Surface Mining Control and Reclamation Act (SMCRA)
Federal Administrator: Office of Surface Mining (U.S. Dept. of Interior)
State Administrator: WV DEP Division of Mining and Reclamation
Summary:
SMCRA was established to protect society and the environment from the adverse effects of surface coal mining operations; to assure adequate reclamation occurs as contemporaneously as possible with mining; to provide a balance between the nation’s need for coal energy and the protection of the environment; and to reclaim land left abandoned prior to the 1977 passage of the law; (among other things). SMCRA is the comprehensive regulatory program which governs surface mining as well as the surface effects of underground mining. This serves as a counter-part to the Mine Safety and Health Act, which was passed with the main purpose of protecting the nation’s coal miners. In West Virginia the state takes primary authority in implementing SMCRA and the federal regulations largely “drop-out” and are unenforceable. The main exception to this is the oversight role of OSM.
Major Applicable Sections of Federal SMCRA
Section 401 et seq. (30 U.S.C. § 1231 et seq.): Establishes the Abandoned Mine Land Reclamation Fund. This is a fund created from a tax on each ton of coal mined (established under § 402) that is then used for the reclamation of lands mined prior to the establishment of the Act. It is the main way that SMCRA works towards its goal to reclaim abandoned (not forfeited) mine lands. Safety and Health projects are prioritized over water improvement projects. There has traditionally been a big fight between eastern coal producing states, which have more needs for reclamation, and western states, which mine more tons of coal, about the distribution of these funds.
Section 504 (30 U.S.C. § 1254): Requirements for OSM approval of a state program. Also authorizes OSM to revoke a state program in whole or in part if the state is no enforcing requirements of its own program or maintain its program in compliance with federal law.
Section 505 (30 U.S.C. § 1255): States that state law may be more stringent than federal law but that state law must not be inconsistent with the Act. Some provisions of West Virginia law are stricter than federal SMCRA. However, the legislature now requires explicit notification when any new state law is going to be stricter than federal law.
Section 520 (30 U.S.C. § 1270): Grants citizens the right to sue in federal court. Although citizens may not sue to enforce federal regulations (which drop out), this provision has been interpreted to give citizens the right to sue for violations of state law in federal court.
Section 521 (30 U.S.C. § 1271): Allows a federal inspection after a citizen complaint after 10 days notice by OSM to the state regulatory authority. This 10 day notice may be waived if the citizen provides evidence of an “imminent danger of significant environmental harm” and the state has failed to take action. If the federal inspector finds a violation which will lead to imminent danger of significant environmental harm they may issue a notice of cessation. If there is no imminent danger they must give notice and time to come into compliance. Notice of federal action must be sent to state program. If OSM finds that violation was due to inadequate state enforcement then notice is sent to the state and hearing on state deficiency must be held within 30 days.
Major Statutory Sections of West Virginia SCMRA:
W.Va. Code § 22-3-8: First contains a general prohibition on surface mining without a permit. Sets up a permit term of 5 years.
W.Va. Code § 22-3-9: Establishes the requirements of a permit application. Among other things the application must contain the following: 1) a statement on whether the applicant has been related to anyone or any entity who has had a mining permit suspended or revoked or forfeit a bond in the last 5 years; 2) description of the operation, including equipment to be used; 3) start and end date of each phase of the operation; 4) determination of probable hydrologic consequences; 5) maps of cross-sections of land to be mined and of post-mining land use; 6) results of core test borings; 7) reclamation plan; 8) blasting plan; (among other requirements).
W.Va. Code § 22-3-10: Requires certain components of a reclamation plan. The plan must contain an assessment of the land’s supported uses prior to mining and must propose a post-mining land use consistent with a master land use plan, unless an alternative use “higher and better” than that of the master plan is proposed. The reclamation plan must set forth engineering techniques to be used in reclamation. It must have a plan for the compliance with applicable air and water quality rules as well as health and safety rules. Finally, it must propose a detailed timetable for each phase of reclamation.
