The Colorado Surface Coal Mining Reclamation Act of 1979: a Survey and Analysis
| Publication year | 1979 |
| Pages | 2154 |
| Citation | Vol. 8 No. 11 Pg. 2154 |
1979, November, Pg. 2154. The Colorado Surface Coal Mining Reclamation Act of 1979: A Survey and Analysis
The Colorado Surface Coal Mining Reclamation Act of 1979(fn1) (the "Act"), which became effective on July 1, 1979, provides a comprehensive scheme for the regulation of surface coal mining and the surface effects of underground coal mining. The purpose of the Act is to mitigate the adverse environmental impacts of coal mining and to assure that land disturbed or otherwise affected by coal mining is reclaimed to its pre-mining appearance and uses.(fn2)
Coal is the only mineral which is subject to the provisions of the Act;(fn3) however, the Act applies to the mining of all coal resources, regardless of whether the coal is leased from the federal or state government or owned privately.
Prior to July 1, 1979, coal mining reclamation was regulated under the Colorado Mined Land Reclamation Act of 1976 ("MLRA").(fn4) Specific provisions of H.B. 1223, which is the legislative reference for the Act, removed "coal" and "the development and extraction of coal" from the regulatory jurisdiction of the MLRA.(fn5) This created a system by which coal mining reclamation is regulated by the Act, while reclamation with respect to all other mining operations continues to be subject to the MLRA.
The Act is a direct response to the Federal Surface Mining Control and Reclamation Act of 1977 ("SMCRA").(fn6) SMCRA is the first federal legislation focusing in a direct and comprehensive manner on the environmental impacts of surface coal mining. The federal act prescribes environmental protection performance standards and generally applicable administrative procedures. Much like federal legislation in the areas of air and water pollution, SMCRA allows for and, indeed, encourages the transfer of primary regulatory authority over coal mining from the federal government to the states.
Development of a "state program," approved by the Secretary of the Interior, is the means for transfer of this regulatory authority.(fn7) However, in the event a state fails to submit a state program or has its proposed program disapproved, the Secretary is obligated to promulgate and implement a regulatory program for the state, thereby assuming exclusive jurisdiction and direct administrative control over coal mining operations in the state.(fn8) Implementation of SMCRA, either in an oversight or direct regulatory control capacity, is delegated to the newly created Office of Surface Mining ("OSM") within the Department of the Interior.(fn9)
It is evident from the criteria prescribed by SMCRA for approvable state programs that the primary component of any such program must be a state law that establishes environmental protection performance standards at least as stringent as those in SMCRA, as well as permit, enforcement and other regulatory procedures which are congruent with the federal act.(fn10) The Act is the Colorado response to the regulatory invitation reflected in SMCRA.
Passed in the closing hours of the 1979 Colorado General Assembly, the Act is intended to be the cornerstone of the Colorado state program. At this point, development of the entire state program is incomplete. Regulations implementing the provisions of the Act are also an essential component of the program(fn11) and are now in the process of development and approval. The entire regulatory package must be submitted on or before March 3, 1980, according to the terms of a nation-wide extension awarded in litigation involving the federal regulations implementing SMCRA.(fn12) The Secretary of the Interior must then approve, conditionally approve or disapprove the program on or before June 3, 1980.(fn13)
Nevertheless, due to the immediate applicability of the Act, it is imperative for those involved in planning coal mining activities, as well as their counsel and consultants, to develop a thorough understanding of this statute. It is the purpose of this article to explain the main provisions of the Act, detail the manner in which the regulatory procedures of the Act are intended to function, document the major areas in which the Act differs from SMCRA and analyze the jurisdictional questions concerning federal and state regulation of coal mining and, in particular, coal exploration which result from the interplay between the Act, SMCRA and other relevant federal and state statutes and regulations.
Section 503 of SMCRA indicates that approval of the state program will allow the submitting state to assume "exclusive jurisdiction" over the regulation of coal mining operations within the state, with certain important but qualified eceptions concerning federal capacity for continuing enforcement and regulation of coal mining operations on federal lands.(fn14)
Passage of the Act by the 1979 General Assembly reflects Colorado 's frequently expressed determination to maintain state control in the face of threatened federal preemption in critical regulatory areas. The need for state regulatory control over surface coal mining was perceived as particularly acute because SMCRA largely resulted from a reaction to the adverse environmental impacts of surface coal mining in the Appalachian region.(fn15) The Act seeks to redress and solve the regulatory anomalies that could result from imposition of legislation heavily influenced by eastern conditions on a western coal mining industry operating under fundamentally different circumstances. In addition, SMCRA ignores the fundamental differences between eastern riparian water law and the prior appropriation system which governs the allocation of water in Colorado. The Act is designed to assure that the well-established legal principles of Colorado water law are preserved.
Another basic concern reflected in the Act is the preservation of the small coal miner. Coal mining in most other westem states is dominated by a relatively small number of large operators. In contrast, Colorado has approximately twenty-five mining operations producing less than 100,000 tons of coal per year.(fn16) The complexity of the regulatory procedures and technical requirements of the federal regulatory scheme, when combined
with the relatively narrow range for permissible federal assistance to small miners, led to the conclusion that many small coal miners might simply be overwhelmed by the regulatory juggernaut. Accordingly, the Act, while necessarily applying the same performance standards and procedures to all operators, provides significant latitude for technical and administrative assistance to those coal mining operations which extract less than 100,000 tons of coal per year.(fn17)
A final major concern behind the Act was a desire to perpetuate the regulation of reclamation by a multi-interest citizen board. The MLRA created the Mined Land Reclamation Board, a seven-member citizen body representing a diverse cross-section of interests which are or could be affected by coal mining reclamation. Under the Act, the Board functions primarily in an appellate capacity, while the day-to-day permit process-sing and enforcement decisions are made, at least in the first instance, by the Mined Land Reclamation Division (the "Division"). This arrangement would appear to reflect the legislature's conviction that a multi-interest citizen panel should be charged with ultimate responsibility for administration of coal mining regulation, rather than an administrative agency such as the federal Office of Surface Mining.
From a functional perspective, the primary components of the Act are the definitional provisions,(fn18) the regulatory processes created by the Act, such as permitting,(fn19) enforcement(fn20) and designating lands unsuitable for surface coal mining and, most importantly, the environmental protection performance standards.(fn21) This discussion will focus first upon definitions and procedures and then turn to the substantive performance standards, civil actions and the unsuitability designation process.
The applicability of the Act is determined primarily by the terms "surface coal mining operation," "surface coal mining and reclamation operations" and "operator."(fn22) These terms are used to identify who must obtain permits, who is subject to enforcement actions and, most importantly, who must comply with the environmental protection performance standards.
The term surface coal mining operations is defined both in terms of specified activities and areas upon which such activities occur. Virtually all methods used to conduct surface coal mining are included in the definition; however, § 34-33-129 of the Act totally exempts certain kinds of operations, such as the extraction
of coal for personal use or where such extraction affects less than two acres. In addition, the Act applies to "surface operations and surface impacts incident to an underground coal mine." Underground operations must comply with most of the more detailed performance standards for surface mines even though special performance standards have been developed for some aspects of underground operations in § 34-33-121. In addition to the traditional extractive types of coal mining operations, the regulatory requirements of the Act apply to "in situ distillation or retorting, leaching or other chemical...
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