Appendix — Alabama Surface Mining Reclamation Commission v. Commercial Standard Insurance

Bs- 1717

Office - Supreme

Court,

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No. LED

APR 21 neq

ALEXANDER

IN THE SUPREME COURT OF THE UNITED qrATES CLERK

OCTOBER TERM, 1983

ALABAMA SURFACE MINING RECLAMATION

COMMISSION,

Petitioner

Vv.

: COMMERCIAL STANDARD INSURANCE COMPANY,

Respondent

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE ALABAMA SUPREME COURT

ATTORNEY GENERAL OF

ALABAMA

ROSA H. DAVIS

ASSISTANT ATTORNEY

GENERAL OF ALABAMA

CHARLES A. GRADDICK

Counsel of Record

P. 0. Box 2390

Jasper, Alabama

35502-2390

ATTORNEYS FOR PETITIONER

TABLE OF APPENDICES

Pg.

No.

Description

la

2a

3a

l7a

24a

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y :

Pn a ee

January 27, 1984

Alabama Supreme

Court Order

(Denying Petition

for Certiorari)

October 19, 1983

Alabama Court of

Civil Appeals Order

(Denying a st

tion for rehearing)

September 14, 1983

Alabama Court of

Civil Appeals

(Appeals Opinion)

Tuscaloosa County

Circuit Court

(Order)

Alabama Surface

Mining Reclamation

Commission (Find-

ings and Order)

Text of statutes

cited

APPENDIX A

THE STATE OF ALABAMA--JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

OCTOBER TERM 1983-84

RE: 83-150

EX PARTE: ALABAMA SURFACE MINING

RECLAMATION COMMISSION

RE: COMMERCIAL STANDARD INSURANCE

COMPANY

VS.

ALABAMA SURFACE MINING RECLAMATION

COMMISSION

Petition for Writ of Certiorari denied.

No opinion. January 27, 1984

ADAMS, J. TORBERT, C.J.,

FAULKNER, ALMON & EMBRY,

J. J., CONCUR.

Robert G. Esdale, Clerk

Supreme Court of Alabama

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ee es

viet

APPENDIX B

THE STATE OF ALABAMA--JUDICIAL DEPAKTMENT

THE COURT OF CIVIL APPEALS OF ALABAMA

OCTOBER TERM, 1983-84

CIV. 3806

COMMERCIAL STANDARD INSURANCE

COMPANY

vs.

- ALABAMA SURFACE MINING RECLAMATION

COMMISSION

Application for rehearing overruled.

ae ceent te on rehearing. October 19,

1 :

John H. Wilkerson, Jr., Clerk, Court

of Civil Appeals of Alabama

John H. Wilkerson, Jr.

Clerk, Court of Civil

Appeals of Alabama

2a

Sh as alia a SAS a ROE ot

APPENDIX C

THE STATE OF ALABAMA--JUDICIAL DEPARTMENT

THE COURT OF CIVIL APPEALS OF ALABAMA

OCTOBER TERM 1983-84

CIV. 3806

f

RE: COMMERCIAL STANDARD INSURANCE

COMPANY

VS.

ALABAMA SURFACE MINING RECLAMATION

COMMISS10N

SEPTEMBER 14, 1983

Wright, Presiding Judge

This is an action under the Alabama

Surface Mining Reclamation Act of 1975,

appealed from the Circuit Court of

Tuscaloosa County, Alabama.

On January 12, 1981, verified

complaints were filed with the Alabama

Surface Mining Reclamation Commission

Drew " yateg

id

(herein the Commission) against Hendrix

& Lee, Inc. (herein Hendrix), a company

which had previously been engaged in

surface mining in Tuscaloosa County,

Alabama. The complaints alleged viola-

tions of the Alabama Surface Mining

Reclamation Act of 1975 by Hendrix.

A hearing was held January 27, 1981,

by a hearing examiner. Notice of the

hearing was sent to appellant, Commercial

Standard Insurance Company (herein

Commercial), the surety on the reclama-

tion bonds of Hendrix for the affected

mined area. Commercial appeared by

counscl at the hearing.

No one appeared at the hearing on

behalf of Hendrix which, prior to the

issuance of the complaint, had filed a

Chapter 7 petition in bankruptcy court.

No testimony was taken at the hearing as

the examiner determined that all the

facts delineated in the verified con-

plaints were admitted by Hendrix, due to

its failure to appear.

Counsel for Commercial requested

the right to present evidence, subpoena

witnesses, and cross examine the inspec-

tors who filed the complaint. That

request was denied. However, the exami-

ner allowed Commercial to object on the

record that its constitutional rights to

due process and equal protection were

being violated, and that the examiner

had no jurisdiction under §9-16-15(a),

Code of Alabama 1975.

