t Rep. Cas.
(BNA) 1817 (D.D.C. 1982); Save Our Cumberland Mountains, Inc. v. Lujan, 963 F.2d
1541 (D.C. Cir. 1992); National Mining Ass’n v. United States Dep’t of the Interior, 70
F.3d 1345 (D.C. Cir. 1995), petition for reh’g and suggestion for reh’g en banc filed,
Jan. 26, 1996.
419
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Meaningful Reform or a Race to the Bottom:
The Surface Mining Control and Reclamation Act
Amendments of 1995.
The Clinton Administration was slow off the starting block as far as
OSM was concerned. For months OSM was headed by an acting career
official. In July 1993, Interior Secretary Bruce Babbitt finally focused on
the agency when he met in Lexington, Kentucky with a large delegation
of coal industry officials from around the nation, local OSM employees,
and environmentalists. He told the coal group:
It would be very difficult in modern history to find a regulatory
program characterized by such incredible dissension, such a
pervasive degree of litigation, and . . . antagonism on all
sides.114
Still struggling to identify an OSM director, in November 1993 Babbitt
appointed an “Interim Management Team” to thoroughly evaluate OSM.
This team met extensively with OSM employees, state regulators, coal
industry representatives, environmentalists, labor union officials and
citizen groups, ultimately producing a detailed action plan. This plan was
adopted by the current OSM Director, Robert J. Uram, who was confirmed
by the Senate in March 1994, almost fourteen months after the beginning
of the Clinton Administration. Moving swiftly, Uram articulated what he
described as a “shared commitment” between OSM and the states. During
1994 Director Uram reorganized OSM, developing a “Mission and Vision
Statement,” a comprehensive strategic plan, customer service standards,
and the “Appalachian Clean Streams Initiative,” a cooperative effort of
stakeholders aimed at cleaning up acid mine drainage in Appalachia.115
Yet in spite of Director Uram’s efforts, the frustrations of many were
not assuaged, and as the newly-elected 104th Congress took power, with
Republicans controlling both the Senate and the House of Representatives
for the first time since 1948, the stage was set for a new phase of the
ongoing debate of the federal-state relationship under SMCRA.
114 Joseph S. Stoud, “Babbitt Gives OSM a Pep Talk, Tells Coal Industry To Expect
Major Changes,” Lexington Herald-Leader, July 27, 1993 at A1.
115 See generally U.S. Dep’t of the Interior, Off. of Surface Mining 1994 Annual Rep.
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After these many years of extensive criticism, litigation, and mistrust
growing out of federal regulation under SMCRA, it is not surprising that
a major effort to amend the statute is underway.116 What is perhaps
surprising to some of SMCRA’s critics is that they have been made to
suffer so long. That the political environment now lends itself to change
is at least partially explained by the make-up of the 104th Congress,
reflective of sentiment among many that the federal government is
overwhelming and overweight. As the Congressional majority advocates
slashing federal spending and returning to states discretion in both
implementation and enforcement of a variety of programs within their
borders, federal regulation of surface mining is a logical target of cuts.117
Presently, there are two bills before the 104th Congress which seek to
amend SMCRA based on this philosophy: Representative Barbara Cubin
(R-WY) introduced H.R. 2372 on September 21, 1995; Senator Robert
Bennett (R-UT) introduced a companion bill in the Senate, S. 1401, on
November 8, 1995.118
116 SMCRA actually has been amended over 50 times. Office of Surface Mining
Reclamation and Enforcement, U.S. Dep’t of the Interior, Public Law 95-87 Surface
Mining Control and Reclamation Act of 1977. While most of these amendments were
non-controversial (often occurring in the context of appropriations bills), significant
amendments to SMCRA dealing with subsidence, repair, compensation, and water
replacement, and use of interest from the Abandoned Mine Reclamation Fund to pay
health benefits to retired UMWA miners were passed as part of the Energy Policy Act of
1992. 42 U.S.C. §§ 13201, et seq.
