Regulation of coal mining
Michael R. Deland ERT,Concord,MA The Surface Mining Control and Reclamation Act of 1977 (SMCRA) thus far has received much less public attention than other federal environmental statutes such as the Clean Air and Water Acts of 1977 and the Resource Conservation and Recovery Act of 1976 enacted during the same period. Yet SMCRA, which is administered by the Department of Interior rather than by EPA, is equally complex and controversial and directly governs how our increasingly valuable coal resources can be mined. The act established the Office of Surface Mining Reclamation and Enforcement (OSM) and granted it authority to regulate both surface coal mining and the surface effects of underground coal mining. State primacy The act sets forth a mechanism whereby responsibility for implementation, or “primacy,” is to be transferred to the states once they adopt regulatory programs comparable to those of OSM. By the March 3, 1980 deadline, 24 of the 27 coal-producing states had submitted permanent programs to OSM for its approval. To date, OSM has granted primacy to two states and is in the process of conducting formal reviews of the other submittals. The review process is to be completed by Sept. 3, 1980, and the states will have an additional month to correct any deficiencies. The cutoff for approval is Jan. 3, 1981, since the 0013-936X/80/0914-0917$01.00/0
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act requires that OSM establish federal regulatory programs for those states that have not submitted plans or achieved approval by then. Once state primacy is awarded, OSM will assume an oversight role centering on inspection and enforcement. While this role has not yet been clearly defined, it appears that OSM’s activities will include: (1) periodic review of some state-granted permits and variances; ( 2 ) random inspection of 10-20’31 of the number of mines it currently inspects; (3) monitoring of the penalty process for selected violations; and (4) response to citizen complaints. Since the states in effect act as representatives of the Secretary of the Interior, OSM has the authority to withdraw programs if they do not adhere to minimum federal standards. However, if other federal environmental statutes are an accurate guide, this authority will be rarely, if ever, exercised. Clearly, once primacy has been awarded to the states, OSM’s influence will be reduced. Extensive litigation Meanwhile, virtually every key aspect of the act and its initial regulations have been challenged in court by industry, individual states, or environmental groups. A U.S. District Court in Virginia found certain portions of the act unconstitutional under the Tenth and Fifth Amendments, while a U.S. District Court in Iowa found that the same general portions were not unconstitutional. The U.S. Supreme Court recently stayed the opinion of the Virginia court until it could examine and resolve the issue. Subsequent to the Supreme Court’s decision to hear that case, a U.S. District Court in Indiana’ held that prime farmland and land contour provisions of the act exceed Congress’ powers under the Commerce clause and are therefore unconstitutional.
1980 American Chemical Society
Furthermore, in two separate opinions issued in February and May 1980, the D.C. District Court remanded major portions of OSM’s regulations as “arbitrary, capricious, or otherwise inconsistent with the law.” OSM is in the process of reworking those parts to comply with the court’s directive and plans to reissue the regulations in proposed form this coming fall. Overlapping jurisdiction From the perspective of the coal mine operator, who currently must deal with both the states and with OSM in preparing a permit application, an already confused morass is further complicated by the need to interface with EPA. Prior to the approval of any state program, DO1 must obtain written concurrence from EPA on those parts of the state program pertaining to air and water quality standards. A memorandum of understanding between the two agencies, specifying the review procedures, has been signed and was noted in the June 13, 1980 Federal Register. In addition, EPA has promulgated effluent guidelines for the discharges from coal mining sedimentation ponds. These guidelines were not consistent with OSM settlement control practices, and efforts are now underway within EPA and DO1 to amend the two approaches so that coordinated rules can be proposed in the fall. Continuing uncertainty The end result for the coal industry is that three years after the passage of the act the requirements governing the production of coal and restoration of land are by no means resolved and are not likely to be for some time. However, the next several months will be critical as OSM seeks to repropose its regulations, hopefully in a format that will provide industry with a workable set of ground rules for the coming years. Volume 14, Number 8, August 1980
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