Subsequently, the examiner issued

an order stating that Hendrix, or any

other party with an interest, should

submit a reclamation timetable to the

Commission. Failing to receive any

timetables, the Commission ordered the

forfeiture of the surety bonds.

Commercial appealed the order to

the Jefferson County Circuit Court, pur-

suant to §9-16-51(b), Code of Alabama

1975. The case was transferred to

Tuscaloosa County Circuit Court. In

April 1983, the Circuit Court of Tusca-

loosa County, after hearing, entered

judgment in favor of the Commission.

Commercial appealed.

Three issues were raised on appeal:

(1) lack of proper jurisdiction under

§9-16-51(a), Code 1975, (2) release of

surety due to a material alteration of

the original obligation, and (3) depri-

vation of Commercial's federal constitu-

tional rights of due process and equal

protection when not allowed to partici-

pate in the hearing before the Commission.

6a

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ie

In resolving the jurisdictional

issue it should be noted that the Alabama

Surface Mining Reclamation Act of 1975

has been repealed by Act No. 81-435, Acts

of Alabama 1981, §38. The 1975 act is

applicable in this case, however, because

it was in effect at the time the cause

of action occurred.

Section 9-16-51l(a) states in per-

tinent part that, "Complaints alleging a

violation of the articles or rules or

regulations of the Commission must, as

a jurisdictional matter, be filed with

the Commission within 90 days of the

event or events giving rise to such

complaint". This court has already held

the section required as a jurisdictional

matter that a verified complaint must be

filed within ninety days. Alabama

Surface Mining Reclamation Commission v_

7a

aa

ee

Jolly, 373 So. 2d 855 (Ala. Civ. App.

1979).

The essential language in dispute

is the meaning of "event or events”

which would activate the jurisdiction of

the Commission to hear a complaint. In

construing a statute several rules of

construction are applicable. The court

is to ascertain and give effect to the

legislature's intent as expressed from

the words of the statute. State v. Steel

City Crane Rental, Inc., 345 So. 2d 1371

(Ala. Civ. App. 1977). A reasonable

construction is to be given as opposed

to a repressive or inconvenient one.

League of Women Voters v. Renfro, 292

Ala. 128, 290 So. 2d 167 (1974). A

statute must be considered in its entirety,

and every word in it should be made

effectual where possible. Alabama State

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rex

4

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Board of Health ex rel Baxley v. Chambers

County, Alabama, 335 So. 2d 653 (1976).

Morever, a statute susceptible to either

of two opposing interpretations must be

read in the manner which effectuates

rather than frustrates the major purpose

of the legislative draftsman. Shapiro v.

United States, 335 U.S. 1 (1948).

The legislative intent is to provide

for the safe, responsible and reasonable

reclamation of lands which have been

surface mined. §9-16-32(a), Code 1975. |

The legislature has delineated several

objectives of this legislation, one of

which is to ensure the prompt reclamation

of mined surfaces. §9-16-32(i)(3) Code

of Alabama 1975. :

Two different interpretations of the :

language “event or events” are offered

by the parties, neither of which is F

satisfactory. Commercial urges this

court to construe the phrase as meaning

a single act which would start the ninety

day period running. Under Commercial's

interpretation if reclamation has not

commenced within six monvhs of the date

mining began, the ninety-day period for

filing a complaint begins to run. To

adopt Commercial's interpretation would

be unreasonable when applied to continu-

ing and repeated violations and an exten-

ded period of operation. See League of

Women Voters v. Renfroe, 292 Ala. 128,

290 So. 2d 167 (1976).

The Commission, on the other hand,

submits that the failure to reclaim the

land is a continuing act which does not

abate until the land is properly reclainm-

ed and that a complaint is timely filed

if done within ninety days of any day in

10a

which the land or any part thereof remains

unreclaimed. To adopt the Commission's

interpretation would nullify and eliminate

the limitation provision entirely. There

would be a diminished incentive to press

for early reclamation. There would be no

end to the surety's obligation under the

bond. To remove a time limit for enforc-

ing reclamation is to encourage delay of

reclamation.

While a mining operation is ongoing,

the probability of reclamation is likely

to be greater because of a present

financial ability of the operator to

finance reclamation. The incentive and

the means to reclaim are likely to de-

cline once the coal is removed and equip-

ment moved to other and more profitable

operations. A direct and tangible risk

in the Commission's interpretation is

lla

the longer the land lies umreclaimed, the

greater the probability of soil erosion

and increased expenses for the ultimate

reclamation. To permit the authority of

the Commission to hear a complaint to

extend over an unlimited time is to

unreasonably frustrate the legislative

intent of prompt reclamation of land.

