CHAPTER 6 FEDERAL AND STATE PERMIT REQUIREMENTS APPLICABLE TO SURFACE COAL MINING OPERATIONS
| Jurisdiction | United States |
(Nov 1979)
FEDERAL AND STATE PERMIT REQUIREMENTS APPLICABLE TO SURFACE COAL MINING OPERATIONS
and Hubert A. Farbes, Jr.
Conover, McClearn, Heppenstall & Kearns
Denver, Colorado
I. INTRODUCTION.
From an environmental perspective, surface coal mining is presently one of the most comprehensively regulated elements of the mining industry. Regulatory requirements issue from federal, state and local levels of government, are often duplicative and sometimes inconsistent.1 In an effort to provide some practical compliance guidance, this paper will focus on federal environmental regulatory requirements and those of selected western states which impose upon surface coal mining operations the obligation to obtain a permit or other specific approval before mining begins.
By its nature, any paper such as this is doomed to partial obsolesence from the outset. Environmental statutes and regulations are in a constant state of flux. Thus, many of the legal requirements described here may only be as relevant as tomorrow's Federal Register. Constant surveillance of publication sources for regulations is therefore a necessity for practioners hoping to function effectively in this area.
In addition to the certainty problems inherent in the transitory nature of environmental regulations, permitting practice, particularly in the area of surface coal mining regulation, presents the potential danger of what might be called the cookbook syndrome. Many of the federal and state laws applicable to the reclamation of lands disturbed by surface coal mining bear a strong resemblance to lengthy and technical cookbooks.2 It is, however, a fundamental mistake to believe that these regulatory recipes can be followed from beginning to end, step-by-step, without thorough advance planning. Proper preparation of the permit applications required for surface coal mining operations requires a thorough understanding of the entire regulatory scheme before the actual drafting of a permit application begins.
Another basic necessity of permitting practice involves the often difficult marriage between law and technology. Meaningful participation by an attorney in the permitting process will involve some basic understanding or education in the areas of civil
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and mining engineering, hydrology, geology, plant biology and range science, to name but a few.3 The need to subject technical aspects of any environmental permit application to review by the permitting attorney is important for at least two reasons. First, attorney review of the permit application at the pre-filing stage allows for objective scrutiny and potential problem identification that may not be available from technicians or consultants who were actually involved in compiling the application. Further, without a firm understanding of the technical aspects of the application, the permitting attorney will be at a serious disadvantage in effectively dealing with the regulatory agency while the application is being processed.
The substantive scope of this paper will encompass descriptions of the permitting requirements of the major federal environmental statutes applicable to surface coal mining, the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"),4 the Clean Water Act ("CWA")5 and the Clean Air Act ("CAA").6 The National Environmental Policy Act ("NEPA")7 and certain miscellaneous regulatory requirements will also be discussed briefly. These laws have been analyzed in some detail by many other authors.8 Thus, the concern here will focus exclusively on the permitting aspects of these laws, including, where appropriate, permit content and processing procedures.9 Next, the paper will consider the major surface coal mining permit requirements of five western states, each of which contains significant quantities of surface mineable coal — Colorado, Montana, New Mexico, Utah and Wyoming. In discussing federal and state laws and regulations, consideration will be given to special problem areas that are unique to the regulation of surface coal mining.
At the outset, it is imperative to note that this paper does not, and indeed could not, cover every applicable permit requirement that could be imposed by the federal government or the five western states examined here.10 Rather, the thrust of the paper is to discuss, perhaps too briefly, the major environmental permitting requirements that most coal mining operations are likely to encounter.
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II. THE FEDERAL UMBRELLA.
A. The Delegation Principal.
Three major federal laws, SMCRA, CWA and CAA account for the bulk of all permitting obligations applicable to surface coal mining operations. Each of these laws includes carrot-and-stick provisions for delegation of regulatory authority to states with properly designed programs for administering the substantive standards and procedural elements of the respective federal statutes and their implementing regulations.11 The current status of state programs regulating permit issuance, under each of the three major federal statutes, will be discussed with respect to the five states considered here on a state-by-state basis. At this point, it is important to stress that even where federal delegation of regulatory jurisdiction has occurred, it is rarely complete and never without conditions which allow for re-assertion of federal control. For example, certain important permitting functions cannot be delegated to the states.12 Furthermore, all of the federal environmental statutes discussed here define situations in which the appropriate federal regulatory authority can either override state permitting systems13 or veto state permitting decisions.14 In any event, before discussing individual state permitting programs, it is necessary first to examine the seminal federal statutes.
B. The Surface Mining Control and Reclamation Act of 1977.
1. Regulatory structure.
The Surface Mining Control and Reclamation Act, which became law on August 3, 1977, stands apart from all other federal environmental legislation in that it focuses upon a single industry in an effort to regulate virtually all environmental impacts of that industry.15 In contrast, other federal environmental laws deal with a single aspect of the environment as affected by all industries or activities.
The regulatory jurisdiction of SMCRA is defined largely by the term "surface coal mining operations".16 The statutory definition of this term encompasses all common forms of surface mining, as well as "in situ distillation or retoring, leaching or other chemical or physical processing", together with the areas where all such activities occur. The surface impacts of underground
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coal mining are also subject to SMCRA, as are certain ancillary activities often performed at locations other than the mine site, such as "cleaning, concentrating or other processing or preparation, [or] loading of coal for interstate commerce at or near the mine site".17 Finally, SMCRA applies to coal exploration which substantially disturbs the natural land surface.18 Neither "coal exploration" nor substantial disturbance are defined by SMCRA; however, both terms are defined by the implementing regulations under SMCRA to include drilling, road construction, excavation and virtually all common exploration techniques.19
The primary purpose of SMCRA is to implement at all surface coal mining operations the environmental protection performance standards set forth at §§ 520 and 521 of the Act.20 These detailed performance standards are designed to impose environmental safeguards for air, land and water resources,21 together with safety standards for human life and personal property during the course of mining operations. Equally important, the performance standards aim to insure that upon completion of mining activities land disturbed by surface mining is returned to its original configuration and uses.22 A new federal agency within the Department of the Interior, the Office of Surface Mining ("OSM"), is created by SMCRA to supervise the administration and enforcement of the Act.23
SMCRA establishes an initial regulatory program during which only selected performance standards must be complied with.24 In the initial regulatory period, OSM has no permitting function; however, any permit applications granted by state regulatory authorities under state laws regulating surface coal mining must require compliance with the initial regulatory procedures.25
The duration of the initial regulatory period is defined differently for federal and non-federal lands. As a consequence, the timing for required permit applications under SMCRA will differ accordingly. In this context, it is significant that the term "federal lands" has been interpreted by the Department of the Interior to include not only federally owned surface, but also state or privately owned surface which overlies federal coal deposits.26 This interpretation, of course, has tremendous jurisdictional significance and may be the source of continuing controversy.
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2. Non-federal lands.
With respect to non-federal land, the initial regulatory program commenced in early 1978 and will continue until a state program implementing SMCRA's substantive permanent program performance standards and procedures is approved, or until a federal program is promulgated for a state that fails to submit a permanent program or has its program disapproved.27 The approval of a state program or imposition of a federal program marks the beginning of the permanent regulatory program and is the point in time from which permit application requirements are measured for operators on non-federal land. Two months from that date existing operators must submit a permit application which complies with the approved state or imposed federal program.28 At any time later than eight months following...
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