CHAPTER 13 FEDERAL AND STATE ENFORCEMENT PROCEDURES AND PROBLEMS UNDER MINED LAND RECLAMATION LAWS
| Jurisdiction | United States |
(Nov 1979)
FEDERAL AND STATE ENFORCEMENT PROCEDURES AND PROBLEMS UNDER MINED LAND RECLAMATION LAWS
DELANEY & BALCOMB
GLENWOOD SPRINGS, COLORADO
I. INTRODUCTION.
Although most coal producing states had mined land reclamation laws and the federal government had a regulatory program over federal coal, both of which substantially regulated all or some parts of coal mining operations within their respective jurisdictions, the Surface Mining Control and Reclamation Act (SMCRA) was enacted into federal law on August 3, 1977.1 With the passage of SMCRA came a substantial change in the previous federal and state relationship concerning the regulation of coal mining operations.
As with the previously enacted federal Clean Water Act and Clean Air Act, SMCRA established certain national performance standards, along with permitting requirements and enforcement procedures, which the states must statutorily adopt if they wished to maintain or assume a primary jurisdictional authority over coal mining operations within their respective boundaries.
SMCRA established an interim program whereby certain performance standards were enforceable against new or existing coal mining.2 A permanent program was to be established which made all performance standards enforceable against new and existing coal mining operations and which set minimum permitting requirements and enforcement procedures
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which the states must statutorily enact.3 State programs, including conforming laws and regulations, are to be submitted for federal review and approval for the states to achieve "primary governmental responsibility" over coal mining operations within their borders.4
The Interim Program was established on December 13, 1977 and the applicable interim performance standards became enforceable against existing non-federal coal mining operations on May 4, 1978.5 On September 21, 1978 these interim performance standards became enforceable against federal coal mining operations.6 The Permanent Program regulations were published in the Federal Register on March 13, 1979 and became "effective" on April 12, 1979 (hereinafter referred to as the Permanent Program).7
The purpose of this paper is to describe principally the enforcement procedures of the Office of Surface Mining Reclamation and Enforcement (hereinafter referred to as OSM) as they are prescribed by SMCRA and described in the Interim and Permanent Program regulations. Because the inspection and enforcement procedures contained in the Interim Program are being followed by OSM at this time, and ostensibly will be until the Permanent Program goes into "effect", principal attention will be given to these Interim Program procedures.8 Significant changes between the procedures described in the Interim and Permanent Programs will be noted.
Because the statutory deadline for the submission of State Programs has been judicially changed, only a few states have completed the final rule making phase and submitted these State Programs to OSM. Only a cursory review of the developing State Programs for the Western States of Montana, Wyoming, Colorado and Utah can be provided. Lastly, this paper will briefly note the inspection enforcement provisions applicable on federal lands under certain federal-state co-operative agreements. This general topic of federal-state co-operative agreements is more fully discussed in Paper 5.
II. FEDERAL INSPECTIONS
A. Interim Program.
1. Statutory Framework
The statutory framework for the Federal enforcement program during the Interim Program is found in Section 502(e) of SMCRA. This section
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requires OSM to conduct inspections at least once every six months on each mine site to ascertain compliance with the Interim Program's performance standards. These inspections are to be conducted without any advance notice to the operator. In addition, OSM is required under this section to conduct inspections, either when it receives two or more consecutive state inspection reports that indicate violations of these applicable performance standards, or when a citizen complaint gives rise to a reasonable belief that such standards are being violated. While it initially would appear that under the terms of Section 502(e)(1) and (2) the scope or extent of enforcement authority under OSM inspections would be limited to a determination of compliance with interim program performance standards, the actual extent of OSM enforcement authority is set forth in Section 518 (Penalties) and 521(a)(2) and (3) (Enforcement).