Section 9-16-39(g) states that con-

touring of all affected land is to be

completed "within six months from the

date of the completion of operations",

unless prevented by an act of God or

otherwise extended by the director for

reasonable cause. The ninety-day period

thereafter is a limitation on filing a

complaint for failing to complete con-

touring. Thus, in order to give a

reasonable interpretation to the statute

and effectuate the legislative intent,

12a

we interpret the statutory words "event

or events" found in Section 9-61-51l(a)

as meaning that except for an act of God

or extension by the director, the outer

limitation for filing a complaint would

be nine months after the completion of

mining operations.

Though the record does not reveal

the exact date mining operations ceased,

it was stipulated that the Commission

had been aware of Hendrix’ failure to

timely reclaim the land for as long as

fourteen months before the complaint was

filed. It was further stipulated that

Hendrix was in violation of §9-17-39, for

a period substantially in excess of

ninety days prior to the filing of the

complaint. It thus appears that a timely

complaint was not filed. Therefore no

jurisdiction existed in the Commission,

13a

ee ee ee

under the statute, to hear the complaint

against Hendrix. The crucial question is

whether Commercial, as surety, may claim

the benefit of its principal's defense

to the complaint before the Commission.

Under Alabama law, a surety may make

any defense not personal to the principal,

that the principal can. United States

Fidelity & Guaranty Co. v. Town of Dothan,

174 Ala. 480, 56 So. 953 (1911). Speci-

fically, a surety may assert as a defense

the statute of limitations available to

the principal, State v. Bi-States Con-

struction Co., 269 N. W. 2d 455 (Iowa

1978), even if the principal through

negligence, inadvertence, collusion, or

otherwise, has not raised it. United

States v. Frankini Construction Co., 139

F. Supp. 153 (D. Mass. 1956). See also,

72 C.J.S. Principal and Surety §255 (1951).

l4a

*

Ot Te alt en

Thus, in this case, the surety, Commercial,

could claim the benefit of Hendrix'

defense of the lack of jurisdiction in

the Commission to entertain the complaint

against it.

We find the Commission erred in

denying Commercial the right to appear

and defend in place of its defaulting

principal. The circuit court erred in

entering judgment in favor of the

Commission and by holding therein that

failure to reclaim is a continuing vio-

lation with no limitation upon the filing

of a complaint and hearing thereon by the

Commission. For want of jurisdiction in

the Commission, its orders herein are

void and to no effect. Commercial is due

to be discharged from its obligation as

surety in the instances complained of.

In view of the issue of jurisdiction

15a

Sor. he

being dispositive, we pretermit discus-

sion of other issues presented.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., Concur.

l6a

APPENDIX D

THE STATE OF ALABAMA--JUDICIAL DEPARTMENT

TUSCALOOSA COUNTY CIRCUIT COURT

RE: CIV 81-5074

RE: COMMERCIAL STANDARD INSURANCE

COMPANY

VS.

ALABAMA SURFACE MINING RECLAMATION

COMMISSION

APRIL 5, 1983

This cause coming on to be heard,

on appeal from the Alabama Surface Mining

Reclamation Commission (now the Alabama

Surface Mining Commission), pursuant to

§9-16-51, Code of Alabama 1975, and was

submitted to the Court on the pleadings,

17a

exhibits, stipulation of facts, and

memorandum briefs of both parties.

The Court having considered the

pleadings, exhibits, stipulation of facts,

brief of the parties and the applicable

law, makes the following findings and

conclusions of law:

1. The Court finds and the Legis-

lature of Alabama has declared, that it

is the public policy of this State that

all areas surface mined must be reclaimed

and that lands subjected to coal surface

mining and not reclaimed constitute a

peril to the natural resources, economic

well-being of the State and a hazard to

the health and safety of the people of

this State.

2. The Court finds that the pro-

visions of the Alabama Surface Mining

Reclamation Act of 1975, must be construed

18a

so as to give effect to the aforesaid

declaration of public policy and legis-

lature intent.

3. The Court finds and holds that

a failure to reclaim lands affected by

coal surface mining is a violation of

the Alabama Surface Mining Reclamation

Act of 1975, and that this violation is

continuous in nature, i.e., the violation

exists until the land is reclaimed to the

standards required by law. To hold other-

wise would be to defeat the manifest

intentions of the legislature.

4. The Court finds and holds that

the verified complaints in this case were

timely filed with the Defendant Commis-

sion and sufficient to invoke its juris-

diction to hold administrative hearings

and enter appropriate orders to bring

the mine operator into compliance with

19a

p

s

Lie

the provisions of the Alabama Surface

Mining Reclamation Act of 1975.

5. The Court finds and holds that

there were no violations of due process

in the hearings before the Defendant

Commission or in the order of the Defen-

dant Commission in declaring Plaintiff's

surety bonds forfeited and payable into

the Alabama Surface Mining Reclamation

Fund.