W.Va. Code § 22-3-11: Requirement of bond coverage. West Virginia uses a hybrid system for bonding of mines, in order to complete reclamation in case of forfeiture. There is a “penal” bond of up to $5,000 per acre of each mine. In addition 14.4 cents per ton of all coal mined is put into the Special Reclamation Fund. The Special Reclamation Fund serves as a bond “pool” to draw from when there is a forfeiture. Bond amounts on individual mines are recognized to be less than the costs of completing the reclamation plan.
W.Va. Code § 22-3-13: Contains the general environmental protection performance standards under the act. Key performance standards: 1) restore the land so its supports pre-mining uses or “higher and better” uses; 2) regrade land to achieve stability, prevent water pollution and achieve “approximate original contour); 3) stabilize and protect surface areas to control erosion and water pollution; 4) segregate and store topsoil or other (better) topsoil substitute; 5) minimize disturbance to prevailing hydrologic balance by preventing toxic runoff and AMD; 6) No mining within 500 ft of underground mines unless specifically approved; 7) burying and isolation of toxic and hazardous materials so as not to affect ground and surface water; 8) contemporaneous reclamation; 9) protect off-site areas from slips and land-slides.
W.Va. Code § 22-3-13a: Contains requirements for pre-blast survey. For mines under 200 acres notice must be given to residents within 0.5 miles of permit boundary. For larger mines notice must be given to residents within 0.5 miles of permit boundary or 0.7 miles from blast site whichever is further. The pre-blast survey is meant to document the condition of property (including water sources) prior to blasting.
W.Va. Code § 22-3-14: Contains environmental performance standards for surface effects of underground mines, similar to the performance standards on surface mines, listed above.
W.Va. Code § 22-3-15: Inspections of every mine site must be conducted at minimum every 30 days. Records of inspections are available for public review. An “immediate” inspection must take place upon receipt of information that a permittee is in violation of their permit requirements. The person supplying the information has the right to accompany inspectors.
W.Va. Code § 22-3-17: If there is a violation of the Act the inspector shall issue a notice of violation. The notice shall give a reasonable time to abate the violation, not to exceed 30 days. An extension may be given of up to 60 days. If there is not compliance within the time of the notice or extension there should be a cessation order and penalties of not less than 750 dollars per day unless delay is due to circumstances outside the control of the operator. If there exists a pattern of violations then a show cause order should be issued and a hearing held within 60 days. The permit should be suspended or revoked if there is no proper showing of cause. This section also allows an appeal to the environmental quality board of by any person adversely affected by a permit or order from the DEP.
W.Va. Code § 22-3-18: No permit, renewal or revision should be issued if: 1) the reclamation plan cannot be achieved; 2) the permittee is currently in violation; 3) the applicant has a prior bond forfeiture.
W.Va. Code § 22-3-21: Right of appeal of a surface mining permit of anyone “adversely affected.” Appeals heard in front of the Surface Mine Board.
W.Va. Code § 22-3-22: Lands may be designated as unsuitable for mining based on one or more of the following: 1) conflicts with state or local land use planning; 2) impacts fragile or historic lands important to historic, cultural, scientific and aesthetic values and natural systems; 3) affects renewable resources; 4) affects lands with natural hazards in a way that they could substantially endanger life and/or property.
W.Va. Code § 22-3-22a: Blasting restrictions: 1) 300 feet of protected structure; 2) 100 feet from cemetery. Blasting within 1000 feet of protected structure must have site-specific blasting plan.
W.Va. Code § 22-3-23: Bond release schedule. Phase 1 release upon regrade and backfill: 60 percent of bond. Phase 2 release two years after revegetation planting: 25 percent of bond. Phase 3 release upon meeting of revegetation standards: final 15 percent. No bond release if there is water pollution coming off of the site. No phase 2 release or higher if treatment is necessary to comply with water quality limits.
W.Va. Code § 22-3-24: The mining operator must replace water sources damaged by mining. Water presumed to be damaged by mining if there is bad water and a pre-blast survey did not show the problem.
W. Va. Code § 22-3-25: Allows for citizens suits for violation of the Act
W.Va. Code § 22-3-30a: Requires blaster to compensate property owner for blasting damage when blasting was not conducted in accordance with laws and with the blasting plan. (One requirement of the blasting plan is that it prevent injury to persons and property outside the blasting area).