2. Regulatory Framework
The regulatory framework for Federal inspections during the Interim Program is found in 30 C.F.R. Part 721. The distinction noted above between Section 502(e) which specifies when Federal inspections shall occur and Sections 518 and 521(a)(2) and (3) which specify the extent of enforcement authority under these Federal inspections is noted in 30 C.F.R. § 721.11. This regulation describes the "extent" of OSM inspections and enforcement authority to cover any "violation of the Act, regulations or permit conditions required by the Act" while restating the requirement of Section 502(e) as to when or under what conditions Federal inspections must occur. 9
30 C.F.R. § 712.12 provides an OSM inspector with a right of entry "to, upon, or through" any coal mining operation or any premises in which any records required to be maintained are located. This right of entry in this regulation is conditioned upon presentation of appropriate credentials and does not require a search warrant. The right of entry is authorized and the presentation of credentials is required under Section 517(b)(3) of SMCRA, but the authorization of a warrantless inspection is
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not specifically provided for in SMCRA. OSM has taken the position that SMCRA "contemplates" warrantless inspections and present law authorizes warrantless searches in circumstances such as those under which OSM inspections will be conducted.10 On June 2, 1978 the OSM Division of Inspection and Enforcement issued a guidance memorandum to its inspectors which indicated that OSM's warrantless inspections would not extend to buildings or underground workings. This guidance memorandum was prompted by the May 23, 1978 U.S. Supreme Court decision in Marshall v. Barlows, Inc. which delineated certain constitutional limitations to warrantless searches.11 The warrantless search provision of 30 C.F.R. § 721.12 was challenged by industry plaintiffs on constitutional grounds, but the U.S. District Court upheld the OSM position, as limited by the June 2, 1978 guidance memorandum.12
30 C.F.R. § 721.13 sets forth the requirements for a citizen complaint to trigger an OSM inspection. Briefly stated, OSM must conduct an inspection within fifteen days of receipt of the complaint, unless OSM believes the reported facts are incorrect or would not constitute a violation. The complaint may initially be oral, but eventually must be written, signed, and include a telephone number. A citizen complainant may accompany an OSM inspector on the resulting inspection but must remain in the presence of and under the control, direction and supervision of the OSM inspector. A booklet entitled "The Strip Mine Handbook: A Citizen's Guide to the New Federal Surface Mining Law. How To Use It To Protect Your Community and Yourself", published by the Center for Law and Social Policy and the Environmental Policy Institute in 1978 gives specific guidance to interested citizens on the citizen complaint procedures set out in 30 C.F.R. § 721.13 and the technical aspects of the interim performance standards.
B. Permanent Program.
1. Statutory Framework
The principal statutory framework for Federal inspections during the Permanent Program is found in Section 517(a) of SMCRA. Under this authority OSM inspections would be conducted "as necessary"
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to evaluate the administration of state programs approved under Section 503, or to develop or enforce any Federal program implemented under Section 504 of SMCRA. By implication and OSM interpretation, Federal inspections would also be conducted during the Permanent Program for the purposes and under the authorities described as follows:
. to develop and enforce a Federal Lands program implemented under Section 523 and for which there is no state cooperative agreement.
. to enforce the requirements and permit conditions imposed under a state program, but which are not being enforced by a state under Sections 504(b) or 521(b) of SMCRA.
. to determine compliance with an enforcement notice or order issued under a previously authorized Federal inspection.
2. Regulatory Framework
The regulatory framework for Federal inspections during the Permanent Program is found in 30 C.F.R. Part 842. The OSM interpretations of when Federal inspections must occur, as noted above, are specified in 30 C.F.R. § 842.11. In addition, this regulation sets forth in a somewhat complex manner the conditions under which OSM must conduct inspections triggered by a citizen complaint. Generally, OSM must immediately conduct a federal inspection based on the complaint of a citizen of any condition, practice or violation which, if true, creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause a significant, imminent environmental harm to land, air or water resources. 13
OSM inspections conducted under this regulatory authority must average, in frequency, at least one partial inspection per month and one complete inspection per calendar quarter. It should be noted that coal exploration operations as well as mining operations may be the subject of OSM inspections.
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...30 C.F.R. § 842.12 generally carries over the same provisions from the Interim Program regulations regarding the procedure and
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