6. The Court finds and holds that

the orders of the Commission, requiring

Plaintiff to either perform in its prin-

cipal's place or to pay the funds due

under its surety bond, although not a

judicial determination of forfeiture, and

of no force or effect as a judicial for-

feiture, are sufficient demands on the

surety to perform its obligations, and

is reasonable and lawful under the cir-

20a

cumstances presented, and supported by

a clear preponderance of the evidence.

7. The Court finds and holds that

Plaintiff is obligated unto the State of

Alabama as per the terms of its surety

agreement, and that Plaintiff may either

perform in the place of its principal or

pay the sums due under its bond.

8. The Court finds that the Plain-

tiff is not entitled to the relief

prayed for.

Accordingly, it is CONSIDERED,

ORDERED, ADJUDGED and DECREED BY THE

COURT :

1. The judgment be and is hereby

entered in favor of the Defendant and

against Plaintiff.

2. That the orders of the Alabama

Surface Mining Reclamation Commission

requiring Plaintiff to pay sums due under

2la

bond are reasonable and lawful and

supported by a clear preponderance of

the evidence and Plaintiff is ordered

to comply with the orders of the Commis-

sion.

3. That costs accrued herein be

and are hereby taxed against Plaintiff,

and if not paid let execution issue,

and if execution is returned not found,

then costs are taxed against Defendant.

4. That the Clerk shall cause a

copy of this order to be delivered to

the parties by placing a copy of same in

the United States Mail, to the attorneys

of record.

DONE and ORDERED, this the 5th day

of April, 1983.

I, Doris T. Turner, Clerk, Circuit Court

Registry Division, do hereby certify that

the ry ey x a full, true and correct

copy of the instrument(s) herewith set

out as same appears of record in said

22a

Court.

Witness my hand this

April, 1983.

/s/ Doris T. Turner

Clerk, Circuit Court

County, Alabama

the 5th day of

of Tuscaloosa

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APPENDIX E

BEFORE THE ALABAMA SURFACE

MINING RECLAMATION COMMISSION

MARCH 12, 1981

Frank Evans, Inspector

for the State of Alabama,

Complainant

v. No: F 81-030,

F 81-032,

Hendrix and Lee, Inc., F 81-033,

Eddie Hendrix, as Presi- F 81-034,

dent and Responsible Officer F 81-035

and John C. Coggins, III,

as Designated Agent for

Service,

Respondents

Pursuant to the provisions of the

Alabama Surface Mining Reclamation Act

of 1975, a public hearing in the above-

styled cause was held on February 25,

1981, before the Honorable Virgil Willett,

Director of the Commission and acting

Hearing Examiner. The Commission was

24a

represented by Marlin V. MacLaughlin,

Jr., Assistant Attorney General. The

Respondents were not represented though

duly served and notified by Ronald J. F.

Reeves, Assistant Attorney General,

January 27, 1981. At that time, Mr.

Eddie Hendrix was in the office of the

Alabama Surface Mining Reclamation

Commission and acknowledged that he had

knowledge of the various Hendrix and Lee

cases. At that time he further stated

that he was attempting to work the

problem of untimely reclamation out with

the Receiver in Bankruptcy. Relying on

the evidence as shown in the official

transcript of this hearing, the Commission

hereby FINDS:

It is noted that proper service of

notice is verified, the Citation and

Order with attached Verified Complaint

25a

having been mailed and the Respondent,

Eddie Hendrix, having been in the office

of the Commission and acknowledged the

Dockets before Ronald J. F. Reeves,

Assistant Attorney General, January 27,

1981. The Respondent has failed to

appear or be represented as ORDERED.

A representative of the surety company,

Commercial Standard Insurance Company,

being, Thomas Stewart, Attorney, was

present at the hearing. Relying on the

allegations contained in the Citation

and Order as represented by the attached

Verified Complaint for which there is no

dispute, namely, lack of timely reclama-

tion and in consideration of the apparent

Bankrupt status of Hendrix and Lee, Inc.,

on acreage disturbed or affected under

Permit P-1899, P-1867, P-1898, P-2020,

P-1753, the following ORDER is issued:

