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Coal Mine Closure, Reclamation and Financial Assurance

Denise A. Dragoo, James P. Allen, Mine Closure, Financial Assurance, and Final Reclamation

Finding a means to assure site reclamation disturbed by coal mining was a key objective of Congress in enacting the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”).1 Facing a large inventory of unreclaimed mining land, Congress was concerned that without some means to require reclamation, land would be left in an unproductive state unsuitable for future agricultural or other uses.2 In response, Congress enacted separate sections of SMCRA, to assure reclamation of both previously mined lands and lands to be mined in the future. Under Title IV of SMCRA, Congress authorized the Office of Surface Mining Reclamation and Enforcement (“OSM”), to collect fees from operators of active mining operations which are deposited in a fund and used to reclaim abandoned mine lands disturbed prior to 1977.3 Under Title V of SMCRA, Congress conditioned issuance of new coal mine permits upon the posting of a reclamation performance bond.4

The Title V requirement of the operator to guarantee the costs of successful reclamation reads more like a property-right or land-use regulation, and less like an environmental-protection law. SMCRA requires operators, as a condition to receiving a permit, to submit a reclamation plan and bond to guarantee performance of reclamation.5 Operators are to plan for and perform the work necessary to leave the surface of the land in a condition t