CHAPTER 5 STATE-FEDERAL AGREEMENTS, PROGRAMS, AND ISSUES UNDER THE SURFACE MINING CONTROL AND RECLAMATION ACT

• Jurisdiction: United States

Western Land Use Regulation and Mined Land Reclamation
(Nov 1979)
CHAPTER 5
STATE-FEDERAL AGREEMENTS, PROGRAMS, AND ISSUES UNDER THE SURFACE MINING CONTROL AND RECLAMATION ACT
Hamlet J. Barry III
Director, Colorado Division of Mined Land Reclamation
Denver, Colorado

This paper has two primary purposes. First, to give the latest information as to the current status of western states laws, regulations, agreements, and programs under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).¹ Secondly, this paper will give an overview and analysis of the past, present, and future issues between the western states and the federal government, concerning the implementation of SMCRA.

I. State laws, regulations, and programs.

The Surface Mining Control and Reclamation of 1977 provides that states may assume "exclusive jurisdiction"² for the federally mandated program for control and reclamation of land mined for coal, provided that certain conditions are met and that federal approval is obtained. In this sense, SMCRA is a continuation of the federal policy embodied in both the Clean Air Act,³ and the Clean Water Act,⁴ in that both acts allow for state implementation of a federal program. The applicable section of SMCRA reads as follows:

Each state in which there are or may be conducted surface coal mining operations on non-federal lands, and which wishes to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations.... shall submit to the Secretary.... a state program which demonstrates that such State has the capability of carrying out the provisions of this act and meeting its purposes....⁵

The specific requirements for state programs are set out in section 503 of SMCRA, and in the implementing federal regulations.⁶ The major statutory requirements for approval of a state program are:

1. A state law for the regulation of surface coal mining and reclamation operations in accordance with the provisions of SMCRA, and which provides sanctions for violations which meet minimum federal requirements;

2. State rules and regulations to implement the state statute, which must be consistent with the federal rules and regulations under SMCRA;

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3. A state regulatory authority with sufficient administrative and technical staff, and adequate funds, to regulate surface coal mining operations; and

4. A procedure for designating areas as unsuitable for coal mining, and a procedure for coordination of permit applications with other state agencies, or with federal agencies.

The federal regulations elaborate considerably on the above program conditions, and require in addition, the submission of an Attorney General's opinion comparing the state and federal acts and the state and federal regulations, and explaining and significant differences; sixteen narrative descriptions and related flow charts for all elements of the state program; copies of supporting agreements between state agencies; statistical information concerning the coal industry in the state; and various documents concerning the state regulatory authority budget, personnel, and physical resources.⁷

The federal regulations governing the submission and approval of state programs also introduce the so-called "state window" concept. The regulations provide that under certain conditions, state law, or state regulations, may deviate from the specific standards of the federal act or regulations. State alternatives will be deemed to be "in accordance with" or "consistent with" the federal equivalent, if the state can demonstrate with data, analysis, and information, that the state alternative is no less stringent than the federal equivalent, and that the state alternative is necessary because of local environmental or agricultural conditions. Presumably, the "state window" concept evolved from the legislative finding that

...because of the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this Act should rest with the States...⁸

The issues and questions concerning the application of the "state window" to state program development are addressed in the second half of this paper. The extent to which western states have so far utilized the state window concept is described below, on a state by state basis.

The above requirements apply for states which wish to assume "exclusive jurisdiction" over coal mining on non-federal lands. Those states which desire to assume jurisdiction for the program on federal lands must comply with section 523 of SMCRA, which provides that a state with an approved program (as described above), may elect to regulate mining of federal lands by the signing of a cooperative agreement with the Secretary of Interior. Both the act, and the regulations concerning cooperative agreements⁹ make it clear that a cooperative agreement does not give the states authority to designate federal lands as unsuitable for coal mining plans on federal lands.

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The information above will provide the necessary background for a more detailed description of the current status of the state programs for Colorado, Wyoming, Montana, New Mexico, and Utah. These six states contain the bulk of western coal reserves, and the coal mining operations in these states contribute more than 90% of the coal mined in the west.¹⁰ The details and status of each element of the state programs are listed below, on a state by state basis.

A. Colorado

Although Colorado has had a mined land reclamation act which applied to surface coal mines since 1969,¹¹ and a fairly comprehensive mined land reclamation act since 1976,¹² the passage of SMCRA necessitated another reclamation law for the state. A new bill (HB 1223) was drafted by an informal committee of industry, government, and environmental group officials during the fall of 1978, and was presented to the Colorado General Assembly during the first part of the 1979 session. The bill passed nearly unanimously, and was signed into law in June, 1979. The effective date of the act is July 1, 1979, although it should be pointed out that no new permit under the act is required until after the state program is approved by the Secretary of Interior.

The Colorado law mirrors the federal act, but is not an exact duplicate of it. There are several things to be noted about the new Colorado Surface Coal Mining Reclamation Act, as described below.¹³

1. The Colorado act preserves the notion of a citizen board, which was established under the 1976 Reclamation Act. Under the terms of the 1979 law, the Colorado Mined Land Reclamation Board is the sole authority for promulgation of rules and regulations, and the Board is a first level appellate body for decisions on permit approval, permit enforcement, and bond release. The board is also the sole authority for designating lands as unsuitable for all or certain types of coal mining.

2. The Colorado law has preserved the notion, also contained in the 1976 law, that the Mined Land Reclamation Division must act within a certain time after receipt of a permit application. Although the time limits vary according to the procedural framework, in general, the Division must render a proposed decision on a permit application within 180 days of receipt of a complete application.¹⁴

3. Thirdly, HB 1223 has attempted to ferret out those provisions of SMCRA which reflect eastern, riparian water law, and amend the language for application in a western, appropriation water law setting.¹⁵

4. The Colorado law has added language intended to benefit the small coal operator, by providing for technical and administrative assistance,¹⁶ when available, in addition to the hydrologic information assistance provided in SMCRA.¹⁷

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5. The Colorado law has also altered the relatively open ended information requirements of SMCRA¹⁸ to provide that the regulatory authority may ask for additional information not covered by the act, but only for good cause shown.¹⁹

6. In light of the concern by operators about the effect of a determination that a mine is located in an alluvial valley floor, provision has been made in the Colorado law to obtain an "informal opinion of the Board" as to the existence of an alluvial valley floor.²⁰ The purpose of this provision is to foster greater certainty on the question, prior to the time an operator has invested substantial funds in preparation of a permit application.

7. Finally, Colorado has modified the bond provisions of SMCRA to allow for self bonding, pursuant to reasonable regulations promulgated by the board.²¹ Given the problems that many operators have had in obtaining bonds, it became evident that a more flexible mechanism be allowed in order to provide an adequate guarantee that the reclamation will be carried out.

Although the Colorado law has not received official approval of the Office of Surface Mining (OSM), the Office was involved in the drafting of the bill, and there has been sufficient informal communication to be reasonably assured that the law will meet the "in accordance with" test of SMCRA.

Colorado is now in the process of writing regulations to implement the new law. It is anticipated that the proposed regulations will be available for public comment in mid-December, 1979, and that final regulations, following public comment and board discussion, will be promulgated in March or April of 1980. Although the regulations are currently in very preliminary form, it is anticipated that Colorado will offer alternative provisions, or state window provisions, in several areas, including: (a) road design, (b) revegetation criteria, (c) self bonds, (d)

Colorado must submit a state program application by March 3, 1980.²² Although no definite earlier target date has...