26a

It is hereby ORDERED that Hendrix

and Lee, Inc., or any other party with

an interest, submit or cause to be sub-

mitted a reclamation timetable in writing

acceptable to the Commission addressing

the specific steps to be taken to com-

pletely reclaim the acreage affected

under permits P-1899, P-1867, P-1898,

P-2020, and P-1753, including grading,

contouring, soil testing, the addition

of appropriate soil amendments and seed-

ing so that complete reclamation shall

be accomplished by May 15, 1982, exclu-

sive of the two (2) necessary growing

seasons within which to establish

permanent vegetative cover. Said

reclamation timetable shall be due with-

in sixty (60) days of the date of this

ORDER. Failure to receive a satisfactory

27a

reclamation timetable within sixty (60)

days of the date of this ORDER as out-

lined above, the applicable bonds, be it

a corporate surety bond or in the form of

other securities, are deemed FORFEITED

the sixty-first (6lst) day following the

date of this ORDER. However, where a

corporate surety bond is involved, the

surety may submit or cause to be sub-

mitted the required reclamation time-

table in writing satisfactory to the

Commission outlining the specific steps

to be taken to achieve complete reclama-

tion exclusive of the necessary two (2)

growing seasons for the establishment of

permanent vegetative cover, no later than

May 31, 1982. Said surety shall have an

additional thirty (30) days within which

to submit the required reclamation time-

table. Failure by Hendrix and Lee, Inc.,

28a

* * q = eile 2 , : ; + hs | +

ig > Stee 4 RE te RTA ee St ERY ee oe ee ee Speight

any party in interest or the corporate

surety to submit the required reclamation

timetable within ninety (90) days of the

date of this ORDER, the applicable bonds

on permits P-1899, P-1867, P-1898, P-2020,

P-1753 are immediately FORFEITED and the

funds thereunder DUE and PAYABLE on the

ninety-first (9lst) day from the date of

this ORDER into the Alabama Surface

Mining Reclamation Fund for the reclama-

tion of the affected acreage under Permits

P-1899, P-1867, P-1898, P-2020, P-1753.

It is further ORDERED that based

upon the Bankrupt status of Hendrix and

Lee, Inc., and upon the presumed inabili-

ty to perform the obligations under State

Law and Regulations and due to the con-

tinued failure to comply with previous

Notices of Violations and Orders of this

Commission, the license of Hendrix and |

29a

Lee, Inc. , being L-237, is immediately

REVOKED.

ORDERED BY THE COMMISSION, this

the 12th day of March, 1981.

ATTEST: A true copy

/s/ Virgil Willett

Virgil fittert :

Director for the

Commission

The above is a consolidation of the

five administrative orders issued in the

case. The orders are identical except

for the reference to permit numbers and

administrative docket numbers.

30a

APPENDIX F

STATUTES INVOLVED

Ala. Code §9-16-31:

The following words and phrases,

unless a different meaning is plainly

required by the context, shall have the

following meanings:... "Operator" means

the person, firm, corporation, partner-

ship or any other entity conducting coal

surface mining.

Ala. Code §9-16-32(a):

The objective of this Act is to

provide for the safe, responsible and

reasonable reclamation of lands upon

which surface disturbances will be

created by surface mining of coal so as

to protect the taxable value of property

and preserve natural resources within

the State and to protect and promote

3la

the health and safety of the people of

this State consistent with the protec-

tion of property and with maximum emp loy-

ment and the economic and industrial well-

being of the State. The Legislature

finds and declares that the extraction

of coal by surface mining provides a

major present and future source of energy

and is an essential and necessary

activity which contributes to the econo-

mic and material well-being of the State.

Ala. Code §9-16-34(23) (a):

In addition to any other powers

conferred on it by law, the Commission

shall have the power to:.... Enforce

the provisions of section 502 of the

federal Surface Mining Control and

Reclamation Act of 1977 (Pub. L. 95-87)

and Parts 700.5, 710.5, 710.11, 710.12,

715-718 of the Interim Surface Mining

32a

Regulations promulgated thereunder, and

any subsequent amendments or revisions

to said regulations.

Ala. Code §9-16-39(g):

Regrading shall begin within six

(6) months after the beginning of opera-

tions, unless such regrading is prevented

by act of God such as unseasonable wea-

ther or labor disputes or unless other-

wise extended by the Director for reason-

able cause, provided however that in

those operations where the mining method

utilized would result in the placing of

over-burden on regraded areas, such

regrading shall be commenced as soon as

practicable compatible with such mining

method, provided further that the

applicant shall complete the contouring

of all affected land within six (6)

months from the date of the completion of

33a

operations, unless such regrading is

prevented by act of God such as unsea-

sonable weather or labor disputes or

unless otherwise extended by the Director

for reasonable cause.

Ala. Code §9-16-44(a), (b):

After a coal surface mining permit

application has been approved but before

such a permit is issued, the applicant

shall file with the Commission, on a

form prescribed and furnished by the

Commission, a bond for performance pay-

able to the State, and conditioned upon

faithful performance of all the require-

ments of this Act and the coal surface

mining permit. The bond shall cover the

to be affected area of iand within the

permit area upon which the operator will

initiate and conduct surface coal mining

and reclamation operations within the

34a

initial term of the permit. As succeed-

ing increments of surface coal mining and

reclamation operations are to be initiat-

ed and conducted within the permit area,

the permittee shall file with the Comn-

ission an additional bond or bonds to

cover such increments in accordance with

this section. The amount of the bond

required for each bonded area shall be

One Thousand Two Hundred ($1,200.00)

Dollars, per acre to be bonded, but in no

case shall the bond be less than Ten

Thousand ($10,000.00) Dollars per permit.