117 Representative Ken Calvert (R-CA), a co-sponsor of the House bill and chairman of
the House Subcommittee on Energy & Mineral Resources of the House Committee on
Resources, during a subcommittee meeting to discuss H.R. 2372, stated:
empowerment of state governments, which by definition are more
responsive to local needs, is just what the agenda of the 104th Congress is
all about. [I]t appears everyone, including the Administration, agrees that
funding of federal inspectors in States with primacy programs was a logical
place to cut scarce dollars. I see this bill as a good legislative start to back
up the reduced funding OSM can expect to receive not just this year but
for the foreseeable future as well.
Opening Statement of the Honorable Ken Calvert, Legislative hearing on H.R. 2372 before
the House Subcommittee on Energy & Mineral Resources, House Committee on Resources
(Nov. 9, 1995)(hereinafter “hearing”).
118 141 Cong. Rec. S16821 (daily ed. Nov. 8, 1995).
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According to its proponents, this legislation seeks to reform and
remedy the perceived unnecessary duplication of dual federal-state
regulation in the area of surface mining regulation. The two bills make
this notion express in their stated purposes:
To amend the Surface Mining Control and Reclamation Act
of 1977 to minimize duplication in regulatory programs and
to give States exclusive responsibility under approved States
programs for permitting and enforcement of the provisions
of that Act with respect to surface coal mining and reclamation
operations, and for other purposes.119
Past policy, driven by fears that states were incompetent or at least
politically and economically resistant to enforcing meaningful regulation
of the surface mining industry, has been replaced in these bills with an
express declaration:
a majority of the coal producing States have developed
programs that regulate surface and underground coal mining
operations within their borders in an environmentally sound
manner, taking into account the diversity in terrain, climate,
chemical, and other physical conditions in areas subject to
mining operations.120
In amending SMCRA’s opening section, the bills mandate that
“duplication in regulatory programs be avoided” and that “States assume
119 H.R. 2372. See also S. 1401. In Rep. Cubin’s introduction of H.R. 2372, she urged
that the bill:
will clarify the respective roles of the Federal and State governments, avoid
costly and inefficient duplication in inspection and enforcement and
establish clearer lines as to the activities subject to the law.
141 Cong. Rec. E1831-32 (daily ed. Sept. 21, 1995).
In a press release following the hearing, Rep. Cubin stated “No more excuses, no
more gimmicks — it’s time to limit the expansion and overpowering influence of the
federal bureaucracy.” Press Release, Subcommittee hearing Held on Cubin Legislation,
“SMCRA Bill Advocates States Rights.”
120 § 2, H.R. 2372, amending § 101, SMCRA. 30 U.S.C. § 1201. See also § 2, S. 1401.
In the 18 years since SMCRA was enacted, 23 of the 26 coal producing states have
achieved primacy. 141 Cong. Rec. E1832 (daily ed. Sept. 21, 1995).
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SMCRA: COOPERATION OR CONTROVERSY?
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the exclusive responsibility under the approved State programs for
permitting and enforcement of the provisions of [SMCRA].”121
The proposed legislation seeks to curtail OSM’s duties in comparison
to the authority it now exercises, or abuses, depending on one’s perspective.
Under the amended Act, OSM still would be responsible for administering
federal programs, as well as reviewing and approving State programs, but
its full enforcement power would apply only in States without approved
State programs, or states without primacy. 122
Section 4 of the proposed legislation amends SMCRA § 503, “State
Programs,”123 by adding explicit language that “the State program shall
apply in lieu of this Act to surface coal mining and reclamation operations
in the State.”124 Thus, according to proponents the states would be able
to tailor laws to their specific needs, secure OSM approval if their programs
merit it, and thereby insure that no provision of the federal law regulating
surface mining could be enforced against them. Further, the amendments
mandate that any regulations the Secretary promulgates under SMCRA
will not become effective with respect to surface mining operations in a
primacy state until the State amends its program accordingly and the
permittee has been provided a “reasonable time” in which to conform
present practice to the new.
Section 5 of the proposed legislation significantly and clearly limits
OSM’s enforcement authority by eliminating OSM’s ability to issue
Notices of Violation in a primacy state except where OSM follows the
procedures under SMCRA § 521(b)125 for the takeover of an inadequate
or failing State program. In other words, in a primacy state, until OSM
takes affirmative steps to strip the state of primacy, OSM may not issue
notices of violations. OSM would retain its authority to issue cessation
orders in cases of imminent environmental harm.126
121 § 2, H.R. 2372, amending § 101, SMCRA. See also § 2, S. 1401.