Liability under the bond shall be

for the duration of the surface coal

mining and reclamation operation and for

a period coincident with the operator's

responsibility for revegetation require-

ments as provided in this Act. Upon

successful revegetation and acceptance by

the Commission, the operator's responsi-

bility shall completely terminate and the

remaining portion of bond released.

Ala. Code §9-16-51(a):

Whenever a verified complaint is

filed with the Commission, alleging that

any operator is in violation of this Act,

or rules and regulations of the Commis-

sion, the Commission may cause to have

issued and served upon the person alleged

to be committing such violation a written

notice which shall specify the provision

of this Act and/or the rules and regula-

tions of the Commission which such opera-

tor allegedly is violating, and a state-

ment of the manner in, and the extent to

which said operator is alleged to violate

this Act and/or the rules and regulations

of the Commission, and shall require the

person so complained against to answer

36a

the charges of such formal complaint at

a hearing before the Commission at a

time not less than ten (10) days or more

than thirty (30) days after the service

of notice. At the request of the Commis-

sion or of the charged operator, the

Director shall issue subpoenas requiring

the attendance of witnesses and the pro-

duction of such evidence as may be rele-

vant to such hearing. The charged

operator may appear in person or by coun-

sel at such hearing. Testimony shall be

taken under oath and recorded stenographi-

cally at such hearing and the charged

operator shall have the right to cross-

examine witnesses at such hearing. A

copy of the record of such hearing shall

be furnished to the charged operator

upon payment of the cost of such copy.

The Commission shall enter such order as

it deems appropriate on the basis of the

facts presented, which order may include

a civil penalty of not more than $10,000

based on the severity of the offense or

offenses found in such order. The

Commission shall forthwith mail a copy

thereof to the charged operator or its

attorney of record. If such order of

the Commission is not complied with, the

Commission may commence proceedings under

Section 17 of this Act. The filing of a

verified complaint alleging a violation

of this Act, or rules or regulations of

the Commission, shall be deemed to in-

clude all identical occurences of the

offense alleged and no further complaint

relating to such offense may be filed

pending the final resolution of such

complaint pursuant to this section.

Complaints alleging a violation of the

38a

Act, rules or regulations of the Commis-

sion must as a jurisdictional matter be

filed within ninety (90) days of the event

or events giving rise to such complaint.

28 U.S.C. §1257 (3):

Final judgments or decrees rendered

by the highest court of a State in which

a decision could be had, may be reviewed

By writ of certiorari, where the validity

of a treaty or statute of the United

States is drawn in question or where the

validity of a State statute is drawn in

question on the ground of its being repug-

nant to the Constitution, treaties or

laws of the United States, or where any

title, right, privilege or immunity is

specially set up or claimed under the

Constitution, treaties or statutes of, or

commission held or authority exercised

under the United States.

39a

30 U.S.C. §1201:

The Congress finds and declares

that ----

(a) extraction of coal and other

minerals from the earth can be accomplish-

ed by various methods of mining, includ-

ing surface mining;

(b) coal mining operations present-

ly contribute significantly to the

Nation's energy requirements; surface

coal mining constitutes one method of

extraction of the resource; the over-

whelming percentage of the Nation's coal

reserves can only be extracted by under-

ground mining methods, and it is, there-

fore, essential to the national interest

to insure the existence of an expanding

and economically healthy underground

coal mining industry; a

(c) many surface Wie

result in disturbances of surface areas

that burden and adversely affect commerce

and the public welfare by destroying or

diminishing the utility of land for

commercial, industrial, residential,

recreational, agricultural, and forestry

purposes, by causing erosion and land-

slides, by contributing to floods, by

polluting the water, by destroying fish

and wildlife habitats, by impairing natu-

ral beauty, by damaging the property of

citizens, by creating hasards dangerous

to life and property (,) by degrading the

quality of life in local commmities,

and by counteracting governmental pro-

grams and efforts to conserve soil, water,

and other natural resources;

(d) the expansion of coal mining to

meet the Nation's energy needs makes even

more urgent the establishment of appro-

. 4la

a i

priate standards to minimize damage to

the environment and to productivity of

the soil and to protect the health and

safety of the public;