122 § 3, H.R. 2372. See also § 3, S. 1401.
123 30 U.S.C. § 1253
124 § 4, H.R. 2372. See also § 4, S. 1401.
125 30 U.S.C. § 1271(b).
126 30 U.S.C. § 1271(a)(2).
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Section 6 of the bill proposes to amend § 506127 of SMCRA to deem
an operator’s compliance with an approved permit automatic compliance
with SMCRA’s performance standards as well as the state program, subject
to the regulatory authority’s right to require reasonable revisions to permits
to ensure compliance with the Act and the State program.128
Section 7 of the proposed legislation amends Section 521(a)(3) and
129
(4)
to clarify further that OSM has no authority to issue NOVs in a
primacy state absent compliance with the Act’s provisions delineating
federal takeover of a state program. Section 7, adding a subsection to
existing SMCRA § 521(a), also explicitly provides that the “regulatory
authority”130 shall have the “sole responsibility for issuance of a notice
to the permittee or his agent of a violation” and for the “suspension or
revocation of any permit issued pursuant to a State program.” Further, §
7 provides that state law governs any judicial or administrative review of
the regulatory authority’s decision.
Section 7 also clarifies that enforcement of the Clean Water Act131 at
surface coal mining and reclamation operations is solely the responsibility
of the regulatory authority approved by EPA rather than by OSM.132
Section 8 amends SMCRA’s judicial review sections to make an order
or decision by an administrative law judge a final decision and, thus,
127 30 U.S.C. § 1256.
128 As Senator Bennett explained in introducing S. 1401:
[t]he legislation would clarify that an operator’s responsibility is to conform
his operations to the terms and conditions of the approved permit for the
mine.
141 Cong. Rec. S16821-16822 (daily ed. Nov. 8, 1995).
129 30 U.S.C. § 1271(a)(3) and (4).
130 In a primacy state, the state agency responsible for implementation and enforcement
of SMCRA is the regulatory authority under the Act. See SMCRA § 701(22) and (26);
30 U.S.C. § 1291(22) and (26).
131 33 U.S.C. §§ 1251, et seq.
132 This provision appears to be an effort to moot allegations raised in January 1995 by
the National Wildlife Federation and the West Virginia Highlands Conservancy in notices
of intent to sue Secretary Babbitt and the State of West Virginia (under the citizen suits
provisions of SMCRA, 30 U.S.C. § 1270) for failure to enforce certain Clean Water Act
requirements under the approved West Virginia SMCRA state program.
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subject to judicial review absent the intermediate forum of appellate
administrative review of agency actions. In other words, appeal to the
Interior Board of Land Appeals would be abolished.133 Decisions of the
state regulatory authority are reviewable only under State law in the
proposed legislation, thus curtailing suits in federal court.
Section 9 of the bill sets a three-year statute of limitation for
enforcement actions, suits, or any other proceeding under the Act. This
section addresses the perception of some that OSM raised stale matters as
possible violations of SMCRA.
Most coalfield states, as represented by the Interstate Mining Compact
Commission (IMCC),134 and the mining industry, as represented by the
National Mining Association (NMA),135 have applauded these efforts to
reform SMCRA. According to the industry, SMCRA, as put into practice
133 Rep. Cubin has explained:
the legislation would remove an extra and inefficient layer of administrative
review of agency decisions before seeking review in court. The extra layer
of administrative appeals is a creature of OSM’s regulations and not
mandated by the existing statute.
141 Cong. Rec. E1832 (daily ed. Sept. 21, 1995).]
134 In the November 9 hearing, Gregory Conrad, executive director of the IMCC,
accompanied Fred Bowman, Illinois Department of Resources, who testified for IMCC.
Mr. Bowman introduced into the record an IMCC Resolution supporting H.R. 2372.
Not all states have endorsed the proposed SMCRA amendments. For example, in a letter
dated November 3, 1995, the head of the state surface mining regulatory agency in
Kentucky stated:
[Kentucky} does not endorse the changes in law proposed in H.R. 2372.
. . . We have found that the law’s provisions for dealing with citizen
complaints properly recognizes and respects the primacy of state decision
making, but still provides for checks and balances on federal counterparts.
This system, properly implemented, effectively promotes increased public
confidence in environmental enforcement. While any system is subject to
abuse, we have found that with sufficient leadership from the state and
federal partners, the current system works well.
Letter of November 3, 1995, quoted in Testimony of Thomas FitzGerald before the House
Subcommittee on Energy and Mineral Resources, (November 9, 1995).
135 At the hearing, Harold P. Quinn, Jr., Senior Vice President and General Counsel of
the NMA, testified in support of H.R. 2372. See also Harold P. Quinn, “Primacy Lost:
Uncooperative Federation Under the Surface Mining Control and Reclamation Act,”
report of the National Coal Association, January 23, 1995.
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by OSM, forces the coal industry to “serve two regulatory masters every
day, and for every ton of the [one] billion tons of coal produced, each
year.”136 Caught between trying to please OSM and the state regulatory
authority which issues the permits — two entities whose interpretations
of each other’s regulations often diverge — leaves the permittee facing
significant uncertainty.137 Uncertainty may breed unnecessary costs and
resultant waste of resources. From the coal industry’s point of view, H.R.
2372 (and its companion, S. 1401), is a welcome attempt to eliminate the
dual enforcement that gives rise to such uncertainty.138
Any amendment to SMCRA which is viewed as a “roll back” of the
environmental protection the Act embodies is certain to give rise to an
intense battle between those in favor of reform and those who view it as
regression to the pre-SMCRA era of laissez-faire regulation of the surface
mining industry. At the House Subcommittee hearing, Representative Nick
J. Rahall, (D-WVA), stated that the proposed legislation “represents a
declaration of war on coalfield citizens. It would rob them of a fundamental
right, hard fought over the course of lifetimes, to environmental justice.”139
The position staked out by Rep. Rahall (who pointed out during the hearing
that he was the only member of the subcommittee, as well as the only
person in the hearing room that day who was actively and directly involved
in the process culminating in the passage of SMCRA in 1977) is indicative
of the bitterness invoked by the proposals to amend SMCRA.140
According to then OSM director Robert J. Uram, the Clinton
Administration opposed the proposed legislation.141 Mr. Uram, during
136 Hearing (Testimony of Harold P. Quinn at 3).
137 Hearing (Statement of Blair M. Gardner, Vice President-External Affairs and Senior
Counsel, Arch Mineral Corporation, at 5).
138 Id.
139 Hearing, Opening Remarks of Rep. Nick J. Rahall.
140 Rep. Rahall characterized OSM as coal field citizens’ “second line of defense [or]
safety net” against a state’s potential failure to enforce the provisions of SMCRA. Id.
Further, Rep. Rahall stated that SMCRA “has well served the coal industry itself,” a fact
that the “less rabid State regulatory authorities understand.” Id. In his remarks, he pointed
out that neither Kentucky nor West Virginia support H.R. 2372. Id.
141 Testimony of Robert. J. Uram, Director, Office of Surface Mining Reclamation and
Enforcement of the U.S. Department of the Interior, hearing. Mr. Uram testified that the
Clinton Administration opposed H.R. 2372:
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SMCRA: COOPERATION OR CONTROVERSY?