(e) surface mining and reclamation

technology are now developed so that

effective and reasonable regulation of

surface coal mining operations by the

States and by the Federal Government in

accordance with the requirements of this

Act is an appropriate and necessary means

to minimize so far as practicable the

adverse social, economic, and environ-

mental effects of such mining operations;

(f) because of the diversity in

terrain, climate, biologic, chemical, and

other physical conditions in areas sub-

ject to mining operations, the primary

governmental responsibility for develop-

ing, authorizing, issuing, and enforcing

42a

regulations for surface mining and re-

clamation operations subject to this Act

should rest with the States;

(g) surface mining and reclamation

standards are essential in order to in-

sure that competition in interstate

commerce among sellers of coal produced

in different States will not be used to

undermine the ability of the several

States to improve and maintain adequate

standards on coal mining operations with-

in their borders;

(h) there are a substantial number

of acres of land throughout major regions

of the United States disturbed by surface

and underground coal [mining operations]

on which little or no reclamation was

conducted, and the impacts from these

unreclaimed lands impose social and

economic costs on residents in nearby and

adjoining areas as well as continuing to

impair environmental quality;

(i) while there is a need to regu-

late surface mining operations for min-

erals other than coal, more data and

analyses are needed to serve as a basis

for effective and reasonable regulation

of such operations;

(j) surface and underground coal

mining operations affect interstate com-

merce, contribute to the economic well-

being, security, and general welfare of

the Nation and should be conducted in an

environmentally sound manner; and

(k) the cooperative effort establish-

ed by this Act is necessary to prevent or

mitigate adverse environmental effects

of present and future surface coal min-

ing operations.

30 U.S.C. §1202:

+> i ' - > - aah he , .

oe es “eh tS ere eae” 2 rw. . oes ~

It is the purpose of this Act to --

(a) establish a nationwide program

to protect society and the environment

from the adverse effects of surface coal

mining operations ;

(b) assure that the rights of sur-

face landowners and other persons with

a legal interest in the land or appur-

tenances thereto are fully protected from

such operations;

(c) assure that surface mining

operations are not conducted where recla-

mation as required by this Act is not

feasible;

(d) assure that surface coal mining

operations are so conducted as to protect

the environment ;

(e) assure that adequate procedures

are undertaken to reclaim surface areas

as contemporaneously as possible with

. 45a

the surface coal mining operations;

(f) assure that the coal supply

essential to the Nation's energy require-

ments, and to its economic and social

well-being is provided and strike a bal-

ance between protection of the environ-

ment and agricultural productivity and

the Nation's need for coal as an essential

source of energy;

(g) assist the States in developing

and implementing a program to achieve

the purposes of this Act;

(h) promote the reclamation of

mined areas left without adequate reclama-

tion prior to the enactment of this Act

{enacted Aug. 3, 1977] and which continue,

in their unreclaimed condition, to sub-

stantially degrade the quality of the

environment, prevent or damage the bene-

ficial use of land or water resources, or

endanger the health or safety of the

public;

(i) assure that appropriate pro-

cedures are provided for the public

participation in the development, revi-

sion, and enforcement of regulations,

standards, reclamation plans, or programs

established by the Secretary or any

State under this Act;

(j) provide a means for develop-

ment of the data and analyses necessary

to establish effective and reasonable

regulation of surface mining operations

for other minerals;

(k) encourage the full utilization

of coal resources through the develop-

ment and application of underground

extraction technologies;

(1) stimulate, sponsor, provide

for and/or supplement present programs

for the conduct of research investiga-

tions, experiments, and demonstrations,

47a a

in the exploration, extraction, process-

ing, development, and production of

minerals and the training of mineral

engineers and scientists in the field of

mining, minerals resources, and techno-

logy, and the establishment of an appro-

priate research and training center in

various States; and

(m) wherever necessary, exercise

the full reach of Federal constitutional

powers to insure the protection of the

public interest through effective control

of surface coal mining operations.

30 U.S.C. §1253:

Each State in which there are or may |

be conducted surface coal mining opera-

tions on non-Federal lands, and which

wishes to assume exclusive jurisdiction

over the regulation of surface coal min-

ing and reclamation operations, except as

provided in sections 521 and 523 and

title IV of this Act [30 USCS §§1271,

1273 and 1231 et seq.], shall submit to

the Secretary, by the end of the eigh-

teenth-month period beginning on the date

of enactment of this Act [enacted Aug. 3,

1977], a State program which demonstrates

that such State has the capability of

carrying out the provisions of this Act

and meeting its purposes through ---

(1) a State law which provides for

the regulation of surface coal mining

and reclamation \operations in accordance

with the requirements of this Act;

(2) a State law which provides

sanctions for violations of State laws,

regulations, or conditions of permits

concerning surface coal mining and recla-

mation operations, which sanctions shall

meet the minimum requirements of this Act,

including civil and criminal actions,

forfeiture of bonds, suspensions, revo-

cations, and withholding of permits, and

the issuance of cease-and-desist orders

by the State regulatory authority or its

inspectors;

(3) a State regulatory authority

with sufficient administrative and tech-

nical personnel, and sufficient funding

to enable the State to regulate surface

coal mining and reclamation operations

in accordance with the requirements of

this Act; wok

(4) a State law which provides for

the effective implementations [implemen -

tation], maintenance, and enforcement of

a permit system, meeting the requirements | ‘att

of this title for the regulations [regu-

Saf

lation] of surface coal and recla-

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mation operations for coal on

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in the State;

(5) establishment of a process for

the designation of areas as unsuitable

for surface coal mining in accordance

with section 522 [30 USCS §1272] provided

that the designation of Federal lands

unsuitable for mining shall be performed

exclusively by the Secretary after con-

sultation with the State; and |

(6) establishment for the purpose

of avoiding duplication, of a process for

coordinating the review and issuance of

permits for surface coal mining and recla-,

mation operations with any other Federal

or State permit process applicable to the

proposed operations; and

(7) rules and regulations consis- ‘ga

tent with regulations issued by the

Secretary pursuant to this Act.

(b) Approval; prerequisites. The

Tey vat

\

Secretary shall not approve any State

program submitted under this section un-

til he has ---

(1) solicited and publicly dis-

closed the views of the Administrator of

the Environment ai Protection Agency, the

Secretary of Agriculture, and the heads

of other Federal agencies concerned with

or having special expertise pertinent to

the propos¢d State program;

(2) / obtained the written concur-

rence of the ere of the si espe

mental ‘Pebtect ion Agency with respect to

choke. aspects of a State program which

relate to air or water quality standards

promulgated under the authority of the

Federal Water Pollution Control Act, as

amended (33 U.S.C. 1151-1175), and the

Clean Air Act, as amended (42 U.S.C. 1857

et seq.);

(3) held at least one public hear-

ing on the State program within the

State; and

(4) found tnat the State has the

legal authority and qualified personnel

necessary for the enforcement of the

environmental protection standards.

The Secretary shall approve or disapprove

a State program, in whole or in part,

within six full calendar months after

the date such State program was submitted 5

to him. | | fe

(c) Notice of disapproval. If the

Secretary disapproves any proposed

State program in whole or in part, he

shall notify the State in writing of his

decision and set forth in detail the

reasons therefor. The State shall have

sixty days in which to resubmit a revised

State program or portion thereof. The

wee Se,

Secretary shall approve or disapprove

the resubmitted State program or portion

thereof within sixty days from the date

of resubmission.

(d) Inability of State to take

ee *, 3 , . . ”

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action because of injunction. For the

purposes of this section and section 504

{30 USCS §1254], the inability of a State

to take any action the purpose of which

is to prepare, submit or enforce a State

program, or any portion thereof, because

the action is enjoined by the issuance

of an injunction by any court of compe-

tent jurisdiction shall not result in a

loss of eligibility for financial assis-

tance under titles IV and VII of this

Act [30 U.S.C.S §§1231 et se. 1251 et

seq.] or in the imposition of a Federal iy

program. Regulation of the surface coal

mining and reclamation operations covered

or to be covered by the State program

subject to the injunction shall be con-

ducted by the State pursuant to section

502 of this Act [30 USCS §1252], wtil

such time as the injunction terminates

or for one year, whichever is shorter,

at which time the requirements of sections

503 and 504 [30 USCS §§1253, 1254] shall

again be fully applicable.

30 U.S.C. §1255(a):

No state law or regulation in effect

on the date of enactment of this Act

[Aug. 3, 1977], or which may become

effective thereafter, shall be superseded

by any provision of this Act of any regu-

lation issued pursuant thereto, except

insofar as such State law or regulation

is inconsistent with the provisions of

this Act. |

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‘ “a

30 U.S.C. §1269(c) (3):

When the operator has completed

successfully all surface coal mining

and reclamation activities, the release

of the remaining portion of the bond,

but not before the expiration of the

period specified for operator responsi-

bility in section 515 (§1265), provided,

however: that no bond shall be fully

released until all reclamation require-

ments of this Act are fully met.

30 U.S.C. §1271(d):

As a condition of approval of any

State program submitted pursuant to

section 503 of this Act [30 USCS §1253],

the enforcement provisions thereof shall,

at a minimum, incorporate sanctions no k

less stringent than those set forth in i

this section, and shall contain the same

or similar procedural requirements rela-

ting thereto. Nothing herein shall be

construed so as to eliminate any addition-

al enforcement rights or procedures which

are available under State law to a State

regulatory authority but which are not

specifically enumerated herein.