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the Subcommittee hearing, testified that, despite the litigation arising from
SMCRA — litigation initiated by the States, industry and environmental
groups — the Act was generally working.142 In describing the existing
framework of the Act, Mr. Uram characterized States as “the primary
regulatory authorities” with OSM acting to insure a “level regulatory
playing field.”143 Mr. Uram predicted that H.R. 2372, if enacted, would
result in “coal industry representatives urging the States onward in a ‘race
to the bottom’ to weaken their enforcement and environmental protection
programs.”144 Further, Mr. Uram claimed that H.R. 2372 might have the
“ironic unintended consequence” of resulting in more federal takeovers
of failing state programs because the legislation robs OSM of its present
“graduated Federal response to deficient State compliance” currently
allowed under the Act.145
Coalfield citizens have also attacked the proposed SMCRA
amendments. For example, Tom FitzGerald, director of the Kentucky
Resources Council, Inc., testified before the House subcommittee on
Energy and Mineral Resources, strong criticizing the proposed
amendments:
This bill dramatically curtails both the role of the Secretary
of the Interior and the rights of coalfield residents. Beyond
stripping OSM of the ability to issue notices of violation where
the state has failed to act or justify inaction, the bill breaks
the promise that Congress made to coalfield residents in 1977
that although the states would be granted primary authority
to implement the law despite their abysmal record, a continued
federal presence and meaningful citizen access to federal
. . . it is unnecessary; it is likely to lead to the unraveling of effective State
programs which have taken years to develop; it will abrogate guarantees
provided coal field citizens that no matter which State they reside in, they
will have the same basic protection and legal rights; it will lead to
regulatory instability and more litigation; and it could ultimately result in
more instances of Federal takeovers of State program components. Id. at
3 (Statement).
142 Id. at 1.
143 Id. at 2.
144 Id. at 2.
145 Id. at 3.
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§ 11.08
forums would assure that the historic burdens of coal mining
would not be reimposed on their shoulders. 146
§ 11.08.
Conclusion.
It remains to be seen whether these SMCRA reform bills will be
inacted. Their consideration, however, has already had an impact on OSM,
and once again has brought into focus the differing views of stakeholders
as to how SMCRA should be administered. Perhaps even more important,
a new perspective in Washington, D.C., which promises to continue in
the foreseeable future, is that the federal budget is shrinking dramatically
for discretionary domestic programs. This phenomenon may continue
regardless of which political party controls the Congress or who sits in
the White House. The simple fact is that there are not enough federal
dollars to go around, and painful choices and cuts will be made. Thus,
OSM has already begun to examine its methods of operation in light of
this new budget-driven reality.146
The 20th anniversary of SMCRA occurred on August 3, 1997. What
was remarkable as this anniversary approached was how SMCRA’s themes
resonated. The debate continued as to whether OSM was the senior partner
to its state junior partners, or whether these two unique components of
American federalism were equal. Was it former OSM Director Robert
Uram’s vision of “shared commitment,” the “primacy lost” of NMA’s
Harold Quinn, or many coal field residents’ view of a “promised
unfulfilled”? And of course, the other themes of SMCRA –– how much
oversight and enforcement are enough and the detail of OSM’s regulations
–– sounded their notes, too.
146 Testimony of Thomas FitzGerald before the House Subcommittee on Energy and
Mineral Resources (November 9, 1995). FitzGerald also observed:
It has been suggested that federal enforcement authority creates conflict.
There is conflict inherent in the relationship between the coal industry
and the surface landowners, a conflict over the extent to which the
environmental costs of “doing business” must be internalized, or be borne
on the backs of those who live downhill and downstream in lost water
supplies, diminished economic opportunity, fouled air, and unsafe
roadways. Hamstringing OSM and restricting public access to federal
forums in those few cases where federal intervention is needed and has
been used, will worsen rather than salve that conflict. Id.
428
SMCRA: COOPERATION OR CONTROVERSY?
§ 11.08
Perhaps even more remarkable was the fact that since 1970, more
than two million acres of coal mined lands have been restored to their
original or better condition, along with more than 100,000 acres of mined
lands which were abandoned long ago.147 Thus beneath the cacophony
of the debate, much has been accomplished.
Some of the same old battles are being fought again and again. As the
20th anniversary of SMCRA is reached, however, it is hoped that the
beginnings of more harmonious discourse will be heard. At the very least,
the authors hope this will be so. Despite differing views and divers
experiences with SMCRA, our hope is enhanced because we found the
common ground to write this article.
147 See OSM’s “Notice of Public Meeting and Request for Public Comments,” 60 Fed.
Reg. 52412 (1995) and 60 Fed. Reg. 54705 (1995), seeking comments from the public on
“how much money [OSM] should ask for and how we should set our priorities to serve
your needs.”
148Facts About Coal at 55.
429